Opinion
E081118
05-30-2024
In re the Marriage of M.E. and RICHARD E. v. RICHARD E., Appellant. M.E., Respondent,
Richard E., in pro. per., for Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. FLHE1901301. Marie Elena Wood, Judge. Affirmed.
Richard E., in pro. per., for Appellant.
No appearance for Respondent.
OPINION
MENETREZ J.
Richard E. appeals from the trial court's order denying his request for a restraining order under the Domestic Violence Protection Act (DVPA) (Fam. Code, § 6200, et seq.; unlabeled statutory references are to this code). We affirm.
BACKGROUND
In 2019, M.E. (wife) petitioned for dissolution of her marriage to Richard. On November 29, 2022, Richard petitioned for a domestic violence restraining order. The petition is not included in the record on appeal. On January 3, 2023, the court issued an amended temporary restraining order. The record on appeal does not contain the initial temporary restraining order or the amended order.
In mid-February 2023, the trial court held a hearing on Richard's restraining order petition. The trial court noted, and wife's counsel confirmed, that the "matter ha[d] been pending for quite some time, so there's been a prior continuance that-continuances that were granted, including the first-time continuance." The record on appeal does not contain any information about the prior continuances.
Richard's parents were available to testify by telephone. Richard did not make a prior request to have his parents testify by telephone, but he explained that they were not appearing in person because they lived in Utah and were sick. The court informed Richard that all witnesses are required to appear in person unless previously authorized by the court. The court explained that having a witness testify in person is critical to enabling the court to assess a witness's credibility. Wife's counsel objected to allowing Richard's parents to testify by telephone on the grounds that Richard had not provided wife with a witness list or prior notice that some witnesses would testify remotely.
Richard moved to continue the hearing to allow his parents to testify in person, and wife's counsel objected. Wife's counsel argued that the restraining order request had already "been pending for a substantial amount of time," and the temporary restraining order had negatively affected wife. The court denied the request for a continuance.
Wife's counsel informed the court that wife had one witness, who would be called to testify in rebuttal for impeachment purposes only. Richard objected because wife had not provided him with a witness list. Richard moved for a continuance on that basis. The court agreed to allow the witness's testimony solely for impeachment purposes and denied Richard's second request for continuance.
Richard testified that everything stated in his petition for a restraining order was true and correct. Richard testified about an incident that occurred on September 28, 2022, after he and wife attended a court hearing at which Richard's parents were also present. After the hearing concluded, wife "stormed out" of the courtroom before Richard and his parents. Richard testified that wife appeared to be "very angry." Richard and his parents exited the courthouse 15 minutes after wife.
Richard testified that the declaration supporting his request for a restraining order incorrectly stated that the incident occurred on October 28, 2022. Richard testified that he later realized that he had been mistaken about that date.
Richard and his parents were parked on opposite sides of the parking lot, so Richard headed away from his parents to get to his car. As Richard approached his car, he heard "someone screaming expletives," so he turned around. Richard saw wife "drive her van and cut [his] parents off as they were walking to their vehicle." Richard started to run toward his parents and saw wife "shove" his mother. Richard was not concerned for his own safety as he rushed over to help his parents. As Richard "rounded" wife's vehicle, he saw wife "striking [his] father with her fist on his chest." Richard's mother attempted to stop wife from hitting Richard's father, and wife shoved Richard's mother out of the way.
Richard did not "immediately assert [him]self" when he became aware of the incident. He noticed two people nearby, and he unsuccessfully attempted to get their attention "to be witnesses." Richard eventually stuck his right hand and arm between wife and his father "to basically stop [wife] from hitting" his father. When Richard "put [his] arm out," wife "reached her left hand up and shoved [Richard's] face, and as she did, she scratched [his] neck." Richard yelled at the people standing nearby to "'come over and witness this,'" which prompted wife to run to her car and drive away.
Richard called the police. While waiting for them to arrive, Richard's mother noticed that he had a scratch on his neck, and she took a photograph of it. The photograph was admitted into evidence, and a copy is included in the record on appeal. The picture does not appear to show a wound that broke the skin or drew blood. Richard did not receive medical treatment. When law enforcement arrived, Richard described what had happened.
Richard also testified about a series of text messages that wife sent to him in July 2022 concerning a dispute over visitation with the children. The first text exchange began with wife asking Richard to return the children. Richard responded that the children wanted to stay overnight. Wife eventually texted Richard: "I hope you rot in hell. I hope you rot in hell in prison. I can tell you this much, you won't talk to the kids one day while you're in prison for the next time. You can cry like a little baby while you get raped in the ass. You're a waste of a human, a total piece of garbage." Wife texted Richard similar content the next day.
Wife also texted Richard that she was going to "get him kicked out" of the community in which he lived. Richard lived in an age-restricted community, and wife remarked in a text that he was not old enough to live in that community. Richard said that wife had made "a habit" of honking her car's horn in front of his house every time she dropped off the children there, and she would honk more as she drove by again when leaving the community. Richard asked wife to stop because the honking disturbed his neighbors. In early November 2022, wife dropped off the children at Richard's house and honked in front of the house. Richard's neighbors complained about the noise. One month after the neighbors complained, Richard was evicted.
On cross-examination, Richard explained that he had waited two months after the incident at the courthouse to request a restraining order because he had been waiting for law enforcement to issue a criminal protective order. Also, Richard could not prioritize filing the petition because he was dealing with being evicted. Asked whether he was in fear of wife during that period, Richard responded, "Yes, I feared [her]." Sometime in November 2022, both Richard and wife attended the baptism of one of their children.
Asked whether either of his parents had pushed, shoved, or touched wife during the incident at the courthouse, Richard responded, "Touch, yeah. I think there was some physical contact there, but it was not they're being aggressive." Richard explained that his parents were elderly and defending themselves by blocking wife from pushing them.
Richard rested his case after he testified. Wife's counsel argued that Richard's petition should be denied because he had "not reached his necessary proof in this case to assert that there's a need for a domestic violence restraining order going forward and that he has the requisite fear."
The court agreed with wife's counsel and denied Richard's request for a restraining order. In making that determination, the court considered the petition and Richard's testimony. The court found that Richard had not presented sufficient evidence of abuse to warrant the issuance of a permanent restraining order. The court reasoned that the incident at the courthouse was not sufficient because wife's actions were taken against Richard's parents and not against Richard. Concerning the July 2022 text messages, the court found them insufficient to constitute abuse because Richard acknowledged that he had withheld the children from wife during her scheduled period with them. The court also found that wife's honking of her car horn when dropping off and picking up the children was "insufficient for purposes of abuse," given that there was evidence that Richard was evicted from the community because of his age and not because of the honking.
DISCUSSION
I. Failure of Proof
Richard argues that the trial court erred by denying the request on the basis that he had not presented sufficient evidence of abuse. We disagree.
The purpose of the DVPA is "to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence." (§ 6220.) A court may issue a restraining order under the DVPA on the basis of an affidavit or testimony that shows by a preponderance of the evidence "to the satisfaction of the court, reasonable proof of a past act or acts of abuse." (§ 6300, subd. (a); Curcio v. Pels (2020) 47 Cal.App.5th 1, 11.) "Under the DVPA, '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." (Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 396 (Perez); § 6203, subd. (a).) "Abuse is not limited to the actual infliction of physical injury or assault." (§ 6203, subd. (b).)
"The behavior that may be enjoined under section 6320 includes 'molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, [and making] annoying telephone calls as described in Section 653m of the Penal Code.'" (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334; § 6320, subd. (a); Perez, supra, 1 Cal.App.5th at p. 396.) The word "harassing" is not defined in section 6320 or elsewhere in the DVPA. "'Harassment'" is otherwise statutorily defined as including "a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose." (Code Civ. Proc., § 527.6, subd. (b)(3) [civil harassment restraining order]; see also Pen. Code, §§ 646.9, subd. (e) [stalking], 653.2, subd. (c)(1) [electronic distribution of a harassing message].) For purposes of obtaining a civil harassment restraining order, the harassing "course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner." (Code Civ. Proc., § 527.6, subd. (b)(3).)
When the trial court has determined that there was a failure of proof at an evidentiary hearing, we analyze "'"whether the evidence compels a finding in favor of the appellant as a matter of law."'" (Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 769 (Almanor); Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 466.) Applying that standard, we reverse only if "'"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.'"'" (Almanor, supra, at p. 769.)
"We are also guided by the principle that the trial court's judgment is presumed to be correct on appeal, and we indulge all intendments and presumptions in favor of its correctness." (Almanor, supra, 246 Cal.App.4th at p. 769; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The appellant accordingly bears the burden on appeal of demonstrating "on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment." (Jameson v. Desta (2018) 5 Cal.5th 594, 609 (Jameson).) It is the appellant's burden to provide an adequate record on appeal. (Ibid.) "'Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].'" (Ibid.) These rules apply equally to self-represented appellants. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
Richard argues that he provided ample, uncontradicted, and unimpeached "evidence to establish that not only had [wife] caused bodily harm or injury, but evidence that she engaged in behavior that could be enjoined pursuant to [section] 6320." The argument fails. Under the applicable standard of review, the relevant inquiry is not whether there was sufficient evidence to support a ruling in Richard's favor, had such a ruling been made. Rather, we analyze "'"whether the evidence compels a finding in favor of the appellant as a matter of law,"'" such that the uncontradicted and unimpeached evidence submitted by Richard was "'"'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.'"'" (Almanor, supra, 246 Cal.App.4th at p. 769.) The evidence that Richard introduced was not of such a character. The record on appeal does not include the petition for a domestic violence restraining order or Richard's accompanying declaration. We accordingly cannot analyze whether the filings themselves contained any internal inconsistencies or whether Richard's testimony in any way contradicted the attestations that he made in those filings. Richard has thus failed to demonstrate that the evidence was uncontradicted and unimpeached. (Ibid.) Richard accordingly has failed to carry his burden on appeal of demonstrating that the evidence compelled a finding in his favor as a matter of law. (Ibid.)
Moreover, even assuming for the sake of argument that the filings corroborated Richard's testimony entirely and were not otherwise inconsistent, Richard's testimony was not "'"'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.'"'" (Almanor, supra, 246 Cal.App.4th at p. 769.) The trial court was tasked with assessing Richard's credibility (Lake Lindero Homeowners Assn., Inc. v. Barone (2023) 89 Cal.App.5th 834, 838, fn. 2), and it was free to disbelieve any part of Richard's account of the incident in the courthouse parking lot, regardless of whether the testimony was uncontradicted (City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 262 (conc. &dis. opn. of Mosk, J.) ["Testimony can be uncontroverted and yet be presented in a fashion that is unpersuasive for reasons not evident on a written record"]). The trial court could have determined that the scratch on Richard's neck was not intentionally or recklessly inflicted by wife and thus did not meet the statutory requirements. (§ 6203, subd. (a)(1).) The court instead could have reasonably believed that the scratch was an inadvertent consequence of Richard's intervention between his parents and wife. Given that the trial court could thus have reasonably determined that the scratch on Richard's neck did not meet the requirements of the statute, evidence of the injury does not itself compel a finding in favor of Richard as a matter of law. (Almanor, at p. 769.)
The text messages that wife sent in July 2022 likewise do not compel a finding in favor of Richard as a matter of law. The evidence shows that over the course of two days wife sent Richard text messages in which she indicated that she hoped he would someday be raped in prison. Richard and wife were otherwise arguing about Richard's visit with the children. However disturbing the content of the messages, the messages were limited to a two-day period in which Richard and wife were involved in another argument, wife did not herself threaten to use violence against Richard, and the messages were sent four months before Richard filed the request for a restraining order. Richard did not testify to how the messages affected him, if at all. The text messages are not "'"'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding'"'" in Richard's favor. (Almanor, supra, 246 Cal.App.4th at p. 769; see also §§ 6203, subd. (a), 6320, subd. (a); Code Civ. Proc., § 527.6, subd. (b)(3).).
II. Continuance
Richard argues that the trial court abused its discretion by not granting a continuance of the hearing for good cause. The argument fails because the record is inadequate to support it.
A hearing on a request for a domestic violence restraining order generally must be held within 21 to 25 days of the ruling on a request for a temporary restraining order. (§ 242, subd. (a); Malinowski v. Martin (2023) 93 Cal.App.5th 681, 691.) Section 245 provides that "[t]he respondent shall be entitled, as a matter of course, to one continuance for a reasonable period, to respond to the petition." (§ 245, subd. (a) (§ 245(a)).) In addition, the trial court "shall grant" a party's request for a continuance "on a showing of good cause." (§ 245, subd. (b)). We review for abuse of discretion the trial court's denial of a request for a continuance. (In re Marriage of Falcone &Fyke (2008) 164 Cal.App.4th 814, 823.)
Richard has failed to carry his burden on appeal of demonstrating that the trial court abused its discretion by denying his request to continue the hearing. (Jameson, supra, 5 Cal.5th at p. 609.) The hearing was held two and one-half months after Richard filed the petition. The trial court indicated that the hearing had already been continued more than once, including "the first-time continuance." We assume that the court's reference to "the first-time continuance" was to a mandatory continuance granted to wife under section 245(a). The record does not contain any information about the prior continuances (other than the one that we presume was granted to wife under section 245(a)). The record accordingly does not contain any information about the total number of continuances previously granted, which party requested them, or the grounds on which the requests were made or granted. That information would have been relevant to the court's assessment of whether good cause existed to grant Richard's continuance request on the day of the hearing. Given the inadequacy of the record concerning the prior continuances, we are unable to evaluate whether the trial court abused its discretion by denying Richard's request for a continuance. Richard thus has failed to carry his burden on appeal of providing an adequate record to support his argument, so we must reject it. (Jameson, at p. 609.)
DISPOSITION
The February 14, 2023, order denying Richard's request for a restraining order is affirmed. Wife shall recover her costs of appeal, if any.
We concur: McKINSTER ACTING P. J., FIELDS J.