Arhip v. Hunt CA1/4 ( 2013 )

Filed 3/25/13 Arhip v. Hunt CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
SERGHEI ARHIP,
Plaintiff and Respondent,
A135035
v.
DAVID MICHAEL HUNT, (San Francisco City & County
Super. Ct. No. FDV-12-809124)
Defendant and Appellant.
I.
INTRODUCTION
Appellant David Michael Hunt (Hunt), proceeding in propria persona, appeals
from the issuance of a domestic violence restraining order against him after a contested
hearing. He contends the trial court erred in granting respondent Serghei Arhip‟s (Arhip)
request for the restraining order because the trial court: (1) relied on conduct that does not
legally constitute “abuse”; (2) considered evidence not properly filed or served on Hunt;
(3) violated his right to equal protection of the law by holding him to a higher standard of
evidence than that applied to Arhip; and (4) abused its discretion by imposing a
restraining order that was overly restrictive.
Arhip has failed to file a respondent‟s brief. Having considered the record below
and the arguments raised by Hunt on appeal, we affirm the order.
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II.
FACTUAL AND PROCEDURAL BACKGROUNDS
Arhip filed a request for domestic violence restraining order using Judicial
Council form DV-100 on January 4, 2012.1 In it, Arhip alleged that on January 3, Hunt
vandalized Arhip‟s apartment twice, tried to choke Arhip, bit his neck, and harassed
Arhip by “calling [him] constantly.” The request sought a stay-away order requiring
Hunt to stay at least 100 yards away from Arhip and his dog, Mitch, and a personal
conduct order prohibiting Hunt from certain offensive contacts with Arhip including
emails, telephone calls, and mailings.
The next day Hunt filed his own DV-100 form seeking essentially the same
domestic violence restraining order against Arhip, but also the return of all gifts given by
Hunt to Arhip. This request alleged that on January 2, Arhip burned Hunt‟s right index
finger, hit him multiple times with an open hand and closed fist, and threw Hunt against a
wall and onto the floor and into furniture causing Hunt multiple bruises and a cut above
his eye. Hunt also alleged that an earlier occasion of physical abuse occurred when he
was assaulted by Arhip on December 14, 2012.2
Accompanying his request for a domestic violence restraining order was Hunt‟s
declaration and seven pages of photographs which he states depict the injuries he
received as a result of Arhip‟s assaultive conduct.
On the same date, Hunt filed a response to request for domestic violence
restraining order on Judicial Council form DV-120. In addition to objecting to the
specific terms of the restraining order sought by Arhip, Hunt submitted a three-page
declaration refuting the factual allegations made by Arhip, and setting forth Hunt‟s
version of events. In essence, Hunt asserted that the events set forth in Arhip‟s papers
“never happened.” He denied committing a physical assault on Arhip, and asked that the
court disregard Arhip‟s version of events “in toto” because they all were “fraudulent.”
1
All further dates are in the calendar year 2012, unless otherwise indicated.
2
The calendar year was intended to be 2011.
2
As to Arhip‟s claim that Hunt vandalized his apartment, Hunt explained that this
was a “false embellishment.” Instead, Hunt stated that he “accidentally caused the
disarrangement of a few items of furniture while [he] was leaving [Arhip‟s] apartment.”
Likewise, Hunt denied that any significant property damage occurred while he was
leaving, and claimed that he did not cause any damage to Arhip‟s property on either of
the two occasions he was there on January 3. On the last page of this three-page
declaration, Hunt recounted a number of incidents occurring earlier in the relationship
between himself and Arhip during which Arhip caused Hunt physical and psychological
pain.
A hearing on the two competing requests was held on January 25. After
administering an oath to both parties, Arhip stated that the information contained in his
request was true and correct. In response to the court‟s invitation to add anything into the
record, Arhip stated that Hunt had stolen jewelry from him valued at more than $2,000,
had called the “Board of Nursing” in an effort to “get my license,” had vandalized
Arhip‟s apartment three times, and had stolen Arhip‟s prescription medicine. No police
report was filed in connection with the stolen jewelry.
A police report was produced by Arhip confirming that an incident had been
investigated by the San Francisco Police Department (SFPD) on January 3. Hunt was
arrested but the district attorney decided not to prosecute due to lack of evidence.
A neighbor, Francis Farrell, testified at the hearing that he lived in Arhip‟s
building and knew both parties. One evening Arhip called Farrell and asked for his help
in ensuring that Hunt left his apartment. Farrell refused to help that night. The next
afternoon, Farrell was called again, and this time went to Arhip‟s apartment to ask Hunt
to leave. Hunt left after Farrell called 911. On his way out Hunt deliberately knocked
over Arhip‟s flat screen TV.
Later that same evening Farrell was contacted again by Arhip who asked his
assistance in once again getting Hunt to leave the apartment. This time Hunt refused to
leave until police arrived. He was asked to leave by Arhip, then Farrell, and later by the
police after they arrived. Hunt refused to go.
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As to his request for a restraining order, Hunt affirmed that everything stated in
the supporting papers was true and correct. To refute Hunt‟s description of his injuries,
Arhip responded that Hunt self-inflicted several wounds, including cuts, to make it look
as if he had been assaulted by Arhip.
Referring to Arhip‟s form DV-100, Hunt claimed that nothing alleged in
“section C” had ever happened. He denied that he choked or bit Arhip. All of his
contacts with Arhip during the disputed visits were amicable. As to the property
damaged in Arhip‟s apartment, Hunt stated that this occurred because he was in a rush to
get some of his things out of the apartment, and he was clumsy in the process. Hunt
admitted that he contacted Arhip‟s employer but that he did so “for the public good.” He
told the employer that Arhip was having problems with alcohol.
As to Arhip‟s assaultive behavior towards Hunt, Hunt stated that Arhip had bitten
him twice, and had injected Hunt with prescription medicine in excessive doses. This
resulted in extensive cramping. Arhip also burned Hunt with cigarettes several times,
and threatened Hunt‟s life.
A map of Castro Street was proffered by Hunt to illustrate his concern that Arhip‟s
requested restraining order would interfere with his ability to get his medications, from
attending 12-step meetings, and from accessing public transportation.
The trial court then granted Arhip‟s petition for a restraining order with
modifications. These included that Hunt was not to come within 100 yards of Arhip and
his residence. The distance was reduced from that requested in order to accommodate
Hunt‟s concern that a longer distance would unduly limit his access to his (Hunt‟s)
pharmacy, 12-step meetings, and other businesses Hunt frequented. The restraining order
was not applied to Arhip‟s dog, Mitch.
As to Hunt‟s petition for a restraining order, the court denied the request. The
court concluded that, based on the police report of the January 3 incident, Hunt was the
aggressor that day.
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III.
DISCUSSION
A. Standard of Review
A temporary restraining order issued under the Domestic Violence Protection Act
(DVPA) (Fam. Code, § 6200 et seq.)3 is of the nature of an order granting an injunction,
thus it is “separately appealable.” (McLellan v. McLellan (1972) 23 Cal.App.3d 343,
357; Code Civ. Proc., § 904.1, subd. (a)(6).)
On appeal from the issuance of a domestic violence temporary restraining order,
we apply an abuse of discretion standard of review to determine whether the trial court
exceeded the bounds of reason. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413(Gonzalez); Quintana v. Guijosa (2003) 107 Cal.App.4th 1077, 1079 (Quintana).) “To
the extent that we are called upon to review the trial court‟s factual findings, we apply a
substantial evidence standard of review. [Citation.]” (Loeffler v. Medina (2009) 174
Cal.App.4th 1495, 1505.) “ „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.‟ . . .” (Gonzales, supra, 156 Cal.App.4th at p. 420, citing Shamblin v.
Brattain (1988) 44 Cal.3d 474, 478-479.)
The DVPA authorizes issuance of a restraining order “to prevent the recurrence of
acts of violence and sexual abuse and to provide for a separation of the persons involved
in the domestic violence for a period sufficient to enable these persons to seek a
resolution of the causes of the violence.” (§ 6220; Gonzalez, supra, 156 Cal.App.4th at
p. 421.) “The Legislature has set forth the relevant factors in Family Code section 6300,
by providing that a domestic violence restraining order may be issued „if an affidavit
shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.‟ ”
(Quintana, supra, 107 Cal.App.4th at p. 1079; Nakamura v. Parker (2007) 156
Cal.App.4th 327, 334.) Abuse is defined as intentionally or recklessly causing or
attempting to cause bodily injury, sexual assault, or placing a person “in „reasonable
3
All further undesignated statutory references are to the Family Code.
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apprehension of imminent serious bodily injury‟ ” to that person or to another.
(Gonzalez, supra, at p. 421; § 6203.)
Because Arhip has failed to file a respondent‟s brief, we “ „decide the appeal on
the record, the opening brief, and any oral argument by the appellant‟ . . . , reversing only
if prejudicial error is shown. [Citations.]” (Nakamura v. Parker, supra, 156 Cal.App.4th
at pp. 333-334.)
B. The Trial Court Did Not Commit Legal Error by Relying on Conduct Not
Subject to the DVPA
Under the DVPA, a restraining order may issue ex parte, after notice and a
hearing, or in a judgment either “enjoining specific acts of abuse,” “excluding a person
from a dwelling,” or “enjoining other specified behavior.” (§ 6218.) Hunt‟s initial
argument contends that the trial court improperly relied on conduct not constituting abuse
under the DVPA. We disagree.
Abuse includes any behavior that has been or could be enjoined pursuant to
section 6320. (§ 6203, subd. (d).) The behavior outlined in section 6320 includes
“stalking, threatening, . . . harassing, telephoning, . . . contacting, either directly or
indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the
peace of the other party . . . .” (§ 6320, subd. (a).) Thus, the requisite abuse need not be
actual infliction of physical injury or assault.
In this case, the trial court accepted as true the claims made by Arhip against Hunt.
These included Hunt‟s admission that he made at least one contact with Arhip‟s employer
in an effort to injure his employment status. In addition, Arhip claimed that he had been
assaulted physically by Hunt, that the property in his apartment had been “vandalized” by
Hunt, and that he had been harassed by virtue of having to contact law enforcement
several times to secure Hunt‟s removal from Arhip‟s apartment. Given this record, the
evidence of abuse was sufficient to support the trial court‟s order under the DVPA.
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C. In Granting Arhip’s Request for a Restraining Order, the Trial Court Did
Not Rely on Evidence Not Properly Filed or Served on Hunt
Hunt‟s second assignment of error concerns the trial court‟s consideration of
Farrell‟s testimony, and several documents proffered by Arhip at the hearing, including:
(a) a letter from Arhip‟s therapist; (b) a letter from Arhip‟s employer; (c) several
photographs; and (d) the SFPD police report. He argues that in submitting these
documents, Arhip violated applicable San Francisco Superior Court local rules requiring
the presubmittal of witness and document lists.
We refuse to consider the merits of this claim of error, because no objections were
made in the trial court to Farrell‟s testimony and the enumerated documents on the
ground now raised on appeal. Hunt argues that his pro per status should be considered
and we should excuse his failure to object because he was not represented by counsel at
the hearing. However, as a pro per litigant, Hunt is entitled to no special treatment in this
regard. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985 [“[e]xcept when a
particular rule provides otherwise, the rules of civil procedure must apply equally to
parties represented by counsel and those who forego attorney representation”].)4
D. The Trial Court Did Not Violate Hunt’s Equal Protection Rights By
Holding Him to a Stricter Standard of Evidence Than That Applied to
Arhip’s Evidence
Hunt‟s next contention is that the trial court erred by “requir[ing] Hunt to prove
his case by a stricter standard of evidence, while granting Arhip a more lenient standard.”
There is absolutely nothing in the record supporting Hunt‟s speculative argument.
Essentially, he asserts that the trial court must have held him to a higher standard of proof
because his evidence justifying a restraining order against Arhip was so much stronger
4
If we were to reach the merit of this argument, we would reject it. Even
assuming Arhip failed to follow applicable local court rules in presenting the disputed
evidence, and assuming further the trial court erred in considering it, Hunt has failed to
show prejudice. Virtually all of the objected to evidence was cumulative of other
evidence presented, including Arhip‟s own testimony, which the court implicitly found
credible.
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that Arhip‟s against him. He also points to several statements made by Arhip during the
hearing differentiating his background from that of Hunt in order to create “potentially
bias-inducing disparities between himself and Hunt.”
While Arhip did attempt to distinguish his background from that of Hunt in an
apparent effort to gain sympathy, there is no suggestion whatsoever that the trial court
was induced to decide the case based on the disparity in the backgrounds of the parties.
In short there is no evidence supporting Hunt‟s claim that the trial court was biased
against him, that his evidence was held to a higher standard of proof than was Arhip‟s, or
that his federal equal protection rights guaranteed by the Fourteenth Amendment to the
federal constitution were violated.
E. The Trial Court Did Not Abuse Its Discretion by Imposing an “Overly
Restrictive Order”
Lastly, Hunt argues that, because his federal equal protection rights are implicated
by the trial court‟s decision to grant Arhip a DVPA restraining order, those rights were
violated when the court failed to limit the granting of the order to the “least restrictive
means.” There is no such legal limitation imposed on the trial court‟s discretion under
the circumstances of this case. Not only was Hunt‟s equal protection right not violated
(see section III.D. above), but the court carefully crafted the order with Hunt‟s concerns
clearly in mind about how the distance would affect access to his pharmacy, 12-step
meetings, and other places of business he frequented.
For this same reason, we decline his request that we reverse the trial court‟s order
as an abuse of discretion. Indeed, to the contrary, our review of the record leads us to
conclude that the trial court was patient and even-handed with the parties, and that the
court treated both sides with respect and was careful to exclude from consideration the
extraneous facts presented by both sides.
IV.
DISPOSITION
The order granting a restraining order in favor of Arhip and denying Hunt a
restraining order is affirmed.
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_________________________
RUVOLO, P. J.
We concur:
_________________________
REARDON, J.
_________________________
HUMES, J.
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