Opinion
A144819
01-13-2017
MARY WANG, Petitioner and Respondent, v. ARCHIBALD CUNNINGHAM, Respondent 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. FDI-03-753770)
Archibald Cunningham appeals from the trial court's order granting the request for renewal of a restraining order filed by his former wife, Mary Wang, under the Domestic Violence Prevention Act (DVPA).
On appeal, Cunningham raises a number of issues, including claims that the trial court abused its discretion when it (1) found there was sufficient evidence showing that Wang had a reasonable apprehension of future abuse, warranting renewal of the restraining order, and (2) refused to allow Cunningham to present certain live testimony at the hearing on the request for renewal of the restraining order. In addition, consistent with his past practice, Cunningham attempts to use this appeal to attack previous trial court orders, long since final. As we stated in our 2014 opinion in this matter, "We refuse to follow him down this rabbit hole and shall address only those claims properly cognizable on this appeal." (Wang v. Cunningham (Jan. 14, 2014, A135787) [nonpub. opn.].)
We shall affirm the trial court's order renewing the restraining order.
BACKGROUND
Much of the Background set forth below, prior to Wang's November 2014 request for a renewal of the restraining order, is taken from our 2014 unpublished opinion in this case. (Wang v. Cunningham, supra, A135787.) Additional factual and procedural background can be found in other unpublished opinions, including Wang v. Cunningham, supra, A118629 and Wang v. Cunningham (Mar. 30, 2011, A124717, review denied July 13, 2011).
In May 2007, Wang was awarded sole legal and physical custody of the parties' minor child. Cunningham was granted visitation. We affirmed that order in an unpublished opinion in 2008. (Wang v. Cunningham (Aug. 20, 2008, A118629) review den. Nov. 12, 2008.)
On April 12, 2010, following a hearing, the court issued its "Final Decision On the Issues of [Wang's] Request for a Restraining Order and to Declare [Cunningham] a Vexatious Litigant and an Award of Attorneys' Fees and [Cunningham's] Request for a Change of Custody." Therein, the court adopted its tentative statement of decision of March 15, 2010, which, among other things, denied Cunningham's request to modify the existing custody and visitation plan, denied him visitation, granted Wang's request for a five-year restraining order under the DVPA (Fam. Code, § 6200 et. seq.) and section 2047; restrained Cunningham for five years from harassing Wang, including, but not limited to annoying telephone calls, emails and letters; and declared him to be a vexatious litigant under Code of Civil Procedure, section 391, subdivision (b)(1), (2) and (3).
All further statutory references are to the Family Code unless otherwise indicated.
On April 30, 2010, the trial court entered its judgment on reserved issues.
Cunningham later sought to challenge the April 30 judgment by bootstrapping a challenge to his appeal of a January 30, 2012 order. We refused to entertain the appeal on the ground that the April 30, 2010 order "was final long ago." (Wang v. Cunningham (Jan. 31, 2013, A134757) [nonpub. opn.], review den. Apr. 10, 2013.)
On June 17, 2011, the trial court issued an order denying Cunningham's ex parte application seeking reinstatement of the original 50-50 custody order, appointment of a custody evaluator, and trial of the custody issue. The court listed various reasons for the denial, including the following: "The April 30, 201[0] judgment is a final Judgment on the issues addressed. One of the issues was custody and visitation. [Cunningham's] pleadings fail to present any evidence even suggesting that there has been a change in circumstance, a requirement to warrant consideration of the relief requested. [Citations.] Moreover, the above Judgment requires that if [Cunningham] seeks visitation with his [child] that [he] 'must demonstrate a willingness to comply with the court's orders contained within the DV-130 [restraining order] and that he is capable of peaceful communications with [Wang] limited solely to the immediate welfare of his [child].' As set forth in [Wang's] opposition, [Cunningham] continues to harass [Wang] by making contact with her family and making threats to her attorney."
On April 11, 2012, Cunningham filed a request for an order to show cause requesting, inter alia, that the DVPA restraining order be vacated. At a hearing on May 15, 2012, the court found there was no basis for vacating the restraining order, and denied the request.
On November 25, 2014, Wang filed a request with the court to renew the previously issued restraining order.
On March 20, 2015, following a hearing, the court granted Wang's request to renew the restraining order. In its "Mini Minutes," the court noted that it had permitted Cunningham to cross-examine Wang at the hearing, but had not granted his request to question retired Judge Patrick Mahoney; Wang's counsel, Maria Schopp; and his child. Based on all of the evidence, the court found "good cause to renew restraining order against [Cunningham] for a period of 5 years. Court finds that [Wang] presented evidence that she remains in reasonable apprehension of future abuse and/or harassing behavior from [Cunningham]. [Cunningham] shall stay 100 yards away from [Wang], her home and workplace at all times. [Cunningham] shall have no contact with [Wang] directly or indirectly." The court also granted Wang sole legal and physical custody of the parties' minor child and ordered Cunningham to present any "evidence as to why visitation is appropriate and to show change of circumstances" two days before the next hearing, for the court's review.
On April 7, 2015, the court entered an order denying Cunningham's March 23, 2015 request for a statement of decision, finding that the request was untimely under Code of Civil Procedure section 632 because the hearing was concluded in less than eight hours and Cunningham failed to request a statement of decision at the outset of the hearing.
On April 17, 2015, Cunningham filed a notice of appeal.
On October 21, 2015, we struck the filing of Cunningham's opening brief, filed in propria persona on September 28, 2015, because he was represented by counsel and therefore lacked the authority to file a brief on his own behalf. On November 3, 2015, Cunningham's attorney, Patricia Barry, filed an opening brief.
DISCUSSION
Initially, we reiterate that the only issues properly before us in this appeal relate to the March 20, 2015 order granting Wang's request to renew the DVPA restraining order, specifically whether the court abused its discretion in granting that request and in limiting the oral testimony permitted at the hearing.
Because no respondent's brief has been filed and argument has been waived, we decide this appeal on the record and the opening brief. (Cal. Rules of Court, rule 8.220(a)(2).)
I. Renewal of the DVPA Restraining Order
A. Trial Court Background
The original DVPA restraining order, issued in 2010, was based on Cunningham having sent numerous verbally abusive emails to Wang between 2007 and 2010, in violation of the May 9, 2007 court order on child custody and visitation, which stated, inter alia, "The Parties shall communicate cordially, via US Post (except in emergencies) with no words exceeding that which is brief and necessary to communicate about [the minor child]." The barrage of emails culminated with an email in January 2010, which the trial court described as "mak[ing] several veiled threats."
At the March 20, 2015 hearing on Wang's request to renew the restraining order, Cunningham did not testify, but extensively cross-examined Wang about a variety of matters, only some of which were relevant to the grounds for renewing the restraining order. Wang testified that, although Cunningham had not contacted her by phone, letter, or email in the previous five years, he had, "on numerous occasions, been at my residence. You have discarded [the minor child's] possessions on two occasions in front of my house. You have left your graffiti[-]vandalized vehicle in front of my house." He also had contacted her though the minor child, specifically by mailing a box addressed to the child, care of the child's school, which the child opened in Wang's presence. The box contained the family dog's cremated ashes; the child had not known the dog was dead.
Regarding Cunningham's vehicle, Wang testified that in September 2014, he left his car parked in front of her house. The "front of the vehicle was completely smashed in, and the vehicle was graffitied [sic]. [¶] There was also a poster board decorated with [the child's] name," which read, "Da loves you. XO." The car was moved twice during street cleaning, and then moved back in front of the house. It was there for two or three days.
Wang testified that she was "extremely concerned for my safety and my [child's] safety as a result of Mr. Cunningham's [numerous] legal filings, unrelated to this case, and concern about his mental state, and therefore, concerned about seeing his vehicle in this damaged and demolished state in my neighborhood." Wang also identified a photograph a neighbor took of Cunningham while he was less than 100 feet from her house on a day the car was parked there. In response to this testimony, Cunningham stated, "I see. So a father who hasn't seen his [child] in five years, who's denied all visitation, is mentally unstable if he has to resort to these kind of drastic levels to communicate with his [child]. Is that what you're saying, Ms. Wang?"
Wang also testified that she believed Cunningham's "[f]iling of baseless motions that create a financial and emotional burden for me . . . I feel is harassment." Cunningham then quoted from Wang's declaration, filed in support of renewal of the restraining order, in which she had stated that Cunningham's " 'endless litigation creates an enormous stress in our household and to [the minor child] and me directly. The financial burden imposed by his endless litigation has a direct impact on the resources I am able to dedicate to [the child's] education, now and in the future.' "
Wang further testified that in 2012, Child Protective Services came to her home to interview the child, based on a complaint she believed was made by Cunningham. Cunningham responded to this testimony by asking, "Do you understand why a father, who's been denied all visitation rights, might be concerned for the welfare of his [child] for a mother who would deprive a [child] of a relationship with [the] father, or that somebody who fails to see the significance of that, might think . . . that's really detrimental to the [child]?" When Wang responded, "Not in this case, no," Cunningham continued, "Sure. And don't you think every mother who denies a relationship with her [child] also, out of some heightened sense of self-importance or whatever, also has that, you know, rather benign sense of righteousness in denying that relationship with her [child]?" The court sustained Wang's counsel's objection to this question on the ground that it was argumentative.
At the conclusion of the hearing, the court found good cause to renew the restraining order for a period of five years.
Wang had requested that the order be permanent.
In addition, with respect to custody and visitation, the court granted sole legal and physical custody of the minor child to Wang, but also stated its intent to place the matter on calendar for a status conference as to visitation. The court explained, "I do believe that you should have an opportunity, sir, to present some evidence of changed circumstances in order to have visitation with your [child]. . . . [¶] At that time, sir, we will discuss steps moving forward with respect to visitation."
B. Legal Analysis
Section 6345, subdivision (a) provides for the renewal of a restraining order at 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 . . . ." "Abuse" is defined in section 6203, subdivision (a) as including not only physical or sexual abuse, or placing a person in reasonable apprehension of serious bodily injury (§ 6203, subds. (a)(1)-(a)(3)), but also as engaging in behavior that could be enjoined under section 6320, which includes, inter alia, stalking, threatening, harassing, contacting, coming within a specified distance of, or disturbing the peace of the other party. (§ 6203, subd. (a)(4); see § 6320, subd. (a).) Section 6203, subdivision (b) also specifically provides that "[a]buse is not limited to the actual infliction of physical injury or assault."
Since section 6345 does not provide a standard for the trial court to apply in determining whether to grant the request for renewal of a restraining order, the appellate court in Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1290 (Ritchie), after analyzing the issue, held that "[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. So there should be no misunderstanding, this 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." (Accord, Cueto v. Dozier (2015) 241 Cal.App.4th 550, 559-560; Lister v. Bowen (2013) 215 Cal.App.4th 319, 332-333 (Lister).)
In Lister, we summarized the factors the Ritchie court found should be considered by the trial court 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.' [Citation.] '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?' [Citation.] Also relevant are the seriousness and degree of risk, such as whether it involves potential physical abuse, and the burdens the protective order imposes on the restrained person, such as interference with job opportunities. [Citation.]" (Lister, supra, 215 Cal.App.4th at p. 333, quoting Ritchie, supra, 115 Cal.App.4th at p. 1291.)
In the present case, the initial restraining order was based on appellant repeatedly sending verbally abusive emails to Wang between 2007 and 2010, in violation of the 2007 court order on child custody and visitation, culminating in a January 2010 email described by the court as "mak[ing] several veiled threats." Although none of Cunningham's actions preceding the original restraining order involved physical or sexual abuse, his conduct went beyond mere "unwanted phone calls or letters," and the initial order was certainly relevant to the question whether Wang entertained a reasonable apprehension of future abuse. (Ritchie, supra, 115 Cal.App.4th at pp. 1290-1291.)
With respect to the existence of "any significant changes in the circumstances surrounding the events justifying the initial protective order" (Ritchie, supra, 115 Cal.App.4th at p. 1291), the evidence does show that Cunningham no longer sent harassing emails after May 2010. Unfortunately, however, the evidence does not show that he had "moved on with" his life "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.) On the contrary, the evidence presented at the March 20, 2015 hearing showed that Cunningham had twice discarded the minor child's possessions in front of Wang's house; had sent the minor child a package, which was opened in Wang's presence, containing the family dog's ashes; and had left his damaged, graffiti-covered vehicle in front of Wang's house with a message to the child on it. He had also returned to Wang's house to move the car on street cleaning days. This evidence showed that Cunningham continued to both violate the prior restraining order and target Wang for harassment. (See Lister, supra, 215 Cal.App.4th at p. 335 ["It almost goes without saying that any violation of a restraining order is very serious, and gives very significant support for renewal of a restraining order"].)
Because we find reasonable the trial court's finding, "by a preponderance of the evidence that [Wang] entertain[ed] a 'reasonable apprehension' of future abuse" (Ritchie, supra, 115 Cal.App.4th at p. 1290), we will not address Cunningham's attempts to justify his conduct and his denial that his actions constituted abuse. (See also Lister, supra, 215 Cal.App.4th at p. 333 [" ' "When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court" ' "].) Thus, even assuming Cunningham's version of the facts were reasonable, we would not overturn the trial court's ruling, which did not "exceed[] the bounds of reason." (Ibid.)
In addition, with respect to Wang's testimony that Cunningham's "endless litigation" caused her enormous stress, as well as a financial burden, in Lister, we rejected the restrained party's argument "that a trial court cannot, as a matter of law, rely on a party's litigation conduct in determining whether or not a restraining order should be renewed. We [saw] no reason why a court, along with findings that it might make about such things as a party's inappropriate demeanor in court or troublesome statements as a witness, cannot also find, where appropriate, that a party's litigation strategies and tactics are evidence of inappropriate behavior that provides grounds for a restraining order's renewal." (Lister, supra, 215 Cal.App.4th at p. 336.)
In this case, as noted, Cunningham has, inter alia, repeatedly attempted to relitigate prior trial court orders, and has been declared a vexatious litigant based on his litigation conduct in matters related to Wang. Even beyond this evidence of Cunningham's use of the litigation process as harassment, the reporter's transcript from the March 20, 2015 renewal hearing provides numerous examples of his inappropriate and aggressive cross-examination of Wang, which went far beyond the matter at hand and reflected great hostility toward her. (See Lister, supra, 215 Cal.App.4th at p. 336.)
In just one example, as previously noted, Cunningham responded to an answer by Wang during cross-examination, with the following: "And don't you think every mother who denies a relationship with her [child] also, out of some heightened sense of self-importance or whatever, also has that, you know, rather benign sense of righteousness in denying that relationship with her [child]?"
Cunningham argues that because any reasonable apprehension of future abuse in this case does not include fear of physical violence, the court should have weighed the burdens he would face if the restraining order were renewed against the seriousness and degree of risk of abuse. (See Ritchie, supra, 115 Cal.App.4th at p. 1292.) In Ritchie, the court explained: "The burdens the restrained party suffers from a renewed—and especially a permanent—protective order may become relevant . . . where the existing order focuses not on the threat of physical violence, but lesser forms of abuse, unwanted telephone calls or mail, for example." The Ritchie court provided several examples of possible burdens on the restrained party, including interference with his or her employment or social life, or the collateral effect of limiting access to children. (Ibid.)
First, we will not presume that Wang's reasonable apprehension of future abuse did not include the threat of future violence, especially given the bizarre nature of some of Cunningham's acts, Wang's testimony that his conduct made her afraid for her safety, and the evidence of his failure to move on with his life. Second, Cunningham chose not to testify at the renewal hearing, and therefore did not provide the court with evidence regarding any possible burdens on him.
Third, we can infer from the court's orders at the hearing that it did in fact weigh the burdens on Cunningham against the risk of abuse. Although Wang requested a permanent restraining order, the court renewed the order for only five years. (See Ritchie, supra, 115 Cal.App.4th at p. 1292 [emphasizing particular importance of considering burdens when imposing a permanent restraining order].) Moreover, at the conclusion of the hearing, the court set a status conference to address the issue of visitation, over the objection of Wang's counsel, stating that it believed Cunningham should have the opportunity "to present some evidence of changed circumstances in order to have visitation" with his child. Hence, despite evidence presented at the hearing supporting Wang's concerns about possible future physical abuse, as well as Cunningham's failure to present any evidence regarding burdens on him, the court's orders demonstrate an intent to address possible burdens, including any collateral effect the order could have on his relationship with the child. (See Ritchie, at pp. 1291-1292.)
In conclusion, the trial court did not abuse its discretion when it renewed the DVPA restraining order for five years. (See Lister, supra, 215 Cal.App.4th at p. 333; Ritchie, supra, 115 Cal.App.4th at p. 1290.)
II. Limitation on Live Testimony Permitted at the Renewal Hearing
Prior to the hearing on the request to renew the restraining order, Cunningham filed a notice of oral testimony based on his intent to call Wang, Wang's attorney, the previous trial judge in this matter, and the minor child as witnesses at the hearing. The court permitted him to cross-examine Wang extensively at the hearing, but refused to permit the additional testimony, explaining, "the only person you're able to notice for live testimony is a party."
On appeal, Cunningham challenges the court's refusal to permit him to present the testimony of the former judge and Wang's counsel on the issue of whether his visitation rights were terminated in 2010 "without providing him due process of law," as well as whether counsel "committed a fraud on the court and whether [the previous judge] colluded in the fraud." Even assuming he had any legal basis for calling nonparties as witnesses at the hearing, Cunningham has failed to show that these proposed witnesses could provide competent, admissible, and relevant evidence that was within the scope of the hearing. Indeed, his argument regarding why he wanted to call these witnesses demonstrates that his purpose was to relitigate prior, final orders. There was no abuse of discretion on the part of the trial court in limiting witnesses at the hearing to the parties.
Because Cunningham does not explain in his briefing why he wished to question the minor child at the hearing, he has not preserved the issue on appeal. Even if it were before us, we would find that the court's refusal to permit him to call the child as a witness at the renewal hearing, at which only the reasonableness of Wang's apprehension of future abuse was at issue, was proper. --------
DISPOSITION
The trial court's March 20, 2015 order renewing the DVPA restraining order for five years is affirmed. Costs on appeal are awarded to Wang.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.