Opinion
E067389
08-30-2018
B.S., Plaintiff and Respondent, v. M.B., Defendant and Appellant.
M.B., in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FAMMS1600600) OPINION APPEAL from the Superior Court of San Bernardino County. Donna L. Connally, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. M.B., in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I. INTRODUCTION
On November 9, 2016, the family court issued a three-year domestic violence restraining order (DVRO) against defendant and appellant, M.B., based on the application of M.B.'s son, plaintiff and respondent, B.S., pursuant to the Domestic Violence Prevention Act (DVPA). (Fam. Code, § 6200 et seq.) The DVRO protects B.S., his girlfriend, and his two children.
All further statutory references are to the Family Code.
In order to protect the personal privacy interests of the parties and other persons identified in this matter, we refer to the parties by their initials, and we refrain from using the names or initials of the other persons. (Cal. Rules of Court, rule 8.90.)
In this appeal, M.B. claims the family court abused its discretion in issuing the DVRO, because no evidence supports the court's implied findings that M.B. perpetrated any acts of "abuse" against B.S. or the other persons protected by the DVRO. (§ 6203 [defining abuse for purposes of the DVPA].) B.S. has not filed a respondent's brief. We affirm. As we explain, substantial evidence shows M.B. committed acts of abuse against B.S., his girlfriend, and his two children. Thus, the court did not abuse its discretion in issuing the DVRO.
II. FACTUAL BACKGROUND
The record on appeal is comprised of a 60-page clerk's transcript and a 32-page reporter's transcript of the November 9, 2016, hearing on B.S.'s application for the DVRO against M.B. (further unspecified dates are in 2016). The clerk's transcript does not include B.S.'s application for the DVRO, which is to be filed on Judicial Council form DV-100, as M.B. did not include the application in designating the contents of the clerk's transcript. But the reporter's transcript shows the court had B.S.'s application before it at the November 9 hearing, and that the application was based on at least two incidents of alleged abuse by M.B., described post.
The register of actions shows B.S.'s application was filed on September 28. B.S. did not appear at a September 29 hearing on his ex parte motion for a temporary restraining order against M.B., and no temporary restraining order was issued. M.B. was served with the application on October 19 and filed a response on October 20. An October 25 hearing on B.S.'s application was continued to November 9, so the matter could be heard with M.B.'s application for a DVRO against B.S. in case No. FAMMS1600613. In her opening brief, M.B. represents that the family court issued a DVRO against B.S. on December 8, 2016, in case No. FAMMS1600613, but the record on appeal contains no records filed in that case.
In September 2016, B.S. applied for the DVRO against his mother, M.B., based on at least two incidents—one that occurred at a convenience store gas station on September 10, 2015 (the store incident), and another that occurred on September 14, 2016, when B.S. and M.B. were driving in their vehicles on Old Woman Springs Road (the car swerving incident). B.S. and M.B. were the only witnesses who testified at the hearing on B.S.'s application. A. The Car Swerving Incident
B.S.'s girlfriend was present at the November 9 hearing, and B.S. offered her testimony, but the court granted B.S.'s DVRO without hearing her testimony.
B.S. and M.B. lived around five miles from each other, and each of them used Old Woman Springs Road to travel to and from their homes. On September 14, 2016, B.S. was driving on Old Woman Springs Road, and his girlfriend and two children were with him, when M.S. "pulled out in front" of him, causing him to "almost come to a dead stop" and use his brakes. B.S. could hear M.B. call him a "piece of shit" and repeatedly say, "'You'll get yours.'"
M.B.'s statements made B.S. think M.B. was going to "have somebody" "come after" him. Around 18 months before the November 9, 2016, hearing, M.B.'s husband "showed up" at B.S.'s place of employment "with golf clubs" to serve B.S. with a restraining order that M.B. had obtained against B.S. The court noted there was no evidence that M.B. had any part in the "golf club" incident. --------
M.B. kept "swerving into" B.S.'s vehicle as she drove beside him on the two-lane portion of Old Woman Springs Road. When the court asked B.S. whether any similar incidents had happened, B.S. testified, "pretty much every time we see [M.B.] it's on [Old Woman Springs Road]" and M.B. "and her friends" would follow B.S., "fly around" him, and "hit their [brakes]." B.S. would pull to the side of the road and "proceed home" after M.B. and her friends were gone. M.B. and her husband would "yell at" B.S. anytime they saw him.
In her defense, M.B. denied the car swerving incident happened. She did not pull out in front of B.S., did not swerve her vehicle at his, did not yell names at him, and did not "flip him off." M.B. "barely" left her home, and she would never do anything to harm B.S.'s two children, her grandchildren. B. The Store Incident
B.S. testified that, on September 10, 2015 (around 14 months before the November 9 hearing and one year before the car swerving incident), he drove into the convenience store gas station on Old Woman Springs Road. He did not realize that M.B. and her husband were at the store getting gas, until he drove up beside them. He tried to "go around them," and he denied getting out of his truck. M.B.'s husband started "coming after" B.S. by walking in front of and then behind B.S.'s truck. B.S.'s girlfriend was with B.S., and took photographs of M.B. and her husband at the store.
B.S. saw that M.B. was calling the police, so he parked by the air pumps and waited for the police to arrive. B.S. claimed M.B.'s husband "kept trying to fight" with B.S. "at the gas pumps," but B.S. admitted M.B. "kept holding [her husband] back from . . . trying to fight [B.S.]." The family court said it was not issuing the DVRO based on any acts of M.B., because B.S. admitted that M.B. was trying to hold her husband back from fighting with B.S.
When the court asked B.S. what if anything M.B. was doing at the store, B.S. testified that, after the police arrived and told M.B. and her husband "not to be saying anything" to B.S., M.B. and her husband kept saying to B.S., "'You're going to get yours. You just wait. You're going to get yours.'" After the police told M.B. and her husband to leave, M.B. and her husband "kept flipping [B.S.] off" and kept saying, "'You wait. You'll get yours[,]'" as they drove away.
In her defense, M.B. denied she was yelling at B.S. at the store. M.B. adduced the police report of the store incident as part of her written response and relied on the police report at the hearing. As the court pointed out, the police report indicated "all parties" were disturbing the peace by "flipping each other off" at the store.
M.B. testified B.S. got out of his truck at the store and was "waving [a] paper at [M.B.]," which showed that a restraining order M.B. had previously obtained against B.S. had been dismissed. M.B. told B.S. to "'[j]ust go away and leave us alone,'" but B.S. said he "'[did not] have to listen'" to M.B., called M.B. and her husband "'stupid bitches,'" and said there was "'nothing'" M.B. or her husband "'[could] do.'" The police report also indicated that B.S. had a "certified copy" of a dismissal of M.B.'s restraining order against B.S., and the police officer independently confirmed that the dismissal was entered on July 7, 2015. The police officer told M.B. and her husband that M.B.'s previous restraining order against B.S. had been dismissed. C. Additional Evidence
At the time of the November 9 hearing, B.S. had a pending jury trial, in January 2017, on a criminal charge for violating the restraining order that M.B. had obtained against B.S.—the restraining order that was dismissed in July 2015.
At the conclusion of the hearing, M.B. testified she believed B.S. was seeking the DVRO against her because she had recently picked up her grandson from school, at the request of the boy's mother, and B.S. wanted to keep M.B. away from her grandson. B.S. denied he was seeking the DVRO because of his son, and claimed the boy's mother did not want M.B. around the boy either. B.S. claimed he was seeking the DVRO in order to protect himself and his family from M.B.
The court received into evidence four photographs, taken at the store by B.S.'s girlfriend in B.S.'s presence, but only two of the photographs are part of the record on appeal. The photographs in the record show M.B. standing outside her vehicle at the store, looking toward the camera with her right hand raised. B.S. testified M.B. and her husband "kept throwing their hands up" at B.S. The record indicates that the excluded photographs showed M.B.'s husband near B.S.'s truck, and M.B. holding her husband back.
III. DISCUSSION
A. Applicable Law and Standard of Review
The DVPA allows a court to issue a protective order to restrain any person for the purpose of preventing a recurrence of domestic violence or abuse against certain persons (§§ 6220, 6300; see Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334 [outlining DVPA provisions].) Section 6300 provides: "An order may be issued under this part . . . to restrain any person for the purpose specified in Section 6220, if an affidavit or testimony and any additional information provided to the court pursuant to Section 6306, shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse." (Italics added.)
The DVPA defines "domestic violence" as "abuse" against certain persons, including "person[s] related by consanguinity" which would include B.S. and M.B. (§ 6211, subd. (f).) The DVPA defines "abuse" as "any of the following: [¶] (1) To intentionally or recklessly cause or attempt to cause bodily injury[;] [¶] (2) Sexual assault[;] [¶] (3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another[;] [¶] (4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320." (§ 6203, subd. (a).) The behaviors outlined in section 6320 include, "molesting, attacking, striking, stalking, threatening, . . . battering, . . . harassing, . . . coming within a specified distance of, or disturbing the peace of the other party, and in the discretion of the court, on a showing of good cause, of other named family or household members." (§ 6320, subd. (a).)
We review the grant or denial of a DVRO for an abuse of discretion. (S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1264-1265.) The court will abuse its discretion in granting a DVRO if the record contains insufficient evidence to support a finding that the restrained party engaged in any conduct that amounts to domestic violence or "abuse" within the meaning of the DVPA. (See id. at pp. 1265-1268.) B. Analysis
M.B. claims the family court abused its discretion in issuing the DVRO against her. She claims B.S.'s allegations and testimony are "false" and "no substantial evidence" supports the court's findings that she engaged in any domestic violence or abuse against B.S., his girlfriend, or his two children. We disagree.
The family court made it clear that it was issuing the DVRO against M.B. based on (1) M.B.'s acts of yelling at B.S. and flipping him off as she drove away from the store on September 10, 2015, and (2) M.B.'s acts of yelling at B.S., flipping him off, and swerving her vehicle at his vehicle on September 14, 2016, as B.S. was driving on Old Woman Springs Road with his girlfriend and his two children.
These acts constitute "abuse" within the meaning of the DVPA. "Abuse is not limited to the actual infliction of physical injury or assault." (§ 6203, subd. (b); see Phillips v. Campbell (2016) 2 Cal.App.5th 844, 853.) Abuse includes, "engag[ing] in any behavior that has been or could be enjoined pursuant to Section 6320" (§ 6203, subd. (a)(4)), and this includes "threatening, . . . harassing, . . . or disturbing the peace of the other party" (§ 6320).
"'[T]he plain meaning of the phrase "disturbing the peace of the other party" in section 6320 may be properly understood as conduct that destroys the mental or emotional calm of the other party. . . .'" (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1146.) Thus, making obscene gestures at a person, and swerving into or threatening to strike a person's vehicle, constitute acts of abuse under the DVPA.
Further, substantial evidence, namely, B.S.'s testimony, supports the family court's findings that M.B. committed these acts of abuse against B.S., his girlfriend, and his two children. (People v. Johnson (1980) 26 Cal.3d 557, 576 [substantial evidence is reasonable in nature, credible, and of solid value].)
In essence, the hearing below involved a question of credibility, and in issuing the DVRO against M.B., the family court implicitly found it believed B.S.'s testimony. It is not the province of this court to second-guess the credibility of B.S.'s testimony or M.B.'s conflicting testimony. (Phillips v. Campbell, supra, 2 Cal.App.5th at pp. 849-850.) Instead, in determining whether substantial evidence supports the family court's findings and the DVRO, "'[w]e resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge all reasonable inferences to support the trial court's order. [Citation.]'" (Ibid.) B.S. testified that the above described acts of abuse occurred. Although M.B. categorically denied that these acts of abuse occurred, it was for the family court to determine whether to believe B.S.'s testimony. Because substantial evidence shows M.B. committed these acts of abuse, the family court did not abuse its discretion in issuing the DVRO.
IV. DISPOSITION
The DVRO issued against appellant, M.B., on November 9, 2016, is affirmed. Respondent, B.S., shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: CODRINGTON
Acting P. J. SLOUGH
J.