Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. CIVRS907917, David A. Williams, Judge.
Shane Tommer, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
McKINSTER, J.
Defendant and appellant Shane R. Tommer appeals after the trial court granted restraining orders requiring defendant to stay away from plaintiff and respondent Tracy Auld. We affirm the orders.
FACTS AND PROCEDURAL HISTORY
Plaintiff was a resident of a mobile home park in Ontario, California. Plaintiff and another person, Allen Rizzone, owned some mobile homes at the park; Rizzone had hired defendant, a handyman, to refurbish the units. Defendant also apparently did handyman work for other mobile home owners at the park.
Plaintiff filed an ex parte petition for restraining orders, which apparently alleged in part that defendant had been hired to do work on plaintiff’s mobile home, but that she then fired him for stealing the keys to other mobile homes she managed, and that defendant was occupying the mobile homes he had been hired to work on. She apparently further alleged that defendant had then moved into her shed, bringing a television and a bed, and that he had broken into her home to use the appliances while she was “‘off at work somewhere.’” She also apparently alleged that defendant had siphoned gasoline from her car, and had taken tools, a ladder, a video camera and other property.
The petition’s operative allegations are not included in the record on appeal. Their substance is gleaned from defendant’s responsive pleading.
Defendant was apparently served with some notice of the impending hearing, although he asserts that he was not given a copy of the petition and other moving papers. Defendant went to the courthouse on the date set for hearing and viewed the moving papers in the courtroom shortly before the hearing. He prepared a handwritten response, denying the allegations and explaining his view of what had happened. He did not steal any keys; plaintiff provided him with keys to the mobile homes he was refurbishing. He did not steal tools; many of the tools belonged to defendant. Defendant did store some things in plaintiff’s shed, including a television set recovered from a mobile home (left by the previous owner), but he did not live there. Defendant denied living in the mobile homes he was refurbishing, averring that he had his own residence. Defendant denied breaking into plaintiff’s mobile home to use the appliances, but focused his rebuttal to plaintiff’s claim (that he had done so while she was off at work somewhere) by averring that plaintiff did not have a job and did not leave her mobile home to go to work. As to stolen items such as a ladder or video camera, defendant countered plaintiff’s allegations with the assertion that the items in fact belonged to him. Defendant denied ever threatening violence against plaintiff, or harassing or stalking her. Defendant also asserted that being required to stay away from plaintiff could affect his livelihood, as he had repair jobs for other mobile home owners in the park. He would not be able to perform the work he was hired to do if the distance he must stay away from plaintiff was too great. He provided letters from customers to the same effect, and to support his claims that plaintiff was the aggressor who was harassing defendant.
At the initial hearing on the ex parte request for orders, the trial court granted temporary restraining orders: among other things, defendant was required to remain 50 yards away from plaintiff’s mobile home. The court also ordered defendant served with all the moving papers. The court set a new hearing, providing time for defendant to file opposition.
At the continued, contested hearing, the trial court granted the requested restraining orders. Defendant was ordered to stay away a distance of 100 yards from plaintiff’s mobile home, although there was a grace period granted of three days to stay away 10 yards, so that defendant could complete work already in progress at the neighboring mobile homes.
Defendant now appeals.
ANALYSIS
Defendant contends that the trial court’s decision was not supported by the evidence. He further contends that the trial court’s ruling was the product of bias. He also appears to contend that the service of notice of the petition was defective.
I. Defendant Generally Appeared and Was Later Properly Served With All Relevant Documents
Defendant complains that, at the time he was notified of the petition, a woman accosted him, handed him a business card showing the date and time of the ex parte hearing, and told him that he had been served, despite failing to provide defendant with copies of the petition or a summons. Nevertheless, as the record shows, defendant did appear at the time and place set for the ex parte hearing. “[Code of Civil Procedure] [s]ection 410.50, subdivision (a) provides in part, ‘A general appearance by a party is equivalent to personal service of summons on such party.’ [Citations.] Thus, the Courts of Appeal have explained: “A general appearance operates as a consent to jurisdiction of the person, dispensing with the requirement of service of process, and curing defects in service.” (2 Witkin, Cal. Procedure (4th ed. 1996) Jurisdiction, § 190, p. 756.)’ [Citations.] [Code of Civil Procedure] [s]ection 1014 states, ‘A defendant appears in an action when the defendant answers, demurs, files a notice of motion to strike, files a notice of motion to transfer pursuant to [Code of Civil Procedure] [s]ection 396b, ... gives the plaintiff written notice of appearance, or when an attorney gives notice of appearance for the defendant.’ The statutory list contained in [Code of Civil Procedure] section 1014 of what constitutes an appearance is not exclusive. A general appearance occurs when the defendant takes part in the action or in some manner recognizes the authority of the court to proceed. [Citations.]” (Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52.)
Here, defendant appeared generally and participated actively in the proceedings, fully recognizing the authority of the court to proceed. He had actual notice of the proceedings, and he appeared in court at the appointed place and time. He did not confine his participation to objection to the service, but sought to address the merits of the allegations based on a preliminary review of the filed documents. The court ensured that defendant was served with complete copies of the moving papers, and defendant was afforded the opportunity to present a written opposition for the next hearing. Defendant appeared generally, and thus forfeited any claim of error on appeal with respect to the service of the petition on him. (Fireman’s Fund Ins. Co. v. Sparks Const., Inc. (2004) 114 Cal.App.4th 1135, 1148 [Fourth Dist, Div Two].)
II. The Evidence Was Sufficient to Support the Restraining Orders
Defendant contends that there was no proof to support plaintiff’s petition for an anti-harassment injunction.
“[I]njunctions issued under Code of Civil Procedure sections 527.6 and 527.8, which prohibit civil harassment, are reviewed to determine whether the necessary factual findings are supported by substantial evidence. [Citations.]” (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137.) Substantial evidence means evidence that is reasonable, credible, and of solid value. (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.) The judgment also comes to us clothed in the presumption that the record contains sufficient evidence to sustain every finding of fact, and it is the burden of the appealing party to demonstrate the absence of substantial evidence to support a challenged finding; in so doing, the appellant must set forth all the material evidence on the point. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)
Here, defendant has failed to set forth all the material evidence, inasmuch as the record on appeal does not contain a complete copy of the petition, and particularly omits plaintiff’s declaration in support of the petition. In view of the failure to present all the material evidence in support of the judgment, we presume the judgment is correct and deem defendant’s contention otherwise waived. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.)
Even if we consider the matter on the merits, defendant has at best presented a case of conflicting evidence. The power to judge the credibility of witnesses is vested in the trier of fact. (As You Sow v. Conbraco Industries (2005) 135 Cal.App.4th 431, 454.)
Defendant complains that the trial court did not require plaintiff to produce police reports or witnesses to support her allegations. Defendant fails to recognize that police reports are generally inadmissible as evidence. (See, e.g., People v. Hernandez (1997) 55 Cal.App.4th 225, 240.) Presumably, plaintiff did provide her sworn declaration in support of the petition; additional oral testimony from witnesses was not required.
Defendant bases his contention that the evidence was insufficient also in part on his view that all plaintiff’s statements in the petition were shown by his evidence to be “lies, ” and on the court’s failure to take oral testimony of defendant and his witnesses. Defendant argues here that, “On August 11, 2009, I appeared in court knowing that I had submitted my statement as well as several witness statements in plenty of time for court review. Along with me were several witnesses to state that [plaintiff] was inflicting this on me out of malice with no facts or honesty. These witness[es] had seen [plaintiff’s] erratic and sometimes bizarre behaviors both to them and to others as well as myself. I felt that an impartial Judge would surely see the truth in my case and dismiss it.”
As defendant concedes, he had prepared and submitted his written response to the petition well in advance of the hearing. His evidence was therefore before the court, which presented defendant’s view of events. While plaintiff asserted that defendant had stolen mobile home keys and occupied the mobile homes, defendant’s response was that plaintiff had given him the keys so he could work on the homes, as well as an assertion that he had other places to live. These and similar allegations and responses created at most a conflict in the evidence. The parties generally did not even disagree on the basic facts, but rather on their interpretation of the objective circumstances.
As we have already noted, the existence of a conflict in the evidence, which at most creates a credibility contest, is within the power of the trier of fact to resolve. “Where there is conflicting testimony, reviewing courts recognize that the trier of the facts has the better opportunity to judge the credibility of witnesses. In such a case the trial court’s findings of fact, to the extent that they rest upon an evaluation of credibility, should be regarded as conclusive on appeal.” (Estate of Fries (1965) 238 Cal.App.2d 558, 561.) The trier of fact may accept the evidence of the witnesses whose testimony is believed, and reject the testimony of others. (Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. (1967) 66 Cal.2d 782, 787.) Here, the trial court clearly credited plaintiff’s evidence, and disbelieved defendant’s explanations to the contrary. The court resolved all such issues against defendant. Defendant has not shown that the evidence credited was insufficient to support the findings.
III. Defendant Has Failed to Demonstrate Any Bias on the Part of the Trial Court
Defendant contends that the trial court’s decision was the product of bias. Defendant infers bias based on the court’s remarks at the outset of the contested hearing, indicating a preliminary decision in favor of plaintiff, based on “sufficient evidence to grant [the restraining order].” Defendant urges that, at the hearing, “there was not any evidence from [plaintiff], ” which led defendant to believe “that Judge Williams m[a]y have had a prior acquaintance with [plaintiff].”
Defendant has misconceived the nature of the proceedings. Although plaintiff had not testified at the contested hearing, the court had plaintiff’s evidentiary declaration before it. Thus, evidence had been presented. The court’s familiarity with plaintiff’s filings did not indicate a personal acquaintance with plaintiff. Defendant has failed to demonstrate any evidence of bias, but only that the trial court did not rule in defendant’s favor. “[A] trial court’s numerous rulings against a party-even when erroneous-do not establish a charge of judicial bias, especially when they are subject to review.” (People v. Guerra (2006) 37 Cal.4th 1067, 1112.)
DISPOSITION
Defendant has failed to demonstrate any error requiring reversal. The restraining orders are affirmed. In the interests of justice, the parties are to bear their own costs on appeal.
We concur: RAMIREZ, P. J., MILLER, J.