Filed 11/30/18 Gupta v. Kumar CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Sandeep Gupta has filed consolidated appeals from two orders entered in domestic violence restraining order (DVRO) proceedings against his then-wife, Nandini Kumar. The first is an order entered after a lengthy evidentiary hearing declining to enter a permanent DVRO against Kumar. The other, entered after a second evidentiary hearing, awards attorney fees and costs to Kumar. Based on detailed credibility determinations, the court held that Gupta had not borne his burden of proving that Kumar engaged in “abuse” as defined by the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.). The court then awarded Kumar roughly half of her claimed fees and costs, $425,000.

Gupta argues that the court erred in failing to find abuse based on emails from Kumar that he construes as threats to take their son Ayaan to Australia; in excluding from evidence videos he secretly took of her smashing household items; in finding that he had altered a document; and in restricting recross-examination. We find no merit in most of these contentions and conclude that any error in restricting recross-examination was harmless. While the amount of fees awarded undoubtedly is substantial, under the circumstances the trial court did not abuse its discretion in awarding an amount that the

record indicates Gupta has the ability to pay. We shall thus affirm both orders.[1]

Factual and Procedural Background

Gupta and Kumar met online in 2009, while she lived in her native Australia. As of December 2014, they lived with Ayaan in Fremont, near where Gupta’s sister Poonam lived with his parents. Kumar’s father Nand was visiting her from Australia.

On December 7, a dispute was simmering between Gupta’s parents and sister, on one hand, and Kumar, on the other, over Kumar’s plan to attend the wedding later that month of Gupta’s estranged cousin Sid. It is undisputed that as Gupta drove Kumar, Nand, and Ayaan home from an outing, Gupta’s sister Poonam called Kumar to remonstrate with her about attendance at the wedding. Gupta pulled over, and Kumar changed Ayaan’s diaper. When they got home, someone used Gupta’s email account to send Poonam a harshly critical email. Gupta alleges that he pulled over because Kumar, enraged by Poonam’s call, was hitting him; that after changing Ayaan, she threw the diaper in Gupta’s face; and that she wrote the email to Poonam and made Gupta promise not to tell his family that she had done so. Kumar denies these allegations.

The parties’ accounts of events after December 7 differ sharply, but it is clear that the dispute escalated into a crisis that led to Gupta leaving home and, on December 16, filing a DVRO application alleging that Kumar had abused him and threatened his family.

The narrative section of Gupta’s application began with his allegations about the events of December 7. It then alleged that on December 8 he visited his parents to apologize for the email and explain that Kumar had written it. He called Kumar from work that day, and she accused him of having told his parents the truth. The application then gives his version of the events of that afternoon. “I went home after work and then she returned home. She asked her father to leave with her and they sped off. She then returned and demanded our son. I said no and she called 911. Before 911 connected, she hung up. They called her back and I said that it was a mistake.”

That night, Gupta alleged, Kumar and Nand threatened to take Ayaan “unless I scream and shout at my [parents] on the phone and tell them that I would be resigning from my job and moving to Australia the next day.” When Gupta resisted, Kumar “attacked me, scratching my face, neck, and arms,” leaving him bleeding.‌ Nand grabbed his own genitals and said that he “ha[d] no balls” because he could not stand up to his family. Then “[t]empers calmed and we went to bed.”

On December 9, the application alleges, Kumar demanded that Gupta sign Ayaan’s passport forms. When he refused, she accused his parents of “putting [him] up to” the refusal and “threatened to kill my family if I did not sign the forms.” The next day, Gupta tried to talk to her “about her desire to move” but she “hit her father and then began to smash decorative items in the house.” On December 11, when Gupta went to the house to get personal items, Kumar told him “to never come back without a court order unless [he] agreed to sign the forms for Ayaan’s passport.”

Gupta filed the DVRO application on December 16, and the court issued a temporary DVRO requiring Kumar to vacate the house and barring her from taking Ayaan out of the county.

Kumar’s response to the application‌ denied all of Gupta’s material allegations. On December 8, Kumar declared, Gupta stopped at his parents’ house before work to explain the email, then called her from work to say that his mother and sister had hit him because of it. When he got home that afternoon, she saw marks on his face. Blaming his injuries on her, Gupta insisted that she agree to skip the wedding. When she refused, he took Ayaan and headed to his car, saying, “You will never see him again.” She fell to her knees to plead with him, he kicked her, and she called 911. He became scared, gave her Ayaan, grabbed the phone, and hung up. Kumar denied having threatened to kill Gupta’s family unless he signed a passport application and alleged that it was Gupta who had applied for the passport, so they could take Ayaan to Australia in January for a wedding in Kumar’s family.

The evidentiary hearing on the request for a permanent DVRO took the equivalent of 10 and a half full court days over 23 days from April to July 2015. In November 2015, the court issued an 11-page order declining to make the DVRO permanent. The court found Gupta “not . . . reliable or credible” based on his admissions that he had lied several times for expediency, and on a finding that he had falsified a document produced to Kumar’s counsel. When Gupta testified, he “slipped into hyperbole, made exaggerated and conclusionary assertions, and was evasive and argumentative”; when others testified, he tried to communicate non­verbally with the court. While Kumar’s testimony also seemed “staged” at times, the court found that when the parties’ accounts conflicted and there was no neutral witness, her testimony was more credible. The court held that the allegations in the application were “untrue or unproven,” and that “what the court finds occurred on [December 7–10] does not constitute abuse as . . . defined in the [DVPA].”

The court then made detailed findings as to many disputed events of December 7–9. On December 7, it found, Kumar did not hit Gupta, hurl a diaper at him, or write the disputed email. Based on several factors, including the testimony of Kumar’s sister Vandana that Gupta admitted having done so, the court found it more likely than not that Gupta wrote the disputed email. The court also noted Gupta’s admission at the hearing that he at least read the email before it was sent. As for the scratches, the court found it more likely than not that Gupta had visited his sister and mother on his way home from work on December 8 to assuage their anger over the email, and one of them had scratched him. The court based this finding mainly on Vandana’s testimony that Gupta told her that that is what happened.[2]

As for Kumar’s alleged threats to take Ayaan to Australia, the court’s only express finding is that the parties had a plan to visit Australia in January 2015 and knew that they had to get Ayaan a passport. The court found “untrue or unproven” the allegations that Kumar threatened to kill Gupta’s family if he did not sign passport forms, and that she had $100,000 set aside “in order to relocate.” The court deemed it “possible, if not probable,” that Kumar told Gupta on December 11 not to return to the house without a court order.

Following the court’s ruling denying a permanent DVRO, Kumar filed a request for attorney fees pursuant to Family Code section 6344.She sought roughly $400,000 in fees and costs, which increased to approximately $437,000 by the time of the hearing on the fee motion), plus the fees and costs she would incur to litigate the fee request. The motion triggered several related motions and an evidentiary hearing held on three scattered days. Kumar claimed approximately $363,000 in fees and costs for the fee motion, increasing her total request to slightly more than $800,000.

The court issued an order finding each side’s fees “greater than they would have been had both sides focused on the issue before the court,” and had witnesses “responded directly with truthful answers.” After giving examples of how that criticism applied to each party, the court held that, because Gupta’s “untruthful” DVRO application had necessitated the hearing, and Kumar had prevailed, it was appropriate to award her “some fees.” Reiterating that “both sides gave way too much attention to litigating tangential and irrelevant issues,” the court awarded Kumar $425,000 in fees and costs, without specifying how that amount was calculated, and provided that Gupta “may direct payment of the fees from his share of funds in his attorney’s trust account.”

Discussion

I. DVRO Appeal

Upon proof of “a past act or acts of abuse,” the DVPA authorizes a court to issue a DVRO. (Fam. Code,[3] § 6300.) Under the DVPA, to “abuse” means to cause, try to cause, or put a person in fear of injury (§ 6203, subd. (a)(1) & (3)), or to “engage in any behavior that . . . could be enjoined pursuant to Section 6320” (§ 6203, subd. (a)(4)). Section 6320, in turn, authorizes a court to enjoin many forms of violence or harassment, including “destroying personal property” and “disturbing the peace of the other party.” (§ 6320, subd. (a).) “[A]buse” under section 6320 can include non­violent conduct that destroys a person’s mental or emotional calm. (Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 820, 821-822.) Upon finding an act of abuse, a court “shall consider the totality of the circumstances in determining whether to grant or deny a petition for relief.” (§ 6301, subd. (c).)

Kumar requested a statement of decision, but the court explained that the DVPA only requires a court denying a DVRO petition to “provide a brief statement of the reasons for the decision . . . .” (§ 6340, subd. (b).) A “statement of reasons” under the Family Code is distinct in form and purpose from the more elaborate “statement of decision” that Code of Civil Procedure section 632 requires in some cases. (In re Marriage of Buser (1987) 190 Cal.App.3d 639, 642-643.) While the DVPA does not specify what a “brief statement of the reasons” must include, it does note that “[a] decision stating ‘denied’ is insufficient.” (§ 6340, subd. (b).)

We review rulings granting or denying DVROs for abuse of discretion. (Quintana v. Guijosa (2003) 107 Cal.App.4th 1077, 1079). We review factual findings supporting discretionary rulings for substantial evidence. (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822.) In this proceeding Gupta bore the burden of proof, so the question on appeal as to disputed factual issues is “whether the evidence compels a finding in favor of [Gupta] as a matter of law.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)

A. Threat to Abduct Ayaan

Gupta argues that the statement of reasons does not take into account three emails that Kumar undisputedly sent conveying, in his view, a threat to abduct Ayaan to Australia, and thus as a matter of law constituting abuse under the “disturbing the peace of the other party” prong of the DVPA.[4] The evidence compels no such finding.

Kumar sent two emails to aunts of Gupta, copying Gupta.[5] The first email was to the aunt whose son’s wedding had given rise to the dispute. Kumar said that Gupta’s family had told her not to attend and “said horrible things about you.” She then said, “my father and I including Ayaan have decided to leave this family,” that, “[s]ince being married to this family—I have heard nothing but hate from them,” and “my relationship with this family is finally done.”

Kumar sent the third email to Gupta alone, on December 9. It detailed her dissatisfaction with their marriage and then said, “I am finally tired of this. I have told you and will keep telling you—I am not parting with my son. I am not in love with you.” The email ended, “You asked me what my next move was—rest assured whatever I do—my son is mine!” Gupta adds that Kumar “validated” the threats by moving nearly $60,000 from a joint account to her personal account on December 8, and by phoning the passport office after sending the December 9 email.

These letters do not, as Gupta argues, compel a finding that Kumar had a plan to take Ayaan to Australia. Moreover, even if Kumar had formed such a plan, the December 2014 temporary DVRO barred her from taking Ayaan out of the county. After Gupta served the temporary DVRO, Kumar initiated dissolution proceedings. Such a filing automatically triggers a protective order barring either parent from taking children of the marriage out of the state, or applying for a passport for them, without the other parent’s written consent or a court order. (§§ 231, 233, 2040, subd. (a)(1); Hogboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2018) ¶¶ 5:51–5:54.) It was thus unnecessary, in this proceeding, to convert the temporary DVRO into a permanent DVRO in order to bar Kumar from leaving the country with their child.

Nor must the emails, as a matter of law, be read as threats. It is undisputed that Kumar and Gupta had planned to take Ayaan to Australia in January. The December 8 email can thus be read to state Kumar’s intent to file for divorce and to refer to the planned Australia trip. It is unlikely that, if Kumar had a plan to abduct Ayaan, she would have revealed it to Gupta weeks in advance. The “my son is mine” comment does not imply a threat to enforce her claim by abduction. And the transfer of funds and passport office call do not evidence a threat to abduct Ayaan, as Gupta does not allege that Kumar told him of those acts.

B. Exclusion of Video Evidence Under Section 352

Much of the hearing concerned a dispute over the admissibility of videos Gupta had surreptitiously taken. The dispute arose after Gupta testified that he tried to talk to Kumar before leaving for work on December 10, but she grew distraught, smashed things, and slapped her father. Kumar and her father denied this had occurred, and insisted that she had been asleep when Gupta left. In rebuttal, Gupta revealed that he had secretly taken videos that morning on his phone. He offered the videos into evidence, along with proposed expert testimony to authenticate them.

Kumar objected to the videos, citing the exclusionary rule of Penal Code section 632, Gupta’s belated disclosure of the evidence, and Evidence Code section 352. The parties briefed those issues, and Kumar deposed Gupta’s proposed expert, Ben Rose. Kumar asked the court to order Gupta to provide his phone for testing, which he opposed. Without ruling on Kumar’s request, the court excluded the videos on all three grounds that she had asserted. With respect to Evidence Code section 352, the court expressed “doubt[s] that the video[s] existed in December 2014” and held that determining when and how they had been created would require undue consumption of time.

The court properly exercised its discretion to exclude the proffered videos under Section 352 (making it unnecessary to review the other bases for its ruling). Gupta argues that “[t]here was no need for any kind of profound forensic analysis or endless calling of experts” because the videos “had already been authenticated by an expert and a stipulated transcript.” While the parties did stipulate to a translated transcript of the videos’ English and Hindi dialog, Rose’s testimony authenticating the video files was not uncontradicted. Kumar and her father testified that they believed that Gupta had manipulated the videos to combine bits of several conversations and incidents, and there was some evidence confirming that suspicion.[6] The court was thus justified in concluding that if the videos were admitted, fairness would require it to allow Kumar to challenge their authenticity by having her own expert examine the files—and likely Gupta’s phone—to determine if the videos had been manipulated, and that significant time would be required to prepare and present conflicting expert testimony.

The court did not abuse its discretion in concluding that this consumption of time outweighed the probative value of the videos. After hearing days of testimony from numerous witnesses, the court was certainly entitled to conclude that, even if the videos would have proven that Kumar had become distraught, broken items, and slapped her father, those facts would not alter the court’s findings that the other forms of abuse alleged by Gupta had not occurred, and would not have led the court to conclude that the circumstances as a whole warranted a permanent DVRO. Even assuming that the smashing of household items constituted an act of abuse under Family Code Section 6320, subdivision (a), the court was not required to grant a DVRO. (See § § 6301, subd. (c) [requiring court, upon finding abuse, to consider totality of circumstances in determining whether to issue DVRO].)

C. Finding that Gupta Modified Kaiser Employee Assistance Program Form

The court partly based its credibility determination on a finding that Gupta had “modified a Kaiser form in his efforts to improve his [ability] to obtain a [DVRO].” Contrary to Gupta’s view, substantial evidence supported that finding.

Because of a discrepancy between two copies of the same document related to Gupta’s consultation with Jim Herold, a counselor at Kaiser’s Employee Assistance Program, the court ordered that a custodian of records appear with the originals. When Herold appeared with his files, it became clear that a copy of the Initial Assessment Form for his December 9 consultation with Gupta that Gupta had produced, and that had been introduced in evidence, differed from the original. Additional entries, one reflecting serious “intimate partner violence,” had been added to the copy produced by Gupta. Although Herold thought that the additional entries appeared to be in his handwriting, he did not recall having made the entries and could not explain why, if he had made them, the notations would not also appear on his original. The court therefore was justified in drawing the inference that Gupta had most likely made the additions.

D. Limitation of Recross

On recross-examination, Gupta’s counsel tried to question Kumar about the timing of phone calls Gupta made to her on December 8, in order to undermine her version of the events that led to the 911 call that afternoon.[7] The court sustained an objection to questions about calls from Gupta’s cellphone as beyond the scope of redirect. Although the court’s explanation may have been faulty, as Kumar had testified on redirect about the timing of calls shown on Gupta’s cellular bill, any error was harmless. Kumar herself introduced the cellular bill on direct and discussed it in regard to the timing of her activities on December 8. Gupta’s counsel had then used the same exhibit to cross-examine Kumar at length about the same timing issues. Although Kumar revisited the topic briefly on redirect, Gupta does not identify any new facts to which she testified for the first time on redirect, or new facts that the court’s ruling prevented him from exploring on recross. The court’s ruling caused no prejudice.

E. Miscellaneous Challenges to Factual Findings

Gupta’s brief concludes by contending that the court’s findings adopted various “errors” in Kumar’s filings despite uncontroverted evidence disproving her allegations. Gupta repeatedly argues that, because Kumar or Nand modified an account in their declaration or initial testimony based on later evidence, the court erred in making findings consistent with the revised testimony. He does not show, however, that uncontradicted evidence compels contrary findings. (In re I.W., supra, 180 Cal.App.4th at p. 1528.) We may not disregard the trial court’s findings simply because there is a basis to question a witness’s credibility. Gupta’s invitation to reweigh the evidence as to whether he or Kumar wrote the December 7 email is equally unavailing. And other claimed discrepancies—e.g., whether his 911 call on December 11 was “lengthy” or brief—are immaterial. Finally, although Gupta suggests in passing that these “erroneous findings” could “evidence bias,” he makes no showing or coherent argument to establish judicial bias or prejudice.

II. Attorney Fees Appeal

In DVRO proceedings, the court may award attorney fees and costs to the prevailing party (§ 6344, subd. (a)), subject to the proviso that “[i]f a court orders a party to pay attorney’s fees or costs . . . , the court shall first determine that the party has or is reasonably likely to have the ability to pay” (§ 270). Gupta does not argue that the trial court abused its discretion by awarding some fees to Kumar as the prevailing party, nor does he dispute the reasonableness of her counsel’s claimed hourly rates or the recoverability of her cost items. He does contend that counsel’s claimed hours are so inflated that the amount of the award shocks the conscience; that the court’s order did not adequately explain why it found that amount reasonable;[8] and that the award is reversible per se because the court did not expressly find that Gupta is able to pay it.

An award of fees and costs to a party who prevails in a DVRO proceeding is subject to well-settled general principles governing review of fee awards: “We apply an abuse of discretion standard in reviewing the amount of an attorney fee award. [Citation.] ‘[A]n experienced trial judge is in a much better position than an appellate court to assess the value of the legal services rendered in his or her court, and the amount of a fee awarded by such a judge will therefore not be set aside on appeal absent a showing that it is manifestly excessive in the circumstances.’ [Citation.] ‘The only proper basis of reversal of the amount of an attorney fees award is if the amount awarded is so large or small that it shocks the conscience and suggests that passion and prejudice influenced the determination.’ ” (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1509.)

Although the $425,000 award undoubtedly is far larger than should be anticipated in most DVRO proceedings, under the circumstances of this case we cannot find that it is so large as to shock the conscience. In addition to the aggressiveness with which Gupta pursued his claim, the requested permanent DVRO would have created a presumption against Kumar obtaining joint custody of Ayaan. (§ 3044, subd. (a)). Knowing that custody of her child was at stake, Kumar certainly could be expected to mount a vigorous defense. Gupta refers to his case-in-chief having taken two court days, and the proceeding as a whole having taken 23 full or partial days, as if Kumar’s case had occupied the rest of the time. In fact, after the two full days of Gupta’s case-in-chief, many later sessions were partial days, and those included five spent on his rebuttal. In all, according to the court’s log, presentation of Gupta’s case took 25 of the 63 and a half total court hours, while presentation of Kumar’s case took 38 and a half hours.

The fee order repeatedly noted that each party had consumed excessive time “in providing what a party thought was context or coloration of . . . tangential and sometimes wholly irrelevant issue[s], or to [raise] or defend against an issue that was simply not before the court,” or to “present[] deep background to make explanations seem more plausible and consistent with the image [the party] wanted the court to have of [them].” The court largely attributed the hearing’s length to the failure of both counsel to object on relevance or cumulation grounds to testimony that was irrelevant, tangential, or repetitive: “The court did not and would not interpose relevancy objections on its own in a proceeding involving two experienced litigators; the court ruled on objections that were made, but, except for occasionally observing that there was a single issue before the court as an attempt to alert counsel that the court found they were well into irrelevant territory, the court does not make its own objections.” Although we do not approve of the court’s statement insofar as it disregards the court’s independent duty to ensure that any matter before it does not consume excessive time, we do agree that Gupta’s failure to object[9] and his own involvement in prolonging the proceedings undercuts his ability to complain about the number of hours opposing counsel devoted to the proceedings.

The trial court exercised its discretion to account for Kumar’s role in prolonging the hearing by reducing her documented fees and costs by 47 percent. Gupta contends that the award must be reversed because the order does not specify how the court calculated the amount awarded. Though such an explanation would have been preferable, the court did not, as Gupta contends, simply award Kumar all or nearly all the fees she sought, but engaged in a reasoned analysis. It found “that this case was not complex”; contrasted its duration with that of a typical DVRO proceeding; found that, despite counsel’s competence, “both sides gave way too much attention to litigating tangential and irrelevant issues”; detailed the amounts Kumar sought; explained why the court found unnecessary the costs she had incurred for expert testimony on the reasonableness of her fees; and explained why it did not “interpose relevancy objections on its own.” The court then awarded $425,000 of the $800,146.44 sought by Kumar. We presume that the court fulfilled its duty to analyze counsel’s billing records and calculate a proper award. (Christian Research Inst. v. Alnor (2008) 165 Cal.App.4th 1315, 1324.) The explanation of its reasoning was sufficient. (Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 816; Loeffler v. Medina, supra, 174 Cal.App.4th at p. 1509, fn. 15.)

Finally, Gupta contends that the award is reversible per se because the court did not make an express finding of his ability to pay pursuant to section 270. That section, however, does not require an express finding. Rather, it states that “[i]f a court orders a party to pay attorney’s fees or costs under this code, the court shall first determine that the party has or is reasonably likely to have the ability to pay.” (§ 270.) The Legislature knows how to require “findings” if it so intends. (See § 2030, subd. (a)(2) [“When a request for attorney’s fees and costs is made, the court shall make findings on whether an award of attorney’s fees and costs under this section is appropriate.”]; § 2032, subd. (d).) We have been directed to no authority suggesting that the Legislature has required an explicit finding under section 270.

The parties thoroughly litigated the ability-to-pay issue, and the court’s order makes clear that it was aware of that issue. Before the fees hearing, Gupta filed income-and-expense declarations and both parties addressed the issue in their trial briefs. At the hearing, Gupta testified and was cross-examined at length about his finances, and both counsel addressed the issue in their closing arguments. The court’s fee order, in giving an example of Gupta’s evasive, dishonest testimony, observes that “[t]his testimony . . . was elicited on direct examination as part of [Gupta]’s case that he does not have the ability to pay attorney’s fees.” (Italics added.)

The fee order itself provides that Gupta “may direct payment of the fees from his share of funds in his attorney’s trust account.” The parties had discussed the funds in Gupta’s attorney’s trust account at length and treated them as a potential source of ability to pay. In her closing, Kumar’s counsel had emphasized Gupta’s testimony that $490,000 in proceeds from the sale of the parties’ house was in a blocked account with his counsel, arguing that he could use almost $400,000 of that amount to pay a fee award; Gupta’s counsel addressed that argument in response. By providing that Gupta could use funds from that account to pay the fees, the court showed its awareness of the need to limit its award to one that Gupta had the ability to pay.

Substantial evidence supports the implied finding that he does have that ability. Gupta testified that he earned $21,634 for the month preceding the hearing, or roughly $260,000 per year. He claimed total monthly expenses of roughly $14,000 and child/spousal support payments of $6,429 (which increases when overtime pay raises his monthly income above $21,330). He testified that the sale of the parties’ home had yielded net proceeds of $1.6 million; that $500,000 of that amount went to his attorneys pursuant to a lien, of which roughly $300,000 remained, and another $500,000 was held in trust, subject to an alleged $250,000 debt to his father (contradicted by the gift letters they signed at the closing), an alleged $25,000 debt to his sister, and capital gains taxes.[10] His testimony and his income-and-expense declaration constitute substantial evidence that he is able to pay the $425,000 fee award.

Disposition

The orders are affirmed. Kumar shall recover her costs incurred on these appeals.

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Pollak, J.*

We concur:

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Siggins, P.J.

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Jenkins, J.