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James v. Byrd

California Court of Appeals, Fourth District, First Division
Sep 9, 2008
No. D050713 (Cal. Ct. App. Sep. 9, 2008)

Opinion


BONNIE JAMES, Plaintiff and Appellant, v. JASON ROBERT BYRD, Defendant and Respondent. D050713 California Court of Appeal, Fourth District, First Division September 9, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. 37-2007-00050193- CU-HR-NC, Laura H. Parsky, Judge.

NARES, Acting P. J.

Jason Robert Byrd appeals in propria persona the entry of a restraining order under Code of Civil Procedure section 527.6 restraining him from harassing Bonnie and James Loper. Byrd contends the court erred in granting the restraining order, claiming there is no substantial evidence to support James's allegations against him. We conclude Byrd has failed to demonstrate prejudicial error. Accordingly, we affirm.

All further statutory references are to the Code of Civil Procedure.

FACTUAL AND PROCEDURAL BACKGROUND

James filed a petition for a restraining order under section 527.6 seeking to enjoin Byrd from harassing her and Loper, to whom she referred as her "common law spouse." In sworn statements supporting her petition, James asserted: (1) In October 2006 Byrd began renting a room in her house; (2) in mid-January 2007, she gave him a 30-day notice to vacate, then extended that period to the end of February; (3) on February 11, after Byrd told her he could not find another room, James put under his door a newspaper listing available rooms; (4) Byrd became angry and went upstairs screaming at James and threatening to kill her; (5) three other tenants were present and observed everything; (6) Byrd said he had a gun and was not afraid to use it; (7) James was afraid of Byrd and believed he would harm her unless he was restrained.

All further dates are to calendar year 2007 unless otherwise specified.

The court held an evidentiary hearing on James's petition. James and Byrd were both present at the hearing, and the court heard the testimony of Harold Meade, one of the tenants who observed what occurred on February 11. At the conclusion of the hearing, the court granted James a three-year restraining order, ordering Byrd to not harass James or Loper and to have no contact with them. The court also ordered Byrd to stay at least 100 yards from James and Loper and to sell or turn in to the police any firearms in his possession and control. The court ordered the San Diego County Sheriff to remove Byrd from James's residence. Thereafter, Byrd submitted to the court proof that he had turned in a 12-gauge shotgun to the Sheriff's office. Byrd's appeal followed.

Byrd has not produced a transcript of the February 23 hearing on James's petition.

DISCUSSION

Byrd contends there is no substantial evidence to support James's allegations against him. We conclude Byrd has failed to demonstrate the restraining order is not supported by substantial evidence, and thus we affirm the judgment.

A. Applicable Legal Principles

1. Standard of review

In assessing Byrd's sufficiency of the evidence claim, we apply a substantial evidence standard of review. (See Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.) "In assessing whether substantial evidence supports the requisite elements of willful harassment, as defined in . . . section 527.6, we review the evidence before the trial court in accordance with the customary rules of appellate review. We resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge in all legitimate and reasonable inferences to uphold the finding of the trial court if it is supported by substantial evidence which is reasonable, credible and of solid value." (Schild, supra, at p. 762.)

2. Harassment injunctions

Under section 527.6, subdivision (d), an injunction prohibiting harassment may issue if "the judge finds by clear and convincing evidence that unlawful harassment exists." The statute 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." (§ 527.6, subd. (b).)

"'Credible threat of violence'" means "a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose." (§ 527.6, subd. (b)(2).)

"Course of conduct" means "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, fax, or computer e-mail." (§ 527.6, subd. (b)(3).) Further, "[t]he 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." (§ 527.6, subd. (b).)

3. Appellate rules

Because a trial court's decision is presumed to be correct, it is the appellant's burden on appeal to show the court prejudicially erred. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631-632.)

California Rules of Court, rule 8.204(a)(1)(C) provides that each appellate brief must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." The rule also requires that an appellant's opening brief must "[p]rovide a summary of the significant facts limited to matters in the record." (Rule 8.204(a)(2)(C).)

All further rule references are to the California Rules of Court.

Statements of alleged fact in the briefs on appeal that are not contained in, or supported by citations to, the record on appeal are improper and cannot be considered on appeal. (Kendall v. Barker (1988) 197 Cal.App.3d 619, 625; rule 8.204(a)(2)(C).) "If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived. [Citation.]" (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1245, fn. 14, 1247; City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) Thus, here, we are not required to search the record to determine whether it contains support for Byrd's contentions. (See Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545.)

B. Analysis

Byrd, as the appellant in this matter, has failed to meet his burden of establishing his claim that the judgment is not supported by substantial evidence. In his opening brief, Byrd purports to dispute the facts set forth in James's petition and alleges facts not contained in the petition. For example, Byrd asserts: (1) On February 11, James placed under his door a "drawing of what appeared to be a peenis [sic] and a heart shape outlining classified adds [sic] of rooms for rent . . .; (2) he walked upstairs outside the doorway to James's room and asked James, who was sitting on her bed with Loper, "[W]hat is this? Is this a picture of [a penis]?"; (3) James and Loper became upset, and Loper chased him down the stairs; (4) Byrd "never had a hammer in his hands at anytime [while] talking to [James]"; (5) he never threatened to kill James; (6) during his testimony, Meade "never stated when and [at] what time [Byrd] allegedly used [a] hammer to yell 'get away'"; and (6) Meade "has [a] business relationship with [James] and benefited from [James] by giving bias[ed] and false testimony."

In violation of rule 8.204(a)(1)(C), Byrd's opening brief fails to support any of the foregoing assertions of fact with citations to the appellate record. In addition, Byrd refers to Meade's testimony, but he has not produced a reporter's transcript of that testimony. He also contends Meade "ís not a credible witness and should have been excused." However, "[c]redibility is an issue for the fact finder." (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622.) Appellate courts "do not reweigh evidence or reassess the credibility of witnesses." (Ibid.)

Because Byrd's brief contains virtually no citations to the appellate record to support his numerous assertions of fact, he challenges the testimony of a key witness without providing a reporter's transcript of that testimony, and he improperly asks this court to reassess the credibility of that witness, we conclude that his sufficiency of the evidence claim on appeal is forfeited. (See Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1247; City of Lincoln v. Barringer, supra, 102 Cal.App.4th at p. 1239; Duarte v. Chino Community Hospital, supra, 72 Cal.App.4th at p. 856; Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1115.) For the foregoing reasons, we also conclude that Byrd has failed to meet his burden on appeal of showing prejudicial error. (See Winograd v. American Broadcasting Co., supra, 68 Cal.App.4th at pp. 631-632.)

In reaching our conclusion, we are mindful that Byrd represents himself on appeal. However, his status as a party appearing in propria persona does not provide a basis for preferential consideration. "A party proceeding in propria persona 'is to be treated like any other party and is entitled to the same, but no greater[,] consideration than other litigants and attorneys.' [Citation.] Indeed, '"'the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.'"'" (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1; Nwosu v. Uba, supra, 122 Cal.App.4th at pp. 1246-1247.)

DISPOSITION

The judgment is affirmed.

WE CONCUR: McDONALD, J., AARON, J.


Summaries of

James v. Byrd

California Court of Appeals, Fourth District, First Division
Sep 9, 2008
No. D050713 (Cal. Ct. App. Sep. 9, 2008)
Case details for

James v. Byrd

Case Details

Full title:BONNIE JAMES, Plaintiff and Appellant, v. JASON ROBERT BYRD, Defendant and…

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

Date published: Sep 9, 2008

Citations

No. D050713 (Cal. Ct. App. Sep. 9, 2008)