Opinion
C041618.
11-13-2003
MERCEDES GONZALEZ, Plaintiff and Respondent, v. JULIA FRANCES VARGAS, Defendant and Appellant.
Defendant Julia Frances Vargas appeals from a May 24, 2002, restraining order entered against her pursuant to the Domestic Violence Prevention Act (DVPA). (Fam. Code, § 6200 et. seq.) The order enjoins defendant from contacting, harassing, threatening or coming within 100 yards of plaintiff Mercedes Gonzalez (Gonzalez) or any of the members of the Gonzalez household, including defendants mother, for a period of three years. Defendant contends the order is not supported by sufficient evidence and makes several complaints regarding the proceedings leading up to the order. We affirm the order.
Background
Defendant and Gonzalez are estranged sisters. Their mother, Betty Rodriguez, is chronically ill, living with and being cared for by Gonzalez.
On March 1, 2002, Gonzalez filed an application and declaration for a restraining order against defendant. In the application, Gonzalez described numerous instances of harassment by defendant over the last several years. Gonzalez attested that in 1997 defendant had come to the house yelling and making accusations and continued to do so even after the police arrived. When the police told defendant to leave, she got in her car and said to Gonzalez and her family members, "your all going to hell," and "your all going to pay." Gonzalezs minor daughter responded, "well, I guess we will see you there." A week later, defendant had her 22-year-old daughter physically beat Gonzalezs minor daughter in retribution for the girls remark.
Gonzalez also attested that on several occasions, defendant had verbally assaulted Betty Rodriguez until the nurses asked her to leave the room. Defendant also harassed Betty Rodriguez while she was in the hospital. Over the past two years, defendant had constantly harassed Gonzalez and her family, causing Gonzalez to have her telephone number changed twice.
On one occasion, defendant had let herself into the Gonzalez residence through an unlocked door. When Gonzalez asked what she was doing in the house, defendant responded, "The Lord let me in. The Lord sent me to see my mother." When Gonzalez responded that defendant was to make visitation arrangements with their sister, Connie, defendant yelled: "I dont need arrangements with you or anybody bitch." After being escorted out of the house, defendant remained in the front yard for five minutes screaming that Gonzalez was a devil and that Gonzalez was going to pay and defendant would be there when she did.
On February 2, 2002, defendant tried to force entry into the Gonzalez residence. When Gonzalezs husband asked defendant to leave, she refused and insulted him with offensive language. Defendant finally left when Gonzalez called the police but threatened "your going to pay, bitch, your all going to pay" while walking away.
On February 20, 2002, defendant came to the Gonzalez residence and began banging on the door. When Gonzalezs husband opened the door, defendant put her finger in his face and began yelling at him. Defendant yelled about the Gonzalezes leaving defendants brother at defendants house, made numerous extremely rude accusations about Gonzalez, and repeatedly called Gonzalez the devil.
Gonzalez attested that the harassment has been ongoing and that she and her household family members were frightened of defendant and feared more physical violence.
On March 1, 2002, the trial court issued a temporary restraining order against defendant and scheduled a hearing on the permanent restraining order for March 25, 2002, on shortened time. At the March 25, 2002, hearing, however, the court denied the permanent restraining order, leaving the temporary restraining order in effect, and set the matter for trial for May 24, 2002.
Gonzalez submitted several sworn affidavits in support of the permanent restraining order. Defendants niece attested that defendant had harassed her by telephone about Gonzalez. The niece stated that defendant had gone into a "yelling rage" and had ended the conversation by saying "if I wasnt a child of [G]od I would kick [Gonzalezs] ass" and "that bitch is going to pay."
Betty Rodriguez signed an affidavit, stating: "Due to my health problems, I am feeling that my Daughter, [defendant,] harassing me at all times and as a result of her constant visits, leave me very nervous, that increase my health problems. Reasons why I recommending that the Court approves a restraining order and to be delivered to [defendant]." (Sic.)
Defendants maternal aunt submitted a signed affidavit stating she had witnessed a visit between defendant and Betty Rodriguez. During the visit, Betty Rodriguez became "totally upset and frightened by her daughter[]s screaming and hollering." As defendants visit consisted of screaming accusations regarding Gonzalez, Betty Rodriguez asked to be taken home.
Both defendant and Gonzalez appeared at trial. Gonzalez recounted the February 20, 2002, incident. Gonzalez explained she had tried to shut the door on the screaming defendant, but defendant had placed her foot in the way. Defendant refused to leave when told and continued to yell and insult Gonzalez. Defendant started to leave when Gonzalez called the police but returned when she saw Gonzalez hang up the telephone. Defendant got very close to Gonzalezs face and resumed screaming until Gonzalez called the police again. Only then did defendant leave.
Defendant replied that she had gone to Gonzalezs house on February 20, 2002, to drop off her brother, whom Gonzalez had previously dropped off at defendants house. Defendant claimed she knocked on Gonzalezs door and, when Gonzalezs husband answered, she asked him to stop bringing her brother to her house. Defendant said Gonzalez then came to the door and began yelling, cursing and making false accusations. In response, defendant just listened and "was saying, `[t]hats not true." Defendant remained standing there because she wanted to see her mother. Defendant admitted she did not leave immediately when Gonzalez called the police but denied that she returned after Gonzalez hung up the telephone
Gonzalez also recounted the incident when defendant had come to her house and just walked in without knocking. When Gonzalez asked what she was doing in the house, defendant responded that "The Lord let me in." After being told to leave, defendant remained in the front yard yelling insults. Defendant denied this incident ever occurred and said she had been to the Gonzalez residence only twice within the previous 15 years.
At the conclusion of the trial, the court granted the permanent restraining order against defendant, enjoining her from contacting, harassing, attacking, striking, threatening, battering, telephoning, sending any messages to, following, stalking, or disturbing the peace of Gonzalez or any member of the Gonzalez household, including Betty Rodriguez, for a period of three years. Defendant was also ordered to stay at least 100 yards away from Gonzalez, members of the Gonzalez household, Gonzalezs workplace and Gonzalezs residence.
DISCUSSION
I
Service of Application
Defendant contends she "received improper service of the Order to Show Cause and Temporary Restraining Order" in that she was not served with the temporary restraining order until the day before the scheduled hearing on the permanent restraining order (over 20 days after it was issued) and was not served with a blank "Responsive Declaration to Order to Show Cause" for her to prepare and file in opposition to the extended restraining order.
Defendant fails to identify that portion of the record that indicates she properly preserved the issue she now raises on appeal. Nowhere in the record on appeal is there any indication that defendant ever protested or raised in any way the issue of lack of timely notice. Thus, in failing to raise the issue of inadequate notice, defendant has waived any objection she may have had on this ground. (See Jansen Associates, Inc. v. Codercard, Inc. (1990) 218 Cal.App.3d 1166, 1170.) Defendant "is barred by the familiar rule that having failed to raise the issue in the trial court, [s]he will not be heard to raise it for the first time on appeal." (Ibid.)
Moreover, the Gonzalez application was denied at the March 25, 2002, hearing of which defendant claims she received inadequate notice. The matter was set for trial on May 24, 2002. Defendant had ample notice of the trial date, and in fact, filed a pretrial statement on May 3, 2002. Accordingly, her contention lacks merit.
II
Opportunity to be Heard
Defendant next contends the trial court prevented her from presenting evidence and argument on her own behalf by discrediting her statements and not permitting her to provide full responses to the courts questions. Our examination of the record, however, reveals that defendant was provided ample opportunity to be heard.
"A trial court has inherent as well as statutory discretion to control the proceedings to ensure the efficacious administration of justice." (People v. Cox (1991) 53 Cal.3d 618, 700; Code Civ. Proc., § 128, subds. (a)(2) and (a)(3).) The trial court must also "exercise reasonable control over the mode of interrogation of a witness so as to make such interrogation as rapid, as distinct, and as effective for the ascertainment of the truth . . . ." (Evid. Code, § 765, subd. (a).) "A trial judge is not to be unduly and unreasonably hampered and restricted in the exercise of control over the proper examination of witnesses and the conduct of the trial generally." (Commercial U. A. Co. v. Pacific G. & E. (1934) 220 Cal. 515, 525.) Furthermore, "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)
Here, defendant was given sufficient opportunity to present her defense to the restraining order application. While the trial court did restrict defendants comments at times, the court did so to limit her to those facts that were relevant, rather than collateral, to the issues to be determined. For example, defendant complains that the trial court did not allow her to complete her explanation as to why she had refused to promptly leave the Gonzalez property on February 20, 2002. The court, however, did not need to know why defendant felt justified in undertaking actions that the court found to be harassing in nature in order to reach a decision on the application for a restraining order. The court properly focused on the actions of the parties involved.
On another occasion of which defendant complains, the court interrupted her when she was not answering the question posed by the court. Defendant had indicated that Gonzalez was preventing her mother, Betty Rodriquez, from contacting defendant. Defendant contended Rodriguez was being "caged" in the Gonzalez home and not permitted to telephone or do anything else. At this point, the court stated that defendant should report Gonzalez for elder abuse if Gonzalez was doing this. Defendant responded that she had already contacted Adult Protective Services. The court then asked defendant, "And what did they do?" Defendant responded: "They dont handle — they — when I made — thats what I was trying to say. When I made the attempt — any attempts to try to see my mother, she would — she — she —" At this point, the court interrupted defendant, saying "no, no, no, no." Defendant now states this interruption prevented her from giving a full response to the courts question. However, defendant was not answering the courts question regarding what Adult Protective Services had done. Instead of answering the question posed, defendant was trying to tell the court what Gonzalez did whenever she tried to see her mother. That was not the question asked by the court, and as such, it was well within the courts discretion to restrict her testimony.
Finally, defendant complains that the court "discredited" her statements when it commented on her version of the February 20, 2002, events, stating: "First of all, I dont believe that — that you were just as peaceful as you say you were then, but even if you were, you should have left." We find no fault in the courts statement. "`"[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]" . . ." (People v. Barnes (1986) 42 Cal.3d 284, 306.)
We are satisfied from our examination of the record that the trial court did not abuse its discretion in directing the examination of and limiting her testimony.
III
Sufficiency of the Evidence
Defendant contends there were "no grounds granting a restraining order," arguing that "[a]t no point during the proceedings was it established that [defendant] hit, threatened, touched or in any way brought fear to [Gonzalez] or her family, which would require a restraining order." This argument is most appropriately characterized as a challenge to the sufficiency of the evidence in support of the trial courts order.
When an appellant challenges the sufficiency of the evidence, the reviewing court must start with the presumption that the record contains evidence sufficient to support the judgment. It is the appellants burden to demonstrate otherwise by setting forth all of the material evidence bearing on the issue, not merely the evidence favorable to the appellant, and by showing how the evidence does not sustain the challenged finding. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1509-1510.) If the appellant fails to do so, the claim of insufficiency of the evidence is waived. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881; Niederer v. Ferreira, supra, 189 Cal.App.3d at p. 1510.)
The appellant also must be mindful that we do not have the power to weigh the evidence, to consider the credibility of witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn from the evidence. (See Huang v. Board of Directors (1990) 220 Cal.App.3d 1286, 1294.) The test is "whether there is substantial evidence in favor of the respondent. If this `substantial evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment will be affirmed. In brief, the appellate court ordinarily looks only at the evidence supporting the successful party, and disregards the contrary showing." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 364, p. 414, italics omitted.)
The court may issue a "stay away" restraining order of the type issued here on a showing of "good cause." (Fam. Code, §§ 6320, 6322, 6340.) The decision to grant or deny a permanent restraining order "rests in the sound discretion of the trial court upon a consideration of all the particular circumstances of each individual case, and the trial courts judgment will not be modified or dissolved on appeal except for an abuse of discretion." (Professional Engineers v. Department of Transportation (1997) 15 Cal.4th 543, 562.) Here, there was sufficient evidence to support the trial courts decision.
In the application, Gonzalez described numerous instances of harassment by defendant over the last several years. There was a 1997 incident when defendant had come to the house yelling and making accusations, including "Your all going to Hell," and "Your all going to pay," and continued to do so even after the police arrived. There was also the battery of Gonzalezs minor daughter shortly thereafter.
Gonzalez had also attested that on several occasions, defendant had verbally assaulted Betty Rodriguez until the nurses asked defendant to leave the room and that over the past two years, defendant had constantly harassed Gonzalez and her family, causing Gonzalez to have her telephone number changed twice.
There was evidence that on another occasion, defendant had let herself into the Gonzalez residence, and when confronted, she had stated that "The Lord let me in. The Lord sent me to see my mother." After being escorted out of the house, defendant had remained in the front yard for five minutes screaming that Gonzalez was a devil and that Gonzalez was going to pay and defendant would be there when she did.
There was also evidence that defendant had tried to force entry into the Gonzalez home on February 2, 2002, and refused to leave. Defendant finally left when Gonzalez called the police but threatened "your going to pay, bitch, your all going to pay" while walking away.
On February 20, 2002, defendant came to the Gonzalez residence, began banging on the door and yelling about the Gonzalezes leaving defendants brother at defendants house. Defendant made numerous extremely rude accusations about Gonzalez, repeatedly called Gonzalez the devil, and left only after Gonzalez called the police.
Gonzalez attested that the harassment has been ongoing and that she and her household family members were frightened of defendant and feared more physical violence. Defendants niece, mother and maternal aunt also provided sworn affidavits confirming defendants harassing and threatening behavior.
Defendant attacks the evidence by arguing that Gonzalez made "misleading statements" at the trial and misrepresentations in her supporting affidavits. As explained previously, however, we do not have the power to weigh the evidence, to consider the credibility of witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn from the evidence. (Huang v. Board of Directors, supra, 220 Cal.App.3d at p. 1294.) Those determinations are left to the trier of fact.
In light of the foregoing, we find the evidence more than sufficient to support the trial courts issuance of a restraining order against defendant.
IV
Right to Appointed Counsel
Defendant also requests she be appointed a "public defender" to assist her in these proceedings.
"`California has recognized a number of situations in which an indigent litigant will be entitled to have counsel appointed. The most obvious example is that of an indigent criminal defendant. . . . In other cases the entitlement has been declared as a matter of procedural due process . . . , or established by statute, or both. [Citation.] As a general rule, however, there is no due process right to counsel in civil cases." (People v. Madeyski (2001) 94 Cal.App.4th 659, 662.) Defendant has directed this court to no statute or other authority that would indicate she had a right to appointed counsel in this case.
V
Independent Review of Record
Finally, defendant asks this court to independently review the entire record for any plain error she may have missed in presenting her appeal. "We are not required to independently review the record in a civil case such as this to determine whether there are any arguable issues" not presented in defendants brief. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1117, fn. 2.) "It is not the province of an appellate court to act as counsel for either party to an appeal by prosecuting a search of the record for the purpose of discovering errors not pointed out in the briefs." (County Nat. Bank etc. Co. v. Sheppard (1955) 136 Cal.App.2d 205, 223; see also Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) Thus, we decline defendants invitation.
DISPOSITION
The order is affirmed.
We concur, DAVIS, Acting P.J. and NICHOLSON, J.