Blochland v. Riley
Filed 8/10/07 Blochland v. Riley CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
KAREN M. BLOCHLAND, Petitioner and Respondent, v. MICHAEL K. RILEY, Respondent and Appellant. | B192916 (Los Angeles County Super. Ct. No. KQ007112) |
APPEAL from an order of the Superior Court of Los Angeles County, H. Don Christian, Commissioner (pursuant to Cal. Const. art. VI, 21).
No appearance by Petitioner and Respondent.
Michael K. Riley, in pro. per., for Respondent and Appellant.
INTRODUCTION
While appellant Michael K. Riley (Riley) was living with respondent Karen M. Blochland (Blochland), an incident occurred between them during which Blochland fell to the floor, cutting her lip and sustaining other physical injuries. Riley was arrested, but not subsequently charged with any crime. Blochland petitioned for and, after an evidentiary hearing, obtained a civil restraining order against Riley.
Riley appeals from the restraining order, arguing that the trial court improperly refused to allow an impeachment witness to testify on Rileys behalf. Riley also contends there is insufficient evidence to support the issuance of the restraining order.
We hold that Riley forfeited on appeal the issue concerning his impeachment witness and that because there was substantial evidence to support the trial courts finding that Riley committed an act of domestic violence against Blochland, the trial court did not abuse its discretion in issuing the restraining order against Riley. We therefore affirm that order.
FACTUAL BACKGROUND[1]
A. Blochlands Testimony
Blochland testified as follows: Prior to March 2006, Blochland and Riley were dating and had lived together for approximately a year and a half. On March 25, 2006, Riley pushed Blochland from behind, and she fell to the floor of her kitchen. She broke the fall with her left shoulder and right wrist. She sustained a bloody lip and twisted her back, causing it to ache. Rileys conduct[2]caused Blochland to experience mental distress, fear for [her]self, [her] dogs, and [her] sisters property (house, yard and contents)[, and] fear of damage to [her] vehicle which [Riley had] already damaged and [had] the keys to. She did not receive any medical treatment for her injuries.
After pushing Blochland to the floor, Riley went into the living room, grabbed her cellular telephone, walked out the front door, and immediately called 911 to tell them that [Blochland] was abusing him and that he needed assistance . . . . Riley came back into the house and hid Blochlands cellular telephone under a chair. He then went back outside, at which time Blochland locked him out of the house and put a chair in front of her bedroom door. Riley pounded on the windows and tried to enter the house, but was unable to do so. Los Angeles County deputy sheriffs arrived within approximately seven minutes of Rileys 911 call.
The deputy sheriffs interviewed both Blochland and Riley, and then arrested Riley. Blochland was not aware of any pending criminal proceeding against Riley relating to his arrest. Riley returned to Blochlands house twice after the March 25 incident, accompanied by two deputy sheriffs, and picked up certain of his personal belongings. At the time of the hearing, however, Riley still had many items in Blochlands garage and house.
B. Rileys Testimony
Riley testified as follows: Riley and Blochland were lovers, in an intimate relationship, and had lived together for about three years. On March 25, 2006, Riley returned to Blochlands house with a new internet modem that he had just purchased. Blochland tried physically to take the modem away from Riley to deny him access to the internet. Blochland was pulling on one side of the bag containing the modem and Riley was pulling on the other. Riley was stronger, so he ended up with the modem, but he did not push Blochland―she fell forward during the struggle over the modem and hit the floor, causing a minor cut to her lip.
Riley then called 911 and reported that he was being attacked by Blochland. While Riley was outside, Blochland locked him out of the house. Riley was arrested, booked, and released two days later. To Rileys knowledge, no criminal charges were filed against him.
PROCEDURAL BACKGROUND
On March 27, 2006, Blochland filed her Request for Order, and the trial court issued a temporary restraining order against Riley. On April 6, 2006, Riley filed a declaration.[3]On April 26, 2006, the trial court held a hearing on Blochlands Request for Order and Rileys petition for an injunction against Blochland for civil harassment.[4]
At the beginning of the hearing, Riley informed the trial court that he intended to call his neighbor, Michael Midyette (Midyette), as a witness. In response, the trial court stated, So if he wants to be a witness in this case and you want to call him as a witness in this case, it would have to be about the acts and/or the items that you mentioned in your first filing . . . . [] Then fine. Therefore . . . Mr. Midyette, Im going to ask that you wait in the hallway, sir, until you are called as a potential witness . . . . [] The sheriff will come out and get you. Have a seat in the hallway, thank you.
The trial court heard first from Blochland in support of her Request for Order and then from Riley in response to Blochlands factual assertions in support of her Request. Without ruling on Blochlands Request for Order, the trial court next turned to Rileys petition for an injunction against Blochland, and heard from both parties on that related matter.
After hearing from both parties on their respective petitions, and without any effort by Riley to call Midyette as a witness or remind the trial court of Midyettes presence in the hallway, the court ruled on the parties petitions. With reference to the domestic violence matter, the court finds by a preponderance of the evidence, otherwise more likely than not, that there was an incident of domestic violence. And as such, theres a need for a restraining order as between the parties of Ms. Blochland and Mr. Riley. This will be a conduct order and a stay away order of 100 yards. . . . [] This order shall be in effect for a period of three years on the domestic violence matter. [] With reference to the civil harassment matter which requires a more stringent burden of proof, the court finds that as a matter of evidence, the case was not established by clear and convincing evidence and further according to the recent case law, a single incident or an alleged act that does not show that theres a continuing reasonable apprehension of future violations cannot be used for the basis of a permanent restraining order. So therefore, Im going to deny the civil harassment order . . . . Following the hearing, the trial court issued a Restraining Order After Hearing dated April 26, 2006 (Restraining Order).[5]
On May 2, 2006, Riley filed a Request for Judicial Review . . .; Motion to Vacate (motion to vacate) raising a variety of issues, including alleged judicial misconduct, and supported by declarations and exhibits. On May 17, 2006, Riley filed the declaration of Midyette in support of his motion to vacate. On June 2, 2006, Riley filed a second submission in support of his motion to vacate that included another declaration by him and additional exhibits.
On June 6, 2006, the trial court[6]advanced the June 9, 2006, hearing date on the motion to vacate and issued a minute order denying that motion. On July 27, 2006, Riley filed his notice of appeal that references a judgment and order dated June 2, 2006, but also specifies that the appeal is from a Judgment after court trial and [a]n order of judgment under Code of Civil Procedure section 904.1(a)(3)-(13), both of which references presumably are to the April 26, 2006, Restraining Order.[7]
DISCUSSION
A. Standards of Review
A permanent injunction is a determination on the merits that a plaintiff has prevailed on a cause of action . . . against a defendant and that equitable relief is appropriate. [Citation.] The grant or denial of a permanent injunction rests within the trial courts sound discretion and will not be disturbed on appeal absent a showing of a clear abuse of discretion. [Citation.] The exercise of discretion must be supported by the evidence and, to the extent the trial court had to review the evidence to resolve disputed factual issues, and draw inferences from the presented facts, [we] review such factual findings under a substantial evidence standard. [Citation.] We resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge all reasonable inferences to support the trial courts order. [Citation.] (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 390; see also Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912; City of Vernon v. Central Basin Mun. Water Dist. (1999) 69 Cal.App.4th 508, 516.)
B. Midyettes Testimony
Riley contends that the trial court committed prejudicial error by refusing to allow Midyette to testify on Rileys behalf. According to Riley, Midyettes testimony would have impeached certain aspects of Blocklands testimony, thereby calling her credibility into question in a case that turned on credibility.
Rileys contention about Midyettes testimony is premised on the assumption that the trial court refused to allow Midyette to testify. The record, however, does not support that assumption. Although Riley did advise the trial court that he intended to call Midyette to testify on his behalf, he made no effort thereafter to call Midyette to the witness stand. Instead, he allowed the trial court to rule on the parties respective petitions without attempting to bring the issue to the trial courts attention.
Therefore, this is not, as Riley suggests, a case in which a litigant attempts to call a witness to testify and the trial court affirmatively excludes the witnesss testimony over the litigants protest. This is a case in which the trial court was initially advised of Rileys intention to call Midyette, but then not reminded about Midyettes presence at the point in the proceedings when he should have been called to the stand by Riley.
Rileys failure to bring Midyettes presence to the trial courts attention prior to the courts ruling constitutes a forfeiture of the issue concerning Midyettes testimony. In general, a judgment may not be reversed for the erroneous exclusion of evidence unless the substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by other means. [Citations.] This rule is necessary because, among other things, the reviewing court must know the substance of the excluded evidence in order to assess prejudice. [Citations.] (People v. Anderson(2001) 25 Cal.4th 543, 580 (Anderson).)
In Anderson, supra, 25 Cal.4th 543, the defendants counsel notified the trial court that the defense may well call the husband of the prosecutions eyewitness to impeach her, and requested that the husband be excluded from the courtroom during his wifes testimony. (Id. at p. 579.) The prosecution objected that the defendant was claiming the husband as a potential witness only to deny the prosecutions eyewitness the supportive presence of her husband during her testimony. (Ibid.) The trial court issued an in limine order refusing to exclude the husband from the courtroom and ruling that, if the husband was called solely to impeach his wifes eyewitness testimony, and if he claimed the marital privilege, the trial court would uphold the privilege under Evidence Code section 970. (Id. at p. 580.) The trial court, however, agreed that if the defense decided to call the husband, the court should be notified out of the jurys presence, whereupon if the husband claimed the marital privilege, defense counsel could preserve the record by obtaining a ruling and entering a formal objection at that time. (Ibid.)
In ruling that the defendant failed to preserve the issue for appeal, the court in Anderson, supra, 25 Cal.4th 543 observed, [Defense] counsel explained why [the husband] might be called, i.e., to impeach [his wifes eyewitness testimony] . . . but [defense] counsel did not offer to show what material impeachment [the husband] might provide. [Defense] [c]ounsel then dropped the matter and never actually called [the husband] to the stand. [] . . . [] Under these circumstances, defendant failed to make a record that permits a finding he was prejudiced by the loss of [the husbands] testimony. (Id. at p. 581.)
Here, when Riley advised the trial court that he intended to call Midyette as a witness, he did not provide any explanation of why he was calling Midyette or what the substance of Midyetts testimony would be. In response to Rileys advice, the trial court excluded Midyette from the courtroom during the testimony of Blochland and Riley. In doing so, the trial court demonstrated an apparent willingness to allow Midyette to testify, and never manifested any contrary intention. At the end of the parties testimony, however, Riley made no attempt to call Midyette or otherwise raise the subject of Midyettes testimony with the trial court. Instead, Riley allowed the trial court to rule from the bench without mentioning anything about Midyette or the substance of his proposed testimony, thereby depriving the trial court of the opportunity to allow Midyette to testify or at least to explain its reasoning for excluding him. (See People v. Boyette (2002) 29 Cal.4th 381, 424 [The requirement that an objection to evidence be timely made is important because it allows the court to remedy the situation before any prejudice accrues].) Even if the trial courts ruling took Riley by surprise, it was incumbent on him at the first opportunity to indicate that he had not had an opportunity to present a witness. This could have been done immediately after the trial court ruled.
Based on this record, there is no way to determine whether the trial court intended to exclude Midyettes testimony or inadvertently closed the evidentiary hearing without taking Midyettes testimony. Under these circumstances, it was Rileys responsibility, as the proponent of Midyettes testimony, to bring the matter to the trial courts attention before it ruled on the substance of Blochlands Request for Order. His failure to do so forfeited the issue on appeal.
In making our forfeiture determination, we are mindful that Riley represented himself at the hearing on Blochlands Request for Order, without the aid of legal counsel, and continues to represent himself on appeal. Although we recognize the difficulties an in propria persona litigant faces, Rileys lack of legal representation in the trial court did not exempt him from complying with the basic requirements applicable to all litigants. (See First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1 [A party proceeding in propria persona is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys].)
C. Substantial Evidence and Abuse of Discretion
Riley contends that there was insufficient evidence to support the issuance of the Restraining Order. Citing a variety of purported conflicts in the evidence and credibility problems with Blochlands testimony,[8]Riley concludes that Blochlands testimony was weak, self-serving, and not credible, whereas his evidence was substantial, compelling, and unimpeached.
Our review of Rileys contention that there was insufficient evidence to support the issuance of the Restraining Order is limited under the applicable standards discussed above. The trial court considered the parties written submissions and evidence, and then heard testimony from each of them, asking each party several questions of its own. Based on the parties respective versions of the events of March 25, 2006, the pivotal factual issue on Blochlands Request for Order came down to whether Riley intentionally pushed Blochland to the ground from behind, or whether she accidentally fell during the struggle over the modem. That issue turns on the respective credibility of the parties involved in the incident; but evaluating credibility is a matter that is within the exclusive province of the trial court. (See Maslow v. Maslow (1953) 117 Cal.App.2d 237, 243 [The trier of fact is the exclusive judge of the credibility of the witnesses].)
Because the trial court had to review the parties evidence to resolve disputed factual issues and draw inferences from that evidence, we are required to review its factual findings under a substantial evidence standard. Under that standard, we must resolve all factual conflicts and questions of credibility in favor of the prevailing party, Blochland, and indulge all reasonable inferences to support the Restraining Order. (Horsford, supra, 132 Cal.App.4th at p. 390.) We cannot, as Riley seems to assume, reweigh the evidence that was presented to the trial court on Blochlands Request for Order.[9] (Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 544.)
Our review of the record of the proceedings that resulted in the issuance of the Restraining Order leads us to conclude that there is substantial evidence, in the form of sworn testimony from Blochland, to support the trial courts finding that Riley committed an act of domestic violence. Under the applicable standard of review, the conflicts in the evidence and credibility issues upon which Riley relies must be resolved in Blochlands favor and we must indulge the reasonable inferences that arise from her testimony, i.e., that Riley pushed Blochland from behind, causing her to fall and sustain the injuries about which she testified. Because there was substantial evidence to support the domestic violence finding, the trial court did not abuse its discretion in issuing the Restraining Order. We are therefore required to affirm that Order.
DISPOSITION
The Restraining Order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MOSK, J.
We concur:
ARMSTRONG, Acting P. J.
KRIEGLER, J.
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[1] The following facts are taken from the parties respective submissions and hearing testimony relevant to Blochlands Request for Order (Domestic Violence Prevention) (Request for Order).
[2] Riley also screamed threats of calling [the] police on [Blochlands] dogs and [Blochland]; threatened to take possession of [Blochlands] property equaling $800; slammed doors so hard he broke [Blochlands] car door; and left a hole in the back outside wall of [Blochlands] house 1 deep.
[3] Item No. 10 of Rileys Notice Designating Record on Appeal (Designation) requested that a Responsive Declaration-OSC/Motion; on behalf of Respondent, Riley, Mike be included in the record on appeal, and the Case Summary indicates that Riley filed a Responsive Declaration-OSC/Motion on April 6, 2006. The clerk of the trial court, however, filed a Clerks Certification Re: Missing Document(s) stating that Item No. 10 of Rileys Designation, entitled Responsive Declaration-OSC/Motion; on behalf of Respondent, Riley, Mike was missing from the trial courts file.
[4] In addition to his written response to Blochlands Request for Order, Riley apparently filed a cross-petition for an injunction based on alleged civil harassment by Blochland, but that petition is not in the record on appeal, and Riley does not challenge the trial courts denial of that petition.
[5] There is nothing in the record indicating that Riley received written notice of entry of the Restraining Order.
[6] Superior Court Judge Thomas C. Falls issued the June 6, 2006, minute order denying the motion to vacate, whereas Commissioner H. Don Christian issued the April 26, 2006, Restraining Order.
[7] Consistent with the statement at page 3 of his opening brief, we construe Rileys Notice of Appeal as appealing from the April 26, 2006, Restraining Order, not the subsequent June 6, 2006, order denying his motion to vacate.
[8] For example, Riley emphasizes that he was not prosecuted for the act of domestic violence upon which the Restraining Order is based, and contends that the lack of any criminal prosecution is evidence that that he did not commit the act. He also contends that his exhibits showed that Blochland routinely signed documents with the initial K, thereby impeaching Blochlands testimony that she did not initial things simply with a K.
[9] We note that Riley attempts to support his substantial evidence argument with certain evidence that was not before the trial court on Blochlands Request for Order, such as Midyettes declaration. In reviewing the trial courts ruling on the Request for Order, we cannot consider evidence that was not before the trial court at the time it issued the Restraining Order.
