Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Stanislaus County No. 436828 Loretta Murphy Begen, Judge.
Adrian Zavala, in propria persona, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Gomes, J. and Kane, J.
The trial court issued a domestic violence protective order restraining appellant Adrian Zavala from having contact with Rachel Tirre and three members of her family or household. (Fam. Code, § 6200 et seq.) Zavala, who represents himself on appeal, contends the order is not supported by substantial evidence and the court erred in ordering him to stay away from Tirre at her workplace because he was employed by the same company and worked at the same retail location as Tirre. Tirre did not file a respondent’s brief. We affirm because Zavala failed to provide an adequate record on appeal to allow us to review his claims.
All statutory references are to the Family Code unless otherwise stated.
FACTUAL AND PROCEDURAL HISTORIES
The court held a hearing on Tirre’s request for a restraining order, but Zavala did not designate a reporter’s transcript, or provide an agreed or settled statement of the proceedings, to be included as part of the appellate record. Thus, our factual summary is necessarily limited to the information in the clerk’s transcript.
Tirre filed a request for a domestic violence restraining order, which Zavala did not designate for inclusion in the clerk’s transcript. According to Zavala’s brief, Tirre, who he had dated, alleged in her petition that he tackled her and yelled at her.
Zavala filed an answer to the request, which is part of the appellate record. Zavala did not agree to the personal conduct, stay-away, move-out and batterer intervention program orders Tirre had requested. In a written statement attached to the answer, Zavala stated that Tirre’s accusations were false and denied committing the acts of which she accused him. Two letters were attached to the answer. The first was from the person who lived next door to the home Zavala was in on “the night in question, ” February 8, 2010, who described herself as Zavala’s close friend. The neighbor said she was at home and awake until 2:45 a.m. that day but did not hear any disturbances in the neighboring homes, and also attested to his good character. The second letter was from a woman who said she had known Zavala for three years and was in a bowling league with him. The woman confirmed Zavala is a “man of great integrity” and was dedicated to his school, family and work.
A hearing was held on Tirre’s request for a restraining order. The minute order states that no court reporter was present, both Tirre and Zavala were sworn and testified, and Zavala testified after being advised of and waiving his Fifth Amendment right to remain silent. The minute order further states a three-year restraining order was granted as prayed. That same day, a restraining order was filed, which lists Tirre as the protected person, three family or household members as also being protected by the order, and Zavala as the restrained person. The order prohibits Zavala from harassing, contacting or taking numerous other specific actions against Tirre and her family members, and orders him to stay at least 100 yards from Tirre’s home and vehicle, her job or workplace, her family members, and her children’s school.
DISCUSSION
On appeal, Zavala contends the trial court erred in issuing the restraining order because it was granted based only on Tirre’s allegations, “without any proof of the statements or of physical harm.” Zavala also claims the trial court erred in requiring him to stay away from Tirre’s workplace, as the court knew they were employed by the same company and worked at the same retail location, and the order has led to a reduction of his work hours and required him to get a second job. Zavala also asserts that since the order was issued, Tirre has used it “as a weapon towards me” by having him thrown out of an “establishment” and threatening to sue their employer if his employment was not terminated.
Standard of Review
We review the trial court’s order under the abuse of discretion standard since an order granting, denying, dissolving, or extending a restraining order “‘“‘rests in the sound discretion of the trial court upon a consideration of all the particular circumstances of each individual case.’”’” (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495, quoting Salazar v. Eastin (1995) 9 Cal.4th 836, 849-850.) The same standard applies to appellate review of a grant or denial of a protective order to prevent domestic violence. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.) “‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’” (Id. at p. 421.) To the extent that we are called upon to review the trial court’s factual findings, we apply a substantial evidence standard of review. (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1505.)
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; 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.)
To overcome the presumption of correctness, Zavala must show legal error on the face of the appellate record, which consists of the clerk’s transcript containing eight documents: Zavala’s “Answer to Temporary Restraining Order, ” the proof of service for the answer, the minute order of the hearing, the protective order, the notice of appeal, and three notices designating the record, which consists of the original notice, a corrected notice and a second corrected notice.
Domestic Violence Prevention Act
The restraining order before us was issued pursuant to the Domestic Violence Prevention Act (§ 6200 et seq. (the DVPA)). The DVPA authorizes the trial court to issue a restraining order “for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit... shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” (§§ 6300, 6220 [purpose of DVPA stated].) A restraining order may issue under the DVPA either “enjoining specific acts of abuse, ” “excluding a person from a dwelling, ” or “enjoining other specified behavior” and may issue ex parte, after notice and a hearing, or in a judgment. (§ 6218.)
For purposes of the DVPA, “‘abuse’ means any of the following: [¶] (a) Intentionally or recklessly to cause or attempt to cause bodily injury. [¶] (b) Sexual assault. [¶] (c) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. [¶] (d) To engage in any behavior that has been or could be enjoined pursuant to Section 6320. ” (§ 6203, italics added.) The behavior specified in section 6320 includes “molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.” (§ 6320, subd. (a); see In re Marriage of Nadkarni, supra, 173 Cal.App.4th at pp. 1494-1498 [abuse includes conduct described in § 6320, such as disturbing the peace of the other].)
Analysis
Zavala contends there was insufficient evidence to show he engaged in any conduct warranting a restraining order. Without a record of the testimony received at the hearing by way of a reporter’s transcript, audio recording, or agreed or settled statement (Cal. Rules of Court, rules 8.130(g), 8.134, 8.137), we must presume the facts supported the trial court’s findings. An appellant who attacks a judgment, but supplies no reporter’s transcript, is precluded from asserting that the evidence was insufficient to support the judgment. (Estate of Fain (1999) 75 Cal.App.4th 973, 992.) In the absence of a record of evidence received at the hearing, we cannot evaluate issues requiring a factual analysis and must presume “the trial court acted duly and regularly and received substantial evidence to support its findings.” (Stevens v. Stevens (1954) 129 Cal.App.2d 19, 20; see Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003; Hodges v. Mark (1996) 49 Cal.App.4th 651, 657.)
The inadequate record also prevents us from reviewing Zavala’s claim that the trial court abused its discretion in ordering him to stay away from Tirre’s workplace even though they worked at the same location. In addition, while Zavala claims that Tirre has used the restraining order as a weapon, this claim is irrelevant to whether the trial court abused its discretion when it granted the order. Since we are not provided any evidence on which the trial court based its decision to issue the restraining order, there is no support for Zavala’s argument that the trial court abused its discretion in this case. We acknowledge that Zavala 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 in 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.