Opinion
F075047
08-09-2018
MALLORY ROSE LEGURIA, Plaintiff and Respondent, v. DON TOBIN, Defendant and Appellant.
Don Tobin for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 2022543)
OPINION
THE COURT APPEAL from an order of the Superior Court of Stanislaus County. John D. Freeland, Judge. Don Tobin for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Franson, J. --------
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Appellant, Don Tobin, challenges the trial court's order granting respondent, Mallory Rose Leguria's, request for civil harassment restraining orders. The court ordered appellant not to harass or contact respondent and to stay at least 100 yards away from both respondent and the Velvet Grill & Creamery, respondent's place of employment, for five years.
Appellant argues the court should not have considered the documentary evidence offered by respondent. Appellant further contends the trial court erred in issuing the restraining orders because there was insufficient proof of a continuing course of conduct.
However, the record on appeal is very limited. It consists primarily of the response to the request for civil harassment restraining orders and the restraining orders. There is neither a reporter's transcript of the hearing nor copies of respondent's exhibits.
Without an adequate record, appellant cannot meet his burden to show reversible error. Accordingly, we affirm the order.
DISCUSSION
A general principle of appellate practice is that the lower court order is presumed to be correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).) "'All intendments and presumptions are indulged to support [the order] on matters as to which the record is silent, and error must be affirmatively shown.'" (Ibid.)
Appellant argues the trial court erred in allowing respondent's letters and documents into evidence because they were unauthenticated out-of-court statements. Appellant further alleges he was never given the opportunity to review and respond to these letters and documents.
However, as noted above, there is no reporter's transcript of the hearing on respondent's civil harassment restraining orders request. Further, the record does not include any rulings or orders pertaining to appellant's claimed evidentiary errors. Thus, we must presume the trial court properly admitted respondent's letters and documents into evidence.
Appellant further contends the trial court erred in granting the restraining orders because there was insufficient proof of a continuing course of harassing conduct. Appellant relies on his version of the facts that he set forth in his response to the request for civil harassment restraining orders. According to appellant, there was "a single emotionally-charged incident based upon a misinterpreted and ambiguous note." Appellant additionally asserts that a five-year ban on his dining at the Velvet Grill & Creamery is not justified by the facts.
Again, with the minimal record, we must presume the evidence supports the trial court's order. Respondent presented a witness at trial but, without a reporter's transcript, there is no record of that witness's testimony. Further, we do not have the documents presented by respondent before us. Without a complete record, we cannot evaluate appellant's claims.
Moreover, the decision to grant a restraining order rests in the sound discretion of the trial court. (Church of Christ in Hollywood v. Superior Court (2002) 99 Cal.App.4th 1244, 1251.) An abuse of that discretion exists only when the trial court has "'"'exceeded the bounds of reason or contravened the uncontradicted evidence.'"'" (Ibid.) However, the inadequate record precludes our making such a finding.
In sum, appellant has not met his burden of demonstrating reversible error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575.) Thus, we must presume the trial court's order was correct. (Denham, supra, 2 Cal.3d at p. 564.)
DISPOSITION
The order is affirmed. No costs on appeal are awarded.