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Campbell v. Waymire

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 31, 2012
F061099 (Cal. Ct. App. Jan. 31, 2012)

Opinion

F061099 Super. Ct. No. FL612119

01-31-2012

NOLAN RUBEN CAMPBELL, Petitioner and Respondent, v. ANTHONY JAY WAYMIRE, Defendant and Appellant.

Anthony Jay Waymire, in pro. per., for Defendant and Appellant. Kilpatrick and White and Michael R. Kilpatrick for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Eric Bradshaw and Susan M. Gill, Judges.

Anthony Jay Waymire, in pro. per., for Defendant and Appellant.

Kilpatrick and White and Michael R. Kilpatrick for Plaintiff and Respondent.

Appellant Anthony J. Waymire, also known as Anthony J. Campbell, appeals from orders of the superior court dated January 26, 2010, April 19, 2010, and June 30, 2010, each relating to the issuance of a domestic violence restraining order entered against appellant at the request of his adoptive father, Nolan R. Campbell. Waymire represents himself on this appeal. His brief is difficult to understand and is without citations to the record. Indeed, there is no record on appeal. A January 31, 2011, affidavit from a deputy clerk of the Kern County Superior Court informed this court that appellant failed to post the fees required to have a reporter's transcript and clerk's transcript prepared, and that therefore the superior court was unable to produce those transcripts. Applying basic principles of appellate review, we affirm the orders of the superior court.

ANALYSIS

This appeal requires us to revisit and restate some basic, fundamental principles of appellate review of a trial court judgment.

First:

"'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; accord, Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140.)

'"It is well settled that all presumptions and intendments are in favor of supporting the judgment or order appealed from, and that an appellant has the burden of showing reversible error, and that, in the absence of such showing, the judgment or order appealed from will be affirmed.' [Citations.]" (Walling v. Kimball (1941) 17 Cal.2d 364, 373, quoting Hibernia Sav. etc. Soc. v. Ellis Estate Co. (1933) 132 Cal.App. 408, 412; accord, Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 261.) "[A]n appellant '"must affirmatively show error by an adequate record.... 'A judgment ... is presumed correct. All ... presumptions are indulged in to support it on matters as to which the record is silent ....""" (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532.) Appellant has provided no appellate record at all. (See Cal. Rules of Court, rules 8.120, 8.122, and 8.130.)

Appellant has attached to his reply brief, and also to a motion he made to augment the record on appeal, a document purporting to be a reporter's transcript of a hearing held on January 25, 2010, which resulted in a January 26, 2010, ruling from which he now appeals. On December 29, 2010, we granted appellant's motion to augment the record on appeal, and directed him to "cause the material to be prepared and certified, and to transmit the same to this court but appellant failed to post in the superior court the required fees to have the material prepared pursuant to our December 29 order. The superior court's January 26, 2010, order grants respondent Nolan R. Campbell a protective order. Even if we were to consider the transcript submitted to us by appellant, we see nothing in it which would demonstrate any merit to his appeal. Appellant repeatedly asserts in his briefing that family members who testified in support of the requested protective order are liars. Applying the substantial evidence rule, which we cite in the text of this opinion, we cannot reweigh the credibility of the witnesses who testified. According to the January 25 transcript, appellant's father, mother, and stepsister all testified that appellant threatened to kill his father, respondent Nolan R. Campbell. Appellant himself testified, about his stepsister's testimony: "She is a liar. I dispute that. I threatened to knock his teeth out."

"All presumptions indulged in are in favor of the regularity of the judgment and proceedings upon which it is based, hence it devolves upon an appellant to affirmatively show the existence of the error upon which he asks for a reversal." (Scott v. Hollywood Park Co. (1917) 176 Cal. 680, 681; see Dahlberg v. Dahlberg (1927) 202 Cal. 295, 297.)

"'"[E]rror must be affirmatively shown."'" (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.) "The burden rests upon the party complaining not only to show error but also to show that the error is sufficiently prejudicial to justify a reversal." (Coleman v. Farwell (1929) 206 Cal. 740, 741.)

Second: "When an appellant decides to represent himself in propria persona, 'he is entitled to the same, but no greater, consideration than other litigants and attorneys. [Citations.]'" (Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193; accord, Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638, disagreed with on another ground in Dumas v. Stocker (1989) 213 Cal.App.3d 1262, 1269, fn. 13; Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125.) "'[T]he in propria persona litigant is held to the same restrictive rules of procedure as an attorney.'" (Bianco v. California Highway Patrol, supra, at pp. 1125-1126; see also First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1.) This holds true both in the appellate courts (see Bistawros, supra, at p. 193), and in the trial courts. "A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation." (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985.)

Third:

"When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. [Citations.]" (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)

Substantial evidence is evidence "'of ponderable legal significance, ... reasonable in nature, credible, and of solid value.' [Citations.]" (Id. at p. 873.) "When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court." (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429; see Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.) An appellant's burden to affirmatively demonstrate error, when coupled with the substantial evidence rule, leads to the "elementary and fundamental" conclusion that when "none of the evidence produced in the trial court is before us ... [¶] ... the appellate court must conclusively presume that the evidence is ample to sustain the findings ...." (Kompf v. Morrison (1946) 73 Cal.App.2d 284, 286.)

Based on the entire record before the court, we conclude that substantial evidence supports the trial court orders.

DISPOSITION

The challenged orders of the superior court are affirmed.

___________________________

Franson, J.
WE CONCUR:

___________________________

Levy, Acting P.J.

___________________________

Kane, J.


Summaries of

Campbell v. Waymire

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 31, 2012
F061099 (Cal. Ct. App. Jan. 31, 2012)
Case details for

Campbell v. Waymire

Case Details

Full title:NOLAN RUBEN CAMPBELL, Petitioner and Respondent, v. ANTHONY JAY WAYMIRE…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jan 31, 2012

Citations

F061099 (Cal. Ct. App. Jan. 31, 2012)