Filed 12/19/19 Espinoza v. Cortes 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

BAYRON ESPINOZA,

Plaintiff and Respondent,

v.

ARMANDO J. CORTES,

Defendant and Appellant.

A155719

(San Francisco County

Super. Ct. No. CCH16578513)

Defendant Armando J. Cortes appeals the entry of an elder abuse restraining order entered against him on September 14, 2018, after a hearing, prohibiting him from abusing his 66-year-old roommate, his roommate’s 72-year old-wife and their adult son, and requiring him to remain five feet away from those three people when at home in their shared apartment in San Francisco. No respondent’s brief has been filed.

Cortes’s very short brief, although not a model of clarity, contends that his roommates harassed him, falsely accused him of harassing them and lied about it to police (apparently, all in an effort to force him out of their shared apartment so they can occupy it for themselves). Construing the opening brief as a challenge to the sufficiency of the evidence to support the restraining order, we affirm the judgment.

First, the appellate record is inadequate for us to consider this or any other issue on appeal. The record consists solely of the register of actions, the restraining order and defendant’s notice of appeal. No hearing transcript has been included. Nor have any of the papers submitted in connection with the restraining order, including the plaintiff’s written application for a restraining order and the response Cortes filed on September 20, 2018. These deficiencies preclude us from considering Cortes’s appeal because we simply do not know what evidence was before the trial court. (See, e.g., Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [failure to include transcript of trial precludes review of error; “a party challenging a judgment has the burden of showing reversible error by an adequate record”].)

Second, as an appellate court our role is quite limited. We cannot reweigh the evidence or make determinations about the credibility of witnesses. (See Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 750.) That is the job of the trial court whose ruling we are required to presume is correct; an appellant must affirmatively show that the trial court committed an error, and one that so affected the outcome of the case that it was prejudicial. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Here, Cortes essentially is asking us to re-weigh the evidence on appeal which we cannot do. Furthermore, Cortes has not summarized any of the evidence and so we must “ ‘presume that the record contains evidence to sustain every finding of fact.’ ” (Togio v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)

DISPOSITION

The restraining order entered on September 14, 2018, is affirmed. Respondent shall recover his costs on appeal.

STEWART, J.

We concur.

KLINE, P.J.

RICHMAN, J.

Espinoza v. Cortes (A155719)