Filed 8/24/26 I.R. v. S.M.L. CA1/1 Opinion following rehearing NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 2
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 3
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:
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Humes, P. J.
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Smiley, J.
A173164, I.R. v. S.M.L.