Opinion
A162553
04-18-2022
J.N., Respondent, v. R.H., Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. D18-04633
This appeal is appropriately resolved by memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1.
JACKSON, P.J.
This is an appeal from a three-year domestic violence restraining order (DVRO) entered against R.H. in favor of his spouse, J.N. R.H. argues his due process rights were violated because the trial court did not continue the hearing for a sufficient length of time to allow R.H. to retain counsel. R.H. also argues that the DVRO is not supported by a preponderance of the evidence. Finding no error, we affirm.
Respondent did not file a respondent's brief. We decide the appeal based on the appellate record and appellant's opening brief. (Cal. Rules of Court, rule 8.220(a)(2).)
On January 21, 2021, J.N. filed a request for a DVRO against R.H. J.N. alleged a recent incident of abuse during which R.H. grabbed her arm while she was holding their young child. She also alleged multiple prior incidents of abuse beginning in 2016. On January 21, 2021, the trial court issued a temporary restraining order against R.H. and set a hearing for February 11, 2021. R.H. did not file a written response to the request, but he appeared at the February 11, 2021 hearing and requested a continuance in order to seek counsel. The trial court granted the request and continued the hearing to February 23, 2021. The trial court advised the parties that the hearing would proceed on February 23, 2021, regardless of whether R.H. was able to obtain counsel. R.H. responded, "That's fine."
On February 23, 2021, R.H. appeared without counsel. The trial court noted that the case had been continued previously and that the court had advised the parties the hearing would proceed whether or not R.H. retained counsel. R.H. did not object or request a further continuance. The trial court heard testimony and argument from both parties; heard testimony from J.N.'s mother; and viewed a video of the January 10, 2021 incident. The trial court found by a preponderance of the evidence that R.H. abused J.N. on January 10, 2021, and it issued a three-year DVRO.
The video is not included in the appellate record, but the reporter's transcript states J.N.'s counsel played the video for the trial court.
We review a DVRO issued under the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.) for abuse of discretion. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495.) We review the trial court's factual findings for substantial evidence. (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822-823.) The failure to grant a requested continuance is reviewable on appeal from the judgment. (Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 527 (Freeman).)
Trial courts generally have broad discretion in deciding whether to grant a continuance. (Freeman, supra, 192 Cal.App.4th at p. 527.) "[A]n abuse of discretion results in reversible error only when the denial of a continuance results in the denial of a fair hearing, or otherwise prejudices a party." (Ibid.) Family Code section 245, subdivision (a) states, "The respondent shall be entitled, as a matter of course, to one continuance for a reasonable period, to respond to the petition," and subdivision (b) provides, "Either party may request a continuance of the hearing, which the court shall grant on a showing of good cause. . . ."
R.H. requested, and was granted, a single continuance. At the continued hearing, R.H. appeared without an attorney and did not request a further continuance. Thus, the issue is forfeited. (Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1117 ["An appellate court will not consider procedural defects or erroneous rulings where an objection could have been, but was not, raised in the court below"]; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247 [unrepresented parties are entitled to no greater consideration than other litigants and attorneys].)
Even if we were to consider the trial court's admonishment that the hearing would proceed on February 23, 2021, regardless of whether R.H. was able to obtain counsel as a preemptory denial of any further request for a continuance, we would find no abuse of discretion. A hearing on a request for a DVRO is an expedited proceeding required to be heard 21 to 25 days from when the petition is filed. (Fam. Code, § 242.) Here, R.H. was granted a 12-day continuance to allow time for him to obtain counsel. J.N.'s request for the DVRO was filed on January 21, 2021, and the hearing was held 33 days later, on February 23, 2021. It was within the trial court's discretion to balance R.H.'s need for time to obtain counsel against the statutory requirements for an expeditious hearing on the DVRO request.
Further, R.H. fails to demonstrate that he was denied a fair hearing. (Freeman, supra, 192 Cal.App.4th at pp. 527-528 ["any error in failing to grant a request for a continuance-whether mandatory or discretionary-is reversible only if it is tantamount to the denial of a fair hearing"].) R.H. claims he was not permitted to introduce certain text messages between himself and J.N. because he did not have the assistance of counsel to advise him that he needed to provide the messages to J.N. prior to the hearing. However, the record establishes that he proceeded to question J.N. regarding the content of the messages and that he also testified himself about the content of the messages. (See Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 785 [finding any error in excluding text messages was harmless where party testified to the contents of the text messages].) Moreover, during the hearing, the trial court explained to R.H. the general process of cross-examination and direct testimony. R.H. was afforded a fair hearing in which he cross-examined J.N. and her mother. Further, he testified on his own behalf, and presented closing argument.
Finally, we reject R.H.'s argument that the facts introduced at trial failed to show by a preponderance of the evidence that a DVRO was warranted. R.H. argues J.N.'s evidence and testimony were not credible. On appeal, we may not reweigh the evidence and are bound by the trial court's credibility determinations. (Sabbah v. Sabbah, supra, 151 Cal.App.4th at p. 823 [" '"' "it is the exclusive province of the [trier of fact] to determine the credibility of a witness" '"' "].) J.N. testified that R.H. aggressively grabbed her arm and pulled her during an argument that occurred in front of her house when R.H. returned their three-year-old son to J.N.'s home. Substantial evidence supports the trial court's finding that R.H. abused J.N. on January 10, 2021, by grabbing her arm without her consent.
DISPOSITION
The order is affirmed.
WE CONCUR: Simons, J., Needham, J.