Opinion
G057278
05-26-2020
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Grace Sykes, Judge. Requests for judicial notice denied. Order affirmed. Arthur Lopez, in pro. per., for Appellant. No appearance for Respondent.
This is the second appeal concerning a domestic violence restraining order (DVRO) involving appellant Arthur Lopez and respondent Cheryl Lopez. In In re Marriage of Lopez (Feb. 26, 2018, G054262) [nonpub. opn.] (Lopez 1) we affirmed the denial of appellant's request for a DVRO against respondent. (Lopez 1, at p. 2.)
Today we also file an opinion (In Re Marriage of Lopez, (May 26, 2019, G057379) [nonpub. opn.]; Lopez 3), wherein appellant is challenging a denial of his request to modify child support.
In this case, appellant appeals from the trial court's denial of his application for a temporary restraining order (TRO) in connection with another request for a DVRO against respondent. He argues there was evidence respondent had abused and harassed him, warranting issuance of a TRO.
We conclude the court properly denied a TRO and affirm. We also deny appellant's requests for judicial notice.
REQUESTS FOR JUDICIAL NOTICE
Appellant filed two requests for judicial notice. The first request concerned six cases to which he is a party, including Lopez 3. As to five of those cases, he did not specify which documents in those cases he wanted noticed nor did he attach copies of the documents as required. (California Rules of Court, rule 8.252(a)(3) [if documents to be noticed are not in record, copies must be attached to request or party must explain why not practicable to do so].)
Appellant did not direct us to documents from these five cases anywhere in the record. Nor did he explain why he did not attach or include them in the record. Thus, we have no way of knowing whether these documents were considered by the trial court. Absent exceptional circumstances we do not take judicial notice of documents not before the trial court. (California School Bds. Assn. v. State of California (2011) 192 Cal.App.4th 770, 803.) There are no exceptional circumstances here.
Nor do we take judicial notice of the truth of matters asserted in judicially noticed documents, as appellant apparently wants us to do. (Guarantee Forklift, Inc. v. Capacity of Texas, Inc. (2017) 11 Cal.App.5th 1066, 1075.)
We also do not take judicial notice of matters irrelevant to the issues in this case. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 544, fn. 4.) Appellant failed to explain the relevance of any documents in these five cases, including Lopez 3. And as discussed below, Lopez 3 is not relevant to the issues before us here.
The sixth case is the one underlying this appeal, and the judicial notice request concerns three documents filed in the trial court after the notice of appeal was filed. From their description we cannot determine if they were filed in connection with the application for TRO which is the subject of this appeal or with other motions or requests. Thus we cannot determine their relevance. (Doe v. City of Los Angeles, supra, 42 Cal.4th at p. 544, fn. 4.) In any event, these three documents were obviously not considered by the trial court in ruling on the TRO and there are no exceptional circumstances warranting judicial notice of them. (California School Bds. Assn. v. State of California, supra, 192 Cal.App.4th at p. 803.)
For these reasons, the first request for judicial notice is denied.
The second request for judicial notice was filed two days before oral argument and concerns a reporter's transcript from a February 2018 hearing in the Superior Court of Riverside case of Lopez v. Lopez (Super. Ct. Riv. County, No. RIV1800123). Appellant asks that we note the court's statement in the hearing that his claim respondent improperly cashed a check (discussed below in section 2) was a criminal matter.
We deny the second request for judicial notice because it is untimely and the transcript is irrelevant. The Riverside hearing occurred 15 months ago. Appellant filed his brief 10 months ago and was given notice of the date of oral argument one month ago. He cannot wait until the last minute to file a request.
In any event, the transcript is not relevant. The comments by the judge at a hearing in the other matter have no bearing on this action. Appellant seems to think the judge's reference to a "criminal matter" was a finding respondent had committed a crime. Not so. Respondent was not convicted of a crime. The court was merely stating the alleged incident was more appropriately handled in a criminal action, not in the civil action being decided. Finally, as discussed below, this alleged act by respondent is not a ground for issuance of a TRO.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
The facts set out in Lopez 1 provide good background to the issues in this case and we incorporate them by reference. As noted therein, the parties' marriage was dissolved in September 2016. (Lopez 1, supra, G054262, p. 4.) In January 2016 respondent obtained a criminal protective order against appellant protecting her and the parties' four minor children. It expired in January 2019. (Id. at p. 4.)
In January 2019 respondent filed a request for a DVRO against appellant wherein she stated the children were afraid of appellant and did not want contact with him. Her request detailed appellant's prior physical abuse and attached the report of a child custody investigation conducted in 2016 as part of the dissolution proceedings. The report recommended appellant have supervised visitation but "only if requested by any of the four children and supported by their designated licensed mental health professional." The court granted respondent a TRO and set a hearing on her request for a DVRO against appellant for February 2019.
Two days later appellant filed his application for a TRO and request for a DVRO against respondent. He alleged acts of abuse and harassment all occurring in 2016 and earlier. Some of these acts were the basis for the DVRO appellant unsuccessfully sought in 2016 as detailed in Lopez 1. (Lopez 1, supra, G054262, pp. 3-6.)
The court denied appellant's application for a TRO and set a hearing on his request for a DVRO against respondent. The reasons listed for denying the TRO were: "Allegations predate the incidents which gave rise to the restraining order against moving party. Moving party did not demonstrate incidents were in self-defense. Moving party also guilty of abuse against children, which occurred after allegations here."
There is nothing in the record concerning the outcome of that DVRO hearing.
DISCUSSION
1. General Principles and Standard of Review
The Domestic Violence Protection Act (Fam. Code, § 6200, et seq., DVPA) was enacted 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.) In ruling on a request for a restraining order under the DVPA the court must consider the totality of the circumstances. (§ 6301.)
All further statutory references are to this code.
Abuse includes "plac[ing] a person in reasonable apprehension of imminent serious bodily injury to that person or to another" and "engag[ing] in any behavior that has been or could be enjoined pursuant to Section 6320." (§ 6203, subd. (a)(3), (4).) Enjoined conduct includes "molesting, attacking, striking, stalking, threatening, . . . harassing, . . . or disturbing the peace of the other party, and . . . other named family or household members." (§ 6320, subd. (a).)
The court generally "has broad discretion in determining whether to grant a petition for a restraining order under [the DVPA]." (In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 702 (Fregoso).) In deciding if 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.) We will not reverse the order unless, under "'"all the relevant circumstances, the court . . . 'exceeded the bounds of reason' or it can 'fairly be said' that no judge would reasonably make the same order under the same circumstances."'" (Herriott v. Herriott (2019) 33 Cal.App.5th 212, 223.)
We review the court's factual findings for substantial evidence, that is, "'whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted,' supporting the court's finding." (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822-823, italics omitted.) "[T]he pertinent inquiry is whether substantial evidence supports the court's finding—not whether a contrary finding might have been made." (Fregoso, supra, 5 Cal.App.5th at p. 702.) "We accept as true all evidence tending to establish the correctness of the trial court's findings, resolving every conflict in the evidence in favor of the judgment." (Ibid.)
It is not our role to reweigh the evidence and we will not disturb the order if, as here, there is evidence to support it. (Orange Catholic Foundation v. Arvizu (2018) 28 Cal.App.5th 283, 292.) We affirm the order if it is correct on any ground. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)
2. No Substantial Evidence
The purpose of a DVRO is to "prevent the recurrence of acts of . . . abuse and to provide for separation of those involved." (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334; § 6300.) Here, a TRO against respondent was not necessary to do either in January 2019. The alleged physical abuse occurred in 2016 and earlier.
As to harassment, appellant alleged respondent fraudulently cashed a $1,650 check made payable to both parties as reimbursement for a security deposit, and made a false statement in her property declaration in the dissolution action. Neither of these alleged acts required issuance of a TRO either. Appellant cites no authority these acts would constitute abuse or other statutorily prohibited conduct. (§§ 6203, subd. (a)(3), (4) & 6320, subd. (a).) The alleged fraudulent check cashing was the basis for his unsuccessful attempt to modify child support at issue in Lopez 3.
In addition, there is no authority that even were the conduct prohibited it constitutes actionable harassment. Elonis v. United States (2015) 575 U.S. 723, on which appellant relies, does not support this argument. It merely stands for the proposition the federal crime of making criminal threats under 18 U.S.C. section 875, subdivision (c) requires proof of intent. (Id. at p.___, 130 S.Ct. 2185)
Robertson v. United States ex rel. Watson (2010) 560 U.S.272, also cited by appellant, is equally inapposite. It was a per curiam dismissal of a writ of certiorari that was improvidently granted. (Ibid.) According to the dissent, the case arose out of an action for criminal contempt based on an alleged violation of a type of protective order similar to those authorized under the statute at issue here. (Id. at p. 273 (dis. opn. of Roberts, C.J.).) But the facts and law in Robertson have no bearing on our case and, in any event, the dissent is not binding on us. (U.S. v. Ameline (9th Cir. 2005) 409 F.3d 1073, 1083, fn. 5; People v. Lopez (2012) 55 Cal.4th 569, 585.)
Moreover, these alleged acts of harassment occurred in 2014 and 2016. That one of them occurred a few months after the 2016 criminal protective order issued does not matter. They are long past, and there is no evidence they would recur. (Nakamura v. Parker, supra, 156 Cal.App.4th at p. 334; § 6300.)
Plus, appellant relied many of the alleged acts of physical abuse in his failed attempt to obtain a DVRO in Lopez 1 where we held the evidence was insufficient. Likewise, appellant unsuccessfully relied on the alleged filing of a false police report in Lopez 1. (Lopez 1, supra, G054262, pp. 3-6.)
Further, by January 2019, the parties had lived apart for many years. After expiration of respondent's three-year criminal protective order against appellant, she was in the process of obtaining a DVRO against him. If there ever was any domestic violence by respondent, which we do not find, it is reasonable to infer it was not going to recur.
Finally, even if there had been domestic violence in the past, the DVPA does not mandate a restraining order be granted on that basis alone. Rather, the court must exercise its discretion to decide whether, even if past abuse has been proven, the circumstances of the case warrant a DVRO to prevent future acts of domestic violence. (§§ 6220, 6300.) Appellant has not cited any contrary authority.
In sum, appellant has not shown denial of a TRO was outside the bounds of reason and thus an abuse of discretion. There is no basis to reverse the order. 3. Miscellaneous Arguments
We reject appellant's unsubstantiated claims he was denied equal protection because he is a Mexican American male, and that there is a bias in favor of respondent, a white female, Nothing in the record shows there has been any discrimination or bias against appellant on any unlawful basis. Likewise, there is no evidence the female superior court and appellate court staff have "relentlessly campaigned to derail [appellant's] due process."
We also reject appellant's contention denial of the TRO is depriving him of his civil rights and parental rights. If he is being deprived of those rights it is due to his own conduct for which respondent obtained a criminal protective order and TRO protecting her and the children.
Appellant cites Isidora M. v. Silvino M. (2015) 239 Cal.App.4th 11, apparently for the proposition mutual restraining orders can be issued. He asserts this is an important principle because the court relied on the prior criminal protective order "as an impediment" to issuing the TRO in appellant's favor. But the court did not refuse to issue a TRO because of the criminal protective order. Rather, it explained respondent's alleged misconduct predated that order. And, as discussed above, the court was well within its broad discretion to conclude these stale allegations of abuse and harassment were not sufficient to support issuance of a TRO.
Appellant's argument a restraining order based on harassment does not violate the First Amendment is irrelevant. The First Amendment is not at issue here.
Finally, if appellant intended to make any other arguments they are forfeited, because his brief did not comport with the California Rules of Court (all further references to rules are to the California Rules of Court) and other requirements. These rules apply even to parties representing themselves. 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 (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543).
Rule 8.204(a)(1)(B) requires each point to be contained within a discrete section with a separate heading. Appellant's arguments are scattered throughout the brief, many of them repeated several times, and intertwined with other claims. "[W]e do not consider all of the loose and disparate arguments that are not clearly set out in a heading and supported by reasoned legal argument." (Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1294] (Provost).)
In addition, a brief must "[p]rovide a summary of significant facts limited to matters in the record" (rule 8.204(a)(2)(C)) and "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears" (rule 8.204(a)(1)(C)). Further, because appellant is making a sufficiency of the evidence argument, he was required to "'summarize the evidence . . ., favorable and unfavorable, and show how and why it is insufficient.'" (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409, italics omitted.)
Appellant's brief did none of these things. Instead it provided an incomplete and one-sided version of the facts in the record and included facts outside the record. And although there were some record references, they were not supplied for all matters as required. (Provost, supra, 201 Cal.App.4th at p. 1294 [We may disregard any facts or arguments not supported by adequate citations to the record].)
Appellant's brief also contained several pages of exhibits. However he failed to direct us to where they are contained in the clerk's transcript if they are. We are not required to search the record on appellant's behalf to determine whether they were included. (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738.) This is especially true here given the 550-plus pages in the subject application for TRO and request for DVRO and the seven total volumes of clerk's transcript. Further, a party may not attach copies of exhibits unless they are included in the record (rule 8.204(d)). Consequently, we refuse to consider all of the exhibits contained in appellant's brief and strike any that are not included in the clerk's transcript.
We could have deemed all of appellant's arguments forfeited on those grounds. (Clark v. Superior Court (2011) 196 Cal.App.4th 37, 53.) But instead, within the constraints set out, we considered them on the merits to the extent we were able.
DISPOSITION
The order is affirmed. No costs are awarded because respondent did not appear.
THOMPSON, J. WE CONCUR: MOORE, ACTING P. J. FYBEL, J.