Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 04D009086 Michael J. Naughton, Judge.
Law Offices of Arthur J. LaCilento and Arthur J. LaCilento for Appellant.
Fingal, Fahrney & Clark, and Christopher R. Clark for Respondent.
OPINION
BEDSWORTH, J.
Hooshang Farhang Mehr appeals from a domestic violence restraining order issued in the midst of a very contentious divorce proceeding. He argues the court “abused its discretion by not making a decision based upon reasonable credible evidence in this case.” To be precise, Mehr does not contend there is no evidence supporting the court’s conclusion that he engaged in domestic violence – because his wife, Negar Safaie-Fard testified unequivocally that he had. Instead, what Mehr asserts is that in the context of all the evidence before the court, her allegations of physical abuse were not credible; and her testimony must, as a consequence, be deemed insufficient to support the order. Lack of credibility is not a contention we can entertain on appeal, and we thus reject the assertion.
Mehr also contends the court committed reversible error because it: (1) attempted to limit the time in which his attorney could present a defense at the hearing; and (2) considered declarations filed in support of the restraining order, despite the fact the probative value of the evidence contained in those declarations was clearly outweighed by the inclusion of prejudicial material, including evidence that Mehr had referred to the trial judge as “stupid” and lacking any knowledge of real estate law. We disagree.
The trial court has authority to run its courtroom, set reasonable limits on the parties’ presentation of evidence and argument, and decide whether to allow a continuance in the middle of a hearing. Mehr has not explained how the court abused that authority in this case, other than asserting the bare fact the court refused his counsel’s last-minute request to complete the hearing on a future date, to accommodate counsel’s own desire to be elsewhere the following day; nor has Mehr even suggested what evidence or argument he might have offered if the court had agreed to the continuance, or why that would have made a difference to the outcome of the case. As to the declarations, the court likewise has broad discretion to determine whether evidence should be excluded as more prejudicial than probative under Evidence Code section 354. In this case, evidence suggesting that Mehr was angry and frustrated with the progress of the divorce case was relevant in assessing the credibility of Safaie-Fard’s claims of domestic violence, and we cannot conclude the court abused its discretion in considering such evidence. The order is affirmed.
FACTS
Safaie-Fard filed a petition for dissolution of the parties’ marriage in October of 2004. Although as Mehr himself acknowledges, the proceeding has been a “bitter” one, both parties continued to reside – albeit separately – in the same home until Safaie-Fard obtained the restraining order at issue in this appeal. Additionally, for part of the time the dissolution action has been pending, the court has been supervising efforts to sell that home.
Safaie-Fard filed an ex-parte application for a temporary restraining order on April 4, 2007. She alleged several incidents of physical abuse, dating back to January of 2005, when Mehr kicked her on her leg and stomach. The latest violent incident had occurred on April 3, 2007, when Mehr allegedly ran toward her with a closed fist, and when she fled to her car, he kicked it, causing dents on the sides.
In support of her application, Safaie-Fard also included a declaration from the real estate agent who had been retained to sell the parties’ home. That agent related a telephone conversation she had with Mehr, during which he had become very angry and called the judge presiding over the case “stupid,” and asserted he did not know anything about real estate.
Safaie-Fard asked the court to issue an order requiring Mehr to stay 100 yards away from her, and giving her exclusive use of the parties’ residence. The court issued the temporary restraining order on the day it was requested, and set a hearing to assess the need for a longer restraining order.
On April 27, 2007, Mehr filed an opposition to the requested restraining order, in which he denied ever physically abusing Safaie-Fard. He denied even expressing any anger, claiming instead that since the dissolution proceeding had commenced, he had been “nice and kind to her and ha[d] tried to mitigate the problem.”
After some delay, the hearing took place on June 5, 2007. The court first swore the parties and then inquired of Safaie-Fard whether her declaration in support of the application for restraining order was “true and correct.” Mehr then objected that “a lot of things in the application I feel are irrelevant and 352.” He also questioned whether a sufficient foundation had been laid for all the evidence filed in support of the application. The court overruled those objections, inquired of Mehr whether everything stated in his opposition declaration was “true and correct.” Mehr responded that it was, and the court directed Safaie-Fard to proceed with her case.
Safaie-Fard testified first, and related certain incidents leading up to her request for the restraining order. She stated that in January of 2005, after the parties had briefly argued regarding their son, she followed Mehr to the garage as he was getting into his car. She held the car door in an effort to continue the discussion, and Mehr kicked her in the stomach and foot to make her release the door. She was left with a bruise on her leg as a result of the incident. Safaie-Fard also described an incident in September of 2006, while she was watching television. Mehr came home unexpectedly, threw his keys at her, told her she made his life miserable, and spit on her three times.
Safaie-Fard described another incident in October of 2006, when she arrived at the premises of the parties’ jointly owned business. She stated that when Mehr saw her, he yelled at her “leave here. Who told you to come.” When she refused to leave, he pushed her physically out of the door, stepping on her toes, and locked her out. He then called the police and claimed to them “she’s here killing me.”
Safaie-Fard also testified that on April 3, 2007, Mehr reacted violently when she had attempted to dissuade him from placing a deadbolt lock on the master bedroom of their home, which he had been using as his own. Safaie-Fard explained she was opposed to the deadbolt, because it would prevent prospective purchasers of the home from viewing the room. She was so frightened by Mehr’s violent reaction that she fled to her car, where she locked herself in. He followed her outside, and began kicking the sides of the car when she refused to open the door. She called the police from inside the car.
Safaie-Fard stated that she believed Mehr might physically hurt her in the future, because “he loses it so much. When he gets upset he loses it.”
On cross-examination, Safaie-Fard acknowledged she had no photographs, medical reports, or other documentation of the minor injuries she claimed to have suffered as a result of Mehr’s physical assaults, and had not shown her bruises to any third party.
A police officer who responded to Safaie-Fard’s call from her car in April of 2007, also testified regarding that incident. The officer stated that Safaie-Fard was sitting in her car when he arrived, and he confirmed there were “footprints” on the car door, although he observed no dents. The officer stated that Mehr had separately called the police in regard to the same incident – his complaint was that Safaie-Fard was blocking the driveway with her car and refused to move it. The officer stated that Safaie-Fard had not requested that Mehr be arrested, nor did she state explicitly that she was afraid for her safety. The officer remained on the scene until one of the parties finally left, although he did not remember which party that was.
Mehr called the parties’ elder son, then 18 years old, to testify. The son denied ever seeing his father kick or punch his mother, and denied ever seeing any bruises on his mother.
Following the son’s testimony, the hearing broke for lunch. At the commencement of the afternoon session, Mehr’s attorney apologized to the court, apparently for delaying the proceedings, and explained “I had a blowout on my right rear tire.” The court responded “There’s nothing you can do. It’s all right.” The hearing then resumed with Mehr’s testimony. He denied ever striking, kicking, spitting on or assaulting his wife, and denied ever kicking her car. He claimed, however, that she had engaged in violent conduct toward him on “many occasions.”
Mehr’s version of the April 3, 2007 incident was that he had intended to change the lock on his bedroom door with the help of an employee, Luis Martinez. Safaie-Fard was attempting to prevent them from going to the hardware store in furtherance of that task by blocking the road with her car. After Mehr asked her to please move her car, and she refused, he called the police. He denied threatening her, striking her or kicking her car. He claimed to have been in a calm state of mind during the entire incident.
Mehr also claimed to have been in a “very calm” state when he spoke with the parties’ real estate agent earlier on that same April day. He denied using any profanity, or making any comments about the trial judge during that conversation. At that point, Mehr’s counsel objected to the court’s consideration of any evidence suggesting Mehr had made disparaging comments about the judge, arguing that such evidence was more prejudicial than probative. The court overruled the objection, noting “[w]hen you have the job that I have you get used to people thinking you’re stupid or whatever, so I’m okay with that.”
The real estate agent testified next. She described the telephone conversation she had with Mehr during the morning of the day when he attempted to change the lock on his bedroom door. She stated that Mehr had informed her of his plan, and told her she would just have to call and notify him if the room needed to be unlocked before showing the house to any prospective buyers. She explained to him that his plan would not be entirely effective, as sometimes people ask to see a home “on the spur of the moment.” In the course of that conversation, Mehr “started getting very angry” and the conversation devolved to a point where he suggested that the judge presiding over the case did not know about real estate, and was not very intelligent. According to the agent, Mehr raised his voice, got “pretty heated,” threatened to have her license taken away, and used expletives.
The final witness was Martinez, the employee who had been present to assist Mehr with the task of changing the lock on the bedroom door. Martinez testified through an interpreter. He stated that Safaie-Fard had approached him after he left the house and was in his car preparing to leave for the hardware store. She attempted to convince him directly not to change the lock, but was not blocking his ability to drive away. However, he considered himself to be Mehr’s employee, and thus intended to carry out Mehr’s instructions despite her opposition. Mehr then came outside, and Martinez observed him and Safaie-Fard “shouting at each other.” Martinez did not see Safaie-Fard attempt to block Mehr from leaving.
At the conclusion of Martinez’s testimony, Mehr’s counsel indicated he wanted to call another witness, who had interpreted an earlier conversation between Martinez and Mehr’s sister. According to counsel, that interpreter, a man named Mr. Carlos, would testify that Martinez had related in that conversation that Mehr was not angry or violent toward Safaie-Fard during the April, 2007 incident, and that she had blocked his car.
The court stated that if Mehr wished to call this additional witness, the hearing would have to reconvene the next day. The court noted the matter had already exceeded the three-hour estimate given by Mehr’s counsel, and that unexpected length, coupled with the delay caused by counsel’s blown tire during the lunch break, made it impossible to accommodate any additional witnesses that day. Mehr’s counsel explained he could not come back the next day, as he was committed to starting a trial in Riverside which could not be postponed. The court responded that as he was already in the middle of a hearing in this case, he would have to finish it before starting any other ones. The court made it clear that counsel had to either complete the hearing that afternoon, or it would be completed, with or without him, the next day.
Mehr’s counsel then called Mehr back to the stand as a surrebuttal witness. Mehr again denied being angry or inappropriate during his conversation with the real estate agent concerning the lock changing, and claimed instead to have been at all times “cordial and courteous.” He explained that he had never become angry with the agent until after she submitted her declaration in support of Safaie-Fard’s request for a restraining order. After he read the declaration, which he considered to be “totally false,” he did become angry, and called her and told her he was going to complain about her to her broker.
After the completion of Mehr’s testimony, the court inquired further about the trial which Mehr’s counsel intended to start the next day. The court rejected counsel’s suggestion that he could “be here all day Friday” and again refused to continue the hearing on the basis that Mehr’s counsel had a “more important engagement” in another courtroom for the next day. The court then invited counsel to make their closing arguments, which they did.
The court then ruled from the bench, granting the restraining order. The court explicitly concluded that it found Safaie-Fard’s testimony to be credible, but that Mehr’s was not. The court noted that Safaie-Fard’s claims had been largely corroborated by other witnesses, while Mehr’s testimony had been “impeached rather dramatically a couple times . . . .”
The court declined to extend the restraining order to cover the parties’ sons, because at age 18 and 17, they were deemed “old enough to take care of themselves.” However, the court did order Mehr to participate in a 52-week “batterer’s treatment program.” Mehr’s counsel suggested that he be ordered into a 10-week program, rather than a 52-week program, based upon his improved “demeanor” in court since counsel had been retained to represent him. The court rejected that suggestion, noting “based upon the level of rage that I’ve seen here in court,” the 52-week program was warranted. As the court explained, “with somebody who acted out the way he did in court and if he can’t restrain himself with two bailiffs and the police and the whole awesome power of the court . . . I can’t imagine what he’s like in the street.”
DISCUSSION
Mehr’s primary contention on appeal is that “there was insufficient competent evidence to support the trial court’s findings of June 5, 2007.” Although he acknowledges that Safaie-Fard testified to several incidents in which he engaged in acts of physical abuse, he suggests that her testimony “was not credible, believable or reasonable.” Unfortunately, it is his argument which is unreasonable.
The law is clear that “[e]xcept where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact.” (Evid. Code, § 411.) “‘“Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, . . . [t]o warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it 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.]” [Citations.]’” (Bradley v. Perrodin (2003) 106 Cal.App.4th 1153, 1166, quoting People v. Thornton (1974) 11 Cal.3d 738, 754, emphasis added; disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)
In this case, there is nothing inherently improbable about Safaie-Fard’s testimony – it certainly does not depend upon any “physical impossibility.” Moreover, all of the arguments made by Mehr to suggest its falsity are based upon inferences; e.g., “[r]espondent did not have credible objective evidence to support her factual allegations”; and “[r]espondent wanted to sell the family residence and wanted exclusive use of this home.” Those are both arguments which might properly be made in the trial court, implying: (1) that any “real” victim of domestic violence would have documented her injuries; and (2) an angry wife would be willing to lie if it were the only way to get her estranged husband out of the home where she is living. But once the trial court has rejected those implications, we are not at liberty to indulge them.
Safaie-Fard’s testimony in this case – standing alone – was sufficient to sustain the court’s restraining order, and we cannot reassess its credibility on appeal.
II
Mehr’s next contention is the court committed reversible error by refusing his counsel’s request to continue the hearing to a future date after counsel announced, in the midst of the hearing, that he wished to call an additional witness whose testimony could not be completed that day, and that counsel himself would be commencing trial in a different case the following day.
In response to counsel’s dilemma, the court noted that Mehr had already exceed the three-hour estimate he had given to the court for his case, and that substantial court time had also been lost that day when Mehr’s counsel had returned late from the lunch break due to a “blown tire.” The court explained that counsel would not be permitted to unilaterally assign a greater priority to commencing a different trial when he had not yet finished the hearing he was already engaged in. The court then gave counsel the option of completing the hearing that date as scheduled, or allowing it to be completed, with or without him, on the following day. Counsel accepted the first option.
Mehr argues that by refusing to allow him to continue the hearing to a future date convenient to him, the court was guilty of elevating its own interest in “conserv[ing] judicial resources” over his right to a “full and fair opportunity to present all competent and material evidence.” We cannot agree. What the court did was refuse to elevate the interests of Mehr’s counsel over everyone else’s.
“A court has inherent power to exercise reasonable control over all proceedings connected with the litigation before it (Cooper v. Superior Court [(1961)] 55 Cal.2d 291; Lyons v. Superior Court [(1955)] 43 Cal.2d 755), in order ‘to insure the orderly administration of justice’ (Hays v. Superior Court [(1940)] 16 Cal.2d 260, 264.)” (Mowrer v. Superior Court (1969) 3 Cal.App.3d 223, 230; Code Civ. Proc., § 128.)
We can discern no abuse of that power in this case. Contrary to Mehr’s characterization, the court actually did give him a full and fair opportunity to present whatever evidence he wanted; to be clear, the court did not insist on terminating the proceedings at the end of Mehr’s three-hour time estimate, nor even at the end of the court day. Instead, the court offered Mehr the opportunity to complete the presentation of whatever additional evidence he had on the following day. It was Mehr’s counsel who refused that offer, apparently based upon his own determination that the additional evidence he might present in this case was of less significance than the commencement of his trial in another case. Hence, the termination of the hearing in this case at the end of the first day was the product of counsel’s judgment, not of the court’s insistence.
In any event, we can discern no basis to conclude counsel’s judgment was flawed. The record suggests the only additional evidence Mehr sought to introduce was the testimony of a witness to impeach the testimony of Martinez, who had witnessed a portion of the interaction between Mehr and Safaie-Fard during the “lock-changing” incident in April of 2007. Although Martinez testified at the hearing that the interaction between the parties had been angry on both sides, and that he had not seen Safaie-Fard block the roadway as Mehr had claimed, Mehr asserted that Martinez had told a different story during an earlier conversation with Mehr’s sister, and that the proposed witness would testify to the inconsistency.
But it seems unlikely that such additional evidence would have altered the court’s view of the case. It makes sense that Martinez, an employee whose loyalty was to Mehr, rather than Safaie-Fard, would attempt to corroborate Mehr’s contentions to the extent he could in a casual setting. The change in his version of events during testimony, if in fact there was such a change, would likely have been attributed to the fact he had been placed under oath in the formal setting of a courtroom. Often a person who might be willing to shade the truth, or even outright lie, in another context will find himself unable to do so in court. Evidence that Martinez may be one of those people would not likely have undermined the credibility of his testimony in court.
Because it is unlikely that accommodating the continuance request made by Mehr’s counsel, and allowing him to complete the hearing with the additional witness on a future date, would have made any difference in the outcome of the case, the court’s refusal to do so in this case would not justify a reversal in any case. “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.)
III
Finally, Mehr contends the court erred in considering evidence that he had made disparaging remarks about the trial judge, because evidence of such remarks was more prejudicial than probative. (Evid. Code, § 352.) “‘Broadly speaking, an appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion.’” (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639, quoting People v. Alvarez (1996) 14 Cal.4th 155, 201.) The court’s “‘discretion is only abused where there is a clear showing [it] exceeded the bounds of reason, all of the circumstances being considered.’” (Id. at p. 640, quoting People v. Dejesus (1995) 38 Cal.App.4th 1, 32.)
In this case, the court expressly disclaimed any prejudicial effect of the evidence, noting that as a trial judge, “you get used to people thinking you’re stupid or whatever, so I’m okay with that.” On the other hand, the evidence was clearly probative, as it both supported Safaie-Fard’s essential claim that Mehr was unable to effectively control his anger, and undermined his own assertion that he had, at all times, acted calmly and politely in connection with this case. Because the evidence was both probative of the issues in the case and – based upon the trial court’s unique ability to assess it – not particularly prejudicial, the court did not err in considering it.
The order is affirmed. Respondent shall recover her costs on appeal.
WE CONCUR: SILLS, P. J., MOORE, J.