Opinion
G054262
02-26-2018
In re the Marriage of ARTHUR and CHERYL LOPEZ. ARTHUR LOPEZ, Appellant, v. CHERYL LOPEZ, Respondent.
Arthur Lopez, in pro. per., for Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16D001283) OPINION Appeal from an order of the Superior Court of Orange County, Daphne Sykes Scott, Judge. Affirmed. Arthur Lopez, in pro. per., for Appellant. No appearance for Respondent.
* * *
The family law court denied the request of appellant, Arthur Lopez (husband), for a domestic violence protective order against respondent, Cheryl Lopez (wife). Husband appeals, apparently claiming there was sufficient evidence to support issuance of the order. He also argues he was not properly served with a substitution of wife's attorney, maintaining this is a basis for granting the order. We affirm.
DEFICIENCIES IN HUSBAND'S BRIEF
Before we address the substance of husband's claims we need to point out the problems with husband's brief, which violates the California Rules of Court (all further references to rules are to the California Rules of Court).
As appellant, husband was required to "[p]rovide a summary of the significant facts limited to matters in the record." (Rule 8.204(a)(2)(C).) He failed to do so. In addition, because his primary argument is based on sufficiency of the evidence he was required to "'summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient. . . . He cannot shift this burden onto respondent, nor is a reviewing court required to undertake an independent examination of the record when appellant has shirked his responsibility in this respect.'" (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409, italics omitted.) Instead he set out only a one-sided version of the facts in his favor, completely omitting even a mention of wife's declaration in opposition to his request for protective order.
He failed to include any record references, in violation of rule 8.204(a)(1)(C). We may disregard any facts or arguments not supported by adequate citations to the record. (Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1294.) In addition, except for a reference to a couple of court rules and a passing mention of the equal protection clause of the Fourteenth Amendment, he did not include any legal authority to support his claims. (Rule 8.204(a)(1)(B); Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
The fact husband is appearing in propria persona makes no difference. A self-represented litigant is not entitled to "special treatment" (Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 524) but is held to the same standards as a party represented by counsel (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247 [the appellant's issues forfeited due to defects in opening brief]).
Although we could consider the arguments forfeited we will do our best to address husband's claims on the merits. To the extent we are unable to do so or we overlook an argument, the claims are forfeited for the reasons set forth above.
There is a further problem with exhibits husband attached to the brief. One is an excerpt from an opening brief in an appeal from his misdemeanor domestic violence criminal conviction. There is also an excerpt from a brief in husband's appeal in another case. Although not explained, from what we can glean from this excerpt, it appears husband is appealing from a conviction of child abuse and vandalism as mentioned below. Husband also attached a proof of service by mail of a notice of limited scope representation, apparently from a substitution of attorney.
These documents are not included in the clerk's transcript, and we cannot discern whether these were before the court at the time it ruled on husband's request. Therefore, we do not consider them on appeal. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 [appeal limited to documents in front of trial court].)
FACTS AND PROCEDURAL HISTORY
In November 2015 while husband and wife were still married a domestic violence incident occurred (November 2015 incident). This led to criminal charges being filed against husband. In October 2016 husband was convicted of child abuse or endangerment (Pen. Code, § 273a) and destruction of a wireless device used to notify law enforcement (Pen. Code, § 591.5). Husband has appealed that conviction.
In January 2016 a domestic violence criminal protective order (Criminal Protective Order) was entered against husband protecting wife and their four minor children. Among other things it enjoined husband from harassing, threatening, assaulting, following, stalking, disturbing the peace, or surveilling any of the protected persons. It also prevented husband from having contact of any kind with them and barred him from coming within 100 yards of the protected persons.
In February 2016 husband filed a dissolution of marriage petition. The action was severed and pursuant to a status only judgment, the marriage was dissolved in September 2016.
According to wife's declaration in opposition to husband's request for protective order, in July 2016 she and a coworker were walking to a car after departing from a work event at Corona del Mar beach and saw husband drive by them. Wife thought it was unusual because husband lived in Riverside County. Once wife and the coworker were in the car they found they were driving behind husband. Husband was driving erratically, slowing and then hitting his brakes; he did this three or four times. This made wife "uncomfortable and emotionally distraught." Not knowing what to do, she spoke with the Newport Beach police and described the event. The officer told wife she should file a police report, which she did.
Husband subsequently was arrested and held in custody for 37 days, presumably charged with violating the Criminal Protective Order. According to husband the police report was false and the charge was ultimately dismissed.
In October 2016 husband filed a request for a domestic violence protective order against wife, seeking a 100-yard stay-away order. He also sought a child custody or visitation order, and other orders, including that wife be restrained from making false statements, specifically in an attempt to deny his parental rights.
In the section asking him to describe wife's alleged abuse he pointed to the alleged false police report and the November 2015 incident. In addition, he stated wife had been abusive towards him in front of the children before the other two incidents. He said she elected to work and let him care for the children. He claimed that since she had received custody of the children she neglected their nutrition.
At about the same time husband also filed an ex parte request for a protective order, seeking "review of restraining order" (capitalization omitted), presumably the Criminal Protective Order. In support of the request he attached a portion of the transcript of testimony of his daughter purportedly from the criminal trial resulting from the November 2015 incident, stating it "support[ed] the unlawfulness" of the Criminal Protective Order. In the request husband stated his life was in danger due to wife's "irrational aggression towards me and the discriminating conduct of Newport Beach Police." In a declaration in support of the request for the protective order husband stated wife had "initiated aggressive conduct by knocking [him] off [his] feet and slamming a door in [his] face."
The court denied husband's ex parte request for protective order and set a hearing. Husband filed "supplemental declarations." One requested the court "take notice" of his daughter's testimony at the criminal trial and what appears to be points and authorities from a matter apparently involving the Criminal Protective Order. The other supplemental declaration sought to have a report written by the child custody evaluator stricken.
In her declaration in opposition to husband's request for protective order, in addition to explaining about the circumstances leading to the allegedly false police report, wife noted husband's two motions to modify the Criminal Protective Order were denied.
At the hearing on husband's request for protective order he stated he felt his life was in danger. This was based on the November 2015 incident and the allegedly false police report. As to the latter, he stated he was put in "some extreme dangerous situations with rifles pulled out by deputies." Husband said there had been no problems with or contact from wife between the date wife made the police report and the date he was taken into custody.
Regarding the November 2015 incident, husband pointed to his daughter's testimony from his criminal trial, claiming she testified wife had started the altercation. He also stated wife had yanked off his crucifix and thrown it on the ground.
Husband also testified that in about 2013 or 2014 wife "came at [him] with a fork" while he was holding his two- or three-year-old son. In addition, he testified wife and her brother assaulted him in 2013 or 2014.
Husband testified wife's sister was the nanny for a judge "who used to work in this court and . . . has two problem children." The reason he believed it was relevant was because wife was "using her family as tools." He mentioned wife's brother was dating one of wife's supervisors from work. Wife's sister was the one who called the police for the November 2015 incident.
Husband said wife was trying to use the children; he had not seen them since the arrest on November 22. In addition, he claimed one of his daughters had developed diabetes since she had been in wife's sole custody. When the court mentioned the purpose of the child custody investigation was to collect that kind of information, husband stated the evaluator was biased and concealed evidence. He also complained of wife's financial demands in the divorce, stating wife was using the children as pawns to extort money from him.
During the hearing the court reviewed the CLETS records for wife, which contained no entries. At the conclusion of the hearing, the court found husband had not shown, under the preponderance standard, enough evidence to issue a restraining order.
"CLETS" stands for the California Law Enforcement Telecommunications System, a database operated by the Department of Justice. (People v. Martinez (2000) 22 Cal.4th 106, 113; Fam. Code, § 6380, subd. (a); see Gov. Code, § 15151.) Restraining orders issued under the Domestic Violence Protection Act (DVPA; Fam. Code, § 6200 et seq.) are entered into the database to facilitate their enforcement. (Fam. Code, § 6380.)
DISCUSSION
The DVPA was enacted to prevent "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." (Fam. Code, § 6220.) A protective order may issue if the court is satisfied the moving party provides "reasonable proof of a past act or acts of abuse." (Fam. Code, § 6300.) Before issuing the order the court must search to see if the person to be restrained has convictions for serious or violent felonies or domestic violence. (Fam. Code, §§ 6300, 6306, subd. (a).)
"Generally, a trial court has broad discretion in determining whether to grant a petition for a restraining order under this statutory scheme." (In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 702.) In determining whether the court properly exercised its discretion we consider "'"whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court."'" (Ibid.)
Because the family law court found husband did not produce sufficient evidence to justify a protective order, we must determine "'whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether [husband'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."' [Citations.]" (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 466 (Sonic).)
We may not make factual determinations in place of those made by the family law court. (Dreyer's Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838.) Rather, we "must view all factual matters most favorably to [wife] and in support of the [order]." (Ibid.) That means any conflicts in the evidence must be resolved in wife's favor. (Ibid.) We may not redetermine credibility of witnesses or reweigh evidence. (Bookout v. State of California ex rel. Dept. of Transportation (2010) 186 Cal.App.4th 1478, 1486.) Thus, "[w]here, as here, the judgment is against the party who has the burden of proof, it is almost impossible for him to prevail on appeal by arguing the evidence compels a judgment in his favor." (Ibid.)
Such is the case before us. Husband does not argue why the court erred. He merely reiterates the facts on which he relied in the trial court, primarily the alleged false police report and the November 2015 incident. But wife denied the police report was false. And husband was convicted of two crimes arising from the latter event. Wife was not convicted of anything. Further, the daughter's testimony on which husband relies does not support his position that wife was the aggressor. Rather, she testified wife pushed husband in an attempt to prevent him from hitting their four-year-old son with a belt. Thus, husband's evidence was neither uncontradicted nor unimpeached. (Sonic, supra, 196 Cal.App.4th at p. 466.)
Nor was the evidence so strong to compel the conclusion it was sufficient to support a restraining order. Much of the remaining bases for husband's request for protective order were completely unrelated to conduct on the part of wife that would justify such an order. Issues such as financial support in connection with the dissolution or claims wife's family members were harassing him are not proper bases for restraining wife.
Likewise, husband's claim he was never served with a notice of substitution of wife's attorney before the hearing on the request for protective order does not support a reversal. Nothing required service of the substitution prior to the hearing; service that day was sufficient. (Code Civ. Proc., § 285.) Rule 3.510, which generally provides for service of papers in complex coordination proceedings, does not support husband's contention.
DISPOSITION
The order is affirmed. Because wife did not appear and thus incurred no costs, costs are not awarded.
THOMPSON, J. WE CONCUR: MOORE, ACTING P. J. FYBEL, J.