Opinion
B296536
09-15-2020
K.R., Plaintiff and Respondent, v. T.V., Defendant and Appellant.
Law Offices of Stuart J. Faber and Stuart J. Faber, for Defendant and Appellant. No appearance by Petitioner or Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 18CHPT00271) APPEAL from an order of the Superior Court of Los Angeles County, Steve Cochran, Judge. Affirmed. Law Offices of Stuart J. Faber and Stuart J. Faber, for Defendant and Appellant. No appearance by Petitioner or Respondent.
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In this custody action, T.V. (mother) appeals from the denial of her application for a domestic violence restraining order (DVRO) against K.R. (father), her former live-in companion and the father of her three-year-old son. We find no abuse of discretion and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The DVRO Application
Mother and father lived together from 2015 to 2018, and had one child. In July 2018, mother agreed to move out of the family home, and father filed a petition to establish a parental relationship with their now two-year-old son. On July 20, 2018, mother had begun to move out, and father insisted that she complete her move that day. When mother attempted to leave for work without packing the rest of her belongings, father grabbed her keys. Mother called the police and accused father of grabbing her by the arm and throat. Mother showed the officer a scrape on her pinky finger that she said father inflicted when he grabbed the keys. Father was arrested, but released shortly thereafter. When he returned home, mother had moved out and taken son with her.
On August 13, 2018, mother filed an application for a DVRO to protect her and son from father. She claimed father had strangled her and thrown her to the ground several times when she tried to leave his house on July 20, and she had bruises on her neck and arms, and "bleeding hands." She further stated that father had attacked her on previous occasions, inflicting "other injuries that he learned in a terrorist book how not to leave marks." According to mother's declaration, father had a criminal record "for domestic violence and falsification of documents." The court issued a temporary restraining order pending a September 5, 2018 hearing.
On August 31, 2018, father filed a response, stating that mother was a compulsive liar. He denied having been violent with mother, or having convictions for domestic violence and document falsification. He claimed that although mother had agreed to move out of his house and share custody, she subsequently refused to move. He acknowledged taking her car keys when she said she was leaving to do work instead of finishing moving out. He said he was their son's primary caretaker before the temporary restraining order was issued.
The hearing was continued several times and eventually began on November 13, 2018.
2. Mother's Case
Mother testified that father had attacked her over twenty times starting in November 2017. According to mother, he had strangled her in front of son, dragged her, and thrown her to the ground. Mother also testified that father had held a lighted cigarette to son's thumb, and had shoved him out of the way when father was beating up mother. She did not report the child abuse to the Department of Children and Family Services (DCFS) because she was "scared . . . it would break our family apart."
Mother's business colleague, Hakop L., took the stand and testified he witnessed an incident of domestic violence between mother and father in October 2017. When Hakop arrived at mother and father's house he heard loud voices and looked in the window. Hakop saw father hit mother with a belt, throw her to the floor, and attempt to choke her in front of son. Hakop then rang the doorbell and father came to the door. Father gave Hakop some paperwork and Hakop then left. Hakop did not call the police because he was afraid father would hurt him.
An acquaintance of mother's, Michael Gonos, testified that he had seen mother and father in an argument on March 3, 2018 in front of Gonos's building. He saw father "grab" mother's arm, pull her out of a parked car, and "backhand" her. Mother and father then got back in the car and proceeded to drive away. Gonos did not call the police.
3. Father's Case
Father testified that he had never hit mother, but rather she had physically attacked him, punching him in the nose and stabbing him with scissors. Father claimed that he had asked mother to move out of the house "many times" starting in November 2017. He reiterated the facts stated in his filed declaration, asserting that he had taken mother's keys when she attempted to leave for work instead of finishing moving out. Father denied having visited Gonos's building anytime in 2018. He testified that on March 3, 2018, the day Gonos witnessed the altercation, father was at home while mother was out, and introduced into evidence a text message to that effect.
A DCFS social worker testified that she had investigated a referral of abuse concerning the family and concluded the allegation was unfounded.
4. Officer Williams
After the completion of father's case, mother's counsel announced a surprise witness, the police officer who arrested father on July 20, 2018. Mother's counsel said he had not subpoenaed the witness but that mother, without counsel's knowledge, had "used [counsel's] signature on a subpoena." Mother took the stand and acknowledged having prepared the subpoena without her counsel's approval. Her counsel asked to be relieved, and the court denied the request.
Officer Daryll Williams then testified that he responded to a call from mother's house on July 20, 2018. Mother told him she was attempting to move out of the house when father grabbed her by the arm and throat and took her keys. Father admitted that he grabbed her keys, and Officer Williams arrested father because mother had a visible injury on her finger.
5. The Court's Ruling
The court denied mother's application for a DVRO. The court found mother "exaggerated, at least, and concocted, at worst" allegations about father abusing the child. The court noted that mother only filed her DVRO application after father had filed his parentage action, and concluded that "mother's desire for DV relief is designed, in part if not in whole, to deprive father contact with the child."
The court further found mother's boss, Hakop, not credible: Hakop testified that "he sees a violent assault with the child in harm's way . . . . [I]n his version of events, [he] had the temerity to ring the door bell, even to get his paperwork . . . but he couldn't make a call to the police to protect his friend and this baby. It's not credible to me." Likewise, the court questioned Gonos's account that he saw father hit mother but then "let her go back to that situation without calling anonymously the police . . . ." The court concluded that father was "more credible about physical altercations during the relationship."
Mother timely appealed.
DISCUSSION
Mother makes three arguments on appeal: (1) the trial court erred in denying her request for a continuance at the outset of the hearings, (2) father's act of grabbing her keys mandated the issuance of a DVRO, and (3) the court appeared to credit Gonos's testimony which, in turn, "imposed a duty" on the court to issue a DVRO. 1. The Domestic Violence Prevention Act
Under the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.; DVPA), a court may issue a restraining order to prevent acts of domestic violence and "to provide for a separation of the persons involved" upon "reasonable proof of a past act or acts of abuse." (Fam. Code, §§ 6220, 6300.) Abuse includes intentionally or recklessly causing or attempting to cause bodily injury. (Fam. Code, § 6203, subd. (a)(1).) "The DVPA requires a showing of past abuse by a preponderance of the evidence." (In re Marriage of Everard (2020) 47 Cal.App.5th 109, 121-122.)
"Abuse is not limited to the actual infliction of physical injury or assault" and includes causing or attempting to cause bodily injury, sexual assault, placing a person "in reasonable apprehension of imminent serious bodily injury," and behavior such as "stalking, threatening, . . . harassing, . . . or disturbing the peace of the other party . . . . " (Fam. Code, §§ 6203, 6320, subd. (a).)
We review the grant or denial of a request for a DVRO for abuse of discretion. (In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1426-1427.) " 'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' [Citation.]" (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.) " 'To the extent that we are called upon to review the trial court's factual findings, we apply a substantial evidence standard of review.' [Citation.]" (In re Marriage of G. (2017) 11 Cal.App.5th 773, 780.) 2. The Trial Court Did Not Abuse its Discretion in Denying Mother's Request for a Continuance
At the outset of the November 13, 2018 hearing, mother had not yet hired an attorney and orally asked for a continuance, stating, "I had preferred to hire an attorney. I didn't have time to do so." The court responded, "you applied for the restraining order back in August. It's November. You've had plenty of time . . . ." The court then proceeded with the hearing which included mother's testimony.
The hearing was then continued to December 3, 2018 at which point mother had hired counsel. She later testified on direct examination at a subsequent hearing.
Mother now argues the court erred in denying her request for a continuance as her need for additional time to hire an attorney constituted good cause. In her view, the denial of the continuance resulted in the production or exclusion of "evidence which may have imperiled her case." We find no abuse of discretion.
Under Family Code section 245, subdivision (b), "Either party may request a continuance of the hearing, which the court shall grant on a showing of good cause." " 'Trial courts generally have broad discretion in deciding whether to grant a request for a continuance.' [Citation.]" (J.M. v. W.T. (2020) 46 Cal.App.5th 1136, 1139.) An "abuse of discretion results in reversible error only when the denial of a continuance results in the denial of a fair hearing, or otherwise prejudices a party." (Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 527.)
Mother's bare statement that she did not "have time" to hire counsel during the three months that had elapsed between the filing of her application and the initial hearing did not constitute good cause for a continuance. (Cf. J.M. v. W.T., supra, 46 Cal.App.5th at p. 1140 [good cause shown when the moving party had a necessary spinal surgery scheduled for the day before the hearing].) Given that the temporary restraining order had the effect of separating father from son during an extended period of time, it was not an abuse of discretion for the court to conclude that the balance of the parties' interests weighed against further delay. Mother has neither identified what evidence she could have submitted with a continuance or with assistance of counsel, nor has she articulated any prejudice she suffered. Instead she vaguely speculates that proceeding without an attorney at the hearing "may have imperiled her case." 3. Father's Act of Grabbing Mother's Keys Did Not Require Issuance of a Restraining Order
Mother also faults the trial court for stating that it would be willing to grant a continuance if mother would allow father to see son in the interim. As we understand it, the trial court was attempting to explain to mother father's competing interest in avoiding further delay. However, even crediting mother's complaint that the trial court chose its words poorly, she still failed to show good cause or prejudice warranting reversal. --------
Mother argues that father's act of "grabbing" her car keys as she was leaving the family home on July 20, 2018 "fell squarely within the definitions of abuse as delineated in Family Code sections 6203 and 6320" and "entitled her" to a DVRO. However, the question before us is not whether there is substantial evidence that could have supported a finding of abuse within the meaning of the DVPA but whether, given the court's factual findings, it was an abuse of discretion to decline to issue a DVRO. Mother bore the burden of proof as the moving party, and the court's ruling encompassed a finding that she did not carry that burden. To the extent she now challenges the failure-of-proof issue, " ' "the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' " ' " (Patricia A. Murray Dental Corp. v. Dentsply Internat., Inc. (2018) 19 Cal.App.5th 258, 270.) With this standard of review in mind, we consider the court's order in light of the July 20 incident.
Mother argues that father placed her in reasonable apprehension of serious bodily injury within the meaning of the DVPA when he grabbed her keys. (See Fam. Code, § 6203, subd. (a)(3).) However, viewed in the context of the court's credibility findings and in the light most favorable to the judgment, the court could have reasonably found father's act was perceived as an expression of frustration that did not suggest a risk of significant physical injury. The act may have been aggressive, but mother cites no authority that a court must by rote issue a DVRO for every aggressive act. (See In re Marriage of G., supra, 11 Cal.App.5th at p. 776 [not every violent act justifies the issuance of a DVRO]; see Fam. Code, § 6300, subd. (a) [an "order may be issued under this part to restrain any person . . . if an affidavit or testimony . . . shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse." (Italics added)].)
In support of her argument mother relies on cases in which the Court of Appeal affirmed the issuance of a restraining order based on substantial evidence of abuse (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140), or summarily denied without a hearing an application for a temporary restraining order (Nakamura v. Parker (2007) 156 Cal.App.4th 327), or reversed part of a restraining order that prohibited husband from posting information on the parties' divorce on the internet, finding the order infringed on husband's first amendment rights (Molinaro v. Molinaro (2019) 33 Cal.App.5th 824). Those cases are inapplicable: as to the last two authorities, mother received a hearing and the present matter does not involve first amendment issues. That one appellate decision affirmed a DVRO following a substantial evidence challenge does not mean it was an abuse of discretion to deny a DVRO. The issue before us is whether the court abused its discretion in declining to issue a restraining order.
We also observe that the abusive acts in the cases that mother cites are distinguishable from what the court apparently found here. For example, in Burquet the defendant would not accept the end of a romantic relationship, and persistently contacted the plaintiff over a period of four months in spite of her repeated requests that he not. (Burquet, supra, 223 Cal.App.4th at p. 1142.) He arrived at her home unannounced and uninvited, and became angry when she asked that he leave, refusing to depart. (Id. at pp. 1142-1143.) The court found this constituted disturbing the peace and granted a DVRO. (Id. at pp. 1144, 1146.) By contrast, father, who the court found credible with respect to physical altercations, testified that he repeatedly asked mother to move out, and that he grabbed the keys out of frustration when she refused to move the rest of her belongings out of his house. Unlike the boyfriend in Burquet, who consistently stalked the victim, here, father was attempting to separate from mother.
The present case is more analogous to In re Marriage of G., supra, 11 Cal.App.5th 773. In that case, a wife filed a petition for dissolution, requesting custody of the parties' son and a DVRO protecting her from the husband. (Id. at p. 776.) The wife asserted that the husband had inflicted physical injuries on her. He denied acting violent and claimed that the wife had initiated the aggression. (Ibid.) The court ruled against the wife, concluding that the physical confrontations between the parties were triggered by the wife's aggression against the husband. (Id. at p. 778.) The Court of Appeal affirmed, finding no abuse of discretion in denying the wife's application for a DVRO. (Id. at p. 781.)
As in In re Marriage of G., the trial court here found that mother, the applicant for the restraining order, was not credible in her allegations of physical abuse by father. Rather, the court believed father's testimony that he had not hit mother, and found that mother had exaggerated or concocted stories of father's abuse as a weapon in their custody battle. That father admitted grabbing keys from mother on one occasion does not show that a restraining order was mandatory and that its denial was an abuse of discretion. On this record, the court could have reasonably concluded that a restraining order was not required to prevent domestic violence or ensure a peaceful separation of the parties. 4. Gonos's Testimony about a March 3 , 2018 Incident Did Not Require the Issuance of a Restraining Order
Mother points out that the court equivocated about Gonos's testimony. She argues the court's comments implied that Gonos's testimony was credible which, in turn, "imposed on the Court the duty to adopt that evidence and issue a DVRO." While mother is correct that the court's comments about Gonos's testimony were ambiguous, she has not shown that this translates to an abuse of discretion in denying a DVRO.
The trial court initially stated that it was "not finding Mr. Gonos, like, not credible," but then found it was "not credible that somebody who has a good relationship with a woman and there are children involved . . . would just kind of walk away and let it lie and let her go back to that situation without calling anonymously the police . . . ." The court also observed that father had presented "contrary evidence" that he was not at Gonos's building the day Gonos claimed he witnessed the altercation. The court concluded: "I am finding Mr. Gonos doing the best he can but standing alone in light of the other testimony he doesn't prove it. I am in equipoise about that."
Mother selectively points to the court's initial comment when she argues that "the only reasonable interpretation of not finding Gonos not credible, was that the Court found Gonos credible." However, the court followed that comment by concluding that Gonos was "not credible" when he testified he "just kind of walk[ed] away" without calling the police. Lastly, the court referenced father's testimony that he was not present at Gonos's building during 2018 when the altercation allegedly happened. All in all, the court had serious questions about Gonos's testimony and concluded by stating it was in "equipoise," which we read as a finding that mother had not met her burden of proof.
DISPOSITION
The order denying the application for a restraining order is affirmed.
RUBIN, P. J. WE CONCUR:
MOOR, J.
KIM, J.