Darehshiri v. Aghamahmoudi CA4/1 ( 2021 )


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  • Filed 10/18/21 Darehshiri v. Aghamahmoudi CA4/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    HOMEIRA DAREHSHIRI,                                                  D077593
    Plaintiff and Appellant,
    v.
    (Super. Ct. No. 18FDV00463C)
    ALIREZA AGHAMAHMOUDI,
    Defendant and Respondent.
    APPEAL from an order of the Superior Court of San Diego County,
    Truc T. Do, Judge. Affirmed.
    Homeira Darehshiri, in pro. per., for Plaintiff and Appellant.
    Law Office of Troy P. Owens, Jr. and Troy P. Owens, Jr. for Defendant
    and Respondent.
    Plaintiff Homeira Darehshiri, appearing in propria persona as she did
    in the trial court, appeals from an order denying her petition to renew a
    domestic violence restraining order (renewal petition) against her former
    spouse, defendant Alireza Aghamahmoudi. Proceeding by way of a proposed
    settled statement that was substantially modified by the trial court to ensure
    an accurate summary of the evidence and proceedings (settled statement),
    Darehshiri contends that the trial court committed a myriad of legal errors in
    denying the renewal of the domestic violence restraining order (DVRO) and
    that, in any event, no substantial evidence supports the court’s findings in
    support of that order.
    As we explain, because this is an appeal on a short record, in which the
    settled statement summarizes the evidence adduced during the evidentiary
    hearing, “we are bound to assume that enough appears [in the record] to
    enable us to decide whether reversible error was committed and we must
    make our ruling upon the basis of what affirmatively appears in the record.”
    (Sloan v. Stearns (1955) 
    137 Cal.App.2d 289
    , 293, citing Estate of Pierce
    (1948) 
    32 Cal.2d 265
    , 274; see Kovacik v. Reed (1957) 
    49 Cal.2d 166
    , 170
    (Kovacik) [noting “the evidence to support the essential findings and
    conclusions [of the trial court] must be found in the settled statement”].)
    Based on these principles, we conclude the trial court did not commit
    legal error when it denied the renewal petition, including by refusing to
    transfer the case to the trial judge who first heard and ruled on the original
    DVRO, as plaintiff argues. We further conclude the findings of the trial
    court, that plaintiff did not objectively entertain an apprehension of future
    abuse by defendant and that the parties had “moved on” since the issuance of
    the DVRO, are supported by substantial evidence. Affirmed.
    I. FACTUAL AND PROCEDURAL OVERVIEW
    A. Initial Application
    Plaintiff alleged under penalty of perjury in support of her request for a
    DVRO that defendant committed domestic violence against her on the
    evening of January 25, 2018. Earlier that day, without defendant’s
    knowledge, plaintiff called defendant’s mother in Iran. When defendant
    learned of the call, he first threatened to kill plaintiff, then used his elbow
    and fist to strike her in the chest and face, while calling her a “ ‘son of a
    2
    bitch’ ” and a “ ‘whore’ ” in Farsi. Plaintiff’s minor son S.F., then 12 years of
    age (minor), witnessed the incident. Plaintiff called 911. Although defendant
    denied physically abusing plaintiff, he was taken into custody.
    Plaintiff further alleged that defendant engaged in domestic violence
    the night before the January 25 incident, when, again in the presence of
    minor, he struck her in the chest at least two times. Plaintiff also alleged
    other incidents of domestic violence, including in August 2017. In her
    application for a restraining order she requested move-out and stay-away
    orders for herself and minor. On January 30, 2018, plaintiff obtained a
    temporary DVRO against defendant.
    On April 9, 2018, plaintiff filed an ex parte application seeking to
    terminate the temporary DVRO because she wanted to “go to counseling”
    with defendant. The trial court denied plaintiff’s termination request.
    The hearing on the permanent DVRO was continued multiple times.
    After an evidentiary hearing, the trial court on October 10, 2018, issued a
    DVRO in favor of plaintiff and minor that expired on October 9, 2019.
    B. Renewed Application to Extend the DVRO
    On September 23, 2019, plaintiff filed the renewal petition. In support
    of her petition, plaintiff attached a 10-page, single-spaced declaration. Under
    the heading, “Recent Incident[s] and Violation of the [DVRO],” plaintiff under
    penalty of perjury alleged various incidents when defendant allegedly had
    violated the DVRO.
    Plaintiff alleged that defendant (1) followed her into a store and passed
    by her, violating the requirement he stay at least 100 yards from her;
    (2) followed her in his vehicle as she drove on the freeway; (3) logged into her
    social media account; and (4) used her “[d]ata Internet” from her cellphone
    carrier. Plaintiff also alleged that defendant was making her “look bad in
    3
    Iranian society by talking behind [her back] and tell[ing] everyone [she was]
    crazy and should be hospitalized,” which behavior she attributed to
    defendant’s “revengeful personality and his anger” because she had called
    police due to his domestic violence.
    Plaintiff’s declaration in support of the renewal petition also included
    incidents of alleged domestic violence between her and defendant that
    predated the DVRO; threats defendant allegedly made to her and/or minor
    that also predated the DVRO; and instances when he exhibited what she
    referred to as his “revengeful personality,” among other subject matters.
    Plaintiff declared she awakens every morning in fear of defendant, and
    as a result, suffers from severe anxiety and is unable to sleep without
    medication. She thus requested the court renew the DVRO for the
    “maximum time” allowed in order to protect her and minor.
    On September 27, 2019, plaintiff moved ex parte to have the trial judge
    that originally issued the DVRO reassigned to hear the renewal petition.
    That request was denied.
    The hearing on the renewal petition was continued to February 19,
    2020. In continuing the hearing at the request of both parties, the trial court
    ordered the DVRO, which was set to expire on October 9, 2019, to remain in
    full force and effect pending the outcome of the renewal hearing.
    C. Denial of the Renewal Petition
    The unreported evidentiary hearing on the renewal petition
    commenced on February 19, 2020. As noted, plaintiff in this appeal has
    proceeded by way of a proposed settled statement, which she submitted on
    June 8, 2020. As also noted, the court found plaintiff’s proposed settled
    statement inaccurate in certain respects, and modified it accordingly to read
    in part as follows:
    4
    “[Plaintiff] confirmed her declaration in support of the
    request to renew was true and accurate and that she had no
    changes to make. The court inquired of [Plaintiff] regarding the
    basis of her request, including but not limited to allegations of
    violations subsequent to the Restraining Order After Hearing
    (‘ROAH’) that issued on October 8, 2018.[1] After [Plaintiff]’s
    direct examination, [Defendant] declined to cross examine
    [Plaintiff]. At the conclusion of [Plaintiff]’s testimony, [Defendant]
    moved for judgment pursuant to [Code Civ. Proc.,] § 631.8.[2] The
    court granted [Defendant]’s motion and denied [Plaintiff]’s request
    to renew the restraining order. The court gave the following oral
    statement of decision from the bench.
    “Under the totality of the circumstances and weighing the
    credibility of all evidence presented, the court found [Plaintiff]
    had not met her burden of proof for a renewal pursuant to Family
    Code § 6345 and Ritchie v. Konrad [citation]. The court found that
    [Plaintiff] entertained a subjective fear of future abuse and desired
    a renewal for her lifetime. The court did not find under an
    objective standard there was credible evidence of a reasonable
    apprehension of future abuse. The court found that [Plaintiff]’s
    testimony demonstrated there had not been any subsequent
    violations of the ROAH as she alleged. Exhibits 4 and 14, which
    the court admitted over [Defendant]’s objections despite well-taken
    objections as to foundation and inadmissible hearsay, failed to
    establish that [Defendant] had telephoned [Plaintiff] or ‘hacked’
    into her social media, as she alleged. Finally, the court found
    [Plaintiff]’s allegations that [Defendant] ‘followed’ her into a
    grocery store or on a highway not substantiated by her own
    testimony. The court concluded from the evidence that the parties
    1     As noted, the DVRO actually issued on October 10, 2018.
    2      Subdivision (a) of Code of Civil Procedure section 631.8 states in part:
    “After a party has completed his presentation of evidence in a trial by the
    court, the other party, without waiving his right to offer evidence in support
    of his defense or in rebuttal in the event the motion is not granted, may move
    for a judgment. The court as trier of the facts shall weigh the evidence and
    may render a judgment in favor of the moving party, in which case the court
    shall make a statement of decision as provided in Sections 632 and 634, or
    may decline to render any judgment until the close of all the evidence.”
    5
    had sufficiently moved on since the ROAH and [Plaintiff]’s fear
    was not reasonable under an objective standard. Accordingly, the
    court denied [Plaintiff]’s request for a lifetime renewal of the
    ROAH.”
    II. DISCUSSION
    A. Renewal of a DVRO
    Family Code section 63453 governs renewal of a DVRO. Subdivision
    (a) of this statute provides for renewal of a restraining order “[i]n the
    discretion of the court, . . . upon the request of a party, either for five years or
    permanently, without a showing of further abuse since the issuance of the
    original order, subject to termination or modification by further order of the
    court either on written stipulation filed with the court or on the motion of a
    party.” Although the protected party need not show further abuse, the court
    may only 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.” (Ritchie v. Konrad (2004)
    
    115 Cal.App.4th 1275
    , 1290 (Ritchie); accord In re Marriage of Martindale
    & Ochoa (2018) 
    30 Cal.App.5th 54
    , 59 (Martindale).)
    The Ritchie court explained this standard sets an objective test for
    renewal of a protective order. “It is not enough [the requesting] party
    entertain[s] a subjective fear the party to be restrained will commit abusive
    acts in the future. The ‘apprehension’ those acts will occur must be
    ‘reasonable.’ That is, the court must find the probability of future abuse is
    sufficient that a reasonable woman (or man, if the protected party is a male)
    in the same circumstances would have a ‘reasonable apprehension’ such
    abuse will occur unless the court issues a protective order.” (Ritchie, supra,
    3    All further statutory references are to the Family Code unless
    otherwise indicated.
    6
    115 Cal.App.4th at p. 1288; accord, Cueto v. Dozier (2015) 
    241 Cal.App.4th 550
    , 561 (Cueto).)
    “ ‘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.” ’ ” (Martindale, supra, 30 Cal.App.5th at p. 59; accord, Lister v. Bowen
    (2013) 
    215 Cal.App.4th 319
    , 333 (Lister).) Other potentially relevant factors
    include “ ‘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.” (Lister, supra, at p. 333;
    accord, Cueto, supra, 241 Cal.App.4th at p. 560.)
    B. Standard of Review
    “We review an appeal from an order denying a request to renew a
    domestic violence restraining order for abuse of discretion. [Citations.] [A]n
    abuse of discretion occurs where ‘ “ ‘the trial court exceeded the bounds of
    reason. 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.’ ” ’ However, the question of ‘whether a trial court applied
    the correct legal standard to an issue in exercising its discretion is a question
    of law [citation] requiring de novo review.’ ” (Cueto, supra, 241 Cal.App.4th
    at p. 560; accord, Martindale, supra, 30 Cal.App.5th at p. 59.)
    7
    C. The Presumption of Correctness and an Appellant’s
    Burden on Appeal
    “[I]t is a fundamental principle of appellate procedure that a trial court
    judgment [or order] is ordinarily presumed to be correct and the burden is on
    an appellant to demonstrate, on the basis of the record presented to the
    appellate court, that the trial court committed an error that justifies reversal
    of the judgment [or order].” (Jameson v. Desta (2018) 
    5 Cal.5th 594
    , 608-609.)
    “This means that an appellant must do more than assert error and leave it to
    the appellate court to search the record and the law books to test his claim.
    The appellant must present an adequate argument including citations to
    supporting authorities and to relevant portions of the record.” (Yield
    Dynamics, Inc. v. TEA Systems Corp. (2007) 
    154 Cal.App.4th 547
    , 557.)
    Accordingly, the California Rules of Court expressly require appellate briefs
    to “[s]tate each point . . . and support each point by argument and, if possible,
    by citation of authority” and to “[s]upport any reference to a matter in the
    record by a citation to the volume and page number of the record where the
    matter appears.” (Cal. Rules of Court, rule 8.204(a)(1)(B) & (C).)4
    “It is not our place to construct theories or arguments to undermine the
    judgment [or order] and defeat the presumption of correctness.” (Benach
    v. County of Los Angeles (2007) 
    149 Cal.App.4th 836
    , 852 (Benach).)
    Consequently, “[w]hen an appellant fails to raise a point, or asserts it but
    fails to support it with reasoned argument and citations to authority, we
    treat the point as [forfeited].” (Ibid.) Likewise, “ ‘[i]f a party fails to support
    an argument with the necessary citations to the record . . . the argument [will
    be] deemed to have been [forfeited]. [Citation.]’ [Citations.]” (Nwosu v. Uba
    (2004) 
    122 Cal.App.4th 1229
    , 1246 (Nwosu).)
    4     All further references to rules are to the California Rules of Court.
    8
    These rules of appellate procedure apply to both parties represented by
    legal counsel and self-represented parties. (See Nwosu, supra,
    122 Cal.App.4th at pp. 1246-1247.) “A party proceeding in propria persona ‘is
    to be treated like any other party and is entitled to the same, but no greater
    consideration than other litigants and attorneys.’ ” (First American Title Co.
    v. Mirzaian (2003) 
    108 Cal.App.4th 956
    , 958, fn. 1.)
    D. Analysis
    Here, plaintiff has raised numerous claims of error for our
    consideration. We note that many, if not all, of her claims are unsupported
    by reasoned argument and/or citations to authority and/or to citations to the
    record. Consequently, such claims of error are forfeited on appeal. (See
    Benach, supra, 149 Cal.App.4th at p. 852; Nwosu, supra, 122 Cal.App.4th at
    p. 1246 [noting a party proceeding in propria persona is “not exempt” from
    the rules of appellate procedure].) In any event, reviewing plaintiff’s claims
    of error as best as we are able, we conclude they lack merit.
    1. Legal Challenges
    First, plaintiff argues the trial court was “prejudiced against” her
    because in late September 2019 she moved ex parte to have the case
    transferred back to the trial judge (i.e., Judge Hoy) who had originally issued
    the DVRO in October 2018, for consideration of the renewal petition. The
    hearing on plaintiff’s request took place on September 30, 2019, and, like all
    other hearings in this case, was unreported. As noted ante, the trial court
    denied that request.
    The settled statement provides plaintiff “was sworn in by the court
    clerk” at the September 30 hearing and “after hearing [Plaintiff]’s argument,
    the court found there was no good cause to transfer the DV-700 [i.e., renewal
    petition] to Judge Hoy and denied [Plaintiff]’s ex parte request.”
    9
    We find this claim of error unavailing. Plaintiff did not seek to
    disqualify the trial judge at any point before the renewal hearing or after the
    order denying the renewal petition had been entered. (See Code Civ. Proc.,
    § 170.3.) Nor did she preserve a claim of “prejudice” or bias by objecting to
    any alleged impropriety. (Moulton Niguel Water Dist. v. Colombo (2003)
    
    111 Cal.App.4th 1210
    , 1218.) And there is no indication in the record that
    the trial court was “prejudiced” or biased against plaintiff, as she claims in
    her brief.
    Second, plaintiff argues the trial court erred when, over defendant’s
    objection, it granted her only a 21-day continuance of the hearing on the
    renewal petition (i.e., from January 10 to January 31, 2020). Plaintiff argues
    she needed more than 21 days to obtain legal counsel to represent her at the
    hearing, and therefore, the court committed reversible error.
    The settled statement provides that at the January 10 hearing,
    “[Plaintiff] requested a continuance to obtain legal counsel. [Defendant]
    objected to the continuance. The court expressed concerns with [Plaintiff]’s
    request for a continuance since she had objected to [Defendant]’s request to
    continue the hearing on October 18, 2019, and stated she was ready to
    proceed [in propria persona] on that date. The court also noted that
    [Plaintiff] has had nearly three months to retain legal representation. Over
    [Defendant]’s objection, the court granted [Plaintiff]’s request for a
    continuance and continued the hearing to January 31, 2020. The Farsi
    interpreter confirmed his availability to return on that date. The court
    advised the parties no further continuances would be granted unless there
    was a showing of good cause.” (Italics added.)
    We likewise reject this claim of error. The grant or denial of a request
    to continue is within a trial court’s sound discretion. (Dailey v. Sears,
    10
    Roebuck & Co. (2013) 
    214 Cal.App.4th 974
    , 1004.) Moreover, it does not
    appear from the record what steps plaintiff took, if any, either before or after
    the January 10 hearing, to obtain legal representation. Nor, according to the
    settled statement, did she ask for another continuance of the renewal hearing
    on January 31. In any event, the record shows plaintiff had more than three
    months to obtain legal counsel in this case and, her not doing so, is in no way
    attributable to any error or abuse of discretion by the trial court.
    Third, plaintiff argues the trial court erred by requiring her to testify at
    the renewal hearing through a Farsi interpreter, despite the fact she could
    understand and respond in English to the court’s questioning. Plaintiff
    argues the interpreter had a negative attitude toward her that compromised
    her case.
    The settled statement provides that “[d]uring her testimony, [Plaintiff]
    would testify in Farsi and the interpreter translated her testimony to
    English. At times, however, [Plaintiff] would answer in English. The court
    explained to [Plaintiff] that she needed to answer in Farsi even if she
    understood the English and allow the Farsi interpreter to assist her as she
    requested. [Plaintiff] stated she understood and would follow the court’s
    procedure. The proceedings continued with the assistance of the Farsi
    interpreter. At no time did [Plaintiff] request to relieve the Farsi
    interpreter.” (Italics added.)
    The record shows plaintiff first requested an interpreter who spoke
    Farsi for a hearing on September 14, 2018. On September 18, she again
    requested a Farsi interpreter for a hearing to be held on October 4. In her
    September 18 request, plaintiff specifically asked that Dr. Badi Badiozamani
    be appointed as her interpreter as he also had interpreted for her at the
    September 14 hearing. Plaintiff asked for this same interpreter for the
    11
    October 18, 2019 hearing on the renewal petition. The settled statement
    provides this same interpreter assisted plaintiff on October 18, 2019, January
    10, 2020, and February 19, 2020.
    We also find this claim of error unavailing. The record shows that (1) it
    was plaintiff and not the court who requested the appointment of a Farsi
    interpreter in this case; and (2) plaintiff specifically requested the same Farsi
    interpreter be assigned to her case for all court hearings dating back at least
    to September 18, 2018, before the original DVRO issued. Thus, any error
    regarding the use of an interpreter was invited by plaintiff. (See County of
    Los Angeles v. Southern Cal. Edison Co. (2003) 
    112 Cal.App.4th 1108
    , 1118
    [“The doctrine of invited error prevents a party from asserting an alleged
    error as grounds for reversal when the party through its own conduct induced
    the commission of the error.”]; Santa Clara Waste Water Co. v. Allied World
    National Assurance Co. (2017) 
    18 Cal.App.5th 881
    , 888 [“Under the invited
    error doctrine, a party cannot challenge a court’s finding made at its
    insistence.”].) In any event, there is no indication in the record that the
    interpreter misquoted plaintiff’s testimony during the renewal hearing or
    otherwise prejudiced her by his requested appointment.
    2. Substantial Evidence Challenge
    Before reaching plaintiff’s claim that the court erred in not considering
    certain evidence and that its findings in support of denial of the renewal
    petition are not supported by substantial evidence, we first address plaintiff’s
    evidentiary summary in her appellate brief.
    As part of her appellate burden, plaintiff was obligated to provide a
    statement of facts in her opening brief in conformance with rule
    8.204(a)(2)(C), which requires a “summary of the significant facts limited to
    matters in the record.” Under this rule, plaintiff was required to “summarize
    12
    all the evidence presented” in the evidentiary hearing. (See Silva v. See’s
    Candy Shops, Inc. (2016) 
    7 Cal.App.5th 235
    , 260, italics added; Schmidlin
    v. City of Palo Alto (2007) 
    157 Cal.App.4th 728
    , 738 (Schmidlin) [recognizing
    that a “ ‘party who challenges the sufficiency of the evidence to support a
    particular finding must summarize the evidence on that point, favorable and
    unfavorable, and show how and why it is insufficient’ ” or risk having the
    claim of error forfeited on appeal].)
    We note, however, that plaintiff’s summary of the evidence is not only
    decidedly one-sided, but much of it conflicts with the evidence in the settled
    statement, which is the evidence that guides our appellate review in this
    case. (See Kovacik, supra, 49 Cal.2d at p. 170 [noting “the evidence to
    support the essential findings and conclusions [of the trial court] must be
    found in the settled statement”].) Thus, to the extent plaintiff relies on
    evidence outside the record (i.e., the settled statement and clerk’s transcript),
    we do not consider it.5
    As is evident, plaintiff also misunderstands our role as a reviewing
    court. We review the trial court’s factual findings for substantial evidence. If
    those findings are supported by sufficient evidence, we are bound to accept
    5     It appears from the settled statement, which was filed on October 19,
    2020, that at some point plaintiff sought to challenge the modifications made
    by the court to plaintiff’s proposed settled statement, which she had filed on
    June 8, 2020. We note, however, that plaintiff did not sign or date her
    request for such modifications and/or objections to the changes made by the
    court to her June 8 proposed statement. Thus we have no way of knowing
    whether plaintiff’s request was timely. (See rule 8.137(g) [stating any
    proposed modification or objection to a trial court’s changes to a proposed
    settled statement must be filed and served with the court within 10 days of
    service].) In any event, it appears from the record that plaintiff merely
    disagreed with the trial court’s summary of the evidence in its October 19
    settled statement.
    13
    them, even if there is conflicting evidence that might have supported a
    different finding. (See Brewer v. Murphy (2008) 
    161 Cal.App.4th 928
    , 935;
    see also Axis Surplus Ins. Co. v. Reinoso (2012) 
    208 Cal.App.4th 181
    , 189
    [recognizing a reviewing court does not reweigh the evidence and is bound to
    the trial court’s credibility determinations].) We therefore cannot relitigate
    the merits of plaintiff’s renewal petition and make new findings, as she
    requests, but instead review the record to determine whether it contains
    substantial evidence to support those made by the trial court.
    The settled statement provides the “court questioned [Plaintiff]
    regarding the allegations contained in her declaration [in support of her
    renewal petition]. . . . [¶] The Court inquired about [Plaintiff]’s declaration
    that [Defendant] ‘followed’ her into a shopping center ‘to intimidate and
    frighten’ her. [Plaintiff] testified this incident . . . occurred in approximately
    May 2019. [Plaintiff] testified she was exiting a grocery store when she saw
    [Defendant] enter the store. They passed each other briefly. [Defendant]
    never spoke to [Plaintiff] nor approached her. [Plaintiff] exited the store into
    the parking lot and called the police. She did not see [Defendant] again after
    exiting the store. [Plaintiff] testified she felt intimidated by the encounter
    and believed [Defendant] followed her. [Plaintiff] testified that both parties
    live in the same area.” (Italics added.)
    Regarding an incident in June 2019 when plaintiff was driving, the
    settled statement provides plaintiff “ ‘believed’ ” it was defendant’s vehicle
    that was following her vehicle as she drove on a freeway because the vehicle
    “ ‘looked the same’ ” as his, “but she was not certain.” The other vehicle never
    passed her or pulled up next to her vehicle. Panicked, plaintiff exited the
    freeway, went into a grocery store, and asked the manager to call an
    ambulance to take her to the emergency room. Plaintiff “testified the vehicle
    14
    she believed driven by [Defendant] did not follow her off the exit and she
    never saw it again that day.”
    The settled statement also provides the court questioned plaintiff
    regarding exhibits 4 (subscriber records from her cellphone account) and 14
    (records regarding login activity for her social media account). Defense
    counsel objected to these exhibits on the grounds they “lacked foundation and
    authentication, contained inadmissible hearsay, and [were] inadmissible
    pursuant to Evidence Code § 352.” Although the objections were “well
    taken,” the trial court overruled them and admitted the two exhibits. “The
    court examined the exhibits with [Plaintiff]. Upon specific inquiry by the
    court, [Plaintiff] was unable to explain how the records established
    [Defendant] had either logged into her [social media] account or used her
    internet data.”
    The settled statement provides the trial court asked plaintiff if she
    wished to provide any additional information in support of her renewal
    petition. “[Plaintiff] asked the court to listen to an audio recording allegedly
    of [Defendant] threatening her son, but [Plaintiff] neither lodged a copy with
    the court [n]or had it available in court.”
    The settled statement provides the trial court found that exhibits 4 and
    14 did not establish that defendant “had telephoned [Plaintiff] or ‘hacked’
    into her social media, as she alleged.” The court also found plaintiff’s
    allegations that defendant “ ‘followed’ her into a grocery store or on a
    highway not substantiated by her own testimony”; and that, based on the
    evidence, “the parties had sufficiently moved on since the ROAH and
    [Plaintiff’s] fear was not reasonable under an objective standard.”
    Based on the settled statement and the clerk’s transcript, we conclude
    the evidence in the record amply supports the court’s findings that plaintiff
    15
    did not objectively entertain an “ ‘apprehension’ of future abuse” (see Ritchie,
    supra, 115 Cal. App.4th at p. 1290) and that the parties had sufficiently
    “moved on” since the issuance of the DVRO (see Lister, supra, 215
    Cal.App.4th at p. 333). Therefore, we reject this claim of error.6 We also find
    the settled statement fully resolves plaintiff’s claim that the trial court, in
    ruling to deny the renewal petition, did not consider exhibits 4 and 14, or the
    alleged audio recording of defendant threatening minor.
    DISPOSITION
    The order denying plaintiff’s renewal petition is affirmed.
    HALLER, Acting P. J.
    WE CONCUR:
    AARON, J.
    DATO, J.
    6     We note our decision is limited to the appellate record in this case. As
    such, our decision is not a bar to the parties seeking future protection, if
    necessary, based on new incidents of abuse.
    16
    

Document Info

Docket Number: D077593

Filed Date: 10/18/2021

Precedential Status: Non-Precedential

Modified Date: 10/18/2021