Opinion
G060541
05-02-2023
In re Marriage of JEREMY DRAKE and LUISA PRATES. v. LUISA PRATES, Appellant. JEREMY DRAKE, Respondent,
Shook Hardy &Bacon, Laura M. Booth, Andrew Trask; Family Violence Appellate Project, Jodi Judith Lewis, Shuray Ghorishi and Jennafer Dorfman Wagner for Defendant and Appellant. Troutman Pepper Hamilton Sanders, Pamela S. Palmer, Jordan Jeffrey, Chiemela Okwandu and Sevana Haroutunian for California Women's Law Center and Domestic Violence Legal Empowerment and Appeals Project, a Project of Network for Victim Recovery of DC, as Amici Curiae for Defendant and Appellant. Law Offices of Lisa R. McCall, Lisa R. McCall and Erica M. Baca for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 20D004433, Scott B. Cooper, Judge. Affirmed.
Shook Hardy &Bacon, Laura M. Booth, Andrew Trask; Family Violence Appellate Project, Jodi Judith Lewis, Shuray Ghorishi and Jennafer Dorfman Wagner for Defendant and Appellant.
Troutman Pepper Hamilton Sanders, Pamela S. Palmer, Jordan Jeffrey, Chiemela Okwandu and Sevana Haroutunian for California Women's Law Center and Domestic Violence Legal Empowerment and Appeals Project, a Project of Network for Victim Recovery of DC, as Amici Curiae for Defendant and Appellant.
Law Offices of Lisa R. McCall, Lisa R. McCall and Erica M. Baca for Plaintiff and Respondent.
OPINION
MOTOIKE, J.
Luisa Prates appeals from the trial court's denial of her request for a domestic violence restraining order (DVRO) alleging her husband Jeremy Drake had engaged in conduct disturbing her peace. The trial court denied the DVRO request on the ground Prates failed to establish by a preponderance of the evidence that abuse, as defined in the Domestic Violence Prevention Act, Family Code section 6200 et seq. (DVPA), had occurred. (All further statutory references are to the Family Code, unless otherwise specified.)
Abuse under the DVPA includes conduct "'disturbing the peace of the other party'" and as such, "based on the totality of the circumstances, destroys the mental or emotional calm of the other party." (§ 6320, subd. (c).) Such "conduct includes, but is not limited to, coercive control, which is a pattern of behavior that in purpose or effect unreasonably interferes with a person's free will and personal liberty." (Ibid.)
Prates neither raises issues of evidentiary error nor challenges the sufficiency of the evidence in this appeal. Instead, the issues presented are very limited. Prates argues the statements the trial court made on the record show the court committed legal error in its application of the DVPA by (1) inserting corroborating evidence and pleading specificity requirements into the Act; and (2) failing to consider whether Drake's actions, viewed in the light of the totality of the circumstances, destroyed Prates's mental or emotional calm.
The record does not support Prates's contentions of legal error. While the trial court noted the absence of corroborating evidence in making its credibility determinations, it acknowledged corroboration is not required. The court also noted if Prates proved the allegations in her DVRO request, she would have established abuse under the Act; the court did not impose a heightened pleading specificity requirement. Finally, nothing in the record shows the trial court failed to consider the totality of the circumstances or otherwise failed to properly follow the DVPA in determining whether Drake had committed abuse within the meaning of the Act. We therefore affirm.
FACTS AND PROCEDURAL HISTORY
I. PRATES FILES A DVRO REQUEST IN THE PARTIES' MARITAL DISSOLUTION ACTION
The parties were married in March 2012 and separated in June 2020. They have one child who was two years old at the time of their separation. In July 2020, Drake filed a petition for the dissolution of the parties' marriage. The following October, Prates filed a response to the petition and a request for the dissolution of the marriage in which she sought sole physical custody and joint legal custody of the child, spousal support, confirmation of two bank accounts as her separate property, and the determination of the parties' rights to community property.
In January 2021, Prates filed a request for a DVRO protecting herself and the child from Drake, with whom they had continued to cohabitate since the parties separated. In her DVRO request, Prates alleged, over the course of the parties' eight-year marriage, Drake "intentionally disturb[ed] her peace and harasse[d] her." She did not allege Drake engaged in physical, sexual, or any other form of abuse under the Act. Drake opposed the DVRO request, denying Prates's abuse allegations.
II. THE EVIDENTIARY HEARING
At the evidentiary hearing on the DVRO request, the parties presented testimonial and documentary evidence which is summarized as follows.
A. 2012-2017: The Early Years of the Parties' Marriage
Prates, who is a Brazilian citizen, met Drake while in Colorado participating in a work and travel exchange program in January or February 2012. Only six weeks after they met, the parties married. Prates returned to Brazil at the end of March 2012 because her visa was set to expire. The parties spent the next two years apart, but spoke on the telephone every day.
Prates testified that upon their marriage, Drake promised he was going to get her a green card so they could live together but told her a green card application would be denied if they applied right away because their marriage occurred on such short notice. Drake testified he did not promise to get Prates a green card and further testified he had not been aware citizens seeking to bring a spouse to the United States to reside with them must sponsor a green card application for them.
Prates also testified during the early years of their marriage, Drake said things that made her feel bad about herself. For example, he talked about previous girlfriends and how they were better than she was and how he was going to leave her because she was not "good enough." Drake denied making such comments or arguing during their long distance conversations.
In 2014, Prates visited Drake in Texas for three months on a tourist visa. When Prates returned to Brazil in June 2014, she suffered from mental health problems and experienced suicidal thoughts. Prates entered a voluntary inpatient program for about a month and was diagnosed with depression. She testified Drake called the clinic where she was staying every night and was supportive.
After Prates traveled back to Texas in October 2014 to visit Drake, she decided to overstay her visa knowing she would never thereafter be able to return to Brazil. She and Drake lived in Texas for about six weeks before Drake quit his job and they moved to Oregon where they lived for one year. Drake testified before moving to Oregon, they discussed that once Drake found work there, Prates would apply for a green card. He testified it was his desire then, and it remained his desire as of the hearing on the DVRO request, for Prates to obtain a green card and ultimately become a citizen of the United States.
Prates testified, as of the end of December 2014, she did not have a job, she was afraid of being deported, and she and Drake were isolated. Her Brazilian driver's license expired within a few months of her return to the United States. She stated she made no effort to get a driver's license in Oregon because she was undocumented. She testified Drake told her she was not good enough for him and if she did not do exactly as he wanted, he would file for a divorce and then she would be deported.
Drake denied ever threatening to have Prates deported. He testified he never said anything to the effect that he would file for a divorce and seek her deportation if he were unhappy with her.
Once Drake found work, he retained an immigration attorney in 2015 to assist Prates in obtaining her green card. Her application was not processed after their attorney informed them Drake was not earning enough money to meet the sponsor income requirements. Drake testified he and Prates had many discussions regarding what to do about the green card application. He stated Prates told him that if they were to start the process, she would have to return to Brazil for at least one year. He stated they both agreed that was not an acceptable option.
While the parties lived in Oregon, Drake paid all the household expenses. Prates testified while they lived in Oregon, she had a cell phone and was able to privately communicate with her family.
B. 2016: Prates and Drake Move to California
In January 2016, Prates and Drake moved in with Drake's grandmother in Corona, California and lived with her for one year. Drake did not work that year. He and Prates did not pay rent during that time and otherwise had few expenses. They were generally able to live on savings but later sold their car to cover expenses.
Prates and Drake had separate bank accounts; they never had a joint account and Prates did not ask Drake to open a joint account. Prates testified Drake gave her money and his credit card to go to the grocery store but further testified Drake would inspect and criticize purchases shown on receipts.
Prates also testified she asked Drake in 2016 about getting a California driver's license but he convinced her it was not safe. At some point she learned an undocumented person could obtain a driver's license, but she never applied for one. Drake denied refusing to help her get a driver's license and testified, to the contrary, he encouraged her to get one. He testified Prates told him many times about her fear of driving, how driving in Brazil made her incredibly anxious, and she had difficulty controlling a vehicle.
In December 2016, Prates and Drake moved to Costa Mesa. The following April, Drake got a full time job as a software engineer. Prates continued to have the ability to communicate through the use of a cell phone and the Internet. Drake quit his job in October 2017 to take a new full time job at a higher salary as a software engineer in Los Angeles.
During this general time period, the parties resumed discussions about Prates's immigration status. Prates testified Drake told her he did not want to pursue a green card because Donald Trump was president and she would risk deportation, it was not worth it to him to spend thousands of dollars to get her a green card, and she was a parasite because she relied on him and did not work for herself. Drake denied making negative statements and testified Prates had reiterated to him, based on her research, she was certain she would be required to return to Brazil and she felt with the then current administration the risk she might be deported was too high.
Prates also testified she took care of the apartment, cooked, cleaned, and organized Drake's personal life regarding doctor's appointments, etc. She stated Drake reluctantly paid her medical insurance deductible. She testified Drake complained she did not work, did not have skills to get a job, and complained about her going to the doctor and spending his money. When she complained she was unable to work, she testified "his main thing" was to say she would have to prove to him she could make good money before he would invest in a green card for her. She stated he constantly threatened to deport her-"even though he might not [have] sa[id] it every day, it was a constant thing."
C. 2017: Prates and Drake Have a Child
In 2017, Prates learned she was pregnant. Prates testified Drake was happy about the news but then began to torment her. She stated while the pregnancy had been planned, Drake told her she should have an abortion because she was a terrible person and would be a terrible example. She testified he said once the child was born he was going to have Prates deported and find a better mother for their child.
Drake disputed Prates's testimony. He testified the pregnancy had been planned after their discussions about wanting to have children together. He denied ever demanding Prates have an abortion and denied telling Prates (or believing) she was a horrible person or would be a terrible example for a child. He testified he believed Prates has important gifts and talents and was a "great person in very many ways." He testified he has told her "countless times" she is a great mother. He also denied ever threatening to take their child away so Prates would never see her again.
The parties' daughter was born in May 2018. Prates testified Drake complained about the medical expenses, complained about taking care of Prates after the delivery, and did not help with changing diapers while in the hospital.
She testified when her aunt, uncle, and cousins visited from Brazil a few months later, Drake prohibited her from seeing them without Drake present. She added Drake would not allow them to hold their daughter for long and did not agree to let her family be alone with their daughter. Drake also instructed Prates to go into the bedroom when she breastfed their daughter in a manner Prates's uncle testified was "harsh" in tone. Prates testified Drake initially said her father and stepmother could not visit their daughter on her first birthday in May 2019 "because of the bad experience with [her] aunt and uncle," but later changed his mind.
D. 2019-2020: The Marriage Becomes More Strained
In September 2019, the parties' relationship became more strained after Prates disclosed to Drake she had been diagnosed with a sexually transmitted disease. Drake became very upset and accused her of infecting him.
The police were called to the parties' home several times in early 2020 but no arrests were ever made on those occasions. The exact sequence of events is not clear in the appellate record. Prates testified at some point Drake had turned off her cell phone and changed the Internet passwords because he wanted her to leave. She also testified he said she could have the Internet back if she cleaned the house and her Internet access was not restored until after the police came. Drake denied there having been any interruption to her cell or Internet service other than the one day his service was also interrupted and he called their provider for support.
Prates testified that on another occasion, Drake had hidden keys from her in their home. She also stated one night he told her she could not leave their bedroom. After that, he said he could not sleep with her at the house so he drove her to a motel and told her to get money from her parents to pay for it; Prates paid for the motel stay with her own money. She stayed in the motel one night; their daughter stayed with Drake. Although Prates testified Drake had dropped her off at the motel against her will, text messages between them suggested she and Drake had agreed she would stay the night at the motel and showed she refused Drake's request to talk after she confirmed she was checked in.
Prates testified she later contacted the Brazilian Consulate which referred her to a psychologist who diagnosed Prates with depression and post traumatic stress disorder. Days after Prates's first motel stay, Prates testified Drake took her to a motel again. She came back to their home before the night was over and he complained he had spent money for nothing.
In February 2020, Prates and Drake lived briefly with his grandmother again. In the middle of one night during their stay, Prates became upset with Drake for a reason unexplained in the record, and said she wanted to leave with their daughter to go to a shelter. When Drake put himself over the crib containing their daughter, Prates admitted she pushed him; Drake testified Prates struck him several times. Drake then picked up their daughter, went to another room, and shut and locked the door. Prates banged on the locked door and called him a monster and a psychopath and said she wished he would burn in hell. Drake's grandmother tried to intervene. Prates admitted she had physical contact with Drake's grandmother, but denied Drake's testimony the grandmother had marks on her arms as a result of Prates grabbing her. Drake quit his job that month, citing stress at home combined with his fear he was going to be fired because he was unable to perform some of the job requirements.
In March 2020, Prates and Drake moved to Irvine. Prates testified Drake agreed to sponsor her green card.
E. 2020-2021: The Petition for Dissolution and the DVRO Request Are Filed
In July 2020, Drake filed a petition for the dissolution of their marriage which was served on Prates the following month. In June or July of 2020, Drake had a camera installed inside the main room of their residence. Prates did not initially object to the installation of the camera but later asked to have it removed; Drake did not remove it because he felt it served important purposes. In August or September 2020, Prates and Drake entered an informal agreement as to how they would equally share custody of their daughter. Drake remained unemployed until October 2020 when he was hired by his family's business working as a software engineer.
In January 2021, Prates felt depressed and had suicidal ideations. She contacted her psychiatrist and psychologist and spoke with her therapist who became worried and called the police to check on her. On January 18, 2021, Prates was placed on an involuntary psychiatric hold pursuant to Welfare and Institutions Code section 5150. Prates testified she had to stay a second night in the hospital because Drake refused to pick her up. Drake testified, based on his conversations with Prates and her doctor, the doctor wanted to keep her an extra night. In any event, Prates took an Uber home when she was released because, Drake testified, they agreed it would be the safest option for their daughter given COVID concerns.
On January 27, 2021, Prates received notice through counsel that Drake would not be renewing the lease at their Irvine residence and he would be moving out at the end of that month. The following day, Prates filed the instant DVRO request and request for a temporary restraining order (which was granted) pending hearing on the request. Prates testified when Drake got notice of the DVRO request, he got very nervous and pale and began shaking. He grabbed his duffel bag, packed a change of clothes for their daughter, and went to the car to leave with the child. Prates tried to stop Drake from leaving with the child. The police came and spoke with the parties separately. The police permitted Drake to take their daughter to his parents' house in San Diego.
Prates testified, as of mid-August 2020, she had retained counsel to represent her in the marital dissolution matter, but had taken no action to file a request for financial support or to complain about neglect or custody. Prates also testified she was aware that obtaining a DVRO would make it easier for her to obtain a green card in light of the pending marital dissolution action.
III. THE TRIAL COURT DENIES THE DVRO REQUEST
Following several days of hearing, the trial court denied the DVRO request. In its findings and order, the trial court explained: "After receiving evidence and hearing testimony, on March 4, 2021, the Court denied [Prates's] request for domestic violence restraining orders against [Drake] as she has failed to establish by a preponderance of the evidence that abuse, as described in the Domestic Violence Prevention Act, had occurred." (Italics omitted.) Prates appealed.
APPEALABILITY
Prates filed a notice of appeal in which she stated she was appealing from an order or judgment entered on March 12, 2021. (Code Civ. Proc., § 904.1, subd. (a)(6).) As pointed out by Drake in the respondent's brief, however, the trial court denied the DVRO request on March 4, 2021, not March 12. Drake has not filed a motion to dismiss the appeal on the ground the notice of appeal was deficient.
In Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18, the California Supreme Court held where "'"it is reasonably clear what appellant was trying to appeal from"' and 'no prejudice would accrue to the respondent' [citation], the Court of Appeal should treat the notice as an appeal from the underlying judgment." (See In re Joshua S. (2007) 41 Cal.4th 261, 272 ["'notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced'"].)
Drake does not dispute it was reasonably clear to him that Prates was appealing from the trial court's denial of her DVRO request. He does not claim he would be prejudiced if this court were to treat the notice as appealing from the March 4 order denying the DVRO request. We therefore reject Drake's argument Prates's appeal should be dismissed because the notice of appeal referenced an incorrect date.
DISCUSSION
I. SUMMARY OF RELEVANT PROVISIONS OF THE DVPA
"The DVPA's 'protective purpose is broad both in its stated intent and its breadth of persons protected.' [Citation.] The DVPA must be broadly construed in order to accomplish the statute's purpose. [Citation.]" (N.T. v. H.T. (2019) 34 Cal.App.5th 595, 601-602 (N.T.); see Curcio v. Pels (2020) 47 Cal.App.5th 1, 11 [the DVPA "'confer[s] a discretion designed to be exercised liberally, at least more liberally than the trial court's discretion to restrain civil harassment generally'"].)
Under the DVPA, the trial court is authorized to issue a protective order "to restrain any person" for the purpose of preventing domestic violence, "if an affidavit or testimony and any additional information provided to the court . . . shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse." (§§ 6300, subd. (a); 6220; see In re Marriage of F.M. &M.M. (2021) 65 Cal.App.5th 106, 116 ["'The DVPA requires a showing of past abuse by a preponderance of the evidence'"].) Section 6300, subdivision (a) further provides: "The court may issue an order under this part based solely on the affidavit or testimony of the person requesting the restraining order."
Domestic violence, under the Act, includes "abuse perpetrated" against "[a] spouse or former spouse" or "[a] child of a party." (§ 6211, subds. (a) &(e).) As relevant to the basis for Prates's DVRO request, section 6203, subdivision (a)(4), provides, under the Act, the term "'abuse' means . . . [¶] . . . [¶] (4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320."
Under section 6320, subdivision (a), the trial court may issue an ex parte order enjoining a party from "disturbing the peace of the other party." Subdivision (c) of section 6320 provides: "As used in this subdivision (a), 'disturbing the peace of the other party' refers to conduct that, based on the totality of the circumstances, destroys the mental or emotional calm of the other party. This conduct may be committed directly or indirectly, including through the use of a third party, and by any method or through any means including, but not limited to, telephone, online accounts, text messages, Internet-connected devices, or other electronic technologies. This conduct includes, but is not limited to, coercive control, which is a pattern of behavior that in purpose or effect unreasonably interferes with a person's free will and personal liberty. Examples of coercive control include, but are not limited to, unreasonably engaging in any of the following: [¶] (1) Isolating the other party from friends, relatives, or other sources of support. [¶] (2) Depriving the other party of basic necessities. [¶] (3) Controlling, regulating, or monitoring the other party's movements, communications, daily behavior, finances, economic resources, or access to services. [¶] (4) Compelling the other party by force, threat of force, or intimidation, including threats based on actual or suspected immigration status, to engage in conduct from which the other party has a right to abstain or to abstain from conduct in which the other party has a right to engage." (Italics added.)
Section 6203, subdivision (b) provides: "Abuse is not limited to the actual infliction of physical injury or assault."
II. STANDARDS OF REVIEW APPLICABLE TO ORDERS DENYING A DVRO REQUEST
We review the denial of a request for a DVRO for abuse of discretion. (In re Marriage of Davila &Mejia (2018) 29 Cal.App.5th 220, 226 (Davila).) "'"To the extent that we are called upon to review the trial court's factual findings, we apply a substantial evidence standard of review."' [Citations.]" (Ibid.) "In reviewing the evidence, we examine the entire record to determine whether there is any substantial evidence-contradicted or uncontradicted-to support the trial court's findings. [Citation.] We must accept as true all evidence supporting the trial court's findings, resolving every conflict in favor of the judgment. [Citation.] We do not determine credibility or reweigh the evidence. [Citation.] If substantial evidence supports the judgment, reversal is not warranted even if facts exist that would support a contrary finding. [Citation.]." (Curcio v. Pels, supra, 47 Cal.App.5th at p. 12.)
"'"However, '[j]udicial discretion to grant or deny an application for a protective order is not unfettered. The scope of discretion always resides in the particular law being applied by the court, i.e., in the "'legal principles governing the subject of [the] action ....'"'"' [Citations.]" (Davila, supra, 29 Cal.App.5th at p. 226.) "Thus, 'we consider whether the trial court's exercise of discretion is consistent with the statute's intended purpose.' [Citation.] '"If the court's decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, the court has not properly exercised its discretion under the law. [Citation.] Therefore, a discretionary order based on an application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal. [Citation.]" [Citation.] The question of whether a trial court applied the correct legal standard to an issue in exercising its discretion is a question of law [citation] requiring de novo review [citation].' [Citation.]" (In re Marriage of F.M. &M.M., supra, 65 Cal.App.5th at p. 116.)
III. THE TRIAL COURT DID NOT ERR BY DENYING THE DVRO REQUEST
In her opening brief, Prates does not argue insufficient evidence supported the trial court's order denying her DVRO request. She also does not raise any arguments of evidentiary error. Instead, Prates argues the trial court's statements on the record show the court incorrectly applied the DVPA by requiring corroborating evidence, unilaterally imposing a pleading specificity requirement, and failing to consider the totality of the circumstances in determining whether Drake's conduct destroyed her mental or emotional calm. For the reasons we explain, the record does not support Prates's claims of legal error.
A. The Trial Court Did Not Err by Considering the Combined Effect of the Dearth of Corroborating Evidence, the Late Disclosure of Significant Abuse Allegations, and the Timing of the Filing of the DVRO Request in Evaluating Credibility
Prates argues the trial court erred by denying her DRVO request, in part, because it imposed a requirement on Prates to offer corroborating evidence even though section 6300, subdivision (a) authorizes the issuance of a restraining order "'based solely on the affidavit or testimony of the person requesting the restraining order.'" The trial court's statements on the record do not show the trial court was unaware of its authority under section 6300, subdivision (a), or otherwise imposed a corroboration requirement. Instead, the court acknowledged in its comments the "lack of corroborating or contemporary evidence of any kind" did not in and of itself bar issuance of a DVRO in this case.
The trial court commented on the lack of corroborating evidence in the context of the court making credibility determinations in weighing the sharply disputed evidence before it. Before counsel offered their closing arguments at the hearing on the DVRO request, the trial court stated: "One thing I've been thinking about-it seems to me this comes down in lot of ways to credibility. In today's day and age of texts and emails and social media, what we often get is lot of documentary, if you will, or at least electronic evidence that tends to support or not support the parties' various positions. [¶] Here we have very little of that. And we have a lot of allegations on both sides that are just diametrically opposed.... [W]hat I'm wondering is does my decision in this case come down in large part to simply who I believe based on the testimony. And if I were to believe Ms. Prates's allegations for the most part, wouldn't that fit under 6320, particularly the coercive control elements; and if not, then it wouldn't? [¶] So just think about that for closings. It's something that's been on my mind."
In their respective closing arguments, counsel concurred the case boiled down to the parties' respective credibility and each argued the opposing party had made false statements and his or her testimony should not be believed.
After closing arguments, and after reviewing the governing legal principles, the trial court explained its determination "comes down largely to whether [Prates] has proven these allegations by a preponderance of the evidence and whether she has proven these allegations comes down primarily to a credibility determination." (Italics added.) The court observed Prates alleged "a lengthy course and pattern of abusive behavior that started early in the parties' marriage back in 2012 and escalated through the time she sought the [DVRO]" which she supported by her oral and written testimony.
The court further observed "[t]here is a notable lack of corroborating or contemporaneous evidence of the abuse she alleges" even though she says she was in regular contact with her family over the phone and electronically either through texts or the WhatsApp app with one exception. Her uncle testified when he and his family visited Prates and Drake, Drake expressed he did not want Prates's family members to hold the child for long or to be with the child unattended and at one point told Prates to leave a room while she nursed their child. Prates's uncle also testified they were not able to spend as much time as they wanted with Prates, Drake, and their child during their visit. The court noted the uncle's testimony provided "some circumstantial corroborating evidence that [Drake] was controlling, but combined with a lack of additional evidence, it [was] not sufficient to prove the sort of coercive control . . . that was envisioned by the statute." The trial court stated it was troubled Prates did not offer any other evidence, whether the testimony of family or friends or documentary evidence of communication between the parties themselves in the form of texts, posts, e-mail, notes, or letters that would support her allegation Drake abused her by disturbing her peace.
In its discussion of how it made credibility determinations, the court also expressed concern Prates "did add fairly significant allegations of abuse during the hearing that were never mentioned in her filings leading up to the hearing including her seven-page declaration in support of the request." During the hearing, Prates did not explain why these significant allegations of abuse were not included and she had no explanation except that there had been so much abuse she could not catalogue it all. The court questioned Prates's credibility in disclosing substantial abuse allegations after the fact. The court did not find fault with the specificity of Prates's pleadings. In fact, the trial court stated at the hearing "many of [Prates's] allegations, if true, fall directly within the definition of coercive control as set forth in the examples cited in subdivisions (c)(1) through (c)(4) of the amended statute." Prates does not contend the trial court excluded evidence of abuse allegations she did not reference in the DVRO request or failed to consider any evidence in ruling on the DVRO request.
Finally, the trial court noted it found Prates's timing and motivation in seeking a DVRO suspect. The trial court explained:
"[Prates] alleges eight to nine years of escalating abuse. [Drake] filed for divorce in July of 2020 and served [Prates] with those papers in August of 2020. The parties continued to live together, trying to manage this new situation while still living together and trying to co-parent [their child] and did so through the end of January 2021, so did so for basically five to six months after the divorce case had been filed.
"During that time, [Prates] was taken on psychological hold in mid January and got out on either the 19th or 20th of January. And this is for issues that she alleges were related to and caused by the abuse. And through all of this, she never sought any restraining orders or any other orders from the court.
"On January 27, 2021, [Drake] provided notice to [Prates] through counsel that he would not be renewing the lease on their residence and it wasn't until the very next day after receiving that notice that [Prates] filed . . . this request for the domestic violence restraining order. This does create at least the impression that the filing may have been motivated in large part by the notice of the termination of the lease."
The court reiterated it was the combined effects of these factors that affected its credibility determinations, stating: "[T]he court has concerns about the allegations based on, first, the lack of corroborating or contemporary evidence of any kind. Second, the new allegations made at the hearing that were not mentioned previously and, third, the timing and motivation for the filing. [¶] Any one of these concerns by itself may not have been enough to support a finding against [Prates] in this case, but taken together, they lead to finding that [Prates] has not met her burden to prove abuse by a preponderance of the evidence in this case." (Italics added.)
This case is therefore distinguishable from In re Marriage of F.M. &M.M., supra, 65 Cal.App.5th at page 119, in which the trial court denied a DVRO request on the ground the petitioner's testimony lacked corroboration and specificity. The appellate court reversed, stating: "Of course, '[a] trier of fact is free to disbelieve a witness . . . if there is any rational ground for doing so.' [Citation.] Here, the trial court did not indicate on the record that mother lacked credibility as a witness, and indeed, the court must have credited her testimony because it issued and reissued the TRO several times. Instead, the court found mother failed to meet her burden of proof because she did not offer corroborating evidence. In many domestic violence cases, however, the sole evidence of abuse will be the survivor's own testimony which, standing alone, can be sufficient to establish a fact." (Italics added.)
In contrast, here, the trial court did indicate on the record it found some unspecified parts of Prates's testimony credible, and other parts less credible: "Let me make clear having made the ruling, the ruling does not mean that I'm rejecting all of what [Prates] said in this case or that I believe all of what [Drake] testified to. In fact, based just on their demeanors and manner of testifying, I find that on balance, [Prates] appeared more credible on many issues than [Drake] did. And I do not approve of some of the conduct that [Drake] did engage in and do not believe his explanation as to some of that conduct." (Italics added.) Therefore, unlike the circumstances of In re Marriage of F.M. &M.M., supra, 65 Cal.App.5th 106, the record does not support Prates's argument the trial court denied the DVRO request simply because Prates did not present corroborating evidence.
In In re Marriage of F.M. &M.M., supra, 65 Cal.App.5th at pages 118 to 119, the trial court also found "a fatal lack of specificity in [the petitioner]'s evidence," and concluded her evidence was "'too general in nature and lack[ed] [the] specificity required to support the request.'" Again, in contrast, the trial court here did not find Prates's allegations or supporting evidence to be lacking in specificity. The court simply questioned Prates's initial disclosure of significant allegations of abuse in the middle of the evidentiary hearing on the DVRO request.
Our record shows the trial court discharged its obligation to weigh the parties' conflicting evidence and made credibility determinations in ruling on the DVRO request. Nothing in the DVPA limits the trial court's discretion to make such credibility determinations and we do not second guess the court's credibility determinations here. (Chase v. Wizmann (2021) 71 Cal.App.5th 244, 257 ["'We resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge in all legitimate and reasonable inferences to uphold the finding of the trial court if it is supported by substantial evidence which is reasonable, credible and of solid value'"].) We find no error.
B. The Record Does Not Show the Trial Court Failed to Consider the Totality of the Circumstances in Determining Whether Drake's Conduct Destroyed Prates's Mental or Emotional Calm
Prates argues the trial court failed to consider the totality of the circumstances in determining whether Drake's conduct destroyed Prates's mental or emotional calm. She also argues the trial court erred by considering coercive control as the only form of disturbing the peace under the DVPA, and further argues, as to coercive control, the trial court failed to consider patterns of behavior but instead considered events in isolation. (See McCord v. Smith (2020) 51 Cal.App.5th 358, 366 ["Whether one single act . . . would have been sufficient to justify the issuance of the DRVO is not the question-the trial court considers whether the totality of the circumstances supports the issuance of the DVRO"].)
Prates did not request a statement of decision or request the court make any specific findings. Even a cursory review of the hearing transcript shows the statements the trial court made on the record were neither comprehensive nor complete but instead focused on the court's reasons for making its credibility determinations; the court did not list the various findings it necessarily made in ruling on the DVRO request. Prates did not request the court to provide a more complete statement of findings and reasons and she has not challenged the adequacy of the court's statement of reasons in and of itself in this appeal. The court did not expressly acknowledge coercive conduct is only a subset of conduct qualifying as disturbing the peace section 6320, subdivision (c), nor did it restate the requirement the court consider the totality of the circumstances in evaluating whether domestic violence has occurred; neither, however, shows the court was laboring under a misapprehension of the governing legal principles under the DVPA.
As to coercive control, amici curiae argue: "While any individual act, standing alone, may not appear to 'rise to the level' of abuse in the eyes of the court, when viewed in context, an enjoinable pattern of abuse, controlling behavior is plain. The court's fragmented examination of individual actions or aspects of [Drake]'s control over [Prates] is inconsistent with the approach dictated by the DVPA." Amici curiae further argue: "[T]he allegations the court found credible or otherwise accepted as true are, individually and collectively, sufficient to support a finding of domestic abuse, including (1) [Drake]'s use of [Prates]'s immigration status to exert control over her, (2) [Drake]'s complete control over money and credit and, thereby, over [Prates]'s access to basic necessities, including shelter, and (3) [Drake]'s conduct to isolate [Prates] from friends and family, and control her access to their child." Amici curiae argue because this conduct falls within "the illustrative examples [of coercive control] added in DVPA Section 6320(c)," the trial court necessarily minimized the import of those examples and thus abused its discretion by denying the DVRO request.
As discussed ante, the trial court did not make the specific findings of fact or credibility credited to it by amici curiae. In any event, coercive control is defined in section 6320, subdivision (c) as "a pattern of behavior that in purpose or effect unreasonably interferes with a person's free will and personal liberty." (Italics added.) The examples set forth in that code section are prefaced with the statement: "Examples of coercive control include, but are not limited to, unreasonably engaging in any of the following ...." (Ibid., italics added.) So even if the trial court had found Drake committed one or more of the above acts cited by amici curiae, subdivision (c) of section 6320 would require the court to also find he had "unreasonably engag[ed]" in such conduct before it would qualify as "coercive control" under the statute. (§ 6320, subd. (c), italics added.) The record does not show the trial court made any such findings.
In fact, when asked by Prates's counsel whether the trial court made any findings as to Prates's immigration status during the relevant time period, the court stated: "The court finds that her immigration status didn't change; that there was conflicting testimony as to why that didn't happen and that based on the conflicting testimony, there wasn't sufficient evidence to show that the lack of her receiving a green card constituted abuse under the circumstances."
As discussed ante, the court's order is presumed correct, and "'"[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent ...."'" (Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574.) Prates has failed to carry her burden of showing the trial court failed to consider the totality of the circumstances or otherwise failed to properly apply the law in ruling on the DVRO request. We find no error.
IV. ARGUMENTS FIRST RAISED IN THE REPLY BRIEF ON APPEAL ARE DEEMED FORFEITED
In her reply brief on appeal, Prates argues for the first time "the trial court abused its discretion, because the undisputed evidence and factual findings constitute disturbing the peace and coercive control." Prates's argument, reiterated by her counsel at oral argument, is predicated on findings she assumes the trial court made in her favor. As discussed ante, the trial court did not offer a comprehensive statement of the findings it made in ruling on the DVRO request.
Moreover, the evidence presented to the trial court was largely disputed. Therefore, the argument the state of the record compels a finding, as a matter of law, Drake destroyed Prates's mental or emotional calm within the meaning of section 6320, subdivision (c), is without merit.
Furthermore, such an argument requires an evaluation of the state of the evidence and yet, as pointed out in the respondent's brief, Prates's opening brief offers a one-sided summary of the evidence and thus did not set forth a "summary of the significant facts" as required by rule 8.204(a)(2)(C) of the California Rules of Court.
In any event, "[w]e deem the arguments made for the first time in the reply brief to be waived. [Citations.]" (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 799.)
DISPOSITION
The order is affirmed. Respondent to recover costs on appeal.
WE CONCUR: O'LEARY, P.J., SANCHEZ, J.