Filed 3/24/22 Campbell v. Landais CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

MONTY CAMPBELL,

Plaintiff and Appellant, E076537

v. (Super.Ct.No. EAPPS1900168)

ADAM LANDAIS, OPINION

Defendant and Respondent.

APPEAL from the Superior Court of San Bernardino County. Tara Reilly, Judge.

Affirmed.

Monty Campbell, in pro. per., for Plaintiff and Appellant.

Adam L. Landais, in pro. per., for Defendant and Respondent.

Plaintiff and appellant Monty Campbell and defendant and respondent Adam L.

Landais are embroiled in a dispute involving property lines, common walls and

trespassing. Campbell filed a “Request for Elder or Dependent Adult Abuse Restraining

1 Order[]” (the Request) under Welfare and Institutions Code1 section 15657.03 of the

Elder Abuse and Dependent Adult Civil Protection Act (§ 15600 et seq.; Elder Abuse

Act) against Landais.2 The trial court tentatively ruled that the Request was not to be

granted as there was not a sufficient showing this was an elder abuse case. A four-day

trial was held and the trial court denied the Request on September 3, 2020.3

Campbell makes 15 claims on appeal as follows: (1) subject court ruling on

October 16, 2019, presumption of being valid fails when it refused him, an elder, the

right to provide evidence and testimony; (2) the court ruling on September 3, 2020,

presumption of being correct fails based on several rulings at trial including not allowing

him to object to exhibits proffered by Landais and allowing Landais to admit testimony

about a property line dispute; (3) he is entitled to a refund of his filing fees pursuant to

section 15657.03, subdivision (r); (4) Landais is responsible for damages for harm to him

and his property; (5) Landais is liable for malicious, repeated, wrongful, intentional

demolition and disposal, without permission and without required permits, of his

backyard walls and he is entitled to compensation; (6) Landais is responsible for his lost

rent, travel expenses, and break-in damages to a vacation rental; (7) Landais created an

1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

2 The Request has not been included in the record on appeal so it is unclear what was alleged by Campbell.

3 The oral record of the four-day trial on the Request is not part of the record on appeal.

2 open trench in Campbell’s backyard and Landais should pay his damages for being

subjected to such hazard for three years; (8) Landais maliciously demolished required

support for Campbell’s home and backyard; (9) a defectively constructed pool safety wall

on Landais’s property is the wrong design, in the wrong place, without drainage to the

street, and without required water easement and access for Campbell; (10) Landais

should pay damages for demolishing the back walls, which allowed for Campbell’s dog

to get out and to be potentially run over and for being exposed to an open trench in

Landais’s front yard; (11) Landais should pay him emotional damages for demolishing a

hole in his front yard retaining wall, in order to create his lethal boobytrap which was

intended to cause great bodily harm to him; (12) Landais’s concrete encroachment during

wrongful temporary restraining order demonstrates Landais is abusing him; (13) this

court should hold the owner of the construction company accountable for Landais’s abuse

upon him and destruction of his property; (14) Landais’s counsel should be responsible in

damages for his fraud upon the court and deliberately ignoring and not disclosing

controlling case law; and (15) Landais’s wife should also be liable in damages for abuse

of him, an elder.

Campbell has failed to provide an adequate record on appeal for this court to

determine if the trial court properly denied the Request. Further, for the first time in this

appeal, Campbell raises numerous issues not raised in the trial court. Campbell is not

entitled to relief.

3

FACTUAL AND PROCEDURAL HISTORY

According to the register of actions, Campbell filed the Request on October 15,

2019. On October 16, 2019, an ex parte hearing was conducted with both Campbell and

Landais present. The trial court, according to the register of actions, found that the

Request was not properly granted as “this matter is not an Elder Abuse Restraining

Order” and “[ordered] Petitioner to file any additional information other than what has

already been filed, indicating why this matter should be considered an Elder Abuse

Restraining Order.”

On October 31, 2019, Landais filed a “Response to Request for Elder or

Dependent Adult Abuse Restraining Order” (the Response). Landais disagreed with the

Request. Landais insisted he did not do the actions that Campbell accused him of in the

Request. Moreover, even if he had done the things alleged in the Request, his actions

were justified or excused because the wall that separated the property of Campbell and

Landais was actually encroaching on his property. Landais stated the reason he did not

agree with the Request was because “he has not physically or financially abused Monty

Campbell, nor has he intimidated, molested, attacked, struck, stalked, threatened,

assaulted, hit, harassed, destroyed the personal property of, or disturbed the peace of

Monty Campbell. Campbell believed he owns a title right to [Lanais]’s property and is

basing his belief on a County of San Bernardino plot line map. Campbell has failed to

produce documents sufficient to justify such demands or to re-establish the boundary

wall/common wall that has existed undisputed between the two properties since it was

put in by the builder in 1977, acquired by Campbell when he purchased his home 6745

4 Mesada St. in 1991 and acquired by Landais in 2003 when he purchased his home 6755

Mesada St. Campbell’s continued trespass onto my property has left me no alternative

than to seek law enforcement intervention to threaten Campbell with arrest if he

continues to trespass onto my property 6755 Mesada St., Rancho Cucamonga.” Landais

also requested that attorney’s fees and costs be denied to Campbell.

Landais provided a declaration. The only relationship between him and Campbell

was as neighbors. Landais had never taken care of Campbell. All of Campbell’s

accusations in the Request were false. Campbell repeatedly harassed Landais by filing

requests for elder abuse restraining orders. Further, Campbell repeatedly trespassed on

Landais’s property. Landais provided photographs of the property line and Campbell

trespassing on his property.4 Landais also provided a police report in which it was

reported by Campbell that Landais had planted a booby trap on his property, which was

unfounded. Campbell kicked a wall in the presence of the responding officers.

Landais also provided case reports and minute orders from prior denials of

requests by Campbell for elder abuse restraining orders. On November 9, 2018, in case

No. EAPPS1800160, an ex parte hearing on an elder abuse restraining order filed by

Campbell was held. The request for the restraining order was denied. Another request

was apparently filed on January 22, 2019, in case No. EAPPS1900009, which was

denied. According to the minute order, Campbell was advised “matter is not an elder

abuse action but rather a dispute between neighbors and possibly small claims/limited

4The photographs are too dark to provide a meaningful view of the property or Campbell’s alleged trespass.

5 civil action.” (All caps. omitted.) On February 15, 2019, in case No. EAPPS1900010,

another request was made by Campbell and was denied. The trial court found that

disputes between parties are considered a civil matter and not proper for an elder abuse

restraining order. The matter was dismissed.

On November 6, 2019, according to the register of actions, the trial court

tentatively denied the Request. Campbell requested a trial. Trial commenced on August

10, 2020, and was held on several days during a three-week period. The last day of trial

was September 3, 2020.

A minute order from September 3, 2020 is included in the record. Landais was

represented by counsel and Campbell appeared pro per. According to the minute order, it

was the fourth day of a court trial. Exhibits for both parties were admitted. Both parties

argued. The trial court denied the Request. No reasons appear in the record.

On February 8, 2021, Campbell filed his notice of appeal from the “Judgment after

court Trial” entered on September 3, 2020. In his notice designating the record on

appeal, Campbell checked the box marked “I choose to proceed . . . [¶] . . . WITHOUT a

record of the oral proceedings . . . in the superior court.” For the clerk’s transcript, he

designated “(1) Notice of appeal”; “(2) Notice designating record on appeal . . .”; “(3)

Judgment or order appealed from”; “(4) Notice of entry of judgment (if any)”; “(5) Notice

of intention to move for new trial or motion to vacate the judgment, for judgment

notwithstanding the verdict, or for reconsideration of an appealed order (if any)”; “(6)

Ruling on one or more of the items listed in (5)”; and “(7) Register of actions or docket

(if any).” He sought also to have his exhibits included. Landais requested additional

6 documents including his Response, and the attached exhibits A through E to the

Response. He also sought exhibits he admitted at trial, which were photographs of

Campbell trespassing on his property.

Included in the clerk’s transcript are exhibits which were apparently submitted at

trial. These include text messages between Landais and Campbell. Landais informed

Campbell that while a contractor was digging on his property, the common wall between

their property collapsed. Landais offered to replace the wall at no charge to Campbell.

However, Campbell had to sign a document allowing the contractor to fix the wall.

Landais also noted that a tree on Campbell’s property had grown into the wall and may

fall during the fixing of the wall. Landais offered to pay for its removal. Campbell asked

for photographs and Landais sent them. Campbell did not respond. Several days later,

Landais texted Campbell asking him to meet him outside so they could discuss fixing the

wall but there is nothing indicating that Campbell did so.

Landais sent a letter to Campbell on June 11, 2018, memorializing what had

happened to the wall and again agreeing to fix the wall with no cost to Campbell.

Landais requested that Campbell sign the necessary forms so that the wall could be fixed.

Campbell responded on November 8, 2018. Campbell insisted that Landais pay for a

contractor of Campbell’s choice to replace two walls on Campbell’s property, replace the

soil, and pay for all “engineering and permit costs and fees.” Also included in the clerk’s

transcript was a letter that Campbell sent to the San Bernardino County Sheriff’s

Department accusing Landais of grand larceny and trespass. He also accused Landais of

7 placing a booby trap on his property that could cause great bodily harm. The remainder

of the clerk’s transcript consists of the register of actions.

The clerk of the superior court, in response to the request for records, noted that

many of the exhibits requested to be included in the record had not been admitted or

lodged with the trial court.

DISCUSSION

The record before this court establishes that Campbell filed the Request pursuant

to section 15657.03. The only proper issues to be reviewed on appeal is whether the trial

court erred by denying the Request.5

Under the Elder Abuse Act an “elder” is “any person residing in this state, 65

years of age or older.” (§ 15610.27.) Elder abuse includes “[p]hysical abuse, neglect,

abandonment, isolation, abduction, or other treatment [of an elder] with resulting physical

harm or pain or mental suffering.” (§ 15610.07, subd. (a)(1).) “ ‘Mental suffering’ is

defined as ‘fear, agitation, confusion, severe depression, or other forms of serious

emotional distress that is brought about by forms of intimidating behavior, threats,

harassment, or by deceptive acts performed or false or misleading statements made with

malicious intent to agitate, confuse, frighten, or cause severe depression or serious

5 Landais claims that the appeal was filed late because the “Judgment/Dismissal” was filed on September 3, 2020, and the notice of appeal was not filed until February 8, 2021. Landais contends Campbell only had 60 days to file his notice of appeal. Landais has not proved to this court that a notice of entry of judgment was ever filed. As such, Campbell had 180 days to file his appeal pursuant to California Rules of Court Rule 8.104(a)(1)(C).

8 emotional distress of the elder or dependent adult.’ ” (Darrin v. Miller (2019) 32

Cal.App.5th 450, 453-454.)

An elder can seek a restraining order against the person who is causing the abuse.

Under section 15657.03, “An order may be issued under this section, with or without

notice, to restrain any person for the purpose of preventing a recurrence of abuse, if a

declaration shows, to the satisfaction of the court, reasonable proof of a past act or acts of

abuse of the petitioning elder or dependent adult.’ [Citation.] [A] party seeking a further

relief at an Elder Abuse Act hearing on a restraining order petition must establish past

abuse by a preponderance of the evidence.” (Tanguilig v. Valdez (2019) 36 Cal.App.5th

514, 524, italics omitted.) “We review the issuance of a protective order under the Elder

Abuse Act for abuse of discretion, and we review the factual findings necessary to

support the protective order for substantial evidence.” (Gdowski v. Gdowski (2009) 175

Cal.App.4th 128, 135.)

Campbell raises numerous issues in this appeal but only one of his claims directly

addresses the September 3, 2020, order denying the Request. We can only review on

appeal those matters that were before the trial court. (Newton v. Clemons (2003) 110

Cal.App.4th 1, 11 [“ ‘[W]e ignore arguments, authority, and facts not presented and

litigated in the trial court. Generally, issues raised for the first time on appeal which were

not litigated in the trial court are waived,’ ” fn. omitted].) Based on the record provided

to this court, the only issue litigated below was the grant or denial of the Request, which

only required a determination if there were past acts of abuse that warranted issuance of a

restraining order. As such, Campbell’s claims on appeal, including that Landais is

9 responsible for damages to Campbell’s property; the construction company and Landais’s

wife are responsible for damages caused to Campbell’s property; Campbell must be paid

his travel expenses; Landais’s pool safety wall was inadequate; and counsel for Landais

should be held responsible for damages for committing fraud on the court, cannot be

raised on appeal as the record does not support that these claims were raised in the trial

court.6

Campbell also contends that he was denied due process by the trial court

concluding on October 16, 2019, that the Request was not an elder abuse case. Campbell

insists he should have been allowed to introduce elder abuse evidence. However,

according to the register of actions, the trial court gave Campbell the opportunity to

provide additional evidence. Further, a four-day trial occurred on the Request. Such

claim is not supported by the record.

Campbell claims as to the denial of the Request on September 3, 2020, that the

trial court erred by not allowing him to timely object to Landais’s exhibits and by

allowing Landais to present his “property line dispute claim.” He insists his due process

rights were violated. He further claims that counsel for Landais committed fraud by

presentation of known false evidence and testimony about property lines. He insists the

trial court ignored his elder abuse cause of action by only considering the property line

dispute claim raised by Landais. The trial court ignored his testimony and improperly

relied on evidence presented by Landais. Campbell relies primarily on the Response.

6 We will briefly address his claim, post, that he is entitled to a refund of his filing fees.

10 A “fundamental principle of appellate procedure [is] that a trial court judgment is

ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the

basis of the record presented to the appellate court, that the trial court committed an error

that justifies reversal of the judgment. [Citations.] ‘This is not only a general principle

of appellate practice but an ingredient of the constitutional doctrine of reversible error.’

[Citation.] ‘In the absence of a contrary showing in the record, all presumptions in favor

of the trial court’s action will be made by the appellate court. “[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.’ ” [Citation.] “ ‘A

necessary corollary to this rule is that if the record is inadequate for meaningful review,

the appellant defaults and the decision of the trial court should be affirmed.’ ” [Citation.]

‘Consequently, [the appellant] has the burden of providing an adequate record.

[Citation.] Failure to provide an adequate record on an issue requires that the issue be

resolved against [the appellant].’ ” (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609; see

also Ballard v. Uribe (1986) 41 Cal.3d 564, 574. [“[A] party challenging a judgment has

the burden of showing reversible error by an adequate record”].)

“ ‘It is elementary and fundamental that on a clerk’s transcript appeal the

appellate court must conclusively presume that the evidence is ample to sustain the

findings, and that the only questions presented are as to the sufficiency of the pleadings

and whether the findings support the judgment.’ ” (Ehrler v. Ehrler (1981) 126

Cal.App.3d 147, 154.)

11 Initially, this court has no way of knowing what evidence Campbell sought to

admit that he claims was excluded by the trial court. This court also cannot determine

what Campbell alleged in the Request. Without a copy of the Request, it is impossible to

determine what claims of elder abuse were alleged by Campbell and if the claims were

supported by the preponderance of the evidence. Moreover, the record is void of any

documentation of how the trial court ruled on the admission of his testimony or the

exhibits because Campbell did not include the reporter’s transcript of the four-day trial.

Campbell chose to proceed on appeal without the oral record of the proceedings

below. It is impossible for this court to determine whether any of the evidence or claims

raised in Campbell’s briefs were before the trial court when it made its decision on the

Request. Since there is no oral record of the proceedings, we must presume on the record

before this court that Campbell was afforded due process at the hearing. We understand

that defendant is representing himself, but “[p]ro. per. litigants are held to the same

standards as attorneys.” (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)

We do note that Campbell raises an issue that he should not have to pay the filing

fees for the Request. Campbell relies exclusively on section 15657.03, subdivision (r).

That provision provides, “There shall not be a filing fee for a petition, response, or paper

seeking the reissuance, modification, or enforcement of a protective order filed in a

proceeding brought pursuant to this section.” Campbell does not appear to have been

seeking a “reissuance, modification or enforcement” of an existing protective order. In

fact, the record shows that his prior requests were denied. Accordingly, he was not

entitled to have his filing fees waived under this authority.

12 Campbell appears to raise additional arguments in his reply brief—not raised in

the opening brief—including that he is entitled to additional damages. “[W]e need not

[and do not] consider new issues raised for the first time in a reply brief in the absence of

good cause.” (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 548.)

Campbell provides no good cause why he raised these issues for the first time in the reply

brief and we will not consider them.

Based on the record in this case, Campbell filed the Request and was afforded a

four-day trial. The trial court denied his request after trial. We must presume that such

determination by the trial court is correct. (Jameson v. Desta, supra, 5 Cal.5th at pp. 608-

609.)

Finally, Landais has requested that his attorney’s fees and costs be awarded for

defense of the Request. “The prevailing party in an action brought under this section may

be awarded court costs and attorney’s fees, if any.” (§ 15657.03, subd. (t).)7 Landais

did not file a motion to recover attorney’s fees in the trial court. Moreover, it does not

appear from the record that the trial court awarded costs to Landais after denial of the

Request. Landais, in order to obtain attorney’s fees incurred in defending the Request,

was required to make a request or file a motion in the trial court as the fees were

discretionary as the statute provides that attorney fees “may” be awarded. (Tucker v.

Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1561 [“The use of the word

7Landais is representing himself, and therefore, has not incurred any attorney fees on appeal.

13 ‘may’ denotes a discretionary choice”].) We cannot award such attorney’s fees requested

for the first time on appeal. We will award Landais his costs on appeal.

DISPOSITION

The judgment is affirmed. Landais as the prevailing party is awarded his costs on

appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER Acting P. J.

FIELDS

J.

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