Piercy v. Rodriguez CA5

Filed 6/26/15 Piercy v. Rodriguez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
DAVID N. PIERCY,
F069752
Plaintiff and Appellant,
(Super. Ct. No. 14CECG01235)
v.
SANTIAGO RODRIGUEZ, OPINION
Defendant and Respondent.
THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Carlos Cabrera,
Judge.
David N. Piercy, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
-ooOoo-
* Before Levy, Acting P.J., Gomes, J. and Detjen, J.
Upon appellant’s application, the trial court issued a temporary restraining order
enjoining respondent from harassing appellant under Code of Civil Procedure
section 527.6. However, following a hearing, the trial court denied appellant’s request
for an injunction against respondent.
Appellant contends the trial court erred on numerous grounds. According to
appellant, respondent’s conduct falls within the scope of Code of Civil Procedure section
527.6, the court improperly excluded certain evidence, the court erred in denying
appellant’s requests for a continuance of the hearing, the court erred in failing to provide
a court reporter for the hearing, and the court should have granted his motion to
disqualify respondent’s attorney.
Appellant has failed to demonstrate reversible error. Accordingly, the order will
be affirmed.
BACKGROUND
Appellant filed a request for a civil harassment restraining order seeking
protection from respondent. Appellant also asked for protection for his wife and his
stepdaughter. According to appellant, respondent made threatening and harassing
telephone calls, left unwelcome messages on Facebook and twitter, and posted harassing
videos on the internet.
On May 5, 2014, the trial court issued a temporary restraining order to remain in
effect until the injunction hearing scheduled for June 2, 2014.
Appellant filed two requests to continue the June 2 hearing on the ground that he
had not yet been able to serve respondent with the order because respondent lives in Los
Angeles County. The trial court denied the first request, filed May 13, because appellant
still had time to serve the documents on respondent. The trial court denied the second
request, filed May 27, because respondent had contacted the court and stated that he
would be present.
2.
Before the hearing, respondent submitted a declaration denying appellant’s
allegations. Rather, respondent declared that it was appellant who had engaged in
harassing conduct.
Following the hearing, the trial court denied appellant’s request for a permanent
injunction. The court also denied respondent’s request for attorney fees. A court reporter
was not present at the hearing.
DISCUSSION
A general principle of appellate practice is that the lower court order is presumed
to be correct. (Denham v. Superior Court (1970) 2 Cal. 3d 557, 564.) “‘All intendments
and presumptions are indulged to support [the order] on matters as to which the record is
silent, and error must be affirmatively shown.’” (Ibid.)
It should first be noted that there is no reporter’s transcript of the injunction
hearing. Thus, we must presume the trial court’s rulings at the hearing were proper.
Appellant contends he was denied due process because the trial court failed to
provide a court reporter. However, it is up to the parties in a civil case to provide a
reporter’s transcript at their own expense. (City of Rohnert Park v. Superior Court
(1983) 146 Cal. App. 3d 420, 430-431.) Appellant was not entitled to either a court
reporter or a reporter’s transcript unless he paid for it himself.
Granting or denying an injunction rests in the sound discretion of the trial court
upon a consideration of all the particular circumstances of each individual case. The trial
court’s judgment will not be disturbed on appeal except for an abuse of discretion.
(Professional Engineers v. Department of Transportation (1997) 15 Cal. 4th 543, 562.)
Appellant argues the injunction should have been granted. He claims the
existence of the harassment was independently corroborated by witnesses and the
likelihood of future harassment was clearly established. In effect, appellant contends the
trial court’s ruling is not supported by substantial evidence.
3.
However, what little record there is on appeal does not support appellant’s
position. While the record includes appellant’s declarations outlining the alleged
harassment and a declaration from Vicki L. Pate supporting appellant’s claims, it also
includes respondent’s declaration that directly contradicts the declarations that were
submitted by appellant. Respondent declared that it was appellant who was engaging in
the harassing conduct. Further, contrary to appellant’s claim, respondent did not admit to
making harassing telephone calls. Rather, respondent stated he called appellant one time
and requested that appellant leave his family alone. Respondent also made one call to the
person he believed to be appellant’s social worker to complain about being harassed by
appellant.
Under the substantial evidence standard, we must accept as true all the evidence
that tends to establish the correctness of the trial court’s findings and resolve every
conflict in favor of the order. (Sabbah v. Sabbah (2007) 151 Cal. App. 4th 818, 822-823.)
Applying this standard, we conclude that substantial evidence supports the trial court’s
ruling. Without a reporter’s transcript, we must presume that the evidence presented at
the hearing also supports the ruling and that the trial court did not abuse its discretion.
Appellant further argues the trial court made evidentiary errors. According to
appellant, the trial court incorrectly admitted two misleading exhibits introduced by
respondent and improperly excluded police reports, emails, videos, and telephonic
witness testimony proffered by appellant.
A trial court’s ruling on the admissibility of evidence is reviewed for abuse of
discretion. (Pannu v. Land Rover North America, Inc. (2011) 191 Cal. App. 4th 1298,
1317.) Thus, the ruling is subject to reversal on appeal only where the trial court
exceeded the bounds of reason. (Shamblin v. Brattain (1988) 44 Cal. 3d 474, 478.)
Again, there being no reporter’s transcript of the hearing, we must presume the
trial court’s rulings on the evidence were correct. Thus, appellant has not demonstrated
that the trial court’s rulings exceeded the bounds of reason.
4.
Appellant additionally asserts the trial court abused its discretion when it denied
his continuance requests. As noted above, these requests were based on appellant not
being able to serve respondent. However, respondent received actual notice of the
temporary restraining order and personally appeared in court. Thus, a continuance was
not required. Accordingly, the court did not abuse its discretion in denying appellant’s
requests.
Finally, appellant argues the trial court abused its discretion when it denied his
motion to disqualify respondent’s counsel. However, without a transcript of the hearing,
we must presume the trial court’s ruling was correct.
DISPOSITION
The order is affirmed. No costs on appeal are awarded.
5.