Fleming v. Popescu CA4/1

• Court: California Court of Appeal
• Decided: November 25, 2014
• Docket: D064804
• Status: Unpublished

Opinion

Filed 11/25/14 Fleming v. Popescu CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ROSLYN FLEMING, D064804

Plaintiff and Respondent,

v. (Super. Ct. No. 37-2013-00062852- CU-HR-CTL) VIRGIL POPESCU,

Defendant and Appellant.

APPEAL from orders of the Superior Court of San Diego County, William R.

Nevitt, Jr. and Pamela M. Parker, Judges. Affirmed.

Virgil Popescu, in pro. per.

No appearance for Plaintiff and Respondent.

Defendant and appellant Virgil Popescu, a self represented litigant, appeals from a

two-year civil harassment restraining order (Code Civ. Proc.,1 § 527.6) requiring him to

stay away from plaintiff and respondent Roslyn Fleming and specified family members.

As we understand his claims, Popescu contends: (1) there is insufficient evidence of

1 Statutory references are to the Code of Civil Procedure unless otherwise specified. harassment, unlawful violence, credible threats of violence, or stalking to support the

order; (2) the trial court exhibited bias; and (3) the court erred by including a false

statement in the restraining order. Popescu also appeals from an order denying his

motion to vacate the civil harassment restraining order, contending the judge who denied

the motion did not have jurisdiction to hear it and the motion should have been granted

because Fleming did not oppose it.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts appear from the clerk's transcript, which constitutes the

entirety of the appellate record. Popescu is the on-site manager of Fleming's apartment

complex. On July 26, 2013, Fleming let an eleven-year-old nontenant into the gated

property so he could access the back alley. Popescu approached Fleming and the boy and

told Fleming that the boy could not be on the property. Popescu cornered Fleming and

started screaming at her, shouting that she could move "over his dead body." Fleming

tried to get away, but Popescu refused to let her leave the area. Popescu continued to

scream in Fleming's face that he was the manager and would get "rid of you people

soon." He then bumped Fleming with his chest. Fleming screamed and called for help,

but Popescu still did not move. The boy ran away. Fleming felt that Popescu's behavior

was unpredictable, irrational and not new. Popescu's behavior scared her.

On July 29, 2013, Fleming was sitting on her porch when she noticed Popescu.

Popescu stared at Fleming for a few minutes while muttering under his breath and pacing

in the parking lot. Fleming entered her house and locked the door. Once she thought

2 Popescu left, Fleming returned to her porch and saw Popescu lingering under her

stairway. The incident scared Fleming.

Fleming filed a request for a civil harassment restraining order against Popescu.

On August 28, 2013, Judge William R. Nevitt, Jr. granted the request and issued a two-

year restraining order in Fleming's favor.

On September 9, 2013, Popescu moved to vacate the order. Judge Pamela M.

Parker denied the motion, finding insufficient evidence to vacate it. Popescu appeals

from the order and the order denying his motion to vacate.

DISCUSSION

I.

General Appellate Principles

Popescu's appellate briefing compels us to begin by reviewing settled principles of

appellate review. On appeal, a judgment or an order is presumed to be correct, and

Popescu as the party challenging the judgment or order must affirmatively show error.

(Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141; In re Marriage of Arceneaux

(1990) 51 Cal.3d 1130, 1133; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) To

meet this burden, Popescu must provide cogent legal argument in support of his claims of

error with citation to legal authority, as well as an adequate record, with supporting

references. (Cal. Rules of Court, rule 8.204(a)(1)(B), (C); Sims v. Department of

Corrections & Rehabilitation (2013) 216 Cal.App.4th 1059, 1081 (Sims); Oliveira v.

Kiesler (2012) 206 Cal.App.4th 1349, 1362; In re Marriage of Falcone & Fyke (2008) 164

Cal.App.4th 814, 830; Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003 & fn. 2;

3 Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.) If he does not do so, we may

treat his point as waived or abandoned. (In re Sade C. (1996) 13 Cal.4th 952, 994;

People v. Stanley (1995) 10 Cal.4th 764, 793; Sims, at p. 1081; Marriage of Falcone, at

p. 830; Berger, at pp. 1119-1120; Pringle, at p. 1003.) "An appellate court is not

required to consider alleged errors where the appellant merely complains of them without

pertinent argument." (Strutt v. Ontario Sav. & Loan Assn. (1972) 28 Cal.App.3d 866,

873 (Strutt).) "One cannot simply say the court erred, and leave it up to the appellate

court to figure out why." (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.)

Popescu has elected to proceed on the clerk's transcript. (Cal. Rules of Court, rule

8.121.) This is referred to as a "judgment roll" appeal. (Allen v. Toten (1985) 172

Cal.App.3d 1079, 1082.) When an appeal is on the judgment roll, we conclusively

presume evidence was presented that is sufficient to support the court's findings. (Ehrler

v. Ehrler (1981) 126 Cal.App.3d 147, 154.) Our review is limited to determining

whether any error "appears on the face of the record." (National Secretarial Service, Inc.

v. Froehlich (1989) 210 Cal.App.3d 510, 521; see Cal. Rules of Court, rule 8.163.) The

rules of appellate procedure apply to Popescu though he is representing himself on

appeal. (Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121.)

II.

Sufficiency of the Evidence

Popescu contends there was insufficient evidence to grant the restraining order.

He asks this court to read Fleming's papers, which he maintains will show that "none of

4 the elements necessary for a restraining order were shown or prove[n]." He also argues

Fleming's statements in her papers were false.

Normally, when this court considers a claim that the evidence is insufficient to

support a trial court's issuance of a section 526.7 restraining order, "[w]e resolve all

factual conflicts and questions of credibility in favor of the prevailing party and indulge

in all legitimate and reasonable inferences to uphold the finding of the trial court if it is

supported by substantial evidence which is reasonable, credible and of solid value."

(Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.) If the trial court's ruling does not

expressly decide a particular factual issue, we are required to imply findings sufficient to

support the court's ruling. (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554,

563.) We presume the record contains evidence to support every finding of fact, and

absent a fair summary of the evidence and explanation as to why it is insufficient, we

shall not disturb the trial court's factual findings. (Huong Que, Inc. v. Luu (2007) 150

Cal.App.4th 400, 409.)

Here, however, on this judgment roll appeal, we "conclusively presume that the

evidence is ample to sustain the findings." (Codekas v. Dyna-Lift Co. (1975) 48

Cal.App.3d 20, 24; Estate of Fain (1999) 75 Cal.App.4th 973, 992 ["Where no reporter's

transcript has been provided and no error is apparent on the face of the existing appellate

record, the judgment must be conclusively presumed correct as to all evidentiary matters.

To put it another way, it is presumed that the unreported trial testimony would

demonstrate the absence of error."].) Thus, there can be "no question of the sufficiency

of the evidence to support the [trial court's] findings." (Haskins v. Holmes (1967) 252

5 Cal.App.2d 580, 582.) Popescu does not acknowledge this presumption, nor does he

attempt to explain how the conclusive evidentiary presumption can be, or was, overcome.

As to the evidence appearing in Fleming's papers, Popescu fails to give a fair summary of

it, or explain how and why it is insufficient, which is his burden on appeal. (Green v.

Green (1963) 215 Cal.App.2d 31, 35 [the burden is on the appellant to demonstrate that

there is no substantial evidence to support the challenged findings and he is required to

set forth all the material evidence on the point, not merely his own; if not the error is

deemed forfeited].) Under the circumstances, he has also forfeited his sufficiency of the

evidence claims.

Further, Fleming's credibility is not a matter we may consider on appeal. " '[W]e

have no power to judge of the effect or value of the evidence, to weigh the evidence, to

consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the

reasonable inferences that may be drawn therefrom.' " (Leff v. Gunter (1983) 33 Cal.3d

508, 518; see also In re Marriage of Hill & Dittmer (2011) 202 Cal.App.4th 1046, 1051-

1052 ["[I]t is well established that the trial court weighs the evidence and determines

issues of credibility and these determinations and assessments are binding and conclusive

on the appellate court."].) In short, Popescu has not, and cannot, affirmatively

demonstrate any basis for reversal based on insufficiency of the evidence.

III.

Alleged Trial Court Bias

Popescu contends the court exhibited bias and prejudice when it considered

Fleming's motion. Specifically, Popescu contends Judge Nevitt was prejudiced after

6 hearing Popescu's testimony, in which Popescu used a racial epithet. In his brief,

Popescu states, "[I] observed the expression on the judge's face when [I] said [the epithet]

and realized that justice will not prevail in this court." Popescu further states that another

instance of bias occurred when Judge Nevitt told Fleming's father not to testify as

criminal charges were pending against him.

There are several fatal flaws in Popescu's argument. First, a question of trial court

bias must be determined from matters appearing in the reporter's transcript, as statements

of counsel in briefs are not part of the record on appeal. (Gantner v. Gantner (1952) 39

Cal.2d 272, 278.) Accordingly, because they are without record support, we disregard

Popescu's characterizations of the trial court's remarks. Because Popescu has not

provided a reporter's transcript of the hearing, the record is inadequate to consider his

claims.

Second, Popescu has not made any meaningful showing of bias. None of

Popescu's assertions contain any reasoned legal argument. He does not discuss the

standard of review, or the legal standards by which this court is to assess whether a lower

court has exhibited prejudicial bias. For this reason, Popescu has forfeited his

contentions.

Even if he did not forfeit his contentions, Popescu's argument does not indicate

that Judge Nevitt's behavior was so prejudicial as to render Popescu's hearing unfair.

"The role of a reviewing court 'is not to determine whether the trial judge's conduct left

something to be desired, or even whether some comments would have been better left

unsaid. Rather, we must determine whether the judge's behavior was so prejudicial that it

7 denied [the party] a fair, as opposed to a perfect, [hearing].' " (See People v. Harris

(2005) 37 Cal.4th 310, 347, quoting People v. Snow (2003) 30 Cal.4th 43, 78.) We

conclude Popescu has not carried his burden on appeal to establish the court committed

prejudicial misconduct that denied him a fair hearing.

IV.

Claim Regarding Purported False Statement About Firearms

Popescu contends Judge Nevitt included a false statement in the restraining order

by stating, "The court has received information that you own or possess a firearm."

According to Popescu, this statement resulted in a visit from two special agents who

inquired about his weapons. Setting aside Popescu's total failure to support his bare

factual assertions concerning the consequences of the court's purportedly false statement,

Popescu does not cite any authority and makes no pertinent or cogent legal argument.

Thus, we do not consider his claim. (See Sims, supra, 216 Cal.App.4th at p. 1081; Strutt,

supra, 28 Cal.App.3d at p. 873.)

V.

Popescu's Motion to Vacate the Restraining Order

Popescu contends Judge Parker lacked jurisdiction to hear his motion to vacate the

order and enter a different order under section 663. Popescu also contends the court

should have granted his motion to vacate because it was not opposed and Fleming did not

appear at the hearing.

8 Section 663 sets out the procedure for a party to set aside a judgment or order.2

Under California Rules of Court, rule 3.1602, "A motion to vacate judgment under Code

of Civil Procedure section 663 must be heard and determined by the judge who presided

at the trial; provided, however, that in case of the inability or death of such judge or if at

the time noticed for the hearing thereon he is absent from the county where the trial was

had, the motion may be heard and determined by another judge of the same court."

Though Popescu does not reference this rule of court in his appellate brief, presumably it

is the basis for his argument that Judge Parker could not consider his motion.

The extent of Popescu's showing is this argument: "At no time [had I] received

any [information] that the Judge was dead, unable to hear the motion, or absent from the

county." Popescu suggests the court should have informed him of the reason for Judge

Nevitt's unavailability. However, Popescu does not point to any authority showing the

court must inform a litigant of a judge's absence, and California Rules of Court, rule

3.1602 does not contain any such requirement.

Nor does Popescu point to anything within the record to suggest that Judge Nevitt

was in fact available and able to hear the motion to vacate. Because the record is silent

2 Section 663 provides more fully: "A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: [¶] 1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected. [¶] 2. A judgment or decree not consistent with or not supported by the special verdict." 9 regarding the reason for Judge Nevitt's absence, we presume in favor of the order that

Judge Nevitt was in fact unable to hear the motion within the meaning of the rules of

court. (See Denham v. Superior Court, supra, 2 Cal.3d at p. 564; In re Julian R. (2009)

47 Cal.4th 487, 498-499 [appellate court presumes the trial court was aware of and

followed the applicable law; this rule derives in part from the presumption of Evidence

Code section 664 that "official duty has been regularly performed"].) California Rules of

Court, rule 3.1602 states that if the judge who presided at trial is unable to hear the

motion to vacate, another judge may hear it. Given the silent record and applying the

presumption in favor of the order, we conclude Judge Parker did not err in hearing

Popescu's motion.

Further, section 663 does not require a party to file opposition to the motion to

vacate nor does it provide that a judge must grant the motion if an opposing party does

not appear in court. Thus, we perceive no legal basis for Popescu's claim of error.

Popescu's deficient briefing, combined with the lack of reasoned analysis pertinent

to the questions on appeal, compel us to conclude he has not made any cognizable

appellate contentions. As a result of these failings, and absent any persuasive legal

authority on the question, Popescu likewise has not demonstrated error or prejudice. In

reaching our conclusions, we are mindful that Popescu represents himself on appeal.

However, his status as a party appearing in propria persona does not provide a basis for

preferential consideration. "A party proceeding in propria persona 'is to be treated like

any other party and is entitled to the same, but no greater[,] consideration than other

litigants and attorneys.' [Citation.] Indeed, ' "the in propria persona litigant is held to the

10 same restrictive rules of procedure as an attorney." ' " (First American Title Co. v.

Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1; see also Leslie v. Board of Medical

Quality Assurance, supra, 234 Cal.App.3d at p. 121.)

DISPOSITION

The orders are affirmed.

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.