RONALD PIERCE v. STEVE WOODS (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS AND PROCEDURAL HISTORY

Appellant Ronald E. Pierce appeals from the trial court's order denying his petition for a restraining order against respondent Steve A. Woods.   The petition alleged that Woods, who is the fiancé of Pierce's ex-wife (Nadira M. Arreola), had slapped Pierce's children.   Pierce's appeal falters at the most basic level and cannot succeed because he has not provided an adequate record on appeal, as was his burden.   The order of the trial court is accordingly affirmed.

Related Family Law Case

As helpful background to the present case, we take judicial notice of the related family law case of Pierce v. Arreola, filed in Tulare County Superior Court as case No. VFL226730.   We have summarized the history of that case in Pierce's many prior appeals to this court.  (See, e.g., Pierce v. Arreola (Aug. 31, 2011, F061379) [nonpub. opn.].) At this point, we mention only a few salient matters from that family law case.   Pierce and Arreola were married in 1992 and, during their 15–year marriage, they had three children.   In January 2008, Pierce filed a petition for dissolution of the marriage.   A status-only judgment of dissolution was entered by the trial court on September 4, 2008, with all other issues reserved.   The trial of reserved issues was held on December 8, 2009, which resulted in Arreola being awarded sole legal and physical custody of the parties' three minor children, with Pierce having a right of visitation.   On June 25, 2010, Pierce's visitation rights were expanded by the trial court, and such visitation included the first, third and fifth weekends of every month.   The trial court also provided that visitation exchanges would continue to be made at the Dinuba Police Department.  (Id. at pp.  *2–*9, *13–*14.)

In the family law case, at Arreola's request, a restraining order was imposed against Pierce for Arreola's protection.   The evidence supporting the restraining order included, among other things, Pierce's history of uncontrolled rage, his prior conduct directed toward Arreola, and his threats of violence made in Internet forums.   The restraining order was first issued on March 28, 2008, and is scheduled to expire on March 28, 2013.  (Pierce v. Arreola, supra, F061379, at pp.  *8–*9, *13.)

On September 8, 2010, Pierce filed in the family law case a motion for protective orders against Arreola and Woods, and to modify the child custody arrangements.   Pierce sought that relief on the ground that Arreola and Woods had physically abused the children, including slapping them in the face.   In support of his motion, Pierce submitted transcripts of excerpts of recorded conversations he had with his three children.   In these conversations, Pierce asked each of the children whether Arreola or Woods ever hit them, and the children individually responded in the affirmative by describing incidents of being slapped in the face by Arreola or Woods.   One of the children also said that Woods sometimes would squeeze the child's head or face.  (Pierce v. Arreola, supra, F061379, at p. *15.)

Arreola and Woods filed declarations in opposition to the motion.   They denied hitting or slapping the children or squeezing their heads.   Arreola's declaration provided a detailed account of one child's disclosure, upon returning from a visit with Pierce, that Pierce told the children what to say on the recordings and warned them if they did not do so, they would lose him or he would go to jail.   The child confided to Arreola:  “ ‘I'm afraid of losing my dad.   If I don't say these things I might lose him.’ ”   Moments before that disclosure, the parties' autistic child blurted out to Arreola:  “ ‘I know you don't want to put my dad in jail, my dad tells me and I know he's wrong[.]  I know he's wrong but my dad says you do.   He made us tell him.’ ”   According to Woods's declaration, the children also expressed to him that “they stated what they had because their father made them know that they might ‘lose him’ if they did not ‘help.’ ”   Arreola argued the recordings merely show that Pierce coached and intimidated the children into saying what they did.   Arreola further argued that since only edited excerpts of the recordings were provided, it is likely that the excluded portions were instances when the children did not properly recite the abuse allegations that Pierce had rehearsed with them.¹  (Pierce v. Arreola, supra, F061379, at pp.  *15–*16.)

At the October 1, 2010, hearing, the trial court concluded that the evidence was insufficient to prove that Arreola or Woods had physically abused the children, because it appeared just as likely that the allegations were not true and that Pierce had coached the children to say what they said.   The trial court, therefore, denied Pierce's request for restraining orders and his request to change the custody arrangements.  (Pierce v. Arreola, supra, F061379, at pp.  *17–*18.)   Pierce appealed.   We affirmed the trial court's decision in its entirety, holding that it was supported by substantial evidence, including credible evidence that no abuse took place and that Pierce had merely coached the children into saying what they did.  (Id. at pp.  * 22–*23.)   Our decision in that matter is now final.

The Present Action Against Woods

In February 2010, Pierce filed Tulare County Superior Court case No. 10–236200 against Woods, seeking a restraining order to prohibit harassment.   The sole basis for the relief sought was that, allegedly, Woods caused junk mail to be sent to Pierce's address.   The trial court denied Pierce's petition for a restraining order, citing the obvious “lack of evidence” for such relief.

In September 2010, Pierce filed a second petition for a restraining order against Woods, under the same case number.   Pierce's second petition was based on purported evidence that Woods and Arreola had slapped Pierce's children.   Specifically, Pierce attached copies of the transcripts of the audio recordings that he made of interviews he conducted with his children, just as he did in the family law case where he also sought restraining orders.

On October 1, 2010, the trial court heard testimony from both Pierce and Woods and denied Pierce's petition.²  Pierce timely filed his appeal.

DISCUSSION

I. Standard of Review

We review the denial of a restraining order under the abuse of discretion standard since such an order “ ‘ “ ‘rests in the sound discretion of the trial court upon a consideration of all the particular circumstances of each individual case․’ ” ' ”  (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495, quoting Salazar v. Eastin (1995) 9 Cal.4th 836, 849–850.)  “ ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.   When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’  [Citation.]”  (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.)   To the extent that we are called upon to review the trial court's factual findings, we apply a substantial evidence standard of review.  (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1505.)

II. Pierce's Burden As Appellant

“ ‘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.’  [Citations.]”  (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)   As a consequence, an appellant has the burden of demonstrating reversible error based on adequate legal argument and citation to the record.  (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556–557.)   When points are perfunctorily raised, without adequate analysis and authority, and without citation to an adequate record, we pass them over and treat them as abandoned.  (People v. Stanley (1995) 10 Cal.4th 764, 793;  Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699–700.)

Here, Pierce contends the trial court abused its discretion when it denied his petition for a restraining order against Woods.   The difficulty we encounter at the threshold is that Pierce has failed to provide this court with a transcript of the proceeding in the trial court, even though both Pierce and Woods testified at the hearing.   Without a transcript of the proceeding below, we do not have an adequate record and Pierce's appeal must be rejected.  (Ballard v. Uribe (1986) 41 Cal.3d 564, 574–575 [appellant's burden is to show reversible error by an adequate record];  Estate of Fain (1999) 75 Cal.App.4th 973, 992 [where no reporter's transcript provided, evidentiary support for the trial court's finding is presumed];  Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 [without adequate record demonstrating error, the contention is waived];  Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 [where record inadequate for meaningful review, “ ‘the appellant defaults and the decision of the trial court should be affirmed’ ”].)   For all of these reasons, we conclude Pierce failed to meet his burden as appellant of demonstrating error.  (Yield Dynamics, Inc. v. TEA Systems Corp., supra, 154 Cal.App.4th at pp. 556–557.)   Consequently, the order of the trial court must be affirmed.

III. Duplicate Motion in Family Law Case

Even if we were to consider the evidence presented in the related family law case, in which Pierce made essentially the same motion for a protective order, we would readily conclude that the trial court properly exercised its discretion.   As noted above, we affirmed on appeal the trial court's denial of Pierce's motion for a protective order in the family law case.   We found that there was substantial and credible evidence for the trial court to conclude (1) there was no physical abuse on the part of Arreola or Woods, and (2) Pierce had coached the children to say what they did on the recording.  (See Pierce v. Arreola, supra, F061379, at pp.  *22–*23.)   Hence, there was no abuse of discretion for the trial court to deny the restraining order requested by Pierce in that case.   The same holds true here regarding Pierce's duplicative motion for a protective order in the present action.

DISPOSITION

The trial court's order is affirmed.

Kane, Acting P.J.

WE CONCUR:

Poochigian, J.

Detjen, J.

FOOTNOTES

FN1. Arreola's declaration in that case reported that according to one child, another of the children had at times failed to correctly say what he was “told” to say..  FN1. Arreola's declaration in that case reported that according to one child, another of the children had at times failed to correctly say what he was “told” to say.

FN2. On that same date, the trial court also heard and denied Pierce's similar motion for restraining orders against Woods and Arreola in the family law case..  FN2. On that same date, the trial court also heard and denied Pierce's similar motion for restraining orders against Woods and Arreola in the family law case.