Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. DV27119, Joel R. Wohlfeil, Judge.
McCONNELL, P. J.
This appeal raises numerous challenges to the trial court's issuance of a protective order under the Domestic Violence Prevention Act (DVPA). (Fam. Code, § 6200 et seq.) We conclude the challenges lack merit and affirm the order.
Further statutory references are to the Family Code unless otherwise specified.
I
FACTUAL AND PROCEDURAL BACKGROUND
Greta Aronow has been estranged from her brother Sam Aronow for at least 15 years. Because of their contentious personal history, which Greta claims includes threats and acts of violence by Sam, Greta intentionally had no contact with Sam and did not tell Sam where she lives and works. When their brother, Abe Aronow, recently died, Sam's wife, Elizabeth Aronow, located Greta's work e-mail address through a professional association to which Greta belongs and e-mailed Greta about Abe's death. According to Elizabeth, Greta called her the next day asking what happened and requesting to be notified of the funeral arrangements. Greta denies requesting that Elizabeth notify her of the funeral arrangements.
As the individuals involved in this matter share the same last name, we refer to them by their first names for clarity and ease.
When the funeral arrangements were made, Elizabeth called Greta at work and received a voice mail message indicating Greta would be out of the office until the following Monday. A friend of Sam and Elizabeth, who worked at the bank where Greta does her banking, obtained Greta's home contact information from Greta's banking records and relayed the funeral information to Greta. Greta did not attend the funeral and, because the friend of Sam and Elizabeth did not have Greta's permission to go through her banking records, Greta reported the matter to the bank. The bank subsequently fired the friend. Sam denies having anything to do with the friend's actions.
Nonetheless, shortly thereafter, Sam sent certified mail to Greta at her workplace. The mail contained a fake obituary for Greta, stating she had died a "sudden death" from the "incurable fatal disease of hate" on Sam's birthday. The fake obituary referenced the friend's firing, characterizing Greta's actions as "the most incomprehensible act of hate and spite one can commit" and lamenting that "[a] single mother of 3 is now unemployed for doing a kind humane act."
Greta considered the fake obituary threatening. When her employer learned of it, her employer hired increased security at all of its facilities where she works. In addition, each of her coworkers met with her employer's human resources department to determine whether they required counseling and whether they felt Greta's presence compromised their personal safety.
The day after receiving the fake obituary, Greta had a home security system installed and purchased pepper spray. Six days after receiving it, she filed a request for a protective order under the DVPA. The trial court issued a temporary restraining order and set the matter for a hearing.
The temporary restraining order directed Sam not to harass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, or molest Greta and not to destroy her personal property, disturb her peace, keep her under surveillance, or block her movements. The order also directed Sam not to contact her, to take any action to get her address, and to stay at least 100 yards away from her, her home, her workplace, and her vehicle.
Sam admits he wrote the fake obituary, but denies it was intended to be threatening. He explained that it "was my way of dealing with my sister's estrangement from our family."
After a hearing on the matter, the court granted the protective order for five years, finding the sending of a fake obituary is highly unusual and, given the parties' history, Greta reasonably perceived it to be threatening. The terms of the protective order are the same as the temporary restraining order.
II
DISCUSSION
A. No error in refusing to allow Sam to personally address the court at the hearing
At two points during the hearing, Sam's counsel attempted to obtain the trial court's permission for Sam to personally address the court. The first attempt occurred during the court's consideration of what a reasonable person in Greta's shoes would infer from getting a fake obituary about herself from a family member with whom she wanted nothing to do. The court inquired of Sam's counsel, "[L]et's assume for the moment that the court accepts respondent's position that he felt he had cause to send somebody else in his family a fake obituary. Where does that get us?" Sam's counsel responded, "Can I have my client --." The trial court interrupted and said, "No. No. I want to talk to you, [counsel]."
The second attempt occurred at the conclusion of Sam's counsel's arguments. The court asked Sam's counsel, "Anything else, [counsel]?" Sam's counsel replied, "Only that my client would like to make a statement." Sam interjected, "I would like to explain why." The court responded, "You chose to hire counsel" and then proceeded to hear Greta's counsel's arguments.
Sam contends the trial court abused its discretion by refusing to allow him to present oral testimony at the hearing. We conclude there is no merit to this contention.
Preliminarily, we question whether the above exchanges actually reflect an attempt by Sam to present oral testimony. A fair reading of them suggests Sam simply wanted an opportunity to personally explain his conduct to the court. This interpretation is bolstered by the fact Sam's counsel did not file and serve advance written notice of an intent to present oral testimony as required by rule 5.5.8(H) of the San Diego County Superior Court Rules, did not announce a desire to present oral testimony at the outset of the hearing, and did not attempt to make an offer of proof regarding the proposed substance of Sam's remarks.
If this interpretation of the record is accurate, the trial court properly denied Sam's request to speak. Sam thoroughly explained his conduct in his written filings and his counsel thoroughly explained it at the hearing. In addition, as the above exchanges reflect, the trial court assumed the propriety of Sam's explanation in determining whether to grant the protective order. Moreover, "[a]s a general rule, parties who are represented in court by counsel of record are required to proceed in court through their counsel." (In re Barnett (2003) 31 Cal.4th 466, 471.) "The attorney of record has the exclusive right to appear in court for his client and neither the party himself nor another attorney should be recognized by the court in the conduct or disposition of the case. [Citations.]" (Epley v. Califro (1958) 49 Cal.2d 849, 854; accord McMillan v. Shadow Ridge At Oak Park Homeowner's Assn. (2008) 165 Cal.App.4th 960, 966; People ex rel. Department of Public Works v. Hook (1967) 248 Cal.App.2d 618, 623.)
If this interpretation of the record is inaccurate and Sam actually wanted to offer additional oral evidence, Sam forfeited the issue by failing to make a specific offer of proof. (Evid. Code, § 354; Austin B. v. Escondido Unified School District (2007) 149 Cal.App.4th 860, 886.) Even if Sam had not forfeited the issue, we conclude it has no merit. The trial court had the discretion to exclude oral testimony and rely solely on the parties' declarations. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1499-1500 (Nadkarni); Reifler v. Superior Court (1974) 39 Cal.App.3d 479, 483.) The trial court did not abuse its discretion under the circumstances. The written evidence before the court included Sam's written response to Greta's request for a restraining order, Sam's declaration opposing Greta's request, and declarations from his wife and ex-girlfriend supporting his position. Collectively, these documents addressed all of Greta's allegations against Sam and Sam does not identify any additional relevant facts the trial court's decision precluded him from presenting. Accordingly, we conclude the trial court did not err by refusing to allow Sam to personally address the court at the hearing.
B. No reversible error in precluding oral objections
In one of the declarations she filed with the court, Greta stated that, because of the obituary and the manner in which it was sent, her employer's corporate security department increased security at its locations where she works. In addition, her employer required her coworkers to meet with representatives from its human resources department to determine whether they needed counseling and whether they felt Greta's presence compromised their personal safety. During the hearing, Greta's counsel referenced her employer's response to the fake obituary as corroboration Greta's apprehension was reasonable. Sam's counsel objected to the court's consideration of this evidence on foundation and hearsay grounds. When the court inquired whether Sam's counsel had filed written evidentiary objections, Sam's counsel admitted he had not. The court then responded, "So [Greta's counsel] is entitled to argue the evidence that is before the court." Sam contends the trial court erred in precluding him from making oral evidentiary objections at the hearing.
Greta contends Sam forfeited this issue by failing to obtain a ruling on the objections. As the court clearly declined to consider the objections, we do not fault Sam's counsel for failing to press the court for a ruling on them.
In order to show cause and motion hearings under family law, evidentiary objections are typically presented in writing. (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2009) ¶ 5:493, p. 5-192.) Some courts have local rules requiring written presentation. (Ibid.) Even where written presentation is not required, it is a good practice as it aids the court's preparations. (Weil & Brown, Cal. Practice Guide: Civil Proc. Before Trial (The Rutter Group 2009) ¶ 9:98.3, p. 9(l)-71.) In this case, the court's local rules specifically permit the parties to make oral evidentiary objections at order to show cause and motion hearings in family law matters. (Super. Ct. San Diego County, Local Rules, rule 5.5.8(E) ["Counsel may not interrupt the opposing side's presentation, other than with valid evidentiary objections..."].) Accordingly, the court should have permitted and ruled on Sam's evidentiary objections.
Nonetheless, the hearsay objection was not well taken because Greta's declaration relayed her employer's actions, not her employer's statements. (Evid. Code, § 1200, subd. (a).) The foundation objection was also not well taken because the court could have reasonably found Greta had the requisite personal knowledge of her employer's actions based on her particular position within the company and her status as the recipient and subject of the fake obituary. (Id., § 702.) Because neither objection was well taken, we conclude no miscarriage of justice occurred and the error does not require reversal. (Id., §§ 353, subd. (b), 354.)
C. No reversible error by considering Sam's criminal history
Prior to the hearing, Greta provided a declaration and other evidence that, in 1974, Sam had pleaded guilty to selling marijuana, which is a felony. At the hearing, her counsel argued Sam's status as a convicted felon contributed to Greta's concerns about the fake obituary. Sam's counsel objected to the court's consideration of Sam's criminal history under section 6306, subdivision (b). The court considered the objection and, without specifically ruling on it, responded, "I think I have made my thoughts clear. I acknowledge there's a history. Whether or not respondent is a convicted felon..., if all we were here to talk about was history, the court would not be receptive to a restraining order. It's the combination of the history, which goes beyond whether or not the respondent has a conviction, with the fake obituary."
Sam contends the court's consideration of his criminal history violated section 6306, subdivision (b). As Greta points out in her brief, Sam forfeited this issue by failing to obtain a specific ruling from the court on his objection. (Ann M. v. Pacific Plaza Shopping Ctr. (1993) 6 Cal.4th 666, 670, fn. 1; Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1421.)
Moreover, we question whether section 6306, subdivision (b), applies to the criminal history information at issue. Section 6306, subdivision (a), requires the court to conduct a criminal history search prior to a hearing on the issuance or denial of a protective order to determine, among other things, whether the subject of the order has previously been convicted of a serious or violent felony, or a misdemeanor involving domestic violence, weapons or other violence. (Nadkarni, supra, 173 Cal.App.4th at pp. 1494-1495.) If the criminal history search reveals the subject of the order does have such convictions, section 6306, subdivision (b)(1) requires the court to consider them prior to deciding whether to issue a protective order. (Nadkarni, at p. 1495.) If the criminal history search reveals information unrelated to such convictions, section 6306, subdivision (b)(2) precludes the court from considering and requires the court to destroy the unrelated information. As the criminal history information at issue here came from Greta rather than the court's criminal history search under subdivision (a), subdivision (b) does not appear to apply to the information.
Even if section 6306, subdivision (b) did apply to the information, the court's consideration of the information does not require reversal because it did not result in a miscarriage of justice. It is clear from the above exchange and other remarks by the court during the hearing that the court did not find Sam's criminal history or the other dated history between the parties grounds for issuing a protective order. Rather, the court regarded the history as relevant only to the extent it established the contentiousness of the parties' relationship and their estrangement, facts neither party disputes.
D. Substantial evidence supports the issuance of the protective order
Lastly, Sam contends there is insufficient evidence to support the issuance of the protective order. We disagree.
"The DVPA... authorizes the trial court to issue a restraining order 'for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit... shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.' [Citations.]" (Nadkarni, supra, 173 Cal.App.4th at p. 1494.) "For purposes of the DVPA, ' "abuse" means any of the following: [¶]... [¶] (c) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. [¶] (d) To engage in any behavior that has been or could be enjoined pursuant to Section 6320.' [Citations.]" (Nadkarni, supra, at p. 1494, italics omitted.)
"Section 6320 provides in part that '[t]he court may issue an ex parte order enjoining a party from... threatening,... harassing,... contacting, either directly or indirectly, by mail or otherwise,... or disturbing the peace of the other party....' [Citation.]" (Nardkarni, supra, 173 Cal.App.4th at p. 1494.) "Thus, section 6320 provides that 'the requisite abuse need not be actual infliction of physical injury or assault.' [Citation.]" (Id. at p. 1496.)
We review the trial court's decision to grant or deny a protective order under the DVPA for abuse of discretion. (Nadkarni, supra, 173 Cal.App.4th at p. 1495.) We review the trial court's underlying factual findings for substantial evidence. (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822-823.)
The parties' arguments below and on appeal focus on what caused the long-standing rift in their relationship and whether Greta's claims regarding Sam's conduct many years ago are true. However, the trial court repeatedly indicated the parties' personal history did not supply a basis for a protective order because the history was too dated. Instead, the trial court repeatedly framed the critical inquiry as whether a reasonable person would experience reasonable apprehension after receiving a fake obituary from someone from whom the person is estranged and with whom the person has a contentious relationship. The trial court ultimately determined a reasonable person would experience reasonable apprehension under those circumstances. As the trial court's determination does not exceed the bounds of reason, the determination is not an abuse of discretion. Furthermore, the parties do not dispute the three key facts underlying the trial court's decision: (1) Sam sent Greta a fake obituary; (2) Sam and Greta have a contentious relationship; and (3) Sam and Greta have been estranged for a long time. Accordingly, there is substantial evidence to support the trial court's decision.
III
DISPOSITION
The order is affirmed. Respondent is awarded costs on appeal.
WE CONCUR: HUFFMAN, J., AARON, J.