Opinion
A166854 A167990
06-27-2024
C.T., Plaintiff and Respondent, v. K.W., Defendant and Appellant.
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. FDV-19-814465.
BROWN, P. J.
In this contentious family law matter, C.T. sought a domestic violence restraining order (DVRO) against K.W. pursuant to the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.) (DVPA) and prevailed. Custody of the parties' child is also at issue in this litigation. In these consolidated appeals, K.W. challenges the issuance of the DVRO, temporary child custody orders, and an order denying her request for needbased attorney fees. We affirm the DVRO and the order denying attorney fees, and we dismiss the appeal as to the temporary child custody orders.
All further statutory references are to the Family Code unless otherwise stated.
Our recitation of the factual and procedural history is drawn from our prior opinion, C.T. v. K.W. (2021) 71 Cal.App.5th 679 (C.T.), and the record in this appeal. We will also discuss additional relevant facts as needed when considering the legal issues raised herein.
The parties' son was born in November 2018, and a parentage action was initiated by a local child support agency against C.T. in Los Angeles Superior Court. Testing established C.T.'s paternity, K.W. was added as a party to the Los Angeles action, and a stipulated judgment was entered in May 2019. (C.T., supra, 71 Cal.App.5th at pp. 681, 684.)
In February 2019, C.T. initiated this action seeking a restraining order and sole legal and physical custody of his son. (C.T., supra, 71 Cal.App.5th at p. 681.) In March 2019, the trial court issued an amended temporary restraining order awarding C.T. sole legal and physical custody and authorizing C.T. to retrieve the child from K.W. (Id. at p. 682.)
In January 2020, the court stayed proceedings on the DVRO pending resolution of felony stalking charges filed by the San Francisco District Attorney against K.W. (C.T., supra, 71 Cal.App.5th at p. 682.) Issues of custody and visitation, however, continued to be litigated. (Ibid.) Between August and October 2020, in connection with her requests for modification of the custody and visitation orders, K.W. filed motions requesting attorney fees under various statutes, including section 7605 .
Section 7605, subdivision (a) provides, "In any proceeding to establish physical or legal custody of a child or a visitation order under [the Uniform Parentage Act], and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party, except a government entity, to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding."
The trial court denied the requests, finding in relevant part that section 7605 did not allow K.W. to recover attorney fees. (C.T., at pp. 682-683.) This court reversed, determining that this action was related to the Los Angeles parentage action for purposes of section 7605, and we remanded the matter for the court to exercise its discretion on the fee request under section 7605. (C.T., at p. 687.) Our remittitur issued March 21, 2022.
Our disposition stated, "The order denying mother's request for attorney fees is vacated, and the matter is remanded for further proceedings to determine whether mother may recover attorney fees pursuant to section 7605 in connection with the custody and visitation issues being litigated in the San Francisco action." (C.T., supra, 71 Cal.App.5th at p. 687.)
While C.T. was pending, K.W. filed a request to appoint a custody evaluator, and Judge Wiley, who was then assigned to the case, granted the request on December 21, 2021. In November 2021, C.T. filed a request to lift the stay on the DVRO proceedings, and the court granted this request after a hearing in April 2022. On May 20, 2022, K.W. filed a peremptory challenge to Judge Wiley, and Judge Wiley granted the peremptory challenge days later.
Having been declared a vexatious litigant in January 2021 (C.T., supra, 71 Cal.App.5th at p. 682, fn. 5), K.W. filed a request to file new litigation as a vexatious litigant on July 22, 2022, submitting a request for order (RFO) to schedule or reschedule court dates for many items, including a "custody evaluator" and "need-based atty. fees." The court allowed K.W. to file the RFO.
At the September 15, 2022, hearing on K.W.'s RFO, the court orally denied K.W.'s request to appoint a custody evaluator, finding that it did not need the input of a child custody evaluator at that time. The court also denied the attorney fees request. The court subsequently issued the written "Findings and Order After Hearing" (November 4 FOAH). With respect to the custody evaluator, the court stated in part, "based on the Court's inherent power to manage its courtroom and calendar (Code of Civil Proc., § 128), the Court declines to proceed with selection of a child custody evaluator at this time, without prejudice."
Meanwhile, the court held an evidentiary hearing on the DVRO from October 18, 2022, to October 20, 2022. The court heard the testimony of many witnesses, and, at the end of the hearing, the court found that K.W. and her father were not credible, C.T. and his family were credible, and sufficient evidence existed to issue the DVRO. The court issued a written five-year DVRO protecting C.T. and his family members. The court made no new custody orders, instead maintaining the prior orders for C.T. to have sole physical and legal custody and for K.W. to have supervised visitation.
The last hearing relevant to this appeal occurred on February 23, 2023, on additional RFOs filed by K.W. related to visitation. On April 6, 2023, the court issued the written "Findings and Order After Hearing" related to those RFOs (April 6 FOAH).
DISCUSSION
In this appeal, K.W. raises numerous challenges to the DVRO, the November 4 FOAH, and the April 6 FOAH. We address, and reject, each of her arguments below.
I. The Section 3044 Challenge to the April 6 FOAH
K.W. first argues that the trial court erred in its application of section 3044 to this case. As set forth below, we disagree.
A. Additional Background
After the issuance of the DVRO, the court granted K.W. permission to file a request for an order increasing her visitation time or terminating supervised visitation. The court set K.W.'s RFO for hearing on February 23, 2023, along with another of K.W.'s pending RFOs regarding visitation, issued a tentative ruling, and held the hearing.
At the beginning of the hearing, C.T.'s counsel asked the court for clarification regarding the following paragraph of its tentative ruling: "Following the court's granting of [C.T.'s] request for [a] Domestic Violence Restraining Order, the court awarded [C.T.] sole legal and physical custody of the child. This award of sole legal custody supersedes any prior order that would have limited [C.T.]'s ability to travel with the child or take any other action that falls within the category of legal custody."
The court explained that it had intended to say that the DVRO triggered the section 3044 presumption - a "rebuttable presumption." The court continued, "So the issue is still open, in the sense that [K.W.] can, in the future, bring a motion seeking to share custody of the child, and the burden would be on her to establish that she's rebutted the presumption against her having custody under . . . [s]ection 3044." C.T.'s counsel then asked if the court was saying there was a "permanent order subject to a rebuttable presumption?" The court said it was "tru[e] under the law" that the "custody issue became permanent," and it stated there would be no reason for C.T. to request a permanent custody hearing because the presumption applied by operation of law.
The April 6 FOAH modified the language of the court's tentative ruling and stated, "The Court conducted a trial on [C.T.'s] request for a restraining order against [K.W.] which resulted in issuance of a five-year DVRO restraining [K.W.] and protecting [C.T.] and his family. Pursuant to [section] 3044, the issuance of the DVRO requires the Court to award sole legal and physical custody of child to [C.T.] Thus in the DVRO which issued on October 21, 2022, the Court ordered that existing custody orders, which granted sole legal and physical custody to [C.T.], would remain in place pending further order. (See 10/21/22 FOAH at Item 13.) The award of sole legal custody to [C.T.] supersedes any prior order that would have limited [C.T.'s] ability to travel with the child or take any other action that falls within the category of legal custody, and the Court otherwise finds that it is in the child's best interests for [C.T.] to be able to travel freely with the Child and take any other action that falls within the category of legal custody."
B. Governing Law
In any custody proceeding, the court must make a custody award that is in "the best interests of the child." (§§ 3011, 3020; see § 3021, subd. (e).) Where a DVRO has been issued, special considerations come into play. (See, e.g., §§ 3011, subd. (a)(2)(A), 3020, subds. (a), (c), 3044.) "Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child . . . there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Sections 3011 and 3020. This presumption may only be rebutted by a preponderance of the evidence." (§ 3044, subd. (a).)
"The legal effect of the presumption is to shift the burden of persuasion on the best interest question to the parent who the court found committed domestic violence." (Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 662.) Therefore, once the court finds a party seeking custody of a child has perpetrated domestic violence, section 3044, subdivision (b), sets forth detailed criteria that must be evaluated before the court may find the presumption mandated by subdivision (a) has been rebutted.
Subdivision (f) requires the court, in determining that the presumption has been overcome, to make specific findings on each of the factors listed in subdivision (b) (§ 3044, subd. (f)(1)), and to state its reasons in writing or on the record (§ 3044, subd. (f)(2)). Where custody is at issue, the court may not decline to apply the presumption when a finding of domestic violence has been made. (In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1498.)
C. Analysis
K.W. contends that the court made the following reversible errors: (1) the court erred by applying section 3044's presumption because no party sought custody or a modification of custody; and (2) the court violated K.W.'s right to due process by granting permanent sole legal and physical custody to C.T. without affording K.W. an opportunity to present evidence to address child custody and rebut section 3044's presumption. We disagree.
First, the section 3044 presumption applies in this case. Although C.T. initiated this matter under the DVPA, when he filed his petition, he also sought a permanent award of sole physical and legal custody of the parties' child. "[T]his domestic violence action has become the proceeding in which custody of the parties' son is being determined." (C.T., supra, 71 Cal.App.5th at p. 687.) Section 3044 is thus applicable. (§ 3044, subd. (a) [presumption applies "[u]pon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child ...."]; see also In re Marriage of Fajota, supra, 230 Cal.App.4th at p. 1498 ["court must apply the presumption in any situation in which a finding of domestic violence has been made"].)
Next, K.W.'s due process claim lacks merit, and the appeal on this issue must be dismissed, because the April 6 FOAH was not a final custody order. (In re Marriage of Fajota, supra, 230 Cal.App.4th at p. 1496, fn. 5 [temporary custody orders are not appealable].) The court's oral remarks at the February 23, 2023, hearing were somewhat confusing, given that the court referred to the custody order as permanent, but also said the section 3044 presumption was rebuttable, the issue was open, and K.W. could request an evidentiary hearing to rebut the presumption. We need not dwell long on those oral comments, however, because they do not constitute the judgment and cannot be used to impeach the judgment. (In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 646-647.)
Here, the April 6 FOAH does not award permanent custody to C.T., nor does the record presented to this court show that there was a formal request for the court to set a hearing to issue a final custody order. Although the court did state in the April 6 FOAH that section 3044 required it to award C.T. custody, it did so in the context of explaining the temporary custody order in place: "Pursuant to Family Code 3044, the issuance of the DVRO requires the Court to award sole legal and physical custody of child to [C.T.]. Thus in the DVRO . . . the Court ordered that existing custody orders, which granted sole legal and physical custody to [C.T.], would remain in place pending further order. (See 10/21/22 FOAH at Item 13.)" (Italics added.) The "existing custody orders" were temporary, and the April 6 FOAH makes clear that the custody arrangement was subject to further order. K.W. thus remained free to request a final custody order and an evidentiary hearing to rebut the section 3044 presumption.
Indeed, as indicated in the statutory scheme, where custody is sought in a DVRO proceeding and a DVRO issues, the parent who perpetrated domestic violence may need time to produce certain evidence relevant to rebutting section 3044's presumption. (See, e.g., § 3044, subd. (b)(2)(A) [successful completion of a batterer's treatment program is a factor the court must consider in rebuttal analysis].)
II. Denial of Attorney Fees
A. Additional Background
On July 22, 2022, K.W. sought to file an RFO to schedule/reschedule "need-based atty. fees" in an amount "TBD." On the RFO, she checked boxes indicating that she sought changes to custody, visitation, the DVRO, attorney fees and costs, and she wrote, "Bifurcation of DVRO from Custody/Visitation/Req. min. fees allowed under [California Rules of Court, rule] 5.427." Under the "domestic violence order" section of the RFO, she similarly sought: "Bifurcation of DVRO from Custody/Visitation TRIAL. Req. min. fees allowed under [California Rules of Court, rule] 5.427." Her attached memorandum of points and authorities recited that C.T. sought permanent custody of the parties' child and stated, "If any adverse custody/visitation orders are going to be made for the 10/18 through 10/21/2022 DVRO trial, where [K.W.] is again forced to be in Pro Per, then either attorney fees must be granted before moving forward or nothing related to custody and visitation will be decided." The court allowed K.W. to file the RFO, but mandated, "[K.W.] is ordered to file and serve updated versions of all documents required under [rule 5.427(b)] by 8/05/22."
On July 27, 2022, K.W. filed a form FL-150 Income and Expense Declaration. On August 9, 2022, she filed a supporting declaration and a second memorandum of points and authorities (second MPA). In her declaration, she wrote, "[C.T.] shall pay to [K.W.] the following sums: [¶] $119,208.55 as and for [K.W.]'s outstanding balance incurred as a result of this litigation that's outstanding with various banks and other entities. [¶] $150,000 for anticipated fees and costs [K.W.] will incur to prepare for ongoing proceedings related to custody and visitation, prepare for and attend the hearing on [K.W.]'s Request for Order re: Modification of Custody. [¶] $50,000 for ongoing and travel costs to Supervised Visitation. [¶] $50,000 for a Custody Evaluation [¶] $25,000 for anticipated fees [K.W.] will incur to have an attorney draft the Fees motion with a [California Rules of Court, rule] 5.427 declaration, and objections to the Statement of Decision, if any; [¶] $25,000 for fees and costs incurred if an attorney is necessary to file for tis [sic] fees requests in connection with preparation and hearing. [¶] The remainder of those fees requests can wait once I am able to pay for an attorney and expert to draft up the declaration under [California Rules of Court, rule] 5.427, and if necessary, draft a motion for this attorney fees motion, if the court feels my motion for fees is insufficient." K.W. also reiterated that C.T. sought permanent custody, and attorney fees must be awarded if adverse custody/visitation orders would be made at the DVRO hearing.
In her second MPA, K.W. sought $450,000 in attorney fees, or, in the alternative, $2,000 should the court deem her moving papers deficient. She argued that C.T. sought to "sneak in a request" for permanent custody and visitation at the DVRO, "that must not happen without first resolving the issue of [n]eed-[b]ased [f]ees," and she stated that she needed attorney fees to "meaningfully prepare for and participate in the custody proceedings, trial, or anything else, to determine what is in the best interests of the child." She reiterated her bifurcation request: "While custody/visitation issues are technically already bi-furcated, [K.W.] requests that it be formally stated in a written order before the DVRO moves forward." After C.T. submitted opposition papers, K.W. submitted numerous reply filings.
On August 12, 2022, K.W. filed an RFO seeking an alternative visitation venue, but she also checked the box requesting attorney fees and costs in an amount "TBD."
On September 15, 2022, the court held a hearing on the RFOs. Early therein, the court stated that it intended to move forward with the DVRO in response to K.W.'s complaint that her criminal trial was pending and there had been no custody evaluation (which K.W. argued had to precede the DVRO hearing). The court observed that the law did not require a stay of the DVPA proceeding and resolution of the abuse allegations was important because custody was contingent upon a finding of abuse pursuant to section 3044. It said, "We will have a DVRO hearing first, and then we'll proceed [with] other more substantive issues - child custody and parenting time." When asked if she cared to comment, K.W. said, "Yes. So we're clear that even if the DVRO does go forward which, again, I am going to heavily limit a lot of people and experts because I will be, I guess, pro se, the custody aspect of it is bifurcated; right? There will be further - [¶] You're not going to be making permanent child custody visitation orders at the DVRO because that's kind of how I'm going to proceed with the case. What I plan to file has to do with the scope of what you think is going to happen at the DVRO."
The court replied, "It's always the case that if there's a DVRO pending between two parents with a child-in-common, that this is a two-part process. Because the issuance of a restraining order under the [DVPA] . . . it's not a life sentence. [¶] So if a parent is found to have committed abuse, that doesn't mean that person is no longer a parent. It means that the person has committed abuse.... [¶] But it doesn't exclude the parent from being a parent; so the issue surrounding child custody and parenting time remains active. And in our current jurisprudence, that is something that remains active through the minority of the child in age. [¶] . . . [¶] So normally, yes, it would be better to have the parties focus on the merits, strengths, and weaknesses of a request for [DVRO], and then we move to the next phase, which is if there is not a finding of abuse, then what does that mean to where we are today. [¶] And if there is a finding of abuse, what does that mean to where we are today. [¶] If there is a finding of abuse, again, to go in order, that would trigger [section] 3044. The court would not be able to award - presumably, not be able to award any type of custody to the person who's restrained, even on a joint basis. [¶] . . . [¶] Long explanation, but again, since this is our first time, I think it's good for - you wanted my feedback, that's how I would proceed. You would not be precluded from continuing to make parenting requests, if that's how I understood your question."
K.W. responded, "Yes. But my question, actually, was a lot more specific. So we're kind of going backwards in this case because, yeah, correct. The DVRO has not been settled because there's a parallel criminal case. [¶] However, at the same time, my parenting time has been extremely limited, as if there was already a finding of 3044. [¶] . . . So since I've been going to Rally and ACAFS, it's been 133 supervised visitations with no issues. [¶] The DVRO allegations stem from February 2019 through March of 2019; however, I'm been kind of put on probation since, anyway. [¶] Are you going to be taking away any of my very limited visitation at this DVRO? Because if that's a potential, then it's related as to custody and visitation where attorneys' fees must be considered. If not, then - [¶] That's kind of where I'm getting at; right?"
The court said its preliminary answer was, "no," C.T.'s counsel interjected that the court had never made a best interest determination for visitation, and the court told K.W. that it did not think that she should concern herself with C.T.'s argument at that time. The court continued, "Because the question right now is not are we ever going to have a hearing about child custody and visitation. The question right now is: Is that going to be all in one shot with the DVRO. [¶] And the reason, [K.W.] shared with us, that she's asking that question is also because it goes into attorneys' fees, which I have findings to make in a second and rulings. [¶] And that's a very valid point on [K.W.]'s - you know, from her position. Do I need to know, should I be ready with an attorney to deal with custody and parenting time matters? [¶] At this specific hearing, my answer remains no. My answer remains that the DVRO will be one phase. Parenting time issues will continue after that. [¶] And [K.W.] has a very specific argument that's based on positive history, from her viewpoint. [C.T.] may have a different perspective on that. [¶] Today is not the day to discuss that. I'm not making any rulings on that today."
K.W. started arguing that C.T. planned to ask for no visitation to happen at the DVRO, and the following exchange occurred:
THE COURT: No, I'm sorry. [K.W.], I'm going to stop you and not allow you to go into what they're requesting about that because I've just said that's not going to be part of the DVRO, in substance.
[K.W.]: Okay.
THE COURT: And I'll ask the courtroom clerk to put that in the minutes. [¶] The DVRO will be considered one phase of the case. How the outcome of the DVRO will impact child custody and parenting time will be considered another phase of the case, which will be scheduled thereafter.
[K.W.]: Thank you.
The court turned to attorney fees and read the following tentative ruling: "So these requests brought by [K.W.] thus far are denied, with prejudice, as to any work performed from the beginning of this case until now. [K.W.] has failed to meet the procedural requirements to properly set forth her claim for needbased attorneys' fees. [¶] [K.W.]'s request for need-based attorneys' fees also lack or lacks evidentiary support. [¶] In making this ruling, the court does not preclude [K.W.] from filing a proper request for need-based attorneys' fees for future representation relating to the issues of child custody and parenting time...." After the parties' argument, the court concluded "the ruling today" was "attorneys' fees are denied [with] prejudice, from the inception of the case until today's date. No preclusion is made or implied by today's ruling on [K.W.]'s ability to file a new request for attorneys' fees need base [sic], as to the issues specifically of child custody and parenting time." Later, the court issued the November 4 FOAH consistent with its oral ruling.
The order stated, "In both the 7/22 RFO and the 8/12 RFO, [K.W.] requested need-based attorney fees and costs, plus travel costs. [K.W.] has failed to meet the procedural requirements to properly set forth her claim for need-based fees, including, but not limited to deficiencies under [California Rules of Court,] [rule 5.427(b)]. [K.W.]'s requests for need-based fees and costs also lack evidentiary support. Thus, [K.W.] has not met her burden of proof. Any and all of [K.W.]'s requests for attorneys fees and costs, including travel costs, from the inception of the case through 9/15/22, are denied with prejudice. Nothing herein shall preclude [K.W.] from making future requests for need-based fees and costs incurred or to be incurred after 9/15/22, specifically for litigation of the issues of child custody and parenting time."
B. Analysis
K.W. argues that the court erred by denying her request for need-based attorney fees to defend against C.T.'s domestic violence allegations at the DVRO evidentiary hearing, claiming on appeal that such fees are available pursuant to section 7605 because a finding of domestic violence under the DVPA affects her rights as a parent by virtue of section 3044. We reject this claim because we agree with C.T. that K.W. did not clearly request attorney fees to defend against the domestic violence allegations at the DVRO hearing under section 7605 below.
We have reviewed K.W.'s written filings, and she did not specifically argue therein that she was entitled to attorney fees under section 7605 to defend against C.T.'s domestic violence allegations at the DVRO hearing. In her RFOs and moving papers, K.W.'s argument appeared to be that she was entitled to attorney fees if the court intended to make permanent custody and visitation orders at the DVRO hearing. In one of her replies to C.T.'s declarations, K.W. did paste in a paragraph from an unpublished appellate opinion that found that section 7605 authorizes attorney fees to prosecute domestic violence allegations where custody is also at issue in a proceeding initiated under the DVPA, but in her briefing, K.W. urged the court to follow a different unpublished opinion in which the trial court reached the opposite conclusion, denying fees incurred to litigate domestic violence allegations but allowing fees under section 2030 to litigate future custody determinations. Putting aside the fact that K.W. violated California Rules of Court, rule 8.1115(a) by citing these and other unpublished authorities, she did not present any clear analysis or argument with these seemingly contradictory citations.
Next, at the September 15, 2022, hearing, K.W. did not argue that attorney fees to defend against the domestic violence allegations at the upcoming DVRO hearing must be awarded regardless of whether the court intended to make final custody and visitation orders at that hearing. Instead, after the court specifically discussed section 3044 and the impact that a finding of domestic abuse would have on custody, K.W. questioned whether the court intended to make permanent custody and visitation orders at the DVRO hearing and argued that she deserved attorney fees if the court intended to make such final orders.
Because the record before us does not establish that K.W. clearly sought need-based fees to defend herself against allegations of domestic violence at the DVRO hearing based on the argument that section 7605 allowed such fees, she cannot prevail on appeal with such argument. (See Mendoza v. Trans Valley Transport (2022) 75 Cal.App.5th 748, 768-770 [appellate court generally will not entertain issues not adequately pursued below]; Findleton v. Coyote Valley Band of Pomo Indians (2018) 27 Cal.App.5th 565, 569-570 [same].)
K.W. points to statements that she made in an objection she filed after the September 15, 2022, hearing, but this filing does not change our conclusion that she failed to properly raise the issue below.
We wish to emphasize, however, that this opinion does not prohibit, and should not be construed to preclude, K.W. from bringing an appropriately supported, procedurally compliant motion for attorney fees asking the court to address whether she is entitled to attorney fees under section 7605 to assist her in rebutting the section 3044 presumption in future proceedings in this case.
III. The Custody Evaluation Order
K.W. next seeks review of the November 4 FOAH denying the appointment of a custody evaluator, arguing that Judge Flores could not reconsider Judge Wiley's prior order finding that a custody evaluation should proceed. But Judge Flores declined to proceed with a custody evaluation "at this time, without prejudice," and that temporary order is not appealable. (In re Marriage of Fajota, supra, 230 Cal.App.4th at p. 1496, fn. 5; Smith v. Smith (2012) 208 Cal.App.4th 1074, 1089-1090.) And if the order were appealable, K.W.'s claim would fail on the merits, given that her peremptory challenge rendered Judge Wiley unavailable. (Torres v. Superior Court (2023) 94 Cal.App.5th 497, 507-511 [general rule that one trial judge may not review the ruling of another does not apply where original judge is unavailable because of successful peremptory challenge].)
IV. The Fifth Amendment Claim
For the reasons set forth post, we reject K.W.'s next contention that the court violated her Fifth Amendment rights by refusing her last-minute request to continue the DVRO hearing.
A. Additional Background
In July 2019, the court set the DVRO hearing for October 2019. In October 2019, the San Francisco District Attorney filed felony stalking charges against K.W. K.W. then filed a motion to stay the DVRO proceeding in light of the pending criminal case, which C.T. did not oppose, and the court stayed the domestic violence aspect of this case. In November 2021, prompted by K.W.'s request for a custody evaluation, C.T. filed a motion to lift the stay.
At the hearing on the motion to lift the stay on April 15, 2022, C.T. argued that the domestic violence allegations should be resolved prior to the custody evaluation, and numerous factors weighed in favor of lifting the stay. K.W. also took the position that the DVRO hearing needed to go forward, and she suggested a hearing in October 2022. At the end of the hearing, C.T.'s counsel asked the court to schedule the DVRO hearing, observing that the parties were in agreement. The court allowed K.W. to speak, and K.W. commented that she may file an appeal on the issue of whether she was entitled to appointment of counsel for the DVRO. She continued, "So when [C.T.'s counsel] says I stipulate, sure. I stipulate to the DVRO going forward; however, I still think it's unjust that I don't have counsel for the DVRO hearing because of how related it is to the custody and visitation."
The court sought to make sure it understood K.W.'s position and said, "The Court is unable to appoint you an attorney to represent you in this case. While I believe that setting the trial approximately six months away should provide you ample opportunity to seek an attorney, if attorneys' fees are awarded, and able to pay for that attorney and exercise whatever additional resources that may be available in either the pro bono or public world to try to find representation; so I want to make sure that you understand that if the Court sets these trial dates, obviously, that there's the motion to continue, and the Court finds good cause to continue, certainly, the Court will consider that at the time that the motion is filed." K.W. began discussing C.T.'s counsel's involvement in pro bono groups, and the court interrupted. "THE COURT: [K.W.], this is certainly not relevant to the Court's inquiry today. So, again, I want to understand that you have agreed to lift the DVRO stay. We're looking at dates in October. [¶] [K.W.]: Yes. [¶] THE COURT: The Court has available October 18th, 19th, and 20th. That's Tuesday, Wednesday, and Thursday. I can make myself available the 21st. So that would be 18th, 19th, 20th, and 21st of October. [¶] [K.W.]: I don't have anything planned for those dates." Thereafter, K.W. said she had forgotten to raise the issue of appointment of a custody evaluator (an appointment she previously asked the court to delay), and she said she was okay with the court selecting an evaluator.
The court's order after hearing states: "Pursuant to the oral agreement of the parties at the hearing [C.T.]'s RFO to lift the DVRO discretionary stay filed on November 29, 2021, is GRANTED and the DVRO hearing shall be scheduled for October 18-21, 2022. A separate Trial Setting Order will be filed and served separately on the parties." In a footnote, the court stated, 'This Court will also issue a separate order selecting the 730 Custody Evaluator pursuant to the Court's December 22, 2021, Order."
Days before the DVRO hearing was set to begin, K.W. moved to continue the hearing raising the Fifth Amendment and her pending criminal trial. The court denied her motion. The court explained that, in addition to the fact that the parties had stipulated to lift the stay, there was "an overwhelmingly high degree of weight on the side of moving this case forward." The court considered K.W.'s constitutional rights, but it also considered the fact a stay was not mandated, the length of time the case had been pending, the case history, the fact that the restraining order would have real impacts on the parties' young child and custody issues, and the court's interest in case management.
B. Analysis
K.W.'s Fifth Amendment claim is without merit, as she had no Fifth Amendment right to an absolute stay of the DVRO hearing. (Keating v. Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322, 324 (Keating).) "A defendant has no absolute right not to be forced to choose between testifying in a civil matter and asserting his Fifth Amendment privilege." (Keating, at p. 326.)
A stay may, however, be granted as a matter of discretion (Keating, supra, 45 F.3d at p. 324), and California courts have looked to Keating for guidance when asked to stay civil proceedings pending the resolution of related criminal matters. (See Alpha Media Resort Investment Cases (2019) 39 Cal.App.5th 1121, 1131-1132.) Courts should consider not only the possible impact on the defendant's Fifth Amendment rights but also: "(1) the interest of the plaintiffs in proceeding expeditiously with this litigation or any particular aspect of it, and the potential prejudice to plaintiffs of a delay; (2) the burden which any particular aspect of the proceedings may impose on defendants; (3) the convenience of the court in the management of its cases, and the efficient use of judicial resources; (4) the interests of persons not parties to the civil litigation; and (5) the interest of the public in the pending civil and criminal litigation." (Keating, at pp. 324-325.)
Here, if K.W. sought to challenge the court's exercise of discretion in denying her request for a continuance, she failed. First, she forfeited any such challenge by failing to cite the governing law or present pertinent argument for why, considering the relevant factors, the court abused its discretion. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 (Benach) [appellant must present reasoned argument and legal authorities to overcome judgment's presumption of correctness].) Second, the court acted within the bounds of reason. K.W. appears to have stipulated to lift the stay without explicit conditions, but even if her agreement was conditioned upon the completion of a custody evaluation, as she claims, she notably does not contend that her agreement was conditioned upon the completion of her criminal trial. And, aside from the stipulation, the record shows that the court considered the relevant factors before rationally denying K.W.'s last-minute request for a continuance. Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686 (Pacers), cited by K.W., does not compel a contrary conclusion. There, a peremptory writ was issued commanding the trial court to stay discovery in a tort suit until the expiration of the criminal statute of limitations applicable to the defendants. (Id. at p. 688.) But Pacers did not involve a DVRO and child custody matter, and, unlike here, there had not already been a stay for more than two years.
Citing People v. Vasquez (2006) 39 Cal.4th 47, 61-62, K.W. appears to claim within this section of her briefing that a conflict of interest affected her due process rights because one of C.T.'s attorneys represented him in this litigation and acted as his attorney in the criminal case. We are skeptical of the validity of her assertion given that she fails to show that C.T.'s attorney is prosecuting the criminal case, but we deem her argument forfeited in any event. (See Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179 ["Failure to provide proper headings forfeits issues that may be discussed in the brief but are not clearly identified by a heading"].)
V. Claims of Error Regarding the DVRO Hearing
We turn finally to K.W.'s remaining numerous assertions of error with respect to the DVRO hearing and order.
A. Motion for a Continuance
K.W. argues that the court erred in denying an October 14, 2022 motion for a continuance because of: (1) her pending criminal case; (2) her inability to conduct discovery; (3) the denial of attorney fees; and (4) new evidence C.T. submitted the day before the hearing. K.W.'s first and third arguments fail for the reasons set forth in sections III and IV, ante, and her second argument fails for the reasons set forth, post. K.W.'s last argument fares no better as she does not show that the court abused its discretion by denying the last-minute continuance but allowing K.W. to raise objections to any alleged new evidence at trial. (See Reales Investment, LLC v. Johnson (2020) 55 Cal.App.5th 463, 468 [order denying trial continuance reviewed for abuse of discretion].)
B. Reopening of Discovery
On September 1, 2022, K.W. filed a one-page form VL-110 request to file new litigation as a vexatious litigant without any attached proposed filing. On her form, she asked to reopen discovery, but appeared to focus on discovery for child custody and visitation. The court denied her request to file new litigation.
On appeal, K.W. argues that the court improperly denied her September 1, 2022 request to reopen discovery before the DVRO hearing, but her claim lacks merit. As explained above, K.W. filed only the one-page VL-110 form, so there was no filed motion to reopen discovery for the court to rule upon. And even assuming a request to file new litigation was required for K.W. to file a motion to reopen discovery, there was no error in the court's denial of K.W.'s request given that K.W. failed to attach any proposed filing to her VL-110 form.
A prefiling order prohibits a vexatious litigant from filing "new litigation" without first obtaining leave of court, and leave shall be given "only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay." (Code Civ. Proc., § 391.7, subds. (a)-(b).)" '[L]itigation' includes any petition, application, or motion other than a discovery motion, in a proceeding under the Family Code or Probate Code, for any order." (Code Civ. Proc., § 391.7, subd. (d).)
C. Violation of Section 6306
K.W. next argues the court violated section 6306 by admitting exhibits reflecting three prior criminal charges and infractions. We reject this argument for several reasons.
To the extent that K.W. mentions additional alleged errors with respect to the admission of these exhibits in the text of her argument, her claims are forfeited. (Pizarro v. Reynoso, supra, 10 Cal.App.5th at p. 179 ["Failure to provide proper headings forfeits issues that may be discussed in the brief but are not clearly identified by a heading"].)
First, K.W. does not establish that she objected below on the basis that the evidence violated section 6306. (Johnson v. Greenelsh (2009) 47 Cal.4th 598, 603 [generally issues not raised below cannot be raised for the first time on appeal].)
Second, we question whether section 6306, subdivision (b), applies to the information about K.W.'s criminal history at issue. Section 6306 requires the court to conduct a criminal history search prior to a hearing on the issuance or denial of a protective order to determine, among other things, whether the subject of the order has previously been convicted of a serious or violent felony, or a misdemeanor involving domestic violence, weapons or other violence. (§ 6306, subd. (a).) If the criminal history search reveals the subject of the order does have such convictions, section 6306, subdivision (b)(1) requires the court to consider them prior to deciding whether to issue a protective order. If the criminal history search reveals information unrelated to such convictions, section 6306, subdivision (b)(2) precludes the court from considering, and requires the court to destroy, the unrelated information. As the criminal history information at issue here came from opposing counsel rather than the court's criminal history search under section 6306, subdivision (a), subdivision (b) of that statute would not apply.
Finally, even assuming any non-forfeited error, K.W. fails to show prejudice. She recites that the court admitted the evidence at issue to show that C.T. feared her, but K.W. does not spell out why, had this evidence not been admitted, there is a reasonable probability that the court would not have made the same finding of fear.
D. Hearsay and Free Speech Contentions
K.W. appears to challenge the admission of certain alleged hearsay testimony from C.T. and his siblings. Her claim fails because she did not object to this testimony. Further, while she claims the hearsay was "significant," she does not provide a cogent legal and factual argument addressing prejudice or analyzing the factors (i.e., the entirety of the evidence introduced, counsel's argument, etc.) that are used to assess prejudice. As such, she does not satisfy her burden on appeal of showing a miscarriage of justice. (See In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.)
K.W.'s claim that the court "did not consider" whether internet posts were protected under the First Amendment also does not merit reversal. K.W. moved in limine to exclude all evidence relating to posts she allegedly made on the internet regarding C.T. because the posts were alleged protected free speech, and the court denied the motion. While K.W. cites certain cases discussing First Amendment concepts on appeal, she does not analyze any of these cases or provide a reasoned argument for why these authorities show that her particular posts were protected. She thus has not established error in the ruling below.
E. Refusal to Order Disclosure of Names of Third Parties
K.W. next contends that the court committed reversible error by refusing to compel C.T. to recite the names of third parties who received disturbing messages from K.W., but her claim fails because her record citations do not establish that the court ruled on this specific issue and refused to require the disclosure of names.
The record shows that C.T. testified without objection that K.W. made harassing internet posts, notified his friends of these posts, and his friends informed C.T. On cross-examination, K.W. asked for the name of the person who received one such notification, and C.T.'s counsel objected on the grounds of relevance and argued that K.W. would use the information to harass third parties. K.W. denied there was any truth to C.T.'s counsel's argument, said she was going to "stop this line of answering," and concluded, "I'm not going to say anything more because I'm not sure why we are talking about new allegations right now." Addressing the question and objection, the court then stated, "[K.W.] has herself asked to move onto something else. All right? So that is her request to move onto a different topic. Should I be required to address [C.T.'s counsel's] motion because [K.W.] decides to ask a specific question about someone's identity in the future, I will do my job and make a ruling about it. It doesn't seem like that's before the Court anymore, at least not at this time." K.W. did not respond, and, although she later made comments about hearsay, she did not specifically request that the court order disclosure of the identities of C.T.'s friends. Thus, we see no reversible error.
F. Inclusion of C.T.'s Family Members in the DVRO
K.W. does not establish that the court erred by including C.T.'s family members as protected parties in the DVRO. C.T. listed the family members for whom he sought protection in his DVRO petition. Pursuant to section 6340, subdivision (a), "after notice and a hearing, a court retains the same discretion it has under section 6320 to issue a restraining order in favor of a party, and to include family or household members as protected parties on a showing of good cause." (J.H. v. G.H. (2021) 63 Cal.App.5th 633, 643.) K.W. states that the family members could not be included because they did not testify, but she cites no authority requiring family members to testify. Nor does People v. Delarosarauda (2014) 227 Cal.App.4th 205, 212-213, cited by K.W., assist her as it involved a criminal restraining order, not an order under the DVPA. Finally, K.W. asserts that the court could not include two family members who live abroad, but she waived this argument by failing to provide authority or reasoned argument in support thereof. (Benach, supra, 149 Cal.App.4th at p. 852.)
Stated simply, section 6320, subdivision (a), requires a showing of "good cause" for the inclusion of family members (J.H. v. G.H., supra, 63 Cal.App.5th at p. 643); we presume on appeal that the trial court properly found good cause, and K.W. does not establish otherwise.
G. Admission of Exhibits
K.W. next challenges the admission of 11 exhibits that C.T. offered into evidence during the hearing by reiterating her claim that three of the 11 exhibits were improperly admitted under section 6306, subdivision (b), and adding that C.T.'s remaining eight exhibits did not include threats. We have rejected her first argument, ante, and her observation about the remaining eight exhibits presents no intelligible claim of error.
H. Domestic Abuse Finding Based on False Pretenses
At the conclusion of the hearing, in addition to listing other evidence of domestic abuse, the court stated that K.W. had committed domestic abuse because she had sexual relations with C.T. under false pretenses. K.W. claims this was error given that C.T. did not allege this type of abuse in his initial DVRO petition.
K.W., however, fails to show that she included the DVRO petition in her appendices, and she does not cite any authority to support her argument. We deem this claim waived. (Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574 [it is appellant's affirmative duty to show error by an adequate record]; Benach, supra, 149 Cal.App.4th at p. 852.)
I. Evidence of Fear and Penal Code section 422
In connection with her claim that the court erroneously admitted evidence at the DVRO hearing as relevant to establish the protected parties' fear, K.W. contends that evidence of fear was not relevant because "sustained fear" is only an element of a Penal Code section 422 claim. But "abuse" under the DVPA includes behavior that has been or could be enjoined pursuant to section 6320, which includes, among other things, harassment and "conduct that, based on the totality of the circumstances, destroys the mental or emotional calm of the other party." (§§ 6203, 6320, subds. (a), (c).) We therefore reject K.W.'s claim that evidence tending to establish fear was irrelevant.
Again, to the extent that K.W. mentions other grounds of purported error in the text of her argument, her claims are forfeited. (Pizarro v. Reynoso, supra, 10 Cal.App.5th at p. 179.)
J. The Court's Credibility Finding
K.W. next requests that we reevaluate the court's adverse credibility determination, arguing that the court rendered its determination based on irrelevant matters. We decline her request. The court presided over the multi-day hearing, found K.W. was not credible, and gave two examples of her lack of credibility at the end of the hearing. We are not convinced that the examples were "irrelevant" as K.W. claims, but, in any event, the court did not expressly state or imply that those were the only bases for its credibility ruling. The trial court is the sole judge of the credibility of witnesses, and we do not reevaluate credibility on appeal. (In re Marriage of Oliverez (2019) 33 Cal.App.5th 298, 319.)
K. Sequestration of Witnesses
K.W. asserts that the court refused to exclude and sequester witnesses, but we deem the claim waived due to her failure to present reasoned argument on this issue with citations to authority. (Benach, supra, 149 Cal.App.4th at p. 852.)
L. Future Communications with Counsel
As an "other order" in the DVRO, the court ordered that K.W. "refrain from using abusive and harassing language in her written communications to [C.T.'s] counsel." K.W. contends this was error, but she does not cite any authority to support her claim, and she merely asserts without record citations that no one requested this relief and the order is unsupported. Her cursory presentation fails to overcome the presumption of correctness. (Benach, supra, 149 Cal.App.4th at p. 852.)
M. Remaining Claims of Error
Finally, K.W. asserts, with little to no argument, that the court improperly admitted exhibits that were allegedly untimely submitted; it admitted exhibits attached to a request for judicial notice that were purportedly different than copies of the documents that K.W. possessed; the court did not let her use C.T.'s attorney's technical assistant to screen-share exhibits; and the court refused to allow her to submit a written closing argument after she stated that she did not have an argument prepared and invoked her Fifth Amendment privilege at the end of the hearing. K.W. does not provide any description of the exhibits at issue or spell out how any of these alleged errors resulted in a miscarriage of justice. She thus again fails to meet her burden of showing reversible error.
DISPOSITION
The court's November 4 FOAH denying attorney fees is affirmed, as is the October 21, 2022, DVRO. K.W.'s appeals from the temporary child custody orders included in the November 4 FOAH and the April 6 FOAH are dismissed.
WE CONCUR: STREETER, J., HITE, J. [*]
[*] Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.