Opinion
A100534, A100535, A100536, A100537
7-25-2003
JASON JAY, Plaintiff and Respondent, v. BARBARA LAU, Defendant and Appellant. JASON JAY, Plaintiff and Respondent, v. EDWIN LOUIE, Defendant and Appellant. JASON JAY, Plaintiff and Respondent v. ANNA CHENG et al., Defendants and Appellants. JASON JAY, Plaintiff and Respondent, v. RAYMOND KWAN, Defendant and Appellant.
In this consolidated appeal, Barbara Lau, Raymond Kwan, Edwin Louie, Anna Cheng and Alan Cheng individually appeal from orders granting the petitions of respondent Jason Jay for injunctions prohibiting harassment and ordering the individual appellants to have no contact with him or his family. They contend that the trial court abused its discretion in granting the injunctions because it "wholly ignored exculpatory evidence presented to it, and failed to inquire into the many inconsistencies" in respondents petitions. In conjunction with their consolidated appeals, appellants also attempt to persuade this court to admit certain alleged evidence into the appellate record despite their failure to obtain certification from the trial court that the evidence was actually before the trial court. Because appellants contentions are meritless, we affirm the orders of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
Although the four reporters transcripts submitted in this consolidated appeal are identical, there are four separate clerks transcripts, each with slightly different contents and paginations. In their respective briefs, both appellants and respondent cite to pages in the clerks transcript without identifying the particular clerks transcript to which they are referring. We have based our statement of the facts on the record set out in all four transcripts.
In the Spring of 2002, respondent Jay was a student at Abraham Lincoln High School (Lincoln) in San Francisco. In June that year, he was 16 years of age, and was attending summer school at Lowell High School (Lowell). He planned to return to Lincoln for the next school year, beginning in the Fall of 2002. Four of the appellants-Louie, Kwan, Lau and Anna Cheng-were classmates graduating from Lincoln at that time. Kwan and Louie planned to attend San Francisco City College (City College) in the Fall of 2002; Lau was planning to go to UCLA; and Anna Cheng was planning to attend the University of California at Davis. The fifth appellant, Anna Chengs younger brother Alan, was a student at Lowell at that time and had not yet graduated. Appellants Louie and Kwan were 18 years old, while Lau was 17 years old. Anna and Alan Cheng were 17 and 16 years of age, respectively.
These ages are based on the parties birthdates as set forth in the petitions contained in the four clerks transcripts. By the time of the hearing on August 14, 2002, respondent Jay and appellant Alan Cheng had both turned 17 years old.
On June 27, 2002, respondent Jay filed a police report about an incident that occurred the previous afternoon, in which he
was allegedly threatened and assaulted by appellants in the vicinity of Lake Merced as he was going home from summer school at Lowell. On July 29, 2002, respondents mother Gladys Chaw filed four separate petitions for injunctions prohibiting harassment by the five individual appellants.
Jay gave his account of the incident in a statement filed with the superior court as an attachment to each of the petitions. According to Jay, he left Lowell on Wednesday, June 26, 2002, at approximately 3:00 p.m. Some time between 3:00 and 4:00 p.m., as he was walking to a bus stop, Jay was approached by appellant Kwan, who asked him if he wanted "to attend a party." Jay agreed, but "just for a little while." Kwan led Jay across Lake Merced Boulevard and down a dirt path. As Jay walked down the path, he could see a group of Asian youths ahead of him. Among these, he recognized appellants Alan Cheng and Lau. There were also two other Asian males he did not know.
"Suddenly," Jay "felt a sharp pain" in his right knee, and he fell to the ground. Anna Cheng, who is Laus cousin, was standing over Jay holding a metal rod in her hand. She told Jay to "get up," and struck his right arm and leg repeatedly
with the rod. Anna handed the rod to appellant Louie, who hit Jay several more times on the arms and legs. Then Anna told Jay to take off his shoes. When he refused, all the named appellants held him down, removed his shoes, and took his wallet from his pants and a metal chain from around his neck. During this "struggle," Louie pushed Jays head against the ground "several times," and "everybody in the group punched and kicked" him. The group departed after this assault, leaving Jay on the ground. As they did so, Anna Cheng told Jay that if he "showed [his] face at Lincoln" that Fall semester, "she would beat [him] to death." Louie told Jay that if he saw Jay again, "he would kill" him.
After his assailants had left, Jay "caught [his] breath and rested a bit." He then "carefully stood up and went home." He was unable to find his neck chain, money or identification cards. When his mother got home, he told her about what had happened. She "immediately" took photographs of his bruises and took Jay to a doctor, who diagnosed a torn ligament and prescribed crutches. Thereafter, Jay "lost several days of school . . . due to the injuries and fear for [his] safety."
Subsequently,
Jay found two photographs of himself taken near Lake Merced with "defamatory remarks" about him on the internet. According to Jay, the photographs had been taken on the day of the incident by one of the assailants he had not recognized. Thereafter, Jay was unable to concentrate on his school work and had trouble sleeping out of fear for his safety. He sought help from his school therapist and another therapist specializing in treating anxiety and depression.
In connection with the petitions, Chaw filed applications for an order for appointment as guardian ad litem, and a declaration under penalty of perjury stating that at 7:00 a.m. on July 27, 2002, appellant Louie had telephoned her home saying he wanted to talk to her or to Jay about the police report, and "wanted to offer a cash settlement. " Chaw told Louie that she did not want to talk to him. At 7:37 a.m., Louie came to her front door and told her "that it was important to him" to talk to Chaw and Jay. They told Louie they did not want to talk to him, and turned him away. Chaw stated that they had not given Louie their address or telephone number before, and that he "may have gotten the information from" Anna Cheng or Kwan.
The superior court issued an order to show cause and temporary restraining order on July 29, 2002, setting the hearing on a permanent injunction for August 14, 2002. At the hearing, Anna Cheng and Louie submitted written responses denying the allegations made in the respective petitions against them. Annas response averred that "this incident never occurred." In addition, she stated: "The allegations made by the plaintiff [Jay] lacks [sic] substance. The plaintiff has a history of poor study skills and the plaintiff has a delinquency record at Lincoln High School." With regard to the requested stay-away order, Anna wrote: "I would like to make a mutual agreement." Louies response stated that "I wasnt there as what the Plaintiff [Jay] described." Louie stated he would "agree" to a stay-away order "if and only if the agreement is mutual and with the exception of Abraham Lincoln High School." Neither Kwan nor Lau filed a written response to the respective petitions against them.
Respondent Jay and all five appellants were present and were sworn in by the clerk at the outset of the hearing on August 14, 2002. The trial court confirmed that the appellants were not represented,
there were no witnesses called on their behalf, and no one other than the parties themselves intended to testify at the hearing. The parties gave their names, ages, where they had been attending school, and where they would be going in the Fall.
The trial court denied the requests of Anna Cheng and Louie for mutual restraining orders, on the grounds no one had filed an harassment petition against respondent Jay, or had alleged that he had assaulted anyone. Under questioning by the court, appellants at first all denied being acquainted with respondent Jay. Noting that respondent Jays petition stated that he attended summer school at Lowell, the trial court asked if any of the appellants had attended summer school at Lowell. There was no audible response to this question by the court.
The trial court then proceeded to ask each appellant individually if he or she was acquainted with Jay at the time of the events of June 26, 2002, as alleged by Jay in his petition. Lau acknowledged that she knew "who he was." At first, Anna Cheng testified "I know of him." Under questioning, although she denied having had a conversation with Jay "on that day," Anna Cheng admitted not only that she did
know him, but that she had talked with him "during the school year because we ran into some conflicts." Alan Cheng testified, "yes, I do know of [respondent] Jay." Kwan and Louie each admitted knowing respondent Jay.
Based on the specific factual allegations in respondents petition, the trial court then asked appellants if they had seen Jay between 3 and 4 p.m. on June 26, 2002, approached him in the vicinity of Lake Merced Boulevard, and asked him if he wanted to attend a party. Kwan testified that he did not, and denied seeing respondent at all on the afternoon at issue. Lau and Alan Cheng made similar disclaimers. Anna Cheng denied striking respondent, as alleged in the petition, because she "was not there." In response to the trial courts question whether respondent "made it up entirely," Anna testified: "I believe so." Under further questioning, Anna testified that her conflict with respondent was based on his "misunderstanding" of their relationship and mistaken belief that she was his "girlfriend." Anna testified that respondent had written threatening e-mails about her to other people, copies of which she allegedly showed to the police and an administrator at Lincoln.
However, she did not produce any copies in evidence at the hearing. Anna denied seeing respondent at all on June 26: specifically, she testified that "after graduation, I did not come in contact [with him] in anyway."
After reciting all of the factual allegations in respondents petition on the record, the trial court had respondents mother, Chaw, produce the photographic evidence of Jays alleged injuries. The trial court then showed these photographs to appellants. Under questioning by the trial court, respondent testified "under penalty of perjury" that he had written the factual allegations contained in the harassment petitions; that these accounts were "true and correct"; that he had consulted a physician after the incident, who diagnosed a torn ligament in his leg; that he had made a police report on June 27, 2002, regarding the incident; and that he recognized all five of the appellants as having actually taken part in the assault and beating incident on June 26, 2002. The trial court admitted the police report made by respondent into evidence. Finally, the trial court questioned respondent about the photographs of the incident he had seen on the internet. These photographs,
which respondent had downloaded and copied, were introduced in evidence and shown to appellants.
"Just to make sure," the trial court then asked appellants again whether they denied seeing respondent at all on June 26, 2002. Anna Cheng specifically denied seeking respondent "at all" on June 26, and affirmed her opinion that he was making the whole thing up. The trial court then informed the parties that it could only consider the evidence before it. On the basis of that evidence, the trial court stated that it found respondents evidence and testimony credible, and that it disbelieved the testimony and denials of appellants. On this basis, the court ruled that it would issue the requested restraining orders.
"THE COURT: In the responses, you suggest, some of you, that I should talk to various school officials. Im not a detective, Im a judge. I dont do investigations. I consider the evidence thats brought before me. I cant imagine why he would makeup such a story. He does have bruises, he did go to the doctor, he did report to the police. I think his story is very credible. [P] . . . [P] . . . I am issuing restraining orders in this case. I think you are all lying. I do not think that Jason Jay is making up this story."
At that point in the hearing, as the trial court began to fashion the restraining orders based on where the parties would all be attending school, appellant Lau stated "Im sure that he got hurt, maybe something happened. Okay, I dont disbelieve something like that happened, but I was not involved in this. I was at Kaiser that day and I dont understand why Im being dragged into it. Okay. I dont know [respondent Jay]. Okay. Im sorry if Im not supposed to talk to you or anything, Im sorry if something happened to you, but please dont drag me into it." Lau produced a document purporting to state that she had a scheduled appointment at Kaiser medical clinic on June 26 at 3:20 p.m. Under questioning by the trial court, respondent again affirmed that he was "quite sure that Miss Lau was at the lake" at the time of the incident, but that he was "not sure about the time."
Anna Cheng told the trial court she agreed with Lau that they "werent there," and she had "brought in a letter to show that my word is very credible." In response, the trial court stated: "I dont believe you, okay. Now, if you have a document that shows clearly and perfectly truly that you were somewhere else;
otherwise, Im not believing you young ladies and young men on the other side." The court noted for the record that Anna had produced a document representing that someone from an insurance company had spoken with her on June 26, but that it did not state the time of day of that conversation. Similarly, the court stated that Louie had produced a store sales slip showing he had made a purchase on June 26 at 5:57 p.m., long after the time of the alleged incident.
Based on the parties projected school attendance in the next year, the trial court worked out separate restraining orders for the different appellants. The post-hearing orders specifically ordered the individual appellants to stay at least 100 yards away from respondent, his younger brother, and his mother and father; and not otherwise to "contact, molest, harass, attack, strike, threaten, sexually assault, batter, telephone, send any messages to, follow, stalk, destroy the personal property of, disturb the peace of, keep under surveillance, or block movements in public places or thoroughfares of" those persons. The trial court ordered Lau and Anna and Alan Cheng to stay at least 100 yards away from all schools of respondent,
specifically Lincoln and City College. In the cases of the Louie and Kwan, the trial court specified that those two individuals could be on the premises of San Francisco City College when they were "performing legitimate school business" there, but ordered them to stay at least 10 yards away from respondent at those times.
These appeals timely followed entry of the restraining orders. They were subsequently consolidated on December 24, 2002.
DISCUSSION
Appellants contend the trial court abused its discretion and denied them a fair hearing because it failed to take any testimony at the hearing and decided in respondents favor despite the "inconsistencies" in his case; and because it "ignored" allegedly "exculpatory" documentary evidence presented by appellant Lau. In connection with these arguments, appellants reassert their request to augment the record on appeal with documents allegedly shown to the trial court but not in the record, and which purportedly show that appellant Lau was elsewhere at the time of the subject incident. Appellants contentions are without merit.
HARASSMENT PROCEDURE AND STANDARD OF REVIEW
Code of Civil Procedure section 527.6 was enacted "to protect the individuals right to pursue safety, happiness and privacy as guaranteed by the California Constitution." (Stats. 1978, ch. 1307, § 1; Cal. Const., art. I, § 1.) The statutes purpose is to provide expedited injunctive relief to victims of "harassment." (Schraer v. Berkeley Property Owners Assn. (1989) 207 Cal. App. 3d 719, 729-730, 255 Cal. Rptr. 453; Smith v. Silvey (1983) 149 Cal. App. 3d 400, 405, 197 Cal. Rptr. 15.) The elements of unlawful harassment as set out in section 527.6, are: (1) "a knowing and willful course of conduct" involving a "pattern" of "a series of acts over a period of time, however short, evidencing a continuity of purpose"; (2) "directed at a specific person"; (3) which "seriously alarms, annoys, or harasses the person"; (4) which "serves no legitimate purpose"; (5) which "could cause a reasonable person to suffer substantial emotional distress" and "actually causes substantial emotional distress to the plaintiff"; and (6) which is not a "constitutionally protected activity." ( § 527.6, subd. (b); Schild v. Rubin (1991) 232 Cal. App. 3d 755, 762, 283 Cal. Rptr. 533.)
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
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. 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." ( § 527.6, subd. (b).) The term "course of conduct" is defined as "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 . . . ." ( § 527.6, subd. (b)(3).)
Section 527.6 sets out a specific procedure under which a person claiming harassment
may first obtain a temporary restraining order in accordance with Code of Civil Procedure section 527. The temporary restraining order may remain in effect for not more than 15 days, or 22 days if so extended by the trial court upon a showing of "good cause." This order may be issued "with or without notice upon an affidavit that, to the satisfaction of the court, shows reasonable proof of harassment of the plaintiff by the defendant, and that great or irreparable harm would result to the plaintiff. In the discretion of the court, and on a showing of good cause, a temporary restraining order or injunction issued under this section may include other named family or household members who reside with the plaintiff." ( § 527.6, subds. (c), (d).)
Within the 15 day period of the temporary restraining order, or the 22-day extended time period, "a hearing shall be held on the petition for the injunction." ( § 527.6, subd. (d).) The defendant may file a response explaining, justifying or denying the alleged harassment, or may file a cross-complaint for harassment. "At the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment. An injunction issued pursuant to this section shall have a duration of not more than three years." ( § 527.6, subd. (d).) " Clear and convincing evidence requires a finding of high probability." (In re Angelia P. (1981) 28 Cal.3d 908, 919, 171 Cal. Rptr. 637, 623 P.2d 198.) Under the "clear and convincing" standard of proof, the evidence adduced to support a conclusion of fact must "be "so clear as to leave no substantial doubt"; [that is,] "sufficiently strong to command the unhesitating assent of every reasonable mind." [Citation.]" (Ibid.)
Thus, although a trial court in a harassment proceeding may rely upon affidavits alone to support the initial ex parte issuance of a 15-day temporary restraining order against harassment, in the subsequent mandatory hearing on issuance of an injunction, both sides may offer evidence by deposition or the oral testimony of witnesses. If it is offered, the trial court must take relevant oral testimony from available witnesses, and receive that testimony subject only to such reasonable limitations as are necessary to conserve the expeditious nature of the statutory harassment procedure. In short, the trial court may not arbitrarily limit the evidence presented at the hearing to written testimony when relevant oral testimony has been offered. (Schraer v. Berkeley Property Owners Assn., supra, 207 Cal. App. 3d at pp. 730-733 & fn. 6.)
"In assessing whether substantial evidence supports the requisite elements of willful harassment, as defined in Code of Civil Procedure 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. [Citations.]" (Schild v. Rubin, supra, 232 Cal. App. 3d at p. 762.) We base our review of the trial courts action on the evidence that was actually admitted in the court below, not on matters outside the record and unavailable
to the trial court.
CONDUCT OF HEARING
Appellants principal argument, and the only one applicable to all five appellants, is that the trial court erred in violation of section 527.6 by granting the requested injunctions without taking testimony from the individual appellants as the parties charged with harassment, and instead allegedly making its decision "based solely on the written pleadings, without more." Closely connected with this contention is their argument that the trial court erred by not questioning respondent sufficiently on such matters as appellants alleged motive for the assault, the reasons for respondents delay of approximately one month in seeking injunctive relief, and alleged factual inconsistencies in his claim.
As seen, at a hearing on a section 527.6 petition a trial court must take relevant oral testimony from available witnesses for the defense, if offered. (Schraer v. Berkeley Property Owners Assn., supra, 207 Cal. App. 3d at p. 733 & fn. 6.) In this case, appellants contention that the trial court failed to take such testimony ignores the fact that none was offered. At the very outset of the hearing, the first thing the
trial court asked was whether there would be any witnesses for the parties accused of harassment aside from themselves. The answer was no. In the absence of counsel, the trial court itself questioned the parties under oath, and elicited testimony from the appellants. The statements made by the individual appellants on the record during the hearing were under penalty of perjury, and clearly constituted testimony. Appellants assertion that the decision granting respondents petition was made in the absence of testimony is patently untrue.
Neither is there merit to appellants contention that the trial court failed to delve adequately into the question of their motive for the assault. The record shows that the trial court considered Anna Chengs testimony about her relationship with respondent, and concluded she was untrustworthy. The only evidence of asserted motive was Annas claim that respondent had been upset by her spurning of his desire for a relationship with her. Appellants offered no documentation of their claims in this regard, such as copies of the alleged threatening e-mails or declarations from school officials with whom Anna allegedly spoke. Even if accepted as true,
Annas testimony clearly provided a motive for the alleged assault itself: i.e., appellants desire to discourage respondent from trying to contact Anna again. In short, the trial court did consider the question of motive, and in doing so elicited evidence that supported the claims of the petition.
Similarly meritless is appellants claim that the trial court abused its discretion by failing to take any testimony on the issue of respondents alleged "delay" in filing this petition. Assuming for the sake of argument that the lapse of 33 days between appellants assault on respondent and respondents filing of the harassment petition has some factual significance, appellants fail to offer any authority for the assertion that this "delay" should make any cognizable legal difference. There is nothing in section 527.6 itself setting a limitation period on the bringing of a harassment petition, and 33 days is obviously well within the two-year time period for bringing a tort action or the one-year time period for bringing an action upon a statute for a penalty. ( §§ 335.1, 340.)
Appellants also fail to show why the trial court had a "duty to make an independent inquiry" into this alleged "delay," particularly in the face of appellants own failure to raise the issue below. It is well established that a party will be precluded from raising an error as a ground of appeal where, by conduct or inaction amounting to acquiescence in the action taken, he or she waives the right to attack it. This implied waiver occurs most obviously where the defendant fails to object in some appropriate manner to a ruling or proceeding in the trial court. (In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002; Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 546; Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1117; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §§ 388, 390-391, 394, pp. 439-442, 444-446.) " An appellate court will ordinarily not consider procedural defects or erroneous rulings . . . where an objection could have been, but was not, presented to the lower court by some appropriate method. [Citations.] [Citation.] Failure to object to the ruling or proceeding is the most obvious type of implied waiver. [Citation.]" (In re Marriage of Hinman, supra, 55 Cal.App.4th at p. 1002.) The justification for the rule is simply that it is unfair to the trial court and unjust to the adverse party to permit a party to raise an alleged error on appeal that could easily have been corrected at trial. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1, 151 Cal. Rptr. 837, 588 P.2d 1261; Sommer v. Martin, supra, 55 Cal.App. at p. 610; 9 Witkin, Cal. Procedure, supra, § 394, pp. 444-446.) By any standard, appellants have waived the issue-such as it is-of respondents asserted "delay" in filing the petition.
"Besides, it is due to the judge, in furtherance of justice, that his [or her] attention should be called to the legal principle which is claimed to be violated by the admission or rejection of the evidence. In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his [or her] legal rights and of calling the judges attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his [or her] objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal. [Citation.]" (Sommer v. Martin (1921) 55 Cal.App. 603, 610, 204 P. 33.)
Appellants also contend that the trial court abused its discretion by failing to inquire into alleged inconsistencies in respondents version of the facts. Specifically, appellants cite respondents statement in the petition that "Anna Cheng told me that if I showed my face at Lincoln High School this Fall semester, she would beat me to death," and his representation elsewhere in the record that Anna had graduated from Lincoln in June 2002. Asserting that these two statements presented a "bizarre inconsistency that was devoid of logic and was worthy of being explored," appellants argue that the trial court erred prejudicially in failing to do so. Appellants contention ignores the fact Anna Cheng herself told the trial court that despite her graduation from Lincoln and her plans to attend the University of California at Davis, she had planned on returning to Lincoln in connection with other continuing activities. In short, appellants claim that the trial court abused its discretion in this regard is contradicted by the record itself.
In arguing that it would be unreasonably onerous for her to be restrained from coming within 100 yards of Lincoln, Anna Cheng specifically stated (under penalty of perjury) as follows: "Im a lifetime California Scholarship Federation member [and] that involves activities at Lincoln. [P] I still have to talk with the club sponsor because I was supposed to receive the Presidential scholarship."
SUFFICIENCY OF EVIDENCE
Although not so stated by appellants, the real thrust of their argument appears to be that there was insufficient evidence to support the grant of the petition under the clear and convincing evidence standard. Our review of such a contention is no different in the context of this section 527.6 appeal than it would be in any other appeal raising the issue of whether a judgment is supported by substantial evidence. We must resolve all factual conflicts and questions of credibility in favor of the prevailing party, indulge all reasonable inferences to uphold the findings of the trial court, and affirm its decision if supported by substantial evidence which is reasonable, credible and of solid value. (Schild v. Rubin, supra, 232 Cal. App. 3d at p. 762.) Significantly, in this review we cannot consider anything outside the evidence actually admitted in the trial court.
Applying this standard, we have no difficulty in concluding that the judgment was adequately supported by substantial evidence. Appellants never questioned the validity or veracity of respondents photographic evidence of his injuries, including the copies of the pictures
taken at the time of the incident that he found on and copied from the internet. The trial court was the best judge of the credibility of the parties. On this record, we are not in any position to dispute its conclusion that respondent was credible, and that appellants were not.
ALIBI EVIDENCE
Appellants also argue that the trial court "chose to ignore" allegedly "exculpatory" documentary alibi evidence presented to it by appellant Lau, and purportedly proving she was at Kaiser when the assault on respondent took place. Appellants again ask us to permit the augmentation of the record on appeal with these documents, arguing that because they were shown to the trial court at the hearing we should consider them now.
The record shows that appellant Lau showed the trial court documents purporting to show that she had an appointment at Kaiser scheduled for 3:20 p.m. on June 26, 2002. The trial court examined these documents, and described them on the record. It then asked respondent if he was "quite sure" Lau "was at the lake." Respondent replied, "yes, she was." The trial court then asked him, "youre not sure about the time however; is that correct?" To which respondent
replied, "Thats correct." The trial court then returned these documents to Lau and proceeded with issuing the stay away orders without further comment on this evidence.
It undoubtedly would have made the record clearer had the trial court commented further on the documents offered by appellant Lau before proceeding with issuing the stay away orders. However, it is clear from the entire record that the trial court did not believe the explanations given by any of the appellants, including Lau, and determined that there was sufficient evidence to support the scenario and time line to which respondent had testified. As described on the record, the evidence presented by Lau was neither exculpatory nor unambiguous. Moreover, it was clearly hearsay. Despite this, and the total lack of any foundation for its admission, the trial court nevertheless considered this evidence on the record, and found it not sufficiently convincing to outweigh the evidence and testimony presented by respondent. Any argument at this stage as to weight the trial court should have given this almost certainly inadmissible evidence is clearly beyond the scope of our review.
With regard to appellants renewed attempt to bring this evidence before us, that attempt must fail. By order dated December 24, 2002, this Court previously denied appellants motion to augment the appellate record with these documents, but specifically without prejudice to reconsideration of such a motion upon the submission of originals or certified copies of that material "accompanied by a supporting declaration by appellants counsel under penalty of perjury verifying which, if any, of the material was in fact admitted, filed or lodged in the judicial record" of this case. Appellants have renewed their motion in their opening brief on appeal, and have included a declaration by appellate counsel detailing appellants efforts to have the subject material added to the superior court record in January 2003. It is clear that even if seen by the trial court at the hearing, this material was never actually entered in evidence, and has consequently not been certified as part of the record by the superior court. We therefore deny the renewed motion.
DISPOSITION
The judgment is affirmed.
We concur: Corrigan, J., Pollak, J.