Opinion
F078268
12-06-2019
JEANETTE BORLAND, Plaintiff and Respondent, v. BENJAMIN BOTTINI, Defendant and Appellant.
Law Offices of Michael Labrum and Michael Labrum for Defendant and Appellant. Jeanette Borland, in pro. per., for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BFL-18-001857)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Gloria J. Cannon, Judge. Law Offices of Michael Labrum and Michael Labrum for Defendant and Appellant. Jeanette Borland, in pro. per., for Plaintiff and Respondent.
Before Franson, Acting P.J., Meehan, J. and Snauffer, J.
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Defendant Benjamin Bottini brings this appeal to challenge a domestic violence restraining order issued in favor of plaintiff Jeanette Borland, whom defendant characterizes as his former landlord. Defendant contends the superior court erred in determining he and plaintiff had a relationship subject to the Domestic Violence Prevention Act (DVPA; Fam. Code, §§ 6200-6460). Specifically, defendant contends substantial evidence does not support an implied finding that he and plaintiff were in a dating relationship. He also contends substantial evidence does not support the finding he abused plaintiff.
All unlabeled statutory references are to the Family Code. --------
Based on our review of the applicable statutory definitions and the testimony presented at the hearing, we conclude the record contains substantial evidence supporting the findings that (1) plaintiff was a person with whom defendant once had a dating relationship and (2) defendant engaged in behavior that constituted "abuse" pursuant to section 6203, subdivision (a)(4).
We therefore affirm the restraining order.
DISCUSSION
The DVPA's purpose "is to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence." (§ 6220.) To obtain a domestic violence restraining order, the requesting party must demonstrate (1) the existence of a relationship covered by the statute and (2) abuse. Defendant contends plaintiff's evidence failed to establish these elements. Defendant's challenges to the sufficiency of the evidence are reviewed under the substantial evidence standard. (Phillips v. Campbell (2016) 2 Cal.App.5th 844, 849 [appellate court reviewed trial court's finding that a dating relationship existed for substantial evidence].) I. DATING RELATIONSHIP
A. Statutory Provisions
Section 6211 defines domestic violence as abuse perpetrated against various classifications of persons, including, among others, a spouse, a former spouse, and a "person with whom the respondent is having or has had a dating ... relationship." (§ 6211, subd. (c).) "Dating relationship" is defined by section 6210 to mean "frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations." For purposes of this appeal, it is important to note the DVPA does not require the dating relationship be in existence at the time of the abuse. The DVPA extends to situations where the parties had a dating relationship in the past. (§ 6211, subd. (c).)
B. Evidence
During the August 16, 2018, hearing on plaintiff's request for a restraining order, plaintiff testified that (1) she met defendant around April 2015; (2) they "were boyfriend and girlfriend;" (3) they had been living in her house for about a year and a half; and (4) they had been on and off for about four years. On cross-examination, plaintiff admitted that defendant would not refer to her as his girlfriend and had informed her on more than one occasion that he would not be in a committed relationship with her. Defendant testified, "I was never her boyfriend, we did not have sexual relationship—I can count on my two hands how many times we had sex, early, early on."
Based on the totality of the testimony, which includes defendant's testimony about the times they had sex, the superior court reasonably could infer the party had a sufficient level of intimate associations to have formed a dating relationship at some point in the past. Consequently, we conclude the superior court did not err in finding the parties had a dating relationship for purposes of the DVPA. (See Phillips v. Campbell, supra, 2 Cal.App.5th at p. 851 ["trial court drew reasonable inferences from the evidence in concluding that there was a dating relationship"].) II. ABUSE
A. Statutory Provisions
The DVPA defines "abuse" as including any behavior that could be enjoined pursuant to section 6320. (§ 6203, subd. (a)(4).) Section 6320, subdivision (a) authorizes the issuance of orders enjoining, among other things, attacking, striking, threatening, harassing, telephoning, contacting (either directly or indirectly) by mail or otherwise, or disturbing the peace of the other party. Thus, "abuse" is not limited to acts of physical abuse or threats of physical abuse. (Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 398.) "Annoying and harassing an individual is protected the same way as physical abuse." (Ibid.) Section 6320's reference to "disturbing the peace of the other party" has been interpreted to mean "conduct that destroys the mental or emotional calm of the other party." (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497.)
B. Evidence
During the hearing, plaintiff testified that on March 18, 2018, while she was in bed with her back resting against the wall, defendant asked if she was recording him and then came at her, grabbed the phone with one hand, grabbed her index and middle fingers with his other hand and pinched them together, which hurt. Plaintiff said, "Let go of me. You're hurting me. You're hurting me." Defendant ignored her and kept looking through her phone. When defendant was through looking at the phone, he left the room with it. Plaintiff waited a few seconds, followed him to the kitchen and told him to return her phone. Defendant responded that he did not know what she was talking about, he did not have the phone, and she must have lost it. Plaintiff telephoned the police, who arrived about four hours later.
Before the police arrived, defendant asked plaintiff if she was going to feed the dogs and plaintiff said she would. Plaintiff then found her phone in a plastic bag inside the dog food container.
Plaintiff testified that on March 12, 2018, her car had a flat tire and would not start. While plaintiff was at work, defendant said he was going to call AAA. When plaintiff returned home from work, her car was in the backyard and defendant's truck was blocking it in.
Plaintiff also testified to another incident in which defendant had put a lock on the wheels of her car and put a wooden pallet behind it to prevent plaintiff from leaving. Defendant told the plaintiff that she had wasted his time and money and, therefore, he was going to waste her time and money by preventing her from driving to work. After plaintiff called into work sick, defendant removed the lock.
Plaintiff testified that she and defendant had a disagreement over his using her garage to paint a car. She was on her bed when she told him that he could not use her garage for that purpose. Defendant became upset, came over to the bed, and climbed on top of plaintiff. While straddling plaintiff, defendant grabbed her wrists and caught some of her hair in his hand. Defendant yelled at plaintiff and she told him to stop. She also told him that he was pulling her hair and it hurt. Defendant called plaintiff some names and then got off her.
This opinion need not set forth plaintiff's testimony about other incidents. The foregoing testimony constitutes substantial evidence of abusive behavior by defendant. (See Evid. Code, § 411; In re Marriage of Mix (1975) 14 Cal.3d 604, 614 [testimony of single witness, even a party, may constitute substantial evidence].) Under the substantial evidence standard, the appellate court accepts the evidence most favorable to the order as true and discards the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact. (Phillips v. Campbell, supra, 2 Cal.App.5th at p. 850.) Straddling plaintiff, holding her wrists, pulling her hair, and yelling at her is behavior that would, at a minimum, disturb plaintiff's peace for purposes of section 6320, subdivision (a) and, thus, constitutes abuse. Hiding plaintiff's phone and putting a lock on her car to prevent her from using it constitutes harassment. Therefore, the superior court did not err in finding defendant had committed acts that qualify as abuse under the DVPA.
DISPOSITION
The restraining order is affirmed. Plaintiff shall recover her costs on appeal.