Opinion
H049807
03-21-2023
DANIELLE BANKS, Plaintiff and Respondent, v. JAY COHEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
(Santa Cruz County Super. Ct. No. 20FL01302).
Grover, J.
Appellant Jay Cohen appeals from a domestic violence restraining order issued against him. He contends that the trial court erred in denying his request for a continuance, and in excluding certain evidence. Finding no error, we will affirm the order.
I. TRIAL COURT PROCEEDINGS
Respondent, the mother of appellant's child, filed a request for a domestic violence restraining order against appellant in December 2020. The basis for respondent's request was an incident alleged to have taken place in November 2020. (The facts of that incident are not relevant to the issues raised on appeal.) Appellant opposed the request and attached various documents to his response, including two letters that he described as "CPS summary" reports.
A hearing on respondent's request was initially scheduled for December 17, 2020. On that date, appellant asked to continue the hearing based on the possibility that he could be criminally charged for the incident. Although charges had not been filed, appellant was scheduled to appear in criminal court on January 11, 2021. The court continued the hearing to January 14, 2021, so that appellant "could see what's happening in terms of a possible new criminal filing" against him.
Appellant was represented by counsel at the January 14 hearing. Appellant's attorney informed the court that a criminal matter was pending, and appellant requested another continuance in order to preserve his Fifth Amendment rights. The court noted that the COVID-19 pandemic had caused a significant delay in the resolution of criminal cases, with only one jury trial having commenced in Santa Cruz County since March 2020. It did not expect appellant's criminal case to be tried within 18 months, but granted a six-month continuance to July 15, 2021.
The court granted several additional continuances between July 2021 and December 2021. On December 9, 2021, appellant again requested a continuance based on his pending criminal case and the court denied his request. The court explained that it had already granted an extensive continuance in order to allow for the possible resolution of appellant's criminal case and that it intended to move forward with the civil case. Counsel informed the court that appellant would not be testifying at the hearing, to avoid incriminating himself as to the pending criminal case.
Before taking evidence, the court took judicial notice of the parties' pleadings. Respondent testified at the hearing. After questioning respondent and determining that her testimony satisfied a prima facie case of domestic violence, the court gave appellant's counsel an opportunity to cross-examine respondent. Counsel indicated that appellant's theory of the case was based on respondent's "motive to fabricate" allegations against him.
While cross-examining respondent, appellant's counsel asked the court for permission to display a document attached to appellant's response to the request for a domestic violence restraining order. Describing the document as a "CPS letter," the court determined that under Welfare and Institutions Code section 827, it could not be introduced without the approval of a dependency court judge. When appellant's attorney questioned respondent about the document, the court directed her to pursue a different topic.
Appellant's counsel cross-examined respondent for more than 30 minutes. The court determined that appellant had not rebutted the prima facie showing of domestic violence, despite counsel's argument that respondent had a motive to fabricate allegations against appellant. The court issued a domestic violence restraining order against appellant, from which he now appeals. (Respondent has not participated in the appeal.)
II. DISCUSSION
The Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.) allows a domestic violence restraining order to be issued when the affidavit or testimony of the applicant "shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse." (Fam. Code, § 6300.) A restraining order issued under the DVPA is an appealable injunction under Code of Civil Procedure section 904.1, subdivision (a)(6). (Molinaro v. Molinaro (2019) 33 Cal.App.5th 824, 831, fn. 6.) As with any other injunction, we review the granting of a domestic violence restraining order for an abuse of discretion. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.)
Appellant appears to challenge the restraining order here on two grounds: he argues that the trial court should have granted his request to continue the December 9, 2021 hearing, and that the court erroneously refused to consider certain "CPS reports" relevant to the case. He also asserts that the latter error rises to the level of judicial misconduct. As we will explain, we are not persuaded by appellant's contentions.
A. Appellant'S Request for a Continuance
The hearing on respondent's application for a domestic violence restraining order was initially scheduled for December 17, 2020. Over the following year the hearing was continued several times at appellant's request due to a pending criminal case arising from the same incident alleged in the application. Appellant urges that the trial court should have granted a further continuance so that his criminal case could be resolved before the hearing.
In support of his argument, appellant cites Keating v. Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322 (Keating). California courts have looked to Keating for guidance when asked to stay civil proceedings pending the resolution of related criminal matters. (See Alpha Media Resort Investment Cases (2019) 39 Cal.App.5th 1121, 11311132.) But Keating does not support appellant's position. The Keating court noted that the Fifth Amendment "does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings" but such a stay may be granted as a matter of discretion. (Keating, at p. 324.) In determining whether to stay proceedings, it explained, courts should consider not only the possible impact on defendants' Fifth Amendment rights but also: "(1) the interest of the plaintiffs in proceeding expeditiously with this litigation or any particular aspect of it, and the potential prejudice to plaintiffs of a delay; (2) the burden which any particular aspect of the proceedings may impose on defendants; (3) the convenience of the court in the management of its cases, and the efficient use of judicial resources; (4) the interests of persons not parties to the civil litigation; and (5) the interest of the public in the pending civil and criminal litigation." (Id. at pp. 324-325.)
"A defendant has no absolute right not to be forced to choose between testifying in a civil matter and asserting his Fifth Amendment privilege." (Keating, supra, 45 F.3d at p. 326.) And the record indicates that, before appellant was required to make that choice, the trial court carefully weighed various relevant factors. The court expressed concern for appellant's Fifth Amendment rights, and granted what it considered an "extraordinarily long" continuance to allow for the possibility that appellant's criminal case could be resolved. But it believed that the criminal case was unlikely to be timely resolved, given the substantial backlog of cases caused by the pandemic. It also considered respondent's expressed desire to have the hearing and "get the matter taken care of." We see no abuse of discretion in the court denying a further continuance, after already continuing the hearing for very close to a full year.
B. Welfare and Institutions Code Sections 827 and 827.10
Appellant asserts that the trial court improperly refused to review, and to admit into evidence, "CPS reports" that he characterizes as illustrative of respondent's false allegations against him. To the extent that appellant refers to documents other than those attached to his response in the trial court, the record does not indicate what those documents are or that the court declined any request to consider them. But the court did prevent appellant's attorney from referencing one document at the hearing, so we address appellant's argument as it pertains to that ruling.
At the hearing, appellant's attorney questioned respondent about a previous investigation conducted by the Santa Cruz County Department of Family and Children's Services. She then requested permission to display a document related to that investigation, which appellant had attached to his opposition to the request for a restraining order. After determining that the document was a "CPS letter," the court told appellant's attorney that she could not display it because Welfare and Institutions Code section 827 requires "the approval of a dependency court judge to introduce CPS records." (Unspecified statutory references are to the Welfare and Institutions Code.) When counsel proceeded to question respondent about the document, the court instructed her to move on. Appellant contends the court erred in its reliance on section 827 because other provisions contained in section 827.10 rendered it inapplicable under the circumstances.
Section 827 provides for the confidentiality of juvenile case records, and limits the dissemination of such records. "Included within the sphere of confidentiality are agency records relating to juvenile contacts" such as Child Protective Services (CPS) files. (Lorenza P. v. Superior Court (1988) 197 Cal.App.3d 607, 610.) Although a parent of the subject child or that parent's attorney may be entitled to inspect CPS records, "these files remain records of the juvenile court which has the inherent right to control the time, place and manner of inspection." (Id. at p. 611.) "Notwithstanding Section 827, the child welfare agency is authorized to permit its files and records relating to a minor, who is the subject of either a family law or a probate guardianship case involving custody or visitation issues, or both, to be inspected by, and to provide copies to," among others, a "judge, commissioner, or other hearing officer assigned to the family law or probate case." (§ 827.10, subd. (a)(1).) But any records disclosed under section 827.10 "shall be maintained solely in the confidential portion of the family law or probate file." (Id., subd. (d).) And section 827.10 does not contemplate testimony about the confidential information by anyone other than a social worker. (See id., subd. (c).)
The record does not suggest that the trial court considered itself unable to review CPS records relevant to this case. Rather, the court ruled only that appellant's counsel could not introduce those records as evidence or question respondent about their contents without obtaining the approval of a juvenile court. Even assuming the trial court was incorrect in its application of section 827, that error would not warrant reversal of the restraining order.
Appellant does not challenge the trial court's rulings "involving custody or visitation issues" (§ 827.10, subd. (a)), but only its finding that he committed domestic violence. Although appellant's attorney attempted to cast doubt on respondent's credibility by cross-examining her about various topics, including the investigation memorialized in the excluded letter, the court did not consider any of that questioning probative as to the question of whether appellant committed the alleged acts of abuse. And it was aware of the excluded letter's contents, having taken judicial notice of the parties' pleadings. There is no reason to believe that the court in its role as factfinder would have concluded that appellant did not commit domestic violence had it permitted more extensive questioning about the contents of the letter or allowed the letter itself into evidence. (See People v. Espinoza (2002) 95 Cal.App.4th 1287, 1318 [no reasonable probability that erroneous exclusion of evidence under section 827 affected outcome of bench trial where court was aware of excluded evidence and rejected defendant's arguments regarding witness credibility].)
III. DISPOSITION
The domestic violence restraining order is affirmed. Appellant shall bear appellate costs, if any, by operation of rule 8.278, subdivision (a)(1) of the California Rules of Court.
WE CONCUR: Greenwood, P. J., Lie, J.