Opinion
C098212
04-22-2024
I.B., Plaintiff and Appellant, v. M.H., Defendant and Respondent.
NOT TO BE PUBLISHED
Super. Ct. No. STA-FL-CUSU-2022-0002973
Krause, J.
Plaintiff I.B. appeals from the granting of a domestic violence restraining order (DVRO) protecting M.H. for a period of three years. I.B. contends the trial court abused its discretion and violated his due process rights. We disagree and will affirm the DVRO.
FACTUAL AND PROCEDURAL BACKGROUND
On December 23, 2022, M.H. filed a Judicial Council form DV-100 (DV-100) request for a DVRO against I.B. M.H. and I.B. have two children together, a daughter and a son. The form asks M.H. to describe the most recent abuse and any past abuse. The form states, "[t]he judge will use this information to decide your request." By signing the form, M.H. declared under penalty of perjury that the information provided was true and correct.
M.H. stated that the most recent abuse occurred on June 29, 2022. I.B. arrived at her residence with three men to pick up his belongings, during which time he demanded the return of a Jeep he had given her as a birthday present. M.H. refused because the children had appointments that afternoon. I.B. called M.H. names and continued to do so when a civil standby officer she called had arrived. After leaving, I.B. sent M.H. a text message threatening to take the vehicle.
M.H. next described an incident that occurred on May 29, 2022, when I.B. dropped off their children at M.H.'s home. I.B. tried to push past M.H. to come into her home after she told him their daughter, who had gone inside the home, was upset because I.B. had introduced the children to his girlfriend, a recreational drug user. When M.H. would not let I.B. into the home, he pushed her, and she pushed him back.
M.H. next described an incident in September 2019 where I.B. returned home from a trip and M.H. accused him of cheating while on the trip. He began screaming and calling her names. Their daughter overheard him. I.B. said he would punch M.H.'s teeth in and knock her out. M.H. said she would call the police. I.B. grabbed M.H. by the neck and slammed her into a closet door. Their daughter came into the room and told him to stop.
In an attached Judicial Council form DV-101, M.H. described two additional incidents. The first occurred on December 15, 2022, at the school her children attend and where M.H. is a teacher. I.B. was late to pick up the children and sent his brother. When M.H. would not release the children to his brother, I.B. called her names while he was on a Facetime call on his brother's cellphone. Others in the area overheard the Facetime call. When I.B. arrived 30 minutes later, he went to the school office and was yelling that M.H. was the" 'worst teacher,'" everyone hates her, and she is a" 'bitch.'" When M.H. would not release the children to I.B. because he was late, he called the police.
Lastly, M.H. described an incident on December 22, 2022, when I.B. was picking up the children at her home. I.B. first tried to drive off while M.H. was still buckling her daughter into a car seat. I.B. called M.H. a" 'snitch'" and told her to watch her back, because she had been seen talking to the police. I.B. told their daughter he had people watching and following them and showed her photos of the children and M.H. that they did not know had been taken. M.H. also stated that her daughter reported that I.B. said he would not feed her unless she wore a particular sweatshirt and took a picture with his girlfriend.
On December 23, 2022, the trial court issued a temporary restraining order.
On January 12, 2022, I.B. filed a Judicial Council form DV-120 in response to M.H.'s request for a DVRO. The form directed I.B. to explain why he disagreed with the request for a DVRO. I.B. signed the form under penalty of perjury declaring that the information provided was true and correct. The form advised I.B. to prepare for a court date "by gathering evidence or witnesses, if you have any."
Regarding the June 29, 2022, incident, I.B. stated that, when he arrived with three friends to pick up his belongings, M.H. began throwing his things in the street. He asked her to put them in the Jeep. I.B. explained that he had served M.H. with a letter on December 21, 2022, which he attached as an exhibit, requesting that M.H. return the Jeep or obtain financing to remove his name from the title and reimburse him in full for the down payment, car payments, and cost of registration. I.B. attributed M.H.'s request for a DVRO to her receipt of this letter. I.B. stated he did not call M.H. names or harass, antagonize, or cause her emotional distress.
Regarding the May 29, 2022, incident, I.B. stated that M.H. blocked him from leaving when he was picking up the children. He did not try to come into M.H.'s home. M.H. was upset because the children had met his fiance, whom M.H. falsely accused of using drugs. M.H. also called the police, which led to a police officer calling I.B. After that incident, M.H. kept the children from I.B. during their entire summer vacation.
Regarding the September 2019 incident, I.B. stated that M.H. and he would often get into disagreements, but he never put his hands on her. Instead, he would leave, and M.H. would physically try to stop him.
Regarding the incident on December 15, 2022, I.B. stated that M.H. violated the custody order by refusing to allow his brother to pick up his son from school. In addition, I.B. was running only 15 minutes late. The custody order gave I.B. a 30-minute window to pick up the children before considering the visit cancelled. When I.B. arrived at the school, he went to the office to add his relatives to the children's emergency card. M.H. came in and said that I.B. could not add anyone to the emergency list. M.H. falsely called his brother a felon. I.B. reported M.H. to the police. I.B. stated that he did not call M.H. names or make any slanderous statements about her at the school.
Regarding the December 22, 2022, incident, I.B. stated that he did not threaten M.H. or have anyone follow her or the children or take photos. He never threatened not to feed his daughter for not wearing a sweatshirt. M.H. was upset that he took pictures with his children and Santa Claus.
On January 13, 2023, the trial court conducted a hearing on M.H.'s request for a DVRO. Neither party requested an evidentiary hearing or indicated an intent to present additional evidence beyond the pleadings and exhibits. Initially, the court sent the parties out to mediation regarding a modification to the custody order. After obtaining I.B.'s agreement to the modified order, the trial court asked the parties to address the DVRO. I.B. interjected, "There's nothing to address on that." Nonetheless, the trial court invited M.H. to speak first since she requested the DVRO.
M.H. expressed concern for her safety. She said that I.B. had threatened her directly several times, threatened her indirectly through her children, told her to watch her back, and threatened her mother. M.H. said I.B. had asked her if she had talked to the authorities. She had been followed and "had drones in my backyard." I.B. showed her daughter pictures of M.H. and the children when they were out. I.B. told their daughter she would become homeless, and the family would lose their car. M.H. described an incident on December 15, 2022, when I.B. was going to be late and sent his brother to pick up the children from school. M.H. believed I.B. had to be the one to pick up the children. M.H. kept the children on the school campus. When I.B. arrived at the school, he went to the office to add information to the account. When M.H. came into the office, I.B. cursed at her and called her names. School staff told I.B. to calm down and advised M.H. to leave by a back way. M.H. filed a police report after the incident.
Another time when they were exchanging the children, I.B. commented that M.H. was a "cop" and a "snitch," and told her to watch her back and that she knows "what happens to people who tell."
The trial court asked, "Anything else?" M.H. said, "I'm just-I'm concerned. . . . I just need to keep him away from me."
The following colloquy occurred between the trial court and I.B.
"THE COURT: [I.B.], do you have any questions?
"[I.B.]: Just concerning that
"THE COURT: Questions for her?
"[I.B.]: There's no questions for her. [¶] Do you want me to explain?
"THE COURT: Okay."
I.B. explained that he sent his brother to pick up their children from school because his flight was delayed. M.H. refused to release the children and took them onto the school campus. I.B. confirmed with the school that he had 30 minutes to pick up the children. When I.B. arrived at the school and school administrators determined that he didn't know where the children were, they called M.H. into the school office. When the school administrators asked if I.B. wanted to add somebody to the emergency card, I.B. said he thought only parents could be on the card. School administrators said I.B. could have whoever he wanted on the card. M.H. disagreed. I.B. added his brother, father, and uncle to the card.
The trial court asked I.B., "Anything else?" I.B. asked for a modification of the time allotted to pick up the children from school. The trial court reminded him, "We're talking about the restraining order. [¶] Anything else about the restraining order?"
I.B. stated that he was unsure if M.H. made a police report about the incident at the school, but he did. I.B. also argued that all the incidents but one reported in M.H.'s DVRO request occurred before the parties' last court appearance, including the June 29, 2022 incident.
I.B. concluded by stating that no one was following M.H. and the children. He said there were photos of them because photos of the family were posted on Instagram. There were no threats. M.H. lied when she said he had tried to force his way into the house, which nonetheless led to a curbside pickup requirement. I.B. said that he takes photos when he picks up the children to protect himself from false accusations and police reports filed by M.H.
The trial court asked, "Anything else?" I.B. said, "That's it."
The trial court ruled: "At this time I will find by preponderance of the evidence a domestic relationship and an incident of violence and pattern of harassment. I will order the temporary restraining order that's in place now be a permanent order for the next three years. [¶] Sir, you're not to threaten, harass or strike [M.H.] You're to stay 100 yards away from her person, home, job, vehicle. [¶] [M.H.], you're allowed to record any unlawful communications. [¶] Sir, you're to surrender any firearms. You're not to possess firearms and ammunition."
I.B. filed a timely notice of appeal.
DISCUSSION
I
Standard of Review
Under the Domestic Violence Prevention Act (DVPA), (Fam. Code, § 6200 et seq.) "a court is authorized 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' upon 'reasonable proof of a past act or acts of abuse.'" '" (Curcio v. Pels (2020) 47 Cal.App.5th 1, 11 (Curcio); §§ 6220, 6300, subd. (a).) "Abuse includes 'intentionally or recklessly caus[ing] or attempting] to cause bodily injury'; '[s]exual assault'; 'plac[ing] a person in reasonable apprehension of imminent serious bodily injury to that person or to another'; and 'engag[ing] in any behavior that has been or could be enjoined' under section 6320. (§ 6203, subd. (a).) Behavior that may be enjoined under section 6320 . . . includes 'disturbing the peace of the other party' (§ 6320, subd. (a)), which 'may be properly understood as conduct that destroys [another's] mental or emotional calm.' [Citation.] 'Thus, section 6320 provides that "the requisite abuse need not be actual infliction of physical injury or assault."' [Citation.]" (Curcio, supra, at p. 11.)
Undesignated statutory references are to the Family Code.
Relevant here, the DV-100 lists examples of what" 'abuse' means under the law," including that the other person: "harassed you"; "hit, kicked, pushed or bit you"; "threatened to hurt or kill you"; and "choked or strangled you."
"The DVPA vests the court with discretion to issue a restraining order 'simply on the basis of an affidavit showing past abuse.' [Citation.] The burden of proof is by a preponderance of the evidence. [Citations.] The DVPA 'confer[s] a discretion designed to be exercised liberally, at least more liberally than a trial court's discretion to restrain civil harassment generally.' [Citation.]" (Curcio, supra, 47 Cal.App.5th at p. 11.)
I.B. also contends the trial court abused its discretion by finding there was a past incident of violence based solely on the information related to M.H.'s DV-100, without questioning the parties or eliciting further evidence. I.B. argues that a court violates due process by relying on party declarations alone in granting a DVRO. Accordingly, we understand I.B. to claim a denial of due process, which we discuss separately from his abuse of discretion claim.
"We review the grant of a DVPA restraining order for abuse of discretion, and, to the extent we are called upon to review the court's factual findings, we apply the substantial evidence standard of review. [Citation.] In reviewing the evidence, we examine the entire record to determine whether there is any substantial evidence- contradicted or uncontradicted-to support the trial court's findings. [Citation.] We must accept as true all evidence supporting the trial court's findings, resolving every conflict in favor of the judgment. [Citation.] We do not determine credibility or reweigh the evidence. [ Citation.] If substantial evidence supports the judgment, reversal is not warranted even if facts exist that would support a contrary finding. [Citation.]" (Curcio, supra, 47 Cal.App.5th at p. 12; see also Marriage of F.M. &M.M. (2021) 65 Cal.App.5th 106, 115-116; M.S. v. A.S. (2022) 76 Cal.App.5th 1139, 1143-1144.)
II
Abuse of Discretion
I.B. contends the trial court abused its discretion by granting the DVRO "without sufficient evidence in the record and by failing to consider relevant evidence from" I.B. We disagree.
I.B. attempts to undermine the evidence of abuse presented in M.H.'s DV-100 by focusing on deficiencies in M.H.'s oral presentation at the hearing and then faulting the trial court for not eliciting further evidence. For example, I.B. notes that M.H.'s "moving papers allege abuse" on December 22, 2022. I.B. argues that, based on M.H.'s oral argument (which he erroneously refers to as "testimony," even though neither party was sworn) about this incident at the hearing, "there is no clarity in the record of what day these allegations occurred and if this incident was in fact the same occurrence alleged in her moving papers." I.B. further asserts the trial court "failed to make a determination on the record of the actual date of occurrence ...." I.B. concludes that M.H.'s "testimony that the incident occurred lacks foundation and specificity. There is not sufficient detail in the statement to meet the standard of sufficient evidence to find that the event actually occurred." I.B. additionally asserts that he did not receive notice of this occurrence or an opportunity to respond or cross-examine M.H., so the trial court failed to consider his relevant evidence.
This argument is meritless. M.H.'s DV-100, which she signed under penalty of perjury, is not a pleading in the traditional sense, but rather a declaration that provides evidence upon which the trial court may determine without needing more, whether to grant a DVRO. (See Curcio, supra, 47 Cal.App.5th at p. 11; § 6300, subd. (a).) M.H. provided a detailed statement in the DV-100 of the events of December 22, 2022: "After coming to pick up the kids for his day, [I.B.] tried to drive off while I was trying to buckle our 8 year old [sic] daughter in the car. If she hadn't unlocked her door he would have drove off while I was holding the door handle. After I was able to buckle her in he told me I better watch my back because I was a 'snitch' and had been seen talking to the police. He told my daughter that he has people watching everything we do &even showed her pictures of us out, pictures we were unaware were being taken as we are being watched &followed. After the visit my daughter came home saying her dad threatened not to feed her unless she wore a specific sweatshirt &was forced to take a picture with his girlfriend [sic] both my kids tell me that they are uncomfortable with [sic] I have expressed this to him."
M.H. did not file a brief, therefore our review is limited to I.B.'s opening brief and the record. However, I.B.'s recitation of the facts inexplicably fails to include any citations to the clerk's transcript in the record, which contains the party's written submissions. We remind appellant that California Rules of Court, rule 8.204(a)(1)(C) provides that each brief must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears."
M.H.'s sworn statements in the written record constituted substantial evidence of incidents of abuse, notwithstanding any lack of specificity in her statements at the hearing. "[T]he DVPA does not impose a heightened standard for specificity, nor does it contain any corroboration requirement. Instead, it provides that a court may issue a DVRO 'if an affidavit or testimony and any additional information provided to the court . . . shows, to the satisfaction of the court, reasonable proof of past act or acts of abuse.' (§ 6300, subd. (a), italics added.) The DVPA also expressly provides that a court may issue a restraining order 'based solely on the affidavit or testimony of the person requesting the restraining order.' (§ 6300, subd. (a), italics added.)" (Marriage of F.M. &M.M., supra, 65 Cal.App.5th at pp. 118-119.)
III
Due Process
I.B. contends that the trial court violated his right to due process because (1) he failed to receive notice of all incidents of abuse M.H. described at the hearing that were not mentioned in her DV-100, and (2) the hearing did not afford him a meaningful opportunity to be heard.
As to lack of notice, I.B. once again confuses the argument presented at the hearing with testimony. M.H. was not sworn and did not testify at the hearing. Therefore, the trial court did not receive new evidence of abuse at the hearing. In any event, I.B. forfeited the claim by failing to cite authority for the proposition that argument or even testimony must match the pleadings (In re Marriage of Davila and Mejia (2018) 29 Cal.App.5th 220, 227) and by failing to object at the hearing to the supposed discrepancies (Rivera v. Hillard (2023) 89 Cal.App.5th 964, 985).
On the other hand, I.B. raises a colorable concern that he was denied a meaningful opportunity to be heard in violation of his right to due process. Indeed, our sister courts have held that granting a DVRO based on affidavits or declarations alone raises due process issues, where the parties appear in propria persona and the trial court did not take an active role in eliciting evidence at the hearing.
For example, in the recent case of In re Marriage of D.S. and A.S. (2023) 87 Cal.App.5th at page 926 (D.S. and A.S.), the appellate court held that, while section 6300 permits a trial court to issue a DVRO based on the parties' written declarations, that provision "should not be read to override the due process requirements that provide for a hearing under section 6340." (D.S. and A.S., supra, 87 Cal.App.5th at p. 935.) Due process requires an opportunity to be heard in a meaningful manner, which means an opportunity to examine and cross-examine witnesses. (Ibid.) Moreover, since DVRO litigants are frequently self-represented, the trial court is expected to play a more active role in developing the facts before issuing a DVRO, since such litigants cannot be expected to know" 'each of the procedural steps, to raise objections, to ask all the relevant questions of witnesses, and to otherwise protect their due process rights.'" (Id. at p. 935, quoting Ross v. Figueroa (2006) 139 Cal.App.4th 856, 861, fn. omitted.)" 'The role of a judicial officer sitting in such a court, which has many attributes of an inquisitorial as opposed to an adversarial process, is different than when sitting in a purely adversarial court where the parties are presumed to be "well counseled" by skilled and knowledgeable lawyers.'" (D.S. and A.S., at p. 935, quoting Ross, supra, at pp. 866867; see also Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 423-424.) In a domestic violence case, it is not reasonable for a trial court to sit back and be silent. (D.S. and A.S., at p. 935.)
In D.S. and A.S, the appellate court concluded that the husband did not have a meaningful opportunity to be heard when he filed a response disputing the wife's DVRO request and objecting to her evidence, "[y]et the court received no testimony and made no effort to probe the parties to determine their credibility. [I]t is not possible that the court could reasonably have made any credibility determinations or resolved the material factual disputes based solely on the pleadings alone." (D.S. and A.S., supra, 87 Cal.App.5th at p. 936.)
I.B. attributes the brevity of the hearing to the trial court's practice of sending parties to mediation on custody orders and "then piggy backs the DVRO hearing to the very end of the proceedings," which results in "truncated proceedings" that I.B. contends violated his due process rights. I.B. provides no authority questioning the validity of this procedure, which also saves self-represented parties the burden of multiple trips to court. Moreover, trial courts have inherent power to control the proceedings before it. (People v. Superior Court (Alexander) (1995) 31 Cal.App.4th 1119, 1133.) While we endorse procedure that gives the parties a fair opportunity to present evidence in DVRO hearings by various means, we have no wish to micromanage the trial court," 'even assuming we had the power to do so.'" (Litmon v. Superior Court (2004) 123 Cal.App.4th 1156, 1172, quoting Miller v. Superior Court (1990) 221 Cal.App.3d 1200, 1211.)
We ultimately conclude that I.B. was not deprived of due process in this case. In D.S. and A.S., "[t]he court did not invite either party to present their version of events and did not question either party or allow an opportunity for cross-examination on the disputed issues." (D.S. and A.S., supra, 87 Cal.App.5th at p. 936.) Here, the trial court afforded each party an opportunity to explain their version of the events, even though neither party requested an evidentiary hearing or indicated an intent to present additional evidence. Moreover, after M.H. recounted her version, the trial court expressly asked I.B. if he wanted to question M.H., and he declined.
That said, by repeatedly asking the parties, "Anything else?" during the hearing, the trial court could have given the impression it sought to summarily dispose of the matter. To be sure, proceedings under the DVPA are streamlined to ensure that victims can quickly obtain protection. (S.A. v. Maiden (2014) 229 Cal.App.4th 27, 40-41.)
However, we note that the 20-minute rule family law courts formerly set for DVRO hearings-presupposing that a matter could be decided on the papers, with limited live testimony being the exception-has been eliminated by the Family Code. (See Hogoboom &King, Cal. Practice Guide: Family Law (The Rutter Group 2023) ¶ 5:486, p. 5-264.)
DISPOSITION
The domestic violence restraining order is affirmed. M.H. shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
We concur: Earl, P. J., Wiseman, J. [*]
[*] Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.