White v. White





Filed 9/30/11 White v. White CA1/3





NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

STEPHEN P. WHITE, Defendant and Appellant, v. KAREN WHITE, Plaintiff and Respondent.

A130367 (Alameda County Super. Ct. No. RF10535159)

Stephen P. White (Stephen),[1] in pro per, appeals from a restraining order issued against him protecting his sister-in-law, Karen White (Karen), in pro per, her husband (Stephen’s brother) John White (John), and Karen’s adult son and four-year-old grandson. Stephen contends the trial court: (1) erred in denying him the opportunity to cross-examine John and Karen; (2) erred in denying his request for a continuance; (3) “illogical[ly]” excluded evidence, (4) improperly admitted Karen’s prior consistent statement; (5) exceeded its jurisdiction by issuing a move-out order against him without evidence that Karen and her family were living in the house, (6) exceeded its jurisdiction by including Karen’s son as a protected party without a showing of good cause; (7) exceeded its jurisdiction by calling two related restraining order cases together; and (8) should not have granted the request for a restraining order because there was no substantial evidence to support it. We reject the contentions and affirm.
Factual and Procedural Background
On September 7, 2010, Karen filed a request for a restraining order against Stephen seeking protection for herself, John and her adult son and grandson. She declared that at about 11:30 a.m. on September 2, 2010, Stephen came to her house and began “throwing stuf[f] from a bedroom to the dining room, declaring he [wa]s moving in” and “going to make [Karen and John’s] life a living hell.” As Stephen and John were discussing the situation, Stephen stopped, started yelling at Karen, and got “into [her] face,” called her names, and said he was going to make her so miserable that she would want to leave. Stephen then pushed Karen’s left arm and continued to do so after John told Stephen to stop. Stephen then pushed Karen “shoulder to shoulder” and gave her “a scary look.” Karen called 911, the police arrived and took statements, and Stephen left.
Karen further declared that on September 3, 2010, after midnight, John called her as he was returning from the store and told her to “get ready to unbar the door fast” so that he could run inside the house because Stephen was outside. She quickly opened the door for him, then locked the door. Stephen drove by and parked in several locations, then “peeled out” and parked in front of Karen and John’s truck. Karen called 911 to report that Stephen was “stalking” her and John. Stephen “continued circling the block until the police [arrived and] caught him.” The police instructed Karen to seek a protective order against Stephen. Karen attached the police report to her request for a restraining order.
The trial court issued a temporary restraining order and scheduled a hearing for September 24, 2010. On September 14, 2010, Stephen filed a motion for a continuance and for discovery orders. On September 17, 2010, he filed a document entitled “Motion for Discovery Orders” in which he expressed concern that a restraining order could be used to “greatly reduce[]” his rights to a house he co-owned with John. He asserted Karen filed the request for a restraining order in order “to get my share of the property without paying me fair value for it.” He requested discovery of various documents from the Oakland Police Department, including a note he left on John’s car the night he was arrested and “ALL evidence, any documents, any recordings of any type, which bear on this case at all.” He further stated, “In addition to the evidence in the possession of OPD, there is a lot of discovery that is needed from my brother John White, and to a much lesser extent, his wife.” He asserted that John is “mentally ill and potentially dangerous,” and keeps guns to protect himself from a gangster he tried to murder. The trial court issued an “Order Denying Ex Parte Motion for Discovery Orders” on September 17, 2010.
On September 22, 2010, Stephen filed a 71-page Answer that consisted of a two-page judicial council form, 17 single-spaced pages of “more information” as to why he opposed the granting of a restraining order against him, 11 single-spaced pages entitled “Supplement to Response to Restraining Order Application by John White and Karen White against Stephen White,” and 41 pages of exhibits, primarily of e-mail messages between him and John regarding their house, some of which showed there was a disagreement between them as to whether Karen and her son and grandson had the right to live in the house.[2] In the document entitled “more information” and in the supplemental response, he provided, among other things, a history of his relationship with John and Karen and of the disputes they had regarding their house. He asserted he had not threatened or harassed John and Karen and had not been violent towards them. He stated he was afraid of John because of John’s “mental illness” and because John had “tried to kill another person” in the past and had not been prosecuted for the crime. He explained he was going to be “disadvantaged” by the court’s denial of his discovery request because “there are mountains of evidence undercutting [John’s] credibility,” and he “feel[s] very confident” that if given the time, he could “prove to any reasonable person that [John and Karen] are lying to get the house to themselves.” He stated his “intention to gather all possible evidence and have it ready for a long hearing some time in October, after the autism conferences [for his son] in [Los Angeles] the first two weekends of October.”
Stephen further stated that he went to the house on the day of the first incident to pick up a house key. When he realized that John and Karen were trying to “force [him] out” of the house, he “expressed [his] intention to occupy the front bedroom.” Karen “exploded,” called him a “molest[e]r,” and “turned around to leave the room, but immediately after turning jumped and said, ‘He touched me, He touched me,’ ”became “hysterical,” and called 911. Stephen returned to the house late at night because he wanted to talk to John outside, in order to “avoid the hysterics of Karen.” When John returned from the store and ran inside without talking to him, Stephen left a note on John’s car asking him to contact him about the house key and other issues.
At the hearing on Karen’s request for a restraining order, the trial court stated, “Why don’t we call both White matters at the same time, because as I reviewed the papers, it appeared the answers were the same, and the allegations were basically the same for both petitioners.”[3] The attorney for Karen and John stated, “Yes, your Honor.” Stephen informed the court that he had tapes of the 911 calls that Karen had made, which he believed “discredit[] Karen, because she makes these weird allegations.” He asserted the tapes “call[] Karen’s credibility seriously, seriously into question, because she says she’s scared I’ll rape her . . . .” The court asked Karen whether she made that statement, and Karen responded she did not think she did. Karen and John’s attorney objected to the court’s listening to the tapes. The court stated, “I’m inclined to play them and see if there’s anything that impeaches [Karen] or by the tone of her voice or demeanor that calls into question their allegations, I mean the 911 calls are critical. I can always hear testimony here, but it may go to [Stephen’s] defense that no one was really scared, or that it doesn’t sound quite right.”
While waiting for the tapes to be played, the court asked Karen to describe what occurred on September 2, 2010, which Karen did. The court then asked, “When he pushed you, like how‌”, and Karen responded that he “jabbed” her in the arm. She further testified, “[John] told him to stop it at least twice, and finally, he did, but he was still yelling at me, getting in my face. That’s not the first time he’s gotten in my face. And then he passed me,” “walked by me in the hall kind of like nudged me real hard and gave me a really scary look . . . and it scared me, and that’s when I called the police.” The court asked John, “Did you witness the pushing‌” John testified that he did. He further testified that he and Karen had moved away for a year and were in the process of “reestablishing occupancy” in the house he co-owned with Stephen, when Stephen “came [over] and claimed maybe she didn’t have any right to be there.”
The court asked Stephen if he wished to say anything about the incident. Stephen responded, “Now, as to what else happened, no. I mocked her. She was giving me this (gesturing) thing, and . . . was just, like, sort of ranting at me. . . . And I said she –it wasn’t very mature, but this had been going on for a year, and I feel frustrated with her, because I feel like she’s the one that could get [John] to take the mental health treatment, but she wouldn’t do it.” He testified that Karen turned to go into the dining room, then “jumped up and said, ‘He touched me, he touched me.’ ” He testified that he later returned to the house because he was hoping to talk to John, and that he circled around the block “one time.”
After listening to the tapes, the court stated, “The record should reflect we listened to two 911 calls. When I listened to them, I do think [Karen] sounds in fear.” The court noted the parties’ “up and down relationship” as well as Stephen’s criminal history, and stated it could “see why [John and Karen] would be scared.” The court noted that the way Karen described the push was “very similar” in the tapes as in her request for a restraining order and her testimony. The court noted it was concerned that Karen would mention “rape” when there was nothing indicating Stephen had threatened sexual assault. Karen responded that she reacted that way because she had been the victim of sexual assault as a child. The court found Karen’s statement regarding rape “a little bit troubling” but stated it did not cause the court to disbelieve her. The court ultimately found Karen credible and stated the 911 calls corroborated her allegations as well as a responding police officer’s statement that she was shaking and scared.
Stephen stated there was a “mountain of evidence” he wished to present. He acknowledged he did not have as much information “to throw at Karen’s character [ as at John’s] character,” but stated that if given the time to conduct discovery, he could show that John and Karen engaged in “public assistance fraud.” The court stated that many of the discovery requests were “not probative at all.” The court granted Karen’s request for a restraining order and dismissed John’s request without prejudice on the ground that he lives with Karen and is “included as the spouse.” John and Karen’s attorney added that Karen’s adult son and a grandson were also living in the home and should be included in the order. The court included these individuals in the order. The attorney also stated it was unclear whether Stephen lived in the home. The court granted the move out order request, stating that “as part of the order of being 100 yards [away], he will have to move out . . . .” It stated, “[Stephen] still has 35 percent, as I understand, ownership interest in the home. I’m not doing anything with that, but yes, he won’t be able to live in the home . . . .” The court denied Karen’s request for monetary or debt relief she had made in her request for a restraining order.
Stephen filed a motion for reconsideration on September 29, 2010. The trial court denied the motion on the ground Stephen had not presented any new facts, circumstances or law and had not made his application by affidavit as required by statute.
Discussion
1. Cross examination
Stephen contends the trial court erred in denying him the opportunity to cross-examine John and Karen. He asserts he made it “abundantly clear to the trial court before the hearing that he had many questions for his accusers,” when he listed a number of “suggested question[s] to be put to his accusers” in his “Motions for Discovery” and when he stated in his Answer, “I would much prefer to interview [John] and Karen first to trap them in lies and then reveal the truth to the Court.” We hesitate to conclude that these statements, buried within the 87 pages of documents submitted before the hearing, were sufficient to alert the court of a request to cross-examine witnesses, when no request was made at the hearing. However, even assuming, without deciding, that a request to cross-examine was made, and that the trial court erroneously denied the request, we conclude there was no prejudice.
The list of “suggested question[s]” Stephen posed in his discovery motion consisted almost entirely of matters not relevant to whether a restraining order should be issued. Most of the questions related to Stephen’s belief that John was a violent person, e.g., whether John “ran down a neighbor” with a car, whether he “exchanged gunfire with the person he ran down,” whether he injured someone “with a bullet wound from his gun,” and whether he owned guns.[4] Other questions related to the property dispute, including whether John and Karen changed the locks to the house without notice, and whether they had promised to give Stephen a new key. The only question that was directly related to what occurred on September 2 and 3, 2010, was, “Precisely where, when and how did Stephen White convey any threat of physical harm to either John or Karen White‌” The question, however, was asked and answered by Karen in her request for a restraining order and at the hearing. There was no prejudice resulting from any refusal to allow Stephen to question John and Karen regarding issues that had no relevance to whether the incidents on September 2 and 3, 2010, occurred as alleged.
2. Continuance
Stephen contends the trial court erred in denying his request for a continuance. We disagree.
Trial courts generally have broad discretion in deciding whether to grant a request for a continuance. (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395.) However, some statutes make continuances mandatory and, therefore, divest the court of its usually broad discretion. Family Code section 243, subdivision (e), for example, provides: “If service is made under subdivision (b) [where, as here, a temporary restraining order was issued without notice pending the hearing], the respondent is entitled, as of course, to one continuance for a reasonable period, to respond to the application for the order.” Nevertheless, any error in failing to grant a request for a continuance—whether mandatory or discretionary—is reversible only if it is tantamount to the denial of a fair hearing. (Ross v. Figueroa (2006) 139 Cal.App.4th 856, 865 [mandatory continuance]; Cohen v. Herbert (1960) 186 Cal.App.2d 488, 493-494 [discretionary continuance]; see also In re Marriage of Johnson (1982) 134 Cal.App.3d 148, 155 [error in denying request for continuance reversible only if it resulted in a miscarriage of justice], superseded by statute on other grounds as stated in In re Marriage of Braud (1996) 45 Cal.App.4th 797, 811, fn. 14.) There is no presumption of prejudice (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475), and the burden to demonstrate prejudice is on the appellant. (Arnett v. Nall (1921) 51 Cal.App. 194, 195).
Here, assuming it was error for the court to deny Stephen’s request for a continuance, we conclude the contention nevertheless fails because the record does not show there was any prejudice.[5] In the documents he filed before the permanent restraining order hearing, he denied he had threatened or harassed John and Karen, presented his version of the facts relating to the restraining order request, provided information regarding the history of his relationship with John and Karen, attached various exhibits, and listed facts purporting to show that John and Karen were not credible. The court reviewed all of the materials presented, and at the hearing, allowed Stephen to present evidence (tapes of the 911 calls) and testify regarding what occurred on September 2 and 3, 2010. Stephen thus had ample opportunity to challenge the allegations in the petition and to present his version of the events at issue.
Stephen complains that if given additional time, he would have been able to “properly absorb” the tapes of the 911 calls and offer the testimony of his girlfriend, who had information tending to show that John was a violent and untrustworthy person. There is nothing to suggest, however, that additional time to examine the tapes more thoroughly would have changed the trial court’s view that the tapes corroborated Karen’s declaration and testimony. Further, any additional information regarding John’s character would have been cumulative, as Stephen made numerous statements in his declaration and at trial regarding this issue. The court’s denial of a continuance in this case did not result in prejudice.
3. Exclusion of evidence
Stephen contends the trial court “illogical[ly]” excluded “two major sources of evidence” when it disregarded evidence that John suffered from a “mental illness” and did not give much weight, if any, to evidence regarding the property dispute. He asserts the two issues were relevant to show that John’s fear of Stephen was not rational or reasonable. We reject the contention.
The trial court is “vested with broad discretion in ruling on the admissibility of evidence.” (Smith v. Brown-Forman Distillers Corp. (1987) 196 Cal.App.3d 503, 519.) Stephen has failed to show the court abused its discretion. First, the court was not required to accept Stephen’s non-expert opinion that John suffered from a mental illness. Further, the existence of any mental illness would not have been relevant to the whether Stephen threatened or attacked Karen or circled around their house—the factual findings upon which the court relied in granting the request for a restraining order. Second, the court did not, as Stephen suggests, disregard all evidence regarding the property dispute. Rather, it took note of the fact that the dispute was the source of conflict and the “up and down relationship” between the parties. Beyond that, there was no need for the court to examine the minute details that Stephen presented regarding issues such as ownership, the parties’ respective rights to live in the house, and the failure to promptly provide new keys to each other. The court did not abuse its discretion when it steered the parties towards—and limited the admission of evidence to—matters relevant to whether a restraining order should be issued.
4. Prior consistent statement
Stephen contends the trial court improperly admitted Karen’s prior consistent statement by listening to the tapes of her 911 calls to the police. The record shows, however, that Stephen did not object to the admission of the tapes into evidence. In fact, he was the one who presented the evidence and urged the court to listen to the tapes, asserting they placed Karen’s credibility into question. He has therefore forfeited this claim. (See Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 799-800 [party must object in the trial court in order to preserve an issue for appeal].)
5. Move-out order
Stephen contends the trial court exceeded its jurisdiction by issuing a move-out order against him without evidence that Karen and her family were living in the house. John’s uncontroverted testimony that he and Karen had moved back into the house after being away for a year constituted sufficient evidence that they were living in the home. The court therefore properly issued a move out order requiring Stephen to move out of and stay away from the house.
6. Karen’s son
Stephen contends the trial court exceeded its jurisdiction by including Karen’s son as a protected party without a showing of good cause. We disagree.
Family Code section 6320 authorizes the court to issue an ex parte order enjoining one party from contacting another party “and, in the discretion of the court, on a showing of good cause, . . . other named family or household members.” Family Code section 6340 authorizes the court to issue any of the orders described in section 6320 “after notice and a hearing.” Stephen asserts there was no good cause to include the son in the order because there was no allegation that he (Stephen) had harassed, threatened or stalked him. However, in her request for a restraining order, Karen requested protection on behalf of herself, John, her adult son, and grandson, indicating they were “[f]amily or household members.” The evidence showed that the incidents that occurred on September 2 and 3, 2010, were at least in part the result of Stephen’s belief that Karen, her adult son, and grandson, did not have the right to live in the house, and his instruction to John on September 1, 2010, not to “allow [them] on the property.” Given evidence of Stephen’s animosity against them for living in a house in which he believed they did not have the right to live, along with evidence that he went to the house and engaged in unusual activity, e.g., “peel[ing] out” of parking spots and circling the house until he was stopped by police, the court could reasonably believe there was good cause to provide protection to all members of the household, including Karen’s son. There was no error.
7. Related cases
Stephen contends the trial court exceeded its jurisdiction by calling two related restraining order cases together. However, he filed one Answer to both requests and did not object when the court expressed its intent to hear the cases together. He has therefore forfeited this claim. (See Dietz v. Meisenheimer & Herron, supra, 177 Cal.App.4th at pp. 799-800 [party must object in the trial court in order to preserve an issue for appeal].)
8. Substantial evidence
Stephen contends there was no substantial evidence to support the restraining order. We disagree.
In assessing whether substantial evidence supports an order, we resolve all factual conflicts and questions of credibility in favor the prevailing party and indulge in all legitimate and reasonable inferences to uphold the finding of the trial court if it is supported by evidence that is reasonable, credible and of solid value. (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.) Stephen asserts, “You’ve got the trial judge basically awarding a woman an order because she cried.” However, the record shows there was much more evidence supporting the order. There was a history of conflict and animosity between Stephen and John and Karen that escalated into the events that led to the filing of the request for a restraining order. Stephen stated he merely “mocked” Karen, but the court found credible Karen’s declaration and testimony that Stephen was belligerent and threw things around, threatened her, called her names and said he would make her and John’s “life a living hell,” “jabbed” her and continued to do so despite being told to stop, pushed her, and gave her a “scary look” that led her to call 911. Further, despite the fact that the police were called as a result of his acts, Stephen returned to the house later that day, after midnight, and circled the house until “caught” by police. Stephen asserts that John and Karen are “two crazies” that should not be believed, but credibility determinations are for the trial court to make, and we will not disturb them on appeal. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925 [“All issues of credibility are . . . within the province of the trier of fact”].) There was substantial evidence to support the order.[6]
Disposition
The judgment is affirmed. Respondent shall recover her costs on appeal.


_________________________
McGuiness, P.J.


We concur:


_________________________
Pollak, J.


_________________________
Jenkins, J.


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