Day v. Mallinen

Filed 2/23/07 Day v. Mallinen CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Martti Mallinen filed a request for a domestic violence protective order against Debbie Day requiring Day to cease harassing him and to move from the residence they shared. Day filed her own request seeking the same relief against Mallinen. After taking evidence from the two, the family court denied both parties requests for a move-out order and Mallinens request for a stay-away order, but it issued a limited stay-away order against Mallinen. Mallinen appeals from the denial of his requests and the grant of a protective order against him. We affirm.

I. BACKGROUND

Pursuant to the Domestic Violence Protection Act (DVPA) (Fam. Code,  6200 et seq.), Mallinen filed a request for a domestic violence protective order on December 7, 2005, seeking an order (1) restraining Day from harassing and contacting him and (2) requiring Day to move from their joint residence in Livermore and to remove several animals from the property, a ranch. As grounds for the protective order, Mallinen stated that while he and Day were living together he had been in a serious automobile accident, resulting in some loss of sight and several broken bones. He claimed that he had been pushed and verbally abused by Day, that Day refused to stop smoking in the home, and that she refused to get rid of her cats. He also stated that she had engaged in mental abuse, cussing, pushing and screaming and asserted that this conduct occurred [e]veryday. Claiming a right to remain at the ranch, Mallinen stated, I am the only one signed on the lease. I did inform the landlord that Debbie was living with me, but she never signed the lease. Mallinen acknowledged that he had never contacted the police about the alleged abuse.

The first two hearings held on Mallinens request were continued because he had not served Day. Before a contested hearing could occur, Day filed her own request for a similar order on February 6, 2006. Days request sought virtually identical relief and contended that she should be permitted to remain at the Livermore ranch because she had lived there for 8 to 10 months before she met Mallinen. As grounds for seeking a stay-away order, Day claimed that Mallinen once pulled a gun out of his truck while asking her where she had been, stood at the end of the bed and pressured her to have sex with him, hit her cats with his cane, followed her, called her constantly to see if she was at work, and shot a helpless dog. At the same time, she filed an answer in Mallinens action, contending that his health was not at risk and that she had not caused him stress.

The family court hearings were conducted by Commissioner Elizabeth Hendrickson. At the initial hearing on February 9, 2006, after receiving the parties explanation of their situation, Commissioner Hendrickson concluded, [T]his isnt a restraining order case. This is a dispute about who lives at the house. The commissioner therefore indicated an inclination to decline to issue any domestic violence protective orders. When Mallinen insisted he needed a restraining order because of the cats because I have an infection in my eye, the commissioner responded, Im not going to give you a restraining order though. I havent given either of you restraining orders. You are breaking up. You need help figuring that out. [] . . . [] Restraining orders are cases where people threaten, they hit, they do things that could escalate to somebody getting hurt. The commissioner directed the parties to meet with a small claims mediator in an attempt to resolve their differences, and scheduled a further hearing. At the mediation, the parties agreed to the disposition of various items of personal property, but some issues were left unresolved.

When the parties appeared in family court again, on February 16, they acknowledged that they had been unable to resolve possession of the Livermore ranch. Recognizing this as the critical issue, Commissioner Hendrickson asked the parties whether they wanted her to decide[] who stays. After securing their agreement to this disposition, the commissioner took evidence. Day had submitted a lease bearing both their names at the prior hearing. Mallinen conceded that he had no documentary evidence bearing on possession of the residence other than that lease and receipts showing his payment of rent. After some discussion, Day explained that she was afraid of Mallinen because he kept guns in the house. She elaborated on the claim, stated in her request, that he had removed a gun from his truck while speaking with her. Mallinen denied the incident, although he acknowledged owning a handgun. Regarding possession of the ranch, Day testified that she had lived in the City of Livermore for 20 years and at the ranch for 8 to 10 months before Mallinen moved in. Mallinen admitted that Day had been there previous to me in a bumper pool type trailer where she was staying with [prior occupants of the ranch]. When [those occupants] left, she and I moved together into the house. Mallinen did not know how long Day had been there before he arrived. At the end of the hearing, the commissioner confirmed with Mallinen that he had no evidence of a threat or violence from Day and with Day that her only evidence of a threat was the handgun incident. The commissioner then took the matter under submission.

Later that day, Commissioner Hendrickson issued a standard domestic violence protective order against Mallinen. The order precluded him from harassing or assaulting Day, but it did not restrain him from contacting Day. Although the order restrained Mallinen from visiting Day at her job, it did not preclude his presence at the ranch or require him to move out. The commissioner granted temporary control over personal property at the ranch according to the disposition previously agreed upon in the mediation settlement document. The order left possession of the ranch unresolved.

Five days later, Day filed an amended request for a protective order, asserting that since the courts order the harassment has increased because the pair continued living in the same house. In an attached statement, Day claimed that Mallinen had changed the locks on the ranch residence and refused her access, requiring a call to the sheriff. She also claimed that he had set up a camera to record her movements. On February 23, Judge Jacob Blea, III, apparently after reviewing Days amended request, issued a temporary protective order requiring Mallinen to move out pending a further hearing on March 16. On March 3, Mallinen filed an answer claiming that Day had voluntarily moved out of the ranch residence over a month before, that she had returned to the ranch several times for the sole purpose of calling the sheriff and complaining that Mallinen was violating the stay-away order, that he had filed an unlawful detainer action to resolve possession of the ranch, and that he had been severely inconvenienced by the temporary move-out order. He asked the court to revoke its prior order as well as the move-out order. Mallinen also filed a motion seeking to consolidate the unlawful detainer action with the two restraining order proceedings.

Before Commissioner Hendrickson again on March 16, both parties were represented by counsel. The commissioner explained at the outset of the hearing that she concluded after the last hearing that neither party had presented adequate factual evidence to justify a kick out order under the DVPA. She noted that Judge Blea had issued a temporary move-out order and stated that the hearing would be used to determine whether that order should be made permanent, as well as whether her prior denial of relief to Mallinen and grant of relief to Day should be reconsidered. With the agreement of counsel, the commissioner referred Mallinens motion to consolidate to the courts law and motion department. She then heard argument from Mallinens counsel on his motion to reconsider. When asked whether there were any new facts to justify reconsideration, counsel stated only that an unknown person had threatened Mallinens life if he did not leave Day alone and that Day had come onto the property for the purpose of triggering the stay-away order, as claimed in Mallinens answer. The commissioner ultimately denied the motion for reconsideration, finding no new evidence bearing on the stay-away request.

The commissioner then explained that her prior denial of a move-out order was based on her conclusion that theyre both legal tenants. As she explained further, There are certain legal requirements that have to be met regarding evidence. I cant just kick people out of their homes and thats why I didnt do it before. The commissioner then solicited further evidence on the possession of the ranch. Day and Mallinen testified, explaining and largely confirming the charges made in their written filings. Following the testimony, the commissioner declined to extend the temporary move-out order and confirmed her prior protective order. Before the end of the day, she issued an amended domestic violence protective order that appears to differ from the original order only in its deletion of a provision that precluded Mallinen from keep[ing Day] under surveillance.

On May 9, 2006, Mallinen filed a declaration stating that Days tenancy was being terminated at the ranch and he would be permitted to move back in.

II. DISCUSSION

Mallinen appeals the family courts denial of his requests for a stay-away and move-out order, the grant of a stay-away order against him, and the grant of a temporary move-out order by Judge Blea.

The DVPA permits a court to issue an order restraining a person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit . . . shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse. (Fam. Code,  6300.) For purposes of the DVPA, abuse is defined as intentionally or recklessly causing or attempting to cause bodily injury, sexual assault, and placing a person in reasonable apprehension of imminent serious bodily injury. (Fam. Code,  6203; Conness v. Satram (2004) 122 Cal.App.4th 197, 201.) Accordingly, the requisite abuse need not be actual infliction of physical injury or assault. (Conness v. Satram, at p. 202.)

In addition, a court can issue a temporary ex parte order excluding a person from a dwelling occupied by two parties, regardless of which party holds legal or equitable title or is the lessee of the dwelling, if the court finds that, in addition to other requirements, the party to be excluded has assaulted or threatens to assault the other party or any other person under the care, custody, and control of the other party, or any minor child of the parties or of the other party. (Fam. Code,  6321, subds. (a) & (b)(2).) Such an order can be extended after a hearing only if the court finds that physical or emotional harm would otherwise result to the other party, to a person under the care, custody, and control of the other party, or to a minor child of the parties or of the other party. (Fam. Code,  6340, subd. (b).) The family courts issuance of a restraining order in favor of Day, and its refusal to issue such an order or a move-out order in favor of Mallinen, must be judged by these statutory standards.

[G]ranting, denying, dissolving, or refusing to dissolve a permanent or preliminary injunction rests in the sound discretion of the trial court upon a consideration of all the particular circumstances of each individual case, and the trial courts judgment will not be modified or dissolved on appeal except for an abuse of discretion. (Professional Engineers v. Department of Transportation (1997) 15 Cal.4th 543, 562.) [T]o the extent the trial court had to . . . resolve disputed factual issues, and draw inferences from the presented facts, an appellate court will review such factual findings under a substantial evidence standard. Our power in this regard begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact. [Citations.] [] When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. [Citation.] (Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912.)

The primary evidence of abuse proffered by Mallinen was his claim in the request that Day had pushed him. Contrary to Mallinens current claim that the court would not listen to the physical or mental or health abuse that [Mallinen] was suffering, Commissioner Hendrickson held an extended hearing regarding Mallinens claims and permitted him a full opportunity to speak and present evidence. At the end of the February 16 hearing, she specifically asked him, Sir, do you have any other evidence that would support a restraining order? After he responded without mentioning any acts of violence, she asked, No evidence of threat or violence, correct? Mallinen answered, No, without mentioning the pushing that he now claims to have constituted abuse. When given a further chance to offer evidence of abuse at the March 16 reconsideration hearing, Mallinens counsel mentioned only a threat from an unidentified person who apparently was not Day.

On this evidence, we find no abuse of discretion in the commissioners conclusion that a protective order was not warranted. Because pushing can be relatively mild or unintentional, the court could not evaluate the significance of Mallinens claim without some explanation of the nature and extent of Days pushing, yet Mallinen did not even mention this, let alone explain it, at the hearing. On the contrary, he conceded to the commissioner that he had no evidence of a threat or violence by Day. In his request, Mallinen also included claims that Day smoked in his presence, kept cats that caused him infections, and committed mental abuse, cussing . . . and screaming, but these acts ordinarily do not constitute the type of conduct identified by the Family Code as abusecausing or attempting to cause bodily injury, sexual assault, or placing a person in reasonable apprehension of imminent serious bodily injury. (Fam. Code,  6203.) Infection or irritation as a result of the presence of cats and secondhand smoke are not the type of violent injury the DVPA was designed to prevent. Similarly, nonphysical conduct, such as cussing and screaming, does not constitute grounds for a protective order unless there is evidence that it is sufficiently extreme as to create a reasonable apprehension of imminent serious bodily injury. Mallinen provided no such evidence. In short, there was little or no evidence that Day had committed acts defined as abuse by the Family Code, a necessary prerequisite to the issuance of a domestic violation protective order.

Mallinen cites Quintana v. Guijosa (2003) 107 Cal.App.4th 1077, in support of his position. The differences between Quintana and this case are dramatic. In Quintana, the applicant provided evidence that her husband had repeatedly threatened and assaulted her. In denying a protective order, the family court ignored that evidence, concluding that the applicant was not entitled to a protective order because she should have been in Mexico taking care of her children rather than in the United States with her husband. (Id. at pp. 10781079.) The Court of Appeal, not surprisingly, found that the trial court abused its discretion by deciding this case on facts entirely irrelevant to the [DVPA], the purpose of which is not to mandate that parents live with their children, but 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. [Citation.] (Id. at p. 1079.) Unlike the applicant in Quintana, Mallinen presented no substantial evidence that he was a victim of threats or violence from Day, and the family court properly focused on precisely this lack of evidence in denying his request for a protective order.

Nor do we find any abuse of discretion in the family courts decision to issue a limited protective order against Mallinen, requiring him not to harass, attack, or threaten Day. According to Day, on one occasion she and Mallinen were driving home along the same road in separate cars. When they arrived at their residence, Mallinen had pulled his handgun case with the gun in it out of his pickup and asked me where I had been. In both her request and at the hearing, Day said that his possession of guns and other conduct frightened her. While Mallinen denied the handgun incident, he acknowledged owning weapons. Days testimony provided substantial evidence from which the commissioner could have concluded that Mallinen placed Day in reasonable apprehension of imminent serious bodily injury, satisfying the definition of abuse in Family Code section 6203. Accordingly, there was no abuse of discretion in the issuance of the protective order.

Mallinen argues that it was unprecedented for the family court to issue a protective order in favor of one party to domestic violence, rather than a mutual order binding on both. To the contrary, there is no expectation or standard practice of issuing mutual orders when both parties to a relationship complain of domestic violence. Rather, Family Code section 6305 restricts the issuance of mutual protective orders by subjecting them to additional procedural requirements, including the making of detailed findings of fact indicating that both parties acted primarily as aggressors and that neither party acted primarily in self-defense. (See Conness v. Satram, supra, 122 Cal.App.4th at p. 202.) The limitation on the issuance of mutual orders was imposed, in part, because they complicate the police response to any subsequent report of domestic violence by blurring responsibility among the two parties. The family court acted properly in evaluating both requests on their own merits, rather than issuing a mutual restraining order.[1]

Mallinen challenges provision 18 of the protective order, which states that because both parties were present at the hearing, no further proof of service of Days petition is necessary. Mallinen contends that he was not given adequate notice of Days request, since he was served inside the courtroom on the day of the court hearing and was given 5 minutes in the hall to read it. The transcripts show that Mallinen was given a copy of Days request at the February 9 hearing. Following receipt of the request and a break in the proceedings, he acknowledged in response to the courts inquiry that he had a chance to look at everything. It was not until February 16, a week later, that the court held a hearing and granted Days request for a protective order. Mallinen therefore had a week to examine Days petition, rather than the few minutes he claims. In any event, Mallinen waived any claim of inadequate service or notice by failing to raise the issue at the February 16 hearing, at a time when it could have been addressed and cured by the family court. (Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1149.)

Mallinen also challenges provision 13 of the protective order, which required him either to sell or surrender to the police his guns and firearms within 24 hours of receiving a copy of the order. This provision implements Family Code section 6389, subdivision (a), which states that a person subject to a protective order shall not own, possess, purchase, or receive a firearm while that protective order is in effect. The language in the order requiring prompt sale or surrender of firearms is dictated by subdivision (c) of section 6389, which states that the court shall order the respondent to relinquish any firearm in the respondents immediate possession or control or subject to the respondents immediate possession or control. (Id., subd. (c)(1).) This shall occur within 24 hours of being served with the order, by either surrendering the firearm in a safe manner to the control of local law enforcement officials, or by selling the firearm to a licensed gun dealer . . . . (Id., subd. (c)(2).) Because this provision is expressly required by statute, its inclusion in a protective order is mandatory, and it cannot be stricken by the court. (Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 12951299.) Mallinen contends that he was not given 24 hours by the police to sell the guns, but there is no evidence in the record to support this claim. Because he failed to raise the claim below, it is now waived. (In re Wilford J. (2005) 131 Cal.App.4th 742, 754.)

Mallinen also challenges the family courts use of the settlement agreement to establish temporary right to possession and use of certain assets. Such a provision is authorized by Family Code section 6324, which states that [t]he court may issue an ex parte order determining the temporary use, possession, and control of real or personal property of the parties and the payment of any liens or encumbrances coming due during the period the order is in effect. There was no error in the courts adoption of a document already agreed to by both parties to determine temporary control of the listed assets. In any event, it is difficult to see how this provision was prejudicial to Mallinen, since he had already agreed to permanent division of the assets in exactly the manner ordered by the court.

Mallinen claims that his constitutional rights were violated because he was coerced into making this settlement agreement. There is no evidence in the record to support this claim of coercion, which was never raised in the family court. On the contrary, at the February 16 hearing, held soon after the settlement conference, the commissioner reviewed with both parties the agreement reached at the settlement conference. Mallinen confirmed that he and Day had agreed to each provision; he made no mention of coercion. In any event, as with Mallinens claim that he was not given sufficient time to sell his guns, his claim that he was coerced into making this agreement cannot be raised for the first time in this court, without being presented to the family court. (In re Wilford J., supra, 131 Cal.App.4th at p. 754.)

We find no abuse of discretion in the family courts denial to Mallinen of a move-out order. As noted above, such an order is justified under the DVPA only if the family court finds that that physical or emotional harm would otherwise result to the [requesting] party . . . . (Fam. Code,  6340, subd. (b).) As discussed above, there was virtually no evidence presented in the family court that Day posed a threat of physical or emotional harm to Mallinen.

Mallinen contends that he had the legal right to possession of the ranch because he was listed on the lease and paid the rent and insurance. The DVPA, however, expressly declares that which party holds legal or equitable title or is the lessee of the dwelling is irrelevant to the issuance of a move-out order. (Fam. Code,  6321, subd. (a).) This is because the DVPA is intended to give persons emergency protection against domestic violence, not to resolve tenancy disputes. Any legal claim Mallinen might have to possession of the ranch must be settled in a proceeding such as an unlawful detainer action, not a request for protection against domestic violence under the DVPA.

In any event, it appears that the family courts denial of a move-out order has been rendered moot, since, according to Mallinens declaration, Days tenancy was terminated by the landlord and Mallinen was given exclusive possession.

Finally, Mallinens challenge to the entry of a temporary move-out order by Judge Blea, including Mallinens claim that the order was entered under suspicious circumstances, became moot when the order expired by its own terms and was not extended by the family court on March 16. (See, e.g., United Farm Workers of America v. Superior Court (1975) 14 Cal.3d 902, 906907 [expiration of temporary restraining order ordinarily renders review of order moot].) Accordingly, we do not consider whether issuance of this order was justified by the circumstances.

III. DISPOSITION

The orders of the family court are affirmed.

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Margulies, J.

We concur:

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Marchiano, P.J.

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Swager, J.

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[1] Mallinen emphasizes that Day was not living at the ranch when the various hearings occurred. Days presence at the ranch, however, was not a basis for the family courts grant or denial of any of the orders. While Judge Blea presumably assumed that Day was living at the ranch when he issued the temporary move-out order, it is too late to challenge that order. As discussed below, the propriety of that order became moot when it expired and was not renewed by Commissioner Hendrickson.