Opinion
B290495
06-26-2020
D.C., Plaintiff and Respondent, v. L.J., Defendant and Appellant.
L.J., in pro. per., for Defendant and Appellant. D.C., in pro. per., 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TF006691) APPEAL from an order of the Superior Court of Los Angeles County, Armando Duron, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Dismissed. L.J., in pro. per., for Defendant and Appellant. D.C., in pro. per., for Plaintiff and Respondent.
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L.J. appeals from the entry of a Domestic Violence Restraining Order (DVRO) against him with respect to respondent D.C. and their son, B.C. We have jurisdiction under Code of Civil Procedure section 904, subdivision (a)(6). Because L.J. has failed, despite repeated requests, to provide this court with the reporter's transcript that he cites to in support of his appeal, we are unable to proceed. Consequently, the appeal is dismissed.
BACKGROUND
The underlying litigation began on January 1, 2014 when D.C. filed an action against L.J. seeking a declaration that L.J. was the father of her unborn child. A judgment of paternity was entered on September 1, 2016. Other proceedings took place concerning custody, visitation, child support, and attorney's fees.
On March 2, 2018, D.C. filed a request for DVRO, seeking to restrain L.J. from harassing or otherwise contacting D.C. or B.C. A temporary restraining order was issued that same day. The matter was set for hearing on March 23, 2018. L.J. received informal notice of this initial hearing by text message sent by D.C.
According to L.J., he arrived in the courtroom on March 23, 2018, just after this matter was called. The matter had been continued by the trial court to April 13, 2018, because of lack of proper service on L.J. L.J. did not attend the April 13, 2018 hearing, and contends that this was because he was never served with notice of the new court date.
Citing to a reporter's transcript that has not been furnished to this court, L.J. states that at the April 13, 2018 hearing the judge did not inquire of D.C. as to whether service of notice of the new hearing date had been made. After receiving testimony from D.C., the court entered a DVRO restraining L.J. from contacting either D.C. or B.C. for five years, and giving D.C. sole legal custody of B.C. with no visitation.
On appeal, L.J. contends that the trial court's April 13, 2018 order, issued without proper notice to him, deprived him of due process of law, in violation of the Fourteenth Amendment to the United States Constitution.
DISCUSSION
" '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.' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
"Where the appellant fails to provide the reviewing court with a record enabling it to review and correct alleged errors, the appeal will be dismissed." (Ehman v. Moore (1963) 221 Cal.App.2d 460, 463.)
Here, L.J. asserts that he was never served by D.C. with notice of the continued April 13, 2018 hearing date. He further asserts that the reporter's transcript of the April 13 hearing reflects that the trial court did not ask D.C. whether L.J. had been properly served with notice; instead, L.J. states, "the court simply allowed the matter to proceed in my absence."
Significantly, L.J. does not contend that he was unaware of the continued hearing date. D.C. contends in her brief that L.J. was told of the new date by courtroom staff while he was present in the court on March 23, 2018. L.J.'s argument seems to be that even if he was aware of the new hearing date, the matter could not be heard unless and until D.C. had formally served him with notice of the new date. Citing to the reporter's transcript of the April 13 hearing, he assigns as error the trial court's failure to inquire on the record at that hearing whether D.C. had accomplished formal service of notice of the continued hearing date before proceeding to rule on the DVRO application.
We lack this reporter's transcript, despite the statement in L.J.'s amended notice designating record on appeal that "transcript will be lodged in the Court of Appeal." The Clerk's Office at the Court of Appeal has sent notices to L.J. on multiple occasions concerning the lack of this transcript, with no response. Thus, L.J. has not provided this court with a basis to consider his due process contention. Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, we must presume that the reported proceedings would demonstrate the absence of error. (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 153-154.)
More significantly, the failure by D.C. to make formal service of a notice of continuance on L.J. would not necessarily give rise to a due process violation if the continued hearing went forward in L.J.'s absence. It is L.J.'s actual knowledge of the continued date that is significant for due process purposes. If, as D.C. contends, L.J. learned of the continued April 13, 2018 hearing date while he was present in the courtroom on March 23, 2018, that actual knowledge would satisfy due process requirements. (In re Phillip F. (2000) 78 Cal.App.4th 250, 258-259; People ex rel. San Francisco Bay Conservation etc. Com. v. Smith (1994) 26 Cal.App.4th 113, 129.) Accordingly, if the trial court at the April 13 hearing had a reasonable basis to conclude that L.J. was aware of the continued hearing date, it could proceed with the hearing even in L.J.'s absence. Nothing in the record suggests error on the trial court's part.
L.J. has not addressed the merits of the DVRO terms or how he would have responded had he attended the April 13, 2018 hearing. He merely states, without further elaboration, "Had [L.J.] received notice of the hearing, he would have attended and presented a defense. Had [L.J.] been in court to present his defense, a different result would have been overwhelmingly likely." L.J. has not, however, met his burden to provide an adequate appellate record for our review.
DISPOSITION
The appeal is dismissed. D.C. shall recover her costs on appeal.
NOT TO BE PUBLISHED
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------
CHANEY, J.
BENDIX, Acting P. J.