Filed 9/25/19 Tubbs v. Tubbs CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

SHERI TUBBS,

Respondent,

v.

JAMES TUBBS,

Appellant.

F077179

(Super. Ct. No. 15CEFL03477)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Fresno County. Lisa M. Gamoian, Judge.

James Tubbs, in pro. per., for Appellant.

Sheri Tubbs, in pro. per., for Respondent.

-ooOoo-

In 2015, respondent Sheri Tubbs (Sheri) obtained a domestic violence restraining order against appellant James Tubbs (James). In late 2017, shortly before the restraining order was going to expire, Sheri requested a renewal of the order. Following a contested hearing, the trial court granted Sheri’s request and renewed the restraining order for an additional five years based on evidence that Sheri entertained a reasonable apprehension of future abuse. James appeals from the trial court’s order renewing the restraining order. He argues the order should be reversed because (1) the trial court was allegedly biased and (2) the order was not supported by substantial evidence. We conclude James has failed to meet his burden of demonstrating error. Accordingly, the order of the trial court is hereby affirmed.

FACTS AND PROCEDURAL HISTORY

On December 14, 2015, an evidentiary hearing was conducted to determine whether to impose a domestic violence restraining order against James for the protection of Sheri. After hearing all the evidence, the trial court found that Sheri “carried her burden of proof that [James] has perpetrated an act of domestic violence from the incident on 5/24/15.” Therefore, Sheri’s request for a restraining order was granted. The restraining order was issued for a period of two years, and among other protections provided by its terms was a stay-away order requiring James to stay at least 100 yards away from Sheri.

A judgment of dissolution ending the marriage of James and Sheri Tubbs was entered by the trial court on March 23, 2016. There were two minor children of the marriage, born in 2008 and 2013, and James also had an older daughter from a prior relationship.

On December 14, 2017, Sheri filed a request to renew the restraining order. In her declaration submitted in support of this request, Sheri explained that she was fearful that once the current restraining order expired, James will “become violent and aggressive with me once again.” Sheri attached several postings James had recently made on social media sites, which included James’s accusations of a serious nature against Sheri (e.g., that Sheri was physically and emotionally abusing the children, telling lies, and cheating) along with James’s statements that he has no faith in our justice system or police officers to protect the children. Sheri believed such postings indicated “that his anger had grown,” and that he was not only blaming Sheri, but also “the Courts, the Police, and CPS for his supervised visitation.” Sheri’s declaration further stated that since the time of the original restraining order, James had been “aggressive with our children, and with his oldest daughter.” In short, Sheri’s declaration asserted she feared that as soon as the restraining order expires, James “will take aggressive measures, and that I, and possibly our children, will be in danger.”

On January 2, 2018, James filed his declaration in opposition to Sheri’s request to renew the restraining order. In his declaration, James asserted that Sheri had made false allegations to CPS, and furthermore, James denied responsibility for the social media posts and/or argued they were taken out of context or misinterpreted. James argued that if the restraining order were renewed, it would unfairly interfere with his efforts to be more involved in his children’s school or sports activities. Finally, James stated the original basis for the 2015 restraining order was a “5150” incident on his part and that Sheri and the children were never in danger.

A contested hearing on Sheri’s request to renew the restraining order was held on January 5, 2018. Both parties personally appeared. Sheri was represented by an attorney; James represented himself. Each announced to the trial court they were ready to proceed. Sheri testified she was fearful that if the restraining order was lifted she would then be without protection and would have to bear the brunt of James’s ongoing hate and anger. As evidence of James’s continuing hate and anger, she testified concerning the several recent social media posts wherein he accused her of being a bad parent and abusing the children. James also testified at the contested hearing. In his testimony, he claimed he had nothing to do with one of the social media posts (to “cheaterland.com”), he explained another post was merely his warning message to a friend, and a third one concerned his posts to the father’s rights movement. He also pointed to letters from a psychologist that indicated he is not an aggressive person.

At the hearing, the trial court announced its ruling from the bench:

“The burden of proof in this case is by a preponderance and it is on [Sheri] to show by a preponderance that she entertains a reasonable apprehension of future domestic abuse. And given the exhibits … there appears to be continuing acts that do constitute domestic abuse in that there are very provocative and very inflammatory statements that are continually made about [Sheri] and her treatment of her children. It appears that these have continued throughout the course of the court proceedings in this matter. [¶] … [¶] [T]he Court does find that [Sheri] has met her burden, that she does entertain a reasonable apprehension of future abuse given the nature of the texts and the Facebook posting. And for that reason, the Court will order that the restraining order that was previously issued on December 14th, 2015 be extended for an additional five years. And it will be reissued on the identical terms and conditions as the restraining order issued December 14, 2015.”

The trial court’s minute order memorializing its ruling was issued on January 5, 2018. On March 6, 2018, James timely filed his notice of appeal from the trial court’s order renewing the restraining order.

DISCUSSION

I. Standard of Review

A trial court’s ruling on a request to renew a domestic violence restraining order is reviewed for abuse of discretion. (Eneaji v. Ubboe (2014) 229 Cal.App.4th 1457, 1463.) Such an abuse of discretion occurs only when the ruling exceeds the bounds of reason. (Ibid.) “When applying the deferential abuse of discretion standard, ‘the trial court’s findings of fact are reviewed for substantial evidence, … and its application of the law to the facts is reversible only if arbitrary and capricious.’ ” (In re C.B. (2010) 190 Cal.App.4th 102, 123.) 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. (Lister v. Bowen (2013) 215 Cal.App.4th 319, 333.)

II. James’s Burden as Appellant

“A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Because of the presumption of correctness, error must be affirmatively shown by the appellant. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 822.) Thus, an appellant must affirmatively demonstrate prejudicial error based on sufficient legal argument and citation to an adequate record. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556–557.)

III. James Has Failed to Establish Error

The standard to be applied by the trial court for determining whether to renew a domestic violence restraining order is well established. In a contested case, “[a] trial court should renew the protective order, if, and only if, it finds by a preponderance of the evidence that the protected party entertains a ‘reasonable apprehension’ of future abuse.” (Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1290 (Ritchie).) This standard does not require the court to find it is more likely than not future abuse will occur if the protective order is not renewed. Rather, the evidence need only demonstrate it is “more probable than not there is a sufficient risk of future abuse to find the protected party’s apprehension is genuine and reasonable.” (Ibid.; accord, Rybolt v. Riley (2018) 20 Cal.App.5th 864, 873–876; Eneaji v. Ubboe, supra, 229 Cal.App.4th at p. 1463.)

In assessing the risk of future abuse, the trial court “ordinarily should consider the evidence and findings on which [the] initial order was based.” (Ritchie, supra, 115 Cal.App.4th at p. 1290.) The existence of the order and its underlying findings and facts “often will be enough in themselves to provide the necessary proof to satisfy that test.” (Id. at p. 1291.) In addition, the trial court should consider any significant changes in the circumstances such as whether the parties have moved on with their lives. (Ibid.) The trial court should also consider whether the circumstances have enhanced the opportunity and possibility of future abuse. (Ibid.) However, the party seeking a renewal of the protective order need not show any further abuses occurred after the issuance of the original protective order. (Id. at p. 1284.) “It would be anomalous to require the protected party to prove further abuse occurred in order to justify renewal of that original order. If this were the standard, the protected party would have to demonstrate the initial order had proved ineffectual in halting the restrained party’s abusive conduct just to obtain an extension of that ineffectual order. Indeed the fact a protective order has proved effective is a good reason in seeking its renewal.” (Ibid.)

In the present appeal, it appears that James is asserting the trial court erred or abused its discretion on two distinct grounds: (1) the trial court was allegedly biased and should not have heard the case, and (2) there was no substantial evidence to support the trial court’s order renewing the restraining order. As explained below, we find both of these arguments to be unsupported and without merit.

A. No Bias Shown

With no citation to the record, James makes a vague and general assertion that the trial court must have been biased against him. He mentions that the judge hearing the restraining order issue had previously heard some aspect of the parties’ custody issues, but he fails to explain why that would constitute bias. Moreover, contrary to James’s argument, the record of the hearing on the motion below reflects that he was given a fair opportunity to present his position and to offer any reasons why he believed Sheri’s request for a renewal of the restraining order should be denied. There is simply no evidence in the record before us that the trial court was biased, lacked impartiality or failed to consider James’s testimony at the hearing. James’s appeal makes a cursory mention of Code of Civil Procedure section 170.6, but he fails to demonstrate that he ever made a timely motion under that section based on a written declaration or an oral statement under oath that set forth the required factual basis for disqualification. (See Code Civ. Proc., § 170.6, subd. (a)(2).) Moreover, nothing in our own review of the record suggests that James ever made such a motion under Code of Civil Procedure section 170.6 or otherwise raised any issue of bias in the trial court. Quite to the contrary, as the reporter’s transcript reflects, when James appeared at the contested hearing, he unequivocally announced to Judge Gamoian that he was ready to proceed, and no concern was expressed at that time that Judge Gamoian could not be impartial. Moreover, as noted, the record of the hearing itself reflects it was conducted fairly and provided James an opportunity to present his case.

In light of James’s failure to cite an adequate record to support his contention of bias and to furnish relevant legal authority, we deem this issue to be waived or forfeited on appeal. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545–546; Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502 [failure to provide adequate record requires issue to be resolved against appellant].) Manifestly, James has failed to meet his burden as the appellant of affirmatively demonstrating error on this ground. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564 [because trial court’s order is presumed correct on appeal, error must be affirmatively shown].) We conclude James’s contention the trial court was biased fails.

B. Substantial Evidence Supported the Trial Court’s Order

James’s opening brief argued “bias” as the sole ground for his appeal and did not contend the trial court’s order was unsupported by substantial evidence. Instead, he made that contention for the first time in his reply brief. We need not consider this argument because a point raised in the reply brief for the first time is generally deemed forfeited on appeal. (High Sierra Rural Alliance v. County of Plumas (2018) 29 Cal.App.5th 102, 111, fn. 2; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764–765.) We conclude the issue is forfeited.

In any event, even if the point were not forfeited, we would still reject James’s argument. The trial court had before it not only the original restraining order in which, according to the trial court’s case summary of its prior minute order, James was found to have committed “an act of domestic violence,” but also the further evidence of recent social media posts in which it clearly appeared that James continued to harbor great anger and animosity toward Sheri, publicly accusing her of abusing their children even while expressing his distrust that the justice system will be able to protect his children from her. On this evidentiary showing, the trial court could reasonably infer that James would continue to be a risk toward Sheri and that her apprehension of future abuse was reasonable. Accordingly, James’s substantial evidence argument is without merit.

We note that James repeatedly attempts to minimize the prior restraining order entered against him by saying it was merely for “the 5150” and that Sheri and the children were not at risk. He has not presented any specific or explicit findings by the trial court to that effect. In essence, James is attempting to look behind and recharacterize the nature of the findings made within the original court minute order which held Sheri carried her burden of proof that James had “perpetrated an act of domestic violence.” James is asking us to assume that he knows all the facts, inferences and premises upon which the trial court based the original restraining order. We reject his effort and approach to this issue. The restrained party is not permitted to challenge the truth of the findings underlying the initial order. (Lister v. Bowen, supra, 215 Cal.App.4th at p. 333.) In any event, for the reasons explained above, we conclude the trial court had ample evidence before it to renew the restraining order.

Because, in light of the entire record, the trial court had substantial evidence upon which to conclude that Sheri’s apprehension of future abusive conduct was reasonable under the circumstances, James’s substantial evidence challenge would fail even if that issue had not been forfeited. In short, James has failed to demonstrate any error or abuse of discretion.

DISPOSITION

The order of the trial court is affirmed, and costs on appeal are awarded to Sheri Tubbs.