Opinion
D057492 Super. Ct. No. DV025305
10-21-2011
GITA REJAI, Plaintiff and Respondent, v. MANUCHEHR K. RIAZATI, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from an order of the Superior Court of San Diego County, Edward P. Allard III, Judge. Affirmed.
Manuchehr Riazati appeals from an order renewing a domestic violence restraining order preventing him from contacting Gita Rejai, a woman he previously
dated. (Fam. Code, § 6345.) Riazati contends the court abused its discretion in issuing the order and committed numerous other errors. We reject Riazati's arguments and affirm.
All statutory references are to the Family Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2007, Rejai filed her initial request for a domestic violence restraining order under the Domestic Violence Protection Act (DVPA). (See § 6200, et seq.) In support, Rejai presented evidence that she occasionally dated Riazati in 2004 and 2005, but Riazati began stalking and harassing her after the relationship ended.
According to this evidence, Riazati repeatedly called Rejai and left threatening messages. He also followed Rejai in his car and almost rear-ended her vehicle. Rejai once saw Riazati "lurking" outside her house at about 10:00 p.m. Rejai said she was in constant fear and felt like a prisoner in her own home. She was afraid the harassment would escalate into physical violence.
In March 2008, the court issued a two-year restraining order based on this evidence. The order prohibited Riazati from harassing or contacting Rejai, and directed Riazati to stay at least 100 yards from Rejai's person, home, job, and vehicle. Riazati filed an appeal, but this court dismissed the appeal because Riazati did not file an opening brief.
Two years later, in March 2010, Rejai filed a request to renew the order. In support, she submitted a declaration describing Riazati's violations of the restraining order and stating she was fearful Riazati would become violent if the restraining order terminated. According to Rejai's declaration, Riazati violated the order shortly after it was issued by coming to Rejai's home. Two days later, Riazati again went to Rejai's house and knocked on the door, then ran away. In January 2009, Rejai saw Riazati peering through the window of her house. He began banging on her door, then ran away. Shortly before the protective order was to expire, Riazati again came to Rejai's house, knocked on the window, then ran away. Rejai called the police on each occasion, but each time he had left the area by the time the officers arrived. Riazati also telephoned Rejai numerous times.
Riazati filed no written response to Rejai's renewal motion.
In April 2010, the court held a hearing on Rejai's request to renew the restraining order. Both parties appeared and had the opportunity to testify and present evidence. Riazati did not designate a reporter's transcript of the hearing to be included in the appellate record. After the hearing, the court granted Rejai's request for a renewal of the order and extended the order for five years. The minute order states the court found Riazati was "not credible." (Capitalization omitted.)
Riazati appeals from the renewal order.
DISCUSSION
I. General Appellate Law Principles
It is a fundamental tenet of appellate law that the lower court's judgment is presumed to be correct. We make all reasonable inferences favoring the court's order, and affirm the judgment if any possible grounds exist for the trial court to have reached its factual conclusions. (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) Any ambiguity in the record is resolved in favor of the judgment. (Ibid.) It is the appellant's burden to provide an adequate record to overcome the presumption of correctness and show prejudicial error. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)
Riazati is not represented by an attorney in this appeal. However, unrepresented litigants are held to the same standards as attorneys. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Kobayshi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)
II. Renewal Order Standards
Section 6345 authorizes the renewal of a domestic violence protective order. Section 6345, subdivision (a) states: "These orders may be renewed, upon request of a party, either for five years or permanently, without a showing of any further abuse since the issuance of the original order, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party." (Italics added.)
To prevail on a motion to renew the order, a protected party has the burden to show by a preponderance of the evidence that a reasonable person would have a " 'reasonable apprehension' " of future abuse. (Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1290 (Ritchie).) Under this objective test, the moving party need not show future abuse is likely to occur; instead the protected person need only show his or her apprehension of future abuse is "genuine and reasonable." (Ibid.) A court may renew a protective order even if no abuse has occurred since issuance of the initial protective order. The lack of evidence of abuse may be attributed to the effectiveness of the order. (Id. at p. 1284.) "[T]he fact a protective order has proved effective is a good reason for seeking its renewal." (Ibid.)
A trial court has broad discretion in determining whether to grant a renewal order under the DVPA. (See § 6345, subd. (a); Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420; In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1498; Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.) A reviewing court must affirm the renewal order unless " 'the trial court exceeded the bounds of reason.' " (Gonzales, supra, 156 Cal.App.4th at p. 420.)
III. Analysis
A. Sufficiency of the Evidence
Riazati contends there was insufficient evidence warranting a renewal of the restraining order. However, without a reporter's transcript, we must presume the facts supported the court's findings. An appellant who attacks a judgment or order, but supplies no reporter's transcript of the proceedings, is precluded from asserting the evidence was insufficient to support the judgment or order. (City of Chino v. Jackson (2002) 97 Cal.App.4th 377, 385.) In the absence of a reporter's transcript, we cannot evaluate issues requiring a factual analysis and must presume "the trial court acted duly and regularly and received substantial evidence to support its findings." (Stevens v. Stevens (1954) 129 Cal.App.2d 19, 20; see Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003; Hodges v. Mark (1996) 49 Cal.App.4th 651, 657.) We cannot evaluate error unless we know the evidence and arguments that were before the court when it issued its ruling. (See Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575.)
We deny Riazati's request at oral argument that we allow him to augment the record with the reporter's transcript. The request is untimely. (See People v. Preslie (1977) 70 Cal.App.3d 486, 492.)
Further, because Riazati failed to provide citations to the record in support of his factual assertions, his arguments are deemed waived. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; see also City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) Factual statements in appellate briefs not supported by citations to the record are improper and cannot be considered. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246; Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632.) "It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations." (Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205.)
Moreover, even if we were to consider Riazati's appellate arguments based on the evidence contained in the appellate record, there was sufficient evidence to support the court's order. In her declaration, Rejai described that Riazati made attempts to contact her after the initial restraining order was issued. He came to her home several times and knocked on the windows and doors. He telephoned her "numerous times at all hours of the day." Based on these incidents, Rejai believed Riazati was seeking to frighten her and would continue the harassment. Rejai was "afraid" for her safety and believed Riazati's repeated attempts to contact her could escalate into violence. Based on Rejai's description of the continued incidents, the court had a substantial basis to find that Rejai's fear was genuine and reasonable.
Contrary to Riazati's contentions, his actions fall within the statutory definition of prohibited abusive conduct. "The requisite abuse need not be actual infliction of physical injury or assault." (Conness v. Satram (2004) 122 Cal.App.4th 197, 202.) "[S]ection 6320 broadly provides that 'disturbing the peace of the other party' constitutes abuse . . . ." (In re Marriage of Nadkarni, supra, 173 Cal.App.4th at p. 1497.) "[T]he plain meaning of the phrase 'disturbing the peace of the other party' in section 6320 may be properly understood as conduct that destroys the mental or emotional calm of the other party." (Ibid.) By continuing to come to Rejai's home and telephone Rejai in violation of the initial restraining order, Riazati engaged in "behavior that has been or could be enjoined pursuant to Section 6320." (§ 6203, subd. (d).)
We also reject Riazati's challenges to the weight and credibility of Rejai's statements in her declaration and at the hearing. As an appellate court, we do not reweigh the evidence or second-guess witness credibility. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531.) In determining whether substantial evidence supports the court's order, we view the evidence in the light most favorable to the order. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1151.) A trier of fact is required to reject evidence only " 'when it is inherently improbable or incredible, i.e., " 'unbelievable per se,' " physically impossible or " 'wholly unacceptable to reasonable minds.' " [Citations.]' " (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.) There is nothing in the record showing the court was required to reject Rejai's evidence under this rule.
We deny Riazati's request in his briefs that this court permit him to present additional evidence. Under well settled appellate rules, our review of the appeal is based solely on the evidence before the trial court at the time it made the challenged ruling. (See Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) Although an appellate court has limited authority to admit additional evidence (see Code Civ. Proc., § 909), this authority must be "exercised sparingly" (In re Zeth S. (2003) 31 Cal.4th 396, 405), and should not be used when considering a sufficiency of the evidence challenge (see Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1090; see also In re Elise K. (1982) 33 Cal.3d 138, 149).
B. Challenges to Prior Order
Riazati devotes most of his appellate brief to challenging the court's findings underlying the initial two-year restraining order. We have no jurisdiction to consider these arguments. Although Riazati filed a notice of appeal from that order, he later abandoned the appeal after failing to file an opening brief. "If a party fails to appeal an appealable order within the prescribed time, [the reviewing] court is without jurisdiction to review that order on a subsequent appeal." (In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 219; accord Mauro B. v. Superior Court (1991) 230 Cal.App.3d 949, 953; see also Ritchie, supra, 115 Cal.App.4th at p. 1290.) In challenging a renewal order, the restrained party is not permitted "to challenge the truth of the evidence and findings underlying the initial order . . . ." (Ritchie, supra, at p. 1290.)
C. Additional Arguments
Riazati contends the court erred by shifting the burden to him and failing to apply the appropriate legal standards. However, absent an indication to the contrary, we are required to presume the trial court understood and properly applied the governing law. (People v. Coddington (2000) 23 Cal.4th 529, 644.) There is no basis in the record to show the court placed the burden of proof on Riazati and/or did not apply the proper legal standards. Similarly, the record does not support Riazati's claims the court would not let him present evidence, that the court prejudged the case, or told him he was "delusional." We have reviewed each of Riazati's additional arguments and find them to be without merit.
DISPOSITION
Order affirmed. Appellant to pay respondent's costs on appeal.
HALLER, J.
WE CONCUR:
MCCONNELL, P. J.
HUFFMAN, J.