Klauber v. Marcus CA2/8

Filed 1/13/21 Klauber v. Marcus CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JOCELYN MONTALBO B300461
KLAUBER,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. 19STRO03589)
v.
MICHAEL P. MARCUS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of the County
of Los Angeles, Gary D. Roberts, Judge. Affirmed.
Michael P. Marcus, in pro. per., for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
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Michael P. Marcus appeals the permanent restraining
order granted in favor of Jocelyn Montalbo Klauber. He contends
the trial court violated his right to due process by failing to grant
a continuance of the hearing on Ms. Klauber’s petition. We
affirm, finding Mr. Marcus has forfeited his claim of error by
failing to comply with the basic rules of appellate procedure.
BACKGROUND
The record on appeal includes only the temporary
restraining order, the permanent restraining order, the notice of
appeal, the notice designating the record on appeal, and a
reporter’s transcript of the hearing on the petition. Omitted from
the record are the petition (which included numerous exhibits),
Mr. Marcus’s response (which also included evidence), as well as
Ms. Klauber’s supplemental filing (which included even more
evidence).
Without a complete record, we do not know everything that
happened in the trial court. As best we can tell, Ms. Klauber’s
boyfriend Darren Elliott and Mr. Marcus were roommates.
Mr. Marcus and Mr. Elliott were involved in some sort of physical
fight, resulting in a criminal case against Mr. Marcus. Also,
Mr. Elliott sought to terminate Mr. Marcus’s tenancy,
commencing an unlawful detainer action against him. It also
appears Mr. Elliott sought a civil harassment restraining order
against Mr. Marcus. In the context of these disputes, Mr. Marcus
engaged in severe and vulgar online harassment of Mr. Elliott.
Ms. Klauber became a target of Mr. Marcus’s online
harassment after she testified against him in the criminal case.
Mr. Marcus threatened to make her life a “living hell.”
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There was no dispute that the conduct constituted
harassment. The only question was whether the anonymous
online posts were made by Mr. Marcus.
At one point during the hearing on Ms. Klauber’s petition,
Mr. Marcus asked if he could have an “opportunity to bring in the
necessary documents disputing whatever it is that is said today.”
The court indicated that it would “deal with that after I hear
from [the witnesses] and see if that seems necessary.” The court
also reminded Mr. Marcus that he should have been prepared for
trial.
After Mr. Elliott testified, Mr. Marcus said he would like to
obtain transcripts of the hearing on the civil harassment
restraining order sought by Mr. Elliott to demonstrate online
“postings” were not considered by the judge in that proceeding.
The trial court acknowledged that the harassment
proceedings related to an assault on Mr. Elliott and not online
harassment. Therefore, the court concluded the transcripts were
irrelevant to the current proceedings.
The trial court granted the request for a permanent
restraining order.
DISCUSSION
Mr. Marcus complains that he was entitled to a
continuance as a matter of right. Alternatively, he contends he
should have been granted a continuance in the court’s
discretion to obtain additional evidence.
A judgment is reversible only if any error or irregularity
in the underlying proceeding was prejudicial. (Cal. Const.,
art. VI, § 13; Code Civ. Proc., § 475.) Therefore, any error in
failing to grant a request for a continuance is reversible only if
it denied the appellant a fair hearing. (See Freeman v.
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Sullivant (2011) 192 Cal.App.4th 523, 527–528; see also Cohen
v. Herbert (1960) 186 Cal.App.2d 488, 493–494; Ross v.
Figueroa (2006) 139 Cal.App.4th 856, 865.) We will not
presume prejudice. (Code Civ. Proc., § 475.) Instead, the
burden to demonstrate prejudice falls squarely on the
appellant. (Arnett v. Nall (1921) 51 Cal.App. 194, 195.)
Mr. Marcus does not explain how he was prejudiced by
the court’s failure to grant him a continuance. He does not tell
us what evidence he was prevented from presenting to the trial
court, or how this evidence would have benefitted him or
changed the outcome of the proceedings. We do not think the
transcripts of another proceeding involving conduct completely
different from that alleged in this case would have been
relevant or would have changed the outcome here. (Foust v.
San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181,
186–187; Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032,
1039; Mountain Lion Coalition v. Fish & Game Com. (1989)
214 Cal.App.3d 1043, 1051, fn. 9 [“[I]f the record is inadequate
for meaningful review, the appellant defaults and the decision
of the trial court should be affirmed.”].)
DISPOSITION
The order is affirmed. No costs are awarded.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J. STRATTON, J.
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