Filed 2/19/20 Volis v. Wood CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

RICHARD J. VOLIS,

Plaintiff and Appellant,

v.

BRIAN WOOD et al.,

Defendants and Respondents.

B293674

(Los Angeles County
Super. Ct. No. PC057446)

APPEAL from a judgment of the Superior Court of Los Angeles County, Melvin D. Sandvig, Judge. Affirmed.

Richard J. Volis, in pro. per., for Plaintiff and Appellant.

No appearance for Defendants and Respondents.

Plaintiff and appellant Richard Volis sued his neighbors, defendants and respondents Brian Wood and Claudia Lopez, after an ongoing dispute. The matter proceeded to bench trial, where Volis won a $3,900 judgment against Wood but lost against Lopez.

Volis, who is proceeding in propria persona, contends the trial court violated his due process rights by denying him the opportunity to examine Lopez during trial. Volis further contends either that Lopez’s testimony was excluded despite his offer of proof, or that he was prevented from making an offer of proof. He also argues the trial court erroneously overruled his objections to defendants’ evidence, and then relied on that insubstantial evidence to render the verdict in Lopez’s favor.

We affirm the judgment. Volis challenges rulings made during his trial, but has not provided us with a reporter’s transcript from which we may review what occurred at trial. He provided a settled statement, but unfortunately that document sheds no light on the issues Volis raises. “It is well settled, of course, that a party challenging a judgment has the burden of showing reversible error by an adequate record.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) The record here is not adequate; Volis has not carried his burden.

Volis seeks to supplement the record, via judicial notice, with objections he made during preparation of the settled statement and the clerk’s subsequent rejection of them. We deny the request for judicial notice. Though neither the settled statement nor the process by which it was created conform to the requirements of California Rules of Court, rule 8.137 (“rule 8.137”), Volis’s objections and the clerk’s rejection of them are not aimed at the deficiencies in the settled statement. Nor do they shed light on the issues he raises on appeal. They are therefore not relevant to our decision and thus not the proper subject of judicial notice.

BACKGROUND

Volis filed a complaint against his neighbors, spouses Wood and Lopez, on December 6, 2016. The complaint is not in the record, but the summary of case filings indicates Volis alleged discrimination and violation of his civil rights. Volis filed an amended complaint on May 3, 2017, a second amended complaint on August 8, 2017, and a third amended complaint on August 31, 2017.

Bench trial of the third amended complaint began and ended on September 17, 2018. All parties appeared in propria persona. On October 4, 2018, the court entered judgment. It stated, in relevant part: “Witnesses on the part of the Plaintiff and the Defendants were sworn and examined. After hearing the evidence and arguments of the parties, and taking the matter under submission, the Court finds judgment for Plaintiff, Richard J. Volis, and against defendant, Brian Wood, in the amount of $3,900.00; and judgment for defendant Claudia Lopez, and against plaintiff, Richard J. Volis, on Plaintiff’s Complaint.” The court awarded Volis postjudgment interest and costs relating to his complaint against Wood, and awarded Lopez costs relating to Volis’s complaint against her.

Volis timely appealed. In his notice designating the record on appeal, which he filed October 25, 2018, Volis indicated that he planned to proceed with a settled statement prepared according to rule 8.137 rather than a reporter’s transcript.

Pursuant to rule 8.137(c)(1), Volis then had 30 days in which to serve and file a proposed statement in the trial court. He did not meet this deadline. He filed Judicial Council form APP-014, Proposed Statement on Appeal (Unlimited Civil Case) on November 28, 2018. Volis served the form on Wood and Lopez but not the court. On the form, Volis described the dispute as follows: “Respondents/Defendants intentionally interfered with Appellan[t] Plaintiff’s civil rights based on his sexual Orientation [sic] that was either the sole reason or a motivating factor that denied me and my emotional support animals full and equal access of a public Cul-de-sac, sidewalks and street adjacent to the Respondents/Defendants’ residence. [¶] Respondents/Defendants’ [sic] alleged false and damaging allegations regarding the harassment of themselves and their children that were created for the sole purpose of providing Respondents/Defendants with a pretext to cover up what was in reality discriminatory based on Appellant/Plaintiff’s sexual orientation.”

In the section of the form describing “Reasons for Your Appeal,” Volis alleged three “errors about either the law or court procedure was/were made that caused substantial harm to me.” First, he asserted his “fundamental rights to be heard were trampled by the trial procedures employed” because he “was denied the ability to question the Respondent/Defendant Claudia Lopez and present his case resulting in a judgment against him. Prepared questions were relevant evidence pursuant to Rule 901 and Rule 401 of the Evidence Code for admissibility to show pretext to cover up what was in reality discriminatory and retaliatory.” Second, he contended the court improperly denied him a jury trial because “[d]ue to Appellant/Plaintiff’s cognitive impairment disability, he was susceptible to the trial judge’s influence on waiving his right for a jury trial.” Third, Volis asserted the trial court “denied Appellant/Plaintiff’s Witness to respond to a question regarding Respondent/Defendant Claudia Lopez that was relevant to the ultimate fact to be proved and the extent to which it weighs on the probability of that fact regarding Respondent/Defendant Claudia Lopez’ derogatory comments and discriminatory nature.”

In the section of the form entitled “Summary of Testimony and Other Evidence,” Volis checked the box indicating he testified at trial. In response to a question asking for a “complete and accurate summary of the testimony you gave that that is relevant to the reasons you gave . . . for this appeal,” Volis instead provided a narrative about a disability accommodation request he made and paperwork associated with his proposed jury instructions.

In the section of the form asking for a summary of other witness testimony relevant to the appeal, Volis indicated that he called Niecola Roberts as a witness. According to Volis, Roberts testified that she heard Wood make derogatory comments about Volis’s sexual orientation. Volis further represented that the court prevented Roberts from responding to one of his questions.

In an attachment, Volis asserted that the court did not allow him to examine Lopez. He explained, “after the Plaintiff examined Defendant Bryan K. Wood, Plaintiff called Defendant Claudia Lopez to examine, the trial judge asked the Plaintiff if he intends to ask the same questions Plaintiff asked Defendant Bryan K. Wood. Plaintiff responded Yes. The judge basically told Plaintiff to move on. [¶] The judge asked Plaintiff ‘Is that all’ Defendant Claudia Lopez threatened was ‘I am going to fire on your ass!’ Plaintiff’s response was ‘Isn’t that enough?[’] The Plaintiff went on to say that since that incident with Defendant Claudia Lopez he felt unsafe in his home and has to close his window blinds in fear of getting shot.”

Volis summarized the other relevant evidence as a list of therapy sessions he attended due to Lopez’s harassment, letters from his therapist, his “prescription invoice listing numerous medications of higher dosages due to Defendant Claudia Lopez’s harassment and threats,” a video of Lopez “making derogatory remarks regarding a person’s gender identity,” Lopez’s response to his request for a restraining order, and emails from a police detective “dispelling Claudia Lopez’ false and damaging allegations against Plaintiff regarding harassment of her and her family.” Volis added that defendants submitted “several still photograph[s] of Plaintiff walking his emotional support animals and lawyer’s bill for services.”

Rule 8.137(e) gives the respondent 20 days to serve and file either proposed amendments to the appellant’s proposed statement or a notice indicating that he or she is providing a reporter’s transcript. Neither proposed amendments nor a reporter’s transcript appear in our record. Nor does it appear that Volis or defendants requested a hearing on the settled statement pursuant to rule 8.137(f)(1). When no hearing is requested or held, “the trial judge must review the proposed statement and any proposed amendments filed by the respondent” no later than ten days after the time for requesting a hearing expires. (Rule 8.137(f)(3).) The trial court must then either “order the appellant to prepare a new proposed statement,” “[i]dentify the necessary corrections and modifications, and order the appellant to prepare a statement incorporating these corrections and modifications,” or “[m]ake any corrections or modifications to the statement necessary to ensure that is an accurate summary of the evidence and the testimony of each witness relevant to the points that the appellant states . . . are being raised on appeal.” (Rule 8.137(3)(A), (B).)

The record is silent as to whether any of these things occurred. The next document it contains is a second copy of Volis’s form proposed statement on appeal, with a filing date of March 14, 2019. The proposed statement is identical to the one Volis filed on November 28, 2018. It does not appear that defendants filed a response.

On April 11, 2019, the trial court filed Judicial Council form APP-022, “Order on Appellant’s Proposed Settled Statement (Unlimited Case).” The court checked boxes indicating that it had received Volis’s proposed statement and that “[c]orrections are needed for the settled statement proposed by the appellant to be an accurate summary of the evidence and testimony for the issues the court addressed in the order or judgment being appealed.” The court attached a “modified settled statement” it prepared and invited Volis to serve and file a “new or modified proposed settled statement” no later than May 3, 2019.

The court’s modified settled statement provided, in its entirety: “The plaintiff and defendant appear [sic] for trial on September 17, 2018 at 9:38 AM.

“The plaintiff was not prepared to proceed with a jury trial and requested a bench trial.

“In matter [sic] was a result of an ongoing neighbor dispute where the defendant Brian Wood complained to the plaintiff regarding plaintiff walking his dogs around defendants’ property. Defendant Wood complained plaintiff failed to pick up after his dogs and would look over defendants’ backyard wall. This would occur while defendant’s wife Claudia Lopez and children were in the backyard pool area.

“The dispute escalated wherein the parties obtained restraining orders against each other and the plaintiff filed this complaint. The plaintiff alleging that defendant acted aggressive and called him a fag. The plaintiff was the victim of an assault several years prior to this matter wherein he was continually receiving medication and therapy for stress and depression among other medical issues.

“The plaintiff claimed his therapy and medications had to be increased due to this matter and defendant Wood’s actions. The plaintiff presented no evidence as to claims against defendant Lopez. The plaintiff presented no witnesses that substantiated claims of defendant Wood’s actions against him. He presented medical bills which he claimed substantiated additional therapy.”

On May 3, 2019, Volis filed a new form proposed settled statement. On this form, for the first time, he checked the box indicating that the judgment in favor of Lopez was not supported by substantial evidence. He asserted defendants “did not offer any witnesses to be sworn or examined,” and only offered one “exhibit of still photographs of the Plaintiff walking his emotional support animals on the dirt trail behind the Defendants’ walled residence.” Volis also indicated that defendants’ evidence was admitted over his discovery-based objections, and claimed the judgment in his favor was supported by four of his exhibits the court allegedly admitted into evidence. Volis reiterated his contention that he was improperly denied the opportunity to examine Lopez. He also expanded his contention that the court impermissibly prohibited Roberts from answering a question. Volis abandoned his contention that the court unduly influenced him into waiving his right to a jury trial, and limited his discussion of nontestimonial evidence to the four exhibits he asserts were actually admitted. It does not appear that defendants responded to this proposed statement.

On June 4, 2019, the trial court issued a “2nd Amended” form “Order on Appellant’s Proposed Settled Statement (Unlimited Civil Case).” It indicated it had received Volis’s May 3, 2019 filing and that corrections were again required. However, the court did not invite Volis to make corrections or indicate a date by which such corrections could be filed. Rather, it attached a “modified settled statement” identical to the one filed April 11, 2019 and stated, “The Court hereby adopts said modified settled statement attached to this order and previously attached to Order on Appellant’s Proposed Settled Statement filed on April 11, 2019.”

According to Volis’s request for judicial notice, he nevertheless filed objections to the court’s settled statement on June 13, 2019. It is unclear whether the court received these objections; Volis also asks us to take notice of a letter from the clerk’s office dated June 28, 2019 which states that the clerk’s office was “unable to process” the file-stamped objections.

On June 27, 2019—the day before the clerk’s office letter mentioned above—the trial court issued a “3rd Amended” form “Order on Appellant’s Proposed Settled Statement (Unlimited Civil Case).” It made no mention of Volis’s June 13, 2019 objections. Instead, as it did in the June 4, 2019 order, the court indicated it had received Volis’s May 3, 2019 proposed statement and had prepared and attached its own. This time, however the court did not check the box stating that corrections were required. Instead, the court checked the box “Other orders are specified below” and wrote in: “Certification. The Court certifies that the Modified Settled Statement attached to this order is an accurate summary of the testimony and other evidence that is relevant to the appellant’s reasons for the appeal. The Court settles the statement and certifies that it is ready to be sent to the Court of Appeal. **This Order corrects 2nd Amended Order On Appellant’s Proposed Settled Statement filed on June 4, 2019.” The modified settled statement attached was identical to those issued on April 11, 2019 and June 4, 2019. Volis did not object to the June 27, 2019 order or settled statement.

DISCUSSION

“A settled statement is a summary of the superior court proceedings approved by the superior court.” (Rule 8.137(a).) It “must” contain “a statement of the points the appellant is raising on appeal” and “a condensed narrative of the oral proceedings” relevant to the appeal. (Rule 8.137(d)(1), (2).) “The condensed narrative must include a concise factual summary of the evidence and the testimony of each witness relevant to the points that the appellant states . . . are being raised on appeal. . . . 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).)

The settled statement here plainly does not satisfy these requirements. It says nothing about Volis’s current claims of evidentiary and procedural error, or any of those he advanced in his proposed statements. Though it provides an overview of the dispute, the settled statement omits any narrative of the oral proceedings. It fails to identify the witnesses who testified or were prohibited from testifying, and makes no mention of the factual content of the testimony and other admitted evidence. It does not even indicate the outcome of the trial.

The patent deficiencies in the settled statement are troubling, particularly since it was prepared by the court, which only has the duty to settle a proposed statement, not make its own. (Marks v. Superior Court (2002) 27 Cal.4th 176, 195.) The failure of the settled statement to comply with rule 8.137 and the resulting inadequate record is problematic for Volis, who bears the burden of providing an adequate record on appeal. (Randall v. Mousseau (2016) 2 Cal.App.5th 929, 935 (Randall).) “Failure to include issues in the settled statement precludes the appellant from raising them on appeal.” (Von Nothdurft v. Steck (2014) 227 Cal.App.4th 524, 534.) The defective settled statement thus deprives Volis of the ability to challenge the court’s evidentiary rulings and ultimate verdict in favor of Lopez. (See Randall, supra, 2 Cal.App.5th at p. 935.)

“The appellant must, however, take steps to protect [his] right to appeal.” (Randall, supra, 2 Cal.App.5th at p. 935.) Volis has not effectively done so. He did not object to the certified settled statement or seek writ relief regarding it, and he does not mention or cite to the certified settled statement in his opening brief. (See id. at pp. 935-936.)

Volis requests that we take judicial notice of his June 13, 2019 objections to the court’s June 4, 2019 settled statement and the clerk’s subsequent rejection thereof, arguing “it would be unfair to allow the Appellate court into believing the Appellant’s Modified Proposed Settle [sic] Statement was not acceptable, and thereafter to take advantage of an error on appeal although it could have been corrected in the trial court.” We deny the request.

“Judicial notice ordinarily may be taken of a court’s own records.” (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301; see also Evid. Code, §§ 452, subd. (b), 459.) “But judicial notice, since it is a substitute for proof [citation], is always confined to those matters which are relevant to the issue at hand.” (Gbur v. Cohen, supra, 93 Cal.App.3d at p. 301; see also Jordache Enterprises, Inc. v. Brobeck, Phlegar & Harrison (1998) 18 Cal.4th 739, 748 fn. 6 [denying request for judicial notice of materials that were not “necessary, helpful, or relevant”].) The issues raised in this appeal are whether the trial court improperly denied Volis the opportunity to call Lopez as a witness or relied on improperly admitted, insufficient evidence to rule in favor of Lopez. Volis’s objections to the court’s characterization of the sufficiency of the evidence against Wood (against whom Volis prevailed), the precise nature of the therapy he received, and the discrepancy between the settled statement and statements made at the demurrer stage are not relevant to those issues. Even if we took judicial notice of the filing and accepted Volis’s statements as true, the inadequate nature of the appellate record would not be remedied.

The settled statement as it stands (and even if augmented by Volis’s objections) provides no information about Volis’s efforts to examine Lopez or the evidence the court admitted and relied upon in reaching a verdict in her favor. We accordingly cannot address the issues Volis seeks to present in his appeal. It is well settled that “[a]ppealed judgments and orders are presumed correct, and error must be affirmatively shown.” (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502 (Hernandez).) Like all appellants, Volis has the burden of providing an adequate record to overcome this presumption. (Ibid.; see also Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126 [“‘When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys. . . . Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.’”].) “Failure to provide an adequate record on an issue requires that the issue be resolved against” the appellant. (Hernandez, supra, 78 Cal.App.4th at p. 502.) We accordingly affirm the judgment.

DISPOSITION

The request for judicial notice is denied. The judgment of the trial court is affirmed. Because respondents did not appear on appeal, no party shall recover costs. (Cal. Rules of Court, rule 8.278(a)(5).)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

WILLHITE, ACTING P.J.

CURREY, J.