Filed 3/30/22 McGranahan v. Bedford CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Jonathan L. Rosenbloom, Judge. Affirmed.

Randy J. Bedford, in pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * * * * *

Randy J. Bedford (appellant) appeals from an order denying his request for a domestic violence restraining order (DVRO) against his former wife, Samantha R. McGranahan (respondent).[1] Appellant appears to primarily object to the trial court’s evidentiary decisions. Without providing any citations to the law of evidence, appellant argues that the trial court erred in refusing to consider the evidence he offered. We find the trial court did not abuse its discretion in declining to admit exhibits that were incomplete or were hearsay. Further, the court did not err in declining to consider allegations that were made in another court and previously ruled upon. Appellant has also failed to show that the trial court abused its discretion in denying his request for a DVRO. We affirm the order.

BACKGROUND

Appellant and respondent were previously married and have three minor children: P.B., B.B., and N.B. The parties separated on January 31, 2018, and divorced on December 18, 2018. In March 2019, the parties signed a stipulation and order granting appellant unmonitored visitation with the children every second and fourth weekend of each month.

Petitions for DVRO

Appellant filed his petition for a DVRO on July 8, 2020, seeking protection for himself and the parties’ three children. Appellant attached several pages of allegations. He alleged that he feared for his children’s safety because respondent is continually reported for acts of abuse against them. He also alleged that he feared for his own safety because respondent continually made false reports that he was a child abuser. He further cited incidents in which the children had allegedly talked about respondent physically abusing them. Appellant accused respondent of concealing the children from him and making false statements about him to a government agency. Many photographs, police reports, e‑mails, and other documents were attached to the petition.

On July 22, 2020, respondent filed a separate petition for a DVRO against appellant, seeking to protect herself and the three children. Respondent alleged that appellant had filed several false police reports against her claiming things such as parental abduction. Respondent alleged that appellant has harassed and stalked her constantly since she left him and that he goes to great lengths to determine her whereabouts. She alleged he had a history of violence against her and had refused to participate in court-ordered classes for parenting and domestic violence for perpetrators. He also failed to be drug-tested as ordered by the court.

Hearing on petitions

The hearing on the parties’ competing DVRO petitions was held on August 12, 2020. The children were represented by counsel. Appellant and respondent both appeared in propria persona. The court began with appellant’s petition for DVRO and admitted appellant’s declaration into evidence. Much of the hearing was spent determining whether appellant had any admissible evidence to support his various allegations against respondent.

The court noted that appellant presented evidence of “filings that [appellant had] made with various government agencies.” The court inquired, “Have any of these claims been pursued by the agencies or have they all been cleared?” After pointing out that many of the documents appellant had attached to his DVRO petition were filings that were made in the dependency court, the court noted that such documents were hearsay, which the court could not properly consider.

The children’s counsel informed the court:

“This was actually discussed at the . . . hearing. All of these reports, none of these are new allegations. [The Los Angeles County Department of Children and Family Services] has received the referrals. They’ve done their investigations. Their investigations for the most part have come back unfounded or inconclusive. But they have determined there is no danger to these children. They have determined dependency is not the appropriate jurisdiction because the children are in fact not in any type of danger.”

The children’s counsel further represented that the Los Angeles County Department of Children and Family Services was not currently considering opening a dependency matter, and the children were not under investigation. The trial court informed appellant that it could not consider matters that had “already been considered by another court and ruled on.”

Appellant also offered as an exhibit a chart that appellant created based on various reports made in dependency court. The court responded, “The chart itself that you have prepared is hearsay, which does not come in in a domestic violence restraining order proceeding.” Appellant also attempted to put into evidence several incomplete records. The court stated, “[W]e can’t consider exhibits that are not complete because, for the integrity of the process, we don’t know what’s been excluded.”

The court admitted a Facebook post after respondent admitted to posting it.[2]

Appellant attempted to have the court consider evidence of “[a] zoom call, a court call” that occurred approximately one month prior to the hearing. The court informed appellant that the statements at the hearing were protected under the litigation privilege.

When it appeared that appellant was struggling to find admissible evidence to support his claims, the trial court inquired whether appellant wanted a brief continuance:

“It’s taken a while for you to search for examples of [domestic violence] and exhibits supporting it. Do you want to take some time to do that? I am a big believer in the saying that just because someone doesn’t tell a story well doesn’t mean there isn’t a story to tell. So I want to give you this opportunity to present your case and for Ms. McGranahan to present her side. And then of course, for input from your children’s court-appointed counsel, but I need to know if there is something actually there. [¶] . . . [¶] . . . I just need you to focus and I need you to come up with, with concrete examples so we can examine them and determine the merit of them.”

When appellant said he was “trying to understand exactly what” he could use in court, the court replied, “actually the majority of the people who come here represent themselves. And that’s fine. [¶] . . . [¶] . . . But we expect them to familiarize themselves with the procedures in court and the substantive law.”

The hearing continued with appellant attempting to get exhibits admitted into evidence, and various objections based on incomplete records and documents that had been the subject of rulings in a different court.

Following lengthy proceedings the court informed respondent, “If there is conduct here, and that’s what I’m trying to seek out from you, because this is your burden to show me that there is conduct, I will absolutely consider it. But thus far I have seen one piece of evidence regarding disturbing your peace.” Minor’s counsel argued that the Facebook post (which was the only exhibit admitted from appellant) was “quite remote in time.” The children’s counsel did not join appellant’s request for a DVRO on behalf of the children.

Trial court ruling

Following appellant’s presentation of his evidence the court held:

“The only claim which the court heard today was a Facebook post and a responsive post. The court examined that carefully and finds that it does not rise to the level of domestic abuse that would constitute issuing an order. [¶] So the court is going to deny [appellant’s] request for a restraining order for the reasons that I stated.”

Notice of appeal

On August 24, 2020, appellant filed his notice of appeal.

DISCUSSION

1. 1. 1. 1. Standard of review

A trial court’s decision to grant or deny a restraining order is reviewed for abuse of discretion. (Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 820.) “‘“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.”’” (In re Marriage of G. (2017) 11 Cal.App.5th 773, 780.)

We will not disturb a trial court’s evidentiary ruling “‘“except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.”’” (Briley v. City of West Covina (2021) 66 Cal.App.5th 119, 132.) “A miscarriage of justice results only if ‘it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’” (Ibid., quoting People v. Watson (1956) 46 Cal.2d 818, 836.)

We review the trial court’s factual findings for substantial evidence. (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822.) Under this standard, “[o]ur sole inquiry is ‘whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted,’ supporting the court’s finding.” (Ibid.) “‘We must accept as true all evidence . . . tending to establish the correctness of the trial court’s findings . . . , resolving every conflict in favor of the judgment.’” (Id. at p. 823.) Where the parties do not fully develop a factual issue below, we may exercise our discretion to decline to consider it on appeal. (Bikkina v. Mahadevan (2015) 241 Cal.App.4th 70, 93.)

1. 1. 1. 2. Appellant has failed to show the trial court abused its discretion

Appellant makes three arguments of purported error on the part of the trial court. First, he claims that the trial court erred by failing to consider all forms of abuse alleged by him against respondent, including harassment and threats. Second, he claims that the trial court erred in failing to base its ruling on a full record.[3] Finally, appellant asserts that the trial court acted with bias in holding him to a different standard than it applied to respondent. As set forth below, we find that appellant has failed to show error.

1. 1. 1. 1. 1. No abuse of discretion in considering the alleged abuse

Appellant argues that the trial court erred in failing to consider all forms of abuse and that the court failed to consider the totality of the circumstances.

To prevail on his petition for DVRO, appellant was required to show, “to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” (Fam. Code, § 6300, subd. (a).) Appellant was required to prove his claims of harassment and disturbance of his peace “by a preponderance of the evidence.” (In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220, 226 (Davila).) Although appellant claimed generally that harassing and disturbing incidents had occurred, he failed to provide admissible evidence of any specific incidents other than the Facebook post. Appellant struggled throughout the hearing to come up with admissible evidence of specific examples of the purported harassment and disturbance of the peace that he had alleged against respondent. The court offered appellant the opportunity to take time to search for exhibits to support his claims. In spite of this offer, only the Facebook post was admitted into evidence. The court considered this exhibit and determined that it did not support issuance of a DVRO against respondent. Appellant has not shown that the court abused its discretion in declining to issue a restraining order based on his unsupported, vague allegations that respondent had abused the children, threatened him and falsely accused him.

In support of his position that the court failed to consider the totality of the circumstances, appellant cites In re Marriage of F.M. & M.M. (2021) 65 Cal.App.5th 106, 117. In F.M. the trial court categorically refused to consider postfiling evidence of the father’s alleged abuse, solely on the ground that the conduct had occurred after the mother filed her DVRO application. “Mother offered admissible evidence that father violated [a temporary restraining order] after she obtained the [temporary restraining order].” (Ibid.) The F.M. court held, “The court’s evidentiary cut-off violated the [Domestic Violence Prevention Act’s (Fam. Code, § 6200 et seq.)] mandate that a court ‘shall’ consider the ‘totality of the circumstances’ in determining whether to issue a restraining order.” (Ibid.) F.M. is distinguishable. Here, the court did not make a categorical refusal to hear appellant’s evidence. Instead, it made sound evidentiary rulings based on the questionable and incomplete evidence that appellant attempted to present. While the mother in F.M. provided admissible evidence of abusive conduct, appellant did not do so in this case.

Next, appellant argues that respondent’s threats against him in the Facebook post that respondent admitted to posting were sufficient to grant appellant’s petition for DVRO. Appellant cites Rodriguez v. Menjivar, supra, 243 Cal.App.4th at page 822 for the proposition that “acts of isolation, control, and threats were sufficient to demonstrate” abuse within the meaning of the Domestic Violence Prevention Act. Appellant further cites Altafulla v. Ervin (2015) 238 Cal.App.4th 571, 578, for the proposition that a respondent does not have to act on threats in order for them to be abuse. Though appellant accurately states the law, he failed to prove that the threats contained in the Facebook post rose to the level of conduct justifying a DVRO.

As set forth above, we review the trial court’s decision that the Facebook post was insufficient to support a DVRO for abuse of discretion. The Facebook post addressed a supposed claim that the children were not appellant’s children and advised that appellant should not waste his money on supervised visits, as if appellant stayed out of their lives, respondent would drop her child support case. The post also predicted that appellant’s girlfriend would end up paying appellant’s child support obligations. The language of the post does not reveal a specific threat. However, appellant argues that the post was meant to destroy his calm and that respondent posted it out of anger. Citing In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1425-1427 (Evilsizor), appellant argues that physical abuse is not necessary to issue a restraining order and disclosing intimate details of someone’s life can constitute abuse.

Again, appellant accurately states the law but cannot claim that the Facebook post in this case rises to the level of abuse seen in Evilsizor. In Evilsizor, the husband “downloaded [the wife’s] private text communications to third parties, including her attorney, without her consent, . . . hacked into her Facebook account, changed her password, and rerouted the e-mail associated with her Facebook account to his own account.” (Evilsizor, supra, 237 Cal.App.4th at p. 1421.) The data the husband retrieved from the wife’s personal accounts “would constitute about 219,000 printed pages.” (Ibid.) In addition, the husband “threatened to reveal publicly more text messages and e-mails for leverage in the dissolution proceedings.” (Ibid.) The single Facebook post in this case is not factually comparable to the intimidation and fear that the wife in Evilsizor suffered. We decline to find an abuse of discretion.

1. 1. 1. 1. 2. The court’s evidentiary decisions were proper

Appellant next argues that the court erred by declining to consider what appellant refers to as “the full record.” (Capitalization and boldface omitted.) In making this argument, appellant insists the court declined to consider his petition for the DVRO, prevented him from discussing issues already heard and decided, and prevented appellant from developing a full record.

It was appellant’s obligation to establish past abuse by a preponderance of the evidence. (Davila, supra, 29 Cal.App.5th at p. 226.) Individuals proceeding in propria persona, like appellant, are not excused from this burden. Thus, appellant was “‘“restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts.”’” (Doran v. Dreyer (1956) 143 Cal.App.2d 289, 290.) “The fact that a layman elects to represent himself ‘certainly does not excuse him from a failure of proof’ of his cause of action.’” (Ibid.) In order to establish past abuse by a preponderance of the evidence, appellant was required to follow the rules of evidence and present admissible evidence for the court to consider.

Appellant cites Ross v. Figueroa (2006) 139 Cal.App.4th 856, 861 (Ross), for the proposition that in DVRO hearings, where both parties are often unrepresented, “the judge [is] necessarily expected to play a far more active role in developing the facts, before then making the decision whether or not to issue the requested permanent protective order.” We note that in Ross, the trial court did not permit the respondent to present any evidence at all. The respondent requested a continuance for two reasons: because he had not had time to get a lawyer, and “he had not figured how to get his response and accompanying written evidence served on Ross without violating the [temporary restraining order’s] prohibition against sending any written communications to her.” (Id. at p. 860.) The court denied the continuance and “when Figueroa asked whether he could submit evidence of his own, the [court] answered, ‘no.’” (Ibid.) Under those circumstances, the court should have advised the respondent that he was entitled to present oral testimony and raise questions to be posed to the petitioner. The Ross court noted, “The role of a judicial officer sitting in [domestic violence] court, which has many attributes of an inquisitorial as opposed to an adversarial process, is different than when sitting in a purely adversarial court where the parties are presumed to be ‘well counseled’ by skilled and knowledgeable lawyers.” (Id. at p. 866.)

In this case, in contrast, the court tried very hard to understand appellant’s case and give him opportunities to present admissible evidence supporting his claim. Noting that appellant was struggling to piece together his story of alleged abuse, the court expressed sympathy and inquired whether appellant wanted to take a break to “search for examples of it and exhibits supporting it.” At no time did the court express impatience or cut appellant off. Instead, the court worked with appellant, trying to get him to “focus and . . . come up with, with concrete examples so we can examine them and determine the merit of them.” Unlike the referee in Ross, the court actively questioned the parties in an effort to get to the truth. Thus, the court played an active role in developing the facts. However, appellant was unable to provide sufficient admissible evidence to support his claims. No abuse of discretion occurred.

1. 1. 1. 1. 3. Appellant has failed to establish bias by the trial court

Appellant argues that the trial court was biased against him. We note that appellant failed to raise this issue in the trial court, therefore he has forfeited it on appeal. (People v. Farley (2009) 46 Cal.4th 1053, 1110 [claim of judicial bias is forfeited if not raised in the trial court].) In addition, appellant fails to specify the legal basis for his claim of bias. Appellant did not avail himself of the statutory procedures for disqualifying judges found in the Code of Civil Procedure, therefore the only avenue for his claim of bias is the due process clause, which “sets an exceptionally stringent standard.” (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 589 (Schmidt).) However, appellant makes no mention of the due process clause. “We may and do ‘disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions he wants us to adopt.’” (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277.)

“It is ‘extraordinary’ for an appellate court to find judicial bias amounting to a due process violation.” (Schmidt, supra, 44 Cal.App.5th at p. 589.) “The appellate court’s role is not to examine whether the trial judge’s behavior left something to be desired, or whether some comments would have been better left unsaid, but to determine whether the judge’s behavior was so prejudicial it denied the party a fair, as opposed to a perfect, trial.” (Ibid.) “Numerous and continuous rulings against a party are not grounds for a finding of bias.” (Ibid.)

Appellant cites the court’s notes, without specifying which expresses bias or explaining any purported revelation of bias.[4] While appellant concludes that the trial court “never intended to rule unbiased,” appellant provides no explanation, argument or legal authority to support this claim. Under the circumstances, we consider the claim to be waived. (In re J.F. (2019) 39 Cal.App.5th 70, 79 [“‘“Appellate briefs must provide argument and legal authority for the positions taken.” [Citation.] “When an appellant . . . asserts [a point] but fails to support it with reasoned argument and citations to authority, we treat the point as waived.”’”].)

Appellant further claims that the court did not hold appellant and respondent to the same standard. Appellant complains that the court prohibited him from presenting evidence that respondent had not seen, and scrutinized his evidence, while failing to similarly curtail respondent’s case. Appellant argues that the court, and minors’ counsel, presented respondent’s case for her. In support of his argument that the court treated respondent with leniency, appellant provides two citations to the record. In the first, the court read into the record e-mails sent from appellant’s girlfriend to respondent’s “detachment sergeant,”[5] alleging that respondent was a child abuser. After confirming that appellant had seen the e-mails, the court proceeded to mark them as exhibits 1 and 2. The record shows no objection from appellant. The second citation is to a statement by the court made during the sergeant’s testimony. In the specific lines cited, the court states, “Okay. And give me a moment. It is just very hard to read this. This email from [appellant’s girlfriend] to you regarding, purportedly regarding scheduling . . . .” The citation does not reveal any form of bias or preference for respondent, and appellant provides no detailed explanation. Appellant has failed to show any bias or unequal treatment.

Finally, appellant argues that the court unfairly applied the litigation privilege. (Civ. Code, § 47, subd. (b).) The trial court referenced the litigation privilege when appellant tried to use respondent’s statements in a court hearing as evidence of harassment. Appellant argues that the litigation privilege should have applied to his girlfriend’s communications with respondent’s detachment sergeant “as the communication made was in good faith and to prevent his three minor children from suffering harm.”

We note that appellant has not provided a citation to the record showing that he objected to the admission of the e‑mails or the sergeant’s testimony on the basis of the litigation privilege. Therefore, the issue is forfeited on appeal. (Kern County Dept. of Child Support Services v. Camacho (2012) 209 Cal.App.4th 1028, 1038 [“It is axiomatic that arguments not raised in the trial court are forfeited on appeal.”].) However, we note that the trial court found that appellant’s communications with respondent’s superior in the military were not made in good faith. The trial court stated, “[T]he nature and extent of these purported inquiries makes the court believe that [appellant] had, through [his girlfriend], the intent to disturb the peace of and harass [respondent.]” Respondent met her burden of proof of this harassment “through the emails themselves and through the testimony of [respondent’s detachment sergeant].” In sum, the court found that “the sending of these emails and contact, repeated contacts with the Army going as far up the chain of command as they did, constitute harassment and an attempt to disturb the peace of [respondent].”

The litigation privilege does not bar “an action filed under a more specific statute when application of the privilege would render the specific provision ‘significantly or wholly inoperable.’” (People ex rel. Alzayat v. Hebb (2017) 18 Cal.App.5th 801, 808.) In this matter, because respondent’s DVRO petition was largely based on appellant’s false and harassing communications with respondent’s United States Army superior, application of the privilege to these communications would nullify her legitimate claims under the DVPA. Therefore, the litigation privilege would likely not have applied, even if appellant had attempted to prove such a privilege at trial.

Appellant has failed to establish bias.

DISPOSITION

The order is affirmed.

___________________________

CHAVEZ, J.

We concur:

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ASHMANN-GERST, Acting P. J.

_______________________________

HOFFSTADT, J.

[1] Respondent has not appeared in this appeal.

[2] The Facebook post was read into the record: “‘For the one who is obsessed with me, you know who you are.’ And an ellipses. ‘You and your ugly girlfriend can deny my girls all you want.’ And then it says, ‘First, if you don’t think my kids are yours, then you shouldn’t waste your money on supervised visits (because you are an abusive drug addicted POS), second, sign over your rights to my kids and stay the hell out of our lives and I will be more than happy to drop the child support case so that your unemployed deadbeat ass doesn’t have to pay.’ And then there is a smiley emoticon. ‘Third, good luck and nice try, sweetheart. Your girlfriend will be paying your child support like she does everything else. This is just a small delay in the process.’”

[3] In connection with this argument, appellant asserts that the trial court erred in failing to assist him, as an unrepresented litigant.

[4] The notes appear to set forth an accurate description of the filings made by each party and the status of the matter.

[5] Respondent was serving in the United States Army with a high level security clearance, and it appears that her detachment sergeant was her superior and was present at the hearing, ready to testify.