Opinion
F078355
05-13-2020
TAMMY KNUTSON, Plaintiff and Appellant, v. BRENDA KNUTSON, Defendant and Respondent.
Tammy Knutson, in pro. per., for Plaintiff and Appellant. No appearance for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MFL014426)
OPINION
THE COURT APPEAL from an order of the Superior Court of Madera County. James E. Oakley, Judge. Tammy Knutson, in pro. per., for Plaintiff and Appellant. No appearance for Defendant and Respondent.
Before Levy, Acting P.J., Franson, J. and Snauffer, J.
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Plaintiff Tammy Knutson appeals the denial of her request for a restraining order against her sister, defendant Brenda Knutson, pursuant to California's Domestic Violence Prevention Act (DVPA; Fam. Code, §§ 6200-6460.) After hearing the parties' testimony, the trial court denied the request, stating Tammy had not proven by a preponderance of the evidence that acts of domestic violence, as defined by the DVPA, had occurred.
Undesignated statutory references are to the Family Code.
We refer to the parties and their mother by first name to avoid confusion. We intend no disrespect.
The applicable standard of appellate review plays a significant role in this appeal's outcome. When a trial court determines the party with the burden of proof failed to carry that burden, an appellate court may reverse the decision only if the evidence compels a finding in favor of the appellant as a matter of law. Under this standard, a finding is compelled only if the appellant's evidence was (1) uncontradicted and unimpeached and (2) of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding. (Dreyer's Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838 (Dreyer's).)
Here, Tammy contends Brenda stole mail containing banking and insurance information and these thefts constituted acts of abuse for purpose of the DVPA. Tammy relied on circumstantial evidence to prove her allegations of mail theft, which evidence was contradicted by Brenda's testimony that she did not steal any mail. Because Brenda's testimony contradicted Tammy's circumstantial evidence, the trial court was not compelled as a matter of law to find Brenda stole mail. In short, the trial court, in its role as the trier of fact, did not commit error by believing Brenda's testimony.
Tammy also claimed Brenda committed acts of abuse in the form of trespass and bribery. As to the bribery-extortion claim, Brenda's conditional offer to participate in a settlement conference relating to the probate of their mother's estate only if Tammy dismissed her restraining order requests was not a wrongful act and did not constitute bribery or extortion as those terms are defined by California law. As to the trespass claim, the video recordings of Brenda visiting Tammy's residence on April 13, 2018, and knocking on the door after Tammy did not attend a hearing do not compel findings that Brenda trespassed on the property and Tammy's safety would be jeopardized in the absence of a restraining order.
We therefore affirm the order denying the request for a restraining order.
FACTS
Tammy and Brenda are the daughters of Thelma Knutson. Thelma died in November 2017. At the time, Brenda and Thelma were living in a house on Dawnridge Drive in Madera. After their mother's death, the sisters became involved in a probate dispute.
Brenda testified that Tammy said she had gotten the safe open, had the will, and Brenda needed to talk to a lawyer. After that, Tammy stopped talking to Brenda. Unable to obtain information from Tammy about their mother's estate, Brenda hired a lawyer to represent her in the probate matter. Brenda summarized the probate dispute by stating: "I had a will that said everything was 50/50. [Tammy] submitted a fake will that says she got everything."
Prior to their mother's death, the parties' relationship had difficulties. Brenda testified her relationship with her mother and sister deteriorated in 2014 when she took flight benefits away from her sister. Brenda is an airline pilot whose benefits include designating "pass riders" who are allowed to fly for free. Brenda stated a pilot is responsible for the good behavior of his or her pass riders . Brenda testified that Tammy was not able to comply with the code of conduct and, as a result, Brenda took the flight benefits away from Tammy. Brenda stated that her mother and sister began harassing her in retaliation for the loss of the flight benefits.
Brenda testified the harassment started when Tammy parked a truck in the driveway to block in her car and the car of her boyfriend, Sam Gallagher. Brenda stated her mother and sister called the police on themselves and the police arrived, took statements and listened to recordings. An officer told Brenda (1) that she might want to consider getting a restraining order and (2) that her mother and sister had been informed "that they need to stay away from you because I advised you to get a restraining order." Brenda did not seek a restraining order. Other Lawsuits
Thelma, however, filed for a restraining order a few days after the driveway incident. The hearing on Thelma's request for a restraining order was held on October 24, 2014. Brenda testified that Thelma told the court she filed for the order because she thought it would block Brenda from filing for a restraining order, a possibility that concerned Thelma because she had many guns that she would have had to surrender.
The minute order from the hearing stated that, after testimony had begun, the parties notified the trial court that an agreement had been reached. Thelma agreed to dismiss the case without prejudice; the parties agreed to seek one session of counseling with a specified counselor, with each side paying one half of the fees; and the parties agreed not to contact each other. Based on the agreement, the court ordered the case dismissed without prejudice.
Tammy testified that the court "said, 'You're pretty much having the benefit of the restraining order without it being in place.' " Tammy also stated, "And that restraining order does list me as second in protected." Tammy testified that Brenda did not complete the counseling as promised and, as a result, a second case was filed against Brenda in May 2015. Tammy testified there were 15 attempts to serve Brenda in that case because Brenda was evading service. Bank Statements
The trial court corrected Tammy's statements by saying, "No. The understanding at the time was the parties were going to, on their own, not bother each other." Thus, Tammy was mistaken in thinking there was an order or judgment in place.
After Thelma's death in November 2017 and Tammy's lack of communication, Brenda hired a lawyer because she could not get any information about what was happening. Brenda stated she obtained a death certificate, contacted the bank, and was told by bank personnel that the bank had no death certificate. Brenda stated she submitted a death certificate to the bank.
Brenda testified the bank called her in January 2018, referred to the death certificate and two heirs, and asked who was going to make payments on their mother's home equity line of credit. Brenda told the bank she did not know what they were talking about and asked them to send her information. Brenda received a bank statement from December 2017 and then, in February 2018, Brenda asked for a statement from November 2017, the month her mother died.
Brenda learned that Tammy had maxed out a $30,000 home equity line of credit their mother had established using the house as collateral. Brenda stated Tammy drew down approximately $10,800 just four days after their mother died and had stopped making payments on the line of credit. Brenda testified she received the November 2017 bank statement on March 8, 2018 and it showed only her mother's name, not a joint account with Tammy. Brenda testified she emailed copies of the bank statements to her lawyer on March 11. A photocopy of the email was marked as Exhibit No. 4 and admitted into evidence. The foregoing testimony is Brenda's explanation of how she received the bank statements that Tammy alleges Brenda stole from the mail.
Subsequent references to dates are to dates in 2018, unless otherwise stated.
Tammy supported her allegation of mail theft by testifying that she had talked to the bank multiple times and "[t]here's absolutely no way [Brenda] got [the statement] from the bank." Tammy also stated, "I know [Brenda] got the bank statement out of the mailbox because she was, basically, dumb enough to submit it to the lawyers and I got a copy of it - on 4/13 I talked to a man named James." Insurance
Tammy also alleged Brenda was interfering with the AAA insurance that Tammy and her mother had maintained on the house and vehicles. Tammy testified she had records of AAA receipts showing Brenda and Sam had made payments on the account. Tammy alleged Brenda and Sam got information about the AAA insurance account by stealing mail.
Tammy's evidence included a copy of (1) two AAA membership cards for emergency roadside service in Thelma's and Tammy's names and (2) receipts from AAA showing Sam made a payment in January and Brenda made a payment in February. These copies were marked as Exhibit No. 2 and admitted into evidence. The cards indicated the membership began in 2009. Tammy testified there was no way Brenda could have known that they had insurance with AAA because they had insurance with another company when they lived in Washington and switched to AAA after they moved to Madera County.
Brenda testified that in January she made phone calls trying to find out what was happening and spoke with representatives of AAA. Brenda stated she was informed that the insurance on all the vehicles and the homeowner's insurance had been canceled due to nonpayment. Brenda, believing she was entitled to a one-half interest in the house, did not want the homeowner's insurance canceled while the matter was pending in probate court. AAA representatives told Brenda she could reinstate the insurance and told her the amount needed. At the time, Brenda did not have the money to make the payment, so Sam made the payment on her behalf and the insurance was reinstated. Brenda testified that when the next payment came due, she made it. April 13
Tammy testified that she had videos showing Brenda coming to her house on April 13, pausing the car in front of the mailbox, then pulling forward and parking across the driveway. Tammy testified, and a video shows, Brenda using her cell phone to take pictures of the yard, two vehicles in the driveway and a trailer before returning to the car, getting into the passenger side, and the car pulling away.
The videos were submitted to the trial court on a thumbdrive designated Exhibit No. 1. The videos were named "Brenda 41318 Ring 1" through "Brenda 41318 Ring 6." Each video was slightly more than a minute long.
Brenda explained her presence at the house that day by testifying April 13 was a court date in the probate matter. Tammy did not attend, but Brenda, Brenda's lawyer and Tammy's lawyer were present. At the time, Brenda was concerned that the house was going into foreclosure. Brenda handed Tammy's lawyer a copy of the bank statement, asking him to let Tammy know. After Brenda and Sam left the courthouse, they drove a rental car to the house. Brenda testified she knocked on the door and heard no answer. Brenda also yelled over the fence, "Hey Tammy," and there was no response. Brenda stated she took pictures because the bank had asked if anyone was living in the house and Brenda was not certain.
Brenda testified title to the house was held in their mother's name only and that the house and vehicles were going into probate. This testimony implies Brenda believed she had a sufficient interest to justify going to the house and checking on it, the vehicles, and her sister. (See Prob. Code, § 7000.)
Brenda's testimony also provided information relevant to the possibility of future confrontations with Tammy. Brenda stated that (1) she had moved to another state before their mother passed away; (2) she had not been around since and wanted to be left alone; and (3) the only time she has been back in the state is to deal with the restraining orders filed or matters associated with the probate court proceeding. In Brenda's view, Tammy was using the legal system to harass her.
PROCEEDINGS
On April 18, five days after Brenda came to the house, Tammy filed an application for a domestic violence restraining order. On May 23, Tammy supported her application by filing a request for judicial notice of a judgment in Madera Superior Court case No. MCV068325. Tammy asserted the judgment had not been abided by and, as a result, case No. MCV070787 was filed in May 2015 with Brenda evading 15 service attempts. Tammy also asserted this "has escalated resulting in case numbers MFL014426 and MCV077657."
MCV068325 was the case number assigned to Thelma's 2014 request for a restraining order against Brenda. The minute order entered in that case stated it had been resolved by the parties' agreement and the case had been dismissed without prejudice by the trial court. (See fn. 3, ante)
The hearing on Tammy's April 18 application for a restraining order was continued multiple times. Tammy's last request to continue was filed on July 9 and asserted Brenda was evading service. The trial court granted the request and set the hearing date for September 4. On August 2, Brenda was personally served with the application for a restraining order.
The September 4 hearing was held as scheduled. Both Tammy and Brenda were sworn and testified. At the end of the hearing, the trial court ruled from the bench, stating:
"The Court is going to rule. This is a request for a Domestic Violence Restraining Order. It is a burden of proof of the plaintiff or the petitioner to show that acts of domestic violence, as defined by the Code, have occurred and that a restraining order is appropriate to prevent them from recurring in the future.
"The Court is unable to find by a preponderance of the evidence those essential facts and, therefore, the Court is going to deny it and that will be the order for today."
On October 30, Tammy filed a timely notice of appeal from the order denying her application for a restraining order. In November 2019, Tammy filed her appellant's opening brief. Brenda did not file a respondent's brief. Therefore, this appeal was submitted for decision on the record and the appellant's opening brief. (Cal. Rules of Court, rule 8.220(a)(2).) The failure to file a respondent's brief is not treated as a default or a concession that the trial court erred; instead, appellate courts must examine the record and points raised in the opening brief to determine if a prejudicial (i.e., reversible) error occurred. (Hogue v. Hogue (2017) 16 Cal.App.5th 833, 835, fn. 1.)
DISCUSSION
I. GENERAL LEGAL PRINCIPLES
A. Overview of the Statute
"The purpose of [the DVPA] is to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence." (§ 6220.) "Domestic violence" is defined as "abuse" perpetrated against a person in one of the relationships covered by the statute. (§ 6211.) As relevant to this appeal, such relationships exist between persons "related by consanguinity ... within the second degree." (Ibid.)
Prior to its amendment in 2014, this provision stated the statutory "purposes of [the DVPA] are to prevent the recurrence of acts of violence or sexual abuse and to provide for a separation of the persons involved ...." (Stats. 1993, ch. 219, § 154 [former § 6220].) The amendment deleted the phrase "the recurrence of" and replaced "violence" with "domestic violence, abuse." (Stats. 2014, ch. 635, § 3.)
As defined by the statute, "abuse" occurs if the perpetrator "intentionally or recklessly cause[s] or attempt[s] to cause bodily injury"; "place[s] a person in reasonable apprehension of imminent serious bodily injury to that person or to another"; or "engage[s] in any behavior that has been or could be enjoined pursuant to Section 6320." (§ 6203, subd. (a).) "Abuse is not limited to the actual infliction of physical injury or assault." (§ 6203, subd. (b).)
Trial courts are authorized to issue orders "enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, ... harassing, telephoning, ... destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party ...." (§§ 6320 [ex parte], 6340 [order after notice and hearing].) The statute's reference to "disturbing the peace of the other party" has been interpreted to mean "conduct that destroys the mental or emotional calm of the other party." (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497.) "Annoying and harassing an individual is protected in the same way as physical abuse." (Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 398.)
B. Standard of Review
Generally, a superior court's decision to grant or deny a restraining order under the DVPA is reviewed for an abuse of discretion. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420 (Gonzalez).) "The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review." (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711 (Haraguchi).)
A trial court abuses its discretion if it makes express or implied finding of facts that are not supported by substantial evidence. (Haraguchi, supra, 43 Cal.4th at p. 711; Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1505 [findings relating to protective order].) However, where the trial court " 'concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.' " (Valero v. Board of Retirement of Tulare County Employees' Assn. (2012) 205 Cal.App.4th 960, 965.) Where the issue on appeal turns on a failure of proof in the trial court, " 'the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law.' " (Vieira Enterprises, Inc. v. McCoy (2017) 8 Cal.App.5th 1057, 1074.) Under this standard, a finding is compelled as a matter of law only if appellant's " 'evidence was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." ' " (Dreyer's, supra, 218 Cal.App.4th at p. 838.)
Under the substantial evidence standard, "[i]t is not [an appellate court's] task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.)
Other aspects of a trial court's ruling on a request for a domestic violence restraining order include deciding questions of law and applying the statute to the findings of fact. Under the abuse of discretion standard, a trial court's determination of a question of law is subject to independent appellate review, without deference to the trial court's conclusion. (See Haraguchi, supra, 43 Cal.4th at p. 712 [conclusions of law are reviewed de novo].) In comparison, the trial court's "application of the law to the facts is reversible only if arbitrary and capricious." (Ibid.; see Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076, 1089 [abuse of discretion standard measures whether, given the established evidence, the trial court's decision falls within the permissible range of options set forth by the applicable legal criteria].) II. TAMMY'S CLAIMS OF TRIAL COURT ERROR
The party seeking an order under the DVPA must prove, by a preponderance of the evidence, the existence of a domestic relationship, "a past act or acts of abuse" and that the person's safety would be jeopardized in the absence of an order. (§§ 6300, 6340, subd. (a)(1); Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 138 [preponderance of evidence standard]; see Evid. Code, § 115 [burden of proof].) "The court shall consider the totality of the circumstances in determining whether to grant or deny a petition for relief." (§ 6301, subd. (c).)
A. Requisite Relationship
One way to prove the requisite domestic relationship exists between the litigants is to show they are related by consanguinity within the second degree. (§ 6211.) Under California law, "siblings are related in the second degree of collateral kinship or consanguinity, an aunt or uncle and a niece or nephew are related in the third degree, and first cousins are related in the fourth degree." (Prob. Code, § 13, subd. (c).) It is undisputed that Tammy and Brenda are sisters. Therefore, the trial court was compelled to find that Tammy had established she and Brenda had the required domestic relationship. Consequently, the denial of the request for a restraining order cannot be affirmed on the ground Tammy failed to prove the existence of a domestic relationship.
B. Abuse and Jeopardy
1. Issues Raised on Appeal
Pursuant to California Rules of Court, rule 8.204(a)(1)(B), a brief must "[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority." Compliance with this rule is important because of the principle that "[f]ailure to provide proper headings forfeits issues that may be discussed in the brief but are not clearly identified by a heading." (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179; see State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 835-836 [appellants forfeited challenge to trial court's ruling on a particular issue by failing to address it in their opening brief].)
Based on these principles, our review focuses on the issues raised in the headings of Tammy's opening brief, which refer to trespassing, theft of mail, and an email from Brenda's attorney that Tammy characterized as bribery. We interpret these headings as Tammy's contention that she proved (1) a past act or acts of abuse and (2) her safety—that is, her right to be free of abuse—would be jeopardized in the absence of a restraining order. (See § 6340, subd. (a)(1) ["the court shall consider whether the failure to [issue restraining] orders may jeopardize the safety of the petitioner"].)
2. Bribery
Tammy's bribery claim asserts Brenda, through her attorney, stated she would participate in a settlement conference relating to the probate of their mother's estate only if the pending applications for restraining orders against Brenda and Sam were dismissed with prejudice. The attorney informed Tammy that if Tammy was not willing to dismiss both matters with prejudice, Brenda would proceed to trial in the probate matter. Tammy argues: "This is bribery showing guilt."
The trial court did not expressly state its basis for rejecting Tammy's argument that abuse in the form of bribery had occurred. Under the applicable rule of appellate procedure, we infer or presume the trial court determined Brenda's offer to participate in a settlement conference in exchange for the dismissal of the restraining order proceeding was not a bribe under California law and, thus, was not a form of "abuse" under the DVPA. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham) [trial court orders are presumed correct; all intendments and presumptions are indulged to support order on matters as to which the record is silent].) Consequently, we consider whether this implied determination was erroneous.
Initially, we note that bribery is not an act listed in the DVPA's definition of abuse. (See § 6203, subd. (a).) Thus, it is not clear whether bribery is a type of abuse that qualifies as domestic violence for purposes of the DVPA. Nonetheless, we assume, without deciding, that bribery could constitute a type of harassment and, thus, could constitute "abuse" under the statute. Accordingly, we consider whether Tammy has proven bribery occurred. Under California law, a "bribe" is "anything of value or advantage, present or prospective, ... asked, given, or accepted, with a corrupt intent to influence, unlawfully, the person to whom it is given, in his or her action, vote, or opinion, in any public or official capacity." (Pen. Code, § 7, subd. (6), italics added; see Pen. Code, § 67 [crime of bribery].) Here, Tammy appears to be contending that Brenda attempted to bribe her by offering to attend a settlement conference if Tammy dismissed her actions for restraining orders. We conclude Brenda's offer could not constitute a bribe because it did not attempt to influence Tammy's action "in any public or official capacity." (Pen. Code, § 7, subd. (6).) Tammy has referred to no evidence in the record demonstrating she pursued the restraining orders in a public or official capacity. Therefore, any attempt to influence her pursuit of those orders does not constitute an attempt to influence her actions in a public or official capacity. Thus, Brenda's conditional offer did not constitute a bribe. As a result, Tammy has failed to carry her burden of affirmatively showing on appeal that the evidence compelled the trial court to find that Brenda attempted to bribe Tammy. (See Denham, supra, 2 Cal.3d at p. 564 [appellants have the burden of affirmatively establishing prejudicial error].)
Alternatively, we consider the possibility that Tammy, a self-represented litigant, chose the wrong label for the perceived wrong and was attempting to claim that Brenda's offer was extortion, which sometimes is referred to as blackmail. (See Flatley v. Mauro (2006) 39 Cal.4th 299, 330 [court determined attorney's conduct, including a demand letter, constituted extortion as a matter of law].) Extortion is defined as "the obtaining of property or other consideration from another, with his or her consent, ... induced by a wrongful use of force or fear ...." (Pen. Code, § 518.) Here, Tammy has presented no authority showing that Brenda's offer constituted "a wrongful use of force or fear." (Ibid., italics added.) Examples of the wrongful use of fear are provided by the Penal Code. For instances, the fear necessary to satisfy the definition of extortion may be induced by a threat to accuse someone of a crime or to expose or impute to him or her a crime. (Pen. Code, § 519, subds. 2, 3; see Flatley v. Mauro, supra, at p. 329 [demand letter threatened to publicly accuse Flatley of rape].) Brenda's statement that she would take the probate matter to trial if her conditions were not met is not among the threats listed in Penal Code section 519. Furthermore, such a statement is not wrongful because it expresses an intent to exercise the right of access to the courts—a right protected by the federal and state constitutions. (See Jersey v. John Muir Medical Center (2002) 97 Cal.App.4th 814, 821 [access to court is "a right guaranteed to all persons by the federal and state Constitutions"]; Cal. Const., art. I, § 3, subd. (a) [guarantee of the right to "petition the government for redress of grievances"].) Therefore, Brenda's statement that she would take the probate matter to trial does not qualify as extortion.
In summary, we conclude Tammy's evidence did not compel the trial court to find Brenda committed an act of abuse by attempting to bribe or extort Tammy. Thus, the denial of the restraining order cannot be reversed on that ground.
3. Theft of Mail
Tammy contends Brenda stole mail and obtained information about (1) an account maintained at EECU and (2) insurance maintained with AAA. At the hearing, Tammy presented a video from April 13 that showed a white sedan driven by Sam with Brenda in the passenger seat approach the mailbox at the end of the house's driveway. The mailbox cannot be seen on the video because of a bush between the mailbox and the camera mounted above the garage door. Tammy described the video at the hearing, stating:
"The car pulls over off of the road in front of the mailbox long enough for her to reach out, pull the flap down. And there was no mail that particular day, and then the car pulls forward into the driveway."
Later, in response to Brenda's inquiry whether she was being accused of stealing mail on April 13, Tammy reiterated that the mail had not yet arrived that day, but the "video proves that [Brenda] got into the mailbox. I'm not sure when she stole it." Accordingly, the video and Tammy's testimony are not direct evidence of Brenda taking mail from the mailbox. Instead, Tammy relies on circumstantial evidence to infer a theft occurred. Specifically, Tammy relies on Brenda's possession of a bank statement, a copy of which Brenda gave to Tammy's lawyer, and Brenda's possession of information about the insurance maintained on the house and vehicles. Brenda responded to the allegation that she stole mail by testifying, "I never stole any mail."
Under the applicable standard of review, we consider whether the evidence compels a finding in favor of Tammy as a matter of law. (Dreyers, supra, 218 Cal.App.4th at p. 838.) A finding that Brenda stole mail is compelled as a matter of law only if, among other things, Tammy's evidence was uncontradicted and unimpeached. (Ibid.) Here, Tammy's evidence fails to meet this standard because Brenda's testimony, which includes her statement that she never stole any mail and that she obtained the bank statements from the bank, contradicts Tammy's circumstantial evidence of mail theft relating to a bank statement and insurance information.
Therefore, the denial of Tammy's request for a restraining order cannot be reversed on that ground that Tammy proved past acts of abuse in the form of mail theft.
4. Trespass
One of the headings in Tammy's opening brief is "Trespassing & Mail Theft." The text under this heading does not use the word "trespass" or any variant. As a result, Tammy does not describe the evidence that she believes compels a finding, as a matter of law, that Brenda committed one or more trespasses. Furthermore, Tammy has cited no authority defining trespass and the facts needed to prove a trespass occurred. (See Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1042 (Spinks) [cause of action of trespass protects one in peaceable possession of real property from forcible interference with that possession]; Church of Christ in Hollywood v. Superior Court (2002) 99 Cal.App.4th 1244, 1252 [trespass is an unauthorized entry onto the land of another; peaceable entry on land by consent is not unlawful].)
"[I]t is a fundamental principle of appellate procedure that a trial court [order or] judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment." (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) The presumption of correctness and the allocation of the burden to the appellant is part of the constitutional doctrine of reversible error. (Ibid.; see Cal. Const., art. VI, § 13.)
Tammy appears to believe that the video of Brenda coming to the house, knocking on the door, and taking photos of the vehicles in the driveway was sufficient to carry her burden of showing Brenda trespassed on real property in Tammy's possession. At the hearing, Tammy stated that Brenda "had no business meddling in mom and I's bills and business anyway. And [Brenda] has no business being at the house on the date in question,"—that is, April 13. Tammy stated she was not required to be in court that day and Brenda "has no business trying to force me to talk to her." Tammy referred to her trespass theory at the hearing by stating Brenda was "comfortable enough to come and trespass where my legal residence is, and to touch my mailbox and take mail out of it." Accordingly, while Tammy's trespass claim is not developed and explained in her appellant's opening brief, we will consider whether Tammy has proven Brenda trespassed on April 13.
First, as to the claim that Brenda trespassed by taking mail out of the mailbox, the trial court determined the allegation that Brenda stole mail had not been proven. Second, Tammy's contention that Brenda had no business being at the house is not supported by law or evidence. For instance, Tammy did not show Brenda held no rights or interests in the house and did not mention Probate Code section 7000, which states: "Subject to Section 7001, title to a decedent's property passes on the decedent's death to the person to whom it is devised in the decedent's last will or, in the absence of such a devise, to the decedent's heirs as prescribed in the laws governing intestate succession." Under this provision, if Thelma's will devised a one-half ownership interest in the property to Brenda, Brenda would have held an interest in the house. Tammy did not address this possibility and did not prove Brenda inherited no interest in the property.
The trial court could have found that Brenda had a legitimate interest in the house and, moreover, that interest justified Brenda's visit to the property to determine its status. Stated from another perspective, the trial court was not compelled to find that Brenda's April 13 entry onto the premises and knocking on the door was done without any right or privilege. (See Hamakawa v. Crescent Wharf & Warehouse Co. (1935) 4 Cal.2d 499, 501 [trespasser enters land without privilege or consent, express or implied]; Rest.2d Tort, §§ 196 [privilege of public necessity], 197 [privilege of private necessity].) Also, the video evidence does not show any act by Brenda of forcible interference with Tammy's possession of the house and surrounding lot. (Spinks, supra, 171 Cal.App.4th at p. 1042.)
Consequently, Tammy has not affirmatively shown the trial court was compelled by the evidence to find Brenda trespassed and thereby committed an act of abuse under the DVPA. Therefore, we cannot reverse the denial of the restraining order based on Tammy's trespass theory.
5. Enforcement of Orders
The part of Tammy's opening brief labeled "Conclusion," asserts the trial court "is not enforcing [its] own orders and continues to allow Brenda to Evade service ...." This argument about the failure to enforce orders is not stated in a separate heading and is not supported by a citation to the record showing (1) an enforceable order exists, (2) what the order requires, and (3) how the order has not been enforced.
Furthermore, Tammy's assertion that the matter initiated by her mother and assigned case No. MCV068325 resulted in a judgment or restraining order was demonstrated to be incorrect when the trial court read the October 24, 2014, minute order into the record at the September 4 hearing. Case No. MCV068325 was resolved by an agreement and no order was entered. Consequently, Tammy's argument about a failure to enforce orders is not supported by the outcome of case No. MCV068325. Therefore, Tammy has not shown the trial court committed reversible error by failing to enforce its orders. (See Denham, supra, 2 Cal.3d at p. 564 [appellants have the burden of affirmatively establishing prejudicial error].)
Similarly, the argument about the court continuing to allow Brenda to evade service is not supported by evidence showing there is a pending matter in which Brenda had not been served and was evading service. Both parties personally attended the hearing on September 4 and nothing in the reporter's transcript from that hearing suggests Brenda was evading service of another lawsuit by Tammy during the course of the hearing held on September 4. As to the legal question of whether evasion of service is a type of domestic abuse that the DVPA was intended to address, Tammy has cited no authority and presented no argument for the position that evasions of service constitute domestic abuse. Consequently, the argument about evasion of service fails to affirmatively demonstrate the trial court committed reversible error.
In summary, based on our review of the appellate record and Tammy's opening brief, we conclude the trial court did not err when it determined Tammy had not carried her burden of proving (1) a past act or acts of abuse had occurred and (2) her safety—that is, her right to be free of abuse—would be jeopardized in the absence of a restraining order.
DISPOSITION
The order denying the request for a restraining order is affirmed. No costs on appeal are awarded because respondent did not appear before this court.