Filed 2/13/19 Marriage of Guzman & Bonilla CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Lily L. Sinfield, Judge. Affirmed.

Bryan T. Mayer for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Plaintiff and respondent Daniel Guzman (Father) and defendant and appellant Marissa Bonilla (Mother) share legal and physical custody of their daughter, K.G. (Daughter). Father requested a domestic violence restraining order against Mother. (Fam. Code, § 6300 et seq.)[1] The family court granted the restraining order. The family court also granted Mother’s request for a restraining order against Father. (§ 6300 et seq.) Further, the family court issued child custody and visitation orders.

Mother raises three issues on appeal. First, Mother contends substantial evidence does not support the family court’s findings. Second, Mother asserts the family court did not make some of the required findings. (Fam. Code, § 6305, subd. (a)(2).) Third, Mother contends she did not receive adequate notice of the hearing concerning Father’s request for a restraining order. We affirm.[2]

FACTUAL AND PROCEDURAL HISTORY

A. FATHER’S REQUESTS

On July 25, 2017, Father requested a domestic violence restraining order against Mother. Father’s written request is not included in the record on appeal. In September 2017 Father requested a modification to the order for child custody and visitation. The prior custody and visitation order is not included in the record on appeal. Father sought joint custody, wherein he would have Daughter from after school on Tuesdays to the start of school on Wednesdays, and then on weekends starting from after school on Thursdays until Saturdays at 8:00 p.m. Father requested the exchange of custody occur at a gas station in Fontana.

B. HEARING

On December 1, 2017, the family court held a hearing in the matter. The family court explained that the hearing was for Mother’s request for a restraining order against Father. Mother’s request for a restraining order is not included in the record on appeal. During the hearing, when Mother’s attorney was questioning Father’s mother (Grandmother), the court asked about the relevance of questions pertaining to the identities of Daughter’s friends. Mother’s attorney responded, “Your Honor, it’s our position, one of the questions before the Court today is how the custody order should be modified.” Father objected, arguing that the line of questioning was irrelevant. The family court sustained the objection citing Evidence Code section 352. The family court said, “I’m going to ask we focus on the DVRO.”

Per a 2011 custody order, Mother and Father were to exchange custody of Daughter at a gas station. Shortly after entry of the 2011 custody order, Mother and Father informally agreed to exchange custody of Daughter at their homes because they both moved to Fontana.

For the first six years of the custody arrangement, Mother and Grandmother met to exchange custody of Daughter, so as to avoid any arguments between Mother and Father. As the years passed, custody of Daughter would be exchanged at the gas station, Mother’s home, or Father’s home, depending on the circumstances on a particular day.

In June or July 2017, Mother no longer wanted Grandmother to handle the custody exchange, so Father began meeting Mother to exchange custody. When Father arrived at Mother’s home to pick up Daughter, Father repeatedly honked his car horn. Father explained that Mother was “always late” for custody exchanges; Mother made Father wait 15 to 20 minutes outside of Mother’s house. Mother worried that she would be cited by the Homeowner’s Association for the disturbance caused by Father’s honking. On approximately July 16, Mother told Father that he could continue to pick up Daughter at Mother’s house, but he could not honk his car horn. Father chose to have future exchanges at the gas station.

Mother was scheduled to pick up Daughter from Father on July 22, 2017, at 7:00 p.m., but failed to do so. Mother and Father sent each other text messages regarding when Mother would receive custody of Daughter. Father and Mother agreed to meet at the gas station on July 23. On July 23, at approximately 11:00 a.m., Mother went to Father’s home, rather than the gas station. Mother called Father approximately five times to inform him that she was coming to his house, but Father did not answer Mother’s calls. Mother went to Father’s house, rather than the gas station, because mail from Daughter’s school was delivered to Father’s house, Father had forgotten to bring the mail to Mother in the past, and Mother wanted to be sure she could get the mail from Father.

Mother knocked on the door of Father’s home. When Father opened the door, Daughter was behind him. Father said to Mother, “ ‘[W]hy are you at my house?’ ” Mother responded, “ ‘I’m here to pick up my mail and my daughter.’ ” Father told Mother that she could not pick up Daughter at Father’s house until Father was permitted to pick up Daughter at Mother’s house. Mother explained that Father could pick up Daughter at Mother’s house if he did not honk his car horn.

At that time, Father’s dog ran out of the house through the open door. Father closed the door behind him and chased after the dog, leaving Daughter inside the house. Mother opened the door and entered Father’s house. Father returned to the house. Father said to Mother, “ ‘[W]hy are you going in my property without my consent?’ ” Mother had her hand on Daughter’s wrist. Father pulled Mother’s arm away from Daughter’s wrist or hit Mother’s arm, causing Mother to lose her grip on Daughter. Mother “spiraled from there.” Mother raised her fists and swung at Father. Father then shoved Mother out of his house. Mother and Father called the police. Father was arrested for domestic violence.

A prior incident of abuse occurred between Mother and Father. When Mother was nine months pregnant, Mother and Father argued. Mother threw a pillow at Father. Father grabbed Mother’s hair and pulled her, but Mother escaped into a bathroom. After that incident, Mother moved out of the home she shared with Father. Father’s sister witnessed prior acts of verbal and physical abuse between Mother and Father; she had not seen Father physically abuse Mother. Grandmother stated that “[Mother] has always been the one looking for fights, looking for [Father].”

C. CLOSING ARGUMENT

During closing argument, Father said, “I would like to ask the Court, please, grant me my restraining order on [Mother].” The family court said, “Sir, I don’t have a DVRO filing by you.” Father explained he filed a request for a restraining order prior to Mother filing her request for a restraining order. The family court replied, “So here’s the problem: I did not note that. We did not have a case in chief from [Father].” The court said, “The concern I’m having now, procedurally, we have not heard the evidence or the—unless the parties are willing to stipulate [that] the evidence that’s already been presented is also for the purposes of [Father’s] DVRO request as well. Then I’ll reopen for argument. Otherwise, this is the concern I’m having: We proceeded only on [Mother’s] DVRO.” Mother’s attorney responded, “We’ll stipulate.” Father also stipulated. The family court reopened argument, permitting Mother’s attorney to argue against Father’s request for a restraining order.

D. RULING

After argument, the family court said, “So we have two issues today. We have the domestic violence restraining order requests—there’s two, and then the Request for Orders, and as well as child custody and visitation.”

The family court granted Mother’s requested restraining order against Father due to Father’s conduct of separating Mother from Daughter during the unsuccessful July 23d exchange. The family court also granted Father’s requested restraining order. The court explained, “Mother made a choice to go to the location she should not have gone to.” The court stated that Mother’s decision to go to Father’s house was “aggressive behavior.” The court said, “I do think it qualifies under the code of trespass because you were asked to leave, ma’am, and you did not.” The family court continued, “[M]other admitted earlier as well, she threw a pillow at father. Father I think you did pull her by the hair. I think there’s domestic violence on both of your parts.”

The court said, “As I mention[ed] I believe they both hit each other. Maybe not with a fist, but I think things have been flying around the house. I think they both disturb each others’ peace. I think they need to . . . seek further therapy with regard to impulse control, because this July 23rd incident could’ve been avoided starting with not going to the house, starting with picking the child up, not doing this texting back and forth ‘if you’re not going to pick—’ all of that I believe on both of their parts.”

The court found that Mother and Father failed to accommodate one another. Mother’s attorney asked the family court how Mother failed to accommodate Father. The court explained that Mother failed to be accommodating when she went to Father’s house after agreeing to meet at the gas station. Mother’s attorney asked the court when Mother demanded Father accommodate her. The court replied, “I appreciate that you’re professionally arguing and zealous about it, but I am not convinced—and I mentioned. She already said she raised a fist as well as threw a pillow at a separate incident. I know it was just a pillow, and I know that’s the argument being made, but that’s why I believe there’s domestic violence being made on both of their parts.”

The family court said, “With regard to child custody and visitation, because there are competing DVROs, I will order parents share joint legal custody.” The court continued, “In terms of physical custody, mother shall have physical custody, primarily. Father’s parenting time is as reflected in the mediation report. In that, he shall—this should also alleviate some of the issues of the drop off and pick up. Father’s parenting time shall be Friday after school or 2:00 P.M. if there is no school, until Monday drop off at school or 10:00 A.M. if there is none.” The court also granted Father custody on Tuesday nights. The family court granted Mother physical custody of Daughter on the first weekend of each month.

The court ordered Father and Mother to (1) submit to drug testing; (2) participate in a coparenting class; (3) take an anger management class; and (4) attend counseling. The court ordered that any custody exchanges that occurred on non-school days take place at the Fontana police station.

DISCUSSION

A. SUBSTANTIAL EVIDENCE

Mother contends the family court erred in issuing the restraining order against Mother because the family court’s findings are not supported by substantial evidence.

We review the family court’s factual findings under the substantial evidence standard. (J.J. v. M.F. (2014) 223 Cal.App.4th 968, 975.) “Under that standard ‘we view the evidence in a light most favorable to the respondent, and indulge all legitimate and reasonable inferences to uphold the [family] court’s determination.’” (In re N.L. (2015) 236 Cal.App.4th 1460, 1466.)

A domestic violence restraining order may be issued upon “proof of a past act or acts of abuse.” (§ 6300.) The definition of “abuse” includes “any behavior that has been or could be enjoined pursuant to Section 6320.” (§ 6203, subd. (a)(4).) Section 6320 provides that a court may issue an “order enjoining a party from . . . attacking, striking, . . . battering, . . . harassing, . . . or disturbing the peace of the other party . . . .” (§ 6320, subd. (a).) “Disturbing the peace of the other party” means “destroy[ing] the mental or emotional calm of the other party.” (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497.)

The family court found Mother’s act of going to Father’s house and then entering Father’s house without permission was an aggressive act of trespass. The evidence reflects Mother went to Father’s house after agreeing to meet at the gas station. Thus, Mother unilaterally changed the agreed-upon plan and went to Father’s house uninvited. Father asked Mother why she was at his house. Father told Mother she could not pick up Daughter from his house. In other words, Father informed Mother that she needed to go to the gas station and wait to pick up Daughter. Father closed the door to his house, which emphasized that Mother was not invited into the house. Rather than leave, Mother opened the door to Father’s house and entered it.

The evidence supports the family court’s finding that Mother entered Father’s house without permission after being told that the exchange could not take place at Father’s house. The family court could reasonably conclude from that evidence that Mother acted aggressively by entering a home that she had been told she had no reason to enter.

During a past argument between Mother and Father, Mother initiated physical aggression by throwing a pillow at Father. Father’s sister witnessed physical violence between Mother and Father, but specified she had not seen Father touch Mother, which means the physical violence was initiated by Mother toward Father. Grandmother stated that “[M]other has always been the one looking for fights.” Grandmother’s assessment is supported by Mother’s acts of (1) going to Father’s house after agreeing to meet at the gas station; (2) entering Father’s house without permission; and (3) throwing a pillow at Father during an argument.

In sum, the record includes credible evidence that Mother has disturbed Father’s peace. On July 23, 2017, Mother initiated the aggressive behavior by going to Father’s house after agreeing to meet at the gas station, and then entering Father’s house after Father told her the exchange could not occur at Father’s house. Given Mother’s prior act of abuse and current aggressive act of entering Father’s house, substantial evidence supports the family court’s finding that Mother disturbed Father’s peace.

Mother contends that, in reaching its decision, the family court improperly relied upon (1) text messages that were not admitted into evidence, and (2) Mother raising her fists in self-defense. We review the family court’s ruling, not its reasoning, and we affirm the judgment if it is correct on any ground. (In re Natasha A. (1996) 42 Cal.App.4th 28, 38.) We are not persuaded by Mother’s contention that the family court’s reasoning was faulty because (1) we do not review the court’s reasoning, and (2) as set forth ante, there is substantial evidence to support the family court’s ruling.

Mother contends the family court erred by relying solely upon Mother’s prior act of throwing a pillow at Father to justify imposition of the restraining order. The family court relied upon more than Mother’s act of throwing the pillow when explaining why it was imposing the restraining order. For example, the family court explained that Mother acted aggressively by trespassing at Father’s house. Moreover, we review the family court’s ruling, not its reasoning. (In re Natasha A., supra, 42 Cal.App.4th at p. 38.) Accordingly, we are not persuaded by Mother’s assertion that the family court’s reasoning was faulty.

B. REQUIRED FINDINGS

Mother contends the family court erred by failing to make all the required findings.

Section 6305, subdivision (a)(2) provides, “The court shall not issue a mutual order enjoining the parties from specific acts of abuse described in Section 6320 unless . . .: [¶] . . . [¶] [t]he court makes detailed findings of fact indicating that both parties acted as a primary aggressor and that neither party acted primarily in self-defense.” Because the facts are undisputed on this issue, we apply the de novo standard of review. (Federal Ins. Co. v. Steadfast Ins. Co. (2012) 209 Cal.App.4th 668, 679.)

The family court found Mother was a primary aggressor in the beginning of the July 23 incident because Mother (1) went to Father’s house after agreeing to meet at the gas station, and (2) opened the door to Father’s house and entered Father’s house after being told the exchange could not occur at Father’s house. Specifically, the family court said, “I have concerns because I think the mediator’s comment whether or not mother was the primary aggressor question [sic], was very poignant. Mother made a choice to go to the location she should not have gone to. . . . I think it was aggressive behavior. I do think it qualifies under the code of trespass because you were asked to leave, ma’am, and you did not.” (Italics added.)

In regard to self-defense, the family court said, “She already said she . . . threw a pillow at a separate incident. I know it was just a pillow, and I know that’s the argument being made, but that’s why I believe there’s domestic violence being made on both of their parts.” The family court’s comment reflects a finding that in some incidents Mother was the primary aggressor not acting in self-defense, while in other incidents Father was the primary aggressor not acting in self-defense.

In sum, the record reflects the family court made the required findings that Mother acted as a primary aggressor and did not act in self-defense in some situations. Therefore, we are not persuaded that the family court failed to make the required findings.

C. NOTICE

Mother contends she was not given proper notice that the December 1 hearing would include Father’s request for a restraining order.

Mother forfeited the issue of lack of notice by failing to raise an objection in the family court. (Jansen Associates, Inc. v. Codercard, Inc. (1990) 218 Cal.App.3d 1166, 1170; Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1149.) Nevertheless, if we were to address the merits and conclude the family court erred, we could not reverse because Mother fails to explain how she was prejudiced by the lack of notice. (See F.P. v. Monier (2017) 3 Cal.5th 1099, 1107-1109 [a judgment may not be reversed unless the error resulted in a miscarriage of justice].) “To establish prejudice, a party must show ‘a reasonable probability that in the absence of the error, a result more favorable to [her] would have been reached.’ ” (Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1161.) Mother does not explain what she would have done differently if adequate notice had been provided, or how she was harmed by Father’s inability to present a case-in-chief. In sum, because Mother forfeited the issue of lack of notice, and she fails to demonstrate how the alleged error is prejudicial, we do not reverse the family court’s order.

DISPOSITION

The order is affirmed. Mother is to bear her own costs on appeal.[3] (Cal. Rules of Court, rule 8.278(a)(5).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

RAMIREZ

P. J.

SLOUGH

J.