H.S. v. J.M.

• Decision Date: 23 September 2020
• Docket Number: D075319
• Parties: H.S., Plaintiff and Appellant, v. J.M., Defendant and Respondent.
• Court: California Court of Appeals

H.S., Plaintiff and Appellant, v. J.M., Defendant and Respondent.

D075319

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

September 23, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b).This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18FL000977N)

APPEAL from a judgment of the Superior Court of San Diego County, Enrique Camarena, Judge.Affirmed.

H.S., in pro. per.; Hellman Law Group and Lawrence P. Hellman for Plaintiff and Appellant.

Antonyan Miranda, Anthony J. Boucek, Timothy Miranda, and Sara Yunus for Defendant and Respondent.

Following trial in this Uniform Parentage Act action, the family court denied the petition of H.S. (Appellant) to establish a parental relationship between Appellant and M., the child of J.M. (Respondent).Appellant met his initial burden by showing that he received M. into his home and openly held out M. as his own, thereby presumptively establishing parental status under Family Code section 7611, subdivision (d).¹Respondent then met her responsive burden and rebutted the presumption, presenting what the family court found to be clear and convincing evidence that "[Appellant] did not significantly care for the child" and "[Appellant's] relationship with [M.] was incidental to his relationship with [Respondent.]"

On appeal, Appellant seeks a reversal of the judgment, contending that the family court prejudicially erred in two respects: (1) in concluding that Appellant was not a presumed parent of M.; and, alternatively, (2) in denying Appellant's request to reopen his case in chief to present additional evidence—a request Appellant filed three weeks after the court issued its proposed statement of decision.In July 2020, we filed an opinion affirming the judgment.Four days later, the California Supreme Court filed its opinion in Conservatorship of O.B.(2020)9 Cal.5th 989(O.B.), in which the court established a new standard of review of one of the issues decided in our opinion.Accordingly, we granted rehearing on our motion (Cal. Rules of Court, rule 8.268(a)(1)) and requested that the parties provide supplementalbriefing to address the application of this new standard to the applicable issue on appeal.

As we explain, on rehearing Appellant did not meet his burden of establishing reversible error by the family court.Accordingly, we will affirm the judgment.

I.INTRODUCTION

" 'A judgment or order of the lower court is presumed correct.All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' "(Denham v. Superior Court(1970)2 Cal.3d 557, 564;accord, Jameson v. Desta(2018)5 Cal.5th 594, 608-609.)"It is well settled, of course, that a party challenging a judgment has the burden of showing reversible error by an adequate record."(Ballard v. Uribe(1986)41 Cal.3d 564, 574;accord, Jameson, at p. 609.)A corollary to this rule is that reviewing courts may disregard factual statements in any party's appellate brief that are not supported by accurate citations to the record on appeal.(Delta Stewardship Council Cases(2020)48 Cal.App.5th 1014, 1079(Delta Stewardship);Cal. Rules of Court, rule 8.204(a)(1)(C).²)We apply this corollary here and disregard factual statements without accurate record references—in particular, representations of the testimony from witnesses at trial—in both parties' appellate briefs.

The record in the present appeal consists of a clerk's transcript, a reporter's transcript of proceedings from four dates between May and August2018, and the trial exhibits.In addition, Appellant has filed a request that this court take judicial notice of: 10 documents from the family court files in Respondent's dissolution of marriage action against Appellant; and one certified reporter's transcript from the November 2018 hearing in the present action on Appellant's request to reopen his case in chief.Respondent opposed Appellant's request.

We deny the request in its entirety."Reviewing courts generally do not take judicial notice of evidence not presented to the trial court.Rather, normally '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.' "(Vons Companies, Inc. v. Seabest Foods, Inc.(1996)14 Cal.4th 434, 444, fn. 3.)No exceptional circumstances exist that would justify deviating from that rule in this appeal.

That said, the certified copy of the reporter's transcript from the November 2018 hearing is from posttrial proceedings in this case and resulted in a specific order that Appellant directly challenges in this appeal.Accordingly, on our own motion, we augment the record on appeal to include the certified reporter's transcript of oral proceedings on November 1, 2018, a copy of which is identified as Exhibit K to Appellant's request for judicial notice and found at pages 69-85 of the request.³(Cal. Rules of Court, rule 8.155(a)(1)(B).)

Appellant represented himself at all stages from the filing of the appeal through the lodging of trial exhibits approximately one week before oralargument.⁴The procedural rules apply the same to him and his submissions as to a party represented by counsel.(Rappleyea v. Campbell(1994)8 Cal.4th 975, 984-985["the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation"], accord, Burkes v. Robertson(2018)26 Cal.App.5th 334, 344-345[" ' "the same restrictive procedural rules" ' " apply to self-represented litigants];In re Marriage of Rothrock(2008)159 Cal.App.4th 223, 235[self-represented party"not entitled to special treatment from the court"];Nwosu v. Uba(2004)122 Cal.App.4th 1229, 1246-1247[self-represented party"not exempt" from procedural rules on appeal].)The fact that a party is representing himself is not a basis for special treatment that would be unfair to the other litigants.(Rappleyea, at pp. 984-985;McClain v. Kissler(2019)39 Cal.App.5th 399, 416; see Advisory Com. com., Cal. Code Jud. Ethics, canon 3B(8).)Thus, in the event Appellant's self-represented status contributed to deficiencies in the presentation of Appellant's case on appeal, it does not excuse them.(Rappleyea, at p. 984[self-representation is not a basis for lenient treatment];Nwosu, at pp. 1246-1247.)

II.FACTUAL AND PROCEDURAL BACKGROUND

We view and recite the evidence in a light most favorable to the judgment on appeal.(In re M.Z.(2016)5 Cal.App.5th 53, 64(M.Z.).)We note Appellant's "classic mistake" of relying on evidence favorable to him, rather than on "evidence favorable to the judgment."(In re Marriage of Whealon(1997)53 Cal.App.4th 132, 143, italics added.)We limit this backgroundpresentation to the facts and procedures properly cited by the parties in their briefs⁵ or observed in our independent review of the record on appeal.

M. was born in April 2013 to biological parents with substance abuse issues and psychological needs.He was immediately placed in foster care, and Respondent met and received M. from child protective services when he was two days old.At the time of the trial in this action, five-year-old M. had special needs based on delayed speech, learning disabilities, and behavioral issues.

Respondent began the adoption process at the end of 2013, before she met Appellant, when M. was approximately eight months old.Appellant knew that Respondent was in the process of adopting M. when they began dating in or around February 2014.Appellant finalized M.'s adoption in June 2014, and M.'s birth certificate, issued the next month at a time when Appellant and Respondent were engaged to be married, does not list Appellant as the father.Appellant had met M. only three times before the parties married, and Appellant did not pay for any of M.'s expenses prior to the marriage.

Appellant and Respondent married in August 2014.According to Respondent, their marriage was "emotionally abusive, verbally abusive, just really unstable."She described his behavior toward M. as "very rough": Appellant"would antagonize him, bully him," would "say inappropriatethings to him," and would "constantly torment[] him."⁶As a result, from a very young age, M. was afraid of Appellant and afraid of being left alone with Appellant.Throughout their marriage, Respondent(with M.) would live apart from Appellant a few times a year.In August 2015 and December 2015, for example, Respondent(with M.) lived with a friend in Los Angeles and with family in New Jersey, respectively, for approximately two months each.During these periods of separation, Appellant did not "seek out M[.]," did not "ask to see M[.]," did not ask Respondent"how is M[.] doing," and did not "financially assist [Respondent] with M[.] in any way."

In early November 2017, Respondent gave birth to the parties' daughter, Z.

Respondent petitioned to dissolve the parties' marriage in December 2017, and she and M. moved out the family's residence in January 2018.Since that date, Appellant has provided no financial support for M.

In late January 2018, Appellant filed the underlying action, seeking: a judgment of paternity, on the basis that Appellant is a presumed parent of M.; joint legal and physical custody of M.; and consolidation of this paternity action with the parties' pending action for dissolution of their marriage.Respondent filed a response to Appellant's petition in which she stated that Appellant was not M.'s father, but that he should have weekend visitation with...