Thomas v. Blue CA4/1 ( 2021 )

Filed 3/26/21 Thomas v. Blue CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ADAM T. THOMAS, D076222
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2018-
00064532-CU-PT-NC)
JAY K. BLUE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
William Y. Wood, Judge. Affirmed.
Jay K. Blue, in pro. per., for Defendant and Appellant.
Ridgeway Law and Christopher M. Ridgeway, for Plaintiff and
Respondent.
Defendant/appellant Jay K. Blue has provided this court with the trial
court’s settled statement from a hearing on April 26, 2019, an appellant’s
appendix (which contains six documents, only three of which are from this
case), an opening brief, and a reply brief. From a review of these documents,
we know only that, as a matter of elder or dependent adult abuse prevention,
plaintiff/respondent Adam T. Thomas initiated this action in the superior
court, and the court entered a minute order restraining Blue for the benefit of
“Interested Party” D.C. (April 2019 Minute Order). As we explain, Blue has
not provided this court with a sufficient record on appeal or a sufficient legal
argument, supported by authorities, from which we might reach the merits of
his appeal. By this presentation, he cannot meet his burden on appeal of
establishing reversible error, and on that basis we affirm the April 2019
Minute Order.
I.
The April 2019 Minute Order indicates that it resulted from a “Request
for Elder or Dependent Adult Abuse Restraining Orders” filed December 21,
2018, and that Thomas was the petitioner. The 2019 Minute Order provides
in part: Thomas, Blue, and D.C. “are sworn to testify on their behalf. [¶]
Restraining order as requested against . . . Blue is granted with a 100 yards
stay away order to expire 04-26-22. [¶] The Court orders . . . Blue not to
physically or financially abuse, intimidate, contact, molest, harass, attack,
strike, threaten, sexually assault, batter, telephone, send any messages to,
follow, stalk, keep under surveillance, block movements, destroy the personal
property, or take any action to obtain the addresses or locations of D[.C]. [¶]
The Court orders that . . . Blue: cannot own . . . a gun or firearm; . . . . [¶]
The request to include . . . Thomas for protection under these orders is denied
at this time.” (Some capitalization omitted.)
None of the court’s proceedings at any time was reported. The trial
court provided a seven-page “Settled Statement re: Hearing Held 4-26-19.”
In part, consistent with its April 2019 Minute Order, the court summarized:
“On April 26, 2019, Mr. Blue and Mr. Thomas appeared. The hearing was
not reported or recorded. The court granted the request of Mr. Thomas on
2
behalf of [D.C.] for Elder or Dependent Adult Abuse Restraining Orders and
denied the request of Mr. Blue for Elder or Dependent Adult Abuse
Restraining Orders against Mr. Thomas. The court denied Mr. Thomas’s
request to be an additional protected party on the restraining order
protecting [D.C.].”
After providing a procedural “Background” of events between
November 30, 2018, and January 24, 2020, the settled statement set forth
what Blue “specifi[ed]” as “grounds for appeal” and two typewritten pages
describing the “Evidence Presented at the April 26, 2019 hearing.” (Some
capitalization, bolding, and underscoring omitted.) The cited evidence
includes certain basic facts to which the parties agreed, as well as testimony
from Blue, Thomas, and D.C.1
“The Court’s Findings,” which are also included in the settled
statement, provide in full: “The court found by a preponderance of the
evidence that Mr. Blue, ostensibly [D.C.]’s caretaker, assaulted [D.C.] by
deliberately throwing water on her. [D.C.] has Alzheimer’s Disease and the
event Mr. Blue admitted was neither playful nor simply careless; it served no
legitimate purpose, was alarming to [D.C.], and caused her confusion and
emotional distress.”
II.
Blue represented himself throughout the proceedings in the trial court
and now on appeal. In both courts, the procedural rules apply the same to a
self-represented party as to a party represented by counsel. (Rappleyea v.
1 With regard to D.C.’s testimony, the court ruled: “The court heard
briefly from [D.C.], who was in attendance, and determined that she was
unable to testify. [D.C.] did not have a Conservator at the time of the
[April 26, 2019] hearing.”
3
Campbell (1994) 8 Cal.4th 975, 984-985 [“the rules of civil procedure must
apply equally to parties represented by counsel and those who forgo attorney
representation”].) In a recent appeal from the issuance of a restraining order
(also known as a protective order) in a case under the Elder Abuse and
Dependent Adult Civil Protection Act (Elder Abuse Act), Welfare and
Institutions Code section 15600 et seq.,2 the Court of Appeal reaffirmed that
a self-represented party “ ‘is entitled to the same, but no greater,
consideration than other litigants and attorneys.’ ” (Tanguilig v. Valdez
(2019) 36 Cal.App.5th 514, 520 (Tanguilig); accord, Burkes v. Robertson
(2018) 26 Cal.App.5th 334, 344-345 [“self-represented parties are ‘ “held to
the same restrictive procedural rules as an attorney” ’ ”]; Flores v.
Department of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 205
[“The same rules apply to a party appearing in propria persona as to any
other party.”].) The fact that a party is representing himself is not a basis for
special treatment that would be unfair to any other litigant. (Rappleyea, at
2 In his brief on appeal, Thomas tells us that he brought this action and
sought the restraining order pursuant to the Elder Abuse Act, citing various
provisions of Welfare and Institutions Code section 15600 et seq. However,
he does not provide a record reference for this statement, and the rules
regarding record references apply to Thomas as well as to Blue. (See
pt. II.A., post.) Nevertheless, based on the trial court’s Settled Statement re:
Hearing Held 4-26-19 and Civil Case Information Statement that Blue filed
in this court in September 2019, we are satisfied that Thomas initiated the
action and sought the restraining order under the Elder Abuse Act (Welf. &
Inst. Code, § 15600 et seq.). Under the Elder Abuse Act, what courts and
parties often refer to as “restraining orders” are referred to as “protective
orders.” (E.g., Welf. & Inst. Code, § 15657.03, subd. (a)(1) [“An elder or
dependent adult who has suffered abuse . . . may seek protective orders as
provided in this section” (italics added)].)
4
pp. 984-985; McClain v. Kissler (2019) 39 Cal.App.5th 399, 416; see Advisory
Com. com., Cal. Code Jud. Ethics, canon 3B(8).)
Thus, to the extent Blue’s self-represented status contributed to certain
procedural and substantive deficiencies in either court, it does not excuse
them or otherwise entitle him to relief on the basis that he is representing
himself. In this regard, an appellate party’s failure to follow basic appellate
procedure—both in briefing and in record preparation—has consequences.
A.
In an appellate brief, the party is required to “[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.” (Cal. Rules of Court, rule 8.204(a)(1)(C).3)
Failure to do so may result in the court’s disregard of the unsupported factual
assertion or the party’s forfeiture of appellate review of the issue or argument
for which the unsupported factual reference is asserted. (Fierro v. Landry’s
Restaurant Inc. (2019) 32 Cal.App.5th 276, 281, fn. 5 [in appellate briefs, the
court may “ ‘ “ignore” ’ factual statements without record references” and
“may ‘ “disregard any factual contention not supported by a proper citation to
the record” ’ ”]; Alki Partners, LP v. DB Fund Services, LLC (2016) 4
Cal.App.5th 574, 589 [“An appellant who fails to cite accurately to the record
forfeits the issue or argument on appeal that is presented without the record
reference”].) In an appeal from the grant of an Elder Abuse Act protective
order, for example, the appellate court reminded the parties that it
“disregard[s] factual contentions that are not supported by citations to the
record.” (Tanguilig, supra, 36 Cal.App.5th at p. 520; accord, Herriott v.
3 Subsequent undesignated rule references are to the California Rules of
Court.
5
Herriott (2019) 33 Cal.App.5th 212, 222, fn. 15 [Elder Abuse Act appeal: the
court disregarded portions of both parties’ appellate briefing, because “[i]t is
not this court’s task to search the record for evidence that supports a party’s
factual statements”].)
Likewise, in an appellate brief, the party is required to “support
each point by argument and, if possible, by citation of authority.”
(Rule 8.204(a)(1)(B).) Correspondingly, failure to do so results in the party’s
forfeiture of appellate review of the issue or argument. (Kinsella v. Kinsella
(2020) 45 Cal.App.5th 442, 464 [“Where an appellant fails to present
argument or legal authority, he or she forfeits appellate consideration of the
issue.”]; Delta Stewardship Council Cases (2020) 48 Cal.App.5th 1014, 1075
[“When an appellant . . . asserts [a point] but fails to support it with reasoned
argument and citations to authority, we treat the point as forfeited.”].) For
example, in Tanguilig, the appeal from an Elder Abuse Act protective order,
the appellate court “disregard[ed] legal arguments that [we]re not supported
by citations to legal authority . . . or [we]re conclusory . . . .” (Tanguilig,
supra, 36 Cal.App.5th at p. 520, citations omitted.)
In the present appeal, Blue does not tell us under what authority he
contends the court issued, or erred in issuing, the April 2019 Minute Order.4
In addition, Blue does not provide record references for almost all of his
factual assertions, many from probate court litigation that is not before us.
4 Since Thomas brought this action and sought the restraining order
under the Elder Abuse Act (see fn. 2, ante), Welfare and Institutions Code
section 15657.03 would have controlled the issuance of any “protective order”
upon petition. Section 15657.03 currently contains 65 separately identified
subdivisions, yet Blue does not mention one (or any other authority) in
support of his appeal.
6
(See fn. 6, post.) Further, although his opening brief has sections entitled
“Elements of the Action” and “The Standard of Review,” Blue does not once
mention the elements of a claim under the Elder Abuse Act or the standard of
appellate review of a final protective order under the Elder Abuse Act.5
As a result of Blue’s failures to comply with these basic requirements in
his appellate briefing, Blue forfeited appellate review of the April 2019
Minute Order.
B.
A “fundamental principle of appellate procedure [is] that a trial court
judgment is ordinarily presumed to be correct and the burden is on an
appellant to demonstrate, on the basis of the record presented to the
appellate court, that the trial court committed an error that justifies reversal
of the judgment. . . . ‘This is not only a general principle of appellate practice
but an ingredient of the constitutional doctrine of reversible error.’ . . . ‘In the
absence of a contrary showing in the record, all presumptions in favor of the
trial court’s action will be made by the appellate court. “[I]f any matters
could have been presented to the court below which would have authorized
5 “The elements of a cause of action under . . . the Elder Abuse Act . . .
are statutory, and reflect the Legislature’s intent to provide enhanced
remedies to encourage private, civil enforcement of laws against elder abuse
and neglect.” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82.)
“To this end, civil actions may be brought under the Act for ‘physical abuse’
([Welf. & Inst. Code, ]§§ 15610.63, 15657), ‘neglect’ ([id., ]§§ 15610.57, 15657),
or ‘financial abuse’ ([id., ]§§ 15610.30, 15657.5).” (Mahan v. Charles W. Chan
Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 858.)
“We review the issuance of a protective order under the Elder Abuse
Act for abuse of discretion, and we review the factual findings necessary to
support the protective order for substantial evidence.” (Gdowski v. Gdowski
(2009) 175 Cal.App.4th 128, 135.)
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the order complained of, it will be presumed that such matters were
presented.” ’ . . . ‘ “A necessary corollary to this rule is that if the record is
inadequate for meaningful review, the appellant defaults and the decision of
the trial court should be affirmed.” ’ . . . ‘Consequently, [the appellant] has
the burden of providing an adequate record. . . . Failure to provide an
adequate record on an issue requires that the issue be resolved against
[the appellant].’ ” (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609
(Jameson), citations omitted; see Tanguilig, supra, 36 Cal.App.5th at p. 520
[Elder Abuse Act appeal: “an ‘ “order of the lower court is presumed
correct” ’ ”].)
Rule 8.124 allows an appellant like Blue to designate an appendix
(as opposed to a clerk’s transcript) as the form of the record of the written
documents from the superior court proceedings. At a minimum, however,
the appendix “must contain”: the notice of appeal; the judgment or order
appealed from and any notice of its entry; any notices to proceed by settled
statement; the register of actions; any document filed or lodged or any exhibit
admitted in evidence, refused, or lodged in the superior court “that is
necessary for proper consideration of the issues, including . . . any item that
the appellant should reasonably assume the respondent will rely on.”
(Rules 8.124(b)(1), 8.122(b)(1), (3).)
The appellant’s appendix in this appeal, which contains only three
documents from the present action, fails to comply with these most basic
requirements.6 Blue has not provided the notice of appeal, the notice to
6 Appellant’s appendix includes six documents, only three of which are
from the present action. In chronological order, the three documents from the
present action are: (1) a minute order dated January 11, 2019, reissuing
temporary orders on Thomas’s application for a restraining order and
8
proceed by settled statement, the register of actions, and documentary
evidence from at the hearing. Accordingly, to have a better idea of the trial
court proceedings, on our own motion, we augment the record on appeal to
include the register of actions. (Rule 8.155(c)(1).)
Having now reviewed the register of actions—which contains 74
separate entries—we know that, because of what Blue has not provided, we
are unable to reach the merits of any of the four claims of error he asserts.7
continuing the hearing on the application; (2) a minute order dated April 26,
2019, in favor of D.C., restraining Blue from all contact with her for three
years (previously identified as the “April 2019 Minute Order”); and (3) the
court’s settled statement filed February 28, 2020 (a certified copy of which
was properly transmitted to this court by the clerk of the superior court in
June 2020).
The other three documents in appellant’s appendix are not from the
present action. They appear to be from a probate case, San Diego Superior
Court case No. 37-2018-00059946-PR-CP-CTL, entitled, “Conservatorship of
[D.C.]” and in chronological order are: (4) an undated “Capacity Declaration”
that contains references to November 28 and 29, 2018 (with no file stamp);
(5) an ex parte minute order dated December 20, 2018 (regarding a Dec. 17,
2018 “Memorandum to Judge Case Concern”); and (6) a letter dated June 5,
2019, addressed to “Hon. Robert Longstreth,” signed under penalty of perjury
by N.S. (with no file stamp).
7 The four point headings in Blue’s opening brief are as follows:
“A consenting water fight does not constitute ‘domestic violence’ ”;
“[Thomas’s] power of attorney was fraudulent and therefore he had no legal
authority to file an Elder Abuse Temporary Restraining Order”;
“Hon. Robert C. Longstreth, issued a minute order on 20 December 2018
stating that ‘no power of attorney or health care protection with [D.C.] as the
principal shall be exercised without the written concurrence of Ms. Wilson.
No disbursements from [D.C.]’s accounts and no use shall be made of her
credit cards, without the written concurrence of Ms. Wilson”; and “The
temporary restraining order was granted without good cause and was
continued multiple times for unreasonable lengths in violation of the rules of
court code.” (Sic.) (Bolding and most capitalization omitted.)
9
Instead, as we explain, based on the record on appeal that Blue designated,
we must affirm without reaching the merits. (Jameson, supra, 5 Cal.5th at
p. 609.)
The register of actions indicates, at a minimum, that Thomas initiated
this action by filing a “Request for Elder or Dependent Adult Abuse
Restraining Orders (Elder or Dependent Adult Abuse Prevention)” and that
Blue responded by filing an initial and an amended “Response to Request for
Elder or Dependent Adult Abuse Restraining Orders.”8 Since the Judicial
Council forms for Thomas’s request and Blue’s response (Nos. EA-100 and
EA-120, respectively) are in the format of a declaration under penalty of
perjury by the party, we know that the evidence in Thomas’s petition and in
Blue’s response—evidence that was before the trial court at the hearing—is
not before us in the record on appeal.9 With no error apparent on the face of
the record on appeal and without a complete record of the evidence before the
trial court at the time it ruled, we must “presume[ ]” that the evidence not in
the record on appeal “would demonstrate the absence of error” as to any
factual finding necessary to support the rulings in the April 2019 Minute
Order. (Estate of Fain (1999) 75 Cal.App.4th 973, 992, italics omitted; see
Jameson, supra, 5 Cal.5th at p. 608 [lack of a complete record of the evidence
presented “will frequently be fatal to a litigant’s ability to have his or her
claims of trial court error resolved on the merits by an appellate court”].)
8 These entries further corroborate Thomas’s unsupported statement
that he brought this action and sought the restraining order under the Elder
Abuse Act (Welf. & Inst. Code, § 15600 et seq.). (See fn. 2, ante.)
9 We also know from the language in the settled statement that the
statement did not include a reference to or a summary of all of the evidence
received at the hearing.
10
In addition, the register of actions further indicates that, on April 26,
2019—i.e., the same date as the filing of the April 2019 Minute Order on
review here—the court also filed a “Elder or Dependent Adult Abuse
Restraining Order After Hearing (CLETS-EAR or EAF),” which is not in the
appellant’s appendix.10 This six-page order is on Judicial Council form
EA-130 and contains much more information than the one-page April 2019
Minute Order—which naturally raises the question of whether Blue has
presented to us the correct order for appellate review.
For the foregoing record-related reasons, where, as here, “ ‘ “the record
is inadequate for meaningful review, the appellant defaults and the decision
of the trial court should be affirmed.” ’ ” (Jameson, supra, 5 Cal.5th at
p. 609.)
10 Blue attached copies of this document and the April 2019 Minute Order
to his Civil Case Information Statement filed in this court, but only the April
2019 Minute Order is in the record on appeal.
11
III.
The April 2019 Minute Order is affirmed. Thomas is entitled to his
costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
IRION, J.
WE CONCUR:
HALLER, Acting P. J.
AARON, J.
12