Filed 12/16/19 K.E. v. Vital CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

K.E.,

Respondent,

v.

ANDREW G. VITAL,

Appellant.

G056378

(Super. Ct. No. 18V000253)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Michael J. Naughton, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Andrew G. Vital, in pro. per., for Appellant.

No appearance by Respondent.

* * *

Andrew Vital appeals from a domestic violence restraining order (DVRO) issued against him. He asserts various due process violations and other irregularities occurred in the court proceeding, but all of his claims lack merit. We affirm.

I

BACKGROUND

Vital’s opening brief contains no record references to support its recitation of the facts. The lack of citation is unsurprising given Vital’s failure to provide an adequate record on appeal. The clerk’s transcript contains only a register of actions, various trial court orders, the notice of appeal, and designation of record. It does not contain the underlying moving papers in which respondent K.E., a former romantic partner, set forth her domestic violence claim against him.

According to the minute order from the February 22, 2018, hearing on K.E.’s noticed motion for a DVRO, both parties were present at the hearing and answered “ready to proceed[.]” Both parties were “self-represented,” but K.E. had a “legal advocate” named “Krista” with her in the courtroom. In response to an inquiry from the court, Vital “advises that he does not wish to file a Response.” There is no indication Vital asked for a continuance of the hearing.

The minute order states the trial court found by a preponderance of the evidence, “[b]ased on the evidence presented at this hearing, . . . that domestic violence occurred and that [Vital] is the perpetrator, [K.E.] is the victim[,] and that the violence did not occur in self-defense.” “As a result” of those findings, the court issued the requested restraining order against Vital for five years, and further ordered Vital to attend a Batterer’s Intervention Program for 52 weeks.

II

DISCUSSION

Vital contends this appeal presents numerous issues involving due process violations under the federal and state Constitutions. Each purported violation, however, is merely a perceived unfairness resulting from Vital’s self-represented status and lack of knowledge about the legal proceedings against him. None of his due process claims has merit.

For example, Vital contends the trial court erred in failing to advise him, an unrepresented litigant, “of his rights, including right to counsel, right to cross-examine[.]” Vital asserts he was not “offered time to confer or obtain counsel” and his lack of representation led to procedural unfairness, such as his failure to understand the “legal consequences” of answering ready at the hearing. Vital also asserts he did not understand the nature of the hearing: “Appellant merely thought his attendance at court was regarding property of [K.E.] which had already been returned. He was not given notice and was not aware that he would have any legal consequences such as a restraining order and/or order to attend a year long program.” Additionally, Vital complains the court prevented his mother from accompanying him in the courtroom, while K.E. was allowed to have a “legal advocate” present.

We recognize a self-represented litigant faces a difficult challenge in any legal proceeding. The stakes are particularly high in an action for a DVRO, where the resulting order can extend for five years, as happened here. Nonetheless, while “a party may choose to act as his or her own attorney[,] . . . ‘[s]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]’ [Citations.]” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) In light of this principle, we conclude Vital’s due process claims fail because every procedural “unfairness” he cites is traceable not to a judicial act or omission but, rather, to Vital’s own failure to understand the DVRO proceeding and his corresponding rights, including the right to request a continuance of the hearing. (See Fam. Code, § 245, subd. (a) [“The respondent shall be entitled, as a matter of course, to one continuance for a reasonable period, to respond to the petition”].)

In a slightly different vein, Vital makes the factual assertion he “was not permitted to ask [K.E.] or any other person any questions regarding this matter at the time of the February 22, 2018 hearing.” The record does not support this claim.

Vital opted to file a settled statement under California Rules of Court, rule 8.137, in lieu of a Reporter’s Transcript. (All undesignated rule references are to the California Rules of Court.) A settled statement must contain “a statement of the points the appellant is raising on appeal” and “a condensed narrative of the oral proceedings that the appellant” identified in the settled statement as relevant to the appeal. (Rule 8.137 (d)(1) & (2).) Rule 8.137 further provides: “Any evidence or portion of a proceeding not included will be presumed to support the judgment or order appealed from.” (Rule 8.137 (d)(2)(A).) This presumption mirrors the general rule appealed judgments and orders are presumed correct, and an appellant has the burden of overcoming this presumption by affirmatively showing error on an adequate record. (Jameson v. Desta (2018) 5 Cal.5th 594, 609.)

Neither Vital’s settled statement nor the minute order from the hearing shows Vital even attempted to cross-examine K.E. or call any witnesses, much less that the trial court barred Vital from doing so. Consequently, Vital failed to prove any impropriety in the court’s conduct of the hearing.

Finally, Vital complains he “was not charged with any crime yet was ordered to undergo a 52-week Batterer’s Intervention Program which costs money and time to attend[.]” Vital contends “usually” a person is ordered to attend such a program only after being “charged” and “convicted” of domestic violence. Essentially, the argument challenges the trial court’s authority to order a person to attend a batterer’s program based upon a domestic violence finding in a proceeding under the Domestic Violence Protection Act (DVPA, Fam. Code, §§ 6200 et seq.), rather than in a criminal proceeding. The argument lacks merit. Family Code section 6343 of the DVPA specifically authorizes a court to “issue an order requiring the restrained party to participate in a batterer’s program[.]” (Fam. Code, § 6343, subd. (a).)

II

DISPOSITION

The order is affirmed.

ARONSON, J.

WE CONCUR:

MOORE, ACTING P. J.

IKOLA, J.