Opinion
D072768
07-19-2018
P.M., Respondent, v. S.M., Appellant.
S.M., in pro. per., for Appellant. Yelman & Associates and Sara R. Neumann for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. D557807) APPEAL from an order of the Superior Court of San Diego County, Daniel F. Link, Judge. Affirmed. S.M., in pro. per., for Appellant. Yelman & Associates and Sara R. Neumann for Respondent.
I.
INTRODUCTION
Appellant S.M., appearing in propria persona, appeals from a renewed domestic violence restraining order. Respondent P.M. originally sought a domestic violence restraining order against S.M. pursuant to the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.) (DVPA) in 2016. The court entered a permanent restraining order protecting P.M. from S.M. for a period of one year. Prior to the expiration of the one-year restraining order, P.M. filed a request to renew the restraining order. The court granted P.M.'s request, and entered a five-year permanent restraining order.
Further statutory references are to the Family Code.
S.M. appeals from the five-year permanent restraining order. He contends that "there is no evidence [that he] violat[ed the] keep away restraining order" (formatting and some capitalization omitted). S.M. further argues that in issuing the five-year permanent restraining order, the court improperly relied on evidence pertaining to an incident that occurred after the trial court heard evidence regarding P.M.'s request for the initial permanent restraining order and prior to the court issuing the initial one-year permanent restraining order. We find S.M.'s contentions to be without merit. We therefore affirm the trial court's order.
II.
FACTUAL AND PROCEDURAL BACKGROUND
P.M. originally sought a restraining order from the court based on events that occurred in September 2015, as well as conduct that she described as "tracking her whereabouts," which took place after September 2015. The September 2015 events centered around S.M. observing P.M. engaging in physical contact with a neighbor. The court heard testimony from the parties and determined that there was insufficient evidence to support a finding that S.M. had intentionally or recklessly caused or attempted to cause P.M. bodily injury or placed her in reasonable apprehension of imminent harm. However, the court found that there was sufficient evidence to support a finding that S.M.'s other conduct "disturb[ed] the mental and emotional calm of [P.M.] and qualifie[d] as abuse under the [DVPA]."
Based on this finding, on June 27, 2016, the trial court issued a one-year DVPA restraining order, which included personal conduct orders as well as a stay away order. With respect to the 2016 restraining order, the court found that S.M. had admitted to placing a GPS tracking device in P.M.'s automobile, and that he had admitted to using the device to " 'develop patterns, to analyze her movements and to keep [P.M.] apart from [a neighbor] so they do not develop a relationship.' " The initial restraining order was set to expire on June 26, 2017.
Prior to the expiration of the June 27, 2016 restraining order, P.M. filed a request to renew the restraining order. P.M. asserted that S.M. continued to "stalk and harass" her by "keeping her under surveillance, following her, inquiring of people of what she is doing, trying to gain information about her." P.M. also complained that S.M. "shows a blatant disregard for the restraining order, and he continues to try and keep informed of [P.M.]'s day-to-day activities."
The trial court accepted evidence in the form of the testimony of both parties. P.M. testified that S.M. appeared to keep track of when she was not present at work. Although S.M. claimed that he could determine whether P.M.'s car was parked in the parking lot of her place of work while driving on an adjacent road, P.M. presented photographic evidence demonstrating that S.M. would not be able to see where she was parked unless he had actually entered the parking lot at her place of work, in violation of the restraining order. P.M. became aware that S.M. knew that she was not at work one day because he called their 19-year-old daughter at home while P.M. was also home, and P.M. could hear him ask their daughter why P.M. was not at work that day. She overheard him make similar inquiries during telephone calls to their daughter on at least three occasions.
P.M. also testified about an incident that occurred at the couple's daughter's high school graduation on June 21, 2016. This incident occurred after the trial court had completed taking evidence with respect to the original restraining order request, but prior to the date the court issued its June 27, 2016 one-year permanent restraining order. At the graduation, despite the fact that the parties' attorneys had told the parties to "stay clear of one another," S.M. walked into the stadium where the graduation was being held, looked directly at P.M., walked toward her, and chose a seat "that was five rows behind" her. P.M. took a photograph of S.M.'s seated location. She testified that the large arena was "very empty" at the time S.M. took his seat. P.M. believed that S.M. was taking photographs or video of her throughout the ceremony, and it made her very uncomfortable.
P.M. further testified that she noticed a vehicle she believed belonged to S.M. parked "adjacent to" the location of a work event that she was attending, on the final day of a three-day symposium that was being held on a local university campus. When she left the event that evening at 8:15 p.m., she noted that vehicle leaving at the same time she left. When she arrived home, she told her daughter that she thought that S.M. had been at the event that day and had followed her home. S.M. called their daughter that night, and P.M. could hear him angrily asking the daughter why she had lied about the neighbor's car being in his driveway when it was not, apparently because the neighbor had been helping P.M. at the symposium event. S.M. also could be heard admitting that he had followed P.M. home from the event.
P.M. also testified that she has seen S.M.'s vehicle parked in her neighborhood during the time that the restraining order was in place. Although the vehicle was beyond the 100-yard limitation, P.M. testified that from where it was parked, S.M. could have kept her under surveillance.
During the week prior to the court hearing, S.M. apparently came to P.M.'s neighborhood and gave a neighbor "court ordered pieces of paper that should have gone to [P.M.'s attorney]" to deliver to P.M.'s house. He then remained in the neighborhood "chitchatting for at least 20 minutes," and might have been there longer. P.M. took a photograph of S.M. talking with the neighbor.
P.M. testified to at least one other encounter during which S.M. was only about 40 yards from her house, at a time when they had agreed that P.M. and her daughter would put some of S.M.'s household furnishings in a truck for him. He was hiding behind a minivan, and when P.M. walked toward his location, he ran away and attempted to get to a location100 yards away from her. P.M. testified that she did not realize that she could have called the police and made a report.
P.M. also complained that S.M. continued to try to get information about her and her whereabouts from their daughter, as well as from her neighbors. He would ask them about when she left home, when she returned, and other questions about her.
S.M. contended that he had not spoken with neighbors about P.M. since the issuance of the permanent restraining order. He also indicated that he had attempted to find seating at the graduation before P.M., but that she had "jumped the line" and had gotten inside before he did. He testified that he was attempting to " 'keep [his] distance' " in choosing the seat that he chose, but said that he wanted a decent view for photographs and also needed eight seats for other family members.
According to S.M., on the date of the furniture move, he was attempting to comply with the restraining order. He contended that he was not hiding, that P.M. could see him the entire time, and that she was the one who approached him and was "violating the space." With respect to P.M.'s contention that S.M. seemed to be surveilling her at her workplace, S.M. testified that he was not keeping tabs on P.M., but instead, that he would occasionally drive on a road close to her place of work, but only when his map application informed him that traffic was backing up on the freeway. He acknowledged that he may have asked his daughter whether P.M. was at work on one or two occasions, but testified that he was asking more out of concern for whether P.M. was "sick" or whether she was "okay," and that he was not "monitor[ing] what she is up to." According to S.M., he had "only seen [P.M.] when [he was] here [i.e., in court]," other than on two other occasions, one on January 7, when she approached him, and another when they both had a doctor appointment at the same office on the same day.
At the conclusion of the evidence, the trial court stated:
"He admitted he drove by the university. He didn't need to.
"Why you felt the need to call your daughter and talk to her about it, I am not sure why. I don't have any definitive pro[of] that you were following her at the symposium. The graduation, you were too close. You knew you were too close, but you made the decision to stay there.
"Here is the line. It is right here, and you tiptoe up to it, and you tiptoe up to it. And the question is: By a preponderance of the evidence, did you cross it? Did you disturb your wife's, soon to be ex-wife's, peace, such that it violated the Family Code? And the answer is yes."
Based on these findings, the trial court granted P.M.'s request for a five-year DVPA permanent restraining order, which went into effect on June 12, 2017. The court's order included certain modifications to the stay away order, including an increase from the original 100-yard stay away order to a 200-yard stay away order.
S.M. filed a timely notice of appeal from the June 12, 2017 five-year permanent restraining order.
III.
DISCUSSION
Although S.M.'s appellate arguments are not entirely clear, S.M. appears to contend that the renewed restraining order was not based on substantial evidence, given that he did not violate the original one-year permanent restraining order and/or that he never intended to violate the original restraining order. He also appears to argue that the trial court should not have relied on the graduation ceremony incident because that incident took place prior to the issuance of the previous permanent restraining order and he therefore could not have violated that order. A. Legal standards in the trial court and on appeal
Section 6345 provides in relevant part that a trial court may renew a restraining order "upon the request of a party, either for five years or permanently, without a showing of any further abuse since the issuance of the original order, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party. . . ." (§ 6345, subd. (a), italics added.)
When contested, a request to renew a restraining order may be granted only where "an objective test" has been "satisfied." (Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1290 (Ritchie).) Specifically, "[a] trial court should renew the protective order, if, and only if, it finds by a preponderance of the evidence that the protected party entertains a 'reasonable apprehension' of future abuse. . . . [T]his does not mean the court must find it is more likely than not future abuse will occur if the protective order is not renewed. It only means the evidence demonstrates it is more probable than not there is a sufficient risk of future abuse to find the protected party's apprehension is genuine and reasonable." (Ibid., italics added.)
Pursuant to section 6203, "abuse" includes "engag[ing] in any behavior that has been or could be enjoined pursuant to [s]ection 6320." Section 6320 does not limit abuse to the actual infliction of physical injury or assault, but rather, "lists several types of nonviolent conduct that may constitute abuse within the meaning of the DVPA." (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1496 (Nadkarni).) For example, it is clear that "disturbing the peace of the other party" may constitute abuse. (§ 6320; Nadkarni, supra, at pp. 1496-1498; Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1146.)
In evaluating whether the requesting party has a reasonable apprehension of future abuse, "the existence of the initial order certainly is relevant and the underlying findings and facts supporting that order often will be enough in themselves to provide the necessary proof to satisfy that test." (Ritchie, supra, 115 Cal.App.4th at p. 1291, italics added.) "Also potentially relevant are any significant changes in the circumstances surrounding the events justifying the initial protective order. For instance, have the restrained and protected parties moved on with their lives so far that the opportunity and likelihood of future abuse has diminished to the degree they no longer support a renewal of the order?" (Ibid.) Also relevant are the seriousness and degree of risk, such as whether the risk involves potential physical abuse, and the burdens the protective order imposes on the restrained person, such as interference with job opportunities. (Ibid.)
A domestic violence restraining order is appealable under Code of Civil Procedure section 904.1, subdivision (a)(6). (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 332.) "A grant or denial of injunctive relief is generally reviewed for abuse of discretion. [Citation.] This standard applies to a grant or denial of a protective order under the DVPA. [Citation.]" (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420; accord, S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1264.) The abuse of discretion standard also applies to a trial court's ruling on a request to renew a protective order under the DVPA. (Eneaji v. Ubboe (2014) 229 Cal.App.4th 1457, 1463.)
We review the trial court's factual findings supporting the decision to grant or deny a protective order for substantial evidence. (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1505.) B. Analysis
We disagree with S.M.'s contention that the trial court abused its discretion in granting P.M.'s request to renew the restraining order, and conclude that substantial evidence supports the court's findings that S.M. engaged in conduct that disturbed P.M.'s peace, and that she was in reasonable apprehension that, absent a renewed restraining order, he would continue to disturb her peace.
P.M. takes issue with the trial court's reliance on his conduct at the parties' daughter's graduation, complaining that the initial, one-year permanent restraining order was not yet in place at the time of the graduation, such that he could not have been in violation of it. However, it is clear that a temporary restraining order was in place during this period of time, given the trial court's statements to the parties at the hearing on the initial permanent restraining order. The court stated, "[A]nd already, the restraining order has been in place for over eight months." Thus, there was a restraining order in place that S.M. violated when he sat five rows behind P.M. at their daughter's graduation. The court was well within its authority to rely on this incident and determine that it was an instance of S.M. violating the stay-away order and disturbing P.M.'s peace.
Further, there was abundant evidence to support the court's finding that this incident occurred. P.M. testified as to S.M.'s conduct, and S.M. essentially admitted to P.M.'s version of events. Although he attempted to explain his conduct, the fact that he was in violation of a stay-away order that was in place at the time was not truly contested. This incident alone would be sufficient to support the trial court's implied finding that P.M. entertained a reasonable apprehension of additional abuse, within the meaning of section 6203. (See Avalos v. Perez (2011) 196 Cal.App.4th 773, 777 [despite lack of contact during two-year term of restraining order, a visit by the restrained party's friend to the protected party's restaurant workplace to deliver " 'greetings' " from the restrained party, in conjunction with the initial abuse that supported the two-year restraining order, constituted "ampl[e]" support for finding that protected party entertained continued fear of abuse].) However, in addition to that incident, as the court found, there were other troubling incidents that led the court to conclude that a five-year restraining order was warranted. There were the occasions on which S.M. placed himself in P.M.'s neighborhood and failed to maintain the requisite distance. Further, there was evidence that S.M. drove by P.M.'s workplace, and, upon determining that she was not present at her office, inquired about her status with the parties' daughter. As the trial court concluded, S.M. had no need to drive by P.M.'s workplace, and he also had no reason to call his daughter to inquire about P.M.'s whereabouts. These incidents provided additional grounds for the court's determination that P.M. continued to entertain a reasonable apprehension of additional abuse, absent the renewal of the restraining order.
The court acted well within its discretion to conclude that the evidence indicated that it was more probable than not that there was a sufficient risk of future abuse, within the meaning of section 6203, to find that P.M.'s apprehension was genuine and reasonable, and that the protective order should be renewed for a five-year period.
S.M.'s arguments to the contrary constitute attempts to relitigate the evidence on appeal. S.M suggests that P.M. "could produce no evidence other than testimony." However, it is beyond argument that the testimony of a single witness, even that of a party, may constitute substantial evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) Further, while S.M. takes issue with P.M.'s testimony, asserting that she was wrong and suggesting that there was other evidence that the court should have believed instead, the trial court, as the finder of fact, determined that P.M. was credible, and accorded her testimony more weight than the contrary testimony that S.M. offered. The court also drew reasonable inferences that are contrary to the ones that S.M. advocates in his briefing on appeal.
S.M.'s arguments on appeal are unavailing; under a substantial evidence standard, "[t]he issue is not whether there is evidence in the record to support a different finding, but whether there is some evidence that, if believed, would support the findings of the trier of fact." (Fariba v. Dealer Services Corp. (2009) 178 Cal.App.4th 156, 170.) The trial court was clearly entitled to credit P.M.'s testimony, and that testimony provided substantial evidence to support the court's implied finding that P.M. entertained a reasonable apprehension of future abuse by S.M. within the meaning of section 6203.
IV.
DISPOSITION
The order of the trial court is affirmed. P.M. is entitled to costs on appeal.
AARON, J. WE CONCUR: NARES, Acting P. J. IRION, J.