Opinion
G055764
11-18-2019
WILLIAM G. JOINER, Plaintiff and Respondent, v. KELLY S. JOHNSON, Defendant and Appellant.
Kelly S. Johnson, in pro. per., for Defendant and Appellant. Troutman Sanders, Martin W. Taylor; Parmes Law and Penelope Parmes for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2017-00941491) OPINION Appeal from a judgment of the Superior Court of Orange County, Christopher Day, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Kelly S. Johnson, in pro. per., for Defendant and Appellant. Troutman Sanders, Martin W. Taylor; Parmes Law and Penelope Parmes for Plaintiff and Respondent.
* * *
Defendant Kelly Johnson appeals from a restraining order issued pursuant to Code of Civil Procedure section 527.6, following an uncontested hearing, that enjoins him from harassing, intimidating, threatening, or disturbing the peace of William Joiner and Joiner's immediate family for a period of three years. On appeal, Johnson contends (1) the restraining order was not supported by substantial evidence; and (2) he was denied due process because the court failed to continue the hearing on the restraining order. Johnson, however, has failed to provide us a record of the restraining order hearing, either in the form of a reporter's transcript or otherwise, and thus, we cannot assess his substantial evidence claim. His second contention similarly fails as the record does not show he asked the court to continue the hearing. Johnson cannot prevail on appeal with a complaint the court did not grant him a continuance when he never requested one. Accordingly, we affirm.
All further statutory references are to the Code of Civil Procedure unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
"We summarize the facts in the light most favorable to the judgment." (Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1405.) Because we do not have a record of the hearing on the restraining order or a record of any exhibits considered at the hearing, these facts are drawn from Joiner's request for a restraining order, his declaration in support of the request, including the exhibits attached thereto, and his supplemental declaration.
Throughout his briefs, Johnson repeatedly discusses purported facts that are not part of the appellate record. Under wellestablished appellate rules, we must disregard them as our review is limited to facts contained in the appellate record. (Oldenkott v. American Electric, Inc. (1971) 14 Cal.App.3d 198, 207.) Johnson's briefing also suffers from an additional flaw. For the most part, he ignores the facts in the appellate record and fails to include them in the required summary of facts. (Cal. Rules of Court, rule 8.204(a)(2)(C).)
In 2007, the William G. Joiner Trust (Trust), of which Joiner is the trustee, made a loan to Johnson, secured by a deed of trust on Johnson's residence in Laguna Hills. After Johnson defaulted on the loan, the Trust foreclosed on the property and purchased it via a foreclosure sale in June 2015. The Trust commenced an unlawful detainer action against Johnson. Judgment for possession was entered in favor of the Trust on September 22, 2015, and a writ of possession was issued. Johnson appealed the judgment for possession and obtained a stay pending appeal, on the condition he make monthly payments of reasonable rental value to the court. When he defaulted on the payments, the stay was lifted and a new writ of possession was issued. Johnson and his family were evicted from their home on February 1, 2017.
During the litigation over the foreclosure, Johnson made statements in e-mails to Joiner and Joiner's attorneys that were perceived as threats. On multiple occasions between October 2016 and August 2017, Johnson posted flyers derogatory of Joiner around Joiner's private residential community, the shopping center near Joiner's home, on the foreclosed property, and around the neighborhood of the foreclosed property. These flyers listed Joiner's home address and accused him of being a financial predator, violating state and federal laws and regulations, and recording fraudulent documents in an attempt to steal Johnson's home. After Johnson was seen on video surveillance walking up to and around Joiner's property about 1:30 a.m. and attempting to look into Joiner's home, Joiner sought protection for himself and his family by filing a request for a restraining order against Johnson.
On September 1, 2017, after reviewing Joiner's request for a restraining order and his supporting declaration and exhibits, the court granted a temporary restraining order. Johnson was ordered to stay at least 100 yards away from Joiner, his family, home, vehicles, and the foreclosed property. A hearing was set in the matter for September 26, 2017. The hearing on the restraining order was subsequently continued to October 17, 2017, and the temporary restraining order was extended until the new hearing date.
On October 13, 2017, Joiner filed a supplemental declaration in support of his request for a restraining order, stating Johnson had been spotted in the canyon behind Joiner's home on October 4 at 4:40 p.m. Reviewing footage from his security cameras, Joiner saw Johnson watching the house from the canyon. Johnson walked toward Joiner's house and videoed Joiner's back property fence from a distance of 100 yards. Joiner requested the court enter a permanent restraining order against Johnson and that the stay away order be expanded to prohibit Johnson from coming within 500 yards of the protected persons and places.
Johnson did not file a written opposition to the request for a restraining order or the supplemental declarations filed in support.
A hearing on the restraining order was held on October 17, 2017. Joiner was sworn and testified at the hearing. Johnson failed to appear. The court issued a three-year restraining order, enjoining Johnson from directly or indirectly contacting Joiner or members of Joiner's household. The restraining order also requires Johnson stay at least 300 yards away from Joiner, members of the Joiner family, their home, workplace, vehicles, and schools. Johnson timely appealed.
Joiner requests we take judicial notice of decisions in two court cases involving him and Johnson: (1) a decision by the United States Bankruptcy Court and (2) an appellate division opinion affirming an unlawful detainer judgment. Nine months after Joiner filed his request for judicial notice, Johnson filed a late opposition (see Cal. Rules of Court, rule 8.54(a)(3) [any opposition must be filed within 15 days after motion is filed]) and his own motion for judicial notice of a complaint for damages he filed against Joiner and others in June 2019. We deny both parties' requests for judicial notice because the documents in both were produced after the court issued the restraining order and were, therefore, not before the court when it issued the order. Generally, reviewing courts "do not take judicial notice of evidence not presented to the trial court." (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) We also deny these requests for the related reason that these documents have little, if any, relevancy to the issues raised in this appeal. (See Rosen v. St. Joseph Hospital of Orange County (2011) 193 Cal.App.4th 453, 457, fn. 2 [a court need not take judicial notice of documents irrelevant to the issues presented on appeal].)
DISCUSSION
We first address Johnson's challenge to the sufficiency of the evidence supporting the restraining order before turning to his complaint that the court's failure to continue the hearing denied him due process.
Sufficiency of the Evidence
Johnson contends the evidence was insufficient to support the issuance of the restraining order against him under section 527.6. His claim fails because the appellate record does not include a reporter's transcript or other record of the oral proceedings at the restraining order hearing. Without a record of the oral proceedings, we must presume the evidence sufficient to support the issuance of the restraining order.
The party challenging a judgment on appeal bears the burden of providing an adequate record to enable the reviewing court to assess whether the trial court erred. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) This burden is placed on the challenging party because "[a] judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Without an adequate record, the judgment must be affirmed. (Oliveria v. Kiesler (2012) 206 Cal.App.4th 1349, 1362.)
Johnson has not sustained his burden of providing an adequate appellate record. He initially included the reporter's transcript of the restraining order hearing in his designation of the appellate record. However, he subsequently filed an election to proceed without a "record of the oral proceedings," indicating his "understanding and belief" that a court reporter was not present at the hearing and there was no audio recording of the hearing. The appellate record does not explain the basis for Johnson's belief that a court reporter was not present. Indeed, the minute order for the hearing indicates a court reporter was present.
It is possible the reporter did not transcribe the proceedings as Johnson's failure to appear resulted in an uncontested request for a restraining order by Joiner. Regardless, the fault or burden lies with Johnson to produce an adequate record for his appeal. (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.) --------
Even if Johnson was unable to obtain a reporter's transcript of the proceedings, there were other avenues available to him to provide us with a record of the oral proceedings before the court. "The California Rules of Court provide an appellant with a choice of several types of records upon which to take an appeal." (Nielsen v. Gibson, supra, 178 Cal.App.4th at p. 324.) An appellant intending "to raise any issue that requires consideration of the oral proceedings in the superior court" must include in the appellate record a reporter's transcript, an agreed statement, or a settled statement. (Cal. Rules of Court, rule 8.120(b).) If Johnson was unable to obtain a reporter's transcript, he could have proceeded with an agreed statement under rule 8.134 or a settled statement under rule 8.137. (Cal. Rules of Court, rules 8.120(b), 8.130(h)(1).) We acknowledge either of these options may have been difficult for Johnson because he was not present at the hearing. While providing us with an adequate record may have been difficult, it was not impossible, and any difficulty was created by Johnson's own failure to appear. Regardless of difficulty, it is Johnson's burden, as the party challenging the restraining order, to provide us with an adequate record to consider his claims of error.
The absence of a record of the oral proceedings is significant. When an appellant elects to proceed on a clerk's transcript only, as Johnson did here, the appeal is "considered to be upon the judgment roll alone." (Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207; Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083.) In such an appeal, "every presumption is in favor of the validity of the judgment and all facts consistent with its validity will be presumed to have existed." (Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 924; see Cal. Rules of Court, rule 8.163.) As explained in Estate of Fain (1999) 75 Cal.App.4th 973: "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. [Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies no reporter's transcript will be precluded from raising an argument as to the sufficiency of the evidence." (Id. at p. 992.)
Thus, for purposes of this appeal, we must conclusively presume the evidence presented at the hearing on October 17 was sufficient to support the restraining order, and "[o]ur review is limited to determining whether any error 'appears on the face of the record.'" (Nielsen v. Gibson, supra, 178 Cal.App.4th at pp. 324-325.) We find none.
The Record Does Not Show the Court Erred
The restraining order was issued under section 527.6. "Section 527.6 was enacted 'to protect the individual's right to pursue safety, happiness and privacy as guaranteed by the California Constitution" and to provide "expedited injunctive relief to victims of harassment." (Brekke v. Wills, supra, 125 Cal.App.4th at p. 1412.) Section 527.6 defines harassment as "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).) Here, we are concerned with the third type of harassment—a course of conduct.
A course of conduct is defined in section 527.6 as "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means . . . ." (Id., (b)(1).) However, "[c]onstitutionally protected activity is not included within the meaning of 'course of conduct.'" (Ibid.) To constitute harassment, "[t]he course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner." (Id., subd. (b)(3).)
Section 527.6 provides the court shall hold a hearing on a petition for a restraining order. (Id., subd. (g).) At the hearing, the judge shall receive relevant testimony and "may make an independent inquiry." (Id., subd. (i).) If the court "finds by clear and convincing evidence that unlawful harassment exists," a restraining order "shall issue prohibiting the harassment." (Ibid.)
Johnson contends the court erred in finding unlawful harassment, and he raises three challenges to the sufficiency of the evidence supporting the restraining order. First, he argues the evidence does not prove Joiner suffered substantial emotional distress or that a reasonable person would suffer substantial emotional distress. Second, he asserts his conduct served a legitimate purpose and was constitutionally protected activity so there was insufficient evidence of a course of harassing conduct. Third, he contends the evidence did not show a risk of future harm. We reject each contention in turn.
Evidence of Emotional Distress
Johnson asserts the evidence supporting the restitution order is insufficient because there is no evidence his conduct caused Joiner to suffer substantial emotional distress or that it would cause a reasonable person to suffer substantial emotional distress. He complains "there is no medical, psychological or other evidence in the record that the alleged offending conduct . . . , however offensive and annoying, caused 'substantial emotional distress,' within the meaning of § 527.6." Johnson seems to believe there must be evidence the offending conduct caused Joiner to seek treatment or counseling, either medical or psychological, in order to satisfy the substantial emotional distress requirement in section 527.6. He is mistaken. Neither physical nor psychological injury is required.
The phrase "substantial emotional distress" is not defined in section 527.6. In Schild v. Rubin (1991) 232 Cal.App.3d 755, the court analyzed the substantial emotional distress requirement of section 527.6 and looked to the tort of the intentional infliction of emotional distress for a definition as it uses a "similar phrase 'severe emotional distress.'" (Schild, at p. 762.) In the context of that tort, "'severe emotional distress' means highly unpleasant mental suffering or anguish 'from socially unacceptable conduct' [citation], which entails such intense, enduring and nontrivial emotional distress that 'no reasonable [person] in a civilized society should be expected to endure it.'" (Id. at pp. 762-763.) For a claim based on the intentional infliction of emotional distress, "the courts of this state have also acknowledged the right to recover damages for emotional distress alone, without consequent physical injuries, in cases involving extreme and outrageous intentional invasions of one's mental and emotional tranquility." (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 498.)
Similarly, section 527.6 does not require a person seeking its protection to show the offending course of conduct caused him or her physical or psychological injuries or that he or she sought treatment or counseling. Indeed, a person seeking a restraining order under section 527.6 does not have to provide direct testimony that the harassment caused emotional distress as a trial court may infer substantial emotional distress from the nature of the harassing conduct and the plaintiff's demeanor while testifying. (Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1110-1111.)
Even if medical or psychological evidence was required to show substantial emotional distress, we would nevertheless reject Johnson's contention of insufficient evidence. Because we do not have a record of the oral proceedings at the restraining order hearing, we must presume the evidence presented at the hearing was sufficient to prove Johnson's conduct caused Joiner to suffer substantial emotional distress. (§ 527.6, subd. (b)(3)); Estate of Fain, supra, 75 Cal.App.4th at p. 992.)
Moreover, the evidence in the appellate record we have been provided is sufficient to show Joiner suffered substantial emotional distress caused by Johnson's course of conduct. In his declaration in support of the request for the restraining order, Joiner stated, "Johnson's threats, harassment, and erratic behavior have caused and continue to cause me great concern for my personal safety as well as the safety of my wife and three children, particularly since his visit to my home at 1:30 a.m. on August 18."
Johnson next contends that even if his conduct caused Joiner to suffer substantial emotional distress, it would not have caused a reasonable person to suffer substantial emotional distress because his actions were all remote and nonconfrontational. We disagree.
Johnson's hostile behavior would cause a reasonable person to suffer substantial emotional distress. Johnson started with e-mails to Joiner and Joiner's counsel, accusing Joiner of fraud and perjury. In his e-mails, he stated Joiner was going to get "all that he deserves" and regret what he had done to Johnson's family. He posted flyers with derogatory statements about Joiner, accusing him of being a financial predator, recording fraudulent documents, violating state and federal laws, and trying to steal Johnson's home. On two occasions, he accessed Joiner's private community without permission and posted these flyers. In one instance, he came onto Joiner's property and was seen on video surveillance walking up to and around Joiner's house, attempting to look over the gates and into the house in the middle of the night. Even after the temporary restraining order was issued, Johnson returned to Joiner's home and videoed Joiner's back fence, pausing at the access points. The fact Johnson remained in compliance with the temporary restraining order by maintaining a distance of 100 yards does not dissipate the emotional distress it would have caused a reasonable person. The totality of Johnson's conduct would cause a reasonable person nontrivial distress and mental anguish that should not have to be endured. Even in the limited record we have been provided, we find sufficient evidence of substantial emotional distress.
We reject Johnson's contention that his case is analogous to Schild v. Rubin, supra, 232 Cal.App.3d 755. In his appellate brief, Johnson quotes language from Schild out of context, asserting "[a] reasonable person must realize that complete emotional tranquility is seldom attainable, and some degree of transitory emotional distress is the natural consequence of living among other people in an urban or suburban environment" and a "reasonable person must expect to suffer and submit to some inconveniences and annoyances from the reasonable use of property by neighbors, particularly in the sometimes close living of a suburban residential neighborhood." (Id. at p. 763.) This case does not resemble the situation considered in Schild.
Schild v. Rubin, supra, 232 Cal.App.3d 755 involved homeowners seeking an injunction that prohibited their neighbor's children from playing basketball in the neighbor's backyard, except at designated times. The homeowners complained the children played basketball a few times a week for up to 30 minutes and this interfered with the homeowners' afternoon naps and "their ability to rest and relax in their own home." (Id. at p. 758.) It was in this context that the Schild court observed a reasonable person must realize "some degree of transitory emotional distress is the natural consequence of living among other people in an urban or suburban environment." (Id. at p. 763.) We decline to equate Johnson's purposeful and hostile conduct with the conduct at issue in Schild—children playing basketball in their own yard a few times a week. (Id. at p. 758.) Johnson was not Joiner's neighbor engaging in boisterous play on his own property. Johnson's course of conduct would cause a reasonable person to suffer substantial emotional distress within the meaning of section 527.6, subdivision (b)(3).
Evidence of Legitimate Purpose and Constitutionally Protected Activity
Johnson next contends his conduct serves a legitimate purpose and is constitutionally protected, and therefore, the court erred in issuing the restraining order. He asserts "[t]here were [six] legitimate purposes" for his conduct: [¶] "1. Public Service Announcements and truth is a defense; [¶] 2. Put party on notice re ongoing civil and criminal violations; [¶] 3. Give party an opportunity to mitigate the mounting damages; [¶] 4. Avoid this from happening to other families . . . ; [¶] 5. Make other homeowners aware of local Financial Predator; and [¶] 6. Exercise of rights protected by both Federal and State Constitutions." Contending his actions are protected by the First Amendment, he similarly asserts his communications were a public service announcement and were true.
As Johnson has not provided a record of the oral proceedings in the trial court, we cannot review any of these claims; they all require factual findings. Although Johnson contends on appeal there were six legitimate purposes for his conduct and that his conduct is constitutionally protected activity, he never raised these contentions in the trial court. He failed to file a written opposition to the request for the restraining order, and he failed to appear at the hearing on the order. He presented no evidence showing his statements in the flyers were true nor any argument that his conduct was constitutionally protected. In short, he did not give the trial court the evidence it needed to rule in his favor, and he has given us even less. As Johnson has not provided us with a record of the oral proceedings in the trial court, we cannot review any of these claims.
Likelihood of Future Acts of Harassment
Johnson makes another attack on the restraining order by contending the evidence does not show a likelihood of future acts of harassment. Again, we reject his contention because we do not have a record of the hearing on the restraining order and must presume the evidence presented at the hearing showed the harassment was likely to continue unless Johnson was restrained.
Johnson correctly notes injunctive relief lies only to prevent threatened injury and has no application to completed wrongs. "[T]he express codified purpose of a prohibitory injunction is to prevent future harm to the applicant by ordering the defendant to refrain from doing a particular act." (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 332.) "'Thus, to authorize the issuance of an injunction, it must appear with reasonable certainty that the wrongful acts will be continued or repeated.'" (Id. at p. 333.) A restraining order should not be issued to "serve as punishment for past acts . . . ." (Id. at p. 332.)
There is sufficient evidence in the limited appellate record before us showing that Johnson's harassing course of conduct was likely to continue unless restrained. Even after the court issued the temporary restraining order, Johnson continued to harass Joiner by returning to Joiner's property and videoing the back property fence. Although Johnson's conduct did not technically violate the temporary restraining order as he maintained the required distance of 100 yards when he returned to Joiner's house, his actions demonstrated his intention to continue to harass Joiner. Johnson disputes the evidence he was videoing Joiner's property after the temporary restraining order was issued, but his denial is not part of the appellate record and therefore must be ignored by this court. There is sufficient evidence to support the court's implied finding that the harassment was likely to continue in the future unless the restraining order was issued.
Accordingly, Johnson's sufficiency of the evidence challenge to the issuance of the restraining order fails.
Failure to Continue the Hearing
Johnson asserts he notified both the court and opposing counsel that he was unable to attend the hearing on the restraining order because of car trouble and contends the court's failure to continue the hearing deprived him of his ability to present evidence and cross-examine Joiner, resulting in a violation of his due process rights. Again, we lack an adequate record to evaluate Johnson's claim of error and must deny it.
The appellate record shows that after issuing the temporary restraining order, the court scheduled a hearing on the request for a restraining order for September 26, 2017. The parties subsequently submitted a stipulation requesting the hearing be continued to September 29, 2017, because Joiner had a scheduling conflict. The court, however, continued the hearing to October 17, 2017, and Johnson was provided notice of the new hearing date. But Johnson failed to appear for the hearing.
The appellate record does not show Johnson requested the court continue the October 17 hearing. Nor does it include a ruling by the court on any such request. Johnson, instead, supports his appellate claim by relying on two e-mails he sent to Joiner's counsel on October 16, which he attached to his notice of appeal. But these e-mails are not part of the appellate record. Johnson cannot designate these documents as part of the appellate record by simply attaching them to his notice of appeal. "The fact these documents are in the [clerk's transcript] does not mean we may consider their contents." (Rosen v. St. Joseph Hospital of Orange County, supra, 193 Cal.App.4th at p. 456, fn. 1.)
Nor is there any indication these e-mails were before the court when it issued the restraining order. "'It is an elementary rule of appellate procedure that, when reviewing the correctness of a trial court's judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered.'" (Haworth v. Superior Court (2010) 50 Cal.4th 372, 379, fn. 2.) Because Johnson's e-mails, explaining why he needed a continuance and his efforts to obtain one, were not before the court when it ruled on the restraining order, we cannot consider them. As there is nothing in the appellate record showing the court was aware of Johnson's desire to continue the hearing and refused to do so, Johnson's contention that the court deprived him of due process fails.
Even accepting Johnson's e-mails as part of the appellate record, he still cannot show the court erred by failing to grant him a continuance because his e-mails do not show he actually requested a continuance from the court. In his first e-mail sent at 12:29 p.m. on October 16, the day before the scheduled hearing, Johnson informed Joiner's counsel that he would be unable to attend the hearing because his car had broken down and he did not have other transportation available to get to court. In his e-mail to counsel, he requested the hearing be continued for 21 to 30 days and indicated he would call the court after lunch to inform it of his unavailability.
In a second e-mail sent at 4:25 p.m. on October 16, Johnson informed Joiner's counsel that he had spoken with the courtroom clerk and informed her of his unavailability for the scheduled hearing because of car trouble. Johnson related to counsel that the court clerk suggested he submit a stipulation to continue the hearing because she could not continue the hearing based on his call. Assuming, but not asking whether, counsel would stipulate to a continuance, Johnson told counsel, "you can email me an appropriate Stipulation and I can try to print it out and return it later. Otherwise, I authorize and/or will provide an e-signature for a Stipulation to continue the hearing further for 21 - 30 days . . . ." Johnson then proceeded to demand that counsel and Joiner "withdraw, cancel, void and seal the Supplemental Declaration of William G. Joiner in Support of Request for Restraining Order containing Mr. Joiner's most recent perjured statements." In concluding the e-mail, he stated: "Please contact me if any questions or with regard to submitting a Stipulation to Continue, if required, as I will also be contacting legal counsel to represent me in this matter as the ongoing fraud, character assassination and perjury has to stop. Therefore, please let the Court know and understand that I also need time to retain counsel in this matter as Mr. Joiner has just taken this to a new level with your and his repeated fraudulent actions and ongoing perjury." (Underlining and bold omitted.)
Johnson's e-mails do not show he ever requested a continuance by way of stipulation or a cognizable motion to continue. After speaking to the court clerk, Johnson knew his phone call was insufficient to get the matter continued and was on notice that he needed to either submit a stipulation or motion to continue. Johnson presented neither and now blames the court for not continuing the hearing.
Although he attempted to obtain a stipulated continuance, it appears his efforts were unfruitful. In his e-mail sent at 4:25 p.m. the day before the scheduled hearing, he requested opposing counsel prepare and e-mail him a stipulation to continue and he would "try to print it out and return it later." The other alternative he proposed in his e-mail was that he would authorize an e-signature for a stipulation to continue the hearing. The documents Johnson attached to his notice of appeal do not show a response by opposing counsel. Thus, we do not know whether Joiner's counsel was agreeable to continuing the hearing or not and if their willingness or opposition was communicated to Joiner. In his e-mail, Johnson asked opposing counsel to "please also let the Court know and understand that I also need time to retain counsel in this matter as Mr. Joiner has just taken this to a new level with your and his repeated fraudulent actions and ongoing perjury." It was, however, not the responsibility of opposing counsel to inform the court of Johnson's need for a continuance and the reasons why. It was Johnson's. Moreover, Johnson's reliance on opposing counsel to prepare and file the stipulation for him seems unreasonable when his request was followed by accusations that counsel and her client committed fraud and perjury.
Even assuming the court was aware of Johnson's need of a continuance and his reasons why, Johnson still has not shown the court's failure to continue the hearing was error. Again, the absence of a reporter's transcript is dispositive to Johnson's claim. "Trial courts generally have broad discretion in deciding whether to grant a request for a continuance" (Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 527), and an order denying a continuance is reviewed for an abuse of discretion (In re Karla C. (2003) 113 Cal.App.4th 166, 180). When a claim concerning the denial of a continuance is raised on appeal, a "'reviewing court should not disturb the exercise of a trial court's discretion unless it appears that there has been a miscarriage of justice.'" (Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.) Without a reporter's transcript of the hearing or some record of the court's reasoning, we are unable to review any exercise of the court's discretion. Because Johnson has failed to provide us with an adequate record, we must assume the court did not abuse its discretion and affirm. (See Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447-448 [affirming the judgment because the record provided by the defendant was inadequate to conclude the trial court abused its discretion].)
DISPOSITION
The judgment is affirmed. Respondent shall recover costs on appeal.
IKOLA, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.