Opinion
G055508
09-23-2019
B.M., Plaintiff and Respondent, v. M.M., Defendant and Appellant.
Law Office of Corey Evan Parker and Corey Evan Parker for Defendant and Appellant. Law Offices of Lisa R. McCall and Lisa R. McCall for Plaintiff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14P001222) OPINION Appeal from an order of the Superior Court of Orange County, Erick L. Larsh, Judge. Affirmed. Law Office of Corey Evan Parker and Corey Evan Parker for Defendant and Appellant. Law Offices of Lisa R. McCall and Lisa R. McCall for Plaintiff and Respondent.
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INTRODUCTION
B.M. (Respondent or Ms. M.) sought a domestic violence restraining order (DVRO) against M.M. (Appellant or Mr. M.), the father of her children. Following a drawn-out evidentiary hearing, the trial court granted the request. Appellant appeals from the DVRO. We conclude the trial court did not err in granting the DVRO and therefore affirm.
Appellant does not argue that there was insufficient evidence of abuse, or that there was no statutory basis for issuing the requested order. In addressing the arguments raised by Appellant, we conclude the trial court did not err by denying Appellant's counsel's request to withdraw in the middle of the evidentiary hearing. Further, Appellant has failed to show the trial court was biased against him and in favor of Respondent. Finally, we conclude the DVRO as issued was not a prior restraint on Appellant's speech; any argument that the DVRO was overly broad was forfeited because it was not raised in the trial court.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Respondent and Appellant had been in a relationship since 2007 and had four children. Respondent and the children moved out of the family home in 2014, and she filed a petition to establish parental relationship.
In February 2015, Respondent filed a request for a DVRO against Appellant to protect herself, the children, her mother, stepfather, and brother. Respondent asked the trial court to order Appellant not to "[h]arass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance, or block movements" of the protected parties and not to "publish, or threaten to publish any information about me or my family on a website or on the Internet." Respondent claimed that, whenever Respondent refused to do what Appellant wanted, he would threaten to create a website to publically humiliate and defame Respondent and her family. She asserted: "Based on the allegations and emails, the website would state I am a prostitute; a neglectful mother; that I put my children up for adoption; I want to abort my children; I only care about money; I'm lazy; that my mother murdered my father and is a whore/home wrecker; that my mother's boyfriend is a pedophile and that my brother is a drug dealer." Respondent attached copies of Appellant's threatening e-mails to the request. She also attached a copy of an order from a Florida court granting a temporary injunction, and ordering Appellant to take down a website allegedly defaming a company.
In response to the request for a DVRO, Appellant contended the conduct claimed by Respondent did not constitute abuse: "THIS IS NOT THE STUFF OF RESTRAINING ORDERS!!" Appellant claimed the issues raised by Respondent could be solved by requiring Respondent and Appellant to communicate through Our Family Wizard (a software program designed to manage co-parenting).
In February 2015, the trial court issued a temporary restraining order (TRO) against Appellant. The TRO was reissued multiple times due to continuances of the hearing on the DVRO and the extended period during which the evidentiary hearing was conducted.
Appellant served a deposition subpoena on Respondent's birth mother, contending her testimony was relevant to challenging the credibility of Respondent's adoptive mother, a presumed witness. Respondent moved for a protective order and requested discovery sanctions. Respondent's declaration in support of her motion stated: "On February 26, 2016, I received the deposition subpoena for Cindy Berry. Upon learn[ing] this, I felt like I had been kicked in the stomach. I am adopted and Cindy Berry is my birth mother. I have never met her and can only surmise that [Appellant] is trying to hurt me and my adopted mother by seeking to depose her. If so, he has succeeded. I feel completely violated and do not understand how he is allowed to get away with this. [¶] . . . [¶] I do not wish to meet my birth mother and, even if I did, I would not want to meet her at a deposition. [Appellant] has inflicted hurt on both me and my birth mother and placed each of us in an awkward and emotional position. [Appellant] has taken this matter too far, even for him, this is a violation of my privacy."
Following a hearing, the trial court found the birth mother's testimony would not be relevant, granted Respondent's motion for a protective order, and ordered Appellant to pay the attorney fees and costs incurred by Respondent in bringing the motion.
In June 2016, Appellant requested a TRO against Respondent to prevent her from allegedly conducting surveillance of Appellant, his current wife, and the current wife's children. The request was denied pending a hearing.
The evidentiary hearing on Respondent's request for a DVRO began in August 2016. During opening statements, after Appellant requested a recess, the following colloquy occurred:
"[The Court]: Let the record reflect that Mr. M[.] just had an outbreak in my court. I did not see him. I was looking down, but I heard commotion at the opening statement, to which counsel had to settle his own client down. My bailiff has got up from his seat.
"Mr. M[.], you are to sit quietly and pay attention. If you don't want to pay attention, do not disrupt this court.
"Mr. Travieso [Appellant's counsel]: Your Honor, if I may respond, briefly, Mr. M[.], I understand, reacted negatively, but the court has to understand as well that . . . there's allegations that are being made that are not in this restraining order or in the request for the restraining order. They are being brought up for the first time right now. They have nothing to do with what this is about, and
"The court: Let me stop you. You have done that four times. What you have said to me is that prior allegations of abuse cannot be brought to the court's attention as we look at the present abuse that is alleged. I have overruled that.
"You don't have to remind me of what you're doing. I heard what you're doing, and I found it was legally not sound. . . .
"The facts, as I think they will come out, [are] to be shared. And if they don't come out, the court does not consider them if they don't come out in the evidence. That does not address the issue of your client's outburst.
"Did you want to address your client's outburst, even though he reacted negatively? Is there something that you would like the record to reflect about that?
"Mr. Travieso: I would like the record to reflect simply that Mr. M[.] became upset on hearing allegations previously not alleged against him, in any proceeding before this court that accused him of, among other things, criminal conduct, as well as unfitness as a parent. [¶] . . . [¶]
"The court: Mr. M[.], you have a right to be at all proceedings and have an attorney represent you. You do have an attorney. If you would like to voluntarily leave the proceeding at this time and not be present, if you don't believe that you can control your behavior, the court would allow you to step outside. [¶] Do you believe that you will be unable to control your behavior in the courtroom?
"Mr. M[.]: I will be able to control my behavior, your Honor."
Respondent testified that in 2007 or 2008, Appellant became angry and threw a milkshake at the dashboard of the truck in which Respondent was a passenger. The milkshake hit Respondent.
In February 2008, while on vacation in Argentina, Appellant physically threw Respondent out of their hotel room and locked Respondent out without her purse, money, or identification. Respondent was scared and frightened.
In March 2009, the police raided the home in which Respondent and Appellant were living. Afterward, Appellant became "paranoid and suspicious, delusional." Appellant moved the family out of that home, suddenly, in the middle of the night.
In June 2009, Appellant punched a hole in the wall of Respondent's residence. In July, Appellant pounded holes in the floor with a hammer. On both occasions, Appellant was in "a rage" because the dog had urinated on the floor. Respondent took photos of the damage because she was scared, and believed she might need evidence of Appellant's actions.
In June 2010, Appellant gave Respondent an ultimatum to choose between Appellant and Respondent's family; Respondent chose Appellant and did not see her family for more than three years. Appellant threatened that he would leave Respondent if she saw her family. Therefore, Respondent did not attend her father's funeral in August 2010.
In November 2010, while on a vacation in Hawaii, Appellant told Respondent she was lazy and ungrateful and threw a salad over her. Respondent was scared and felt worthless. One of their children was napping in the room next door when this happened.
On several occasions, Appellant threw a trash can at Respondent and/or shook the contents of a trash can onto Respondent. These actions often occurred when Appellant was "manic, angry, in a rage," and sometimes because Respondent would not have sex with Appellant. One of their children was present on one occasion.
In the Spring of 2011, Appellant, Respondent, and one of their children were driving to visit a friend in the hospital. The child threw up in the car, and Respondent told Appellant she would not take a sick child into the hospital. Appellant became angry, turned the car around, and started driving erratically. Appellant then demanded that Respondent give him her engagement ring. When Respondent refused, Appellant's driving became more erratic. Respondent eventually gave Appellant the ring and Appellant threw it out the car window. Respondent was scared and believed they were going to crash. The ring was never recovered.
In March 2012, Appellant became mad because their electricity was cut off, and he kicked the bannisters on the stairs, destroying them. When the phone service was turned off, Appellant began screaming and punched the glass shower door, causing it to shatter. At the time, their eldest child was in the house and Respondent was pregnant.
In April 2012, Appellant became angry because he believed Respondent was not being nice enough to Appellant's father. When Respondent, who was then eight months pregnant, tried to go upstairs to avoid a confrontation, Appellant pushed her from behind, causing her to hit her abdomen on a baby gate. Sometime after their second baby was born, the baby was lying on a blanket in the living room. Appellant became angry, yelled, and picked up and threw a table toward Respondent; it landed about a foot from the baby.
In August 2012, Appellant threw a plate with food at Respondent; the food landed on Respondent's shirt and on the kitchen counter. Appellant had thrown milk, soda, and noodles at Respondent several other times.
In October 2012, Appellant broke other bannisters in the house while yelling and angry. He took the door off the master bedroom so Respondent could not lock herself in. When she was scared, Respondent would stay in their eldest child's bedroom for days at a time.
In August or September 2013, Appellant used a sledgehammer to dent the body and shatter the windshield of his father's truck. While hitting the truck, Appellant was screaming into the phone while leaving a voicemail message for his father.
The night before Easter 2014, Respondent told Appellant she had called a domestic violence shelter. The next day, Appellant took Respondent's phone and deleted all the disparaging texts he had sent Respondent, broke Respondent's phone, and threw Respondent's laptop on the ground.
On or about May 17, 2014, Respondent was in the living room with the children when Appellant came downstairs and kicked down the baby gates. He was angry because Respondent did not have sex with him. He banged the cupboards and screamed at Respondent. Appellant also screamed at their eldest child, "Mommy doesn't love Daddy" and "Mommy wants to take you away from Daddy." Respondent threatened to call the police if Appellant did not stop. On other occasions, Appellant had called Respondent a bitch in front of their oldest child, who then repeated it.
After Appellant left the house that day, Respondent decided to leave. After Respondent moved out, Appellant was initially very nice when they communicated by e-mail.
Appellant had previously built a website about his former tenants. On the website, Appellant claimed the tenants were white supremacists, did not like Mexicans, owned guns, and drank. Appellant had also built a website on which he posted negative information about Mapletree Transportation Company and Peter Liegl after becoming angry that they did not deliver Appellant's cars to Appellant's storage facility. Appellant told Respondent he was going to build a website against Nancy West, Appellant's father's former girlfriend, with whom Appellant was angry. Appellant made disparaging comments about West and West's daughter on the daughter's Facebook page.
Since their separation in May 2014, Appellant threatened to post on a public website that (1) Respondent's mother murdered Respondent's father, was a homewrecker, and had stolen Appellant's family; (2) Respondent's brother was a drug user and dealer; (3) Respondent's mother's boyfriend was a pedophile and molested the children of Respondent and Appellant; and (4) Respondent gave up children for adoption, had had abortions, was a prostitute, was lazy and worthless, and was a slob. He also threatened to take Respondent's mother to tax court, claiming she had not paid taxes on her property. Respondent testified that Appellant's threats toward and attacks on her family horrified and scared her, and Respondent felt threatened because her family was her primary support network.
In addition to the e-mails attached to Respondent's TRO request, she also introduced into evidence messages she received from Appellant through the Talking Parents website. (Talking Parents is a website through which parents may communicate about their minor children.) Because the TRO prohibited Appellant from communicating with Respondent other than with regard to the children, all of his messages regarding other topics were acts in violation of the TRO. (Appellant refused to testify at the hearing on the DVRO about any of the post-TRO messages on the ground it could incriminate him as to his violation of the TRO.) Respondent testified Appellant violated the TRO by being present at custodial exchanges, although they were not supposed to have any contact. Appellant had failed to pay any child support between October 2015 and the date of Respondent's testimony in October 2016. (Appellant testified he had not paid child support between October 2015 and July 2017.)
Appellant's act of subpoenaing Respondent's birth mother, whom Respondent had never met and did not wish to meet, left Respondent heartbroken. Appellant had shown the birth mother photos of the children and given the birth mother information about Respondent.
Respondent was concerned about the safety and well-being of her four children with Appellant because Appellant disparaged Respondent in front of the children, and would throw and break things when he was angry. Appellant spanked the children more than Respondent thought was needed while the parties were together.
Respondent continued to feel threatened by Appellant's communications on Talking Parents. Respondent received as many as five or six harassing e-mails from Appellant every month. She felt "threatened and harassed all the time." It was "extremely exhausting" to deal with being accused by Appellant. Respondent testified that Appellant could "hold it together" for a certain amount of time, but when challenged with things he did not believe to be accurate about the children or inconsistent with his ideals, Appellant became angry and screamed at people.
After Respondent rested her case, Appellant made a motion for judgment pursuant to Code of Civil Procedure section 631.8, subdivision (a). The court denied the motion.
Appellant's current wife testified that she had been in a relationship with Appellant since September 2015, and during that time Appellant had never been violent toward her or toward any other person in her presence, or threatened violence toward her or anyone else in her presence. She said she was never afraid of Appellant being around her own children. She testified she never saw anything inappropriate in Appellant's interactions with his own children, never saw Appellant physically discipline his children, and never saw the children hurt due to Appellant's actions or inactions.
Testimony was also provided regarding Appellant's previous felony convictions and a defamation lawsuit Appellant had filed again Respondent and Respondent's adoptive mother. In its oral ruling, the trial court specifically stated that it had not considered that testimony in reaching its decision.
The court delivered a lengthy, detailed oral ruling. In relevant part, the order reads:
"The court finds by a preponderance of the evidence that the domestic violence has been shown in the case based on [Family Code section] 6320 in the breaking of the calm of the other, but the court in this [case] finds that there's conduct that would disturb the peace of another.
"The threat of building the website, I think, was a threat in order to persuade and a threat to control. The previous domestic violence issues just show a relationship based upon such. And I thought it was clear in many cases well beyond a preponderance. The court grants the order for a period of three years, all orders in effect remain. [¶] . . . [¶]
"Regarding the actions of Mr. M[.], I do agree with you on the [Appellant]'s side that a lot of discussions around the children [sic], but it's in such a form or fashion that it goes beyond discussing the children and the threats. The court has never seen a case before where . . . a party has contacted an uncontacted birth mother and then [subpoenaed] her to the domestic violence action with no purpose other than to embarrass or control a child [who] never knew her mother. Whether the child was stolen out of a hospital or the child was given up by the mother voluntarily, to contact the birth mother seemed to be for me one of the most outrageous moves I've ever seen. And it just accentuated the domestic violence. It's an issue of control.
"[Appellant] is very excited about what occurs. In one session there was seven times he approached the podium while counsel was questioning to tell counsel what to ask or what to do or how to do it. I don't know that he realized it, but it's that type of energy that the court feels caused the conduct that caused Ms. M[.] to be at a place where, at the very least, her peace was disturbed. [¶] . . . [¶]
"The court focused not on the older domestic violence, but that was just a foundation upon which showed the fear which was felt during the time the allegations that there be a website. . . .
". . . I really focused on just the allegations of sharing intimate information, whether true or not true, with the public on a website. And I think that that was clear. And I think the fear felt was legitimate. That's the basis for my reason[ing]."
The court granted a three-year DVRO containing personal conduct and stay-away orders, and awarded sole legal and physical custody of the minor children to Respondent, with visitation to continue with Appellant as previously ordered. The court ordered Appellant "not to publish any information about [Respondent] or her family members on [a] website or the internet." The court also ordered Appellant to enroll in and attend a fifty-two week batterers' intervention program and show proof of enrollment within 30 days. Appellant dismissed his request for a DVRO against Respondent.
DISCUSSION
I.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DENYING APPELLANT'S COUNSEL'S
MOTION TO WITHDRAW.
During the evidentiary hearing on Respondent's request for a DVRO, Appellant's counsel filed a motion to withdraw. A court's ruling on a motion to withdraw as counsel is reviewed for abuse of discretion. (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.)
The request for a DVRO was filed in February 2015. The evidentiary hearing did not begin until August 2016, and continued for portions of four days between August and October 2016. The hearing was then continued to July 31, 2017, more than two years after the petition was filed, and almost one full year after the hearing commenced.
The continuances of the evidentiary hearing were requested by both parties for various reasons.
On July 10, 2017, 21 days before the continued hearing date, Appellant's counsel moved to be relieved, stating there had been an irreconcilable breakdown in communication between the attorney and the client. On July 31, another attorney from Appellant's counsel's law firm appeared and requested a continuance. The trial court responded, "Here's the dilemma, I don't think I'd relieve you at this point, not in the [midst] of a [domestic violence] hearing. You're still the attorney of record. It's been a long case and we need to finish it. And so I'd require you to continue on." The attorney responded there was an "irreconcilable difference or breakdown in communication, your honor, such that [the] firm could no longer effectively represent" Appellant, and it would prejudice Appellant for the firm to remain on the case. Counsel told the court that Appellant was in the process of looking for new counsel.
The court responded, "Well, I don't mind, Mr. M[.], if you have a new attorney, that's fine. I just mind that it's not here today. And we're in the [midst] of a hearing. And how do we go forward . . . without me then striking everything. I'm not willing to do that in this case. I think the prejudice is so great to Ms. M[.]. [¶] . . . [¶] . . . Because we've gone so far in this that to say, 'Okay. We have to start over because you guys can't communicate,' you and your client. I don't find that that is as pressing as finishing the [domestic violence hearing]."
The court noted the amount of time already expended on the hearing: "So two and a half court days and then you would be asking Ms. M[.] to say, 'Let's do all that payment to [her attorney] and put it aside.' I'm not willing to do that. I think that's—especially in a [domestic violence matter]."
Appellant's counsel argued the firm could not continue to represent Appellant effectively at that point, placing them in a difficult position. The court responded: "I don't know what to tell you on that. And without more, I'm not willing to relieve you. And today, see the problem is, it's not a motion to be relieved today. We're in trial today. And the motion to be relieved should have been brought well before we're back in trial today. It's not."
When the attorney from Appellant's counsel's firm advised that Mr. Travieso, who had been representing Appellant in court during the hearing, was not available, the court responded: "Then you'll sit in. You'll give it a go. But at this point, nobody runs my court other than I. And today is trial. And I will call the bar and I will tell them that there is an attorney [who] I ordered back that [ha]s now prejudiced a case and I will ask them to open an investigation. This case is set for trial. We're going forward today. They've not been relieved."
Mr. Travieso arrived later that morning. He represented to the court that there had been an irretrievable breakdown in the attorney-client relationship not limited to purely financial issues, but also concerning the steering of the case. The court stated:
"If Mr. M[.] had another attorney he had hired, the court would allow[] him to substitute out. I'll allow Mr. M[.] to substitute you out right now if he would like to do so. He'll have to sign substitution of attorney and he would continue on in the cross-examination of Ms. M[.]. I'm not continuing the trial. I did indicate that the prejudice I thought is we're in two and a half days and if you were relieved, I would have to then declare a mistrial. As a result, the prejudice goes to the expense that Ms. M[.] has paid. You've . . . indicated that 'well, she had a restraining order for two and a half years through this process, really no prejudice.' The court doesn't agree. But the court indicated that I would allow if [Respondent's counsel] Ms. Brace's bill were paid up to today's date and the continuance of the restraining order, then I would agree to the continuance if your client would like to do so. Ms. Brace submit your billing for the domestic hearing time, not for anything else but it's about two and a half days. If that's paid in full, the court would find that the prejudice that [Respondent] would experience has now been remedied to some extent. And I would allow a continuance to bring in the new attorney with the continuance of the restraining order with all the terms previously stated. Other than that, this court's of the opinion that you've taken an oath of office to represent your client to the best of your ability. And then in so doing, you're in the [midst] of cross-examination. And whether or not your client has financial issues or doesn't like the way you're doing or the outcome so far, doesn't impact this court. One, you've acted responsibly and professionally in your questions. You've not fallen below the standard. And so the court's going to require you to continue and finish the domestic violence.
"If after the domestic violence [case], you desire to be relieved on the case, the court generally does do such. But the court at this point would not relieve you and require you to go forward on the case. I think that's meeting your oath and obligation, not just to your client, but to the court itself. Had Mr. M[.] hired an attorney and the attorney was with us today and needed a short continuance, I would have considered that. But that's not been the case."
Mr. Travieso argued that new counsel could easily get up to speed on the case because Appellant had already ordered the transcripts of the hearing. The court responded: "I understand. The shaking of . . . Ms. M[.]'s voice and the quivering of her hand during her testimony cannot be demonstrated in the transcript. And I think that any attorney [who] would come in worth their weight as an attorney would not want to step right in and they would do everything in their power to ask for a mistrial. Because the things that occur in confrontation cannot be observed through the transcript. And so for that, I disagree. So with that, the court's going to go ahead and require you to move forward."
After the court issued the DVRO, it advanced counsel's motion to be relieved to that day and granted it. The court made clear that the request to be relieved did not affect its ruling on the DVRO, and that counsel's representation of Appellant had continued to be appropriate:
"The court, Mr. Travieso, required you to remain on this case during the hearing. The court believes you fought valiantly and with legal ability in your case. I disagreed with you on some issues, but you were an advocate for the position and you did not at all fall below the standard of care that's required of an attorney, even when I forced you to go forward . . . . I didn't sanction you for that, and that's—that well could have been for not showing up that morning, but I don't hold that against [Appellant] in any way. That was—you fulfilled your obligation on this, and that had no bearing whatsoever.
"Your legal arguments and your evidence, I considered all of it, as well as yours, Ms. Brace. And I think that I closed you both down when appropriate. And so that's the basis for my ruling."
The trial court did not err. In the first place, the court did not deny Appellant's counsel's request to withdraw. That request was scheduled for hearing on a later date. The court provided Appellant with two options if he wished to excuse his counsel of record: (1) represent himself, or (2) pay Respondent's attorney fees for the two and one-half days of the hearing that had been completed. The court explained its primary concern was the prejudice Respondent would suffer if a continuance of the hearing due to the substitution of new counsel resulted in a likely mistrial. Although Appellant's counsel argued that new counsel could easily get up to speed on the case, the court disagreed, in particular because the written transcripts would not allow new counsel to observe Respondent's demeanor during her testimony. The court's ruling was well within the proper exercise of its discretion.
Further, Appellant has failed to establish any prejudice. Appellant contends that he was prejudiced because his attorney "was not working in his best interest." The trial court, however, made specific findings that Appellant's counsel had fulfilled his duties to his client, and that the court had not held it against Appellant that his counsel had argued for a continuance of the trial due to the breakdown in the attorney-client relationship.
II.
THE TRIAL COURT WAS NOT BIASED AGAINST APPELLANT AND DID NOT VIOLATE
APPELLANT'S RIGHT TO DUE PROCESS
Citing People v. Freeman (2010) 47 Cal.4th 993, 1000-1001, Appellant argues the trial court denied him due process by denying him the opportunity to be fully and fairly heard during the DVRO hearing and by denying him the opportunity to have his case decided by a neutral or unbiased decision maker. "[W]hile a showing of actual bias is not required for judicial disqualification under the due process clause, neither is the mere appearance of bias sufficient. Instead, based on an objective assessment of the circumstances in the particular case, there must exist '"the probability of actual bias on the part of the judge or decisionmaker [that] is too high to be constitutionally tolerable."'" (Id. at p. 996, quoting Caperton v. A.T. Massey Coal Co., Inc. (2009) 556 U.S. 868, 872.)
Appellant contends that the court improperly limited the scope of the testimony of his "key witness" and failed to give him the same amount of time to present his case as it had Respondent. The court did limit the scope of the testimony of Appellant's current wife. The court explained that the only issues before it were those relating to the request for a DVRO, and therefore found that testimony related solely to custody and visitation issues was irrelevant. The current wife did not meet Appellant until after Respondent had requested the DVRO, and she was not a percipient witness to any of the alleged acts of domestic violence.
Appellant also argues his current wife's testimony was relevant to proving the truth of Appellant's concerns regarding how Respondent was caring for their children, and therefore to challenging Respondent's credibility. Whether the statements Appellant made or threatened to make were true or false is irrelevant to determining whether the statements and threats were abusive. In Altafulla v. Ervin (2015) 238 Cal.App.4th 571, 575, the defendant obtained a surveillance report containing details of a romantic affair his girlfriend had had with a client. The defendant e-mailed copies of the report to friends, family, and coworkers. (Id. at pp. 575-576.) The Court of Appeal rejected the defendant's argument that the truth of the statements he made had any bearing on whether they constituted acts of abuse. "The factual accuracy of information used to otherwise harass the victims of domestic violence does not take abusive conduct outside the scope of the DVPA [Domestic Violence Prevention Act, Family Code section 6200 et seq.]." (Id. at p. 578.)
There was also no bias shown in the trial court's determination that Appellant must either call another witness or rest his case. Appellant's witness was not in court when his counsel announced that he had finished questioning Appellant's current wife, and that he would not be questioning Appellant. Counsel advised the court the witness would be present the next day. It was at this point that the court stated: "You will go forward or you will rest."
Appellant did not tell the trial court, and does not tell this court, who his last witness was and to what he or she would have testified. Therefore, Appellant has not shown he suffered any prejudice as a result of the court's ruling, even if the trial court had erred.
Appellant also contends the trial court's consideration of acts of abuse that were not alleged in the original petition led to judicial bias. Even in criminal cases, evidence of previous acts of domestic violence is not inadmissible as long as it is admissible under Evidence Code section 352 and occurred within 10 years of the current charged offense. (Evid. Code, § 1109, subds. (a)(1), (e); People v. Ogle (2010) 185 Cal.App.4th 1138, 1141.) Given the trial court's broad discretion to admit the evidence under Evidence Code section 352, we find no error.
The trial court stated that the older, unalleged acts of domestic violence were not a basis for the DVRO, but that "that was just a foundation upon which showed the fear which was felt during the time the allegations that there be a website." There is no indication that the introduction of the evidence constituted judicial bias.
Appellant also argues judicial bias toward him is established by the court's interference with his ability to confer with counsel during trial. During the court's oral pronouncement of its ruling, it noted: "Mr. M[.] . . . is very excited about what occurs. In one session there was seven times he approached the podium while counsel was questioning to tell counsel what to ask or what to do or how to do it. I don't know that he realized it, but it's that type of energy that the court feels caused the conduct that caused Ms. M[.] to be at a place where, at the very least, her peace was disturbed." At another time, when Appellant was testifying as an adverse witness during Respondent's case, the following occurred:
"The Court: Mr. M[.], are you exercising your Fifth Amendment rights on that question?
"The witness: Yes. May I have an opportunity to confer with counsel for a moment?
"The Court: No."
Appellant offers no authority for the proposition that after invoking his right against self-incrimination in responding to one question, he was entitled to confer with counsel before the next question was asked.
Appellant also contends that the court's admonishment of his counsel during trial evidences the court's bias toward Appellant. This contention is contradicted by the court's statements at the end of the trial that we quoted, ante.
Finally, Appellant contends that the court was biased against him based on its reaction to Appellant's attempt to depose Respondent's birth mother. The trial court specifically found that Appellant's intent in seeking this deposition was not to pursue permitted discovery, but to cause distress to Respondent. The court found that this "outrageous move[] . . . accentuated the domestic violence." Nothing in the court's comments establishes any bias against Appellant.
III.
THE DVRO IS NOT AN OVERLY BROAD PRIOR RESTRAINT OF SPEECH IN VIOLATION OF THE
FIRST AMENDMENT.
The grant or denial of a restraining order under the DVPA is reviewed for abuse of discretion. (N.T. v. H.T. (2019) 34 Cal.App.5th 595, 601.) Appellant contends that the trial court's order that he is "not to publish any information about [Respondent] or her family members on [a] website or the internet" is a prior restraint on speech in violation of the United States and California Constitutions. (U.S. Const., 1st & 14th Amends.; Cal. Const., art. I, § 2, subd. (a).) Appellant also argues the order is overbroad because it prohibits Appellant from even posting pictures of his children on Facebook.
"[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights." (Nebraska Press Ass'n v. Stuart (1976) 427 U.S. 539, 559.) "Although stated in broad terms, the right to free speech is not absolute." (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 134.) For instance, "an injunctive order prohibiting the repetition of expression that had been judicially determined to be unlawful did not constitute a prohibited prior restraint of speech." (Balboa Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, 1153.) The trial court found that Appellant's threats to post inflammatory material regarding Respondent and Respondent's family members on the internet, coupled with the language from Appellant's actual e-mail messages constituted abuse under the DVPA. (Fam. Code, §§ 6203, subd. (d), 6218, subd. (a), 6320, subd. (a); Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1230-1231 [affirming order restraining party from defamation and harassment, but remanding to tailor the order]; Phillips v. Campbell (2016) 2 Cal.App.5th 844, 853-854 [if First Amendment claim had been preserved, court would conclude speech that constitutes abuse under DVPA is not protected]; In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1428 [order prohibiting dissemination of information was not a prior restraint because the dissemination was abuse under the DVPA and could not be protected speech].) The trial court's order was not a prohibited prior restraint on free speech.
Appellant also argues that the DVRO is overly broad. Appellant relies on Molinaro v. Molinaro (2019) 33 Cal.App.5th 824, 826, in which the court held the portion of a DVRO prohibiting the husband from posting anything about his divorce on Facebook was an invalid prior restraint on speech. In that case, the husband objected to the no posting prohibition at the time the court orally announced the order, and again in a motion for a new trial and/or to vacate the order. (Id. at pp. 829, 830.) In this case, Appellant did not object in the trial court to the no posting prohibition in the DVRO, and the issue has therefore been forfeited. (People v. French (2008) 43 Cal.4th 36, 46; Quiles v. Parent (2018) 28 Cal.App.5th 1000, 1013.)
We requested that the parties submit supplemental letters briefs addressing this issue; Respondent submitted a letter brief, while Appellant did not. At oral argument, Appellant's appellate counsel conceded no objection had been raised in the trial court to the alleged overbreadth of the DVRO. --------
We acknowledge that "Constitutional claims raised for the first time on appeal are not subject to forfeiture only when 'the new arguments do not invoke facts or legal standards different from those the trial court itself was asked to apply, but merely assert that the trial court's act or omission, insofar as wrong for the reasons actually presented to that court, had the additional legal consequence of violating the Constitution. [Citations.] However, '[a] party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct.'" (People v. Tully (2012) 54 Cal.4th 952, 979-980.) In the present case, the constitutional arguments are tied inextricably to the specific facts of the case; the terms of the DVRO that are allegedly overbroad are tethered directly to the things Appellant has said, written, and posted online.
At oral argument, Appellant's counsel argued that Appellant could potentially be found in violation of the DVRO for posting photographs of his children online. Our opinion is without prejudice to any rights Appellant may have under the DVPA to seek a modification of or exemption from the DVRO to permit him to post photographs of his children online. We express no opinion as to the merits of any such request.
DISPOSITION
The order is affirmed. Respondent to recover costs on appeal.
FYBEL, J. WE CONCUR: MOORE, ACTING P. J. GOETHALS, J.