Opinion
G059520
03-03-2022
In re the Marriage of JENNIFER and CURTIS CARTER. v. CURTIS CARTER, Appellant. JENNIFER CARRINGTON, Respondent,
Curtis W. Carter, in pro. per., for Appellant. Jennifer Carrington, in pro. per., for Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, Renee E. Wilson No. 14D001786, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Respondent's motion to dismiss denied.
Curtis W. Carter, in pro. per., for Appellant.
Jennifer Carrington, in pro. per., for Respondent.
OPINION
GOETHALS, J. 1
Curtis W. Carter, representing himself, appeals from an August 2020 order renewing a domestic violence restraining order. Respondent Jennifer Carrington has moved to dismiss the appeal, arguing Curtis has embroiled her in litigation for years, causing her health problems, and that she and the couple's children have since moved to Canada with the permission of the family court. She also claims it would be detrimental to the children for the court to take any action that might lead to a change in the parties' custody order. Those are not grounds for dismissal of an appeal; we therefore must deny the motion.
Because the parties are referred to by the same last name in the record, we refer to each party by their first name for the sake of clarity. No disrespect is intended.
Jennifer also claims Curtis has been declared a vexatious litigant in the superior court, but she has provided no record to support that contention.
Turning our attention to the merits of the appeal, the complaints Curtis asserts are varied and far-reaching; most exceed the scope of this appeal. Curtis has also failed to provide this court with a sufficient record of the renewal proceeding to allow for meaningful review of that order. Specifically, his appellant's appendix includes neither the petition seeking renewal of the restraining order, nor the opposition to that petition. Instead, Curtis has provided an assortment of court documents issued between 2014 and 2020, plus other unauthenticated documents including an article, various transcripts, cell phone screenshots and the like.
Ultimately, Curtis appears to argue the First Amendment prohibits the imposition of a restraining order on him based on his words or expressive conduct. We disagree.
It is well-established that the First Amendment provides different levels of protection to various categories of speech; it provides no protection for certain types of 2 illegal speech which generate no societal benefit. Curtis has nowhere discussed what evidence was introduced against him to justify the issuance of either the initial restraining order or its renewal; nor has he cited any authority to demonstrate why such speech or conduct would be deserving of First Amendment protection. Because the burden is on Curtis to prove error, these failures doom his appeal. We consequently affirm the order.
FACTS
The lack of a meaningful record on appeal here precludes us from reciting a complete statement of facts. It appears the original restraining order was issued against Curtis in 2017 following a physical altercation between Curtis and Jennifer's then boyfriend (now her husband). In August 2020, the court extended the restraining order for an additional five years based in part on a series of harassing messages sent by Curtis primarily over the service Talking Parents.
DISCUSSION
1. Applicable Standards on Appeal
On appeal, the judgment of the trial court is presumed to be correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) All intendments and presumptions are made to support the judgment on matters as to which the record is silent. (Ibid.)
"Appellate briefs must provide argument and legal authority for the positions taken. 'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.'" (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.) "We are not bound to develop appellants' argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived." (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.) 3
While Curtis is a self-represented litigant, that does not excuse him from complying with the rules. He is "entitled to the same, but no greater, rights than [a] represented litigant[ ] and [is] presumed to know the [procedural and court] rules." (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.) As the appellant, Curtis's duty is to provide a proper record and to support arguments in his brief by references to the record on appeal, which include citations to specific pages. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) Arguments not supported by citations to the record are generally considered forfeited. (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 146.)
Here, while Curtis filed a 51-page brief, he failed to support it with a proper record of the proceeding that is the subject of his appeal; his brief repeatedly cites to documents that were not admitted at trial and were, therefore, not part of the record. Such an approach does not comply with California Rules of Court, rules 8.124(b)(1)(A) and (B) [required content of appellate appendix], 8.204(a)(1)(C) and 8.204(a)(2)(C) [required content of opening brief]), and only serves to confuse whatever issues might be properly before us.
While Curtis's brief reflects some effort to suggest the evidence is insufficient to support the restraining order, he fails to sustain the heavy burden of making such a claim. An appellate court "'must presume that the record contains evidence to support every finding of fact . . . .'" (In re Marriage of Fink (1979) 25 Cal.3d 877, 887.) "It is the appellant's burden, not the court's, to identify and establish deficiencies in the evidence. [Citation.] This burden is a 'daunting' one. [Citation.] 'A party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient."' (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.)
Stated another way, "with all substantial evidence challenges, an appellant . . . must lay out the evidence favorable to the other side and show why it is 4 lacking. Failure to do so is fatal. A reviewing court will not independently review the record to make up for appellant's failure to carry his burden." (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266.) Because Curtis failed to comply with this requirement, he has waived any claim that the evidence is insufficient to support the court's order renewing the restraining order against him.
2. Issues on Appeal
Curtis raises several issues, most of which are either unsupported or not cognizable on appeal.
First, Curtis challenges the propriety of the original restraining order, issued in 2017. The time for such a challenge has long since passed. (Code Civ. Proc. § 904.1, subd. (a)(6); California Rules of Court, rule 8.104(a)(1).) The notice of appeal from the renewal of the restraining order does not provide Curtis with a second opportunity to argue issues that could have been raised in an appeal from the original appealable order. (See Malatka v. Helm (2010) 188 Cal.App.4th 1074, 1086 [issues that could have been raised on appeal from original order are not reviewable in a subsequent appeal].)
Curtis also argues the judicial officers exhibited bias against him. The claim is a significant one because every litigant "has a due process right to an impartial trial judge." (People v. Peoples (2016) 62 Cal.4th 718, 787; Today's Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 212.) However, due process requires judicial disqualification only under the "'most "extreme facts."'" (People v. Cowan (2010) 50 Cal.4th 401, 456-457.) To establish a due process violation, the appellant has the burden of showing "'"'the probability of actual bias on the part of the judge.'"'" (Id. at p. 456.) "The appellate court's role is not to examine whether the trial judge's behavior left something to be desired, or whether some comments would have been better left unsaid, but to determine whether the judge's behavior was so prejudicial it denied the party a fair . . . trial. [Citation.] Mere expressions of opinion, based on observation of the witnesses and evidence, do not demonstrate judicial bias. 5 [Citation.] Numerous and continuous rulings against a party are not grounds for a finding of bias. [Citation.] [¶] A constitutional finding of judicial . . . bias is appropriate only when 'extreme facts' demonstrate a probability of actual bias." (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 589.)
Curtis has not made such a showing. (See People v. Fuiava (2012) 53 Cal.4th 622, 732 ["'[A] trial court's numerous rulings against a party-even when erroneous-do not establish a charge of judicial bias, especially when they are subject to review'"].) For the most part, Curtis seems to suggest the court's focus on the evidence against him, while ignoring his claims that Jennifer also displayed anger, demonstrates a bias against men. Again, we must disagree. The subject of the proceeding involved the propriety of a restraining order against Curtis, not against Jennifer. Thus, the court correctly focused on his conduct.
But even if Curtis had made a more persuasive showing, the claim of bias is nonetheless waived because Curtis failed to make it below. In Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1218, this court pointed out that "[b]ias and prejudice are grounds for disqualification of trial judges. ([Code Civ. Proc. ]§ 170.1, subd. (a)(6).) And if judges fail to recuse themselves, there is a statutory procedure to litigate the issue. ([Code Civ. Proc. ]§ 170.3.)" However, the issue is forfeited if a party "[does] not object to the alleged improprieties and [does not ask] the judge to correct remarks made or recuse himself." (Ibid; see also People v. Pearson (2013) 56 Cal.4th 393, 424 ["to the extent defendant frames his claim as one of judicial bias or racial discrimination by the trial court in deciding his challenge for cause, it is forfeited on appeal because he failed to alert the court to the perceived bias"].)
Curtis also points to unfavorable online "reviews" of the judicial officers involved in this case, suggesting they constitute evidence that supports his argument regarding judicial bias. Not so. The opinions of persons not involved in this case, based 6 on matters outside this case, are not part of the record in this appeal. We must assess that issue based solely on the issues and evidence presented in the court below.
Curtis also complains Jennifer failed to e-mail him exhibits she provided to the court in support of her motion. However, he fails to cite any evidence in the record to support that claim. What he does acknowledge is that the trial court rejected the assertion at the hearing because the record reflected that Jennifer had served him with the exhibits as part of serving him with her motion-as the court put it, "the old fashioned way." As the trial court correctly explained, when a litigant serves evidence by timely personal delivery, there is no requirement that the evidence also be served by e-mail.
Finally, perhaps Curtis's most substantive assertion is that the restraining order renewed against him in this case represents a violation of his rights under the First Amendment to the United States Constitution. He contends that "[p]lain and simple, Curtis's Talking Parents messages are 'free speech; to which he has a U.S. Constitution's First Amendment Right to voice privately and/or publicly." He claims "the lower trial court is trying to 'falsely' state that Curtis is the one committing domestic violence simply because he used his lawful non-threatening and non-harassing 'U.S. Constitution Freedom of Speech' and 'Freedom of Religion' in the court ordered Talking Parents online forum."
As we have already noted, Curtis has not provided us with a complete record reflecting what evidence was before the court at the time it ruled, so we do not adopt either his characterization that the court said anything false, or his contention that his statements were lawful, nonthreatening and nonharassing.
We can nonetheless address Curtis's larger point about whether the First Amendment prohibits the court from extending a restraining order based on his speech, whatever it may have been. The short-and well-established-answer is that it does not. 7 As stated by our Supreme Court in Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 134 (Aguilar) "[although stated in broad terms, the right to free speech is not absolute."
Curtis also argues that the restraining order qualifies as "viewpoint discrimination" which occurs when the government '"punish[es] speech and expressive conduct because it disapproves of the ideas expressed.'" But he nowhere explains what his disapproved "viewpoint" was.
Indeed, "[m]any crimes can consist solely of spoken words, such as soliciting a bribe [citation], perjury [citation], or making a terrorist threat [citation]. As we stated in In re M.S. (1995) 10 Cal.4th 698, 710 [42 Cal.Rptr.2d 355, 896 P.2d 1365]: '[T]he state may penalize threats, even those consisting of pure speech, provided the relevant statute singles out for punishment threats falling outside the scope of First Amendment protection. [Citations.] In this context, the goal of the First Amendment is to protect expression that engages in some fashion in public dialogue, that is, "'communication in which the participants seek to persuade, or are persuaded; communication which is about changing or maintaining beliefs, or taking or refusing to take action on the basis of one's beliefs . . . .'" [Citations.]' [Citations.] Civil wrongs also may consist solely of spoken words, such as slander and intentional infliction of emotional distress. A statute that is otherwise valid, and is not aimed at protected expression, does not conflict with the First Amendment simply because the statute can be violated by the use of spoken words or other expressive activity." (Aguilar, supra, 21 Cal.4th at p. 134.)
As Aguilar recognizes, an injunction may be issued based on a past pattern of speech determined to be illegal and can include a restraint on the repetition of such speech in the future. (Aguilar, supra, 21 Cal.4th at p. 141, fn. 8 ["In a variety of contexts, courts have upheld injunctions prohibiting the continuation of a course of expressive conduct that violates a specific statutory prohibition"]; see also D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1212 8 [Speech with little or no social value, such as threats of violence, is not protected by the First Amendment].)
Because the First Amendment does not impose a blanket prohibition on restrictions on speech, the burden was on Curtis to demonstrate that the specific speech or expressive activity he was accused of engaging in did not violate any statute and qualified as the sort of speech that is deserving of First Amendment protection. To do that, Curtis was required to set forth each statement or communicative act placed in evidence before the trial court and demonstrate why it deserved First Amendment protection. He failed to do so; he therefore forfeited any contention that the court's extension of the restraining order against him violated his rights under the First Amendment.
DISPOSITION
The order is affirmed. Jennifer is entitled to her costs on appeal.
WE CONCUR: O'LEARY, P. J., BEDSWORTH, J. 9