From Casetext: Smarter Legal Research

In re Marriage of Hemrajani

California Court of Appeals, Second District, Third Division
Aug 16, 2023
No. B318875 (Cal. Ct. App. Aug. 16, 2023)

Opinion

B318875

08-16-2023

In re the Marriage of NATASHA and NAVIN HEMRAJANI. v. NAVIN HEMRAJANI, Appellant. NATASHA HEMRAJANI, Respondent,

Gary J. Cohen for Appellant. Trugman Law Group, Richard S. Trugman; Benedon &Serlin, Mark Schaeffer, and Kelly Horwitz for Respondent.


NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County, No. 21STFL11681 Dianna Gould-Saltman, Judge. Affirmed in part, reversed and remanded in part.

Gary J. Cohen for Appellant.

Trugman Law Group, Richard S. Trugman; Benedon &Serlin, Mark Schaeffer, and Kelly Horwitz for Respondent.

LAVIN, J.

INTRODUCTION

Navin Hemrajani appeals an order denying his request for a domestic violence restraining order (DVRO) against his wife, Natasha Hemrajani, under the Domestic Violence Prevention Act, (Fam. Code, § 6200 et seq.; DVPA). Navin contends that, in denying his request for a DVRO, the court failed to properly evaluate the evidence of domestic violence, erroneously excluded certain evidence, and improperly found that physical separation alone could substitute for the legal protections afforded by a DVRO. We agree that the court applied improper legal standards in denying Navin's request and remand to allow the court to consider whether mutual DVROs are appropriate. We affirm the court's evidentiary rulings.

All undesignated statutory references are to the Family Code.

Because the parties share the same last name, we refer to them by their first names. No disrespect is intended.

FACTS AND PROCEDURAL BACKGROUND

Navin and Natasha married in July 2016 and have one child, Maya (born December 2016). Natasha filed a petition for legal separation of marriage on October 12, 2021.

1. Navin's Application for a DVRO

On November 16, 2021, Navin filed an application for a DVRO protecting himself and Maya from Natasha. Navin attached a declaration in which he contended that Natasha had pushed and shoved him numerous times in front of Maya, threatened him, threatened to call the cops on him, and threatened to take Maya away from him. He asked that the protective order include Maya because Natasha had abused him in front of Maya, causing her distress. Navin also asked that Natasha be restrained from traveling out of the country with Maya, as Natasha had stated that she was applying for Maya to have Australian citizenship and has family in Australia.

Navin identified several recent incidents of alleged abuse, all of which took place on November 12, 2021. Natasha and Maya were about to leave for the park when Navin greeted his daughter and asked how her school was. Natasha started screaming and yelling in front of Maya, accusing Navin of upsetting the child, even though the child was happy to see her father and hugged him. Natasha attempted to physically "yank[]" Maya away from her father and threatened to call the police on him. Later that day, after Natasha and Maya returned from the park, Navin was playing with Maya and her dolls when Natasha "stormed into our area and started yelling at [Navin], unprovoked." Shortly after that, Natasha again yelled at Navin, demanding money to go to dinner and taunted him about cash she believed to be hidden around the house. She then accused him of financially abusing her and of preventing her from leaving. Navin got a text message at that time and went to check it when Natasha grabbed the phone, shoved Navin multiple times, insulted him, and demanded that he give her the keys to his car.

Navin further stated that Natasha had been making threats and alleging abuse against him since they separated in April 2021. He asserted that Natasha's behavior was having an adverse effect on their child, that Natasha was trying to prevent him from having a relationship with Maya, and that Natasha's use of drugs, alcohol, and cigarettes was adversely affecting her behavior. Navin also expressed concerns that Natasha was a flight risk because she was applying for an Australian passport for Maya and a large suitcase had disappeared.

The court partially granted the application and issued an ex parte temporary restraining order (TRO) that would expire at the time of the scheduled court hearing. It denied Navin's request to make Maya a protected party and denied the requests to enter an order concerning custody and visitation, as the court "need[ed] a hearing to determine best interests."

2. Natasha's Application for a DVRO

On November 29, 2021, Natasha filed her own application for a DVRO protecting herself and Maya from Navin. Natasha attached a declaration in which she contended that Navin had taken Maya on November 19, 2021, claiming that they were going to lunch, and had yet to return with her as of November 29, 2021. She further stated that Navin had sold, hidden, or removed assets and documents. Natasha also stated that Navin "orally attacked her" regarding her request to purchase a phone and demanded he use the company he chose.

3. The DVRO Hearings

On December 23 and 29, 2021, the court conducted hearings on the parties' DVRO requests. The court granted motions to strike large portions of both parties' declarations and accepted the portions that were not stricken as the direct testimony of the parties.

The parties do not challenge these rulings on appeal.

The court also heard live testimony from Natasha, Navin, and their housekeeper, Lydia Escobar. The parties' testimony concerned four primary incidents: (1) an incident by the parties' pool; (2) an incident involving a safe in the parties' home; (3) an incident that took place while the parties were driving in Navin's truck; and (4) and an incident involving Natasha's cell phone.

3.1. The Pool Incident

Navin testified that he and Natasha got into an argument about smoking and smoking paraphernalia in the house when they were at their pool bar in 2020. Navin denied that any physical violence took place.

Natasha testified that Navin grew angry because she stated that he was not "the reason for [her] good credit" and that he grabbed her by the neck and lifted her off the floor and then threw her down on the floor. Natasha went and hid in the closet. The next day, she had bruises on either side of her neck.

3.2. The Safe Incident

Navin testified that, on November 13, 2021, there was an incident between himself and Natasha involving the safe at one of their homes. Natasha wanted to get her jewelry from the safe and began yelling and screaming at Navin to come downstairs and open the safe for her. He stated that she continued yelling and screaming at him, pushed him, and continued to hover over him while he opened the safe. Once the safe was opened, Natasha pushed him out of the way to get her box.

Natasha testified that she wanted to get her jewelry from the safe, but Navin stated that the safe was his. Navin followed her and, when she approached the safe, grabbed her arm. Natasha stated that she did not push him but swung her arm to escape his grip and then got her items out of the safe.

Escobar testified Natasha called her to come into the master bedroom. Natasha wanted to get into the safe and wanted Navin to open it for her. Once Navin opened the safe, Natasha pushed him and started taking everything out and threw it on the floor. Escobar went to get a bag from the kitchen and gave it to Natasha. Navin left the room first and Natasha later went to her car and left the house.

Escobar also testified that she observed Natasha drinking liquor every day. Escobar testified that, when Natasha drank, she would get angry very quickly, both towards Escobar and Navin. Escobar stated that she got angry with Navin "very often."

3.3. The Truck Incident

Navin testified that he and Natasha were discussing his brother's upcoming wedding while driving together in his truck. Navin mentioned that his family had gifted him $30,000 to apply to wedding expenses when Navin and Natasha got married. Natasha grew angry that he had not told her about the gift. Navin testified that she punched and smacked him while he was driving. He asked Natasha to exit the vehicle but later returned to pick her up.

Natasha testified that she and Navin were driving in his truck when he brought up his brother's upcoming wedding and stated that he wanted to give his brother $30,000, which was the amount his parents had gifted Navin and Natasha for their wedding. Natasha was surprised and stated that the gift was for Navin rather than for them both because she had never heard about it. Navin "snapped" and hit her hard across the face. Natasha began crying and asked to be let out of the car. Eventually he let her out and she called her mother. Navin returned and told her to get back in the car.

3.4. The Cell Phone Incident

Navin testified that he came home and saw that the door to Maya's room was open and the lights were on. When he entered the room, Maya was excited to see him and wanted to play with him. Natasha grew angry, exited the room, and started walking down the stairs, yelling and screaming. Natasha then took her new phone and slammed it against the stairs and the wall, causing it to shatter. Maya observed Natasha screaming and throwing her phone against the wall. Natasha then locked herself in the master bathroom. Navin grew concerned for Natasha's safety because Natasha was yelling that she wanted to be with her deceased grandmother and had been unhappy since her grandmother's death. Navin called Natasha's father and later used a screwdriver to open the door. Natasha eventually calmed down and went to sleep.

Natasha testified that the cell phone incident began when Navin came home from work and woke Natasha up when she was sleeping with Maya to continue an argument. Navin was in Natasha's face and calling her names. While running down the stairs, Natasha threw her phone. She picked it up when she got to the bottom and then ran into the bathroom. Natasha called her father and told him to pick her and Maya up. Meanwhile, Navin was banging on the door. Natasha could hear that Maya was next to him. Navin eventually opened the door with a screwdriver, took the phone from Natasha, and told her father not to come.

4. The Court's Findings and Rulings

After hearing argument from the parties, the court found that there was "substantial evidence that both parties have screamed at each other and called each other names" and that this "disturbs the peace" of both parties. The court stated that it found Escobar's testimony credible in part. The court found that the phone incident did not involve domestic violence. With respect to the incident by the pool, the court found Natasha's testimony credible, though it expressed concerns that this incident was not referenced prior to the issuance of a TRO against her. The court found both parties' testimony credible with respect to the altercation in the truck but found that Navin was the primary aggressor "as to that incident" under section 6305.With respect to the safe incident, the court found that there was some evidence that both parties were "tussling" but found that Natasha had pushed Navin without provocation and found his testimony and Escobar's testimony credible with respect to that incident.

Section 6305 provides that a court will not issue a mutual DVRO unless both of the following apply: (1) both parties personally appear and each party presents written evidence of abuse or domestic violence in an application for relief using a mandatory Judicial Council restraining order application form; and (2) the court makes detailed findings of fact indicating that both parties acted as a primary aggressor and that neither party acted primarily in self-defense. (§ 6305, subd. (a)(1)-(2).)

The court observed that "the worst possible result could be the parties remaining in the house together with the child" because it believed that damaged their child. The court concluded that Natasha had "met her burden to some extent" and granted some of her requested orders. The court also concluded that Navin had "met his burden to some extent" but stated that "the primary area in which he met his burden was with regard to her pushing him at the safe" and that such an incident was not "likely to recur" if the parties lived in separate residences. The court therefore did not find it necessary to issue an order in Navin's favor. The court did not include Maya as a protected party.

Navin timely appealed.

DISCUSSION

Navin contends that Natasha's conduct should have been enjoined under the DVPA. He asserts that the court's reasoning for denying his request-that separating the parties rendered a DVRO unnecessary because further abuse was unlikely to recur-was contrary to case law and public policy. Further, Navin argues that the trial court erred in excluding evidence of Natasha's conduct after she was served with the TRO and of her use of alcohol. Finally, Navin argues that, if we uphold the DVRO against him, we should reverse the order granting Natasha's request for a DVRO because physical separation would also render any future abuse against her unlikely.

1. The court improperly denied Navin's request for a DVRO.

We conclude that the court applied an improper legal standard in denying Navin's request on the ground that it was unlikely that the abuse against him would recur when the parties live apart.

Navin does not contend that there was insufficient evidence to support the issuance of a DVRO against him and we find no abuse of discretion with respect to that ruling. The court found Natasha's testimony concerning the dispute by the pool and the incident in the truck credible. Both incidents involved the intentional infliction of physical harm and thus are abuse under the DVPA. (§ 6203.) The court also found that both parties screamed at and called each other names, thus disturbing one another's peace. (§ 6320, subd. (a).) Navin contends that, if the court affirms the denial of his request for a DVRO, we should also reverse the order granting Natasha's request for a DVRO because the parties living apart would also make it unlikely that abuse would recur as to her. As we hold that the court applied a legally erroneous standard in denying Navin's request, we do not reach this contention.

1.1. Legal Standards

The DVPA defines domestic violence as abuse of a spouse. (§ 6211, subds. (a) &(e).) "Abuse" includes intentionally or recklessly causing or attempting to cause bodily injury, placing a person in reasonable apprehension of imminent serious bodily injury, or engaging in behavior that could be enjoined under section 6320. (§ 6203.) Section 6320 includes "molesting, attacking, striking, stalking, threatening, sexually assaulting, [and] battering . . . harassing, telephoning, . . . 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).) A court may issue a protective order upon "reasonable proof of a past act or acts of abuse." (§ 6300, subd. (a).) The statute should "be broadly construed in order to accomplish [its] purpose" of preventing acts of domestic violence. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1498.)

We review the grant or denial 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. (In re Marriage of Davila &Mejia (2018) 29 Cal.App.5th 220, 226.) 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. (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1143.) We must accept as true all evidence supporting the trial court's findings, resolving every conflict in favor of the judgment. (Ibid.) We do not determine credibility or reweigh the evidence. (Katsura v. City of San Buenaventura (2007) 155 Cal.App.4th 104, 107.) If substantial evidence supports the judgment, reversal is not warranted even if facts exist that would support a contrary finding. (Ibid.)

"Judicial discretion to grant or deny an application for a protective order is not unfettered. The scope of discretion always resides in the particular law being applied by the court, i.e., in the' "legal principles governing the subject of [the] action ...."' [Citation.]" (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 337.) "A discretionary order based on the application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal even though there may be substantial evidence to support that order. [Citations.] If the record affirmatively shows the trial court misunderstood the proper scope of its discretion, remand to the trial court is required to permit that court to exercise informed discretion with awareness of the full scope of its discretion and applicable law. [Citations.]" (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 26.)

1.2. The court's denial of Navin's request for a DVRO because abuse was unlikely to recur when the parties live apart rested on an error of law.

Navin relies on In re Marriage of F.M. &M.M. (2021) 65 Cal.App.5th 106 (F.M.) to support his contention that the court erred in concluding that living apart was an adequate substitution for a DVRO against Natasha. In F.M., the appellant (referred to as mother) contended that the trial court "improperly found that physical separation alone could substitute for the legal protections afforded by a restraining order." (Id. at p. 110.) At the DVRO hearings, the trial court stated that it was" 'not as much concerned with this request for this restraining order because . . . the allegations . . . made in this request have to do with the fact that the two of you are living together'" and ordered mother to leave the parties' shared home, even though father had not sought a DVRO against mother. (Id. at pp. 111-112.) At a subsequent hearing at which it ruled on mother's DVRO request, the trial court stated that" 'there's no question that the two of you need to stay away from each other'" and that the parties" 'definitely need to stay away from each other,'" but" '[t]hat doesn't mean that there needs to be domestic violence restraining orders.'" (Id. at pp. 114-115.) The Court of Appeal held that the trial court had erred "insofar as it relied on the fact that she no longer lives with father as a basis for denying her DVRO request." (Id. at p. 119.) It noted that section 6301, subdivision (b), expressly provides that the right to petition for relief shall not be denied because the petitioner has vacated the household to avoid abuse. (Ibid.) The trial court "repeatedly stated on the record that mother's protection from abuse could be accomplished simply by having her and the parties' six children move out of the house" and indicated that father's violence and threats to mother were "simply a function of them living together," yet "repeatedly stated that the parties needed to stay away from each other" without giving mother the protection of a court order. (Id. at p. 120.) The Court of Appeal concluded that this was error, and that "the trial court's use of residential separation as a substitute for a DVRO was inappropriate given that the parties still have to coparent." (Ibid.)

The court here did not state that the parties needed to stay apart from one another without issuing any court order that would require them to do so. Nevertheless, F.M. is instructive. The court indicated that it considered the parties remaining together in the house with Maya "the least acceptable result." The court granted Natasha's request because she had "met her burden to some extent" but denied Navin's request, even though he had also "met his burden to some extent." The court indicated that, because the parties would no longer be living together, incidents of abuse against Navin like that involving the safe were not "likely to recur." Thus, as in F.M., it appears that the court concluded that the abuse against Navin, which it found to be substantiated, was "simply a function of [the parties] living together" and relied on residential separation occasioned by a DVRO protecting Natasha as a substitute for a DVRO protecting Navin, even though the parties still have to coparent Maya. (F.M., supra, 65 Cal.App.5th at p. 120.) If the grant of one party's DVRO request, and the physical separation occasioned by it, eliminated the other party's right to obtain a DVRO, mutual DVROs would never be justified. As the law clearly provides for mutual DVROs (see § 6305), it cannot be the case that residential separation is a substitute for a DVRO that is otherwise justified, or a proper basis to deny a party's request for one.

Furthermore, "[n]o showing of the probability of future abuse is required to issue a DVPA restraining order: 'A trial court is vested with discretion to issue a protective order under the DVPA simply on the basis of an affidavit showing past abuse.' [Citation.]" (Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 823 (Rodriguez).) In Rodriguez, the petitioner's ex-boyfriend "inflicted, and attempted to inflict, physical injury on her"; "exhibited controlling behavior, calling multiple times in a day, accusing [petitioner] of cheating, and taking actions to isolate [petitioner] from contact with others"; and threatened to harm her. (Id. at pp. 818-819.) The petitioner obtained a TRO but the court denied her request for a permanent order on two grounds: (1) "evidence of mental abuse and controlling behavior . . . were not relevant to its determination"; and (2) "the significant past acts of physical abuse that it found to be true were too remote in time, and not sufficiently likely to be repeated, to warrant the issuance of a protective order." (Id. at p. 820.) Division Seven of this District concluded that the trial court had erred in both respects. (Ibid.) With respect to the second issue, the court's "express findings . . . indicate[d] that the court found the testimony of physical abuse credible," and the court confirmed to petitioner's counsel that it determined that there was domestic violence in the past. (Id. at pp. 822-823.) The Rodriguez court concluded that the trial "court's reasoning rests on an error of law" and that it had improperly imposed a requirement of a showing of likelihood of future abuse. (Id. at p. 823.) Here too, the court indicated that Navin was not entitled to a DVRO absent a showing that he would face similar abuse after he and Natasha lived apart.

Natasha contends that F.M. and Rodriguez are distinguishable with respect to the extent of abuse alleged and that the conduct alleged by Navin did not rise to a level of destroying his mental or emotional calm. Navin does not dispute that the abuse at issue in Rodriguez was more extreme than the abuse described by him in this case. However, the court here did not state that Navin failed to satisfy his burden based on the totality of the circumstances, a determination we would be loath to disturb. Rather, the court stated that Navin "met his burden to some extent" and identified two grounds for its determination- Natasha's screaming and name-calling and the safe incident- that were supported by substantial evidence (i.e., Navin's and Escobar's testimony). The court then denied his request on grounds held to be improper in F.M. and Rodriguez: the physical separation of the parties and the unlikelihood that abuse would recur. Thus, whether the abuse alleged in those cases was more extreme and disturbing than that alleged here is beside the point.

See In re Marriage of Mix (1975) 14 Cal.3d 604, 614 [" 'The testimony of a witness, even the party himself, may be sufficient.' "]; accord, § 6300 [protective order under DVPA can be issued "based solely on the . . . testimony of the person requesting the protective order"].

We further reject Natasha's contention that Rodriguez is not instructive because the so-called "primary holding" concerning mental abuse is not relevant here. Although one of the holdings of Rodriguez was that mental abuse is relevant in a DVPA proceeding, the second issue in the case was whether the court properly declined to issue a permanent DVRO based on the absence of any threats of violence since the TRO issued. (Rodriguez, supra, 243 Cal.App.4th at pp. 820, 822-824.) The Rodriguez court's holding that a petitioner need not make a showing that recurring violence is likely to obtain a DVRO was not dictum.

Natasha further relies on Ritchie v. Konrad (2004) 115 Cal.App.4th 1275 (Ritchie) for the proposition that section 6203 provides for an objective test for imposing a DVRO based on the prospective protected party's fear of future abuse. She contends that this is further supported by the purpose of the DVPA as set forth in section 6220, which references the future and is "entirely prospective." We are not persuaded.

Section 6220 states: "The purpose of this division is to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence."

The court in Nevarez v. Tonna (2014) 227 Cal.App.4th 774 rejected these very contentions. The appellant asserted that the court had erred in issuing a restraining order against him because "the trial court was required to find not only that he had committed past acts of abuse but also that [petitioner] feared future abuse" and "relie[d] primarily on [Ritchie] for th[is] proposition." (Id. at pp. 782-783.) The Sixth District found that this reliance was misplaced, as the Ritchie court "was addressing the requirements for renewal of a DVPA restraining order under section 6345, not issuance of a restraining order in the first instance.... [U]nder section 6300, the trial court may issue a restraining order under the DVPA upon . . . 'reasonable proof of a past act or acts of abuse.' [Citation.]" (Id. at p. 783, fn. omitted.) The appellant in Nevarez also relied on section 6220 in arguing that a petitioner must make some showing that future abuse is likely. (Nevarez, at p. 783.) The court "decline[d] [the] invitation to read into section 6220 an additional requirement for obtaining a restraining order under the DVPA. As stated, section 6300 is the provision specifically governing issuance of a restraining order under the DVPA, and it states that an order may issue upon 'reasonable proof of a past act or acts of abuse.'" (Ibid.) These distinctions are equally applicable here.

1.3. We remand for further proceedings to determine whether mutual DVROs are appropriate under section 6305.

Having concluded that the basis for the court's order denying Navin's request for a DVRO was legal error, we consider the appropriate next steps.

Natasha contends that, even if the court erred, the Court of Appeal reviews the trial court's decision, not its reasoning, and that "[t]he question is not whether the trial court's rationale is sound, but whether there is a basis for reversing its decisions." Although the court could have properly exercised its discretion to deny Navin's request for a DVRO, we cannot ignore that the record affirmatively indicates that the court's order here was based on an improper exercise of its discretion. (See Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1384 ["When the record clearly demonstrates what the trial court did, we will not presume it did something different."].) Thus, the proper course is to reverse and remand to allow the court to "exercise informed discretion." (F.T. v. L.J., supra, 194 Cal.App.4th at p. 26.)

Navin contends that, because the court found that he was abused under the DVPA, it erred in denying his request for a DVRO and we should remand with instructions that the DVRO against Natasha be entered. We disagree.

Section 6305 sets forth the requirements for issuing mutual DVROs, including that "both parties acted as a primary aggressor and that neither party acted primarily in self-defense." (§ 6305, subd. (a)(2).) It "appl[ies] to all cases in which parties present competing petitions for DVPA restraining orders, regardless of when the petitions are filed or calendared for hearing." (Salmon v. Salmon (2022) 85 Cal.App.5th 1047, 1058 (Salmon); accord, Melissa G. v. Raymond M. (2018) 27 Cal.App.5th 360, 371-372 (Melissa G.).) Before finding that both parties acted as primary aggressors, the court must consider the provisions concerning dominant aggressors in Penal Code section 836, subdivision (c)(3). That subdivision provides that, in identifying the dominant aggressor, relevant factors include: "(A) the intent of the law to protect victims of domestic violence from continuing abuse, (B) the threats creating fear of physical injury, (C) the history of domestic violence between the persons involved, and (D) whether either person involved acted in self-defense." (Pen. Code, § 836, subd. (c)(3).)

Here, the court briefly addressed section 6305, finding that, "as to th[e] incident" involving the truck, Navin was the "primary aggressor consistent with Family Code section 6305." The court did not further address section 6305, presumably because it concluded that no DVRO should issue in Navin's favor because it was not likely that abuse against him would recur once the parties lived apart. Navin contends that the court's finding that Natasha pushed Navin "without provocation" means that it found that Natasha was the primary aggressor and did not act primarily in self-defense with respect to the safe incident. Even if we accept that as true, a finding that both parties acted as primary aggressors in separate incidents does not mean that mutual DVROs are appropriate under section 6305.

Where a court does not issue mutual DVROs, it does not abuse its discretion "by failing to make detailed factual findings on all factors referenced in section 6305, since such findings are not required where the trial court does not grant mutual relief." (Salmon, supra, 85 Cal.App.5th at p. 1060.)

Rather, "in deciding whether mutual restraining orders should issue, the trial court must consider the parties' respective alleged acts of domestic violence in concert, and not separately." (K.L. v. R.H. (2021) 70 Cal.App.5th 965, 979; accord, Melissa G., supra, 27 Cal.App.5th at p. 372 ["By separating out for analysis each party's claim of abuse against the other, and issuing restraining orders against both parties as if incidents occurring at different times must be wholly unrelated, a court does not give full effect to the statutory directive[s] ...."].) In Salmon, the trial court found "that both Husband and Wife had committed acts of domestic violence within the meaning of section 3044" but "believed Husband to be 'the primary aggressor in this case,' notwithstanding the fact that Wife had also committed acts of abuse in the past." (Salmon, supra, 85 Cal.App.5th at p. 1053.) The Court of Appeal rejected husband's contention that the trial court "was not permitted to choose between the two in granting relief to only one of them" where both had acted as aggressors. (Id. at p. 1059.) It observed that "the plain words of the statute clearly contemplate the trial court will: weigh the acts of the parties; determine whether one of the parties should be considered the primary or dominant aggressor; and issue a mutual restraining order only in the event neither party can fairly be characterized as the primary aggressor." (Ibid.)

We remand this matter to the trial court to determine whether mutual DVROs are appropriate under section 6305, considering the parties' acts viewed in concert. Nothing in our opinion should be construed as prohibiting the court from determining, on remand, that neither party is entitled to a DVRO.

2. The court's evidentiary rulings were not an abuse of discretion.

Navin identifies two evidentiary rulings that he contends were erroneous: (1) the court's exclusion of evidence of Natasha's conduct after she was served with the TRO; and (2) the court's exclusion of evidence of Natasha's regular alcohol use. We review the court's evidentiary rulings for an abuse of discretion. (Jane IL Doe v. Brightstar Residential Inc. (2022) 76 Cal.App.5th 171, 176.) "The trial court's error in excluding evidence is grounds for reversing a judgment only if the party appealing demonstrates a 'miscarriage of justice'-that is, that a different result would have been probable if the error had not occurred." (Zhou v. Unisource Worldwide (2007) 157 Cal.App.4th 1471, 1480.)

We conclude that the court did not abuse its discretion in excluding this evidence. Even if it had, any error is harmless because Navin has failed to demonstrate any miscarriage of justice.

2.1. The court did not abuse its discretion in excluding evidence of post-TRO communications.

Navin contends that the trial court misunderstood his counsel's objection to evidence concerning post-TRO communications and erroneously found that Navin had waived the admissibility of this evidence by returning to the family home. We disagree.

2.1.1. Additional Background

During his direct examination of Natasha, Natasha's counsel sought to admit an exhibit reflecting text messages between Natasha and Navin. Counsel for Navin objected on the grounds that the text messages were not timely served before the start of proceedings and were not relevant because they dealt primarily with custody. The court replied: "All right. So you're not going to be addressing any communications between the parties since the service of the restraining order?" Counsel for Navin stated that she would not be using any text messages between the parties, since they all pertained to custody.

The court further inquired: "So you're not going to be addressing any issues pertaining to the communications between the parties regarding custody whether text, telephone, in-person conversation? Because if you're addressing any of it, then you get to address all of it, including whether somebody said something in-person or by phone, and the other person responded by text. Do you want to discuss that with your client?" Counsel for Navin noted that the admission of such evidence would "add another three hours to these proceedings." The court again inquired whether she wished to discuss it with her client. Counsel for Navin stated: "[W]e don't want the text messages to come in." The court stated that the text messages would not be admitted.

Counsel for Natasha protested that Navin's counsel had introduced the written communications in previous declarations and had argued that they were a violation of the TRO against Natasha. The court replied that it was "going to strike any allegations regarding any violation of the restraining order by reason of communications between the parties since the service" of the TRO. The court further stated to Navin's counsel: "I'm sustaining your objection based on the discussions we just had on the record. They're either all in or out." Navin's counsel confirmed that she was "objecting to the entirety" of the exhibit containing the text messages. The court replied: "Then it is all out, as well as any allegations pertaining to communications between the parties having to do with their child."

Later, counsel for Navin sought to cross-examine Natasha concerning communications she initiated after she was served with a TRO. Counsel for Natasha objected on relevance grounds and the court sustained the objection. Navin's counsel asked on what grounds the objection was being sustained. The court replied: "The discussion that we had this morning where you wished to preclude them from introducing texts and I indicated then that communications that they had whether by text or speaking, or otherwise, would not be permitted." Navin's counsel stated that she had misunderstood and had thought that only the exhibits would not be coming in. She inquired whether the court also intended to exclude testimony on the subject. The court replied: "Yes. Because the exhibits would respond to the allegations in the declaration. And so the testimony is also prohibited. It's either all in or all out. I believe those were my exact words." Counsel for Navin replied: "Okay."

2.1.2. Analysis

"The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal." (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264-265, citations and internal quotations omitted.) Thus, "an appellant waives his right to attack error by expressly or implicitly agreeing or acquiescing at trial to the ruling or procedure objected to on appeal." (In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501.)

Having reviewed the colloquy between Navin's counsel and the trial court, we conclude that Navin's counsel expressed no disagreement with the court's ruling excluding evidence concerning post-filing communications introduced for the purpose of establishing violations of the parties' restraining order. Further, when the court sustained an objection to her cross-examination of Natasha on the issue of post-TRO communications, Navin's counsel stated that she had not understood the earlier ruling but did not challenge or disagree with that ruling. Rather, when the court explained why it denied her request, she replied: "Okay."

Even assuming there was no acquiescence and thus no forfeiture, the court did not commit the same error as the trial court in F.M., which "repeatedly refused to consider evidence regarding alleged acts of domestic violence committed by father after mother filed her DVRO request, deeming such evidence irrelevant to whether a permanent restraining order should issue." (F.M., supra, 65 Cal.App.5th at p. 116.) There, the "TRO forbade father from attacking or threatening mother, disturbing mother's peace, or contacting her directly or indirectly apart from 'peaceful contact' required for visitation with the children," and mother offered admissible evidence that father had violated these prohibitions, including by threatening to kill her after she made a withdrawal from their joint account and by physically attacking her. (Id. at p. 117.) The Court of Appeal concluded that "evidence of postfiling abuse is also relevant" and the refusal to consider this evidence was prejudicial. (Id. at pp. 117-118.)

Here, the court did not indicate that it considered post-TRO evidence irrelevant as a matter of law. It did not refuse outright to hear any such evidence. Rather, it stated that evidence concerning communications between the parties after the TRO against Natasha was served was either all in or all out. The trial court unquestionably "has the power to rule on the admissibility of evidence, exclude proffered evidence that is deemed to be irrelevant, prejudicial or cumulative and expedite proceedings which, in the court's view, are dragging on too long without significantly aiding the trier of fact." (In re Marriage of Carlsson (2008) 163 Cal.App.4th 281, 291.) If the parties were permitted to dispute whether every post-TRO communication pertained to custody issues or strayed beyond that permissible topic, the proceeding would have been far longer (an issue Navin's counsel acknowledged), possibly without substantially aiding the court in making its determination. The court did not abuse its discretion in offering the parties a choice that would expedite proceedings and ensure that the parties' evidence of post-TRO communications was subject to the same treatment.

Moreover, Navin does not argue in his opening brief that a different result would have been probable had this evidence been admitted, and thus fails to establish that any error by the court was reversible. In his reply brief, Navin asserts that he "could have used Natasha's post-service electronic communications as a means of establishing further abuse and bolster his request for a DVRO."" 'Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before....' [Citation.]" (People v. JTH Tax, Inc. (2013) 212 Cal.App.4th 1219, 1232.) Navin fails to explain why this argument was not previously raised. Further, he fails to make any showing that a more favorable outcome was probable if this evidence had been admitted. Thus, Navin has failed to carry his burden of demonstrating reversible error.

2.2. The court did not abuse its discretion in excluding evidence concerning Natasha's use of alcohol.

Navin contends that the court's disinterest in evidence concerning Natasha's use of alcohol and its failure to make a finding in this regard were abuses of discretion. We again disagree.

2.2.1. Additional Background

Navin's counsel asked the court whether the court would allow testimony concerning Natasha's history of alcoholism or drug usage "because that would be highly relevant to a temporary order for custody." The court stated: "If there's been rehab in the last 12 months or . . . a D.U.I., an arrest, that would be relevant.... [I]f there isn't an arrest and there isn't a D.U.I. and it's just people seeing people drinking alcohol in their own homes, then no." Counsel for Navin replied: "Okay."

2.2.2. Analysis

Even if we assume again that Navin's counsel did not waive this issue by apparently acquiescing to it, we do not find that the court abused its discretion in excluding evidence of Natasha's alcohol use on relevance grounds. Navin observes that "[c]oncerns regarding alcohol use and abuse pervade the law" but cites Family Code provisions concerning child custody issues. (§§ 3011, subd. (a)(4), 3041.5.) In his opening brief, he fails to explain what purpose evidence of Natasha's use of alcohol would have been used for with respect to Navin's request for a DVRO, as opposed to a temporary custody arrangement. In his reply brief, he contends that "alcohol use is implicated in a very large percentage of violent acts against spouses and aggravated assaults in general." That may well be true, but DVROs are issued based on "reasonable proof of a past act or acts of abuse." (§ 6300, subd. (a).) Navin does not argue that the use of alcohol is itself an act of abuse under the DVPA and does not claim that the court's ruling prevented him from submitting evidence of acts of abuse by Natasha in which her use of alcohol may have played a role. Thus, the court's ruling was not an abuse of discretion. Moreover, Navin has failed to show a reasonable likelihood that he would have obtained a more favorable result had evidence of Natasha's use of alcohol been admitted.

DISPOSITION

We affirm the court's evidentiary rulings but reverse the court's order denying Navin's request for a DVRO and remand the matter for a new hearing on Navin's request consistent with the views expressed in this opinion. Each party is to bear its own costs on appeal.

WE CONCUR: EDMON, P. J., HEIDEL, J. [*]

[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

In re Marriage of Hemrajani

California Court of Appeals, Second District, Third Division
Aug 16, 2023
No. B318875 (Cal. Ct. App. Aug. 16, 2023)
Case details for

In re Marriage of Hemrajani

Case Details

Full title:In re the Marriage of NATASHA and NAVIN HEMRAJANI. v. NAVIN HEMRAJANI…

Court:California Court of Appeals, Second District, Third Division

Date published: Aug 16, 2023

Citations

No. B318875 (Cal. Ct. App. Aug. 16, 2023)