Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tulare County No. VFL235202 William Silveira, Jr., Judge.
Stanley Harrison, in propria persona, for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
OPINION
Before Cornell, Acting P.J., Gomes, J. and Kane, J.
Stanley Harrison appeals from the trial court’s order denying his request for a protective order under the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.), by which he sought to restrain his son Mann Harrison. Stanley, who represents himself on appeal, essentially contends the trial court erred when it granted a continuance to allow Mann to file a response to his request. Mann did not file a respondent’s brief. We affirm the order.
All further statutory references are to the Family Code unless otherwise stated.
We will refer to the parties by their first names, not out of disrespect but to avoid any confusion to the reader.
FACTUAL AND PROCEDURAL HISTORIES
On November 19, 2009, Stanley filed a request for a protective order, which Stanley did not designate for inclusion in the appellate record. The register of actions shows that a temporary restraining order was granted the following day.
A hearing on the request was held on December 15, 2009, before the Honorable Jennifer Shirk, at which both Stanley and Mann appeared. At the hearing, the court noted that Mann had not filed a response and asked if he objected to Stanley’s request. Mann responded that he did “have an objection.” The court stated it would permit him to file a response if he wanted to contest Stanley’s allegations; Mann thought he could have a response prepared within a couple of days. When the court asked him if he needed to have contact with Stanley before the first of the year, Mann responded no, “just basically to see my mother.” The court stated it would permit him to contact the house so he could arrange to see his mother.
The court continued the hearing to January 4, 2010, and placed it on the Honorable William Silveira’s calendar. The court informed Mann that he needed to have the response filed no later than December 23, 2009, and the restraining order would remain in effect until January 4, 2010, with Mann being permitted to contact his mother. Stanley objected, stating he wanted a permanent restraining order and explaining why it would not be good for Mann to contact his mother. After a discussion about Mann’s criminal record, the court stated Mann would be permitted to call his mother on Christmas, but he must stay away from his father. The court’s written findings and order after hearing state, in pertinent part, that Mann must file his response by December 23, 2009.
Stanley and Mann both appeared at the continued hearing on January 4, 2010, before Judge Silveira. The court informed Mann that Stanley was seeking restraining orders against him and asked if he was opposed to having them. Mann responded: “No, I’m just trying to seek legal counseling and get some information. So I was going to ask the Court if I have a couple of months to get my — because they only gave me a week with the holidays, so I didn’t have to respond. So I was going to ask the Court if I could have a couple of months to file the appropriate paperwork I need.” The court responded that was fine and ordered him to file a written response by February 18, with the matter to be heard on March 11 and the temporary restraining orders to remain in full force and effect. The court warned Mann not to violate the restraining order. Mann responded: “Yes, it’s about my mother anyways. It has nothing to do with him.” The court stated the temporary order issued by Judge Shirk would continue in full force and effect until the March hearing date.
The matter then trailed so the restraining order could be prepared. After that, the following exchange occurred between Stanley and the court:
“THE COURT: Mr. Harrison, you had a question?
“MR. STANLEY HARRISON: Yes, thank you for allowing me to ask the question.... [¶] Your Honor, I’m new at this, obviously, to get to the point is this, and I’m not trying to sound like an attorney or anything, the defendant, initially he did not — there was no response. I was not served. I had to respond in order to file the petition originally asking for — you know what it’s called for. You know what the protocol is. I had to initially make a respon[se]. I had to do that twice. On the second time in December — the last time we appeared I think in Judge Shirk, third floor, you were given a certain time to file a response, so that’s two response[s] that he’s missing.
“THE COURT: I wasn’t aware of that, sir. I hadn’t read that minute order, so I gave him a second chance. You are covered by a temporary order, the matter will be heard by me in April [sic], so if he doesn’t have a response filed by then, I’m going to hear it without a response.
“MR. STANLEY HARRISON: But doesn’t he have to come up with two responses?
“THE COURT: No, just one.
“MR. STANLEY HARRISON: You made that clear, but since you took a moment to hear me, and I’m not trying to tell you know to do your business, but the judge initially when he appeared, he was supposed to have filed a response, that was not done. After the temporary restraining order was kept into effect until this hearing, he was supposed to file another response for that hearing. So that’s two responses
“THE COURT: Well, sir, he only has to file one response because there’s only one petition.
“MR. STANLEY HARRISON: I did two.
“THE COURT: No, you don’t have to do two.
“MR. STANLEY HARRISON: I did two.
“THE COURT: Well, you don’t have to do anymore.
“MR. STANLEY HARRISON: Okay, thank you.
“THE COURT: Okay, that’s all.”
On February 18, 2010, Mann filed an answer, in which he stated he did not agree to the personal conduct and stay-away orders his father requested. In an attached statement, Mann claimed Stanley’s allegations that he threatened to kill Stanley were “false and untrue” and Stanley had called the police each time he attempted to visit his mother but never told the police he had threatened to kill him. Mann explained why it was important to him to visit and have a relationship with his 82-year-old mother, and claimed that Stanley was abusing her and trying to keep family members away from her.
The hearing was held on March 11, 2010 before Judge Silveira. Both Stanley and Mann appeared and testified. After oral argument, the court denied the request due to insufficient evidence.
DISCUSSION
Stanley is not challenging the court’s March 11, 2010, denial of his request for a restraining order. Instead, Stanley contends the court erred when, on January 4, 2010, it gave Mann additional time to file a response. Specifically, Stanley contends, without citation to any authority, that the court abused its discretion because it should have read Judge Shirk’s order and recognized that Mann was in “direct violation” of that order. Stanley contends the “use or poor use” of discretion directly affected the outcome of the case because Mann should not have been able to reply, especially when he “asked to respond to [Mann’s] response, ” which Judge Silveira denied. Stanley contends that without the reply, Mann “would not have been [able] to introduce letters from anyone including himself that biased the judge in his decision.” Stanley contends that if the case was heard on January 4, he would have been granted the restraining order he sought. Stanley asks us to vacate the denial of his request and order the matter set for trial without a response from Mann and that he be restrained from having contact with himself and his wife.
We reiterate some of the basic rules governing appellate review: As a general rule, “an appealed judgment or order is presumed to be 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.’” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2008) ¶ 8:15, p. 8-5 (Eisenberg), citing, among others, Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham); State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) Also, “[a] ppellant has the burden of overcoming the presumption of correctness and, for this purpose, must provide an adequate appellate record demonstrating the alleged error.” (Eisenberg, ¶ 8:17, p. 8-5; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.) “Appellant’s burden also includes the obligation to present argument and legal authority on each point raised. This requires more than simply stating a bare assertion that the judgment, or part of it, is erroneous and leaving it to the appellate court to figure out why; it is not the appellate court’s role to construct theories or arguments that would undermine the judgment and defeat the presumption of correctness.” (Eisenberg, ¶ 8:17.1, pp. 8-5 to 8-6.) “When appellant asserts a point but fails to support it with reasoned argument and citations to authority, the court may treat it as waived and pass it without consideration.” (Eisenberg, ¶ 8:17.1, p. 8-6.)
Stanley’s claims fail for several reasons. First, we note that Stanley’s opening brief fails to cite any authority to support his various contentions. The failure to cite relevant legal authority to support an argument results in a waiver of the argument. (Akins v. State of California (1998) 61 Cal.App.4th 1, 50 [contention waived by failure to cite legal authority]; Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647 [a point asserted by appellant without argument or authority need not be discussed by reviewing court].) Since he cites no legal authority, Stanley has waived each argument.
Second, even if his appellate argument is not waived, Stanley did not object in the trial court when Judge Silveira granted Mann a continuance on January 4, 2010. The trial court is vested with wide discretion to determine whether to grant a continuance and its ruling will not be disturbed absent a clear abuse of discretion. (In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002, fn. 11.) Generally, when a party fails to object to a trial court’s discretionary ruling when it is made, he or she forfeits any challenge to that ruling on appeal. “‘An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method.... The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver.... Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.’” (Doers v. Golden Gate Bridge Etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1, italics in original.) Although Stanley told the court he thought Mann should have to file two responses, he never objected to the court granting Mann a continuance.
Finally, even considering the merits, Stanley has not shown that the court abused its discretion when it gave Mann a second chance to file a response. “Generally, where a trial court has discretionary power to decide an issue, an appellate court is not authorized to substitute its judgment of the proper decision for that of the trial judge. The trial court’s exercise of discretion will not be disturbed on appeal in the absence of a clear showing of abuse, resulting in injury sufficiently grave as to amount to a manifest miscarriage of justice.” (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682.) “‘Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.’” (Denham, supra, 2 Cal.3d at p. 566.)
We discern no abuse of discretion in this matter. The court granted the January 4, 2010 continuance based on Mann’s statement that, given the holidays, he did not have enough time to prepare the response and he needed additional time to seek legal counseling and get information. While Mann did answer “No” when asked if he was opposed to a restraining order, Mann’s request for additional time to prepare a response shows that he was opposed to at least some aspect of Stanley’s request. Stanley complains that the court did not review the prior order giving Mann until December 23, 2009 to file a response, but even so, it was not beyond the bounds of reason to give a party representing himself additional time to file a response.
We acknowledge that Stanley is representing himself on appeal. While under the law one may act as his own attorney, when a litigant does so, he is held to the same restrictive rules of procedure and evidence as an attorney. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638- 639; Monastero v. Los Angeles Transit Co. (1955) 131 Cal.App.2d 156, 160- 161.)
There was no respondent’s brief filed in this case. Even if the absence of a respondent’s brief, however, an appellant has the burden of showing reversible error. (See County of Lake v. Antoni (1993) 18 Cal.App.4th 1102, 1104; Cal. Rules of Court, rule 8.220(a)(2).)
DISPOSITION
The order is affirmed.