Opinion
C077816 C086488
09-06-2019
BRENDA DAVIS, Plaintiff and Respondent, v. DAVID ROY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14FCV05576)
Plaintiff filed a request for a domestic violence restraining order (DVRO) under the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.). The trial court denied an initial temporary restraining order (TRO) pending a hearing on the matter, but a different judge subsequently granted a TRO. After a hearing, the trial court issued a three-year DVRO and awarded plaintiff attorney fees and costs. Prior to the expiration of the original DVRO, plaintiff applied for renewal of the DVRO. After a hearing, the trial court granted the application, renewing the DVRO on a permanent basis.
Further undesignated statutory references are to the Family Code in effect at the time of the proceedings.
Defendant separately appeals from the granting of the original DVRO and the renewal. We granted defendant's request to consolidate the appeals for purposes of oral argument and disposition.
On the appeal from the granting of the original DVRO, defendant asserts that (1) his due process rights were violated in several ways in the proceedings before the trial court, (2) the trial court's determination to issue the original DVRO was not supported by substantial evidence, (3) the original DVRO restrained constitutionally protected speech and his right to access to the courts, and (4) the attorney fees award should be reversed.
On the appeal from the granting of renewal, defendant asserts that, (5) if we reverse on the appeal from the granting of the original DVRO, we must reverse the order granting renewal because there would be no original DVRO to renew, (6) the granting of renewal was not supported by substantial evidence, and (7) the trial court's refusal to admit certain evidence constituted reversible error.
Finding defendant's contentions to be not properly before us, forfeited, or lacking in merit, we affirm on both appeals.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff's Application for a DVRO
On July 15, 2014, plaintiff filed a DV-100 request for a DVRO, seeking a restraining order against defendant. In the application, plaintiff stated that she and defendant were dating, dated in the past, or were or had previously been engaged. Plaintiff sought a personal conduct order, a stay-away order, a move-out order, an order granting her the right to record unlawful communications, and a possession and stay-away order regarding a golden retriever named Pistol. Plaintiff also sought attorney fees and costs. Plaintiff sought additional orders directing defendant "to 1) not use [plaintiff's] name/information for the purpose of destroying [her] reputation, 2) Terminate the use of a private investigator to find out information about [her], 3) Complete an anger management program."
In the declaration in support of her application, plaintiff set forth a number of factual allegations consistent with her subsequent hearing testimony, summarized post. As reflected in the Notice of Court Hearing, the trial court set a hearing for August 1, 2014, and denied all TROs "until the hearing," noting as the reason for the denial, "Does not meet the statutory requirements." (Capitalization omitted.)
Regarding the denial of the TRO, the order reads: "Temporary restraining orders for personal conduct, stay away, and protection of animals, as requested in Form DV-100, Request for Domestic Violence Restraining Order, are: [¶] . . . [¶] (2) All denied until the court hearing." (Italics added, original italics omitted, bold omitted.) Regarding the reason for the denial, the court did not check the box that states: "(1) The facts as stated in form DV-100 do not show reasonable proof of a past act or acts of abuse. (Family Code, §§ 6320 and 6320.5)." Nor did the court check the box that states: "(2) The facts do not describe in sufficient detail the most recent incidents of abuse, such as what happened, the dates, who did what to whom, or any injuries or history of abuse." Instead, the court checked the box that states: "(3) Further explanation of reason for denial, or reason not listed above." As the "reason not listed above," the court handwrote: "Does not meet the statutory requirements." (Capitalization omitted.) No further explanation was given.
Defendant's Response
On July 29, 2014, defendant filed an opposition, in which he asserted that he had not abused or threatened to abuse plaintiff.
Defendant stated that the parties lived together for many years and that, at some point, they had been engaged. Both parties were licensed clinical social workers. For work, they lived apart for some time. On May 16, 2014, defendant moved to Ione for work and to "live in our new home." However, on that day, defendant learned that plaintiff intended to end their relationship.
Defendant believed that plaintiff was dating a former inmate client whom she counseled when she worked at Pelican Bay State Prison (Pelican Bay). The former client, M.C., had been released from prison, and he and plaintiff had been seen together in the community. This caused defendant to be concerned for plaintiff's state of mind. According to defendant, social workers are governed by the National Association of Social Workers (NASW) Code of Ethics and the Clinical Social Work Association (CSWA) Code of Ethics, administered by the Board of Behavioral Sciences of California (the Board). Defendant stated that the NASW Code of Ethics prohibits social workers from having sexual relations with former clients. That Code of Ethics further stated, " 'Social Workers should take adequate measures to discourage, prevent, expose and correct the unethical conduct of colleagues.' " Likewise, the CSWA prohibits social workers from having romantic or sexual relations with current or former clients. The CSWA also provides, " 'Clinical social workers who have knowledge of a colleague's impairment, misconduct, or incompetence [shall] attempt to bring about remediation through whatever means is appropriate.' "
Defendant asserted that, as her former partner, defendant was concerned for plaintiff's mental health and judgment, and, as a social worker, he was duty-bound to address her conduct in dating M.C. On July 14, 2014, defendant informed plaintiff that she "needed to address the issues that would cause her to violate the Code of Ethics." He further informed her that, if she failed to do so, he would report her behavior to the Board. According to defendant, this was neither a threat nor extortion, but instead was his professional obligation under the Code of Ethics. Defendant denied threatening to communicate to the media about plaintiff dating a former client.
Defendant asserted that, during the 14 years that they were romantically involved, the parties had commingled funds in savings and checking accounts, and that they had purchased several properties together. On July 14, 2014, defendant "informed" plaintiff that they had to figure out a way to divide the properties they had acquired together. Two days later, plaintiff sent defendant an e-mail stating that he had " 'no claim to anything,' " and, two days after that, defendant was served with the notice of the court hearing and request for a DVRO.
Defendant denied stalking, extorting, or threatening plaintiff. He also denied that the parties had ever had any sort of violent incident. Defendant stated that, since plaintiff asked him to stop contacting her, he had not tried to communicate with her.
Defendant asserted that he never tried to extort plaintiff; he merely attempted to address her violations of the Code of Ethics and address the dividing of the parties' assets. As for the latter, defendant stated that the parties had a good faith property dispute that should be resolved in civil court. Defendant agreed that plaintiff could have the dog.
Addressing that portion of the request for a DVRO in which plaintiff stated that she was frightened that defendant would physically harm her, defendant stated that he had never threatened plaintiff's physical safety, and that he never would. Defendant acknowledged that, upon learning that M.C. was at plaintiff's house with her, he did send a sarcastic e-mail stating that maybe he should "pop over," but further asserted that, in light of the fact that he lived 200 miles from plaintiff, this was not a threat and it was not possible for him to "pop over." Defendant acknowledged that he did contact plaintiff's sister, E.D. He stated he did so to encourage her to check in on plaintiff because defendant was concerned about plaintiff's mental health. Defendant also acknowledged making a sarcastic remark to E.D., but asserted that it was not any kind of threat against plaintiff. He did not specify what the sarcastic remark was, but stated that he "believed [plaintiff] needed protection from [M.C.] and made one sarcastic comment about throwing him out of the house." Responding to plaintiff's claim that she felt threatened by his remark to E.D., defendant reiterated that he lived 200 miles from plaintiff, it would take four or five hours for him to drive that distance, and he had just worked a 10-hour shift. Defendant stated that it was "difficult to believe that [plaintiff] realistically felt 'threatened' by" defendant.
Defendant asserted that, because plaintiff had not described any past or present acts of abuse as defined under section 6203, she had not satisfied the statutory requirements to justify the issuance of a DVRO. Defendant asserted that plaintiff was seeking a DVRO to retaliate because he was moving forward with the civil action to resolve the parties' property dispute.
Continuance and TRO
On August 1, 2014, defendant requested and the court granted a continuance to obtain counsel. The trial court granted a TRO pending the hearing. By its express terms, the TRO would expire on August 8, 2014.
Hearing on Plaintiff's Application for a DVRO
Evidence Presented by the Plaintiff
Plaintiff testified that she met defendant in approximately July 2000. The parties had "an on again and off again relationship . . . ." On February 14, 2001, the parties were engaged to be married. However, the engagement was called off roughly two months later. Plaintiff testified that defendant moved in with her in approximately 2004, "and during the cohabitation we were in a relationship for portions of it." The parties also had a real estate business together. Plaintiff could not say exactly when the parties' romantic relationship ended, but they had not lived together since 2008. She testified that defendant's representation that the relationship ended on May 16, 2014, was not accurate. By that time, the parties were not involved romantically.
Plaintiff testified that, in 2004, she received a love letter from M.C. Defendant became angry and yelled at her about it.
During a telephone conversation in May 2014, defendant told plaintiff that he had spoken with her gardener, R., and he had asked R. to see if any men came to plaintiff's property. R. disclosed the conversation to plaintiff, which made her feel very uncomfortable and "feel like I was being watched even though I was many miles away from where [defendant] was at." She testified, "[i]t made my [sic] feel anxious and it robbed me of my peace."
On June 5, 2014, defendant informed plaintiff that he had hired private investigators who were watching her home. Defendant told plaintiff that the private investigators were recording her inside her home, her car, and throughout the community. According to plaintiff, the surveillance continued through at least July 12. Plaintiff testified: "It made my [sic] feel frightened, it made me feel anxious, robbed me of my peace of mind and overall I felt like everywhere I would go I would be fearful that someone would be there and then they would report this information back to [defendant] and [defendant] would take that information and did odd, bizarre things with it."
On June 28, 2014, defendant sent an e-mail to the private investigators and plaintiff received a copy. The e-mail stated that things were going well between the parties, that they intended to "reconnect[]," and further stated, "[p]lease dispose of the evidence. I won't need to check in." Plaintiff was disturbed that defendant had her under surveillance and that he was holding "evidence." Defendant had told plaintiff that he had videos, photographs, and recordings of her.
In a July 12, 2014, e-mail to plaintiff, defendant said, " 'I know [M.C.] was at the house. What is the matter with you? Maybe I need to pop over.' " Plaintiff took this e-mail to be threatening, believing that defendant "was coming potentially to harm me." Plaintiff knew that, at the time, defendant resided in Corcoran, which was more than a four-hour drive from where she lived. However, when she received the e-mail, she did not know where defendant actually was. Plaintiff contacted law enforcement because she was frightened "of the threats that he had made." Plaintiff "believed that [defendant] was coming to my home as he threatened to." According to plaintiff, law enforcement "agreed that it was potentially unsafe and suggested [plaintiff] spend the night in a hotel," which she did. Law enforcement also suggested that plaintiff seek a DVRO.
On cross-examination, plaintiff acknowledged that she met M.C. while she was working at Pelican Bay. Asked if she had a relationship with M.C., plaintiff responded, "Not at this time." Plaintiff acknowledged that, as a social worker, if she had a relationship with an inmate, it "would be potentially considered unprofessional conduct," and that it could impact her career. She acknowledged that there could be "reporting requirements that come along with a relationship like that." However, she also testified that she did not "have a reportable relationship" with M.C.
Plaintiff testified that, in an e-mail which was admitted into evidence, defendant referred to plaintiff's "promiscuous sexual habits." Plaintiff perceived the e-mail as threatening, offensive, harassing, and annoying, and testified that it disturbed her peace of mind. Defendant had called plaintiff many names, including "hoe [sic] mama, sexually promiscuous, stupid, idiot. He called me crazy. He said that I opened my legs to inmates, that I was disgusting, that I had sexually transmitted diseases." He also called her "a whore."
Plaintiff testified that defendant owned four firearms that she knew of. Three were registered, a .30-30 rifle, a .357-caliber handgun, and a .22-caliber rifle, all of which had been stored in her home in Smith River. Plaintiff testified that, because defendant never arranged for a third party to retrieve his firearms, she surrendered them to the Del Norte County Sheriff. Plaintiff testified that defendant had a fourth gun, a nonregistered "throw away gun," that he told her he had "in the event that he needed to kill somebody . . . so that no one would know or be able to link it back to him." The Del Norte County Sheriff refused to accept this gun. Plaintiff believed defendant had more guns in addition to the three that she surrendered and the "throw away" gun. Defendant "specifically told [her] that there were multiple guns," but she had only found the one "throw away" gun.
Plaintiff testified that defendant spent a great deal of time talking on the phone with a Dr. K.T., and plaintiff believed that defendant and K.T. were conspiring to try to take her properties. According to plaintiff, K.T. had been in a relationship with someone not involved here that ended in 2013, and she started communicating with defendant after that. K.T. had property with the person she had been involved with. According to plaintiff, defendant "let [her] know that he had given [K.T.] a lot of information, and that if they couldn't make it right with her situation because apparently she had property and a house with this gentleman that she was with, that they could make it right with taking [plaintiff's] property."
Plaintiff testified that she filed the application for a DVRO because she "was in fear for [her] safety and because [defendant] was harassing" her. Defendant threatened her and told that her whole life was at risk. Defendant also told her that he would take her license to practice as a social worker, that she would lose her job, and that she would not be able to work. He told her in a threatening manner that her conduct would have consequences. Defendant demanded that plaintiff pay him $200,000 and that she give him one-half of her real estate holdings. Between May 16 and July 12, 2014, defendant told plaintiff that "the only way ever be able [sic] to control [her] properties without any legal battle was [her] death." During the same period of time, defendant had asked plaintiff to return his passport to him, stating that he was leaving the country. Around that time, defendant reminded plaintiff of his "throw away gun." On July 9, 2014, defendant texted plaintiff that "he would have to move forward." This text terrified plaintiff because of the threats defendant had made against her.
In another e-mail, defendant gave plaintiff two options: she could marry him and add his name to her properties, or she could "lose everything." Plaintiff asserted that defendant was attempting to extort her out of her properties. Defendant also stated that, if plaintiff did not sign properties over to him, he would make a report to the social worker's licensing board.
Defendant told plaintiff that he was "waging war against [her] and that he was an expert at it." Plaintiff understood this to mean that defendant intended to "wage war against [her] until [she] provided [her] properties to him . . . . That he was going to launch a war against [her] as it related to finding [her], kind of stalking, [he'll] find [her] using Internet. He was contacting a lot of different individuals at that time was the revelation of his having the private investigator stalking [her] at [her] home." [sic] Defendant told plaintiff that she was "locked in," which she understood to mean that her only option was to give him her property, and if she did not, "a number of unsavory things would" happen to her. He also told her, relative to her job and her career, that she was " 'done.' "
Plaintiff testified: "Because I was feeling threatened by him if I didn't whatever [sic] he wanted at that moment that he was going to implement one of these twenty or so things. So I felt threatened. I felt a lack of ease. Essentially he would send me these texts and then if I didn't phone right back one would come immediately. I constantly felt on edge, on guard, anxious." Plaintiff testified that she felt that defendant's behavior was a form of harassment.
On July 14, 2014, during a telephone conversation, defendant again threatened to report plaintiff to the Board unless she satisfied certain conditions, including that she attend therapy for which he was to be present to ensure that plaintiff did not lie, that she "unblock" him on Facebook, that he be reinstated as administrator on their mobile phone account, that she accept his calls at night, that she "had to see him," and that she get him a job at the Veterans Health Administration.
Plaintiff testified that defendant threatened to contact her family "and provide all kinds of information to my family." Defendant also threatened to "go[] to the Board of Behavioral Sciences and let them know things that he felt were wrong." Defendant threatened to present the same information to the Attorney General. Additionally, defendant threatened to disparage plaintiff in the community, in the media, and to her boss, causing her to lose her career.
On cross-examination, plaintiff was asked if defendant had ever been violent with her. Plaintiff responded that, in March or April 2001, defendant raped her. As for fearing defendant, plaintiff testified that he "tends to be fairly angry and he tends to be very verbally aggressive. So on more than one occasion I've seen him in that state."
Plaintiff considered getting back together with and marrying defendant "because of the threats that he was making to me. I was very fearful." Defense counsel asked if the only reason plaintiff considered reuniting with defendant was to protect her property, and plaintiff responded, "No, I actually was protecting many things at that point. I would say protecting my entire life, including my physical being. I believe threatened [sic] by him."
Plaintiff denied that there was ever any agreement pursuant to which defendant would come to own any of her real estate. Plaintiff admitted that defendant gave her money, but only to pay bills. Plaintiff testified that defendant gave her approximately $570,000 over six years. Defendant gave her this money "[t]o pay his bills, doctorate in social work and three years of law school which I paid for, his taxes were approximately $190,000.00. He had many, many, many items which can be itemized." Plaintiff further testified: "He owes me a pretty substantial amount of money, probably $112,755.55. . . . He did not work for three years and five months and I supported him with the agreement that he would go back to work and he would make up those funds."
Plaintiff testified that, "as a result of defendant's extortion, she gave him "[h]alf of the money that was in my account" and her RV.
E.D., plaintiff's sister, testified that, on July 12, she received a call from defendant. Defendant told E.D. that plaintiff "had 'lost her mind,' " that she was involved with a drug cartel, and that she had a man at her home with his shirt off and defendant could not contact her. Defendant wanted E.D. to confront plaintiff "because she needed to be confronted." E.D. did not agree. Defendant said that he did not want to go to plaintiff's house, and that "if he did go over to her house he might wind up going to jail." E.D. testified about the conversation: "I was a little afraid of what he was saying. I was annoyed." E.D. further testified that defendant's call and the things he said frightened her. After her conversation with defendant, E.D. called plaintiff.
Plaintiff testified that, shortly after receiving an e-mail from defendant about M.C. being at her house and stating that "[m]aybe I need to pop over," she received a call from E.D. "who gave [plaintiff] additional information."
Evidence Presented by the Defense
Defendant testified that he was 64 years old. He was a clinical social worker and worked in the hospital at Corcoran State Prison. He testified that he and plaintiff had not broken up prior to May 2014 and that, during the entirety of their relationship, there was only one brief period when they could have been characterized as "on and off." According to defendant, he and plaintiff had been together for approximately 14 years. Recently, plaintiff took a job in Sacramento. He testified that they had intended to purchase property in or around Amador and resume their lives together. In April or May 2014, defendant accepted a position in Ione. However, when defendant arrived, plaintiff told him that she was not ready, that "she was all messed up in the head," and that defendant should return to Corcoran.
Defendant testified that he was never violent in his 14-year relationship with plaintiff. He denied raping her.
Defendant testified that 2001 was the first time the parties were involved in a particular property together. Between 2001 and 2014, they discussed being on the title together.
Defendant testified that the guns appearing on an evidence property report were the guns he owned and had left with plaintiff. He testified that he did not own any other guns. Defendant further testified that plaintiff had a shotgun, a .357-caliber revolver, and a Glock 40. He testified that plaintiff "had purchased a number of years ago from [a] neighbor an unregistered weapon." Defendant believed this was "the gun that [plaintiff] may have referred to as the burner gun."
Defendant denied ever asking the gardener to perform surveillance on plaintiff.
Regarding his telephone conversation with E.D., defendant testified that he "had deep concerns about [plaintiff] and the company that she was keeping with a noted gang member who had just gotten out of prison and been a former patient of hers." Defendant called E.D. because he did not know if plaintiff was safe and what her mental health condition was. E.D. did not credit defendant's concerns, and he told her to go see for herself. Asked to explain why he was concerned for plaintiff's mental health, defendant testified: "because . . . she had informed me that she made a terrible mistake and that she was going to try and get rid of this guy out of her house and then wanted to reconnect with me and proceed with our life." Defendant testified that this "turned out to be false, because . . . on July 12th [M.C.] was still in her residence." Defendant offered no testimony related to E.D.'s account that, during his conversation with her, he said: "if he did go over to [plaintiff's] house he might wind up going to jail."
Defendant acknowledged telling plaintiff that her career was at risk. He testified: "within our field as clinical social workers it's known that once a patient always a patient. When you enter into a, other than a clinical relationship with a patient or former patient, you are in what we call duel [sic] relationship. Those are ethically wrong seriously wrong within the profession." Defendant testified that plaintiff could lose her job if her relationship was disclosed. Defendant acknowledged calling plaintiff crazy, testifying, "she had been telling me that she had made this terrible mistake and was going to ship [M.C.] back to Tulare . . . and was going to reconnect with me and then suddenly he is back in the home and didn't make any sense." In a telephone call initiated by plaintiff, defendant told her that she should "get some therapy. I suggested that she quit lying. I suggested that she correct the behavior that was unethical by having a dual relationship with a former patient." While defendant did tell plaintiff that she should get therapy, he did not say that he should be present for it.
Defendant acknowledged hiring a private investigator. He did so because it "didn't make sense that the goals we had been working on for the past three years were being dismissed" and because "it became questionable as to who was in fact living with [plaintiff] at the Amador City property." Defendant wanted to know where he stood and whether it made sense for him to make efforts in his relationship with plaintiff. Defendant instructed the investigators that he would check in with them once a week, and further told them that, if he failed to do so, "something ha[d] happened to" him. He did this because he knew M.C. was in a gang and just out of prison, and defendant felt that his life could be in danger. When plaintiff asked defendant to put an end to the investigators' work, he did so.
Defendant acknowledged asking plaintiff for his passport. Asked why he did so, defendant testified: "I was looking at a job off the continent in Hawaii and still being reviewed and in order to go over there, you know, you'd have to have your passport. I also for maybe the last three years we had talked about going down to Nicaragua or Ecuador and Costa Rica and purchasing some property or at least looking around as a potential area to have a seasonal home because the cost of living is much less there." Defendant was not "planning on doing anything to" plaintiff and leaving the country.
On cross-examination, defendant acknowledged that a passport is not necessary to travel to Hawaii.
Defendant said Dr. K.T. was a psychologist, contractor, and colleague. He testified that he and K.T. had discussed a business arrangement. However, they never contemplated taking property from plaintiff.
On or about July 5, 2014, defendant received an e-mail from plaintiff in which she stated that "it's time together that we need. Corcoran is best. My folks have agreed to take care of Pistol." Defendant testified that the parties had a plan where plaintiff would work with defendant at Corcoran on weekends and holidays as part of a plan to reunite.
Defendant denied ever threatening plaintiff. When defendant told plaintiff, " 'I guess I'll have to move forward,' " he was referring to moving forward with his legal efforts to protect his property rights. Defendant testified on cross-examination that he decided to file the civil lawsuit against plaintiff on July 9, 2014, even though he testified that they were still "kind of together" at that point. Defendant also stated that, in a letter plaintiff sent him dated July 16, 2014, discussing the property dispute, plaintiff made no statement which suggested to him that she thought he was harassing or extorting her.
This July 16, 2014, letter appears in the record. The letter appears to be responsive to an undated letter sent by defendant to plaintiff, in which defendant claimed that he was entitled to be on the title of several properties or, in the alternative, for the properties to be sold and the proceeds divided. In her responsive letter, plaintiff asserted that the parties were never married and did not live like a married couple, rejected defendant's claimed entitlement to a share in the properties or plaintiff's financial accounts, stated that the parties had no future together, and concluded, "Please do not continue to contact me. I do not want anything to do with you."
On cross-examination, defendant acknowledged that his former wife had a restraining order issued against him.
Granting of Original DVRO
The trial court granted plaintiff's request for a DVRO and filed the order on September 5, 2014. The court determined that a qualifying relationship existed between the parties pursuant to section 6211. The court stated that "disturbing the peace of a litigant in the domestic violence context is a basis upon which a finding of domestic violence can be based." The court found that domestic violence had been established by a preponderance of the evidence. The order was to expire after three years. Plaintiff was awarded attorney fees and costs. Additionally, the court ordered that defendant was not to use plaintiff's name in a disparaging fashion, and that he not perform surveillance of plaintiff.
The court issued a first amended DVRO on September 8, 2014. The first amended DVRO listed the correct hearing date and correctly set forth the appearances of the parties and counsel. The directives of the first amended DVRO were the same as those in the original.
Plaintiff's Request to Renew the DVRO and Defendant's Response
On September 7, 2017, plaintiff filed a request to renew the DVRO on a permanent basis. Plaintiff asserted that, in reviewing a request for the renewal of a DVRO, "[i]n determining whether the requesting party has a reasonable apprehension of future abuse, the existence of the original order is relevant, and the underlying findings and facts supporting that order often will be sufficient in themselves to provide the necessary proof to satisfy the test." Plaintiff maintained that defendant had violated the original DVRO, alleging that "[defendant] has e-mailed [plaintiff] and contacted her through social media, [defendant's] son and girlfriend have come to [plaintiff's] home, and [defendant] paid a gardener to surveil" plaintiff.
In his response, defendant asserted that plaintiff could not meet her burden of proving, by a preponderance of the evidence, that she had reasonable apprehension of future abuse. Defendant acknowledged that an applicant for renewal of a DVRO did not have to show that the restrained party violated the original order. However, he further asserted that the mere existence of the original DVRO was seldom conclusive evidence that the applicant entertained a reasonable apprehension of future abuse. Defendant further asserted that plaintiff's contentions as to his alleged violations of the original DVRO were not true.
Hearing on Renewal Application
Evidence Presented by the Plaintiff
Plaintiff testified that, after the original DVRO was issued, she received e-mails from defendant on September 9, 2014, November 2, 2014, November 24, 2014, May 27, 2016, and October 17, 2017. In one November 2, 2014, e-mail, it appeared to plaintiff that defendant "was recommending some kind of therapeutic intervention for [plaintiff] and with a very specific therapist in Amador County." In another e-mail on the same date, defendant sent "a recommendation for relationship issues . . . ." Plaintiff testified that she believed each of these e-mails was sent by defendant.
These e-mails were admitted into evidence as Petitioner's exhibit 1. However, the record on appeal does not contain an "e-mail chain" as described before the trial court. The exhibits in the clerk's transcript do not correspond to the exhibits admitted into evidence at the hearing.
On the appeal from the renewal of the DVRO, plaintiff asserts that we should affirm because defendant failed to produce an adequate appellate record and because he failed to set forth all material evidence in his opening brief. In his reply brief, defendant, relying on California Rules of Court, rule 8.122, argues that it is plaintiff's fault that the exhibits do not appear in the clerk's transcript. In any event, we disagree with plaintiff's contention that, without the exhibits, we cannot make a determination as to whether substantial evidence supports the renewal order. As will be clear post, we conclude that, while incomplete, the record is adequate to provide meaningful review of defendant's contentions and for us to make our determination on the merits.
Plaintiff testified that, in addition to e-mails, defendant had contacted her through LinkedIn, requesting to be connected with her. Plaintiff testified that the request seemed to be from defendant, and that it had a photograph of him.
Plaintiff also testified that defendant's son, J.D.R., appeared in two photographs taken at plaintiff's beach home in Smith River in Del Norte County. The photographs were taken with motion-activated cameras that plaintiff had on her properties and were taken after the original DVRO was issued but before December 2014. Plaintiff testified that the fact that defendant's son was on her property caused her apprehension. She testified that J.D.R. was a known gang member and "a multiple felon with violence . . . ." Plaintiff also stated that J.D.R. had no right to be on her property, and, to plaintiff, the fact that he was on her property was threatening. On cross-examination, plaintiff testified that these photographs made her fear for her life. She testified that J.D.R. had threatened her in the past. J.D.R. had admitted to plaintiff and defendant at one point that he and his girlfriend had been conspiring to kill defendant and take plaintiff's property. Plaintiff also testified that there had been a theft from her Del Norte County property, although she had no information tying J.D.R. to that theft.
Plaintiff also identified K.T. in photographs taken at plaintiff's home near Amador City in spring 2015. These photos were taken on plaintiff's property using motion-activated cameras. Plaintiff testified that K.T. and defendant had "a significant affiliation . . . ."
Plaintiff testified that defendant had "the gardener spying on" her. Plaintiff testified that the gardener, R., told her that he was paid by defendant to tell him "who was coming and who was going." Plaintiff testified that R. advised her on September 5, 2014, that defendant contacted him on or about September 4, 2014.
According to plaintiff, a number of anonymous letters were sent to her supervisor. Other anonymous letters were sent to a deputy attorney general who was the defense counsel representing Pelican Bay in a matter in which plaintiff was suing her supervisor. Plaintiff testified that she believed defendant, or someone acting on his behalf, sent the anonymous letters. She believed defendant was responsible because, prior to the issuance of the original DVRO, defendant threatened to send letters. Additionally, "the narrative within these documents is a narrative that [defendant] and [defendant] alone has endorsed." She also believed that the postmarks supported her conclusion. Addressing these letters and apprehension of future abuse, plaintiff testified, "it's frightening to me to have all of these letters and have this kind of discussion with the attorney general. It's a frightening thing to have all of these letters out there, including the fact that this discussion is even happening with the attorney general."
Between September 2014 and March 2017, plaintiff's tires had been "slashed, stabbed with some sort of tool, nails, the air let out of them consistently every month." Plaintiff acknowledged that she could not say who was doing it. However, she also testified that it gave rise to fear in her mind that defendant was responsible, and further stated, "I feel the timing is remarkable."
Plaintiff communicated her concerns about defendant's contacts, and those of defendant's associates, to law enforcement on many occasions. She forwarded e-mails to law enforcement. She also filed complaints or police reports with law enforcement; plaintiff estimated that she filed 15 police reports concerning defendant in the three years preceding the hearing.
Plaintiff repeatedly testified that e-mails from defendant frightened her. When asked on cross-examination why an e-mail she attributed to defendant frightened her, plaintiff responded, "[b]ecause anything from [defendant] right now terrifies me."
On cross-examination, defense counsel asked plaintiff whether she had been diagnosed with any psychological or cognitive disorders, and plaintiff responded that she had. In response to an objection, defense counsel asserted that the issue was relevant to plaintiff's state of mind, and her state of mind was relevant given that the determination to be made was plaintiff's reasonable apprehension of future abuse. The court directed plaintiff to answer as to whether she had been diagnosed since the issuance of the original DVRO. Plaintiff testified: "I was diagnosed with post-traumatic stress disorder secondary to being raped by" defendant. Plaintiff testified that she received ongoing treatment and had attended approximately 110 therapy sessions.
Also on cross-examination, plaintiff testified that defendant had contacted her by e-mail during the pendency of the current hearing, since the prior court session and she reported the contact to the Amador County Sheriff's Department. The e-mail was about weight loss, and plaintiff took it as a suggestion on how to lose weight. Plaintiff testified that the e-mail made her "apprehensive that [defendant] just simply wasn't going to stop doing what he's been doing." She testified that it made her "extremely afraid." She continued, "I felt defeated . . . . Here we were in the middle of these proceedings, and he was still sending these to me. That is how it made me feel." On redirect, plaintiff testified that, "one of the things that's added to my distress as I -- as [defendant] has continued this to me, [sic] I've gained a lot of weight, which is obvious to anybody who knows me. [¶] So it does feel relevant to his having seen me and my weight gain." On recross-examination, when defense counsel asked plaintiff if the e-mail made her think she was going to be hurt physically, plaintiff responded, "I do think that [defendant] will hurt me physically. I do have that concern. I do think he hasn't given up. I do think he continues. [¶] So do I think he is going to because of this e-mail? It certainly makes me feel uncomfortable in the entire package of things [defendant] has been doing to me since the restraining order was in place, yeah. In that regard, yes."
Evidence Presented by the Defense
Defendant testified that he did not recognize the e-mail concerning weight loss, it was not sent from his address, and he did not send it. Defendant similarly testified that he did not send several of the other e-mails discussed in plaintiff's case-in-chief. Defendant also testified that he does have a LinkedIn account, but never sent plaintiff a LinkedIn request and testified that it could have been automatically sent to plaintiff by LinkedIn. He also testified that he did not cause the anonymous letters to be sent to plaintiff's employer. Defendant did acknowledge that two of the e-mails had been sent from his work e-mail address. However, it appears that defendant's position was that those e-mails were actually sent prior to the issuance of the original DVRO, and that the versions offered in the trial court reflected a later date.
Defendant did not agree that it was J.D.R. in a photograph taken at one of plaintiff's properties. Defendant also testified that he had no knowledge of J.D.R. being involved in a gang. He denied that J.D.R. ever stated in defendant's presence that he and his girlfriend had conspired to harm defendant and take plaintiff's property. Defendant acknowledged, however, that J.D.R. had been in state prison.
Defendant denied that he and K.T. had conspired to take plaintiff's property. He also denied that he asked R. to spy on plaintiff. Additionally, when asked whether he ever did any damage to plaintiff's tires "at any time after the restraining order was put in place," he replied, "no."
Defendant testified that he believed he had been contacted by law enforcement four times about e-mails since the issuance of the original DVRO.
Oral Argument and Court's Ruling from the Bench
Plaintiff's attorney asserted that plaintiff only needed to show reasonable apprehension of future abuse, and that there was no requirement to demonstrate abuse beyond that which the original DVRO was based upon. Plaintiff's attorney further asserted that "the original facts in the restraining order provide reasonable apprehension going forward." However, he further asserted that the plaintiff had demonstrated, through the subsequent e-mails, the anonymous letters, plaintiff's diagnosis with post-traumatic stress disorder, the damage to plaintiff's tires, and J.D.R.'s presence at plaintiff's property, that defendant had violated the original DVRO so as to establish a reasonable apprehension of future abuse.
Defense counsel asserted that the allegation concerning the gardener occurred prior to the issuance of the original DVRO, and that, in any event, defendant testified that he never asked him to spy on plaintiff. Counsel noted that plaintiff did not call the gardener as a witness. Defense counsel asserted that most of the e-mails had not been verified as having come from defendant after the issuance of the original DVRO. As to the two e-mails defendant admitted to sending from his work e-mail account, defense counsel noted that the subject of the e-mails was relationship counseling or therapy. Defense counsel also suggested that "there's something wrong" regarding the dates of these e-mails, suggesting that they were actually sent prior to the issuance of the original DVRO. Defense counsel argued that plaintiff furnished no corroborating evidence to support many of her claims, and the photographs were of too poor quality to be probative. Defense counsel argued that there was no evidence linking defendant to the damage to plaintiff's tires and that there was nothing linking defendant to the anonymous letters. He also claimed that plaintiff had falsified records. Counsel argued that plaintiff's "conduct, testimony and history of events is not the conduct of a person with . . . normal mental health. It's not a reasonable apprehension." Counsel maintained that there was nothing that showed a reasonable apprehension of future abuse.
Relying on Ritchie v. Konrad (2004) 115 Cal.App.4th 1275 (Ritchie), the trial court stated that, to prevail on her request, plaintiff had to prove by a preponderance of the evidence that she had a reasonable apprehension of future abuse. The court expressly considered "the facts of the underlying order to the extent that there was an allegation of rape in the prior hearing and a sustaining of the" DVRO. The court found plaintiff's diagnosis with post-traumatic stress disorder and the fact that she attended 110 counseling sessions relevant to the genuineness of plaintiff's apprehension. The court found "the unwanted contact was substantial as it related to the emails, the texts, et cetera," and found plaintiff's testimony concerning J.D.R.'s presence at her property credible. Addressing plaintiff's tire damage, the court first noted that, to a point, it could be deemed coincidental, but continued: "when you add the property damage with the underlying case, the emails, the person on the property, and . . . the letter sent to the employers and social media contact, it makes it much less coincidental. That, again, goes to the reasonableness of [plaintiff's] belief of future abuse." The court found the letters to employers "disconcerting," and noted, "that is consistent with a lot of the underlying facts and allegations in the prior proceedings."
The court ruled: "So I put all of those factors together, including the rape allegations with the PTSD, the emails, the person on the property, the tire damage, the letter sent to the employers, the social media contact and the continued PTSD, the Court finds that [plaintiff's] belief is both genuine and reasonable." The court concluded that plaintiff satisfied the standard set forth in Ritchie, supra, 115 Cal.App.4th 1275, finding, by a preponderance of the evidence, that plaintiff demonstrated a reasonable apprehension of future abuse. Accordingly, the court stated that it would grant plaintiff's request for renewal of the DVRO. The court further stated that it would make the DVRO permanent as necessary "based upon the underlying facts and this hearing and the evidence as received."
Renewal of DVRO
In an order filed December 4, 2017, the trial court granted the plaintiff's request, renewing the DVRO on a permanent basis.
DISCUSSION
I. Appeal from the Original DVRO
A. Defendant's Due Process Contentions
1. Granting and Reissuing of the TRO
Defendant asserts that he was deprived of his due process right to notice when the trial court issued a TRO, which had already been denied on the same petition, and for which there had been no motion for reconsideration and no new petition. Defendant emphasizes that he had no notice that plaintiff was going to seek a TRO at the hearing on August 1, 2014, when he requested the continuance. Defendant argues that the judge who issued the TRO did not know all of the material facts at the time, including that the TRO had previously been denied by another judge, and therefore the granting of the TRO violated his due process rights. For the same reasons, defendant asserts that his due process rights were violated by the subsequent reissuance of the TRO.
Defendant's contentions are not properly before us, as defendant did not appeal from the granting of the TRO, which was an appealable order. (See Code. Civ. Proc., §§ 904.1, subd. (a)(6) [appeal may be taken from an order granting or dissolving an injunction or refusing to grant or dissolve an injunction], 906 ["[t]he provisions of this section do not authorize the reviewing court to review any decision or order from which an appeal might have been taken"]; Courtesy Temporary Service, Inc. v. Camacho (1990) 222 Cal.App.3d 1278, 1286 [all orders granting or denying either a TRO or a preliminary injunction are directly appealable]; McLellan v. McLellan (1972) 23 Cal.App.3d 343, 357 [order granting a temporary restraining order is separately appealable and not reviewable on appeal from a supplemental judgment].) In any event, defendant's contentions have been rendered moot by the expiration of the TRO and the issuance of the original three-year DVRO. (See O'Kane v. Irvine (1996) 47 Cal.App.4th 207, 210, fn. 4 ["Irvine's appeal from the TRO, following the trial court's grant of the three-year restraining order, is moot"].)
Moreover, the record does not indicate defendant objected to issuance of the TRO on the ground of lack of notice at the August 1, 2014, hearing. And any such claim in the trial court would have been meritless. The TRO was not denied for failure of proof, but rather for the unexplained reason on the DV-109 that the application "Does not meet the statutory requirements." (Capitalization omitted.) More important, as we have noted ante, the DV-109 Notice of Hearing for the August 1, 2014, hearing specifically said the TRO was denied "until the court hearing." (See fn. 3, ante.) This put defendant on notice that the request for the TRO would be revisited at that time. Thus, defendant's claim on appeal that he did not receive notice a TRO might be issued on August 1, 2014, is meritless.
Additionally, defendant forfeited his contention that the issuance and reissuance of the TRO was a "substantial factor in the final order after hearing being issued" and he was thereby prejudiced. Defendant 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.) In any event, the contention is without merit. " '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 . . . .' " (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528.) "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.) " '[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. [Citation.] Such a pretrial ruling may not be given issue-preclusive effect with respect to the merits of the action.' " (Upland Police Officers Assn. v. City of Upland (2003) 111 Cal.App.4th 1294, 1300.)
2. Plaintiff's Cross-examination Testimony
Defendant asserts that his due process rights were violated when plaintiff testified to matters outside the scope of her complaint, depriving him of adequate notice to prepare for the hearing. He contends that plaintiff's testimony that he had raped her was beyond the scope of the pleadings and that he thus lacked notice of the allegation against him and the opportunity to fairly respond to it.
" 'The essence of due process is the requirement that "a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it." ' " (Today's Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 212, quoting Mathews v. Eldridge (1976) 424 U.S. 319, 348 [47 L.Ed.2d 18, 41].) No allegation of rape appears in plaintiff's application for a DVRO. But plaintiff's testimony about the rape was the result of cross-examination by defendant's counsel. During cross-examination, defense counsel asked plaintiff if the parties had been in a relationship "of various sorts for about fourteen years now," and plaintiff responded affirmatively. The following exchange then ensued:
"[DEFENSE COUNSEL] Has he ever been violent with you?
"[PLAINTIFF] Yes.
"[DEFENSE COUNSEL] When?
"[PLAINTIFF] Approximately March or April of 2001.
"[DEFENSE COUNSEL] What happened?
"[PLAINTIFF] He raped me.
"[DEFENSE COUNSEL] Anything else?
"[PLAINTIFF] No other violence."
Defense counsel plainly opened the door to this testimony. Contrary to defendant's characterization, plaintiff cannot be said to have simply "blurted out [the] allegation of 'rape' in 2001," and plaintiff's testimony cannot be said to have improperly "veered" from the pleadings when she was called upon to answer defense counsel's questions. Defense counsel posed a question to plaintiff, and plaintiff, under oath, answered it. And the trial court was entitled to consider this evidence in making its ruling.
Defendant asserts that the alleged 2001 rape was the only factor "that could possibly support the granting of the restraining order," and that no "other conduct would meet the standard of 'abuse.' " A review of the relevant statutes demonstrates the error of defendant's argument. Abuse means, among other things, "[t]o engage in any behavior that has been or could be enjoined pursuant to Section 6320." (§ 6203, subd. (a)(4).) One of the types of conduct that may be "enjoined pursuant to Section 6320" is "harassing," and another is "disturbing the peace of the other party." (§ 6320, subd. (a).) As will be discussed in more detail in part I.B.3. of the Discussion, post, plaintiff's contention that defendant raped her was not the only conduct described by plaintiff which could support the granting of the DVRO. There was additional conduct constituting harassment and disturbing the peace which was set forth in plaintiff's application for a DVRO.
Plaintiff's direct response to a question posed by defense counsel on cross-examination, while she was under oath, stating that defendant raped her in 2001, did not violate defendant's due process rights. Defendant's contention lacks any merit.
B. Substantial Evidence Supporting the Original DVRO
1. Defendant's Contentions
Defendant asserts that plaintiff failed to make the required showing of abuse. He argues that none of the acts of which plaintiff complained constituted abuse within the meaning of the DVPA, and the trial court abused its discretion in issuing the DVRO because there is no substantial evidence of recent abuse. We disagree.
2. "Abuse" Under the DVPA, DVROs, and the Standard of Review
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.' " (Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 820, fn. omitted (Rodriguez), quoting § 6300.)
Section 6211 defines "domestic violence" as "abuse perpetrated against," among others, "[a] cohabitant or former cohabitant, as defined in Section 6209" and "[a] person with whom the respondent is having or has had a dating or engagement relationship." (§ 6211, subds. (b), (c), italics added.)
The definition of abuse in this context is key. At the time of the hearing, section 6203 provided: "For purposes of this act, 'abuse' means any of the following: [¶] (1) Intentionally or recklessly to cause or attempt to cause bodily injury. [¶] (2) Sexual assault. [¶] (3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. [¶] (4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320 ." (Former § 6203, italics added.) Section 6320 includes as conduct that may be enjoined under that section, "molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, . . . 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 . . . ." (§ 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 (Perez).) 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. (§ 6320.) "[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); see Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1146-1147 (Burquet).)
"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." (Nadkarni, supra, 173 Cal.App.4th at p. 1494, quoting § 6218.) "Generally, a trial court has broad discretion in determining whether to grant a petition for a restraining order under this statutory scheme." (In re Marriage of Fregoso and Hernandez (2016) 5 Cal.App.5th 698, 702 (Fregoso), 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 . . . ." ' " (Burquet, supra, 223 Cal.App.4th at p. 1143.) "We resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge in all legitimate and reasonable inferences to uphold the finding of the trial court if it is supported by substantial evidence which is reasonable, credible and of solid value." (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762 (Schild).) " '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." (Id. at p. 703.)
3. Analysis
To summarize, there was evidence presented at the hearing demonstrating that: defendant spoke to R., plaintiff's gardener, and asked him to monitor any men coming to see plaintiff, which conversation R. disclosed to plaintiff; defendant e-mailed plaintiff regarding her "promiscuous sexual habits" and called her names including "whore," "hoe [sic] mama, sexually promiscuous, stupid, idiot. He called [her] crazy. He said that [she] opened [her] legs to inmates, that [she] was disgusting, that [she] had sexually transmitted diseases"; defendant hired private investigators, told plaintiff that he had done so and that they were recording her in her home, her car, and in the community, and told plaintiff that the investigators had collected videos, photographs, and recordings of her; defendant e-mailed plaintiff about M.C. being at her house and threatened to " 'pop over' "; defendant told plaintiff that he had multiple guns in addition to his three registered guns, and specifically referred to one of his guns as a "throw away" gun "in the event that he needed to kill somebody at some point so that no one would know or be able to link it back to him"; defendant told plaintiff that "the only way ever be able [sic] to control [her] properties without any legal battle was [her] death"; defendant asked plaintiff to return his passport to him, stating that he was leaving the country, and, around the same time, reminded plaintiff of his "throw away gun"; defendant threatened plaintiff that if she did not marry him and add his name to her properties, she would "lose everything"; defendant threatened plaintiff that if she did not sign her properties over to him he would report her to the social worker's licensing board and that "a number of unsavory things would" happen to her; defendant threatened that he would "wag[e] war against [her] until [she] provided [her] properties"; defendant threatened that if plaintiff did not satisfy certain conditions, including attending therapy in his presence and getting him a job, he would report her to the licensing board; defendant told her that her career was " 'done' "; defendant threatened to disclose information to other bodies, including the Attorney General, and to disparage plaintiff in the community, in the media, to her boss, and to her family; and, in a telephone conversation with plaintiff's sister, E.D., which took place at a time when plaintiff allegedly had M.C. at her home, defendant asked E.D. to go to plaintiff's house and confront her, and stated that if he went to plaintiff's house, "he might wind up going to jail." Defendant did not deny that he made the statement to plaintiff's sister when he testified and did not explain what he meant. Indeed, he did not even address the statement during his testimony. (See Evid. Code, § 413 [failure to explain or deny evidence can be considered by the trier of fact in evaluating this evidence]; CACI No. 205 [same].) It can be inferred that E.D. told plaintiff about her conversation with defendant; E.D. testified that she called plaintiff after her conversation with defendant, and plaintiff testified that, shortly after receiving an e-mail from defendant about M.C. being at her house, she received a call from E.D. "who gave [plaintiff] additional information." Defendant's actions made plaintiff feel uncomfortable, anxious, frightened, harassed, threatened, offended, annoyed, on edge, and disturbed in her peace of mind.
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 (see generally Burquet, supra, 223 Cal.App.4th at p. 1143), we conclude that substantial evidence supports the trial court's determination that plaintiff established the existence of past acts of abuse (§ 6300) by a preponderance of the evidence based on the papers submitted by plaintiff and the testimony presented at the hearing. Defendant's conduct constituted, among other things, harassment and disturbing the peace within the meaning of subdivision (a) of section 6320, and therefore constituted abuse within the meaning of subdivision (a)(4) of section 6203. (Perez, supra, 1 Cal.App.5th at p. 398.) As for disturbing the peace of plaintiff, defendant's conduct rose to a sufficient level to "destroy[] the mental or emotional calm of" plaintiff. (Nadkarni, supra, 173 Cal.App.4th at p. 1497; see Burquet, at pp. 1146-1147.)
Defendant would characterize much of this evidence as merely demonstrating that he was willing to fulfill his professional obligation to report unethical conduct to the appropriate licensing board and other authorities. However, resolving every conflict in favor of the judgment (see generally Burquet, supra, 223 Cal.App.4th at p. 1143), the evidence demonstrates that defendant threatened plaintiff with disclosure of an alleged inappropriate relationship if she did not accede to his demands, among other things, that she resume a relationship with him, marry him, put his name on the title of her real properties, and get him a job. While defendant and his testimony would paint a very different picture, "[u]nder 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.) Moreover, plaintiff's contentions and the evidence supporting the trial court's determinations are not limited to defendant's conduct in threatening to expose plaintiff's alleged relationship with M.C.
We note here that defendant's implication that it is undisputed that plaintiff had an unethical or inappropriate relationship with M.C. is without basis in the appellate record. In a section in his reply brief under a subheading, "Facts Which Are Uncontested," defendant states that the "parties . . . agree that while both parties were working at Pelican Bay . . . , [plaintiff] met an inmate and began a personal relationship with him. [Citation.] The parties agree, and [plaintiff] testified, that having a relationship with an inmate client 'would be potentially considered unprofessional conduct.' [Citation.] [Plaintiff] acknowledged that if it was true that she had a relationship with [M.C.], it would potentially hurt her career." (Italics added.) In the lines in the reporter's transcript to which defendant cites as proving that plaintiff "began a personal relationship" with M.C., plaintiff was asked if she met M.C. at the prison, and plaintiff responded that she did. Asked, "Do you have a relationship with [M.C.]," plaintiff responded, "Not at this time." Plaintiff also testified that she did not have a "reportable" relationship with M.C. Thus, to the extent that defendant states that it is "uncontested" that plaintiff was or is carrying on an improper relationship with M.C., this is not established on this record.
Defendant asserts that the DVPA "does not provide for restraining orders to be issued based on 'harassment,' but instead requires 'abuse,' as defined in that Act, Family Code § 6203." Defendant's contention that a DVRO cannot be issued based on harassment is refuted by the express language of sections 6203 (both currently and as it read at the time of the hearing) and 6320. Nor does defendant's claim that there is not substantial evidence to support the DVRO because there is no evidence of violence have merit. As we have noted, the definition of "abuse" under the DVPA is much broader than acts of physical abuse or threats of physical abuse. (Perez, supra, 1 Cal.App.5th at p. 398.)
The courts in Rodriguez, supra, 243 Cal.App.4th 816 and In re Marriage of Evilsizor and Sweeney (2015) 237 Cal.App.4th 1416 both noted that, effective January 1, 2015, section 6203 was amended to expressly state that abuse " 'is not limited to the actual infliction of physical injury or assault.' " (Evilsizor, at p. 1425, fn. 8; see Rodriguez, at p. 822, fn. 3.) In both cases, the courts applied the prior version of section 6203 in effect at the applicable times, as do we. However, as the Rodriguez court stated, "we conclude that the amendment was reflective of existing case law, as described in the text, and clarified, but did not change, the applicable standard." (Rodriguez, at p. 822, fn. 3.)
We conclude that substantial evidence supported the conclusion that defendant committed acts directed at plaintiff which constituted abuse within the meaning of sections 6320 and 6203. Thus, we conclude that the issuance of the DVRO is supported by substantial evidence, and the trial court's order did not exceed the bounds of reason. The trial court did not abuse its discretion in issuing the order.
C. Forfeiture of Constitutional Claims
The originally issued DVRO and the first amended DVRO both contain a provision ordering: "[Defendant] shall not use [plaintiff's] name in a disparaging fashion." Defendant asserts that a DVRO cannot restrain constitutionally protected speech because it is not "abuse" within the meaning of the DVPA. According to defendant, plaintiff sought to restrain his constitutionally protected right to access the courts to resolve their property disputes, and his constitutionally protected right to report plaintiff's misconduct.
After the trial court determined that it would grant the DVRO, the court discussed some of the specifics with the parties. At one point, the court noted that it would "indicate that paragraph one and two not to use [plaintiff's] name in a disparaging fashion." Defendant did not raise any objection. Nor did defense counsel raise the issue in argument to the court at the close of all evidence. Thus, defendant " 'did not raise [this] constitutional issue[ ] below and do[es] not explain why [it is] being raised for the first time on appeal. [¶] Points not raised in the trial court will not be considered on appeal. [Citation.] "Even a constitutional right must be raised at the trial level to preserve the issue on appeal." ' " (Phillips v. Campbell (2016) 2 Cal.App.5th 844, 853.) It is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could have been addressed in the trial court. (People v. Davis (2008) 168 Cal.App.4th 617, 627.)
Here, assuming there was constitutional overbreadth, the trial court could have attempted to more narrowly tailor the order had defendant made the objection he now makes on appeal. Because he did not, we will not address the issue. Defendant has forfeited this claim.
D. The Award of Attorney Fees
Defendant asserts that the award of attorney fees should be reversed. Defendant contends that, under section 6344, which he asserts, and plaintiff agrees, governs the award of attorney fees here, the court must base its award on the parties' respective incomes and needs and factors affecting their ability to pay. Defendant asserts that, based on the income and expense declarations filed by the parties, plaintiff at the relevant time earned more than $11,000 per month, whereas he earned "just over $1,900.00 per month." Therefore, defendant asserts that, based on the parties' respective needs and abilities to pay, ordering him to pay attorney fees was reversible error.
In an income and expense declaration, plaintiff represented that she earned $9,582 gross per month from her job, and an additional $1,600 per month in rental property income, for a total average monthly income of $11,182.
However, as plaintiff notes, defendant's income and expense declaration indicates that, on average, he earned $1,367.78 monthly in pension/retirement fund payments, and $9,692.18 in income from self-employment, for a total of $11,059.96 per month. In his reply brief, defendant acknowledges the error in his initial briefing. However, he further states that, "when the restraining order is reversed, the award of attorney's fees must also be reversed," and that, "[r]egardless of how much [defendant] was earning, the orders should be reversed, including the order for attorney's fees."
We agree with the parties that section 6344 governs the award of attorney fees in this DVPA proceeding. However, other than the requested reversal of the DVRO, defendant offers no argument, analysis, or authority to demonstrate that there is a reason why we should reverse the trial court's determination as to the award of attorney fees to plaintiff. We find no basis to disturb the trial court's award.
II. Appeal from the Renewal of the DVRO
A. Effect of the Disposition on the Appeal from the Original DVRO
Defendant asserts that, if the issuance of the original DVRO is reversed, then the appeal from the renewal of the DVRO must also be reversed because there will be no existing order to renew. Because we affirm the issuance of the original DVRO, this contention is moot.
B. Substantial Evidence
1. Defendant's Contentions
Defendant asserts that substantial evidence does not support the renewal of the DVRO because there is insufficient evidence to support plaintiff's claim that she experienced continuing apprehension of future abuse. According to defendant, substantial evidence does not support the conclusion that the circumstances which allegedly gave rise to apprehension in plaintiff were actually connected to him.
2. Renewal of DVRO and Standard of Review
"Section 6345, subdivision (a) provides that a trial court may renew a restraining order 'upon the request of a party, either for five years or permanently, without a showing of any further abuse since the issuance of the original order, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party . . . .' When contested, a request to renew a restraining order should not be granted pursuant to section 6345 simply because the requesting party has 'a subjective fear the party to be restrained will commit abusive acts in the future.' " (Rybolt v. Riley (2018) 20 Cal.App.5th 864, 873-874.) "However, an imminent and present danger of abuse is not required." (Lister v. Bowen (2013) 215 Cal.App.4th 319, 332 (Lister), citing Ritchie, supra, 115 Cal.App.4th at p. 1288.) Rather, renewal of a DVRO requires a finding, by a preponderance of the evidence, that there is a "reasonable apprehension of future abuse." (Ritchie, at pp. 1279, 1283, 1290; accord, Lister, at p. 333.) "[T]his does not mean the court must find it is more likely than not future abuse will occur if the protective order is not renewed. It only means the evidence demonstrates it is more probable than not there is a sufficient risk of future abuse to find the protected party's apprehension is genuine and reasonable." (Ritchie, at p. 1290; accord Lister, at p. 333.)
" 'The trial court's ruling on a request to renew a [DVRO] is reviewed for an abuse of discretion. [Citation.] An abuse of discretion occurs when the ruling exceeds the bounds of reason. [Citation.] But, the exercise of discretion is not unfettered in such cases. [Citation.] "All exercises of discretion must be guided by applicable legal principles, however, which are derived from the statute under which discretion is conferred. [Citations.] If the court's decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, the court has not properly exercised its discretion under the law. [Citation.] Therefore, a discretionary order based on an application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal. [Citation.]" [Citation.] The question of whether a trial court applied the correct legal standard to an issue in exercising its discretion is a question of law [citation] requiring de novo review.' " (Perez, supra, 1 Cal.App.5th at pp. 396-397, quoting Eneaji v. Ubboe (2014) 229 Cal.App.4th 1457, 1463.)
"To the extent that we are called upon to review the trial court's factual findings, we apply a substantial evidence standard of review." (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1505 [applying substantial evidence standard on appeal from denial of application to terminate DVRO issued under section 6345].) Accordingly, "[w]e resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge in all legitimate and reasonable inferences to uphold the finding of the trial court if it is supported by substantial evidence which is reasonable, credible and of solid value." (Schild, supra, 232 Cal.App.3d at p. 762.)
3. Analysis
Plaintiff testified that, after the issuance of the DVRO, she received a number of e-mails she believed were sent by defendant. Defendant denied sending several of the e-mails and testified that he was not affiliated with the e-mail addresses from which the messages were sent. However, two of the e-mails, both dated November 2, 2014, were sent from defendant's work e-mail address. Defendant acknowledged that these e-mails bore his e-mail address, but it appears that it was defendant's position that these e-mails were actually sent prior to the issuance of the original DVRO, and that the versions offered in the trial court reflected a later date. Plaintiff repeatedly testified that e-mails from defendant frightened her. When asked on cross-examination why an e-mail she attributed to defendant frightened her, plaintiff responded, "[b]ecause anything from [defendant] right now terrifies me." The trial court resolved these differences in plaintiff's favor, concluding that "the unwanted contact was substantial as it related to the emails, the texts, et cetera."
Plaintiff also testified that defendant had contacted her on one occasion through LinkedIn, requesting to be affiliated with her. Defendant denied this.
Plaintiff testified that she believed that defendant's son, J.D.R., appeared in two photographs taken by a motion-activated camera on her property in Del Norte County after the original DVRO was issued. She testified that J.D.R. was a felon and a gang member and he had threatened her in the past. Plaintiff further testified that there had been a theft from the same property, but she had no information connecting J.D.R. to the theft. Defendant did not agree that it was J.D.R. in the photograph, however, he did acknowledge that, in 2014, J.D.R. had a daughter who lived in Del Norte County. The trial court expressly found plaintiff's testimony concerning J.D.R.'s presence on her Del Norte County property to be credible. Defendant correctly asserts on appeal that J.D.R. was not a subject of the DVRO. However, as his son, J.D.R. is connected to defendant and it could be inferred by plaintiff that J.D.R. acted on defendant's behalf. This evidence and J.D.R.'s connection to defendant is relevant to plaintiff's reasonable apprehension of future abuse by defendant.
Plaintiff also identified K.T. in photographs taken by a motion-activated camera at plaintiff's property near Amador City in spring 2015. Plaintiff testified that K.T. and defendant had "a significant affiliation . . . ."
Plaintiff testified that anonymous letters were sent to her supervisor and a deputy attorney general, and she believed that it was defendant or someone acting on his behalf who sent them. According to plaintiff, prior to the issuance of the original DVRO, defendant threatened to take such action. Additionally plaintiff testified, "the narrative within these documents is a narrative that [defendant] and [defendant] alone has endorsed." Plaintiff also believed that the postmarks on the envelopes supported her conclusion. Plaintiff testified, "it's frightening to me to have all of these letters and have this kind of discussion with the attorney general. It's a frightening thing to have all of these letters out there, including the fact that this discussion is even happening with the attorney general." Defendant denied causing the letters to be sent. The court agreed with plaintiff, characterizing the anonymous letters as "disconcerting," and noting, "that is consistent with a lot of the underlying facts and allegations in the prior proceedings."
According to plaintiff, between September 2014 and March 2017, her tires had been slashed and the air had been let out of them virtually every month. Plaintiff testified that she could not establish who was doing it. However, she feared defendant was responsible, and further stated, "I feel the timing is remarkable." Defendant denied damaging plaintiff's tires since the issuance of the original DVRO. The trial court found that, up to a point, the incidents could be deemed coincidental, but continued: "when you add the property damage with the underlying case, the emails, the person on the property, and . . . the letter sent to the employers and social media contact, it makes it much less coincidental. That, again, goes to the reasonableness of [plaintiff's] belief of future abuse."
On cross-examination, defense counsel asked plaintiff whether she had been diagnosed with any psychological or cognitive disorders, and plaintiff responded that she had. Plaintiff testified, "I was diagnosed with post-traumatic stress disorder secondary to being raped by" defendant. Upon further questioning by defense counsel, she reiterated that she was diagnosed after the issuance of the DVRO. Plaintiff testified that she received ongoing treatment and had attended approximately 110 therapy sessions. The trial court expressly found this to be relevant to the genuineness of plaintiff's apprehension of future abuse.
Also on cross-examination, plaintiff testified that defendant had contacted her by e-mail during the pendency of the hearing, since the previous time they were in court. The e-mail was about weight loss. Plaintiff testified that the e-mail made her "apprehensive that [defendant] just simply wasn't going to stop doing what he's been doing." She testified that it made her "extremely afraid." She continued, "I felt defeated . . . . Here we were in the middle of these proceedings, and he was still sending these to me. That is how it made me feel." On redirect, plaintiff testified that, "one of the things that's added to my distress as I -- as [defendant] has continued this to me, [sic] I've gained a lot of weight, which is obvious to anybody who knows me. [¶] So it does feel relevant to his having seen me and my weight gain."
In addition to the events occurring since the issuance of the original DVRO, "the trial judge ordinarily should consider the evidence and findings on which that initial order was based in appraising the risk of future abuse should the existing order expire." (Ritchie, supra, 115 Cal.App.4th at p. 1290.) "[T]he mere existence of a protective order, typically issued several years earlier, seldom if ever will provide conclusive evidence the requesting party entertains a 'reasonable apprehension' of future abuse of any kind should that order expire. But the existence of the initial order certainly is relevant and the underlying findings and facts supporting that order often will be enough in themselves to provide the necessary proof to satisfy that test." (Id. at p. 1291; accord Lister, supra, 215 Cal.App.4th at p. 333.)
The trial court expressly considered the allegation of rape, which preceded the issuance of the original DVRO. Additionally, plaintiff testified that defendant had "the gardener spying on" her. Plaintiff testified that the gardener, R., told her that "he was paid to tell who was coming and who was going." Defendant denied this. The evidence presented by plaintiff establishes that defendant contacted R. on September 4, 2014, which predates the issuance of the original DVRO by one day. However, these facts and this evidence, which was the same or strikingly similar to evidence presented in the hearing on the original DVRO and which therefore potentially constitute "evidence and findings on which that initial order was based," is relevant "in appraising the risk of future abuse should the existing order expire." (Ritchie, supra, 115 Cal.App.4th at p. 1290.)
Based on the rape allegations, plaintiff's diagnosis with PTSD, the e-mails, social media contact, the presence of J.D.R. on plaintiff's property, the tire damage, and the anonymous letters, the trial court found that plaintiff's apprehension of future abuse was both genuine and reasonable. Thus, the court found that plaintiff established by a preponderance of the evidence that she had a reasonable apprehension of future abuse.
We conclude that substantial evidence — including the evidence presented by plaintiff and the legitimate and reasonable inferences to be drawn therefrom — supports the trial court's determinations. (See generally Schild, supra, 232 Cal.App.3d at p. 762.) Much of the evidence gave rise to factual conflicts and questions of credibility. However, as stated ante, we must "resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge in all legitimate and reasonable inferences to uphold the finding of the trial court if it is supported by substantial evidence which is reasonable, credible and of solid value." (Ibid.) We conclude here that it is.
Many of defendant's contentions essentially amount to assertions that the trial court should have resolved factual conflicts differently. He emphasizes the evidence he presented that he denied sending e-mails, and asserts that e-mails "could easily have been fabricated by" plaintiff. He asserts that he "did not send" the LinkedIn contact and that "LinkedIn itself likely sent it . . . ." He asserts that the photograph that plaintiff testified she believed showed J.D.R. on her property merely showed "someone." He asserts that nothing connected him to the anonymous letters or the tire damage. In his reply brief, defendant suggests that plaintiff fabricated the allegation of rape knowing that the allegations in her petition were insufficient, emphasizes that he denied raping plaintiff, states that plaintiff's testimony was "not worthy of being believed," and asserts that the evidence concerning rape was not substantial evidence to support the trial court's determination. However, an appellate court " 'has no power to judge the effect or value of, or to weigh the evidence; to consider the credibility of witnesses; or to resolve conflicts in, or make inferences or deductions from the evidence. We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses. [Citation.] "Issues of fact and credibility are questions for the trial court." [Citations.] It is not an appellate court's function, in short, to redetermine the facts.' " (In re S.A. (2010) 182 Cal.App.4th 1128, 1140, quoting In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200; accord Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465 [when "considering a claim of insufficient evidence on appeal, we do not reweigh the evidence, but rather determine whether, after resolving all conflicts favorably to the prevailing party, and according the prevailing party the benefit of all reasonable inferences, there is substantial evidence to support the judgment"].) "Under the substantial evidence rule, we 'must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact.' " (In re S.A., at p. 1140, quoting In re Casey D. (1999) 70 Cal.App.4th 38, 53.) And, as we have noted, " '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, supra, 156 Cal.App.4th at p. 420; accord Lister, supra, 215 Cal.App.4th at p. 333.)
Defendant also devotes a substantial portion of his reply brief to reprising his patently meritless due process arguments made in connection with plaintiff's cross-examination testimony concerning the rape. We determined in part I.A.2. of the Discussion, ante, that plaintiff's testimony that defendant raped her, elicited by defense counsel on cross-examination, did not violate defendant's due process rights. We do not address the matter further here.
We conclude that substantial evidence supports the trial court's determinations.
C. Refusal to Admit Evidence and Permit Cross-examination
1. Defendant's Contentions
Defendant asserts that the trial court's failure to admit admissible evidence he proffered was an abuse of discretion and constituted reversible error. Defendant faults the trial court for refusing to admit: (1) evidence pertaining to plaintiff's credibility "regarding her testimony in the original DVRO"; (2) the contents of an affidavit that was included in the anonymous mailings; (3) written discovery responses from civil litigation between the parties; and (4) cross-examination of plaintiff about statements in a declaration provided by M.C.
2. Relevance and Standard of Review
"No evidence is admissible except relevant evidence." (Evid. Code, § 350.) " '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.) "Broadly speaking, an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence." (People v. Waidla (2000) 22 Cal.4th 690, 717.) "Speaking more particularly, it examines for abuse of discretion a decision on admissibility that turns on the relevance of the evidence in question. [Citations.] That is because it so examines the underlying determination as to relevance itself." (Id. at pp. 717-718.) A trial court abuses its discretion when its ruling " ' "falls outside the bounds of reason," ' " or where the trial court " ' "exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." ' " (People v. Fuiava (2012) 53 Cal.4th 622, 663, quoting, parenthetically, People v. Osband (1996) 13 Cal.4th 622, 666 & People v. Carrington (2009) 47 Cal.4th 145, 195.)
3. Analysis
a. Plaintiff's Credibility in Connection with Earlier Testimony
Defendant asserts that he sought to introduce evidence to show that plaintiff "had a pattern and practice of alleging harassment, and that the allegations made against [defendant] were very similar to allegations [plaintiff] had made in a prior lawsuit."
In the portion of the reporter's transcript to which defendant cites, defense counsel attempted to elicit from plaintiff testimony concerning a lawsuit she filed against her supervisor at Pelican Bay, and the nature of her accusations. The trial court upheld plaintiff's objection. The court emphasized that it was only concerned with events occurring since the 2014 issuance of the original DVRO, and that, if the events at issue "occurred prior to 2014, it's not relevant for purposes of today." Defense counsel argued that the evidence would demonstrate that plaintiff had a "common plan or scheme . . . ." The court responded: "For what? I'm not going to relitigate. I've said this several times. I'm not going to relitigate the original issues. [¶] The question for today is whether there's a reasonable apprehension of future abuse and whether that reasonableness is established by what has occurred either by the Court's findings at that hearing or subsequent to that. Her credibility at the original testimony is not in question today. It's just not. The Court's findings are what is relevant. [¶] And you're talking about things that occurred prior to the issuance of the original restraining order that you believe show a common scheme towards issuance of that restraining order. That can't be relevant." Defense counsel disagreed, asserting that, if plaintiff engaged in a pattern of bringing lawsuits based on similar allegations, that would be relevant to the trial court's determination, as it went to plaintiff's "credibility for truthfulness." The trial court was not persuaded, stating, "the Court is accepting the Court's decision from the original restraining order. The Court is not going back and saying she wasn't credible." The court emphasized that plaintiff had presented evidence concerning the e-mails, someone trespassing at her property, and her tires being slashed. The court stated that, "unless that prior lawsuit went to any of those, it's not relevant. You're not getting a second bite at the apple. You're just not."
As the court stated in Ritchie, "the trial court should not permit the restrained party to challenge the truth of the evidence and findings underlying the initial order . . . ." (Ritchie, supra, 115 Cal.App.4th at p. 1290; accord Lister, supra, 215 Cal.App.4th at p. 333.) Allowing such a challenge "would contradict principles of collateral estoppel and undercut the policies supporting those principles." (Ritchie, at p. 1290.) Thus, we agree with the trial court that the evidence defendant sought to introduce here was not relevant to the only issue to be addressed at the hearing — whether plaintiff had reasonable apprehension of future abuse. (See generally Ritchie, at pp. 1279, 1283, 1290.) Rather, this evidence would address and possibly serve to impeach plaintiff's allegations in her original application for a DVRO and the court's determination to grant that application. Because this evidence was not relevant to the only issue before the court, we conclude that the court did not abuse its discretion in refusing to allow defendant to present it.
b. Affidavit in Anonymous Mailings
Regarding the anonymous letters, plaintiff testified that one or more of them contained an affidavit completed by Dr. B.K.Y., who was Chief of Psychiatry at a particular clinic in Oregon when plaintiff worked there as a suicide prevention coordinator. Dr. B.K.Y. apparently sued plaintiff for defamation after plaintiff accused Dr. B.K.Y. of stalking "somewhere between 2008 and 2010." Plaintiff testified that the inclusion of this affidavit in the anonymous mailings was to discredit her and that it was harmful to her because it stated that she was not truthful. Defense counsel attempted at substantial length to question plaintiff about the contents of the affidavit and the background concerning the unrelated lawsuit in connection with which the affidavit was prepared.
The court found the 2010 affidavit relevant only insofar as it was received by plaintiff's supervisor after the original DVRO issued in 2014. When defense counsel protested, asserting that he had the right to ask about everything in the document, the court stated, "[y]ou don't get to relitigate prior issues. You're not going back to her credibility of the prior hearing. If that was brought into evidence at that prior hearing, I am not judging her credibility at that prior hearing. I am basing a decision on her reasonable apprehension now." Defense counsel then asserted that the affidavit was relevant because it contained "substantially or significantly similar allegations and things stated here and stated in her deposition relative to this lawsuit that are strikingly similar to the accusations made in this suit." When defense counsel reiterated his position that the affidavit showed a pattern of plaintiff's conduct, the court responded: "Prior to the granting of the restraining order. You're asking me to sit as an appellate court, then, and say that the Court should have considered her prior conduct and actions in making its determination. I have said that cannot happen. I will not do that. [¶] So if you can tie it into any of those areas that I told you that I see as having been set forth in testimony or evidence so far, then it's relevant. It's not relevant to the original granting." The court again stated that the affidavit was relevant for purposes of the hearing only insofar as it was received by the recipients after the original DVRO was issued.
Defendant asserts that the trial court abused its discretion in preventing him from questioning plaintiff about the contents of the affidavit. Defendant asserts that this evidence was relevant to plaintiff's credibility, and further asserts that the "credibility of a party is an issue in the renewal as much as in the original application hearing."
We conclude that the trial court did not abuse its discretion in limiting the defense's cross-examination on this affidavit. The affidavit filed by a person involved in litigation with plaintiff in approximately 2010 is not part of the record before us. As far as we can tell, it had no relevance to whether plaintiff had reasonable apprehension of future abuse by defendant. Defense counsel attempted to elicit testimony from plaintiff concerning the factual statements in the affidavit and how they were highly similar to allegations plaintiff made against defendant here and demonstrated a "common plan or scheme." However, the allegedly corresponding allegations plaintiff made against defendant here were made in seeking the original DVRO, and in testimony in that hearing, not the allegations she made in seeking renewal of the DVRO. As the trial court correctly concluded, these matters were not relevant to the sole issue to be determined by the trial court on plaintiff's renewal application. Instead, they were relevant to whether the trial court properly granted plaintiff's original application for a DVRO.
Moreover, we note that defense counsel specifically asked plaintiff what about the affidavit would make her look bad and plaintiff responded, "she states that I'm not truthful." As the trial court expressly stated, that assertion in the affidavit — that plaintiff was not a truthful person — was the extent of the relevance of the contents of the affidavit to this proceeding and defendant was permitted by the trial court to cross-examine plaintiff about it. While defendant is correct that credibility was at issue at the renewal hearing, the defense was permitted to cross-examine plaintiff about the affidavit to the extent that its contents were relevant to that issue. The trial court did not abuse its discretion in prohibiting defense counsel from inquiring further about the contents of the affidavit.
c. Discovery Responses in Civil Litigation
Defendant asserts that the trial court abused its discretion in refusing to allow defense counsel to use written discovery responses from a civil action between the parties in his cross-examination of plaintiff.
Following a recess, the trial court addressed documents the defense planned to use in cross-examining plaintiff. The trial court read into the record a list of the documents defendant proffered as exhibits, but there is no record as to the specific discovery responses defendant sought to introduce beyond counsel's representation that the discovery responses "speak to things like medication [plaintiff] was -- asserts that she was on, and they do go to her mental state . . . ."
The trial court informed defense counsel that it was "not going to allow any discussion as to any civil matter between the parties nor go into any type of discovery or responses on discovery." After discussing a number of other documents, the court continued: "I'm not allowing any more questioning on the Oregon case. I don't find that that further inquiry is relevant nor the civil case that occurred between [plaintiff], [defendant], and the California Department of Corrections at Pelican Bay; nor will I allow any cross-examination as it relates to any issues related to their civil case, which will include any discovery from that proceeding, which will include any financial transactions from that proceeding." After defense counsel requested clarification, the trial court stated: "I don't want any questions as it relates to a civil lawsuit. I am not going to allow this proceeding to digress into a method that a party can try and gain an upper hand in a civil lawsuit. That's not the purpose of this. [¶] This is not for you to question about discovery responses. It's just not. And so I'm not going to allow you to question her in regards to any discovery responses in a civil lawsuit with your client." The court further stated that the subject documents and other items were "not relevant to this proceeding."
We agree with the trial court's conclusion that plaintiff's interrogatory responses in unrelated civil litigation between the parties are not relevant to the discrete question at issue in this proceeding. Defendant asserts that a "sworn statement of a party is usually some of the best, most reliable evidence." This, while perhaps sometimes true, raises the question: the best, most reliable evidence of what? A sworn statement of a party in litigation may be some of the best and most reliable evidence concerning the declarant's representations provided the statements pertain to matters at issue in that litigation. However, to the extent that defendant asserts that plaintiff's sworn statement in unrelated civil litigation is the "best, most reliable evidence" of whether plaintiff has a reasonable apprehension of future abuse by defendant, the only matter at issue here, we cannot agree. As noted, the record contains no reference to the specific discovery responses defendant sought to introduce, other than counsel's representation that the responses "speak to things like" unspecified medications plaintiff said she was taking that purportedly went to her mental state. As a result, there is no showing on this record that this evidence had any relevance to the discrete question at issue in this proceeding. Defendant has not shown that the trial court abused its discretion in prohibiting the defense from cross-examining plaintiff using these unspecified and apparently unrelated civil discovery responses.
d. Cross-examination About M.C.'s Declaration
Finally, defendant asserts that the trial court's ruling prohibiting defense counsel from cross-examining plaintiff about M.C.'s declaration constituted an abuse of discretion. When defense counsel asked the court if it could cross-examine plaintiff using this declaration, the trial court noted that plaintiff did not offer the declaration, and asked defense counsel, "if they didn't admit that into evidence, how are you going to use a declaration from someone who has not testified to ask her questions?" The court noted that it had not considered the declaration, and therefore defense counsel would not be impeaching plaintiff with questions about the contents of the declaration. The court asked how the declaration was relevant. Counsel did not provide a response. The court concluded: "The impeachment is proper for things that she has said that are contradicted. I don't have the declaration as evidence. I don't know if she's testified to any portion of that declaration which may be contrary. That would be the only issue." The defense immediately rested.
Defendant asserts that, whether plaintiff submitted the declaration into evidence or not, he had the right to introduce any relevant evidence that is not otherwise inadmissible. However, the trial court did not bar defendant from introducing relevant material into evidence. Rather, the trial court did not permit defendant to cross-examine plaintiff about a declaration that was not in evidence, that plaintiff had not testified about, and that did not appear to the court to be relevant. Based on the record before us, which does not include the affidavit or its contents, we cannot disagree with the trial court's conclusion that there was no showing that the proposed cross-examination of plaintiff about unspecified statements in M.C.'s declaration, which was not admitted into evidence and about which plaintiff had not testified, was not relevant to the limited issue in this proceeding. We conclude that the defendant has not shown that the trial court abused its discretion in preventing defense counsel from cross-examining plaintiff about M.C.'s declaration.
Moreover, as is demonstrated by the sequence of events set forth ante, after the trial court stated that it did not know whether plaintiff testified in any way which might be contradicted by statements in the M.C. declaration, and that "[t]hat would be the only issue," defense counsel abandoned the issue by immediately resting the defense case. (See generally People v. Catlin (2001) 26 Cal.4th 81, 168 [a claim abandoned in the trial court is waived on appeal]; Johanson Transportation Service v. Rich Pik'd Rite Inc. (1985) 164 Cal.App.3d 583, 588 [issues raised and then abandoned in the trial court cannot be considered on appeal].)
e. Conclusion
We conclude that defendant has not shown that trial court abused its discretion in any of the evidentiary rulings challenged by defendant on appeal.
DISPOSITION
Both the order granting the original DVRO and the order granting permanent renewal of the DVRO are affirmed. Plaintiff shall recover costs on both appeals. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
/s/_________
MURRAY, J. We concur: /s/_________
ROBIE, Acting P. J. /s/_________
MAURO, J.