Opinion
B318639
02-23-2023
In re the Marriage of JOSE and LUZ S. v. LUZ S., Appellant. JOSE S., Respondent,
Harry Holmes for Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 21TRFL00800, Gia G. Bosley, Judge. Affirmed.
Harry Holmes for Appellant.
No appearance for Respondent.
HOFFSTADT, J.
Pursuant to the Domestic Violence Prevention Act (the Act) (Fam. Code, § 6200 et seq.), the trial court issued a five-year restraining order requiring Luz S. (wife) to stay away from Jose S. (husband) and awarding husband full physical and legal custody of their two still-minor children. Wife argues that the order must be vacated because (1) the court erred in denying her second continuance request to await a prosecutor's decision whether to charge her criminally for the physical attack prompting these proceedings, and (2) the order was not based on substantial evidence. Because these claims lack merit, we affirm.
All further statutory references are to the Family Code unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Husband and wife have three kids-Erik (age 22), Jocelyn (age 15), and Jason (age 6). After more than 26 years of marriage, husband filed for dissolution in July 2021. Husband continued to reside with the family, but in the ensuing months, wife verbally threatened husband that she would be "in charge of [his] destruction," broke his cell phone "in pieces" and, on one occasion, jumped on him and put her knees and legs on his chest.
The tension came to a head on September 25, 2021. Around 8 p.m. that night, husband knocked on Jocelyn's bedroom door to ask if he could pick up some food for her. She was crying when she opened the door, and in response to husband's question as to why, she explained that she felt she was being "blamed for all the problems" between the parents. As they spoke, husband put his foot in the door jamb to keep Jocelyn from closing the door while they talked. At that point, wife came out of the master bedroom and told husband to stop "bothering" Jocelyn and to "leave her alone." Wife then walked into a nearby bathroom, grabbed a pair of scissors from the bathroom sink, and came at husband to stab him in the chest. Husband was able to grab her arm and deflect the blow, so wife only ended up slicing open his arm.
Wife was arrested but released on bail.
II. Procedural Background
On September 28, 2021, husband petitioned for a restraining order under the Act. He also asked for full legal and physical custody of Jocelyn and Jason. Later that day, the trial court issued a temporary restraining order requiring wife to stay away from husband and the two children, granting husband full legal and physical custody of the children, and requiring wife to move out of the family residence.
On October 21, 2021, the trial court granted wife's request for a continuance of the hearing on whether to issue a restraining order, leaving the TRO in place in the interim.
At the continued hearing date of December 1, 2021, wife asked for a second continuance until late January 2022 because, until that time, the prosecutor could still file criminal charges against wife arising out of the attack and wife would be accordingly reluctant to testify in the restraining order proceedings for fear of waiving her privilege against selfincrimination. The trial court noted that the restraining order proceedings did not transgress wife's privilege against self- incrimination because she had the "option" whether to testify or not. When husband responded that he wanted the proceedings to go forward that day, the court noted that husband "has a right to have th[e] matter heard today" and denied wife's request. That day, two witnesses testified-namely, husband and Erik. The court then set a further hearing date for the remaining witnesses.
The hearing reconvened on February 4, 2022. Wife and Jocelyn testified, and husband testified in rebuttal.
After entertaining argument, the trial court granted husband's petition for a five-year restraining order. The court found husband's testimony to be "credible" but found the testimony of wife, Erik, and Jocelyn to be "not . . . credible" because (a) wife's and Jocelyn's accounts contradicted one another, (b) Jocelyn was "extremely biased," and (c) Erik was not physically in a location to be a percipient witness to the events to which he testified.
The court then issued the restraining order enjoining wife from harassing or having contact with husband, Jocelyn, and Jason; awarding husband full legal and physical custody of Jocelyn and Jason; and ordering monitored visitation with wife.
Wife filed this timely appeal.
DISCUSSION
I. Denial of Second Continuance
When criminal charges may be filed or are pending against a party to a civil proceeding that arise out of the same facts as that civil proceeding, that party can be put in the difficult position of having to choose between (1) invoking their privilege against self-incrimination and offering no discovery or evidence in the civil proceeding (which preserves the privilege in the criminal matter but may cost them the civil proceeding), or (2) waiving their privilege and testifying (which enables them to mount a defense in the civil proceeding but may hurt them substantially in the criminal matter). (Alvarez v. Sanchez (1984) 158 Cal.App.3d 709, 712; Fisher v. Gibson (2001) 90 Cal.App.4th 275, 283-284 (Fisher); In re Marriage of Sachs (2002) 95 Cal.App.4th 1144, 1155-1156.)
One way out of that dilemma is to continue the civil proceeding until the danger of criminal prosecution passes. (Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 307 (Fuller).) However, the mere pendency of a related criminal matter does not create a "blanket" right to a continuance of the civil proceeding. (Fisher, supra, 90 Cal.App.4th at p. 286; Alpha Media Resort Investment Cases (2019) 39 Cal.App.5th 1121, 1134 (Alpha Media); Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 885 (Avant!); Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1055 (Oiye) [one party "may not bring a civil action to a halt simply by invoking the privilege against self-incrimination"].) Instead, courts in deciding whether to continue a civil proceeding in these circumstances must consider whether the "interests of justice" so require by looking to several factors, including (1) "'the interest of the plaintiff[] [in the civil proceeding] in proceeding expeditiously with this litigation or any particular aspect of it, and the potential prejudice to plaintiff[] of a delay'"; (2) the burden on the party (usually the defendant in the civil proceeding) from moving forward without a continuance, (3) the interests of the courts in fairly and expeditiously disposing of civil cases, (4) the interests of third parties to the litigation, and (5) "'the interest of the public in the pending civil and criminal litigation.'" (Alpha Media, supra, at pp. 1131-1132, quoting Keating v. Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322, 324-325; Avant!, supra, 79 Cal.App.4th at p. 885; Fuller, supra, at pp. 306-307.) A court has considerable discretion in how it balances these factors. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823 (Falcone & Fyke).) This discretion dovetails neatly with the usual discretion a court has in deciding whether to continue matters. (People v. Mora and Rangel (2018) 5 Cal.5th 442, 508.) Our review is for an abuse of that discretion. (Falcone & Fyke, at p. 823.)
Although a litigant in Family Code-based matters has a right to a single continuance under certain circumstances (Fam. Code, § 245, subd. (a)), wife already got one continuance; this case deals with her second request for a continuance.
The trial court did not abuse its discretion in denying the continuance in this case for two reasons.
First, wife effectively received the continuance she requested: She wanted to postpone her testimony until late January 2022, and due to the trial court's need to continue the hearing for independent reasons, wife did not ultimately testify until February 2022.
Second, the court's balancing of factors was not an abuse of discretion. Husband (and the minor children, as third parties) had an interest in adjudicating the restraining order as a means of protecting himself and his children from wife's bursts of violence, although that interest was admittedly protected to some degree by having the TRO still in force. Wife had an interest in protecting her privilege against self-incrimination, although this interest is fairly weak given that wife never articulated how it would be compromised by her testimony and thus never asked the trial court to undertake the "particularized inquiry" of the privilege's applicability (as is her burden) (Oiye, supra, 211 Cal.App.4th at p. 1053, italics omitted), given that wife's testimony ultimately disclaimed any involvement (and thus did not incriminate her), and given that wife ultimately did not testify until after the anticipated window for filing criminal charges closed. The court's interest usually favors expeditious resolution of cases and the denial of continuances. (Avant!, supra, 79 Cal.App.4th at p. 888; Alpha Media, supra, 39 Cal.App.5th at p. 1132.)
II. Substantial Evidence Supporting Restraining Order
The Act empowers a court to enter a restraining order lasting up to five years to prevent an occurrence or recurrence of domestic violence. (§§ 6220, 6203, 6218, 6300, 6340, 6345; Quintana v. Guijosa (2003) 107 Cal.App.4th 1077, 1079.) The person seeking the order must prove, by a preponderance of the evidence, "a past act . . . of abuse" and that his safety would be jeopardized by the absence of an order. (§§ 6300, 6340; Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137; J.H. v. G.H. (2021) 63 Cal.App.5th 633, 641.) Under the Act, "abuse" includes "intentionally or recklessly caus[ing] or attempt[ing] to cause bodily injury." (§ 6203, subd. (a)(1).) We review the grant of a restraining order under the Act for abuse of discretion (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1143), which means we review whether the court's underlying factual findings are supported by substantial evidence. (Ibid.; Curcio v. Pels (2020) 47 Cal.App.5th 1, 12.)
Substantial evidence supports the issuance of the restraining order in this case. Husband testified that wife came at him with a pair of scissors, aiming at his chest. Such an attack certainly constitutes "abuse" within the meaning of the Act, and husband's testimony by itself constitutes substantial evidence (People v. Vivar (2021) 11 Cal.5th 510, 536 [testimony of a single witness constitutes substantial evidence]).
Wife resists this conclusion with what boils down to two arguments.
First, wife argues that the trial court should have believed the testimony of her three witnesses (herself, Erik, and Jocelyn) over husband. Although the accounts they offered differed in several respects, those witnesses in essence testified that husband had attacked wife, that wife acted in self-defense, and that husband may have ended up stabbing himself with the scissors. But second-guessing the trial court's credibility findings is beyond our purview except in the very unusual situation where a witness's testimony is "'"physically impossible or inherently improbable"'" (People v. Prunty (2016) 62 Cal.4th 59, 89; People v. Tapia (2018) 26 Cal.App.5th 942, 953), and nothing husband testified to was impossible or inherently improbable. Wife tries to sidestep this standard of review by asserting that the trial court "misunderstood" and "misconstrue[d]" the testimony offered in support of her case and was wrong to focus on what was happening at the time she grabbed the scissors (rather than the events prompting her to grab the scissors in the first place). At bottom, however, these variants do no more than ask us to credit her witnesses over husband. Wife also points out that she had three witnesses against husband's sole testimony, but credibility is a function of earnestness, not multiplicity.
Second, wife argues that the restraining order will only worsen the family dynamic. Aside from being irrelevant to the substantial evidence challenge, this argument also ignores our deferential abuse of discretion review to the issuance of the order; here, the court's balancing of the benefits and drawbacks of issuing the restraining order in this case was not an abuse of discretion.
DISPOSITION
The order is affirmed.
We concur: LUI, P. J., ASHMANN-GERST, J.