California Court of Appeal Apr 25, 2016 No. D068023Unpublished
Filed 4/25/16 Baize v. Numan CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DEBBIE BAIZE, D068023
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2015-00011385- CU-HR-CTL) JOHNSON NUMAN,
Defendant and Respondent.
APPEAL from an order of the Superior Court of San Diego County, Tamila
Ipema, Judge. Affirmed.
Debbie Baize, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
Plaintiff and appellant Debbie Baize appeals the order denying her request for a
restraining order against defendant and respondent Johnson Numan, the manager of the
building where plaintiff used to live, and his 12-year-old son, Tanner Numan.1 In
1 Johnson did not submit a respondent's brief in this proceeding. However, we do not "treat the failure to file a respondent's brief as a 'default' (i.e., an admission of error)
support of her request for a restraining order, plaintiff declared that in March 2015,
Johnson on behalf of Tanner obtained a temporary (but not permanent) restraining order
against plaintiff; that plaintiff in response also sought a restraining order against Johnson
and/or Tanner, which was denied; that on April 2, 2015, she again sought a restraining
order against Johnson and Tanner, which was again denied; and that on April 6, 2015, she
renewed her request for a restraining order against Johnson and Tanner after Johnson
attacked her on April 3, 2015.
In connection with her request for restraining order dated April 2, plaintiff alleged
that since Johnson became the building manager in 2013, he has "invaded [her] personal
life by asking questions about . . . finances, [her] whereabouts, and who [she] was with."
As an example of the Numans' harassment, plaintiff declared in support of her April 2
request for restraining order that as she was paying rent in February 2015, Johnson asked
her a series of questions that made plaintiff "uncomfortable" and, in her mind, suggested
Johnson "might be setting [her] up to be attacked." In another example, plaintiff noted
Tanner followed her to a store, and, when plaintiff would not buy him a specific item,
Tanner became "mad" and made up stories about plaintiff. Plaintiff declared she did not
want to be a "mother figure" to Tanner or his babysitter.
Plaintiff relied on her April 2 declaration in connection with her April 6 request
for restraining order. In addition, she further alleged in her April 6 request that Johnson
but independently examine the record and reverse only if prejudicial error is found." (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1203, citing In re Bryce C. (1995) 12 Cal.4th 226, 232–233; and In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1; cf. In re Bryce C., supra, at p. 232 ["If an appellant fails to file a brief, the appeal may be dismissed entirely."].) 2
hit her on April 3 as she was moving out of the building; that his attack left bruises on her
right and left arms; that after the police dispatched, she was able to finish moving out of
the building safely; and that as she was finishing moving out, Johnson referenced his son
Tanner, and said to plaintiff, Tanner "was going to be missing [her], and that [she]
shouldn't move out." Plaintiff stated that she felt threatened by this statement and that the
Numans' continued harassment has made her fear for her life.
The record shows that the court on April 27, 2015 heard the unreported testimony
of plaintiff, Johnson and Tanner; that the court considered the photographic evidence
proffered by plaintiff showing her "bruised arm"; and that after a "careful review" of the
record, the court found plaintiff had not proved her case by clear and convincing
evidence and thus denied her request for restraining order on this record.
DISCUSSION
A. Guiding Principles
A person who has suffered harassment may obtain an order prohibiting
harassment. (Code Civ. Proc.,2 § 527.6, subd. (a)(1).) Harassment is defined as
"unlawful violence, a credible threat of violence, or a knowing and willful course of
conduct directed at a specific person that seriously alarms, annoys, or harasses the person,
and that serves no legitimate purpose. The course of conduct must be such as would
cause a reasonable person to suffer substantial emotional distress, and must actually
cause substantial emotional distress to the petitioner." (§ 527.6, subd. (b)(3).)
2 All further statutory references are to the Code of Civil Procedure. 3
Course of conduct as provided in section 527.6 means "a pattern of conduct
composed of a series of acts over a period of time, however short, evidencing a continuity
of purpose, including following or stalking an individual, making harassing telephone
calls to an individual, or sending harassing correspondence to an individual by any
means . . . ." (§ 527.6, subd. (b)(1).) If the court "finds by clear and convincing evidence
that unlawful harassment exists, an order shall issue prohibiting the harassment." (§
527.6, subd. (i).)
"[I]t is settled that: 'A judgment or order of the lower court is presumed correct.
All intendments and presumptions are indulged to support it on matters as to which the
record is silent, and error must be affirmatively shown. This is not only a general
principle of appellate practice but an ingredient of the constitutional doctrine of reversible
error.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) When reviewing a trial
court ruling we do not reweigh the evidence, make our own factual inferences that
contradict those of the trial court, or second guess the trial court's credibility
determinations. (Citizens Business Bank v. Gevorgian (2013) 218 Cal.App.4th 602, 613.)
As such, when as here "no reporter's transcript has been provided and no error is
apparent on the face of the existing appellate record, the judgment must be conclusively
presumed correct as to all evidentiary matters. To put it another way, it is presumed that
the unreported trial testimony would demonstrate the absence of error. [Citation.] The
effect of this rule is that an appellant who attacks a judgment [or order] but supplies no
reporter's transcript will be precluded from raising an argument as to the sufficiency of
4
the evidence." (Estate of Fain (1999) 75 Cal.App.4th 973, 992; see Ehrler v. Ehrler
(1981) 126 Cal.App.3d 147, 154.)
B. Analysis
Here, plaintiff alleges in her one-page brief that the testimony elicited at the
hearing was "false"; that the "facts" of harassment were "contrary to [the] elicited
testimony"; and that she was in fact subject to "serious verbal [and] physical threats."
However, it was plaintiff's burden to present an adequate record for review, which she
has not done.
Furthermore, the record shows the court at the outset of the April 27 hearing
informed the parties "that this matter is not being reported by a court reporter or recorded
electronically." Because plaintiff failed to provide an adequate record for our review, as
a court of review we must presume the unreported hearing testimony would demonstrate
the absence of error and would provide substantial evidence for the denial of the
restraining order. (Estate of Fain, supra, 75 Cal.App.4th at p. 992.)
Plaintiff also claims there were "technical errors" in her case. However, plaintiff
fails to state what those technical errors were, to provide any law to support her
contention, and to show how any such errors prejudiced her and entitled her to relief on
appeal. We recognize plaintiff was self-represented in the trial court and in this appeal.
As such, we have carefully reviewed the limited record she provided but can find no
"technical errors" in the court's ruling denying her April 6, 2015 request for a restraining
order against Johnson and Tanner.
5
Finally, we note from the record that plaintiff has "moved out completely" from
the building managed by Johnson. As such, for this separate reason we conclude the
court order denying her request was proper. (See Russell v. Douvan (2003) 112
Cal.App.4th 399, 402 ["An injunction is authorized only when it appears that wrongful
acts are likely to recur."].)
DISPOSITION
The order denying plaintiff's April 6, 2015 restraining order is affirmed.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
6
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of a request for a restraining order, holding that the appellant failed to provide an adequate record to challenge the trial court's evidentiary findings and that the request was moot because the appellant had moved out.
Issues
Whether the trial court erred in denying a request for a restraining order under Code of Civil Procedure section 527.6.
Whether the appellant met the burden of providing an adequate record for appellate review in the absence of a reporter's transcript.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Because plaintiff failed to provide an adequate record for our review, as a court of review we must presume the unreported hearing testimony would demonstrate the absence of error”
“An injunction is authorized only when it appears that wrongful acts are likely to recur.”