B332387_20250822

Filed 8/22/25 Gagliano v. Gutierrez CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa R. Washington, Judge. Affirmed.

Kendall Michelle Gagliano, in pro. per., for Appellant.

John L. Dodd & Associates and John L. Dodd for Respondent.

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Kendall Gagliano appeals a judgment awarding her and respondent Rene Gutierrez, Jr., joint physical and legal custody of their child. We find no reversible error and affirm. We deny Gutierrez’s motion for sanctions.

FACTUAL AND PROCEDURAL BACKGROUND

Gagliano and Gutierrez are parents to a son, born July 2020. In May 2021, Gagliano filed a request for order seeking sole legal and physical custody of their child and asking that Gutierrez have monitored visitation. According to Gagliano’s declaration, Gutierrez had started drinking heavily and contemplated suicide. In July 2021, Gutierrez filed a responsive declaration refuting Gagliano’s allegations and requesting joint physical and legal custody.

On July 26, 2021, the trial court entered an order awarding Gagliano and Gutierrez joint legal custody and shared physical custody, with temporarily supervised visitation for Gutierrez.

In August 2021, Gagliano filed a supplemental declaration in opposition to unsupervised visitation in which she expressed her belief that Gutierrez was drugging their son with Benadryl. She claimed the child was in an “altered, dazed state” after visits with Gutierrez. She also stated that the Department of Children and Family Services (DCFS) had initiated an investigation. Gutierrez denied Gagliano’s allegation.

In September 2021, the trial court ordered that Gutierrez’s visitation be professionally monitored. In February 2022, after hearing testimony from the professional monitor, the trial court ordered unsupervised visitation for Gutierrez.

Gagliano reasserted her belief that Gutierrez was drugging their child in a request for temporary emergency orders suspending visitation, request for change of orders, and an ex parte application to shorten time for the request for change of orders. She claimed that she had obtained hair follicle drug testing using the child’s hair and the results came back positive for Benadryl. The trial court denied Gagliano’s ex parte requests.

In January 2023, after a four day trial, the trial court awarded Gagliano and Gutierrez joint legal and physical custody of their child. In February 2023, the court issued its statement of decision. The trial court observed that DCFS had investigated Gagliano’s accusation and found no evidence that Gutierrez had drugged the child. The court further found that Gagliano had failed to substantiate the allegation with admissible evidence at trial.

The trial court entered judgment in July 2023. Gagliano timely appealed.

DISCUSSION

1. Gagliano Fails to Demonstrate Reversible Error

It is a fundamental rule of appellate review that an appealed judgment or order is presumed correct, and error must be affirmatively shown. (Jameson v. Desta (2018) 5 Cal.5th 594, 609; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “ ‘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.’ ” (Jameson, at p. 609.) It is also the appellant’s burden to provide reasoned argument and citations to relevant legal authority to support that argument. (Lee v. Kim (2019) 41 Cal.App.5th 705, 721; Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277.) Accordingly, “[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 forfeited.” (Delta Stewardship Council Cases (2020) 48 Cal.App.5th 1014, 1075.) These “same rules apply to a party appearing in propria persona as to any other party.” (Flores v. Department of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 205.)

Gagliano’s opening brief has no citations to the record, and she fails to cite any case law. Thus, she has forfeited her arguments on appeal.

Even if we considered her arguments, Gagliano fails to carry her burden of affirmatively demonstrating error. She asserts that the reporter’s transcript was incomplete because it did not include an incident in which the trial court mistakenly believed that a witness entered the room while another witness was testifying remotely. She does not establish that an omission from the reporter’s transcript is ground for reversal, nor does she explain the relevance of the omitted incident to the court’s order.

Gagliano also fails to demonstrate that the trial court abused its discretion by sustaining Gutierrez’s objection to the admission of the drug test results when the results did not identify whose hair sample was tested, and Gagliano concededly failed to produce a chain of custody for the hair tested. (See People v. Catlin (2001) 26 Cal.4th 81, 134 [when chain of custody is challenged, burden is on party offering evidence to show it is reasonably certain that there was no alteration]; Madden v. Madden (1958) 160 Cal.App.2d 422, 425 [no foundation existed for expert testimony concerning blood tests where there was “complete lack of identification of the blood tested” and no evidence presented as to identity of the person who drew blood or how long after it was drawn tests were made].) Her mistaken belief that the steps she took were sufficient to render the test admissible does not mean the court’s ruling was unreasonable.

Similarly, the trial court did not abuse its discretion by excluding evidence of domestic violence when Gagliano failed to raise the issue of domestic violence in her request for order or trial brief. The trial court reasonably concluded that admission of the evidence at trial without prior notice to Gutierrez would be prejudicial. (Green v. County of Riverside (2015) 238 Cal.App.4th 1363, 1369 [exclusion of evidence as unduly prejudicial under Evid. Code, § 352 is “matter committed to the discretion of the trial court and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner”].)

In her reply brief, Gagliano raises two new issues: 1) the trial court’s concerns about Gagliano’s failure to disclose the child’s possible autism spectrum disorder diagnosis prior to her Evidence Code section 776 examination; and 2) Gutierrez’s argument in his trial brief that Gagliano could have been the one drugging their child and blaming him in order to obtain full custody. We do not consider points raised for the first time on reply unless good reason is shown for failure to present them before. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) Gagliano made no such showing.

2. We Deny Gutierrez’s Motion for Sanctions

Gutierrez asks that we impose sanctions on Gagliano because her appeal was frivolous.

Sanctions for prosecuting a frivolous appeal “should be used most sparingly to deter only the most egregious conduct.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 651.) Although “a litigant appearing in propria persona is generally held to the same restrictive rules and procedures as an attorney,” courts have declined to impose sanctions on a self-represented “appellant solely on the ground the appeal lacked merit” and have required some additional impropriety. (Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98.)

This appeal lacks merit. However, the record does not establish that Gagliano acted with an improper motive in pursuing the appeal. Accordingly, we deny Gutierrez’s request for an award of sanctions.

DISPOSITION

The judgment is affirmed. The motion for sanctions is denied. Gutierrez is awarded his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ADAMS, J.

We concur:

EDMON, P. J.

GAAB, J.¹