Thomas v. Vasquez CA2/7

Filed 8/10/23 Thomas v. Vasquez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN
MELISSA THOMAS, B322870
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. 22STRO04529)
LEANDRO VINICIO
VASQUEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Janice Munoz, Temporary Judge. Affirmed.
Leandro Vinicio Vasquez, in pro. per., for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
Leandro Vinicio Vasquez appeals from a five-year
restraining order issued under the Domestic Violence Prevention
Act (Fam. Code, § 6200 et seq.) (DVPA).1 Because substantial
evidence supported the family court’s factual findings and the
court did not abuse its discretion in issuing the restraining order,
we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Vasquez’s Ex-girlfriend Obtains Restraining Orders
Against Vasquez in March 2018 and August 2019
Vasquez and Melissa Thomas began dating in 2014 and
eventually lived together. They jointly purchased property in
Crestline, California in 2015.2 Their relationship ended in 2016.
After they broke up, Vasquez had several arguments with
Thomas, repeatedly appeared uninvited at her residence, and
once set up a tent across the street from her home. Thomas
obtained a two-year domestic violence restraining order against
Vasquez in March 2018. The restraining order required Vasquez
to stay at least 100 yards from Thomas, her home, her workplace,
and her vehicle and gave Vasquez until June 30, 2018 to retrieve
his personal property from Thomas’s home. The order also
1 Statutory references are to the Family Code.
2 Vasquez did not dispute that Thomas’s name was on the
deed or that she paid the closing costs associated with the
purchase of the property, but he claimed that she did not
contribute to the payments on the loan on the property.
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allowed Vasquez to communicate with Thomas by mail about the
sale of the Crestline property.
Vasquez repeatedly violated the 2018 restraining order by
contacting Thomas in writing, by phone, and by text message
about matters unrelated to the sale of the Crestline property.
Thomas reported these incidents to the police. Eventually, in
August 2019, after an incident of domestic violence, Thomas
obtained a three-year criminal protective order against Vasquez.
B. Thomas Files a Request for a New Domestic Violence
Restraining Order Against Vasquez in July 2022
Vasquez did not comply with the August 2019 criminal
protective order. He drove by Thomas’s residence and continued
to contact her by mail, text message, and phone. In July 2020
counsel for Thomas sent Vasquez a cease-and-desist letter
demanding Vasquez stop violating the restraining orders.
Vasquez did not respond.
Because the criminal protective order was due to expire in
August 2022 and Thomas feared further harassment and abuse,
she filed an application for a new domestic violence restraining
order, along with a request for a temporary restraining order, on
July 21, 2022. On July 22, 2022 the family court issued a
temporary restraining order prohibiting Vasquez from contacting
Thomas “directly or indirectly, by any means, including by
telephone, mail, email, or other electronic means,” and set a
hearing on August 15, 2022 on Thomas’s request for a permanent
domestic violence restraining order.
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C. The Family Court Issues a Five-year Domestic
Violence Restraining Order Against Vasquez
At the August 15, 2022 hearing Thomas testified Vasquez
constantly harassed her. She also submitted a declaration
describing specific instances of unwanted contact. Thomas stated
that, in the six months before the hearing, and despite the
criminal protective order, Vasquez had contacted her at least
10 times, most recently on July 28, 2022, when Vasquez called
her twice and sent her four text messages. In one of the text
messages Vasquez wrote, “I miss talking to you” and “I hope
you’re well.” Thomas also said that Vasquez had driven by her
house at least six times and that one time he yelled at her
through the car window, “Hello, cutie-pie.” Thomas testified that
on one occasion Vasquez parked his car across the street and
played loud music and that on another occasion he drove into
Thomas’s driveway and tried to speak with her. Thomas also
submitted evidence Vasquez personally delivered a package
containing masks and gloves to her house, sent her a greeting
card on June 14, 2022, and called her twice on February 27, 2022.
Vasquez called as a witness Colleen Butler, his girlfriend
at the time of the hearing, to testify about, among other things,
communications she and Vasquez had with Thomas. When
the family court asked Butler whether she had ever overheard
any conversations between Vasquez and Thomas, Butler said
she had, but then could not confirm who was speaking in those
conversations. Concluding Butler could not verify the voice she
heard was actually Thomas’s voice, the court excluded Butler’s
testimony on this point as speculative. Following up on this
testimony, the family court asked Thomas whether she had ever
contacted Vasquez after the criminal court issued the protective
4
order in August 2019, and Thomas stated the last conversation
she had with Vasquez was in June 2019 to discuss the sale of
the Crestline property.
The family court ruled Thomas had proven that she and
Vasquez had been in a dating relationship and had lived together
and that Vasquez had engaged in acts of abuse, within the
meaning of the DVPA. Citing N.T. v. H.T. (2019) 34 Cal.App.5th
595, the court also ruled that “violating a temporary domestic
violence restraining order is in itself an act of abuse, but [acts of
abuse] also can include disturbing the peace.”
Referring to the August 2019 criminal protective order, the
court stated that, “when we look at a prior domestic violence case
when considering a current restraining order, we’re going to look
at Family Code [section] 6306,” which requires the court to
consider, among other things, whether the subject of the proposed
restraining order had a prior conviction for domestic violence or
was currently on parole or probation. The court stated this factor
was “problematic” because, while section 6306 required the court
to consider criminal convictions, the statute also stated that
“actions not involving a conviction shall not be considered.” The
court ultimately concluded that Vasquez’s “domestic violence
probation was violated” and that it was “likely” appropriate for
the court to consider Vasquez’s violation of the 2019 criminal
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protective order.3 The family court issued a five-year domestic
restraining order, and Vasquez timely appealed.4
DISCUSSION
A. Applicable Law and Standard of Review
The DVPA authorizes the family court to issue a
restraining order “to prevent acts of domestic violence, abuse, and
sexual abuse and to provide for a separation of the persons
involved in the domestic violence for a period sufficient to enable
these persons to seek a resolution of the causes of the violence.”
(§ 6220; see J.H. v. G.H. (2021) 63 Cal.App.5th 633, 640-641.)
“Under the DVPA, a court may issue a protective order “‘to
3 Vasquez does not argue the family court erred in
considering whether he violated the terms of his probation in the
criminal case or whether he violated the July 22, 2022 temporary
restraining order.
4 Although Vasquez checked the wrong box on his notice of
appeal (he checked the box next to “default judgment”), we
liberally construe his appeal to be from the restraining order.
(See K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875,
882 [“‘“notices of appeal are to be liberally construed so as to
protect the right of appeal if it is reasonably clear what [the]
appellant was trying to appeal from, and where the respondent
could not possibly have been misled or prejudiced”’”]; Ellis Law
Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014)
230 Cal.App.4th 244, 251 [checking the wrong box on a notice of
appeal “is not fatal to the appeal”].)
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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.”’” (In re Marriage of F.M. & M.M. (2021) 65 Cal.App.5th
106, 115; see J.H., at p. 641 [under § 6300, subd. (a), “[c]ourts
may issue a restraining order to achieve [the DVPA’s] purpose
upon ‘reasonable proof of a past act or acts of abuse’”].)
Section 6211 defines “domestic violence” as “abuse
perpetrated against,” among others, a former cohabitant or a
person with whom the respondent had a dating relationship.
(§ 6211, subds. (b), (c); see § 6209 [defining “cohabitant”].)
“Abuse” within the meaning of the DVPA includes “behavior that
has been or could be enjoined pursuant to Section 6320.” (§ 6203,
subd. (a)(4).) Section 6320, subdivision (a), in turn, authorizes
the court to enjoin “molesting, attacking, striking, stalking,
threatening, sexually assaulting, battering, . . . harassing,
telephoning, . . . contacting, either directly or indirectly, by mail
or otherwise, coming within a specified distance of, or disturbing
the peace of the other party.” Abuse under the DVPA includes
not only physical abuse or injury, but also ‘“[a]nnoying and
harassing’” conduct. (In re Marriage of Brubaker & Strum (2021)
73 Cal.App.5th 525, 536; see K.L. v. R.H. (2021) 70 Cal.App.5th
965, 981 [abuse includes conduct that “‘“destroys the mental or
emotional calm of the other party”’”]; N.T. v. H.T., supra,
34 Cal.App.5th at p. 602 [abuse includes conduct that “disturb[s]
the peace of the protected party”].)
We review a restraining order under the DVPA for abuse
of discretion. (In re Marriage of D.S. & A.S. (2023)
87 Cal.App.5th 926, 933; In re Marriage of Davila & Mejia (2018)
29 Cal.App.5th 220, 226.) “‘To the extent that we are called upon
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to review the trial court’s factual findings, we apply a substantial
evidence standard of review.’” (In re Marriage of G. (2017)
11 Cal.App.5th 773, 780.) “The inquiry is whether substantial
evidence supports the court’s finding, not whether a contrary
finding might have been made. [Citation.] We accept as true all
evidence tending to establish the correctness of the trial court’s
findings and resolve every conflict in favor of the judgment.”
(M.S. v. A.S. (2022) 76 Cal.App.5th 1139, 1144.)
B. The Family Court Did Not Abuse Its Discretion in
Issuing the Restraining Order
Vasquez argues the family court abused its discretion in
issuing the domestic violence restraining order because
substantial evidence did not support the court’s
findings. Substantial evidence, however, supported the family
court’s finding that Vasquez committed abuse within the
meaning of section 6320, subdivision (a). Thomas testified that
Vasquez repeatedly contacted her by mail, phone, and text
message and that he came well within 100 yards of her when he
drove to her house and spoke to her—all in violation of prior
court orders. Vasquez also delivered a package to Thomas’s
house, mailed her a greeting card, and repeatedly called her, as
reflected in a phone log Thomas maintained. Such behavior
constituted abuse under the DVPA. (See § 6320, subd. (a); N.T. v.
H.T., supra, 34 Cal.App.5th at p. 603 [writing letters and driving
to the wife’s apartment were acts of abuse under the
DVPA].) The family court reasonably concluded these actions
constituted a pattern of harassment and abuse. (See In re
Marriage of Ankola (2020) 53 Cal.App.5th 369, 381 [trial court
did not abuse its discretion in granting an application for a
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domestic violence restraining order based on evidence of “stalking
and unwanted contact”]; Sabato v. Brooks (2015) 242 Cal.App.4th
715, 721, 725 [evidence the defendant sent the plaintiff
“a handwritten letter and unwanted gifts,” frequently contacted
her “by mail, e-mail, text message, telephone,” and had
“unilateral, unwanted and harassing contacts” with the plaintiff
supported a domestic violence restraining order, even if the
defendant “characterized his messages as ‘non-threatening’”]; see
also In re Marriage of F.M. & M.M., supra, 65 Cal.App.5th at
p. 116 [court may issue a domestic violence restraining order
under section 6300 “‘to restrain any person . . . if an affidavit or
testimony and any additional information provided to the
court . . . shows, to the satisfaction of the court, reasonable proof
of a past act or acts of abuse’”].)
In addition, court orders had no effect on Vasquez. He
violated both the August 2019 criminal protective order and (by
texting Thomas on July 28, 2022) the July 22, 2022 temporary
restraining order. Vasquez also ignored counsel for Thomas’s
cease-and-desist letter. Vasquez’s conduct, in the face of existing
restraining orders, further supported issuing the new domestic
violence restraining order. (See In re Marriage of F.M. & M.M.,
supra, 65 Cal.App.5th at p. 117 [“Evidence of recent abuse or
violation of a [temporary restraining order] is plainly relevant to
whether a petitioner should be granted a protective order.”]; N.T.
v. H.T., supra, 34 Cal.App.5th at pp. 602-603 [violating a
temporary restraining order is an act of abuse].)
Vasquez argues that the 2018 restraining order allowed
him to communicate with Thomas about the sale of the Crestline
property and that Thomas “entrapped” him and tricked him into
violating that order by initiating communications about the
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property. While Vasquez is correct the 2018 restraining order
allowed him to communicate with Thomas about selling their
property, Thomas testified that the last conversation she had
with Vasquez about the sale of the property was in
June 2019. Vasquez did not challenge Thomas’s testimony on
this point or present any evidence to the contrary, and we may
not revisit the family court’s decision to credit Thomas’s
testimony. (In re Marriage of Evilsizor & Sweeney (2015)
237 Cal.App.4th 1416, 1426; Nevarez v. Tonna (2014)
227 Cal.App.4th 774, 786; In re Marriage of Balcof (2006)
141 Cal.App.4th 1509, 1531.) Thus, Vasquez’s communication
with Thomas after June 2019 violated the 2018 restraining order,
the 2019 criminal protective order, or both, because the
communication was unrelated to the sale of the property. And, as
discussed, even if Vasquez had not violated one or both of the
prior restraining orders, he engaged in conduct that
independently constituted abuse under section 6230.5
Citing section 6345, subdivision (a), Vasquez states the
family court “abused its discretion in renewing the order without
making a finding, and where the evidence failed to show, it was
more probable than not there is a reasonable risk [Thomas]
would be subjected to future abuse” by Vasquez or that Thomas’s
fear of him “was genuine and reasonable.” To issue a domestic
violence restraining order, however, the family court need only
find the party to be enjoined engaged in past acts of abuse. (In re
Marriage of F.M. & M.M., supra, 65 Cal.App.5th at p. 115.) The
requirement of having a reasonable apprehension of future abuse
5 Vasquez also argues the court should not have allowed
counsel for Thomas to testify at the hearing. Counsel for
Thomas, however, did not testify at the hearing.
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applies to a request to renew an existing restraining order, not to
a request for a new restraining order.6 (See Michael M. v. Robin
J. (2023) 92 Cal.App.5th 170, 179 [“The legal standard for
renewal of a DVRO is whether the protected party entertains a
reasonable apprehension of future abuse.”]; Rodriguez v.
Menjivar (2015) 243 Cal.App.4th 816, 823 [“[n]o showing of the
probability of future abuse is required to issue a DVPA
restraining order”]; Nevarez v. Tonna (2014) 227 Cal.App.4th 774,
783 [“the trial court was not required to find a probability that
[the defendant] would commit future abuse before issuing a
[domestic violence] restraining order”].)
DISPOSITION
The domestic violence restraining order against Vasquez is
affirmed. Vasquez is to bear his costs on appeal.
SEGAL, Acting P. J.
We concur:
FEUER, J. MARTINEZ, J.
6 Thomas’s prior domestic violence restraining order expired
in March 2020.
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