Opinion
D072401
06-19-2018
THERESA ANNETTE TORRICELLAS, Plaintiff and Appellant, v. PAUL ALBERT McCLELLAND, Defendant and Respondent.
Theresa Annette Torricellas, in pro. per., for Plaintiff and Appellant. Paul Albert McClelland, in pro. per., for Defendant and 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DVN26493) APPEAL from a judgment and postjudgment order of the Superior Court of San Diego County, Brad A. Weinreb, Judge. Judgment and order affirmed. Theresa Annette Torricellas, in pro. per., for Plaintiff and Appellant. Paul Albert McClelland, in pro. per., for Defendant and Respondent.
Theresa Annette Torricellas appeals from a judgment of dismissal and postjudgment order in her lawsuit against Paul Albert McClelland brought under the Domestic Violence Protection Act (DVPA), Family Code section 6200 et seq. Torricellas did not meet her burden of establishing reversible error as to the judgment, and the postjudgment order is not reviewable on appeal. Thus, we will affirm both the judgment and the postjudgment order.
Further unidentified section references are to the Family Code.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The clerk of the superior court failed to include in the clerk's transcript a copy of the register of actions, which Torricellas properly designated, and Torricellas failed to notify the clerk of the omission. (See Cal. Rules of Court, rules 8.122(b)(1)(F), 8.155 (b)(1); further unidentified rule references are to the California Rules of Court.) On our own motion, we have corrected the record on appeal to include the register of actions as part of the clerk's transcript. (Rule 8.155(c)(1).) This is necessary in part to rule on Torricellas's motion to augment the record on appeal, which we discuss at footnote 4, post.
In November 2016, Torricellas filed a request for an ex parte temporary restraining order and an order of protection (or restraining order) under the DVPA (Request). In support of her Request, she filed a memorandum of points and authorities, an income and expense declaration, and a request that the hearing on that part of the Request seeking an order of protection—once it is set—be continued for 30 days. In further support, Torricellas lodged exhibits A-P.
In both the trial court and now on appeal, Torricellas has represented herself. The rules of procedure, both in the trial and appellate courts, apply the same to a self-represented party as to a represented party. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Flores v. Department of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 205 ["The same rules apply to a party appearing in propria persona as to any other party."]; County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444 [self-represented parties "entitled to the same, but no greater, consideration than other litigants and attorneys"].)
Although Torricellas did not designate these exhibits as part of the record on appeal, the register of actions confirms that, in support of her Request, Torricellas, in fact, lodged exhibits A-P. Torricellas has moved to augment the record on appeal to include 135 pages of documents. In part, Torricellas's motion contains a list identifying exhibits A-P, and elsewhere Torricellas tells us that the attachments to her motion include the exhibits to her Request. The documents that follow the list of exhibits A-P appear to contain some, if not all, of exhibits F-P (although none is labeled following the list), and each is dated prior to the November 1, 2016 lodgment in the trial court. Accordingly, we grant Torricellas's motion to augment the record on appeal and include the documents found at pages 1-43 of her motion as part of the clerk's transcript.
We deny the remainder of Torricellas's motion to augment the record on the following grounds: The documents attached to the motion at pages 52-53 are already in the clerk's transcript at pages 17 and 101, respectively; the documents attached to the motion at pages 54-59 are from a different case; and the documents attached to the motion at pages 44-51 and 60-135 are not contained in the register of actions and lack any indication that they were filed or otherwise before the trial court at the time of the rulings Torricellas challenges on appeal. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 ["Augmentation does not function to supplement the record with materials not before the trial court."].)
In her Request, Torricellas alleged under penalty of perjury in part as follows: She and McClelland are married; she is incarcerated; and McClelland is financially and emotionally abusing her. In describing the recent abuse, Torricellas testified that McClelland's "cognitive abilities" are impaired, and two caretakers are controlling him, his finances, and his behavior toward Torricellas.
The evidence Torricellas submitted in support of the Request indicates that Torricellas has been continuously confined to prison since April 1985 following a conviction for second degree murder and a sentence of 16 years to life. Since July 1992, she has been married to McClelland, who (according to Torricellas) currently suffers from a "declining cognitive function from his dementia/Alzheimer's medical condition." Until February 2016, McClelland had provided for Torricellas's "full support," by which Torricellas had obtained her "food, clothing, hygiene and personal articles, writing supplies, postage, glasses, funds for telephone communications, payment for . . . medical needs and appointments at the prison, and for . . . legal copies or court filing fees, as well as . . . dental needs." In and after February 2016, Torricellas's testimony continued, one of McClelland's two caretakers caused McClelland to stop accepting Torricellas's telephone calls and cut off support to McClelland "in order to gain control over McClelland's person, decisions, and actions."
As part of her form Request, Torricellas checked boxes indicating that she sought the following relief against McClelland, in the form of orders controlling: McClelland's personal conduct; certain personal property (a vehicle); payments of monthly obligations on an automobile loan; spousal support; any changes to insurance products held for Torricellas's benefit; and payment of attorney fees and costs. In addition, in an attachment to the Request, Torricellas also sought "other orders," in which she identified 13 separate categories of behavior, much of which has little to do with protection from domestic violence. Indeed, by the relief she sought in the form of "other orders," Torricellas was not attempting to control alleged domestic violence as much as she was attempting to control the lives of McClelland and his caretakers—in significant part to require McClelland to provide Torricellas financial support while she is incarcerated.
Torricellas requested an order that McClelland not do the following things to her: "Harass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance, impersonate (on the Internet, electronically or otherwise), or block movements[.]"
Based on the Request and supporting documentation, the trial court denied an ex parte temporary restraining order, specifying the following reasons: "Insufficient factual basis for D[omestic ]V[iolence ]T[emporary ]R[estraining ]O[rder]. Additionally many requests ask for affirmative relief unavailable through the [DVPA] statutes/process." The court also set a mid-November 2016 date for the hearing on Torricellas's request for a restraining order. Finally, the court granted Torricellas's request that the hearing be continued for 30 days, setting the matter on the court's December 8, 2016 calendar.
The hearing proceeded on December 8, 2016. Torricellas participated from prison, and McClelland and one of his caretakers participated from the courtroom; all three people took an oath to tell the truth. The caretaker explained that McClelland had rented a studio apartment above the caretaker's garage for 30 years and presented the court with a March 2016 letter from a doctor at the Department of Veteran's Affairs indicating that McClelland had been diagnosed with dementia. The court observed McClelland's behavior in court and was presented with evidence of both McClelland's exercise of a financial power of attorney and McClelland's need for daily assistance in certain necessities of life. The court sua sponte appointed the caretaker as McClelland's guardian ad litem for the December 8 proceedings and overruled Torricellas's later objections. The hearing continued on the merits, after McClelland (through his guardian ad litem) waived the defects in Torricellas's attempted service of process.
Torricellas did not include in the record on appeal her request to appear by telephone or the court's order approving the request. Although the court had previously approved Torricellas's request to appear telephonically, Torricellas did not call the court as required. Sua sponte, the court called the prison's litigation coordinator, who located Torricellas and arranged for her to call the court before the end of the court's calendar.
The court explained to Torricellas the bases on which the court previously denied the temporary restraining order—i.e., insufficient evidence and statutorily unauthorized remedies—and asked Torricellas whether she had any new facts or additional evidence. The court and Torricellas discussed the exhibits that she previously had submitted to the court in support of her Request, and Torricellas testified and argued for the requested relief. After assuring Torricellas that it had reviewed her "voluminous exhibits" and listened to the testimony that she provided, the court ruled that she had not met her burden of proof. In part, the ruling was based on the explicit finding that Torricellas was not a credible witness.
Despite our access to and review of the register of actions, the clerk's transcript, Torricellas's motion to augment the record on appeal, and Torricellas's brief on appeal, we nonetheless do not know exactly what was before the trial court, since Torricellas has failed to identify exactly what she submitted at what time. At one point the court described "42 exhibits," and at another point the court described "a separate lodgment that was received on November 1 [with Torricellas's original Request] with exhibits A through P with a variety of documents." Thus, for documentary evidence in support of the Request, we are limited to considering only the documents contained in the clerk's transcript and the 42 pages of documents contained in the augmented clerk's transcript.
At the conclusion of the hearing, the court denied Torricellas's Request and dismissed the action without prejudice (Dismissal).
In early February 2017, Torricellas filed a motion to vacate the Dismissal and enter different judgment—i.e., one consistent with her Request—under Code of Civil Procedure section 663. Unrelated to section 663, Torricellas also sought orders for her personal attendance at the hearing on the motion, appointment of counsel, appointment of a new/substitute guardian ad litem for McClelland, and appointment of counsel for McClelland. In addition to the supporting memorandum of points and authorities and exhibits, Torricellas also filed a request, with a supporting declaration, to appear telephonically at the hearing on the motion. The court granted the request, and on February 14, 2017, the clerk of the court served Torricellas with written notice that the court had approved Torricellas's "request to appear by telephone on MAR. 3[,] 2017 at 9:00 a.m. in Department 16 . . . ."
"A judgment or decree, when based upon a decision by the court . . . may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: [¶] 1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts . . . ." (Code Civ. Proc., § 663.)
McClelland did not file an opposition, and at the March 3, 2017 hearing on Torricellas's motion to vacate the Dismissal, there were no appearances. Based on Torricellas's failure to call the court at the appointed time or otherwise to contact the court following service of the order granting Torricellas's request to appear by telephone at 9:00 a.m. on March 3, 2017, the trial court "dismissed [the motion] due to lack of appearance."
By notice filed in May 2017, Torricellas timely appealed from both the Dismissal and order dismissing the motion to vacate the Dismissal.
II.
DISCUSSION
"A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Since such a judgment or order is " 'presumed correct,' " on appeal the appellant has the burden of establishing reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
As a related concept, not every error entitles an appellant to a reversal. To prevail on appeal, an appellant must also demonstrate that she suffered prejudice as a result of the error. Prejudice is never presumed (Code Civ. Proc., § 475), and the appellant bears the burden of establishing that the error caused a miscarriage of justice (Cal. Const., art. VI, § 13)—namely, that it is reasonably probable that, but for the error, the appellant would have received a more favorable result. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 822-823 (Marriage of Falcone & Fyke).)
The fact that McClelland has not filed a brief on appeal does not affect Torricellas's burdens on appeal; we will decide the appeal on the record and Torricellas's opening brief. (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334 (Nakamura); rule 8.220(a)(2).)
When actual or threatened acts of domestic violence occur within a marital relationship, a spouse may commence an independent action under the DVPA, section 6200 et seq. (See Nakamura, supra, 156 Cal.App.4th at p. 335.) 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.) To effect this purpose, the DVPA provides for the issuance of restraining orders, at times referred to in the DVPA as "protective" orders, either ex parte or after hearing, that enjoin specific acts of abuse.
The DVPA defines domestic violence as "abuse" perpetrated against specified individuals, including, as applicable here, a spouse. (§ 6211, subd. (a).) In this context, "abuse" is not limited to the actual infliction of physical injury or assault, but rather is defined to include any act that: intentionally or recklessly causes or attempts to cause bodily injury; results in sexual assault; places a person in reasonable apprehension of imminent serious bodily injury to himself or herself or to another; or involves any behavior that has been or may be enjoined under section 6320. (§ 6203.) The potentially abusive acts in the present case are under the latter definition. In this regard, section 6320, subdivision (a) allows for the following behavior to be enjoined: "molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, 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."
As we explain, Torricellas did not meet her burden of establishing reversible error in relation to the denial of a restraining order in the Dismissal. As we further explain, by not appearing or otherwise contacting the court prior to the hearing on her motion to vacate the Dismissal, Torricellas abandoned the motion; and by abandoning the motion in the trial court, the order taking the motion off calendar is not reviewable on appeal for substantive error.
With regard to Torricellas's contentions of error directed to the trial court's ex parte denial of the temporary restraining order on November 1, 2016, we lack jurisdiction to consider them. The timely filing of a notice of appeal is a jurisdictional prerequisite to the appellate court's power to entertain an appeal. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) Under Code of Civil Procedure section 904.1, subdivision (a)(6), an appeal may be taken from the denial of a DVPA ex parte temporary restraining order (Nakamura, supra, 156 Cal.App.4th at p. 332), but Torricellas did not appeal from the November 1, 2016 order denying the temporary restraining order. A. Torricellas Did Not Meet Her Burden of Establishing Reversible Error as to the Dismissal
Torricellas raises a number issues related to the proceedings that resulted in the Dismissal. We will discuss them in the order she presents in her appellate brief.
We agree with Torricellas that our review of the denial of a DVPA restraining order is limited to whether the trial court abused its discretion. (In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 702.) Under this standard, we must determine " ' "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.)
1. The Trial Court Did Not Abuse Its Discretion in Dismissing the Request Without Providing Reasons for the Dismissal or a Hearing on the Merits
Torricellas argues that the trial court erred by dismissing the Request without providing reasons and failing to provide a hearing on the merits—followed by many pages of related arguments. We disagree with each of them, as discussed immediately below at parts II.A.1.a.-h.
a.
Initially, Torricellas is wrong in arguing both that the court did not provide reasons for its ruling and that the court failed to provide a hearing on the merits.
The court clearly and unmistakably ruled from the bench that Torricellas did not present sufficient credible evidence to support the issuance of the requested relief. In any event, there is no requirement that the court provide reasons for its ruling. Torricellas relies on section 6320.5, subdivision (a), but that statute only requires a statement of reasons when the court denies a section 6320 ex parte request, and as we explained, ante, the court's denial of Torricellas's ex parte request is not before us.
Nonetheless, we note that, in the order denying Torricellas's ex parte request, the court did provide a statutorily compliant statement of its reasons for denying relief: Torricellas did not make a sufficient factual showing, and Torricellas requested affirmative relief that was unavailable under the DVPA.
Also contrary to Torricellas's suggestion, the trial court provided a full hearing on the merits. On December 8, 2016, following notice, the court called the case, and Torricellas was given the opportunity to present whatever evidence and argument she had in addition to what she had already submitted in support of her Request. The parties were sworn, such that what they presented could be considered testimony (if otherwise admissible as evidence), not merely argument. The court considered the evidence and arguments presented, ruled that Torricellas did not meet her evidentiary burden, denied the requested restraining order, and dismissed the action without prejudice.
b.
Torricellas argues that the court did not set the hearing on the Request, as required by section 6320.5, subdivision (b), "on the earliest date that the business of the court will permit, but not later than 21 days or, if good cause appears to the court, 25 days from the date of the order" denying the ex parte temporary restraining order.
However, on the same date that she requested the temporary restraining order, Torricellas also filed a request to continue the hearing on the restraining order for "30 days after [the] initial hearing"—which the court granted. In fact, in full compliance with section 6320.5, subdivision (b), the court originally set the hearing 16 days after the denial of the ex parte temporary restraining order—i.e., on November 17, 2016—but then continued the hearing until December 8, 2016, at Torricellas's written request.
In short, Torricellas may not complain on appeal about relief she requested and the trial court granted.
c.
Torricellas argues that she did not receive sufficient notice to prepare for the December 8, 2016 hearing.
First, as the complaining party—i.e., the party who filed the action and then requested immediate ex parte relief, a full hearing, and a continuance of the hearing—Torricellas is responsible for monitoring her case. This includes following her various requests to obtain the various rulings, including the dates of hearings she requested. To the extent Torricellas believes that she did not receive sufficient notice of the December 8, 2016 hearing, she has only herself—not the court—to blame.
Second, Torricellas has not established, or even attempted to establish, prejudice from what she describes as a lack of notice. Torricellas has not stated either (1) what she would have done differently had she received more notice of the hearing, or (2) more importantly, how it is reasonably probable that whatever she would have done differently would have resulted in a more favorable disposition. (Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at pp. 822-823.)
d.
Torricellas's contention that "it did not appear the court was familiar with the facts of the petition or supporting exhibits and documentary evidence in support thereof" is frivolous. The court expressly explained to Torricellas: "I have reviewed your petition. I have reviewed your documents, your declarations. I have reviewed your points and authorities. I'm aware of the facts and circumstances contained within your petition. Those facts and circumstances were not a sufficient basis for the reasons that the court articulated earlier to grant you a temporary restraining order." (See fn. 9, ante.)
Contrary to Torricellas's contention, the court's request that Torricellas present whatever additional evidence and argument she had is not an indication either that the court had not read or considered what Torricellas had submitted or that Torricellas was denied due process. To the contrary, the court provided Torricellas with the process to which she was due—namely, an opportunity to be heard, i.e., to supplement what had already been determined to be an insufficient showing to support the requested relief—along with an explanation of exactly what was lacking in her preliminary showing.
e.
Torricellas accuses the trial court of "adopt[ing] the role of counsel" for McClelland. In particular, Torricellas is critical of the court's comments that the evidence proffered by Torricellas lacked foundation and/or contained inadmissible hearsay.
First, the Evidence Code determines what evidence is admissible. The trial court has the duty to determine what evidence is legally admissible, and as the trier of fact the court may limit its consideration to admissible evidence without explanation. In this latter regard, the court's comments were a courtesy to Torricellas, allowing her to supplement what she had already submitted with additional evidence or argument either to overcome the evidentiary challenges or to support her position on the merits.
Second, Torricellas neither refers us to specific evidence that the court ruled inadmissible nor suggests the basis for the admissibility of any of the evidence she submitted. In any event, despite a lack of foundation or the existence of hearsay, the court explained that it nonetheless "considered [all inadmissible evidence] for purposes of having a better understanding of what your position is that you articulated in your [Request] and in your declaration that you submitted to the court."
The court then denied the restraining order, concluding that, even with this consideration of the inadmissible evidence, "it doesn't change the fact that I find that you haven't met your burden to establish acts of domestic violence such that would overcome the finding that the temporary restraining order was appropriately denied, and the Court would find that even if we move forward with the hearing that you have not met your burden of proof to warrant the issuance of a permanent restraining order."
Finally, Torricellas has not attempted to establish the requisite prejudice from this alleged error. More specifically, Torricellas has not stated how, if the court had considered the inadmissible evidence on the merits of the Request, there is a reasonable probability that she would have received a more favorable disposition. (Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at pp. 822-823.)
f.
In a related argument, Torricellas suggests the trial court erred in asking her about her felony conviction and then, based on her response, finding that Torricellas lacked credibility. However, the law in California is that, "[f]or the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness . . . that [s]he has been convicted of a felony . . . ." (Evid. Code, § 788.) Notably, Torricellas does not mention, and therefore does not attempt to argue, why Evidence Code section 788 does not apply.
The entirety of the conversation was as follows:
"THE COURT: Can you tell me before you begin, because it's obvious to the court that you are incarcerated as we're speaking to you [on the telephone in a call from the prison], why are you incarcerated?
"MS. TORRICELLAS: I'm incarcerated on a second-degree murderer offense that I didn't commit.
"THE COURT: Were you convicted of second-degree murder?
"MS. TORRICELLAS: I ple[]d guilty as a result of coercion and ineffective assistance of counsel, which is a non-issue. It wasn't a spouse, by the way.
"THE COURT: You are in prison following a guilty plea conviction for second-degree murder[?]
"MS. TORRICELLAS: Correct.
"THE COURT: Thank you. I'll take judicial notice of that." In the Dismissal, the court ruled that it did not find Torricellas credible—in part due to her felony conviction.
Torricellas's argument that evidence of her felony conviction is irrelevant is frivolous. By enacting Evidence Code section 788, the Legislature necessarily determined the relevance of such evidence.
g.
Torricellas contends that the trial judge showed "actual bias" against her, as evidenced by prejudging the case before hearing her evidence.
Torricellas misrepresents the record when she suggests that the court prejudged the evidence. What the court did was to prepare for the hearing. The court read and considered the declarations and documents that Torricellas had submitted in support of the Request—i.e., evidence she filed many weeks prior to the hearing. At the beginning of the hearing, the court merely explained that, based on the evidence already submitted, Torricellas had not met her evidentiary burden. The court expressly encouraged Torricellas to present whatever additional evidence or argument she had in order to meet her initial burden.
h.
Torricellas suggests that the trial court erred in appointing McClelland's caretaker as his guardian ad litem for purposes of the hearing. Citing J.W. v. Superior Court (1993) 17 Cal.App.4th 958 (J.W.), Torricellas argues that only an attorney, not a lay guardian ad litem, may represent a party in litigation.
Torricellas's argument conflates two independent concepts: A lawyer represents a party, whereas a guardian ad litem represents a party's interests. The court did not appoint the caretaker to act as McClelland's attorney; rather, the court appointed the caretaker to act as McClelland's representative of record in the litigation—i.e., to " 'represent[] the interests of a person in legal proceedings who lacks capacity to represent himself' " (McClintock v. West (2013) 219 Cal.App.4th 540, 549, quoting from J.W., supra, 17 Cal.App.4th at p. 965). "The guardian ad litem, therefore, when representing an adult deemed incapable of representing himself or herself, is in a similar role to a conservator, who derives his or her authority from the power of the state to protect incompetent persons." (McClintock, at pp. 549-550.)
Code of Civil Procedure section 373, subdivision (c)—which Torricellas does not mention—provides for the appointment of a guardian ad litem "by the court on its own motion" where the evidence supports the finding that an adult party to the action lacks legal competence to make decisions. (See id., § 372; Sarracino v. Superior Court (1974) 13 Cal.3d 1, 11-12.) Here, the court perceived that McClelland required assistance, and after receiving evidence of McClelland's condition, appointed the guardian ad litem. Following the prescribed procedure for the appointment of a guardian ad litem, the trial court did not err.
Finally, even if the appointment of a guardian ad litem was in error, Torricellas does not attempt to suggest how she was prejudiced—i.e., how it is reasonably probable that, had the court not appointed a guardian ad litem, Torricellas would have received a more favorable result. (Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at pp. 822-823.)
Nor could she, since neither McClelland nor the guardian ad litem presented evidence or argument on which the court's ruling was based. The court denied relief because Torricellas did not meet her initial evidentiary burden.
i.
For the reasons set forth in the preceding parts III.A.1.a.-h., Torricellas did not meet her burden of establishing reversible error as to any of the issues she raised in support of her argument that the trial court abused its discretion in dismissing the Request without providing reasons for the Dismissal or a hearing on the merits of the Request.
2. The Trial Court Did Not Abuse Its Discretion in Dismissing the Request Given the Allegations of Abuse
Torricellas argues that, because her Request and supporting documentation set forth a prima facie case for domestic abuse under the DVPA, the trial court erred in denying relief. Torricellas assumes—without authority—that, because she presented sufficient evidence to support her claims, the court was obligated to view the evidence both as credible and convincing.
Contrary to well-established precedent, however, the court was not required to believe Torricellas's testimony, and as we introduced ante, the court did not find Torricellas credible. Moreover, regardless of credibility, a trier of fact may disbelieve even uncontradicted evidence, so long as the evidence is not disregarded arbitrarily. (Ebersol v. Cowan (1983) 35 Cal.3d 427, 439; Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632.) Here, the court's disregard of evidence was not arbitrary. As the trial court explained in an effort to direct Torricellas's attention to overcome her evidentiary problems, much of the evidence was inadmissible. In addition, as particularly applicable here, because "the [trier of fact] is entitled to consider [the witness's] interest in the result of the case" (Blank v. Coffin (1942) 20 Cal.2d 457, 462), "[a] rational trier of fact could disbelieve those portions of [the party's] statements that were obviously self-serving" (People v. Silva (2001) 25 Cal.4th 345, 369).
Contrary to Torricellas's suggestion, just because the trial court did not fully credit the evidence Torricellas presented does not mean either that the trial court erred or that the trial court was predisposed to a specific outcome.
3. The Trial Court Did Not Abuse its Discretion in Failing Either to Award Torricellas Spousal Support or to Require McClelland to Submit an Income and Expense Declaration
Torricellas contends that the trial court was required either to order McClelland to provide spousal support or, at a minimum, to require McClelland to submit an income and expense declaration from which the court could order appropriate spousal support. In this regard, the DVPA provides that, if the parties are married to each other and no spousal support order exists, the trial court may, upon a sufficient showing, order the responding party to pay spousal support. (§ 6341, subd. (c).)
Here, we have just concluded that Torricellas did not demonstrate reversible error associated with the trial court's ruling that Torricellas failed to present sufficient evidence to establish the requisite abuse for relief under the DVPA. (See pt. II.A.3., ante.) The trial court's ruling as to the insufficiency of Torricellas's evidence applies equally to Torricellas's request for spousal support. Thus, for the same reasons that Torricellas did not establish reversible error associated with the finding of the insufficiency of the evidence of abuse, Torricellas did not establish reversible error associated with the finding of the insufficiency of the evidence of entitlement to spousal support. (See pt. II.A.3., ante.)
4. The Trial Court Did Not Abuse its Discretion in Failing to Order Torricellas's Attendance at the Hearing
We are not persuaded by Torricellas's argument that the trial court erred in denying her request to be allowed to attend the hearing in person.
In California, a felony prisoner has a statutory right to initiate a civil action while incarcerated. (Pen. Code, § 2601, subd. (d); Cox v. Superior Court (2016) 1 Cal.App.5th 855, 860.) " 'In the case of an indigent prisoner initiating a bona fide civil action, this statutory right carries with it a right of meaningful access to the courts to prosecute the action.' " (Cox, at p. 860, quoting Wantuch v. Davis (1995) 32 Cal.App.4th 786 (Wantuch).) That said, "[m]eaningful access to the courts by an indigent prisoner 'does not necessarily mandate a particular remedy' to secure access." (Wantuch, at p. 792, quoting Payne v. Superior Court (1976) 17 Cal.3d 908, 923.) Rather, the trial court may choose from at least eight remedies—including a telephonic hearing—to secure the indigent prisoner's access. (Wantuch, at pp. 792-793.) The trial court has discretion in choosing an appropriate remedy to secure this access. (Id. at p. 794.)
We express no opinion as to Torricellas's indigence or the bona fides of her DVPA action against McClelland.
Here, the trial court did not abuse its discretion.
In the memorandum of points and authorities Torricellas submitted in support of her Request, she argued that she be allowed to personally attend all the hearings. However, in the evidence that Torricellas submitted in support of the Request, she spoke only of the need for, and procedures related to, a request to appear by telephone. In response, the court granted Torricellas's request and allowed her to participate telephonically. Under the circumstances, the court's ruling—i.e., allowing the appearance by telephone—did not exceed the bounds of reason. B. The Order Taking the Motion to Vacate the Dismissal Off Calendar Is Not Reviewable on Appeal
Significantly, as part of her argument, Torricellas acknowledged that "a prisoner may not ordinarily compel his appearance in court."
When Torricellas filed her motion to vacate the Dismissal, she also filed a request to appear by telephone and a supporting declaration. The court granted the request the next day, and the clerk of the court served Torricellas with the order. In her appellate briefing, Torricellas acknowledges having received the order, which not only authorized the telephonic appearance but also confirmed the hearing date and time.
Immediately above the order, one of the preprinted terms and conditions of a telephonic appearance is: "The court will try to accommodate unexpected problems associated with a telephone appearance; however, absent good cause, the matter may proceed without the applicant's appearance or a continuance, and the court may decide the matter based on the information and evidence before it." (Italics added.)
At the appointed date and time on March 3, 2017, at 9:00 a.m., the court called the case, but no one was present, and no one telephoned the courtroom. The court ruled as follows: "[Torricellas] has not availed herself to contact the Court[,] and it is not the Court's responsibility to set up [a] telephonic appearance for [her]. [¶] [Torricellas's] motion to set aside [the D]ismissal is dismissed due to lack of appearance." (Italics added.)
For more than a century and a half, the law in California is that a party's failure to appear at a hearing on the motion is "a virtual abandonment of the motion, and the order made thereon is not, in consequence, the subject of review on appeal." (Frank v. Doane (1860) 15 Cal. 302, 303 [motion to set aside referee's report]; accord, Mahoney v. Wilson (1860) 15 Cal. 42, 44 ["Having abandoned his motion by his own default [in not appearing], the defendant cannot bring the merits of the motion here by appeal."].)
In addition, rule 3.1304(c) allows a party to a motion proceeding to give notice that he or she will not appear, thereby submitting the matter, in which event the court "must rule on the motion as if the party had appeared." Consistent with the above-quoted long-standing caselaw, however, rule 3.1304(d) provides: "If a party fails to appear at a law and motion hearing without having given notice under (c), the court may take the matter off calendar, to be reset only upon motion, or may rule on the matter."
Here, Torricellas gave no notice that she would not appear telephonically, and the trial court properly took her Code of Civil Procedure section 663 motion off calendar. (Rule 3.1304(d).)
On appeal, Torricellas presents a number of arguments as to why the court erred in "dismissing" her motion. To the extent Torricellas's arguments are directed to any of the issues raised in the motion, we do not reach them; since the trial court took the motion off calendar, there is no substantive decision for us to review. (Frank v. Doane, supra, 15 Cal. at p. 303; Mahoney v. Wilson, supra, 15 Cal. at p. 44.)
Relying on Jameson v. Desta (2009) 179 Cal.App.4th 672 (Jameson), Torricellas further contends that, because the trial court did not make a finding that her failure to participate was willful, the trial court abused its discretion in taking the motion off calendar without first ensuring Torricellas's right to meaningful access to the court. As we explain, Torricellas's reliance on Jameson is misplaced.
In Jameson, we concluded that the trial court abused its discretion in dismissing a prisoner's negligence action against the prison health care provider when the plaintiff prisoner failed to appear telephonically at a case management conference and at a later hearing on an order to show cause. (Jameson, supra, 179 Cal.App.4th at pp. 674-675.) There, the plaintiff filed a request to " 'be allowed to participate in every hearing via telephonic conference.' " (Id. at p. 680.) After the court granted the request, the plaintiff notified the court that prison officials would not permit him to exercise this right. (Id. at p. 681.) More specifically, the plaintiff had "alerted the [trial] court in at least six different filings that prison personnel were not permitting him to make such appearances." (Id. at p. 682.) The trial court nonetheless dismissed the action for a failure to appear, despite the plaintiff having "tirelessly raised the issue of his lack of telephonic access to the court in letters to the trial court, in pleadings related to other issues in the case and . . . in documents filed in anticipation" of the final hearing at which the court ordered the matter dismissed. (Id. at p. 683.)
Under those circumstances, we held the trial court abused its discretion by "choosing the 'drastic measure' of dismissal . . . without first determining that [the prisoner] had been afforded meaningful access to the courts and that his failure to appear at required hearings was willful." (Jameson, supra, 179 Cal.App.4th at p. 684, citation omitted.) Since only an indigent prisoner who raises a bona fide claim is entitled to the meaningful access to the courts at issue in Jameson (Wantuch, supra, 32 Cal.App.4th at p. 792), on remand, in order to determine whether the plaintiff had been denied meaningful access, the trial court was directed to determine whether he was indigent and whether his complaint raised a bona fide claim. (Jameson, at p. 684, fn. 9; accord, Wantuch, at p. 796; Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1487 (Apollo) [only after "the trial court determines that appellant is indigent and has a bona fide claim" does the court "then consider what remedies are available to protect appellant's right of meaningful access to the courts"].)
Jameson, however, is distinguishable from the present case. Here, there is no issue as to Torricellas's entitlement to meaningful access to the court. She had access, the court ruled against her on the merits—on the basis that she was unable to present evidence of a prima facie case under the DVPA—and as we concluded in part II.A., ante, the trial court did not err in denying the requested relief. Given this record, there is no issue as to whether Torricellas's motion to set aside the Dismissal raised a bona fide claim; it did not. Without a bona fide claim, an indigent prisoner cannot be denied meaningful access to the courts. (Wantuch, supra, 32 Cal.App.4th at p. 792; see Apollo, supra, 167 Cal.App.4th at p. 1487; Jameson, supra, 179 Cal.App.4th at p. 684, fn. 9.) Thus, where, as here, Torricellas did not present a bona fide claim in her motion, meaningful access to the courts is not at issue; and where, as here, meaningful access is not at issue, there is no requirement that the trial court determine whether the prisoner's failure to appear telephonically was willful.
In any event, Torricellas did not establish prejudice by the trial court's refusal to rule on the merits of her motion to vacate the Dismissal. Any issue or argument that she could have raised in the motion, she could have raised in the present appeal, and as we have explained in part III.A., ante, Torricellas did not meet her burden of establishing trial court error in this appeal.
To the extent Torricellas may have raised an issue or argument in her motion to vacate the Dismissal but not in this appeal, Torricellas forfeited review of the issue or argument; she could have raised any issue in this appeal that she raised in her motion.
Accordingly, the trial court did not abuse its discretion in taking Torricellas's motion to vacate the Dismissal off calendar without first determining whether Torricellas's failure to appear was willful.
DISPOSITION
The superior court's orders of December 8, 2016, and March 3, 2017, are affirmed. Because McClelland did not appear in this appeal, the parties shall bear their respective costs on appeal. (Rule 8.278(a)(5).)
IRION, J. WE CONCUR: HUFFMAN, Acting P. J. NARES, J.