Opinion
A153037
10-01-2018
J. S., Plaintiff and Respondent, v. ADRIAN SCHABBING, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. HF17864526)
Adrian Schabbing appeals from a protective order issued pursuant to the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq. (DVPA)). He raises two issues: (1) that an applicant's burden of proof should be "clear and convincing evidence," rather than preponderance of the evidence; and (2) he was denied a "fair hearing." We affirm.
All further statutory references are to the Family Code unless otherwise indicated.
BACKGROUND
Schabbing's ex-girlfriend, J.S., filed an application on Judicial Council form DV-100 for an order preventing Schabbing from having any contact with her and requiring him to stay at least 100 yards away from her, her home, her workplace and her vehicle. In the application, she described the "most recent" abuse as having occurred on June 9, 2017, and claimed Schabbing had struck her, thrown her to the ground, ripped off her clothing and threatened to throw her out of a second story window. She alleged she had suffered "knots" on her throat and a bruised arm. She did not include anything in the section of the form asking whether the person who allegedly perpetrated the "most recent" abuse had engaged in abusive conduct before. The court issued an emergency protective order.
The court subsequently held a lengthy hearing on J.S.'s application. J.S. appeared in pro per. Schabbing was represented by counsel.
At the outset of the hearing, the court addressed Schabbing's motion to dismiss for improper venue, as the June 9 incident occurred in San Joaquin County. After the court indicated it intended to transfer, rather than dismiss, the matter, Schabbing's counsel stated Schabbing was prepared to proceed.
J.S. was then sworn and testified at some length. Over the course of about one and half years, she and Schabbing had had a volatile relationship. She recounted one incident that occurred about a year and a half before the June 9 incident at an apartment in San Francisco where Schabbing was either staying or living at the time. Schabbing called her names, repeatedly threw her purse on the ground, and threw money at her. After about two days, he calls her to apologize.
As for the June 9 incident, J.S. testified that the evening before she met Schabbing in San Francisco for dinner and, in the course of deciding where to go afterward, the two got into a heated and extended argument. While the couple was in a limo, Schabbing began singing along with a song that J.S. characterized as entitled "Bitch, Sit Down," and she admittedly slapped him. Eventually, Schabbing and J.S. ended up in a car she was driving and the argument escalated. Ultimately, Schabbing got out of the car and took a ride share back to his house in the central valley. J.S. also drove back towards the house. The two talked by phone, and at some point J.S. said she wanted to end the relationship and asked if she could get her two dogs that were at the house. When J.S. pulled up to the house at about three in the morning, Schabbing's cousin, who also lived at the house (as did his aunt and uncle), brought her the dogs and her belongings. J.S. agreed that at that point, Schabbing "did not want" her in the house.
J.S. was exhausted and had had a couple of drinks in the city, and she pulled over to "sleep it off." She then received a "lot" of calls and text messages from Schabbing asking her to return. At some point, J.S. returned to the house, went upstairs to Schabbing's bedroom and went to sleep.
The next day, while they were still in the bedroom, J.S. told Schabbing the relationship was "not going to work," and she had a lot of "resentment" about how he treated her. At that point, Schabbing pulled her out of the bed by the arm, threw her on the ground, got on top of her, started choking her, and saying "You fucking bitch. You started it first." When J.S. got up to retrieve her things, Schabbing started ripping off her clothes. He then opened the window of the second story bedroom, grabbed her by the neck, and threatened to throw her out of the window. She started to apologize repeatedly and to look for her clothes. She grabbed her cell phone, and Schabbing threw her on the couch. J.S. hit the "voice memo" recording button on the phone and captured 37 minutes of the incident. At some point, Schabbing gave her a shirt to put on. When she started to leave, he demanded "that fucking shirt back."
After J.S. left, Schabbing called her cell phone three times. She finally returned his call but he did not answer.
J.S. and Schabbing had planned to participate in the "Tough Mudder" race the following day, June 10. Despite what had occurred the day before, they participated in the race, and J.S. stayed with Schabbing at the house over the weekend.
On Monday afternoon, J.S. attempted to "Skype" Schabbing. Apparently, Schabbing was unaware there was a connection on his end, and J.S. listened in on a conversation between Schabbing and his uncle. Schabbing described her as "crazy" and told "his" story to his uncle, which J.S. claimed was not, in fact, what had happened. J.S. was angry, sad and frustrated.
The following day, J.S. reported the June 9 incident to the police.
After J.S. finished testifying and had been subject to cross-examination as to the June 9 incident, the court allowed her to testify about an incident that occurred at Schabbing's house about a year earlier. The two got into an argument, and Schabbing threw her to the floor and threw a bag in which she had all of her belongings at her face. He also threw and broke her laptop computer. The laptop hit her in the nose, resulting in a bloody nose. J.S., in turn, scratched Schabbing's face. In the commotion, her dog got lost. J.S. had been on the phone with her sister, who arrived within about 40 minutes. Her sister retrieved her things, the two found the dog, and then drove off in their separate cars. Her sister reported the incident to the police.
J.S.'s sister also testified about this incident. When she arrived at the house, she heard J.S. screaming and saw her standing across the street in a park. J.S. had a bloody nose. Her sister had already called the police, and they eventually arrived. The defense conducted no cross-examination of J.S.'s sister.
Schabbing testified to a different version of events. As to the oldest incident that had occurred in San Francisco, Schabbing stated he had received a text from J.S. that a customer at the club where she worked as a dancer had sexually harassed her and he had driven into the city to calm her down. Schabbing, who was a "regular" at the club, waited for her in the VIP lounge. When J.S. found him, he was talking to another dancer who J.S. did not know. After Schabbing introduced them to one another, J.S. went off with another customer. Schabbing went to the apartment. When J.S. arrived at the apartment, she was "upset" and the two eventually got into a "heated argument." Schabbing admitted he "ha[s] an issue with the way [he] speaks to people sometimes," and that he was "disrespectful" when he spoke to her. He finally threw her things outside the door and tossed her purse, which fell open and money came out. He told her money was the only thing that was important to her. She started to leave, but then returned to the apartment. The next day he took her to her parked car and she went to Los Angeles.
As to the evening before the June 9 incident, Schabbing testified J.S. consumed a substantial quantity of alcohol. After dinner, he and J.S. and another couple went by the club so J.S. could drop off her work schedule. A driver with whom Schabbing was familiar was at the entrance. When the driver said he had not seen Schabbing for a long time, J.S. said, "You don't have to lie for your friend" and walked into the club. Schabbing and the other couple walked to a nearby hotel to wait for J.S. When she returned, they decided to go elsewhere, called a ride, and the limo and driver they had just seen at the club responded. In the car, J.S. railed against Schabbing, accusing him of frequenting the club and calling him a "[d]irtbag." When a Kendrick Lamar song came on, everyone in the limo was dancing and singing. The lyrics turned "R-rated," and Schabbing claimed he had never heard that version. J.S. got angry and pounded him with a "hammered fist." Schabbing said it was "time [] to go home," and got out of the limo, as did everyone else. J.S., however, wanted to go to another bar. Schabbing did not and got into another cab. J.S. ran over and they got into an argument about whose cab it was. As J.S. walked away, he followed "because we're not in the best of areas." Schabbing shortly concluded there was no point in following J.S. and caught another cab back to the club where she worked since he had the valet ticket for her car. At the club, he saw another female friend and her boyfriend. J.S. arrived and immediately began yelling and snatched his cell phone. Eventually, the two ended up in her car. Schabbing claims she drove recklessly and started to pummel him again. He was finally able to escape from the car, and as he walked away, J.S. did a U-turn and drove after him the wrong way on a one-way street. She stopped and got out of the car, and the two had a verbal fight. Eventually, J.S. got back in her car, Schabbing looked in the car to find his cell phone, and then caught an Uber to his house. J.S. called and texted him multiple times. Schabbing denied extending any invitation to her at that point to return to his house, but acknowledged he did so after she said she was going to sleep on the street. In fact, he got into his car and went and found her, and they drove to a gas station to talk. After concluding further talk was useless, he told her to "[f]orget it" and he was "leaving." Half an hour later, she showed up at his house. According to Schabbing, she hugged him and they were intimate.
The next morning, Schabbing was awakened by his cousin, letting him know a carpet cleaner had arrived. Schabbering went downstairs but quickly returned. J.S. was awake, and they got into another heated argument. Schabbing denied kicking, punching or choking her. He did tell her to leave, forcefully, and took her by the elbow and escorted her to the door. According to Schabbing, J.S. sat down on the floor and refused to leave, so he picked up her ankle and attempted to drag her out the door. After three steps, he concluded that was "ridiculous" and dropped her foot. He also admitted to ripping her "very, very thin tank top," but said he had not intended to and it happened when he tried to push her away as she was trying to convince him to "[c]ome back" to her. J.S. eventually left to be with her nephews.
A few hours later, J.S. left him a voice message and Schabbing texted back that he wanted to run the race. They ended up talking, went to dinner, and returned to the house and were intimate. After the 10-mile race, they got a couple's massage, went to dinner, returned to the house and were intimate. The next morning, Monday, J.S. left to stay with friends, and was scheduled to work on Tuesday. Schabbing brought her things down and put them in her car. He, in turn, was headed to Los Angeles and planned to stay at J.S.'s place there. He then received a loving text from her. The next morning he was arrested.
Schabbing also testified about the incident that had occurred about a year before at his house. He could not recall exactly why the argument started, but thought it was once again about other women. According to him, J.S. hit him, and he submitted cell phone photographs of scratches on his face, neck and ear. He denied hitting J.S. He acknowledged telling J.S. she had to leave and tossing her things out of the door. J.S.'s sister arrived later. According to Schabbing, he told her sister she could go into the house and get her things. The two then left, with J.S. telling him on their way out that she was calling the police. Later that night, J.S. appeared on his front porch, saying she wanted to know whether he had slept with another woman. When he opened the door, she accused him of hitting her in the face, and he told her "that did not happen." He then called J.S.'s other sister and asked her to come get J.S. Eventually, he and J.S. "worked it out" and J.S. stayed over.
After testifying, Schabbing spoke directly to the court, saying he and J.S. were "in love," but they "were either all the way good or [] were all the way bad." He claimed he never intended to see her again, "because that's what she wants." He further claimed his friends and family would "not let me talk to this woman again, period."
For her part, J.S. told the court that all she wanted was a permanent restraining order and to have "nothing to do with him." She wanted Schabbing and his friends to "leave [her] alone."
Defense counsel asserted there was no evidence J.S. was in "fear" of Schabbing and that this was not a case where either party "need[ed] protection." Counsel posited that "[b]oth parties appear to be at fault in this" and the best solution was for them to both agree "to stay away from each other." A restraining order would "severe[ly]" impact Schabbing because he was a volunteer football coach, and it was his final year of coaching his son's team. He had also applied for licenses (which his attorney did not identify) that could be adversely affected.
The court ruled from the bench, first stating it had "mainly" relied on the verified petition, the testimony by J.S. and her sister, and the cell phone photo showing an injury to her arm. It also considered two voice mail messages left by Schabbing within the last year and a half. It additionally considered Schabbing's testimony, the two photos he submitted, the voice message J.S. left June 12, the photo of J.S. and Schabbing at the race, a declaration by Navel Kashyup, and character references.
We discuss these recordings in detail in the next section of the opinion. --------
The court recited that the standard of proof was preponderance of the evidence and ruled that J.S. had presented sufficient evidence to warrant a restraining order, which it limited to three years. The court acknowledged and supported Schabbing's commencement of counseling for "anger issues." In response, Schabbing acknowledged it would address "the way I speak to people," after which the court commented that it had, indeed, been "taken back by the voice mails."
DISCUSSION
Burden of Proof
Schabbing raises two issues on appeal. He first claims the trial court erred by applying the "preponderance of the evidence" burden of proof. He asserts that because "constitutional rights" are implicated, the "clear and convincing [evidence] standard" should apply.
Schabbing does not dispute that the language of the DVPA does not require that an applicant prove his or her case by clear and convincing evidence. Rather, the statute states that a court may issue a protective order under the DVPA "if an affidavit or testimony and any additional information provided to the court . . . shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse." (§ 6300.)
Schabbing cites no case that supports his position that, contrary to the statutory language, the more stringent clear and convincing burden of proof should apply. Nor are we aware of any such case. To the contrary, since at least 2007, the Courts of Appeal have uniformly recognized that the burden of proof under the DVPA is preponderance of the evidence and not clear and convincing evidence. (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334 [contrasting the DVPA with the civil harassment statutes, which expressly require clear and convincing evidence (Code Civ. Proc., § 527.6, subds. (b) & (d)]).
The courts have also rejected a variety of claims that issuance of a protective order under the DVPA is constitutionally impermissible. (E.g., Altafulla v. Ervin (2015) 238 Cal.App.4th 571, 581-582; In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1427-1431.) Most specifically, in Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1139-1140 (Bookout), the Court of Appeal considered the identical burden of proof language in the Elder Abuse Act and rejected the same constitutional claim Schabbing advances here, that given the consequences of a protective order, the courts must require an applicant to prove his or her case by clear and convincing evidence. The appellant in Bookout relied on People v. Englebrecht (2001) 88 Cal.App.4th 1236, 1255-1256. However, as the Bookout court explained, Englebrecht did not state any fixed rule. Rather, "[a]s that court noted, ' "The degree of burden of proof applied in a particular situation is an expression of the degree of confidence society wishes to require of the resolution of a question of fact. [Citation.] The burden of proof thus serves to allocate the risk of error between the parties, and varies in proportion to the gravity of the consequences of an erroneous resolution. [Citations.] Preponderance of the evidence results in the roughly equal sharing of the risk of error. [Citation.] To impose any higher burden of proof demonstrates a preference for one side's interests. [Citation.] Generally, facts are subject to a higher burden of proof only where particularly important individual interests or rights are at stake; even severe civil sanctions not implicating such interests or rights do not require a higher burden of proof." ' " (Bookout, at p. 1139, quoting Englebrecht, at pp. 1253-1254.) Pointing to the important protective policies of the Elder Abuse Act, the Bookout court concluded it would be "inappropriate" for it to provide, contrary to the state legislature, "less protection for the elderly and dependent adults and to make it harder to obtain relief" under the Act. (Bookout, at p. 1140.) The important protective policies of the DVPA lead to the same conclusion here.
Fair Hearing
Schabbing secondly complains that he was denied a fair hearing, focusing principally on the court's handling of several recordings proffered by J.S. He complains that before the hearing commenced, the trial court listened to these five recordings. He points out he "was not present" and thus "was not able to object." "In other words," according to Schabbing, "there was the introduction of evidence completed ex-parte." He further complains the recordings were "never identified as exhibits," "no transcript of any recordings was presented," his attorney received only "two days notice," only one of the recordings was connected with the June 9 incident described in the application, and he never consented to any recording. Schabbing maintains he was, thus, "surprised" and unable to fully defend himself.
Any complaints that the trial court listened to the recordings prior to the hearing have been forfeited, as Schabbing made no objection on this ground in the trial court. (See People v. Clark (2011) 52 Cal.4th 856, 940 [failure to object to court's pretrial discovery order forfeited issue on appeal].) In any case, the trial court did not, before the hearing, make any evidentiary rulings. On the contrary, the court asked the parties to submit any exhibits they intended to offer before trial, and J.S. submitted the recordings. During the hearing, the court addressed whether it should consider the recordings. After objections and argument by defense counsel, the trial court excluded one of them. Thus, there was no "introduction" of evidence "ex parte."
As to the remainder of Schabbing's complaints about the recordings, the only objection that his attorney made and preserved in the trial court was that two voice mails not connected with the June 9 incident were too "old." The rest of the complaints he makes on appeal were forfeited, as we now explain.
Two of the recordings about which Schabbing complains were short. One was a 40-second voice mail Schabbing left on J.S.'s cell phone about a year earlier. Defense counsel objected "for lack of foundation." And, in response to the court asking why the voice mail would not be admissible under Evidence Code section 1109, counsel responded it was "old." The court then played the recording and asked J.S. if she recognized the voice; she confirmed that she did and that it was Schabbing's. The court ruled an adequate foundation had been laid. It further ruled that "[a] year ago is not remote in time" and that the voice mail was probative as to the June 9 incident. The court next observed that the voice mail had not been transcribed and summarized it as "a call to [J.S.] in which he says that he's going to slap the shit out of her" and referred "to her as a hypocritical fucking cunt." Defense counsel made no objection to the lack of transcription or to the court's summary of the voice mail.
As for the second short recording, also a voice mail, defense counsel made the "same objections." The court then played this recording, which was 23 seconds in length. As best J.S. could recall, this voice mail had been left in 2016 and it was older than the first short voice mail. J.S. again identified the voice as Schabbing's. The court summarized this voice mail as follows: Schabbing "appears to be angry about [J.S.] making some comments about him and says that he hates her and then refers to her as a fucking cunt." Defense counsel again made no objection to the lack of transcription or the court's summary of the voice mail.
The court then turned to the three other recordings J.S. had proffered: the 37-minute recording of the June 9 incident J.S. made using her cell phone voice memo feature; an hour and a half recording of a telephone conversation; and a voice mail which the court referred to as a "third party" voice mail. Defense counsel objected that the two longer recordings were made without Schabbing's consent. Schabbing was not aware that J.S. had hit the record button on her cell phone during the June 9 incident, and counsel asserted he had a reasonable expectation of privacy in his bedroom and "[w]hat they were speaking about was confidential." Likewise, Schabbing was not aware J.S. had recorded a longer telephone conversation, in which someone named Amanda (apparently a friend of J.S.'s) had participated. Counsel asserted Schabbing also had a reasonable expectation of privacy as to that conversation. Counsel objected to the "third party" voice mail on relevancy grounds. The court excluded the "third-party" voice mail, but "reserve[d] judgment" on the two longer recordings.
Towards the end of Schabbing's testimony, defense counsel asked him about the two short voice mails as to which the court had overruled defense counsel's objections. According to Schabbing, in September 2016, he paid for J.S. to fly to Las Vegas to be with him during a birthday celebration for his cousin. At some point, apparently in transit to the hotel, she grabbed his cell phone, scrolled through it, and saw another female friend of his. Although Schabbing told J.S. she was merely a friend, when he and J.S. got to the hotel, J.S. started to pummel him, including with a belt and water bottle. Schabbing claimed he suffered a black eye. In addition, J.S. ripped a lamp off the wall and he threatened to call security. He admitted he had used "other" than polite language as the fight escalated. Finally, he gave her $400 and told her she had to leave. She did. About two hours later, he got a text from a female friend, asking why Schabbing's "girlfriend" was texting her boyfriend. He immediately called J.S., and left a voice mail (the 40-second one in which he called J.S. a "hypocritical bitch"). He left the second voice mail about a week later. J.S. had talked to other friends of his, who told him she had said "horrible" things about him. Schabbing called J.S., and left the second voice mail (the 37-second one saying he "hates" her and referring to her as a "fucking cunt").
As we have recounted, after he finished testifying, Schabbing spoke directly to the court. In the course of doing so, he commented on the longer of the two recordings as to which the court had reserved ruling, the recording of a telephone conversation that involved Amanda. Apparently, after the call concluded, J.S. and Amanda continued to chat and J.S. continued to record their conversation. Schabbing described their conversation as "very hurtful."
We agree with Schabbing's assertion in his brief that the trial court never ruled on counsel's only objection—lack of consent—to the 37-minute recording of the June 9 incident and the hour and half recording of the telephone conversation involving Amanda. However, what Schabbing fails to acknowledge is that, after the court expressly deferred ruling on his lack-of-consent objection, his attorney never asked the court to rule on the issue. As a result, the objection was forfeited, and we need not, and do not address the issue. (See People v. Valdez (2012) 55 Cal.4th 82, 142-143 (Valdez) [failure of the defendant to "press the trial court for a ruling" on a deferred question of witness unavailability forfeits issue on appeal].) In any case, it appears the trial court did not consider the recordings, as it did not identify either as an item it "took into consideration" in making its ruling (but identified only the voice messages Schabbing left).
In sum, the only objection preserved for appeal was Schabbing's assertion that the two short voice mails concerning the Las Vegas incident were too "old" to be properly admitted under Evidence Code section 1109. But, this is not an assertion Schabbing makes on appeal. Rather, he asserts Evidence Code section 1109 only applies to "criminal" cases and even if it did apply, he was not given sufficient notice (i.e. 30 days notice). Schabbing did not make either of these claims in the trial court. Accordingly, they, too, have been forfeited on appeal. (See Valdez, supra, 55 Cal.4th at p. 142 [grounds not raised in trial court forfeited issues on appeal]; People v. Partida (2005) 37 Cal.4th 428, 431 ["[A] trial objection must fairly state the specific reason or reasons the defendant believes the evidence should be excluded. If the trial court overrules the objection, the defendant may argue on appeal that the court should have excluded the evidence for a reason asserted at trial. A defendant may not argue on appeal that the court should have excluded the evidence for a reason not asserted at trial."].)
Schabbing also complains that he was not allowed to call additional witnesses. After Schabbing finished testifying, the court observed his attorney had indicated she intended to call "a number" of other witnesses. The court stated that "under [Evidence Code section] 352," it did not need to hear additional testimony and asked counsel to "pick one." Counsel did so, and made an offer of proof, identifying the most relevant testimony as confirming Schabbing had marks on his face when he returned to his house from San Francisco. The court then pointed out J.S. had admitted she hit Schabbing. The witness was not called, and the parties moved on to closing summations. Thus, as to any witnesses other than the witness counsel "picked," no offer of proof was made. Accordingly, no record was made that would allow us to determine whether or not the trial court abused its discretion in disallowing their testimony. (See People v. Valdez (2004) 32 Cal.4th 73, 108 [" '[T]o preserve an alleged error for appeal an offer of proof must inform the trial court of the "purpose, and relevance of the excluded evidence. . . ." ' "], citing Evid. Code, § 354, subd. (a).) As for the one witness counsel did "pick," the trial court did not abuse its discretion in disallowing the testimony as cumulative. (See Belfiore-Braman v. Rotenberg (2018) 25 Cal.App.5th 234, 249-250 [trial court has discretion as to whether testimony is unduly cumulative]; Robinson v. U-Haul Co. of California (2016) 4 Cal.App.5th 304, 323 [even if excluded testimony might have been marginally relevant, any error was harmless because excluded testimony would have been cumulative]; see also Johnston v. Brewer (1940) 40 Cal.App.2d 583, 588 [where proffered testimony is merely cumulative of relevant evidence, the trial court's refusal to admit it in evidence is not an abuse of discretion]; Evid. Code, § 352.)
DISPOSITION
The DVPA protective order is affirmed. Parties to bear their own costs on appeal.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Margulies, J.