Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. DV010415
Mihara, J.
Plaintiff Alicia Lopez Laue appeals from an order denying her request for a restraining order against defendant Irma Lopez Zamudio. Plaintiff contends that the trial court erred because there was sufficient evidence to support the granting of the order. We find no error and affirm.
I. Factual and Procedural Background
On April 26, 2007, plaintiff filed a request for a restraining order against defendant, who is her sister. In her request, plaintiff stated that the second most recent incident of abuse occurred on July 13, 2006. On that date, defendant made derogatory statements about plaintiff on plaintiff’s answering machine. Defendant was then living in Union City, California and plaintiff was living in South Dakota. Plaintiff stated that she expected further harassment, because she was now living in Santa Clara County. Plaintiff also indicated that their parents were separating and engaged in a property dispute. Plaintiff noted that defendant had taken their mother’s side while plaintiff had taken their father’s side in this dispute.
Plaintiff stated that the most recent incident of abuse occurred on April 16, 2007. On that date, plaintiff appeared as a witness against defendant in plaintiff’s son’s civil harassment case and their father’s domestic violence case. While they were in court, defendant “stared [her] down and freely spoke of how she hated [her] with another sister, Maria Elena Lopez.”
Plaintiff also stated that defendant made “[n]umerous annoying, abusing, threatening, and harassing interstate telephone calls” including those recorded on July 3 and July 4, 2006.
The trial court set the matter for a hearing on May 16, 2007. On that date, the parties appeared in propria persona. Both parties were sworn, though only plaintiff testified. Plaintiff testified that defendant had been “calling [her] since last year and saying the ugliest things on [her] answering machine every time [she] pick[s] up the phone.” The trial court noted that her request stated that the last phone call occurred on July 13, 2006. Plaintiff responded that the phone calls had continued after that date. When the trial court asked plaintiff why she did not state this fact in her request, plaintiff replied that “[t]here has been so many phone calls [she] didn’t list them all.” The trial court found this testimony not credible, stating “I’m not buying that for a second. Let me tell you why I’m not buying it. Think about it for a second. I’m going through hell. I’m getting nonstop phone calls. All these allegations. I can’t remember that it was as late as last month? The month before? [¶] You’re very specific in your petition about the phone calls to the date and time. Like I said, you indicate these things July 13th and prior. You gave me four occasions. I can understand because, for the life of me, I can’t remember what I was doing last July. If somebody said, did somebody call you July 13th of last year? I have no clue. But you’re very specific. This was filed at the end of last month. [¶] So I can certainly understand if the question was reversed, and you were very specific about the most recent calls. And you say it goes as far back, but I can’t remember the earlier ones. That’s why I’m having a hard time buying it. If truly she has been calling nonstop since that time why is it that the last thing you mentioned was July 13th of last year?” Plaintiff stated that these were the dates on which defendant left messages on the answering machine.
Plaintiff also testified that she decided to get a restraining order in April 2007, when she went to court with her father and defendant was present. Plaintiff explained, “And then that’s when she told me, ‘You’re gonna be so sorry. I hate you.’ [She] thought, [she] better get a restraining order.” The trial court pointed out that the request stated that defendant said something to another sister. Plaintiff agreed that defendant was talking to another sister, but that defendant also “actually turned around, she turned around like this and she said, ‘I hate you. You’re so dead.’” The trial court observed that her testimony was different from her request, stating: “Again, tell me if I picked up the wrong file, or whatever. I’m reading what you put down here. It says, ‘In the court Irma Zamudio stared me down and freely spoke of how she hated me with another sister, Maria Elena Lopez.’” The trial court also stated that plaintiff’s testimony contradicted the statements in her request.
After plaintiff testified that she was “afraid for myself, for my husband, and mainly for my grandchild,” the trial court noted that the request stated that plaintiff’s grandson overheard defendant’s comments on the answering machine on July 4, 2006, and that plaintiff did not testify regarding any other incidents involving either her husband or her grandchild. At the conclusion of the hearing, the trial court did not find plaintiff a credible witness, stating “Like I said, I’m not buying it. Like I said, this all happens apparently because she glared at you.” The trial court then denied the request.
II. Discussion
The “Domestic Violence Prevention Act” (the Act) was enacted “to prevent the recurrence of acts of violence 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.” (Fam. Code, §§ 6200, 6220.) The Act defines domestic violence far more broadly than simply violence and sexual abuse. Domestic violence is defined by the Act as “abuse” of certain persons, including a sister. (Fam. Code, § 6211.) “Abuse” is defined by the Act as engaging “in any behavior that has been or could be enjoined pursuant to Section 6320.” (Fam. Code, § 6203, subd. (d).) A party may be enjoined under Family Code section 6320 “from molesting, attacking, striking, stalking, threatening, . . . harassing, telephoning, including, but not limited to, annoying telephone calls as described in Section 653m of the Penal Code, . . . contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.” (Fam. Code, § 6320, subd. (a).) A restraining order may be obtained under the Act by filing an affidavit that “shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” (Fam. Code, § 6300.)
The decision whether to issue a restraining order “rests in the sound discretion of the trial court upon a consideration of all the particular circumstances of each individual case” and that decision must be upheld on appeal unless the trial court abused its discretion. (Professional Engineers v. Department of Transportation (1997) 15 Cal.4th 543, 562; Union Interchange, Inc. v. Savage (1959) 52 Cal.2d 601, 606.)
Plaintiff argues that she presented “reasonable proof of a past act or acts of abuse” as required by Family Code section 6300, and thus the trial court erred in denying her request for a restraining order.
However, “[c]redibility is an issue for the fact finder. As we have repeatedly stated, we do not reweigh evidence or reassess the credibility of witnesses. We have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom. When, as here, the evidence gives rise to conflicting reasonable inferences, one of which supports the findings of the trial court, the trial court’s finding is conclusive on appeal.” (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622-623, internal citations and quotation marks omitted.) Here, the trial court found that plaintiff was not a credible witness, because her statements in her request for a restraining order contradicted her testimony. Accordingly, the trial court did not abuse its discretion in denying her request.
III. Disposition
The order is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.