Popa v. Popescu CA4/1

California Court of Appeal · D063511 · 2014-01-03 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Diego County · No. 37-2012-00070512-CU-HR-EC
Trial judge: Ronald F. Frazier
Outcome: affirmed — Affirmed.
Area: civil
Panel: McINTYRE (author), Judith L. Haller, Judith D. McConnell

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:46Z · confidence high

The trial court issued mutual civil harassment restraining orders against Petre Popa and Virgil Popescu after a continued hearing. The Court of Appeal affirmed the order, finding that Popescu failed to provide a reporter's transcript and thus could not demonstrate error in the trial court's evidentiary rulings or the sufficiency of the evidence.

Ruling reviewed	Standard	The court	The model
Granting Popa's request for a continuance of the permanent restraining order hearing “Popescu cannot establish that the trial court abused its discretion in granting a continuance. He did not provide us with a reporter's transcript and there is no indication in the available record regarding the trial court's reasons for the continuance.”	abuse of discretion	not reached	agree with court The court applied the abuse of discretion standard but affirmed based on the presumption of correctness due to the missing record, rather than substantively evaluating the trial court's decision.
Failure to dissolve the temporary restraining order at the time of the continued hearing “Popescu's argument concerning the temporary restraining order is not proper for appeal because he did not identify that order in his notice of appeal. (DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43.)”	unclear	not reached	agree with court The court dismissed the argument as procedurally improper because the specific order was not included in the notice of appeal, and noted it would be moot anyway.
Consideration of documents filed by Popa and issuance of restraining order based on letters/postcards “These deficiencies prevent us from evaluating his arguments on appeal. Thus, we must presume the evidence supported the trial court's order. (See Estate of Fain (1999) 75 Cal.App.4th 973, 992”	abuse of discretion	not reached	agree with court The court declined to review the evidentiary rulings because the appellant failed to provide a reporter's transcript, triggering the presumption that the unreported testimony supported the trial court's decision.
Issuance of restraining order without evidence of harassment, unlawful violence, credible threats, or stalking “Applying these standards, we are compelled to affirm the trial court's order as Popescu has not affirmatively shown any error.”	abuse of discretion	not reached	agree with court The court affirmed the sufficiency of the evidence based on the presumption of correctness due to the incomplete record, noting that pro se litigants are held to the same procedural rules as attorneys.

Authorities

relied: Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389 — A motion for continuance is addressed to the sound discretion of the trial court.
relied: Mears v. Mears (1962) 201 Cal.App.2d 408 — In the absence of a reporter's transcript showing the basis for a continuance and the trial court's reasons, all presumptions and inferences must be drawn in support of the trial court's decision.
relied: DeZerega v. Meggs (2000) 83 Cal.App.4th 28 — An argument concerning an order is not proper for appeal if that order is not identified in the notice of appeal.
relied: Denham v. Superior Court (1970) 2 Cal.3d 557 — A judgment or order of the lower court is presumed correct, and all inferences are indulged to support it on matters as to which the record is silent.
relied: Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412 — If the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.
relied: Estate of Fain (1999) 75 Cal.App.4th 973 — Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters.
relied: Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113 — A litigant appearing in propria persona is held to the same restrictive rules of procedure as an attorney.

The appellate opinion: sound — The opinion is procedurally sound in applying the presumption of correctness to an incomplete record, which is a standard appellate mechanism. However, it relies heavily on the appellant's failure to provide a transcript to avoid substantive review of the evidentiary and sufficiency claims.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

After a contested hearing at which both self-represented parties testified, the San Diego Superior Court issued mutual three-year civil harassment restraining orders under Code of Civil Procedure section 527.6, having earlier continued the hearing from January 9 to February 1, 2013 while the temporary restraining order remained in place. The Court of Appeal affirmed, holding that without a reporter's transcript Popescu could not show an abuse of discretion in the continuance, that his challenge to the temporary order was outside the notice of appeal and moot, and that the order must be presumed supported by the evidence.

Ruling reviewed	Standard	The court	The model
Granting Popa's request to continue the permanent restraining order hearing and leaving the temporary restraining order in effect rather than dissolving it “Popescu cannot establish that the trial court abused its discretion in granting a continuance.”	abuse of discretion	correct	agree with court The continuance is reviewed for abuse of discretion (Oliveros), and with no reporter's transcript or record of the basis for the request, the presumption of correctness (Mears, Denham) controls. The court also correctly noted the TRO was not identified in the notice of appeal and was superseded by the final order, making that challenge moot. One gap: the court cited the general TRO statute, section 527, subdivision (d)(3), rather than section 527.6's own continuance provision, which expressly keeps a TRO in effect when a continuance is granted for good cause; that provision would have more directly defeated Popescu's dissolution argument, but the result is the same.
Considering the documents Popa filed before the hearing (letter to the judge, declaration, verdict forms from an unrelated criminal case, letters and postcards, third-party letter) “it is unclear as to what documentary evidence, if any, the court considered in issuing its orders.”	unclear	correct	agree with court The appellate court did not reach the merits of any evidentiary objection because the record does not show which documents, if any, the trial court admitted or relied on, and there was no reporter's transcript. Under Denham, Gee, and Estate of Fain, an appellant who fails to furnish an adequate record defaults on claims of evidentiary error. The court's application of these settled principles is correct; a pro. per. litigant is held to the same procedural rules (Bianco).
Issuing a three-year civil harassment restraining order against Popescu, including sufficiency of the evidence of harassment, unlawful violence, credible threats of violence, or stalking under section 527.6 “Thus, we must presume the evidence supported the trial court's order.”	substantial evidence	correct	agree with court A section 527.6 order is reviewed for substantial evidence, but review requires the record of testimony. Because the trial court heard oral testimony from both parties and Popescu supplied no reporter's transcript, Estate of Fain requires the appellate court to conclusively presume the unreported testimony supports the findings. The court's reasoning follows the cited authorities precisely; there is no indication of error on the face of the record.

Authorities

relied: Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389 — A motion for continuance is addressed to the sound discretion of the trial court.
relied: Mears v. Mears (1962) 201 Cal.App.2d 408 — Absent a reporter's transcript showing the basis for a ruling, all presumptions and inferences are drawn in support of the trial court's decision.
relied: DeZerega v. Meggs (2000) 83 Cal.App.4th 28 — An order not identified in the notice of appeal is not properly before the appellate court.
relied: Denham v. Superior Court (1970) 2 Cal.3d 557 — A judgment or order is presumed correct; all intendments and presumptions are indulged to support it where the record is silent, and error must be affirmatively shown.
relied: Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412 — If the record is inadequate for meaningful review, the appellant defaults and the trial court's decision should be affirmed.
relied: Estate of Fain (1999) 75 Cal.App.4th 973 — Where no reporter's transcript is provided and no error appears on the face of the record, the judgment is conclusively presumed correct as to all evidentiary matters.
relied: Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113 — A litigant in propria persona is entitled to the same, but no greater, consideration than other litigants and is held to the same rules of procedure as an attorney.

The appellate opinion: sound with gaps — The opinion correctly disposes of every contention on the settled inadequate-record and presumption-of-correctness principles, with apt authority for each step and a proper notice-of-appeal and mootness point on the TRO. Its one gap is quoting the general TRO statute (Code Civ. Proc., § 527, subd. (d)(3)) on dissolution instead of section 527.6's specific continuance provision, which directly authorizes a good-cause continuance and keeps the TRO in effect, though this does not change the result.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 1/3/14 Popa v. Popescu CA4/1 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PETRE POPA, D063511

Plaintiff and Respondent, v. (Super. Ct. No. 37-2012-00070512- CU-HR-EC) VIRGIL POPESCU, Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Ronald F.

Frazier, Judge. Affirmed.

Virgil Popescu, in pro. per., for Defendant and Appellant.

Petre Popa, in pro. per., for Plaintiff and Respondent.

Virgil Popescu, in propria persona, appeals from a civil harassment restraining order against him. He contends the trial court erred by: (1) granting Petre Popa's request for a continuance of the permanent restraining order hearing and failing to dissolve the temporary restraining order against him at that time; (2) considering certain documents filed by Popa; (3) issuing a restraining order based on letters and postcards he wrote to Popa and others; and (4) issuing a restraining order without evidence of harassment, unlawful violence, credible threats of violence or stalking. We reject Popescu's arguments and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Popa and Popescu are both Romanian and have known each other since 2011.

Their friendly relationship eventually deteriorated, and they accused each other of violent and threatening behavior.

In December 2012, Popa requested a restraining order against Popescu. The trial court issued a temporary restraining order requiring Popescu to stay away from Popa and to not harass or otherwise contact Popa. At that time, the trial court set the hearing on the permanent restraining order for January 9, 2013. Popescu also sought a restraining order against Popa.

Before the hearing on the requests for restraining orders, Popa and Popescu filed various documents with the court. The documents Popa filed included a letter to the judge hearing the matter, a document that Popa described as "The Purpose of Filing a Request for Restraining Order Declaration," copies of verdict forms from an unrelated criminal case against Popescu, various letters, postcards and writings allegedly by Popescu, and a letter from the shop owner who introduced Popa and Popescu.

The hearing on the requests for restraining orders took place on February 1, 2013.

The record does not indicate the reason that the hearing was continued from January 9, 2013. At the conclusion of the hearing, the trial court issued mutual civil harassment restraining orders against Popa and Popescu.

2 DISCUSSION

I. Continued Hearing Popescu argues the trial court erred by granting Popa's request for a continuance of the permanent restraining order hearing and failing to dissolve the temporary restraining order against him at that time.

"Within 21 days, or, if good cause appears to the court, 25 days from the date that a petition for a temporary restraining order is granted or denied, a hearing shall be held on the petition for the injunction [prohibiting harassment]." (Code Civ. Proc., § 527.6, subd. (g).) "When the matter first comes up for hearing, if the party who obtained the temporary restraining order is not ready to proceed, . . . the court shall dissolve the temporary restraining order." (Code Civ. Proc., § 527, subd. (d)(3).) "A motion for continuance is addressed to the sound discretion of the trial court." (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395.)

Here, the trial court originally set the hearing on the civil harassment restraining order for January 9, 2013. The hearing was not held until February 1, 2013. Popescu contends the trial court should not have granted Popa's request to continue the hearing;

however, Popescu cannot establish that the trial court abused its discretion in granting a continuance. He did not provide us with a reporter's transcript and there is no indication in the available record regarding the trial court's reasons for the continuance. Further, the basis for Popa's request is not in the record before us. In the absence of the reporter's transcript showing the basis for a continuance and the trial court's reasons for granting the request, all presumptions and inferences must be drawn in support of the trial court's 3 decision. (Mears v. Mears (1962) 201 Cal.App.2d 408, 413.) Accordingly, we discern no abuse of discretion.

Lastly, we note that Popescu's argument concerning the temporary restraining order is not proper for appeal because he did not identify that order in his notice of appeal. (DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43.) Moreover, an appeal from the temporary restraining order would be moot because the order was necessarily dissolved when the court issued the three-year civil harassment restraining order.

II. Evidentiary Issues Popescu's remaining contentions relate to the court's consideration of certain evidence and the sufficiency of the evidence to support the restraining order against him.

Specifically, he contends the court erred by considering the documents filed by Popa, issuing a restraining order based on letters and postcards he wrote to Popa and others, and issuing a restraining order without evidence of harassment, unlawful violence, credible threats of violence or stalking.

In resolving Popescu's contentions, we apply settled principles of appellate review.

Specifically, "it is settled that: '[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) " 'A necessary corollary to this rule is that if the record is inadequate for meaningful review, the 4 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.)

The record before us reflects that the trial court considered oral testimony from Popa and Popescu, but it is unclear as to what documentary evidence, if any, the court considered in issuing its orders. Further, the record does not reflect what evidence the court relied upon for its findings. As we previously noted, Popescu failed to provide a reporter's transcript of the proceedings in the trial court. These deficiencies prevent us from evaluating his arguments on appeal. Thus, we must presume the evidence supported the trial court's order. (See Estate of Fain (1999) 75 Cal.App.4th 973, 992 ["Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error."].)

We are sympathetic to the difficulties of litigants who elect or are forced to represent themselves in litigation. However, " '[w]hen 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.' " (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126.) Applying these standards, we are compelled to affirm the trial court's order as Popescu has not affirmatively shown any error.

5 DISPOSITION

The order is affirmed. Respondent is awarded costs on appeal.

McINTYRE, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.

Cites, in this corpus

Oliveros v. County of Los Angeles B163333 · 2004-07-28
Gee v. American Realty & Construction Inc. No. A095457 · 2002-07-03
DeZerega v. Meggs A086725 · 2000-09-14
In Re Estate of Fain B119122 · 1999-10-21
Bianco v. California Highway Patrol D019372 · 1994-05-03
Denham v. Superior Court L.A. 29704 · 1970-05-06
Mears v. Mears Civ. 20034 · 1962-03-16