Efishoff v. Kirkpatrick CA1/5

Filed 2/19/21 Efishoff v. Kirkpatrick CA1/5

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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

FIRST APPELLATE DISTRICT

DIVISION FIVE

JILLIAN EFISHOFF,

Plaintiff and Respondent,

A160667

v.

KYLIE KIRKPATRICK, (Napa County Super.

Ct. No. 19CV001692)

Defendant and Appellant.

Appellant Kylie Kirkpatrick (Appellant) appeals from the trial court’s

August 2020 renewal of a civil harassment restraining order protecting

respondent Jillian Efishoff (Respondent). Respondent obtained the original

restraining order in January 2020 and sought a five-year extension under

Code of Civil Procedure section 527.6, subdivision (j).1 The court extended

the order until July 2021.

The record on appeal is incomplete; most significantly, it does not

contain Respondent’s original application for a restraining order. Based on

the limited record before this court, it appears Appellant and Respondent

became embroiled in conflict with some connection to an elementary school in

Napa County. Appellant’s opening brief on appeal includes various

1 All undesignated statutory references are to the Code of Civil Procedure.

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assertions regarding the underlying factual dispute, but those assertions are

not supported by citations to the record.2 In any event, the details of the

underlying events are not important to resolution of Appellant’s claims.

On appeal, Appellant contends the court commissioner who considered

the renewal application “erred by not allowing [her] to have this matter

heard in front of a judge instead of the Commissioner.” “The California

Constitution provides that parties litigating a cause may stipulate that the

matter may be heard and decided by a temporary judge. (Cal. Const., art. VI,

§ 21.) Our Supreme Court has interpreted this to mean that a stipulation is

required to qualify a commissioner to act and that without such a stipulation,

any ruling by or judgment of the commissioner is void. [Citation.] To be

valid, the stipulation need not be in writing or be the result of an express oral

statement [citation], but it may be implied as a result of the conduct of a

party and/or his/her counsel under the ‘tantamount stipulation doctrine’

[citation].” (In re Marriage of Djulus (2017) 10 Cal.App.5th 1042, 1044.) In

the present case, the minute order for the August 2020 hearing on

Respondent’s renewal request states, “The Commissioner advises the parties

that she is acting as a temporary Judge . . . unless there is an objection.

There being no objection, the Court proceeds with the hearing at this time.”

Appellant asserts she “asked for a judge to hear the case,” but she cites to

nothing in the record supporting that assertion and she has not provided this

court with a transcript of the hearing. Thus, Appellant has not shown it was

improper for the commissioner to rule on Respondent’s request for renewal of

the restraining order. (Rancho Santa Fe Assn. v. Dolan-King (2004) 115

Cal.App.4th 28, 46 (Rancho Santa Fe) [“The party seeking to challenge an

2 Respondent did not file a brief on appeal.

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order on appeal has the burden to provide an adequate record to assess error.

[Citation.] Where the party fails to furnish an adequate record of the

challenged proceedings, [their] claim on appeal must be resolved against

[them.]”].)

Appellant also contends the commissioner erred in failing to recuse

herself under section 170.1 (“Grounds for disqualification”). The only ground

for disqualification proffered by Appellant is her assertion that the

commissioner “could not have been impartial given her recent ruling against

Appellant” in a separate proceeding arising out of the same underlying

events, in which Appellant sought a restraining order. “ ‘Impartiality’ entails

the ‘absence of bias or prejudice in favor of, or against, particular parties or

classes of parties, as well as maintenance of an open mind.’ [Citation.] In the

context of judicial recusal, ‘[p]otential bias and prejudice must clearly be

established by an objective standard.’ ” (Haworth v. Superior Court (2010) 50

Cal.4th 372, 389; accord Wechsler v. Superior Court (2014) 224 Cal.App.4th

384, 391.) Appellant provides no reasoned argument why the circumstance

that the commissioner denied Appellant a restraining order in a separate

proceeding would cause a “reasonable member of the public” to “fairly

entertain doubts that the judge is impartial.” (Wechsler, at p. 391.)

Appellant has not shown error.

Finally, Appellant contends renewal of the restraining order was not

supported by evidence “that Appellant had harassed, stalked, threatened, or

abused” Respondent or that there was a “ ‘reasonable probability’ ” (Cooper v.

Bettinger (2015) 242 Cal.App.4th 77, 90) of future harassment. Section 527.6,

subdivision (j)(1) provides, in relevant part, that a restraining order “may be

renewed, upon the request of a party, for a duration not more than five

additional years, without a showing of any further harassment since the

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issuance of the original order . . . .” In the present appeal, as noted

previously, Appellant has not provided this court with the evidence presented

by Respondent to obtain the original restraining order. Because that

evidence alone may support renewal of the order (ibid., see also Cooper, at

pp. 90–91), Appellant’s claim on appeal fails—she has not provided this court

“an adequate record to assess error.” (Rancho Santa Fe, supra, 115

Cal.App.4th at p. 46.)3

DISPOSITION

The trial court’s order is affirmed. Costs on appeal are awarded to

Respondent.

3 We also observe that Appellant fails to acknowledge the evidence of

continued harassment in Respondent’s declaration in support of the renewal

request. Among other things, Respondent averred that, as she was exiting

her parked car on February 12, 2020, Appellant drove past her “and

accelerated just as she passed where I was standing. She drove close enough

I could have touched [Appellant’s] vehicle if I reached out my arm.”

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SIMONS, Acting P.J.

We concur.

BURNS, J.

SELIGMAN, J.*

(A160667)

*Judge of the Alameda County Superior Court, assigned by the Chief Justice

pursuant to article VI, section 6 of the California Constitution.

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