Opinion
E067314
10-25-2018
In re the Marriage of J.C. and K.C. J.C., Respondent, v. K.C., Appellant.
Law Offices of Jeffrey S. Benice and Jeffrey S. Benice for Appellant. Rancho Family Law Group and Jonathon A. Zitney 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FAMSS1501659) OPINION APPEAL from the Superior Court of San Bernardino County. Brian D. Saunders Judge. Affirmed. Law Offices of Jeffrey S. Benice and Jeffrey S. Benice for Appellant. Rancho Family Law Group and Jonathon A. Zitney for Respondent.
I.
INTRODUCTION
Appellant, K.C. (Husband), appeals from a permanent domestic violence restraining order (DVRO) granted against him under the Domestic Violence Protection Act (DVPA). Husband's estranged wife, respondent, J.C. (Wife), requested the DVRO after Husband punched her in the arm. Husband contends he unintentionally punched Wife in the arm and therefore the evidence did not support issuance of a DVRO against him. Husband also argues the trial court failed to consider his absolute right to self-defense as a valid ground for denying the DVRO. We reject Husband's arguments and conclude the trial court did not abuse its discretion in granting the DVRO. We therefore affirm the order.
Family Code section 6200 et seq. Unless otherwise noted, all statutory references are to the Family Code.
II.
FACTS AND PROCEDURAL BACKGROUND
On September 8, 2016, Wife and her attorney, P. Timothy Pittullo, appeared for Husband's deposition in a marital dissolution proceeding. The deposition was held at the law office of Husband's attorney, James Kenny. Pittullo retained court reporter Michelle Rubio to record the deposition. About the time the deposition was scheduled to begin, the parties, their attorneys, and the court reporter assembled in Kenny's conference room. Husband and Wife began arguing over transferring title of one of their vehicles to Wife. Pittullo intervened. Pittullo and Husband exchanged angry words, which escalated into a physical altercation (the deposition incident). Afterwards, that same day, Husband filed a petition requesting a civil harassment restraining order against Pittullo based on the deposition incident.
The following day, Wife filed a request for a DVRO against Husband and an ex parte emergency temporary restraining order based on Husband punching her in the arm during the deposition incident. Wife stated in her supporting declaration that, while arguing with Husband, her attorney, Pittullo, attempted to intervene. Husband shifted his focus away from Wife to Pittullo and told him, "'Why don't we take this outside.'" The two men stood up and headed toward the conference room door. Husband punched Pittullo in the jaw. Pittullo fell to the ground. Husband continued hitting him. Husband also hit Wife in the arm, causing a bruise. The police were called. Wife further stated in her declaration that Husband previously committed other acts of domestic violence against her and their children, causing Wife to be in great fear for her personal safety for some time. Wife therefore requested immediate restraining orders protecting Wife and the children from Husband.
On September 9, 2016, the trial court granted Wife's ex parte request for an immediate temporary restraining order and set a hearing on Wife's DVRO petition. The trial on Wife's DVRO petition began on November 4, 2016, and was continued to November 8, 2016. During the trial, the following witnesses testified: Wife, Kenny, Police Officer Russell Goines, and Rubio. Several of Kenny's employees also briefly testified but did not provide any additional information significant to this appeal. Husband and Pittullo did not testify.
A. Wife's Testimony
Wife testified that while she was conversing with Kenny in Kenny's conference room, Husband and Pittullo both said something and then headed toward the conference room door. Husband was slightly ahead of Pittullo. Wife heard Husband say in response to a slight, insignificant touching, "'Let's go, motherfucker.'" Wife did not see the touching or Husband turn around and push Pittullo. She saw Pittullo fall after Husband "socked him in the jaw." Pittullo fell and lay on the ground next to Wife, who was sitting in a chair. Wife watched Husband lean over and punch Pittullo on the ground. Pittullo's pants were down around his ankles.
During the altercation, Kenny, Rubio, and Wife remained in their chairs at the conference table. At some point, while Pittullo was passed out on the floor, Husband punched Wife in her left arm above her elbow. He did not say anything to her. Wife yelled or screamed and told Husband, "'Stop. [K.C.], stop.'" After she was hit and felt pain, Wife saw Husband withdrawing his arm from her body. Right after Husband punched her, Wife told Rubio and Kenny that Husband had hit her. When it happened, Wife was not attempting to stop Husband from hitting Pittullo, because she knew Husband had an extremely bad temper. In the past, Husband had been "abusive with [Wife], with [their] children, with friends."
Wife told Rubio, "'My arm hurts. I can't believe he hit me. What should I do?'" Rubio said she could not talk to Wife about it. Wife said, "'I understand.'" At that time, only Wife and Rubio were in the room. Pittullo had gotten up and left the room to call the police. After Wife left the conference room, she spoke to Pittullo. Wife was quite emotional. When Officer Goines arrived, she showed him the bruise on her arm and told him how it happened. She did not tell him the bruise might have been caused by Pittullo while he was falling. Wife told Officer Goines that Husband hit her in the arm. Wife denied she told Officer Goines that she was either struck in the arm by Pittullo falling to the ground or by Husband.
The court asked Wife, "During the incident that took place on the 8th of September in Mr. Kenny's office, did you feel at that time that you were in imminent threat of a serious bodily injury?" Wife replied, "Absolutely." She explained this was because she believed Kenny was not going to protect her and because of what Husband had done during the deposition incident. In addition, Wife told the court that Husband had been physically violent with her before, and his violence occurred "after the sort of emotional expressions" she observed during the deposition incident. The previous incidents included screaming and yelling in the presence of Husband and Wife's children. Although the children were not present during the physical abuse, they could have heard it and they knew about it.
B. Kenny's Testimony
Kenny testified that, while seated in the conference room, Pittullo said he wanted to have an off-the-record discussion with Kenny before beginning the deposition. Husband then said something to Wife regarding their car. Pittullo interrupted in an "extraordinarily hostile," agitated tone. Husband responded, "'I'm a man. I'm entitled to be treated with respect. Why are you talking to me like this?'" Pittullo replied, "'Do you want to do something about it?'" Husband said, "'Sure, what do you have in mind?'" Pittullo said loudly, grinding his teeth, "'You want to go outside?'" Kenny construed that to mean he wanted to fight. Husband said, "'Okay. Let's go.'" Husband and Pittullo stood up and quickly walked toward the conference room double doors.
As Pittullo and Husband approached the doors, Pittullo was slightly behind Husband. Pittullo initiated contact with Husband by putting his right hand on Husband's right shoulder and his right knee into the back of Husband's right knee or leg just above the knee. Husband spun around, grabbed Pittullo by the shoulder, and pushed him up against the wall. Pittullo swung at Husband but missed. Pittullo broke free as Husband pushed him against the wall. Husband pushed Pittullo toward the ground, dropped him between the chairs, and backed off. As Pittullo slid away from the wall and fell to the ground, his pants fell down.
Pittullo was on the floor for a while with his pants down around his ankles. He eventually pulled himself up into a chair and pulled up his pants. Pittullo then called the police and said to Husband, "'That's the worst mistake you've ever made in your life.'" Husband did not respond. They all eventually left the conference room. Kenny testified he did not see Husband swing at Pittullo. He also did not see Husband bump or touch Wife. Wife did not tell Kenny that Husband had hit her.
C. Rubio's Testimony
Rubio testified that she was present at Kenny's law office on September 8, 2016, serving as the court reporter for Husband's deposition, which never actually began. Kenny, Pittullo, Husband, and Wife were also present. While in the conference room, before the deposition was scheduled to begin, Rubio heard Husband and Wife discussing a vehicle. Husband sounded irritated with Wife's responses. Pittullo told Husband, "'You're being hostile, so let's start the deposition'" or "'Let's start the deposition. This isn't going anywhere.'" Pittullo's tone of voice intensified and he appeared irritated as his conversation with Husband continued. Husband said to Pittullo, "'Who do you think you're talking to?'" Pittullo responded, "'Are you stupid?'" Husband said, "'Let's go outside.'" Husband sounded very upset and angry. Rubio heard Pittullo say to Husband, "'Let's go, motherfucker.'" Kenny did not do anything to defuse the situation.
Husband and Pittullo stood up and headed toward the conference room double doors. As Husband approached the doors, Pittullo was right behind him. When Husband got to the conference room doors, Pittullo pushed or "kneed" Husband. Husband did not appear to be in any pain. The conference table was blocking Rubio's view of the men from the waist down. Rubio saw Husband turn around and forcefully punch Pittullo in the jaw with a closed fist ("cold-cocked" Pittullo). Pittullo fell backwards, ending up on the ground. Rubio did not see any pushing or shoving between Husband and Pittullo after Husband turned around. Pittullo fell behind Wife's chair and was lying on the ground. Husband then moved toward Pittullo and stood over him. Husband yelled, "'I'm not done with you yet'" or "'I haven't even started on you yet.'" Husband also yelled at Wife to "shut up" after she yelled at Kenny to stop his client. Rubio did not see Husband do anything to Pittullo after that.
Pittullo eventually got up, sat in a chair, and called the police. He appeared very shaken. Rubio was concerned about Pittullo because he was hit very hard and was breathing heavily. His face was red and he was having difficulty pulling up his pants. Pittullo appeared not to know who Rubio was, even though he had retained her for Husband's deposition and for many other depositions.
Rubio did not see anything happen to Wife. She did not see anyone hit, punch, or grab her. Rubio did not recall Wife cry or scream, "'Stop hitting me.'" Rubio acknowledged she was not focused on Wife during the altercation. Wife told Rubio after the incident "that something had happened to her arm," and she pointed to her arm where it happened. During the fight between Husband and Pittullo, Wife appeared very upset. Rubio heard her yell at Kenny, "'Stop your client. Do something.'" Afterwards, when she left the conference room, Wife appeared upset and said, "'Can you believe that just happened,' or 'What is your take on what just happened?'"
D. Officer Goines's Testimony
Officer Goines testified he was dispatched to Kenny's law office on September 8, 2016. Officer Goines interviewed Rubio, Pittullo, Husband and Wife. Pittullo appeared "'disheveled.'" Half his shirt was hanging out of his pants. His left pinky had a scrape on it. Wife "seemed scared" and emotionally upset. Wife showed him her left bicep injury, but did not tell Officer Goines that Husband had assaulted her or that she needed protection. Officer Goines wrote a report which was introduced into evidence. Wife told Officer Goines she sustained her arm bruise during the fight between Husband and Pittullo. Officer Goines stated in his report that she was struck "'by either Mr. Pittullo falling to the ground or by [Husband] on her inner left bicep.'" Officer Goines did not arrest Husband based on Wife's injury.
Kenny told Officer Goines "'Pittullo went up behind him and used his right knee to bump the rear of [Husband's] thigh.'" "'[Husband] immediately turned around, swung at him one time but missed and pushed Pittullo backwards by the shoulders . . . .'" Kenny stated that this all happened so fast that he could not recall exactly how everything occurred. Husband told Officer Goines that Pittullo was verbally abusing him, "'[s]o he stood up for himself.'" Husband said he felt a push on his shoulders as he was walking out the door, became angry, and turned around and said, "'Don't fucking push me.'" Husband pushed Pittullo by the shoulders. Pittullo stumbled backwards and fell into a window. Pittullo stood up, and his pants fell to the floor. Husband pushed Pittullo again, causing Pittullo to fall completely to the ground.
Husband said he pushed Pittullo the second time because "he got caught up in the heat of his emotions and wanted to ensure Pittullo did not re-engage." Husband further stated that Pittullo remained on the ground for several minutes before getting up, running out, and calling the police. Officer Goines issued a citation against Husband based on Pittullo making a request for a citizen's arrest of Husband. Officer Goines acknowledged that when he responded to the dispatch call, his focus was on whether Husband had assaulted Pittullo, and whether Pittullo had assaulted Husband. His focus was not on Wife.
E. The Court's Ruling on Wife's DVRO Petition
After hearing closing arguments and considering the evidence, the trial court found Husband had committed an act of domestic violence. (§ 6203, subd. (a)(3)). The court further found there was sufficient evidence to grant a permanent DVRO for three years. Husband filed a notice of appeal of the November 8, 2016, DVRO.
The court cited section 6303, subdivision 3, but it is apparent from the statutory language quoted by the court, that the court was referring to section 6203, subdivision (a)(3).
III.
SUFFICIENCY OF EVIDENCE SUPPORTING THE DVRO
Husband contends there was insufficient evidence supporting the DVRO against him.
A. Standard of Review
We review the trial court's order granting a protective order under the DVPA for an abuse of discretion. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495.) In considering factual findings and evidence supporting the order, this court "must apply the 'substantial evidence standard of review,' meaning '"whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted," supporting the trial court's finding. [Citation.] "We must accept as true all evidence . . . tending to establish the correctness of the trial court's findings . . . , resolving every conflict in favor of the judgment."' [Citation.]" (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1143.)
B. Law Applicable to Issuing a DVRO
"A court may issue a DVRO to prevent a recurrence of domestic violence and to ensure a period of separation for the persons who are involved, provided an applicant shows 'to the satisfaction of the court' that there has been 'a past act or acts of abuse.' (§ 6300.)" (In re Marriage of G. (2017) 11 Cal.App.5th 773, 779 (Marriage of G.).) The abuse that provides a basis for the DVRO findings includes intentional or reckless bodily injury (§ 6203, subd. (a)(1)); reasonable apprehension of imminent serious bodily injury (§ 6203, subd. (a)(3)); and "behavior that has been or could be enjoined pursuant to Section 6320." (§ 6203 subd. (a)(4)). "Section 6320 in turn permits enjoining 'molesting, attacking, striking, stalking, threatening, sexually assaulting, battering . . . , harassing, telephoning . . . contacting, either directly or indirectly, by mail or otherwise . . . disturbing the peace of the other party.' As a result, abuse under the DVPA includes physical abuse or injury, as well as acts that 'destroy[] the mental or emotional calm of the other party.'" (Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 820, quoting In re Marriage of Nadkarni, supra, 173 Cal.App.4th at p. 1497.) Section 6211 defines "Domestic violence" as including abuse perpetrated against a spouse or former spouse. (§ 6211, subd. (a).)
"No 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.'" (Rodriguez v. Menjivar, supra, 243 Cal.App.4th at p. 823, quoting Nakamura v. Parker 156 Cal.App.4th 327, 334.)
C. Discussion
Husband argues the court abused its discretion in granting the DVRO because there was insufficient evidence that he intentionally or recklessly caused or attempted to cause Wife to suffer bodily injury. Husband relies on the definition of "'abuse'" provided in section 6203, subdivision (a)(1). That provision states that, "(a) For purposes of this act, 'abuse' means any of the following: [¶] (1) To intentionally or recklessly cause or attempt to cause bodily injury." (§ 6203(a)(1).) However, the trial court did not find abuse under this provision. Instead, the court found abuse under subdivision (a)(3) of section 6203, which defines abuse as "(3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another." (§ 6203(a)(3).)
We refer hereinafter to section 6203, subdivision (a) as section "6203(a)." --------
When finding abuse under section 6203(a)(3), the trial court explained that it believed that at the time of the deposition incident, "there was a genuine fear and a reasonable fear on the part of [J.C.] for her own safety. That was based upon her prior experience and watching the violence take place in front of her." The trial court added that it did not matter whether Husband intentionally or unintentionally hit her. In other words, it did not matter whether there was sufficient evidence of abuse as defined in section 6203(a)(1), because there was substantial evidence of abuse under section 6203(a)(3). The court stated that it thought Husband probably did not believe he was committing domestic violence when he was fighting with Pittullo. Nevertheless, the court concluded the DVPA "definitely had the scenario in mind." We agree.
Under the definition of abuse provided in section 6203(a)(3), there was overwhelming evidence of abuse, which was sufficient to support the DVRO against Husband. The court did not make a finding as to abuse under section 6203(a)(1), because doing so was unnecessary, since there was substantial evidence of abuse under section 6203(a)(3). Evidence of abuse included testimony demonstrating that, during the deposition incident, Husband became angry at Wife while arguing with her over ownership of one of their vehicles. When Pittullo intervened, siding with Wife, Husband's ire turned to Pittullo. The two men engaged in a verbal altercation, which quickly escalated to a violent physical "scuffle" after Pittullo "kneed" Husband.
While Pittullo's conduct may have provoked Husband, there was evidence that Husband became enraged and explosively overreacted by punching Pittullo in the jaw, causing Pittullo to fall to the ground in a daze. There was also evidence that, when Wife yelled at Kenny to stop his client, Husband punched Wife in the arm. In addition, Wife testified that Husband's violent conduct caused her to feel she was "in imminent threat of a serious bodily injury." The court reporter testified she also was fearful during the deposition incident. There was also testimony that Husband had previously committed domestic violence against Wife, their children, and friends. Thus, as the trial court noted, a determination of whether Husband intentionally or accidentally punched Wife was not necessary or dispositive here because there was substantial evidence supporting the trial court's finding of abuse under section 6203(a)(3).
We therefore conclude, based on the totality of the evidence presented at trial, that the trial court did not abuse its discretion in granting a DVRO against Husband based upon the finding that Husband's conduct during the deposition incident placed Wife "in reasonable apprehension of imminent serious bodily injury" to herself or her attorney. (§ 6203(a)(3).)
IV.
SELF-DEFENSE
Relying on Marriage of G., supra, 11 Cal.App.5th 773, Husband contends the trial court failed to consider his absolute right to act in self-defense before granting the DVRO. Husband argues that if, as the trial court found, Wife had a reasonable apprehension of imminent serious bodily injury, the trial court failed to address the fact that Wife's apprehension arose from Husband acting in self-defense against Pittullo's attack.
In Marriage of G., supra, 11 Cal.App.5th 773, the court noted that not every violent act justifies issuance of DVRO. Marriage of G. explained that the trial court may appropriately consider traditional principles of self-defense in deciding whether the petitioner seeking a DVRO has suffered "'abuse'" within the meaning of section 6203. (Marriage of G., supra, at p. 776.) Under traditional self-defense principles, the initial victim of aggression may employ reasonable force to resist the aggressor, but is not protected if the victim responds with excessive force. (Id. at pp. 776, 779-780.) "Although the Family Code does not define self-defense, the Civil Code states that '[a]ny necessary force may be used to protect from wrongful injury the person or property of oneself, or of a . . . child . . . .' (Civ.Code, § 50.) In a suit for assault and battery, the defendant is not liable if that defendant reasonably believed, in view of all the circumstances of the case, that the plaintiff was going to harm him or her and the defendant used only the amount of force reasonably necessary to protect himself or herself." (J.J. v. M.F. (2014) 223 Cal.App.4th 968, 976.) Marriage of G. is distinguishable from the instant case. Here, it is unrefuted that Wife was not the aggressor and was not involved in physically assaulting Husband. Therefore, there was no basis for considering self-defense in deciding whether to grant Wife a DVRO against Husband.
Husband argues the evidence supports a finding that he acted in self-defense in response to Pittullo's attack. But substantial evidence shows that, regardless of whether Pittullo was the initial aggressor, Pittullo's initial act of "kneeing" Husband was a relatively minor act, and Husband's response of punching Pittullo in the jaw, causing him to fall to the ground in a daze, was excessive. The force Husband used to attack Pittullo and Wife did not constitute "the amount of force reasonably necessary to protect himself." (J.J. v. M.F., supra, 223 Cal.App.4th at p. 976.) There was evidence Husband punched Wife when she yelled at Kenny to stop Husband from hitting Pittullo, after Husband had punched him and he was lying on the floor in a daze. Furthermore, there was no testimony by Husband that he was acting in self-defense. He did not testify at trial.
Furthermore, the absence of any discussion of self-defense by the trial court does not constitute reversible error because Husband did not raise the theory in the trial court. (Bardis v. Oats (2004) 119 Cal.App.4th 1, 13-14, fn. 6 [new defense theories may not be raised for the first time on appeal].) Husband forfeited his newly asserted self-defense theory by not raising it in the trial court. (Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1117.) This court will not reverse rulings on grounds that could have been, but were not, challenged below. (In re S.B. (2004) 32 Cal.4th 1287, 1293.)
In addition, because Husband did not raise his self-defense theory in the trial court, it is unclear from the record as to whether the trial court considered the theory of self-defense and rejected it because it was unsupported by the evidence. Even if there was evidence supporting a finding of self-defense, "'"We must accept as true all evidence . . . tending to establish the correctness of the trial court's findings . . . , resolving every conflict in favor of the judgment."' [Citation.]" (Burquet v. Brumbaugh, supra, 223 Cal.App.4th at p. 1143.) For all of the above-stated reasons, we therefore reject Husband's self-defense objection.
V.
DISPOSITION
The November 8, 2016, DVRO restraining Husband's conduct pursuant to the provisions of the DVPA, is affirmed. Wife is awarded her costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. RAPHAEL
J.