Marriage of Baird and De La Cruz CA3 ( 2022 )

Filed 7/22/22 Marriage of Baird and De La Cruz CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
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In re the Marriage of CHRISTIAN WILLIAM C093140
BAIRD and SUANNY ZUGERLE DE LA CRUZ.
CHRISTIAN WILLIAM BAIRD, (Super. Ct. No. 20FL00688)
Appellant,
v.
SUANNY ZUGERLE DE LA CRUZ,
Respondent.
At the conclusion of a September 2020 hearing, the court commissioner ruled
there was insufficient evidence to issue a domestic violence restraining order (DVRO)
against Suanny Zugerle De La Cruz (Wife). Appellant Christian William Baird
(Husband) appeals, arguing the commissioner abused his discretion as an evidentiary
matter, and “effectively denied” Husband due process by “refus[ing] to take evidence”
before denying the DVRO. Husband appeals without a reporter’s transcript, agreed
statement, or settled statement of the relevant hearing.
Given the limited record on appeal, we find no error and affirm.
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FACTS AND HISTORY OF THE PROCEEDINGS
On January 23, 2020, Husband filed a request for a DVRO against Wife and
obtained a temporary restraining order (TRO) against her. In narrative portions of his
pleading requesting a DVRO (and signed under penalty of perjury) Husband claimed
that—a few days earlier—Wife was “angry, out of control, and in a rage” when she:
(a) “threatened to leave with [the] children,” (b) demanded Husband “[g]ive her money or
else [he] w[ould] be very sorry,” and (c) “[t]hrew objects at [him],” including a “heavy
toy” and “a heavier electronic book,” which “cut” and “bruised” Husband’s knee. In
addition to bruising to his leg, Husband said he experienced “fear . . . anxiety . . . shock
. . . [and] sleep loss.”
In a responsive pleading, Wife explained that Husband “caused a discussion by
refusing to give [her] money for the week’s expenses . . . as he had promised.” This “was
the first time” the couple “had a discussion like that and it last[ed] less than [five]
minutes.” Furthermore, and due to three recent surgeries she had, Wife claimed she was
unable to “perform[ ] any situation of violence.” Wife did not deny that she threw
objects at Husband but insisted that she “never noticed that any of the baby’s toys hit
him.”
After a March 2020 court trial at which both Wife and Husband testified, and
Husband played in open court an audio recording of the parties’ altercation in January
2020, the commissioner ruled “the evidence [was] sufficient to continue in force the
[TRO] . . . to September 23, 2020 . . . .” (A transcript of the audio recording reflects that,
at one point during the altercation, Wife cursed at Husband and complained that he could
not “take care of anything. . . . When I go to the supermarket, I get more than $200.00
and you only give me $200 and something, and it’s not enough.”)
The same commissioner who presided in March 2020 presided in September 2020.
The “[p]arties participated . . . by Zoom,” and there was not a court reporter present. A
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document entitled “Findings and Order after Hearing,” which bears the commissioner’s
signature, records that after Wife and Husband testified, the commissioner
(1) “confirm[ed] that the [TRO] . . . expire[d]” on the day of the September 2020 hearing,
and (2) “f[ound] the evidence [was] insufficient to issue a [DVRO] [a]fter [h]earing.”
Husband timely appealed.
DISCUSSION
I
Background Legal Principles
A. Domestic Violence Prevention Act
The Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq;
further statutory references are to the Family Code) authorizes a court to “ ‘ “ ‘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.’ ” ’ [Citations.] Abuse includes ‘intentionally or recklessly caus[ing] or
attempt[ing] to cause bodily injury’; . . . ‘plac[ing] a person in reasonable apprehension
of imminent serious bodily injury to that person or to another’; and ‘engag[ing] in any
behavior that has been or could be enjoined’ under section 6320. (§ 6203, subd. (a).)
Behavior that may be enjoined under section 6320 . . . includes ‘disturbing the peace of
the other party’ (§ 6320, subd. (a)), which ‘may be properly understood as conduct that
destroys [another’s] mental or emotional calm.’ [Citation.] . . .
“The DVPA vests the court with discretion to issue a restraining order ‘simply on
the basis of an affidavit showing past abuse.’ [Citation.] The burden of proof is by a
preponderance of the evidence. [Citations.] The DVPA ‘confer[s] a discretion designed
to be exercised liberally, at least more liberally than a trial court’s discretion to restrain
civil harassment generally.’ [Citation.]
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“We review the [court ruling granting or denying] a DVPA restraining order for
abuse of discretion, and, to the extent we are called upon to review the court’s factual
findings, we apply the substantial evidence standard of review. [Citation.] In reviewing
the evidence, we examine the entire record to determine whether there is any substantial
evidence—contradicted or uncontradicted—to support the trial court’s findings.
[Citation.] We must accept as true all evidence supporting the trial court’s findings,
resolving every conflict in favor of the judgment.” (Curcio v. Pels (2020) 47 Cal.App.5th
1, 11-12 (Pels).)
But, and especially in light of the gravity of a DVRO (which is “no ordinary
injunction,” but mandates arrest “where an officer has probable cause to believe the order
has been violated,” and “attache[s]” a “social stigma” to the restrained party), it is
important to keep in mind that “[t]he DVPA was not enacted to address all disputes
between former couples, or to create an alternative forum for resolution of every dispute
between such individuals.” (Pels, supra, 47 Cal.App.5th at p. 13 & fn. 6 italics added.)
B. Relevant Appellate Review Principles
“ ‘[A] party challenging a judgment [or order] has the burden of showing
reversible error by an adequate record.’ [Citation.] ‘ “A judgment or order of the lower
court is presumed correct. All intendments and presumptions are indulged to support it
on matters as to which the record is silent . . . .” ’ A proper record includes a reporter’s
transcript or a settled [or agreed] statement of any hearing leading to the order being
challenged on appeal. [Citations.]” (Elena S. v. Kroutik (2016) 247 Cal.App.4th 570,
574 (Elena S.).) “[O]n issues . . . involving the abuse of discretion standard of review, a
reporter’s transcript or an agreed or settled statement of the proceedings is
indispensable.” (Hood v. Gonzales (2019) 43 Cal.App.5th 57, 79, italics added; see Cal.
Rules of Court, rule 8.120,(b) [“If an appellant intends to raise any issue that requires
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consideration of the oral proceedings in the superior court, the record on appeal must
include a record of these oral proceedings”].)
The absence of a reporter’s transcript, agreed statement, or settled statement of the
hearings in this matter makes this a “judgment roll appeal.” (Allen v. Toten (1985)
172 Cal.App.3d 1079, 1082.)
When an appeal is on the judgment roll, we must conclusively presume evidence
was presented that is sufficient to support the trial court’s findings. (Ehrler v. Ehrler
(1981) 126 Cal.App.3d 147, 154.) Further, “[w]e presume that official duties have been
regularly performed. (Evid. Code, § 664.) This presumption applies to the actions of
trial judges.” (Elena S., supra, 247 Cal.App.4th at p. 575.) Our review is limited to
determining whether any error “appears on the face of the record.” (National Secretarial
Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521.) “[I]f 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.)
II
Analysis
Here, nothing on the face of the record indicates error by the commissioner.
Rather, the record reflects that at the September 2020 hearing, after both parties testified,
the trial court simply determined there was insufficient evidence for a DVRO. “In the
absence of a proper record, which would include either a reporter’s transcript [, agreed
statement,] or settled statement . . . we must presume the trial court acted properly.
Therefore, the judgment is correct and must be affirmed.” (Elena S., supra,
247 Cal.App.4th at p. 576.)
The same commissioner presided over the TRO hearing in March 2020 and the
DVRO hearing in September 2020. That commissioner found sufficient evidence in
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March to extend the TRO to September, but after hearing testimony from both parties in
September, determined the evidence was not sufficient for a DVRO. On this record, that
decision was not arbitrary.
Husband’s contention that the trial court abused its discretion “in finding that there
was insufficient evidence to issue a [DVRO]” after the September 2020 hearing,
necessarily fails. Similarly, Husband’s contentions that the trial court “failed to take any
evidence” and “refused to take evidence” at the September 2020 hearing are belied by the
record and does not rebut the presumption that official duties were regularly performed.
Husband’s representations on the matter, without citation to the record, are disregarded.
(See Tanguilig v. Valdez (2019) 36 Cal.App.5th 514, 520 [“we may disregard factual
contentions that are not supported by citations to the record [citation] or are based on
information that is outside the record”].)
DISPOSITION
The judgment (order) is affirmed.
HULL, Acting P. J.
We concur:
RENNER, J.
EARL, J.
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