Filed 12/28/23 J.C. v. N.H. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
J.C.,
Plaintiff and Respondent, C094889
v. (Super. Ct. No. 21DV00768)
N.H.,
Defendant and Appellant.
The trial court granted J.C. a three-year domestic violence restraining order
against N.H., a man she dated for about four months. It dismissed N.H.’s requests for a
restraining order against J.C. because N.H. left the trial before presenting evidence on the
requests.
N.H. appeals and represents himself in this court. To the extent his appellate
contentions are not set forth under a separate heading or subheading, or are not supported
by argument and citations to the record or authority, as required by the appellate rules of
court, we do not consider them. (Cal. Rules of Court, rule 8.204(a)(1)(B); Opdyk v.
California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4; Nwosu v. Uba
(2004) 122 Cal.App.4th 1229, 1246-1247 (Nwosu).)
1
It appears N.H. now contends (1) the trial court should have granted his request for
a continuance; (2) the trial court erred in finding he was a stalker and in ordering him to
participate in therapy; (3) with regard to a May 7, 2021 hearing, the trial court should
have sanctioned J.C. for recording the hearing and being coached, and it should have
ruled on his motion; (4) with regard to a July 6, 2021 hearing, the trial court should have
sanctioned J.C. for her failure to appear, and it should not have continued the hearing;
and (5) this court should make factual determinations pursuant to Code of Civil
Procedure section 909.1
1 N.H. filed a December 27, 2022 request for judicial notice, asking this Court to take
judicial notice of exhibits O [asserting that no California superior court has ever denied
a request for a restraining order in a Domestic Violence Prevention Act case where
the parties are unrepresented, the defendant is a man, and the plaintiff is a woman];
P [asserting that no California appellate court has ever reversed a Domestic Violence
Prevention Act order in a case where the parties are unrepresented, the defendant is a
man, and the plaintiff is a woman]; Q [asserting that Judge John Winn failed to notify
the parties of the results of a criminal history search, as required under Family Code
section 6306, and that N.H. had domestic violence restraining orders issued in his favor
in two cases in 2016]; and R [Code of Civil Procedure section 909]. There is no
document attached to exhibit O. The documents attached to exhibits P and Q do not
show the facts of which N.H. asks this Court to take notice.
N.H.’s request that we take judicial notice of Code of Civil Procedure section 909 is
granted. (Evid. Code, § 451, subd. (a).) The request for judicial notice of exhibits O, P
and Q is denied. N.H. does not show that the matters in exhibits O, P or Q are matters of
which this court is required to take judicial notice under Evidence Code section 451 or
453, or are matters of which this court may take judicial notice under Evidence Code
section 452. (Evid. Code, § 459.) To the extent N.H. seeks notice under Evidence Code
section 452, subdivision (h), he does not provide information sufficient to show that the
facts of which he seeks judicial notice are not reasonably subject to dispute and are
capable of immediate and accurate determination by resort to sources of reasonably
indisputable accuracy. (§ 452, subd. (h); Duronslet v. Kamps (2012) 203 Cal.App.4th
717, 737.) In addition, N.H. did not attach a copy of the matter to be noticed to his
motion or explain why it was not practicable to do so. (Cal. Rules of Court, 8.252(a)(3).)
2
N.H.’s first four contentions fail because the appellate record is inadequate to
permit meaningful review and/or N.H. does not support his assertions. As for his request
that we make factual determinations, he does not establish that such determinations are
warranted. Accordingly, we will affirm the trial court’s order.
BACKGROUND
After dating for about four months, J.C. ended her relationship with N.H. J.C.
subsequently filed a request for a domestic violence restraining order against N.H., and
N.H. filed requests for a restraining order against J.C. The matters were tried together.
J.C. appeared in person at the trial. N.H. appeared by Zoom. The trial court did
not credit N.H.’s assertion that he was too ill to proceed, and it denied his request to
continue the trial. J.C. and N.H. testified. N.H. became upset during his testimony and
left the trial before it concluded.
The trial court made the following findings: J.C. clearly indicated to N.H. that
their relationship was over on December 12, 2020. Nevertheless, N.H. sent 50 gifts to
J.C.’s house after December 12, 2020, and appeared at J.C.’s house unannounced on
December 19, 2020. Law enforcement went to N.H.’s home on February 18, 2021, in
response to a call from J.C. In addition, N.H. visited the graves of J.C.’s parents in
Illinois and sent J.C. photographs of the graves, causing J.C. to be upset and scared and to
file a request for a domestic violence restraining order. N.H. admitted virtually all of the
allegations by J.C. at the trial. His defense was that J.C. did not clearly indicate that their
relationship was over and N.H. wanted J.C. to tell him why she ended their relationship.
The trial court found J.C. credible. It determined that N.H.’s conduct constituted a
disturbance of J.C.’s peace under Family Code section 6203, and stalking under Penal
Code section 646.9. It granted J.C. a three-year restraining order and required N.H. to
complete individual therapy. It dismissed N.H.’s requests for a restraining order against
J.C. because N.H. left the trial before presenting evidence on the requests.
3
Additional background is set forth in the discussion as relevant to the contentions
on appeal.
DISCUSSION
I
N.H. contends the trial court should have granted his request for a continuance.
He says he was violently ill on the day of the trial.
It is a fundamental principle of appellate procedure that the trial court’s order is
presumed to be correct and the appellant must affirmatively demonstrate error on the
basis of the record presented to the appellate court. (Jameson v. Desta (2018) 5 Cal.5th
594, 608-609.) The appellant has the burden of providing an adequate record. (Id. at p.
609.) We will affirm the trial court’s decision if the record is inadequate for meaningful
review. (Ibid.) A proper record includes a reporter’s transcript or a settled statement of
the hearing leading to the challenged order. (Elena S. v. Kroutik (2016) 247 Cal.App.4th
570, 574.) A self-represented litigant is not excused from complying with these rules.
(Ibid.; Nwosu, supra, 122 Cal.App.4th at pp. 1246-1247.)
N.H. says Judge Bunmi Awoniyi and Judge John Winn erroneously denied his
requests for a “one week medically documented emergency continuance” of the trial. We
review the denial of a motion for continuance for abuse of discretion. (Reales
Investment, LLC v. Johnson (2020) 55 Cal.App.5th 463, 468.) We will not disturb the
trial court’s exercise of discretion when there is no record explaining the trial court’s
reasoning. (Rhule v. WaveFront Technology, Inc. (2017) 8 Cal.App.5th 1223, 1229
(Rhule); Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259 (Wagner).) There is no
reporter’s transcript or settled statement of the proceedings before Judge Awoniyi and
Judge Winn in the record on appeal. There is also nothing in the record supporting
N.H.’s claim that he was too ill to proceed with the trial or that he had medical
documentation of an illness. The lack of an adequate record precludes appellate review
of N.H.’s claim.
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II
N.H. next argues the trial court erred in finding he was a stalker and in ordering
him to participate in therapy.
The domestic violence restraining order the trial court issued on July 8, 2021,
included an order that N.H. participate in “counseling to address domestic violence and
interpersonal relationships with a focus on stalking behavior.” The order does not state
whether the counseling requirement was based on Family Code section 6343 as N.H.
contends.2 However, assuming the order is based on Family Code section 6343, an order
to participate in a batterer’s program under that statute is discretionary (Fam. Code,
§§ 2047, 6343), and we will not disturb the trial court’s exercise of discretion when there
is no record explaining the trial court’s reasoning. (Rhule, supra, 8 Cal.App.5th at p.
1229; Wagner, supra, 162 Cal.App.4th at p. 259.)
Here, there is no reporter’s transcript or settled statement of the trial. The absence
of such record also precludes us from addressing N.H.’s assertions that J.C. acted with
unclean hands or that the trial court erroneously found that N.H. was a stalker. (Foust v.
San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 185-188 [rejecting
challenge to trial court findings where there was no reporter’s transcript of the trial or any
other statement of the evidence].)
N.H. suggests the trial court would not allow him to rejoin the trial by Zoom after
N.H.’s phone battery died. But there is no support for the assertion in the appellate
record. (Oldenkott v. American Electric, Inc. (1971) 14 Cal.App.3d 198, 207 (Oldenkott)
[no support in the record].)
2 The statutory provision N.H. quotes in his appellate brief is Family Code section 6343,
not 6343.5.
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III
N.H. further argues that with regard to a May 7, 2021 hearing, the trial court
should have sanctioned J.C. for recording the hearing and being coached, and it should
have ruled on his motion.
A hearing on J.C.’s request for a restraining order against N.H. was held by Zoom
before Commissioner Kimberly Parker on May 7, 2021. J.C. appeared by video. N.H.
appeared by phone.
Commissioner Parker asked J.C. whether she was recording the proceeding with
her phone. J.C. said no. When J.C. explained she had a process server on her phone,
Commissioner Parker directed J.C. to give the process server instructions for connecting
to the hearing by Zoom but, after N.H. said he accepted service of J.C.’s request for a
restraining order, Commissioner Parker informed J.C. the court no longer needed to hear
from the process server.
Commissioner Parker did not make a finding that J.C. was recording the hearing
or that the process server or anyone else was coaching J.C., and N.H. did not raise any
such concern at the hearing. Because the record does not support N.H.’s factual
assertions that J.C. recorded the May 7, 2021 hearing or that someone was coaching J.C.,
N.H.’s contentions lack merit. (Oldenkott, supra, 14 Cal.App.3d at p. 207.)
N.H. also contends Commissioner Parker should have ruled on his motion “to
quash Service of Process and subject matter jurisdiction and other items” on May 7,
2021, rather than continuing the hearing on the motion for two months. However, the
reporter’s transcript for the May 7, 2021 hearing does not show that the trial court
continued the hearing on N.H.’s motion. N.H. stated at the May 7, 2021 hearing that his
motion was set to be heard on June 15, 2021. His appellate brief states the motion was
scheduled for May 13, 2021. We cannot determine, on this record, that the trial court
should have ruled on N.H.’s motion on May 7, 2021. N.H.’s contention lacks merit.
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IV
N.H. also argues that with regard to a July 6, 2021 hearing, the trial court should
have sanctioned J.C. for her failure to appear, and it should not have continued the
hearing.
A hearing was held before Commissioner Parker on July 6, 2021. N.H. appeared
at the hearing. J.C. did not make an appearance. There is no indication in the record that
the trial court continued the hearing for two months, as N.H. asserts.
N.H. stated at the hearing that he believed the July 6 hearing had been set to
address his motions. Commissioner Parker did not agree or disagree, however, and the
record does not inform us of the purpose of the July 6 hearing. Nor does the record show
whether J.C. received notice of the hearing as N.H. appears to allege. We reject N.H.’s
contentions because he did not provide a record that permits meaningful review of his
appellate claims.
V
In addition, N.H. asks this court to make factual determinations pursuant to Code
of Civil Procedure section 909. He wants us to independently review the requests for
restraining orders that he and J.C. filed in the trial court and also the motions he filed in
that court.
Code of Civil Procedure section 909 authorizes a reviewing court to make factual
determinations contrary to or in addition to those made by the trial court in non-jury
cases. Our courts have construed the statute as applicable only in exceptional
circumstances. (In re Zeth S. (2003) 31 Cal.4th 396, 405; Tyrone v. Kelley (1973)
9 Cal.3d 1, 13.) As the California Supreme Court explained in Tupman v. Haberkern
(1929) 208 Cal. 256, Code of Civil Procedure section 909 “was not intended to convert
the appellate tribunals of this state into triers of fact . . . .” (Tupman, at pp. 269-270
[construing predecessor statute to Code of Civil Procedure section 909].) And it is
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particularly rare to make such findings in support of a reversal. (Tupman, at p. 270; see
Monsan Homes, Inc. v. Pogrebneak (1989) 210 Cal.App.3d 826, 830.)
N.H. does not establish that the exceptional circumstances for application of Code
of Civil Procedure section 909 are present here. And he has not shown that if we were to
make independent findings on appeal, a judgment would necessarily be entered in his
favor. We decline to make independent findings in this case.
DISPOSITION
The order of the trial court is affirmed.
/S/
MAURO, Acting P. J.
We concur:
/S/
RENNER, J.
/S/
WISEMAN, J.*
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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