Opinion
F083011
12-08-2022
CONNIE HERNANDEZ, Plaintiff and Respondent, v. OCTAVIO LOPEZ MENDOZA, Defendant and Appellant.
Octavio Lopez Mendoza, in pro. per., for Defendant and Appellant. No response for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Merced County No. 21FL-00958. Donald Shaver, Commissioner. (Retired Judge of the Stanislaus Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Octavio Lopez Mendoza, in pro. per., for Defendant and Appellant.
No response for Plaintiff and Respondent.
OPINION
THE COURT [*]
In this appeal, appellant Octavio Lopez Mendoza challenges the trial court's issuance of a protective order prohibiting him from having any contact with his former girlfriend or her two daughters, who are not his biological children. Following our review of the record that has been provided to this court, we affirm the order granting the protective order.
PROCEDURAL AND FACTUAL SUMMARY
On May 10, 2021, Connie Hernandez (mother) filed a "Request for Domestic Violence Restraining Order" (request), alleging appellant posed a threat to her and her daughters. While mother listed appellant as her "ex-husband" in the request, appellant states he and mother were never married but were in a long-term relationship in the past while living in Mexico. Attached to the request is a copy of the police report describing the incident that led to the need for a protective order. Also attached to the request is a copy of a prior emergency protective order issued by the court involving the same parties. A temporary restraining order (TRO) was issued on May 11, 2021, directing appellant to, among other things, stay away from mother and her two daughters until the hearing on the request scheduled for June 2, 2021.
The document is difficult to read as the handwritten portions did not copy clearly.
Prior to the hearing, appellant submitted a response on June 1, 2021. At no point in the response does appellant claim either daughter is his biological child. In an attachment to the response, appellant challenges the request by noting he was never mother's husband but was an ex-boyfriend. Appellant also states that if granted, a more permanent protective order would require him to move since his home is less than 100 yards from the home mother occupies with her daughters. Appellant also explained that over the years he has had a close relationship with mother's daughters, especially with the youngest daughter. Appellant then requested that instead of the protective order he be provided with four hours of custody per day of the youngest daughter so that he might feed her and attend to other needs involving her health and well-being, and further suggested this time could be electronically monitored as long as he does not have to bear the cost. The attachment goes on to state that the youngest daughter would suffer if she was to be deprived of a relationship with appellant. The statements included in the attachment list potential motives for the request by mother for a restraining order, and appellant's belief mother and her boyfriend, who lives in the house with mother and the daughters, suffer from a laundry list of mental disorders. A second attachment goes into much more detail about the physical and mental dangers posed to the youngest daughter if he is not provided custody or access.
A hearing was held on the request by mother on June 2, 2021. While the parties were present and assisted by interpreters, there was no court reporter present, and thus, we do not have a record of the testimony offered during the hearing. The minute order provided in the record indicates each party provided sworn testimony, and that the trial court found an adequate basis for the requested restraining order. The order of protection signed by the trial judge stated it was being issued in favor of mother and her two daughters, and against appellant, for a period of three years.
Appellant filed a notice of appeal challenging the protective order on July 1, 2021. While not reflected in the clerk's transcript, a hearing was held on September 2, 2021, during which appellant sought to terminate the protective order. That motion was denied by the trial court at the end of the hearing. A transcript of the September 2 hearing has been filed with this court after appellant designated it as part of the appellate record for the challenge to the protective order.
Mother has not filed a response in this appeal.
DISCUSSION
I. The Record on Appeal Limits Our Review
"If 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).) A record of the lower court proceedings is required to both support allegations of claimed error, and to facilitate an appellate court's review of those claims. (In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 498-499.) There will be no reversal of an order for abuse of discretion when there is no record explaining what occurred at the underlying hearing or the trial court's reasoning. (Rhule v. WaveFront Technology, Inc. (2017) 8 Cal.App.5th 1223, 1228-1229.)
Again, a transcript of the June 2, 2021, hearing at which time the request for a protective order was considered does not exist. The minute order issued after that hearing indicates no court reporter was present during the hearing. This fact, however, does not excuse appellant from the requirement of providing an adequate record to this court to review. Pursuant to California Rules of Court, rule 8.137(b)(1)(A), when a court reporter is not present to record a hearing, an appellant may opt to provide the appellate court with a settled statement of the proceedings. If the record can be reconstructed through a settled statement, the appellant must employ this method to obtain review. (People v. Young (2005) 34 Cal.4th 1149, 1170.) A settled statement has not been provided to this court.
The fact appellant is in propria persona does not exempt him from the rules of appellate procedure or relieve him of the burden to show reversible error. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) As a result of there being no reporter's transcript of the June 2, 2021, hearing or a settled statement of what occurred at that hearing, we are limited to a consideration of this appeal only using the clerk's transcript.We therefore treat this as an appeal on the "judgment roll." (Kopf v. Milam (1963) 60 Cal.2d 600, 601.) In such an appeal, a consideration of the sufficiency of the evidence to support the findings is not an open question, and reversible error must appear on the face of the record. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082.)
The only reporter's transcript provided to this court is of a hearing on appellant's motion to terminate the protective order, held on September 2, 2021. This hearing occurred after the filing of the notice of appeal and is not technically part of this appeal.
In our consideration of the appeal, we must presume the trial court's judgments or orders are correct. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The standard of review applicable to the grant or denial of the type of protective order involved in this case is abuse of discretion since that decision rests within the sound discretion of the court considering all the facts. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495.)
The minute order from the trial court states that "[b]ased on the testimony heard today, the Court finds adequate basis to grant the restraining order as requested." The documents in the clerk's transcript submitted before the hearing consisted of the request for the protective order and appellant's response to that request. While both documents reference each party's version of the facts, we do not have a record of the hearing before the judge illuminating why the court granted the request for the protective order. We cannot reverse the trial court's grant of the protective order for abuse without a record from the hearing. (See Rhule v. WaveFront Technology, Inc., supra, 8 Cal.App.5th at pp. 1228-1229.) For this reason, we must affirm the order granting the protective order for a period of three years.
II. Other Issues Raised by Appellant
We briefly address other issues raised by appellant to challenge the validity of the protective order. We will not engage in any reweighing of the evidence, as that is not our role at the appellate level. The issues we address below, however, raise potential legal challenges to the validity of the protective order granted, or highlight a misunderstanding of the appellate process.
A. Appellant's Status as an Ex-Boyfriend Falls Within the Definition of Those Subject to a Domestic Violence Restraining Order
Family Code section 6211, subdivision (c) specifically states that individuals who had a "dating or engagement relationship" could be subject to a domestic violence restraining order. (See also Phillips v. Campbell (2016) 2 Cal.App.5th 844, 849.) On this point, the record provides substantial evidence that such a relationship existed in the past between appellant and mother.
B. The Protective Order Was Not Vague or Overbroad
Once again, our review of this issue is hampered by the lack of a record. The protective order itself is not vague or overbroad as it clearly lays out what would be considered a violation of the order. We cannot address any specific challenge to any of the prohibitions noted in that order because we do not have the transcript of the proceeding that led to the order. Therefore, appellant cannot prevail on this point.
C. We Are Prohibited From Reweighing the Evidence
A great deal of appellant's opening brief presents evidence that may or may not have been presented at the hearing. At one point, appellant appears to quote a conversation he had with his landlord to make a point about the inadequacy of the findings made by the trial court. An appellate court must give deference to the findings made by the trial court, where evidence is presented and evaluated, and we do not reweigh the evidence. (See Schneer v. Llaurado (2015) 242 Cal.App.4th 1276, 12861287.)
D. The Decision Not to Vacate the Protective Order Is Not Part of This Appeal
On September 2, 2021, appellant sought to terminate the protective order issued on June 2, 2021. A transcript of that hearing is part of the record provided to this court. However, that hearing is not part of the appeal as the notice of appeal was filed two months before this hearing was held. Moreover, we have been provided with no record of what documents were presented to the court supporting the request to terminate the protective order, or of any order issued after the hearing. Both substantively and procedurally, we are unable to review the decision to keep the protective order in place, as that would be the subject of a separate appeal. (Code Civ. Proc., § 904.1, subd. (a)(6); see also Molinaro v. Molinaro (2019) 33 Cal.App.5th 824, 831, fn. 6 [a domestic violence restraining order is a form of injunction, and therefore, appealable].)
DISPOSITION
The order granting the protective order is affirmed. Appellant must bear his own costs on appeal.
[*] Before Levy, Acting P. J., Pena, J. and Smith, J.