Opinion
C078050
06-29-2017
In re the Marriage of RANIA D. and TAMIR E. SUKKARY. RANIA D. SUKKARY, Respondent, v. TAMIR E. SUKKARY, Appellant.
ORDER MODIFYING OPINION AND DENYING REQUEST FOR PUBLICATION [NO CHANGE IN JUDGMENT] THE COURT:
It is ordered that the opinion filed June 29, 2017, in the above cause be modified as follows:
1. In all instances throughout the opinion, including the caption, delete any references to "Rania D. Sukkary," or "Rania," and replace with initials "R.S."
2. In all instances throughout the opinion, including the caption, delete any references to "Tamir E. Sukkary," or "Tamir," and replace with initials "T.S."
3. Footnote 2, appearing on page 2 of the opinion, is deleted in its entirety, which will require renumbering of all subsequent footnotes.
This modification does not change the judgment.
Nonparties Family Violence Appellate Project and WEAVE, Inc.'s request for publication is denied. /s/_________
RAYE, P. J. /s/_________
BUTZ, J. /s/_________
HOCH, J. NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14DV02324)
The trial court imposed a five-year restraining order against appellant Tamir E. Sukkary pursuant to the Domestic Violence Prevention Act (the Act; Fam. Code, § 6200 et seq.) based on its finding that Tamir had physically and mentally abused his wife, respondent Rania D. Sukkary. On appeal, Tamir contends (1) the trial court abused its discretion in admitting expert testimony; (2) counsel for Rania improperly referenced propensity evidence to prove abuse; (3); the trial court improperly shifted the burden of proof to Tamir; (4) the trial court did not properly weigh the evidence; and (5) the trial court's factual findings are not supported by substantial evidence because Rania's testimony was inherently improbable and incredible. We disagree and shall affirm the judgment.
Undesignated statutory references are to the Family Code.
As the parties have the same surname, we will refer to them by their first names for the sake of clarity. No disrespect is intended.
FACTUAL AND PROCEDURAL BACKGROUND
On August 27, 2014, Rania petitioned the trial court for a domestic violence restraining order against her husband Tamir. Rania was born in Lebanon, immigrated to Canada in 2009, and subsequently immigrated to the United States in 2012 when she married Tamir. Rania and Tamir lived together with Tamir's minor daughters from a prior marriage.
Unless otherwise specified, all further date references are to the year 2014.
In her petition, Rania claimed she had been verbally and emotionally abused by Tamir. She also claimed he had threatened to imprison her in their home, had threatened to have her deported, had controlled her financially, had verbally abused her in front of his children, and had humiliated her. Rania alleged Tamir had most recently abused her on August 17, when he refused to let her leave their residence and threatened to control her. She alleged that on August 11, Tamir had verbally threatened her, intimidated her, and threatened to and did divorce her "Islamically." And, she alleged, on August 10, he had kicked her on the hips and legs causing bruising. She claimed that on prior occasions, he had berated her, pinched her on the buttocks, hit her on her foot, pulled her up by her arms, and refused to let her sleep in her bedroom.
At trial, Rania testified that on August 10, she was lying on the couch in the living room, when Tamir came in from another room, and started kicking her on the legs—on the shin, knees, and hips—and arms, and pulled her up "from her shoulders." She claimed he was upset because he felt like she was not supporting him during a radio interview. She stated that she was left with bruises on her legs and pain in her shoulder muscles. Rania presented a photograph taken on August 24, which she testified demonstrated the bruising on her shin, sustained as a result of this incident.
This was consistent with her deposition testimony that Tamir kicked her on the knees, legs, and shin, with soreness on her hips but bruising only under the knees.
She testified that on August 11, Tamir verbally abused her when he learned he was receiving a smaller-than-expected inheritance following the death of a family member. In front of his daughter, Tamir called Rania "obnoxious," "despicable," a "bad lady," and excrement. Rania testified the daughter began shaking, and he sent her to her room. Then he held Rania by her shoulders, shook her, moved his face close to hers, and said "You are divorce. You are divorce. You are divorce, ten times divorce." Then he pushed her on the stairs, opened the door to the house, and wanted to push her out without her head cover. He screamed at her that he did not want her there and that he would call immigration. She claimed he let her stay because she began screaming and there were neighbors outside who would see.
On August 14, Rania went to see her doctor. It was the first time she had the courage to tell someone she needed help. She told her doctor she was being verbally abused. She testified she did not at that time report the physical abuse because she was frightened by the continuous physical, verbal, and emotional abuse, the threats that she would be deported, her economic reliance, her isolation, and her religious and cultural beliefs.
There appears to be some confusion on Rania's part about when she first informed her doctor of the abuse. Rania also testified she visited her doctor on July 10. At that time, Rania told her physician that she was afraid to go home and that Tamir was verbally abusive but not physically abusive. She testified she did not tell her doctor the whole truth because she was afraid Tamir would call the police and report that she had stolen the car, and because she did not want her husband to be placed in jail. During the August 14 appointment, Rania's doctor noted there was verbal abuse but no fear about returning home or any injuries.
On August 16, while preparing dinner, she responded to his question about what she was cooking causing him to shout at her. In front of his daughters, he called her a "disrespectful, ungrateful woman," claimed she did not respect him, and swore at her. The following day, as she prepared to shop for groceries, he suggested that they talk. She did not want to talk to him then, so he followed her to the stairs and began screaming at her. He again said he did not want her there, said his daughters do not like her, and that she does not like him. He again said "You are divorced. You are divorced, divorced, divorced," which is an "Islamic divorce." She tried to leave, but he grabbed her by the shoulders and pushed her. He threatened to report to immigration that she had only married him for a green card, and said the only way she understood him was for him to use force. She threatened to call the police. He left.
On August 18, at about 1:00 or 1:30 a.m., as she was packing her things, he came to her room and began screaming and making strange and scary noises. He said he did not want her there, grabbed her, and pushed her outside the room and onto her back. He slammed the door to the room and locked it. The next morning, when he saw she was still at the house, he asked why she was there, and gave her money to shop for groceries. She went to the store, did not find adequate groceries, returned to the house, and gave him back the money. He began to yell at her again. When she explained she was trying to pack so that she could leave, he said before she left he wanted to see everything she was taking. At that time, an investigator from child protective services (CPS) knocked on the door regarding a telephone call they had received.
Rania testified the CPS investigator asked Tamir's older daughter, in front of Tamir, whether she was scared. According to Rania, Tamir was looking at his daughter in a threatening way to prevent her from saying anything to the CPS investigator. Rania also claimed Tamir told the CPS investigator that he was not abusing Rania. She claimed the CPS investigator talked to her outside and indicated WEAVE had referred her to social services. Rania told the CPS investigator she was scared, and the CPS investigator said she would instruct Tamir to let Rania leave.
The CPS investigator also testified at trial. She testified she was referred to Tamir's and Rania's house about a possible incidence of domestic violence. She denied telling Tamir to let Rania go and denied that Rania told her that Tamir would beat her because the CPS investigator had come. Rather, the CPS investigator testified that Rania had told her she felt safe in the home. She did, however, speak with Tamir's older daughter about the allegations of verbal and physical abuse in the home. The daughter denied seeing any physical abuse or hearing any verbal abuse, and confirmed that she felt safe in the home. Despite Tamir's being present during that questioning, the CPS investigator did not believe the daughter had been coached in her responses. The CPS investigator concluded the allegations of abuse were unfounded.
According to Rania, when the CPS investigator left, Tamir began yelling at her again, took her house and car keys, and forced her to rent a car to move her belongings. Rania left the house that evening while Tamir's mother and stepfather observed. Tamir's mother testified that Rania never told her that Tamir abused her, and she disputed any claim that Tamir would not let Rania leave the house noting that Rania had a car, attended their family functions, and traveled to Canada on more than one occasion. His mother testified Rania had injured her foot earlier in 2014 when she fell down the stairs. She also testified Tamir had told her he and Rania were having marital problems and that Rania would use curse words when referring to his daughters' mothers, would go into a rage, and would break glass.
Rania called the police on August 20, and reported that she had been subjected to verbal and physical abuse. At that time, she showed officers a photograph from January of bruises that resulted from Tamir's prior abuse. Officers testified Rania told them she had suffered a foot injury on August 10, when Tamir pinched her buttocks and other areas, kicked her, and then punched the top of her foot with his fist. (Rania testified that this injury to her foot had happened in January because Tamir was upset that she wanted to return to Canada to take the citizenship oath there.) She did not inform officers of any other current injuries, but she told them she had been abused by her husband for a few months. She did not mention bruising on her legs. One of the officers did acknowledge that generally a Muslim woman who is covered would not show body parts to a male officer. After reporting the abuse to the police, Rania also reported the abuse to her doctor. At the time of trial, Rania testified she was still afraid that Tamir would commit domestic violence against her.
Margaux Helm, director of programs at a local organization providing services to victims of domestic violence, sexual assault, and human trafficking, testified on Rania's behalf. Helm testified that in her experience it was very rare for victims of domestic violence to report the abuse right away. Helm opined that victims of domestic violence are often not consistent in their reports of abuse because trauma affects cognitive capacity to remember details about events that have happened.
Helm additionally opined that victims of domestic violence in immigrant populations tend to not be as confident seeking help from available resources and tend to have a smaller support system. Helm also explained a cultural belief and practice of "family honor or face saving" as not wanting information to become public that may shame the family, including challenges or issues within a marriage. Helm further described that abusers often use threats and intimidation—physical and reputational—to prevent the victim from reporting the abuse. Helm opined that immigrant victims of domestic violence are less inclined to seek help because they feel isolated or afraid of ostracism from their main support system, which is often a religious community or extended family, and that there may also be language barriers making it more difficult for them. Additionally, a victim of domestic violence who is also an immigrant may fear that they will be deported or that their immigration status will otherwise be negatively affected.
Tamir denied that he had ever physically abused Rania. He testified Rania injured her foot in January when she fell down the stairs. He described that their marital problems were a result of Rania's being disrespectful toward him, often in front of his daughters. He testified that she threw a teacup at him during one dispute. He denied threatening to turn her in to immigration, but indicated she was concerned about her immigration status. He denied being home during the day on August 17, and denied that there was any dispute in the early hours of August 18. He testified the CPS investigator suggested that he have someone present to oversee Rania's leaving the house.
At the conclusion of trial, the trial court issued a five-year restraining order against Tamir. In so doing, the trial court stated: "I am going to grant a five-year restraining order because I do believe that the Petitioner [(Rania)] has been abused physically in part, but certainly mentally, and I think she has a right to feel a sense of protection against a person that she is claiming abused her." The trial court also expressly discounted the testimony of the CPS investigator because she conducted the questioning of a witness within the sight and sound of the alleged abuser.
DISCUSSION
Tamir challenges the domestic violence restraining order on several grounds. First, he claims the trial court erred in admitting Helm's testimony as premature, lacking foundation, and inadmissible under People v. Kelly (1976) 17 Cal.3d 24 (Kelly). Second, he claims counsel for Rania repeatedly and improperly referred to propensity evidence to prove abuse. Third, he claims the court improperly shifted the burden of proof to him to disprove abuse. Fourth, he claims the substantial evidence rule does not apply because the trial court failed to properly weigh the evidence. Fifth, and finally, he claims there is insufficient evidence to support the trial court's findings of abuse because Rania's testimony in that regard is inherently improbable and incredible. We reject all of these claims.
1.0 Admission of Expert Testimony
Tamir contends the trial court erred in admitting CPS investigator Helm's testimony because at that time it was irrelevant; the opinion was improper because it lacked foundation and was not based on any scientific principles, studies, or treatises; and her opinions are unsupported and unsupportable. We review the trial court's admission of expert testimony for an abuse of discretion. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.) We conclude the trial court did not err in admitting Helm's testimony.
Tamir is apparently arguing that because Rania had not yet testified about the abuse or her delay in reporting the abuse, Helm's testimony about how victims of domestic violence react to abuse was irrelevant and inadmissible. Even assuming this argument was not forfeited by Tamir's failure to raise it in the trial court, we disagree.
At trial, when Rania offered Helm as an expert on how victims of domestic violence generally react to abuse, counsel for Tamir objected stating, "unless she [(Helm)] can testify specifically to this case, . . . this [(Helm's testimony)] is not relevant to this case." The trial court overruled the objection. A relevancy objection that Helm did not know the specific facts of the case is different than one that her testimony was not relevant to Rania's credibility because Rania had not yet testified. Tamir did not raise in the trial court the evidentiary objection he raises here. Therefore, the objection is forfeited. (Evid. Code, § 353, subd. (a); see People v. Demetrulias (2006) 39 Cal.4th 1, 20-21 [erroneous admission of evidence claim forfeited by failure to timely object on that specific ground].)
Though Rania had not yet testified at the time Helm presented her expert opinion, the petition alleging domestic violence had been filed in the trial court as had Tamir's response denying all allegations of abuse. Moreover, counsel for Tamir presented the following opening statement: "Respondent Tamir Sukkary denies ever physically abusing Petitioner. The facts in this case will show that Petitioner's statements about domestic violence are inconsistent and not supported by the evidence. [¶] The evidence in this case will show that Petitioner is simply someone who is worried about being deported now that she is no longer having her husband sponsor her." Thus, as soon as this bench trial began, Rania's credibility was directly at issue. The trial court did not have to wait until Rania testified that abuse occurred before it allowed Helm to testify about how victims of abuse behave in reporting their abuse. (Evid. Code, § 320 [the trial court has discretion to "regulate the order of proof"].)
Next, Tamir argues Helm's testimony lacks foundation because it is not supported by scientific studies or other generally accepted principles. Thus, he claims Helm's testimony should have been excluded pursuant to Kelly, supra, 17 Cal.3d at page 30. He focuses on two aspects of Helm's testimony in this regard: (1) the motivations, thought processes, and actions of Islamic women; and (2) battered women's syndrome. We conclude the trial court did not err in finding a sufficient foundation had been established to admit Helm's testimony.
A witness is qualified to offer an expert opinion if she has "has special knowledge, skill, experience, training, or education sufficient to qualify [her] as an expert on the subject to which [her] testimony relates." (Evid. Code, § 720, subd. (a).) An expert witness may offer only opinions "(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and (b) Based on matter (including [her] special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to [her] at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which [her] testimony relates, unless an expert is precluded by law from using such matter as a basis for [her] opinion." (Evid. Code, § 801, subds. (a), (b).)
For expert testimony based on the application of a new scientific technique to be admissible, it is generally subject to a multi-step process as delineated in Kelly, supra, 17 Cal.3d at page 30. First, "the reliability of the method must be established, usually by expert testimony," and, second, "the witness furnishing such testimony must be properly qualified as an expert to give an opinion on the subject." (Ibid.) Additionally, the proponent of the evidence has to show "that correct scientific procedures were used in the particular case." (Ibid.) However, none of that is pertinent here, where Helm did not provide testimony based on a new scientific technique, process, or theory. (See People v. Jackson (2016) 1 Cal.5th 269, 316.) Thus, even if Tamir had not forfeited the challenge to Helm's testimony for lack of foundation based on Kelly by failing to object to it in the trial court (People v. Ochoa (1998) 19 Cal.4th 353, 414), it would fail on the merits.
Tamir also purports to challenge the admission of five statements made in the course of Helm's testimony as lacking foundation. Tamir claims there is a lack of foundation for Helm's testimony that "It's very rare in my experience that [victims of domestic violence] report it right away." However, Tamir did not object to this testimony. Therefore, any challenge to the evidence on appeal is forfeited. He then challenges her testimony about the concepts of face-saving and family honor, about "how batterers in an abusive relationship are able to successfully prevent their abused partner from reporting the abuse . . . ," and about the impact of trauma on the victim's cognitive capacity to remember details. However, again Tamir's failure to object to this testimony in the trial court forfeits the challenges on appeal.
Tamir also claims Helm testified "[V]ictims of domestic violence from other ethnicities . . . [¶] . . . may not be as confident in our system. They might not know who to go to for help." She did not. She testified that "there are some disadvantages that people who have immigrated here have that they may not be as confident in our system. They might not know who to go to for help, and very often, their support systems are less than someone who has family or was raised in the United States." Tamir did not object to this on the basis of lack of foundation; rather, he objected that "unless she can testify to specifically this case, that this is not relevant to this case." The trial court properly overruled that objection, and Tamir's challenge based on lack of foundation is forfeited. She also testified that in her experience "very often [women who immigrate to the United States] feel a sense of isolation and are afraid that they will be ostracized from their main support system, which may come through their religious community and their extended family. And sometimes . . . the extended family is also part of the whole abuse cycle, and so it makes it very difficult for them to get out. [¶] And then if there are . . . language barriers, work, [etc.,] [those] make it difficult for them to be able to become more independent and receive the help they need." Tamir did not object to this testimony at all, thus his evidentiary challenge on appeal is also forfeited.
Finally, Tamir appears to argue Helm's testimony was not relevant because she had not interviewed or met with Rania. We are not persuaded. Helm's testimony was not directed to Rania's specific behavior but to generally disabuse the trier of fact of any misconceptions about how victims of abuse may behave with regard to reporting incidents of abuse. Thus, the expert testimony was relevant to Rania's credibility, regardless whether Helm had ever met or interviewed Rania. (See, e.g., People v. Riggs (2008) 44 Cal.4th 248, 293; People v. Brown (2004) 33 Cal.4th 892, 905-907; People v. Wells (2004) 118 Cal.App.4th 179, 186-190; see also Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 34-36 [distinguishing percipient experts who have obtained " 'personal knowledge of relevant facts' " independent of litigation from other experts for purposes of expert witness disclosure].) Thus, we cannot conclude the trial court abused its discretion in admitting Helm's expert testimony.
2.0 Reliance on Propensity Evidence
Tamir contends the trial court erred in permitting counsel for Rania to reference prior unproven accusations against Tamir to prove he had a propensity to commit acts of domestic and sexual abuse. He complains of three specific incidents during trial: (1) counsel for Rania argued that a delay in marriage was abuse; (2) counsel for Rania attempted to present hearsay evidence that Tamir's ex-wife was afraid to testify; and (3) counsel for Rania attempted to present evidence of allegations that Tamir had sexually molested his daughter. On each of these occasions, as Tamir concedes, no improper propensity evidence was admitted. Therefore, we find no error.
In general, character evidence is not admissible to prove a propensity to commit a certain act. (Evid. Code, § 1101, subd. (a).) There are limited exceptions in certain criminal actions, where domestic violence, child or elder abuse, or certain sexual offenses are alleged. (Evid. Code, §§ 1107, 1108-1109.) None of these exceptions applies in this civil matter. Thus, evidence of prior uncharged acts would not be admissible to prove Tamir abused Rania in this case. However, Tamir does not claim any evidence of prior uncharged acts was admitted in this case. His complaint is merely that counsel for Rania tried to admit such evidence. That is not error requiring our attention.
The trial court properly rejected any effort by Rania to admit evidence of prior uncharged acts to prove Tamir's propensity to have committed the abuse alleged in the instant matter. It also admonished counsel for Rania to limit herself to the facts of this case rather than those of Tamir's daughter and not to present testimony herself when she began to opine that the delay in Tamir and Rania's legal marriage was abuse and that Tamir's ex-wife was afraid to testify. Thus, the trial court properly acted as gatekeeper to prevent improper propensity evidence from being admitted. And we are not persuaded by Tamir's claims on appeal that by counsel merely referencing allegations of abuse in questioning and argument "the harm had been done." Without any indication to the contrary, we trust that the trial court, which here was the trier of fact, considered only the evidence that was actually admitted. Therefore, Tamir has failed to demonstrate judicial error.
3.0 Burden of Proof
Tamir claims the trial court improperly shifted the burden of proof to him to disprove abuse. This argument rests entirely on a single statement in the trial court's pronouncement of the restraining order that "the one piece of evidence that really hasn't been disproved is the bruising on the shins from August 10th, I think, of [20]14." While employment of the term "disproved" is unfortunate, when placed in context, it is clear the trial court did not improperly shift the burden of proof to Tamir. Rather, this statement appears to be an attempt by the trial court to indicate that there had been enough compelling evidence presented of an incident of past physical abuse to persuade it that a restraining order was appropriate when compared with evidence presented to the contrary. This interpretation of the trial court's statement is borne out by its written notation in its minutes relative to the hearing that the "most telling evid[ence] is bruising to [Rania's] shin" on August 10. Additionally, the trial court repeatedly noted that Rania was the moving party. Thus, the solitary reference to a piece of evidence not having been "disproved" is not sufficient for us to find the trial court erroneously shifted the burden of proof to Tamir.
4.0 Weighing the Evidence
Tamir also claims that the trial court did not properly weigh the evidence because it disregarded the lack of postseparation contact and the testimony of the CPS investigator. He asserts that these failures indicate an abuse of discretion by the trial court warranting reversal. We disagree.
Tamir argues the trial court did not consider the purpose of the Act, which at the time was "to prevent the recurrence of acts of violence 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." (Former § 6220.) Tamir contends that because there had been no contact between him and Rania since she moved out of their joint residence, it was an abuse of discretion to impose a restraining order. In making this argument, however, Tamir appears to ignore, that "[t]he right to petition for relief shall not be denied because the petitioner has vacated the household to avoid abuse . . . ." (Former § 6301, subd. (b); Stats. 1996, ch. 727, § 3.) Nor is the effectiveness of the temporary restraining order enjoining Tamir from contacting Rania in preventing continued abuse a sufficient reason on its own to deny further relief in the form of the instant domestic violence restraining order. (See Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 397-398 [court erred in denying renewal of domestic violence restraining order based on lack of abuse during period of restraint because to require such a showing would require the protected party " 'to demonstrate the initial order had proved ineffectual in halting the restrained party's abusive conduct just to obtain an extension of that ineffectual order' "].) Rather, the Act requires only a showing of "reasonable proof of a past act or acts of abuse" to issue a domestic violence restraining order. (Former § 6300; see Stats. 2014, ch. 635, § 4.)
The Act was amended in 2014, but the amendments were not effective until January 1, 2015, after this case had been tried and judgment entered. (Stats. 2014, ch. 635, § 3.)
Tamir also argues the trial court erred in discounting the testimony of the CPS investigator. Unsurprisingly, he offers no citation to authority for this proposition, which is effectively a request to disregard the trial court's credibility determinations and weigh the evidence de novo. This we decline to do. (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 823 [credibility determinations fall within the exclusive province of the trier of fact].)
5.0 Substantial Evidence
Tamir argues there is insufficient evidence to support the imposition of a restraining order because the trial court could not rely on Rania's inherently improbable testimony that Tamir kicked her in the shin. Tamir claims Rania's trial testimony in this regard was irreconcilable with other witnesses' testimony and her own prior statements and testimony. Unless a witness's testimony is demonstrably false, credibility determinations of a testifying witness are left to the trier of fact. (People v. Brown (2014) 59 Cal.4th 86, 105.) Thus, we do not reject a witness's statement unless it is physically impossible or apparently false—i.e., we need not make any inferences or deductions to determine falsity. (Ibid.) We conclude Rania's testimony is not inherently improbable or impossible despite her prior inconsistent statements and the contradictions with the testimony of other witnesses, and there is substantial evidence to support the trial court's finding of abuse.
For purposes of the Act, " 'abuse' means 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[; or] (4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320." (Former § 6203.) Section 6320 permits, in pertinent part, a protective order to be issued "enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating . . . , falsely personating . . . , harassing, telephoning, including, but not limited to, making annoying telephone calls . . . , destroying personal property, contacting, either directly or indirectly, by mail or otherwise, 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).) "As a result, abuse under the [Act] includes physical abuse or injury, as well as acts that 'destroy[] the mental or emotional calm of the other party.' " (Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 820.)
Section 6203 was not substantively amended for our purposes by the 2014 or 2015 amendments. (Stats. 2014, ch. 635, § 2, Stats. 2015, ch. 303, § 149.)
Here, Rania testified that Tamir had verbally abused her on numerous occasions, calling her "obnoxious," despicable," a "bad lady," excrement, a "disrespectful, ungrateful woman." She also testified that he had threatened to have her deported. She testified that on August 10, Tamir had kicked her on the legs and pulled her up by the arms, causing bruising on her legs and pain in her shoulder muscles. And she presented a photograph taken on August 24, which she testified showed the bruises caused in that incident. She testified that on August 16, he grabbed her by the shoulders and pushed her, and on August 18 he pushed her out of her bedroom and onto her back. She also testified that Tamir had previously punched the top of her foot, kicked her, and pinched her buttocks.
The crux of Tamir's argument that Rania's testimony is inherently improbable or impossible is that because Rania did not divulge to her doctors, to the police, to the CPS investigator, or to Tamir's mother that Tamir had physically abused her by kicking her on the shins on August 10, that it could not possibly have happened as she testified at trial. However, that Rania would not necessarily have reported the abuse to those individuals earlier is addressed by Helm's testimony, and by Rania's own testimony about her fear that prevented earlier reporting. Thus, in weighing Rania's prior statements, her testimony at trial, and the contrary testimony of other witnesses, the trial court engaged in a credibility determination and evidently found Rania to be a credible witness. In the absence of demonstrable falsity, which Tamir has not shown, we will not supplant the trial court's credibility determination.
Neither do we find it inherently improbable that Rania's physician apparently did not notice bruises on Rania's shins during an August 18 doctor's appointment. Nothing in the record suggests Rania disrobed at this doctor's appointment. Indeed, Tamir asserts only that the primary reason for Rania's visit was a " 'canker sore' " and that a "domestic violence screening" was conducted during the appointment, neither of which would necessarily mean that the doctor physically observed Rania's uncovered legs during the appointment. Thus, Tamir has not shown the requisite inherent probability or impossibility to dispense with the substantial evidence rule.
Moreover, the trial court did not merely rely on an incidence of physical abuse in issuing the restraining order but stated it "believe[d] that [Rania] has been abused physically in part, but certainly mentally, and [that] she has a right to feel a sense of protection against a person that she is claiming abused her." Thus, the trial court did not rely solely on evidence of physical abuse but also found there was mental abuse. Tamir fails to acknowledge this aspect of the trial court's ruling. As noted above, Rania did not testify merely as to physical abuse but also as to mental abuse, which can be the basis of a finding of abuse for purposes of the Act. Therefore, there was substantial evidence to support the trial court's finding that Tamir had abused Rania.
DISPOSITION
The domestic violence restraining order is affirmed. Rania D. Sukkary is entitled to her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
BUTZ, J. We concur: RAYE, P. J. HOCH, J.