Habshi v. Abdelshafi

Filed 1/5/10 Habshi v. Abdelshafi CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Christopher Evans, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Zulu Ali for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Emad Abdelshafi appeals from an order granting Fakhrey Habashi a temporary restraining order prohibiting harassment. (Code Civ. Proc.,  527.6.)[1] He contends the evidence is insufficient to support the order, and the trial court erred by admitting into evidence a tape recording of voicemail messages left by him. We find his contentions without merit and affirm the order.

FACTS AND PROCEDURE

The record on appeal is limited. The clerks transcript contains only the trial courts minute order granting Habashi a one-year restraining order, the notice of appeal, and the notice designating the record on appeal. It does not include Habashis application for a restraining order, Abdelshafis opposition, or any of the declarations attached thereto. The following facts appear from the reporters transcript.

Habashi (an automobile mechanic) and Abdelshafi (a used car dealer) had been in a business relationship until a dispute arose about money Abdelshafi claimed Habashi owed him. Habashi claimed Abdelshafi had begun threatening himthreatened to destroy Habashi, to kill Habashi, and to kill Habashis family. Habashi testified he was very scared for himself and his family, and he could not sleep at night. Abdelshafi denied making any threats.

On March 20, 2009, and again on March 31, 2009, threatening voicemail messages were left on Habashis telephone. The tape is not before us, but the trial judge listened to the tape and recited its contents on the record. In the first message, the caller said, Mother fucker, kill you, and you son of a bitch. In the second message, the caller said, Fuck you, Asshole. Im going to kill you. I am going to kick your ass. Im going to fuck you in the ass, watch and see. Habashi presented telephone records showing the date and time the message was left and the callers telephone number. Habashi testified he had known Abdelshafi for many years and had talked to him many times. Habashi identified the voice on the messages as Abdelshafis, telling the court  . . . its [Abdelshafis] voice. I say it is not 100 percent his voice, but 99 [percent]. When he gets angry, people change their voice.

Abdelshafi admitted the telephone number from which the threatening calls were made was his business number, he worked alone, and he was the only person with access to that telephone. He admitted calling Habashi several times on March 20. Abdelshafi denied the voice in the voicemail messages was his. He demanded the court take [Habashis] phone and send it for forensic evidence. The court found by clear and convincing evidence the voicemail messages were left by Abdelshafi, and it issued a restraining order against Abdelshafi for one year.

DISCUSSION

1. Sufficiency of the Evidence

Abdelshafi contends the evidence is insufficient to support the issuance of the restraining order. The contention fails due to the lack of a sufficient record.

We must affirm the trial courts decision to grant an injunction under section 527.6 if its findings are supported by substantial evidence. (Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912; Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.) A judgment or order of the [trial] court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent . . . .  [Citation.] [Citation.] It is the appellants affirmative duty to show error by an adequate record. [Citation.] A necessary corollary to this rule [is] that a record is inadequate, and appellant defaults, if the appellant predicates error only on the part of the record he provides the trial court, but ignores or does not present to the appellate court portions of the proceedings below which may provide grounds upon which the decision of the trial court could be affirmed. [Citation.] (Osgood v. Landon (2005) 127 Cal.App.4th 425, 435.)

Abdelshafi has not included in the clerks transcript Habashis petition for restraining order and his declaration, evidence the trial court expressly stated it had considered. Because Abdelshafi failed to furnish an adequate record of the evidence against him, the insufficient evidence claim must be resolved against him. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.)

Furthermore, even on this limited record, there is substantial evidence to support the restraining order. A person who has suffered harassment may seek an injunction prohibiting the harassment under section 527.6. For purposes of . . . section 527.6, harassment is 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 plaintiff. ( 527.6, subd. (b).)

If the trial court finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment. ( 527.6, subd. (d).) Here, Habashi testified Abdelshafi was telephoning him, threatening to destroy Habashi, to kill Habashi, and to kill Habashis family. Habashi testified he was very scared for himself and his family, and he could not sleep at night due to the threats. He presented evidence Abdelshafi had left two very threatening voicemail messages on his telephone. Given that evidence, we cannot say the court abused its discretion by issuing a restraining order.

2. Admissibility of Voicemail Messages

Abdelshafi contends the trial court erred by admitting a tape recording of messages left on Habashis voicemail because Habashi did not authenticate the recording by proving the voice in the recording was Abdelshafis. We reject his claim.

To be admissible, a tape recording must be authenticated. (Evid. Code,  250, 1401; People v. Rich (1988) 45 Cal.3d 1036, 1086, fn. 12.) Authentication requires only that the party introducing the evidence must establish it is an accurate representation of what it purports to be. (People v. Mayfield (1997) 14 Cal.4th 668, 747.) Authentication of evidence is a foundational matter. The decision whether the foundational evidence is sufficiently substantial is a matter within the courts discretion. [Citation.] (People v. Rundle (2008) 43 Cal.4th 76, 129, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

The trial court did not abuse its discretion by admitting and considering the tape of the voicemail messages. It was properly authenticated by Habashis testimony the tape was from his voicemail, he was very familiar with Abdelshafis voice from having conducted business with him for many years, and the voice in the recording was Abdelshafis. Habashi presented corroborating telephone records showing the date, time, and telephone number from which the voicemail messages were received. Abdelshafi admitted the telephone number was his work number, he alone had access to that telephone, and on at least one of the days a message was left, he had called Habashi numerous times. Abdelshafi asserts because Habashi was uncertain the voice was Abdelshafis, the recording was inadmissible. But Habashis testimony was he was 99 percent certain the voice was Abdelshafis, but because the caller was angry and voices change some when someone is angry, he could not be 100 percent certain. The court could weigh Habashis de minimis equivocation along with the other evidence in assessing his credibility.

Moreover, even if the recording was inadmissible, we could not reverse the courts order. We cannot reverse for evidentiary error absent a showing of prejudice (Evid. Code,  353), and Abdelshafis failure to provide an adequate record on appeal precludes us from assessing prejudice.

DISPOSITION

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

OLEARY, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

FYBEL, J.

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[1] All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.