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In re Marriage of Ighani

Court of Appeals of California, Fourth District, Division Three.
Nov 13, 2003
G031389 (Cal. Ct. App. Nov. 13, 2003)

Opinion

G031389.

11-13-2003

In re Marriage of SHIRIN IGHANI and MOHAMMED MOHSENI. SHIRIN IGHANI, Respondent, v. MOHAMMED MOHSENI, Appellant.

Michelle R. Penna for Appellant. No appearance for Respondent.


Mohammad Mohseni appeals from a domestic violence protective order issued against him pursuant to Family Code section 6300, et seq. Mohseni acknowledges that on appeal he cannot reargue the evidence offered in support of the restraining order, but then he attempts to do just that, offering various reasons why petitioner Shirin Ighanis testimony concerning past acts of violence (including rape and sodomy) was not credible. He was right the first time. As long as the courts order was supported by substantial evidence — whether deemed credible by Mohseni or not — we have no power to question its factual basis. Mohseni also contends that the issuance of a domestic violence restraining order should be supported by clear and convincing evidence, rather than merely a preponderance, because of the important interests involved. We disagree. The Legislature has made clear it intended that a preponderance of evidence standard be applied to the issuance of a restraining order in a domestic violence case, and Mohseni has offered no support for his contention that we should, or even could, impose a higher standard by judicial fiat. The order is affirmed.

* * *

Mohseni and Ighani were married, and subsequently separated. On February 13, 2002, Mohseni filed a petition for a domestic violence protective order against Ighani and Siroos Ighani, her father. On that same date, Ighani filed her own petition for a domestic violence protective order against Mohseni, along with a petition for dissolution of the marriage. Ighani supported her request with a declaration that Mohseni had raped her and was violent toward her and her father. The court issued a temporary order restraining Mohseni as against Ighani, and set the petitions for a noticed hearing.

Mohseni filed several declarations signed by third-party witnesses to refute the assertions of rape and violence made by Ighani. The parties agreed that the declarations would be admitted into evidence subject to cross-examination. Ighani testified at the hearing, describing incidents in which Mohseni sodomized her against her will, raped her, and slapped her on three different occasions. Mohseni also testified, denying the allegations, and offered the live testimony of three other witnesses to refute Ighanis assertions.

At the end of the hearing, the parties agreed to submit closing arguments by brief, and the court took the matters under submission. On July 9, 2002, the court issued a protective order in favor of Ighani and against Mohseni, finding by a preponderance of the evidence that Mohseni had committed past acts of abuse.

I

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." Mohsenis primary contention is that the courts order in this case is unsupported by any "credible" evidence of past abuse.

Mohseni points out that Ighani "was the only witness who submitted declarations and/or testified in support of her application." By contrast, Mohseni himself submitted "copious documents and witness declarations which refuted her allegations [including] seven (7) written declarations by collateral witnesses, inclusive of his treating physician, an Orthopedic Surgeon. In addition, [Mohseni] had three (3) additional witnesses who testified at the proceedings who testified to his physical disability, his conduct in a prior long term relationship and a witness who had previous conversations with [Ighani] and with her father which further support [Mohsenis] contention that this proceeding was based upon motives to harm [Mohseni] as a result of a failed business relationship between [Mohseni] and [Ighanis] father."

However, it is the role of the trial court, not ours, to evaluate credibility. And we cannot reweigh the evidence submitted to the trial court. "When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact." (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881, quoting Primm v. Primm (1956) 46 Cal.2d 690, 693.) In this case, as Mohseni acknowledges, Ighanis own testimony directly supports the conclusion that Mohseni committed past violent acts against her. That testimony, standing alone, was sufficient to sustain the courts order. "Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact." (Evid. Code, § 411.)

II

Mohseni also contends we should declare that domestic violence protective orders must be based, at a minimum, on clear and convincing evidence. This argument appears to be based upon the premise that the Legislature has not designated any specific standard of proof, and that, in the absence of such designation, the courts have leeway to impose one. However, Family Code section 6300 specifies that domestic violence protective orders may be issued upon "reasonable proof" "to the satisfaction of the court." That specification is not consistent with any standard of proof higher than a preponderance. Further, as Mohseni acknowledges, Evidence Code section 115 provides in pertinent part that "[e]xcept as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence."

Mohseni does suggest that domestic violence restraining orders should be subjected to a higher standard of proof because they infringe upon important constitutional rights of the restrained party. However, because Mohseni failed to provide any authority or analysis in support of his contention, we deem it waived. (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647 [where point is asserted by appellant without argument or authority, it is deemed to be without foundation and requires no discussion by reviewing court].)

Finally, Mohseni points out that Code of Civil Procedure section 527.6, which provides for civil anti-harassment orders under a broader variety of circumstances than domestic violence, does require proof by clear and convincing evidence to sustain any order of longer duration than 22 days. That fact, however, merely establishes that the Legislature certainly knew how to impose a higher standard of proof in situations where it concluded one was necessary. Although Code of Civil Procedure section 527.6 can be utilized in domestic violence situations, the statute makes clear that it is a distinct remedy, and does not govern proceedings brought pursuant to the Domestic Violence Protection Act contained in the Family Code. (See Code Civ. Proc., § 527.6, subd. (k).)

The order is affirmed. Ighani made no appearance on this appeal, and consequently no costs are awarded.

WE CONCUR: RYLAARSDAM, ACTING P. J., and ARONSON, J. --------------- Notes: Code of Civil Procedure section 527.6, subdivisions (c) and (d) provide in pertinent part: "(c) . . . A temporary restraining order may be issued with or without notice upon an affidavit that, to the satisfaction of the court, shows reasonable proof of harassment of the plaintiff by the defendant, and that great or irreparable harm would result to the plaintiff. In the discretion of the court, and on a showing of good cause, a temporary restraining order issued under this section may include other named family or household members who reside with the plaintiff. A temporary restraining order or injunction issued under this section shall remain in effect, at the courts discretion, for a period not to exceed 15 days, or, if the court extends the time for hearing under subdivision (d), not to exceed 22 days, unless otherwise modified or terminated by the court. [¶] (d) . . . At the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment."


Summaries of

In re Marriage of Ighani

Court of Appeals of California, Fourth District, Division Three.
Nov 13, 2003
G031389 (Cal. Ct. App. Nov. 13, 2003)
Case details for

In re Marriage of Ighani

Case Details

Full title:In re Marriage of SHIRIN IGHANI and MOHAMMED MOHSENI. SHIRIN IGHANI…

Court:Court of Appeals of California, Fourth District, Division Three.

Date published: Nov 13, 2003

Citations

G031389 (Cal. Ct. App. Nov. 13, 2003)