Castruita v. Guerrero CA2/7

Filed 2/24/14 Castruita v. Guerrero CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
LARRY CASTRUITA, B246439
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS140333)
v.
STEVEN GUERRERO,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los Angeles County,
Carol Boas Goodson, Judge. Affirmed.
Larry Castruita, in pro per, for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
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INTRODUCTION
This is an appeal from an order granting a motion for attorney fees. Because the
appellant has failed to provide a record demonstrating the error he claims, we affirm.
FACTUAL AND PROCEDURAL SUMMARY
In mid-November 2012, Larry Castruita filed a petition seeking a temporary
restraining order and permanent injunction against Steven Guerrero. (Code Civ. Proc., §
526.7 [all further undesignated statutory references are to the Code of Civil Procedure].)
According to Castruita’s petition, Guerrero is Castruita’s uncle and a co-trustee of a trust
that owns Castruita’s residence. Castruita said Guerrero repeatedly entered his residence
without knocking, took photographs, initiated verbal altercations and otherwise harassed
him. Castruita’s request for a temporary restraining order was granted in part, and a
hearing was set for December 4.1
On November 30, Castruita filed points and authorities along with his own
supporting declaration, and Guerrero filed a response. On December 3, both Castruita
and Guerrero filed substitutions of attorney, and both appeared at the December 4 hearing
represented by counsel.
According to the court’s December 4 minute order following the hearing on
Castruita’s petition for injunction prohibiting harassment, both Castruita and Guerrero
were sworn and testified; the petition for injunction prohibiting harassment was denied;
the temporary restraining order was dissolved; and Guerrero’s “oral motion for attorney
fees [wa]s granted[,]” with Castruita “ordered to pay $1,000 to attorney Jim McCullaugh
within 30 days.”
Castruita (now an attorney proceeding in pro per) appeals. We have received no
respondent’s brief or any other response from Guerrero.
1 The request was denied as to Castruita’s vehicle and workplace for lack of
evidence.
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DISCUSSION
Castruita says the trial court deprived him of notice and an opportunity to be heard
in violation of due process when it granted Guerrero’s oral motion for attorney fees at the
time of the hearing. As Castruita acknowledges, “The prevailing party in any action
brought under this section [section 527.6] may be awarded court costs and attorney’s
fees, if any.” (§ 527.6, subd. (r).) However, he says Guerrero never requested fees
himself in the form response he filed and claims Guerrero’s attorney—who had
substituted in to the case just the day before the hearing—only made the request for
attorney fees for the first time at the conclusion of the proceedings. Then, he says, the
trial court asked Guerrero’s attorney how much he would like and then ordered Castruita
to pay the requested $1,000 amount without allowing any response from Castruita or his
counsel. He concedes he cannot cite to a reporter’s transcript, asserting the “court’s
recent consolidation has all but eliminated court reporters.”
“A ruling by a trial court is presumed correct, and ambiguities are resolved in
favor of affirmance.” (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th
624, 631, citations omitted; see generally, Eisenberg et al., Cal. Practice Guide: Civil
Appeals and Writs (The Rutter Group 2013) ¶¶ 8:15 to 8:18, pp. 8-5 to 8-7, italics in
original.)
As the appellant, it is Castruita’s burden to overcome this presumption of
correctness by providing an adequate appellate record demonstrating the error he asserts;
failure to do so requires resolution of the issue against him. (Eisenberg et al., Cal.
Practice Guide: Civil Appeals and Writs, supra, ¶ 8:17 at pp. 8-5 to 8-6, citing Maria P.
v. Riles (1987) 43 Cal.3d 1281, 1295; Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349,
1362 [judgment must be affirmed where appellant failed to present adequate record for
review]; Foust v. San Jose Const. Co., Inc. (2011) 198 Cal.App.4th 181, 187 [argument
on appeal forfeited where appellant included only selected excerpts from clerk’s
transcript and failed to include reporter’s transcript or exhibits, preventing meaningful
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review].) An appellant’s burden to affirmatively demonstrate error remains the same
whether the respondent files a brief or not. (Kriegler v. Eichler Homes, Inc. (1969) 269
Cal.App.2d 224, 226-227.)
In addition to the absence of a reporter’s transcript, the record Castruita designated
includes only the documents he filed in support of the requested restraining order; it does
not include Guerrero’s response (or any other document filed on Guerrero’s behalf). The
record does include the Los Angeles Superior Court’s case summary which specifies the
filing of such documents, including Guerrero’s response filed on November 30, 2012 and
substitution of attorney filed on December 4, 2012, as well as the trial court’s minute
order of the same date which states Castruita was ordered to pay Guerrero’s attorney
(James McCullaugh) fees in the amount of $1,000.
On this record, given the conspicuous absence of any documents filed on
Guerrero’s behalf in which he may well have requested as well as substantiated the
request for the award of attorney fees Castruita challenges on due process grounds in this
appeal, the trial court’s order must be affirmed. (Oliveira v. Kiesler, supra, 206
Cal.App.4th at p. 362 [“The absence of a record concerning what actually occurred [in
the trial court] precludes a determination that the trial court [erred]”].)
DISPOSITION
The order is affirmed. Castruita is to bear his own costs on appeal.
WOODS, J.
We concur:
PERLUSS, P. J. SEGAL, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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