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Fay v. May

California Court of Appeals, First District, First Division
Sep 30, 2008
No. A119607 (Cal. Ct. App. Sep. 30, 2008)

Opinion


AUGUST FAY et al., Plaintiffs and Respondents, v. BRUCE MAY, Defendant and Appellant. A119607 California Court of Appeal, First District, First Division September 30, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Alameda County Super. Ct. No. BG07322194

Margulies, J.

The trial court entered an order restraining defendant Bruce May from contacting plaintiffs Carla Fay, August Fay, and Marquita Reyes, and requiring him to stay away from them when he was not working near their home. Defendant did not appeal that order. He subsequently made two motions to vacate the restraining order, one of which was withdrawn and the other denied. Defendant appeals the denial of his second motion to vacate. Finding the record inadequate for review and defendant’s contentions inappropriate on a motion to vacate a restraining order, we affirm the trial court’s order.

I. BACKGROUND

It appears that plaintiffs sought a restraining order against defendant. The record does not, however, contain a copy of their petition. On May 17, 2007, the trial court held an evidentiary hearing with respect to the restraining order. According to the comments of court and counsel during the hearing, the same parties had requested cross-restraining orders at some earlier time, and both had been denied. During the May 17 hearing, it was established that defendant worked as an occasional handyman at the four-unit apartment building at which plaintiffs live. The incident that led to plaintiffs’ petition was a visit from a TV cable repairman to Reyes’s apartment. August Fay was present as well. A woman, apparently Reyes, testified that defendant “came out in a drunken rage, screaming and yelling and threatening the [repairman], myself, my friend, and August Fay.” A sound recording made at the time of the incident was played for the court, but we do not have a copy of either the recording or the transcript made from it. Defendant objected to admission of the tape on the ground that the voice on the tape was not his, but the trial court overruled his objection. From statements of counsel at the hearing, it appears that the tape reflected defendant twice threatening to kill one or more of the women.

A transcript from a hearing on December 8, 2006, which apparently derives from these cross-petitions, is included in the appellate record.

The hearing transcript identifies the speaker as “Ms. Jones,” but it appears from the context and content of the testimony that it is Reyes speaking.

Following the presentation of testimony, the trial court concluded, “There is a serious issue going on here, and the Court is going to issue an order against Mr. May. . . . So we are going to have a stay-away and a no contact order, and based on the number of hours Mr. May works, that order is going to be a 9-to-5 order throughout the week . . . .” Defendant engaged in an extended outburst that resulted in his forced removal from the courtroom. After some discussion, the court ordered defendant not to contact plaintiffs in any way and to stay at least 100 yards from them, “except while lawfully on the premises . . . . [h]e will be ordered to stay a minimum of 10 feet away from them. . . . [¶] . . . [¶] . . . [L]awfully on the premises is considered to mean between the hours of 9:00 a.m. and 5:00 p.m., seven days per week.” The duration of the order was set at three years. We have not been provided a copy of any written order reflecting this oral ruling. There was no appeal taken from this restraining order.

At a hearing on August 16, 2007, the court heard what was characterized as a “motion to vacate the permanent restraining order that was issued on May 17th of this year.” Counsel for plaintiffs argued that the motion to vacate should be viewed as an untimely motion for reconsideration. Before the court considered the motion, defendant withdrew it. The court thereafter adjourned the proceedings. Before the end of the hearing, however, it was noted that defendant had become a tenant at the apartment building, which the court characterized as “if true, on [its] very face, this is a violation of the restraining order.”

Based on two other transcripts in the record, from hearings on October 11 and 25, 2007, it appears that there were many other written submissions to the court. None has been included in the record. At the October 25 hearing, the court summarily rejected as “completely frivolous” a second motion to vacate the restraining order filed by defendant and awarded to plaintiffs attorney fees of $2,000, as a result of defendant’s “civil harassment.” The papers filed by defendant in support of this motion to vacate are not included in the record, but the minutes from the October 25 hearing reflect the order just described. The only other documents in the record, aside from the transcripts mentioned and the court’s October 25 minutes, are the notice of appeal, the designation of record on appeal, and the docket sheet, which shows extensive written filings.

II. DISCUSSION

Defendant has appealed the court’s order denying his motion to vacate the restraining order and awarding attorney fees. Although we have no way of knowing the issues raised in his motion below, since defendant’s motion to vacate has not been included in the record, his brief on appeal contends that the trial court abused its discretion in entering a restraining order because he did not present a threat to plaintiffs, that the record contains errors of fact, that plaintiffs’ testimony was false, that the tape recording was forged, and that the court commissioner was biased.

For two reasons, we find no basis for reversing the order denying defendant’s motion to vacate and awarding attorney fees to plaintiffs. First, although defendant did not purport to appeal entry of the restraining order, the issues raised in this appeal would have been appropriate only in such a direct appeal. His appeal of the motion to vacate therefore appears to be an untimely attempt to appeal entry of the restraining order.

An order denying a motion to vacate or modify an injunction under Code of Civil Procedure section 533, is appealable pursuant to Code of Civil Procedure section 904.1, subdivision (a)(6). The permissible grounds for a motion to modify or vacate, however, are very limited. A party must demonstrate “a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order.” (Code Civ. Proc., § 533; New Tech Developments v. Bank of Nova Scotia (1987) 191 Cal.App.3d 1065, 1072.)

The arguments raised by defendant in his brief are not built around changed facts or law, nor does he cite to facts demonstrating that the restraining order is or has become unjust. Rather, defendant merely argues that the trial court abused its discretion and committed error because the evidence presented at the hearing was false and did not support a restraining order or was the result of unproven bias. Such arguments are appropriate for direct appeal, but they are not grounds for a motion to modify or vacate under Code of Civil Procedure section 533. In effect, defendant has attempted to extend the time for filing an appeal of the restraining order by raising inappropriate issues in connection with the appeal of the denial of a motion to vacate or modify.

Motions to vacate a judgment under Code of Civil Procedure section 663 also can be appealed separately from the underlying judgment. (Howard v. Lufkin (1988) 206 Cal.App.3d 297, 301.) It appears that no judgment has been entered in this matter, however, and the legal grounds for a section 663 motion are similarly narrow, limited to “[i]ncorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts.” (Code Civ. Proc., § 663, subd. (1); see Moklofsky v. Moklofsky (1947) 79 Cal.App.2d 259, 264.)

Because his notice of appeal was filed five months after entry of the restraining order, it was filed too late to obtain review of the order itself, requiring dismissal of the appeal. (See Cal. Rules of Court, rule 8.104 [ordinary time for filing a notice of appeal is 60 days after entry of order].) Alternatively, because the arguments raised in defendant’s brief are insufficient to support a motion to vacate the restraining order, the appeal fails to demonstrate any error in the trial court’s ruling.

Second, the record is inadequate to permit us to review effectively the proceedings in the trial court. The record provided to us does not contain the motion papers filed in connection with the motion to vacate, the written restraining order itself, or any other documents filed with the trial court, other than a single set of court minutes. This makes it difficult to review the motion to vacate since we cannot evaluate the issues raised by defendant in the trial court. More important, the lack of an adequate record makes it impossible to evaluate the trial court’s award of attorney fees. The award was made on the basis that defendant’s conduct in connection with the litigation amounted to civil harassment, in part because his motion to vacate was frivolous. Because we have none of the documents associated with this motion and an utterly incomplete record as to the remaining filings by defendant, it is impossible for us to determine whether, in fact, the trial court abused its discretion in concluding that defendant’s motion to vacate was frivolous and that his conduct otherwise amounted to harassment.

As the appellant, it was defendant’s responsibility to provide us with an adequate record from which to review the order of the trial court. (E.g., Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575; Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183, 194-195.) In the absence of an adequate record, we have no choice but to affirm the trial court’s orders denying the motion to vacate and awarding attorney fees. (See Ballard v. Uribe, at pp. 574-575 [“It is well settled, of course, that a party challenging a judgment has the burden of showing reversible error by an adequate record. [Citations.] Because plaintiff has failed to provide such a record, we have no occasion to consider further the merits of his cross-appeal”].)

In any event, defendant’s brief on appeal does not even mention the award of attorney fees. By failing to address this aspect of the order, defendant has waived any challenge.

Even if we were to entertain defendant’s appeal, however, we would find no grounds for reversal on the limited record before us. The court appears to have acted within its discretion in concluding that the voice on the tape was defendant’s voice and that the threatening nature of defendant’s actions, as reflected in the tape and described by plaintiffs in their testimony, justified the entry of a restraining order. Further, the order entered was narrowly tailored to serve the needs of plaintiffs without unduly infringing defendant’s activities.

III. DISPOSITION

The order of the trial court is affirmed.

We concur: Marchiano, P.J., Swager, J.


Summaries of

Fay v. May

California Court of Appeals, First District, First Division
Sep 30, 2008
No. A119607 (Cal. Ct. App. Sep. 30, 2008)
Case details for

Fay v. May

Case Details

Full title:AUGUST FAY et al., Plaintiffs and Respondents, v. BRUCE MAY, Defendant and…

Court:California Court of Appeals, First District, First Division

Date published: Sep 30, 2008

Citations

No. A119607 (Cal. Ct. App. Sep. 30, 2008)