Opinion
B288976
02-03-2020
AMANDA FRANCHINI, Respondent, v. PHUONG HUNG DAVIS, Appellant.
Law Offices of Lisa R. McCall and Lisa R. McCall for Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 17STRO04934) APPEAL from an order of the Superior Court of Los Angeles, James E. Blancarte, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed. Law Offices of Lisa R. McCall and Lisa R. McCall for Appellant. No appearance for Respondent.
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Defendant and appellant Phuong Davis appeals from a domestic violence restraining order issued at the request of his former girlfriend Amanda Franchini, respondent here. We agree with Davis that the trial court's finding of past abuse is not supported by substantial evidence in the record and that the trial court improperly shifted the burden of proof to him. Accordingly, we reverse.
Franchini did not file a respondent's brief.
The parties stipulated at the hearing on the restraining order that James E. Blancarte, then a court commissioner, could serve as a temporary judge. Blancarte has since been appointed as a judicial officer of the Los Angeles Superior Court.
FACTUAL AND PROCEDURAL BACKGROUND
Franchini and Davis had a romantic relationship and lived together for three years. They broke up around August 2017.
On December 8, 2017, Franchini filed a Judicial Council form DV-100 requesting a domestic violence restraining order against Davis. Franchini stated on the form, "Phuong and I have been broken up for about four months now. During our relationship Phuong was verbally and psycholog[icall]y abusive to me. Since the break up Phuong has been harassing me and has had other people attack me verbally. I have had to block him on social media and [block] his phone number. When Phuong was unable to reach me he began to attack my boyfriend. . . . Our mutual friend told me that Phuong asked her to ask me if I can open up my Facebook page making it un-private so he can see what events I am attending and what I am basically up to. I am here [filing for the restraining order] because Phuong is very manipulative, I do not trust him or what he is capable of doing. After the break up his behavior has become worse and worse. His behavior is obsessive, unpredictable, and erratic." Franchini described Davis providing her personal email address to the ex-girlfriend of Franchini's current boyfriend, and stated that the ex-girlfriend was now "contacting me [and] harassing me through email." Franchini concluded, "Phuon[g] has spoken bad[ly] of me to our mutual friends. I need for Phuong to stay away [for my] safety and my mental sanity."
Franchini requested an order requiring Davis to stay 100 yards away from her, and prohibiting Davis from, inter alia, harassing her, disturbing the peace, or contacting her directly or indirectly by phone or email. She also requested the right to record those communications from Davis that violate the restraining order, and to order Davis to a batterer intervention program.
The trial court granted a temporary restraining order and set a hearing for December 29, 2017, at which both Franchini, represented by counsel, and Davis, in propria persona, appeared.
The trial court asked if Franchini's written statement in the DV-100 was "true, accurate and correct" and Franchini said it was. The trial court stated, "The court accepts your written statements as your preliminary testimony in this case," but noted that Davis had the right to cross-examine Franchini and testify or present witnesses on his own behalf. The trial court stated that if "Mr. Davis were not here today, I could and would grant further restraining orders, but he is here. So I'm not going to make these orders until I hear from him, and I may not make them at all depending upon his evidence. [¶] The only thing at this point that is clear is that the burden of proof has shifted from [Franchini] over to Mr. Davis. Mr. Davis now has the burden of proving by a preponderance of the evidence that I should not grant further restraining orders."
Davis testified that he had asked the mutual friend to ask Franchini to allow Davis to view her Facebook page so that he could identify what events she was going to "so I could avoid seeing her." Davis testified he and Franchini had tried to remain friends "up to the end of October," at which point Davis "actually asked for no contact." Davis indicated that Franchini's boyfriend's ex-girlfriend had contacted him, not the other way around, and Davis had informed Franchini of the contact because he "felt like she needed to know this information, and I made no further contact after that date. She requested that I not contact her." Davis denied "any kind of psychological abuse." When Davis began to explain further regarding his contact with Franchini's boyfriend's ex-girlfriend, the trial court said, "You are getting far afield to what I would consider relevant and admissible evidence."
The trial court asked if Davis had any questions for Franchini, and Davis said he did not. Davis stated he wished to call the mutual friend as a witness to testify regarding his intentions in requesting access to Franchini's Facebook page, and to counter Franchini's allegations that Davis was "publicly discrediting" her.
After asking the parties some questions, the trial court stated that it would not use Davis's request to access Franchini's Facebook page as evidence against him. The trial court stated, "I'm going to take your word under oath that your intent was to simply avoid having to bump into Ms. Franchini." Accordingly, the trial court denied Davis's request to call the mutual friend as a witness.
The trial court asked what else Davis wished to add. Davis stated, "I'm not sure what the other complaints or the relevance of those complaints are and what I should address, sir." The trial court confirmed with Franchini there were no allegations of physical abuse. The trial court then explained that, in the absence of physical abuse, it could only issue a restraining order if there were "other acts which under the Family Code constitute disturbing someone's peace to a degree that no reasonable person should have to endure." The trial court stated, "In this case Ms. Franchini is alleging that you disturbed her peace by harassing her. That's a quote from her. By being verbally and psychologically abusive to her. That's a quote from her. To [the] extent that she had to block you on social media. That's also a quote from her written statement."
The trial court inquired about Franchini's allegation that Davis "attacked" her boyfriend. Franchini's counsel explained that Davis had sent Franchini's boyfriend "several hundred text messages," and that the boyfriend had discovered a note left for him stating, " 'You are not a man.' " The trial court declined to accept this evidence or allow the boyfriend to testify, concluding it was not pertinent to whether Franchini met her burden of proof. The trial court also declined to accept evidence that Davis purportedly attempted to interfere with Franchini attending a social event after she had obtained the temporary restraining order against him.
The trial court took the case under submission. Later that day it granted a three-year restraining order forbidding Davis from engaging in conduct such as harassing, threatening, or disturbing the peace of Franchini, contacting her, or seeking to obtain her address. The order directed Davis to stay at least 100 yards away from Franchini, as well as her home, place of work, school, and vehicle. The order gave Franchini the right to record any communications by Davis that violated the order.
The record does not indicate that either Franchini or the superior court clerk served Davis with a filed-endorsed copy of the judgment or a document entitled "Notice of Entry" of judgment, which would have triggered the 60-day deadline to file a notice of appeal. (Cal. Rules of Court, rule 8.104(a)(1)(A), (B) (Rule 8.104).) Although the superior court clerk served Davis with a three-page minute order indicating the trial court had issued the restraining order, the "Clerk's Certificate of Mailing/Notice of Entry of Order" appeared on page 2 of the minute order, which is insufficient to meet Rule 8.104(a)(1)(A)'s requirement that the document be entitled "Notice of Entry." (See Bi-Coastal Payroll Services, Inc. v. California Ins. Guarantee Assn. (2009) 174 Cal.App.4th 579, 586.) In the absence of service of a document triggering the 60-day deadline, Davis's March 19, 2018 notice of appeal, filed within 180 days after entry of judgment, was timely. (Rule 8.104(a)(1)(C).)
APPLICABLE LAW AND STANDARD OF REVIEW
Under the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.), "a court may 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" upon "reasonable proof of a past act or acts of abuse." ' " (In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220, 225 (Davila & Mejia).) A person seeking a protective order under the DVPA must make "a showing of past abuse by a preponderance of the evidence." (Id. at p. 226.) " 'Abuse' " includes, inter alia, "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); see also § 6203 [defining " 'abuse' " as "any behavior that has been or could be enjoined pursuant to Section 6320"].)
Undesignated statutory citations are to the Family Code. --------
We review a trial court's grant of a domestic violence restraining order for abuse of discretion. (Davila & Mejia, supra, 29 Cal.App.5th at p. 226.) In doing so, we review the trial court's factual findings for substantial evidence. (Ibid.) Under that standard, " ' "[w]e must accept as true all evidence . . . tending to establish the correctness of the trial court's findings . . . , resolving every conflict in favor of the judgment." ' " (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1143.)
DISCUSSION
Davis contends the trial court abused its discretion by issuing the protective order without sufficient evidence of abuse and by improperly shifting the burden of proof to him. We agree on both counts.
The trial court's finding of abuse is not supported by substantial evidence. Franchini did not testify, and thus the trial court relied entirely on her written statement in her application for a restraining order. The trial court expressly rejected much of that statement as a basis for granting a restraining order. Specifically, the trial court rejected the evidence that Davis had attempted to access Franchini's Facebook page or had "attacked" her boyfriend. The trial court also impliedly rejected the allegation that Davis had contacted Franchini's boyfriend's ex-girlfriend in order to harass Franchini. When Davis attempted to explain what had happened, the trial court essentially told him to move on, stating Davis was "getting far afield to what I would consider relevant and admissible evidence."
Without the above rejected evidence, Franchini's statement consisted of a series of vague factual assertions and legal conclusions. She stated that Davis "was verbally and psychology[icall]y abusive" and had "been harassing me and has had other people attack me verbally." Franchini stated she had blocked Davis from contacting her by phone or social media, but did not explain why. She said, without any specific facts, that his behavior "has become worse and worse," describing it as "obsessive, unpredictable, and erratic." She claimed she needed a restraining order for her "safety and [her] mental sanity." These conclusory statements, without specific facts in support of the conclusions, are not substantial evidence of abuse.
The trial court compounded the error of finding this evidence sufficient by declaring the burden of proof had shifted to Davis, who now had to prove "by a preponderance of the evidence that [the court] should not grant further restraining orders." The law imposes no such burden on a party opposing a restraining order. It was incumbent on Franchini, as the party seeking the restraining order, to prove past abuse by a preponderance of the evidence. (Davila & Mejia, supra, 29 Cal.App.5th at p. 226.) As set forth above, the portions of her written statement on which the trial court relied did not meet this burden, and Franchini did not provide additional testimony at the hearing.
Given our conclusion, we do not reach Davis's argument that the trial court erred by accepting Franchini's written statement in lieu of live testimony.
DISPOSITION
The December 29, 2017 order restraining Davis is reversed. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J. We concur:
ROTHSCHILD, P. J.
CHANEY, J.