Goodman v. Perry CA2/2

Filed 3/29/23 Goodman v. Perry CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
NICOLE GOODMAN, B312424
Plaintiff and Appellant, (Los Angeles County
Super. Ct.
v. No. 20VERO01502)
JOHN QUENTIN PERRY,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Firdaus F. Dordi, Judge. Affirmed.
Nicole D. Goodman, in pro. per., for Plaintiff and Appellant.
John Perry, in pro. per., for Defendant and Respondent.
******
Nicole Goodman appeals from the trial court’s denial of her
request for a domestic violence restraining order (DVRO) against
respondent John Quentin Perry. Goodman argues that the trial
court erred because it failed to consider the totality of the
circumstances, failed to consider Perry’s alleged violations of the
temporary restraining order (TRO), and failed to consider Perry’s
alleged postfiling abuse.
We find no abuse of discretion in the trial court’s denial of
Goodman’s request for DVRO and affirm the judgment.
BACKGROUND
Goodman and Perry met in May 2020 in connection with
Goodman’s online purchase for her son. Perry followed up after
the transaction, claiming he wanted to make sure everything was
okay with the purchase. Perry held himself out to be an investor,
dealer and buyer of numismatic coins, silver, and gold bullion.
Goodman, who owned a valuable coin collection herself,
sought Perry’s help. In June 2020, a brief sexual relationship
developed. At the time, Perry resided in Arizona and Goodman
in California. The two met in person only three times, and each
time Goodman flew to Arizona. Goodman made no claim that
Perry sexually assaulted her or engaged in any physical violence
towards her. Goodman asserts that by August 7, 2020, she
refused to continue a sexual or romantic relationship with Perry.
Goodman alleged that by the end of July 2020 Perry had
control of many of the coins in her coin collection and had not
paid for them. She alleged that she became pregnant in June
2020 and as a result of Perry’s harassment had a miscarriage on
September 24, 2020. Goodman further alleged that Perry used
sex to intimidate her and steal her coins. After Goodman
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reported the coin theft to the Arizona police, Perry and his wife
purportedly harassed Goodman by calling and hanging up,
making false claims to the Phoenix police department, and filing
two requests for restraining orders against her in Arizona.
Goodman alleged as acts of harassment by Perry in her
declaration: threatening to beat up and kill her husband and take
her out to the desert; threats to have his wife killed; threats to
kill himself; cyber-stalking; hang-up calls; obscene and lewd text
messages; and filing the allegedly false injunctions against her in
Arizona. Goodman specified that Perry owned several guns and
threatened to shoot her husband, his wife and himself.
Perry provided a significantly different description of the
facts. He testified that it was he who ended the relationship
because Goodman was using him and trying to get services from
him. After he terminated the relationship, Goodman became
upset because she already had purchased a plane ticket to fly to
Arizona to see him. She demanded Perry pay for the ticket or she
would tell everyone that she was pregnant. Perry testified he
never threatened or hurt Goodman and never threatened to hurt
her husband. After he ended the affair, Goodman continued to
threaten that she would release illicit photos from their affair.
Eventually Goodman contacted Perry’s wife and told her what
they had done and threatened his wife. Both Perry and his wife
filed restraining orders against Goodman in Arizona. Perry
claimed Goodman was blackmailing him. The last time Perry
contacted Goodman was on September 17, 2020, when either he
or his wife wrote Goodman a cease and desist letter demanding
that she leave them alone. Perry was residing in Arizona and
had no plans to travel to California.
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When confronted with an e-mail apparently from Perry to
Goodman threatening her husband, Perry denied having written
it. Rather, Goodman had set up that e-mail address for him and
knew the password. Goodman had also sent him a cell phone so
they would not get caught, as Perry’s wife periodically looked at
his cell phone.
On October 19, 2020, Goodman filed her request for DVRO
against Perry. Based on the allegations of abuse, the trial court
issued a temporary restraining order (TRO) on October 19, 2020.
The TRO protected Goodman, her son, and her husband. The
hearing was set for November 9, 2020. The TRO included a
firearm restriction requiring Perry to surrender all firearms and
ammunition in his possession within 24 hours. The TRO also
granted Goodman’s request for return of her coin collection,
which she asserted at the hearing was not done. Goodman asked
the court to order Perry to return her property.
The hearing was continued to March 3, 2021. At the
conclusion of the hearing, the court ruled that Goodman failed to
meet her burden of proof and dismissed with prejudice her
request for a DVRO. The court specified that “there were
credibility issues with both [Goodman’s] and [Perry’s] credibility.”
The court found that the testimony suggested that “[Perry]
sought to end the relationship in August. [Goodman] pushed the
relationship forward. [Goodman] potentially threatened to have
their affair be made public, and then did, in fact, do so based on
[Perry’s] testimony which I found to be credible with respect to
the email that was sent to his wife and how that would impact
him in this situation.” The court found that Perry’s e-mail
suggesting that he would kill himself was not threatening to
Goodman in the context in which it was written, because the
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e-mail noted that he was going to get antidepressants and
anxiety medications so that he could function. The court also
found Perry’s testimony to be credible with respect to his written
request that Goodman cease and desist and in seeking a
restraining order for her conduct. The court viewed with distrust
Goodman’s oral testimony that an e-mail communication from a
stranger actually came from Perry and that Perry sent people
who parked in a car outside of Goodman’s house. The court noted
that an August 16, 2020 e-mail appeared to show that Perry was
the one who wanted to end the relationship.
The court found that Goodman had failed to demonstrate
by a preponderance of evidence that she continued to be
threatened by Perry such that a restraining order was necessary.
The TRO was dissolved and Goodman’s petition denied with
prejudice.
Goodman filed a timely notice of appeal on March 26, 2021.
DISCUSSION
I. Standard of review
A trial court’s decision to grant or deny a restraining order
is reviewed for abuse of discretion. (Rodriguez v. Menjivar (2015)
243 Cal.App.4th 816, 820.) “‘“The appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of
reason. When two or more inferences can reasonably be deduced
from the facts, the reviewing court has no authority to substitute
its decision for that of the trial court.”’” (In re Marriage of G.
(2017) 11 Cal.App.5th 773, 780.)
A trial court’s discretion is not unfettered. “‘“[A]
discretionary order based on an application of improper criteria
or incorrect legal assumptions is not an exercise of informed
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discretion and is subject to reversal.”’” (In re Marriage of D.S. &
A.S. (2023) 87 Cal.App.5th 926, 933.)
We review the trial court’s factual findings for substantial
evidence. (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822.)
Under this standard, “[o]ur sole inquiry is ‘whether, on the entire
record, there is any substantial evidence, contradicted or
uncontradicted,’ supporting the court’s finding.” (Ibid.) “‘We
must accept as true all evidence . . . tending to establish the
correctness of the trial court’s findings . . . , resolving every
conflict in favor of the judgment.’” (Id. at p. 823.) “[T]he
testimony of a single witness is sufficient to uphold a judgment
even if it is contradicted by other evidence, inconsistent or false
as to other portions.” (People v. Leigh (1985) 168 Cal.App.3d 217,
221.) We do not revisit the trial court’s credibility
determinations, as credibility is in the exclusive province of the
trier of fact. (Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 786
[“‘[I]t is the trial court’s role to assess the credibility of the
various witnesses [and] to weigh the evidence to resolve the
conflicts in the evidence.’”].)
Where the parties do not fully develop a factual issue
below, we may exercise our discretion to decline to consider it on
appeal. (Bikkina v. Mahadevan (2015) 241 Cal.App.4th 70, 93,
disapproved on other grounds as stated in Geiser v. Kuhns (2022)
13 Cal.5th 1238, 1248.)
II. No abuse of discretion in denial of the petition for
DVRO
The trial court determined that Goodman failed to meet her
burden of proving by a preponderance of the evidence that Perry
had engaged in a past act or acts of abuse. (Fam. Code, § 6300,
subd. (a); In re Marriage of F.M. & M.M. (2021) 65 Cal.App.5th
6
106, 116.) Goodman has failed to show an abuse of the trial
court’s discretion in denying the DVRO.
The court determined that there were credibility issues
with both Goodman and Perry. With respect to Perry’s denial of
sending a June 29, 2020 e-mail suggesting that he could kill
Goodman’s husband, the trial court found him not credible.
However, the court did not find the e-mail communication to
provide a basis for a restraining order in the context of this case.
The court noted, “The nature of the communication that was
being had with respect to [Goodman] at the time was, you know,
about her husband being alleged a monster by her own words and
[Perry] and [Goodman] having a relationship thereafter . . . .”
The court did not find credible Goodman’s testimony that she
continued the relationship with Perry for fear of losing her coins.
The court also discussed an August 12, 2020 e-mail from
Perry to Goodman in which he threatened to shoot himself and
stated, “I’m going to get on some anti depressants and some
anxiety meds. I can’t function. I”m afraid I will kill myself.
[Sic.]” The court noted that the e-mail was sent shortly after
Perry found out that Goodman was potentially pregnant with his
child. The court stated, “he’s not threatening to hurt her in any
way.” While the court noted that self-harm could be a basis for
abuse, it found that in the context of this case it was not. In
addition, “[I]t’s conditional. And he says he’s going to get some
antidepressants and some anxiety meds . . . .” The court found
that Perry was “dealing out loud with the news that he’s recently
found out. I don’t believe that’s a basis for a restraining order.”
The court then noted that the testimony suggested that
Perry was the one who sought to end the relationship in August.
The court found Perry’s testimony credible on that issue. The
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court relied on an e-mail dated August 16, 2020, in which Perry
indicated he wanted to end the relationship “cordially” and would
be “happy to help you sell your coins in any way that I can from
here.” Perry stated, “I really like you but finally realized (what
you have been telling me all along) that I need to put my family
first.”1
The court also found credible Perry’s testimony with
respect to making a cease and desist request of Goodman and
seeking a restraining order against her.
The court viewed with distrust Goodman’s allegations that
Perry had sent an e-mail from a different e-mail address and had
sent men to sit in a car outside of her home.
We do not revisit the trial court’s credibility
determinations. (Nevarez v. Tonna, supra, 227 Cal.App.4th at
p. 786 [“‘We have no power to judge the effect or value of the
evidence, to weigh the evidence, to consider the credibility of
witnesses or to resolve conflicts in the evidence or the reasonable
inferences which may be drawn from that evidence.’”].) Although
there was conflicting testimony on various aspects of the brief
relationship, we accept the trial court’s resolution of these
conflicts. The substantial evidence described above supports the
trial court’s factual findings that Perry had not engaged in past
acts of abuse, and a DVRO was not warranted.
Goodman argues that the trial court erred in failing to
consider all forms of abuse alleged. She points out that the
1 We reject Goodman’s suggestion that the August 16, 2020
e-mail was not entered into evidence. While rendering its
decision, the court referred to the August 16, 2020 e-mail and
specified that it “is entered into evidence.” There was no
objection.
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Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et
seq.) includes numerous behaviors, including “disturbing the
peace of the other party.” (Fam. Code, § 6320, subd. (a); see
§ 6203, subd. (a)(4).) She argues that the DVPA’s definition of
abuse should “be broadly construed in order to accomplish [its]
purpose.” (In re Marriage of Nadkarni (2009) 173 Cal.App.4th
1483, 1498.) Goodman argues that the trial court failed to
evaluate the totality of circumstances and failed to consider
whether Perry’s actions disturbed her peace. (Citing In re
Marriage of F.M. & M.M, supra, 65 Cal.App.5th at p. 119.)
Goodman argues that, had the court considered all of Perry’s
conduct, it should have determined that Goodman established
abuse sufficient to support the issuance of a DVRO.
The trial court was not bound to adopt Goodman’s view of
the evidence. The record shows that the court carefully
considered all of the evidence, made determinations of credibility,
and came to the reasonable conclusion that a DVRO was not
warranted. While we acknowledge that Goodman has a different
perspective, we may not re-evaluate the evidence. (Sabbah v.
Sabbah, supra, 151 Cal.App.4th at p. 822.)
Goodman argues that the trial court limited its evaluation
to only corroborated evidence at the hearing, and declined to
consider her declaration. On the pages of the record Goodman
cites, there is no indication that the trial court declined to
consider her declaration. The trial court did make clear that it
had serious concerns about the credibility of both parties. The
trial court’s determination as to the specific evidence it would
rely upon for credibility reasons is not a determination that this
court may reassess. (Nevarez v. Tonna, supra, 227 Cal.App.4th
at p. 786.)
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Goodman insists that evidence that Perry threatened her
husband was uncontradicted because the trial court found Perry’s
denial of sending the e-mail not credible. Goodman insists that
the court erred in finding that the threat was not a basis for a
restraining order in the context of this case. The court reasoned
that Goodman had been telling Perry that her husband was a
monster and that Goodman continued the relationship after this
e-mail, thus demonstrating that she did not feel threatened. We
note that the trial court found Goodman’s testimony that she
continued the relationship in order to get her coins back to lack
credibility.
Contrary to Goodman’s position, the trial court’s
determination was within the bounds of reason considering the
totality of circumstances. The evidence showed that Goodman
continued to engage with Perry after the threatening e-mail and
thereafter Perry was the one who sought to cut off the
relationship. The court was not required to find this e-mail—or
this e-mail considered together with Perry’s threat to kill
himself—to be an act of abuse. (In re Marriage of Fregoso &
Hernandez (2016) 5 Cal.App.5th 698, 702 [trial court “has broad
discretion in determining whether to grant a petition for a
restraining order” under the statutory scheme].) Instead, the
trial court was required to exercise its judgment to determine
whether a restraining order could help prevent abuse or threats
from occurring in the future. (See Fam. Code, §§ 6220, 6300.)
We find no abuse of discretion in the trial court’s
determination that the threats did not amount to abuse sufficient
to warrant a DVRO in this case. The trial court was in the best
position to evaluate the evidence before it, and it did not exceed
the bounds of reason in this case.
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III. Consideration of TRO violations
Goodman argues that the trial court erred in failing to
consider Perry’s violations of the TRO. Goodman cites N.T. v.
H.T. (2019) 34 Cal.App.5th 595, 602, as support for her position
that violations of the TRO may constitute disturbing the peace of
the other party and justify issuance of a DVRO. Goodman alleges
Perry violated the TRO by failing to relinquish his firearm and
failing to return her coin collection.
Perry’s counsel stated in court that Perry is a gun owner
and that “[h]e does own a single gun.” Counsel also represented
that Perry surrendered the gun, and counsel had proof of the
surrender. Counsel indicated that “[i]t was surrendered at his
local police station.” Goodman provides no citation to the record
suggesting that she objected to Perry’s counsel making this
representation to the court. Thus, her objection on appeal is
forfeited. (People v. Fuiava (2012) 53 Cal.4th 622, 673.)
The court was not required to accept Goodman’s statement that
“[Perry] told her that he has more than one, he had several guns.”
In the face of conflicting evidence, we must defer to the trial
court. (Sabbah v. Sabbah, supra, 151 Cal.App.4th at p. 822.)
As to the coin collection, Goodman represented that the
coins had not been returned, but “there is an active criminal
investigation into these coins in Arizona.” While the court
initially signaled an intent to take up the coins “to that limited
extent” of determining a TRO violation, Perry’s counsel stated,
“the only problem with that is that there’s an issue as to whether
the coins were even received by my client in the first place and
which coins were received by him.” Because the coins were not
clearly identified, the court felt that the DVRO hearing was not
the place to solve the coin issue. The court stated, “That
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shouldn’t even be in this court. That should be in a different
court altogether if it’s just a return of property issue.”
The court’s decision to decline to hear the coin issue was
appropriate under the circumstances. We note that any
determination the trial court might have made could have
interfered with a pending criminal investigation. (See Pacers,
Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 690 [noting
that “when both civil and criminal proceedings arise out of the
same or related transactions, an objecting party is generally
entitled to a stay of discovery in the civil action until disposition
of the criminal matter”].) This is because it is inherently unfair
to compel disclosure of a potential criminal defendant’s evidence
and defenses before trial. (Ibid.) These rules apply even when
the civil defendant is not yet a criminal defendant, but is
threatened with prosecution. (Ibid.) Due to the complexity of the
facts relating to the coins, and the pending criminal
investigation, the trial court properly declined to incorporate the
property issue into its decision on the DVRO.
IV. Alleged postfiling abuse
Goodman testified at the hearing that Perry continued
harassing her through third parties in violation of the TRO.
First, she testified that in January 2021, she received a message
from a fake Facebook profile seeking a romantic relationship.
She explained that her computer forensic software traced it to the
same internet protocol address as Perry’s. She then testified that
a man came to her home in January 2021 leaving a piece of paper
with both their names on it. She said the man said he “had a
special delivery” for her nine-year-old son. She also testified that
there were men parked in a car outside her home surveilling her
house.
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In rendering its decision, the court acknowledged this
testimony. However, the court found that the testimony lacked
credibility. The court explained its reasoning for finding this
testimony to lack credibility:
“[W]e heard a lot of testimony about . . .
confirming IP addresses with respect to . . .
communication from a stranger that was sent, . . .
people that were parked in a car, all of that. There’s
other things that could have corroborated those
things that weren’t presented like confirming the IP
address having come from [Perry’s] residence . . . [¶]
But that wasn’t presented.”
Thus, the court viewed Goodman’s testimony regarding
these events with distrust. Goodman asserts that the court
improperly rejected her testimony, which constituted “reasonable
proof” of prior abusive conduct. (Citing Fam. Code, § 6300.)
Goodman asserts that “reasonable proof” may consist of
testimony from the party requesting the DVRO. (In re Marriage
of Fregoso & Hernandez, supra, 5 Cal.App.5th at page 703.)
Goodman cites In re Marriage of F.M. & M.M., supra, 65
Cal.App.5th at p. 118 for the proposition that “the DVPA does not
impose a heightened standard for specificity, nor does it contain
any corroboration requirement.”
However, the F.M. & M.M. court also noted that “‘[a] trier
of fact is free to disbelieve a witness . . . if there is any rational
ground for doing so.’” (In re Marriage of F.M. & M.M., supra, 65
Cal.App.5th at p. 119.) In F.M. & M.M., “the trial court did not
indicate on the record that mother lacked credibility as a
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witness.” (Ibid.) Here, in contrast, the trial court noted on the
record that it had credibility issues with both parties to this
matter. We may not revisit this credibility determination.
(Nevarez v. Tonna, supra, 227 Cal.App.4th at p. 786.) Given the
court’s credibility concerns, Perry’s testimony that he did not
commit the acts Goodman alleged he committed through third
parties, and the scarcity of evidence connecting those third
parties to Perry, the trial court did not abuse its discretion in
declining to find those acts to be in violation of the TRO.
DISPOSITION
The judgment is affirmed. Each side is to bear his or her
own costs of appeal.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
ASHMANN-GERST, J.
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