Grovhoug
v.
Jasper

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)Sep 5, 2018
C085396 (Cal. Ct. App. Sep. 5, 2018)

C085396

09-05-2018

DAWN GROVHOUG, Plaintiff and Respondent, v. JAY JASPER, Defendant and Appellant.


NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 34-2017-70002120-CU-HR-GDS)

Respondent Dawn Grovhoug sought a civil harassment restraining order under Code of Civil Procedure section 527.6 against a former coworker, appellant Jay Jasper. The trial court granted Grovhoug's petition.

Jasper appeals the order, arguing that insufficient evidence established the necessary elements under that statute. He fails to include a transcript of the relevant proceedings in the record he has provided to us. As we explain, we presume sufficient evidence supports the trial court's order and affirm.

FACTS AND PROCEEDINGS

In 2013, Jasper and Grovhoug worked as school counselors at the same school in Elk Grove Unified School District. In February 2013, Jasper told Grovhoug, "I can be really mean and vicious, but I won't murder your children." In March 2013, Jasper confronted Grovhoug in an intimidating manner after a work meeting and scared her. After that, Grovhoug was afraid to be alone in the office with Jasper; she would try to ensure that a male counselor or athletic director was present when she had to be with Jasper. About two years later, in June 2015, defendant was transferred to another school site under instructions not to contact Grovhoug.

In May 2017, Jasper and Grovhoug attended a training session conducted by the school district. Jasper glared at Grovhoug when she entered the room. Grovhoug quickly signed in and left; she assumed the no contact order from the district office was still in place. The next day, Jasper sent Grovhoug the following text message:

"Dawn, what happened? Did you finally get a conscience, realize my humanity and couldn't depersonalize me any further for your agenda? You ought to be ashamed of yourself. How you treated me is fucking inexcusable, and then you lied and tried to play victim. You are a cunt. I've never called a woman that before, but this is the perfect word for you--CUNT. You're shallow, small minded, dishonest, petty, manipulative and who you are inside, is as rotten as a corpse. I think you know this deep down already, but you've done a good job keeping your inner ugliness hidden by being a phony. You just make fun of others, lie, and have no empathy--perfect qualities for a school counselor! And what you did to Michele was messed up. You knew she's psychologically weak, so you brought her into your clique to use for your agenda to get rid of me. I've heard that you, Todd and Teresa cut her loose the following year. The stupid drama you continue to play out is childish. Stop it! You're not a victim, but a "mean girl" and a bully - maybe you lose your nerve without your back up from Teresa and Hershey Squirt. You can't be both a victim and a Tina Fey (minus looks and wit) wannabe feminist. Pick one and go with it, either a victim cunt or a TFWF cunt. Better yet, how about stop deliberately hurting others, as you hurt me. I did nothing to deserve that and you know it."

After receiving the message, Grovhoug was terrified and feared for her safety as well as her family's. She forwarded the text to a coworker and asked him to send it to her principal. She became severely stressed and was unable to sleep. A few days later, she filed a police report regarding the message. She then filed a request for a civil harassment restraining order in the Sacramento Superior Court.

The trial court granted a temporary restraining order, and set a hearing on the matter for June 2017. Prior to the hearing, Jasper filed a response to Grovhoug's request. He denied harassing Grovhoug, and claimed that she had provoked him prior to his sending the text message. He felt humiliated in front of his other colleagues when Grovhoug avoided him at the meeting. He characterized Grovhoug as verbally hostile, rude, intimidating, cruel, dehumanizing, manipulative, deceitful and childish. He also accused her of lying and fabricating the incidents described in her restraining order request.

The trial court held a hearing on June 16, 2017. Both Grovhoug and Jasper presented arguments at the hearing. The court granted Grovhoug the requested three-year restraining order against Jasper. He was ordered, among other things, not to harass, intimidate, molest, attack, strike, stalk, threaten or assault, or to contact, either directly or indirectly, Grovhoug, her husband, or their children. The order also required Jasper to stay at least 100 yards away from Grovhoug and her family, her workplace, her children's school or child care, and her vehicle and dog. Jasper timely appealed.

DISCUSSION

Jasper contends insufficient evidence supports the civil harassment restraining order. But he admits the appellate record consists only of a clerk's transcript and does not include a reporter's transcript of the hearing resulting in the disputed order. The absence of a reporter's transcript on appeal is significant; without it, we are bound to presume sufficient evidence was presented below to support the trial court's findings.

"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.) "This presumption has special significance when, as in the present case, the appeal is based upon the clerk's transcript." (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) In such a "judgment roll" appeal, we must conclusively presume evidence was presented that is sufficient to support the court's findings. (Ibid.) " '[T]he question of the sufficiency of the evidence to support the findings is not open.' " (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082.) We do not presume the record contains all matters material to a determination of the points on appeal unless the asserted error "appears on the face of the record." (Cal. Rules of Court, rule 8.163; Nat'l Secretarial Serv. v. Froehlich (1989) 210 Cal.App.3d 510, 521.) "[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented." (Riley v. Dunbar (1942) 55 Cal.App.2d 452, 455.)

In this case, Jasper argues that insufficient evidence shows he committed violence, threatened or engaged in a harassing course of conduct, or that future harassment was likely. According to him, the evidence presented, even assuming it was true, failed to establish unlawful harassment. He fails to acknowledge our limited scope of review. After Grovhoug's briefing correctly pointed out the deficiency in the record and the limited scope of our review, Jasper did not file a reply brief.

The record shows that the trial court held a hearing on the civil harassment restraining order and both Jasper and Grovhoug attended. The court considered the filings in addition to arguments and possibly evidence of which we have no record. Given the restrictive rules of review that apply in the absence of a reporter's transcript, we must presume that the evidence presented was sufficient to support the court's implicit finding that Jasper engaged in harassment. (See Schild v. Rubin (1991) 232 Cal.App.3d 755, 762; Ehrler v. Ehrler, supra, 126 Cal.App.3d at p. 154; Riley v. Dunbar, supra, 55 Cal.App.2d at p. 455.)

Jasper, as the appellant, bears the burden of "provid[ing] an adequate record to assess error." (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.) He has not succeeded in showing that insufficient evidence supports the findings and resulting order.

DISPOSITION

The civil harassment restraining order is affirmed. Respondent shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

/s/_________


Duarte, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Murray, J.