Filed 9/12/19 Neumann v. Wirth 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sutter)

—-

RAQUEL NEUMANN,

Plaintiff and Respondent,

v.

MICHAEL WIRTH,

Defendant and Appellant.

C087254

(Super. Ct. No. CVDV180532)

Defendant Michael Wirth appeals in propia persona from the trial court’s order granting plaintiff Raquel Neumann’s request for a restraining order after hearing. On appeal, defendant contends the trial court erred in granting plaintiff’s request for a restraining order. We will affirm.

I. BACKGROUND

Following a hearing, the trial court entered a restraining order against defendant in plaintiff’s favor. Defendant filed a timely notice of appeal and a Proposed Statement on Appeal, listing a summary of evidence and the court’s purported findings. The court then issued an Order Concerning Appellant’s Proposed Statement on Appeal (the Order), which provided that corrections were needed to defendant’s summary of the evidence and the court’s findings. The court included a modified statement, which included the following findings: (1) Defendant walked and drove by plaintiff’s home on numerous occasions “for no reason other than to harass her”; (2) defendant sent plaintiff e-mails; (3) plaintiff was credible and defendant was not; (4) the communications defendant sent over the course of two months were not acceptable to plaintiff; (5) no credible evidence indicated that plaintiff had a propensity to lie; (6) defendant misinterpreted the court’s comment, “not much here,” which was not a conclusion but an effort to encourage plaintiff to expand on her testimony; and (7) “[t]he incident of [defendant] hiding in the bushes outside [plaintiff’s] residence was both significant and disturbing.”

II. DISCUSSION

There is a preliminary question of mootness. By its terms, the restraining order at issue expired March 26, 2019. Accordingly, we requested supplemental briefing from the parties on the issue of mootness. In his supplemental brief, defendant asserted that the restraining order could have material consequences for his future career prospects, his ability to be admitted to the California State Bar, and his ability to own firearms. Because the issuance of the restraining order could still have a material effect on defendant, we conclude that the issue presented in this appeal warrants review on the merits.

We review an order granting or denying a restraining order for abuse of discretion. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.) The factual findings necessary to support a civil harassment restraining order are reviewed for substantial evidence. (Harris v. Stampolis (2016) 248 Cal.App.4th 484, 497.) On appeal, we presume the trial court’s order to be correct and indulge all intendments and presumptions to support it regarding matters as to which the record is silent. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) An appellant bears the burden of overcoming the presumption of correctness by providing an adequate record that affirmatively demonstrates error. (See Defend Bayview Hunters Point Com. v. City and County of San Francisco (2008) 167 Cal.App.4th 846, 859-860.) Here, the record is inadequate to demonstrate error.

In the absence of a reporter’s transcript or other record of the trial court’s proceedings, the appeal is treated as an appeal on the judgment roll. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083.) While there is no reporter’s transcript in this case, the trial court did issue the Order, which summarized the court’s factual findings. On such an appeal, we conclusively presume there was sufficient evidence to support the trial court’s findings. (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.) Our review is necessarily “limited to determining whether any error ‘appears on the face of the record.’ [Citations.]” (Id. at pp. 324-325.) Here, the court made a number of factual findings in support of its order and attached several supporting documents. Defendant disputes these findings but cites only his own Proposed Statement on Appeal in support of his arguments, which the trial court expressly rejected when it issued the Order and corrected all of defendant’s assertions about the court’s findings. Without a reporter’s transcript demonstrating that the court’s factual findings as expressed in the Order were not supported by substantial evidence, we cannot conclude that any error appears on the face of the record. (See ibid.)

Further, defendant has failed in his duties to clearly state the issues on appeal, to make appropriate citations to the material facts in the record, and to make coherent legal arguments. (See Cal. Rules of Court, rule 8.204(a)(1)(B)-(C); see also People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2 [“We discuss those arguments that are sufficiently developed to be cognizable. To the extent [a party] perfunctorily asserts other claims, without development . . . , they are not properly made, and are rejected on that basis”].) Although defendant appears in this court without counsel, that does not entitle him to special treatment. (See, e.g., Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) “ ‘A litigant has a right to act as his own attorney [citation], “but, in so doing, should be restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts; otherwise, ignorance is unjustly rewarded.” ’ ” (Doran v. Dreyer (1956) 143 Cal.App.2d 289, 290.) Defendant presents no argument or authority demonstrating his claim of error. Indeed, he cites an irrelevant civil tort statute rather than the applicable statutory basis for the restraining order or any applicable case law. And while he concedes that this court “will not retry the facts established in the Superior Court and will address only legal mistakes made by the trial court,” he proceeds to list various complaints with the trial court’s factual findings and make factual assertions without citation to evidence in the record. It is unclear from his briefing what purported legal error defendant seeks to remedy. Thus, we must affirm the trial court’s order.

III. DISPOSITION

The order granting plaintiff’s request for a restraining order against defendant is affirmed. Defendant shall pay plaintiff’s costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/S/

RENNER, J.

We concur:

/S/

DUARTE, Acting P. J.

/S/

KRAUSE, J.