Opinion
E068190
08-13-2018
WANDA JOYCE BARTHOLOMEW, Plaintiff and Respondent, v. PAUL HUPP, Defendant and Appellant.
Paul Hupp, Defendant and Appellant in pro. per. Richardson Harman Ober, Kelly G. Richardson, Theodore H. Dokko, and Jonathan R. Davis for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. MCP1601191) OPINION APPEAL from the Superior Court of Riverside County. Mark Ashton Cope and Thomas H. Cahraman, Judges. Affirmed. Paul Hupp, Defendant and Appellant in pro. per. Richardson Harman Ober, Kelly G. Richardson, Theodore H. Dokko, and Jonathan R. Davis for Plaintiff and Respondent.
Judge Cope denied appellant's motion to quash service. Judge Cahraman made all of the other rulings challenged in this appeal. --------
The trial court granted Wanda Joyce Bartholomew an elder abuse injunction against her neighbor, Paul Hupp. It also awarded Bartholomew attorney fees against Hupp.
Hupp appeals, contending the trial court erred by:
1. Denying Hupp's motion to quash, as he was not properly served.
2. Refusing to compel Bartholomew to respond to discovery.
3. Engaging in improper ex parte communications with Bartholomew's counsel.
4. Issuing an elder abuse injunction, as Hupp's conduct was lawful.
5. Failing to disclose how it calculated its award of attorney fees.
Hupp has shown no reversible error. Hence, we will affirm.
I
PROCEDURAL BACKGROUND
On December 7, 2016, Bartholomew (then aged 75) filed a petition for an elder abuse injunction against Hupp. (Welf. & Inst. Code, § 15657.03.)
On January 17, 2017, Bartholomew filed a proof of service of the petition. On the same date, Hupp filed a motion to quash service. The next day, January 18, 2017, the trial court denied the motion to quash and granted a temporary restraining order.
On February 6, 2017, Hupp filed a motion to dismiss for failure to respond to discovery or, alternatively, to compel a response to discovery. On February 8, 2017, the trial court denied the motion. After an evidentiary hearing, it issued a three-year injunction.
On April 10, 2017, Bartholomew filed a motion for attorney fees, requesting $19,553.50. On May 10, 2017, the trial court granted the motion in the reduced amount of $12,000.
II
MOTION TO QUASH
Hupp contends that the trial court erred by denying his motion to quash, as he was not properly served.
A. Additional Factual and Procedural Background.
Bartholomew's proof of service was signed by an employee of an attorney service, who swore that at 6:05 p.m. on January 11, 2017, he personally served the petition and related documents on Hupp at his home address.
In a declaration in support of his motion to quash, Hupp testified that at 6:05 p.m. on January 11, 2017, he was not home. He found the documents on January 13, 2017, around 10 a.m., when walking his dog. In his memorandum of points and authorities — although not in his declaration — he said that a security video showed that the documents were actually left at his front door at about 5:45 p.m. on January 11.
At the hearing on the motion, both Hupp and Bartholomew testified. Hupp has not provided us with a reporter's transcript of this hearing.
B. Discussion.
Hupp's contention is not cognizable on appeal because he made a general appearance after the motion to quash was denied, without filing a petition for writ of mandate. (McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 258; State Farm General Ins. Co. v. JT's Frames, Inc. (2010) 181 Cal.App.4th 429, 437-444; see Code Civ. Proc., § 418.10, subds. (c), (e).)
This is not to say that the contention, even if cognizable, would have merit.
"Upon the filing of [a] motion[] to quash, 'the burden of proof is placed upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence. [Citation.] This may be done through presentation of declarations, with opposing declarations received in response. "'[W]here there is a conflict in the declarations, resolution of the conflict by the trial court will not be disturbed on appeal if the determination of that court is supported by substantial evidence. [Citations.]' [Citation.]" [Citation.]' [Citation.]" (CenterPoint Energy, Inc. v. Superior Court (2007) 157 Cal.App.4th 1101, 1118.)
Because the substantial evidence standard of review applies, Hupp has forfeited this contention by failing to provide us with a reporter's transcript of the hearing. "Without a complete record, we are unable to determine whether substantial evidence supported the implied findings underlying the trial court's order. [Citations.]" (Gonzalez v. Rebollo (2014) 226 Cal.App.4th 969, 977.) Hupp asserts that the trial court did not hold an evidentiary hearing, but this is belied by the minute order. Moreover, even on the record we do have, the trial court's decision was supported by substantial evidence — namely, the process server's declaration.
Hupp claims the trial court ruled that personal service was not required and actual notice was sufficient. He does not cite this to the record; without the reporter's transcript, he cannot. A brief must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." (Cal. Rules of Court, rule 8.204(a)(1)(C).) "Where factual assertions are not supported by adequate record references, we may deem them forfeited. [Citations.]" (Ponte v. County of Calaveras (2017) 14 Cal.App.5th 551, 554, fn. l.) Hence, we disregard this claim.
In a related contention, Hupp also argues that the process server's declaration was perjurious; therefore (1) there was a violation of due process, and (2) Bartholomew must be assumed to have no credibility. He forfeited this issue by failing to raise it in a timely manner below. Admittedly, he did raise belatedly it in a motion for reconsideration. That motion was not well-taken, however, because it was not "based upon new or different facts, circumstances, or law . . . ." (Code Civ. Proc., § 1008, subds. (a), (b).) In any event, even if we were to consider the issue, the trial court's denial of the motion to quash constitutes an implied finding that the process server's declaration was true and Hupp's declaration was untrue. Once again, we must accept that finding because it is supported by substantial evidence.
III
DISCOVERY
Hupp contends that the trial court erroneously refused to compel Bartholomew to respond to discovery.
A. Additional Factual and Procedural Background.
According to Hupp's motion to compel, on January 18, 2017, he served "written discovery requests" demanding production of any videos that Bartholomew had taken of him; she refused to comply.
B. Discussion.
Welfare and Institutions Code section 15657.03 provides for injunctions against elder abuse. Although it spells out the procedures relating to such injunctions in great detail, it does not provide for discovery. Moreover, it requires that a hearing be held either (1) "within 21 days, or, if good cause appears to the court, 25 days, from the date that the petition is filed," or (2) "[w]ithin 21 days, or, if good cause appears to the court, 25 days, from the date that a request for a temporary restraining order is granted or denied," whichever is later. (Id., subd. (f).) This simply does not allow enough time for discovery. (Cf. Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9:699.3, p. 9(11)-65 [no discovery in harassment injunction proceedings].)
Hupp argues that the time for discovery could have been shortened or the trial court hearing could have been continued. This is beside the point. Even assuming a trial court could allow for discovery in a particular case by jury-rigging the timelines, the usual timelines for discovery are simply incompatible with the usual timelines in an elder abuse injunction case. This demonstrates that the omission of any provision for discovery in Welfare and Institutions Code section 15657.03 is deliberate and discovery is statutorily unavailable.
In a one-sentence argument, Hupp asserts that the unavailability of discovery "violates due process of law under the Fourteenth Amendment." (Capitalization altered.) He has forfeited this contention by failing to support it with reasoned argument and citation of authority. "Every appellate brief must 'support each point by argument and, if possible, by citation of authority.' [Citation.] When an appellant asserts an argument but fails to support it with reasoned argument and citations to authority, we may treat the point as waived. [Citation.]" (Petitpas v. Ford Motor Company (2017) 13 Cal.App.5th 261, 271, fn. 4.) We do so here.
In any event, "[c]onstitutional principles of due process do not create general rights of discovery. [Citations.]" (Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264, 1280.) Nor did a right to discovery as a matter of due process arise out of the circumstances particular of this case. Hupp could have subpoenaed Bartholomew to produce the videos at trial. Thus, he cannot show that his inability to obtain them through discovery before trial made the trial fundamentally unfair. (See Salas v. Cortez (1979) 24 Cal.3d 22, 27 ["The touchstone of due process is fundamental fairness."].)
Separately and alternatively, even assuming discovery was potentially available, Hupp's motion was procedurally deficient. It was filed just two days before the hearing date. His supporting declaration was not signed under penalty of perjury. His request for production purported to require Bartholomew to produce the specified items within 15 days, not 30 days, as statutorily allowed. (Code Civ. Proc., §§ 2031.030, subd. (c)(2), 2031.260, subd. (a).) And Hupp did not so much as claim that he had attempted to meet and confer. (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).) Thus, the trial court was required to deny the motion.
IV
IMPROPER EX PARTE COMMUNICATIONS
Hupp contends that counsel for Bartholomew had improper ex parte communications with the trial court.
He has forfeited this contention by failing to cite the underlying factual assertions to the record. (See part II, ante.) He has further forfeited it by failing to cite any authority supporting it. (See part III, ante.)
Separately and alternatively, this contention fails on the merits. Hupp describes a purported ex parte communication between Bartholomew's counsel and the trial court's bailiff. The Code of Judicial Ethics provides, "A judge shall not initiate, permit, or consider ex parte communications, that is, any communications to or from the judge outside the presence of the parties concerning a pending or impending proceeding, and shall make reasonable efforts to avoid such communications . . . ." (Code Jud. Ethics, canon 3B(7), fns. omitted.) Hupp does not claim that there was a communication "to or from the judge." He does not claim that there was a communication "concerning a pending or impending proceeding." Finally, "[t]his canon does not prohibit court personnel from communicating scheduling information or carrying out similar administrative functions" (Advisory Com. com., Cal. Code Jud. Ethics, canon 3B(7), italics omitted); Hupp does not claim that the challenged communication did not relate to such functions.
As Hupp points out, "[f]or purposes of Canon 3B(7)(a), 'court personnel' includes bailiffs, court reporters, court externs, research attorneys, courtroom clerks, and other employees of the court . . . ." (Code Jud. Ethics, canon 3B(7)(a).) But this is beside the point, as the canon does not purport to prohibit "court personnel" from having communications with a party or a party's attorney. The term is defined only for the purpose of specifying the communications that a judge may permissibly have with "court personnel." (Ibid.)
Finally, Hupp has not shown any prejudice. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.) "[N]o case authority holds that a violation of a judicial ethical rule, per se, automatically requires reversal of the ensuing judgment." (People v. Thompson (2016) 1 Cal.5th 1043, 1100.)
Hupp complains that, because he was not present, he cannot show what was said. However, he could have requested an evidentiary hearing on this issue; the record does not indicate that he ever did. At one point, he did ask the trial court for a "transcript" of what was said. However, there would not normally be any transcript of a conversation between an attorney and a bailiff.
According to Hupp, Bartholomew's counsel admitted, in open court, that the asserted communication took place; Hupp asked the trial court to "memorialize and document" this admission in its minute order, but it refused to do so. Of course, this is not shown by the record. Moreover, the trial court was not required to use its minute orders to document matters that Hupp could have documented himself, simply by requesting (and paying for) a court reporter. (Code Civ. Proc., § 269, subd. (a)(1).) In any event, the supposed admission was merely that Bartholomew's counsel had spoken to the bailiff. As we have discussed, this falls short of showing any impropriety.
V
THE MERITS OF THE INJUNCTION
Hupp contends that it was error to issue an elder abuse injunction because his conduct was lawful.
To obtain an elder abuse injunction, Bartholomew had to prove "a past act or acts of abuse." (Welf. & Inst. Code, § 15657.03, subd. (c); see also id., subds. (a), (h).) "Abuse" includes any "treatment with resulting . . . mental suffering." (Welf. & Inst. Code, § 15610.07, subd. (a)(1); see also Welf. & Inst. Code, § 15657.03, subds. (a)(1), (b)(1).) Hupp does not argue that his conduct, as shown by the evidence, fell short of this threshold. There is no requirement that an act that results in mental suffering must also violate some other law in order to constitute "abuse."
Obviously, an act that constitutes the exercise of a constitutional right cannot be the basis for an elder abuse injunction. (See, e.g., Rosicrucian Fellowship v. Rosicrucian Fellowship Non-Sectarian Church (1952) 39 Cal.2d 121, 145.) Hupp therefore argues that "[t]he conduct Bartholomew accused [him] of . . . was all constitutionally protected conduct."
Hupp has forfeited the contention that his conduct was constitutionally protected by failing to support it with reasoned argument and citation of authority. (See part III, ante.) He has additionally forfeited this contention by failing to provide us with a reporter's transcript of the evidentiary hearing on the petition. Without one, he cannot show that there was, in fact, no evidence of any constitutionally unprotected conduct at the hearing.
Hupp appears to be arguing that the declarations in support of and in opposition to the petition failed to show any constitutionally unprotected conduct. Even if that were so, Bartholomew was free to introduce additional evidence at the hearing (including evidence of more recent incidents).
In any event, Hupp has forfeited this particular contention by referring only to the evidence in his own declaration and ignoring the evidence in Bartholomew's declaration. "'It is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.' [Citations.] Defendant['s] contention herein 'requires defendant[] to demonstrate that there is no substantial evidence to support the challenged findings.' [Citations.] A recitation of only defendant['s] evidence is not the 'demonstration' contemplated under the above rule. [Citation.] Accordingly, if, as defendant[] here contend[s], 'some particular issue of fact is not sustained, [he is] required to set forth in their brief all the material evidence on the point and not merely [his] own evidence. Unless this is done the error is deemed to be waived.' [Citations.]" (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881-882.)
VI
ATTORNEY FEES
The prevailing party in an elder abuse injunction proceeding is entitled to an award of attorney fees and costs. (Welf. & Inst. Code, § 15657.03, subd. (f).) Hupp contends that the trial court erred by failing to disclose how it calculated its award of $12,000 in attorney fees.
"An order is presumed correct; all intendments are indulged in to support it on matters as to which the record is silent, and error must be affirmatively shown. [Citation.]" (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 321.) "Thus, where a statement of reasons is not required and the record is silent, a reviewing court will presume the trial court had a proper basis for a particular finding or order. [Citation.]" (People v. Stowell (2003) 31 Cal.4th 1107, 1114-1115.)
"The superior court was not required to issue a statement of decision with regard to the fee award. [Citation.]" (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140.) This does not mean, as Hupp contends, that a fee award is immune from review. It does mean, however, that it is subject to the deferential "abuse of discretion" standard of review. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) Hupp has not even attempted to show that the trial court abused its discretion.
Hupp claims the trial judge "stated that he did not have to give a detailed breakdown of the $12,000 . . . because it was based on his '40 plus years of experience.'" This is not cited to the record and could not be, as Hupp has not provided us with any reporter's transcripts. Hence, we must disregard it. (See part II, ante.)
Even if substantiated, however, there would be nothing wrong with that. "'The "experienced trial judge is the best judge of the value of professional services rendered in his court . . . ."' [Citation.]" (Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 488.) "'The value of legal services performed in a case is a matter in which the trial court has its own expertise. [Citation.] The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. [Citations.]'" (PLCM Group v. Drexler, supra, 22 Cal.4th at p. 1096.) This does not impede review, because "we are at least as well situated as the trial court to determine the[] reasonable value [of legal services]. [Citations.]" (Gonzalez v. Santa Clara County Department of Social Services (2017) 9 Cal.App.5th 162, 171.)
VII
DISPOSITION
The order appealed from is affirmed. Bartholomew is awarded costs on appeal, including attorney fees, against Hupp.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. MILLER
J.