Jennings v. Cox

Filed 11/28/05 Jennings v. Cox CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

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CHRISTOPHER DAVID JENNINGS, Plaintiff and Respondent, v. ROBERT E. COX, Defendant and Appellant.

C049093 (Super. Ct. No. 0152218)

In this judgment roll appeal, defendant Robert E. Cox appeals from the trial court’s order denying his motion to set aside a protective order issued in favor of plaintiff Christopher David Jennings. We shall affirm the judgment (order).

FACTUAL AND PROCEDURAL BACKGROUND

Jennings and Cox are both engaged in the purchase and sale of antiques and collectibles.

In August 2004, Jennings petitioned for an injunction prohibiting Cox from harassing him or his wife. Jennings alleged Cox (1) threatened him when Jennings bought some items from Cox in an antique mall in Pleasanton, and (2) later “tampered” with Jennings’s truck outside his home in Shasta Lake. The court denied a temporary restraining order (TRO) and issued an order to show cause (OSC), setting the matter for hearing.

At the hearing, the court issued an order prohibiting Cox from approaching within 150 yards of Jennings, his wife, and their home or vehicles. Cox was not present, having been delayed by traffic.

Cox then moved to set aside the protective order on the ground Jennings served him with the TRO (denied pending hearing) and OSC, but not with the petition and supporting declaration. He also argued that the protective order would interfere with his participation in the Alameda Point Antiques and Collectibles Faire, which both men planned to attend. Finally, Cox claimed the factual underpinnings of Jennings’s petition are untrue.

At the hearing on Cox’s motion to set aside the protective order, no court reporter was present. The clerk’s minutes of the hearing reflect that Jennings, Jennings’s wife, and Cox all testified. Five declarations submitted by Cox in support of his argument that he never threatened Jennings in Pleasanton were also introduced into evidence.

The minutes reflect that Cox “request[ed] the court take judicial notice that the hearing should not be held due to service on the [TRO]” but the court noted in response that “Cox has a copy of the petition and declaration that supports the issuance of the [TRO].”

The minutes further state: “The court finds by clear and convincing evidence that the petitioner [Jennings] has suffered a credible threat of violence and a knowing and wil[ful] course of conduct directed at Mr. Jennings that seriously alarms, annoys, or harasses Mr. Jennings, and such conduct serves no legitimate purpose. The conduct by Mr. Cox would cause a reasonable person to suffer substantial emotional distress, and has caused plaintiff substantial emotional distress.”

The court ordered the protective order to remain in effect for 18 months, but allowed Cox to attend the Alameda Point Antiques and Collectibles Faire each month, so long as he avoids Jennings.

DISCUSSION

A reviewing court begins with the presumption that a judgment of the lower court is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “The appellant must affirmatively demonstrate error by an adequate record.” (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127; see also Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1398.) With only a clerk’s transcript before us, “‘every presumption is in favor of the validity of the judgment and any condition of facts consistent with its validity will be presumed to have existed rather than one which will defeat it. [Citation.] The sufficiency of the evidence to support the findings is not open to review. [Citation.]’ [Citations.] Furthermore, ‘[t]he trial court’s findings of fact and conclusions of law . . . are presumed to be supported by substantial evidence and are binding upon us, unless the judgment is not supported by the findings or reversible error appears on the face of the record.’” (Kennedy v. Taylor (1984) 155 Cal.App.3d 126, 128; see also Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 924.

Cox first contends the trial court granted his motion to set aside the protective order because, before the order issued, Jennings served only the OSC, not the petition, in contravention of Code of Civil Procedure section 527.6, subdivision (g), which states in part that, “Upon filing of a petition for an injunction under this section, the defendant shall be personally served with a copy of the petition, [TRO], if any, and notice of hearing of the petition.” Here, the proof of service contained in the clerk’s transcript indeed reflects that the sheriff served Cox with the “OSC & TRO.”

But, to preserve for appeal the issue of notice and adequacy of an opportunity to respond, a party must not only object, but also explain how he was prejudiced and “request a continuance for the purpose of preparing a proper response.” (Carlton v. Quint (2000) 77 Cal.App.4th 690, 698.) In the absence of such a request the procedural defect is deemed waived. (Ibid.; see also Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7 [insufficient or defective notice may be waived if the party opposing the motion appears at the hearing and argues the merits of the motion].) Here, the clerk’s minutes reflect the court’s finding that “Cox has a copy of the petition and declaration that supports the issuance of the [TRO]” and that he submitted several declarations challenging the Jennings’s statements in the petition. We construe this to reflect the court’s finding that, if Jennings failed to properly serve Cox with the petition and supporting declaration with the OSC before the protective order was granted, Cox suffered no prejudice from that failure. And, absent a transcript of the hearing, we must presume the trial court’s finding to that effect was supported by the evidence.

Cox’s remaining claims challenge the court’s factual findings underlying its refusal to set aside the protective order, i.e., its findings that Cox engaged in a knowing and wilful course of conduct that seriously alarmed, annoyed or harassed Jennings; that Cox’s conduct would cause a reasonable person to suffer substantial emotional distress, and actually caused Jennings to suffer such distress; and that Cox’s conduct toward Jennings served no legitimate purpose.^[1]

But on a judgment roll appeal, the sufficiency of the evidence to support these findings is not open to review. Cox thus fails to establish any basis for reversal.^[2]

DISPOSITION

The judgment (order) is affirmed.

BUTZ , J.

We concur:

SIMS , Acting P. J.

RAYE , J.

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^[1] Cox’s assertion he was instead acting within the protected constitutional sphere of “‘acquiring, possessing, and protecting property’” (Cal. Const., art. I, § 1) is simply another challenge to the court’s finding his actions toward Jennings were illegitimate.

^[2] Essentially conceding that the record before us is inadequate to review his appellate arguments, Cox sought concurrently, with the filing of his opening brief on July 8, 2005, permission to augment the record under California Rules of Court, rule 12 (further rule references are to these rules) with a settled statement of the proceedings. Rule 12 provides that at any time, on motion of a party or the court’s own motion, the court may order additions made to the record of the superior court oral proceedings and/or the superior court documents. We denied Cox’s request because he failed to comport with rule 7, which (among other things) requires that a party electing to proceed by settled statement must bring a motion in the trial court within 10 days of filing his notice of appeal. Thus, the motion should have been filed no later than March 4, 2005.