Tobias v. Franke CA2/6 ( 2023 )

Filed 12/19/23 Tobias v. Franke CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
RENEE LYNN TOBIAS, 2d Civ. No. B324632
(Super. Ct. No. 22FL-0113)
Plaintiff and Appellant, (San Luis Obispo County)
v.
JON ALBERT FRANKE,
Defendant and Respondent.
Renee Lynn Tobias appeals from a judgment of dismissal
and an order of the superior court denying her request for a
domestic violence restraining order (DVRO). (Fam. Code, § 6200
et seq.)1 We conclude, among other things, that the trial court
did not abuse its discretion in denying her request and Tobias
has not shown error. We affirm.
FACTS
Jon Albert Franke and Tobias began living together on May
15, 2019, and moved into Franke’s home in Pismo Beach. Franke
1 All statutory references are to the Family Code.
owned the home at that time outright with no mortgage. The
couple became engaged in June 2020. Franke gifted Tobias a 10
percent interest in the residence as part of an agreement that
required the parties to not reside in the property and to work
together to facilitate its sale.
In the first week of June 2020, the parties moved to
Ontario, Canada. On February 27, 2021, the parties ended their
relationship and cohabitation. Franke claimed Tobias took his
2011 Lexus from his home in Canada without his permission and
had it shipped to California. He filed a criminal complaint
against Tobias with the York Regional Police in Canada.
Franke filed a partition action in the San Luis Obispo
County Superior Court, seeking an order directing the sale of the
Pismo Beach residence. Tobias’s default was taken in that action
in January 2022.
The Temporary Restraining Order
In February 2022, Tobias filed a request for a temporary
restraining order (TRO). She sought protection from Franke and
possession of the Pismo Beach residence and the Lexus vehicle.
The trial court issued a TRO, precluding Franke from being
within 100 yards from either the residence or the Lexus. The
TRO granted Tobias possession of the Pismo Beach real property
and the Lexus pending a trial on the DVRO request.
In August 2022, the trial court conducted a hearing on
Tobias’s DVRO request. Tobias and Franke testified. Tobias
invoked her Fifth Amendment right to not testify as to how she
got the Lexus to California and whether she had any
documentation from Franke authorizing her to take the vehicle.
Tobias claimed the Lexus was at issue in a family law action in
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Canada. But she was unable to produce documentary evidence
that she had a right to possession of that vehicle.
Franke’s counsel told the court, “Ms. Tobias filed a civil
action in Canada to declare herself as Mr. Franke’s common law
wife. In that case, she’s asking for property orders, including the
disposition of the vehicle that you gave her temporary possession
of. What she didn’t share with you in the application was that
vehicle is solely registered to Mr. Franke.” (Italics added.) He
claimed Tobias obtained the TRO by providing misleading
information to the court. The trial court admitted into evidence
the registration and title to the Lexus which was in Franke’s
name, and the parties’ agreement concerning the Pismo Beach
property. At the conclusion of the hearing, the trial court found
Franke to be a credible witness and Tobias to be an obstructive
witness lacking credibility.
The trial court found that Tobias failed to show that
Franke had committed any acts of abuse. It denied the request
for a DVRO, it let the TRO expire, and it granted Franke’s
request for attorney fees pursuant to section 6344. At a
subsequent hearing on September 19, 2022, the court granted
attorney fees to Franke in the amount of $21,875.
DISCUSSION
Under the domestic violence protection statute (§ 6200 et
seq.), a court may issue a protective order to prevent abuse or
“domestic violence.” (In re Marriage of Davila & Mejia (2018) 29
Cal.App.5th 220, 225.) “We review the grant or denial of a
request for a DVRO for abuse of discretion.” (Id. at p. 226.)
Substantial Evidence
Tobias contends the trial court did not properly evaluate
the evidence and its order is not supported by the record. She
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claims there is evidence that supports her position, but the issue
is whether substantial evidence supports the judgement.
An appellate court must consider the evidence in the record
in the light most favorable to the judgment. (DiQuisto v. County
of Santa Clara (2010) 181 Cal.App.4th 236, 259.) We must draw
all reasonable inferences to support it. We do not weigh the
evidence, resolve evidentiary conflicts, or decide the credibility of
the witnesses. The appellant who challenges the trial court’s
factual findings must state all the evidence in support of the
court’s order in the opening brief. (Ibid.) The appellant must
also cite to the record. Where an appellant does not follow these
appellate rules, the appellate court may disregard challenges to
the factual findings of the trial court. (Ibid.)
Franke objects to Tobias’s opening brief because she alleges
claims of abuse without citing to the record. His objection is
meritorious. Tobias did not include a sufficient statement of facts
with citations to the trial transcript of the evidence the court
relied on. But, even so, our review of the record shows the trial
court did not err in making its findings.
Injunctive Relief Against Franke Involving the Lexus
Tobias claimed the trial court should have maintained the
TRO that prohibited Franke from going near the Lexus. She
claimed he improperly hired a recovery agent to attempt to take
possession of the vehicle from the Pismo Beach home. But the
court received evidence showing that the car belonged to Franke,
not Tobias. Franke testified that he was the owner of the car. He
said he did not give her the car as a gift. From Tobias’s refusal to
answer questions about how she obtained possession of his
vehicle, the court could reasonably draw negative inferences
against her. She has not shown why the court could not find that
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she did not have a lawful title to that vehicle. When asked if her
name was on the title, Tobias responded, “It is not.”
Moreover, the trial court found Franke’s efforts to obtain
possession of that vehicle from Tobias were justified. It found
Franke “credibly testified” that Tobias “started selling his
possessions.” It said, “He was concerned that Ms. Tobias was
going to sell the 2011 Lexus.” Franke used a “recovery specialist
to go to the house in Pismo. He used the app on his phone to
open the garage. This is a home that he owns . . . .” (Italics
added.) Tobias has not cited to the trial transcript to challenge
these findings. She appears to claim the court should have relied
on her declaration in support of the TRO. But after hearing her
testimony at the hearing and finding she was not credible, the
court could reasonably determine her paperwork in support of the
TRO was not credible and could no longer be considered. Franke
testified that Tobias had been selling his property. He took
actions to protect his property. The court found Franke did not
engage in any abusive conduct. Tobias has not made a proper
showing to challenge that finding.
Injunctive Relief to Prevent Franke from Going to the Home
Tobias claimed the trial court should not have let the TRO
that prohibited Franke from going near the house in Pismo Beach
expire. But after hearing evidence at the hearing, the court
rejected her claims about good cause for injunctive relief against
Franke. It found, “This is a home that [Franke] owns, at least for
now . . . .” The court found his interest in the home was
substantially greater than Tobias’s. It said Franke owns a “90
percent” interest in this “multimillion dollar home”; Tobias owns
only “ten percent of this home.” In fact, when the court asked,
“Does Mr. Franke own that home?” Tobias initially said “yes.”
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Tobias claimed she needed an injunction against Franke to
prevent him from coming to the home. She testified that in
August Franke came to the house “to get some of his
possessions.” He was accompanied by police officers who were
there in a “civil standby” mode to prevent violence. The trial
court found that conduct was not abusive or grounds for
injunctive relief. Tobias testified that she had an agreement with
Franke that she would leave the real property by June 8, 2020.
Franke testified he did not go to the home to harass Tobias. He
went there to retrieve his personal property. When the police
were present, he was “standing across the street not on the
property.” Franke testified that he needed police protection
because Tobias had previously “kicked [him] in the testicles” and
he “feared for [his] safety.”
From the evidence the trial court had justifiable grounds to
deny Tobias’s request for the injunction.
Credibility Findings
Tobias contends the trial court erred in making credibility
findings against her. But “[i]t is the exclusive province of the
trial court to pass upon the credibility of the witnesses . . . .”
(Estate of Pelton (1956) 140 Cal.App.2d 512, 515.) The record
shows the court had valid grounds to find Tobias was not a
credible witness. It found Tobias was a “very obstructive
witness.” She did not answer questions and she evaded
questions. The court said, “[T]here was evidence from her
videoed deposition where she contradicted her own testimony
today here in this courtroom.”
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Improper Exclusion of Evidence
Tobias contends the trial court did not allow her to
introduce additional evidence. But the record does not support
this claim.
After Tobias had presented her case, she attempted to
argue new conclusory claims about Franke having “abused
litigation” and used third parties “to breach [her] accounts.”
These were not the issues raised in her TRO or tried in this
proceeding. The trial court said, “I asked you specifically on the
stand is there anything else you would like to tell the Court and
you said no. You rested.” The court went on to find that Tobias
made a conclusory attack on Franke and had not made a
sufficient factual or evidentiary offer of proof. The court said,
“You’ve provided no evidence of that. You have no exhibits and
no witnesses.”
Tobias claims the trial court was rude. The record refutes
this claim. The court was patient in considering Tobias’s claims.
It properly considered her in propria persona status. The court’s
findings about her evasive testimony are supported by the record.
They were not insults or rude comments. They were relevant
findings of fact based on the evidence in the trial transcript.
Attorney Fees
Tobias appears to claim the trial court erred by awarding
Franke attorney fees. But a party who successfully defends
against a DVRO may be entitled to an award of costs and
attorney fees. (§ 6344; Loeffler v. Medina (2009) 174 Cal.App.4th
1495, 1509.) “We apply an abuse of discretion standard in
reviewing the amount of an attorney fee award.” (Ibid.) Here
there was no abuse of discretion. Franke’s counsel incurred
substantial time in defending Franke. Tobias has substantial
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resources, a 10 percent interest in a multimillion dollar home.
The amount of the award is not excessive or disproportionate
given the extended length and nature of these proceedings.
We have reviewed Tobias’s remaining contentions and we
conclude she has not shown grounds for reversal.
DISPOSITION
The judgment and order are affirmed. Costs on appeal are
awarded in favor of Franke.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
BALTODANO, J.
CODY, J.
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Erin M. Childs, Commissioner
Superior Court County of San Luis Obispo
______________________________
Renee Lynn Tobias, in pro. per., for Plaintiff and Appellant.
Jon Albert Franke, in pro. per., for Defendant and
Respondent.