Darling v. Barbosa

Filed 10/11/06 Darling v. Barbosa CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, DeAnn M. Salcido, Judge. Affirmed.

Gladys Darling appeals the family court's issuance of an order entering mutual protective orders enjoining her and Daniel Barbosa, II, from specific acts of abuse under the Domestic Violence Prevention Act (the DVPA; Fam. Code,^[1] § 6200 et seq.). Darling contends that insofar as the order restrains her it must be reversed because the court failed to make detailed findings "that both parties acted primarily as aggressors and that neither party acted primarily in self-defense," as required by section 6305. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Darling and Barbosa formerly lived together. On July 11, 2005, she applied for a protective order against him under the DVPA. Darling submitted a declaration that stated she broke up with Barbosa on July 4 and asked him to leave her home; Barbosa grabbed her and pushed her up against a wall; he threw her against the wall and her face hit it, making a hole in the wall; he punched her and bit her on her shoulder; and he broke her cell phone and her house phone. The declaration stated Darling had scratches on her face, swollen and cut lips, bruised arms and a bite mark on her shoulder. She called law enforcement, but by the time officers arrived Barbosa had fled.

Darling's declaration also described a July 10 incident in which she and a friend of hers ran into Barbosa at a restaurant. The declaration stated that when Darling saw Barbosa she and her friend left the restaurant, but he followed her and began yelling at her and calling her names because he had spent the previous three days in jail. He then grabbed Darling's arms and slapped her face. When the women left in a car, Barbosa followed them onto the freeway, swerving at them and flashing his high beams. The women pulled into an apartment complex and called 911. Two sheriff's detectives arrived and Barbosa told them Darling had scratched him. Barbosa had a friend with him who backed him up, and Darling was arrested "because the deputies said that whoever was injured was the victim."

The court issued a temporary restraining order (TRO) against Barbosa.

In his answer to the TRO, Barbosa objected to being restrained unless the orders were mutual. His declaration gave a different version of the incidents. It stated that on July 4 he intended to move out of the home but Darling objected and verbally abused him as he was packing his belongings. She later grabbed him by the throat and forced him onto his back, and in self defense he pushed her away. He left, and as he began driving away she ran at him with a telephone and threw it at his truck. He denied abusing or threatening Darling.

As to the July 10 incident, Barbosa's declaration stated Darling called him and insisted on talking immediately. Barbosa refused, and hung up the phone. He then picked up his friend, Ana Nunez, and went to dinner. On their way out of the restaurant, they saw Darling and her friend approaching. Darling began yelling at him and Nunez, and she hit Barbosa on the jaw with her fist and grabbed him by the shirt and ripped it. Barbosa followed Darling and her friend to an apartment complex, where the police arrived and arrested Darling. Barbosa also submitted the declaration of Nunez, who confirmed his version of events.

Barbosa also filed a request for a protective order against Darling. He submitted the same information he submitted with his earlier answer, and included a list of personal belongings he wanted Darling to return. The court issued a TRO against Darling.

In her answer, Darling objected to mutual restraining orders. She submitted a declaration of Aracil Herrara, the friend who went to the restaurant with her on July 10. The declaration confirmed Darling's version of events on that date.

A hearing was held on August 24, 2005, to consider the parties' applications. Barbosa was represented by an attorney, but Darling was not. After considering Darling's live testimony, declarations and photographic evidence, the court explained: "I am going to issue mutual restraining orders because I do believe that [Barbosa] was violent with [Darling] on July 4th and I do believe he was not acting in self-defense. However, I do believe that on July 10th, seeing him out to dinner with another woman, that [Darling] got ticked off and [was] aggressive with him." The court ordered the parties not to "[h]arass, attack, strike, threaten, assault . . . , hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance, or block movements" of each other, and to remain 100 yards away from each other, their homes and their places of employment. The duration of the orders is three years. The court also ordered Darling to return Barbosa's possessions.

DISCUSSION^[2]

Mutual Restraining Orders

A

Under the DVPA, the family court is authorized to issue a protective order enjoining a party from engaging in specific acts of abuse against a cohabitant or former cohabitant. (§§ 6211, subd. (b), 6218, 6300, 6322, 6340.) The court may issue such an order based on an affidavit that shows, to the court's satisfaction, reasonable proof of a

past act or acts of abuse. (§ 6300.) For purposes of the DVPA, "abuse" means "[i]ntentionally or recklessly to cause or attempt to cause bodily injury," sexual assault, "[t]o place a person in reasonable apprehension of imminent serious bodily injury to that person or to another," and "[t]o engage in any behavior that has been or could be enjoined pursuant to Section 6320." (§ 6203.) Section 6320 prohibits the type of conduct the court enjoined here.

At issue here is section 6305, which provides: "The court may not issue a mutual order enjoining the parties from specific acts of abuse described in Section 6320[, subdivision] (a) unless both parties personally appear and each party presents written evidence of abuse or domestic violence and (b) the court makes detailed findings of fact indicating that both parties acted primarily as aggressors and that neither party acted primarily in self-defense." (Italics added.)

The court's issuance of a protective order under the DVPA is discretionary (§ 6300), and ordinarily we review the issuance of such an order for abuse of discretion. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 480.) Here, however, the issue is statutory, as Darling contends that on the undisputed facts the court was precluded from issuing mutual restraining orders since section 6305 requires detailed written findings and the court did not comply.

The interpretation of a statute presents a question of law subject to independent review on appeal. (Board of Retirement v. Lewis (1990) 217 Cal.App.3d 956, 964.) "Our primary aim in construing any law is to determine the legislative intent. [Citation.] In doing so we look first to the words of the statute, giving them their usual and ordinary meaning. [Citations.]" (Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, 501.)

B

Section 6305 does not expressly require written findings to support a mutual restraining order. For the issuance of such orders, the Legislature has mandated written evidence from both parties, but it has not included the term "written" insofar as the court's duty to make "detailed findings of fact" is concerned. (§ 6305.)

Darling relies on Conness v. Satram (2004) 122 Cal.App.4th 197, 204 (Conness), in which the court concluded that under section 6305 "written findings are necessary to ensure that mutual restraints are imposed only after a careful consideration of the evidence by the court." The court discussed the legislative history of section 6305: "[W]hen enacted in 1993, section 6305 provided: 'The court may not issue a mutual [restraining] order . . . unless both parties personally appear and each party presents written evidence of abuse or domestic violence. In this case, written evidence is not required if both parties agree that this requirement does not apply.' (Stats. 1993, ch. 219, § 154, p. 1600.) The 1995 amendment eliminated the waiver provision and added a requirement that the court make detailed factual findings supporting the conclusion that both parties acted primarily as aggressors and neither acted primarily in self-defense. (Stats. 1995, ch. 246, § 2, p. 852.) This amendment helps ensure that a mutual order is the product of the careful evaluation of a thorough record and not simply the result of the moving party yielding to the other party's importunities or the court deciding that a mutual order is an expedient response to joint claims of abuse." (Conness, supra, at p. 204, italics added.)^[3]

The Conness court's conclusion pertaining to written findings, however, was unnecessary to its opinion, or dicta, and thus it has no force as precedent. (Kertesz v. Ostrovsky (2004) 115 Cal.App.4th 369, 376.) In Conness, the court held that restraining orders issued to the parties at separate hearings were not mutual restraining orders subject to section 6305, and thus the statute was inapplicable. The court noted that the problems addressed by the 1995 amendment to section 6305 "would seem to be reduced substantially when the restraints are imposed in separate hearings. Certainly, nothing in our record suggests that . . . the court simply found it more convenient to agree to mutual restraints than to insist on a just result." (Conness, supra, 122 Cal.App.4th at pp. 204-205.)

Darling also cites Monterroso v. Moran (2006) 135 Cal.App.4th 732 (Monterosso), in which the court reversed mutual restraining orders for the lower court's failure to make detailed findings of fact mandated by section 6305. In Monterosso, a wife (Monterosso) sought a restraining order against her husband (Moran), and her application recited physical abuse he inflicted on her. At the hearing, the court reviewed Monterosso's papers, but it did not read Moran's answer because it believed the answer

may jeopardize his criminal case. The court asked whether the matter could be resolved, and Moran's attorney indicated the parties had gone to conciliation court that morning and agreed to make the restraining orders mutual. Monterosso, who represented herself, told the court she agreed to mutual orders, and the court issued such orders without ruling on the merits of her claims or making any findings of fact, oral or written. (Id. at pp. 735-736.)

The court reversed the mutual restraining orders, holding "that unless a trial court makes the detailed findings required by section 6305, it acts in excess of its jurisdiction by entering a mutual restraining order." (Monterroso, supra, 135 Cal.App.4th at p. 734.) The court explained, "Today we do little more than require that trial courts follow the letter of the law set forth in section 6305. In doing so, we exhort them to recognize that an improvidently issued mutual restraining order may adversely impact victims of domestic violence and continue their victimization." (Id. at p. 738.) The court ordered the lower court, on remand, to rule on the merits of Monterosso's application for a restraining order against Moran. (Id. at p. 739.)

Darling asserts that in Monterroso the court "followed Conness and reversed the mutual restraining orders issued by the trial court because of a want of written detailed findings of fact mandated by section 6305." (Italics added.) Monterroso, however, does not address whether the findings required by section 6305 must be written. Monterosso merely cites Conness' discussion of the legislative history of the 1995 amendment to section 6305. (Monterroso, supra, 135 Cal.App.4th at p. 737.)

Darling also asserts the facts here are similar to those in Monterosso, because Barbosa's "opposition to a restraining order was conditional: [he] would not agree to the personal conduct order requested by [Darling] 'unless [the] order is mutual.' . . . This posture by [Barbosa] was an inducement for the trial court to improvidently enter mutual restraining orders." This case, however, is easily distinguishable from Monterroso. Here, both parties submitted written evidence, and Darling concedes the court ruled only after it reviewed "all evidence submitted by the parties." There is no indication the court issued mutual restraining orders as an expediency, or simply because Barbosa urged the court for such orders. Monterroso is unhelpful to Darling.

The Legislature, of course, certainly knows how to expressly require court findings to be written. (See, e.g., Code Civ. Proc., §§ 128.5, subd. (c) [order imposing expenses for frivolous actions or delay tactics "shall be in writing and shall recite in detail the conduct or circumstances justifying the order"], 657 [order for new trial based on insufficiency of evidence or inadequate or excessive damages "shall specify the ground or grounds upon which it is granted and the court's reason or reasons for granting the new trial"].)

On the other hand, under case law, even when a statute does not expressly require "written findings disclosing its reasons, there are instances when, in the interest of availing the aggrieved party of a meaningful appellate review, express findings supporting the order imposing sanctions are desirable." (Smith v. Circle P. Ranch Co. (1978) 87 Cal.App.3d 267, 278 (Smith). In Smith, the court imposed a requirement that a court issue written findings when allowing attorney fees as cost-of-proof sanctions under Code Civil Procedure, former section 2034, subdivision (c) (now § 2033.420), even though the statute contains no such requirement. (See also Amendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 107.)

In other instances, written findings may be required to promote public policy. For instance, in Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859, 867-868, the court held that detailed written findings are required to support an award of attorney fees to a successful defendant in a civil rights case under the Fair Employment and Housing Act, even though the authorizing statute contains no such requirement (Gov. Code, § 12965, subd. (b)). The court agreed that "such a requirement serves the important public purpose of ensuring fees are awarded only in the rare cases envisioned by the Supreme Court in Christiansburg [Garment Co. v. EEOC (1978) 434 U.S. 412], so as to avoid discouraging litigants from bringing meritorious but not airtight claims to court." (Rosenman, supra, at pp. 867-868; see also Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 797.)

Given the circumstances here, however, we are not required to resolve the issue of whether section 6305 should be interpreted to require written findings of fact despite its silence on the issue. After a consideration of all the evidence, the trial court made oral findings on the record that support its ruling, and remand of the matter for the entry of the same findings in writing would serve no real purpose and be a waste of the court's resources.

"We typically apply a harmless-error analysis when a statutory mandate is disobeyed, except in a narrow category of circumstances when we deem the error reversible per se. This practice derives from article VI, section 13 of the California Constitution, which provides: 'No judgment shall be set aside, or new trial granted, in any cause . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.' " (In re Jesusa V. (2004) 32 Cal.4th 588, 624.)

"A court acts in excess of jurisdiction 'where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no "jurisdiction" (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.' [Citation.] Whether an act is in excess of jurisdiction or is merely statutory error is defined by the Constitution, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis." (In re Jesusa V., supra, 32 Cal.4th at p. 624.) According to Witkin, "[m]ost procedural steps, including those regarded as 'mandatory,' are not jurisdictional. Errors or omissions in compliance with them are not fatal to the fundamental subject matter jurisdiction of the court [citation] nor to its jurisdiction to act." (2 Witkin, Cal. Procedure (4th ed. 1996) Jurisdiction, § 281, p. 848.)

Even if written findings are arguably required under section 6305, Darling develops no argument that the matter is jurisdictional under the Constitution, statute or case law. "[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat appellant's . . . issue as waived." (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.) Thus, we treat the matter as waived and subject to a harmless error analysis. We find any arguable error harmless, as there is no reasonable probability the result would have been more favorable to Darling had the court issued written findings instead of only oral findings.

C

Additionally, Darling cursorily contends the court's oral findings are insufficiently detailed to satisfy section 6305. Again, it is undisputed that the court considered all the evidence. Barbosa's and Nunez's declarations stated that during the July 10, 2005 incident, Darling yelled at him at the restaurant, and she hit his jaw and grabbed him by the shirt and tore it. The court considered Darling's live testimony, in which she disputed that account, but it presumably found her testimony on the July 10 incident not credible. Further, the evidence showed that Darling was arrested after the incident, not Barbosa.

The court's oral findings sufficiently show that it found "both parties acted primarily as aggressors and that neither party acted primarily in self-defense." (§ 6305.) The court found Barbosa was the aggressor during the July 4 incident, and he was not acting in self-defense. It also found Darling was the aggressor during the July 10 incident, and thus it is plain she was not then acting primarily in self-defense.

D

New Trial Motion

Darling moved ex parte for a new trial to vacate the restraining order against her. She submitted a declaration, which stated she had learned after entry of the order that on July 4, 2005, after assaulting her, Barbosa made several unauthorized charges to her credit card. She sought to use the evidence to impeach Barbosa's credibility. The court denied the motion on the ground the hearing on the restraining orders under the DVPA was not a trial.

Darling contends the court erred by denying her a hearing on the motion. She asserts it is immaterial that the DVPA proceeding was deemed a "hearing" rather than a "trial," because issues of fact and law were determined. She cites Code of Civil Procedure section 656, which provides a "new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee."

A "new or further trial" may be granted for a variety of reasons, including newly discovered evidence. (Code Civ. Proc., § 657, subd. 4.) Ordinarily, we review the court's ruling on a new trial motion for abuse of discretion. (Romero v. Riggs (1994) 24 Cal.App.4th 117, 121.) Here, however, the court's ruling was based exclusively on a legal issue, and thus we apply a de novo standard of review. It is Darling's burden to prove the alleged error was prejudicial. (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1678.)

In Adams v. Superior Court (1959) 52 Cal.2d 867, 870, the court defined "trial" as "the examination before a competent tribunal, according to the law of the land, of questions of fact or of law put in issue by pleadings, for the purpose of determining the rights of the parties." Darling relies on In re Marriage of Beilock (1978) 81 Cal.App.3d 713, 721 (Beilock), in which the court adopted that definition for purposes of determining the propriety of a new trial motion. In Beilock, the wife obtained a writ of execution for claimed arrearages in child and spousal support ordered several years earlier in a dissolution proceeding. After a levy of the writ resulted in seizure of about half of the face amount of the writ, the husband moved to quash the writ and set aside the levy. The court granted his motion, and the wife successfully moved for a new trial. (Id. at p. 718.) On appeal, the husband argued the new trial motion was improper because his motion to quash the writ did not qualify as a trial. (Id. at p. 719.)

The Court of Appeal concluded the trial court properly exercised its discretion by granting the motion for new trial. The court explained: "Wife's petition for the writ of execution can be analogized to the complaint because . . . she states a claim for relief. Husband's motion to quash the execution may be viewed as his 'answer' to the claim for relief. A decision on the merits of the opposing claims was reached after presentation of evidence and legal argument. Thus, in light of the broad definition of 'trial' set forth in Adams, the hearing . . . was clearly a trial. Those proceedings were held under the law of the land, the court considered issues of fact and law raised by 'pleadings,' and as to those issues, it determined certain rights of the parties. Consequently, there was a trial." (Beilock, supra, 81 Cal.App.3d at p. 721.)

It appears the DVPA proceeding should be deemed a "trial" for purposes of Code of Civil Procedure section 657, but we are not required to decide the issue. Generally, "[e]vidence which does not affirmatively prove an issue or is used only to impeach or contradict an opposing witness does not compel the granting of a new trial." (Bostard v. Bostard (1968) 258 Cal.App.2d 793, 798.) Although there is no hard and fast rule on the issue (Charles v. Rice (1959) 173 Cal.App.2d 599, 605), a new trial is not justified here on the basis of the impeachment evidence against Barbosa. That evidence would not impeach Nunez's credibility, and she confirmed that during the July 10, 2005 incident Darling was the aggressor. "[W]e review the trial court's order, not its reasoning, and affirm an order if it is correct on any theory apparent from the record." (Blue Chip Enterprises, Inc. v. Brentwood Sav. & Loan Assn. (1977) 71 Cal.App.3d 706, 712.) Darling did not satisfy her burden of proving prejudice.

DISPOSITION

The order is affirmed. Barbosa is entitled to costs on appeal.

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

AARON, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

^[1] Statutory references are to the Family Code except when otherwise specified.

^[2] Darling purports to appeal directly from the order granting mutual restraining orders, and from the order denying her motion for a new trial. The denial of a new trial motion, however, is not directly appealable. Rather, it is reviewable on appeal of the underlying judgment or order. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 924-925, fn. 7.) Code of Civil Procedure section 904.1, subdivision (a)(4), which Darling cites, makes an order granting a new trial directly appealable.

^[3] In Conness the court relied on Sommi v. Ayer (Mass.App.Ct. 2001) 744 N.E.2d 679, in which Massachusetts' mutual restraining order statute expressly required "specific written findings of fact" in "a detailed order." (Id. at p. 680, fn. 2, italics added; Conness, supra, 122 Cal.App.4th at pp. 203-204 & fn. 9.)