Wendy M. v. Abernathy CA4/2 ( 2024 )

Filed 10/3/24 Wendy M. v. Abernathy CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
WENDY M.,
Plaintiff and Respondent, E082628
v. (Super.Ct.No. CIVSB2324921)
MARIO DAVID ABERNATHY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Joseph T. Ortiz,
Judge. Affirmed.
Mario David Abernathy, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Mario David Abernathy appeals from a three-year civil harassment restraining
order entered against him. (Code Civ. Proc., § 527.6; unlabeled statutory references are
to this code.) We affirm.
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BACKGROUND
In October 2023, Wendy M. applied for a civil harassment restraining order
against Abernathy. She sought protection of herself and her husband, Nicholas M.
Wendy managed Vineyard Park Maintenance Corporation, where Abernathy leased one
of the units. In support of her application, Wendy attested that from May 2023 through
October 2023, Abernathy called her and sent her “many emails” from various accounts,
complaining about the homeowners association. Abernathy also showed up at Wendy’s
residence unannounced and uninvited and sent “unknown individuals to [her] house.”
Wendy did not give her address to Abernathy and did not know how he obtained it. In
September, Wendy called the police to report that Abernathy visited her home. In
addition, Abernathy filed lawsuits against Wendy, her business, and Nicholas. Wendy
feared that Abernathy was “keeping track of [her] whereabouts and stalking” her. Wendy
sold her house “due to [her] fear for safety from [Abernathy’s] constant refusal to stop
communicating with [her].”
Three days after Wendy filed her request, Abernathy filed a response.
Abernathy’s response included his own declaration and nearly 100 pages of exhibits.
A hearing on the application was held on October 13, 2023. Both Wendy and
Abernathy attended the hearing. The record on appeal does not include a reporter’s
transcript of the hearing. In his opening brief, Abernathy asserts that witnesses testified
at the hearing. After the hearing, the court granted Wendy’s request for a civil
harassment restraining order and ordered Abernathy to stay at least 100 yards away from
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Wendy, Nicholas, and Wendy’s residence and vehicle for three years, until October 13,
2026.
Abernathy filed a request for a statement of decision on October 25, 2023.
According to the superior court’s register of actions, the document was returned to
Abernathy because the court denied the request.
DISCUSSION
Abernathy challenges the sufficiency of the evidence supporting the civil
harassment restraining order. He also makes numerous arguments about alleged
procedural violations. His arguments lack merit.
Section 527.6 provides that a trial court must issue a restraining order if the court
finds by clear and convincing evidence that the requesting party has suffered harassment.
(Id., subds. (a), (i).) We review for substantial evidence the trial court’s express and
implied factual findings in granting a civil harassment restraining order. (R.D. v. P.M.
(2011) 202 Cal.App.4th 181, 188.)
We presume that appealed orders are correct. (Jameson v. Desta (2018) 5 Cal.5th
594, 609 (Jameson); Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The appellant
bears the burden of affirmatively demonstrating error and providing an adequate record
on appeal. (Jameson, at p. 609.) “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.” (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286-287; Cal.
Rules of Court, rule 8.204(a)(1)(B) & (C); all further rule references are to these rules.)
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All of those principles apply with equal force to self-represented litigants. (Nwosu v. Uba
(2004) 122 Cal.App.4th 1229, 1246.)
The trial court issued the civil harassment restraining order after an evidentiary
hearing at which both parties were present and witnesses testified. (See Evid. Code,
§ 140 [“‘Evidence’ means testimony, writings, material objects, or other things presented
to the senses that are offered to prove the existence or nonexistence of a fact”].)
Abernathy has failed to provide a transcript of that hearing in the record on appeal.
Because the record does not include all of the evidence before the trial court when it
granted the restraining order, we cannot review the sufficiency of the evidence supporting
that order. (Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 924
[“sufficiency of the evidence is not open to review” when an appellant proceeds on
appeal without the reporter’s transcript].) Rather, we must presume that the trial court’s
order is supported by substantial evidence “unless reversible error appears on the record.”
(Ibid.) Abernathy’s challenge to the sufficiency of the evidence supporting the order
accordingly fails.
Abernathy also challenges several rulings that the trial court made during the
hearing. For similar reasons, we cannot analyze the propriety of the trial court’s rulings
at the hearing without a transcript of that hearing. The arguments are consequently
forfeited. (Hotels Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336,
348.)
Abernathy’s remaining arguments fare no better. Abernathy does not support any
of the arguments with citation to the record, so they are forfeited. (Hernandez v. First
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Student, Inc. (2019) 37 Cal.App.5th 270, 279 (Hernandez).) The arguments fail for
additional reasons as well.
First, Abernathy argues that he was not given proper notice of the hearing.
Abernathy filed a response to Wendy’s application for the restraining order and also
appeared at the hearing. His argument therefore fails because “one who has been notified
to attend a certain proceeding and does do so, cannot be heard to complain of alleged
insufficiency of the notice; it has in such instance served its purpose.” (De Luca v. Board
of Supervisors (1955) 134 Cal.App.2d 606, 609.) The rule also applies “to one who
responds to a notice of motion without adequate notice.” (Ibid.)
Second, Abernathy argues that the trial court abused its discretion by not including
in the record on appeal a motion to set aside and vacate the restraining order, which he
filed on November 22, 2023, one week after he filed his notice of appeal. In the notice of
appeal, Abernathy indicated that he was appealing from a judgment or order entered on
October 13, 2023. A deputy clerk at the superior court attested that the motion to vacate
was not included in the record on appeal because it was filed after the notice of appeal
and also because a hearing on the motion was scheduled to take place after the clerk’s
transcript was prepared.
Assuming for the sake of argument that the trial court erred by not including a
copy of a motion that had not yet been decided in the clerk’s transcript, Abernathy fails to
carry his burden on appeal of demonstrating how such an error prejudiced him.
(Jameson, supra, 5 Cal.5th at p. 609.) The motion and any evidence he filed in support
of it were not before the trial court when it issued the restraining order. We accordingly
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would not consider that motion or any accompanying evidence in analyzing the propriety
of granting the restraining order, even if the motion had been included in the record on
appeal. (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 716-717.)
Third, Abernathy makes several arguments challenging the process of the trial
court’s issuance of the restraining order. In particular, he contends that the trial court
erred by issuing the order without giving the parties an opportunity to object under rule
3.1312. The argument fails because rule 3.1312 applies to noticed motions and does not
apply to the trial court’s issuance of a restraining order. (Rule 3.1312(a).) Abernathy
also argues that it was error to issue the restraining order before the proof of service for
the application for the civil harassment restraining order was filed. The argument is
forfeited because it is not supported by any legal analysis or citation to legal authority.
(Hernandez, supra, 37 Cal.App.5th at p. 279.) In addition, Abernathy argues that the
alleged error violated his right to procedural due process but does not argue that it is
reasonably probable that he would have obtained a more favorable result in the absence
of the putative error. He accordingly has not carried his burden on appeal of
demonstrating prejudice. (Jameson, supra, 5 Cal.5th at p. 609.)
Fourth and finally, Abernathy contends that the trial court abused its discretion by
denying his request for a statement of decision. The argument is forfeited because it is
not supported by any legal analysis or legal authority. (Hernandez, supra, 37
Cal.App.5th at p. 279.) In particular, Abernathy cites no authority for the proposition that
the statutes and rules concerning statements of decision apply to requests for civil
harassment restraining orders. (§ 632 [statement of decision]; rule 3.1590(d) [request for
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statement of decision].) And assuming for the sake of argument that such provisions
apply, the trial court did not err, because Abernathy’s request was filed 12 days after the
trial court issued the order, and not prior to submission, as required under the
circumstances. (§ 632.)
DISPOSITION
The order is affirmed. Respondent shall recover her costs of appeal, if any.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
FIELDS
Acting P. J.
RAPHAEL
J.
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