Fox v. Knopp
Filed 11/8/13 Fox v. Knopp
CA2/8
NOT TO BE PUBLIS
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
MICHAEL ERIC FOX,
Petitioner, Respondent, and
Appellant,
v.
KAREN ANNE KNOPP,
Respondent, Petitioner, and
Respondent.
B240449
B243848
B242041
B242042
(Los Angeles
County
Super. Ct.
Nos. PQ012168, LQ013051)
APPEALS from orders of the Superior
Court of
County. Steff R. Padilla, Commissioner. Affirmed.
Michael E. Fox, in pro. per., for Appellant.
Bradley Dale Tubin for Respondent Karen Anne Knopp.
________________________________________
In these appeals, attorney Michael Fox
challenges four trial court orders from two related but unconsolidated cases: (1)
a restraining order against Fox, issued to his former girlfriend, Karen Knopp
(Appeal 1); (2) an order terminating Fox’s restraining order against Knopp (Appeal
2); (3) an order denying Fox’s requests for restitution under Family Code
section 6342, subdivision (a) (Appeal 3); and (4) an order granting Knopp’s
motion for attorney fees (Appeal 4). On
our own motion we have consolidated the four appeals for argument and opinion. We affirm the trial court’s orders.
FACTUAL
AND PROCEDURAL BAC
We summarize the facts in accordance with the usual rules on
appeal. Specifically, we review the
record in the light most favorable to the orders and resolve all evidentiary
conflicts in favor of the prevailing party. (Burch v. Premier Homes, LLC (2011) 199
Cal.App.4th 730, 744.)
Early Incidents
Karen Knopp and Michael Fox started dating in 2007. Fox moved in with Knopp in 2009. According to Knopp, several incidents occurred
during their relationship that made her fear Fox. On one occasion in December 2009, the two
argued. Knopp had attended a work party
that was for employees only. Fox grew
angry that Knopp did not contact him or meet him that night. The next morning, while Knopp was sitting on a
bed, Fox yelled at her, grabbed her shoulders, pushed her backward, then pushed
her toward the bathroom, all while screaming. Knopp was afraid. Fox’s grasp on her arms left bruises. On two other occasions in 2009, Fox grew
angry or hostile because of another person’s behavior, but then pushed Knopp,
berated her, or directed other angry behavior at her.
In March 2011, Fox grew angry when Knopp went out with
friends instead of waiting for Fox to come home. The next day, Knopp approached Fox while he
was in a closet, in an attempt to resolve the problem. Fox screamed at Knopp, then pushed her away,
out of the closet. He hit her hands away
when she gestured. Knopp was afraid.
Incident
In late April 2011, Fox accompanied Knopp on a business trip
to London. Fox made Knopp “miserable†by pushing
her, shoving her, telling her she was inconsiderate, and “blaming things on
[her].†Fox complained that Knopp had
not put him on the title to the house she owned in Los
Angeles. The
two argued, including about money.
According to Knopp, Fox was “mean†and “angry†that Knopp had not kept
him apprised of her whereabouts while she was working. Knopp wanted Fox to get his own hotel room.
According to Knopp, on the evening of May 1, both she and Fox
consumed multiple alcoholic beverages.
During dinner, they began to argue.
Knopp told Fox he was too aggressive and abusive, he needed help, and
she could no longer be with him. Fox
grew increasingly angry. The two
continued to argue. Knopp left Fox alone
at dinner and returned to her hotel. Fox
entered the room later. Knopp told Fox
she wanted him to leave. The two
argued. Knopp picked up Fox’s suitcase,
Fox grabbed the other side, and items fell out of the suitcase. Fox began repacking the suitcase. Knopp grabbed another bag to move it to the
door. Fox pushed Knopp with his shoulder
and pinned her against a cabinet. Knopp was stuck, but eventually broke
free. Fox told Knopp she had hit him and
he was bleeding. Knopp responded she did
not hit him, and she did not see any blood.
room. Her leg was bruised from being
pinned against the cabinet. London
police officers came to the hotel. They arrested
Knopp on domestic violence charges.
On May 5, Knopp e-mailed Fox and asked him to move out of her
house. On May 7, Fox sent
Knopp a text message telling her he loved her.
On May 8, Fox sent Knopp another text message stating: “I tried. If at any time you want to change course,
then please contact me to discuss how we could save our relationship. I do love you.â€
On May 8, Fox also responded by e-mail to Knopp’s request
that he move out. The message began: “I
have tried to reach out to you to discuss what happened between us. I had hoped that we could talk before making
any decisions that will negatively impact our relationship. Despite my hopes, however, it appears that
you do not want to talk and have chosen your path. Unfortunately, this leaves me no option but to
respond to your May 5 e-mail with this e-mail and to take all steps necessary
to protect my interests. My response, which
I honestly wish that I did not have to write and which I write with a heavy
heart, follows.†The remainder of the
message indicated Knopp’s house was also Fox’s home; Knopp had no legal right
to evict him; even if she could evict him, she had failed to give him 60 days
to vacate as required under California law; Civil Code section 789.3 prohibited
her from exercising any “self-help†remedies such as removing his possessions,
and, if she did so, she would be liable for costs and damages, or criminally liable
for theft under Penal Code section 484; and her request that he vacate in three
days’ time was unreasonable.
Fox further recounted his version of the London
incident and attached a photograph depicting his bloody nose. He warned she had no right to show the
photograph to anyone or disseminate it, and, if she did, her actions “may give
rise to monetary damages in a civil action.†The e-mail suggested Knopp had taken his watch. He asked that she return it, warning that if
she did not do so, “I will take all steps necessary to protect my interests,
including, but not limited to, filing a complaint with the police and a civil
action for recovery.†Knopp considered
the e-mail very aggressive.
Knopp Temporary Restraining Order
1. Petition & Temporary Restraining Order
On May 10, 2011, Knopp
filed an ex parte request for a restraining order against Fox, pursuant to the
Domestic Violence Prevention Act (Fam. Code, § 6200, et seq.; DVPA). In an accompanying declaration, Knopp
recounted a version of the London incident and declared Fox had previously
called her names, pushed her, slapped her hands, and spit in her face. She alleged Fox had pinned her oldest son to
the floor in August 2010. Knopp
requested that the court order Fox to move out of the house she owned, and
indicated she feared encountering Fox in the house as he had a handgun. She declared she had not been home since
returning to the United States.
The court issued temporary restraining
orders, and set a hearing for June 1,
2011.
2. Fox Opposition & Request for Costs
On May 19, 2011, Fox filed an answer opposing the
request. Fox denied all of Knopp’s
allegations. He asked the court to order
Knopp to pay his attorney fees and out-of-pocket expenses, asserting the
temporary restraining order was issued without enough supporting facts. Fox alleged it was in fact Knopp who had
abused him in London, and who continued to harass him by demanding he move out
and by seeking a restraining order on false information.
3. Hearing, Dissolution of Order, & Attorney
Fee Award
On May 31, the day before
the hearing, Knopp sent Fox a message indicating she would not appear at the
hearing and would let the temporary restraining order dissolve. On June
1, 2011, the court held an Order to Show Cause hearing on Knopp’s
petition. Knopp did not appear. Fox appeared with counsel. The court dissolved the temporary restraining
order against Fox, dismissed the case without prejudice, and granted Fox’s
request for $1,000 in attorney fees. The
court denied Fox’s request that the records in the matter be sealed.
Restraining Order Against Knopp
1. Petition
On June 13, 2011, Fox filed his own petition seeking
DVPA personal conduct, stay away, and move out orders against Knopp. In an accompanying declaration, Fox reported
Knopp began abusing him in 2010, with the abuse escalating in 2011 and leading
to the London incident. Fox declared Knopp screamed at him, insulted
him, cornered him, blocked his movements, and waived her hands in his face in a
threatening manner. Fox recounted that
during their London trip, Knopp grew
increasingly irritable, aggressive, and hostile with Fox, took his wristwatch
she had previously given him as a present, and eventually accosted him in their
hotel room, throwing his possessions into the hallway. As Fox frantically tried to call Knopp’s
father (in the United States) for help, Knopp tried to grab Fox’s phone, hit
him, kicked him, and punched him in the face, causing his nose to bleed. Fox asserted that because he declined to press
charges against Knopp, she was released from custody in London. Fox secured his own hotel room and returned
to Los Angeles the next day. Fearing Knopp, he fled to his mother’s house
in Houston, Texas.
Fox declared Knopp obtained
a temporary restraining order against him to harass him and retaliate for her
arrest in London. Fox asserted Knopp continued to harass him by
refusing to grant him access to the house where they had previously lived
together.
2. Request for Restitution
Fox also sought orders
requiring Knopp to pay his monthly mortgage, tax, insurance, and utility payments,
totaling $9,000 per month; attorney fees and costs; and out-of-pocket expenses and
lost earnings caused by Knopp’s alleged abuse.
His expenses included London hotel costs; the cost of his flight to
Houston; the cost of flying his mother from Houston to Los Angeles to help him
move; temporary housing and storage costs; professional packing and moving
services; a handgun storage fee since he had to relinquish his firearm due to Knopp’s
temporary restraining order against him; and the cost of renting a post office
box. He also sought reimbursement for
expenses he incurred in responding to Knopp’s temporary restraining order
petition, including the cost of flying his mother to town to testify, paying
for his mother’s hotel accommodations, and court parking for three witnesses
who appeared in court to testify on his behalf.
expenses. In addition, he sought over
$1,000 in costs associated with his petition for a restraining order against
Knopp.
Fox further sought lost
earnings. According to Fox, he was
unable to work because he “fled†to his mother’s house in Texas
to avoid Knopp. He could not work from
his home office once Knopp’s temporary restraining order went into effect. Fox
alleged he was unable to work for nearly one month because he was forced to
arrange new accommodations, move, and respond to the temporary restraining
order, and therefore had “virtually no time†to commute from Valencia to his
office in Irvine. Fox asserted he
was terminated from his law firm job due to his extended absence from work, and
he was no longer employable because of the record of the temporary restraining
order. He requested that the court order
Knopp to pay restitution of no less than $20,000 per month.
3. Issuance of Temporary Restraining Order
On June 14, the court
issued a temporary restraining order against Knopp. The court granted personal conduct and
stay away orders, but did not grant Fox’s request for a move-out order. Knopp did not appear in court. The court set a July 6 hearing.
4. Fox Supplemental Request for Restitution
On July 6, Fox filed a
supplemental declaration seeking additional expenses and future costs he attributed
to Knopp’s abuse, such as court filing fees, copying charges, storage fees,
court parking, fees for retrieving his handgun and obtaining firearm related
documentation, and fees associated with an application to expunge or seal court
records.
5. Knopp’s Failure to Respond & Issuance of
Restraining Order
Knopp was served with the
restraining order on June 30. She did not respond to the petition for a
restraining order, or appear at the July 6 hearing. Fox told the court he felt his safety was
still at risk. The court issued a
five-year restraining order against Knopp.
However, the court continued the hearing on Fox’s request for
restitution to August 11.
Fox Motion for Restitution &
Motion to Modify the June 1 Attorney Fee Award
On July 15, Fox filed a
formal motion for an order compelling Knopp to pay lost past and future
earnings ($48,300 past; $20,000/month future), and out-of-pocket expenses he
incurred as a result of Knopp’s abuse ($8,090), as well as the cost of
replacing his wristwatch ($650), and legal costs incurred in filing the
restitution motion. Although the court
had previously awarded him $1,000 in attorney fees, Fox now asked the court to
order Knopp to pay an additional $1,000 so that he might recoup the full $2,000
he paid his attorney to defend him against Knopp’s restraining order
petition.
Fox separately filed a
motion to modify the court’s June 1 order.
Fox asked that the payment be made directly to Fox, instead of to his
attorney. Fox also asked the court to
order Knopp to pay $2,000, instead of $1,000, arguing the court committed legal
error in awarding only a portion of his fees.
Knopp Motion to Set Aside the Fox
Restraining Order Against Her
1. Motion
On September 20, Knopp
filed a motion to set aside Fox’s restraining order against her. Her application requested the following
relief: “Request to set aside 07-06-11 restraining order after hearing taken
against respondent for her mistake, inadvertence, surprise, and/or excusable
neglect. Alternatively, equitable power
of this court.†Knopp contended she was
served on June 30, the day before the fourth of July holiday weekend and only
two full court days before the scheduled hearing on Fox’s restraining order
petition. It was also the day she was
leaving for a pre-planned vacation in Hawaii.
Although she attempted to contact and retain an attorney, she was unable
to do so before the July 6 hearing. In
the body of the motion, Knopp requested that the court either set aside the
order entered by default due to Knopp’s mistake, inadvertence, or surprise
and/or excusable neglect, or exercise its equitable power to set aside the
default due to extrinsic fraud or extrinsic mistake. Knopp contended the policy of allowing
litigants their day in court was appropriately applied given “Knopp’s
contention that Mr. Fox was the perpetrator of domestic violence on the night
of the incident in question, which formed the basis for Mr. Fox’s restraining
order.â€
2. Proposed Answer
Knopp simultaneously
filed a proposed answer to Fox’s petition for a restraining order. In the proposed answer, Knopp denied ever
threatening or attacking Fox. She denied
his version of the London incident. She
further contended that even if some of Fox’s allegations were true—such as verbal
altercations at public places—they did not rise to the level of domestic
violence. Knopp declared she did not
proceed with obtaining a permanent restraining order against Fox because his
family members had contacted her and pleaded with her not to for fear that it would
harm Fox’s legal career.
3. Fox Motion to Strike Proposed Answer
On October 3, Fox moved
to strike Knopp’s proposed answer to his restraining order petition. Fox asserted Knopp improperly filed the
answer, instead of merely including a proposed answer with her set-aside motion.
Fox also contended Knopp’s answer and a
supporting declaration contained statements that were improper “inadmissible
lay opinion testimony,†false, or improper because Knopp lacked personal
knowledge to make the statements, or the statements were hearsay.
4. Fox Opposition to Set-Aside Motion
On October 13, Fox filed
an opposition to Knopp’s motion to set aside the restraining order against her,
and evidentiary objections to the Knopp declaration supporting her set aside motion. Fox contended Knopp was delinquent in
retaining counsel, her set aside motion was untimely, she had not shown
mistake, inadvertence, surprise, or excusable neglect, and the interests of
justice would be abused by allowing her to belatedly respond to his restraining
order petition.
Knopp’s Second Petition for a
Restraining Order Against Fox
1. Petition
On October 13, Knopp
filed a new request for a restraining order against Fox. In an accompanying declaration, Knopp
declared Fox had a history of swearing and screaming at her, calling her foul
names, pushing her, spitting on her, throwing items at her, and grabbing her
hard enough to cause bruises. Knopp
declared Fox had contacted her even after obtaining the restraining order
against her. According to Knopp, Fox
sent her a text message and called her.
Knopp’s sister saw Fox at a UCLA football game at which he sat around
eight rows away from Knopp’s sister’s season ticket seats. Knopp declared Fox knew she attended most
games with her sister, and he knew the location of her sister’s seats. Knopp further declared she had decided not to
proceed with obtaining a restraining order in May 2011 after speaking with Fox’s
mother, who pleaded with her not to, and after speaking with a friend who
reported Fox said he would “bury†Knopp in litigation if she continued to seek
a permanent restraining order.
Knopp additionally
recounted several incidents which took place between 2009 and 2011, in which
Fox allegedly demonstrated violent anger, either toward Knopp, or in connection
with her.
2. Fox Opposition
On October 13, Fox filed
an opposition to Knopp’s petition. Fox
argued he had not seen or spoken to Knopp since May 2011. He contended Knopp could not show immediate
danger, risk of irreparable harm, or any recent abuse. Fox declared that while he attended the UCLA
game in question, he did not encounter anyone in Knopp’s family and made no
attempt to do so. He asserted the text
message was the result of a “mechanical mishap†with his phone. He also denied ever calling Knopp, although
he allowed his phone may have inadvertently called her (“pocket-dialedâ€).
3. Court Hearing on Temporary Orders
At the October 13
hearing, the court declined to enter temporary restraining orders against Fox
and instead set the matter for hearing on October 26. The court indicated one issue at the next
hearing would be whether there was sufficient basis to continue Fox’s
restraining order against Knopp if he was in fact violating it himself by
contacting her.
4. Fox Answer and Further Opposition to Knopp
Petition for Restraining Order
On October 19, Fox filed
an answer to Knopp’s “renewed†request for a restraining order, and a second
opposition to the request. His answer
included evidentiary objections to Knopp’s declaration. The opposition was accompanied by a
declaration from Fox’s brother attesting to Fox’s good nature, the brother’s
failure to ever observe Fox acting aggressively or violently with Knopp, and
refuting portions of Knopp’s declaration.
Fox also submitted declarations from three friends who indicated they
had never seen Fox display any anger or aggressive behavior towards Knopp. All three declared they had observed Fox
had “moved on with his life,†he did not want to communicate with Knopp, and he
had a new girlfriend.
Knopp’s
petition for a restraining order and motion to set aside Fox’s restraining
order were set for hearing. On December
7, the trial court denied Fox’s application to have the records sealed from
Knopp’s first restraining order petition. At ten court sessions between December 7, 2011
and January 24, 2012, the court heard testimony from Knopp, Fox, Knopp’s son,
and Fox’s new girlfriend. The court
accepted into evidence the declarations of Fox’s brother and friend, in lieu of
their testimony.
Knopp’s adult son, Hunter
Knopp, testified about an altercation he had with Fox in 2010. Hunter described Fox as angry and physically
intimidating. According to Hunter, when
he did not remove a shooting target Fox had asked him to take down, Fox grew
increasingly angry, used expletives, then grabbed Hunter, spun him around, and
grappled with him. Hunter recounted he
was “terrified,†and his girlfriend was screaming; both told Fox he could not
touch Hunter in that way. Hunter further
testified he witnessed Fox yelling at Knopp multiple times a week, and heard
Fox calling his mother a “bitch†or telling her to “shut the fuck up.†On cross-examination, he admitted he had never
seen Fox hit, push, or shove Knopp, or act physically aggressive with
Knopp. Hunter said he was afraid of Fox
because Fox held grudges, had always been intimidating, and does not give up.
Knopp
testified about Fox’s prior abusive behavior and the London
incident. She said she did not
respond to the Fox restraining order paperwork right away because she felt
overwhelmed, although she attempted to find counsel while in Hawaii. She explained she renewed her request for a
getting paperwork†from Fox, which felt like constant contact. In addition, the text message, telephone
call, and UCLA game, were “too much,†and
she wanted to be left alone. Knopp said she
was afraid of Fox. However, she admitted
Fox moved out of her house in May 2011. He had
not attempted to move back into the house, he had never shown up at her place
of employment or threatened to do so, and he had not caused her any physical
harm since her restraining order was dissolved.
She also admitted the two had not spoken outside of the courthouse since
May 2, 2011, in London. Knopp denied any knowledge that Fox’s
employer might monitor his e-mails, and denied that her e-mail to his work
address asking him to move out was intended to alert his employer to their
personal problems.
Fox’s
closing argument took place over three afternoon court sessions. Fox argued Knopp acted out of revenge and to
save face. He contended her accounts of
his violent behavior prior to May 2011 were false, refuted by his witnesses’
declarations, proven false by certain details he had demonstrated were
incorrect, rendered incredible by the fact that she allowed him to move in with
her after the events allegedly occurred, and her versions were uncorroborated
by any independent evidence. He argued her
account of the London incident was
false, as refuted by, among other things, photographs indicating they were
having a good time on the trip, and evidence showing her statements about even
minor details – such as what they ate for dinner – were false. Fox additionally asserted Knopp had no
evidence of any recent abuse or even recent contact. He argued his witnesses uniformly indicated he
was not a violent or aggressive person, including his new girlfriend.
Fox described Knopp’s
anger, which was directed at him, and which he attributed to Knopp’s hormonal
imbalance and PMS. Fox argued that
during Knopp’s menstrual cycle she would corner him, yell at him, get in his
face, wave her hands in a threatening manner, and frighten him. He alleged this behavior caused him to flee
the house, returning only after she was asleep.
During
Fox’s closing, the court again indicated it would consider whether to continue
Fox’s restraining order against Knopp, and invited him to discuss whether he
believed she still posed a threat to him.
Fox argued the court should deny Knopp’s request that it “exercise its
equitable powers to terminate the restraining order†because he continued to
fear she would harass and attack him. He
explained: “While she has not physically battered me in the last six months, I
believe that the restraining order has prevented her from doing so. On the other hand, she has sidestepped the
restraining orders to continue her campaign of harassment against me by filing
two frivolous restraining order actions based on false and fraudulent
allegations. . . . I believe that if the restraining order had not been in
place, then she would have pursued other means to harass me beyond filing
frivolous lawsuits. Finally, she has
given me threatening stares throughout the duration of this trial.â€
Court Ruling on the Restraining Orders
On January 24, 2012, the court terminated Fox’s
restraining order against Knopp. The
court indicated it found Knopp credible, and it did not believe Fox’s restraining
order against her was still necessary. The
court explained it did not believe Fox was afraid of Knopp or concerned about
his safety. The court then granted a one-year
restraining order against Fox, indicating Knopp established Fox had engaged in
a pattern of abusive behavior that continued. On March 26, Fox filed a single notice of
appeal from the trial court order dissolving his restraining order against
Knopp, and issuing a restraining order against him.
Request for Attorney Fees
Knopp subsequently
requested that the court award her $20,000 in attorney fees, pursuant to Family
Code section 6344. Fox opposed the
request. Fox asserted Knopp had not
disclosed all of her income or the value of her assets in her income/expense
declaration. He contended she was
financially capable of paying her own fees.
In contrast, Fox asserted he was unemployed, “homeless,†had no
income except unemployment insurance benefits, and he had no prospects for
future employment. He also argued
the court could not award Knopp all of her attorney fees because, among other
reasons, the trial was not limited to her request for a restraining order and
not all of her costs were reasonably incurred.
Court Ruling on Restitution and Fees
1. Memorandum of Intended Decision
On April 13, 2012, the court issued a memorandum of
intended decision on the attorney fee and cost issues.
over-litigated the matter. The court
also concluded the matter required skill and restraint; Fox filed “various non
meritorious motions in all casesâ€; and Knopp was the prevailing party in two of
three cases. The court awarded Knopp
$10,000 in attorney fees. It denied Fox’s
request for restitution, noting he failed to present any independent evidence
that Knopp caused him to lose his job.
The court additionally ordered “all fees and costs are to be paid by
both parties,†and denied all other requests for restitution.
2. Fox Objections and Response
On April 23, Fox filed a
statement of controverted issues and proposals not covered in the tentative
decision, and objections to the intended statement of decision. Fox asserted the court had not ruled on his
motion to modify the June 1, 2011 attorney fee order, a motion to quash a
subpoena Knopp issued before the evidentiary hearing, or the motion to strike
Knopp’s proposed answer. Fox also contended
the court had not signed an order allowing Fox to return to Knopp’s home to
retrieve the remainder of his belongings.
In his objections, Fox disputed the applicability of several legal authorities
cited in the intended statement of decision.
He asserted the court abused its discretion in awarding Knopp attorney
fees because he had no ability to pay them, and he did not have notice that
fees would be awarded under various code provisions cited in the court’s
statement. Fox further challenged the
court’s decision in part by making distinctions between costs that were, or
were not, incurred in each “separate†proceeding, and by identifying alleged
misstatements of fact in which the court implied there was only one case,
rather than three.
title="">[5] Fox
contended he, not Knopp, was not the prevailing party in two of three cases.
The
record contains no response to the statement of controverted issues or
objections. On June 15, Fox appealed
from the attorney fee and costs order, in two separate notices of appeal.
Discretion in Issuing a Restraining Order Against Fox (Appeal 1: B243848)
Fox challenges the restraining
order issued against him. Fox contends:
1) collateral estoppel barred Knopp from “re-litigating†the London
incident; 2) substantial evidence did not support the order; 3) the court made
several incorrect and prejudicial evidentiary rulings; and 4) the court
committed prejudicial judicial misconduct.
We disagree and affirm the court’s order.
Collateral Estoppel
Fox contends Knopp’s petition for a
restraining order against him was “primarily based†on the London
incident. As such, he argues the facts
of that dispute were litigated and necessarily decided in his favor when the
trial court issued the July 6 restraining order against Knopp. Fox asserts Knopp could not re-litigate that
incident to support her own petition for a restraining order against Fox. Fox’s argument is unavailing. As an initial matter, Fox forfeited any
collateral estoppel defense by failing to assert it in the trial court. (Franklin
Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184 Cal.App.4th 313,
332.) He cannot now argue the trial
court erred by “ignoring collateral estoppel.â€
However, Fox also argues he could
not raise collateral estoppel as a
defense in the trial court because his July 6 restraining order was not yet
final. He thus asserts this court should
apply collateral estoppel for the first time on appeal to invalidate the Knopp
restraining order against him.
name="_ftnref7" title="">[7] (First
N.B.S. Corp. v. Gabrielsen (1986) 179 Cal.App.3d 1189, 1195 (
first instance on appeal. Even assuming
we could properly consider the restraining order issued against Knopp as a
separate action from her petition against him, and even if we agreed Fox was
excused from raising collateral estoppel in the trial court because the ruling
was not final until after the evidentiary hearing,
resolved ultimately in Fox’s favor. (
p. 1195 [when there are two separate
actions in different courts
involving the same issues and parties, the first final judgment may be
collateral estoppel in the second action].)
As discussed more fully below, the trial court terminated Fox’s
restraining order against Knopp. Although
the court rejected Knopp’s contention that her failure to respond to Fox’s
petition was excusable due to mistake or inadvertence, the court still
terminated the restraining order against her.
On this record, we would not find the facts of the London
incident were litigated and decided in Fox’s favor as a basis to invalidate
Knopp’s restraining order against him based on collateral estoppel.
B. The Trial Court Did Not Abuse
its Discretion in Issuing the Restraining Order Against Fox
Fox contends the trial court abused
its discretion in issuing a DVPA restraining order against him because there
was no substantial evidence of abuse. We
find no abuse of discretion. (
1249, 1264 (S.M.).) Under the DVPA, the trial court may issue a
restraining order “for the purpose of preventing a recurrence of domestic
violence and ensuring a period of separation of the persons involved, if . . .
an affidavit and any additional information provided to the court pursuant to
Section 6306, shows, to the satisfaction of the court, reasonable proof of a
past act or acts of abuse.†(Fam. Code, § 6300.) The DVPA defines abuse as “ ‘any of the
following: [¶] (a) Intentionally or recklessly to cause or attempt to
cause bodily injury[;] [¶] (b) Sexual assault[;] [¶] (c) To place a person in reasonable
apprehension of imminent serious bodily injury to that person or to another[;] [¶] (d) To engage in any behavior that has
been or could be enjoined pursuant to Section 6320.’ (§ 6203.) The behaviors
outlined in section 6320 include ‘molesting, attacking, striking, stalking,
threatening, sexually assaulting, battering, harassing, telephoning, including,
but not limited to, annoying telephone calls as described in Section 653m of the
Penal Code, destroying personal property, contacting, either directly or
indirectly, by mail or otherwise, coming within a specified distance of,
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).)†(S.M.,
supra, 184 Cal.App.4th at p. 1264.)
Knopp
presented evidence at the hearing that Fox engaged in a pattern of violent and
harassing behavior throughout their relationship, including yelling at her and
pushing her. She offered evidence that
he caused her bodily injury in London
by pinning her against a furniture cabinet in their hotel room during an
argument. She further offered evidence
that when she asked him to move out of her house, he responded in part by
asserting she could not force him to leave.
She additionally offered evidence that since obtaining his own
restraining order, Fox had called her telephone, sent her a text message, and appeared
to be attempting to encounter her at a football game. This evidence was sufficient to allow the
court to find past acts of abuse within the meaning of the statute.
Fox asserts
Knopp’s evidence was contradicted and not credible. However, we do not reweigh the evidence or
second guess the trial court’s credibility determinations. When the evidence supports two or more
reasonable inferences, we accept the inference supporting the trial court
order. (Citizens Business Bank v. Gevorgian (2013) 218 Cal.App.4th 602,
613.) We disagree that Knopp’s evidence
was inherently improbable or physically impossible, or that its falsity was
apparent “without resorting to inferences or deductions,†such that we may
disagree with the trial court’s determination that the evidence was credible. (Evje
v. City Title Ins. Co. (1953) 120 Cal.App.2d 488, 492.)
We also
reject Fox’s contention that the trial court improperly overruled his
objections to Knopp’s evidence of pre-2011 incidents. Fox asserts these incidents were irrelevant
because they were too distant; some were irrelevant because they did not
demonstrate abuse against Knopp; and some constituted improper character
evidence. Yet, the court could
reasonably conclude the challenged evidence was relevant, either to show direct
abuse against Knopp or to provide context for her allegations. Fox’s objections to the evidence concerned
its weight, not its admissibility.
name="_ftnref9" title="">[9]
This was not a jury trial. The trial court did not abuse its discretion
in concluding the probative value of evidence of pre-2011 incidents would not
be outweighed by its potential prejudice.
(In re Jose M. (1994) 21
Cal.App.4th 1470, 1481.) In addition,
the record does not establish that Fox made any objections based on improper
character evidence. His failure to
object on that ground forfeits the argument on appeal.
California Funeral Services, Inc. v. Five Bridges Foundation (2012) 203
Cal.App.4th 549, 564-565; People v.
Doolin (2009) 45 Cal.4th 390, 437 [relevance and Evid. Code, § 352
objection did not preserve argument that evidence was inadmissible under Evid.
Code, §§ 1101 & 1102].)
We also disagree with Fox’s
contention that evidence of incidents prior to the London
incident were not substantial evidence of abuse. For the reasons explained above, we reject
the argument that evidence of incidents prior to May 2011 was not substantial
because it was not credible. Further, we
disagree that, to the extent the incidents formed a basis for the trial court
finding that Fox had engaged in past acts of abuse, the finding was improper. Take, for example, two incidents Knopp
testified about at the hearing: a 2009 incident in which Fox yelled at Knopp,
grabbed her shoulders, and pushed her, and a 2011 incident in which Fox
screamed at Knopp, pushed her, and hit her hands. These incidents were not exceedingly
remote. They involved Fox’s behavior
with Knopp. They described Fox engaging
in acts of physical aggression against Knopp.
The trial court could properly find these incidents were past acts of
abuse, particularly when considered with all
of the evidence.
In sum, the trial court did not
abuse its discretion in issuing a restraining order against Fox.
C.
There
Was No Judicial Misconduct
Fox asserts prejudicial
fair hearing. Claims of judicial
misconduct must be raised in the trial court to be preserved for appellate
review. (People v. Snow (2003) 30 Cal.4th 43, 78; Metzenbaum v. Metzenbaum (1950) 96 Cal.App.2d 197, 199-200.) Fox failed to object on this ground in the
trial court, and has therefore forfeited the argument.
But even had Fox objected below, we
would reject his claim. We have reviewed
the record in its entirety and find no support for his contention. We have found no error in the trial court’s
rulings and thus disagree that the court was “unfaithful to the law.†Fox asserts the court was intemperate with
him. Yet, our review of the record
suggests the court was in fact remarkably tolerant, given Fox’s focus on minor
impeachment details during cross-examinations, his persistence in arguing
points the court indicated it did not find relevant or useful, and the leeway the
court gave him in fully arguing his case over multiple court sessions. The court also repeatedly praised the efforts
of Fox and Knopp’s counsel. To the
extent the court urged Fox to be more efficient, this was not judicial
misconduct. (Bates v. Newman (1953) 121 Cal.App.2d 800, 810 [comments such as
the trial had been “unduly prolonged,†or “‘You don’t have to spend so much
detail on it’†were not improper or prejudicial, even if preserved for
review].) The record simply does not
support Fox’s assertion that the court tried to coerce a settlement, or that
the court unreasonably interfered with witness examinations. Nor does it offer any support for his claim
that the court was biased against him.
There was no judicial misconduct.
II. The
Trial Court Did Not Err in Terminating the Restraining Order Against Knopp
(Appeal 2: B240449)
Fox
asserts the trial court exceeded its jurisdiction in terminating his
restraining order against Knopp because Knopp never moved to terminate the
order. To the extent the court
construed Knopp’s set-aside motion as requesting termination of the order, and
granted the motion, Fox asserts the court erred because the motion could not be
so construed, Knopp did not show termination was warranted, and the trial court
improperly shifted the burden of proof.
In either case, Fox argues his due process rights to notice and hearing
were violated. We find no error.
Background
The
trial court granted Fox’s petition for a restraining order against Knopp on July 6, 2011, after Knopp failed to
oppose the petition or appear in court.
On September 20, 2011,
Knopp filed a motion asking the court to set aside the restraining order. The motion was based on Code of Civil
Procedure section 473, subdivision (b).
The notice of motion indicated Knopp asked the court to set aside the
restraining order “after hearing taken against respondent for her mistake,
inadvertence, surprise, and/or excusable neglect,†or, in the alternative: “equitable
power of this court.â€
By
October 13, 2011, there
were multiple matters before the court requiring hearing. Knopp’s petition for a restraining order was
set for hearing on October 26. At the
October 13 hearing, the court indicated that at the October 26 hearing it would
consider whether there was sufficient basis to continue a restraining order
against Fox, in light of the allegation that he had contacted Knopp since the
order issued. Later at the October 13
hearing, the court commented: “The only restraining order in effect at this
point, however, is the court did grant Mr. Fox a restraining order, a five-year
restraining order against Ms. Knopp.
Whether or not that continues and where we go from here, we will have a
hearing on that matter.â€
During
Fox’s closing argument on January 24,
2012, he argued against Knopp’s petition for a restraining order,
then stated he would turn his arguments to the set-aside motion. The court asked: “Are you prepared to argue
whether or not I should dismiss? Because
you also ask for equitable relief for her restraining order - - for your
restraining order against her not only to be set aside, but also for any and
all equitable relief, and the court interpreted that to mean to include my
ability to terminate because there is no longer a risk of threat to your safety
and well-being.†In response to Fox’s
remarks, the court clarified that Knopp had asked for that relief. The court advised Fox to argue the point,
adding: “Okay? Whether or not you still
believe that there is an ongoing threat to your safety and well-being for your
restraining order against Ms. Knopp.†As
Fox began to argue Knopp had not established any inadvertence, mistake, or
surprise, the court interrupted and indicated it would not grant the motion to
set aside the restraining order due to mistake, inadvertence, surprise, or
fraud.
to whether or not to continue the temporary restraining order because you
believe that you are still in threat of your well-being threatened by her
actions and to continue the restraining order, you may argue that.†The court interrupted again to ask: “Do you
want an opportunity to argue as to why not that restraining order – because
[Knopp’s counsel] did ask for any and all equitable relief . . . .†Fox responded he felt the argument would be “covered
by the remaining part of the presentation.â€
The court answered: “Okay. I just
want to give you an opportunity to argue that, because you did ask for
equitable relief as to why shouldn’t the court consider terminating the
restraining order against her at this point, and the court pursuant to the
Family Code can terminate at any time upon written motion and an opportunity to
be heard, and if there has ever been a case pursuant to the Domestic Violence
Prevention Act for this court to believe that both parties have had an
opportunity to be fully heard on that issue, it’s this case.â€
Fox
did not immediately address the point. However, he later explicitly argued the
question. Fox contended he continued to
fear that Knopp would “harass and attack†him, and “while she has not
physically battered me in the last six months, I believe that the restraining
order has prevented her from doing so.†He
also asserted Knopp had harassed him by filing frivolous and false restraining
order petitions; he felt that she would have harassed him further without the
restraining order against him; and she had given him threatening stares
throughout the trial.
Legal Principles
Under Family Code section
6345, subdivision (a), a DVPA restraining order is “subject to termination or
modification by further order of the court either on written stipulation filed
with the court or on the motion of a party.â€
As explained in Loeffler v. Medina
(2009) 174 Cal.App.4th 1495, 1503 (Loeffler),
“[a] domestic violence restraining order is a type of injunction, as it is an ‘order
requiring a person to refrain from a particular act.’ [Citation.]†Code of Civil Procedure section 533 explains
when the court may modify or dissolve an injunction: “In any action, the court
may on notice modify or dissolve an injunction or temporary restraining order
upon a showing that there has been a material change in the facts upon which
the injunction or temporary restraining order was granted, that the law upon
which the injunction or temporary restraining order was granted has changed, or
that the ends of justice would be served by the modification or dissolution of
the injunction or temporary restraining order.â€
It
is well established that trial courts have inherent authority to modify or
dissolve injunctions. As explained in
Superior Court (1941) 18 Cal.2d 92, 94, a preventative injunction, “although
purporting on its face to be permanent, is in essence of an executory or
continuing nature, creating no right but merely assuming to protect a right
from unlawful and injurious interference.
Such a decree, it has uniformly been held, is always subject, upon a
proper showing, to modification or dissolution by the court which rendered
it. The court’s power in this respect is
an inherent one. Its action is
determined by the facts and circumstances of each particular case, with a view
to administering justice between the litigants, and it has the power to modify
or vacate its decree when the ends of justice will be thereby served.†(Id.
at pp. 94-95; see also Green Trees
Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. (1967) 66 Cal.2d
782, 788-789; Union Interchange, Inc. v.
Savage (1959) 52 Cal.2d 601, 604-605; Welsch
v. Goswick (1982) 130 Cal.App.3d 398, 404-405.) We will not disturb a trial court ruling
terminating a restraining order absent an abuse of discretion. (Loeffler,
supra, 174 Cal.App.4th at p. 1505.)
The Trial Court Could Properly Construe Knopp’s Set-Aside Motion as
Alternatively Seeking Termination of the Fox DVPA Restraining Order
The trial court could
properly construe Knopp’s set-aside motion as requesting termination of the Fox
restraining order as one form of potential relief. As the court pointed out, in addition to
seeking an opportunity to oppose the Fox petition for a restraining order,
Knopp sought “equitable relief,†and, more generally, to “set aside†the Fox
order. The court was not required to
ignore the overall circumstances of this case in determining what Knopp meant
in her request for other “equitable relief†in the set-aside motion. In addition to the set-aside motion, Knopp
also filed her own request for a restraining order against Fox. Knopp’s petition contended Fox not only
engaged in past acts of abuse, he had continued to contact Knopp or attempt to
encounter her, suggesting he no longer needed a restraining order to be
protected from her. Although Knopp’s
set-aside motion did not also reference Family Code section 6345, subdivision
(a), under the circumstances the trial court could reasonably construe the
set-aside motion as alternatively seeking termination of the Fox restraining
order.
D. The Court Could Act on its
Own Motion
Moreover,
even if we view the court’s termination of the Fox restraining order as an
action taken on the court’s own motion, we are not persuaded this was error. Family Code section 6345, subdivision (a)
describes DVPA restraining orders as subject to termination on written
stipulation or on motion of a party.
However, that a statute does not expressly state the court may take a
described action on its own motion does not necessarily mean the court is
prohibited from doing so.
For example, in
1094, our high court concluded that although Code of Civil Procedure sections
437c and 1008 limit the parties’ ability to make renewed motions for summary
judgment, they did not limit the court’s ability to act on its own motion to
correct errors. The court noted that
interpreting the statutes to restrict the court’s authority to act on its own
motion to correct its own errors “might go too far. If interpreted to limit the court’s ability to
reconsider its own rulings, these statutes might, as one court concluded, ‘emasculate
the judiciary’s core power to decide controversies between parties. The legislative restriction of a court’s
ability to sua sponte reconsider its own rulings is not merely a reasonable
regulation on judicial functions. Instead,
such a restriction would directly and materially impair and defeat the court’s
most basic functions, exercising its discretion to rule upon controversies
between the parties and ensuring the orderly administration of justice. Courts
are empowered to decide controversies, a power derived from the state
constitution. We are hard pressed to
conceive of a restriction that goes more
to the heart of a court’s constitutionally mandated functions. . . .’ [Citation.]â€
(Le Francois v. Goel, supra,
at pp. 1104-1105.)
The
principle that the court has the responsibility to adjudicate controversies
between the parties and ensure the orderly administration of justice is
applicable here. A DVPA restraining
order is not set in stone until it expires.
It may be modified. The court
concluded Knopp did not adequately show inadvertence or mistake in failing to
respond to the Fox petition for a restraining order. But under the circumstances of this case,
which included Knopp’s petition for a restraining order against Fox based in
part on conduct occurring since the issuance of the Fox restraining order, the
court was carrying out its basic function of adjudicating the controversy
between the parties and administering justice by acting on its own motion to
consider whether the Fox restraining order should be terminated. (See Wolf
v. Board of Supervisors (1907) 150 Cal. 285, 288 [suggesting a court may on
its own motion dissolve or modify ex parte preliminary injunction when it
becomes satisfied the order was improvidently or erroneously made];
112.) The nature of the controversy was
such that the question was squarely before the court, and was fully litigated. Further, as discussed below, Fox received
sufficient notice and opportunity to be heard before the court ruled on the
question.
E. No Prejudicial Due Process Error
We disagree that the
court’s action deprived Fox of his due
process rights to notice and a hearing, whether viewed as the court acting
on its own motion or based on its interpretation of Knopp’s set-aside motion as
also seeking termination of the restraining order. Fox had significant advance notice that the
court would consider terminating his restraining order. On October 13, nearly two months before the
first day of testimony in the evidentiary hearing, the court twice indicated it
would consider whether the Fox restraining order should be terminated. Fox did not object. The trial court’s statement was consistent
with what was obviously the ultimate goal of Knopp’s “set-aside†motion—the
dissolution of Fox’s restraining order against her—even if it did not
explicitly mention “termination†of the order.
(See In re Marriage of Petropoulos
(2001) 91 Cal.App.4th 161, 178.)
Subsequently, during closing arguments, the
trial court explicitly stated it understood Knopp’s motion as requesting
termination of the Fox restraining order.
Fox did not object. Instead, he
argued the matter. (See
103 Cal.App.4th 1349, 1375 [errors in notice waived by appearance and argument
on merits at hearing].) The evidence
presented at the hearing concerned the relationship between the parties, the
events leading up to the legal proceedings, and what had happened since the
court issued a restraining order against Knopp.
Inherent in Knopp’s arguments and evidence supporting her request for a
restraining order was a contention that she needed protecting from Fox, and
that Fox did not need protection from her.
These issues were exhaustively briefed and litigated. Even if Fox was unaware until closing
arguments that the court might terminate his restraining order, he has not
established he was prejudiced by not receiving more advance notice. (In re
Angela C. (2002) 99 Cal.App.4th 389, 394-395 [harmless error analysis for
due process error].) And, under the
circumstances, the argument that he did not receive adequate hearing on the
issue is without merit. (See
The Trial Court Did Not Abuse its Discretion in Terminating the Order
We
also find no abuse of discretion in the trial court’s termination of the Fox
restraining order on the merits of the ruling.
(Loeffler, supra,174
Cal.App.4th at p. 1505.) As noted above,
a court may terminate a DVPA order on a showing of a material change in facts
upon which the order was granted, a change in law, or that the ends of justice
would be served by dissolution of the order.
(Id.
at p. 1503.) When the court issued the
Fox restraining order on July 6, the evidence before it indicated Knopp had, at
unspecified times, acted in an angry and confrontational manner with Fox;
during the London trip she yelled at Fox, swore at him, perhaps took his watch,
and eventually battered him; she filed a “frivolous†restraining order against
him which led to serious repercussions such as Fox’s homelessness and termination
from his job; and she had not permitted him to enter her house or backyard to search
for or retrieve his possessions.
All of these facts came
into question in the litigation of Knopp’s second request for a restraining
order. The trial court, upon hearing all of the evidence, did not believe Fox’s
contention that he feared Knopp in confrontations with her. Substantial evidence supported the trial
court’s conclusions in Knopp’s favor. In
Knopp’s account, which the trial court credited, Fox had a history of
aggressive and violent outbursts against Knopp. He engaged with Knopp
physically in London, pinning her
against furniture. Despite the London
incident, Fox attempted to reconcile with Knopp. But when Knopp asked Fox to move out of her
house, he responded with threats of legal action. After securing his own restraining order
against Knopp, Fox subsequently contacted her and appeared to be attempting to
encounter her at a sporting event she was likely to attend. The court voiced its observation that Fox
attempted to demean and humiliate Knopp in court.
Thus,
the factual basis of Fox’s restraining order was undermined, particularly with
respect to his alleged continuing fear of abuse. In addition, in support of his restraining order,
Fox had claimed that a primary source of Knopp’s abuse and harassment was her
pursuit of a temporary restraining order.
Yet by the time of the trial court ruling in January 2012, Knopp’s
temporary restraining order had long since dissolved. There was evidence that since the issuance of
Fox’s restraining order, Fox had not seen Knopp. Knopp had not contacted him. The two had not spoken. The only evidence of contact between the two
parties came from Fox’s text and telephone call to Knopp, which he claimed were
inadvertent, and the apparent attempted contact by Fox when he attended a UCLA
game. This evidence supported a finding
that circumstances had sufficiently changed so that Fox no longer had a
reasonable fear of abuse or harassment from Knopp. (Loeffler,
supra, 174 Cal.App.4th at p. 1507.)
The
trial court considered the evidence presented as to the parties’ relationship,
the evidence presented by both sides regarding past altercations, and the
events occurring since the issuance of the Fox restraining order. The court determined the evidence supported
the issuance of a restraining order against Fox. The court could also reasonably conclude
there had been a material change in facts justifying the termination of the
restraining order against Knopp, or that the ends of justice would be served by
terminating the Fox restraining order.
(See New Tech Developments v. Bank
of Nova Scotia (1987) 191 Cal.App.3d 1065, 1073 [no abuse of discretion in
dissolving preliminary injunction where initial issuance was contrary to
statutory law; “The ends of justice are not served if the aggrieved parties
cannot obtain relief from an improperly issued preliminary injunction.â€].)
Knopp’s Proposed Answer
We need not consider Fox’s
arguments regarding the filing of Knopp’s proposed answer to the Fox
petition. Even if the trial court erred
in refusing to strike Knopp’s proposed answer, the only errors reversible on
appeal are prejudicial ones. In light of
the testimony at trial, which included the matters asserted in the proposed
answer, and the resolution of the proceedings in this case, we fail to see how
any error in the court’s refusal to strike the proposed answer was one that
affected the outcome of the proceedings in any way. (Cassim
v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-801; Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963; see
also In re Marriage of Davenport (2011)
194 Cal.App.4th 1507, 1526 [trial court is presumed to ignore material it knows
is incompetent or inadmissible; if court states it will ignore evidence, we
presume it did so].)
III. The Trial Court Did Not Err in Denying
Fox’s Request for Attorney Fees and Restitution/Costs (Appeal 3: B242041)
Fox contends he was entitled to
attorney fees and restitution as the prevailing party in his petition for a
restraining order against Knopp. He also
asserts the trial court prejudicially erred by failing to act on his statement
of controverted issues or objections to the court’s statement of intended decision. We disagree.
A. Background
i.
Attorney Fees
Fox sought attorney fees in
connection with Knopp’s initial May 2011 petition for a DVPA restraining order.
According to Fox, he appeared at the June
1 hearing with a written declaration supporting his request for attorney fees
and a completed income and expense declaration.
However his attorney did not prepare an attorney declaration supporting
the request for attorney fees. The court
awarded Fox $1,000 in attorney fees (June 1 order).
On
July 15, 2011, Fox filed a
motion seeking modification of the court’s June 1 attorney fee order. Invoking the court’s powers under Code of
Civil Procedure sections 128, subdivision (a)(8) and 1008, Fox asked the court
to modify the June 1 order to make the $1,000 fee payable to Fox instead of to
his attorney. He claimed his attorney
had failed to enforce the order against Knopp, and Fox had already paid the
attorney $2,000. Fox also asked the
court to increase the award to $2,000, to correct legal error. Fox asserted the court awarded only $1,000 based
on a local rule requiring that an attorney declaration accompany requests for
fees in excess of $1,000. Fox contended
this rule conflicted with Family Code section 6345, subdivision (a).
The motion to modify wa
| Description | In these appeals, attorney Michael Fox challenges four trial court orders from two related but unconsolidated cases: (1) a restraining order against Fox, issued to his former girlfriend, Karen Knopp (Appeal 1); (2) an order terminating Fox’s restraining order against Knopp (Appeal 2); (3) an order denying Fox’s requests for restitution under Family Code section 6342, subdivision (a) (Appeal 3); and (4) an order granting Knopp’s motion for attorney fees (Appeal 4). On our own motion we have consolidated the four appeals for argument and opinion. We affirm the trial court’s orders. |
| Rating |
