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Jackson v. Correnti

California Court of Appeals, Third District, Placer
Aug 13, 2007
No. C054506 (Cal. Ct. App. Aug. 13, 2007)

Opinion


THOMAS JACKSON, Plaintiff and Respondent, v. MARK CORRENTI, Defendant and Appellant. C054506 California Court of Appeal, Third District, Placer, August 13, 2007

NOT TO BE PUBLISHED

Super. Ct. No. SCV19989

ROBIE, J.

In this judgment roll appeal, appellant Mark Correnti appeals from a three-year restraining order prohibiting him from harassing Thomas Jackson and his wife. Correnti contends the court erred in its evaluation of the evidence at the contested hearing, and he is entitled to a new trial. Because Correnti has not provided this court with a record sufficient to permit review, we shall affirm the judgment (order).

BACKGROUND

From the limited record before us, we draw the following facts.

The parties in this action have businesses operating next door to one another. Tensions between them arise, in part, from Correnti’s claim that Jackson’s business causes water to run onto Correnti’s property, damaging it.

In September 2006, Jackson petitioned for an injunction and temporary restraining order (Code Civ. Proc., § 527.6) prohibiting Correnti from harassing him or his wife, Emma. In support of his petition, Jackson averred that on “many occasions, including yesterday, Mark Correnti called Emma Jackson a ‘black bitch’ and threatened to kill us. He has stated he hates us, wants us dead, and has threatened to kill us on many occasions. He has called me a ‘nigger’, tried to fight me, and yesterday he called me out.”

Elsewhere in the petition, Jackson averred: “Mark Correnti has repeatedly threatened to kill me for months. He threatens our lives and uses racially charged language (‘nigger’ and ‘black bitch’) repeatedly and loudly. The harassment is frequent and ongoing, and will not stop. On September 15, 2005, he threatened my life and called Emma a ‘nigger bitch.’” “We are being forced to defend ourselves, our lives and our mental well-being. If this Court does not grant this Order, we fear Correnti will continue to attack us; it grows worse.”

“Mark Correnti appears unstable and dangerous; he may be under the influence of drugs/alcohol. We tried to work through counsel to resolve the ‘dispute’, but the situation [is] worse and Mr. Correnti has stepped up his attacks and harassment. If he is not restrained, one or more of us will suffer physical injuries in addition to the emotional distress and utter frustration.”

The court granted the temporary restraining order and set the matter for hearing. Both parties were present and represented by counsel. At the hearing, the court heard testimony from Jackson, his wife Emma, Noe Ramos, an employee of Jackson’s, and Correnti. No reporter’s transcript of the hearing appears in the record. At the conclusion of the evidence, the court ruled in Jackson’s favor and imposed a three-year restraining order.

Thereafter, Correnti moved for a new trial. In its order denying Correnti’s new trial motion, the court characterized the restraining order proceedings this way: “[Jackson] alleges that [Correnti] threatened to kill [Jackson] and his wife and alleged that [Correnti] used racial slurs in making his threats. [Correnti] for the most part denied the allegations, claiming that [Jackson] was the instigator, in that [Jackson] was angry about [Correnti]’s reports to county officials with respect to the water run off. In the end, it came down to which party the court believed. The court held that [Jackson] and his wife were more credible witnesses, and therefore found that there was clear and convincing evidence to support the issuance of a restraining order.”

DISCUSSION

I

Correnti Cannot Show The Court Abused Its Discretion In Granting The Injunction

A trial court’s decision to grant an injunction rests within its sound discretion and will not be disturbed without a showing of a clear abuse of discretion. (Shapiro v. San Diego City Council (2002) 96 Cal. App.4th 904, 912.) In determining whether the trial court abused its discretion when there are disputed factual issues, we ordinarily review the trial court’s findings under the substantial evidence standard, resolving all factual conflicts and questions of credibility in the respondent’s favor and drawing all legitimate and reasonable inferences to uphold the judgment, so long as it is supported by evidence that is reasonable, credible and of solid value. (Ibid; Schild v. Rubin (1991) 232 Cal. App.3d 755, 762 [court determines “whether substantial evidence supports the requisite elements of willful harassment, as defined in Code of Civil Procedure section 527.6”].)

In granting Jackson’s petition for an injunction, the trial court found that Correnti’s conduct constituted harassment as defined in Code of Civil Procedure section 527.6. Section 527.6, subdivision (a), provides in relevant part: “A person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an injunction prohibiting harassment as provided in this section.” Subdivision (b) defines “harassment” as “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff.”

Even if the finding is not express, we infer that the trial court impliedly made all necessary findings. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)

Correnti contends the trial court abused its discretion in granting the injunction against him by allowing “rank hearsay” testimony by one of Jackson’s employees. The lack of a reporter’s transcript prevents us from entertaining this contention.

On appeal, we must presume that the trial court’s judgment or order is correct. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) An appellant has the burden of showing reversible error and in the absence of such a showing, the judgment or order will be affirmed. (Walling v. Kimball (1941) 17 Cal.2d 364, 373.) As part of this burden, he must produce an adequate record on appeal to affirmatively show error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141; Davenport v. Unemployment Ins. Appeals Bd. (1994) 24 Cal. App.4th 1695, 1700.) Thus, an appellant cannot present just an analysis of the facts and legal authority on each point made; he must also support arguments with appropriate citations to the material facts in the record; if he fails to do so, the argument is forfeited. (Duarte v. Chino Community Hospital (1999) 72 Cal. App.4th 849, 856.)

The appellate record does not contain a reporter’s transcript of the hearing on the contested motion for a restraining order. Correnti has elected to proceed on a clerk’s transcript only. (Cal. Rules of Court, rule 8.120.) Thus, we have a judgment roll appeal. “In a judgment roll appeal based on a clerk’s transcript, every presumption is in favor of the validity of the judgment and all facts consistent with its validity will be presumed to have existed. The sufficiency of the evidence is not open to review. The trial court’s findings of fact and conclusions of law are presumed to be supported by substantial evidence and are binding on the appellate court, unless reversible error appears on the record.” (Bond v. Pulsar Video Productions (1996) 50 Cal. App.4th 918, 924; see also Cal. Rules of Court, rule 8.163.)

Correnti is not exempt from the foregoing rules because he is representing himself on appeal in propria persona. A party representing himself is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants and attorneys. (Nwosu v. Uba (2004) 122 Cal. App.4th 1229, 1246-1247.)

We are foreclosed from considering Correnti’s claim the court erred in admitting the testimony of Jackson’s employee, including that the testimony denied him due process or that it should have been excluded under Evidence Code section 352 as more prejudicial than probative. For the same reasons, we must decline to consider Correnti’s contentions that he was precluded from cross-examining Jackson’s employee, that the witness lied, or that there were other “irregularit[ies] in the proceedings” to justify setting aside the injunction against him. Without a transcript of the proceedings in which the challenged testimony was elicited, we must presume the trial court correctly determined that the evidence was properly admitted, and that the injunction was justified by the entirety of the evidence presented.

We also note that in its order denying Correnti’s motion for a new trial, the court stated: “The court recalls that this witness [Jackson’s employee] did have difficulty with English. However [Correnti]’s counsel did not object to the witness and did ask questions of the witness.”

II

Correnti Failed To Show He Is Entitled To A New Trial

Correnti moved unsuccessfully below for a new trial. He renews on appeal his arguments that he is entitled to a new trial because he was unfairly “surprise[d]” at trial by his own counsel and because he has discovered new evidence.

Motions for a new trial in a civil proceeding are governed by Code of Civil Procedure section 657, which states in material part that “any . . . decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues . . . for any of the following causes[:] . . . [¶] 1. Irregularity in the proceedings of the court, . . . or any order of the court or abuse of discretion by which either party was prevented from having a fair trial. [¶] . . . [¶] 3. Accident or surprise, which ordinary prudence could not have guarded against. [¶] 4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.”

Correnti mistakenly contends the Penal Code statutes govern.

“The standard for review of denial of a new trial motion is stated by our Supreme Court in City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871-872 [135 Cal. Rptr. 647, 558 P.2d 545]: ‘[A] trial judge is accorded a wide discretion in ruling on a motion for new trial and . . . the exercise of this discretion is given great deference on appeal. [Citations.] However, we are also mindful of the rule that on an appeal from the judgment it is our duty to review all rulings and proceedings involving the merits or affecting the judgment as substantially affecting the rights of a party [citation], including an order denying a new trial. In our review of such order denying a new trial, as distinguished from an order granting a new trial, we must fulfill our obligation of reviewing the entire record, including the evidence, so as to make an independent determination as to whether the error was prejudicial.’ (Original italics.) Prejudice is required: ‘[T]he trial court is bound by the rule of California Constitution, article VI, section 13, that prejudicial error is the basis for a new trial, and there is no discretion to grant a new trial for harmless error.’ [Citation.]” (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal. App.4th 1152, 1160-1161.)

Applying these rules, we conclude Correnti cannot show he was improperly denied a new trial.

A

Performance Of Counsel

Correnti claims he was unhappily surprised at the hearing when his then-counsel instructed him to “explain [to the court] exactly what happened” and failed to introduce into evidence documents to support Correnti’s testimony. Specifically, Correnti complains that his counsel’s failure to present “material and evidence” which “would have proven Mr. Jackson’s actions to be intentional and malicious and done for the sole purpose of causing me to suffer humiliation, mental anguish, and emotional and physical distress for the sole purpose of dissuading future lawsuits” came as a “surprise” at trial, of the type justifying a new trial. (Code Civ. Proc., § 657.)

Plainly discontented with his counsel’s performance, Correnti contends he is entitled to have the injunction set aside and to a new trial on the matter. He is mistaken.

Correnti complains counsel’s actions caused him to receive “ineffective assistance of counsel[, ]” and he purports to invoke “the Sixth Amendment to the United States Constitution and . . . article I, section 15 of the California Constitution.” He fails to appreciate that these constitutional rights inure by their very language to the benefit of criminal defendants, not defendants in civil actions. (U.S. Const., 6th Amend. [“In all criminal prosecutions, the accused shall . . . have the assistance of counsel for his defense”]; Cal. Const., art. I, § 15 [“The defendant in a criminal cause has the right . . . to have the assistance of counsel for the defendant’s defense”].)

Rather than giving rise to a constitutional claim, the failure to provide competent representation in a civil case may be the basis for civil liability under a theory of professional negligence. (See Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.)

B

Newly Discovered Evidence

Correnti also moved for a new trial on the ground of newly discovered evidence, which he contends shows that an assault and battery complaint was filed by a third party against Jackson within the prior year. In Correnti’s view, this new evidence impeaches Jackson with evidence of his “violent and malicious behavior” and impugns his motive in seeking a protective order against Correnti.

A party moving for a new trial on the basis of newly discovered evidence must establish not only the existence of evidence not discovered earlier, but also explain why he or she “could not, with reasonable diligence, have discovered and produced [it] at the trial”. (Code Civ. Proc., § 657, cause (4).) In his motion for a new trial, Correnti claimed that, on the date of the hearing, he learned that “recently obtained police reports made by me substantiate Thomas Jackson’s threatening and erratic behavior” and that he also “recently learned of and obtained public records on lawsuits filed against Mr. Jackson for assault and battery” in December 2005. However, he offered no explanation as to why he could not have discovered before the October 10, 2006, hearing on Jackson’s motion the content of his own police reports, or the existence of a complaint made in December 2005. Thus, he has not shown it was error to deny his motion for new trial on the grounds of newly discovered evidence.

Nor did Correnti establish that the police reports or complaints were “material.” (Code Civ. Proc., § 657.) Without a reporter’s transcript of the injunction hearing, Correnti cannot establish that -- despite all of the other evidence presented -- the introduction of this new evidence would have made a difference in the outcome. Absent proof of prejudicial error, there is no basis for a new trial. (City of Los Angeles v. Decker, supra, 18 Cal.3d at pp. 871-872.)

DISPOSITION

The judgment (order) is affirmed. Costs on appeal are awarded to Jackson. (Cal. Rules of Court, rule 8.276(a).)

We concur: DAVIS , Acting P.J., BUTZ , J.


Summaries of

Jackson v. Correnti

California Court of Appeals, Third District, Placer
Aug 13, 2007
No. C054506 (Cal. Ct. App. Aug. 13, 2007)
Case details for

Jackson v. Correnti

Case Details

Full title:THOMAS JACKSON, Plaintiff and Respondent, v. MARK CORRENTI, Defendant and…

Court:California Court of Appeals, Third District, Placer

Date published: Aug 13, 2007

Citations

No. C054506 (Cal. Ct. App. Aug. 13, 2007)