Filed 1/11/24 Lopez v. Valdez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ARTHUR LOPEZ, B324256
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 22STRO05463)
ROBERT VALDEZ,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Patricia A. Young, Judge. Affirmed.
Arthur Lopez, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
_________________
FACTUAL AND PROCEDURAL BACKGROUND
Arthur Lopez, representing himself, appeals from an order
denying his petition for a civil harassment restraining order
against his ex-wife Cheryl Lopez’s “associate” Robert Valdez, who
Lopez claimed in his petition is involved in drug trafficking,
prostitution, and other criminal activities. In his petition Lopez
alleged that on May 14, 2022 Valdez, having been served with a
subpoena in another (apparently related) case, “became violent
and proceeded to assault [Lopez] with repeated threats of bodily
harm and pursued [Lopez] as part of his assault,” even though
Lopez “was standing over a block away on a public sidewalk.”
Lopez further alleged Valdez followed up the assault with written
threats to rape and injure Lopez. Attached to Lopez’s petition
were several text messages containing threats to do bodily harm
to Lopez. Lopez also alleged Valdez was involved in repossessing
cars, colluded with Cheryl Lopez “to withhold” Lopez’s car from
him, was evading service, and gave false testimony in an Orange
County Superior Court case.
The trial court, after finding Valdez was evading service,
granted Lopez’s request to serve Valdez by mail and continued
the hearing on the petition. A month later, Lopez (remotely) and
Valdez (in person) appeared at the continued hearing. The
proceedings were transcribed by a court reporter. The court’s
minute order states that both parties testified and that the court
received into evidence text messages submitted by Valdez. The
order states: “The Court finds the party requesting the order of
protection did not sustain the applicable burden of proof and
accordingly the request is denied. Any temporary restraining
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order earlier issued[1] is hereby dissolved. [¶] The case is ordered
dismissed with prejudice.” Lopez timely appealed.
In his designation of the record on appeal, however, Lopez
checked the box stating he was choosing to proceed without a
reporter’s transcript of what was said at the hearing in the
superior court. Lopez checked the box stating: “I understand
that without a record of the oral proceedings in the superior
court, the Court of Appeal will not be able to consider what was
said during those proceedings in deciding whether an error was
made in the superior court proceedings.”
DISCUSSION
Lopez sought a restraining order against Valdez under
Code of Civil Procedure section 527.6, which “was enacted ‘to
protect the individual’s right to pursue safety, happiness and
privacy as guaranteed by the California Constitution.’
[Citations.] It does so by providing expedited injunctive relief to
victims of harassment.” (Brekke v. Wills (2005) 125 Cal.App.4th
1400, 1412; see Duronslet v. Kamps (2012) 203 Cal.App.4th 717,
724.) Section 527.6, subdivision (a)(1), provides a “person who
has suffered harassment . . . may seek a temporary restraining
order and an order after hearing prohibiting harassment as
provided in this section.” If the court finds “by clear and
convincing evidence that unlawful harassment exists, an order
shall issue prohibiting the harassment.” (§ 527.6, subd. (i).)
“The elements of unlawful harassment, as defined by the
language in [Code of Civil Procedure] section 527.6, are as
follows: (1) ‘a knowing and willful course of conduct’ entailing a
1 There was no earlier-issued temporary restraining order.
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‘pattern’ of ‘a series of acts over a period of time, however short,
evidencing a continuity of purpose’; (2) ‘directed at a specific
person’; (3) ‘which seriously alarms, annoys, or harasses the
person’; (4) ‘which serves no legitimate purpose’; (5) which ‘would
cause a reasonable person to suffer substantial emotional
distress’ and ‘actually cause[s] substantial emotional distress to
the plaintiff’; and (6) which is not a ‘[c]onstitutionally protected
activity.’” (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.)
A course of conduct under section 527.6 includes “following or
stalking an individual, making harassing telephone calls to an
individual, or sending harassing correspondence to an individual
by any means, including, but not limited to, the use of public or
private mails, interoffice mail, facsimile, or email.” (§ 527.6,
subd. (b)(1); see Harris v. Stampolis (2016) 248 Cal.App.4th 484,
497.) “‘The quick, injunctive relief provided by section 527.6 “lies
only to prevent threatened injury”—that is, future wrongs’—and
‘is not intended to punish the restrained party for past acts of
harassment.’” (Olson v. Doe (2022) 12 Cal.5th 669, 678.)
Where the defendant appeals from an order granting a civil
harassment restraining order, we review the trial court’s findings
for substantial evidence and the court’s ultimate ruling for abuse
of discretion. (Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219,
1226, disapproved on another ground in Conservatorship of O.B.
(2020) 9 Cal.5th 989, 1003, fn. 4; Harris v. Stampolis, supra,
248 Cal.App.4th at p. 497; R.D. v. P.M. (2011) 202 Cal.App.4th
181, 188.) We “‘resolve all conflicts in the evidence in favor of . . .
the prevailing party, and indulge all legitimate and reasonable
inferences in favor of upholding the trial court’s findings.’”
(Parisi, at p. 1226; see Reynauld v. Technicolor Creative Services
USA, Inc. (2020) 46 Cal.App.5th 1007, 1015; Maaso v. Signer
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(2012) 203 Cal.App.4th 362, 371; see also Conservatorship of
O.B., at p. 1005 [“when presented with a challenge to the
sufficiency of the evidence associated with a finding requiring
clear and convincing evidence, the court must determine whether
the record, viewed as a whole, contains substantial evidence from
which a reasonable trier of fact could have made the finding of
high probability demanded by this standard of proof”].)
Where the plaintiff appeals from an order denying a
request for restraining order, however, the standard of review is
different. “The party seeking a restraining order bears the
burden of establishing the circumstances justifying the order.
[Citation.] ‘“In the case where the trier of fact has expressly or
implicitly concluded that the party with the burden of proof did
not carry the burden and that party appeals, it is misleading to
characterize the failure-of-proof issue as whether substantial
evidence supports the judgment. . . . [Instead] the question for a
reviewing court becomes whether the evidence compels a finding
in favor of the appellant as a matter of law . . . .”’” (Jan F. v.
Natalie F. (2023) 96 Cal.App.5th 583, 593.) Where, as here “the
issue on appeal turns on a failure of proof at trial,” the question is
“whether the appellant’s evidence was (1) uncontradicted and
unimpeached and (2) of such a character and weight as to leave
no room for a judicial determination that it was insufficient to
support a finding.” (SwiftAir, LLC v. Southwest Airlines Co.
(2022) 77 Cal.App.5th 46, 59, internal quotation marks and
citations omitted.)
Lopez cannot show that the evidence is uncontradicted and
unimpeached or that it compels a finding in his favor as a matter
of law because there is not an adequate record of what happened
at the trial. Though Lopez signed his declaration in support of
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the petition under penalty of perjury, there is nothing in the
record indicating the court received it into evidence or otherwise
considered it. The court’s order refers only to the parties’ sworn
testimony at the trial. As stated, Lopez chose to proceed with
this appeal without a reporter’s transcript of the trial. Without a
reporter’s transcript (or a settled statement describing what the
testimony was), Lopez cannot show, and we have no way of
evaluating whether, the testimony of the parties and whatever
text messages were introduced into evidence2 compel a finding
Lopez was entitled to a restraining order as a matter of law. As
the Supreme Court has explained, the “lack of a verbatim record
of such proceedings will frequently be fatal to a litigant’s ability
to have his or her claims of trial court error resolved on the
merits by an appellate court. This is so because it is a
fundamental principle of appellate procedure that a trial court
judgment is ordinarily presumed to be correct and the burden is
on an appellant to demonstrate, on the basis of the record
presented to the appellate court, that the trial court committed
an error that justifies reversal of the judgment.” (Jameson v.
Desta (2018) 5 Cal.5th 594, 608-609.) And where, as here, “‘“the
record is inadequate for meaningful review, the appellant
defaults and the decision of the trial court should be affirmed.”’”
(Id. at p. 609; see Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [by
failing to provide a reporter’s transcript or a settled statement,
the appellant could not meet his burden of showing prejudicial
error].)
2 As stated, the trial court’s order said Valdez introduced a
group of text messages as an exhibit. It is unclear whether
anyone introduced into evidence the text messages Lopez
attached to his petition.
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In his opening brief, Lopez repeats the allegations in his
petition, including his claim Valdez threatened him on May 14,
2022. Lopez also repeats his allegations Valdez sent him
threatening text messages, was involved in prostitution and
sex trafficking, evaded service of process, and perjured himself in
a family law case, all of which, Lopez argues, entitled him to a
restraining order under Code of Civil Procedure section 527.6.
Lopez, however, has not cited any evidence in the clerk’s
transcript (the only record there is), thus forfeiting the argument
on appeal. (See L.O. v. Kilrain (2023) 96 Cal.App.5th 616, 629
[appellant forfeited challenge to civil harassment restraining
orders by failing “to appropriately cite the record” and “failing to
set forth the evidence offered to support those orders”]; Alki
Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574,
589 [“An appellant who fails to cite accurately to the record
forfeits the issue or argument on appeal that is presented without
the record reference.”].) Although whenever possible we will not
strictly apply technical rules of procedure in a manner that
deprives a self-represented litigant of a hearing, we nevertheless
must apply the procedural and substantive principles and rules
of appellate review to a self-represented litigant’s arguments on
appeal, just as we would to arguments by litigants represented by
attorneys. (See In re Marriage of Furie (2017) 16 Cal.App.5th
816, 824; Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401,
1413-1414.)
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DISPOSITION
Lopez’s motion to augment is denied. Lopez’s oral motion
for judicial notice is denied. The order denying Lopez’s petition
for a restraining order is affirmed.
SEGAL, Acting P. J.
We concur:
FEUER, P. J.
EVENSON, J.*
* Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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