Tomi B. v. Andre V. CA4/1 ( 2022 )

Filed 5/23/22 Tomi B. v. Andre V. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
TOMI B., D079049
Plaintiff and Respondent,
v. (Super. Ct. No. 21FDV01678C)
ANDRE V.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Daniel S. Belsky, Judge. Affirmed.
Andre V., in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Andre V. appeals a domestic violence restraining order (DVRO) that
Tomi B. obtained against him. Andre claims there was no proof of domestic
violence and Tomi sought the DVRO in retaliation for his moving out of their
home. Because Andre has not provided an adequate record or a cogent legal
argument for reversal, we affirm.
BACKGROUND
While Andre and Tomi were cohabiting, they got into an argument and
she locked him out of the home. Andre entered through a kitchen window
and kicked a hole in Tomi’s bedroom door. When Tomi opened the door, she
and Andre continued to argue, and he “push[ed] [her] around” as she
struggled to get him out of the home for several hours until he finally left.
After this incident, the couple stopped living together but continued to work
for the same employer. Andre contacted Tomi multiple times each day about
their relationship even though she did not want the contact.
Tomi requested the family court grant a DVRO requiring Andre “to
leave [her] alone” and preventing “him [from] coming to [her] home again.”
The court granted a temporary restraining order requiring Andre to stay 100
yards away from Tomi and prohibiting him from contacting or harassing her,
and set a hearing on a more permanent order. The parties appeared at the
hearing and testified. The court found Tomi more credible than Andre; found
she had shown by a preponderance of the evidence that he committed
domestic violence against her; ordered him to attend a 52-week batterer’s
program; and issued a one-year DVRO requiring him to stay 100 yards away
from her except when they were at work together and prohibiting him from
contacting or harassing her.
DISCUSSION
Andre claims the family court “erred in finding [him] guilty of domestic
[violence] and harassment claims as there is lack of evidence and no
statements or reports from witnesses.” He alleges his “wrongful entry” or
“trespass” into Tomi’s home was “justified”; “there was no direct domestic
violence”; and her “harassment claims were used in a black mailing [sic]
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strategy after [he] chose to remove [him]self from [the] household.” We are
not persuaded.
Andre has procedurally defaulted on his claim of error. His brief
contains a short statement of facts with no citations to the record where
evidentiary support for any of the facts can be found. (See Cal. Rules of
Court, rule 8.204(a)(1)(C).) The argument section of the brief is less than half
a page long and includes no citations to legal authorities supporting the
contentions made. (See id., rule 8.204(a)(1)(B).) “[A] brief must contain
‘ “meaningful legal analysis supported by citations to authority and citations
to facts in the record that support the claim of error” ’ and contain adequate
record citations, or else we will deem all points ‘to be forfeited as unsupported
by “adequate factual or legal analysis.” ’ ” (Fernandes v. Singh (2017) 16
Cal.App.5th 932, 942-943.) This forfeiture rule applies here.
Nevertheless, although we ordinarily do not independently search the
record for error (McComber v. Wells (1999) 72 Cal.App.4th 512, 522;
Guardianship of Turk (1961) 194 Cal.App.2d 736, 739), we have examined
the record in this case to determine whether it supports the DVRO.
Reviewing the family court’s ultimate decision to grant Tomi’s DVRO request
for abuse of discretion and its underlying factual findings for substantial
evidence (In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220, 226;
In re Marriage of G. (2017) 11 Cal.App.5th 773, 780), we find no reversible
error.
In her DVRO request, Tomi described under penalty of perjury the
incident at her home during which Andre kicked a hole in her bedroom door
and “push[ed] [her] around.” She also stated he later contacted her multiple
times a day even though she did not want him to. Such conduct by one
cohabitant against another constitutes “domestic violence” (Fam. Code,
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§§ 6203, subd. (a)(4), 6211, subd. (b), 6320, subd. (a)), against which a court
may issue a restraining order (id., §§ 6301, subd. (a), 6340, subd. (a)(1);
Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 784 [DVRO properly issued
against defendant who grabbed and pushed plaintiff and contacted plaintiff
after being told to stop]). Andre neither submitted a declaration in opposition
to the DVRO request nor provided us a transcript of the hearing on the
request even though the minutes state a court reporter was present. We
presume Tomi testified at the hearing consistently with her statements in the
request, because, without a contrary record, “if any matters could have been
presented to the court below which would have authorized the order
complained of, it will be presumed that such matters were presented.” (Riley
v. Dunbar (1942) 55 Cal.App.2d 452, 455; accord, Jameson v. Desta (2018) 5
Cal.5th 594, 609.) Also, as stated in the family court’s minutes, Andre “never
denied being physical” and the court found Tomi more credible than Andre.
Andre “seems to want this court to reevaluate his credibility and reweigh the
evidence presented below, but we can do neither.” (Foust v. San Jose
Construction Co., Inc. (2011) 198 Cal.App.4th 181, 188.) On the record
presented, Andre has not shown the court’s decision to grant Tomi’s DVRO
request exceeded the bounds of reason, as is required for him to establish an
abuse of discretion. (In re Marriage of G., supra, 11 Cal.App.5th at p. 780.)
At oral argument, Andre claimed circumstances had so changed that
the DVRO is no longer needed, and he offered the court several documents in
support of the claim. We declined the offer. “It is an elementary rule of
appellate procedure that, when reviewing the correctness of a trial court’s
judgment, an appellate court will consider only matters which were part of
the record at the time the judgment was entered.” (Reserve Insurance Co. v.
Pisciotta (1982) 30 Cal.3d 800, 813.) Although appellate courts have the
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power to take new evidence (Code Civ. Proc., § 909), the power “is to be
exercised sparingly and it is not a substitute for other authorized
procedures.” (In re Carrie M. (2001) 90 Cal.App.4th 530, 536). If
circumstances have changed as Andre claimed, he may bring that to the
attention of the family court by motion for dissolution of the DVRO. (Fam.
Code, § 6345, subd. (a); Code Civ. Proc., § 533; Loeffler v. Medina (2009) 174
Cal.App.4th 1495, 1503-1504.)
DISPOSITION
The order is affirmed.
IRION, J.
WE CONCUR:
AARON, Acting P. J.
DATO, J.
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