Hellwig v. Hammer
Filed 4/22/13 Hellwig v. Hammer CA2/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
KAREN HELLWIG, Trustee for
Kathleen
Ketcham Trust,
Plaintiff and Respondent,
v.
HERBERT B. HAMMER,
Defendant and Appellant.
B235124
(Los Angeles
County
Super. Ct.
No. YS022030)
APPEAL from
an order of the Superior Court
of
County. Marion Johnson, Judge. Affirmed.
Herbert B.
Hammer, in pro. per., for Defendant and Appellant.
Karen
Ketcham Hellwig, in pro. per., for Plaintiff and Respondent.
____________________________________
In this appeal from a restraining order, our affirmance
is compelled without reaching the merits of the challenged order. The record on appeal contains the order and
the notice of appeal, but nothing
showing the grounds on which the order was sought, nothing showing the evidence
supporting the order, and nothing showing the grounds on which the trial court
relied in granting the order.
The
appellant’s presentation in this court more resembles an affidavit of facts and
denials than an appellate brief. It
contains no citations to the record or to the law, and it identifies nothing
constituting error on the face of the record.
Respondent’s brief, and the appellant’s late-filed reply, too, offer a
narrative version of assertedly relevant facts.
We therefore address only the issues that appear from the meager record.
BACKGROUND
On March 9, 2011, the superior court
granted a restraining order against appellant Herbert B. Hammer, including
personal conduct orders, stay-away orders, and a no-gun order. The personal conduct orders restrain Mr.
Hammer for three years from physically or financially abusing, intimidating,
molesting, attacking, assaulting (sexually or otherwise), hitting, following,
stalking, threatening, harassing, destroying personal property, keeping under
surveillance, or blocking movements of
Kathleen T. Ketcham. The
stay-away orders require Mr. Hammer to stay at least 100 yards from Ms. Ketcham
and her vehicle. The no-gun order
prohibits Mr. Hammer’s ownership or possession of a firearm.
APPEALABILITY
OF THE RESTRAINING ORDER
Mr. Hammer
filed his notice of appeal from the order, and his designation of the record on
appeal, on August 5, 2011. The notice of appeal identifies the order
from which the appeal is taken as an “order after judgment under Code of Civil
Procedure section 904.1(a)(2),†entered March
9, 2011. However, only one
order or judgment is identified in the designation of record, and contained in
the record on appeal: the March 9,
2011 “Order After Hearing Restraining Elder Or Dependent Adult Abuse,†and the
minute order of the same date granting and entering that order. The March
9, 2011 order is appealable as an order granting an injunction,
despite its misidentification in the notice of appeal. (Code Civ. Proc., § 904.1, subd. (a)(6);
187 [civil harassment restraining order is appealable order].)
TIMELINESS OF THE
APPEAL
Because the
record contains no indication that Mr. Hammer was served with either a
file-stamped copy of the March 9, 2011
order, or a document entitled “Notice of Entry†of that order, his notice of
appeal filed within 180 days of the order is timely. (Cal. Rules of Court, rule 8.104(a)(1);
(2010) 182 Cal.App.4th 51, 56, 58.)
name="_ftnref3" title="">[3]
THE
ORDER MUST BE AFFIRMED
As noted
above, nothing in the record on appeal provides us with a basis for any
conclusions about the grounds or justifications for the challenged order, or
for any review of the trial court’s exercise of discretion in entering it. (IT
Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69 [standard of review for
restraining order is abuse of discretion].)
Mr. Hammer’s brief contends that Ms. Ketcham, the 93-year-old subject of
the restraining order, was not severely mentally or physically impaired, and
that he and Ms. Ketcham had a longstanding loving relationship, which Ms.
Ketcham’s daughter, Ms. Hellwig, did not approve or understand. The respondent’s brief paints a very
different picture. Neither of these
documents, however, makes reference to any facts in the record; and neither
relies on any cognizable legal theory.
The trial
court had the parties before it, took evidence, and concluded that the
restraining orders were appropriate. We
have no basis on which to conclude otherwise.
On that ground, we reject Mr. Hammer’s appeal and affirm the trial
court’s orders. (In re Valerie A. (2007) 152 Cal.App.4th 987, 1002-1003 [Because
appellate court was not provided with record of trial court proceeding, “we
cannot knowledgeably rule on the merits of this issue, and we consider the
claim abandoned.â€].)
name="_ftnref4" title="">
DISPOSITION
The order
is affirmed.
NOT TO BE
PUBLISHED.
CHANEY,
J.
We concur:
MALLANO,
P. J.
JOHNSON,
J.
The restraining order purports to be signed by Marion Johnson, Judge of the Los
Angeles Superior Court, and the minute order reciting its entry identifies
Honorable Marion Johnson as the judge.
For reasons that are unclear, the superior court docket and the parties’
briefs identify the Honorable Susan Weiss as the presiding judge.
Respondent has provided this court with an uncertified copy of a document
purporting to be a certificate of her mother’s death in December 2012, while
this appeal was pending, and she has asked that we dismiss the appeal on that
ground. We decline to address whether
the death of the order’s subject renders the appeal entirely moot, and deny her
dismissal request, in light of the challenged order’s inclusion of at least one
provision—barring ownership or possession of a gun—that could arguably remain
effective after Ms. Ketcham’s death.
