Marriage of K.L. and M.E. CA2/6 ( 2024 )

Filed 10/23/24 Marriage of K.L. and M.E. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
In re Marriage of K.L. and M.E. 2d Civ. Nos. B331637, B334245
(Super. Ct. No. 22FL00468)
(Santa Barbara County)
K.L.,
Appellant,
v.
M.E.,
Respondent.
Husband appeals an order granting his wife and daughter
a domestic violence restraining order (DVRO) (Fam. Code § 6300,
et. seq.) and denying husband a DVRO against his wife. We
affirm.1
1 On September 6, 2024, on our own motion, we
consolidated Husband’s appeals herein.
FACTS
M.E. (Wife) and K.L. (Husband) are married and in the
process of getting a divorce. They have a 13-year-old daughter
(Daughter) of the marriage. Wife and Daughter applied for a
DVRO against Husband.
Wife testified that Husband threatened her with knives
many times during their marriage. She said he kept a machete
under the bed. Whenever Husband wanted to have sex and she
would deny him, he would threaten her with it.
The last time Husband forced Wife to have sex with him
was in 2023. He had just returned from visiting his girlfriend in
Guatemala and wanted to have sex with Wife. She did not want
to, and he twice forced her to have sexual intercourse. Husband
attempted a third time, pushed her toward the bathroom and she
was physically hurt. He wanted to take her from behind. She
screamed and awakened her mother and Daughter.
Wife wanted to call 911, but Husband would not allow her
to do so. Wife then pretended to call 911. Husband left the room.
Wife feared he was going to get an axe he had recently
purchased. Husband had told Wife that life had no meaning and
before he killed himself, he was going to kill everyone in the
family.
Wife told Daughter to put on some clothes because they
were leaving the house. As they were leaving the house, husband
was in his car making a motion with his hands. Wife knew that
she and Daughter were in danger. She told Daughter to run to
her car, which was parked behind Husband’s car. Husband put
his car in reverse as Daughter was getting in the car. Wife and
Daughter were fearful he intended to hit them. Daughter was
able to get into Wife’s car, and Wife drove to the police station for
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safety because Husband was following them. At the station Wife
made a report to the police.
DISCUSSION
I. Mootness
Husband contends the appeal is not moot.
Husband acknowledges that the DVRO was for one year
and expired on June 24, 2024. Nevertheless, he points out that
the order may have residual effects. Included in the residual
effects is a presumption that awarding custody of a child to a
perpetrator of domestic violence is not in the best interest of the
child (§ 3044, subd. (a)) and that the DVRO may be renewed
without a showing of further abuse. (§ 6345, subd. (a).) This will
have a significant effect in the marital dissolution proceeding and
the pending DVRO renewal proceeding. We agree this appeal is
not moot.
II. Standard of Review
The grant or denial of a DVRO is reviewed for abuse of
discretion. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.)
The question is whether the trial court exceeded the bounds of
reason. (Ibid.)
We presume the judgment or order of the trial court is
correct. (Verio Healthcare, Inc. v. Superior Court (2016) 3
Cal.App.5th 1315, 1327 (Verio Healthcare).) We indulge all
intendments and presumptions in support of the judgment or
order on matters on which the record is silent, and error must be
affirmatively shown. (Ibid.)
In viewing the evidence, we look only to the evidence
supporting the prevailing party. (GHK Associates v. Mayer
Group, Inc. (1990) 224 Cal.App.3d 856, 872.) We discard
evidence unfavorable to the prevailing party as not having
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sufficient verity to be accepted by the trier of fact. (Ibid.) Where
the trial court or jury has drawn reasonable inferences from the
evidence, we have no power to draw different inferences even
though different inferences may also be reasonable. (McIntyre v.
Doe & Roe (1954) 125 Cal.App.2d 285, 287.) The trier of fact is
not required to believe even uncontradicted testimony. (Sprague
v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1028.)
III. Due Process
Husband contends he was denied due process in that he did
not receive a fair trial before an unbiased judge.
Husband represented himself at trial while Wife and
Daughter had counsel. Husband cites In re Marriage of D.S. &
A.S. (2023) 87 Cal.App.5th 926, 934, for the proposition, “In a
contested restraining order hearing, the trial court is tasked with
protecting the fundamental due process rights of self-represented
litigants both seeking a restraining order or defending against
the request, even when they do not fully understand what those
rights encompass.”
What Husband fails to mention on appeal is that he is not
the typical self-represented litigant. He told the trial court that
he is a law school graduate studying for the bar examination.
Whatever his background, Husband fails to show a denial
of due process or bias by the trial court. The prejudice to his case
arose entirely from the evidence. Husband’s claims to the
contrary are based on a distortion of the record and a
misapprehension of the law.
(a)
For example, Husband claims that although the trial court
initially acknowledged Wife has the burden of proof, the court
granted Wife a DVRO at the end of her case and shifted the
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burden of proof to him. In support of his claim, Husband cites
the court’s statement, “I’ve seen more than enough to grant
everything that they are asking for. So now it’s your turn to turn
the tables on it all. And you can start with, another opening
statement.”
The trial court was simply telling Husband in layman’s
terms that Wife had carried her burden of proving a prima facie
case, and the burden of going forward with the evidence had
shifted to Husband. The court did not grant Wife a DVRO at the
end of her case; nor did the court shift the burden of proof to
Husband.
(b)
After a series of baseless objections raised by Husband
during Wife’s testimony, Daughter’s counsel asked the trial court
to admonish Husband not to interrupt. The court admonished
Husband as follows:
“I’m going to learn about everything that happened one
way or the other because I’ve got four proponents, lawyers and a
self-represented litigant [who] [h]as a lot of education. So if
you’re here to try to hide something from the Court, it’s probably
not going to happen. If you’re here to have me hear it from the
other side’s perspective and have you cross-examine them about
it, so the great engine of the truth of cross-examination can yield
the answer, you know, yeah, that's how we’re going to do it.
“So I will say, you know, objecting just to object and slow
things down isn’t going to do anything . . . . So what you need to
be concerned about is that self-represented litigants who are like
having fun in court, like they just are using this as some kind of a
playground and they want to stay here for a long time, those
kinds of people get recognized for who they are.”
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Husband claims the trial court’s admonishment shows a
bias against him as a self-represented litigant. But the court was
not admonishing Husband because he was self-represented. The
court was admonishing Husband because he was delaying the
proceedings by raising baseless objections. The court had reason
to believe that Husband was trying to keep it from learning the
truth. Husband cannot be the cause of an admonishment, and
then complain the court is biased when it admonishes him.
(c)
Husband complains the trial court refused to admit his
audiovisual exhibits into evidence. The claim is not supported by
the record.
The trial court told Husband that each audiovisual item
must be submitted on a separate flash drive. Husband points to
no objection having been raised at trial. Husband claims while
the court and parties were off the record, the court ruled he could
not submit an audio recording. The audio recording is not in
evidence.
First, the failure to object on the record in the trial court
waives any claim of error on appeal. (Hernandez v. First Student,
Inc. (2019) 37 Cal.App.5th 270, 280.) Second, Husband wants us
to presume error from a silent record. Where the record is silent,
we presume there was no error. (Verio Healthcare, supra, 3
Cal.App.5th at p. 1327.) Third, Husband submits no authority to
support his claim that the court erred in its treatment of the
audiovisual evidence.
(d)
Husband contends the trial court denied him due process
by proceeding with the hearing despite the failure to serve him
with the DVRO request.
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At the beginning of the hearing, Husband told the court: “I
wanted to advise the Court that I was never served with the
Respondent’s DV 100 or with the temporary restraining order.
And I have a copy of the docket which shows that there was never
any proof of service filed for those documents. That’s number
one.”
The statement was followed by Husband raising a number
of other unrelated points, including advising the trial court that
he had an opening statement. Husband also asked the court if it
would allow “speaking objections” and if he could testify in
narrative form. Husband then fully participated in the hearing.
Husband’s statements, “I was never served,” and “I have an
opening statement,” are ambiguous at best. Any ambiguity was
resolved when Husband questioned the trial court about the
procedures that would govern the hearing and participated in the
hearing without objection. Husband waived service and
submitted to jurisdiction of the court. (See Olcese v. Justice’s
Court of First Judicial Township (1909) 156 Cal. 82, 87 [“the
well-settled rule [is] that if a defendant wishes to insist upon the
objection that he is not in court for want of jurisdiction over his
person, he must specially appear for that purpose only, and must
keep out for all purposes except to make that objection”].)
Moreover, in the same proceeding, Husband was seeking a
DVRO against Wife. A party who seeks relief from the court
cannot also object in the same proceeding that the court lacks
jurisdiction. (In re Clark (1899) 125 Cal. 388, 392.)
(e)
Husband claims the trial court became embroiled in the
case and intervened as an advocate.
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At the end of Wife’s case, Husband stipulated to entering
into evidence a recording of a telephone conversation Husband
had with Daughter. The conversation concerned the parties’
marital difficulties. Daughter was upset and crying. The trial
court commented, “This is the most outrageous thing I’ve ever
heard.”
The trial court was understandably upset. The
conversation was entirely inappropriate between a father and a
13-year-old daughter. The court was concerned about Daughter’s
mental health. The court was not acting as an advocate. It was
simply reacting to the evidence.
Prior to Husband’s testimony at the beginning of his case,
the trial court told husband:
“I’m a judge and you’re in court and I don’t mess around,
and they have proven that your conduct is adequate to get a
restraining order. Some of the most bizarre stuff that I have ever
heard testimony about.
“So I have no problem with people marrying people from
different cultures and doing whatever they want. I have no
problem with people having open marriages. I don’t have any
problem with that. I have a big huge legal problem with the
threats of violence and control, and so you can play legal if you
want, but I invite you to tell me your side of the story. So I don’t
think that you’re one of the strangest fathers that I have ever
met.”
The trial court could have employed better language, but it
was not acting as an advocate. The court simply advised
Husband about the state of the evidence: that Wife made a very
strong prima facie case for a DVRO, including from the recording
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Husband stipulated into evidence. The court invited Husband to
tell his side of the story to overcome Wife’s prima facie case.
Husband lists without exposition other instances of what
he considers advocacy by the trial court. Suffice it to say, the
record does not support his claims.
IV. Husband’s Request for a DVRO
Husband contends the trial court denied his request for a
DVRO against Wife without explanation and refused to hold an
evidentiary hearing.
But the trial court held an evidentiary hearing. Husband
had the full opportunity to present his case, and he testified at
length. If Husband had more to add, he cites to no objection to
ending the hearing or any offer of proof as to what additional
evidence he had.
There was no need for the trial court to explain why it
ruled against Husband. The explanation is obvious. The court
found Husband not to be credible.
V. Totality of Circumstances
Husband contends the trial court failed to consider the
totality of the circumstances.
Husband’s brief in support of the contention consists of
nothing more than a list of items where he asserts the trial court
failed. There is no expository argument, no citation to authority,
and, for many of the items, no citation to the record. The
contention is waived. (Coziahr v. Otay Water Dist. (2024) 103
Cal.App.5th 785, 799.)
VI. Daughter’s Counsel Did Not Testify
Husband contends the trial court erred in allowing
Daughter’s counsel to testify.
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Daughter’s counsel made an offer of proof as to what
Daughter would say if she testified. Daughter’s counsel also
replied positively to the trial court’s question about how
Daughter is doing in Wife’s custody.
An offer of proof is not testimony. Nor is it testimony for
counsel to inform the trial court of her position on Wife’s custody
of Daughter. In any event, Husband raised no objection. Any
error is waived.
VII. Inclusion of Daughter in DVRO
Husband contends the trial court erred in including
Daughter in the DVRO without finding she would be endangered
without the DVRO.
Where the record is silent, we presume the trial court made
all findings necessary to support the order or judgment.
(Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th
42, 58.)
Husband argues there is no evidence that Daughter might
be in danger absent her inclusion in the DVRO. Husband
threatened to kill his entire family. That alone mandates that
Daughter be included in the DVRO. In addition, Husband
attempted to hit Wife and Daughter with his car as they fled his
domestic violence. The psychological effect on Daughter of being
exposed to Husband’s domestic violence is also ground for
including her in the DVRO. In all, the evidence compelled the
trial court to include Daughter in the DVRO.
VIII. Litigation Privilege
Husband contends the trial court erred in admitting
communications privileged under Civil Code Section 47,
subdivision (b).
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Civil Code section 47, subdivision (b) is called the litigation
privilege. The privilege bans a tort action for damages for
communications made relating to a judicial proceeding. (Hagberg
v. California Federal Bank (2004) 32 Cal.4th 350, 360.) This
action does not involve tort liability based on communications. In
any event, Husband points to no objection having been raised
under Civil Code section 47, subdivision (b).
IX. Video Recorded Deposition
Husband contends the trial court erred in refusing to admit
Wife’s video recorded deposition.
At the end of Wife’s testimony, the trial court asked
Husband if he had any questions for Wife. Husband replied that
he would like to present Wife’s deposition. Daughter’s counsel
objected that there is no official transcript of the video. Husband
replied that he has a transcript, but it is not certified. The court
sustained the objection.
Code of Civil Procedure section 2025.340, subdivision (m)
provides in part: “If no stenographic record of the deposition
testimony has previously been made, the party offering an audio
or video recording of that testimony under Section 2025.620 shall
accompany that offer with a stenographic transcript prepared
from that recording.”
Husband argues Code of Civil Procedure section 2025.340,
subdivision (m) does not require a certified transcript. We need
not make a definitive interpretation of the subdivision.
Assuming the trial court erred, it is not enough for Husband to
show error, he also has the burden of showing prejudice arising
from the error. (Meyer v. Lindsey (1941) 42 Cal.App.2d 698, 700.)
He makes no attempt to show prejudice.
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DISPOSITION
The judgment is affirmed. Husband is to bear his own
costs.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
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James F. Rigali, Judge
Superior Court County of Santa Barbara
______________________________
K.L., in pro per., for Appellant.
No appearance for Respondent.