G.M. v. H.D. CA4/1 ( 2023 )

Filed 6/20/23 G.M. v. H.D. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
G.M., D079567
Plaintiff and Respondent,
v. (Super. Ct. No. ED96442)
H.D.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County, Saba
Sheibani and Wendy M. Behan, Judges. Affirmed.
J.M., in pro. per., on behalf of Appellant.
H.D., in pro. per., on behalf of Respondent.
H.D. (Mother) and J.M.1 (Father) share minor child (G.M.). In
May 2021, Mother filed a request for a Domestic Violence Restraining Order
(DVRO) against Father. Following a half-day evidentiary hearing, the court
granted a two-year DVRO. The court awarded Mother primary legal and
1 Appellant is referred to as both G.M. and J.M. in the court records and
his name appears as J.M. in the appellant’s briefs and notice of appeal.
physical custody and ordered visitation for Father. Father moved to set aside
the order, and the court denied the request.
Father appeals two orders: a July 16, 2021 issuance of a two-year
DVRO and custody order, and a September 14, 2021 order declining to set
aside the July 16 orders. Father’s primary focus on appeal is the court’s
issuance of the DVRO. He contends the court abused its discretion by
(1) admitting improperly lodged “fake documents,” (2) considering Father’s
act of hitting a minor in 2015, and (3) considering video evidence that was
recorded in violation of Father’s right to privacy. Father also mentions in his
statement of facts that the court failed to inform Father of Family Code2
section 3044, subdivision (h), and it did not allow Father to respond to the
section 3044 presumption that an award of custody to Father was
detrimental to G.M.’s interests before making a custody determination. We
conclude the court did not abuse its discretion, and we affirm.
BACKGROUND AND PROCEDURAL FACTS
Mother and Father share one minor child, G.M., who was born in June
2014. Mother also has a 25-year-old daughter (Daughter) from a previous
relationship who does not reside with Mother, and a 14-year-old son from
another relationship who lives with Mother.
Mother filed a request for order regarding custody of G.M., seeking a
move-away order. In his responsive declaration, Father wrote that G.M.
would have the best opportunity with him. Father also expressed concern
about Mother’s relationship with Daughter, stating they are abusive to each
other.
Family Court Services supplied a report, dated March 16, 2021, in
which it recommended the parents share joint legal custody. Based on
2 Statutory references are to the Family Code unless otherwise specified.
2
Mother’s intention to move out of state, the report recommended that Father
have primary physical custody of G.M. It recommended that G.M. have no
contact with Daughter unless mutually agreed upon by the parents.
At the March 29, 2021 custody hearing, the court explained that
Mother filed a lodgment, but it had not looked at the documents. The parties
indicated that thus far they shared joint physical custody, and they arranged
parenting time as mutually agreed. At the time of the hearing, G.M. stayed
with Father during the week because Father enrolled G.M. in a school one
hour from Mother’s home, where G.M. could attend school in person instead
of online.3 The court set a full day evidentiary hearing for May 26 to address
Mother’s move-away request. The parties stipulated to interim custody
orders.
On May 12, 2021, Mother filed for and received a temporary restraining
order against Father. The restraining order hearing was set for May 27,
2021.
On May 26, 2021, Father’s attorney told the court the restraining order
should be litigated before the court determined custody because of the
presumption required by section 3044. Mother told the court she was no
longer requesting a move-away order; the court explained it still needed to
address custody and visitation, as well as the request for a DVRO. The court
told the parties it would not order joint physical custody because of the
distance between parents; physical custody would revolve around the child’s
school. The court continued the matter to July 16, 2021 for a half-day
evidentiary hearing on the restraining order.
3 The elementary school near Mother was closed to in-person learning;
students attended virtually.
3
Mother filed a supplemental declaration in support of the request for
DVRO. In it, she reported that on May 10, 2021, during a custody exchange
at Father’s property, she parked next to Father’s home in a church lot. She
heard Father ask G.M. what he did over the weekend. Mother began filming
Father’s interaction with G.M. on her phone, and Father told her to put away
the phone or he would “shove it up [her] ass.” Father approached Mother’s
vehicle with son’s baseball bag containing bats, and Father grabbed Mother’s
wrist and pulled it toward him. Father told Mother he would soon be taking
care of G.M. full time and began to walk away. Mother filed a request for a
DVRO.
Mother visited a doctor two days later because her wrist hurt, and she
was given a splint. After the temporary restraining order (TRO) issued,
Father sent Mother an email complaining about the TRO.
On June 13, 2021, Mother messaged Father through a program called
Talking Parents to let Father know G.M. was cursing and using racial slurs
after a recent visitation. Father accused Mother of fraudulently filing the
restraining order at Mother’s partner’s request. Father also informed Mother
that he instructed G.M. to call police if something seemed like it was not
right, and Father would do a check-up or have the sheriff follow up.
On June 17, 2021, Father sent Mother a message that she was unsafe
and unfit, and he would make sure the judge figured her out. On the phone
that night, Father asked G.M. if Daughter or Mother’s partner had been to
Mother’s home, and when G.M. answered in the negative, Father told G.M.
that Father would spank him if G.M. was lying.
Mother reported that Father grabbed G.M. by the collar on June 27,
2021 and threatened to spank G.M. if G.M. did not tell the truth about what
occurred during Mother’s parenting time.
4
On July 16, 2021, the parties were represented by counsel at the
evidentiary hearing. The court admitted Mother’s request for a DVRO, her
declaration, and her supplemental declaration. Father’s attorney objected to
the admission of the video Mother recorded on May 10, arguing Father had
an expectation of privacy because the video occurred while Father stood in his
yard and had demanded Mother stop recording. The court overruled the
objection because it found the recording was not of a confidential
communication, and it played the video and admitted it into evidence.4
The court also admitted a police report regarding the May 10 incident.
The report indicated Mother had no visible injuries. The court also admitted
several text exchanges and emails.5 Mother also filed a police report
regarding Father’s messages. Father’s attorney objected to the admission of
that report as hearsay. The court partially sustained the objection, excluding
statements Mother made to police but admitting the peace officer’s
observations.
Mother testified that in 2015 Father punched then-17-year-old
Daughter in the face. She said Child Welfare Services found substantiation
for physical abuse. She also testified that Daughter tried to poison G.M. by
putting bleach in his food while he was in Mother’s care and that Daughter
was arrested in 2019, when she was 21 or 22, for attacking a first responder.
Mother offered to supervise visits between Daughter and G.M.
Mother acknowledged G.M. did better attending school in person than
online. When Father’s attorney asked Mother about G.M.’s grades, the court
asked its relevance. Father’s attorney explained it related to child custody,
4 The exhibits are not in the appellate record.
5 This included messages marked as Exhibit K.
5
and the court said it did not have time; if it issued the restraining order, then
it would get into custody issues. The attorney explained there was still an
issue of rebutting the section 3044 presumption, and the court said it did not
have time unless everyone wanted to return in January.
Father testified that Mother dropped off G.M near the front of his
home. Father asked G.M. how his visit with Mother was, and Mother began
video recording. When Father asked Mother to put away her phone and said
if she did not, he would “shove it up her ass,” he was laughing because he was
trying to be funny and nice. Father denied grabbing Mother’s wrist and
testified he remained three or four feet away from her car door.
Father also testified that he believed Mother’s partner had convinced
her to fabricate the incident to request the restraining order. He testified
that a text message to Mother referencing “[partner]’s choke support” was a
typo because he used a voice text; it should have said “child support.” Father
testified that his message “I hope you’re ready to die. A little dose of your
own medicine” was a typo because he meant he hoped Mother would get a
dose of what she had been doing to him.
Father admitted to hitting Daughter in 2015 and explained he did so in
reaction to her attacking him and scratching him. He also admitted that he
told G.M. that if G.M. did not tell the truth, Father would spank G.M., but he
denied grabbing G.M. by the collar.
Father testified that Daughter poisoned G.M. in 2015. He believed
Mother did not have control over Daughter and worried she would cause
harm to G.M. if she were permitted to be around him.
During closing arguments, Mother’s attorney requested a five-year
restraining order, and he argued a preponderance of evidence showed it was
more likely than not that domestic violence had occurred because Father had
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been threatening and harassing Mother and repeatedly violated the TRO.
Mother also requested sole legal custody and primary physical custody, with
visitation for Father on the weekends, as well as contact between Daughter
and G.M., at least online or digitally.
Father’s attorney argued Mother instigated the May 10 interaction,
that Father’s comments were jokes because he was laughing, that the video
did not show Father grabbing Mother’s wrist, and that the police report did
not reference any visible injuries. Father wanted primary physical custody so
G.M. could remain in his current school where he was doing well and had
friends.
The court found Mother met her burden of proof. It explained she
testified to the abuse and admitted evidence corroborating her testimony. It
also found that Father violated the TRO several times with messages that
violated its terms, and those could separately form the basis for a permanent
DVRO. The court indicated the video clearly showed Father grabbing
Mother’s wrist based on Mother’s statements on the recording and the
camera’s movement. It did not find Father’s testimony to be credible, and it
did not think Father’s comment about shoving the phone up Mother’s ass was
a joke. The court found, based on the totality of the evidence, that Mother
met her burden. It granted the DVRO for two years, setting it to expire
July 16, 2023.
The court found section 3044 applied based on its finding of abuse, and
it found that Father had failed to rebut the presumption. The court also
commented that Father had acted in anger and found it was not in G.M.’s
best interest to be in Father’s primary care. The court found that there
would be stability and continuity with Mother because there were significant
periods when Mother was the primary caregiver and noted that G.M. had
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been staying with Father only because the school there was open for in-
person learning. The court did not hold it against Mother that G.M., who was
only five or six during the school year, was having trouble learning online.
The court modified the recommendations in the March 16, 2021 Family
Court Services report based on its finding of abuse and issuance of a
restraining order. It awarded sole legal custody to Mother and primary
physical custody to Mother. It assigned the first, second, fourth, and fifth
weekends of the month to Father for visitation, and it denied Mother’s
request for contact between Daughter and G.M.
On July 23, 2021, Father filed a motion to set aside the July 16 order
and filed a request for order for joint legal custody and primary physical
custody, as well as an abduction prevention order. He also requested Mother
pay child support. Father argued his attorney was not prepared for the
restraining order hearing, and there was evidence to rebut Mother’s
allegations that was not submitted.
Mother opposed Father’s requests and submitted a declaration that
Father was continuing to harass her. She argued there was no evidence of
inadequate representation, and Father did not claim to have new evidence
that was previously unavailable.
At the hearing in September 2021, a different judicial officer presided
than the one who issued the DVRO. Both parties were self-represented.
Father argued there was excusable neglect because he was unable to meet
with his attorneys in person due to Covid-19 restrictions, and as a result, he
was surprised by the evidence Mother presented at the hearing. He also
contended that Mother lodged documents without him or his attorney
knowing what was lodged but admitted he could not speak to specifics. He
further argued the court did not comply with section 3044, subdivision (h) or
8
inform him of that section. He told the court he did not understand he could
lose custody as a result of the section 3044 presumption. He also argued the
court should not have admitted the video because it violated “Evidence Code”
section 632.6 He told the court the video had been edited and said he could
present new evidence because the sheriff would testify on his behalf about the
May 10 incident.
The court noted the evidentiary hearing took three hours during which
both parties were represented by counsel and had an opportunity to present
evidence and cross-examine witnesses. It noted the DVRO was issued based
on multiple pieces of evidence, including Mother’s testimony and physical
exhibits corroborating it. It also explained that the sheriff’s testimony would
not be new evidence because Father was aware of the sheriff and chose not to
call him to testify. The court denied the motion to set aside the order. The
court also made child support orders.
Father timely appealed.
DISCUSSION
A. Presumption of Correctness and Appellant’s Burden
An appellant’s status as a pro. per. litigant does not exempt him or her
from the rules of appellate procedure or relieve the burden on appeal.
(Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.) We treat pro. per.
litigants like any other party, affording them “ ‘the same, but no greater
consideration than other litigants and attorney.’ ” (Ibid.) A judgment is
presumed correct on appeal, and it is the appellant’s burden, whether
6 Father referenced the code section as Evidence Code section 632.
However, that section of the Evidence Code regards presumptions affecting
the burden of producing evidence. Penal Code section 632 addresses the
admission of a recording of a confidential communication in a judicial
proceeding.
9
proceeding in pro. per. or represented by counsel to “affirmatively
demonstrate prejudicial error.” (People v. Garza (2005) 35 Cal.4th 866, 881.)
“Appellate briefs must provide argument and legal authority for the positions
taken. ‘When 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 waived. [Citations.]’ ” (Nelson v. Avondale Homeowners Assn. (2009)
172 Cal.App.4th 857, 862 (Nelson); see In re Marriage of Falcone & Fyke
(2008) 164 Cal.App.4th 814, 830 (Falcone & Fyke) [“We are not bound to
develop appellants’ arguments for them. [Citation.] The absence of cogent
legal argument or citation to authority allows this court to treat the
contention as waived”]; Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384
(Dabney) [court disregards argument for which no authority is furnished].)
B. Standard of Review
We review the admissibility of evidence for an abuse of discretion.
(Evid. Code, § 310; People v. Waidla (2000) 22 Cal.4th 690, 717 [“Broadly
speaking, an appellate court applies the abuse of discretion standard of
review to any ruling by a trial court on the admissibility of evidence”];
People v. Hall (2010) 187 Cal.App.4th 282, 294.) “A ruling that constitutes an
abuse of discretion has been described as one that is ‘so irrational or
arbitrary that no reasonable person could agree with it.’ ” (Sargon
Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747,
773 (Sargon Enterprises), quoting People v. Carmony (2004) 33 Cal.4th 367,
377.) Additionally, an “ ‘[a]ction that transgresses the confines of the
applicable principles of law is outside the scope of discretion and we call such
action an “abuse” of discretion.’ [Citation.]” (Horsford v. Board of Trustees of
California State University (2005) 132 Cal.App.4th 359, 393 (Horsford).)
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C. Challenges to Admission of Lodged Documents
Father contends the court abused its discretion by allowing the
“improper lodgment of fake documents” on the day of the hearings and argues
that absent the lodged documents, there would have been no evidence to
support the domestic violence claims. Father comments in his opening brief
that “[m]any of the documents lodged on the day of this hearing were very
damming, because they were fake, altered, re-sequenced, and clipped text
messages, and they should never have been allowed into evidence. . . .”
Father references a “hearsay police report.” However, Father does not
explain which police report he references. His attorney did not object to the
admission of the police report detailing the events of May 10, so he has
forfeited any challenge to it. (People v. Booker (2011) 51 Cal.4th 141, 170
(Booker) [failure to timely object forfeits claim]; People v. Davis (2008) 168
Cal.App.4th 617, 627 (Davis) [timely and specific objection generally
required]; Evid. Code § 353, subd. (a).) The court limited the admissibility of
the second police report addressing Father’s harassing messages to the peace
officer’s observations. Father does not explain why the court abused its
discretion by admitting this evidence; nor does he explain how he suffered
prejudice as a result. We also note that Father’s attorney relied on the
May 10 police report in his closing statement, arguing that the police report
did not reference any visible injury.
Father also references Exhibit K, a series of messages that he and
Mother exchanged between June 11 and 14. Again, Father does not explain
why it was error for the court to admit this evidence. He indicates that the
evidence was somehow modified, but nothing in the record supports such an
allegation. Mother’s attorney commented that the font was small; however,
nothing suggests the text was illegible, and Father’s attorney did not object to
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its admission. Thus, any challenge to this evidence is forfeited. (See Booker,
supra, 51 Cal.4th at p. 170.) Father also does not explain why he believes the
messages were falsified or otherwise explain why it was an abuse of
discretion to admit this exhibit.
Finally, Father does not contend his attorney did not receive the
documents by July 6, as part of the evidence exchange in advance of the
hearing. Nor does he explain why he believes they were fake or altered. He
also does not supply any evidence to support those allegations. In other
words, he does not carry his burden of demonstrating the admission of
evidence at the hearing was an abuse of discretion.
D. Challenge to Consideration of Allegations of Abuse Against Daughter
Father contends that allegations of abuse against Daughter are
hearsay, and they should not have been considered to support the issuance of
a DVRO.7
Evidence Code section 1200 defines hearsay as a statement made by
someone other than the witness testifying and offered to prove the substance
of the matter asserted in the statement. Unless an exception applies,
hearsay is not admissible. (Evid. Code, § 1200, subd. (b).)
The evidence of which Father complains is not hearsay because it is not
testimony regarding a statement made outside of court. Mother testified that
Father punched Daughter in the face in 2015, when Daughter was 17.
Mother testified to Father’s conduct, which she observed. Moreover, Father
admitted he hit daughter because she was scratching him and attacking him,
and he reacted to that. This also was not hearsay because Father testified to
7 Father did not object to the admission of this testimony at trial; thus,
the challenge was forfeited. (Booker, supra, 51 Cal.4th at p. 170; Davis,
supra, 168 Cal.App.4th at p. 627; Evid. Code § 353, subd. (a).)
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his conduct, not something said outside of court. The court did not abuse
discretion by admitting this non-hearsay evidence.
Additionally, the court did not base its decision to issue the DVRO on
the 2015 incident between Father and Daughter. Instead, the court pointed
to Mother’s testimony regarding the May 10 incident with Father, the police
report that corroborates what occurred that day, and the threatening
messages Father sent Mother in violation of the TRO as support for issuing
the DVRO.
E. Challenge to Admission of Video Evidence
Father contends the court abused discretion by admitting video
evidence because the recording constituted common law invasion of privacy
and violated Penal Code section 632.8
A privacy violation based on the common law tort of intrusion is a
private cause of action that should be raised in a civil lawsuit, not as an
objection to the introduction of evidence. (See, e.g., Hernandez v. Hillsides,
Inc. (2009) 47 Cal.4th 272, 286.) The intrusion cause of action has two
elements: “[T]he defendant must intentionally intrude into a place,
conversation, or matter as to which the plaintiff has a reasonable expectation
of privacy. Second the intrusion must occur in a manner highly offensive to a
reasonable person. [Citations.]” (Ibid.) Father addresses these elements in
his briefs. However, this tort liability is separate from the issue of whether
the evidence is admissible.
Father also mentions “632” to argue that he has a reasonable right to
privacy, and Mother’s video recording of him in his yard violated that
privacy. Penal Code section 632 describes the crime of invasion of privacy,
8 Father does not identify the code section under which he contends there
was an invasion of privacy, referencing only “632.”
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which occurs when a person records a confidential communication without
the consent of all parties. (Pen. Code, § 632, subd. (a).) It prohibits using in
any judicial proceeding evidence obtained through the recording of a
confidential communication in violation of Penal Code section 632, except as
proof of violating Penal Code section 632. (Id., subd. (d).) Its definition of
“confidential communication” excludes “a communication made . . . in
any . . . circumstance in which the parties to the communication may
reasonably expect that the communication may be overheard or recorded.”
(Id., subd. (c).) The standard for confidentiality is whether there is “an
objectively reasonable expectation that the conversation is not being
overheard or recorded.” (Flanagan v. Flanagan (2002) 27 Cal.4th 766, 777
(Flanagan).)
To demonstrate the court abused discretion by admitting the video
evidence, Father must show the communication was a confidential
communication. Father does not explain why there is an objectively
reasonable expectation that the conversation would not be overheard or
recorded. Father could see Mother recording him before he told her to shove
the phone up her ass and before he approached her vehicle; thus, there was
no reason his interaction with her would not be overheard or recorded. (See
Flanagan, supra, 27 Cal.4th at p. 777.) The trial court’s conclusion that the
video did not contain a confidential communication was not an abuse of
discretion. It did not “ ‘transgress the confines of the applicable principles of
law’ ” (Horsford, supra, 132 Cal.App.4th at p. 393) and was not otherwise
irrational or arbitrary such that “ ‘no reasonable person could agree with it.’ ”
(Sargon Enterprises, supra, 55 Cal.4th at p. 773.)
Even had the court abused its discretion by admitting the video
evidence, Father does not identify any resulting prejudice. The court did not
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rely solely on the video evidence to determine Mother had demonstrated via a
preponderance of the evidence that Father committed domestic abuse. The
court found Father lacked credibility. It explained that Mother’s testimony
as to what occurred was itself sufficient to support the restraining order, and
it further found that additional documentary evidence corroborated Mother’s
testimony. Thus, even had the court declined to consider the video evidence,
the outcome here would not have been different.
F. Family Code Section 3044
Father mentions in his statement of facts that the court failed to
comply with section 3044 subdivision (h) and did not permit him to rebut the
presumption against custody outlined in section 3044, subdivision (a).
Despite the passing reference to these issues, Father does not develop an
argument about the impact of these alleged errors. He does not incorporate
information about these events into his arguments. His appeal focuses on
why he contends the court improperly issued the DVRO, not why the
subsequent custody order was improper. It is not our place to develop an
appellant’s arguments. (Falcone & Fyke, supra, 164 Cal.App.4th at p. 830.)
The failure to make reasoned argument or to cite any authority about these
issues waives them. (Nelson, supra, 172 Cal.App.4th at p. 862; Dabney,
supra, 104 Cal.App.4th at p. 384.)
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DISPOSITION
The orders are affirmed. Parties to bear their own costs on appeal.
HUFFMAN, Acting P. J.
WE CONCUR:
O’ROURKE, J.
BUCHANAN, J.
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