Filed 4/14/20 Marriage of von Mueller & Musleh CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE
In re the Marriage of VON MUELLER and MUSLEH. B293005
ALEXI VON MUELLER,

Respondent,

v.

AKRAM MUSLEH,

Appellant. Los Angeles County

Super. Ct. No. SD027807

APPEAL from an order of the Superior Court of Los Angeles County, Amy M. Pellman, Judge. Affirmed.

Akram Musleh, in pro. per., for Appellant.

Law Office of Richard Scott Lysle and Richard Scott Lysle for Respondent.

_______________________________________

INTRODUCTION

This is an appeal from an order finding appellant Akram Musleh (appellant) to be a vexatious litigant. Appellant contends the order is not supported by substantial evidence. Because appellant failed to provide this court with a transcript of the hearing at which the court received evidence on the vexatious litigant motion or an appropriate substitute, we are unable to evaluate the merit, if any, of his challenge to the court’s order. Accordingly, we affirm the order.

FACTS AND PROCEDURAL BACKGROUND

This is a family law matter initiated in 2009 by appellant’s ex-wife, respondent Alexi von Mueller (respondent). As the facts and circumstances of this protracted litigation are well known to the parties, we do not summarize them.

As pertinent here, respondent filed a motion to declare appellant a vexatious litigant in mid-2018. Appellant opposed the motion. The court held a contested hearing on the matter, at which both appellant and respondent offered sworn testimony. The court granted the motion and entered a Prefiling Order-Vexatious Litigant (MC-700) on August 29, 2018.

Appellant timely appealed from the court’s order.

DISCUSSION

Appellant contends the court’s order on the vexatious litigant motion is not supported by substantial evidence. But because appellant has not provided a reporter’s transcript or suitable summary of the evidence presented in support of and in opposition to the motion, we cannot reach the merits of his argument. We conclude appellant failed to carry his burden to establish prejudicial error and affirm the court’s order.

The most fundamental rule of appellate review is that the judgment or order challenged on appeal is presumed to be correct, and “it is the appellant’s burden to affirmatively demonstrate error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) “ ‘All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Failure to provide an adequate record requires that the issue be resolved against the appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; see Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1362.)

“In numerous situations, appellate courts have refused to reach the merits of an appellant’s claims because no reporter’s transcript of a pertinent proceeding or a suitable substitute was provided. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295–1296 [attorney fee motion hearing]; Ballard v. Uribe (1986) 41 Cal.3d 564, 574–575 (lead opn. of Grodin, J.) [new trial motion hearing]; In re Kathy P. (1979) 25 Cal.3d 91, 102 [hearing to determine whether counsel was waived and the minor consented to informal adjudication]; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447 [trial transcript when attorney fees sought]; Estate of Fain (1999) 75 Cal.App.4th 973, 992 [surcharge hearing]; Hodges v. Mark (1996) 49 Cal.App.4th 651, 657 [nonsuit motion where trial transcript not provided]; Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532, [reporter’s transcript fails to reflect content of special instructions]; Buckhart v. San Francisco Residential Rent etc., Bd. (1988) 197 Cal.App.3d 1032, 1036 [hearing on Code Civ. Proc., § 1094.5 petition]; Sui v. Landi (1985) 163 Cal.App.3d 383, 385–386 [motion to dissolve preliminary injunction hearing]; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 713–714 [demurrer hearing]; Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 71–73 [transcript of argument to the jury]; Ehman v. Moore (1963) 221 Cal.App.2d 460, 462 [failure to secure reporter’s transcript or settled statement].)” (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186–187.) This is such a case.

As noted, the court heard testimony from both appellant and respondent in connection with the motion to find appellant a vexatious litigant. Here, appellant argues he does not qualify as a vexatious litigant within the meaning of Code of Civil Procedure section 391, subdivision (b). We are unable to evaluate this argument, however, because appellant failed to provide this court with a record or a summary of the evidence presented to the trial court. (See Cal. Rules of Court, rules 8.130 [reporter’s transcript], 8.134 [agreed statement], 8.137 [settled statement].) And the materials included in the clerk’s transcript do not provide any insight into the evidence presented to the court—evidence upon which the court undoubtedly based its ruling. Appellant has therefore failed to establish any error committed by the court.

DISPOSITION

The order is affirmed. Respondent Alexi von Muller shall recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

DHANIDINA, J.