Valdovinos v. Valdovinos CA2/7 ( 2024 )

Filed 2/14/24 Valdovinos v. Valdovinos CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
DIANA VALDOVINOS, B322636
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 21STRO07137)
v.
ISRAEL VALDOVINOS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Amy M. Pellman, Judge. Affirmed.
Gutierrez Law Firm and James P. Gutierrez for Plaintiff
and Respondent.
Ahrony Appeals Law Group and Orly Ahrony for Defendant
and Appellant.
________________________
INTRODUCTION
Israel Valdovinos appeals from a three-year domestic
violence restraining order issued against him protecting his
sister, Diana Valdovinos, and their mother, Eneyda Valdovinos.1
Israel contends substantial evidence does not support the
restraining order and the trial court denied him due process by
excluding evidence about Diana’s motive in seeking a restraining
order, erred in denying his motion to dismiss, and engaged in
judicial misconduct. We affirm because substantial evidence
supports the restraining order, and the trial court did not
otherwise err.
FACTUAL AND PROCEDURAL BACKGROUND
A. Diana’s Petition and Supplemental Declarations
Israel and Diana are siblings. Israel lives in Aurora,
Colorado, which has been his primary residence since 1998. He
has no intention of moving back to Los Angeles. Israel visits
Los Angeles to see their mother, Eneyda, who at the time of
Diana’s request for a domestic violence restraining order (DVRO)
was 85 years old and suffering from dementia. Diana has been
Eneyda’s caretaker since late 2020. Eneyda and Diana live on
the same property and at least part of the time in the same three-
bedroom unit, which is the family home where Israel and Diana
grew up. A roommate, Leonel Garcia, also lives in Eneyda’s unit.
Diana otherwise lives in a smaller unit approximately 20 feet
1 We refer to the parties’ first names to avoid confusion given
they share the same last name.
2
away from Eneyda’s unit (the side unit). Diana has lived on the
property her whole life. The property, a 10-unit building, is in a
trust established by Eneyda, of which Israel and Diana are
beneficiaries.
On November 15, 2021 Israel and his girlfriend showed up
unannounced to Eneyda’s home. Diana and Israel had not
spoken during the preceding year. Diana had blocked Israel from
her cell phone because she no longer wanted to receive text
messages from him after he sent her disparaging messages and
threatened to take control of the property and to force her out.
Israel moved into Eneyda’s unit, effectively displacing Diana, and
over the next several months, various confrontations between the
siblings formed the basis for the DVRO at issue in this appeal.
Approximately one month after Israel arrived in
Los Angeles, on December 20, 2021, Diana filed a Judicial
Council form DV-100 for a DVRO against Israel, seeking both a
stay-away order and a move-out order. Diana described Israel’s
“ongoing” abuse, including his refusal to give Eneyda her daily
medications; sending Diana “menacing messages”; calling her
“‘good for nothing’”; and taking a mattress from her room and
placing it on top of her vehicle “sending the message to ‘MOVE
OUT.’”2 Diana described her injuries as “[e]motional
[d]istress/[p]possible homelessness.” Diana also described an
incident on November 15, 2021 in which Israel “used his person
to push me.” Diana attached, among other things, photos of
2 At the hearing for the DVRO, Diana conceded on cross-
examination that the mattress Israel placed on top of her car was
not taken from her bedroom; rather, the mattress was already
outside by her car.
3
bruises on her arm and of an incident between herself and Israel
inside of Eneyda’s unit, which appeared to show Eneyda and an
unidentified woman trying to stop the altercation.3 The form was
signed by Diana and her counsel, though both signatures
appeared to be the signed initials of her counsel, “J.G.”
On December 21, 2021 the trial court granted Diana a
temporary restraining order, including personal conduct and
stay-away orders. The court set a hearing for January 11, 2022,
which was continued to February 3, 2022. On February 3, the
court granted Diana’s requests to amend the temporary
restraining order to add Eneyda as a protected person and to
grant a move-out order.
In February and April 2022, Diana filed supplemental
declarations signed under penalty of perjury in support of a
permanent restraining order. Diana explained that when she
arrived on February 11 to serve Israel with the move-out order,
he refused to grant her access to the property. When she drove in
front of the property the next day, Israel followed her in his car
while honking his horn and yelling at her. Diana disclosed that
Israel had filed a petition for a conservatorship over Eneyda.
Diana explained she had cameras installed on the property
because she feared for her safety and attached evidence that the
mailing addresses for herself and Eneyda had been changed to
Israel’s home in Colorado, including statements from the bank.
On June 3, 2022 Diana filed a witness list, an exhibit list,
and a supplemental declaration signed under penalty of perjury.
3 Based on Diana’s testimony at the hearing, it appears this
photograph depicted an incident that took place on November 16,
2021, not November 15.
4
She filed an amended witness list and declaration on June 6.
Diana stated that Israel had refused to give medication to
Eneyda and that he “attempted to kill our mother by kicking me
out and not allowing me to properly care for her.” Israel, who
was also represented by counsel, did not file any written
responses or pre-hearing documents.
B. June 7, 2022 Hearing and DVRO
1. Diana’s testimony
Diana testified in person. She explained that she took care
of Eneyda and helped manage the 10-unit building where she and
Eneyda resided, for which she paid Diana $1,000 per month. On
November 15, 2021 Israel and his girlfriend arrived at Eneyda’s
home. When Diana arrived home, she went upstairs. Diana’s
cousin from Nicaragua called, explaining that his mother was
trying to reach Eneyda. Diana went downstairs to give Eneyda
her cellphone. When she attempted to hand Eneyda the
cellphone, Israel tried to snatch it from her hands. Diana began
walking backwards when Israel pushed her, and she fell to the
floor. Israel picked her up by the back of her sweater and threw
her against a table, telling her to get out of the house and that it
was his house. Eneyda was next to Diana when this happened.
A neighbor called the police after hearing Diana’s screams. The
police arrived and instructed Israel to leave. No arrest was
made. Diana went to her side unit because she did not feel safe.
Diana submitted pictures taken on November 17 showing bruises
on her arms she testified were caused by Israel.
When Diana returned the next afternoon to give Eneyda
her lunch and medication, Israel grabbed Diana’s arm, “wrapped
it around a post” and used his body to press on her arm, causing
5
Diana to tear a ligament in her thumb. Israel’s girlfriend and
Garcia also were present. Garcia took photos of the incident,
which the trial court admitted into evidence. Hearing Diana’s
screams, a neighbor called the police. The police arrived, but no
arrests were made.
After this incident, Diana retreated to the side unit and
would go to Eneyda’s unit only when Israel was not there. This
went on until approximately mid-December 2021, when Diana
left the property to stay at a friend’s house. Diana, accompanied
by the police, returned to the property on December 29, 2021.
She was able to use her key to unlock the door to Eneyda’s unit.
Israel came outside, began arguing with the police, and asked
them to leave. Diana decided to leave. She returned with the
police the next day, but she was unable to open the door to the
home because Israel had changed the locks. Once Diana was able
to get inside, she observed the bedroom doors had been removed
and the front door had been boarded up. Diana found Eneyda,
and they left the unit together.
In mid-February 2022 Diana and the police showed up to
serve Israel with the move-out order. Later, when Diana
returned to move back into the property, she pulled up to the
property when Israel “came out of nowhere” in his car. Diana
drove to the corner, and at the stop sign she observed “a white car
behind me that started honking the horn really fast.” Diana
made a right turn and Israel followed, pulling up next to her car
and “yelling and cussing” at her. Diana drove to the police
station, where she had a panic attack. She was informed that the
police were at the property, so she returned to the property.
Israel was not there. To enter the property, the police had to
break in through a window. The unit was not in livable condition
6
because there were electrical wires hanging from the ceiling, no
light in Eneyda’s bedroom, and the front door remained boarded
up. Diana and Eneyda moved back into the property in late
February. By that time, they had been living in hotels for
approximately two months.
2. Exclusion of Diana’s financial motives
On cross-examination, Israel’s counsel attempted to ask
Diana about the last time she worked outside the home. Before
counsel could finish asking the question, the trial court cut her off
stating, “Completely irrelevant.” Counsel explained it went to
“financial motive,” to which the court responded, “No. This is a
restraining order, counsel.” The court went on to say, “So your
client who did not file a response is now bringing up issues of
financial. Okay. What he needs to do is he needs to respond to
these allegations of assault and harassment. So a financial
reason for assault and harassment is not going to help this court
make a decision.” Counsel attempted to explain that it was “not
a financial reason for harassment” and that Diana “has a
significant financial interest in the estate property. So it goes
to—”; the court again cut off counsel and stated, “Irrelevant. So
go on.”
Israel’s counsel also tried to explain that the California
Rules of Court did not require Israel to file a written response to
Diana’s request for a DVRO. The trial court clarified, “I’m not
saying that he doesn’t [sic] have to, okay, but usually, counsel,
when people have counsel, they file a response so that the other
counsel knows what their response is, and the court knows.”
Israel’s counsel responded, “Your Honor, you’re not saying that
he has to, but you’ve already indicated several times that you
7
would be limiting his testimony.”4 The court explained, “I didn’t
say I was limiting his testimony. I said I might limit other
witnesses’s [sic] testimony just like I would limit petitioner’s
testimony if I don’t find those witnesses relevant. I’m treating
your client exactly the same as I’m going to treat the petitioner
here.”
3. Denial of Israel’s motion to dismiss
On cross-examination, Diana testified that she had never
read the DV-100 form, it was not her signature on the form, she
had no recollection of anybody reading the petition to her, and
she did not give her attorney authorization to sign the form on
her behalf. Israel’s counsel moved to dismiss on this basis.
Diana’s counsel conceded that there were “some errors” on the
form, but that Diana’s testimony was mostly consistent with the
information contained on the form and in her supporting
declarations. The trial court denied the motion finding most of
Diana’s testimony had been consistent with her form and
4 At the beginning of the hearing, the trial court commented
to Israel’s counsel, “You did not file a response. So the court can
very much limit your response. Maybe there will be a restraining
order against you; maybe there won’t be.” After Israel’s counsel
disclosed two witnesses, Israel and his girlfriend, the court
remarked, “Well, I don’t know if I’m going to allow your witnesses
and whether or not they are percipient witnesses or not.” The
court then chastised Israel’s counsel for failing to file a written
response or any prehearing documents. With regard to Diana’s
proposed witnesses, which included Israel’s two daughters, the
court indicated its doubt that their testimony would be relevant.
The court ultimately received extensive testimony from Diana
and Israel, and no other witnesses.
8
declarations, and that although “petitioner does not remember
signing the document . . . that doesn’t necessarily mean that a
restraining order should not be granted.” Israel’s counsel
clarified that Diana’s testimony was not that she could not
remember, but that she neither signed the form nor authorized
her attorney to sign on her behalf.
The trial court followed up with a series of questions posed
to Diana about whether she wanted her attorney to file a
restraining order on her behalf, whether she asked her attorney
to do that for her, whether she paid her attorney to file the
paperwork, and whether she was telling the truth. Diana
responded yes to all the questions. However, the court then
asked Diana if anyone ever asked her if it was okay if they signed
her name, and she stated, “No one ever asked me if they could
sign my name.” She also responded “no” when the court asked
her if she would be okay with her attorney signing her name.
The court then asked Diana if she wanted to withdraw her
request for a restraining order, to which Diana responded, “No.”
The court suggested Diana confer with her attorney “[b]ecause I
certainly get the sense that you’re not understanding
everything.” After consulting with her attorney, Diana testified
that she authorized her attorney to sign on her behalf and that
she trusted him. Diana also explained she did not understand
what Israel’s counsel was asking her regarding the form.
4. Israel’s testimony
Israel testified remotely by video. On November 15, 2021
Israel was having a conversation with Eneyda when Diana,
without greeting him, rudely interrupted their conversation.
Diana “started going into this weird panic mode,” and Israel told
9
her, “Grow the fuck up and go upstairs.” He was angry with her
because she had interrupted him. Israel denied pushing Diana or
grabbing her by her sweater. When the police arrived, they told
Diana to go to her unit and to advise Israel when she would be
coming over to tend to Eneyda’s medication and food, rather than
“just open the door and enter at will.”
The next day, Diana entered Eneyda’s unit, and Israel told
her to get out of his sight and repeated more than 30 times to
“please leave.” Diana attempted to come further inside the unit,
and Israel used his body to try to block her from entering. Israel
denied placing his hands on Diana. Israel explained the bruise
on Diana’s arm was from Eneyda grabbing her and pulling her
back.
Israel denied the mid-February 2022 incident that Diana
testified about regarding Israel chasing her in her car. He
explained the incident could not have happened because his
vehicle was not operational the week of February 11. The
alternator was replaced over Super Bowl weekend and returned
to him on Monday, February 14.
Israel submitted into evidence a video he recorded on
November 16, 2021 in which he repeatedly asked Diana to leave
Eneyda’s unit, and a set of text messages he sent to Diana while
visiting Los Angeles relating to Eneyda’s care. While he was
visiting Los Angeles, he took Eneyda to the doctor, gave her
medication, and bought her groceries. Israel explained the front
door was boarded up because Diana and three others forced entry
into the unit on December 29, 2021. He changed the locks
because Diana had opened the door twice the day before,
including with the police, and Israel did not like that Diana
allowed the police to enter the unit. Israel also believed that
10
Diana did not live in Eneyda’s unit and that Diana’s actual home
was the side unit next door.
Regarding text messages from the last several years, Israel
could not recall the content of the text messages. Israel denied
submitting any mail forwarding request on behalf of Eneyda,
only for himself.
5. The trial court’s ruling
The trial court granted a three-year DVRO protecting
Diana and Eneyda. The court found Diana’s testimony to be
“credible and consistent in the important allegations,” including
that Israel assaulted her on November 15 and 16, 2021 and
followed Diana in his car in mid-February 2022. The court also
found that Israel had disturbed Diana’s peace with his harassing
telephoning, emailing, and texting. In contrast, the court found
Israel’s testimony “very vague and evasive,” and he gave details
“when it suited him . . . [and] when it didn’t suit him, he seemed
to forget.” The court observed that Israel was a visitor, and that
he had no right to be in Eneyda’s home. As to Eneyda, the court
found she was at a risk of harm because Israel kept Eneyda from
Diana even though he did not know how to take care of Eneyda.
The DVRO included a no-contact order and a stay-away order as
to Diana and Eneyda, but allowed Israel monitored phone calls
with Eneyda on Sunday evenings and four monitored visits, up to
four hours for each visit, when Israel was in town.
11
DISCUSSION
A. Governing Law and Standard of Review
The Domestic Violence Prevention Act (DVPA) (Fam. Code,
§ 6200 et seq.)5 prevents “acts of domestic violence, abuse, and
sexual abuse” and “provide[s] 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; Curcio v. Pels (2020) 47 Cal.App.5th 1, 11 (Curcio);
accord, In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th
220, 225.) “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 pursuant to Section 6320.” (§ 6203,
subd. (a); § 6320, subd. (a) [enjoining a party from “disturbing the
peace of the other party”].)
The petitioner bears the burden of showing by a
preponderance of evidence “‘“‘reasonable proof of a past act or
acts of abuse.’”’” (Curcio, supra, 47 Cal.App.5th at p. 11.) Upon
such a showing, a trial court can issue a DVRO prohibiting an
individual from “attacking, striking, stalking, threatening, . . .
battering, . . . harassing, telephoning, . . . destroying personal
property, contacting, either directly or indirectly, by mail or
otherwise, coming within a specified distance of, or disturbing the
peace of the other party.” (§§ 6300; 6320, subd. (a).)
“‘[D]isturbing the peace of the other party’” includes direct and
5 All further undesignated statutory references are to the
Family Code.
12
indirect methods of “conduct that, based on the totality of the
circumstances, destroys the mental or emotional calm of the
other party.” (§ 6320, subd. (c) [methods include “telephone,
online accounts, text messages, internet-connected devices, or
other electronic technologies”].)
A trial court may issue a DVRO after notice and a hearing
based on “an affidavit or testimony and any additional
information provided.” (§§ 6300, subd. (a); 6340, subd. (a)(1);
In re Marriage of F.M. & M.M. (2021) 65 Cal.App.5th 106, 117 [“a
trial court should, of course, hear and evaluate the evidence
relating to incidents set forth in a petitioner’s request”].) “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.’” (Curcio, supra, 47 Cal.App.5th at p. 11.)
Other named family or household members may be added as
protected persons in the DVRO for “good cause.” (§ 6320,
subd. (a); see M.S. v. A.S. (2022) 76 Cal.App.5th 1139, 1144
[“showing or finding of potential jeopardy to the safety or well-
being of the children is not a necessary predicate for including
them as protected parties; it is but one factor the court must
consider in the totality of the circumstances”].)
“We review the grant of 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. [Citation.] We do not
13
determine credibility or reweigh the evidence. [Citation.] If
substantial evidence supports the judgment, reversal is not
warranted even if facts exist that would support a contrary
finding.” (Curcio, supra, 47 Cal.App.5th at p. 12; In re Marriage
of D.S. & A.S. (2023) 87 Cal.App.5th 926, 933; In re Marriage of
Davila & Mejia, supra, 29 Cal.App.5th at p. 226.) “‘We
independently review due process claims “because ‘the ultimate
determination of procedural fairness amounts to a question of
law.’”’” (In re Marriage of D.S. & A.S., at p. 933.)
B. Motion To Strike Diana’s Respondent’s Brief
Israel moved to strike Diana’s respondent’s brief for failing
to include citations to the appellate record in violation of
California Rules of Court, rule 8.204, and for failing to address
the arguments raised in Israel’s opening brief. We deferred
ruling on his motion until we decided the appeal. Israel’s motion
to strike is denied. Although Diana’s two-page respondent’s brief
failed to cite to the appellate record, we exercise our discretion to
disregard her noncompliance. (Cal. Rules of Court,
rule 8.204(e)(2)(C).) We note that even if Diana had failed to file
a brief, “‘we do not treat the failure to file a respondent’s brief as
a “default” (i.e., an admission of error) but independently
examine the record and reverse only if prejudicial error is found.’”
(In re Marriage of Rifkin & Carty (2015) 234 Cal.App.4th 1339,
1342, fn. 1; see Cal. Rules of Court, rule 8.220(a)(2) [in the
absence of a respondent’s brief, “the court may decide the appeal
on the record, the opening brief, and any oral argument by the
appellant”].)
14
C. Substantial Evidence Supports the Trial Court’s Order
Granting Diana’s Request for a DVRO
Israel argues substantial evidence does not support the
DVRO protecting Diana because she testified inconsistently
regarding the DV-100 form and because the trial court should not
have credited her testimony. Israel further argues Eneyda
should not have been added as a protected party because she did
not testify and because there was no evidence of abuse against
her as defined in section 6320.
Israel does not cite any authority supporting his position
that a protected person’s inconsistent statements require reversal
of a DVRO. Israel’s argument is contrary to established
standards of review for substantial evidence, which require us to
accept as true all evidence—contradicted and uncontradicted—
that supports the trial court’s findings and to resolve any
conflicts in favor of the judgment. (See Curcio, supra,
47 Cal.App.5th at p. 12.) Likewise, Israel’s argument that the
trial court erred in crediting Diana’s testimony over his
testimony fails because we do not reweigh the trial court’s
credibility findings on appeal. (Ibid.; see In re Jessica C. (2001)
93 Cal.App.4th 1027, 1043 [“[a] trier of fact is free to disbelieve a
witness . . . if there is any rational ground for doing so”]; Evid.
Code, § 780 [in determining the credibility of a witness, the court
may consider, among other things, the “demeanor while testifying
and the manner in which” a witness testifies].)
Further, as to Eneyda, Israel misapprehends the standard
for adding a family or household member as a protected party to
a DVRO. Section 6320, subdivision (a), by its express language,
only requires a showing of “good cause” for the inclusion of family
or household members in a DVRO. A trial court determines
15
whether good cause exists based on a totality of circumstances of
which finding risk of well-being of the added member is one
factor. (M.S. v. A.S., supra, 76 Cal.App.5th at p. 1144.) Contrary
to Israel’s argument, the good cause standard does not require
showing that Israel directly abused Eneyda.
The Legislature designed the DVPA “‘to be exercised
liberally,’” which is reflected by the statute’s relatively low
standard of proof that requires only “‘reasonable proof’” of at least
one past act of abuse. (Curcio, supra, 47 Cal.App.5th at p. 11; see
Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334 [explaining
the liberality under the DVPA compared to a civil harassment
restraining order, including the standard of proof required].)
Substantial evidence supports the trial court’s finding that Israel
physically injured Diana on November 15 and 16, 2021. Diana
testified that Israel pushed her down and threw her against a
table. She further testified that Israel wrapped her arm around a
post and used his body to lean against her, causing her to tear a
ligament in her thumb. One photograph shows Israel and Diana
in a confrontation, with Eneyda and another woman appearing to
break up the altercation. Another photograph shows bruising on
Diana’s arm, which she testified was caused by Israel on
November 15. Diana’s testimony and the photograph are
“reasonable proof” that Israel intentionally or recklessly caused
her bodily injury or placed her in “reasonable apprehension of
imminent serious bodily injury.”
Substantial evidence also supports the trial court’s finding
that Israel disturbed Diana’s “mental or emotional calm.”
(§ 6320, subd. (c).) Notwithstanding the fact that Diana lived at
least part time in Eneyda’s unit and served as Eneyda’s caretaker
since late 2020, Israel showed up to Los Angeles unannounced,
16
proceeded to move into Eneyda’s unit ostensibly without anyone’s
permission, and changed the locks on the door because he was
angry with Diana for letting herself into the unit, including with
the police, without giving him any notice. Israel’s conduct caused
Diana to leave the property—where she had lived her whole
life—for approximately two months. Other evidence, such as the
incident in mid-February 2022 when Israel followed Diana in his
vehicle and the changing of Diana’s mailing address to Israel’s
home in Colorado, also supports the court’s finding that Israel
disturbed Diana’s peace of mind.
Further, there was good cause to include Eneyda in the
DVRO. She was in her mid-80’s, suffered from dementia, and
required care, which Diana provided. Eneyda and Diana lived
together at least part of the time. Eneyda was present and
exposed to the altercation when Israel injured Diana’s thumb, as
well as to the altercation that occurred the day before. Like
Diana, Eneyda stayed away from the property for approximately
two months, living in hotels, while Diana secured a move-out
order against Israel. Eneyda’s mail was forwarded to Israel’s
home in Colorado, which could be interpreted as Israel
improperly trying to exert control over Eneyda. Given the
totality of the circumstances, good cause existed to include
Eneyda in the DVRO.
D. The Trial Court Did Not Otherwise Err in Its Rulings or
Conduct During the Hearing
1. Israel was not denied due process during the hearing
Israel argues the trial court violated his due process rights
by not allowing him to introduce evidence about Diana’s
“financial motives,” which he describes as evidence from the
17
conservatorship proceedings, in which Israel was trying to
remove Diana as trustee, including evidence of Diana’s alleged
breach of fiduciary duties relating to the trust and property
management.6 Israel claims the excluded evidence would have
shown Diana’s improper retaliatory motive in seeking a DVRO
and was relevant to her credibility. Israel’s argument is not
persuasive.
Israel relies primarily on In re Marriage of D.S. & A.S.,
supra, 87 Cal.App.5th 926, in support of his argument. In D.S. &
A.S. the trial court granted a request for a DVRO without
receiving any testimony. Having failed to make any effort to
determine the credibility of the parties, the court of appeal
concluded it was “not possible that the court could reasonably
have made any credibility determinations or resolved material
factual disputes based solely on the pleadings alone.” (Id. at
p. 936.)
We do not have such a situation here because the trial
court allowed extensive testimony and cross-examination of
Diana and Israel. Although the court expressed dismay that
Israel, given he was represented by counsel, failed to file a
written response to Diana’s request for a DVRO, the court
clarified it was not limiting Israel’s testimony any differently
6 In his opening brief, Israel includes references to evidence
from the conservatorship proceedings. We previously denied
Israel’s motion to augment the appellate record and his request
for judicial notice. Diana’s respondent’s brief also includes
statements of matters outside the trial record. We do not
consider any evidence that was not before the trial court. (See
DVI, Inc. v. Superior Court (2002) 104 Cal.App.4th 1080, 1090-
1091.)
18
than Diana’s testimony, and the court would exclude any
testimony or witnesses that was not relevant to the proceeding.
Israel was not deprived of due process under these circumstances.
Additionally, we observe there was already evidence before the
trial court relating to Diana’s “financial motives,” including her
February 2022 declaration where she explained Israel had
initiated conservatorship proceedings and in her testimony that
Eneyda paid her $1,000 per month to help with property
management.
At oral argument, Israel’s counsel argued Diana’s alleged
motives were “outcome determinative” regarding her credibility.
We are unpersuaded in light of the extensive testimony provided
by both parties during the hearing. The record contains
sufficient evidence to support the trial court’s credibility findings.
Further, the court’s exclusion of evidence was an
evidentiary ruling, which we review for an abuse of discretion
and is not cause for reversal absent a miscarriage of justice. (Cal.
Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.)
The court did not abuse its discretion and there was no
miscarriage of justice because even if Diana harbored an
improper motive in seeking a DVRO, such motive would not
negate otherwise credible evidence of abuse to support a DVRO.
(Cf. Michael M. v. Robin J. (2023) 92 Cal.App.5th 170, 182 [“[T]he
mere existence of a retaliatory motive still would not negate the
compelling evidence that Robin had a reasonable basis to fear
Michael.”].) In all events, the record contains compelling
evidence supporting the DVRO: Israel arrived in Los Angeles
unannounced and engaged in two altercations with Diana, caused
Diana and Eneyda to be displaced from their home for at least
two months, and changed the locks so that Diana could not access
19
Eneyda’s unit. Under these circumstances, any error in
excluding additional evidence about Diana’s alleged motives is
harmless, and the exclusion of evidence did not result in
prejudicial error.
2. The trial court did not err in denying Israel’s motion
to dismiss Diana’s request for a DVRO
Israel argues “a request for a domestic violence restraining
order must be verified and signed under the penalty of perjury,”
so the trial court should have granted his motion to dismiss
because Diana initially testified that she did not sign the DV-100
form or authorize her attorney to sign on her behalf.
Although Diana testified multiple times that she did not
sign the DV-100 form or give her attorney permission to sign it on
her behalf, the trial court observed that Diana appeared confused
by the questions. After consulting with her attorney, Diana
testified that she did authorize her attorney to sign her name.
The court also posed questions to Diana to confirm that she
intended to request a DVRO and wanted her attorney to file the
request on her behalf. The court credited Diana’s subsequent
testimony, a decision we do not question on appeal.
Even assuming Diana had not authorized her signature, a
DVRO can be based on “an affidavit or testimony and any
additional information provided.” (§ 6300, subd. (a).) If Diana’s
DV-100 form was defective in some way, her testimony under
oath at the hearing comprises substantial evidence supporting
the DVRO. Diana also submitted three declarations signed
under penalty of perjury leading up to the hearing. Israel does
not cite any authority that, notwithstanding testimony under
20
oath and declarations signed under penalty of perjury, a defective
DV-100 form precludes the issuance of a DVRO.
3. The trial court did not become an advocate for Diana
Related to the trial court’s ruling on his motion to dismiss,
Israel argues the court was biased against him and improperly
advocated on Diana’s behalf. Israel specifically takes issue with
the court’s prefatory statements about witnesses and testimony,
and the court’s examination of Diana about the DV-100 form.
As Israel acknowledges, failure to object to judicial
misconduct in the trial court results in forfeiture of the argument
on appeal. (People v. Sturm (2006) 37 Cal.4th 1218, 1237 [“As a
general rule, judicial misconduct claims are not preserved for
appellate review if no objections were made on those grounds at
trial.”]; People v. Harris (2005) 37 Cal.4th 310, 350 [failure to
object at trial forfeited defendant’s argument that the trial court
“overstepped its bounds with respect to the tone, form, and
number of questions posed”]; People v. Corrigan (1957) 48 Cal.2d
551, 556 [“It is settled that a judge’s examination of a witness
may not be assigned as error on appeal where no objection was
made when the questioning occurred.”].) Although Israel
contends any objection would have been futile, he fails to explain
persuasively why that is so under the circumstances presented.
Further, the authority he cites is inapposite and fails to support
his contention. (See, e.g., People v. Abbaszadeh (2003)
106 Cal.App.4th 642, 648 [addressing waiver of errors on voir
dire]; People v. Flores (1971) 17 Cal.App.3d 579, 587 [holding “an
expression of a defendant’s guilt” by the court during a jury trial
is “prejudicial as a matter of law”].)
21
By contrast, the record before us suggests that any
objection to alleged judicial misconduct would not have been
futile. For example, after the trial court noted Israel’s failure to
file a response on several occasions and stated it would limit
Israel’s testimony, his counsel raised the point that Israel was
not required to file a written response. The court clarified it was
not limiting Israel’s testimony and that it would treat the parties
equally in excluding irrelevant testimony. Israel has not shown
that had he objected to concerns he had about perceived judicial
bias, including the court’s questioning of Diana about the DV-100
form, that his objection would have been futile.
Israel’s argument also fails on the merits. Evidence Code
section 775 authorizes a trial court to examine witnesses,
including eliciting or clarifying testimony. “[T]he power to do so
must be exercised impartially,” and a trial court “must not
become an advocate for either party or under the guide [sic] of
examining witnesses.” (People v. Cummings (1993) 4 Cal.4th
1233, 1305, overruled on another ground in People v. Merritt
(2017) 2 Cal.5th 819, 821-822.) Here, the court’s questions
sought to clarify what it believed to be Diana’s misunderstanding
about the DV-100 form. To be sure, Diana gave contradictory
responses to the court’s questions, but she confirmed that she
desired, instructed, and paid her attorney to file a request for a
DVRO. No prejudicial error occurred because, as discussed
above, Diana’s testimony under oath at the hearing and her
declarations signed under penalty of perjury constitute
substantial evidence to support the issuance of a DVRO.
22
DISPOSITION
The DVRO is affirmed. Diana shall recover her costs on
appeal.
MARTINEZ, J.
We concur:
SEGAL, Acting P. J.
FEUER, J.
23