Schwartz v. Spillard CA1/2

Filed 7/29/15 Schwartz v. Spillard CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION TWO
MEGAN SCHWARTZ,
Plaintiff and Respondent,
A141071
v.
EVERETT SPILLARD, (Humboldt County
Super. Ct. No. FL100538)
Defendant and Appellant.
This is an appeal from a domestic violence restraining order (Fam. Code, § 6250 et
seq.) 1 obtained by Megan Schwartz against appellant, Everett Spillard. Schwartz and
Spillard never married but formerly lived together and have a son, born in August 2006.
The child is the subject of a dispute between the parties regarding custody and visitation
that commenced prior to the time Schwartz sought a restraining order under the Domestic
Violence Prevention Act (DVPA). (§ 6200 et seq.)
As will be seen, Spillard’s briefs, which he filed in propria persona, fail to
conform to the California Rules of Court2 and consist not of intelligible legal arguments
but pronunciamentos. Moreover, the record he presents fails to provide an adequate basis
upon which to review most of his claims. As we understand his opening brief, Spillard
contends that (1) Humboldt County Superior Court Judge Joyce Hinrichs improperly
participated in the case after she had been peremptorily challenged under section 170.6 of
1
All statutory references are to the Family Code unless otherwise indicated.)
2
Had Schwartz moved to strike the brief, as she should have, the motion would
have been granted.
1
the Code of Civil Procedure, and all subsequent rulings of Judge Timothy P. Cissna are
therefore null and void; (2) the description of abuse set forth by Schwartz in her request
for a domestic violence restraining order was neither sworn to nor made under penalty of
perjury, and Schwartz was therefore not entitled to the relief she sought and obtained; (3)
the hearing conducted by Judge Cissna prior to granting Schwartz’s request for a
protective order took place after expiration of the time allowed by law and the order is
therefore invalid; and (4) the restraining order Judge Cissna granted is unsupported by
sufficient evidence.
As Spillard has not provided an adequate record upon which we can decide his
first, third, and fourth claims, we reject them on that ground. As the remaining claim is
meritless, we shall affirm the judgment.
PROCEEDINGS BELOW
The proceedings pertinent to this appeal were commenced on November 22, 2013,
when Schwartz filed a request for a protective order under the DVPA. (§ 6250 et seq.)
Schwartz asked the court to order that appellant not harass, attack, strike, threaten, or
assault her, her husband, and the child. Three days later, on November 25, Judge
Hinrichs issued a temporary restraining order granting the relief Schwartz requested. By
its own terms, that order expired on December 16, 2013, the date set for a hearing on
Schwartz’s motion for a domestic violence protective order.
About two years earlier, on December 8, 2011, appellant had filed an affidavit of
prejudice peremptorily challenging Judge Hinrichs under Code of Civil Procedure section
170.6. It appears that the only proceeding involving the parties that was then before the
trial court was the prior child custody and visitation proceeding.
On December 12, 2013, Spillard filed his response to Schwartz’s request for a
domestic violence restraining order.
As we later discuss in greater detail, the record does not establish whether the
December 16 hearing noticed by Judge Hinrichs took place, because the January 2, 2014
hearing is the only one shown by the record to have taken place after Judge Hinrich
issued her temporary restraining order.
2
The January 2, 2014 hearing, at which the parties and four other witnesses testified
was conducted by Judge Cissna. At the conclusion of the hearing Judge Cissna issued a
restraining order prohibiting appellant from harassing Schwartz and her husband in any
way, and directing him to stay at least 100 yards away from Schwartz and her husband at
their home, workplaces, vehicles, or at Schwartz’s school. (By agreement of the parties,
the child was not designated a protected person.) This is the order from which Spillard
timely appealed.3
FACTS
Due to the absence of a reporter’s transcript of any of the hearings that took place
in the trial court,4 the only facts we have regarding the request for a protective order are
those set forth by Schwartz in her Request for Domestic Violence Restraining Order and
those described by Spillard in his response to that request.
Schwartz’s statement is in material part as follows: “Mr. Spillard is a convicted
felon. He is extremely aggressive and threatening in virtually everything he does. We
were involved in a custody trial ending in May 2013, with review dates to check on his
compliance with the orders . . . .” Immediately after that proceeding ended, “Mr. Spillard
began harassing me with numerous text messages. I repeatedly asked him to stop texting
me after his first four texts. He ignored me and sent me 15 more texts. I texted him the
following message: ‘Please stop texting me.’ In response, he sent nine more texts,
threatening and harassing me. I then again texted him, asking him to stop, and he
3
On May 24, 2013, after conducting a hearing, Judge Cissna issued an order
finding that Spillard willfully disobeyed custody and visitation orders. Judge Cissna
sentenced Spillard to one day in county jail but stayed imposition of that sentence for a
period of one year on the condition Spillard obey all orders entered in the family law case
and all laws. This order is not before us.
4
In his notice designating the record on appeal, appellant checked the box
indicating he requested a reporter’s transcript. However, he did not check the boxes
indicating he had deposited the approximate cost of transcribing the designated
proceedings, or that the reporter waived the deposit; nor did he either attach a certified
transcript under rule 8.130(b)(3) of the California Rules of Court, or designate the
proceedings in the superior court to be included in the reporter’s transcript.
3
immediately sent two more texts threatening and harassing me. I texted him yet another
message: ‘Please stop texting me.’ He still continued to text me.
“On November 9, 2013, the harassing and threatening texts resumed. After two
harassing texts on November 9, 2013, I again asked Mr. Spillard, via text: ‘Please stop
harassing and threatening me.’ In response, he sent yet three more threatening and
harassing texts.
“With respect to his texts sent to me on November 7 and November 9, 2013, it is a
pattern of conduct that I have suffered with Mr. Spillard in the past. While our custody
case was pending, Mr. Spillard stated to me that he has people watching me and my
husband, our house and our business, and that, as a convict, he knows all sorts of people
who can hurt us, but he tells them to stay back. In his text on November 7, 2013, Mr.
Spillard threatened that he would stop holding these people back from harming my
husband, concluding: ‘You know I ain’t bullshitting.’
“Mr. Spillard has threatened to ruin me and my business. He has threatened to
burn my property, and has threatened to beat up my husband. In his texts on November
7, 2013, he again threatened my husband and then commented to the effect that he was
not afraid of going to jail because he could use the vacation, texting: ‘and jail. I could.
Use the vacation.’
“Mr. Spillard also makes threats to me and my husband on his Facebook page.
After his harassing and threatening messages to me on November 7, 2013, I checked his
Facebook page and found the following posting by Mr. Spillard for November 6, 2013
(the day before our last court appearance, when the harassing text messages started): A
poster with a fist, together with the inscription, ‘Keep Calm . . . And Throat Punch A
Fucker!’ Mr. Spillard’s comment above that poster was as follows:
‘evvvvvvvvvvvvvvvvvvvvan swarthes or whatever ur name is ass isssss
mmmmine.’ (Evan Schwartz is my husband) . . . .
“Mr. Spillard has engaged in such a continuous pattern of harassing and
intimidation that in January 2010 my son and I were enrolled in the California Safe at
Home, Confidential Address Program. . . .”
4
Copies of the numerous e-mails and Facebook page Schwartz referred to (which
comprise more than 100 pages in the clerk’s transcript) were received in evidence and are
a part of the record.
The form Response to Request for Domestic Violence Restraining Order filed by
Spillard on December 12, 2013, required him to set forth “specific facts and reasons”
explaining his disagreement with the protective orders requested. Referring to Schwartz
by her maiden name, Krebs, Spillard’s “specific facts and reasons” are as follows:
“Judge Hinrichs disqualified signed the order therefore it is void under CCP sec
170.6[.]
“Petitioner Krebs typed statement is not a declaration and is unsworn[.]
“Petitioner Krebs recitation of facts is perjurious[.]
“Petitioner Krebs suit for Domestic Violence Restraining Order is frivolous[.]
“Petitioner Krebs is attempting to perpetrate a fraud on the court[.]
“Under CCP sec. 170.6 the restraining order is a nullity[.]
“Petitioner Krebs as an actual abuser should be forced to attend batterer
intervention[.]
“Mediation should be ordered[.]
“Petitioner Krebs should be ordered under discovery to undergo mental
examination[.]”
DISCUSSION
1. The Record Does Not Establish That Judge Hinrichs’s Temporary Order
Rendered Judge Cissna’s Restraining Order Invalid
Spillard filed his affidavit of prejudice against Judge Hinrichs on December 8,
2011. The Humboldt County case number on the pleading is FL100538, which is the
same as the number of the present case. However, Spillard’s opening brief represents
that the “instant case from which this appeal is taken” is different from the custody and
visitation case, which he identifies as “Case No. CV100329.” His reply brief, which does
not consist of numbered pages, assigns still another case number to the custody case:
“Case No. CP140676” In any case, approximately two years later, on November 22,
2013, Schwartz filed her request for the domestic violence restraining order at issue here.
5
Three days later, on November 25, 2013, Judge Hinrich issued a form temporary
restraining order that, by its own terms, expired on December 16, 2013, at 8:30 a.m., the
date and time set for the hearing on the extended protective order Schwartz requested
under the DVPA. On the same date, Judge Hinrichs issued a form Child Custody and
Visitation Order specifying the times and places at which, until the December 16 hearing,
Spillard was authorized to visit the parties’ child and formal notice of the hearing on
December 16 regarding the protective order.
On December 30, Spillard moved to vacate Judge Hinrichs’s orders on the ground
she had been previously disqualified.
Several days later, on January 2, 2014, Judge Cissna struck the temporary order
signed by Judge Hinrichs, conducted a lengthy hearing on the merits of Schwartz’s
request for a protective order, and granted the order.
It is, for a variety of reasons, unclear whether Spillard has cause for complaint on
the ground of Code of Civil Procedure section 170.6. Among other things, the record
does not show whether Spillard’s effort to disqualify Judge Hinrichs was timely or when
and why she left the case, matters Spillard never discusses. Moreover, Judge Hinrichs’s
temporary order—which seems to have merely maintained the status quo and was not a
final determination of the parties’ rights—was promptly stricken, and the case was
promptly assigned to Judge Cissna. Nothing in the record suggests Judge Hinrichs
participated in any way in the DVPA proceedings that led to issuance of the challenged
protective order.
In any case, as earlier noted, on November 25, 2013, Judge Hinrichs issued a form
temporary restraining order that by its own terms expired on December 16, 2013, at
8:30 a.m., the date and time set for a hearing on the matter within the time period
specified by section 242. The record contains no transcript of a hearing on December 16,
2013, (if one took place) or of any other hearing conducted by the trial court, so we do
not know whether Judge Hinrichs agreed she was disqualified, recused herself, or left the
case for some other reason. Also, the briefs and record are silent as to whether any
distinction pertinent to Code of Civil Procedure section 170.6 can be made between the
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custody and visitation proceedings apparently before the court when Spillard sought to
disqualify Judge Hinrichs and the subsequent proceeding initiated by Schwartz under the
DVPA. (At the time Spillard challenged Judge Hinrichs, the DVPA proceeding had not
commenced.) Nor do we know how Spillard’s request to disqualify was treated, or why
the alleged invalidity of Judge Hinrichs’s order infects that issued by Judge Cissna, which
is the only order Spillard appeals from.
Spillard’s briefs, which only present facts favorable to him, merely reargue the
“facts” as he would have them.5 Such a presentation not only violates rule 8.204(a)(2)(C)
5
Perhaps the most coherent “Statement of Facts” Spillard provides in either of his
briefs is set forth in his unpaginated reply brief, which contains no citations to the record,
and is as follows:
“EVERETT SPILLARD II is in fact a convicted felon, having been confined in
Ohio for a failure to appear, during the time MEGAN KREBS was concocting to enroll in
the program California Safe at Home, Confidential Address Program in which she was
enrolled. This was a ploy as EVERETT SPILLARD II was incarcerated in Ohio at the
time and of no possible threat to her, nor has he ever presented a threat to her.
“It was in fact she (Megan Krebs) who was guilty of domestic violence on
multiple occasions as testified to [at unreported hearing] by percipient witness Gaylia
Wilson, KREBS having knocked out EVERETT SPILLARD II’s front teeth causing him
to wear a partial dental device.
“EVAN SCHWARTZ has consistently harassed EVERETT II and was barred
from being present at exchanges of the minor child by the FINDINGS AND ORDER
AFTER HEARING. He was ordered to attend counseling for ‘age appropriate step-
parent counseling,’ but no proof has been forthcoming that he did so. A subpoena is
currently outstanding to provide this proof.
“EVERETT II has filed a Civil Harassment Restraining Order against EVAN
SCHWARTZ over incidents that took place at the last custody exchange. Case No.
CP140676 on November 16, 2014. EVAN SCHWARTZ has consistently harassed and
antagonized EVERETT SPILLARD II attempting to incite physical violence, which
appellant has consistently resisted. EVERETT SPILLARD II has never been convicted
of any crime and allegations of his violent nature are unsubstantiated.
“No evidence of threats from other persons are presented to the court but simply
unsubstantiated allegations.
“EVERETT SPILLARD II never had a pattern of hostile or threatening actions to
Ms. Krebs who introduced no testimony to that fact.”
7
of the California Rules of Court, but disregards the most fundamental rules of appellate
review. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 365, pp. 421-423, and
§ 368, pp. 425-426.) The deficiencies in Spillard’s briefs are exacerbated by the
inadequacy of the record he presented.
“ ‘ “A judgment or order of the lower court is presumed correct. All intendments
and presumptions are indulged to support it on matters as to which the record is silent,
and error must be affirmatively shown. This is not only a general principle of appellate
practice but an ingredient of the constitutional doctrine of reversible error.” [Citation.]’
[Citations.] ‘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.’ [Citations.]” (Gee v. American Realty & Construction, Inc. (2002) 99
Cal. App. 4th 1412, 1416.) The record Spillard has presented, which as we have said
contains no reporter transcripts, does not provide a basis upon which we could
confidently determine the merits of Spillard’s assertion that, under Code of Civil
Procedure section 170.6, Judge Hinrichs’s issuance of a temporary and subsequently
stricken order voids the protective order later issued by Judge Cissna.
Accordingly, we reject Spillard’s request to invalidate the challenged protective
order.
2. The Descriptions of Abuse Required to Be Set Forth in a Request for a Domestic
Violence Restraining Order Are Not Required to Be Sworn or Made Under Penalty
of Perjury and, in any case, Spillard Was Not Prejudiced by Them
The description of abuses Schwartz attached to her request for a protective order,
most of which we earlier quoted, was required by Judicial Council Form No. DV-100.
Question No. 25, at page 5 of the form, requires the person requesting the protective
It bears noting that, as shown by the minute order, Schwartz and Spillard both
testified (and were cross-examined) at the hearing on January 2, 2014, as did four other
witnesses, including Schwartz’s husband and Gaylia Wilson. But the absence in the
record of a transcript of that hearing renders it impossible to know the nature of the
testimony received at that hearing, though it was undoubtedly crucial to the trial court’s
resolution of this case.
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order to describe how the person he or she seeks protection from “abused you or your
children.” The form states that an attachment may be used if the declarant requires more
space than the form provides. Schwartz used such an attachment. Nothing in the form
indicates that such an attachment need itself be sworn or issued under penalty of perjury,
but the signature line of the form is preceded by the statement that: “I declare under
penalty of perjury under the laws of California that the information above is true and
correct.” As the attachment was authorized by and essentially made a part of the form,
the declaration required by the form, which Schwartz made, applied as well to the
representations set forth by her in the attachment.
Spillard asserts that Schwartz’s attachment to the form request for a protective
order constitutes an “affidavit” and asks us to take judicial notice of the definition of
“affidavit” in Black’s Law Dictionary: “a written statement of facts voluntarily made by
an affiant under an oath or affirmation administered by a person authorized to do so
under law.” Because Black’s Law Dictionary is not a source of law, we decline to
judicially notice the definition.
Finally, the description of the abuse Schwartz set forth in the attachment to her
form request for a protective order lacks the significance Spillard ascribes to it. The far
more significant description is that Schwartz and her husband described under oath at the
January 2 hearing. The minute order relating to the hearing indicates that Spillard
subjected Schwartz to cross-examination and re-cross-examination. The minute order
also indicates that after Spillard’s testimony and that of the three witnesses who testified
on his behalf, Schwartz’s counsel recalled Schwartz to the stand and conducted redirect,
after which Spillard conducted re-cross. Spillard was provided ample opportunity to
examine Schwartz while she was under oath about the abuse she claimed to have suffered
at his hands.
3. Spillard Cannot Show That the Hearing Conducted by Judge Cissna Was Untimely
Spillard maintains that the hearing conducted by Judge Cissna on the merits of
Schwartz’s request for a protective order took place after expiration of the time allowed
by Code of Civil Procedure section 527.6, subdivision (g), which states that, “[w]ithin 21
9
days, or, if good cause appears to the court, 25 days from a date that a petition for the
temporary order is granted or denied, a hearing shall be held on the petition for an
injunction.” The hearing conducted by Judge Cissna was held 36 days after the
temporary protective order had been granted by Judge Hinrichs.
Section 527.6 of the Code of Civil Procedure—which is not a part of the DVPA—
is the general civil harassment statute that protects any person subject to “harassment”
and defines “harassment” differently from the DVPA. (Compare Code Civ. Proc.,
§ 527.6, subd. (b) & Fam. Code, §§ 6203, 6211, 6320.) Section 242 of the Family Code
prescribes time periods for hearings on domestic violence protective orders which are
similar to those prescribed in subdivision (g) of section 527.6 of the Code of Civil
Procedure, except that subdivision (b) of section 242 provides that if a hearing is not held
within the specified time period, “the court may nonetheless hear the matter, but the order
is unenforceable unless reissued,” as authorized by section 245.
As noted, the temporary order filed by Judge Hinrichs on November 25, 2013,
expired by its own terms “at the date and time of the hearing” set by the order, which was
December 16, 2013. December 16 is 21 days after the November 25 order, which is
within the time period prescribed by section 242. The problem is that the parties agree
that the hearing on Schwartz’s request for a domestic violence restraining order was held
on January 2, 2014,6 (beyond the period allowed by section 242) but the clerk’s transcript
provides no indication whether a hearing was held on December 16, at which the
temporary order could have been reissued, which would have extended the period
prescribed by section 242. (§ 245.)
In any event, considering that the December 16 hearing date noticed by Judge
Hinrichs’s November 25 order could not have been vacated, or her temporary restraining
order reissued, and the January 2 hearing could not have been set, as it must have been,
6
The clerk’s transcript indicates that the Judicial Council Form DV-130 granting a
“Restraining Order After Hearing (Order of Protection)” requested by Schwartz was
“RECEIVED” by the clerk of the Humboldt County Superior Court on January 3, 2014,
but not “FILED” with the clerk until January 6.
10
without a judicial order, the record, which contains no such order, is obviously deficient.
This deficiency leaves open at least two possibilities: that the temporary restraining order
may have been timely “reissued,” so that the 21- or 24-day period prescribed in section
242 was extended pursuant to section 245 or, alternatively, that the January 2, 2014
hearing was noticed on the basis of a judicial determination that failure to promptly issue
a domestic violence restraining order might jeopardize Schwartz’s safety or that of the
child. Under the Family Code, such an order may be issued after expiration of a prior
protective order made concomitantly with a custody or visitation order, as happened in
this case. (§ 6340, subd. (a).)
As we have explained, all intendments and presumptions are indulged to support
the judgment on matters as to which the record is silent. Error must be affirmatively
shown and where, as here, the record is inadequate for meaningful review, “ ‘the
appellant defaults and the decision of the trial court should be affirmed.’ [Citations.]”
(Gee v. American Realty & Construction, Inc., supra, 99 Cal.App.4th at p. 1416.)
Based once again on the presumption that that an order of the lower court is presumed
correct and cannot be rebutted except on the basis of error shown by the record, we are
compelled to reject Spillard’s claim. It is inconceivable that the hearing shown by the
record and agreed by the parties to have been held on January 2, 2014, could have been
held without being judicially noticed and ordered by the court, yet no such order is
contained in the record. Without the missing order, Spillard cannot affirmatively
establish that the January hearing impermissibly exceeded the time requirements
specified by section 242, even overlooking his failure to rely on the proper statute.
Spillard’s claim that the January 2, 2014 hearing was untimely and the protective
order that issued on that date is therefore unenforceable, must be rejected.
4. The Record Does Not Show the Restraining Order is Unsupported by Substantial
Evidence.
Spillard’s contention that the domestic violence restraining order is unsupported
by the evidence, and therefore unjust, is of course a factual claim. The factual basis of
the order granting the challenged protective order consists almost entirely of the
11
testimony at the July 2, 2013 hearing. Schwartz and her husband testified in support of
granting the protective order; Spillard and the three witnesses he presented, Douglas
Bragg, Benjamin Flores, and Gaylia Wilson, testified in opposition. 7 Spillard’s
inexplicable failure to provide the transcript of this hearing renders it impossible for us to
evaluate his claim that it provides no substantial evidence in support of the order; which
means we must reject the claim.
DISPOSITION
The judgment is affirmed.
7
The record does not indicate anything about Bragg and Flores other than their
names. The augmented record does include a two and a half page declaration of Gaylia
Wilson, who was for a period the “nanny” for the parties’ child, but given her testimony
at the January 2, 2014 hearing, there is no reason to think the trial court relied instead on
the short declaration.
12
_________________________
Kline, P. J.
We concur:
_________________________
Richman, J.
_________________________
Miller, J.
Schwartz v. Spillard (A141071)
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