R.F. v. W.F. CA2/8 ( 2023 )

Filed 2/8/23 R.F. v. W.F. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
R.F., B316013
Appellant, Los Angeles County
Super. Ct. No.
v. 21STFL06027
W.F.,
Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Lynn H. Scaduto, Judge. Affirmed.
Pamela Rae Tripp for Appellant.
Law Office of Oscar Acevedo and Oscar Acevedo for
Respondent.
____________________
A father challenges a domestic violence restraining order
against him. The order protects his child and the child’s mother.
We affirm. The order was no abuse of discretion. We also reject
the father’s claim the trial court acted as an advocate and not an
impartial arbiter. Undesignated statutory references are to the
Family Code.
I
The mother, representing herself, sought a restraining
order after a confrontation with the father in May 2021.
According to the mother’s declaration, the father erupted after
she gave their daughter—then three years old—a gummy
vitamin. The father “was infuriated” and began screaming at the
mother. He had asked her not to give these gummies to the child.
He told her she was “ ‘going to have the biggest problem of [her]
life’ ” if she did it again. The mother knew what this meant: the
father kept a gun by his bedside (in an unlocked drawer) and had
threatened to kill her with it many times. She was scared for her
life and fled the house later that day with the child.
The mother’s declaration addressed other incidents with
the father over the past year. The father monitored her calls,
messages, and pictures. Once he took her phone without
permission, pushing her against a wall so hard she had trouble
breathing. She tried to escape, but he continued to pin her
against the wall and stomped on her foot. When she broke free,
he threw the phone at her and broke it. She had trouble walking
normally due to the pain in her foot. Another time, the father
came home furious when his car stalled. He stormed into the
house yelling, made his way to the mother (who was in the
bathroom), and slammed the bathroom door into her face, which
caused swelling. She described how he would grab and squeeze
her forcefully and would not stop when asked. Once he screamed
at her and called her an “idiot” in front of the child; then he took
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the child outside, continued to scream and demand that the
mother follow him, pushed the child away when the mother
refused to come out, and slammed the front door with enough
force to shatter its glass.
The mother’s declaration detailed other aspects of life with
her husband: how he restricted her access to finances and would
not permit her to work; how he would abuse her verbally and call
her names regularly; and how she feared his “physical and verbal
attacks[.]”
The father submitted an extensive responsive declaration
that denied the mother’s claims of abuse and control, claimed the
mother was the aggressor in their family, and maintained video
evidence “disproves every claim that Respondent has made in her
request[.]” (The father sought custody shortly before the mother
sought a restraining order, so the mother often was referred to as
“Respondent” in the proceedings.)
The mother obtained a temporary restraining order
requiring the father to stay away from her and the child (among
other things) and provided for no visitation pending the hearing
on the mother’s request for permanent relief.
The mother testified first at the hearing. Her testimony
about the incidents was generally consistent with her
declaration. The court asked the mother many questions. The
court had alerted the parties at an earlier hearing that it would
ask questions.
The father’s mother testified next. Her testimony about the
bathroom incident contradicted the mother’s. She described her
son and his wife as a happy and loving couple. The grandmother
confirmed her son had borrowed a gun “when all of the riots were
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going on,” and had returned it a few weeks before the July 2021
hearing.
The father began testifying near the end of the court day.
At the resumed hearing, the mother did not appear. The court
proceeded with the father’s testimony, which contradicted the
mother’s story. The father’s counsel offered many exhibits,
including videos from the Ring cameras positioned in the child’s
bedroom and outside the front door of the home; messages
between the spouses; and pictures.
After the father finished his direct examination, the court
asked questions. The father confirmed he had been convicted of
several drug-related felonies many years before and had been
told he could not possess a firearm. The father also confirmed
the child was born in Mexico and had lived there (with the
mother) for almost two years, which contradicted one of his
declarations.
During the father’s testimony, the trial court learned the
mother had not joined the hearing remotely because she could not
get online. The mother arrived at court for the afternoon session
and asked a couple questions of the father, despite missing his
testimony. The parties made some concluding remarks, and then
the court ruled.
The court’s oral ruling is thoughtful and extensive. We
quote the bulk of it here:
“[T]he standard here is whether the Respondent has met
her burden of proof proving by a preponderance of the evidence
that there have been one or more acts of domestic abuse by the
Petitioner. The conclusion of the Court is that she has.
“I think Mr. Land [the father’s counsel] correctly identified
this is a case that comes down to credibility. I believed
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Respondent when she said Petitioner squeezed her hand tightly
and said ‘But I love you so much,’ that he stomped on her foot and
broke her phone because he wanted to look at it and she wasn’t
complying.
“I believe that he showed her the firearm and said ‘watch
out.’ That’s paraphrasing, but ‘watch out.’ I think, Mr. Land
what you identified as inconsistencies I largely see as sort of
trivial, almost hyper-literal differences.
“Petitioner hit so hard on the idea that this porch video
showed that nothing at all -- nothing at all concerning had
happened on I think May 30th was the date. It was obvious to
me from the video itself and the transcript that Mr. Land
provided that that video did not tell the whole story.
“So Petitioner quibbles over what she describes as the office
is actually full of exercise equipment for her. All that’s in there is
a printer. Oh, but I did go in there to get some documents right
around the time that thing was happening.
“So there was definitely a downplaying, sort of an attempt
to focus the Court on the video that I don’t think told the whole
story at all.
“Another example of what I would describe as sort of a
hyper-literal attempt to impeach the Respondent was that the
video, the transcript of the video, showed Petitioner calling
Respondent an idiot. ‘You’re like a child trying to be a parent.’
“Respondent’s mother, according to Petitioner, texted her
later in the day and said -- I’m paraphrasing -- ‘My daughter is
not stupid.’ And Petitioner’s reaction was ‘I never called her
stupid.’ Well, you called her an idiot. It’s on video.
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“So the idea that there was verbal abuse I think was well
documented. It did not appear that there was physical abuse on
May 30th. Respondent testified in fact that there wasn’t.
“What I think we had here is a pattern of controlling
behavior that got underway when Respondent left Mexico and
came to the United States in September of 2019.
“She had no driver’s license. Her immigration status was
far weaker than Petitioner’s, obviously, as an American citizen.
She didn’t know the country, English. While she has some
knowledge of English, it’s clearly not her first language.
“The text messages that Petitioner provided where
Respondent described what she had done at the doctor in Mexico
in November of 2019 show that her English is marginal, I think
we could say, that her written English is marginal.
“There’s also the big picture. Why would she flee the
house, leaving behind all of her daughter’s treasured items, her
blanky, her crown, her high-heeled shoes that she loves? Why
would mother flee the house if something scary wasn’t happening
there?
“I do think looking at -- I spent time over the lunch hour
reviewing all of the communications that Petitioner had admitted
into evidence this morning. Clearly there was a honeymoon
phase when Respondent was still living in Mexico. Petitioner
was traveling back and forth. Lots of loving text messages, sexy
text messages, ‘Let’s have a baby,’ all of that.
“Something changed such that after Respondent arrived
here with the minor child in September of 2019, within two
months she was running away from the Petitioner in Mexico and
saying, ‘I am not coming back. I am staying here. I am going to
live with my mom and go to school.’
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“I asked Petitioner what would she have to gain from
leaving the home where she was living with her daughter and
your daughter, no job, no driver’s license, I think still today? A
relatively low-level immigration status here in the United States.
Why would she do that? That big picture, in my view, only adds
credibility to her account of the relationship between the parties.
“I didn’t understand Respondent to say, and I don’t think it
is the case, that Petitioner was delivering body blows or pointing
firearms on a daily basis. But I think once Respondent got to the
United States, Petitioner had her. He had control, and that at
times he enforced his will with threats or with acts of physical
aggression.
“The long and short of it is I think Respondent has met her
burden of proving that there have been one or more acts of
domestic abuse between the parties. I find that a restraining
order should be in place between the parties.
“The firearm is gravely concerning to me. As I mentioned
in our last hearing date, I was very concerned by Petitioner’s
statement in his June 21st responsive declaration that ‘I don't
have any guns at my house.’ Right away I said to Mr. Land,
‘Maybe he’s got it in his pocket. Maybe it’s in his glove
compartment.’
“Petitioner’s mother’s testimony, in my view, corroborated
Respondent’s account of when the firearm was in the house. The
fact that it seems, at least from what I can tell, the Petitioner, for
other reasons, due to a prior criminal conviction, was not allowed
to have a firearm only makes it all the more concerning that
there was one in the household for what sounds like almost a
one-year period, if I am understanding the chronology correctly.
Black Lives Matter in spring of 2020 to I think Petitioner’s
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mother said just a few weeks before the hearing where she
testified.
“My impression is Petitioner’s mother’s testimony was that
she would do anything for him. I suspect he could get that
firearm in a heartbeat. So the stakes here seem very high. The
time when a relationship is coming apart can be very dangerous.”
The court granted a two-year permanent restraining order
on the same terms as the temporary restraining order, with an
exception for monitored visitation between the father and the
child. Mother would have sole legal and physical custody.
II
The father asserts “no reasonable judicial officer could have
issued a permanent restraining order” here. He makes three
claims on appeal: (1) the trial court abused its discretion in
issuing the order, (2) insufficient evidence supports including the
child in the order, and (3) the trial court was partial and engaged
in judicial advocacy.
On the first issue, the trial court’s ruling was reasoned and
supported by substantial evidence. (See M.S. v. A.S. (2022) 76
Cal.App.5th 1139, 1143 (M.S.) [appellate court reviews order
granting a domestic violence restraining order for abuse of
discretion and applies the substantial evidence rule to the trial
court’s factual findings].) In argument, the father’s counsel
conceded this was an “extremely difficult” case of “he said, she
said.” After reviewing the entire record, we cannot say the trial
court exceeded the bounds of reason in believing the mother.
(See In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th
698, 702 (Fregoso).)
Courts may issue restraining orders under the Domestic
Violence Prevention Act (the Act) (§ 6200 et seq.) upon
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“reasonable proof of a past act or acts of abuse.” (§ 6300; J.H. v.
G.H. (2021) 63 Cal.App.5th 633, 641 (J.H.).) They have broad
discretion in making these orders. (M.S., supra, 76 Cal.App.5th
at p. 1143.)
The evidence we have outlined above is sufficient to find
past abuse. (See § 6203, subd. (a)(1) & (3) [defining “abuse” to
include placing a person “in reasonable apprehension of
imminent serious bodily injury” and intentionally or recklessly
causing or attempting to cause bodily injury].) It shows acts by
the father that led the mother to fear for her life and to flee with
her child. The mother did not need physical evidence of the
father’s abuse. (See Fregoso, supra, 5 Cal.App.5th. at p. 703
[“The testimony of one witness, even that of a party, may
constitute substantial evidence.”].)
Our job is not to reassess the parties’ credibility or to
reweigh the evidence. (M.S., supra, 76 Cal.App.5th at p. 1144
[“We accept as true all evidence tending to establish the
correctness of the trial court’s findings and resolve every conflict
in favor of the judgment.”]; id. at p. 1145 [“we cannot reweigh the
evidence or resolve evidentiary conflicts”].)
The father leans heavily on S.M. v. E.P. (2010) 184
Cal.App.4th 1249. But unlike S.M., substantial evidence shows
this case involves more than a single episode of name-calling and
badgering. (See id. at pp. 1258, 1265–1266.) The mother in S.M.
also conceded the father never had threatened to hurt her or been
physical with her before the disputed episode. (Id. at p. 1258.)
On the second issue, there was good cause to include the
child in the restraining order. (See M.S., supra, 76 Cal.App.5th
at p. 1144 [good cause standard based on the totality of the
circumstances applies to the inclusion of family members in a
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domestic violence restraining order].) The record shows the
father’s physical and verbal violence reached the child. The
mother testified the father pushed the child during two conflicts,
yelled at her in front of the child during the most recent conflict,
and routinely insulted her in the child’s presence. The mother’s
declaration states the father “has been violent towards me in
front of [the child]” and “verbally abuses our child. He regularly
screams at [her] calling her a ‘criminal,’ ‘asshole,’ and a ‘bitch.’ ”
Other evidence in the record underscores the father’s
volatility and shows he—and anyone in the house, including the
child—had easy access to a gun, despite the father at one point
being told he could not have a firearm.
In re C.Q. (2013) 219 Cal.App.4th 355 does not help the
father. That dependency case involved evidence the children
wanted visits with their father, did not fear him, and claimed
they either did not witness or did not know of domestic violence.
(Id. at pp. 359, 361, 364.) The appellate court reversed the
restraining order as to the children after concluding the evidence
did not show their safety was in jeopardy (id. at pp. 357, 364–
365), which is not the standard here. (See J.H., supra, 63
Cal.App.5th at pp. 641–643 [noting C.Q. concerned restraining
orders issued under the Welfare and Institutions Code and
concluding restraining orders issued under the Act do not require
a showing of potential jeopardy to the child’s safety].)
The father asks us to take judicial notice of custody and
visitation orders from the past year in a different case before a
different judge granting him shared custody of the child and
significantly more visitation rights. We grant his requests. But
these orders do not show the August 2021 restraining order
issued in this case was an abuse of discretion.
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On the third issue, the record shows the court posed
questions to all of the witnesses, asking many questions of both
the mother and the father. This is permissible under the family
law rules. (California Rules of Court, rule 5.113(g).)
This case is nothing like In re G.B. (2018) 28 Cal.App.5th
475, cited by the father, where the juvenile court “crafted,
asserted, and then adjudicated allegations against [a
nonoffending parent] based on a factual and legal theory not
raised in the original dependency petition and opposed by the
[social services agency].” (Id. at p. 489.)
This trial judge was not an advocate. The court was trying
to determine the facts in a hotly contested case where one litigant
had a language barrier, technology issues, and no attorney. (See
Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420, 423
[recognizing litigants in domestic violence proceedings are often
vulnerable and unrepresented, which requires judges to play a
far more active role in developing the facts].)
DISPOSITION
We affirm the permanent restraining order and award
costs to the mother.
WILEY, J.
We concur:
GRIMES, Acting P. J.
VIRAMONTES, J.
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