Opinion
A153043
07-17-2018
DONALD S., Plaintiff and Respondent, v. BRIAN C., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. HF17879321)
This is an appeal from a protective order (PO) issued pursuant to the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.). Appellant contends he was denied due process at the hearing on respondent's application for a PO because the trial court failed to swear the witnesses and declined to consider (and, thus, declined to allow cross-examination on) evidence of prior incidents that assertedly substantiate his claim that he was afraid of respondent and was acting in self-defense. We affirm.
This appeal is appropriate for disposition by way of memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1.
In October 2017, respondent, then 70 years old and a widower, filed a request for a PO on Judicial Council form EA-100. Respondent described three incidents of assault, one the first week of October, one in July, and one in October 2015. Respondent verified the information in the form under penalty of perjury. The court issued a temporary restraining order.
Appellant, then 62 years old, filed written opposition on form EA-120. He denied respondent's allegations of abuse, claimed he had only acted in self-defense, and asserted he had actually become the victim in the relationship. He verified the information in the form under penalty of perjury.
Thus, when the matter was called for hearing, the trial court had before it conflicting versions of the events at issue.
Appellant's first complaint about the hearing is that the trial court failed to swear either respondent or appellant and, therefore, the testimony they gave should not have been considered. Respondent maintains that, in fact, the two were sworn, pointing to the court minutes which state appellant and respondent were both "sworn" prior to their testimony. The reporter's transcript of the hearing, however, does not reflect that either was sworn before they testified. Rather, the trial court simply asked respondent: "[Respondent], is everything you put in the request for restraining order true and correct?" And respondent answered: "Yes, it is." The court did not make such an inquiry of appellant. It therefore appears the minutes are in error.
However, that does not mean appellant's rights were compromised or that "no" evidence supports the PO. First, respondent testified about matters already set forth in his request for a PO, which he had verified under penalty of perjury. Second, appellant made no objection to respondent's testimony on the ground he had not been duly sworn in court. Nor did he object to the trial court's inquiry as to whether the matters respondent had set forth in his request were true and correct. Accordingly, any claim of error based on the court's failure to formally swear either respondent or appellant prior to their testimony in court has been forfeited. (See Tennant v. Civil Service Com. (1946) 77 Cal.App.2d 489, 498 [permitting witness to testify without being sworn "is not a jurisdictional matter but is at most a judicial error which cannot be taken advantage of except upon timely objection being made"].)
Appellant's generic "objection" to "the ruling of [sic] the restraining order"—made after the trial court had ruled from the bench and ordered a PO—is not the timely and specific objection required to preserve an objection to an evidentiary ruling during trial.
Appellant's second complaint about the hearing is that he was not allowed to "cross-examine" respondent. As appellant's counsel acknowledged at oral argument, at the close of respondent's testimony, counsel made no request to conduct cross-examination. Rather, counsel simply commenced direct examination of appellant. Accordingly, appellant forfeited any complaint on appeal that he was denied the opportunity to cross-examine respondent. (See People v. Skiles (2011) 51 Cal.4th 1178, 1189 [asserted deprivation of right to cross-examination must be raised in trial court]; Mendoza v. Ramos (2010) 182 Cal.App.4th 680, 687 [failure to request cross-examination results in forfeiture].)
Contrary to counsel's assertion at oral argument, the trial court did not announce at the conclusion of respondent's testimony that it was "ready to rule" and, thus, the court in no way dissuaded counsel from asking for cross-examination. Rather, during counsel's direct examination of appellant, the trial court stated: "I'll hear from you—whatever you want to elicit on [sic] your client, then I'll be ready to rule."
Although claiming denial of "cross-examination," what appellant is really complaining about is that the trial court declined to consider evidence about events that occurred between the parties in 2013 and 2015, instead focusing on the events that occurred in 2017. Appellant maintains evidence of these earlier events supported his assertion that by 2017 he had essentially become the victim in the relationship and was acting in self-defense. However, appellant did not object to the court's statement that "I'm not considering the 2015 incident, not the 2013. . . . I'm really focusing in [sic] what's happening in 2017." Rather than objecting and making an offer of proof, counsel responded: "Understood, your Honor. I won't go beyond that." Appellant thus acquiesced in the court's ruling (see Allin v. International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators (1952) 113 Cal.App.2d 135, 138 ["One who by his conduct accepts a ruling of the court under circumstances amounting to acquiescence therein, may not complain of it on appeal."]) and has again forfeited any claim of error on appeal. (See Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 282 [failure to make adequate offer of proof generally precludes appellate review of ruling on excluded evidence]; Hayward Union High School Dist. v. Lemos (1960) 187 Cal.App.2d 348, 352 [defendant made no objection to court's ruling excluding evidence nor an offer of proof].)
The record does not contain much detail about the nature of the parties' relationship. Appellant was the brother of one of respondent's renters. According to appellant, respondent had asked appellant to return from Scotland and reside with him. In any event, the two were living in the same house, which was owned by respondent.
In any case, the trial court's evidentiary ruling is reviewed only for abuse of discretion (see People v. Bradley (2012) 208 Cal.App.4th 64, 87 ["courts have broad discretion in admitting or excluding evidence"]), and appellant has not shown any abuse here. On the contrary, the trial court had before it evidence of four incidents in 2017, and appellant was allowed to provide as much testimony as he wanted about each.
The first incident, which occurred in February, was a car accident in which respondent, as he was backing up, struck appellant. Appellant intimated respondent hit him on purpose and claimed this showed respondent was actually the aggressor in their relationship. Respondent maintained it was simply an accident. The second, which occurred in July, arose when respondent entered the bathroom while appellant was using it. The two got into a physical altercation, with respondent ultimately being pushed into the shower and then sustaining burns from the hot water. Appellant's recall about the incident was vague; he did not deny pushing respondent—to "get him away from me"—and did not know how respondent had come to sustain burns on his head. The third incident, according to respondent, occurred in September, when appellant pushed him into a window frame, breaking the window, and him falling on the floor. Appellant was not asked about this incident. The fourth, which occurred in October, involved appellant throwing a pan full of water at respondent, and then following respondent into the bedroom and hitting him with his soaked blue jeans, which still had a belt in them. Appellant acknowledged respondent slipped and fell from the water, but claimed respondent was having "a fit" and he threw the water to "keep him at bay." In his written opposition, appellant denied hitting him with the jeans.
Given the extent of the evidence the court had before it about incidents occurring in 2017, it acted well within its discretion in declining to consider evidence of additional incidents occurring in 2013 and 2015. Appellant had a full opportunity to testify about the incidents that occurred in 2017, including testifying that he was afraid of respondent and had acted out of fear. Indeed, we note that the trial court asked appellant why he had not also sought a PO against respondent after the February 2017 incident and further stated it "would have considered a reciprocal order had it been requested, but it [was] not."
For the first time in his reply brief, appellant makes a "substantial evidence" challenge to the PO. We generally will not consider arguments raised for the first time in a reply brief (see Padron v. Watchtower Bible and Tract Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1266-1267), and decline to do so here. In any case, as we have recited, the PO is supported by ample evidence.
DISPOSITION
The trial court's grant of a protective order is affirmed. Respondent to recover costs on appeal.
Respondent's motion for sanctions is denied.
/s/_________
Banke, J. We concur: /s/_________
Margulies, Acting P.J. /s/_________
Dondero, J.