Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RF08-400614
Retired judge of the Superior Court of Marin County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant John H. Brown appeals the issuance of a domestic violence restraining order against him. The order was obtained by defendant’s daughter and her husband. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On July 28, 2008, plaintiff Sean Cofield filed a request for an order under the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.) to protect himself and his wife Candace Cofield from defendant. Candace is defendant’s daughter. The description of the most recent act of abuse, apparently written by Candace, states: “He screamed at me and my husband yelling about refusing to remove his items from my property and pointed his fingers in our faces. He also threatened not to leave our house until he was good and ready. He also threatened us by saying that he had information to use against us but won’t tell us to try to blackmail us. And he has a history of being violent.”
All further statutory references are to the Family Code except as otherwise indicated.
Plaintiff has not filed a brief in this appeal. Rule 8.220(a)(2) of the California Rules of Court provides that in such circumstances, “the court may decide the appeal on the record, the opening brief, and any oral argument by the appellant.”
We use Candace’s first name in this opinion for the sake of clarity.
On July 29, 2008, the trial court issued a temporary restraining order (TRO) against defendant.
On August 8, 2008, defendant filed his answer to the TRO. He stated that he had been living at the same address as plaintiff since November 2007 under a “ ‘tenancy at will.’ ” He claimed plaintiff’s request for the TRO was unsupported by any threat of violence and asserted plaintiff had obtained the TRO in order to improperly secure defendant’s eviction. Defendant also stated that the day after he was served with the TRO plaintiff moved out of the house.
The hearing was held on August 22, 2008. At the hearing, Candace testified that she and her husband had lived in their home for about a year and a half or two years. Defendant had approached them, saying that he “just needed a little bit of time to stay somewhere while he figured out his situation.” They agreed to let him move in and he lived with them for about eight months. He never gave them money for rent or utilities.
In May 2008, Candace and her husband informed defendant that they needed to sell their house. About a week before the sale was to close, defendant “started to, basically, snap and become very verbally abusive and [it] turned into an unsafe situation for both of [them].” At one point, Candace approached defendant while he was in his car and asked him if he could move out that night. He became very angry, and came within inches of her face, yelling at her.
The buyer’s real estate agent testified that he had come to the house one day for the pest inspection. Several doors leading to defendant’s bedroom had locks on them that had not been there before. The agent went downstairs to the basement with Candace to look for a nail to open the locks when he heard defendant yelling at the termite inspector. When they came upstairs, defendant began screaming at Candace, claiming that he was a renter and that people had no right to go into his room. He was “loud and aggressive and physical, kind of advancing physically in a way that was threatening.”
Defendant testified that he believed he had a “tenancy at will” and felt that he had rights as a tenant. He admitted he had never paid rent and that he had never gone to court to enforce his tenant rights. He denied ever yelling at Candace or the termite inspector.
At the conclusion of the hearing, the trial court granted a five-year restraining order.
DISCUSSION
I. Principles of Appellate Review
Our decision in this case is controlled by fundamental principles of appellate law: A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The party appealing has the burden of overcoming the presumption of correctness. For this purpose, he must provide an adequate appellate record demonstrating the alleged error. Failure to provide an adequate record on an issue requires that the issue be resolved against the defendant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295–1296.) The defendant also carries the burden of supporting each claim of error with reasoned argument and citations to authority. If he fails to do so, the court may treat the claim as waived and reject it without consideration. (People v. Stanley (1995) 10 Cal.4th 764, 793.) Facts not presented to the trial court and not part of the record on appeal generally cannot be considered on appeal. (Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632.) Statements in the briefs based on improper matter are disregarded by the appellate court. (Kendall v. Barker (1988) 197 Cal.App.3d 619, 625.) Additionally, an appellate court will not reverse for procedural defects or erroneous rulings that could have been, but were not, challenged in the trial court. (Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 546.)
II. Standard Of Review
We review a grant or denial of injunctive relief for abuse of discretion. (Salazar v. Eastin (1995) 9 Cal.4th 836, 849–850.) This standard applies to a grant or denial of a protective order under the DVPA. (See Quintana v. Guijosa (2003) 107 Cal.App.4th 1077, 1079 (Quintana).) A trial court’s discretion must “ ‘be exercised in conformity with the spirit of the [applicable] law and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ [Citations.]” (In re Robert L. (1993) 21 Cal.App.4th 1057, 1066, superseded on other grounds by statute, as stated in Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.) Thus, the scope of the trial court’s discretion is determined by the governing law—in this case, the DVPA.
III. The DVPA
“The Legislature has set forth the relevant factors in... section 6300, by providing that a domestic violence restraining order may be issued ‘if an affidavit shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.’ ‘Abuse’ is defined. It means intentionally or recklessly causing or attempting to cause bodily injury, sexual assault, or placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another.” (Quintana, supra, 107 Cal.App.4th 1077, 1079.) Abuse also includes “any behavior that has been or could be enjoined” pursuant to section 6320. (§ 6203.) The behavior outlined in section 6320 includes “stalking, threatening,... harassing, telephoning,... contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party....” (§ 6320, subd. (a).)
Further, the DVPA grants the trial court considerable discretion on the basis of an act showing past abuse. The court “may” issue an order “with or without notice, to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit... shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” (§ 6300.) This is considerably more liberal than, for example, the trial court’s discretion to restrain abuse generally, which requires clear and convincing evidence. (See Code Civ. Proc., § 527.6, subds. (b), (d).)
IV. Lack Of Attorney’s Signature
Defendant first claims that plaintiff’s petition listed George Holland as his attorney, yet this attorney never signed the document and did not make any appearances on behalf of plaintiff. Defendant appears to be asserting that these omissions violate California Rules of Court, rule 3.1202(a), which provides: “An ex parte application must state the name, address, and telephone number of any attorney known to the applicant to be an attorney for any party or, if no such attorney is known, the name, address, and telephone number of the party if known to the applicant.” Defendant’s claim has no merit.
Rule 3.1200 provides “The rules in this chapter govern ex parte applications and orders in civil cases, unless otherwise provided by a statute or a rule. These rules may be referred to as ‘the ex parte rules.’ ” As the DVPA contains its own provisions for the issuance of ex parte orders (see §§ 6320–6327), rule 3.1202(a) does not apply.
The procedure for obtaining an ex parte temporary restraining order is set forth in section 240 et seq.
We reach the same conclusion with respect to defendant’s argument regarding rule 3.1201, rule 3.1202(c), rule 3.1203(a), rule 3.1204, rule 3.1204(a)(2), rule 3.1204(b).
Defendant further complains that plaintiff did not specify his relationship to defendant when he filled out his application, and that he did not answer a question on the form regarding whether defendant would still be able to get to his home if a stay away order were to be issued. Defendant’s brief does not set forth any authority regarding the legal effect of such omissions. Accordingly, we deem the issue waived. (People v. Stanley, supra, 10 Cal.4th 764, 793.) In any event, the parties’ relationship and their living situation was made clear to the trial court at the hearing.
V. Sufficiency Of Petition’s Allegations
Defendant claims that plaintiff’s petition “offers no proof of any acts of violence or abuse.” We disagree.
It appears that a second petition was filed by Candace, which was also considered by the trial court. (Candace Cofield v. John Brown (Super. Ct. Alameda County, 2008, No. RF08-401053.) Her petition does not appear in the record on appeal, although the record does contain a copy of the restraining order after hearing.
To be facially sufficient under the DVPA, an application for a restraining order must allege abuse within the meaning of the DVPA. As noted, the definition of “abuse” under the DVPA includes engaging “in any behavior that has been or could be enjoined pursuant to Section 6320.” (§ 6203, subd. (d).) Section 6320 provides in part that “The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning,... 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.” Thus, section 6320 provides that “the requisite abuse need not be actual infliction of physical injury or assault.” (Conness v. Satram (2004) 122 Cal.App.4th 197, 202.) To the contrary, section 6320 lists several types of nonviolent conduct that may constitute abuse within the meaning of the DVPA.
Plaintiff alleged that defendant had screamed at him and his wife and had pointed his fingers in their faces. Defendant also had threatened not to leave their house “until he was good and ready.” Further, plaintiff alleged defendant had threatened to use certain information against them and that defendant had a history of violent behavior.
Section 6320 broadly provides that “disturbing the peace of the other party” constitutes abuse for purposes of the DVPA. While the DVPA does not provide any definition for the phrase “disturbing the peace of the other party,” the ordinary meaning of “disturb” is “[t]o agitate and destroy (quiet, peace, rest); to break up the quiet, tranquillity, or rest of (a person, a country, etc.); to stir up, trouble, disquiet.” (Oxford English Dict. Online [as of July 17, 2009].) “Peace,” as a condition of the individual, is ordinarily defined as “freedom from anxiety, disturbance (emotional, mental or spiritual), or inner conflict; calm, tranquillity.” (Ibid.) Thus, the 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. The conduct described in plaintiff’s petition more than meets this standard.
VI. Tenancy At Will
Defendant claims that the TRO improperly excluded him from the home as he had a tenancy at will.
A tenancy at will is created when the tenant enters and occupies real property with the owner’s permission under an invalid parol contract or lease and is revocable at the will of either party. (Covina Manor, Inc. v. Hatch (1955) 133 Cal.App.2d Supp. 790, 792–793; 12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 507, pp. 584–585.) There is no evidence that defendant occupied the property under an invalid parol agreement or under a lease.
A lease is an agreement that creates a landlord-tenant relationship in which the owner of the greater estate gives to the lessee, for consideration and a fixed term, exclusive possession of a lesser estate in his property. (Santa Monica Rent Control Bd. v. Bluvshtein (1991) 230 Cal.App.3d 308, 316.) The payment of rent and transfer of use and possession of property are essential elements of a lease. (Ibid.) Although the term of the lease need not necessarily be specified, where the term of a tenancy for a dwelling house is not specified, it is presumed to have been for the time adopted for estimation of the rent so that the term of a tenancy at a monthly rate of rent is presumed to be for one month. (Civ. Code, § 1944.)
By contrast, a license merely confers a personal privilege to occupy the premises under the owner. (Von Goerlitz v. Turner (1944) 65 Cal.App.2d 425, 429.) It is a nonpossessory right that is revocable at any time at the will of the licensor and conveys no interest or estate in the land. (Id. at pp. 429–430; Goetze v. Hanks (1968) 261 Cal.App.2d 615, 617; 12 Witkin, Summary of Cal. Law, supra, Real Property, § 429, p. 500 and § 512, pp. 588–589.) The test for determining “ ‘ “whether an agreement for the use of real estate is a license or a lease is whether the contract gives exclusive possession of the premises against all the world, including the owner, in which case it is a lease, or whether it merely confers a privilege to occupy under the owner, in which case it is a license....” ’ ” (Kaiser Co. v. Reid (1947) 30 Cal.2d 610, 619, quoting Von Goerlitz v. Turner, supra, at p. 429.)
It is apparent from the hearing testimony that plaintiff merely granted defendant a license to stay at the house while defendant looked for a more permanent housing situation. (Von Goerlitz v. Turner, supra, 65 Cal.App.2d 425, 429.) At no time did plaintiff give defendant exclusive possession of any portion of the home. It is also undisputed that defendant never paid any rent or provided any other consideration. Accordingly, his wrongful eviction argument fails.
VII. Other Claims of Error
Defendant claims the trial court violated section 6306, subdivision (b)(2), by considering information obtained from a criminal records search even though that information did not involve a conviction.
Section 6306, subdivision (b)(2), provides: ‘Information obtained as a result of the search that does not involve a conviction described in this subdivision shall not be considered by the court in making a determination regarding the issuance of an order pursuant to this part. That information shall be destroyed and shall not become part of the public file in this or any other civil proceeding.”
At the hearing, defendant challenged the allegation that he had a history of violence. In response, the trial court noted he had been accused in 1983 of violating Penal Code section 273.6. Defendant asserted he had been “found innocent” of that charge. While the court was evidently aware of the prior accusation, there is no indication in the record that the court took the 1983 incident into account in arriving at its disposition. We find no violation of section 6306, subdivision (b)(2).
Finally, defendant claims the record does not reflect that plaintiff ever informed the court that he had sold the home and therefore did not have the right under color of law to possession of the premises. The statute defendant relies on, section 6321, applies to orders that specifically exclude a party from a dwelling. The trial court’s order contains no such provision. Accordingly, we find no error.
DISPOSITION
The order is affirmed.
We concur: Marchiano, P. J., Margulies, J.