Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County No. VFL209837. William Silveira, Jr., Judge.
John S. Dulcich for Defendant and Appellant.
Central California Legal Services and Suzanne Swenk for Plaintiff and Respondent.
OPINION
DAWSON, J.
Christopher G. appeals from a trial court order restraining him from allowing his child contact with Mr. G’s grandfather. He contends the trial court abused its discretion when it did not allow oral testimony of a witness at the hearing on the order. We disagree and affirm the order.
FACTUAL AND PROCEDURAL HISTORY
Mr. G. and Camelia F. are the parents of a child born in October of 2002. The couple shared joint legal custody and shared physical custody of the child, with Mr. G. having the child at least two days per week and shared holidays. In May of 2004, Ms. F. filed a petition seeking a temporary restraining order under the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.), stating that Mr. G. had pushed her across the living room and threatened her. A restraining and stay away order was subsequently granted, requiring Mr. G. to stay away from Ms. F. and her residence, “except for purposes of peaceful and lawful visitation.” Mr. G. was ordered to complete a batterer’s intervention program and the child was allowed to visit Mr. G. every weekend.
In September of 2006, Ms. F. filed an order to show cause for modification of visitation, stating that she had received information from Mr. G.’s sister that his grandfather, Ray M., with whom Mr. G. lived, had molested their child. The office of the district attorney reviewed Ms. F.’s report, but rejected it because the witness was not willing to come forward. The sheriff’s department investigative report was attached to the order to show cause. Also attached was a note written by a pediatrician who had examined the child and found “[t]here are no overt signs of sexual abuse on my exam today, however, [the child’s] behaviors are suspicious for abuse occurring.” The pediatrician also stated “I am concerned” and would “continue to follow [the child] closely.”
In the order to show cause, Ms. F. requested that visitation between Mr. G. and the child be terminated because she feared Mr. G. would allow the child to be around Ray M. In the alternative, Ms. F. requested that Mr. G. be ordered not to allow Ray M. to have contact with the child and that visitation not take place at Ray M.’s home. Temporary orders made on September 7, 2006, forbade contact between the child and Ray M.
Mr. G. filed a responsive declaration stating, inter alia, that the accusations against Ray M. were false. Ms. F. filed a reply declaration, stating that she believed Mr. G. allowed contact between the child and Ray M., as the child had told her so. She also noted that Mr. G.’s grandmother, Ray M.’s wife, had obtained a restraining order against Mr. G. because “the entire household [was] afraid of [him].”
Although the parties attended mediation, the matter remained unresolved. A contested hearing was scheduled and counsel appointed for the child.
In a report filed in anticipation of the hearing, counsel for the child stated that Mr. G.’s sister, who first reported the abuse, recanted her statements and refused to cooperate as a witness against Ray M. Counsel opined that Mr. G.’s response to the allegation that Ray M. had molested the child was inappropriate in that it did not protect the child. Counsel stated that Mr. G. had told him that if he knew he would not get into trouble for doing so and/or if Ms. F. would not report it, he would allow his grandfather to be around the child without supervision. Counsel recommended that visits between the child and Mr. G. remain as ordered, i.e., “that [the child] not be left alone around Mr. M[.] nor that [the child] have any visits at Mr. G[.]’s home while Mr. M[.] is present.”
Mr. G. did not file a declaration by his sister who reportedly recanted the allegations against Ray M. Nor did Mr. G. seek permission to introduce oral evidence by filing a written statement before the hearing date.
At the December 13, 2006, contested hearing, Mr. G.’s attorney called Mr. G.’s sister to testify. Ms. F.’s counsel objected to the oral testimony, stating it had not been “requested beforehand.” Mr. G.’s attorney stated that he understood, after being in front of Judge Hicks, that “we were going to present testimony at this hearing.” But the court stated it did not see anything to that effect and would not allow such testimony without “appropriate notice.” Thereafter, the trial court ordered that Mr. G.’s visits with the child continue as previously ordered and that Ray M. have no contact with the child during these visits.
Judge Hicks presided over a hearing on September 29, 2006, in which the matter was continued, and a hearing on October 3, 2006, in which the contested hearing was set after mediation failed. The transcript of the October 3, 2006, hearing reveals no discussion on the record regarding oral testimony.
DISCUSSION
Mr. G. asserts that the trial court’s refusal to grant his request to allow his sister to testify at the December 13, 2006, hearing was an abuse of discretion warranting reversal. As argued by Mr. G., the matter was filed under the Domestic Violence Act, and such cases “are more entitled to hearing, as opposed to a Family Order to Show Cause matter.” Ms. F. disagrees stating that, although she requested a modification of the child visitation order originally made in the domestic violence action, the subject matter under appeal here did not attempt to obtain, terminate, or modify a restraining order and is therefore entitled “to no more or no less consideration than any other family order to show cause matter.” Ms. F. asserts that the trial court properly denied the introduction of oral testimony. We agree with Ms. F. and affirm the order.
We first reject Mr. G.’s claim that he should have been entitled to “more” of a hearing because this matter was originally filed under the Domestic Violence Act when Ms. F. sought a stay away and restraining order against him. That act, codified in Family Code section 6200 et seq., specifically states:
“A custody or visitation order issued in a proceeding brought pursuant to this division is subject to Part 2 (commencing with Section 3020) of Division 8 (custody of children).” (Fam. Code, § 6223.)
And as explained in the Law Revision Commission Comments attached to this section:
“Section 6223 … provides a cross-reference to the main custody statute in Division 8. This section makes clear that, where a custody or visitation order is issued in a proceeding brought pursuant to the Domestic Violence Prevention Act, the court is to apply the same substantive and procedural rules as would be applied in any other proceeding in which these issues may be determined.” (Cal. Law Revision Com. com., 29F West’s Ann. Fam. Code (2004 ed.) foll. § 6223, p. 699.)
We therefore address Mr. G.’s contention under established law in child custody cases.
Appellant next contends that the trial court abused its discretion when it did not allow his sister to testify, because the court did so by invoking a “blanket policy,” which he describes as “prejudicially believing a certain class of witnesses are automatically liars and lack believability,” in violation of Reifler v. Superior Court (1974) 39 Cal.App.3d 479 (Reifler).
Reifler established unequivocally that trial courts are “vested with discretion to exclude oral testimony and require submission upon declarations” in family law matters, with the caveat that a “general court ‘policy’ [to exclude oral testimony] may not be substituted for exercise of discretion.” (Reifler, supra, 39 Cal.App.3d at p. 481.) In Reifler the trial court invoked an unwritten court “policy” in order to exclude family law testimony that would consume more than one day in hearing, instead of relying on its discretion in making the determination. (Id. at p. 485.) Mr. G. suggests that the trial court here relied on a similar “policy” to exclude oral testimony, basing his contention on the following colloquy at the hearing:
“The Court: It will be the order that father’s visitations are to continue; however, Ray M[.] is not to be present at any of these visitations. [¶] … [¶]
“Mr. G[.]: My sister is here to give testimony, you know, stating that.
“The Court: Do you know how many times I have heard witnesses say things and then lie, and lie, and then say—
“Mr. G[.]: No, I haven’t, sir.
“The Court: Well, okay. So what does that—well, I’ve heard it more times than I want to hear it again.
“Mr. G[.]: I’m sorry to hear that but—
“The Court: Because I don’t want to hear somebody that goes around making accusations like this, and then later retracting them because you know what, they lack believability.”
But the statements by the trial court do not support Mr. G.’s contention that the trial court had a blanket policy to exclude witnesses due to their lack of credibility. As noted above, trial courts are vested with discretion to exclude oral testimony and require submission upon declarations in family law motions. (Reifler, supra, 39 Cal.App.4th at p. 481.) This tendency is evidenced by California Rules of Court, former rule 1225, now rule 5.118, which applies to family and juvenile cases, and provides, in relevant part:
“(f) The court may grant or deny the relief solely on the basis of the application and responses and any accompanying memorandum of points and authorities.”
Tulare County Local Rules of Court, former rule 914, applicable at the time of the hearing, addresses this procedure for family law motions and orders to show cause. It states:
Under the Superior Court of Tulare County, Local Rules, the current rule 910 is identical to former rule 914, with the exception that it cites the more recent renumbering of the California Rules of Court, as shown bracketed in rule 914, post.
“Any request to deviate from California Rules of Court, rule 1225(a), [now rule 5.118] which provides that the court may grant or deny relief solely on the basis of pleadings without the presentation of oral testimony, must be made subject to the restrictions on oral testimony set forth in California Rules of Court, rule 323(a) [now rule 3.1306]. Any such request must also be supported by an explanation of why a declaration would be insufficient and/or why cross-examination is necessary.”
California Rules of Court, former rule 323, now rule 3.1306 in turn, provided, in relevant part:
“(a) Evidence received at a law and motion hearing must be by declaration, affidavit or request for judicial notice without testimony or cross-examination, except as allowed in the court’s discretion for good cause shown.
“(b) A party seeking permission to introduce oral evidence, except for oral evidence in rebuttal to oral evidence presented by the other party, must file, no later than three court days before the hearing, a written statement stating the nature and extent to the evidence proposed to be introduced and a reasonable time estimate for the hearing. When the statement is filed less than five court days before the hearing, the filing party must serve a copy on the other parties in a manner to assure delivery to the other parties no later than two days before the hearing.”
Here, prior to the hearing, Mr. G. filed a responsive declaration stating, inter alia, that the accusations against his grandfather were false and that the child was never alone with or cared for by the grandfather. Mr. G. never filed a declaration from his sister stating that she had recanted her earlier statement. And he did not file a request to introduce oral testimony or an explanation of why a declaration would be insufficient, as required by California Rules of Court and the Superior Court of Tulare County, Local Rules. At the hearing, when Mr. G. first requested that he be allowed to present oral testimony, Ms. F. objected on the basis that such oral testimony had not been requested beforehand. The trial court sustained the objection, stating it would not allow it without appropriate notice. It was not until after this ruling that the aforementioned colloquy occurred.
The trial court therefore did not deny Mr. G.’s request to allow oral testimony on the basis of a “blanket policy” to exclude witnesses due to their lack of credibility.
In his reply brief, Mr. G. makes a somewhat confusing argument that the Superior Court of Tulare County, Local Rules, former rule 914 is in conflict with the California Rules of Court governing the restriction on oral testimony at family law motions because the local rule impermissibly “heightens the standard to allow oral testimony.” He further contends “[a]n examination of other court rules in Central California shows that Tulare County has the most restrictive Court Rule concerning family law hearings and the use of oral testimony.”
We reject Mr. G.’s argument for several reasons. First, we refuse to consider this new issue raised by Mr. G. in his reply brief. “Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.) “‘“Obvious considerations of fairness in argument demand that the appellant present all of his points in the opening brief. To withhold a point until the closing brief would deprive the respondent of his opportunity to answer it or require the effort and delay of an additional brief by permission. Hence the rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.” [Citation.]’ [Citation.]” (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)
Second, while Mr. G. attached an appendix to his reply brief containing copies of local court rules of other Central California courts, his contention is unsupported by any reasoned argument or citation to authority. “It is the duty of counsel by argument and the citation of authorities to show that the claimed error exists. ‘Contentions supported neither by argument nor by citation of authority are deemed to be without foundation, and to have been abandoned.’ [Citation.]” (Estate of Randall (1924) 194 Cal. 725, 728-729.) We are not required to discuss arguments that are perfunctorily asserted and insufficiently developed to be cognizable. (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2.)
And third, in Elkins v. Superior Court (2007) 41 Cal.4th 1337, while our Supreme Court recently struck down a local superior court rule that provided that the parties must present their case by means of written declaration in dissolution trials, it stated that its conclusion did not affect hearings on motions. (Id. at pp. 1345, fn. 1, 1360, 1361, fn. 15.)
Finally, and in any event, we find that Mr. G. can show no prejudice due to the lack of his sister’s testimony at the hearing. The trial court was well aware that Mr. G.’s sister had recanted her earlier accusations. If there was more to the sister’s recantation, Mr. G. was required to make an offer of proof, which he failed to do. “When a request to present additional evidence at the hearing is denied, an offer of proof, explaining the substance, purpose and relevance of the proffered evidence, is indispensable to preserve the point on appeal.” (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007) ¶ 5:496, p. 5-196.)
Furthermore, the trial court did not rest its decision to prevent the minor from having contact with his great-grandfather on Mr. G’s sister’s veracity, in either the initial report or her subsequent recantation. The court found that (1) it was not a significant hardship on Mr. G. not to have his grandfather around when visiting with the minor; and (2) there was enough of an inference raised by the allegation that “it would be harmful for this child” to allow the contact with the great-grandfather to continue. According to the court, the continued suspicions of the mother and the resultant allegations would necessitate a focus and continued questioning of the minor about “what goes on,” which “would be far more harmful than to have [Ray M.] excluded from the visitation.”
We find that the trial court had discretion to exclude oral testimony at the hearing and to rule solely on the basis of the documentary evidence, and that it did not abuse its discretion in doing so.
DISPOSITION
The trial court’s order is affirmed. Costs on appeal are awarded to Ms. F.
WE CONCUR: CORNELL, Acting P.J., GOMES, J.