Opinion
A150370
05-15-2018
M. P., Plaintiff and Respondent, v. MANOJ PARASHAR, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. FAM0132113)
Manoj Parashar appeals from an order granting a protective order pursuant to the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq. (DVPA)), as to his wife M.P. and their child. On appeal, Parashar contends the order is not supported by substantial evidence and the trial court should have ordered a continuance of the hearing. We affirm.
All further statutory references are to the Family Code unless otherwise indicated.
BACKGROUND
In February 2016, M.P. filed a request for a DV protective order for herself and child against her husband, Parashar. She asked that Parashar be ordered to move out of the family home, turn over their child's passport, and complete a 52-week batterer program. In her attached declaration, M.P. detailed recent and past instances of abuse that she claimed Parashar committed against her and their child.
As to abuse committed against her, M.P. claimed Parashar had started working at her company without her knowledge, had taken her cell phone to do what he called "a forensic check on it," and threatened to "kill" her if he determined she "had done anything wrong." She claimed Parashar had once called her at work to check on her and when she returned his call, he called her "a prostitute and a whore who sleeps with co-workers." He further threatened he would " 'hit [her] so hard with shoes so that [she] will remember where [she] c[a]me from. I will damage your ugly face. I will kill you when you come home.' " Parashar also threatened to hurt her parents, had "screamed and cursed" at her and her parents in front of their child, and "regularly belittle[d] and insult[ed]" her and her family. Additionally, he had called the police on M.P. after he discovered his wardrobe had been opened while he was out of the house. She also claimed Parashar had stopped her from performing prayers with their child, stating " 'we don't do prayers like beggars,' " and reported several instances of him cursing at her in front of their child.
M.P. submitted several e-mails which she called "abusive" and "bullying" and showed how Parashar "denigrates my English, my salary and my skills." She also related an incident on a family trip to India. While she visited her own family with the child, Parashar was visiting his family. When Parashar called and told M.P. to send the child in a taxi to him, M.P. refused. Parashar then left the country, taking the child's passport with him.
M.P. also claimed Parashar had been physically abusive towards her, and that "[s]everal times" he had "put his hands around my throat and tightened his hands until I couldn't breathe."
As to their child, M.P. claimed multiple instances of emotional and physical abuse by Parashar. She reported he "regularly slaps" the child when he is angry at her or at the child. On one occasion, Parashar slapped the child "so hard" the child dropped a book, and another time she had seen Parashar slap the child after the child wanted to use the bathroom, making the child vomit and wet himself. She stated the child had told her Parashar "had hit" the child and "often" called the child " 'stupid' " and a " 'fucking idiot[],' " and had threatened to slap the child if answers to homework questions were wrong. Finally, she mentioned an instance during the India trip when Parashar slapped the child in front of everyone after the child chose to sit next to M.P. rather than Parashar.
The court issued a temporary restraining order as to both M.P. and the child, with no visitation and ordered Parashar to move out of the home.
M.P. petitioned the court for dissolution of marriage in mid-March.
The court set a hearing on M.P.'s request for a domestic violence (DV) protective order for March 18. After criminal charges were filed against Parashar, the court continued the DV matter to May 4 and reissued the temporary restraining order. However, the court modified the no-visitation order, allowing two supervised visits per week with the child beginning on April 3 and continuing through April 24.
Parashar "violated" the protective orders "shortly after they were issued and served on him, leading to an independent criminal action against him."
The temporary restraining order was reissued a second time, and the hearing on M.P.'s application for a DV protective order was continued again, to July 22 in light of the pending criminal case. Visitation was ordered per the family court service's recommendation, this time unsupervised, every Wednesday and Saturday beginning May 7.
Five days after Parashar's first unsupervised visit with the child, M.P. sought an ex parte order to bar further unsupervised visits until a custody evaluation could be performed. In support of her application, she submitted a declaration from the child's pediatrician. The physician stated she had seen the child two days after the first unsupervised visit for bed wetting, and the child feared being hit or kicked by Parashar and did not want to see him. The physician recommended contact with Parashar be terminated "until an independent third party can investigate," as the visits were "causing [the child] mental anxiety as well as possibly causing physical symptoms of stress, [such as] the bed wetting."
The following day, Parashar filed a responsive declaration to the ex parte request to terminate unsupervised visits. He claimed the May 7 and 11 visits had gone well, the child "appeared to be relaxed and happy to be spending time together," and at the end of the visits the child expressed a wish for longer and more frequent visits. As to the allegations made by M.P., Parashar invoked his Fifth Amendment rights. Finally, Parashar submitted photographs of him and the child together during the visits. The court denied M.P.'s ex parte application to terminate unsupervised visits.
The order denying M.P.'s ex parte application to bar further visitation is not in the record on appeal. However, the action is reflected in the court's register of actions. We take judicial notice of the San Mateo County Superior Court's register of actions in the proceeding against Parashar for a restraining order (case No. FAM0132113), the proceeding against M.P. for a restraining order (case No. FAM0132113A), and the criminal proceeding involving Parashar (case No. 16-SM-002386-A). (See Evid. Code, § 452, subd. (d)(1).)
The hearing on the DV protective order was again continued and the temporary restraining order reissued, pending disposition of the criminal proceedings against Parashar. The court scheduled the hearing for October 3.
Prior to the October 3 hearing, Parashar submitted a written response to M.P.'s allegations of abuse. He declared he had not purloined her phone, but had taken it to the repair shop when M.P. complained it was not working properly. He denied calling her any names when he telephoned her at work, and claimed he was just "concerned that she was not answering her phone because [she] was the primary contact for [their child's] school." He called the allegation that he had started working at M.P.'s company without her knowledge "absurd," as she herself referred him to the company and had "collected a referral bonus." While Parashar admitted to having "arguments" with M.P. over parenting, he denied the allegations of abuse as "completely false," stating he had "never threatened . . . , choked her or otherwise physically assaulted her." He maintained it was M.P. who at "numerous times in the past threatened to file false claims against [him] and to take our [child] away," that she also "verbally abused" him "on many occasions." He additionally claimed it was M.P. who had been "withholding" their child while on the trip to India, and that he contacted several authorities "about the kidnapping" but was advised to work out an arrangement with M.P., which he eventually did.
As to allegations that he had abused their child, Parashar denied ever hitting or calling the child "a derogatory name such as 'idiot.' " He claimed all of M.P.'s accusations of emotional and physical abuse were "fabricated."
The parties submitted trial briefs in advance of the October 3 hearing. M.P. largely restated the allegations in her declaration supporting her application for a protective order. Parashar contended M.P. had failed to meet her burden of demonstrating abuse by a preponderance of the evidence and that a DV protective order was "unwarranted" because she had failed to show a threat of future harm.
A week before the hearing, on September 26, Parashar filed his own request for a DV protective order for himself and the child against M.P., and a hearing was set on that matter for October 19. Parashar claimed that for the past year and a half he had "lived in constant fear" for his and the child's life "at the hand of [M.P.] or one of her many coworkers with whom [he] believed she is having affairs." He asserted his wife emotionally abused both him and the child by making "belittling comments" to Parashar both alone and in front of the child and by telling the child she would " 'leave . . . and get another small baby from Arkansas' whom she would 'love more than [the child].' " He claimed M.P. had a "fierce temper," and had often physically hurt him by "scratching" his forearms. Three days later, on September 29, Parashar filed an ex parte application to consolidate the two DV protective order proceedings, which the court denied. The day before the scheduled October 19 hearing, Parashar filed a request for dismissal without prejudice.
In the meantime, on October 3, the hearing on M.P.'s application for a DV protective order finally took place. Both parties testified.
M.P. largely reiterated the many allegations she had detailed in her application and her trial brief. She also called two witnesses. The first was her cousin who was present during the telephone conversation that took place in India between M.P. and Parashar. According to her cousin, Parashar called M.P., M.P. put the call on speakerphone, and Parashar called M.P. a " 'fucking bitch,' " and said he was " 'going to teach [her] a lesson.' " The child was also present and heard the call, and the cousin became "worried" for M.P.'s and the child's safety. The second witness, a friend of M.P.'s, testified to the incident in which Parashar called the police after M.P. went into his wardrobe to retrieve a USB cable. M.P. had called the friend, "in a panic," because she feared she would be arrested. When the friend arrived at the couple's residence, he saw Parashar and described him as "angry" and "mad," and was "accusing and threatening [M.P.], calling her a fraud and a thief." He stated the child was also in the house while this was happening.
For his part, Parashar testified the e-mails he had sent M.P. were "written in a very specific context only," and were not "general statements" about M.P. He acknowledged he had violated the temporary restraining order and had pleaded no contest to one of the criminal charges. He insisted, however, this had all happened because he did not know the order prevented him from going to M.P.'s workplace on the weekends, and that he was only at the workplace to talk to one of M.P.'s coworkers to see if the coworker could help shed light on M.P.'s "false allegations." He further admitted he had called M.P.'s coworker's wife and talked about M.P.'s relationship with her husband, insisting he "was seriously scared for my life and my [child's] life." He also acknowledged he had called M.P. "at least probably 200" times while they were in India, but stated only 60 of those calls were picked up and he only called because "of what [he] perceived to be a kidnapping" of the child. He claimed he was "very distressed" in India when M.P. did not follow through with their original travel itinerary. Parashar categorically denied ever having been physically abusive to M.P. or their child. Instead, he asserted M.P. was abusive to him, calling him a "miser ass," and a " 'kamjor mard,' " which means an "impotent man," in English. Parashar presented no other witnesses.
Parashar was charged with violating the restraining order on four separate occasions, and he pleaded no contest to one violation on July 11, 2016. He was sentenced to two years' probation and elected to do community service as an alternative to a six-day jail sentence. As a result of his plea, a two-year no-contact criminal protective order against Parashar was issued as to M.P.
At the conclusion of the hearing, the court acknowledged there were "broad-ranging allegations of emotional, financial and other types of abuse," but focused "on those areas where it found the most evidence to sustain the claims that were made by petitioner." The court first focused on the electronic communications Parashar sent to M.P. in which he talked "about her poor English, her poor driving, her risky behavior and limiting where she should go with their [child], who is acceptable to have at his home, et cetera." The court next pointed to the phone call in India and the series of e-mails Parashar sent after that call which were "aggressive, abusive[,] harassing . . . and [contained] a number of concerning allegations." The court then discussed the e-mails from Parashar "contacting petitioner at work, questioning her whereabouts, questioning whether or not she's the only person there, why she's not answering the phone, why she's not checking her laptop for 40 minutes, accusing her of lying, deceptive behavior because of that, all while she is essentially requesting that he not address this on a work server. And he continues, even after she asks him not to use this particular means of communication."
The court concluded there was "more than a preponderance of the evidence that these things occurred," and that these "are adequately covered by the Family Code." The court found Parashar's explanation as to why he went to M.P.'s worksite "particularly not credible," and instead found Parshar "went there with the purpose of either trying to find [M.P.] herself, or for the purpose of going into her work area to look for evidence to use in the divorce." However, the court did not find that a preponderance of the evidence supported "the physical abuse" allegations as to either M.P. or the child. Concluding the evidence was "more than adequate to support the issuance of a permanent restraining order," the court issued an order as to M.P. and the child. The court allowed, however, for "brief and peaceful contact with both [M.P.] and [the child] required for court-ordered visitation consistent with the previous determinations."
Counsel for Parashar then objected as to the child, asserting "there was no evidence of physical abuse and/or no evidence of nonphysical abuse as to the child." M.P.'s counsel responded that M.P. had testified that Parashar had slapped the child, called the police on M.P. in front of the child, threatened M.P. on the phone call in India in front of the child, and that the child "was observed by [M.P.'s friend and] the first witness" as fearful of Parashar.
Reiterating that it found the allegations of physical abuse not credible, the court went on to state that though "there isn't any credible evidence before the court that there was physical abuse of [the child], there certainly was conduct conducted in [the child's] presence and directed at the mother in front of [the child] which would tend, especially with a child of that age, to destroy [the child's] calm and emotional well-being, which is harassment within the meaning of the statute." The court, in particular, pointed to the incident in which Parashar "called the police and his [child] was present and witnessed the police interaction with [M.P.], which was certainly stressful and distressing for the child," and the phone call which was on speakerphone "in front of the child." "Given those pieces of evidence," the court included the child within the protective order.
DISCUSSION
Protective Order as to M.P. and the Child
Under the Family Code, an "order may be issued" for the purpose of preventing domestic violence, abuse, or sexual abuse if evidence shows "to the satisfaction of the court, reasonable proof of a past act or acts of abuse." (§§ 6300, 6220.) Abuse means any of the following four categories: "(1) To intentionally or recklessly cause or attempt to cause bodily injury. [¶] (2) Sexual assault. [¶] (3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. [¶] (4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320." (§ 6203, subd. (a)(1)-(4).) Section 6320, in turn, includes "molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, . . . harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members." (§ 6320, subd. (a).) Penal Code section 653m, subdivision (b), in turn, prohibits "repeated telephone calls or repeated contact by means of an electronic communication device . . . any combination of calls or contacts, . . . whether or not conversation ensues from making the telephone call or contact. . . ."
Thus, a party seeking a restraining order under the DVPA need not demonstrate "actual infliction of physical injury or assault." (Conness v. Satram (2004) 122 Cal.App.4th 197, 201-202; accord, In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1498 [conduct that destroys the emotional or mental calm of former spouse enjoined under section 6320].)
Parashar claims there was insufficient evidence to support the issuance of the DV protective order, that M.P.'s claims are "demonstrably false," and that his child was "not at risk for abuse." In short, Parashar is challenging the trial court's factual findings.
In reviewing a trial court's factual findings, we review for substantial evidence. "Our sole inquiry is 'whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted,' supporting the 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.' " (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822-823, italics omitted.) Furthermore, "[t]he testimony of a single witness may provide sufficient evidence." (Id. at p. 823.)
Here, substantial evidence supports the trial court's findings. M.P. presented ample evidence that Parashar has repeatedly engaged in unwanted and abusive communications. (See Pen. Code, § 653m, subd. (b) [repeated contact by electronic communications].) She also presented ample evidence that Parashar has repeatedly subjected her to emotional abuse. (See § 6320, subd. (a).) While Parashar maintains M.P. was exaggerating and lying, it was for the trial court to assess the credibility of the witnesses, and the court largely credited M.P. and her witnesses and disbelieved Parashar's version of events. It is not the role of this court, on appeal, to revisit credibility determinations or to reweigh the evidence. (See People v. Houston (2012) 54 Cal.4th 1186, 1215; Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981.)
The same goes for the trial court's findings as to the child. Again, the issuance of a DV protective order does not require prior physical abuse; emotional abuse is sufficient. And here, there was ample evidence to support the trial court's finding that the child has been subjected to repeated instances of emotional abuse. While Parashar claims this evidence should have been discounted, that assessment and the weight given to the evidence was committed to the trial court. Parashar additionally maintains that because the "restraining order effectively prevents [him] from having contact with [M.P.]," it is "unlikely that in the future" that the child would ever be exposed to any abuse, thus negating the need for a protective order as to the child. Parashar's prior violations of the temporary restraining order suffice to demonstrate the fallaciousness of this reasoning.
In sum, ample evidence supports issuance of the DV protective order as to M.P. and the child.
Denial of Continuance
Parashar also challenges the trial court's denial of his ex parte request to consolidate his own request for a protective order with M.P.'s request and to continue the hearings on both matters. He claims that had his ex parte request been granted, he would have been able "to present evidence that would have had a devastating impact on [M.P.'s] credibility."
Each continuance must be considered on its own merits, and a court "may grant a continuance only on an affirmative showing of good cause requiring the continuance." (Cal. Rules of Court, rule 3.1332(c).) Furthermore, "trial courts are vested with broad discretion to determine whether to grant a continuance." (In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002, fn. 11.)
M.P. filed her application for a DV protective order on February 25, 2016. The hearing was put over time and again because of the subsequent criminal action against Parashar for violating the temporary restraining order. When Parashar resolved that matter, the hearing was finally set for October 3—seven months after M.P. filed her application. It was not until virtually the eve of that hearing, that Parashar, on September 26, filed his own application for a DV protective order and sought to consolidate the two matters and to continue the hearing on M.P.'s application yet again. Given this timeline, the trial court acted well within its discretion in refusing to grant Parashar's last minute ex parte request for a continuance.
Parashar has made no argument in support of his contention that the trial court erred in refusing to consolidate the two matters. Accordingly, any issue in this regard has been forfeited. (Saltonstall v. City of Sacramento (2015) 234 Cal.App.4th 549, 587-588 ["Under well-established principles of appellate review, '[t]o demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support that claim of error.' "].) --------
Furthermore, Parashar has not demonstrated prejudice from the denial of his ex parte request for a continuance. (Rebney v. Wells Fargo Bank (1990) 220 Cal.App.3d 1117, 1141, disapproved on another ground as stated in Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260, 269-270; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2017) ¶ 8:103.1, p. 8-66.) In his opening brief, Parashar makes several allegations that he claims show a "documented history of fraud and false complaints." These include that M.P. falsely stated she had never been afflicted with a communicable disease on her visa application and improperly obtained a visa, made false criminal complaints, falsely stated Parashar started working at her place of employment without her knowledge, had lied about a previous marriage, and lied on an employment application. None of this was new, however. Furthermore, Parashar either questioned M.P. about these allegations at the October 3 hearing or mentioned them in his declaration or his trial brief filed in the trial court. Thus, even had there been any abuse of discretion in denying a continuance (which there was not), Parashar has failed to show any prejudice from the denial.
DISPOSITION
The order granting the domestic violence protective order is affirmed. Respondent to recover costs on appeal.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.