Hellwig v. Hammer CA2/1 ( 2013 )

Filed 4/22/13 Hellwig v. Hammer CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
KAREN HELLWIG, Trustee for Kathleen B235124
Ketcham Trust,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. YS022030)
v.
HERBERT B. HAMMER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County.
Marion Johnson, Judge. Affirmed.
Herbert B. Hammer, in pro. per., for Defendant and Appellant.
Karen Ketcham Hellwig, in pro. per., for Plaintiff and Respondent.
____________________________________
In this appeal from a restraining order, our affirmance is compelled without
reaching the merits of the challenged order. The record on appeal contains the order and
the notice of appeal, but nothing showing the grounds on which the order was sought,
nothing showing the evidence supporting the order, and nothing showing the grounds on
which the trial court relied in granting the order.
The appellant’s presentation in this court more resembles an affidavit of facts and
denials than an appellate brief. It contains no citations to the record or to the law, and it
identifies nothing constituting error on the face of the record. Respondent’s brief, and the
appellant’s late-filed reply, too, offer a narrative version of assertedly relevant facts. We
therefore address only the issues that appear from the meager record.
BACKGROUND
On March 9, 2011, the superior court granted a restraining order against appellant
Herbert B. Hammer, including personal conduct orders, stay-away orders, and a no-gun
order. The personal conduct orders restrain Mr. Hammer for three years from physically
or financially abusing, intimidating, molesting, attacking, assaulting (sexually or
otherwise), hitting, following, stalking, threatening, harassing, destroying personal
property, keeping under surveillance, or blocking movements of Kathleen T. Ketcham.
The stay-away orders require Mr. Hammer to stay at least 100 yards from Ms. Ketcham
and her vehicle. The no-gun order prohibits Mr. Hammer’s ownership or possession of a
firearm.1
APPEALABILITY OF THE RESTRAINING ORDER
Mr. Hammer filed his notice of appeal from the order, and his designation of the
record on appeal, on August 5, 2011. The notice of appeal identifies the order from
which the appeal is taken as an “order after judgment under Code of Civil Procedure
section 904.1(a)(2),” entered March 9, 2011. However, only one order or judgment is
1 The restraining order purports to be signed by Marion Johnson, Judge of the Los
Angeles Superior Court, and the minute order reciting its entry identifies Honorable
Marion Johnson as the judge. For reasons that are unclear, the superior court docket and
the parties’ briefs identify the Honorable Susan Weiss as the presiding judge.
2
identified in the designation of record, and contained in the record on appeal: the
March 9, 2011 “Order After Hearing Restraining Elder Or Dependent Adult Abuse,” and
the minute order of the same date granting and entering that order. The March 9, 2011
order is appealable as an order granting an injunction, despite its misidentification in the
notice of appeal. (Code Civ. Proc., § 904.1, subd. (a)(6); R.D. v. P.M. (2011) 202
Cal.App.4th 181, 187 [civil harassment restraining order is appealable order].)2
TIMELINESS OF THE APPEAL
Because the record contains no indication that Mr. Hammer was served with either
a file-stamped copy of the March 9, 2011 order, or a document entitled “Notice of Entry”
of that order, his notice of appeal filed within 180 days of the order is timely. (Cal. Rules
of Court, rule 8.104(a)(1); Thiara v. Pacific Coast Khalsa Diwan Society (2010) 182
Cal.App.4th 51, 56, 58.)3
THE ORDER MUST BE AFFIRMED
As noted above, nothing in the record on appeal provides us with a basis for any
conclusions about the grounds or justifications for the challenged order, or for any review
of the trial court’s exercise of discretion in entering it. (IT Corp. v. County of Imperial
(1983) 35 Cal.3d 63, 69 [standard of review for restraining order is abuse of discretion].)
2 Respondent has provided this court with an uncertified copy of a document purporting
to be a certificate of her mother’s death in December 2012, while this appeal was
pending, and she has asked that we dismiss the appeal on that ground. We decline to
address whether the death of the order’s subject renders the appeal entirely moot, and
deny her dismissal request, in light of the challenged order’s inclusion of at least one
provision—barring ownership or possession of a gun—that could arguably remain
effective after Ms. Ketcham’s death.
3 The order is on a Judicial Council mandatory form (EA-130), which recites that Ms.
Ketcham and Mr. Hammer “were at the hearing or agreed in writing to this order. No
other proof of service is needed.” Even if no other proof of service is required in order to
compel the parties’ compliance with the order, the form’s implication that no formal
proof of service is needed in order to trigger the time for an appeal from the order is
misleading at best, and should be revised. (See Johnson v. Ralph’s Grocery Co. (2012)
204 Cal.App.4th 1097, 1102, fn. 5 [mere knowledge of order does not trigger 60-day
period to file notice of appeal under Cal. Rules of Court, rule 8.104(a)].)
3
Mr. Hammer’s brief contends that Ms. Ketcham, the 93-year-old subject of the
restraining order, was not severely mentally or physically impaired, and that he and Ms.
Ketcham had a longstanding loving relationship, which Ms. Ketcham’s daughter, Ms.
Hellwig, did not approve or understand. The respondent’s brief paints a very different
picture. Neither of these documents, however, makes reference to any facts in the record;
and neither relies on any cognizable legal theory.
The trial court had the parties before it, took evidence, and concluded that the
restraining orders were appropriate. We have no basis on which to conclude otherwise.
On that ground, we reject Mr. Hammer’s appeal and affirm the trial court’s orders. (In re
Valerie A. (2007) 152 Cal.App.4th 987, 1002-1003 [Because appellate court was not
provided with record of trial court proceeding, “we cannot knowledgeably rule on the
merits of this issue, and we consider the claim abandoned.”].)4
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
CHANEY, J.
We concur:
MALLANO, P. J.
JOHNSON, J.
4 Ms. Hellwig apparently brought the action in the trial court, and is purportedly the
daughter of Ms. Ketcham, with a power of attorney to make health-care decisions on her
mother’s behalf. The record on appeal is inadequate to justify any determination whether
she can appropriately appear in pro. per. in this appeal; however, the outcome of the
appeal would be unchanged with or without her respondent’s answering brief and her
appearance in this court. For that reason, we decline to address the issue.
4