gno.law

Baize v. Numan CA4/1

California Court of Appeal · D068023 · 2016-04-25 · Unpublished

Proceeding
appeal from an order
Trial court
Superior Court of San Diego County · No. 37-2015-00011385-CU-HR-CTL
Trial judge
Tamila Ipema
Outcome
affirmed — Affirmed.
Area
civil
Panel
Patricia D. Benke (author), Richard D. Huffman, Sr., Judith D. McConnell

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T05:51Z · confidence high

The trial court denied plaintiff's request for a restraining order after finding she failed to prove harassment by clear and convincing evidence. The Court of Appeal affirmed the denial, citing the presumption of correctness due to the lack of a reporter's transcript and the fact that the plaintiff had moved out of the defendant's building.

Ruling reviewedStandardThe courtThe model
Denial of plaintiff's request for a restraining order under Code of Civil Procedure section 527.6.
“the court found plaintiff had not proved her case by clear and convincing evidence and thus denied her request for restraining order on this record.”
de novocorrectagree with court
The appellate court applied the presumption of correctness because the appellant failed to provide a reporter's transcript, which precludes review of the sufficiency of the evidence. Additionally, the court found the order proper on independent grounds because the plaintiff had moved out, making future harassment by the building manager less likely to recur.

Authorities

  • relied: Denham v. Superior Court (1970) 2 Cal.3d 557 — A judgment or order of the lower court is presumed correct, and error must be affirmatively shown.
  • relied: Estate of Fain (1999) 75 Cal.App.4th 973 — When no reporter's transcript is provided, the judgment is conclusively presumed correct as to evidentiary matters, and the appellant is precluded from arguing sufficiency of the evidence.
  • relied: Russell v. Douvan (2003) 112 Cal.App.4th 399 — An injunction is authorized only when it appears that wrongful acts are likely to recur.
  • relied: Citizens Business Bank v. Gevorgian (2013) 218 Cal.App.4th 602 — Appellate courts do not reweigh evidence or second-guess trial court credibility determinations.

The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the presumption of correctness doctrine when the appellant fails to provide a transcript. It also provides a substantive alternative ground for affirmance based on the plaintiff's relocation, which weakens the likelihood of future harassment.

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

The San Diego Superior Court, after an unreported hearing at which it heard testimony from the plaintiff, the building manager, and his 12-year-old son and reviewed photographs of plaintiff's bruised arm, denied plaintiff's Code of Civil Procedure section 527.6 request for a civil harassment restraining order because she had not proved harassment by clear and convincing evidence. The Court of Appeal affirmed, holding that without a reporter's transcript it must presume the unreported testimony supported the order, that plaintiff's unspecified 'technical errors' claim was unsupported, and that, because plaintiff had moved out of the building, an injunction was not warranted in any event.

Ruling reviewedStandardThe courtThe model
Denial of the April 6, 2015 request for a civil harassment restraining order under section 527.6 for failure to prove harassment by clear and convincing evidence
“the court found plaintiff had not proved her case by clear and convincing evidence and thus denied her request for restraining order on this record.”
substantial evidencecorrectagree with court
Plaintiff's appeal attacked the credibility and sufficiency of the testimony, but the hearing was unreported and she supplied no settled statement. Under Denham and Estate of Fain the order is presumed correct and the unreported testimony is presumed to support it, and a reviewing court does not reweigh credibility. The appellate court applied these settled rules correctly.
Rejection of plaintiff's claim that unspecified 'technical errors' infected the trial court's ruling
“plaintiff fails to state what those technical errors were, to provide any law to support her contention, and to show how any such errors prejudiced her and entitled her to relief on appeal.”
unclearcorrectagree with court
An appellant bears the burden to identify error, support it with authority, and show prejudice; a conclusory assertion of 'technical errors' does not meet that burden even for a self-represented litigant. The court nonetheless reviewed the limited record and found no error, which is a sound disposition of an undeveloped argument.
Alternative holding that denial of the restraining order was proper because plaintiff had moved out of the building, so wrongful acts were unlikely to recur
“we note from the record that plaintiff has "moved out completely" from the building managed by Johnson. As such, for this separate reason we conclude the court order denying her request was proper.”
unclearcorrectunsure
Russell v. Douvan does hold that a section 527.6 injunction requires a showing that harassment is likely to recur, but that is ordinarily a factual determination for the trial court. The appellate court drew its own inference of non-recurrence from a record it had just declared inadequate, and did not address plaintiff's allegation that the manager made a threatening remark as she was moving out. The alternative ground is defensible but thinly supported; the primary inadequate-record ground is sufficient on its own.

Authorities

  • 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 and the appellant cannot challenge the sufficiency of the evidence.
  • relied: Denham v. Superior Court (1970) 2 Cal.3d 557 — 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.
  • relied: Russell v. Douvan (2003) 112 Cal.App.4th 399 — A section 527.6 injunction is authorized only when it appears that wrongful acts are likely to recur; past acts alone do not compel an injunction.
  • relied: Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197 — A respondent's failure to file a brief is not treated as a default or admission of error; the appellate court independently examines the record and reverses only for prejudicial error.
  • relied: In re Bryce C. (1995) 12 Cal.4th 226 — Failure of a respondent to file a brief does not constitute an admission of error; the court examines the record on the appellant's showing of prejudicial error.
  • relied: Citizens Business Bank v. Gevorgian (2013) 218 Cal.App.4th 602 — A reviewing court does not reweigh evidence, draw contrary factual inferences, or second-guess the trial court's credibility determinations.
  • relied: Ehrler v. Ehrler (1981) 126 Cal.App.3d 147 — An appellant who fails to furnish a reporter's transcript cannot challenge the sufficiency of the evidence supporting the judgment.
  • relied: In re Marriage of Riddle (2005) 125 Cal.App.4th 1075 — Absence of a respondent's brief does not require reversal; the appellant must still demonstrate prejudicial error on the record.

The appellate opinion: sound with gaps — The court correctly resolved the appeal on the settled rule that an appellant who provides no reporter's transcript or settled statement cannot challenge the sufficiency of the evidence, and properly rejected an undeveloped claim of 'technical errors.' Its alternative ground—that moving out made recurrence unlikely—rests on the appellate court's own factual inference from a record it had deemed inadequate and does not address the alleged threat made during the move-out, so the opinion reaches a defensible result but with a gap in that secondary reasoning.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 4/25/16 Baize v. Numan 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

DEBBIE BAIZE, D068023

Plaintiff and Appellant, v. (Super. Ct. No. 37-2015-00011385- CU-HR-CTL) JOHNSON NUMAN, Defendant and Respondent.

APPEAL from an order of the Superior Court of San Diego County, Tamila Ipema, Judge. Affirmed.

Debbie Baize, in pro. per., for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

Plaintiff and appellant Debbie Baize appeals the order denying her request for a restraining order against defendant and respondent Johnson Numan, the manager of the building where plaintiff used to live, and his 12-year-old son, Tanner Numan.1 In 1 Johnson did not submit a respondent's brief in this proceeding. However, we do not "treat the failure to file a respondent's brief as a 'default' (i.e., an admission of error) support of her request for a restraining order, plaintiff declared that in March 2015, Johnson on behalf of Tanner obtained a temporary (but not permanent) restraining order against plaintiff; that plaintiff in response also sought a restraining order against Johnson and/or Tanner, which was denied; that on April 2, 2015, she again sought a restraining order against Johnson and Tanner, which was again denied; and that on April 6, 2015, she renewed her request for a restraining order against Johnson and Tanner after Johnson attacked her on April 3, 2015.

In connection with her request for restraining order dated April 2, plaintiff alleged that since Johnson became the building manager in 2013, he has "invaded [her] personal life by asking questions about . . . finances, [her] whereabouts, and who [she] was with."

As an example of the Numans' harassment, plaintiff declared in support of her April 2 request for restraining order that as she was paying rent in February 2015, Johnson asked her a series of questions that made plaintiff "uncomfortable" and, in her mind, suggested Johnson "might be setting [her] up to be attacked." In another example, plaintiff noted Tanner followed her to a store, and, when plaintiff would not buy him a specific item, Tanner became "mad" and made up stories about plaintiff. Plaintiff declared she did not want to be a "mother figure" to Tanner or his babysitter.

Plaintiff relied on her April 2 declaration in connection with her April 6 request for restraining order. In addition, she further alleged in her April 6 request that Johnson but independently examine the record and reverse only if prejudicial error is found." (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1203, citing In re Bryce C. (1995) 12 Cal.4th 226, 232–233; and In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1; cf. In re Bryce C., supra, at p. 232 ["If an appellant fails to file a brief, the appeal may be dismissed entirely."].) 2 hit her on April 3 as she was moving out of the building; that his attack left bruises on her right and left arms; that after the police dispatched, she was able to finish moving out of the building safely; and that as she was finishing moving out, Johnson referenced his son Tanner, and said to plaintiff, Tanner "was going to be missing [her], and that [she]

shouldn't move out." Plaintiff stated that she felt threatened by this statement and that the Numans' continued harassment has made her fear for her life.

The record shows that the court on April 27, 2015 heard the unreported testimony of plaintiff, Johnson and Tanner; that the court considered the photographic evidence proffered by plaintiff showing her "bruised arm"; and that after a "careful review" of the record, the court found plaintiff had not proved her case by clear and convincing evidence and thus denied her request for restraining order on this record.

DISCUSSION

A. Guiding Principles A person who has suffered harassment may obtain an order prohibiting harassment. (Code Civ. Proc.,2 § 527.6, subd. (a)(1).) Harassment is defined as "unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner." (§ 527.6, subd. (b)(3).)

2 All further statutory references are to the Code of Civil Procedure. 3 Course of conduct as provided in section 527.6 means "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means . . . ." (§ 527.6, subd. (b)(1).) If the court "finds by clear and convincing evidence that unlawful harassment exists, an order shall issue prohibiting the harassment." (§ 527.6, subd. (i).)

"[I]t 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.) When reviewing a trial court ruling we do not reweigh the evidence, make our own factual inferences that contradict those of the trial court, or second guess the trial court's credibility determinations. (Citizens Business Bank v. Gevorgian (2013) 218 Cal.App.4th 602, 613.)

As such, when as here "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. [Citation.] The effect of this rule is that an appellant who attacks a judgment [or order] but supplies no reporter's transcript will be precluded from raising an argument as to the sufficiency of 4 the evidence." (Estate of Fain (1999) 75 Cal.App.4th 973, 992; see Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.)

B. Analysis Here, plaintiff alleges in her one-page brief that the testimony elicited at the hearing was "false"; that the "facts" of harassment were "contrary to [the] elicited testimony"; and that she was in fact subject to "serious verbal [and] physical threats."

However, it was plaintiff's burden to present an adequate record for review, which she has not done.

Furthermore, the record shows the court at the outset of the April 27 hearing informed the parties "that this matter is not being reported by a court reporter or recorded electronically." Because plaintiff failed to provide an adequate record for our review, as a court of review we must presume the unreported hearing testimony would demonstrate the absence of error and would provide substantial evidence for the denial of the restraining order. (Estate of Fain, supra, 75 Cal.App.4th at p. 992.)

Plaintiff also claims there were "technical errors" in her case. However, plaintiff fails to state what those technical errors were, to provide any law to support her contention, and to show how any such errors prejudiced her and entitled her to relief on appeal. We recognize plaintiff was self-represented in the trial court and in this appeal.

As such, we have carefully reviewed the limited record she provided but can find no "technical errors" in the court's ruling denying her April 6, 2015 request for a restraining order against Johnson and Tanner.

5 Finally, we note from the record that plaintiff has "moved out completely" from the building managed by Johnson. As such, for this separate reason we conclude the court order denying her request was proper. (See Russell v. Douvan (2003) 112 Cal.App.4th 399, 402 ["An injunction is authorized only when it appears that wrongful acts are likely to recur."].)

DISPOSITION

The order denying plaintiff's April 6, 2015 restraining order is affirmed.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.

Cites, in this corpus