DocketNumber： A163818
Filed Date： 3/29/2023
Status： Precedential
Modified Date： 3/30/2023
Filed 3/29/23 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR JOANNA RIVERA, A163818 Plaintiff and Appellant, v. (Marin County Super. Ct. Nos. FL1903763, DAVID HILLARD, FL1903800) Defendant and Respondent. While their marriage dissolution proceeding was pending in Virginia, David Hillard and Joanna Rivera, previously known as Joanna Hillard, filed dueling requests for domestic violence restraining orders in Marin County Superior Court under the Domestic Violence Prevention Act (DVPA), Family Code section 6200 et seq.1 After trial, the family court found both parties had committed domestic violence and issued mutual restraining orders. The court also found that Joanna2 had obtained orders temporarily excluding David from his residence under false pretenses, and then damaged and confiscated substantial amounts of David’s property, so it conducted a second hearing on restitution and issued a substantial award. Joanna challenges both the sufficiency of the findings supporting the mutual restraining orders and various aspects of the restitution award. We affirm. Unless otherwise specified, further statutory references are to the 1 Family Code. 2As is customary in family law cases, we refer to the parties by their first names for purposes of clarity and not out of disrespect. 1 BACKGROUND The parties were married in 1999. At the time, David had substantial assets, some of which he used to buy a residence on Eagle Drive in the City of Novato, where the parties lived for much of their marriage, and some of which he liquidated to purchase stocks, bonds and other investments. A few years into the marriage, David left his employment to focus, full time, on managing these investments and began to diversify into nontraditional investment vehicles, such as precious metals, original artwork, antique firearms, wine, and watches. These items were located (along with purchase documentation) at Eagle Drive. In August 2017, the parties and their two teenage children moved to Virginia. They maintained the Eagle Drive property, as well as a home in Lake Tahoe. 1. Dissolution Proceedings David and Joanna separated in June 2018 and David filed for divorce in Virginia. A child-custody trial commenced that summer. In October 2018, the parties entered into a custody and support agreement (CSA). Section 2.7 of the CSA acknowledged David’s ownership of Eagle Drive and provided “he shall have exclusive use and possession of said property upon execution of this agreement.” The CSA was incorporated into a Virginia order in November 2018. In August 2019, the parties entered into a mediated marital settlement agreement (MSA). It incorporated the CSA and provided, among other things, for separation, support and property division. With respect to Eagle Drive, it 2 obligated David to buy out Joanna’s interest3 by January 15, 2020. However, it also stated that the CSA “shall remain in full force and effect,” leaving intact David’s right to exclusive use and possession of the property. The MSA further made each party the sole and separate owner of his or her personal possessions, such as jewelry, watches, purses, clothing, personal electronic devices, books and papers, and sports equipment. It provided “[a]ll artwork shall be David’s sole and separate property” and set forth a process for appraisal and buyout or, alternatively, division of proceeds, in the event certain artwork was sold; a process for dividing wine located at Eagle Drive; and an agreement that, by December 31, 2019, the parties would reach a further agreement about how to divide personal property other than wine, art, and furniture. Finally, the MSA provided for the Virginia court to retain jurisdiction to divide any assets that “either party has failed to disclose” with a net value of $10,000 or more. A final judgment of divorce was entered in the Virginia action on September 30, 2019. 2. The September 2019 Altercation and Aftermath On September 25, 2019, David and Joanna had an altercation at Eagle Drive, where David was residing. Although they were separated, he had occasionally permitted Joanna to stay overnight.4 Joanna had returned from Virginia the night before and, despite having a rental unit nearby, asked to stay for a night; David had reluctantly agreed. The next day, when she asked 3 Although David disputes Joanna held any ownership in the property, the terms of the dissolution settlement are not disputed, and the ownership issue is not material, here. 4David represents, and Joanna does not dispute, that the parties had separated in June 2018 and began maintaining separate residences shortly thereafter. 3 to stay a second night, an argument ensued. David called the police to have Joanna removed. Before the police arrived, the parties tussled over a bottle of David’s cologne and Joanna hit her elbow on a kitchen counter, causing a laceration. The police arrested David and issued an emergency protective order, including an order to stay away from Eagle Drive. A box was checked on the form and order indicating that Joanna “lives with the person to be restrained and requests an order that the restrained person move out immediately from” Eagle Drive. When asked what she told the police, Joanna denied showing the police a driver’s license listing Eagle Drive as her residence. She testified she told the police that she “was at the residence”; she could not recall whether she said she lived there. 3. The Parties Initiate Domestic Violence Proceedings On October 2, 2019, Joanna filed a request for domestic violence restraining order (DVRO), including temporary restraining order (TRO). She alleged several incidents of domestic violence, including the September 25 altercation. She asked for an order excluding David from Eagle Drive and for control of the residence and all personal property located there. Joanna asserted a right to occupy the home, claiming she had a “community property interest” and describing it as “our family residence” and “our home” (despite having signed the CSA granting David exclusive possession). On October 4, 2019, David filed his own request for DVRO. He asked the court to exclude Joanna from Eagle Drive and sought a “property control” order for the residence. He alleged the CSA had awarded him “exclusive use and possession” of the home and a divorce decree had been entered awarding 4 the residence to him.5 David sought a “property restraint” order that Joanna “not . . . sell, hide, or get rid of or destroy any possessions or property, except in the usual course of business or for the necessities of life.” Although David did not check box 21 for an order of restitution, he described in detail Joanna’s entry into his office and desk and her eventual success in opening his safe, and expressed concern she might take his money and other personal property. The family court granted Joanna’s request for a TRO, among other things, temporarily excluding David from Eagle Drive. David’s request for TRO was denied. Joanna remained in possession of Eagle Drive until January 12, 2020. In October, the court granted a civil standby for David to retrieve certain personal items from the premises.6 During the months he was excluded from Eagle Drive, David incurred out-of-pocket expenses for lodging and a rental car. When David was permitted to return to Eagle Drive, he “found a catastrophe.” Rooms had been upturned, drawers forced open, and the attic and crawl spaces cleaned out. Joanna (with two “investigators”) had thoroughly searched the house, breaking locks and hacking into David’s computer. His computer and security cameras were damaged. Many items were missing, including hard drives, an office safe, cash, original artwork, jewelry, and ice chests full of gold and silver coins that had been stored in the garage attic and gun safe. Because paper receipts and David’s check ledger 5 This award was subject to the buy-out payment which was not yet due or paid. 6Joanna asserts that David and his attorney used this opportunity to surreptitiously remove from the property a carry-on suitcase full of gold, which David denies. 5 were also missing, and electronic records were no longer available for some items, David was unable to fully document his losses. 4. Trial of the Parties’ Dueling Domestic Abuse Allegations Over the course of four days in 2019 and 2020, the court heard testimony and received evidence on both restraining order requests. The parties submitted closing briefs, the matter was taken under submission and, on February 28, 2020, the court issued a detailed written order (the restraining order) ruling on their dueling requests. The court found that, of Joanna’s numerous abuse allegations, she proved two: first, during an argument in 2018, David became angry and threw various objects at Joanna and second, during the September 2019 incident described above, David “forcibly grabbed [Joanna]’s phone and threw it in the bushes.” (The court found Joanna failed to prove her elbow laceration was the result of domestic violence.) The court issued a stayaway order against David. The court also found that Joanna had committed abuse, following David’s arrest and subsequent exclusion from Eagle Drive, by “confiscating and destroying [David]’s property,” which “improperly disturbed [David’s] peace in violation of section 6203.” The court issued a stayaway order against Joanna and ordered her to vacate Eagle Drive. In discussing restitution, the court stated that Joanna must return the property she took and set a hearing date “to consider the amount of restitution owed, if any.” It ordered David to file an accounting, including “all items specified in [David]’s testimony,” and Joanna to file a response detailing items that had been returned or reimbursed. While the restitution issue was pending, neither party appealed the restraining order. 6 5. The Restitution Trial David filed an accounting and supporting documentation on June 30, 2020, alleging lost cash, lost property, and property damage in a total value exceeding $245,000. Joanna objected to restitution on various legal grounds (including the existence of the Virginia dissolution proceeding, and orders therein), admitted that she had taken $11,530 in cash but denied taking any of the other items set forth in David’s accounting; and failed to dispute his valuations. The restitution hearing was conducted over nine days between June 2020 and May 2021. During the proceedings, David obtained an order allowing inspection of a storage unit where Joanna allegedly stored items she took from Eagle Drive. Joanna filed a “motion in limine” reiterating her legal objections to the restitution proceeding and sought the recusal of the judge due to bias; her motions were denied. After the trial, Joanna filed a motion for mistrial, which the court agreed to review before issuing a final decision. On July 27, 2021, the court entered its final decision (the restitution order); the notice of entry of order was filed August 11, 2021. 6. The Restitution Order Initially, the restitution order reiterated the following findings from the restraining order: (1) despite the CSA provision giving David “exclusive use and possession of the property at Eagle Drive,” Joanna had falsely represented in her ex parte application for exclusion order “that she had a right to be in the home and to take sole possession of the home”; (2) during David’s exclusion, Joanna and her assistants had searched David’s office, attic, computers, hard drives and financial documents; obtained a list of passwords to his devices; and forced open his safe and broke a lock on a 7 suitcase, accessing thousands of dollars in cash and gold coins, a firearm, and identification cards; (3) Joanna’s testimony during the restraining order hearing was self-contradictory and not credible; and (4) Joanna was required to “return any property she confiscated when she improperly took possession of the home” by March 20, 2020. The order then described evidence admitted during the nine-day restitution hearing, including David’s accounting; his expert valuation report; Joanna’s video/photo footage of the October 2019 civil standby, during which Joanna claimed David had surreptitiously taken a suitcase of gold; and photos of items found in Joanna’s storage unit in April 2021. (The items depicted had, as of 2019, been stored in David’s garage attic—along with other valuables that had gone missing and not been recovered.) The family court also took judicial notice of documents, such as the final order of divorce, MSA, CSA, and pleadings in this action. The restitution order then summarized pertinent testimony, including David’s as to how he found Eagle Drive upon regaining possession, the personal items that had gone missing, the purchase prices and replacement values for those items, and the items he found in Joanna’s storage unit. It also described the testimony of David’s expert on valuation and appreciation of the missing precious metals. And it discussed Joanna’s testimony, including her admission that she took $11,530 in cash and her claim that she did not take any other items (including items found in her storage unit). In its analysis, the court first noted its prior finding that Joanna confiscated and destroyed property in David’s home and its prior determination that she must return it and framed the issue presented as “the amount of restitution owed.” The court then made credibility findings, describing David’s testimony as “detailed, corroborated, and credible,” and 8 Joanna’s (including that she took no gold and that David and his attorney had surreptitiously removed a suitcase of gold from Eagle Drive during the civil standby) as lacking credibility. It gave little weight to the testimony of her “investigator” Jerry Rivera, whom she had since married. The family court found Joanna “has not returned any items, even the $11,530 in cash that she admitted to taking.” It again rejected her claimed right to remove property from Eagle Drive and her assertion that the Virginia court’s property-division orders precluded restitution. The court ordered Joanna to return specified items by August 26, 2021 and, for any item not returned, to pay an assigned monetary amount, with interest.7 It further ordered Joanna to pay $6,017.74 for David’s out-of-pocket expenses for car rental and hotel charges and $737.07 in replacement and repair costs for property damage, and to return his check ledgers, hard drives, laptops and financial records. 7. Further Proceedings In addition to her mistrial motion, which was denied, Joanna unsuccessfully sought to vacate the restitution order, and asked for attorney fees and for other relief. She also challenged the trial judge for cause, pursuant to Code of Civil Procedure section 170.3. In May 2021, the challenge was stricken for failure to state any facts constituting a ground for disqualification. On October 12, 2021, Joanna filed another challenge, this time pursuant to Code of Civil Procedure section 170.1, which was also denied. Finally, Joanna filed a notice of appeal on October 21, 2021. DISCUSSION Joanna assigns numerous errors to the family court, including that the restraining order did not include findings, required by section 6305, 7 The value of these items, excluding interest, totaled $387,224.61. 9 subdivision (a)(2), to support mutual restraining orders; that the court exceeded its authority under section 6342 in awarding restitution for confiscated items; that the court’s decisions were driven by bias (in violation of Joanna’s right to due process) and a lack of “informed discretion”; and that the court intruded on the jurisdiction of the Virginia court presiding over the parties’ dissolution case and failed to accord “full faith and credit” to its orders. She also asserts that certain findings are not supported by substantial evidence. I. Timeliness of Joanna’s Appeal of the Restraining Order and Order Striking Challenge for Cause First, we address David’s contention that Joanna did not timely appeal the restraining order. He is correct. The Code of Civil Procedure makes “an order granting or dissolving an injunction, or refusing to grant or dissolve an injunction” appealable. (Code Civ. Proc., § 904.1, subd. (a)(6).) This includes an order granting or denying a request for DVRO. (In re Marriage of Carlisle (2021)60 Cal.App.5th 244
, 255; S.M. v. E.P. (2010)184 Cal.App.4th 1249
, 1257–1258; Loeffler v. Medina (2009)174 Cal.App.4th 1495
, 1502, fn. 9.) The restraining order was entered and served on February 28, 2020. Joanna had six months to appeal the order. (Cal. Rules of Court, rule 8.104(a)(1)(C), (e).) She filed her notice of appeal on October 21, 2021. We therefore lack jurisdiction to consider her appeal from the restraining order. (Cal. Rules of Court, rule 8.104(a)(1)(C), (e); Strathvale Holdings v. E.B.H. (2005)126 Cal.App.4th 1241
, 1248.) Joanna argues that the restraining order was not final for purposes of appeal until restitution was finally determined, as the order itself set a further hearing on restitution. However, the restraining order reserved only as to restitution and attorney fees. Nothing in the record or the order itself 10 suggests that the stayaway and custody orders contained therein were anything other than final. Even an order granting a preliminary injunction is immediately appealable; the fact that final judgment remains to be entered does not extend the time to appeal. (County of San Diego v. State of California (1997)15 Cal.4th 68
, 110.) Nor does the issuance of later orders on related issues extend the time to appeal separately appealable, earlier orders. (See In re Marriage of Padilla (1995)38 Cal.App.4th 1212
, 1216 [sequential child support orders]; In re Shaun R. (2010)188 Cal.App.4th 1129
, 1139–1131 [sequential juvenile court orders]; In re Cassandra B. (2004)125 Cal.App.4th 199
, 208–209 [in dependency action, holding that appeal from initial restraining order was untimely, notwithstanding party’s timely appeal from later, related restraining order].) Joanna asserts that, for purpose of the timeliness of this appeal, treating the restraining order as separate from the restitution order would violate the single judgment rule, citing San Joaquin County Dept. of Child Support Services v. Winn (2008)163 Cal.App.4th 296
(Winn). Winn concerned the appealability, prior to entry of final judgment, of an interim order for genetic testing in a parentage and support action. It held the genetic testing order was not a “final judgment” appealable under Code of Civil Procedure section 904.1, subdivision (a)(1), as it did not finally determine the rights of the parties in relation to the matter in controversy.8 (163 Cal.App.4th at pp. 299–300.) By contrast, the restraining order resolved the core issue in this case—whether any party had committed “abuse” warranting the 8Further, in declining to treat the appeal as a writ, the court characterized the testing order as “interim” in nature, essentially a “discovery” order. (Winn, supra, 163 Cal.App.4th at p. 300.) 11 issuance of a restraining order. Moreover, Winn did not consider whether the genetic testing order was an “injunction,” under section 904.1, subdivision (a)(6). (Ibid.) As an appealable injunction under that provision, the restraining order is not fairly analogized to an interim discovery order, appealable only upon entry of final judgment. Joanna also attempts to collaterally attack the restraining order under People v. American Contractors Indemnity Co. (2004)33 Cal.4th 653
. She argues that collateral attack is permitted because the procedural posture in this case was “rather unusual” and the restitution hearing had been rescheduled due to the COVID-19 pandemic. American Contractors involved a surety that failed to timely appear upon forfeiture of the bond. (American Contractors v. American Contractors Indemnity, supra, 33 Cal.4th at p. 659.) Summary judgment was entered, albeit prematurely, on the bond. (Ibid.) The surety did not timely appeal, and later moved to set aside the (then final) judgment. The trial court found it lacked jurisdiction to consider the motion. (Id. at p. 660.) The Supreme Court held that collateral attack on the voidable judgment was not permitted because the surety had not demonstrated it was prevented from timely filing a motion to set aside or notice of appeal. (Id. at pp. 663–665.) The court rejected the notion that uncertainty regarding the appealability of the summary judgment, or appellant’s concerns regarding the potential jurisdictional impact of an appeal, constituted “unusual circumstances . . . that precluded earlier challenge of the judgment.” (Id. at p. 665.) Joanna does not explain how a continuance of the restitution hearing or an unusual procedural posture impacted her ability to file a notice of appeal. Her grounds are indistinguishable from those that were rejected in American Contractors. Thus, we find no basis for collateral attack. 12 Joanna’s challenges to the restraining order (including the arguments set forth in section III of her opening brief) are therefore untimely, and we lack jurisdiction to consider them. David also objects to Joanna’s appeal to the extent it is premised on the family court’s purported bias, including the contention that it was error to strike Joanna’s motion to disqualify the trial judge for judicial bias. David asserts that this aspect of Joanna’s appeal is procedurally barred because she failed to timely challenge the order by writ of mandate. We agree. The exclusive avenue for review of orders regarding disqualification is by writ of mandate. (Code Civ. Proc., § 170.3, subd. (d); PBA, LLC v. KPOD Ltd. (2003)112 Cal.App.4th 965
, 970–971; In re Marriage of Hubner (2004)124 Cal.App.4th 1082
, 1088, fn. 10.) Thus, to the extent Joanna assigns error for the trial judge’s alleged bias and failure to recuse, this is not a proper (or timely raised) subject of appeal.9 II. The Scope of Restitutionary Relief Available under Section 6342, subdivision (a)(1) Joanna contends that the family court exceeded its statutory authority, under section 6342, when it ordered restitution not just for David’s lodging and auto expenses, but for “items purported [sic] removed or damaged by Joanna.” Subdivision (a)(1) of section 6342 authorizes “[a]n order that restitution be paid to the petitioner for loss of earnings and out-of-pocket expenses, including, but not limited to, expenses for medical care and temporary housing, incurred as a direct result of the abuse inflicted by the 9 Joanna also forfeited her claim that judicial bias deprived her of due process by failing to timely seek writ relief. (People v. Brown (1993)6 Cal.4th 322
, 336 [defendant in death penalty case who unsuccessfully sought writ review of motion to disqualify for cause could raise due process judicial bias claim on appeal; noting, however, that failure to seek writ review “may constitute a forfeiture of his constitutional claim”].) 13 respondent or any actual physical injuries sustained from the abuse.” Subdivision (b) of section 6342 precludes any award of restitution for “damages for pain and suffering.” The Family Code does not define “restitution,” “lost earnings,” or “out-of-pocket expenses.” Joanna’s opening brief, beyond quoting the text of the statute, does not develop her argument. It does not cite to any authorities construing section 6342, identify the relevant rules of statutory construction, or discuss pertinent legislative history. For his part, David responds that section 6342 should be construed broadly to provide him with full financial compensation and recovery for any losses caused by Joanna’s wrongful conduct, citing restitution cases decided under the unfair competition law (Bus. & Prof. Code, § 17200 et seq.) and Penal Code section 1202.4. We need not rely by analogy on other statutes, however, for it is well established that the DVPA should “be broadly construed in order to accomplish [its] purpose.” (In re Marriage of Nadkarni (2009)173 Cal.App.4th 1483
, 1498.) A. Applicable Rules of Statutory Interpretation We review issues of statutory interpretation de novo. (J.H. v. G.H. (2021)63 Cal.App.5th 633
, 641.) “[O]ur fundamental task is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’ ” (Burquet v. Brumbaugh (2014)223 Cal.App.4th 1140
, 1145.) We must “ ‘select the construction that comports most closely with the Legislature’s apparent intent, with a view to promoting rather than defeating the statutes’ general purpose.’ ” (Poole v. Orange County Fire Authority (2015)61 Cal.4th 1378
, 1385.) “[W]e start with the statute’s words, assigning them their usual and ordinary meanings, and construing them in context. If the words themselves are not ambiguous, we presume the Legislature meant what it said, and the 14 statute’s plain meaning governs.” (Wells v. One2One Learning Foundation (2006)39 Cal.4th 1164
, 1190.) “ ‘When attempting to ascertain the ordinary, usual meaning of a word [in a statute], courts appropriately refer to the dictionary definition of that word.’ ” (Burquet v. Brumbaugh, supra, 223 Cal.App.4th at p. 1146.) We also derive plain meaning in context, considering statutory structure and the text of related provisions. (See Poole v. Orange County Fire Authority,supra,
61 Cal.4th at pp. 1391–1393 (conc. opn. of Cuellar, J.) [statutory context may elucidate the meaning of otherwise “plain language” and inform as to existence of ambiguity in the first instance].) Even where a statute is unambiguous, we “ ‘ “may also look to a number of extrinsic aids, including the statute’s legislative history, to assist us in our interpretation.” ’ ” (J.H. v. G.H., supra, 63 Cal.App.5th at pp. 641– 642.) We may consider the consequences of a particular interpretation, including its impact on public policy (Wells v. One2One Learning Foundation,supra,
39 Cal.4th at p. 1190) and we endeavor to avoid constructions that would lead to unreasonable, impractical or arbitrary results (Poole v. Orange County Fire Authority,supra,
61 Cal.4th at p. 1385). B. Restitution: General Principles “Restitution” is “ ‘ “an ambiguous term, sometimes referring to the disgorging of something which has been taken and at times referring to compensation for injury done.” ’ ” (People ex rel. Kennedy v. Beaumont Investment, Ltd. (2003)111 Cal.App.4th 102
, 134.) It is commonly understood to mean “ ‘the act of making good, or of giving an equivalent for, loss.’ ” (Walnut Creek Manor v. Fair Employment & Housing Com. (1991)54 Cal.3d 245
, 263.) “Restitutive damages . . . are quantifiable amounts of money due an injured private party from another party to compensate for the pecuniary 15 loss directly resulting from the second party’s violation of law.” (Ibid.) By contrast, general compensatory damages (e.g., for emotional distress) “are not pecuniarily measurable, defy a fixed rule of quantification, and are awarded without proof of pecuniary loss.” (Ibid.) The restitution order is consistent with these principles. Having found that Joanna violated the DVPA by taking money and personal property from David’s residence (§ 6203; § 6320, subd. (a) [“abuse” includes destruction of property]; § 6320, subd. (c) [abuse includes disturbing another party’s peace through “coercive control” of “the other party’s finances [or] economic resources”]) and determined that David’s losses were “incurred as a direct result of the abuse” (§ 6342, subd. (a)(1)), the court gave Joanna the opportunity to “mak[e] good” the losses by returning the money and property taken. (Walnut Creek Manor v. Fair Employment & Housing Com.,supra,