Filed 8/24/26 I.R. v. S.M.L. CA1/1
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

I.R.
Plaintiff and Respondent,
A173164
v.
S.M.L., (Solano County
Super. Ct. No. FFL158954)
Defendant and Appellant.

MEMORANDUM OPINION ON REHEARING1
Plaintiff and respondent I.R. instituted this action against defendant
and appellant S.M.L. for a determination of parentage as to her son. During
the course of the proceeding, respondent sought a protective order under the
Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.).2 After

We resolve this case by memorandum opinion under California
1

Standards of Judicial Administration section 8.1.
“The purpose of the . . . DVPA . . . is ‘to prevent acts of domestic
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violence, abuse, and sexual abuse and to provide for a separation of the
persons involved in the domestic violence for a period sufficient to enable
these persons to seek a resolution of the causes of the violence.’ (Fam. Code,
§ 6220.) Under the DVPA, ‘abuse’ means intentionally or recklessly causing
or attempting to cause bodily injury; sexual assault; placing a person in
reasonable apprehension of imminent serious bodily injury to that person or
another; or engaging in behavior that could be enjoined pursuant to

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a multi-day hearing, at which both parties personally appeared, the trial
court issued a protective order with a three-year duration and visitation
orders.
Appellant appeals from the orders. The only brief before us is
appellant’s opening brief, as respondent did not file a brief. We issued a
memorandum opinion affirming the order. Appellant filed a petition for
rehearing, which we granted, to consider his complaints that the opinion was
incorrect as to a procedural fact, we rejected his appeal even though
respondent filed no brief, and we decided the appeal on a ground not raised
by his opening brief.
Appellant predicates his appeal on a single assertion—that he was
denied the right to have several of the days of the hearing reported by a court
reporter or recorded electronically. He states, for example, “The rationale for
this appeal rests singularly upon the negligent or intentional act of the trial
court judge seated to take up the DVRO Petition. The court was not honest
with [appellant] and misstated that the trial was being audio recorded,” a
recording that would “be accessible at a later date so the [appellant’s] hired
court reporter could transcribe it.” But “[i]n fact no such recording system
was present nor enabled.” He complains, “the trial court allowed evidentiary
rulings and witness testimony while knowing the trial was not being recorded
or reported. Despite [appellant’s] clearly articulated statements to the Court
of his need for a Reporter’s Transcript, the court thwarted the [appellant].”

section 6320. (§ 6203.) Section 6320 includes ‘molesting, attacking, striking,
stalking, threatening, sexually assaulting, [and] battering . . . harassing,
telephoning, . . . contacting, either directly or indirectly, by mail or otherwise,
coming within a specified distance of, or disturbing the peace of the other
party.’ (§ 6320, subd. (a).)” (Perez v. Torres-Hernandez (2016) 1 Cal.App.5th
389, 396, fn. omitted.)

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Although he was aware from the outset of the hearing that no court reporter
was present, he asserts he did not discover the hearing was not being
electronically recorded until the close of the second day. He then hired a
court reporter, and thus obtained transcripts of the remaining days, including
the day on which the court issued its ruling from the bench granting a
domestic violence protection order (DVPO) and issuing a limited visitation
order.
As best we can discern, appellant’s argument is that had the
proceedings been taken down by a court reporter or electronically recorded,
he would have been able to mount evidentiary and substantial evidence
challenges to the orders. But since he purportedly cannot do so due to the
electronic recording misinformation provided by the trial court, he has,
instead, been subject to a “ ‘miscarriage of justice’ ” entitling him to reversal
of the orders and a new hearing.
It is clear from the reporter’s transcript of the final day of the hearings,
when the trial court ruled from the bench, that the court did not agree
counsel for appellant was ever told the proceedings would be electronically
recorded and thus appellant would be able to hire a court reporter to prepare
a written transcript. Indeed, it appears that counsel seems to have assumed
that when the trial court stated proceedings were “on the record,” the court
meant the proceedings were being electronically recorded.3

For example, the following colloquy occurred about the admission of
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several exhibits:
Appellant’s counsel: “When we came in here we were told that there
was a recording device and then we were actually on the record, but
there wasn’t, so I wanted my reporter to be able to get the recording
and then transcribe the October session and the prior session. And
when I came here–do you have a recording device?”

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 Moreover, the local superior court rules stated no court reporter would
be provided by the court, but a party could hire their own reporter (Super. Ct.
Solano County, Local Rules, rule 18.1; see Cal. Rules of Court, rule 2.956),
and no electronic recording would be made unless in lieu of reporter in a
proceeding in which a court reporter was required by statute, which was not
the case as to the proceedings here at issue, or on application to and approval
by the court (Super. Ct. Solano County, Local Rules, rules 17.1 [general
requests to record proceedings], 18.1 [electronic recordings in lieu of court
reporter where reporter required to be present]). Appellant apparently did
not review these rules.
In any case, we need not attempt to sort out exactly what colloquies
occurred between the court and counsel on hearing dates where no court
reporter was present. Appellant had alternatives to a reporter’s transcript—
namely, an agreed-to statement pursuant to California Rules of Court,
rule 8.134, or a settled statement pursuant to California Rules of Court,

Clerk: “There’s no recording.”
Appellant’s counsel: “But I was told that we would actually be on the
record. Do you recall saying we’re on the record? Do you have that
recording device? You asked for—you said for the record and you
introduced this. This is in our first. . . .”
Court: “When I say for the record it doesn’t mean. . . .”
Appellant’s counsel: “And I said—I asked is there a record?· And you
said, yes, there is a record, there’s a recording device. So I just wanted
to have access to the recording device for my court reporter.”
Court: “I don’t recall exactly what I said but—so you want a record of a
recording that was not for purposes of—was not recorded for evidence
purposes. That’s why you have a reporter and that’s why the parties
are told that there’s no recording of the—we don’t provide a court
reporter; they must provide one of their own. And if they don’t, then
there’s no record. When I say on the record, I meant on the record just
so that we can present that that there’s people present.”

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rule 8.137. (See Leslie v. Roe (1974) 41 Cal.App.3d 104, 108 [although
appellants did not have the right to transcripts at public expense, the rules of
court provided “alternative means of preparing the record on appeal” by way
“an agreed statement of the parties” or “a settled statement”]; People v. Scott
(1972) 23 Cal.App.3d 80, 86 [where “trial judge and both trial attorneys were
available to help reconstruct” the trial proceedings, “counsel on appeal had
available to him a preliminary hearing transcript,” the People’s case was
“straightforward,” the “settled statement” contained “a detailed explication of
the facts,” and no “issues of fact or law which were before the trial court”
were “omitted from the settled statement,” the settled statement was “a fair
substitute for a complete transcript” and the record was “adequate to afford
defendant effective appellate review”]; Le Font v. Rankin (1959)
167 Cal.App.2d 433, 436–437 [“When an appellant desires to present any
point which requires consideration of the oral proceedings, he must obtain
and file in the appellate court a reporter’s transcript, certified by the
reporter; or, where a transcript is unavailable, a settled statement of the oral
proceedings prepared by the parties and settled by the judge who heard the
matter; or an agreed statement prepared by the parties, consisting of a
condensed statement of the relevant proceedings.”].)
However, appellant never availed himself of either procedure. (See Cal.
Rules of Court, rules 8.134 [setting forth procedure for agreed-to statement],
8.137 [setting forth procedure for obtaining a settled statement].) In his
opening brief, appellant provided no record citation that he did so, and the
table of contents of the clerk’s transcript identified no submissions to the trial
court in such regard. At a minimum, however, to prevail on his argument
that he has been effectively denied appellate review for lack of an adequate
record, he was required to establish that he was wrongfully foiled in efforts to

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obtain either an agreed-to or settled statement. He has not done so. (See
Jameson v. Desta (2018) 5 Cal.5th 594, 608–609 [“[I]t is a fundamental
principle of appellate procedure that a trial court judgment is ordinarily
presumed to be correct and the burden is on an appellant to demonstrate, on
the basis of the record presented to the appellate court, that the trial court
committed an error that justifies reversal of the judgment.”].)
In his petition for rehearing, appellant asserts he did ask for a settled
statement, citing to his notice designating the record on appeal wherein he
checked a box that he chose to proceed with a settled statement. But
appellant then made no effort to obtain a settled statement in accordance
with the California Rules of Court and, specifically, rule 8.137. In short, it
was not the clerk’s or the court’s obligation to prepare a settled statement—it
was appellant’s obligation to procure a settled statement by following the
procedure specified in rule 8.137.
Nor does our Supreme Court’s recent opinion in Family Violence
Appellate Project v. Superior Court (Aug. 10, 2026, No. S288176) __ Cal.5th
__, 2026 WL 2291541, assist appellant. The high court held in that case that
the statutory prohibitions on the use of electronic recording set forth in
Government Code section 69957 are, under the in forma pauperis doctrine,
necessarily subject to “an exception . . . where reasonably necessary to
provide indigent civil litigants with meaningful access to justice and an
official verbatim record.” (Id. at p. *2.)
The instant case is not one to which the in forma pauperis doctrine
applies. Appellant was both represented by counsel and, on discovering the
proceedings were not being electronically recorded, hired his own court
reporters. This is likewise not a case where we can, or should, presume that
a settled statement would not have been reasonably obtainable or

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inadequate. Appellant was clearly aware of this option and represented in
his record designation form he would proceed with that option; the problem
appears to have been that counsel was not conversant with the applicable
rule of court setting forth the procedure to procure a settled statement.
As for appellant’s complaint that we affirmed the trial court’s order
despite respondent’s failure to file a brief, it is well established that an
appellant is not entitled to prevail simply because no responding brief is filed
in defense of the challenged order or judgment. While in such circumstances,
we may “decide the appeal on the record, the opening brief, and any oral
argument by the appellant” (Cal. Rules of Court, rule 8.220(a)(2)), “the
appellant ‘still bears the “affirmative burden to show error whether or not the
respondent’s brief has been filed.” ’ ” (People v. Miller (2023) 94 Cal.App.5th
935, 941, quoting Smith v. Smith (2012) 208 Cal.App.4th 1074, 1078.)
Similarly, with respect to appellant’s complaint that we resolved his
appeal on the basis of a record preparation obligation not mentioned or
addressed in his opening brief, this point was, in fact, squarely embraced by
appellant’s claim that he was misled as to electronic recording and therefore
was unable to mount a substantial evidence or evidentiary error challenge to
the orders. An appellant must show not only that the trial court has erred,
but also that the claimed error was prejudicial. (Cal. Const., art. VI, § 13;
Evid. Code, §§ 353, 354; see Winfred D. v. Michelin North America, Inc.
(2008) 165 Cal.App.4th 1011, 1038 [“ ‘ “ ‘Prejudice is not presumed and the
burden is on the appellant to show its existence.’ ” ’ ”].) As we explained, even
assuming the trial court somehow left appellant confused about electronic
recording—and the record does not show any such thing—that miscue was
not prejudicial, in any event, because appellant had the option to procure a
settled statement. He cannot claim prejudice based on his own failure to

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follow through. (See Foust v. San Jose Construction Co., Inc. (2011)
198 Cal.App.4th 181, 186–187 [“In numerous situations, appellate courts
have refused to reach the merits of an appellant’s claims because no
reporter’s transcript of a pertinent proceeding or a suitable substitute was
provided. . . . [¶] The reason for this follows from the cardinal rule of
appellate review that a judgment or order of the trial court is presumed
correct and prejudicial error must be affirmatively shown.”].)
Finally, it is apparent from the trial court’s ruling from the bench,
which was reported, that ample evidence supports the DVPO and the limited
visitation order. The court read on the record a series of highly abusive text
messages to respondent that appellant did not dispute that he authored.4

4 The following are a sample of the texts the court read into the
record:
“ ‘You’re a piece of shit. I don’t know your schedule and the days you
are home it doing shit, you don’t even contact me to see if I want to see
my son. Your a degenerate, for reals. Your a piece of shit and never
want to see triumph again. You disgust me every time I see you.’ ”
“ ‘Your a fucking lame. I’m tired of your disrespect. . . .’ [¶] . . . ‘Telling
you why I can’t have [minor] over and you talk shit about it. You bitch,
I barely have a roof over my head.’ ”
“ ‘I also can’t wait for the day your parents ain’t here no more. Wanna
be nurse. I hope you fail. Ima make sure [minor] knows how much of a
piece of shit you are when he’s older and because of you I won’t be
around as much.’ ”
“ ‘You made me disrespect you the way I do cuz you started all of this.·
Ima show you the same energy you been shown me. And at this point
in my life I ain’t scared to die, even if it means taking some people with
me.’ ”
“ ‘Ima celebrate the day your parents die. I can’t wait to have you out
of my life for good.’ ”

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These text messages, alone, support issuance of the challenged orders. (See
Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1144 [unannounced and
uninvited visit and repeated contacts by phone, e-mail, and text, despite
requests of no contact, “ ‘disturb[ed] the peace’ ” and constituted “ ‘abuse’ ”
within the meaning of Fam. Code, § 6320].)
In short, the trial court’s rulings are supported by uncontradicted
evidence of “abuse” as defined by the DVPA. Accordingly, whatever spin
appellant may want to put on these text messages, or whatever he may argue
should have detracted from respondent’s credibility, are not arguments that
can carry the day given our standard of review. “ ‘We review the grant of a
DVPA restraining order for abuse of discretion, and, to the extent we are
called upon to review the court’s factual findings, we apply the substantial
evidence standard of review. [Citation.] In reviewing the evidence, we
examine the entire record to determine whether there is any substantial
evidence—contradicted or uncontradicted—to support the trial court’s
findings. [Citation.] We must accept as true all evidence supporting the trial
court’s findings, resolving every conflict in favor of the judgment. [Citation.]

“ ‘I fucking hate you. I wish you would of had an abortion and honestly
it would’––‘I would have been good. But I have a supposed son with
your stupid ass.’ ”
“ ‘I wish a car hits you one day.’ ”
“ ‘I pray that you pass away in the next year. That way I can take
custody of my son and I will make sure he doesn’t know who your side
of the family is or will ever be around them again.’ ”
“ ‘And my boy is gonna see how much of a piece of shit you are and
because of you I can’t be in my son’s life as much as I wanted to, and
you did that on purpose.’ ”
“ ‘What the fuck, [I.R.]. The social worker never informed me of any
safety plan. I was told by her that I couldn’t see my son until she spoke
with me, which she already did. You’re a piece of shit just like my ex.’ ”

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We do not determine credibility or reweigh the evidence. [Citation.] If
substantial evidence supports the judgment, reversal is not warranted even if
facts exist that would support a contrary finding.’ ” (Parris J. v.
Christopher U. (2023) 96 Cal.App.5th 108, 116.)
DISPOSITION
The DVPO and visitation orders issued by the court on February 10,
2025, are AFFIRMED. Because respondent did not appear on appeal, neither
party shall recover costs. (Cal. Rules of Court, rule 8.278(a)(5).)

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 _________________________
Banke, J.

We concur:

_________________________
Humes, P. J.

_________________________
Smiley, J.

A173164, I.R. v. S.M.L.

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