Carlisle v. Carlisle (In re Marriage of Carlisle)

Full title: In re the Marriage of CAROL and WILLIAM CARLISLE. CAROL CARLISLE…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)

Date published: Sep 29, 2017

No. C079547 (Cal. Ct. App. Sep. 29, 2017)

Opinion

C079547

09-29-2017

In re the Marriage of CAROL and WILLIAM CARLISLE. CAROL CARLISLE, Respondent, v. WILLIAM CARLISLE, Appellant.

MURRAY, J.

NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. PFL20150037)

Petitioner-respondent (wife) and respondent-appellant (husband) were in the process of marriage dissolution when wife filed a petition in the trial court for a restraining order under the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.).¹ The trial court denied an initial temporary restraining order pending a hearing on the matter. After a hearing, the trial court issued a two-year domestic violence restraining order and awarded $3,000 in attorney fees to wife's attorney. Husband, an attorney, appeals in propria persona.

1 Further undesignated statutory references are to the Family Code in effect at the time of the proceedings.

Husband contends that: (1) the initial denial of the temporary restraining order prior to the hearing had preclusive effect, barring the court from issuing the domestic violence restraining order; (2) the trial court should have honored the parties' stipulation to a non-CLETS restraining order;² (3) at the hearing, the trial court improperly threatened husband with a temporary restraining order if he requested a continuance, coercing him to proceed before he was sufficiently prepared, or the court improperly made a temporary restraining order a condition precedent to its granting of a continuance, and that the court rushed him during the hearing; (4) the domestic violence restraining order was not supported by substantial evidence; and (5) the award of attorney fees was not supported by substantial evidence.

2 "CLETS" is an acronym for the California Law Enforcement Telecommunications System, a computer system operated by the Department of Justice. (People v. Martinez (2000) 22 Cal.4th 106, 113; see Gov. Code, § 15151.) As we discuss, post, restraining orders issued pursuant to the DVPA are required to be entered into CLETS to facilitate enforcement. (§ 6380.)

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Wife's Petition for Domestic Violence Restraining Order

On April 8, 2015, wife filed a request for a domestic violence restraining order (Judicial Council Form, form DV-100) against husband, seeking protection for herself and the couple's 16-year-old daughter, Elizabeth.

In a declaration in support of the petition, wife stated that, on February 20, 2015, husband sent wife text messages reading: " 'And you had the nerve to accuse me of whoring around' "; " 'People saw Elizabeth walk home from school' "; " 'From across the street, it is easy to see that you are still not home. Too busy with your whore to take care of my daughter?' " Wife responded: " 'Stop the harassing texts. If you continue with this behavior I will call the police.' " Husband then replied: " 'What part bothers you? You seem to be fascinated with whores,' " and " 'I hired a private investigator right after you spent $7,000 on your whore attorney.' " Wife stated that the check she wrote as a retainer for her attorney cleared on December 15, 2014. Therefore, she believed husband had been having her followed by a private investigator since that time. Husband also told Elizabeth that he knew everywhere wife had been all day, and that he knew that Elizabeth had walked home from school, which was unusual. Wife called the police to report husband's harassment.

On February 28, 2015, husband sent numerous text messages to wife asking to come to the house to retrieve items and to see Elizabeth. However, wife had told him the day before that they would not be home "because of fear of his behavior." While wife was out, husband sent numerous text messages stating that he was watching the house from his mother's house across the street. He also insisted on being allowed into the residence, and threatened to have a locksmith get him into the house. Wife agreed to a civil standby. Husband responded that he would not agree to a civil standby until the next day, and further texted wife: " 'You have become a horrible person and a horrible mother.' "

On March 1, 2015, a civil standby was arranged so husband could remove some items from the residence. Husband removed only record albums from the house over the course of three hours, a handful at a time and very slowly. Wife asserted that husband's "actions appeared to be primarily directed at harassing [her]. [Husband] made repeated derogatory statements directed at [her], and the police officer had to repeatedly remind [husband] not to try to pick an argument with" her. (Boldface & underscoring omitted.)

On March 15, 2015, husband's mother, who lived across the street from wife and who has dementia, called wife. Wife was not at home and could not check on husband's mother, so wife sent a text message to husband advising him that he should check on his mother. Husband responded by sending the following text message: " 'She is in intensive care somewhere. It is Sunday and so I don't know where. I have been calling everywhere. I did leave a message for her, though, that you did NOT ever want to be bothered with her problems whether now or in the future. Basically, your message is, "F**k off and die." She has promised to not bother you in the future unless her carcass might somehow interfere with you driving your newest car for your various secret and private escorts.' " The following day, wife spoke with the conservator for husband's mother, who informed her that husband's mother had not been in the hospital on Sunday and thus husband had been lying. Wife stated that husband's "irrational and outrageous text illustrates his anger toward [her] and possible mental instability, and was an attempt to harass" her. (Boldface & underscoring omitted.)

Wife stated that on March 30, 2015, husband sent repeated harassing text messages to Elizabeth. In one message, husband stated that he had been across the street taking care of his mother, and asked if Elizabeth would like to visit for a few minutes. Husband sent this message at least 13 times. Husband's text messages to Elizabeth also included messages stating: " 'You let her control you,' " which he sent at least five times; " 'She is not even there with you, but somehow she knows that I am trying to not lose my daughter. Did you know that?' " which he sent at least seven times; and " 'Your mama is monitoring my attempts to contact you. Did you know that?!' " sent at least four times. Elizabeth became upset and asked wife to make husband stop sending the messages. However, husband persisted.

Wife further stated that Elizabeth had observed husband over several weeks in February and March 2015 driving his car in the circular driveway in front of their residence while staring into the house. This caused wife distress and fear for her safety, as she believed he was working up the nerve to do something more.

On April 4, 2015, wife was returning home with Elizabeth when she noticed husband was following her. Wife did not drive directly home, instead turning off before arriving at the road where their home was. She saw that husband proceeded to drive toward the house. When wife arrived at home, she noticed that husband's car was not at his mother's house across the street. A few minutes later, wife saw husband walking away from their house and trying to hide in the woods in the yard. Wife yelled at husband to go away. She then drove around the area and discovered husband's car on another street. When husband saw wife, he again hid in the woods. Wife yelled at husband to leave her alone and to stop sneaking around the house. When wife returned home, in the driveway, she found a black plastic device with a large magnet labeled " 'Spy Spot.' " Wife believed the object to be a tracking device that had fallen off the bottom of her car, which had been parked in the driveway. Wife believed that husband placed the device on her car. Wife noted that the device can be tracked by a smart phone, and also noted that she had received a number of messages from Verizon that the family's shared cell phone data usage had far exceeded its normal range. Wife believed that the spike in usage was the result of husband tracking her vehicle with the Spy Spot device.

Wife called police and filed a report. Wife asserted that husband was not deterred from his stalking behavior because police did not do anything about it even when she called and filed reports.

Wife stated that husband admitted in a text message to Elizabeth that he had been in the woods around their house. In that message, dated April 4, 2015, husband wrote: "I had hoped to leave you some 'Easter' treats but got caught. Sorry. I stink at being the Easter rabbit." Wife asserted that, when she saw husband, he was not carrying Easter treats to deliver and he did not leave anything for Elizabeth. Additionally, wife asserted that husband had adjusted Elizabeth's phone settings to control her activity as well as her ability to communicate with wife via text messages.

On April 6, 2015, wife received text message notifications from Verizon indicating that husband had sought the location of her cell phone, and he had deactivated the cell phone locator feature of his own cell phone. Two of the couple's daughters received similar messages. Husband knew Elizabeth was staying with her older sister in Berkeley even though neither the daughters nor wife told him about this. When wife arrived at home in the afternoon, husband was in the yard. Wife observed husband running away and attempting to hide among the trees in his mother's yard across the street. Wife chased husband and yelled at him to stop stalking her. Wife stated that husband "just shot [her] the bird and said F***k You!" Wife called the police but there were no officers in the area to take a report before husband left.

In addition to these specific instances of alleged harassment, wife asserted that husband was an alcoholic; smoked marijuana and used other drugs; expressed suicidal ideations; was controlling of wife and the children for years; and was verbally abusive to wife and the children. She also asserted that, on one occasion, husband threw a remote control at her, missing her head but shattering the screen of their television. On another occasion, husband got angry at wife and the children and threw their 12-foot Christmas tree out the front door to punish them. Other ways in which he would punish wife and the children included hiding possessions, turning off the electricity in parts of the house, and ignoring them. On one occasion, when wife went for a walk in the neighborhood, husband followed her slowly in his car, glaring at her in an intimidating manner.

Wife stated that she was concerned about husband's "stalking and abusive behavior." She stated that his conduct had escalated and now included invading her property and placing a tracking device on her car.

In support of her petition, wife submitted a number of exhibits, including screen shots of Verizon notifications indicating that a family member "requested your location" and that "[y]ou can no longer sign in to Family Locator to locate family. Contact the account owner for details"; screen shots of numerous text messages from husband to Elizabeth and text message exchanges between husband and wife; photographs purportedly showing husband's car on the property and photographs of the "Spy Spot" device; a printout from a website selling the Spy Spot; and a police report dated February 22, 2015, describing the events which occurred on February 20, 2015.

Notice of Court Hearing

A notice of court hearing (Judicial Council Form, form DV-109) was filed in the El Dorado County Superior Court on April 8, 2015. The hearing date was set for April 24, 2015. The trial court denied wife a temporary restraining order pending the hearing, checking the box on the form stating that the facts in the petition did not show reasonable proof of a past act or acts of abuse, and further stating: "Appears both parties are engaging in frustrating behavior." A proof of personal service form (Judicial Council Form, form DV-200) is in the record, indicating that husband was served with the notice on April 20, 2015.

Hearings

The trial court conducted two separate hearings on April 23 and 24, 2015.³ The hearings were presided over by the same judge who denied the temporary restraining order.

3 In the April 23 hearing, the court addressed matters related to the parties' marital dissolution, including where the parties were to live, civil standby arrangements, custody and visitation, and child and spousal support. The hearing on the restraining order took place on April 24, 2015. Comments by wife's attorney, wife, and defendant during the first hearing are included here insofar as relevant to the matters before us.

Preliminary Matters and Comments by Wife's Attorney and the Parties

As the hearing commenced on April 23, 2015, husband asserted that he was only served with the domestic violence restraining order papers "a couple of days ago." The court indicated that they would address that matter the following day. Wife's attorney indicated that, as set forth in a supplemental declaration,⁴ husband had been arrested for felony assault on a process server.⁵ Additionally, on April 21, 2015, according to wife's counsel, husband broke into the house when Elizabeth was there. Elizabeth was frightened and called the police.⁶ Husband asserted that there was no break-in. He asserted that "the door was open, the windows were open. There is no breaking in. There is no locksmith. Elizabeth wasn't there." At this point, the trial court advised husband that he had the right not to make any incriminating statements, and indicated that he appeared to be "potentially on the verge of making incriminating statements."

4 This supplemental declaration does not appear in the record on appeal.

5 Husband states on appeal that no charges were ultimately filed against him and that the district attorney's office had dropped the matter. Wife asserts that, because there is no evidence in the record of this alleged development, we should disregard husband's representations. Wife relies on In re Aaron B. (1996) 46 Cal.App.4th 843, 846, in which the court stated, " '[A] party is precluded from urging on appeal any point not raised in the trial court.' " As a general matter, we will not receive and consider postjudgment evidence that was not before the trial court, and rely on such evidence outside of the appellate record to reverse judgment. (Cf. In re Zeth S. (2003) 31 Cal.4th 396, 400 [generally, in a juvenile dependency appeal from an order terminating parental rights, Court of Appeal may not receive and consider postjudgment evidence not before the juvenile court and rely on that evidence outside of appellate record to reverse judgment].) We do not depart from that general rule here. In fact, husband has not presented evidence of these developments; he merely alleges these developments in his opening brief.

6 Wife's attorney raised these matters in the context of discussing whether visitation with Elizabeth should be supervised.

In discussing the scheduling of another civil standby, husband stated that one of the items he hoped to recover was a shotgun that belonged to his father. Wife stated that "[g]iven the recent felony assault accusation against [husband] and the restraining order pending, [she] [was] very concerned about [husband] having possession of those guns." The trial court observed that there was no restraining order in place at the time, and therefore stated that it did not have the authority to interfere with husband's right to his guns.

At the beginning of the hearing on April 24, 2015, wife's attorney again mentioned the supplemental declaration that had been submitted after the denial of the temporary restraining order, and stated that there were additional circumstances "increasing [wife's] concern." Among her concerns was the fact that husband was seeking to obtain a shotgun from her residence. According to wife's attorney, "[o]n Monday, there was an arrest for felony assault of our process server and vandalism as well. I think it related to the process server's glasses that got knocked off. Allegedly [husband] somehow had a physical altercation with the process server." Additionally, the following day, after husband was released from jail, Elizabeth contacted police because, when she came home from school, husband was in their residence. Wife's attorney acknowledged that, at that time, there was not a court order in place providing for wife's exclusive use and possession of that residence.⁷ However, there was an agreement between the parties dated December 17, 2014, stating that she would have exclusive use of that property, and that husband would not enter upon the property without wife's permission. Further, wife's attorney stated that, according to a letter from husband's doctor, husband " 'has been seen in the Sacramento office because of significant psychological symptoms, which apparently make him unable to work until the end of May.' "

7 Such an order was issued at the April 23, 2015, hearing.

With regard to the evidence previously submitted in support of the petition, wife's attorney emphasized that wife and Elizabeth observed husband on the property and hiding in the woods, and he admitted doing so in a text message to Elizabeth. Wife's attorney asserted that the evidence demonstrated that husband was keeping wife under surveillance, and also emphasized the exhibits which showed that husband was tracking wife or Elizabeth's whereabouts using their cell phones, and he had attached a vehicle tracking device to wife's car. Husband also stated in a text message that he had a private investigator follow wife. Wife's attorney asserted that husband was stalking wife, and that he was using his mother's house across the street from their house to do so. According to wife's attorney, "his actions have been increasing to a level that are very concerning," and wife was worried about whether "something big and horrible [was] going to happen." Wife's attorney also emphasized that husband, who was representing himself, was refusing to communicate with him and was behaving in a hostile fashion toward him. Wife's attorney noted that he had attempted to meet with husband to discuss the options of "a non-CLETS family law stay-away order." However, husband refused to talk to him.

Wife's Testimony

Wife testified that the facts in her application for a domestic violence restraining order were true and correct. Asked by the court whether she had any direct evidence that husband was responsible for placing the vehicle tracking device on her car, she responded: "Very strong circumstantial. Nobody else would want that. I knew he was following me. He hired a private investigator. It was not in the driveway that I saw before then. And then I went out to the driveway to try to see if he was around our property, because he had taken a side way, and when I came back, I saw it in the driveway. There's a bump right there in the gravel. It apparently knocked off my car right then, so I found it right then." Wife stated that, according to online information, the device had to have its battery changed every two weeks. Wife testified that neither she nor her daughter saw the vehicle tracking device in the driveway earlier, that it was not there before, and, when they returned, it was very apparent in the driveway. She testified that only ten minutes or less had passed between when she left and returned, and "there was no other traffic through there." Wife also emphasized that this corresponded to when she saw husband on the property, and that "he was coming from the direction of [her] car when [she] saw him . . . walking to the side of the woods. So it looked like he was probably changing the battery because he knew I wasn't home. And he seems to know when I'm coming and going."

Wife also stated that husband had sent her a text message on an occasion when she was not home and Elizabeth was home alone, stating that he knew wife was not home. Wife testified that this made her frightened for Elizabeth. She also testified that, when she called police, they refused to do anything because she did not have a restraining order.

Wife testified that, earlier in the week, within hours after being released from jail for assaulting "somebody," husband showed up at her house knowing that she was not home. Elizabeth found husband in the house when she arrived at home, and she told him to leave. Elizabeth was scared. She called wife, who told her to call the police. However, the police refused to send anyone to the house because there was no restraining order in place.

Wife testified that husband's actions were scaring her and Elizabeth. She testified that she was afraid to leave Elizabeth alone, and she was afraid to be at the house.

Wife testified that husband sends texts that make no sense and are "scary." She emphasized the hostile and harassing nature of husband's text messages. She stated that, as demonstrated by exhibit E, husband texted Elizabeth "like 20, 30 times in one evening, 'Can I see you? Can I see you? Can I see you? I'm across the street.' She's scared."

Lastly, wife stated that husband had mentioned both depression and suicide multiple times. She asserted that this should be considered in addition to the harassing texts, hiding on the property, the vehicle tracking device, and the fact that he was arranging to retrieve a gun from her property.

Wife's attorney noted that wife would "feel more comfortable with a CLETS order. But if the Court didn't feel there was enough evidence before it do to that at this time, I think [wife] would be okay with . . . a non-CLETS family law order."

Husband's Evidence

Husband presented the testimony of Dain Weiner. Weiner testified that he had known husband for approximately 15 years. He never knew husband to be an angry person. He described husband as friendly and calm. Based on his experience, Weiner did not think of husband as someone who would engage in violent behavior. On cross-examination, Weiner acknowledged that his communications with husband over the prior 15 years were limited to communications in court and "on Main Street," and "run[ning] into him now and then at various places." The trial court asked Weiner when the last time he had contact with husband was, and Weiner responded that it had been approximately six months or more. Weiner testified that he and husband did not socialize, and that his interaction with husband was limited to seeing him in court or "seeing him around once in a while."

Husband testified that there had never been any accusations of domestic violence leveled against him. According to husband, wife "sometimes loses it. She's thrown things at me, and she's attacked the office equipment, things like that." Husband also asserted that he had no history of arrests "until defense counsel arranged to have someone come over to my place and harass me." When the court said there was no evidence of that, husband asserted that he was harassed before the arrest and assumed it was wife's attorney who had arranged for that individual to be there.

Husband acknowledged that he used the "family locator" feature on his Verizon cell phone, and as a result located Elizabeth and her older sister in Berkeley. Husband testified that he turned that service off "about a day later because it seemed like it was pointless."

Husband denied ever being in the yard. Husband testified that he had received a call from the caregivers who take care of his mother, stating that they needed him to fix his mother's door locks. Husband told them that he could not come over because wife would claim that he was stalking her. He said that the only way he could come over would be if someone looked across the street to ensure that wife was not home. They told him that wife was not home. Husband went to his mother's house, parking his car down the hill. Husband took no more than 10 steps into his mother's driveway when wife appeared, screaming at husband, claiming that he was stalking her. Husband went to his mother's house, fixed the lock, and left after approximately five minutes.

Husband denied that he owned a "tracker," and stated that, "if you can operate a tracker using a cell phone, I would have no clue how to do that."

Husband testified that, on March 30, he went to his mother's house to make a repair to her water system. Once he was finished, he sent a text message to Elizabeth stating that he was across the street and asking if she wanted to see him. He did not explain the multiple texts he sent.

Husband denied making repeated comments about his wife to the deputy present for the civil standby, and he denied hiring a locksmith. He also denied repeatedly driving into the driveway.

Regarding the day Elizabeth came home and found him at the house, husband testified that he saw a car pull up and Elizabeth got out. She asked how he was doing, and he responded that he was getting more of his belongings. Elizabeth then went in the house. Husband testified that, had she wanted him excluded from the house, all she had to do was lock the door because he was outside.

Husband denied ever breaking into their home. He did testify at one point that "I did do a little snooping early on. But that pretty much ceased and desisted after the first month or so. Because, I mean, really it's none of my business anymore unless it affects me . . . . Whatever she wants to do, whatever. I really don't care anymore."⁸

8 In his opening brief and reply brief, husband stated that he was unaware of wife's request for a restraining order until he was served with documents on April 20, 2015. He asserted that he was parked in his car when a "rather strange person" he assumed to be a " 'street person' " approached him. Eventually, this person became more provocative, and said, " 'Wait 'til you see what they did to your office.' " The person then threw papers at husband, an altercation ensued, and husband was arrested. Husband asserted that the process server's remark about his office concerned him, which is what caused him to go to their house on April 21, 2015, to check on his belongings he still had in his office at that house. However, notwithstanding these representations in his briefing, in the hearing before the trial court, husband did not testify to this specific sequence of events pertaining to the process server's remark being the impetus for husband's visit to the house on April 21, 2015. At the hearing, the husband did not otherwise explain the reason for his visit to the house to retrieve property after he had the chance to do so during the civil standby other than testifying that he told his daughter he was there " '[g]etting more of [his] stuff.' " He also stated in the hearing on April 23, 2015, in connection with the marital dissolution proceeding, that he had approximately 40 years worth of belongings at the house, and that it would take days to collect it.

Husband told the court: "Now, if we want mutual restraining orders, non-CLETS restraining orders on each other about the different properties we talked about yesterday, if that would make her feel better, then fine. Let's do that. But I don't want any of this other hoo-ha going on with it and all this nonsense like this." Husband also asserted: "she has to pay her own attorney's fees, that's the other part of the deal." The trial court reminded husband that it would decide on attorney fees. Husband stated that he was offering terms for a stipulation. The trial court stated that it did not "do the mutual stay-away orders that are non-CLETS. Before the Court is a request for a temporary restraining order, that would be a CLETS order."

Wife's attorney indicated that she was indeed requesting a CLETS domestic violence restraining order, as well as attorney fees in the amount of $3,000.

Husband again asserted that the parties should have agreed upon a non-CLETS order, and the trial court again stated that it did not issue non-CLETS orders.

Argument before the Trial Court

Wife's attorney asserted that husband had failed to explain or refute a number of the allegations in wife's petition. Wife's counsel pointed out that husband admitted to "snooping," and argued that while husband testified that he had stopped, wife insisted that he had not. Husband did not deny hiring a private investigator. Moreover, wife's attorney asserted that, even if husband had not placed the tracking device on wife's car, the private investigator husband hired may have. Wife's attorney requested a CLETS domestic violence restraining order for at least one year, "covering all personal conduct orders, stay-away orders, a hundred yards would be agreeable, that husband not have any access to the guns, and that those be turned over to local police or any guns." Wife's attorney also requested $3,000 in attorney fees.

Husband asserted that the guns were family heirlooms. Husband also asserted that a 100-yard stay-away order would not work because he had to be able to get to his mother's house.

Trial Court's Ruling

The trial court found that a past act or acts of abuse had been shown by a preponderance of the evidence based on the papers submitted by wife and the testimony presented at the hearing. The court found that the evidence established the existence of abuse pursuant to section 6203, including behavior enjoined pursuant to section 6320, subdivision (a). The court also found the presence of conduct constituting disturbing the peace for domestic violence restraining order purposes as defined in Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140 (Burquet). The trial court also expressed concern that "certain behaviors are escalating." Therefore, the trial court stated that it would issue a domestic violence restraining order for a period of two years. Both wife and Elizabeth were to be protected parties under the order. The court also awarded $3,000 in attorney fees to wife's attorney.

Domestic Violence Restraining Order

On April 24, 2015, the trial court issued a domestic violence restraining order after hearing (Judicial Council Form, form DV-130) consistent with its ruling, including the award of attorney fees. The order expired April 24, 2017.⁹

9 We have not received supplemental briefing on whether issues related to the restraining order are moot.

DISCUSSION

I. Effect of Denial of Temporary Restraining Order

Husband asserts that the trial court's denial, on April 8, 2015, of wife's request for a temporary restraining order pending the hearing in this matter should have preclusive effect, barring the granting of the domestic violence restraining order issued here. According to husband, the trial court granted the domestic violence restraining order based on all of the same information which led to the court's prior denial of a temporary restraining order. Thus, husband asserts that the "prior denial should be given the effect of res judicata." We disagree.

As a preliminary matter, husband did not raise this issue before the trial court and instead advances this argument for the first time on appeal. "It is axiomatic that arguments not raised in the trial court are forfeited on appeal." (Kern County Dept. of Child Support Services v. Camacho (2012) 209 Cal.App.4th 1028, 1038.) Thus, husband forfeited this contention. In any event, husband's contention also fails on the merits.

" 'The granting or denial of a preliminary injunction does not amount to an adjudication of the ultimate rights in controversy. It merely determines that the court, balancing the respective equities of the parties, concludes that, pending a trial on the merits, the defendant should or that he should not be restrained from exercising the right claimed by him.' " (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528 (Katz).) "The general purpose of such an injunction is the preservation of the status quo until a final determination of the merits of the action." (Ibid.) "[I]t is clear that a denial of a [temporary restraining order] or preliminary injunction is not res judicata in an appeal from the final judgment." (Benasra v. Mitchell Silberberg & Knupp (2002) 96 Cal.App.4th 96, 115; see also Upland Police Officers Assn. v. City of Upland (2003) 111 Cal.App.4th 1294, 1300 (Upland) [a "request for temporary equitable relief pending the determination of a case on its merits is an entreaty to the court to exercise its discretion and a ruling thereon is not a determination of the merits of the case"; "[s]uch a pretrial ruling may not be given issue-preclusive effect with respect to the merits of the action"].) Thus, the trial court's denial of the temporary restraining order pending a hearing did not constitute an ultimate determination on the merits.

When the temporary restraining order was issued, the parties had not yet enjoyed a full and fair opportunity to litigate the matter at a hearing. Nor had the trial court had the opportunity to ask clarifying questions, e.g., the court's question about what evidence wife had indicating husband was responsible for placing the vehicle tracking device on her car. Contrary to husband's contentions, the denial of the temporary restraining order did not have any preclusive effect on the resolution of the ultimate merits.

II. "Stipulation" to a Non-CLETS Restraining Order

Husband insists on appeal that the parties "had an agreement to stipulate to a civil, non-CLETs restraining order," and that the trial court should have honored that stipulation rather than issuing the domestic violence restraining order from which he appeals. Husband's contention is meritless.

We are aware that some family law courts issue "non-CLETS" restraining orders in lieu of statutory domestic violence restraining orders. However, there is no statutory authority for the issuance of a non-CLETS restraining order by the trial court, although parties are generally free to enter into stipulations upon the trial court's approval. (See generally California State Auto. Assn. Inter-Ins. Bureau v. Superior Court (1990) 50 Cal.3d 658, 664 [entry of a stipulated judgment is a judicial act that a court has discretion to perform; although a court may not add to or make a new stipulation without mutual consent of the parties, it may reject a stipulation that is contrary to public policy, or one that incorporates an erroneous rule of law].) Thus, it would not have been an abuse of the trial court's discretion to refuse to issue a so-called non-CLETS order, because under section 6380, restraining orders issued pursuant to the DVPA must be entered into CLETS to facilitate enforcement. Section 6380, subdivisions (a) and (b), require the court to report to the Department of Justice protective orders issued pursuant to the DVPA, as well as orders issued under the civil harassment provisions in Code of Civil Procedure section 527.6 and the other statutory provisions authorizing the issuance of protective orders. This existing body of statutory law regulates the issuance of restraining orders and even if a court has inherent power, such powers should never be exercised to effectively nullify existing legislation. (People v. Ponce (2009) 173 Cal.App.4th 378, 384.) "Where the Legislature authorizes a specific variety of available procedures, the courts should use them and should normally refrain from exercising their inherent powers to invent alternatives." (Ibid.) When a court issues orders not authorized by statute, the court acts outside of its jurisdiction. (In re Marriage of Jackson (2006) 136 Cal.App.4th 980, 988; Polin v. Cosio (1993) 16 Cal.App.4th 1451, 1454-1455 [when a statute authorizes a prescribed procedure and the trial court acts contrary to the authority conferred by that statute, it has exceeded its jurisdiction].)

Furthermore, the record does not support husband's representation that the parties had arrived at a stipulation for a non-CLETS restraining order. At the hearing, wife's attorney stated that he had attempted to meet with husband to discuss "the options of a non-CLETS restraining order." However, husband refused to talk to him. Later, wife's attorney noted that wife would "feel more comfortable with a CLETS order. But if the Court didn't feel there was enough evidence before it to do that at this time, I think [wife] would be okay with . . . a non-CLETS family law order." Husband stated during the hearing: "Now, if we want mutual restraining orders, non-CLETS restraining orders on each other about the different properties we talked about yesterday, if that would make her feel better, then fine. Let's do that. But I don't want any of this other hoo-ha going on with it and all this nonsense like this." The trial court stated that it did not "do the mutual stay-away orders that are non-CLETS. Before the Court is a request for a temporary restraining order, that would be a CLETS order." Wife's attorney indicated, at least twice, that wife was, in fact, requesting a CLETS domestic violence restraining order. Husband again asserted that the parties should have agreed upon a non-CLETS order, and the trial court again stated that it did not issue non-CLETS orders.

There is no evidence of an agreement between the parties in the record for a non-CLETS restraining order. There is no stipulation in the record executed by the parties for mutual non-CLETS stay-away orders. The trial court neither considered nor approved any such stipulation. In short, husband's contention that he had an agreement for a stipulation for a non-CLETS restraining order which the trial court should have honored finds no support in, and is actually belied by, the record.

Thus, we reject this meritless claim.

III. Continuance and Sufficient Opportunity to Present a Case

A. Additional Background and Husband's Contentions

After wife's testimony and her counsel's presentation to the court, husband began his case by saying, "Your Honor, they covered a lot of territory. It's going to take probably a good half hour for me to respond. I just want the Court to be aware that this is going to take a while." (Italics added.) Husband said he had not had time to file a written response because he was not served in this matter "until some rather peculiar individual showed up on the evening of April the 21st and so it was just a few days ago." Husband stated that he felt that he "should be given at least whatever is the normal amount of time [to respond], otherwise I would just say that this proceeding should not be occurring at the current time because of the failure to serve me on time."

Wife's attorney interjected that husband went to jail on Monday, April 20, which was the day he was served. Wife's attorney stated that, if husband was seeking a continuance, he would not object, but would request a temporary restraining order effective until the hearing date.

The trial court asked husband whether he was seeking a continuance so that he would have more time to prepare. Husband responded: "I think that it should be dropped, and that they should do this in the proper manner. I still do not have a proof of service with these documents. I have no idea -- it was alleged that the person who had -- who [wife's attorney] had apparently sent to harass me, it's been alleged that was a process server. I have no proof of service. I have no idea who it was." Husband asserted that, when he returned to his office in the evening, he "saw a rather peculiar looking individual who I assumed was a street person walking through an overgrown field adjacent to where I am camping out, a.k.a. my office. And I thought to myself, you know, I really don't want to deal with this person at all. And the person started asking strange questions like where am I."

The trial court told husband, "I need you to kind of focus for me so that we can actually get through this. [¶] The question that the Court posed to you was, are you ready to proceed today, or are you asking this Court to continue this matter so you have an opportunity to prepare to go forward on the restraining order?" Husband responded: "[S]hould the Court choose to issue a temporary restraining order, then I would proceed today because I do not want a temporary restraining order. I don't think there is a sufficient justification for it to begin with." The trial court stated that, "regardless of what this Court does, you need to tell the Court whether you are ready to proceed . . . or if you are asking for a continuance?" (Italics added.) Husband responded, "[A]s long as I have a full opportunity to provide testimony. [¶] Also, I have a character witness who appears to be sitting in the front row . . . I think he can attest to my character." The trial court stated, "Okay. So are you -- I'm still not hearing from you whether you are ready to go forward this morning on the issue of the temporary [sic] restraining order or whether you are requesting a continuance in this matter?" Husband replied: "[R]ather than risk an interim temporary restraining order, I would choose to go forward." (Italics added.)

Wife's attorney informed the court that he thought the hearing might take two to three hours. The court replied, "Well, what I had heard from [husband] is he can present this within 30 minutes." The court explained it could proceed until noon and reconvene in the afternoon. Husband said nothing more about his 30 minute time estimate; nor did he request or otherwise indicate he needed additional time.

Thereafter, husband called Weiner as a witness.

Following the noon recess, prior to his own testimony, husband indicated he wanted to raise additional issues. He asserted that he had not seen proof of service. Husband stated: "I am not aware of if the individual who served it was a process server or just sent there for the purpose of harassing me." The trial court stated that proof of service appeared in its file. The court confirmed with husband that he had in his possession "the packet of information" with "all of the exhibits attached." The court then made a finding that, because husband was present in court and had that packet, he had been properly served. The proof of personal service (Judicial Council Form, form DV-200) reflects that husband was served on April 20, 2015.

Husband asserts on appeal that the trial court ignored his claims that he was not timely served. He further asserts that proper service required that he be served at least 21 days prior to the hearing. Husband claims that the trial court did not afford him a proper amount of time to prepare for the hearing. He further asserts that the trial court should not have "made the granting of a temporary restraining order a condition precedent to [his] requests for a continuance," and that doing so was coercive and deprived him of due process. Husband also contends that, in conducting the hearing, the trial court improperly rushed him and did not afford him sufficient time to present his case. Again, husband's contentions are without merit.

B. Analysis

1. Husband's Objection to Service

Contrary to husband's contentions, the trial court did not "ignore [his] objections that he had not been properly served with notice of the hearing." The trial court discussed with the parties service of these papers; husband stated that he had been served on April 21, and wife's attorney responded that husband went to jail on April 20, which was the same day on which he was served. This exchange led to the discussion of whether husband wished to request a continuance and his reply that he did not, which will be discussed at greater length post.

In the trial court and in husband's opening brief on appeal, husband's complaint in connection with the service issues was that untimely service did not afford him sufficient time to prepare for the hearing. He contends service should have been made at least 21 days prior to the hearing. Husband is wrong. Section 6320.5, subdivision (b), requires service five days before the hearing.¹⁰ Accordingly, he was entitled to one additional day, as service here was accomplished four days before the hearing.

10 Subdivision (b) of section 6320.5 provides: "An order denying a jurisdictionally adequate petition for an ex parte order, pursuant to Section 6320, shall provide the petitioner the right to a noticed hearing 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. The petitioner shall serve on the respondent, at least 5 days before the hearing, copies of all supporting papers filed with the court, including the application and affidavits." (Italics added.)

In any event, the trial court afforded husband multiple opportunities to request a continuance so that he would have more time, and he chose not to avail himself of this opportunity. Offered the opportunity to request a continuance so that he would have more time to prepare for the hearing, he declined. And although he complained about the timeliness of the service in his opening brief on appeal, husband did not argue that the order should be vacated for improper or untimely service.

For the first time in his reply brief, husband belatedly asserts that the domestic violence restraining order should be vacated based on improper and/or untimely service of process. "Arguments presented for the first time in an appellant's reply brief are considered waived." (Habitat & Watershed Caretakers v. City of Santa Cruz (2013) 213 Cal.App.4th 1277, 1292, fn. 6 (Habitat); see Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1064, fn. 2 (Holmes) [argument raised for first time in reply brief on appeal, without a showing of good cause, is forfeited; points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument].)

In the trial court, husband discussed the issue of service as a background fact at the hearing, noting that he was served three (according to husband) or four (according to wife's attorney) days before the hearing,¹¹ and asserting that he did not have proof of service with his papers. However, husband did not make any legal argument based on untimely or improper service, and he did not seek any relief in connection therewith. He did not move to quash service of process before the trial court. Inasmuch as husband's contentions can be deemed objections to the trial court's jurisdiction based on service, his "failure to make a proper challenge to jurisdiction in the trial court (as by a motion to quash service prior to any general appearance) forfeits any such challenge on appeal." (City of Riverside v. Horspool (2014) 223 Cal.App.4th 670, 681 (City of Riverside).) Moreover, "[b]y generally appearing, a defendant relinquishes all objections based on lack of personal jurisdiction or defective process or service of process." (In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 8 (Obrecht).) " 'A general appearance occurs when the defendant takes part in the action or in some manner recognizes the authority of the court to proceed.' " (Id. at p. 7.) "Such participation operates as consent to the court's exercise of jurisdiction in the proceeding." (Ibid.) Husband did not limit his objections before the trial court to matters of jurisdiction, or even offer an objection to jurisdiction. Husband submitted to the court's jurisdiction by making a general appearance in this matter. (See id. at pp. 7-10.)

11 On appeal, husband acknowledges that he was served on April 20, 2015, four days before the hearing on April 24, 2015, although he subsequently repeated his claim that he was served three days before the hearing.

Thus, because husband raised the improper or untimely service argument as a basis for vacating the restraining order for the first time in his reply brief, husband forfeited the issue. (Habitat, supra, 213 Cal.App.4th at p. 1292, fn. 6; see Holmes, supra, 191 Cal.App.4th at p. 1064, fn. 2; see also Obrecht, supra, 245 Cal.App.4th at pp. 7-10; City of Riverside, supra, 223 Cal.App.4th at p. 681.)

2. Claim of Coercion to Dissuade Husband from Seeking a Continuance

Husband's contention that the trial court made the issuance of an interim temporary restraining order a condition precedent to granting husband a continuance is not supported by the record. After husband indicated that he felt that he should be given more time to respond to the petition, wife's attorney stated that wife would not oppose a continuance for husband, but she would request a temporary restraining order in the interim. The trial court sought clarification, asking husband if he was seeking a continuance. Husband's answer was not responsive to the question, and the trial court again asked whether husband sought a continuance. Husband indicated that, "if" the trial court chose to issue a temporary restraining order, he would prefer to proceed. Again trying to clarify husband's position, the court, twice more, stated that husband must indicate whether he was ready to proceed, or if he wanted to request a continuance, stating once: "[R]egardless of what this Court does, you need to tell the Court whether you are ready to proceed . . . or if you are asking for a continuance." (Italics added.) Ultimately, husband replied: "[R]ather than risk an interim temporary restraining order, I would choose to go forward." (Italics added.)

As the record makes clear, the trial court neither made the issuance of a temporary restraining order a condition precedent to granting husband a continuance nor coerced husband into foregoing a request for a continuance. The court never even indicated it was inclined to grant wife's request for an interim restraining order. Husband simply chose to proceed with the hearing rather than request a continuance. By his own statement to the court, he made that choice to avoid the risk that an interim restraining order would be issued.

Husband claims that the trial court judge "indicated that she would allow a temporary restraining order in the event that [husband] insisted on a continuance," and "that statement by [the trial court judge] was not well recorded in the Reporter's Transcript. Instead, it was a statement that [the judge] was making almost under her breath, but could be understood if one were actually sitting before her in the courtroom." However this contention, necessarily, finds no support in the record.

There is simply no support in the appellate record for husband's claims that he was coerced into proceeding with the hearing based on a purported threat by the trial court that it would issue a temporary restraining order if it granted a continuance. The record does not reflect coercion or extortion. Moreover, we note that the trial court was authorized under the statutory scheme to issue a temporary restraining order had husband been granted a continuance. (§ 6320 et seq.)

In any event, because husband was offered the opportunity to request a continuance to prepare for the hearing and he unequivocally elected to proceed with the hearing instead, it cannot be said that husband was denied the opportunity to fully prepare for the hearing.

3. Claim that Trial Court Rushed Husband and Did Not Permit Him to Present His Case

Also belied by the record are husband's contentions that the trial court rushed him and did not afford him sufficient time to present his case. At the commencement of his case, husband noted that wife "covered a lot of territory. It's going to take probably a good half hour for me to respond. I just want the Court to be aware that this is going to take a while." (Italics added.) Later, in responding to a time estimate of two to three hours provided by wife's attorney, the court noted that husband had earlier said he needed 30 minutes. Husband did not dispute that estimate or indicate more time would be required. After the colloquy about a continuance we discussed ante, husband presented the testimony of Weiner, his character witness. Following a recess for lunch, husband continued to present his case through his own testimony and argument. During the course of husband's testimony, the trial court did occasionally interrupt husband. However, the record demonstrates it did not do so to rush husband. Instead, the trial court interrupted husband to: indicate that there was no evidence in the record pertaining to allegations made by husband; advise husband that he had a Fifth Amendment right against self-incrimination; address wife's attorney objection on relevance grounds to statements made by husband; address husband's assertion that wife was abusing the court's calendar and instructing husband to focus on the relevant facts; advise husband to address his remarks to the court; note that an award of attorney fees is a matter for the court to decide; and advise husband the court does not issue non-CLETS restraining orders. Eventually, husband stated: "And that's all I've got." Following wife's attorney's oral argument as to husband's case, husband asked the court if he could respond, the court replied that he could, "[b]riefly," and husband did so. When, after he responded, the trial court asked husband if he had anything further, he stated that he did not.

Husband did state later, referring to wife's attorney, that "[i]t seems to be okay when he talks but not -- ," at which point the trial court interrupted husband and stated that it had given husband "plenty of opportunity to be heard," to which husband replied, "Certainly." And this exchange occurred after the trial court's oral pronouncement of its ruling, granting wife a domestic violence restraining order, by which time husband had grown less cooperative. By way of illustration, moments after this exchange, the trial court asked husband his mother's address for purposes of tailoring the domestic violence restraining order. Husband responded, "I'd have to ask the defense counsel. I'm afraid he knows everything," and, when the court expressed surprise that husband did not know his mother's address, husband responded: "Apparently I don't know much of anything here, your Honor, so I'll leave it to him." The court then asked, "So you're not able to answer the Court's question?" husband replied, "Not right now I'm not, no."

There is no support in the record for husband's contention that the trial court rushed him or did not afford him sufficient time and opportunity to present his case. In fact, the record contradicts those claims. We note that husband's contentions on this point, particularly in his reply brief, focus on his opinions and subjective perceptions rather than facts demonstrated in the record. For instance, husband states that he "felt rushed" during the hearing; that "it appeared that there was nothing more that the Court wanted to hear"; that husband "sensed the urgency of the Court, and believed that the Court would certainly rule against him should he not stop attempting to present his case." (Italics added.) As a result of these circumstances, husband alleges that he felt "a high level of stress and uncertainty," which caused him to conclude his case "prematurely." However, husband has not said here what he would have done differently had he not felt rushed. In any event, the record clearly belies husband's claims that the trial court rushed him and did not afford him sufficient time and opportunity to present his case.

IV. Substantial Evidence Supporting the Domestic Violence Restraining Order

A. Husband's Contentions

Husband makes a number of contentions that can essentially be characterized as a claim that the trial court's issuance of the domestic violence restraining order was not supported by substantial evidence. In addition to general discussions of the evidence and assertions that the order should not have issued, these arguments include: the trial court's determination should be based only on the allegations set forth in wife's petition; the trial court's determination should not be based on "extraneous prejudicial factors," referring to husband's April 20, 2015, arrest following his physical altercation with the process server and his appearance at the house on April 21, 2015; a restraining order should not be granted "based upon the delusional and/or paranoid belief system of the requestor, nor upon the aggressive acts of the requestor" and the trial court should not have "encouraged [wife's] false allegations, her misconduct, [and] her delusions"; and the trial court's orders exceeded the bounds of reason. We conclude that the trial court's determination to grant the request for a domestic violence restraining order was supported by substantial evidence and that the trial court did not abuse its discretion in issuing it.

B. Forfeiture

"An appellant asserting lack of substantial evidence must fairly state all the evidence, not just the evidence favorable to the appellant. [Citation.] '[A]n appellant who challenges a . . . finding by the judge in a nonjury trial . . . must marshal all of the record evidence relevant to the point in question and affirmatively demonstrate its insufficiency to sustain the challenged finding.' " (Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 415.) "An appellant who fails to cite and discuss the evidence supporting the judgment cannot demonstrate that such evidence is insufficient." (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1408.) "An appellant . . . who cites and discusses only evidence in [his or] her favor fails to demonstrate any error and waives the contention that the evidence is insufficient to support the judgment." (Ibid.) "If the appellant fails to fairly state all material evidence, we may deem waived any challenge based on insufficiency of the evidence." (Chicago Title, at p. 415.)

Here, husband's brief largely relies only on evidence in support of his contentions, and ignores the evidence supporting the judgment. Thus, husband has forfeited these contentions. And in any event, his contentions fail on the merits.

C. Applicable Principles of Law and Standard of Review

The purpose of the DVPA (§ 6200 et. seq.) is " 'to prevent acts of domestic violence, 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.' " (In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 702 (Fregoso), quoting § 6220.) The DVPA "permits the trial court to issue a protective order 'to restrain any person for the purpose' of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved; the petitioner must present 'reasonable proof of a past act or acts of abuse.' (§ 6300.)" (Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 820, fn. omitted (Rodriguez).)

"The abuse that provides a basis for the findings includes . . . [citation]; reasonable apprehension of serious bodily injury (§ 6203, subd. (a)(3)); and 'behavior that has been or could be enjoined pursuant to Section 6320.' (§ 6203, subd. (a)(4))." (Rodriguez, supra, 243 Cal.App.4th at p. 820.) Section 6320 authorizes a court to issue an order restraining a party from "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, and, in the discretion of the court, on a showing of good cause, of other named family or household members." (§ 6320, subd. (a), italics added.) Thus, the definition of "abuse" under the DVPA is much broader than acts of physical abuse or threats of physical abuse. (Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 398.) Rather, "[a]nnoying and harassing an individual is protected in the same way as physical abuse." (Ibid.) So too is disturbing the peace of the protected party. "[T]he plain meaning of the phrase 'disturbing the peace of the other party' in section 6320 may be properly understood as conduct that destroys the mental or emotional calm of the other party." (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497 (Nadkarni); Burquet, supra, 223 Cal.App.4th at pp. 1146-1147.)

"A restraining order may issue under the DVPA either 'enjoining specific acts of abuse,' 'excluding a person from a dwelling,' or 'enjoining other specified behavior' and may issue ex parte, after notice and a hearing, or in a judgment. (§ 6218.)" (Nadkarni, supra, 173 Cal.App.4th at p. 1494.) "Generally, a trial court has broad discretion in determining whether to grant a petition for a restraining order under this statutory scheme." (Fregoso, supra, 5 Cal.App.5th at p. 702, citing Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420 (Gonzalez).)

" 'A grant or denial of injunctive relief is generally reviewed for abuse of discretion.' " (S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1264, quoting Gonzalez, supra, 156 Cal.App.4th at p. 420.) " 'This standard applies to a grant or denial of a protective order under the DVPA.' " (Nadkarni, supra, 173 Cal.App.4th at p. 1495, quoting Gonzalez, at p. 420.) "In reviewing the evidence, the reviewing court must apply the 'substantial evidence standard of review,' meaning ' "whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted," supporting the trial court's finding. [Citation.] "We must accept as true all evidence . . . tending to establish the correctness of the trial court's findings . . . , resolving every conflict in favor of the judgment." ' " (Burquet, supra, 223 Cal.App.4th at p. 1143.) " 'The appropriate test for abuse of discretion is 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.' " (Gonzalez, at p. 420, quoting Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.) "Under the substantial evidence test, the pertinent inquiry is whether substantial evidence supports the court's finding—not whether a contrary finding might have been made." (Fregoso, supra, 5 Cal.App.5th at p. 702.)

"The testimony of one witness, even that of a party, may constitute substantial evidence." (Fregoso, supra, 5 Cal.App.5th at p. 703.)

D. Analysis

We have set forth the conduct alleged by wife ante and will not repeat it here. Suffice it to say there was evidence showing that between February 20, 2015, and April 21, 2015, husband engaged in the following: sent numerous annoying, harassing, and derogatory text messages to wife; made annoying, harassing, and derogatory oral comments to wife; sent their daughter annoying and apparently unwanted messages; engaged in surveillance of wife, including using a GPS tracker and the Verizon phone locator service; drove around their circular driveway while staring at the house; followed wife in his vehicle; told wife he had her followed by a private investigator; lurked around the house and hid in the woods near the house; and entered the house in violation of the agreement between wife and husband, scaring wife and their daughter.

Wife noted that husband was an alcoholic, used marijuana, and expressed suicidal ideations. He had been verbally abusive in the past and had thrown a remote control at her, apparently without regard to the damage he could cause to their television if he missed her, which he did.

Wife testified that husband's actions were scaring her and Elizabeth. She testified that she was afraid to leave Elizabeth alone, and she was afraid to be at the house.

In a text message to Elizabeth, husband admitted being "caught" at the house, claiming he had been attempting to leave her treats as "the Easter rabbit," although wife saw no Easter treats in his possession. In his own testimony, husband referred to the fact that he had been arrested following an altercation with the process server. He acknowledged using the Verizon family locator feature, although he testified that he only used it on one day. Husband also admitted that "I did do a little snooping early on."

Accepting as true all evidence tending to establish the correctness of the trial court's findings, and resolving every conflict in favor of the judgment (Burquet, supra, 223 Cal.App.4th at p. 1143), we conclude that substantial evidence supports the trial court's determination that wife established the existence of past acts of abuse (§ 6300) by a preponderance of the evidence based on the papers submitted by wife and the testimony presented at the hearing. A number of the acts described in wife's papers and at the hearing constituted harassment and contacts within the meaning of section 6320, subdivision (a). Additionally, the evidence before the trial court supported a finding that husband's conduct constituted disturbing the peace within the meaning of section 6320, subdivision (a), as the evidence supported a finding that husband's conduct destroyed wife's mental or emotional calm, as well as that of their daughter. (Burquet, at pp. 1146-1147; Nadkarni, supra, 173 Cal.App.4th at p. 1497.) Therefore, we conclude that the trial court did not abuse its discretion in issuing the domestic violence restraining order for a period of two years.

Many of husband's contentions amount to a request that we reweigh the evidence. Additionally, husband's protestations that a restraining order should not be granted "based upon the delusional and/or paranoid belief system of the requestor, nor upon the aggressive acts of the requestor" and that the trial court should not have "encouraged [wife's] false allegations, her misconduct, [and] her delusions," essentially amount to entreaties that we credit his version of events rather than wife's. However, husband's "claims fail because under the substantial evidence standard, '[t]he issue is not whether there is evidence in the record to support a different finding, but whether there is some evidence that, if believed, would support the findings of the trier of fact.' " (Fregoso, supra, 5 Cal.App.5th at p. 703.) In reviewing the trial court's determination, we " 'do not reweigh evidence or reassess the credibility of witnesses.' " (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531.) As stated ante, we conclude that the trial court's determination was supported by substantial evidence.

To the extent that husband suggests that the denial of a temporary restraining order on April 8, 2015, pending the noticed hearing¹² means that the ultimate granting of the domestic violence restraining order had to be based on matters occurring since the denial of the temporary restraining order because the trial court had already made its ruling addressing the prior events, this contention is without merit. This contention is a corollary to husband's res judicata argument, which we have rejected in part I of the Discussion, ante. The April 24, 2015, hearing was to be wife's full and fair opportunity to be heard on the merits of her petition as well as husband's opportunity to respond.

12 Despite husband's repeated representations to the contrary, there was no ex parte hearing prior to the denial of the temporary restraining order on April 8, 2015.

Conversely, husband also contends that the trial court should not have considered his April 20, 2015, arrest following his physical altercation with the process server or his April 21, 2015, visit to the house because these constituted extraneous prejudicial factors. He also asserts that the trial court's determination had to be based only on those allegations, "which were the focus of the request for a restraining order." However, nothing in section 6340, subdivision (a), or any other DVPA statute, limits a petitioner's proof at a hearing to the acts alleged in the DV-100 form. Thus, nothing in the statutory scheme precluded the court from considering events occurring between the filing of the petition and the hearing, provided the events are relevant.¹³ " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210, italics added.)

13 The post-filing allegations apparently were set forth in the supplemental declaration. However, as stated ante, the supplemental declaration is not part of the record on appeal.

Husband's arrest based on a physical altercation with a process server working on the instant case could be relevant to wife's reasonable apprehension of serious bodily injury. (§ 6203, subd. (a)(3).) The evidence could have some tendency in reason to prove she was reasonably apprehensive of serious bodily injury from husband. (Evid. Code, § 210.) Further, this incident was relevant to support wife's allegation that husband's behavior was escalating in severity.¹⁴ We also note that there is no evidence in the record to support husband's contention that wife's counsel intentionally orchestrated the altercation with the process server.

14 Husband asserts for the first time in his reply brief that the trial court's issuance of a restraining order based on "a false allegation of assault represents criminal punishment for a charge which had not even been filed," and that this constituted "a due process concern at a minimum." To the extent that husband makes this assertion as a ground for relief, he has forfeited this contention by failing to make this argument in his opening brief. (See Habitat, supra, 213 Cal.App.4th at p. 1292, fn. 6; see Holmes, supra, 191 Cal.App.4th at p. 1064, fn. 2.)

Husband's trip to the house on April 21, 2015, was also relevant. The fact that, prior to the related hearing on April 23, 2015, a court order was not in place giving wife exclusive use and possession over the house in which she lived with Elizabeth is of no moment. According to husband's own testimony, the parties executed a written agreement by which he was to live at another of the parties' properties. According to the uncontradicted representation by wife's counsel before the trial court, the written agreement, which does not appear in the record on appeal, provided that neither party would enter the property occupied by the other without prior permission. Moreover, even in the absence of such an agreement, husband's sudden and unexpected presence in the house where wife was living with Elizabeth could be relevant to whether husband was, for example, harassing wife or otherwise disturbing her peace.

These incidents characterized by husband as extraneous prejudicial factors were relevant to the matter before the trial court. Furthermore, as wife's attorney argues, this evidence was not prejudicial under Evidence Code section 352 because it did not uniquely tend to evoke an emotional bias against husband and it cannot be said the evidence had very little effect on the issues.¹⁵ (People v. Holford (2012) 203 Cal.App.4th 155, 167.) Certainly, the probative value of the evidence was not " 'substantially' outweighed" by any prejudicial effect. (Ibid.)

15 Husband did not object to this evidence before the trial court on Evidence Code section 352 grounds but on appeal asserts that this evidence consisted of "extraneous prejudicial factors."

As stated ante, we conclude that the issuance of the domestic violence restraining order is supported by substantial evidence, and the trial court's order did not exceed the bounds of reason. Thus, the trial court did not abuse its discretion in issuing the order.

V. Award of Attorney Fees

Husband asserts that the trial court "should not award attorney's fees for work which was unnecessary." He asserts that, because wife is a licensed and experienced attorney, she should have represented herself, and therefore the work performed by her hired attorney was unnecessary. Husband further asserts that the trial court's attorney fee award was arbitrary. Husband contends that the trial court overstated wife's attorney's hourly rate and the amount of time involved, and that the award included payment for the court's lunch recess. Husband also claims that the trial court reserved on the matter of attorney fees, and did not make a subsequent order. Additionally, husband asserts for the first time in his reply brief that another judge's determination in the trial of the parties' marital dissolution proceeding, declining to award attorney fees, "should be honored." Again, we conclude husband's contentions lack merit.

Section 6344 is part of the DVPA. That section provides, in part: "After notice and a hearing, the court may issue an order for the payment of attorney's fees and costs of the prevailing party." (§ 6344, subd. (a).) Wife prevailed on her petition under the DVPA for a domestic violence restraining order following notice and a hearing. Thus, the trial court was authorized to award her attorney fees pursuant to section 6344, subdivision (a).

Husband has cited no authority, nor could he, for the proposition that an attorney may not hire a lawyer to represent him or her in a legal matter when it is possible that the attorney party could represent himself or herself.¹⁶ In any event, contrary to husband's contention, wife was entitled to hire a lawyer to represent her in this matter, and the work based on which the trial court awarded attorney fees was not unnecessary merely because wife herself was a lawyer.

16 Indeed, it has been recognized many times that self-representation by an attorney might not be a good idea. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1093 [recognizing the old "adage that 'a lawyer who represents himself has a fool for a client' "]; In re Marriage of Greenberg (2011) 194 Cal.App.4th 1095, 1097 [same]; In re Marriage of Green (1989) 213 Cal.App.3d 14, 20 [same]; see also Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1382 [same; noting the "orderly and understandable" fashion in which the witness examination took place when a witness who was a lawyer had another lawyer ask questions and the opposite effect when an attorney party testified by narrative].)

Contrary to husband's contention, the trial court did not reserve on the issue of attorney fees to a subsequent hearing. The trial court unambiguously stated that it was awarding $3,000 in attorney fees to wife in this matter.

For the first time in his reply brief, husband asserts that another judge's determination in the marital dissolution proceeding against issuing an award of attorney fees "should be honored" and "should be respected." As we have previously noted, "[a]rguments presented for the first time in an appellant's reply brief are considered waived." (Habitat, supra, 213 Cal.App.4th at p. 1292, fn. 6; Holmes, supra, 191 Cal.App.4th at p. 1064, fn. 2.) By making this argument in his reply brief, husband deprived wife of the opportunity to respond to it.

Turning to husband's contentions that the attorney fee award was arbitrary and was not supported by the record, "[w]e apply an abuse of discretion standard in reviewing the amount of an attorney fee award. [Citation.] '[A]n experienced trial judge is in a much better position than an appellate court to assess the value of the legal services rendered in his or her court, and the amount of a fee awarded by such a judge will therefore not be set aside on appeal absent a showing that it is manifestly excessive in the circumstances.' [Citation.] 'The only proper basis of reversal of the amount of an attorney fees award is if the amount awarded is so large or small that it shocks the conscience and suggests that passion and prejudice influenced the determination.' " (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1509 (Loeffler).) An attorney fee award " ' "will not be disturbed unless the appellate court is convinced that it is clearly wrong." ' " (McKenzie v. Ford Motor Co. (2015) 238 Cal.App.4th 695, 704 (McKenzie).) When reviewing an award of attorney fees, we "[i]ndulg[e] all inferences in favor of the trial court's order, as we are required to do, [and] we presume the trial court's attorney fees award is correct." (Ibid.)

" ' "In determining what constitutes a reasonable compensation for an attorney who has rendered services in connection with a legal proceeding, the court may and should consider 'the nature of the litigation, its difficulty, the amount involved, the skill required and the skill employed in handling the litigation, the attention given, the success of the attorney's efforts, his learning, his age, and his experience in the particular type of work demanded . . . ; the intricacies and importance of the litigation, the labor and necessity for skilled legal training and ability in trying the cause, and the time consumed.' " ' " (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 659.)

Here, after issuing the domestic violence restraining order and setting forth its terms in the record, the trial court stated that it was awarding wife $3,000 in attorney fees. Husband asked the court to further defer the issue of attorney fees, and stated that he did not "see a basis established for it." The trial court confirmed wife's attorney's hourly rate, which was $325 per hour. Wife's attorney stated that, in connection with this matter, he had prepared the pleadings, consulted with wife on the matter, and had spent several hours in court on the day of the hearing. Wife's attorney represented that, taking into consideration all of the time he spent on the matter, the fees incurred were well over $3,000. Therefore, he asserted that $3,000 was a reasonable amount for an award of attorney fees. Upon hearing this information, the trial court reaffirmed the award of $3,000 in attorney fees. Husband requested an itemized bill, and asserted that he felt that counsel's bill was "over-inflated." Husband stated that, while wife's attorney may have been in court from 8:30 until 3:30 on the date of the hearing, there was a one and one-half hour lunch recess for which he should not be paid. Wife's attorney stated that the declaration and working with wife took more than three hours. Wife's attorney again stated that he had earned well over $3,000 between his appearance in court and in otherwise working on this matter. Wife's attorney stated that he was willing to accept $3,000. However, wife's attorney then stated that he would itemize all time spent on the matter, and, if the amount billed amounted to more than $3,000, he could submit an augmented request for fees, and if it amounted to less than $3,000, he would make that adjustment as well. The trial court directed wife's attorney to furnish an itemized billing of his services at some time following the hearing. However, the trial court also confirmed that it was presently awarding $3,000 in attorney fees. Husband has not furnished any additional information or evidence in support of his contention that the award of attorney fees was improper.

On this record, husband has not met his burden of showing that the award was excessive and that the trial court abused its discretion in determining that the amount of $3,000 in fees was reasonably incurred in wife's representation. Husband does not point to anything to overcome the presumption that the trial court's attorney fee award is correct. (See McKenzie, supra, 238 Cal.App.4th at p. 704.) The trial court's award is neither manifestly excessive in the circumstances nor shocks the conscience and suggests that passion and prejudice influenced the determination. (Loeffler, supra, 174 Cal.App.4th at p. 1509.) Therefore, the trial court did not abuse its discretion in issuing this award.

DISPOSITION

The order is affirmed. Wife shall recover her costs on appeal.¹⁷ (Cal. Rules of Court, rule 8.278(a)(1), (2).)

17 Wife seeks an award of appellate attorney fees on the ground that husband's appeal "is totally without merit." While we have determined that husband's contentions lack merit, we do not conclude that his appeal was frivolous or taken solely to cause delay, and we decline to award wife appellate attorney fees or to remand the matter for the trial court to do so. (See generally Code Civ. Proc., § 907; Cal. Rules of Court, rule 8.276(a)(1); see also In re Marriage of Freeman (2005) 132 Cal.App.4th 1, 7 ["trial courts are empowered to assess costs incurred on appeal against a spouse whose conduct falls within the description in section 271"].)

MURRAY, J. We concur: BUTZ, Acting P. J. DUARTE, J.