Inada v. Inada CA2/3 ( 2021 )

Filed 12/3/21 Inada v. Inada CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
ASHLEY C. INADA, B309084
Plaintiff and Respondent, (Los Angeles County
Super. Ct.
v. No. 19TRRO00924)
JEFFREY M. INADA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Gia G. Bosley, Judge. Affirmed.
Jeffrey M. Inada, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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Jeffrey Inada appeals from the trial court’s December 2,
2019 order granting a three-year domestic violence restraining
order (DVRO) to Ashley Inada, and awarding her sole legal and
physical custody of their two children.1 Because the trial court
did not abuse its discretion and the order was supported by
substantial evidence, we affirm.2
FACTUAL AND PROCEDURAL HISTORY
Jeffrey and Ashley were a married couple with two
children, and were in the process of divorcing. On November 8,
2019, in response to Ashley’s request for a DVRO, the trial court
granted a temporary restraining order and set a hearing date.
Jeffrey filed a response, with an attached declaration contesting
the factual basis for Ashley’s request.
On December 2, 2019, the trial court held a hearing at
which Ashley appeared in pro. per., and Jeffrey was represented
by counsel. The trial court conducted direct examination of
Ashley, asking her about an incident of domestic violence on
November 4, 2019 that was alleged in her restraining order
request. The court also asked if there were any other incidents
that Ashley would like the court to be aware of. Ashley
responded, “[j]ust the long-term mental abuse and violence.” The
1 We refer to Mr. and Ms. Inada by their first names for
clarity; no disrespect is intended.
2 Ashley has not filed a respondent’s brief on appeal. “In
such a case we examine the record and consider the opening brief
and oral argument, if any, to determine whether the trial court’s
ruling was prejudicial error.” (Gonzalez v. Munoz (2007) 156
Cal.App.4th 413, 419, fn. 2.)
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court asked further questions, eliciting testimony that Jeffrey
frequently used “bad words” towards Ashley, criticized her
parenting abilities, and sent numerous text messages containing
“untrue accusation[s] against [her].” Jeffrey’s counsel objected to
the court’s questions regarding factual allegations not made in
Ashley’s restraining order request. Jeffrey’s counsel cross-
examined Ashley about prior incidents of domestic violence in
which she was allegedly the primary aggressor, and entered into
evidence a sentencing memorandum concerning Ashley’s 2017
misdemeanor domestic violence conviction.
Jeffrey testified on direct examination that he acted in self-
defense in the November 4 incident, and he had received a letter
stating that the district attorney had declined to file charges
concerning that incident; the letter was admitted into evidence.
Jeffrey also testified that Ashley had assaulted him on prior
occasions and that he had called the police several times in
response to Ashley’s violations of a 2017 restraining order.
Jeffrey’s counsel requested that police reports regarding prior
incidents be admitted into evidence, but the trial court excluded
them as inadmissible hearsay.
The trial court granted Ashley’s request for a DVRO,
finding her testimony consistent and credible. Jeffrey’s counsel
requested a statement of decision. The court stated the basis for
its ruling as follows: Ashley’s testimony was credible and
Jeffrey’s testimony was not credible; Ashley credibly testified
that during the November 4 incident, Jeffrey “pushed her several
times, push[ed] her around, that she had objective injuries” and
this incident of assault and battery was a sufficient basis for a
DVRO; Jeffrey’s claim that he acted in self-defense was not
credible; Ashley was candid in admitting fault regarding a prior
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incident; the police found Jeffrey to be the primary aggressor in
the November 4 incident; Ashley stated she had photographs of
her injuries on her phone and could show them if requested; and
the fact that the district attorney declined to prosecute was not
probative, because it may have been based on factors other than
Jeffrey’s lack of culpability. The court indicated that it did not
rely on Ashley’s testimony about prior incidents of verbal abuse,
harassment through text messages, etc., in granting the DVRO,
only on the “the physical assault of the November incident.”
After hearing the court’s statement of decision, Jeffrey’s
counsel objected on the grounds that the court showed bias
toward Ashley by “asking . . . questions that . . . her counsel
would have asked . . . as to even issues that were not part of” her
request for a DVRO, and “instead of asking petitioner to make
her case . . . the court . . . interviewed [Ashley] for about 15
minutes or more.” Jeffrey’s counsel stated that “the crux of the
matter” is “why the court didn’t say, present your case, instead of
the court asking her all the questions that an opposing counsel
would have.” The court responded, “[b]ecause I do that with
every single case that comes before me is I inquire to have an
idea of the credibility of the witness.”
Jeffrey’s counsel objected to the court drawing favorable
inferences from Ashley’s claim that she had pictures of her
injuries, even though these pictures were not entered into
evidence, while disregarding Jeffrey’s claim that the police also
took photographs of his injuries. Jeffrey, speaking on his own
behalf, objected to the court disregarding the prior incidents in
which Ashley had been the aggressor and the “multiple times [he]
had to call the police to keep the peace.” The court responded
that its decision was based on the November 4 incident, and the
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fact that Ashley was the aggressor in prior incidents “does not
mean that she could not possibly ever have been assaulted.”
The court asked the parties to confer and attempt to come
to agreement on custody and visitation orders during a recess.
Jeffrey’s counsel informed the court that the parties “got close,”
but did not come to an agreement on these issues, and stated that
Jeffrey “would like alternate weeks,” while Ashley would agree
only to weekend visitation. After further discussion, the court
asked whether “the parties are agreeing that [Jeffrey] would have
Saturday . . . . [¶] . . . [¶] . . . in the family residence,” and
Jeffrey’s counsel responded “[y]es.” The court indicated that this
visitation schedule was intended as an interim measure to “get
something in place” prior to the winter holidays and while Ashley
and Jeffrey were in the process of dividing and packing their
belongings and moving into new residences, and the schedule
would remain in place until a further hearing on February 25,
2020. The custody and visitation provisions of the DVRO
awarded sole legal and physical custody to Ashley, and visitation
every Saturday from 10:00 a.m. until 8:00 p.m. to Jeffrey.
Jeffrey filed a timely notice of appeal challenging the
December 2, 2019 order granting the DVRO.
CONTENTIONS
Jeffrey’s specific contentions on appeal appear to be that:
(1) the court showed bias in conducting its own direct
examination of Ashley, asking leading questions, and giving
undue weight to Ashley’s testimony while disregarding evidence
favorable to Jeffrey; (2) the court erred in allowing Ashley to
testify about other alleged instances of domestic violence not
included in her DVRO request; (3) the court erred in excluding
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police reports regarding prior incidents from evidence; 3 (4) the
order granting the DVRO was not supported by substantial
evidence; and (5) the court’s order awarding sole custody to
Ashley violates the Family Code section 3044 presumption
against awarding child custody to the primary aggressor in a
domestic violence case.
DISCUSSION
I. The Domestic Violence Prevention Act (DVPA)
The DVPA (Fam. Code, § 6200 et seq.) allows the court to
issue a protective order “ ‘ “to restrain any person for the purpose
of preventing a recurrence of domestic violence and ensuring a
period of separation of the persons involved” upon “reasonable
proof of a past act or acts of abuse.” ’ ” (In re Marriage of Davila
& Mejia (2018) 29 Cal.App.5th 220, 225 (Davila).) The DVPA
defines “ ‘abuse’ ” (§ 6203) to include, among other things,
“molesting, attacking, [or] striking” (§ 6320), or intentionally or
recklessly “caus[ing] or attempt[ing] to cause bodily injury”
(§ 6203, subd. (a)(1)) to a spouse or former spouse (§ 6211,
subd. (a)). “The DVPA requires a showing of past abuse by a
preponderance of the evidence,” for issuance of a DVRO. (Davila,
at p. 226.)
II. Standard of Review
We review an order granting or denying a DVRO for abuse
of discretion; in determining whether the trial court’s findings are
3 Jeffrey also claims that the court erred in excluding
evidence of Ashley’s 2017 misdemeanor conviction, but the record
shows that the court actually admitted evidence of this
conviction.
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supported by substantial evidence, we accept as true all evidence
supporting those findings and resolve every conflict in the
evidence in favor of the judgment. (Davila, supra, 29 Cal.App.5th
at p. 226; In re Marriage of Ankola (2020) 53 Cal.App.5th 369,
379.) Likewise, the trial court’s decisions regarding what
evidence to consider in deciding whether to issue a DVRO are
reviewed for abuse of discretion. (In re Marriage of F.M. & M.M.
(2021) 65 Cal.App.5th 106, 115.) The abuse of discretion
standard of review also applies to child custody and visitation
orders made as part of a DVRO. (Gonzalez v. Munoz, supra, 156
Cal.App.4th at p. 423.)
Extrinsic evidence corroborating a petitioner’s claims of
abuse is not required for issuance of a DVRO. “ ‘The testimony of
one witness, even that of a party, may constitute substantial
evidence’ ” supporting the issuance of a DVRO. (In re Marriage of
Ankola, supra, 53 Cal.App.5th at p. 380; In re Marriage of
Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 703; In re
Marriage of F.M. & M.M., supra, 65 Cal.App.5th at p. 119 [trial
court abused its discretion by denying DVRO due to lack of
corroborating evidence].) Determinations regarding the
credibility of witnesses “are the province of the trial court,”
especially when, as in this case, the trial court specifically “noted
that it had weighed the witnesses’ credibility.” (McCord v. Smith
(2020) 51 Cal.App.5th 358, 364.)
III. Active Role of the Trial Court in DVPA Cases
DVPA cases frequently involve one or more self-
represented litigants. (Ross v. Figueroa (2006) 139 Cal.App.4th
856, 861, fn. 3 [statewide study found that over 90 percent of
litigants in DVRO cases were self-represented].) This fact
“influences how these hearings should be conducted—with the
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judge necessarily expected to play a far more active role in
developing the facts, before then making the decision whether or
not to issue the requested permanent protective order. . . . the
judge cannot rely on the propria persona litigants to . . . ask all
the relevant questions of witnesses.” (Id. at p. 861, fn. omitted;
Gonzalez v. Munoz, supra, 156 Cal.App.4th at p. 420.) Courts
must be mindful of the vulnerability of the parties in DVPA
cases, and the strong public policy interest in ensuring the safety
of children and families, and in “ ‘ “ensur[ing] fair, expeditious,
and accessible justice for litigants in these critical cases.” ’ ”
(Gonzalez, at p. 420, fn. 3.)
IV. The Trial Court Did Not Abuse Its Discretion in
Granting the DVRO
Jeffrey contends that the trial court showed bias and
abused its discretion by conducting a direct examination of
Ashley, rather than merely “asking [her] to make her case.”
Based on our review of the record, however, we conclude that the
trial court’s actions were well within the boundaries of its proper
role, in the context of a DVPA action where the party seeking a
restraining order was appearing pro se and the opposing party
was represented by counsel. (Ross v. Figueroa, supra, 139
Cal.App.4th at p. 861.) The court’s questions were directly
relevant, phrased in a neutral manner, and nonleading, first
eliciting the details of the November 4 incident and then asking if
there were any other incidents Ashley wanted the court to be
aware of.
Jeffrey’s counsel also objected to the court eliciting
testimony from Ashley about incidents not contained in her
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DVRO request.4 This was not an abuse of discretion, however,
because courts may consider evidence beyond the specific
allegations contained in a DVRO application, in deciding whether
to grant a DVRO. (Davila, supra, 29 Cal.App.5th at p. 226.) The
trial court also did not abuse its discretion in excluding police
reports from evidence. As the court noted, these reports were
hearsay, and Jeffrey’s counsel did not call the preparers of the
reports as witnesses, nor argue for the applicability of any
exception to the hearsay rule.
The trial court also acted within its discretion in accepting
as true Ashley’s statement that she had pictures of her injuries
on her phone, without delaying and complicating the proceedings
by requiring Ashley to enter these photographs into evidence, a
daunting task for a pro. per. litigant. (See Ross v. Figueroa,
supra, 139 Cal.App.4th at p. 861 [judge cannot rely on pro. per.
litigants in DVPA cases to “know each of the procedural steps”].)
Finally, the trial court did not, as Jeffrey claims, fail to consider
his evidence. It is clear from the trial court’s statement of
decision that it did consider Jeffrey’s testimony that he acted in
self-defense, the fact that Ashley had been the primary aggressor
in prior incidents, and other evidence in Jeffrey’s favor—but on
balance, found that Ashley’s version of the November 4 incident
was more credible, and the preponderance of the evidence favored
granting the DVRO.
4Jeffrey did not include Ashley’s request for domestic
violence restraining order in his designation of the record on
appeal. Leaving aside the question whether this contention was
waived by failure to procure an adequate record, we reject it as
meritless.
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Viewing all the evidence in the light most favorable to the
trial court’s judgment (Davila, supra, 29 Cal.App.5th at p. 226),
we find no abuse of discretion in the trial court’s manner of
conducting the hearing, its evidentiary rulings, or its conclusion
that Ashley had met her burden of proof for issuance of a DVRO.
Jeffrey also contends that the court abused its discretion in
granting sole custody to Ashley, and providing him only with
weekly visitation, in violation of Family Code section 3044. This
statute creates a rebuttable presumption against granting sole or
joint custody to a perpetrator of domestic violence. (Fam. Code,
§ 3044, subd. (a) [“there is a rebuttable presumption that an
award of sole or joint physical or legal custody of a child to a
person who has perpetrated domestic violence is detrimental to
the best interest of the child”].) First, it is not clear that this
issue was preserved for appeal. Although Jeffrey’s counsel
initially stated that he wanted “alternate weeks”—i.e. joint
physical custody—when the court later asked if “the parties are
agreeing that [Jeffrey] would have Saturday” visitation, Jeffrey’s
counsel responded in the affirmative, and made no argument that
awarding sole or primary custody to Ashley would violate section
3044.
Even if the issue was not forfeited, the custody and
visitation provisions of the DVRO are supported by substantial
evidence and are not an abuse of the trial court’s discretion.
(Gonzalez v. Munoz, supra, 156 Cal.App.4th at p. 423.) Based on
its credibility determinations and overall weighing of the
evidence, the trial court found that Jeffrey, not Ashley, had
committed an act of abuse in the November 4, 2019 incident, and
granted a DVRO against him. (See Fam. Code, § 3044, subd. (c)
[a person has “ ‘perpetrated domestic violence’ ” if found by the
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court to have committed any act of “abuse” as defined by the
DVPA].) Although Ashley had also, in 2017, perpetrated
domestic violence, it is clearly within the court’s discretion to
award sole or primary custody to the party who was the victim,
not the perpetrator, of a much more recent incident of domestic
violence.
For the reasons stated above, we conclude that the order
granting the DVRO and awarding sole custody to Ashley and
weekly visitation to Jeffrey was not an abuse of discretion.
DISPOSITION
The December 2, 2019 order is affirmed. Jeffrey M. Inada
shall bear his own costs on appeal.
NOT TO BE PUBLISHED.
MATTHEWS, J.*
We concur:
EDMON, P. J.
LAVIN, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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