Nelson v. Abebe CA4/1

• Court: California Court of Appeal
• Decided: February 18, 2016
• Docket: D068087
• Status: Unpublished

Opinion

Filed 2/18/16 Nelson v. Abebe CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

RENEE CAPRI NELSON, D068087

Plaintiff and Respondent,

v. (Super. Ct. No. 37-2015-00011907- CU-HR-CTL) DONALD ABEBE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Tamila

Ipema, Judge. Affirmed.

Donald Abebe, in pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Donald Abebe appeals from an order enjoining him from harassing or contacting

Renee Nelson, and ordering Abebe to stay 100 yards away from Nelson's home, vehicle, and workplace. (Code Civ. Proc., § 527.6 (§ 527.6).) Abebe challenges the sufficiency

of the evidence to support the order. We affirm the order.1

FACTUAL AND PROCEDURAL BACKGROUND

In April 2015, Renee Nelson filed a petition seeking a protective order against

Abebe.2 (§ 527.6.) Nelson claimed she is a Wells Fargo bank employee and Abebe is a

Wells Fargo bank customer who has made threats against her and other bank personnel.

In the petition, Nelson alleged the following. On December 29, 2014, Abebe

came into the bank and allegedly said to Nelson: "I want blood or money. Get me the

name of who I need to talk to and I will show up at their doorstep. I have so many

thoughts in my head you [don't] want to know what I will do to them." (Capitalization

omitted.) In February and April 2015, Abebe allegedly said he would cause harm to

Wells Fargo's CEO, John Stumf, including to "rip [his] face off." Abebe also allegedly

told others at the bank that "bad things will happen" if they don't "get some one to fix

this . . . ."

On April 8, 2015, Abebe approached Nelson at her desk at the bank, and allegedly

said " 'If I have to bring pitchforks and guns, to your doorsteps like they used to do in the

olden days, to get the answers that they wanted and then that's what I will do and I'm

1 Although Nelson did not file a respondent's brief, we must uphold the order unless we find prejudicial error based on the arguments asserted in Abebe's brief and on the appellate record. (See Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.) We find no error on the record before us.

2 Nelson's petition was not included in the appellate record. We augment the record to include the petition because it was before the trial court at the time it ruled and is necessary as foundational matter in reviewing this appeal. 2 willing to do it. Whatever it takes. I'm not scared of bloodshed, if I have to kill myself in

here then that's what I have to do. the paperwork is in the appropriate hands if I happen to

pass away anyways . . . . They don't care about my 15 month old baby girl, so why

would I care about Wells Fargo's family? . . . YOU are the face of Wells Fargo and

though you have been professional and helpful with me, someone in Wells Fargo needs

to pay. you can go home at night thinking there is a line of separation between work and

home but I will prove that there is no line. Wells Fargo needs to pay. There will be

bloodshed. . . ." (Underlining omitted.)

Later that same day, Abebe sent an email to Nelson allegedly stating: " 'It pains

me to have brought you to tears today. I apologize deeply! This situation is painful, and

frustrating. I hope we can find a resolution quickly that would end this suffering all the

way around. Your tears have driven me to come home and file as many complaints with

as many agencies and regulators as I can find. . . . Your tears make me angrier and more

determined! There are no more chances, and no more time. NOW, it's all systems

forward. Again, I am very sorry I made you cry! Hopefully we can rejoice over victory

soon. Pray that God would put His fear into these people, so that they would repent and

make this right!' " (Underscoring omitted.)

In her petition, Nelson alleged these claimed threats caused her to have

"Emotional anxiety, depression, [and] stress."

About three weeks after Nelson filed the petition, the court held a hearing. Nelson

and Abebe were both present at the hearing. The order states that Nelson testified and

called two witnesses: George Smith and Detective Dean Way. The hearing was not

3 reported by a court reporter or recorded electronically. According to the court's order,

during the hearing Detective Way told the court "there may be criminal charges pending

against" Abebe. The court then advised Abebe of his constitutional right to remain silent.

Abebe responded he would exercise this right, but would cross-examine the witnesses.

After the court heard the testimony and "careful[ly] review[ed]" the "entire

record," the court found Nelson "met the high burden of proof" under section 527.6 and

proved her case by "[c]lear and [c]onvincing [e]vidence." The court imposed a one-year

restraining order, and stated its decision was "based on the law that governs [section]

527.6 et seq." The protective order prohibited Abebe from harassing or contacting

Nelson, and ordered Abebe to stay 100 yards away from Nelson's home and workplace.

DISCUSSION

I. Review Standards

It is a fundamental tenet of appellate law that the lower court's judgment is

presumed to be correct. As the party seeking reversal, it is the appellant's burden to

provide an adequate record to overcome the presumption of correctness and show

prejudicial error. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Aguilar v.

Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)

We must make all reasonable inferences favoring the court's order, and must

affirm the judgment if any possible grounds exist for the trial court to have reached its

factual conclusions. (See Gee v. American Realty & Construction, Inc. (2002) 99

Cal.App.4th 1412, 1416; Vo v. Las Virgenes Municipal Water Dist. (2000) 79

Cal.App.4th 440, 447-448.) Any ambiguity in the record is resolved in favor of the

4 judgment. (Ibid.) In the absence of a reporter's transcript, we cannot evaluate issues

requiring a factual analysis and must presume "the trial court acted duly and regularly

and received substantial evidence to support its findings." (Stevens v. Stevens (1954) 129

Cal.App.2d 19, 20; see Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003;

Hodges v. Mark (1996) 49 Cal.App.4th 651, 657.)

An appeal is not a second trial. The role of an appellate court is to determine

whether any error occurred, and if so whether that error was prejudicial to the defendant.

Absent a prejudicial error, a Court of Appeal cannot remand a matter for a new hearing.

(See Aguayo v. Amaro (2013) 213 Cal.App.4th 1102, 1109; Paterno v. State of California

(1999) 74 Cal.App.4th 68, 106.)

II. Section 527.6

The court imposed the restraining order under section 527.6, which permits the

issuance of a protective order against a person who has engaged in "harassment."

(§ 527.6, subd. (a); see R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188-189.)

"Harassment" means "unlawful violence, a credible threat of violence, or a knowing and

willful course of conduct directed at a specific person that seriously alarms, annoys, or

harasses the person, and that serves no legitimate purpose." (§ 527.6, subd. (b)(3), italics

added.) A " '[c]redible threat of violence' is a knowing and willful statement or course of

conduct that would place a reasonable person in fear for his or her safety, or the safety of

his or her immediate family, and that serves no legitimate purpose." (§ 527.6, subd.

(b)(2).)

5 The purpose of section 527.6 " 'is to prevent future harm to the applicant by

ordering the defendant to refrain from doing a particular act.' " (Huntingdon Life

Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th

1228, 1266.) Before imposing a protective order, a trial court must find clear and

convincing evidence that unlawful harassment exists. (§ 527.6, subd. (i).) If the court

determines a party has met the "clear and convincing" standard, the court's determination

will not be disturbed on appeal without a showing of a clear abuse of discretion. (See

Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912; Ensworth v.

Mullvain (1990) 224 Cal.App.3d 1105, 1111, fn. 2.) A trial court's exercise of discretion

must be upheld unless the court acted in an arbitrary, capricious, or patently absurd

manner that resulted in a manifest miscarriage of justice. (People v. Rogers (2013) 57

Cal.4th 296, 326.)

III. Analysis

Abebe challenges the sufficiency of the evidence supporting the finding that he

engaged in conduct warranting a protective order. He contends he never threatened

Nelson; he never said he was going to " 'shoot up the bank' "; and his demeanor was

always "calm and rational." He argues Nelson contacted the police solely in retaliation

for his stated intention to complain to government regulators, and the witnesses'

testimony was based on speculation and "slander."

There are no facts in the record supporting Abebe's assertions. The hearing was

not recorded or reported, nor did the parties prepare a settled statement. Without a

reporter's transcript or stipulated facts, we must presume the evidence supported the

6 court's findings. An appellant who attacks a judgment, but supplies no reporter's

transcript, is precluded from asserting that the evidence was insufficient to support the

judgment. (City of Chino v. Jackson (2002) 97 Cal.App.4th 377, 385.)

Moreover, even assuming certain evidence supported Abebe's position, the

existence of this evidence does not show reversible error. A Court of Appeal cannot

reweigh the evidence. (See Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.) We are

required to "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." (Ibid.) An appellate court " ' "must presume that the record

contains evidence to support every finding of fact . . . ." ' [Citations.] It is the appellant's

burden . . . to identify and establish deficiencies in the evidence. [Citation.] This burden

is a 'daunting' one." (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.)

Abebe did not show reversible error under these standards. The court's order

makes clear the court understood the applicable law, applied the clear-and-convincing

proof burden, and "carefully reviewed" the evidence under proper legal standards. The

court's evaluation included Nelson's allegations in her initial petition, and a review of the

evidence to determine whether the facts supported Nelson's allegations. Based on this

evaluation, the court concluded Nelson's evidence was credible and Nelson satisfied her

statutory burden to show by clear and convincing evidence that Abebe had engaged in

harassment under section 527.6. We are bound by this factual finding.

7 In his appellate brief, Abebe asserts arguments based on facts that are not

contained in the appellate record. He provides no factual citations, and we have found no

evidence in the record supporting his assertions. An appellate court is limited to

evaluating the facts contained in the appellate record, and an appellant is not permitted to

rely on or discuss facts outside the record. (Kendall v. Barker (1988) 197 Cal.App.3d

619, 625.) Statements of alleged facts that are not in the appellate record will be

disregarded by the appellate court. (Ibid.; Knapp v. City of Newport Beach (1960) 186

Cal.App.2d 669, 679; Pulver v. AVCO Fin. Svcs. (1986) 182 Cal.App.3d 622, 632.) We

therefore reject Abebe's arguments that are based on alleged facts outside the record.

(See Cal. Rules of Court, rule 8.204(a)(1)(C).)

Abebe contends his due process rights were violated because the court "did not

allow [him] to question . . . Nelson during the hearing." There is no evidence in the

record to support that the court precluded him from questioning Nelson. Abebe states

that Nelson was not a witness at the hearing. This assertion is contrary to the court's

statement in its order that Nelson was sworn and testified. But even if Abebe's assertion

is true, there are no facts showing that Abebe could not have called Nelson as a witness.

We reject Abebe's additional contention that the trial judge abused her discretion

by "employing her own feeling and opinion, which could be tainted by a gender

bias . . . ." "An opinion formed by a judge as the result of a judicial hearing, even though

it is adverse to a party, does not amount to bias." (Guardianship of L.V. (2006) 136

Cal.App.4th 481, 500; see Kreling v. Superior Court (1944) 25 Cal.2d 305, 312.)

"[R]ulings against a litigant, even when numerous and continuous, do not [support] a

8 charge of bias and prejudice." (Dietrich v. Litton Industries, Inc. (1970) 12 Cal.App.3d

704, 719.) There is nothing in the record showing the court was biased against Abebe or

that the court based its decision on irrelevant or improper factors.

DISPOSITION

Order affirmed. The parties to bear their own costs on appeal.

HALLER, J.

WE CONCUR:

BENKE, Acting P. J.

MCDONALD, J.