Filed 8/18/22 Marriage of Chen CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Teresa S. Bennett, Judge. Affirmed.

Demidchik Law Firm and D. Garth Sullivan for Appellant.

Law Office of James J. Kenny, James J. Kenny, and Kelly A. Price for Respondent.

After a four-day evidentiary hearing, the trial judge found Jinxin Chen had committed past acts of abuse within the meaning of the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq. (DVPA)) and issued a domestic violence restraining order requiring him to stay away from his wife, Juan Chen, for three years.^[1] On appeal, Jinxin argues the judge applied the wrong burden of proof. We disagree and affirm.

I

FACTS

Jinxin and Juan have been married since October 2014, and they have a son together, who was born in 2016. In April 2021, Juan filed a request for a domestic violence restraining order against her husband. In her supporting declaration, Juan said Jinxin had attacked her on multiple occasions, blocked her movements by taking her car, and would monitor and control her whereabouts.

Juan and Jinxin testified at the hearing. Juan said she was afraid of her husband. She said when he got angry with her he would throw things or force her into the closet. Once, he’d thrown a highchair in her direction, and had thrown other objects not at her but in anger, like the time he threw a wooden object at the wall and made a hole in it.

She recounted an incident that had occurred in 2017, when she and Jinxin had gotten into an argument over their son’s car seat on the way to dinner. As they argued, Jinxin drove to a remote location and refused to take her home or let her go to the bathroom until they had resolved the issue to his satisfaction.

She recounted another incident, this one in July 2018, when they argued over the purchase of a new car. Jinxin wanted to buy a Range Rover, but his credit was poor so he wanted to use Juan’s personal information, but she was uncomfortable with that arrangement. Jinxin forced her into the closet and pushed her against a wooden shelf, causing it to break and fall on top of her. He made her stay in the closet for over two hours. Juan produced a photograph of her arm taken after the incident showing multiple bruises.

During his examination, Jinxin denied throwing things in anger or forcing Juan into the closet. When asked about the Range Rover incident, he said, “I don’t know if I pushed her or if she just contacted the shelf.”

During oral argument, Juan’s counsel argued her client satisfied her burden of proof, which was not preponderance of the evidence, but rather “reasonable proof.” Counsel said, “[m]ost of us who practice domestic violence would say that the burden of proof in a [domestic violence restraining order] case is set forth in Family Code 6300(a), which says . . . the burden of proof is reasonable proof of past acts of abuse . . . Oftentimes judges, lawyers, people who are involved in it will say that the standard of proof is by a preponderance, but the Code does not use the words ‘by a preponderance.’” (Italics added.)

Jinxin’s counsel did not address the burden of proof in his closing argument. Instead, he argued Juan’s testimony did not support the issuance of a restraining order because the incidents she recounted were “ancient history” and Jinxin had “apologized to her afterwards and never, ever touched her again physically.”

At the outset of her ruling, San Bernardino Superior Court Judge Teresa Bennett agreed with Juan’s counsel on the burden of proof, explaining, “So as you said, the . . . burden of proof [is] not preponderance of the evidence, but whether there . . . has been evidence of reasonable proof of past acts of abuse.” She then concluded Juan had carried her burden by producing testimonial evidence of at least two past acts of abuse—the 2017 car seat incident and the 2018 Range Rover incident. As to the 2017 incident, the judge observed, “whatever that issue might have been between them, [] Ms. Chen had no way of leaving that situation because she was in the middle of nowhere . . . with no means to leave except on foot which might require her leaving the child, which might require her walking in the dark somewhere.”

Regarding the 2018 incident, the judge found that when Juan objected to Jinxin’s use of her personal information to purchase the vehicle, Jinxin “was quite upset, came home, forced her into the closet, [and] pushed her.” The judge found it telling Jinxin “did not deny the incident had happened.” Finally, she noted that even though it was “the only physical violence that was testified to,” the 2018 incident was “sufficient” on its own to warrant the restraining order.

II

ANALYSIS

Jinxin argues that by deciding whether Juan had produced “reasonable proof” of abuse the judge applied a “lower burden of proof than preponderance of the evidence.” We disagree.

Whether the judge applied the correct burden of proof is a question of law, requiring de novo review. (Eneaji v. Ubboe (2014) 229 Cal.App.4th 1457, 1463.)

To prevent a recurrence of domestic violence, the DVPA authorizes trial judges to issue restraining orders to stop certain conduct and limit contact between the parties. (§§ 6320-6322.) A judge may issue such an order so long as “an affidavit or testimony and any additional information provided to the court . . . shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” (§ 6300, subd. (a).) Abuse within the meaning of the DVPA includes intentionally or recklessly causing or attempting to cause bodily injury to the person; placing the person in reasonable apprehension of imminent serious bodily injury; disturbing the person’s peace (by destroying their mental or emotional calm); and molesting, stalking, or harassing the person. (Fam. Code, §§ 6203, 6320; Pen. Code, § 653m.)

Jinxin is correct that the burden of proof for a restraining order under the DVPA is “preponderance of the evidence.” (In re Marriage of F.M. & M.M. (2021) 65 Cal.App.5th 106, 116; Curcio v. Pels (2020) 47 Cal.App.5th 1, 14; In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220, 226.) He is incorrect, however, that the phrase “reasonable proof of a past act or acts of abuse” in section 6300 refers to a burden of proof, let alone one that is lower than preponderance of the evidence.

A burden of proof is “the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.” (Evid. Code, § 115.) The preponderance standard is a burden of proof. It requires the fact finder to determine whether the existence of a fact is more likely than not. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) “Reasonable proof,” in contrast, is not a burden of proof, it is the evidence that demonstrates a disputed fact is “likely.” (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 334.) As used in section 6300, the term refers to the type of proof that is sufficient to carry the petitioner’s burden under the DVPA—such as, affidavits, testimony, and any other evidence that demonstrates the past act or acts of abuse likely occurred.

The judge was technically inaccurate when she concluded the burden of proof was “reasonable proof.” But, as a practical matter, the mistake didn’t prevent her from applying the correct burden of proof. This is because, by finding Juan had produced “reasonable proof” of past abuse, the judge determined that Juan’s evidence showed it was likely that Jinxin had committed a past act of abuse.. Presenting reasonable proof is how a party carries their burden of proving abuse by a preponderance of the evidence.

Tellingly, Jinxin does not attempt to define “reasonable proof,” nor does he explain what a lower standard than preponderance of the evidence would even entail. As a matter of logic, any burden of proof lower than the preponderance standard would require something less than likelihood, and it is clear to us having reviewed the judge’s ruling that her decision was not based on guesswork or speculation. Rather, her ruling demonstrates she found Juan to be a credible witness.

But even if we assume for the sake of argument that the judge applied a burden of proof lower than “more likely than not,” the error would be harmless. This is because the record contains undisputed testimonial and photographic evidence that Jinxin had physically abused Juan in 2018 by pushing her into a shelf and injuring her arm, and as a result, Jinxin would not be able to demonstrate that a different outcome was reasonably probable had the judge applied the preponderance standard. (People v. Watson (1956) 46 Cal.2d 818, 826.)

III

DISPOSITION

We affirm. Jinxin shall bear costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

J.

We concur:

RAMIREZ

P. J.

McKINSTER

J.

[1] Unlabeled statutory citations refer to the Family Code.