N.R. v. Shapouri CA4/1 ( 2021 )


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  • Filed 8/9/21 N.R. v. Shapouri 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    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
    N.R.,                                                              D076017
    Plaintiff and Respondent,
    (Super. Ct. No.
    v.                                                        37-2019-00006399-CU-HR-CTL)
    FERNANDO SHAPOURI,                                                 ORDER MODIFYING OPINION
    AND DENYING REHEARING
    Defendant and Appellant.
    [NO CHANGE IN THE
    JUDGMENT]
    THE COURT:
    It is ordered that the opinion filed on July 19, 2021, be modified as
    follows:
    In the opening paragraph, which begins on page 1 and concludes on
    page 2, the words “Shapouri’s prior” are replaced with “N.R.’s” so that the
    phrase “(3) the judge did not fully disclose a conflict of interest arising from
    his acquaintance with Shapouri’s prior counsel,” is changed to “(3) the judge
    did not fully disclose a conflict of interest arising from his acquaintance with
    N.R.’s counsel,” so that the paragraph now reads:
    This court has nevertheless discerned from his brief the following
    contentions: (1) insufficient evidence supported the granting of the
    restraining order; (2) the court lacked jurisdiction to resolve this matter
    as Shapouri lives in Los Angeles, N.R.’s telephone number had a Palo
    Alto area code, and no evidence showed she was in San Diego during
    any of the alleged telephone contacts; (3) the judge did not fully disclose
    a conflict of interest arising from his acquaintance with N.R.’s
    counsel, therefore “the evidence amalgamates frame up, conspiracy by
    obstruction of justice, violations of liberty and due process, all the while
    contributing to tyrannical malicious prosecution and inconsistent
    verdict”; and (4) the court further violated Shapouri’s constitutional
    right to due process because N.R.’s mother was not present at the
    motion hearing.
    There is no change in the judgment.
    The petition for rehearing is denied.
    HALLER, Acting P. J.
    Copies to: All parties
    2
    Filed 7/19/21 N.R. v. Shapouri CA4/1 (unmodified opinion)
    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
    N.R.,                                                                D076017
    Plaintiff and Respondent,
    v.                                                         (Super. Ct. No.
    37-2019-00006399-CU-HR-CTL)
    FERNANDO SHAPOURI,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of San Diego County,
    Matthew Brower, Judge. Affirmed.
    Fernando Shapouri, in pro. per.; Law Office of Corey Evan Parker and
    Corey Evan Parker, for Defendant and Appellant.
    N.R., in pro. per.; Bernal Law and Pedro Bernal for Plaintiff and
    Respondent.
    Fernando Shapouri, who is self-represented, appeals from the court’s
    order granting respondent N.R.’s request for a civil harassment restraining
    order (Code of Civ. Proc.,1 § 527.6) protecting herself and her mother against
    1        Undesignated statutory references are to the Code of Civil Procedure.
    him. Shapouri’s brief does not contain clearly stated arguments for reversal
    supported by citations to legal authority and the record. This court has
    nevertheless discerned from his brief the following contentions: (1)
    insufficient evidence supported the granting of the restraining order; (2) the
    court lacked jurisdiction to resolve this matter as Shapouri lives in Los
    Angeles, N.R.’s telephone number had a Palo Alto area code, and no evidence
    showed she was in San Diego during any of the alleged telephone contacts; (3)
    the judge did not fully disclose a conflict of interest arising from his
    acquaintance with Shapouri’s prior counsel, therefore “the evidence
    amalgamates frame up, conspiracy by obstruction of justice, violations of
    liberty and due process, all the while contributing to tyrannical malicious
    prosecution and inconsistent verdict”; and (4) the court further violated
    Shapouri’s constitutional right to due process because N.R.’s mother was not
    present at the motion hearing. We affirm.
    FACTUAL AND PROCEDURAL BACKGROUND
    N.R. made the following allegations in a petition for a civil harassment
    restraining order: Shapouri was a high school acquaintance, and they never
    had a romantic or sexual relationship. On November 2, 2018, Shapouri left
    her a voicemail in which he was “talking about ‘ejaculating in a copy machine
    at work’ and making other inappropriate sexual remarks.” On December 2,
    2018, Shapouri telephoned N.R.’s business partner and left a voicemail
    message stating, “[N.R.] is screwing up and she needs to come after [me]
    instead of making another mistake in her life . . . then [me and N.R.] can
    argue and make out like in Top Gun.”
    Around December 17, 2018, Shapouri disparaged N.R. and her business
    via her friends’ social media.
    2
    On February 2, 2019, Shapouri wrote in a text message to N.R.: “[F]or
    every action there is a reaction,” and “[i]f you keep shading me, see what
    happens.” Shapouri added that he was “writing a book for sure. What’s in it
    and how it ends, only time will tell, but remembering every shitting [sic]
    thing, especially you.”
    On February 3, 2019, Shapouri told N.R. via text message, “the
    problem is that your brain is so damn thin because you just keep caught up
    in a narrow scope [sic].” Although N.R. told Shapouri to stop texting her, he
    refused, replying, “I want to come see you.” He later sent her a message
    accusing her of “doing drugs and prostituting.”
    The hearing on the restraining order petition was unreported. The
    court’s minute order states the judge initially granted Shapouri’s motion and
    recused himself because of his prior relationship with Shapouri’s attorney.
    However, the attorney informed the court Shapouri “has decided to proceed in
    pro. per.” The court then heard the matter.
    The court stated in a minute order that it reviewed voicemail messages
    N.R. submitted, along with photographs, text messages, screenshots and
    other materials that Shapouri submitted. The court found that N.R. had
    “met the high burden of proof that is required” and proven the case by clear
    and convincing evidence; therefore, it granted the restraining order for five
    years.
    DISCUSSION
    Section 527.6 permits a court to issue a protective order against a
    person who has engaged in “harassment” (§ 527.6, subd. (a); see R.D. v. P.M.
    (2011) 
    202 Cal.App.4th 181
    , 188-189), which it defines 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
    3
    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
    petitioner.” (§ 527.6, subd. (b)(3).) “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, including, but not
    limited to, the use of . . . computer email. Constitutionally protected activity
    is not included within the meaning of ‘course of conduct.’ ” (§ 527.6, subd.
    (b)(1).) Before imposing a protective order, a trial court must find clear and
    convincing evidence that unlawful harassment exists and is likely to recur in
    the future. (§ 527.6, subd. (i).) A reviewing court will affirm a trial court’s
    finding that this burden of proof has been met if supported by substantial
    evidence. (Harris v. Stampolis (2016) 
    248 Cal.App.4th 484
    , 496.)
    As stated, the appellate record does not include a reporter’s transcript
    or any other record of what testimony and arguments were presented at the
    hearing. Consequently, Shapouri has forfeited any claims that insufficient
    evidence supports the restraining order and that N.R. failed to demonstrate a
    reasonable probability that he would continue to harass her. The burden of
    showing reversible error by an adequate record falls on the party challenging
    the judgment or order. (Ballard v. Uribe (1986) 
    41 Cal.3d 564
    , 574.) “[T]he
    reviewing court presumes the judgment of the trial court is correct and
    indulges all presumptions to support a judgment on matters as to which the
    record is silent.” (Baker v. Children's Hospital Medical Center (1989) 
    209 Cal.App.3d 1057
    , 1060.) Thus, “ ‘[i]t is the duty of an appellant to provide an
    adequate record to the [appellate] court establishing error. Failure to provide
    4
    an adequate record on an issue requires that the issue be resolved against
    [the] appellant.’ ” (Hotels Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 
    203 Cal.App.4th 336
    , 348.)
    Where “the record on appeal consists of only a clerk's transcript and
    exhibits and no error appears on the face of the record, the sufficiency of the
    evidence to support the trial court’s rulings is not open to consideration by a
    reviewing court; in such a case, ‘any condition of facts consistent with the
    validity of the judgment will be presumed to have existed rather than one
    which would defeat it.’ ” (County of Los Angeles v. Surety Ins. Co. (1984) 
    152 Cal.App.3d 16
    , 23.) If a reporter’s transcript of the hearing was not
    obtainable, Shapouri could have avoided the application of this rule by
    proceeding with an agreed or settled statement. (Leslie v. Roe (1974) 
    41 Cal.App.3d 104
    , 108; see Cal. Rules of Court, rules 8.134, 8.137.) That
    Shapouri is representing himself on appeal does not exempt him from the
    requirements of appellate practice. (Nwosu v. Uba (2004) 
    122 Cal.App.4th 1229
    , 1246-1247.) A self-represented party “ ‘is to be treated like any other
    party and is entitled to the same, but no greater consideration than other
    litigants and attorneys.’ ” (Id. at p. 1247.)
    We further conclude that Shapouri forfeited the arguments he raises
    for the first time on appeal where an objection could have been but was not
    made in the trial court. (Doers v. Golden Gate Bridge etc. Dist. (1979) 
    23 Cal.3d 180
    , 184-185, fn. 1.) These claims include that the court had a conflict
    of interest, the court violated his due process rights or “punished” Shapouri,
    it failed to “ask questions about hate speech, alcohol and drug abuse, or even
    prostitution,” and it “illegally granted injunctive relief for [N.R.’s mother]
    although she was not present, not wanting to be on the order, [and] unable to
    be questioned.” As stated, we are required to presume the court carried out
    5
    its official duties properly and that if Shapouri had raised the issues below,
    the court properly addressed them. “ ‘As an aspect of the presumption that
    judicial duty is properly performed [Evid. Code, § 664], we presume . . . that
    the court knows and applies the correct statutory and case law [citation] and
    is able to distinguish admissible from inadmissible evidence, relevant from
    irrelevant facts, and to recognize those facts which properly may be
    considered in the judicial decisionmaking process.’ ” (In re Marriage of
    Davenport (2011) 
    194 Cal.App.4th 1507
    , 1531.) Although we could exercise
    our discretion to excuse the forfeiture, we decline to do so. (See In re Wilford
    J. (2005) 
    131 Cal.App.4th 742
    , 754.)
    Shapouri argues the judge “willfully and knowingly stopped [him] from
    making argument [sic] on his evidence by cutting him off and using
    intimidation while never asking the opposition questions.” But Shapouri
    identifies no specific harm that he allegedly suffered. He identifies no
    testimony, piece of evidence, or argument that he was unable to present or
    challenge. An alleged error only warrants reversal if the appellant can show
    the error was prejudicial. (Douglas v. Ostermeier (1991) 
    1 Cal.App.4th 729
    ,
    740; see People v. Esayian (2003) 
    112 Cal.App.4th 1031
    , 1042 [claim that
    procedure violated due process generally requires showing of fundamental
    unfairness].) Finally, even if Shapouri were able to identify some alleged
    harm, we would likely be unable to evaluate it since he failed to provide us
    with an adequate record of the proceeding. In short, he has not sustained his
    appellate burden of demonstrating a due process violation or any other error.
    Without citation to applicable legal authority, Shapouri argues he was
    “intimidated with firearm by the armed bailiff” [sic]; “proper discovery
    package has been denied through the whole process [sic]”; there was a
    “[f]ailure to promptly record and send out the transcripts in 30 to 60” days;
    6
    N.R. engaged in “hate speech” against him; the restraining order was “served
    illegally without proper seal and signature”; he should have been “informed
    and served civil case coversheet documents prior to the hearing” because this
    case is complex; N.R. did not include proof of evidence with her declaration
    and thus “no proof is within the four corners, and outside the declaration
    there is no lodgment of evidence within the four corners”; and N.R. violated
    California Rules of Court, rule 2.1040(a)(1) by not including a transcript of an
    audio recording that she submitted into evidence. “[W]e may disregard
    conclusory arguments that are not supported by pertinent legal authority or
    fail to disclose the reasoning by which the appellant reached the conclusions
    [the appellant] wants us to adopt.” (City of Santa Maria v. Adam (2012) 
    211 Cal.App.4th 266
    , 287.) “In order to demonstrate error, an appellant must
    supply the reviewing court with some cogent argument supported by legal
    analysis and citation to the record.” (Id. at pp. 286-287.) Because Shapouri
    has failed to provide such arguments on each of the above claims, we reject
    them.
    Nor will we presume the court’s actions caused Shapouri prejudice,
    which he is obligated to demonstrate. (See Cassim v. Allstate Ins. Co. (2004)
    
    33 Cal.4th 780
    , 800-802; Paterno v. State of California (1999) 
    74 Cal.App.4th 68
    , 105-106 [“[O]ur duty to examine the entire cause arises when and only
    when the appellant has fulfilled his duty to tender a proper prejudice
    argument. Because of the need to consider the particulars of the given case,
    rather than the type of error, the appellant bears the duty of spelling out in
    his brief exactly how the error caused a miscarriage of justice”]; Vaughn v.
    Jonas (1948) 
    31 Cal.2d 586
    , 601 [“[t]o presume in favor of error or prejudice
    would be directly contrary to the policy of this state”].) As Shapouri has not
    7
    fulfilled his duty of tendering a proper prejudice argument, we have no duty
    to examine his claims further.
    DISPOSITION
    The order is affirmed. N.R. is awarded costs on appeal.
    O’ROURKE, J.
    WE CONCUR:
    BENKE, Acting P. J.
    HALLER, J.
    8
    

Document Info

Docket Number: D076017M

Filed Date: 8/9/2021

Precedential Status: Non-Precedential

Modified Date: 8/9/2021