L.A. v. Brown CA2/6 ( 2022 )

Filed 7/20/22 L.A. v. Brown CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
L.A., 2d Civ. No. B310964
(Super. Ct. No. 21CV-0020
Plaintiff and Respondent, (San Luis Obispo County)
v.
MARK BROWN,
Defendant and Appellant.
While still a minor, L.A. petitioned for a civil harassment
restraining order against Mark Brown, his former attorney and
roommate. Brown did not file a response to the petition, which
was scheduled to be heard on February 5, 2021.
Brown submitted a request to continue the hearing on
February 4, 2021. The request was “not filed” by the clerk and
the hearing went forward as scheduled.1
We grant the motion for judicial notice filed by Brown on
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November 16, 2021, and the motion for judicial notice filed by
L.A. on January 21, 2022. (See Evid. Code, §§ 452, 459.)
The hearing was held by “Zoom” videoconference. After
noting Brown’s absence, the trial court examined L.A. and found
“clear and convincing evidence to issue a [three-year] restraining
order.” Brown contends this was error (1) because the court clerk
improperly refused to file his request for a continuance and (2)
because his failure to appear was the result of an issue with the
Zoom application. The record fails to support either contention.
We affirm.
DISCUSSION
L.A.’s petition for a civil harassment restraining order
([L.A.] v. Brown (Super. Ct. San Luis Obispo County, 2021, No.
21CV-0020)), alleged, among other things, that Brown had
racially profiled him and stalked him around the house. Brown
responded by filing his own petition for a civil harassment
restraining order against L.A. (Brown v. [L.A.] (Super. Ct. San
Luis Obispo County, 2021, No. 21CV-0021)). Brown alleged that
L.A.’s threatening and harassing behavior was witnessed by
Jeremy Hall, another roommate, and by Tyler Stuart, L.A.’s legal
guardian. Temporary restraining orders were granted in both
cases.
The cases were scheduled for hearing on February 5, 2021.
Code of Civil Procedure section 527.6, subdivision (o) entitles the
respondent, “as a matter of course, to one continuance, for a
reasonable period, to respond to the petition.” Brown attempted
to file a request to continue both hearings. The court’s docket
reflects that the request to continue was “not filed” but does not
state a reason.
Brown contends the presentation of his request for a
continuance with proof of service was sufficient for it to be filed,
but he has not provided us with a copy of that request. He has
2
included only a blank Request to Continue Court Hearing (Form
CH-115.) We cannot conclude on this limited record that the
clerk erred by not filing whatever was submitted.
Brown also claims he made numerous unsuccessful
attempts to join the Zoom videoconference on February 5, 2021.
He states in his opening brief that (1) he “was on [the] Zoom app
on a desk top computer” at 8:50 a.m.; (2) a paralegal called the
clerk’s office to ask why Brown had not been invited into the
videoconference; (3) a paralegal then signed into the Zoom event
under his name; and (4) a paralegal called the clerk’s office again
at 9:30 a.m. and was told that the trial court was calling another
case but that Brown would be let into the videoconference after
that case.2
As Brown concedes, “[n]one of this information is available
as a record of the superior court file to be available for use on
appeal.” This deficiency is fatal to his appeal. “When practicing
appellate law, there are at least three immutable rules: first,
take great care to prepare a complete record; second, if it is not in
the record, it did not happen; and third, when in doubt, refer back
to rules one and two.” (Protect Our Water v. County of Merced
(2003) 110 Cal.App.4th 362, 364, italics added.) The record
confirms Brown was not present at the hearing and he has not
demonstrated that the trial court erred by proceeding without
2 As noted at oral argument, Brown did not seek assistance
from opposing counsel, who had successfully joined the
videoconference and could have apprised the court of the
situation.
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him. Brown’s remedy, if any, was to seek reconsideration in the
trial court.3
DISPOSITION
The judgment (order granting civil harassment restraining
order) is affirmed. L.A. shall recover his costs on appeal.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
YEGAN, J.
3 Prior to oral argument, we advised Brown that we were
considering awarding sanctions pursuant to Rules 8.276(a)(1) and
8.276(c) of the California Rules of Court. We decline to do so.
4
Ginger E. Garrett, Judge
Superior Court County of San Luis Obispo
______________________________
Ferreira Law Group, Gabriella Ferreira, for Plaintiff and
Respondent.
Mark Brown, in pro. per., for Defendant and Appellant.
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