Marriage of Davila and Mejia ( 2018 )

Filed 10/23/18; Modified and Certified for publication 11/19/18 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re Marriage of ANNASTASIA B279874
ERINE DAVILA and JESUS
MIGUEL DAVILA MEJIA. (Los Angeles County
Super. Ct. No. LQ020780)
ANNASTASIA ERINE DAVILA,
Respondent,
v.
JESUS MIGUEL DAVILA
MEJIA,
Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Alicia Y. Blanco, Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 21.) Affirmed.
Lieber & Galperin, Yury Galperin and Collin Grant for
Appellant.
No appearance for Respondent.
INTRODUCTION
Jesus Miguel Davila Mejia appeals from a domestic violence
restraining order (DVRO) issued in favor of his wife, Annastasia
Erine Davila. Mejia contends the trial court abused its discretion in
issuing the DVRO because it was based on allegations not contained
in Davila’s request for a DVRO, and he was prevented from
introducing evidence to impeach Davila. He also contends there is
no substantial evidence to support issuance of the DVRO. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Davila’s Request and Issuance of a Temporary DVRO
Mejia and Davila are married and previously lived together.
Davila filed a petition for dissolution of their marriage in July
2016.1 Mejia helped raise Davila’s three children, who at the time
of Davila’s request were 12, 14, and 17.
On November 4, 2016 Davila filed a request for a DVRO,2 in
which she alleged as the basis for her request that Mejia had a
history of verbally and emotionally abusing the children and that
“[i]n the past [Mejia] has been physically abusive towards [her son]
when I am not present. . . . [Mejia] has threaten[ed] to physically
harm me. I fear for the safety of my children because [Mejia] has
threaten[ed] to take the children to Mexico.” (Italics added.) In her
1 The record does not reflect whether Mejia and Davila are
presently married.
2 We augment the record on our own motion to include Davila’s
request for a DVRO filed on November 4, 2016. (Cal. Rules of
Court, rule 8.155(a)(1)(A).)
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supporting declaration, Davila stated that on the evening of
November 2, Mejia “jumped over the gate and tried to enter the
house to remove the children and take the children with him.”
Mejia threatened physically to abuse the children if they did not
open the door. Her daughter called the police because she was
afraid. The police officers told Mejia to leave.
Davila added that Mejia had been “physically, emotionally
and verbally abusive” to her children, including calling Davila’s
daughter a “slut,” “[r]etarded,” “[f]at,” “[l]azy,” “[s]mell[y],” and
“[s]tinky.” Mejia also repeatedly made phone calls to Davila’s
daughter without Davila’s permission.
Davila stated that Mejia had been verbally abusive towards
her in the past, calling her “[b]itch” and “[s]tupid [b]itch”
approximately three to four times per day. Davila concluded, “I ask
the court to grant me these orders because I fear for my safety and
the safety of my children.”
Davila did not give notice of her request for a DVRO to Mejia
because she was afraid Mejia would hurt the children or take them
away before a temporary restraining order could be issued. The
trial court issued a temporary DVRO, ordering Mejia to stay away
from Davila and the three children and to dispose of any firearms or
ammunition in his possession. The trial court set a hearing on a
permanent DVRO for November 28, 2016.
B. Mejia’s Response
Mejia filed his response on November 10, opposing Davila’s
request for a DVRO. On the evening of November 2, Mejia went to
Davila’s house when he realized she was “overseas on vacation with
her lover,” and Mejia was concerned the children had been left
alone. He knocked on the door for approximately five minutes
without receiving a response. When Mejia saw a light was on in the
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living room, he went through the backyard and knocked on the
window. One of the children saw him and ran away. Mejia went
around the other side of the house and knocked on another window.
Mejia left when he realized the children did not want to talk to him.
Mejia denied trying to abduct the children or threatening to do so.
He also denied repeatedly calling the older daughter or verbally or
physically abusing Davila or the children.
C. The Hearing and Issuance of the DVRO
Mejia and Davila were the only witnesses at the hearing.
Davila testified that the children did not want to be around Mejia
because he was emotionally abusive towards them and physically
abusive towards Davila’s son. Davila recounted the November 2,
2016 incident in which her daughter called the police because Mejia
jumped over the gate and banged on the family’s doors and
windows.
At this point the trial court interjected to inquire about
domestic violence perpetrated against Davila. Davila responded
that Mejia had taken up shooting as a hobby about two years
earlier and she bought him a handgun as a gift. Mejia “would come
to me and hold it to my head, and when he gets in moods tells me, ‘I
will kill you.’” She added, “[T]his is how he gets off sometimes.”
Davila stated Mejia held a gun to her head two to three times. She
was terrified. Mejia occasionally locked himself in the garage or
another room for long periods of time. She hid the gun from him,
but when he found it, he held it to her head and said, “If you hid[e]
the gun again, this is what is going to happen to you.”
Mejia denied Davila’s claim that he held a gun to her head.
He pointed out that Davila had not brought up any alleged violence
during the divorce proceeding. Mejia helped raise the children for
six years with no problems, but once he discovered Davila was
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having an affair, she served him with divorce papers and began
harassing him to get him to leave the house. Mejia explained that
shooting guns was a hobby, and he was taught to hunt at an early
age. He denied calling Davila’s daughter any names.
Mejia added that Davila had “a history of manipulation and
lies,” including an open case alleging welfare fraud. Mejia testified
that Davila ran a business with her ex-husband, which was
investigated by the FBI for racketeering and organized crime.
Mejia initially stated that Davila was found guilty, but then stated
“the trial is ongoing.” Mejia also claimed Davila made a “report” in
her prior divorce proceedings in which she claimed “the same
thing,” presumably referring to the allegations of abuse.
Davila denied she committed welfare fraud and denied
Mejia’s allegations regarding her former husband; instead, her
former husband worked for the FBI. The trial court asked Davila
whether she previously told anyone she was afraid of Mejia. Davila
responded that she had not done so because she thought the
dissolution was going to be amicable, and she did not want to
subject the children to additional court proceedings.
After listening to the testimony, the trial court stated that
Davila “has been credible in her account of what has happened in
this case.” The trial court found Davila “has satisfied her burden by
a preponderance of the evidence demonstrating that abuse had
taken place in the relationship.” The trial court added, “In this case
[Davila] has credibly indicated and demonstrated and testified to
there being more than just verbal and emotional, but physical
[abuse].”
Mejia interjected, “[S]he has a history of testifying lies.” The
trial court responded, “I don’t have anything before me.” Mejia
stated he had a “hearing with [Davila’s] name notifying the
issuance of the welfare fraud.” Davila responded, “I have the
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decision, final decision dismissing all of that.” The trial court
stated, “I am not taking any allegations of welfare fraud [into]
consideration in making this determination.”
The trial court noted that Davila’s request for a DVRO stated
Mejia “has threatened to physically harm me.” The trial court
pointed out that when it asked Davila about the threat, she
recounted that Mejia had held a gun to her head on three occasions.
The court found Davila had met her burden, and issued the
protective order to remain in place for two years, until
November 27, 2018, listing Davila and her three children as
protected persons.
DISCUSSION
A. The DVPA
Pursuant to the Domestic Violence Prevention Act (DVPA)
(Fam. Code, § 6200 et seq.),3 a court may 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.’” (Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 782
(Nevarez); accord, § 6300.)
The DVPA defines domestic violence, as relevant here, as
abuse perpetrated against a spouse or the child of a party.4 (§ 6211,
3 Further statutory references are to the Family Code.
4 Mejia does not argue that Davila’s children were not
protected persons. Neither does he present an argument as to why
the evidence was not sufficient other than his conclusory statement
that the trial court issued a DVRO “despite a lack of substantial
evidence to support such issuance.”
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subds. (a) & (e).) Abuse includes “plac[ing] a person in reasonable
apprehension of imminent serious bodily injury to that person or to
another” or “engag[ing] in any behavior that has been or could be
enjoined pursuant to Section 6320.” (§ 6203, subd. (a)(3), (4).)
Enjoined conduct includes molesting, striking, stalking,
threatening, or harassing. (§ 6320, subd. (a).) The DVPA requires a
showing of past abuse by a preponderance of the evidence. (Cooper
v. Bettinger (2015) 242 Cal.App.4th 77, 90, fn. 14; Gdowski v.
Gdowski (2009) 175 Cal.App.4th 128, 137.)
B. Standard of Review
We review the grant or denial of a request for a DVRO for
abuse of discretion. (In re Marriage of G. (2017) 11 Cal.App.5th
773, 780; In re Marriage of Evilsizor & Sweeney (2015) 237
Cal.App.4th 1416, 1426-1427.) We likewise review the trial court’s
failure to consider evidence in issuing a DVRO for an abuse of
discretion. (See Nevarez, supra, 227 Cal.App.4th at p. 785 [trial
court did not abuse its discretion in refusing to consider text
messages before issuing DVRO].)
“‘To the extent that we are called upon to review the trial
court’s factual findings, we apply a substantial evidence standard of
review.’” (In re Marriage of G., supra, 11 Cal.App.5th at p. 780;
accord, In re Marriage of Evilsizor & Sweeney, supra, 237
Cal.App.4th at p. 1424.) “‘However, “[j]udicial discretion to grant or
deny an application for a protective order is not unfettered. The
scope of discretion always resides in the particular law being
applied by the court, i.e., in the ‘“legal principles governing the
subject of [the] action . . . .”’”’” (J.J. v. M.F. (2014) 223 Cal.App.4th
968, 975; accord, S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1264-
1265.)
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C. The Trial Court Did Not Err in Considering Davila’s
Testimony That Mejia Held a Gun to Her Head
Although a temporary DVRO may be issued on an ex parte
basis without notice (§ 6320, subd. (a)), a permanent restraining
order may be issued only “after notice and a hearing” (§ 6345, subd.
(a)). Mejia does not dispute he was given notice of the hearing on
the DVRO and had an opportunity to respond to Davila’s
allegations. Instead, Mejia contends the trial court erred by
considering Davila’s testimony that Mejia held a gun to her head
even though she did not make that specific allegation in her request
for a DVRO. We disagree.
Mejia does not cite any authority for his contention that
testimony at the DVRO hearing is limited to the specific allegations
in the party’s application. “Issues not supported by citation to legal
authority are subject to forfeiture.” (People ex rel. Alzayat v. Hebb
(2017) 18 Cal.App.5th 801, 821, fn. 10; accord, People v. Bryant,
Smith and Wheeler (2014) 60 Cal.4th 335, 363 [“If a party’s briefs do
not provide legal argument and citation to authority on each point
raised, ‘“the court may treat it as waived, and pass it without
consideration.”’”].)
Mejia also forfeited this contention by failing to object below
to the trial court’s consideration of Davila’s testimony about Mejia’s
use of a gun. (See Nevarez, supra, 227 Cal.App.4th at p. 785
[appellant waived challenge to trial court’s refusal to consider text
messages before issuing DVRO because she did not object in trial
court]; Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 725
[appellant waived objection to issuance of injunction based on
hearsay statements because appellant did not object to hearsay in
trial court].)
Even if Mejia had not forfeited this argument, the trial court
did not abuse its discretion in considering Davila’s testimony that
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Mejia held a gun to her head. Although Davila did not state in her
request for a DVRO specifically that Mejia held a gun to her head,
she stated that Mejia “has threaten[ed] to physically harm me,” and
requested the trial court “grant me these orders because I fear for
my safety and the safety of my children.”
By these statements, Davila placed Mejia on notice that she
based her request for a DVRO on the threat of physical violence
Mejia posed both to her and her children. Further, Mejia had an
opportunity to respond to Davila’s testimony, and at the hearing
testified that her testimony as to the gun was false.
Our recent opinion in In re Jonathan V. (2018) 19 Cal.App.5th
236 (Jonathan V.) is not to the contrary. In Jonathan V., the
prosecutor gave counsel for a minor in a delinquency case notice at
a pretrial conference that the People were seeking a permanent
restraining order against the minor. (Id. at p. 238.) The minor
objected based on lack of notice or a hearing before issuance of the
order, and counsel requested time to prepare for the hearing.
(Ibid.) After the trial court denied a continuance and issued a two-
year restraining order, the minor appealed. (Ibid.)
We reversed, concluding the minor “was not provided with
written notice, a description of the evidence to be used against him,
a meaningful opportunity to be heard or an opportunity to present
evidence in opposition to the People’s request.” (Jonathan V.,
supra, 19 Cal.App.5th at p. 244.) Unlike the minor in Jonathan V.,
Mejia received notice of Davila’s general allegations of physical
abuse and had a meaningful opportunity to present evidence in
opposition to the request at a hearing. Further, in contrast to
Jonathan V., Mejia neither objected to the testimony nor requested
a continuance to respond to Davila’s testimony.
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D. The Trial Court Did Not Abuse Its Discretion in Refusing To
Consider Evidence To Impeach Davila
After the trial court found Davila’s testimony to be credible
and decided to issue the DVRO, Mejia asserted Davila had a history
of giving false testimony. Mejia stated he had a “hearing with
[Davila’s] name notifying the issuance of the welfare fraud.” Davila
responded that she had a “final decision” dismissing any fraud
allegations. The trial court did not consider the proffered evidence
from either Mejia or Davila, stating, “I am not taking any
allegations of welfare fraud [into] consideration in making this
determination.” Mejia contends the trial court abused its discretion
by refusing to consider his evidence of alleged welfare fraud to
impeach Davila’s credibility. However, there is no record of the
document Mejia sought to present to the court. Mejia has therefore
not met his burden to show the trial court abused its discretion in
failing to consider Mejia’s claimed evidence of alleged welfare fraud.
(Nevarez, supra, 227 Cal.App.4th at p. 785.)
E. Substantial Evidence Supports the Trial Court’s Issuance of
the DVRO
Davila and her children are protected persons under the
DVPA. (§ 6211, subds. (a) [a spouse], (e) [a child of a party].) The
trial court may issue a DVRO to prevent domestic violence based
upon reasonable proof of a past act or acts of abuse. (§ 6300;
Nevarez, supra, 227 Cal.App.4th at p. 782.) Substantial evidence
supports the trial court’s finding that Mejia committed prior acts of
domestic abuse against both Davila and her children. Mejia, by
holding a gun to Davila’s head and threatening to kill her,
committed domestic abuse by placing Davila “in reasonable
apprehension of imminent serious bodily injury.” (§ 6203, subd.
(a)(3).) Mejia’s conduct toward Davila’s children, including on
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November 2, 2016 jumping over the gate to the family home,
knocking on the windows and doors, and threatening physically to
abuse the children if they did not open the door, similarly
constituted domestic abuse. (See §§ 6203, subd. (a)(3) & (4), 6320,
subd. (a) [abuse includes engaging in stalking, threatening, or
harassing conduct].)
DISPOSITION
The order is affirmed.
FEUER, J.
WE CONCUR:
ZELON, Acting P. J.
SEGAL, J.
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Filed 11/19/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re Marriage of ANNASTASIA B279874
ERINE DAVILA and JESUS
MIGUEL DAVILA MEJIA. (Los Angeles County
Super. Ct. No. LQ020780)
ANNASTASIA ERINE DAVILA,
ORDER CERTIFYING
Respondent, OPINION FOR
PUBLICATION AND
v. MODIFYING OPINION
JESUS MIGUEL DAVILA NO CHANGE IN
MEJIA, JUDGMENT
Appellant.
THE COURT:
The opinion in the above-entitled matter filed on
October 23, 2018, was not certified for publication in the Official
Reports. For good cause, it now appears that the opinion should
be published in the Official Reports and it is so ordered.
It is further ordered the opinion be modified as follows:
1
1. On page 2, in the first paragraph, delete the last sentence,
“We affirm.”
2. On page 2, after the first paragraph add the following new
paragraph with a footnote:
Mejia’s contentions lack merit. Davila’s
general allegations in her DVRO request, that Mejia
threatened to physically harm her and she feared for
her safety, placed Mejia on notice that Davila would
testify at the DVRO hearing about Mejia’s specific
threats of physical violence, including that he held a
gun to her head on two or three prior occasions.
Mejia had a meaningful opportunity to respond to the
specific allegations at the hearing, and to request a
continuance if he needed additional time to respond.
The Domestic Violence Prevention Act (DVPA) (Fam.
Code, § 6200 et seq.)1 does not impose on a victim of
domestic abuse a pleading obligation that he or she
describe all individual actions taken by the alleged
abuser in the DVRO request in order later to testify
about those acts at the hearing, as long as the alleged
abuser is placed on notice of the general allegations.
Mejia had that notice. We affirm.
1 Further statutory references are to the Family
Code.
3. On page 6, in the first paragraph under subheading A.,
delete the phrase, “Pursuant to the Domestic Violence Prevention
Act (DVPA) (Fam. Code, § 6200 et seq.)” and footnote 4, and
replace it with, “Pursuant to the DVPA,” so that it reads:
2
Pursuant to the DVPA, a court may 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.’”
4. On page 8, in the third full paragraph, replace the
word “waived” with “forfeited” the two times it appears in
the parentheticals.
5. On page 9, delete the last paragraph and replace it
with the following:
We reversed, concluding the minor “was not
provided with written notice, a description of the
evidence to be used against him, a meaningful
opportunity to be heard or an opportunity to present
evidence in opposition to the People’s request.”
(Jonathan V., supra, 19 Cal.App.5th at p. 244.)
Unlike the minor in Jonathan V., Mejia received
notice of Davila’s general allegations of threatened
physical abuse and had a meaningful opportunity to
present evidence in opposition to the request at a
hearing. Further, in contrast to Jonathan V., Mejia
neither objected to the testimony nor requested a
continuance to respond to Davila’s testimony. (See
§ 245, subds. (a) [respondent entitled to one
continuance “as a matter of course” to respond to
petition for DVRO], (b) [hearing on request for DVRO
3
may be continued for good cause upon request by
either party].)
6. Adjust the remaining footnote numbers in accordance
with the above changes to footnotes.
There is no change in the judgment.

ZELON, Acting P. J. SEGAL, J. FEUER, J.
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