Opinion
E051037 E051627 E051926 Super.Ct.No. IND098669
12-20-2011
In re the Marriage of TIMOTHY and ELENA GROSS. TIMOTHY ROY GROSS, Respondent, v. ELENA GROSS, Appellant.
Elena Gross, in pro. per., for Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Lawrence P. Best, Temporary Judge, and Irma Poole Asberry, Judge. Affirmed as modified.
Elena Gross, in pro. per., for Appellant.
No appearance for Respondent.
Appellant Elena Gross was declared a vexatious litigant in the trial court, based on her conduct during extremely contentious proceedings for the dissolution of her marriage to Timothy Gross. She has filed applications for permission to file three separate appeals from various orders. We denied the applications in part because we determined that several of the orders she wished to appeal were not appealable, and otherwise granted permission to file the three appeals, which we have consolidated.
Timothy Gross did not file a respondent's brief in this appeal.
We originally consolidated case Nos. E051037 and E051627, with case No. E051037 designated as the master file. Subsequently, we consolidated case No. E051926 with the other two cases.
In this opinion, we address the following orders: the order declaring Elena a vexatious litigant; a restraining order filed July 30, 2010; and an order denying Elena's motion for attorney fees and costs. We will order the first two orders modified and affirm them as modified; we will affirm the order denying attorney fees and costs.
FACTUAL AND PROCEDURAL HISTORY
Timothy Gross filed a petition for dissolution of his marriage to Elena Gross. As of the date of the orders appealed from, dissolution proceedings were pending. The parties had been awarded joint legal custody of their two sons, who are now eight and four years old, and Timothy was awarded physical custody. Elena had visitation two weekends a month. The court had also authorized daily telephone calls between Elena and her sons three times a day for 10 minutes at a time.
As is customary in family law appeals, we will hereafter refer to the parties by their first names, solely for the sake of convenience and clarity. No disrespect is intended.
Relations between the couple were contentious, and Elena filed numerous motions and petitions, seeking among other things, modification of the custody order. She also sought restraining orders against Timothy. (See discussion of vexatious litigant ruling, below.) Neither party was represented by counsel. Timothy obtained an order declaring Elena a vexatious litigant and obtained a restraining order based on Elena's excessive telephone calls, which the trial court determined to constitute harassment. (See discussion below.)
Elena was represented by counsel at one hearing.
LEGAL ANALYSIS
1.
THE COURT DID NOT ABUSE ITS DISCRETION IN DECLARING ELENA A VEXATIOUS LITIGANT
A.
Standard of Review
On Timothy's motion, the trial court declared Elena a vexatious litigant pursuant to section 391, subdivision (b)(3) of the Code of Civil Procedure. (All further statutory citations refer to the Code of Civil Procedure, unless another code is specified.) That statute provides: "(b) 'Vexatious litigant' means a person who does any of the following: [¶] . . . [¶] (3) In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay." Pursuant to section 391.7, subdivision (a), the court issued a "prefiling order," which mandates that Elena obtain the permission of the presiding judge of any court in which she proposes to file any new litigation. For purposes of section 391.7, "litigation" includes not only any civil action or proceeding (§ 391, subd. (a)) but also "any petition, application, or motion other than a discovery motion, in a proceeding under the Family Code or Probate Code, for any order." (§ 391.7, subd. (d).)
Elena did not provide us with Timothy's motion to declare her a vexatious litigant, with her opposition to the motion, or with the trial court's ruling on the motion. On its own motion, this court took judicial notice of the trial court's order, filed January 21, 2011. We now take judicial notice as well of the trial court's amended ruling, filed August 9, 2010, which sets forth the factual and legal basis for the order.
We review a vexatious litigant finding for abuse of discretion. (Morton v. Wagner (2007) 156 Cal.App.4th 963, 971.) Specifically, because section 391, subdivision (b)(3) does not define what constitutes "repeatedly" filing "unmeritorious" litigation, we defer to the sound discretion of the trial court to make that determination. (Ibid.) Nevertheless, we must determine whether substantial evidence supports the finding that Elena's filings were "so numerous, 'unmeritorious' or 'frivolous'" as to come within the meaning of the vexatious litigant statutes. (Id. at pp. 971-972.)
B.
Elena's Contentions
Before we address Elena's contentions, we note the following:
In case No. E051627, in connection with Elena's petition for leave to file her appeal, we determined that a vexatious litigant order is a nonappealable interlocutory order. In case No. E051926, we granted Elena permission to appeal an order denying her application to file a motion to quash or dismiss the vexatious litigant order, but we did not grant permission to address the merits of the vexatious litigant order. However, in that case, Elena also filed a document entitled "Application for Permission and Motion to Stay and Dismiss the Trial Court's Vexatious Litigant Finding." We deemed that document to be a petition for writ of mandate, thus providing Elena with an avenue to address the merits of the vexatious litigant order. However, although the writ petition includes a memorandum of points and authorities, it is rambling and incoherent, and does not identify the legal issues by separate captions. Rather, each argument runs into the next. It also contains no citations to the record. Because it violates the appellate rules of court pertaining to the form and contents of briefs (see Cal. Rules of Court, rule 8.204(a)), we will disregard it. (See People v. Roscoe (2008) 169 Cal.App.4th 829, 840 [purpose of rule]; Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 542.) However, Elena has also addressed the merits of the vexatious litigant order in her opening brief in case No. E051926. In the interest of reviewing this issue on its merits, we will address the arguments made in that brief.
We will disregard the arguments concerning the vexatious litigant issue in the opening brief in case No. E051037 because we did not grant permission to appeal the merits of the vexatious litigant order in that case. We note, however, that the arguments in that brief are substantially similar to those made in the opening brief in case No. E051926.
C.
The Evidence Supports the Vexatious Litigant Finding
Elena contends that the evidence does not support the finding that she is a vexatious litigant. Preliminarily, she contends that the filings the trial court found to be frivolous or unmeritorious do not constitute attempts at relitigation "after a litigation has been finally determined," as provided for in section 391, subdivision (b)(2). However, section 391, subdivision (b) provides four separate bases for finding someone to be a vexatious litigant. Subdivision (b)(2) is one such basis; subdivision (b)(3) is an independent basis. Here, the trial court found subdivision (b)(3) applicable. Consequently, the provisions of subdivision (b)(2) are irrelevant.
Section 391, subdivision (b) provides that a vexatious litigant is "a person who does any [italics added] of the following:
"(1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.
"(2) After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.
"(3) In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.
"(4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence."
Elena also contends that the evidence does not support the vexatious litigant finding because the filings the court cited in support of its order were not frivolous but merely unmeritorious. However, section 391, subdivision (b)(3) expressly provides that a person may be declared a vexatious litigant if he or she has "repeatedly file[d] unmeritorious motions, pleadings, or other papers." Under that subdivision, there is no requirement that filings be so unmeritorious as to be frivolous. (See Morton v. Wagner, supra, 156 Cal.App.4th at pp. 971-972 [filings must be so "numerous, 'unmeritorious' or 'frivolous' as to come within the meaning" of § 391, subd. (b)(3) (italics added)].) There is no bright-line rule as to what constitutes "repeatedly," and a trial court's determination that a party's unmeritorious filings were so numerous as to come within the meaning of the vexatious litigant legislation is reviewed for abuse of discretion. (Ibid.)
Here, the trial court found that Elena filed three petitions and one amended petition for restraining orders between October 2009 and February 2010; nine motions involving modification of child custody orders, some of them within days after the denial of the previous motion, between November 2009 and June 2010; and four motions to disqualify the commissioner to whom the case was assigned, between November 2009 and April 2010. All of these petitions and motions were denied. The court found that the multiplicity of filings, many of them seeking to relitigate the same issues or facts, was a sufficient basis for declaring Elena a vexatious litigant.
Because Elena's argument is that the trial court abused its discretion because the motions and petitions were not frivolous, she does not address the pertinent question, which is whether the trial court abused its discretion because Elena's unmeritorious filings were not sufficient in number to support a vexatious litigant finding. We cannot say as a matter of law that filing 18 unmeritorious motions and petitions in the same case within an eight-month period does not qualify under section 391, subdivision (b)(3). Consequently, we reject Elena's argument.
Elena has interspersed several other legal arguments under the heading that the evidence does not support the vexatious litigant finding. These other arguments do not meet that description. Because they are not captioned and addressed separately, we decline to address them. (Sierra Club v. City of Orange, supra, 163 Cal.App.4th at p. 542.)
D.
The Vexatious Litigant Order is Not Void as Being in Excess of the Trial Court's Jurisdiction.
Elena contends that the vexatious litigant order is void because, for various reasons, the trial court lacked jurisdiction to issue it.
First, Elena contends that the vexatious litigant order is void because, in its ruling, the trial court stated, "It is the order of the court that [Elena's] future motions, pleadings and papers must be reviewed and approved for filing by the presiding judge of the Riverside Superior Court." She notes that section 391.7 authorizes a prefiling order for "any petition, application, or motion other than a discovery motion" (§ 391.7, subd. (d)), but does not authorize a prefiling order for "papers" generally.
Elena is correct that the order is overbroad, in that it requires approval of all papers Elena wishes to file, including responsive pleadings, oppositions to motions brought by Timothy, and documents she is required to file, such as income and expense declarations. That does not, however, render the entire order void as being in excess of the court's authority. Rather, we will order the trial court to strike the word "papers" and to limit the prefiling order to "new litigation" as defined in section 391, subdivision (a) and section 391.7, subdivision (d). (We note that the "order" Elena refers to is contained in the trial court's ruling on the motion. The actual order as filed and provided to the Judicial Council consists of Judicial Council Form MC-700, entitled "Prefiling Order -Vexatious Litigant," and states that Elena is precluded from filing any "new litigation" in propria persona without prior approval. This language can only be interpreted to refer to "litigation" as defined in section 391, subdivision (a) and section 391.7, subdivision (d), i.e., new civil filings and petitions, applications and motions other than discovery motions in the Family Code case. However, to avoid any confusion or possible contrary interpretation, we will direct the trial court to amend its ruling.)
Next, Elena contends that because many of the filings the trial court relied on to find that she had repeatedly filed unmeritorious pleadings or papers resulted in orders which were the subjects of pending appeals, the trial court could not consider them because the orders were not final. This argument is part of Elena's contention that the evidence does not meet the requirements of section 391, subdivision (b)(2). As we have noted elsewhere, section 391, subdivision (b)(2) provides: "After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined." (Italics added.) Section 391, subdivision (b)(3), on which the trial court based its ruling, does not involve the effort to relitigate issues which were previously finally determined; rather, it involves the repeated filing of unmeritorious pleadings, motions, or other papers in the current action.
Finally, Elena argues that the trial court had no jurisdiction to consider filings which resulted in orders which were then on appeal because a pending appeal divests the trial court of jurisdiction.
At some point, Elena's argument segues into attacks on the merits of various of these orders. None of the orders she attempts to attack on their merits is the subject of this appeal, and we disregard her arguments.
While an appeal is pending, the trial court generally lacks jurisdiction to take any action which would render the appeal futile by altering the appealed order or by conducting proceedings which may affect the appealed order. (§ 916, subd. (a); Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189.) However, Elena does not cite any authority which holds that a trial court may not rule on a vexatious litigant motion based on section 391, subdivision (b)(3) while an appeal is pending as to any order which resulted from a filing that the trial court views as unmeritorious, and we conclude that the trial court retains jurisdiction to rule on such a motion. The vexatious litigant order does not affect the order which is on appeal within the meaning of section 916, subdivision (a). And, if any of the orders on which the vexatious litigant order is based is determined by the appellate court to be erroneous, then the party may seek to quash the vexatious litigant order if there is no longer a basis for finding that he or she has repeatedly filed unmeritorious pleadings, motions or other papers.
In connection with this argument, Elena cites several trial court orders which are the subject of her request for judicial notice. We will rule on the request for judicial notice in a separate order.
2.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ISSUING A RESTRAINING ORDER
In case No. E051627, we permitted Elena to appeal from a restraining order entered on July 30, 2010. In case No. E051926, we permitted her to appeal from an order, filed on September 20, 2010, denying her motion to quash or dismiss the restraining order.
Timothy Gross filed an application for a domestic violence prevention restraining order. Elena contends that the court abused its discretion in granting the restraining order. We disagree that issuance of the order was an abuse of discretion, but we conclude that the order is overbroad.
Among other things, Elena contends that the court abused its discretion because the commissioner assigned to the case improperly decided a recusal motion Elena filed against him. The history of Elena's efforts to remove the commissioner is described in detail in an "Order Striking Statement of Disqualification," filed April 22, 2010. Elena's first two motions to disqualify the commissioner for bias were denied by a judge of the Ventura Superior Court. Elena has not challenged those orders. Elena's third and fourth disqualification motions stated no new grounds for disqualification and no new facts, and the commissioner had the authority to strike those motions. (§ 170.4, subd. (b).)
Pursuant to 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. (Fam. Code, §§ 6220, 6300.) Specifically, Family Code section 6300 provides, "An order may be issued under this part, with or without notice, to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit or, if necessary, an affidavit and any additional information provided to the court pursuant to Section 6306, shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse."
The DVPA defines domestic violence as abuse perpetrated against enumerated individuals, including a former spouse or cohabitant. (Fam. Code, § 6211, subds. (a), (b).) '"[AJbuse' means any of the following: [¶] (a) Intentionally or recklessly to cause or attempt to cause bodily injury[;] [¶] (b) Sexual assault[;] [¶] (c) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another[;] [¶] (d) To engage in any behavior that has been or could be enjoined pursuant to Section 6320." (Fam. Code, § 6203.) The behaviors outlined in section 6320 include "molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, 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, disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members." (Fam. Code, § 6320.)
Here, the court issued an order restraining Elena from harassing, attacking, striking, threatening, assaulting, hitting, following, stalking, or molesting Timothy, from destroying personal property, disturbing the peace, keeping Timothy under surveillance or blocking his movements. It further restrained her from contacting by telephone, mail or email, except for brief and peaceful contact as required for court-ordered visitation of the children. It also restrained her from taking any action to get Timothy's address or location, or those of family members, and ordered her to stay at least 100 yards away from Timothy and his home and vehicle, except for brief and peaceful contact as required for court-ordered visitation of the children. Finally, it restrained her from possessing a firearm. (The court denied numerous other orders Timothy sought.) However, the only pertinent factual allegation contained in Timothy's declaration in support of the restraining order concerned the excessive number of telephone calls Elena was making. He stated that an existing order permitted her to call the children three times a day for 10 minutes each time. However, she had called his cell phone 284 times in 15 days, and sometimes called 30 times a day. Notably, he did not ask the court to restrain Elena from calling; rather, he asked that the court amend the current order for telephone contact with the children and define "reasonable phone contact."
Elena contends that the court abused its discretion in issuing the restraining order because merely making telephone calls cannot support a DVPA restraining order. Elena is incorrect. Family Code section 6320 includes in its definition of abuse "telephoning, including, but not limited to, annoying telephone calls as described in Section 653m of the Penal Code." Penal Code section 653m provides, in pertinent part:
"(b) Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business."
Accordingly, repeatedly placing telephone calls to an estranged spouse is abuse within the meaning of Family Code section 6320, if it is done with the intent to annoy or harass.
Nevertheless, we agree with Elena that the breadth of the injunction is an abuse of discretion.
A grant or denial of a protective order under the DVPA is reviewed for abuse of discretion. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.) However, judicial discretion is not without limits. "The scope of discretion always resides in the particular law being applied, i.e., in the 'legal principles governing the subject of [the] action . . . .'" (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.) The DVPA must be broadly construed in order to achieve its purpose of providing protective orders to a broad class of victims of domestic violence. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1498.) Nevertheless, a court has authority only to restrain the recurrence of abuse which it can reasonably find has actually occurred, based on the evidence before it. (Fam. Code, § 6300 [court may issue order restraining a person "for the purpose of preventing a recurrence of domestic violence"]; see S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1265-1266.) In the absence of substantial evidence supporting the factual finding which brings the party's behavior within the purview of the DVPA, issuance of a restraining order is an abuse of discretion. (See Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822-823 [substantial evidence review applies to factual findings under DVPA]; Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137 [appellate court reviews factual findings in support of injunctions generally for substantial evidence].)
Here, the trial court found that Elena's numerous telephone calls had crossed the line into harassment, despite her explanation that multiple calls were often necessary in order for her to actually speak to her children for the 10 minutes she was allotted three times a day. Elena explained that Timothy often did not allow her to speak to the children when she called in accordance with the court order. She often had to redial several times during the 10-minute calling periods in order to be allowed to speak to the children. She provided declarations from two people who had witnessed her efforts to speak to the children. She also provided copies of email exchanges between herself and Timothy which, among other things, establish that Timothy was grossly abusive verbally. However, the telephone records Elena provided do not fully support her contention that she called repeatedly only within 10-minute windows at times when it would be appropriate to speak to the children. The records show a number of instances of repeated brief calls within a period of 10 minutes or so, but they also show instances of repeated calls over the course of half an hour or even an hour or more. The records also show calls being placed at 3:10 a.m. and at 3:33 a.m. and at 9:30 p.m. Neither 3:00 a.m. nor 9:30 p.m. is a reasonable time to be calling young children. Consequently, we conclude that the court's finding of harassment is supported by substantial evidence.
The telephone records Elena submitted in support of her opposition to the restraining order are partially redacted to obscure many of the telephone numbers to which she placed calls. The only unredacted portions show telephone calls placed to a single number, which we presume is Timothy's number. (Elena has not cited us to evidence in the record which establishes Timothy's telephone number.) Those unredacted calls do support Elena's contention that she was abiding by the order allowing her 30 minutes of telephone time per day with the children. However, there is neither a declaration nor testimony that only the unredacted calls shown on the telephone record were calls made to Timothy's number, and neither we nor the trial court is required to assume this to be the case. In his petition for the restraining order, Timothy declared under penalty of perjury that Elena "was calling up to 30 times a day" and had made 284 calls to his cell phone in a 15-day period. The trial court was not required to believe that Elena had not made the number of calls Timothy claimed, nor was it required to find that Elena made no calls to Timothy's number other than the unredacted calls shown in records she produced, as she claimed. Consequently, substantial evidence supports the court's conclusion that Elena made harassing telephone calls within the meaning of Penal Code section 653m.
Nevertheless, we conclude that the court did abuse its discretion because the restraining order restrains Elena from numerous acts which she has not committed: It orders her not to "harass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, [or] molest" Timothy, and not to destroy his personal property, disturb the peace, keep him under surveillance or block his movements. In the absence of evidence that Elena has ever committed these forms of abuse, it is an abuse of discretion to issue a protective order restraining her from doing so. (S.M. v. E.P., supra, 184 Cal.App.4th at pp. 1265-1266.) The restraining order also orders Elena not to attempt to get Timothy's address or location, and orders her to stay at least 100 yards away from his home and car. There is no factual basis supporting either order, nor the order prohibiting her from owning firearms. Accordingly, we will order the trial court to modify the restraining order to limit it to harassing telephone contact.
Because we have concluded that the restraining order exceeds the trial court's authority, we need not address Elena's contention that the trial court abused its discretion in denying her motion to quash or dismiss the restraining order.
3.
ELENA HAS NOT DEMONSTRATED THAT THE COURT ABUSED ITS DISCRETION IN DENYING HER MOTION FOR PENDENTE LITE ATTORNEY FEES AND COSTS
Elena contends that the trial court abused its discretion by denying her request for pendente lite attorney fees and costs. She contends that she was entitled to an award of attorney fees pursuant to Family Code sections 2030 and 2032. The gravamen of her argument appears to be that the court abused its discretion because, contrary to the court's statement that both parties had previously established that they had no income, she demonstrated that Timothy in fact had a history of unreported income.
Family Code section 2030 provides, in pertinent part:
"(a)(1) In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.
"(2) When a request for attorney's fees and costs is made, the court shall make findings on whether an award of attorney's fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney's fees and costs. A party who lacks the financial ability to hire an attorney may request, as an in pro per litigant, that the court order the other party, if that other party has the financial ability, to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward.
"(b) Attorney's fees and costs within this section may be awarded for legal services rendered or costs incurred before or after the commencement of the proceeding."
In a case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, "the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' [Citation.]" (In re I. W. (2009) 180 Cal.App.4th 1517, 1528.)
Elena's evidence—documents attached to her "Supplemental Declaration [re] Attorney Fees and Costs"—does not conclusively demonstrate that Timothy had any current income or assets. Nor does her declaration establish that the equities in the case mandated an award of attorney fees to equalize the parties' ability to present their cases. (Fam. Code, § 2032, subd. (b).) Consequently, she has not demonstrated that the trial court abused its discretion in denying her request for attorney fees.
Although this document is entitled "Supplemental Declaration," Elena has not cited to any previously filed document in the record on appeal which sets forth her claim for attorney fees, and we have not discovered one.
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DISPOSITION
The trial court is directed to amend its ruling declaring Elena Gross a vexatious litigant to require her to obtain permission of the presiding judge or justice of any court to file "new litigation," within the meaning of Code of Civil Procedure section 391, subdivision (a) and section 391.7, subdivision (d). The order is otherwise affirmed.
The trial court is directed to modify the restraining order filed July 30, 2010, to limit it to restraining Elena Gross from placing harassing telephone calls within the meaning of Penal Code section 653m to Timothy Gross. As modified, the restraining order is affirmed.
All other judgments and orders through September 27, 2010 (the date of Elena Gross's notice of appeal in this court's case No. E051926) are affirmed.
The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
J.
We concur:
Ramirez
P.J.
King
J.
Family Code section 2032 provides, in pertinent part:
"(a) The court may make an award of attorney's fees and costs under Section 2030 or 2031 where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties.
"(b) In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320. The fact that the party requesting an award of attorney's fees and costs has resources from which the party could pay the party's own attorney's fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances."