Filed 10/18/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

L.O.,

 Plaintiff and Respondent,

v.

DAVID MATTHEW KILRAIN,

 Defendant and Appellant.

_____________________________

CITY OF SANTA BARBARA,

 Plaintiff and Respondent,

v.

DAVID MATTHEW KILRAIN,

 Defendant and Appellant.

2d Civ. No. B321294

(Cons. w/ B322754)

(Super. Ct. Nos. 21CV04198,

22CV01697)

(Santa Barbara County)

 

Failure to comply with time-honored rules of appellate 

procedure may result in forfeiture of the issues on appeal. 

David Matthew Kilrain appeals from a three-year 

workplace violence restraining order obtained against him by the 
2

City of Santa Barbara (the City) on behalf of five of its employees, 

and a five-year civil harassment restraining order obtained by 

L.O.1 (Code Civ. Proc., §§ 527.6, 527.8; all statutory references 

are to the Code of Civil Procedure). We will affirm both 

restraining orders.

FACTUAL AND PROCEDURAL HISTORY

In October 2021, L.O. petitioned for a restraining order 

against Kilrain pursuant to section 527.6. The petition alleged

that Kilrain had been harassing L.O. because she is transgender

by, among other things, posting disturbing YouTube videos about 

her, using a cell phone to film her, and committing an assault 

against her.2 

The court granted a temporary restraining order (TRO) 

pending an evidentiary hearing. Following the hearing at which 

L.O. and Kilrain testified, the trial court found that L.O.’s 

testimony was “credible” and that Kilrain had demonstrated 

“that he does, in general, have animus towards transgender 

people.” The court rejected Kilrain’s assertion that L.O.’s 

allegations against him were “motivated by a broader political 

agenda or any local political agenda surrounding the mayor[al]

election of 2021,” in which Kilrain was a candidate, and added 

“[t]here’s simply no evidence that . . . [L.O.] is involved in any 

sort of conspiracy.” Accordingly, the court issued a five-year 

1 We refer to L.O. by her initials to protect her privacy.

2 We grant Kilrain and L.O.’s unopposed motions to 

augment the record on appeal in case number B321294 to include 

trial court documents that were not included in Kilrain’s 

designation of the record on appeal. (Cal. Rules of Court, rule 

854(c).)
3

restraining order in favor of L.O. in accordance with section

527.6. 

The same day that the restraining order was issued on 

behalf of L.O., the City petitioned for a workplace violence 

restraining order against Kilrain on behalf of five City employees

pursuant to section 527.8. The petition was supported by the 

employees’ declarations detailing numerous instances of 

appellant’s aggressive and threatening behavior toward them. 

Following its issuance of a temporary restraining order, the court 

held an evidentiary hearing at which all five the affected 

employees testified. At the conclusion of the hearing, the court 

found that Kilrain’s “course of conduct, his aggressive action[s], 

his threats to settle the score, and the manner in which he acted 

towards City employees are a credible threat of violence.” 

The court stated: “A workplace violence restraining order 

is granted in this case because [Kilrain’s] statement[s] and course 

of conduct would place a reasonable person to be in fear for his or 

her safety.” In its written decision, the court found that the City 

employees’ testimony was “very credible” and “believable” and 

“supported the City’s contention.” Accordingly, the court issued a 

three-year restraining order as requested by the City. 

DISCUSSION

Kilrain contends that both restraining orders were 

erroneously issued. We agree with respondents that Kilrain has

forfeited his contentions by failing to comply with the applicable 

rules of appellate procedure.

“[I]t is a fundamental principle of appellate procedure 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 
4

committed an error that justifies reversal of the judgment. 

[Citations.]” (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) 

“This means that an appellant must do more than assert error 

and leave it to the appellate court to search the record and the 

law books to test his claim. The appellant must present an 

adequate argument including citations to supporting authorities 

and to relevant portions of the record. [Citations.]” (Yield 

Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 

557.) Accordingly, the California Rules of Court expressly 

require appellate briefs to “[s]tate each point . . . and support 

each point by argument and, if possible, by citation of authority” 

and to “[s]upport any reference to a matter in the record by a 

citation to the volume and page number of the record where the 

matter appears.” (Cal. Rules of Court, rule 8.204(a)(1)(B) & (C).)

“It is not our place to construct theories or arguments to 

undermine the judgment and defeat the presumption of 

correctness.” (Benach v. County of Los Angeles (2007) 149 

Cal.App.4th 836, 852.) Nor are we “required to search the record 

on [our] own seeking error.” (Del Real v. City of Riverside (2002) 

95 Cal.App.4th 761, 768.) Consequently, “[w]hen an appellant 

fails to raise a point, or asserts it but fails to support it with 

reasoned argument and citations to authority, we treat the point 

as waived. [Citation.]” (Benach, at p. 852.) Likewise, “‘[i]f a 

party fails to support an argument with the necessary citations to 

the record, . . . the argument [will be] deemed to have been 

waived. [Citation.]’ [Citations.]” (Nwosu v. Uba (2004) 122 

Cal.App.4th 1229, 1246 (Nwosu).) These rules apply both to 

parties represented by counsel and self-represented parties. (See 

Nwosu, at pp. 1246-1247.) “A party proceeding in propria 

persona ‘is to be treated like any other party and is entitled to the 
5

same, but no greater consideration than other litigants and 

attorneys.’ [Citation.]” (First American Title Co. v. Mirzaian

(2003) 108 Cal.App.4th 956, 958, fn. 1.)

Kilrain’s briefs do not properly cite the record and are 

replete with unsupported legal and factual assertions. Because 

Kilrain failed to appropriately cite the record, he forfeited any 

argument that the challenged orders were erroneously issued. 

(See Nwosu, supra, 122 Cal.App.4th at p. 1246.)

Kilrain also forfeited his specific argument that the 

restraining orders are not supported by substantial evidence by 

failing to set forth the evidence offered to support those orders. 

(See City of Los Angeles v. Herman (2020) 54 Cal.App.5th 97, 102 

[workplace violence restraining orders reviewed for substantial 

evidence]; see also City of San Jose v. Garbett (2010) 190 

Cal.App.4th 526, 538 [applying substantial evidence standard of 

review to civil restraining order].) “[A]n attack on the evidence 

without a fair statement of the evidence is entitled to no 

consideration when it is apparent that a substantial amount of 

evidence was received on behalf of the respondent.” (Nwosu, 

supra, 122 Cal.App.4th at p. 1246.) Thus, “[a]n appellant . . . who 

cites and discusses only evidence in [their] favor fails to 

demonstrate any error and waives the contention that the 

evidence is insufficient to support the judgment. [Citations.]” 

(Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1408; see also Doe 

v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 

Cal.App.4th 209, 218 [appellant forfeited issue on appeal by 

failing to “set forth, discuss, and analyze all [of] the evidence on 

that point, both favorable and unfavorable” in opening brief].) 

Kilrain’s briefs do not set forth all the evidence upon which 

both restraining orders are based. For example, he does not 
6

discuss or offer record citations to all of the relevant testimony

offered by L.O. or the City employees for whom the workplace 

violence restraining order was issued. By failing to accurately 

discuss the record, Kilrain did not provide a fair statement of the 

evidence. Kilrain also fails to support his arguments with the 

appropriate legal authority and reasoned arguments. He has 

thus forfeited his claims that the orders were erroneously issued.

(Nwosu, supra, 122 Cal.App.4th at p. 1246; Badie v. Bank of 

America (1998) 67 Cal.App.4th 779, 784-785; Sabbah v. Sabbah 

(2007) 151 Cal.App.4th 818, 822, fn. 6.)

DISPOSITION

The restraining orders are affirmed. Respondents shall 

recover their costs on appeal. 

CERTIFIED FOR PUBLICATION.

CODY, J.

We concur:

GILBERT, P. J. 

YEGAN, J. 
7

Stephen Foley, Thomas P. Anderle, Judges

Superior Court County of Santa Barbara

______________________________

David Matthew Kilrain, in pro. per., for Defendant and 

Appellant.

Ferreira Law Group, Gabrielle Ferreira, for Plaintiff and 

Respondent L.O.

Sarah Knecht, City Attorney/City Prosecutor, Denny Wei, 

Assistant City Prosecutor, for Plaintiff and Respondent City of 

Santa Barbara.