Opinion
E080912
05-10-2024
FREDDY DAWOUD, Plaintiff and Appellant, v. DAVID WAYNE JOHNSON, Defendant and Respondent.
Freddy Dawoud, in pro. per., for Plaintiff and Appellant. Law Office of Ardalan Samandari and Ardalan Samandari for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. CIVSB2222270 John M. Pacheco, Judge. Affirmed.
Freddy Dawoud, in pro. per., for Plaintiff and Appellant.
Law Office of Ardalan Samandari and Ardalan Samandari for Defendant and Respondent.
OPINION
RAPHAEL J.
Plaintiff and appellant Freddy Dawoud, representing himself here as he did in the trial court, appeals from orders terminating a civil harassment restraining order he obtained against defendant and respondent David Wayne Johnson and awarding Johnson $1,000 in attorney fees and costs. In his view, the trial court erred substantively, by granting Johnson's request for the orders, and also procedurally, by considering the matter ex parte without a "full hearing." We find no error and affirm.
FACTS
On December 2, 2022, Dawoud petitioned for a civil harassment restraining order against defendant and respondent David Wayne Johnson. According to Dawoud, Johnson acted in a threatening manner while serving him with legal documents on behalf of Dawoud's ex-wife, who is Johnson's current wife. Johnson filed a written response to Dawoud's petition on December 30, 2022, though Dawoud failed to include that response in the appellate record.
The trial court heard the matter on January 11, 2023. The court's minutes reflect that both parties were present, and that Johnson was represented by counsel. After the parties were sworn in, however, the matter was "placed on second call" to allow Dawoud to review Johnson's written response. When the case was recalled about 20 minutes later, Johnson and his attorney were not in the courtroom, and efforts to locate and contact them were not immediately successful. After about 25 minutes, the court heard the matter without Johnson and his counsel present. The court granted Dawoud a one-year restraining order.
The next day, Johnson, through counsel, filed two ex parte motions, one a "request for reconsideration" of the court's January 11 orders, and the other requesting that the court "set aside" those orders under Code of Civil Procedure section 473, subdivision (b) (section 473(b)). The motion for reconsideration is absent from the appellate record. The section 473(b) motion and memorandum of points and authorities is included, though supporting declarations by Johnson and his attorney are not. According to the memorandum, after the matter was placed on second call, Johnson and his witnesses (Johnson's current wife and 16 year old stepdaughter, who are Dawoud's ex-wife and daughter) went to a different floor of the courthouse to wait, trying to avoid a confrontation with Dawoud in the hallway outside the courtroom. Johnson's counsel went in search of a printer, so that he could print out a copy of the proof of service for Johnson's responsive papers. Because of a combination of poor cellphone signal and a phone in silent mode, Johnson's attorney did not receive several phone calls from the court clerk attempting to inform him that the court was ready to recall the matter, and he did not receive an email sent by the clerk until about 15 minutes after it was sent. By the time Johnson and his attorney returned to the courtroom shortly after that, the court had called the matter and heard it in their absence.
Undesignated statutory references are to the Code of Civil Procedure.
The trial court held a hearing on the section 473(b) motion on January 13, 2023. Our only record of this proceeding, however, is an entry in the register of actions and the order issued by the trial court at the end of it, terminating the restraining order and awarding Johnson $1,000 in attorney fees and costs. The order indicates that both parties were present, and that Johnson was represented by counsel. The register of actions shows there was no court reporter, and the hearing was not recorded.
DISCUSSION
Most of Dawoud's arguments on appeal fail for lack of an adequate record. His remaining, purely legal arguments fail for lack of merit.
"The most fundamental rule of appellate review is that a judgment is presumed correct, all intendments and presumptions are indulged in its favor, and ambiguities are resolved in favor of affirmance." (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286.) "The appellant has the burden of furnishing an appellate court with a record sufficient to consider the issues on appeal." (People v. Neilson (2007) 154 Cal.App.4th 1529, 1534 (Neilson).) "An appellate court's review is limited to consideration of the matters contained in the appellate record." (Ibid.)
Thus, "[i]f an appellant intends to raise any issue that requires consideration of the oral proceedings in the superior court, the record on appeal must include a record of these oral proceedings ...." (Cal. Rules of Court, rule 8.120(b).) "Although in certain instances a reporter's transcript may not be necessary, including if an appeal involves a legal issue requiring de novo review [citation], on issues . . . involving the abuse of discretion standard of review, a reporter's transcript or an agreed or settled statement of the proceedings is indispensable." (Hood v. Gonzales (2019) 43 Cal.App.5th 57, 79-80 (Hood).) If "'"any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented."'" (Jameson v. Desta (2018) 5 Cal.5th 594, 609 (Jameson).)
We first address Dawoud's arguments that do not require a complete record. Unfortunately for him, the arguments lack merit. For example, his opening brief cites The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993, 9981000 for the proposition that the mandatory relief provision of section 473(b) applies only to defaults, default judgments, and dismissals, and "not just any attorney error." That is correct. But Johnson did not request relief under the mandatory relief provision of section 473(b). Rather, he invoked that section's discretionary relief provision, which allows, but does not require, the court to "relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." (Second italics added.) The restraining order issued against Johnson falls well within this broader provision.
Dawoud also proposes the lack of any record of the oral proceedings in the trial court should redound to his benefit (exactly how is unclear), since "the burden of proof for a reasonable excuse of neglect or mistake" was Johnson's, and Johnson "failed to hire a court reporter." This argument, raised in passing, is unsupported by citation to authority and therefore forfeited. (See People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363 ["If a party's briefs do not provide legal argument and citation to authority on each point raised, '"the court may treat it as waived, and pass it without consideration"'"].) It is also without merit; no matter who had the burden of proof at trial, the appellant bears the burden of producing an adequate record on appeal. (Neilson, supra, 154 Cal.App.4th at p. 1534.) Where consideration of oral proceedings is necessary and no reporter's transcript is available, the appellant must use one of the other ways to make a record of oral proceedings. (Cal. Rules of Court, rule 8.120(b); Hood, supra, 43 Cal.App.5th at pp. 79-80.)
Dawoud's remaining arguments fail due to the inadequate record. For example, he contends his due process rights were violated by the trial court granting Johnson ex parte relief, instead of setting the matter for a noticed hearing. "'An appellate court will ordinarily not consider procedural defects or erroneous rulings . . . where an objection could have been but was not presented to the lower court by some appropriate method.'" (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.) Without a record of the January 13, 2023, hearing, Dawoud cannot demonstrate that he objected to the trial court hearing the matter ex parte (or even that he did not affirmatively stipulate to the proceeding). (See Perry v. Kia Motors America, Inc. (2023) 91 Cal.App.5th 1088, 1098-1099 ["it is well established that an off-record objection is inadequate to preserve an issue for appeal"].) Dawoud appeared at that hearing and, we must presume, opposed Johnson's requests on the merits. "'It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion.'" (Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7.) And, we note, Dawoud has identified no evidence he was unable to present on January 13, 2023, because of the expedited schedule.
Dawoud also cannot demonstrate the trial court abused its discretion in finding excusable neglect in Johnson and his attorney's failure to appear when the hearing on Dawoud's petition was recalled. (See Hood, supra, 43 Cal.App.5th at pp. 79-80.) Dawoud characterizes their explanation of what happened "unbelievable" and "ridiculous," and speculates they failed to appear "because [Johnson] simply did not have a defense." Nothing compelled the trial court, however, to adopt Dawoud's view. At best, Dawoud shows "two or more inferences can reasonably be deduced from the facts." (State Farm Fire &Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) In that circumstance, we would "lack[] power" (ibid.) to disturb the trial court's exercise of discretion, even if we would be inclined to make a different decision on a de novo review. And we are not so inclined. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 ["Because the law favors disposing of cases on their merits, 'any doubts in applying section 473 must be resolved in favor of the party seeking relief'"].)
Similarly, Dawoud cannot demonstrate any abuse of discretion in the trial court's decision on the merits of his petition for a restraining order, or awarding $1,000 in attorney fees and costs. He has not attempted to articulate any reason the award was inappropriate separate from his arguments on the merits. By statute, the prevailing party "in an action brought pursuant to [the civil harassment restraining order law] may be awarded court costs and attorney's fees, if any." (§ 527.6, subd. (s).) Without any record of the oral proceedings, we must conclusively presume the evidence supported the trial court's factual findings (Jameson, supra, 5 Cal.5th at p. 609), and Dawoud cannot demonstrate any abuse of the trial court's discretion (Hood, supra, 43 Cal.App.5th at pp. 79-80).
DISPOSITION
The orders granting Johnson relief under section 473(b) by terminating the restraining order issued January 11, 2023, denying Dawoud's petition for a restraining order, and awarding Johnson attorney fees and costs are affirmed. Johnson is awarded costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) &(2).)
We concur: McKINSTER Acting P. J., MILLER J.