Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. 807101
Banke, J.
C. Edward Schrader appeals from a restraining order entered against him on August 12, 2009, pursuant to the Domestic Violence Prevention Act (DVPA). (Fam. Code, § 6200 et seq.) We affirm the order.
Although the parties have cited in their briefs to Code of Civil Procedure section 527.6 (Injunction Prohibiting Harassment), the trial court issued the challenged order pursuant to the DVPA.
Factual And Procedural Background
On July 28, 2009, Narinder Sangha filed a request for a restraining order against Schrader and obtained a temporary restraining order. Sangha supported his request with a declaration stating as follows: He and Schrader had dated, but their relationship terminated when Schrader struck him on the back of the head. Since then, Schrader had been causing Sangha emotional injury and fear by coming uninvited to Sangha’s residence, sending numerous harassing e-mails and texts, making telephone calls at inappropriate times, and sending flowers and cards. One night while Sangha was at home with a friend, Schrader appeared, causing his friend to be afraid to leave. When Sangha called the police, they told him where to obtain a restraining order. Sangha did not immediately pursue this relief, but ultimately decided to seek an order when Schrader showed up and waited outside a recovery meeting Sangha was attending.
Schrader denied Sangha’s claims of abuse and harassment. He asserted the relationship ended because of Sangha’s infidelity, not because he struck him. Schrader admittedly sent e-mails and texts, and went to Sangha’s residence, but claimed Sangha exaggerated the number of these incidents, and Schrader’s purpose was only to return Sangha’s property, secure the transfer of title of a truck back to himself, and send birthday wishes. Schrader waited outside the support group meeting only because he was attempting to meet another acquaintance. He saw Sangha leave the meeting, but did not try to contact him. Afterwards, he sent Sangha an explanatory and apologetic e-mail.
At the hearing on Sangha’s application for a restraining order on August 12, 2009, Sangha and Schrader represented themselves. The evidence was conflicting.
Sangha testified as follows: He was afraid of Schrader. Their relationship had been emotionally abusive, and it became physically abusive when Schrader struck him with an open hand across the back of his head. He had asked Schrader to cease all contact, but Schrader ignored his request and repeatedly e-mailed and sent text messages. The incident that led him to call the police occurred one night, while he was having a friend over for dinner. Schrader “repeatedly banged the door” and circled the house. His friend was afraid to leave, so Sangha called the police. After Sangha returned Schrader’s truck, Schrader appeared with a truck load of Sangha’s belongings and threw them over the balcony “screaming abuse [at] the top of his voice.” Schrader kept “returning things, ” and as recently as July 22, 2009, left flowers and called late at night. Sangha felt trapped in his home and unsafe. Schrader also had access to Sangha’s online bills and e-mail accounts and used his access to contact Sangha’s friends and inquire about the nature of their relationship with Sangha. He finally sought a restraining order when Schrader traveled all the way from his home in Redwood City to wait outside a recovery meeting Sangha was attending in San Francisco.
Sangha initially testified this incident occurred in March 2009, but later stated he might have the date wrong.
Schrader submitted several packets of documents relating to the transfer of title, the timing of the break-up, and his contacts with Sangha after the transfer of title was completed. He testified as follows: The head-slapping incident was nothing more than a “friendly gesture” administered when Sangha answered a simple question incorrectly while taking an online quiz for an EMT program. Schrader and Sangha were working together to prepare Sangha for the program, and when Sangha missed the question, Schrader said, “Oh, my God, ” and “brushed the back of [Sangha’s] head in sort of a wow, you should have had a V8 moment.” They ended the evening on good terms, and their relationship continued for approximately six more weeks. The relationship ended because of Sangha’s infidelity. His other contacts with Sangha were only for “legitimate reasons” such as to return Sangha’s belongings, and to request his signature on paperwork to transfer title of the truck. For these purposes, Schrader e-mailed Sangha approximately a dozen times and texted him every four to seven days. After Sangha physically returned the truck, Schrader had to text him until mid-May to get the paperwork completed. He explained how several of the documents he submitted pertained to communications regarding the truck and transfer of title. Schrader claimed the incident that led Sangha to call the police did not occur at night but in the mid-afternoon, and he had to go to Sangha’s house because Sangha had failed to properly execute the transfer of title. This contact started as a friendly discussion, but they eventually both became angry and cursed at each other. The title transfer was finally resolved by May 13, 2009. Since then, his only contact with Sangha consisted of three e-mails forwarding a job announcement he thought Sangha would be interested in, making a book recommendation, and sending a birthday card. He supported this testimony by reference to the document he submitted relating to his contacts with Sangha since May 13, 2009. He reiterated he had never stalked Sangha, had only gone to his residence to take care of the transfer paperwork, and was not even aware Sangha had a friend at the house.
Sangha responded this was an entirely different incident. He further testified he had asked his ex-partner to be a mediator in the transaction regarding the truck to avoid contact with Schrader, and the transaction could have been done by mail, but Schrader did not abide by Sangha’s request to avoid personal contact.
After extensive testimony, Schrader stated he had a “couple of more documents to provide the court.” The court replied “No, I want to stop right there.” The court then asked Sangha for more details regarding the incident that led him to call the police, and thereafter allowed Schrader to respond at length with his version of the events.
The court announced it was finding good cause and issuing a restraining order, and recited the terms. When the court asked Schrader whether he understood the order, Schrader responded, “I understand what you told me, your honor. I don’t understand the basis for it.” The court filed a restraining order that same day, to remain in effect until February 12, 2010. Schrader filed a timely notice of appeal.
Because the order expired on February 12, 2010, we could dismiss this appeal as moot. We nonetheless exercise our discretion to reach the merits, not because the issues are of extensive public importance, but rather because of possible continuing collateral consequences of the order on Schrader’s employment opportunities. Further, in light of the short duration of the order, the issues Schrader seeks to raise would otherwise evade review. (See Conservatorship of Wendland (2001) 26 Cal.4th 519, 524, fn. 1.)
Analysis
We review the trial court’s decision to grant or deny a protective order under the DVPA for abuse of discretion. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495.) We review the trial court’s underlying factual findings for substantial evidence. (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822-823.)
Schrader’s primary contention in his briefs on appeal concerns the court’s refusal of his request to submit a “couple of more documents.” It is unclear whether the court excluded these documents pursuant to Evidence Code section 352, or whether it was simply exercising its inherent power to manage the scope and length of the proceedings. (People v. Gonzalez (2006) 38 Cal.4th 932, 951; see also Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967.) In either case, in the absence of an offer of proof, we cannot find reversible error.
“A judgment cannot be set aside on the ground that the court erroneously excluded evidence unless the substance, purpose and relevance of the excluded evidence were made known to the court by an offer of proof or by other means. (Evid. Code, § 354, subd. (a).)” (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1113.) “ ‘The function of an offer of proof is to lay an adequate record for appellate review.’ [Citation.]” (Nienhouse v. Superior Court (1996) 42 Cal.App.4th 83, 93-94.) “ ‘ “Before an appellate court can knowledgeably rule upon an evidentiary issue presented, it must have an adequate record before it to determine if an error was made.” [Citation.]’ ” (Id. at p. 93, quoting People v. Rodrigues (1994) 8 Cal.4th 1060, 1176; see also Villano v. Waterman Convalescent Hospital, Inc. (2010) 181 Cal.App.4th 1189, 1200.)
In his reply brief, and at oral argument, Schrader acknowledged he did not make an offer of proof, but cited to documents in the clerk’s transcript that he was allowed to submit. He argued these documents permit us to determine the excluded documents were not cumulative and he was prejudiced by the limitation of his testimony as it would have related to those documents. Unfortunately, the documents in the clerk’s transcript do not provide a description of the excluded documents, and we cannot speculate thereon. No offer of proof having been made, we simply cannot assess whether the trial court erred or whether the error was prejudicial. In any case, as we explain more fully below, the record we do have demonstrates the case ultimately turned on the trial court’s credibility assessment as to the version of events as related by Sangha and by Schrader. With or without the additional documents, it appears Schrader presented his version of the events to the trial court, and the trial court resolved the conflict against him.
The absence of an offer of proof also hinders our ability to review Schrader’s assertion that the exclusion of these documents violated his due process right to a full and fair opportunity to present his case. (See Schraer v. Berkeley Property Owners’ Assn. (1989) 207 Cal.App.3d 719, 732-733.) On the record before us, no due process violation occurred. A due process violation occurs only “when a trial court erroneously denies all evidence relating to a claim, or essential expert testimony without which a claim cannot be proven.” (Gordon v. Nissan Motor Co., Ltd., supra, 170 Cal.App.4th at p. 1114, citing Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 677.) In such a case, the error may be “reversible per se because it deprives the party offering the evidence of a fair hearing and of the opportunity to show actual prejudice. (Ibid.)
Here, the trial court: (1) allowed Schrader to submit a detailed declaration; (2) held a full evidentiary hearing during which it allowed both parties to provide detailed testimony (cf. Nora v. Kaddo (2004) 116 Cal.App.4th 1026, 1028-1029 [court refused to hold evidentiary hearing]); (3) actively questioned both parties; and (4) allowed Schrader to submit three packets of documents and to provide detailed oral testimony as to their relevance to his defense. The exclusion of only some evidence relating to a claim is not a due process violation. (Gordon v. Nissan Motor Co., Ltd., supra, 170 Cal.App.4th at p. 1115.)
Nor does the record support Schrader’s assertion that, after refusing his offer of several additional documents, the court redirected its questions to Sangha and gave him no opportunity to respond. To the contrary, the court asked Sangha for additional details regarding events to which he had already testified, and then allowed Schrader to provide a long and detailed response.
The trial court was actually exceedingly patient and considerate of both parties, and we find no error in its reasonable attempt to conduct the hearing expeditiously by refusing still more documentary evidence.
Schrader also argues the trial court erred by issuing the injunction based only upon evidence of past acts, and argues Sangha failed to make any showing of likelihood of future harm. This contention fails because, unlike an injunction pursuant to Code of Civil Procedure section 525, or an order pursuant to section 527.6, subdivision (b), to restrain civil harassment, a restraining order under the DVPA may be issued “to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if [evidence]... shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” (Fam. Code, § 6300, italics added.) Section 6300 has been interpreted to permit a trial court “ ‘to issue a protective order under the DVPA simply on the basis of an affidavit showing past abuse.’ ” (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137, quoting Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334, italics added.) Moreover, for purposes of the DVPA, “abuse” is broadly defined to permit restraining “ ‘a party from... threatening, ... harassing, ... contacting, either directly or indirectly, by mail or otherwise, ... or disturbing the peace of the other party....’ ” (In re Marriage of Nadkarni, supra, 173 Cal.App.4th at p. 1494.)
Ultimately, the trial court’s decision as to whether Sangha had shown such abuse turned on a credibility determination regarding the nature of the head-slapping incident, and the purpose of Schrader’s continuing contacts by e-mail, texts, and appearances outside Sangha’s residence and outside the recovery meeting Sangha attended. The court resolved the conflicts in the evidence in Sangha’s favor. As the reviewing court, we have no power to reweigh the evidence and must defer to the credibility determinations of the trier of fact. (Sabbah v. Sabbah, supra, 151 Cal.App.4th at pp. 822-823.)
Finally, Schrader contends he timely requested a statement of decision, but the trial court failed to provide one. A party’s entitlement to a statement of decision depends on making a timely request. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 61.) Assuming the hearing was a trial within the meaning of Code of Civil Procedure section 632, it concluded within one calendar day. Therefore, any request for a statement of decision had to have been made prior to the submission of the matter for decision. (Code Civ. Proc., § 632.) The record contains no written request and, even generously construed, Schrader’s assertion that “I understand what you told me, your honor. I don’t understand the basis for it, ” did not constitute an oral request.
Conclusion
The order issuing a protective order under the Domestic Violence Prevention Act is affirmed.
We concur: Marchiano, P. J.Dondero, J.