Turner v. Lorenzana





Filed 10/24/11 Turner v. Lorenzana CA4/2



NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

EARL TURNER, Plaintiff and Appellant, v. LIONEL LORENZANA, Defendant and Respondent.

E050941 (Super.Ct.No. CIVDS1002032) OPINION

APPEAL from the Superior Court of San Bernardino County. John M. Pacheco, Judge. Affirmed.
Earl Turner, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
The instant matter apparently arises out of a dispute between two tenants at a residential property in Fontana, California. Plaintiff and appellant Earl Turner evidently had disputes with another tenant and filed a petition for harassment restraining order against the other tenant. Plaintiff appeals after the trial court denied his petition.
FACTS AND PROCEDURAL HISTORY
According to the Superior Court of San Bernardino County register of actions in this case, plaintiff filed a petition seeking a restraining order against defendant Lionel Lorenzana for alleged harassment. At the initial ex parte hearing on the petition, held March 2, 2010, plaintiff testified under oath that he and Lorenzana were both tenants on the property. Lorenzana occupied the front house and plaintiff occupied the back house. Plaintiff complained that Lorenzana had turned off the gas, which served both premises. Turning off the gas extinguished the pilot light in plaintiff’s residence; when Lorenzana turned the gas back on, plaintiff’s house filled up with gas. Plaintiff also indicated that he and Lorenzana were already having disputes about other issues, such as Lorenzana’s dog defecating on the lawn, and Lorenzana blocking plaintiff’s access to a storage area. On the basis of the petition and plaintiff’s testimony, the trial court granted ex parte temporary restraining order.
A proceeding for a permanent restraining order first came on for hearing on March 23, 2010. Some of the materials plaintiff wished to present had been delivered directly to the court by the custodian of records (records of the Inland Fair Housing and Mediation Board, hereafter referred to as Inland Fair Housing), but other documents (gas company records) had been given to plaintiff before they were presented to the court. The court was reluctant to receive the gas company papers because of questions about the chain of custody.
Lorenzana had apparently filed a response or answer opposing issuance of permanent restraining order. Lorenzana, who had been sworn before the hearing, represented to the court that he had moved out of the residence and no longer lived near plaintiff. The court granted a continuance to allow plaintiff an opportunity to properly subpoena the gas company records into court for the hearing.
The continued hearing took place on April 27, 2010. Initially, only plaintiff was present. Plaintiff confirmed that Lorenzana had moved out of the neighboring residence. Then Lorenzana arrived and was sworn. Lorenzana stated that he had moved out on March 9, 2010, which was a few days after the initial ex parte hearing, and before the earlier hearing on the permanent restraining order.
Plaintiff argued that the restraining order should nevertheless be granted because Lorenzana had assertedly violated the temporary order on two occasions. First, soon after Lorenzana had been served with the temporary restraining order, Lorenzana had parked his vehicle on the driveway, blocking plaintiff’s access. Second, on the date of the previous hearing, March 23, 2010, plaintiff had gone home and seen Lorenzana driving his truck near the residence; presumably, plaintiff was indicating that he had seen the truck within the 100 yard stay-away distance. As to the first incident, Lorenzana responded that he simply had parked his truck on the driveway to the residence, where he normally parked. Even though plaintiff insisted there was a police report showing that Lorenzana had blocked the driveway, Lorenzana indicated that the police have never taken any action or told Lorenzana he could not park in the driveway. “He keeps reporting me for parking. [The police] come out, I talk to them. I show them, said I’m just parking in my driveway. [¶] . . . [That] seems to be the whole thing, I am not supposed to be parking in my driveway or I’m supposed to park where he seems to wanted me to park.” Lorenzana related that, “the last time the police officer was there I . . . already had the house empty and I left that day. The police officers were tired of coming out. Every time they would come out all they would find was my truck parked in the driveway. I didn’t know that I was supposed to not park in my own driveway. [¶] And they’ve never arrested me. The last officer . . . just told me to keep doing what I was doing. I was doing nothing wrong.”
As to the incident after the previous court hearing, Lorenzana flatly denied going near defendant’s house in his truck.
Plaintiff told the court that the temporary restraining order had been granted on March 2, 2010, and served on Lorenzana on March 5, 2010. The following day, plaintiff testified, Lorenzana had parked in the driveway, blocking plaintiff and refusing to move his truck. Plaintiff presented some photographs to the court, to document this claim. Lorenzana again explained that the police officer who responded to plaintiff’s complaint that day “didn’t have me move the truck or tell me I was violating any restraining order.” Lorenzana moved out on March 9 and had not returned since. Lorenzana asserted that he had never threatened plaintiff, and had no intention of hurting plaintiff. He had moved to get away from the situation. He wanted the matter resolved. He had never done any acts of violence toward plaintiff.
Plaintiff again brought up the matter of filling plaintiff’s house with gas. He had subpoenaed gas company employees to testify at the hearing.
Lorenzana admitted that he had turned off the gas, but he had done so to install a new wall heater in the front house. He was making the repair at the landlord’s request. The gas company witnesses had been called to establish that the gas in plaintiff’s house had not been the result of a leak, but with Lorenzana’s acknowledgment that he had turned off the gas to make repairs, their testimony was superfluous.
The court found that Lorenzana had vacated the neighboring premises on March 9, 2010. Lorenzana had no reason to be near plaintiff’s residence any longer, and he did not want to have anything to do with plaintiff. Lorenzana had never personally threatened plaintiff. Lorenzana had turned off the gas, but he had done so for purposes of making repairs, and he produced the receipt for the wall heater. The court thus found no basis for issuing a permanent restraining order and denied plaintiff’s petition. The denial was without prejudice to a new application, should plaintiff discover that Lorenzana harassed plaintiff further.
Plaintiff now appeals, contending that the court essentially deprived him of a fair trial by refusing to receive plaintiff’s evidence or allow plaintiff to properly present his case.
ANALYSIS
I. Plaintiff Received a Full and Fair Hearing on the Issues
Plaintiff urges that he “did not receive a fair trial in that I was not allowed to present my case in the order that I had prepared. [I] will also show that the presiding judge was prejudiced by erroneous information provided to him by the Fair Housing Department. I was not only denied the right to present my own evidence or receive testimony by expert witnesses from the Gas Company, but the judge announced evidence for the defendant that was not presented by the defendant, nor was I allowed to view it.” Thus, plaintiff urges, the ruling denying his petition for a restraining order should be reversed.
A. The Trial Court Did Not Abuse Its Discretion in Setting the Order of Proof
Plaintiff first complains that the court allowed Lorenzana to start the hearing, and did not permit plaintiff to go first and present his case in his own way.
The reporter’s transcript of the hearing on the permanent injunction is not entirely clear, but it appears to show that initially plaintiff was the only party present. Plaintiff acknowledged to the court that Lorenzana had in fact vacated the front house, and then Lorenzana himself entered the courtroom. The court then engaged in colloquy with Lorenzana to bring him current on the proceedings, and reconfirm that he had moved. The court established that Lorenzana had filed an answer, and was personally present to oppose granting a permanent restraining order, and then opened the floor to plaintiff to present his case: “Mr. Turner, why should I grant you a permanent restraining order against Mr. Lorenzana‌”
Far from preventing plaintiff from presenting his case, the court positively invited plaintiff to present his case.
Plaintiff complains in particular that allowing the defendant to go first forced him to search among his papers for rebuttal evidence, and that plaintiff was required to allow the defendant to view the evidence first before presenting it to the court. Plaintiff urges that he “told the Judge that the pictures showed the defendant deliberately and willfully violating HIS court order not to block my path.” The record shows that the court received and reviewed the photographs, which apparently depicted Lorenzana’s parked truck. Plaintiff was fully able to present his evidence and argue its significance; that the trial court did not share plaintiff’s legal conclusion as to what the photographs showed does not mean that plaintiff was unable to present his case.
Indeed, a review of the entire proceeding shows that the court heard from the parties in turn during several exchanges of views. Evidence Code section 320 provides that: “Except as otherwise provided by law, the court in its discretion shall regulate the order of proof.” Both parties were permitted several opportunities to present their own points and to rebut the evidence of the opposing party. Regardless of which party “went first,” there was no curtailment of the proceedings, and each party had a full and fair opportunity to respond. No error, and no abuse of discretion, appears.
B. Plaintiff Has Failed to Show That the Trial Court Refused to View His Evidence
Plaintiff next urges that he had police reports from an officer depicted in his photographs, which reports would “confirm the time and date and ‘Proof of Service’ TWICE, and the date and time of these pictures showing the defendant blocking my path in direct violation of the court order.” The transcript reflects that Lorenzana acknowledged receiving service of the temporary restraining order; he had obtained a copy himself, and had also been served by a police officer. Evidence that Lorenzana had been served, “TWICE,” is already in the record. It was also undisputed that a confrontation about parking took place on or about March 5, 2010, after Lorenzana had been served. Plaintiff was fully able to present his photographs and police report concerning the incident of March 5, when plaintiff claimed that Lorenzana had violated the restraining order.
The difficulty, however, lies not in the admission, exclusion, or consideration of evidence, but in plaintiff’s legal conclusion (i.e., that “defendant [was] blocking my path in direct violation of the court order”. A photograph does not have any independent legal effect. (People v. Bamberg (2009) 175 Cal.App.4th 618, 627.) Thus, while the pictures may depict Lorenzana’s truck parked in a particular location, and there may exist a police report that officers responded to plaintiff’s complaint of a violation, the legal significance of the matters depicted or described was for the trier of fact, i.e., the court. That a vehicle may be shown parked in a particular location does not ipso facto mean either that plaintiff’s path was blocked, or that a violation otherwise occurred. Lorenzana explained that the officers who responded to plaintiff’s complaint of a violation never arrested him, nor directed him to move his truck, nor advised him to park in a different location. The officers in the field were charged with the duty of enforcing the temporary restraining order, but they never took any steps to direct a change in the existing situation. The evidence presented at the hearing thus ostensibly shows that, as far as the officers were concerned, no violation had taken place.
In addition, the record is inadequate for review on the point. We do not have before us a copy of the petition or the terms of the temporary restraining order, nor the pictures in question, nor the police report(s). The burden is on the appealing party to provide an adequate and accurate record on appeal to demonstrate error. The failure to do so “precludes an adequate review and results in affirmance of the trial court’s determination.” (Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1.) To overcome the normal presumption on appeal that an appealed judgment or order is presumed correct, an appellant must provide an adequate record demonstrating error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.) We have no basis to conclude there was any error with respect to the court’s receipt and consideration of plaintiff’s photograph and police report evidence.
C. Plaintiff Has Failed to Show Affirmative Error in Receiving Defense Evidence
Plaintiff next argues that the court introduced evidence submitted by the defendant without ever allowing plaintiff to see the evidence. That is, Lorenzana had apparently submitted a document “by mail regarding the purchase of a furnace,” but plaintiff “was not allowed to view” the document.
This contention apparently revolves around the disputed incident when plaintiff’s home was filled with gas after the gas had been turned off. Plaintiff admitted that he did not know of his own knowledge whether Lorenzana had turned off the gas, but pointed out that, “Mr. Lorenzana, himself, in his answer said he turned off the gas.” Lorenzana confirmed this, but explained that he had done so because he was changing out a wall heater unit. He testified, “I think I sent you a . . . copy of the receipt for the wall heater. It was in my statement that I was repairing the wall heater, I was exchanging it.” The court located a receipt in the record for the wall heater.
Inferentially, the receipt was submitted with Lorenzana’s answer to plaintiff’s petition: Lorenzana testified, “It was in my statement . . . .” Presumably, plaintiff was served with a copy of Lorenzana’s answer and any declaration accompanying it. Thus, the claim that plaintiff was not permitted to view the evidence is not supported by the record. Consistent with this conclusion, plaintiff also never objected below to the court’s consideration of the receipt. Plaintiff never told the court that he had not seen the receipt.
Plaintiff’s failure to object supports the inference that he was aware of the evidence, but even if not, the failure to object is itself an independent basis to reject the claim of error on appeal. “As a general rule a party objecting to evidence must make a timely and specific objection in the trial court.” (People v. Davis (2008) 168 Cal.App.4th 617, 627, italics original; see also Evid. Code, § 353.) Plaintiff failed to object and, so, has forfeited the claim of error.
In any case, the admission of the evidence was harmless. Defendant did not factually dispute that Lorenzana had installed a new wall heater; indeed, he claimed to have a picture of it. Rather, his point of contention was that it was unnecessary to have completely turned off all the gas at the source; Lorenzana could have done the installation by using only the shut-off valve at the base of the wall heater. Lorenzana’s testimony alone, if credited, was sufficient to establish that he had shut off the gas for the purpose of installing the new wall heater. The receipt was not essential. It is not reasonably probable that the result would have been different had the court not considered the receipt. (People v. Watson (1956) 46 Cal.2d 818, 836.)
D. The Court Was Not Required to Allow the Gas Company Witnesses to Testify to Irrelevant or Redundant Matters
Defendant next contends that the trial court erred in refusing to let his witnesses, subpoenaed employees of the gas company, testify. Defendant complains that the court gave no reason for refusing to allow the witnesses to testify. The record belies this claim. There was a reason given: their testimony was not relevant to any contested issue.
The court asked plaintiff for an offer of proof as to the nature of the gas company employees’ testimony. Plaintiff responded, “First of all, they’re going to testify that there was no gas leak so, in other words, well, he’s already admitted he turned it off so that was the point.” In other words, plaintiff proffered the witnesses to establish that the gas in his house did not come from a leak in the system. There was no need for such testimony, as plaintiff himself recognized, because Lorenzana had already acknowledged turning off the gas himself.
Plaintiff suggested that the gas company employees could also provide evidence about another incident in which they had been called to the residence. Plaintiff testified, “I got up one morning and there was no hot water. So, I went around to the hot water tank. [¶] Sure enough, I smelled gas over there and I called the Gas Company out again.” Plaintiff did not wait for the gas company representative to arrive, but left for work. When the gas company employee arrived, Lorenzana told them he had not reported the matter (which he had not) and he knew nothing about it. As far as Lorenzana knew, there was no problem with the water heater. Both plaintiff and Lorenzana appear to agree that the gas company employees left without doing or seeing anything with respect to the water heater. Therefore, there was nothing relevant they could have said about the incident.
Plaintiff’s own offers of proof established that there was nothing of relevance that the gas company employees could say. Defendant’s undisputed testimony showed that the gas in plaintiff’s house did not result from a system leak. Otherwise, the gas company employees could have had no knowledge concerning what was done or not done to the water heater. The court properly disallowed the introduction of irrelevant evidence. “[A] court ‘has no discretion to admit irrelevant evidence.’ ” (People v. Alexander (2010) 49 Cal.4th 846, 904.)
E. Plaintiff Has Not Shown Error With Respect to Other Evidentiary Matters
Plaintiff claims that the court may have been “prejudiced by the erroneous documents presented by housing [presumably, Inland Fair Housing] at the previous hearing,” but that he had subpoenaed and was expecting another important item from Inland Fair Housing that had not been submitted to the court, which could have corrected the allegedly erroneous statement. Plaintiff further urges that, because the court had stated at the previous hearing that it would allow the continuance to obtain further papers, but that the hearing would go forward on the continued date, plaintiff felt intimidated and discouraged from asking for a further continuance when Inland Fair Housing assertedly refused to submit a corrected statement.
This claim is unreviewable on the record presented. The clerk’s transcript does contain documents subpoenaed from Inland Fair Housing. The reporter’s transcript indicates that the Inland Fair Housing documents were the records that had properly been subpoenaed at the initial hearing on the permanent restraining order, but that plaintiff had failed to subpoena the gas company documents directly to the court. The continuance was permitted to allow plaintiff time to properly subpoena the gas company records.
The Inland Fair Housing records essentially document some of the disputes between plaintiff and Lorenzana, with some attempts at mediation or some efforts at accommodation through the landlord. They effectively corroborate, to an extent, the initial claims of plaintiff’s petition, at least in terms of ongoing disputes between the two tenants. It is impossible to ascertain, however, what plaintiff believes is erroneous about the records. It is also impossible, because there is absolutely nothing in the record on the matter, to tell what additional or corrective information plaintiff requested from Inland Fair Housing, and how or whether his request was denied.
Plaintiff also points to a letter submitted to the court by the landlord to the effect that Lorenzana had complained to her that plaintiff was harassing him, but she had not witnessed any harassment herself, and so could not competently testify about any harassment. Plaintiff appears to assert that the missing (undescribed) document from Inland Fair Housing and the landlord’s letter would somehow disprove erroneous statements in Inland Fair Housing’s earlier submissions. Plaintiff’s failure to articulate a coherent argument defeats his claim of error in this regard. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007 [an issue is waived on appeal where appellants “fail[ed] to make a coherent argument or cite any authority to support their contention”]; see also Cal. Rules of Court, rule 8.204(a)(1)(B) [each point in a brief must be supported by “argument and, if possible, by citation of authority”].)
Plaintiff urges that he “had over 150 items of evidence to present,” and warned the court that “[t]hat’s just the tip of the iceberg,” when trying to present his claims against Lorenzana, but the court did not give him a chance to submit all his evidence or to testify in his own way. Plaintiff asks that this unpresented evidence be allowed before this court. Tellingly, plaintiff has not even given a hint as to what these proffered items of evidence might be. In any case, the request is denied. Our powers to take evidence on appeal are limited. (Cal. Const., art. VI, § 11; Code Civ. Proc., § 909; Cal. Rules of Court, rule 8.252(c); Butt v. State of California (1992) 4 Cal.4th 668, 697, fn. 23.) “[A]n appellate court generally is not the forum in which to develop an additional factual record,” (People v. Peevy (1998) 17 Cal.4th 1184, 1207) and the record on appeal will not be augmented to add material that was not a proper part of the record in the trial court (People v. Jones (1997) 15 Cal.4th 119, 171, fn. 17, overruled on a different point in People v. Hill (1998) 17 Cal.4th 800, 823).
Plaintiff has failed to demonstrate any error with respect to admission of additional evidence at trial. He gives no hint as to what may have been excluded, or how it would have been helpful to his case. The record demonstrates that both parties were given ample opportunity to articulate and present their evidence and arguments below. The long and the short of it is that Lorenzana moved away, obviating the close contact between the parties and any need for any restraining orders. The denial of plaintiff’s petition was without prejudice to a new petition if Lorenzana pursued any ongoing harassment or failed to stay away. Under all the circumstances, plaintiff has failed to carry his burden of showing affirmative error on the record.
DISPOSITION
For the reasons stated, the order denying plaintiff’s petition for restraining order is affirmed.
Each party to bear their own costs.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
Acting P. J.


We concur:


RICHLI
J.


CODRINGTON
J.


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