Filed 6/23/20 Evans v. Bolfik CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

NORMA J. EVANS

Plaintiff and Respondent,

v.

DAVID R. BOLFIK et al.,

Defendants and Appellants.

E072331

(Super.Ct.Nos. PRIN 1900097 & 1900106)

OPINION

APPEAL from the Superior Court of Riverside County. Thomas H. Cahraman, Judge. Affirmed.

David R. Bolfik and Sarah F. Bolfik, in pro per., for Defendants and Appellants.

Norma Evans, in pro per., for Plaintiff and Respondent.

This case is part of what appears to be a dispute between neighbors, which the parties have allowed to get out of hand. Absent any willingness to compromise on either side, the parties sought protective orders against each other. This appeal involves an elder abuse order restraining Sarah and David Bolfik from abusing, contacting, or going near their neighbor, petitioner Norma Evans. The Bolfiks appeal from the protective order. Because the record contains no transcript of the hearing, the Bolfiks cannot meet their burden of establishing the trial court erred.

We therefore affirm the orders.

I

FACTS

After a hearing on February 20, 2019, the trial court issued two elder abuse orders restraining David Bolfik, 64 years old, and Sarah Bolfik, 70 years old, from contact with petitioner Norma Evans.

The orders directed the Bolfiks to refrain from contacting or abusing Evans. They specify the Bolfiks are to stay at least four yards away from Evans, her home, and her vehicle when she’s at her residence and at least 100 yards away when she’s not at home. Because Evans and the Bolfiks are next door neighbors, the order makes clear the Bolfiks “may have free access and movement on [their] own premises.” The orders also specify the identity of Evans’s two animal companions and direct the Bolfiks to stay four yards away from the animals. Finally, because the order did not concern financial abuse only, it directed the Bolfiks not to own, possess, buy, receive, or try to receive guns and ammunition. The order expires at midnight on February 20, 2022.

The trial court held a hearing before issuing the protective orders. The parties agree in their briefs that Norma Evans was late for the hearing, she says because she was not notified that the hearing had been transferred to the Riverside Superior Court. The court continued the morning hearing until the afternoon to allow her to appear.

Evans and the Bolfiks were present at the hearing, which commenced at 1:45 p.m. According to the minute orders, Norma Evans and her son, Robert Steven Evans, testified and the trial court took judicial notice of seven other cases, which Evans identifies in her briefs in this court as litigation the Bolfiks had initiated seeking protective orders against other neighbors.

Sarah and David Bolfik also testified, and the court accepted two photographs, designated Exhibits A and B, as evidence. The Bolfiks claim in their briefs that they had brought a witness, but the trial court didn’t allow him to testify. Evans says the witness left and refused to testify on his own.

The Bolfiks elected to pursue their appeal without a record of the trial court proceedings. They also failed to designate Evans’s petitions as part of the record on appeal. As a result, our ability to describe either the parties’ disputes or the state of the evidence before the trial court is extremely limited.

II

ANALYSIS

On appeal, the Bolfiks argue the trial court erred in issuing the restraining orders. Among other things, they say there was no basis for an order, accuse Evans of lying to the court, and claim they were the ones who were victims of elder abuse. They also make unsubstantiated claims of trial court bias. We conclude we must affirm the order due to the lack of an adequate record for review.

The trial court issued the restraining orders in this case under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq., unlabeled statutory citations refer to this code). The act authorizes the trial court to issue a restraining order to prevent a recurrence of abuse, if a declaration shows, to the court’s satisfaction, “reasonable proof of a past act or acts of abuse of the petitioning elder.” (§15657.03, subd. (c).) The act defines “[a]buse of an elder” to include “mental suffering.” (§ 15610.07, subd. (a).) “‘Mental suffering’ means fear, agitation, confusion, severe depression, or other forms of serious emotional distress that is brought about by forms of intimidating behavior, threats, harassment, or by deceptive acts performed or false or misleading statements made with malicious intent to agitate, confuse, frighten, or cause severe depression or serious emotional distress of the elder.” (§ 15610.53.)

We review the issuance of an elder abuse protective order for abuse of discretion. (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 135.) “‘A trial court abuses its discretion when its decision exceeds the bounds of reason by being arbitrary, capricious or patently absurd. [Citation.] In determining whether there has been such an abuse, we cannot reweigh evidence or pass upon witness credibility. The trial court is the sole arbiter of such conflicts. Our role is to interpret the facts and to make all reasonable inferences in support of the order issued.’” (People ex rel. Harris v. Black Hawk Tobacco, Inc. (2011) 197 Cal.App.4th 1561, 1567.) A court abuses its discretion “if it applies improper criteria or makes incorrect legal assumptions.” (In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1497, italics omitted.) “If the record affirmatively shows the trial court misunderstood the proper scope of its discretion, remand to the trial court is required to permit that court to exercise informed discretion with awareness of the full scope of its discretion and applicable law.” (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 26, italics omitted.)

“In considering the evidence supporting such an order, ‘the reviewing court must apply the “substantial evidence standard of review,” meaning “‘whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted,’ supporting the trial court’s finding. [Citation.] ‘We must accept as true all evidence . . . tending to establish the correctness of the trial court’s findings . . . resolving every conflict in favor of the judgment.’”’” (In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1424.)

On appeal, we presume a judgment or order of a lower court is correct. “‘All intendments and presumptions are indulged to support [the order] 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; Conservatorship of Rand (1996) 49 Cal.App.4th 835, 841.) The appellant “has the burden of showing reversible error by an adequate record.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) “‘A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.’” (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) When the appellant fails to provide an adequate record as to any issue the appellant has raised on appeal, the issue must be resolved against the appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)

The Bolfiks must show error on the face of the appellate record to overcome the presumption the trial court’s order is correct. Without a record of the testimony received at the hearing—a reporter’s transcript or agreed or settled statement (Cal. Rules of Court, rules 8.130(h), 8.134, 8.137)—we must presume the facts supported the trial court’s findings. An appellant who attacks a judgment, but supplies no reporter’s transcript, is precluded from asserting the evidence was insufficient. (Estate of Fain (1999) 75 Cal.App.4th 973, 992.) Without a record of evidence received at the hearing, we can’t evaluate issues requiring a factual analysis and must presume “the trial court acted duly and regularly and received substantial evidence to support its findings.” (Stevens v. Stevens (1954) 129 Cal.App.2d 19, 20.) We don’t know what objections the Bolfiks made to evidence during the hearing, and we can’t review the trial court’s exercise of its discretion without a record of the hearing. Nor are we able to review the Bolfiks’ allegations that the trial court judge was biased against them, as nothing on the face of the record supports those claims. We have considered the parties’ written statements submitted in lieu of oral argument, but they focus on the factual disputes the trial court resolved, and which we aren’t in a position to review on the present record.

III

DISPOSITION

We affirm the protective orders. The parties to bear their own costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

J.

We concur:

RAMIREZ

P. J.

RAPHAEL

J.