Opinion
C083787
03-19-2018
MARC DAVID MARULLO, Plaintiff and Respondent, v. AMY NGUYEN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F3-16-1256)
Respondent Marc David Marullo obtained a domestic violence restraining order (DVRO) against pro. per. appellant Amy Nguyen, his former girlfriend, and the court denied Nguyen's request for a DVRO against Marullo following a contested trial in which both Marullo and Nguyen testified. Nguyen appeals the order granting the DVRO against her. Marullo did not respond to the appeal.
Although difficult to discern from her opening brief, which does not include appropriate citations to the record or coherent legal authority, Nguyen contends the DVRO should be reversed because Marullo did not serve her with his petition and she was unaware he was seeking a DVRO against her at the time of trial. She also claims the court improperly described the job title of one of the witnesses that testified during trial, and that the attorney she eventually hired to represent her was not responsive.
We conclude the trial court did not err in granting the DVRO against Nguyen. Even if we assume Nguyen was not properly served with Marullo's DVRO request, she waived any defect in service by failing to object below, and by attending and participating in the trial. Her remaining contentions are also meritless. We therefore affirm the order granting a five-year DVRO protecting Marullo from Nguyen.
FACTUAL AND PROCEDURAL BACKGROUND
In summarizing the factual and procedural history of this dispute, Nguyen has disregarded the rules governing appellate briefs by failing to support numerous factual assertions with citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).) In other instances, she includes citations that do not support the factual assertions she makes. "Because '[t]here is no duty on this court to search the record for evidence' [citation], [we] may disregard any factual contention not supported by a proper citation to the record." (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379; see City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 [appellate court need not consider any matter asserted without appropriate reference to the record].) Although Nguyen appears in this court without counsel, that does not entitle her to special treatment. (See, e.g., Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) On the scant record provided, we have attempted to piece together the contentious history of this case.
Further rule references are to the California Rules of Court.
On August 15, 2016, Marullo filed a request for a DVRO against Nguyen. According to his request, Marullo and Nguyen were involved in a romantic relationship. At the time, Marullo lived in an apartment on Garden Street in West Sacramento. Nguyen apparently moved into Marullo's apartment with him. Marullo was the only person listed on the apartment lease, and he paid all the rent and other expenses for the apartment.
Marullo described several instances of abuse in his petition. In June 2016, Marullo and Nguyen got into an argument over Hillary Clinton. Marullo asked Nguyen to gather her things and leave the apartment. Marullo then took a basket of Nguyen's clothes outside, and Nguyen locked the door and would not let him back inside. After several hours, Marullo called a locksmith to open the door.
When he got back into the apartment, Nguyen was sleeping. Marullo packed her things, and when she awoke he asked her to leave. She went outside to collect her belongings, and Marullo locked the door. He claimed he opened the door three minutes later after Nguyen called the police. When police arrived, Nguyen claimed Marullo slapped her arm and had him arrested for domestic violence. According to Marullo, the district attorney declined to prosecute him.
Marullo's DVRO request also claimed that on August 8, 2016, Nguyen told Marullo that she wanted to take a bath, and then she fell asleep on the couch. When he tried to awaken her, she screamed that he had poked her in the arm, which he denied, and said she was calling police. She accused him of practicing witchcraft in the apartment, which he denied. Marullo left the apartment. He stayed at a motel, and did not return to the apartment for fear of what Nguyen might do if he were alone with her.
Marullo alleged that on August 13, 2016, Nguyen showed up unannounced at the motel where he was staying to get away from her and started screaming at him in the parking lot. At the time, Marullo was with a woman he had just met named Julianna. The motel security guard escorted Nguyen off the premises. Nguyen called the police, and Officer Avagyan responded. Officer Avagyan told Marullo that Nguyen was accusing him of domestic violence. She also accused Julianna of threatening her, and sent numerous text messages to Marullo accusing and berating him.
Marullo further alleged that Nguyen repeatedly threatened to summon police and falsely accuse him of domestic violence whenever she did not get her way; if, for example, Marullo refused to pay her bills or tried to end the relationship. He claimed he could no longer live in his apartment because he could not be alone with her, and that she refused to vacate the apartment after they received a three-day notice to quit from the landlord because Nguyen was not on the lease.
Marullo requested personal conduct orders, including that Nguyen not harass, attack, strike, threaten, assault, hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance, impersonate, or block his movements, and that she not contact him, either directly or indirectly, in any way. He also requested that Nguyen be ordered to stay "at least 10,000 yards" from him, his home, job or workplace, and vehicle, and that she be ordered to move out of his apartment. He requested attorney fees and costs, and payment for temporary lodging and for moving expenses that he had paid Nguyen to move out of the apartment.
Based on plaintiff's request, the court denied a temporary restraining order because it needed to hear testimony to assess the relevant circumstances. The court ordered that the matter be set for a hearing. A hearing date was scheduled for September 6, 2016, and the court ordered Marullo to serve the notice of hearing on Nguyen at least five days before the hearing.
Nguyen also apparently filed a request for a DVRO against Marullo, which was denied. Her request is not in the record.
On November 3, 2016, the court held a domestic violence trial on both parties' requests for DVRO's. The minute order states that Nguyen was present and representing herself, and that Marullo was present and represented by counsel. Both Marullo and Nguyen were sworn and testified. Marullo called Hailey Mitchell, the leasing agent at his new apartment, as a witness, and Nguyen cross-examined her. Marullo also called Officer Avagyan to testify on his behalf. Marullo introduced several exhibits into evidence, including a locksmith receipt, a check showing a $1,500 payment to Nguyen, hotel bills, an invoice for $500 for moving expenses, a check to his attorney for $2,000, a bill from another attorney, and witness and court fee receipts.
Following the trial, the court granted Marullo a five-year DVRO against Nguyen, which included personal conduct and stay-away orders. The court denied Nguyen's request for a DVRO against Marullo. The court found Nguyen's testimony wholly unpersuasive. It characterized her testimony as "inconsistent, incomplete, conflicting, disjointed, and not reflecting any sort of logic." According to the court, Nguyen "was unable to articulate a single incident or act that would qualify as abuse under even the most liberal interpretation of the [domestic violence] statutes." The court expressed concerns over Nguyen's mental health, but found that her alleged distress was "not supported by any evidence whatsoever."
The court specifically found that Marullo did not commit any act of abuse against Nguyen. By contrast, the court found Nguyen had perpetrated numerous acts of abuse towards Marullo, many of which would qualify as felonies if proved beyond a reasonable doubt, including extortion, threats, assault, and theft.
The court found Nguyen had "harassed Marullo through multitudes of angry, untrue and threatening texts, many of which [sought] money from Marullo so that Nguyen would not report him to the police for alleged domestic violence . . . ." The court further found that the West Sacramento Police and the Yolo County District Attorney declined to pursue charges against Marullo after Nguyen had him arrested for alleged domestic violence in June 2016. West Sacramento Police Officer Avagyan had several contacts with the parties, and testified that Nguyen was harassing, stalking, and berating Marullo.
The court found Nguyen refused to leave Marullo's apartment even though she had no right to be there. Although Nguyen agreed to move out if Marullo paid her $1,500 for moving expenses, which he did, Nguyen refused to move and Marullo's landlord had to evict them to remove Nguyen. Marullo lost his $1,500 and his apartment.
The court ordered Nguyen to pay a total of $8,118.05 in expenses incurred by Marullo, including $140 for a locksmith after Nguyen locked him out of his apartment, $1,500 for an attorney to represent him in the criminal domestic violence case, which the District Attorney ultimately declined to pursue, $1,500 in moving expenses Marullo gave Nguyen to move out, which she did not do, $1,147.85 in hotel costs, $500 in moving expenses, $99.20 for a U-Haul rental, $2,000 in legal fees for the DVRO hearing, $911 for a lost security deposit at the apartment from which he was evicted due to Nguyen's actions, $275 in court costs, a $20 continuance fee, and a $25 witness fee.
On November 9, 2016, Nguyen moved the court to reconsider the DVRO against her. In an attached declaration, Nguyen claimed she did not have an attorney during trial, and that she was confused about court and legal proceedings. Due to financial constraints, she could not afford an attorney at the time. She claimed she did not know she would need to call witnesses or that there would be a "mini trial." She also asserted she did not know defendant was seeking damages, and had she known she would have hired an attorney and subpoenaed witnesses.
On January 3, 2017, the court denied Nguyen's motion for reconsideration. Although the record shows Nguyen was present at the hearing, there is no transcript of the proceedings.
The next day, on January 4, 2017, Nguyen filed a motion to set aside and vacate the judgment. She argued that defendant did not properly serve her with his DVRO petition, that she had been unable to hire an attorney, and that she did not know Marullo was seeking damages related to the eviction. She generally denied the allegations Marullo made in his request for the DVRO, and claimed that he had perjured himself by making false statements during the domestic violence trial. An attached declaration states she learned of the lawsuit on August 29, 2016, two months before trial.
On January 4, 2017, Nguyen also filed a notice of appeal. Her notice designating the record on appeal elects to proceed by clerk's transcript, a reporter's transcript, and an administrative record. Although Nguyen checked the box for a reporter's transcript, no such transcript is included as part of the record on appeal, nor is there an administrative record in this case. It is unclear whether a reporter was present for the contested trial.
A hearing on Nguyen's motion to set aside and vacate judgment was scheduled for February 7, 2017. Marullo and his counsel appeared at the hearing, but Nguyen did not. After considering the file in its entirety, the court denied the motion. The court specifically found that the motion was "[without] merit."
DISCUSSION
Nguyen's primary contention on appeal is that the DVRO should be set aside because Marullo did not serve her with his petition for the DVRO prior to trial in violation of rule 5.66. She argues she was unaware that he was seeking a DVRO against her, and that she would have hired an attorney and subpoenaed witnesses to the trial had she known. We reject her argument.
Rule 5.66 provides that "[p]arties must file with the court a completed form to prove that the other party received the petition or complaint or response to petition or complaint." (Rule 5.66(a).)
" 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, italics added.)
"Where, as here, the appeal is on the judgment roll alone, '[t]he question of the sufficiency of the evidence to support the findings [of the trial court] is not open.' " (Taylor v. Nu Digital Mktg. (2016) 245 Cal.App.4th 283, 288; Bristow v. Morelli (1969) 270 Cal.App.2d 894, 898.) "Instead, 'the evidence is conclusively presumed to support the findings, and the only questions presented are the sufficiency of the pleadings and whether the findings support the judgment.' " (Taylor, supra, at p. 288.)
As noted above, the record does not include a reporter's transcript even though Nguyen requested one in designating the record on appeal.
Under the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.), a court may restrain a person to prevent a recurrence of domestic violence upon reasonable proof of past acts of abuse (§ 6300). "Abuse" means intentionally or recklessly causing or attempting to cause bodily injury, sexual assault, placing a person in reasonable apprehension of imminent serious bodily injury to that person or another, or engaging in behavior that could be enjoined pursuant to section 6320. (§ 6203, subd. (a)(1)-(4).) Among other things, a court may enjoin the following under section 6320: "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 . . . ." (§ 6320, subd. (a).) A notice of hearing under the DVPA "shall notify the respondent that if he or she does not attend the hearing, the court may make orders against him or her that could last up to five years." (§ 6302.)
Undesignated statutory references are to the Family Code. --------
Although the statutory scheme provides for notice of the petition before trial, the absence of notice is not fatal where the party to be restrained appears at the hearing and contests the petition on the merits. It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. (Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930.) This rule applies even when no notice was given at all. (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1288.) " 'Accordingly, a party who appears and contests a motion in the court below cannot object on appeal or by seeking extraordinary relief in the appellate court that he [or she] had no notice of the motion or that the notice was insufficient or defective.' " (Ibid.)
Here, the record shows Nguyen appeared at the hearing on defendant's petition for a DVRO. Her own petition for a DVRO against Marullo was heard simultaneously. She participated in the trial by testifying and questioning witnesses. Thus, even assuming Marullo failed to properly serve Nguyen with notice of the petition, Nguyen's participation in the trial waived any objection on appeal to the purported defective service. (Tate v. Superior Court, supra, 45 Cal.App.3d at p. 930; Reedy v. Bussell, supra, 148 Cal.App.4th at p. 1288 [waiver rule applies even when no notice was given at all].)
Nguyen, moreover, does not cite to anything in the record showing that she objected to the alleged lack of notice of Marullo's petition. Based on a thorough review of the record, it is reasonable to presume that Nguyen did not object on the grounds of inadequate notice at the hearing. The court's written order granting the DVRO against Nguyen states that the "matter came on regularly for trial in the mutual DVRO petitions of the above named parties [(Nguyen and Marullo)]." The order makes no mention of any objection by Nguyen for inadequate service of Marullo's petition.
The written order expressly corrected a clerical error in the record whereby Marullo's petition for a DVRO had been erroneously documented as dismissed. As the court pointed out, Marullo did not vacate his request for a DVRO, but rather simply waived his right to a hearing on the denial of a temporary DVRO. Had Nguyen objected to the alleged lack of notice, it is reasonable to assume the court would have addressed the issue in its written order granting Marullo's petition for a DVRO. It did not.
Nguyen's motion for reconsideration of the DVRO is also telling. In it she claimed that she was unaware she would need to call witnesses and that there was going to be a "mini trial." She also argued that she was confused and could not afford an attorney at the time, and that she did not know Marullo was seeking damages related to the eviction. Notably absent from her motion for reconsideration is any contention that Marullo did not serve her with his petition for a DVRO, however.
Because Nguyen has waived any objection to the alleged defective service, her contention that the DVRO must be set aside for lack of notice fails.
Nguyen's contention that we should vacate the DVRO because the trial court improperly described where one of the witnesses worked is equally without merit. In a judgment roll appeal such as this, the trial court's findings of fact are presumed to be supported by substantial evidence and are binding on the appellate court, unless reversible error appears on the record. (Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 924.) Even if we assumed the court misidentified Hailey Mitchell's place of employment as Nguyen claims, Nguyen fails to articulate any prejudice from the alleged error. (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069 [appellant has the burden of affirmatively demonstrating prejudicial error].) That Mitchell may have worked at Marullo's new apartment complex rather than the motel he stayed at while Nguyen refused to vacate his apartment is inconsequential.
Nguyen's contention that the attorney she eventually hired was unreliable, not responsive, and failed to show up for her hearing date is likewise without merit. The fact that Nguyen was dissatisfied with her counsel does not mean the court erred in granting the DVRO against her. And, although she contends her counsel failed to show up to an unidentified hearing—presumably the hearing on her motion to vacate the judgment—the contract for legal services Nguyen attached as an exhibit to her motion to vacate shows her counsel did not agree to make any court appearances on her behalf.
Finally, Nguyen cites numerous legal principles, including concepts concerning default judgments, that are not applicable to the present matter. She provides no argument or reasoned analysis as to why the various legal principles cited in her brief are relevant. We do not address her remaining incoherent contentions. (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 ["Appellate briefs must provide argument and legal authority for the positions taken. 'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.' "].)
DISPOSITION
The order granting Marullo a five-year DVRO against Nguyen is affirmed.
BUTZ, J. We concur: RAYE, P. J. ROBIE, J.