Cole v. Weightman CA2/8 ( 2013 )

Filed 6/28/13 Cole v. Weightman CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
AVALANE COLE, B240629
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SQ005405)
v.
STEPHANIE COLE WEIGHTMAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
David J. Cowan, Judge. Affirmed.
Law Offices of Zolonz & Associates and Adam M. Zolonz for Appellant.
No appearance on behalf of Respondent.
__________________________
Stephanie Cole Weightman appeals from the Domestic Violence Restraining
Order (Fam. Code, § 6200 et seq.) directing her to keep away from and not contact her
mother, Avalane Cole. We affirm.
FACTS AND PROCEEDINGS
In February 2012, respondent Avalane Cole (mother) filed a request for a domestic
violence restraining order against her daughter, appellant Stephanie Cole Weightman
(daughter). In her supporting declaration filed with her request, mother, who had recently
removed daughter as the successor trustee to mother’s trust, stated she was 92 years old
and suffered from a “fragile heart condition.” Following her removal as trustee, daughter
had called mother on the phone “repeatedly day and night, comes to my home . . . ,
threatens to have me declared incompetent and put me where no one will ever find me.” 1
Mother also declared that daughter demanded money and other property, and when
mother did not comply daughter “screams at me and stomps around in an angry rage.”
Mother stated “After every interaction with [daughter] I feel a severe pain in my chest
and have to take nitroglycerine tablets to prevent a heart attack. I am terrified my
daughter will hit me or kill me intentionally or cause me to have a heart attack during one
of her frequent angry outbursts.” Mother requested that the court issue a restraining order
directing daughter not to, among other things, harass, attack, or threaten mother, and not
to contact mother, directly or indirectly, by any means, including by telephone. Mother
additionally requested that the court order daughter to stay at least 100 yards from
mother, mother’s home and car, and medical care facility. Daughter opposed mother’s
request for a restraining order.
At the court hearing on mother’s request, the court received into evidence
transcripts of four phone messages daughter had left on mother’s answering machine
which mother considered harassing or threatening or both. In these profanity-sprinkled
1 Mother also alleged daughter had stolen mother’s personal property from mother’s
home, but the trial court declined to make any specific findings as to that allegation’s
veracity.
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messages, daughter, among other things, called mother a liar, saying “you don’t
remember what you said anymore and . . . you’re a liar, you’re a hundred percent liar.”
Daughter also called mother “insane. You are really insane.” Mother further testified at
the hearing that daughter called mother’s hospital room while mother was recovering
from surgery and told mother that daughter had taken an overdose of pills in an attempt to
kill herself. Alarmed, mother contacted police, who could not confirm daughter’s claim.
Mother testified, “I tried to contact the police. I gave them [daughters’s] home address. I
gave them all the information so they could locate her. The police said they had no
record of her there, that they had no way of confirming my anxiety and whether or not
she had committed suicide.” Mother also testified that daughter’s gun collection and
threats to have mother institutionalized frightened mother. Mother testified: “Q. Did
your daughter ever threaten to have you put in an institution? [¶] A. Just about every
time she called me, that would be the ending of her conversation. [¶] Q. And what else
did she say about putting you in an institution? [¶] A. Well, even more than that,
putting me away where I would never be heard of, heard from others. [¶] . . . [¶] And
she threatened me, in essence, by the knowledge that she had guns underneath her bed
and that she was not afraid to use them, that she had been actually taught at the police
facility. [¶] Q. . . . She told you this, that she had guns and she wasn’t afraid to use
them? [¶] A. That’s right. [¶] Q. Did she ever tell you this when she was angry with
you? [¶] A. Yes. [¶] Q. Did she ever tell you that in reference to forcing you to
change your trust? [¶] A. All the time. [¶] Q. Are you afraid of your daughter? [¶]
A. Fearful and how.”
At the end of the hearing, the court issued a Domestic Violence Restraining Order.
It directed daughter not to harass, threaten or assault mother, and to stay away from
mother, her home and car, and all medical facilities where she was a patient. The order
was to remain in effect for three years. This appeal followed.
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DISCUSSION
Family Code section 6200 et seq. governs Domestic Violence Restraining Orders.2
Under the statute, a court may issue a restraining order against a family member who
abuses another family member. Such abuse includes “harassing” and “disturbing the
peace of the other party.” (§§ 6203, subd. (d), 6320, subd. (a).) Disturbing the peace is
“conduct that destroys the mental or emotional calm of the other party.” (In re Marriage
of Nadkarni (2009) 173 Cal.App.4th 1483, 1497.) We review the trial court’s issuance of
a restraining order for abuse of discretion. (Gonzalez v. Munoz (2007) 156 Cal.App.4th
413, 420; Quintana v. Guijosa (2003) 107 Cal.App.4th 1077, 1079) We review the trial
court’s factual findings in support of its order for substantial evidence. (Sabbah v.
Sabbah (2007) 151 Cal.App.4th 818, 822-823.)
Daughter contends the court erred in granting mother’s request for a restraining
order. First, daughter asserts mother suffered from memory problems, making her
testimony unreliable. The court concluded otherwise, finding that mother was mentally
competent. At the end of the hearing, the court stated mother “appears to this court to be
competent to testify and the court has heard her testimony and she seemed very alert to
the court and had a lot to say, maybe sometimes too much to say over and above what the
questions asked for, but she seemed to understand questions both of her lawyer as well as
of [daughter’s] lawyer.” In an exchange during the hearing that the court may have had
in mind in finding mother could hold her own against counsel, daughter’s counsel asked
“Are you physically disabled? [¶] [Mother’s Counsel]: Objection . . . [¶] [Court]: She
can answer the best – I’m sure, ma’am, you’ve got an answer in your head already; is that
right? [¶] [Mother]: You better believe, yes. [¶] Am I physically disabled? No. I
came home from the hospital only three weeks ago or so, so I’m not quite myself yet
physically. Consequently, I’m in this chair because I have to – I can’t stand for any long
lengths of time. It’s painful. [¶] It was painful for me to come to this court today, but I
felt it was a question of my coming to this court and saving my life and trying not to put
2 All undesignated statute references are to the Family Code.
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myself out and to suffer to come down here, but I’ve done it. [¶] [Court]: Thank you,
ma’am. You’ve answered the question. [¶] [Mother]: I think I answered it pretty ample,
your honor.” Mother’s mischievous self-awareness in telling the court that the court had
“better believe” she had a “pretty ample” answer belies daughter’s assertion that mother’s
testimony was incompetent or unreliable.
Daughter disputes any suggestion that mother reasonably feared for her life.
Daughter also contends that the court erred in finding daughter’s transcribed telephone
messages contained threats against mother. The court did not, however, base the
restraining order on such findings. In fact, the court expressly found daughter had not
physically threatened or touched mother. But even in the absence of violence or mother
fearing for her life, harassing conduct by itself can support a restraining order. (§§ 6203,
subd. (d), 6320, subd. (a) [restraining order to prevent harassment]; In re Marriage of
Nadkarni, supra, 173 Cal.App.4th at p. 1496 [“the requisite abuse need not be actual
infliction of physical injury or assault”].)
Finally, daughter contends three years is too long for the restraining order. In
support, she asserts that a domestic violence restraining order’s purpose is to give the
parties a cooling-off period no longer than necessary to allow them to resolve the
differences that triggered violence. Her assertion rests on a faulty premise, however,
because violence need not occur for a restraining order to issue. An order can rest on
other grounds, such as harassment or disturbing the other party’s peace. (§§ 6203,
subd. (d), 6320, subd. (a).) Because daughter does not discuss the reasons the court
issued the restraining order here, and the record is silent about the court’s reason for
selecting a three year term, she cannot show the court abused its discretion. (People v.
Stowell (2003) 31 Cal.4th 1107, 1114; Biscaro v. Stern (2010) 181 Cal.App.4th 702,
708.)
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DISPOSITION
The Domestic Violence Restraining Order is affirmed. Respondent’s costs on
appeal, if any, are awarded to respondent.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J.
FLIER, J.
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