University of Vermont AAHS

Mageno v. Sawyer

California Court of Appeal
UNPUBLISHED, 2003 WL 1558085
March 26, 2003

Summary of Opinion

Defendant Sawyer boarded horses with plaintiff Mageno.  When she could not pay the board, Mageno seized her horses under the California agister’s lien law and sold them to recover the money she owned him.  After that event, she threatened him orally and in writing on numerous occasions.  Plaintiff filed a lawsuit for an injunction from the court requiring defendant Sawyer to stop the harassment, which the trial court granted.  In this opinion, the Court of Appeals upholds that order because there was no information presented to it that the trial court hearing was unfair to defendant.

Text of Opinion

 Sue Sawyer appeals an order issuing an injunction prohibiting her from harassing Ruben Mageno. She contends the court committed prejudicial error when it did not allow her to question witnesses at the hearing. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

 Sawyer boarded several horses at Mageno's ranch. At some point not clear in the record, Mageno applied for an order authorizing the sale of the horses pursuant to the Livestock Lien Statutes (Civ.Code, §§ 3080‑3080.22). In August 2001, the court granted that order. In a letter to Mageno dated October 18, 2001, Sawyer disputed Mageno's right to sell the horses, stating that the matter had not been litigated and that there was no judgment or recorded lien.

 In October 2001, Mageno sought a restraining order against Sawyer. In his declaration supporting that application he asserted Sawyer began threatening him after he sold the horses pursuant to the order. He claimed Sawyer telephoned him early one morning to tell him the last person with whom she had been involved in legal proceedings ended up in the hospital, badly beaten and with broken arms and left a threatening letter on his property several days later. He also asserted either Sawyer or her friend telephoned him daily threatening to sue him or making unfounded allegations. In November 2001, the court issued an order enjoining her from harassing him.

DISCUSSION

 Sawyer contends the court erred when it issued its restraining order because she was denied the opportunity to present evidence or question witnesses at that hearing. A fundamental principle of appellate law is that an appellant must affirmatively show error by an adequate record. (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125.) This is because the judgment or order of the lower court is presumed correct. (Ibid.) We are limited to reviewing the matters appearing in the record. (In re Mark C. (1992) 7 Cal.App.4th 433, 445.) Accordingly, the appellant must include in the appellate record the portions of the reporter's transcript relevant to the issues on appeal. (Bianco v. California Highway Patrol, supra, 24 Cal.App.4th at p. 1125.)

 Here, however, Sawyer has not provided us with a record that demonstrates she was denied the opportunity to produce or question witnesses. Because she elected not to provide a reporter's transcript, we cannot determine whether the court deprived her of an opportunity to question witnesses. She also did not designate any minute orders from which we might be able to determine what occurred. When matters are not presented in the record, we may not consider them "on the suggestion of ... the briefs." (In re Hochberg (1970) 2 Cal.3d 870, 875.) In the absence of any information to the contrary, we assume the court properly performed its judicial function (Evid.Code, § 664), which would include allowing Sawyer to question witnesses if the testimony she sought was relevant. Because the record is incomplete and such incompleteness precludes an adequate review of the alleged error, we affirm the order. (Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn 1.)  [FN1]

FN1. In any event, it appears the information Sawyer sought to elicit was not relevant to the issues before the court. In determining whether to issue the injunction, the court had to determine whether Sawyer was unlawfully violent, made a credible threat of violence, or engaged in a knowing and willful course of conduct directed at Mageno that seriously alarmed, annoyed, or harassed him and served no legitimate purpose. (Code Civ. Proc., § 527.6, subd. (b).) The court also must find the course of conduct must be such that it would cause a reasonable person to suffer substantial emotional distress and must actually cause substantial emotional distress to the plaintiff. (Ibid.)

Here, however, Sawyer wanted to introduce evidence that Mageno lied to the court about the order he had obtained allowing him to sell her horses and to question her attorney about the arrangements to ship the horses. From the record before us, these lines of questioning do not appear to be relevant to the injunction.

DISPOSITION

The order is affirmed.


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