Filed 4/26/17 Rosenberg v. Avila CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
LEAH ROSENBERG,
Plaintiff and Respondent,
v.
YACOV AVILA,
Defendant and Appellant.
B268320
(Los Angeles County
Super. Ct. No. LQ018698)
APPEAL from an order of the Superior Court of Los
Angeles County, Michael J. Convey, Judge. Affirmed.
The Brinton Firm and Matthew L. Brinton for Defendant
and Appellant.
LD Law Offices and Leonardo Drubach for Plaintiff and
Respondent.
_________________________
2
INTRODUCTION
Yacov Avila appeals from a restraining order issued
pursuant to California’s Domestic Violence Prevention Act (Fam.
Code, § 6200 et seq.) (the DVPA).
1 He contends the affidavit and
testimony of the petitioner, Leah Rosenberg, did not constitute
reasonable proof of abuse under the DVPA because Rosenberg
was, in Avila’s assessment, “simply not credible.” We conclude
the trial court’s credibility determinations and factual findings
were reasonable in view of the evidence presented. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Consistent with our standard of review, we state the
evidence in the light most favorable to the challenged order,
accepting as true all evidence tending to establish the correctness
of the trial court’s findings and resolving every conflict in favor of
the order. (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140,
1142 (Burquet).)
From December 2013 to May 2015, Rosenberg and Avila
were engaged in an adulterous relationship. On August 28, 2015,
Rosenberg filed a request for a domestic violence restraining
order against Avila. In support of the request, Rosenberg offered
an affidavit, under penalty of perjury, stating that Avila had
made occasional threats of physical harm against Rosenberg and
her family (her husband and two children), the most recent
occurring on August 24, 2015, after she attempted to end the
relationship. Among other things, Rosenberg declared that Avila
made “threats of abuse,” “stalk[ed]” her, made statements in
electronic messages about “how he will destroy my life,”

1 Statutory references are to the Family Code unless
otherwise designated.
3
threatened to ruin her husband’s business and to harm her
husband physically. She also described an incident at a
“Cambridge Farms” supermarket during which Avila put “a gun
to [her] head and said ‘if you ever try to leave I will find you and
kill you.’ ” She declared that, in January 2015, Avila tied her up
in the back of his car, “cut [her] leg and arm with a blade,” and
used a “taser” on her. She said incidents like this happened “a
lot” and Avila would often threaten to lock her in an apartment
and leave her there, or “he would just show up in places and slap
[her] across the face for fun.” Based on the affidavit, the court
granted a temporary restraining order pending a full hearing.
On September 18, 2015, the court held a hearing on
Rosenberg’s request for a domestic violence restraining order. In
response to direct examination by the court, Rosenberg testified
that, throughout their one and a half year relationship, Avila
constantly threatened to “destroy” her life and her family if she
ever left him. She affirmed the statements made in her affidavit
concerning the January 2015 incident in which Avila bound her
in the backseat of his car and cut her with a blade. She also
testified that he “tasered” her throughout the relationship,
leaving her with physical injuries, including “marks” and “scars.”
The relationship ended in May 2015, but Avila continued to
threaten and stalk her, both physically and through electronic
messages. In August 2015, Rosenberg told Avila to stop
contacting her. He responded with an electronic message telling
her “it’s just begun and it’s not over.” Soon thereafter, Avila
contacted Rosenberg’s father-in-law to tell him that Rosenberg
and her husband were “having issues.” He then sent a text
message to her husband suggesting Rosenberg was “crazy.”
Rosenberg testified that her husband met with Avila in an
4
attempt to “work things out.” During the meeting, Avila
threatened to physically harm her husband. A week or so later,
Rosenberg filed her request for a restraining order.
On cross-examination, Rosenberg acknowledged that she
had not contacted the police about Avila’s physical abuse. She
explained Avila had threatened to “destroy me and lock me up
and hurt me in really bad ways” if she ever contacted the police
or if anyone ever found out about the abuse. When asked
whether her husband saw the resulting marks and scars, she
responded that he had. She testified that her husband thought
about calling the police, but she “made excuses” and persuaded
him not to. She said Avila “tasered” her about “once every two
weeks,” and that he cut her with razor blades “throughout the
relationship” until January 2015.
Avila’s attorney also questioned Rosenberg about a series of
text messages and photographs she sent to Avila on August 16,
2015.2 Rosenberg affirmed that in one of the messages she wrote,
“ ‘I always wish you would stalk me, you would show your face,’ ”
and in another she stated, “ ‘I’m still waiting for someone to rape
me.’ ” Rosenberg acknowledged she sent the messages after
ending her relationship with Avila. She explained that the
purpose was to determine “what he was thinking and if I should
still be nervous or not” and to “find out if he would actually do all
this stuff he said he would,” including sending someone to rape
her. She also acknowledged sending approximately 40 pictures of
herself and friends to Avila on the same date. She said the

2 Our recitation of facts regarding the text messages and
photographs is based on Rosenberg’s testimony because the
exhibits containing these materials were not included in the
record submitted by Avila.
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pictures were meant to show him, “I’m okay. And I’m fine. And I
don’t need you in my life. And I totally moved on.”
Avila testified that his relationship with Rosenberg ended a
few months before she filed the request for restraining order;
however, she continued to pursue the relationship. He opposed
the request for restraining order only because he and Rosenberg
were part of a “very small” ultra-orthodox Jewish community,
and he worried that if the restraining order were granted, he
would be “classified as the person that’s pursuing [the
relationship].”
Avila denied that the incident at the Cambridge Farms
supermarket occurred; he denied pointing a gun at Rosenberg
and denied threatening to kill her if she ended the relationship.
He also denied cutting her with a blade, using a taser on her, and
slapping her across the face.
With respect to the August 24, 2015 episode, Avila testified
that the incident principally concerned a text message
conversation between himself and Rosenberg’s husband. Avila
admitted writing to Rosenberg’s husband that he would have
“every one of your clients, starting with [names of two
individuals], drop you.” Apart from that statement, Avila denied
making any threats against Rosenberg or her family. On August
25, 2015, Avila had a face-to-face meeting with Rosenberg’s
husband. The meeting was cordial. After it concluded,
Rosenberg’s husband sent a text message to Avila stating,
“Thanks for the meeting.”
On rebuttal, Rosenberg challenged Avila’s account of the
conversation with her husband, testifying that Avila omitted
many of the text messages from their exchange. She also
6
reiterated that she had scars on her arms and legs to prove Avila
abused her.
The court granted Rosenberg’s request for a three-year
restraining order, finding Rosenberg presented credible evidence
of abuse and physical violence by Avila. While the court found
Rosenberg’s testimony about the “frequency of tasing” was “not
entirely believable,” it found “the evidence of cutting to be
credible.” The court also found Rosenberg’s testimony concerning
Avila’s threats at the “Cambridge Market” to be “more credible
than [Avila’s] denial of that event.” And, in general, the court
found Rosenberg’s and Avila’s respective demeanors at the
hearing lent credence to Rosenberg’s account.
Finally, the court rejected Avila’s suggestion that
Rosenberg’s failure to report the abuse undermined her
credibility. In that regard, the court observed: “The reporting of
an incident to the police is not relevant, nor is it required under
the Domestic Violence [Prevention] Act. Quite the contrary. It is
quite common for victims not to report and to have repeated acts
inflicted upon them and perhaps . . . provocatively invite contact
where contact is not such a wise thing to do. . . . Extremely
dangerous, but within the realm of reasonable possibility given
[Rosenberg’s] testimony, [and] given [Rosenberg’s] other
evidence.”
DISCUSSION
The DVPA’s stated purpose is to “prevent acts of domestic
violence, abuse, and sexual abuse and to provide for a separation
of the persons involved in the domestic violence for a period
sufficient to enable these persons to seek a resolution of the
causes of the violence.” (§ 6220.) To that end, the DVPA
authorizes the trial court to issue a restraining order “if an
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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.) “ ‘Abuse’ ” is
statutorily defined to include, among other things, an act to
“intentionally or recklessly cause or attempt to cause bodily
injury.” (§ 6203, subd. (a)(1).) However, “[a]buse is not limited to
the actual infliction of physical injury or assault.” (Id., subd. (b).)
Avila contends Rosenberg failed to present credible
evidence of “a past act or acts of abuse” sufficient to warrant a
restraining order under the DVPA. (§ 6300.) An appeal
challenging the grant or denial of a DVPA restraining order is
generally reviewed for an abuse of discretion. (Burquet, supra,
223 Cal.App.4th at p. 1143.) However, where the asserted abuse
is premised on the insufficiency of evidence, “the reviewing court
must apply the ‘substantial evidence standard of review.’ ” (Ibid.;
see also Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420
[“ ‘The appropriate test for abuse of discretion is whether the trial
court exceeded the bounds of reason. When two or more
inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for
that of the trial court.’ ”].)
When an appeal challenges the sufficiency of evidence, the
appellant’s burden is a heavy one; he must show that there is no
substantial evidence, contradicted or uncontradicted, to support
the trial court’s findings. (Burquet, supra, 223 Cal.App.4th at
p. 1143; Division of Labor Law Enforcement v. Transpacific
Transportation Co. (1979) 88 Cal.App.3d 823, 829.) In reviewing
the record to determine whether the appellant has met this
burden, “ ‘ “[w]e must accept as true all evidence . . . tending to
establish the correctness of the trial court’s findings . . . ,
8
resolving every conflict in favor of the judgment.” ’ ” (Burquet, at
p. 1143.) The trial court is the sole arbiter of all conflicts in the
evidence, conflicting interpretations thereof, and conflicting
inferences which reasonably may be drawn therefrom. (Ibid.) It
is the sole judge of the witnesses’ credibility. The appellate court
has “ ‘no power to judge the effect or value of the evidence, to
weigh the evidence, to consider the credibility of the witnesses, or
to resolve conflicts in the evidence or in the reasonable inferences
that may be drawn therefrom.’ ” (Leff v. Gunter (1983) 33 Cal.3d
508, 518 (Leff).) “The testimony of a single witness, even the
party himself [or herself], may be sufficient, since it is the
exclusive province of the trial court to determine the credibility of
witnesses.” (Waller v. Brooks (1968) 267 Cal.App.2d 389, 394;
In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698,
703 (Marriage of Fregoso).)
Avila contends the court abused its discretion because, in
his view, Rosenberg’s testimony was too implausible to be
credited. Emphasizing the lack of physical evidence, he argues,
“[n]o reasonable court could believe . . . Avila had repeatedly and
publically kidnapped [Rosenberg], or that [Rosenberg] had been
repeatedly cut and shocked, yet never called the police, never
sought treatment, and successfully convinced her husband not to
intervene.” He stresses that “the only physical evidence,
[Rosenberg’s] text messages, demonstrated that [Rosenberg]
persisted in calling and texting [Avila], and that [Avila] and
[Rosenberg’s] husband were forced to meet in order to get
[Rosenberg] to leave [Avila] alone.” “More to the point,” he
argues, “the fact that [Rosenberg] filed the request for restraining
order three days after her husband met with [Avila] . . . strongly
9
suggests that [the] restraining order itself was yet another
attempt to get [Avila’s] attention.”
Avila’s argument bears remarkable similarity to the
argument advanced by the appellant in Marriage of Fregoso.
In that case, the appellant husband, Fregoso, filed a petition for
dissolution of his marriage to respondent wife, Hernandez,
together with a request for full custody of the couple’s child and a
declaration asserting Hernandez was “ ‘an aggressive person who
has hit me in the past.’ ” (Marriage of Fregoso, supra,
5 Cal.App.5th at p. 700.) Four days later, Hernandez filed a
request for a DVPA restraining order, asserting Fregoso “grabbed
her, pushed her hard onto a bed, and held her head down into the
mattress so that she could not breathe” and “ ‘hit [their] daughter
with a belt, almost 10 times.’ ” (Ibid.) After hearing the parties’
testimony, the court granted the restraining order. (Id. at
p. 701.) Fregoso appealed.
The appellate court recounted Fregoso’s argument as
follows: “Fregoso contends the court abused its discretion
because ‘the evidence showed [Hernandez] was not afraid of
[Fregoso].’ Noting that Hernandez sought the [restraining order]
soon after he filed for dissolution of the marriage, Fregoso
contends Hernandez’s ‘timing and conduct in requesting that
restraining order smacks of game-playing and bad faith.’ He
emphasizes there were ‘no police reports’ of the alleged domestic
violence, and no arrests or convictions. He claims Hernandez
sought a restraining order to gain a tactical advantage against
him in future child custody proceedings. Asserting there was
undisputed evidence Hernandez had consensual sex with him
after obtaining the [temporary restraining order], Fregoso
contends such conduct ‘obviously showed that [Hernandez] did
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not fear [him] or need protection from him.’ ” (Marriage of
Fregoso, supra, 5 Cal.App.5th at p. 703, italics added.)
The appellate court found Fregoso’s argument “unavailing”
because it was “inconsistent with the standard of review.”
(Marriage of Fregoso, supra, 5 Cal.App.5th at p. 703.) Citing the
principle that “[t]he testimony of one witness, even that of a
party, may constitute substantial evidence,” the court explained
that Hernandez’s testimony alone was “ample substantial
evidence to support the [trial] court’s implied finding there was
‘reasonable proof of a past act or acts of abuse’ warranting a
domestic violence restraining order.” (Ibid.) As for Hernandez’s
admission that the parties engaged in sex after the temporary
restraining order issued, the appellate court found no abuse in
the trial court’s decision to credit Hernandez’s testimony,
observing: “Hernandez also testified the parties’ post-TRO sex
was part of their six-year repeated cycle of violence, gifts,
forgiveness, sex, and then repeated acts of violence. Thus, the
evidence Fregoso primarily relies upon as showing the court
abused its discretion was explained by Hernandez in a manner
consistent with the court’s determination to issue the order.”
(Ibid.)
Much of the same can be said about the argument Avila
advances in this appeal. Like the argument in Marriage of
Fregoso, Avila’s argument is “inconsistent with the standard of
review.” (Marriage of Fregoso, supra, 5 Cal.App.5th at p. 703.)
Contrary to Avila’s premise, Rosenberg’s testimony standing
alone is substantial evidence sufficient to support the court’s
exercise of discretion, and no corroborating physical evidence was
required to bolster the court’s judgment. (Ibid.) Furthermore,
issues concerning the “credibility of the witnesses” or “conflicts in
11
the evidence” are the exclusive province of the trial court and will
not be second guessed on appeal absent an affirmative showing of
abuse. (Leff, supra, 33 Cal.3d at p. 518; Marriage of Fregoso, at
p. 703; Burquet, supra, 223 Cal.App.4th at p. 1143.)
To be sure, the trial court could reasonably have regarded
Rosenberg’s account of the abuse with skepticism, given the lack
of police and medical reports. But it was also well within the
bounds of reasonable discretion to accept Rosenberg’s explanation
that Avila had threatened to harm her if she reported the abuse
to authorities. Likewise, it was not inherently implausible that
Rosenberg might continue to contact Avila after suffering serious
physical abuse, for, as the court explained, the evidence showed
Rosenberg, like other abuse victims, had a proclivity to
“provocatively invite contact where contact [was] not such a wise
thing to do.” The issue for this court is “ ‘not whether there is
evidence in the record to support a different finding, but whether
there is some evidence that, if believed, would support the
findings of the trier of fact.’ ” (Marriage of Fregoso, supra,
5 Cal.App.5th at p. 703.) Rosenberg’s testimony supplied that
evidence, and the court did not abuse its discretion by drawing
reasonable inferences from that testimony, even if contrary
inferences could also have been drawn. (See Burquet, supra,
223 Cal.App.4th at p. 1143.)
Lastly, California law recognizes that the credibility of a
witness need not be judged solely upon the character of his
testimony; rather, the determination may also embrace an
appraisal of “[h]is demeanor while testifying and the manner in
which he testifies.” (Evid. Code, § 780, subd. (a).) In this regard,
the trial court’s cogent assessment of Avila’s and Rosenberg’s
demeanor while testifying, and the credibility determinations the
12
court drew therefrom, underscores why it would be especially
inappropriate for this court to second guess that determination
on appeal. “The law has long recognized the problem of appellate
review in the matter of credibility of witnesses based upon their
demeanor, and for that reason the rule has evolved that the trier
of facts is the sole and exclusive judge of the credibility of
witnesses as determined by their demeanor. A written transcript
of testimony is but a pallid reflection of what actually happens in
a trial court. . . . ‘ “The cold record cannot give the look or
manner of the witnesses; their hesitations, their doubts, their
variations of language, their precipitancy, their calmness or
consideration. A witness may convince all who hear him testify
that he is disingenuous and untruthful, and yet his testimony
when read, may convey a most favorable impression.” ’ . . . [¶] . . .
Another witness may fumble, bumble, be unsure, uncertain,
contradict himself, and on the basis of a written transcript be
hardly worthy of belief. But one who sees, hears and observes
him may be convinced of his honesty, his integrity, his reliability.
All of this is because a great deal of that highly delicate process
we call evaluating the credibility of a witness is based on what
might be called, for lack of a better word, ‘intuition’—that
intangible, inarticulable capacity of one human being to evaluate
the sincerity, honesty and integrity of another human being with
whom he comes in contact.” (Meiner v. Ford Motor Co. (1971)
17 Cal.App.3d 127, 140-141.)
The trial court’s account of Avila’s and Rosenberg’s
respective demeanors reflects that highly delicate process of
evaluating a witness’s credibility that can be performed only
when one human being comes in contact with another. As the
court explained in its oral ruling, “The court watched the parties
13
during this hearing when you were sitting there at the table and
when you were testifying on the witness stand. [Rosenberg]
presents as someone who has had a distressed look on her face.
She is sitting literally at the corner of the table as far away from
[Avila] as she can. She rocked back and forth during the
testimony, during the case. This shows to the court that she has
a great level of stress in her demeanor. And this enhances or
increases her credibility as to the reporting of these [events]. [¶]
[Avila] sits very confidently in the chair and the witness stand
and emphasized at least two or three times for the court the
effect that this restraining [order] would have on him. This
emphasizes for the court the level of control he exercises and tries
to exercise over [Rosenberg], another factor in determining that
[Rosenberg’s] testimony is more credible than [Avila’s].”
The foregoing explanation demonstrates what our standard
of review has long recognized—the trial court was in the best
position to evaluate credibility and to resolve factual disputes
presented by the evidence. Our review of the record finds
sufficient evidence to conclude the court’s order was not an abuse
of discretion.
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DISPOSITION
The order is affirmed. Rosenberg is entitled to her costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GOSWAMI, J.*
We concur:
EDMON, P. J.
ALDRICH, J.

* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.