Filed 9/10/19 Bird v. Sharkh CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

BARBARA BIRD,

Plaintiff and Respondent,

v.

MIRIAM ABU SHARKH,

Defendant and Appellant.

H045119

(Santa Clara County

Super. Ct. No. 2015-1-DV018653)

Following a contested hearing, the trial court granted mutual domestic violence restraining orders (DVRO), one in favor of appellant Miriam Abu Sharkh and against respondent Barbara Bird, and the other in favor of Bird against Sharkh. Sharkh appeals from the DVRO entered against her in favor of Bird, arguing that the trial court erred in granting a mutual DVRO because it failed to review all the evidence presented and did not make the factual findings required by Family Code section 6305. Alternatively, Sharkh contends the trial court should not have granted a mutual DVRO because it expressly found Bird to be the primary aggressor.

We agree that the trial court failed to make the necessary findings required by section 6305. We will reverse both orders and remand for reconsideration of the evidence presented at the contested hearing. We reject Sharkh’s alternative argument because the record is clear that the trial court made no findings as to which party, if any, was the primary aggressor.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Bird’s DVRO request

Bird filed a request for a DVRO against Sharkh, her daughter, on February 20, 2015. In her request, Bird wrote that Sharkh assaulted her, both physically and verbally, on December 24, 2014. Bird reported the incident to the Los Altos police and a copy of the police report was attached to her DVRO request. According to the report, the incident occurred at Sharkh’s home which Bird was visiting in order to deliver Christmas gifts for her grandchildren. Bird and Sharkh began arguing after Sharkh asked one of her brothers, who Bird knew to be a recovering alcoholic, if he wanted a glass of wine. The verbal argument escalated and Sharkh began throwing things at Bird, eventually grabbing her from behind and throwing her to the floor. John Sharkh (John S.), Bird’s son and Sharkh’s brother, accompanied Bird to the police station and provided a statement corroborating Bird’s account of the incident.

B. Sharkh’s DVRO request

Sharkh filed her request for a DVRO against Bird on March 13, 2015. In support of her request, Sharkh provided a written statement detailing the “long standing animosity between” Bird and herself, dating back to 2002 when Sharkh and her sister, S., were made legal guardians of their (then) 10 year old sister, R. According to Sharkh, Bird blames her for taking her daughter, R., from her and “has vowed revenge.”

Sharkh listed a number of examples of Bird’s harassment and violent behavior, including an incident where Bird came to her home in 2013 and “punched [Sharkh’s] nephew in the face,” resulting in Sharkh obtaining a restraining order prohibiting Bird from entering her property. She also claims that Bird has “stocked [sic] me and come to every one of my divorce court hearings.” Sharkh accused Bird of “assisting [Sharkh’s] abusive ex husband and blocking medical treatment for [Sharkh’s] [terminally ill] son.”

As to the December 24, 2014 incident, Sharkh wrote that Bird entered her home “uninvited under the pretext of dropping off a Christmas present.” When Bird handed her brother, Joseph, a glass of wine “upon request” to make a Christmas toast, Bird began screaming that they were alcoholics. When Sharkh asked her to leave, Bird refused, so Sharkh “rushed past her to call [her] landlord for help.” As she tried to get to the door, her brother, John S., pushed her, causing her to stumble. Sharkh made it outside and, seeing that her landlord had already responded, Sharkh ran back because her children were still inside. At this point, Bird grabbed her and “started slamming [her] against the refrigerator.” Sharkh’s landlord pulled Bird away and “gently guided” her outside. Bird and John S. continued screaming “unintelligibly” outside the house, but finally left “around 6 PM.” Sharkh only learned of Bird’s “false police statement when [Sharkh’s] ex husband submitted it as proof that I was violent.” Sharkh also wrote that her brother, John S., “confessed on tape that he only made the police report to protect himself” because he attacked her that day and he has a criminal record.

Sharkh attached an e mail from her landlord, John R., who wrote that, on the evening of December 24, 2014, he and his wife heard a commotion coming from the cottage behind their home. Sharkh, their tenant in the cottage, knocked on John R.’s back door and asked him to help her remove Bird from the cottage. John R. noted that he had previously asked Bird, both verbally and by e mail, to not enter their property. As he approached the cottage, John R. could hear Bird screaming, but could not understand what she was saying. John R. entered the kitchen and saw Bird “pushing and hitting [Sharkh] up against the refrigerator door.” Sharkh was not defending herself but kept demanding that Bird leave. John R. took Bird by the shoulders and guided Bird outside to the end of the driveway. Bird kept screaming and eventually John R. understood that she was yelling “Give me my shoes” over and over again. Sharkh’s brother, John S., was also yelling at his wife to “ ‘Get the kid!’ ” and John R. waited outside until Bird and John S. left.

Sharkh attached a copy of a request for restraining orders filed by John R. and his wife, Deidre O., against Bird, in which Deidre O. describes Bird’s harassment as well as her frequent “loud, shrill screaming” when visiting their property.

C. Bird’s response to Sharkh’s DVRO request

Bird filed a response in which she disputed Sharkh’s allegations that Bird lost custody of her daughter, R., to Sharkh and that she is therefore seeking “revenge.” Bird also wrote a lengthy statement describing her taking care of Sharkh’s son (Bird’s grandson) and her “unique insight into the family dynamics.”

In her statement, Bird accused Sharkh of suffering “extreme and violent anger issues.” According to Bird, Sharkh called her brother, John S., in 2013 and threatened to “destroy” the daycare business Bird operated in conjunction with John S.’s wife, Melanie. According to Bird, Sharkh made this threat because Bird had gotten involved in Sharkh’s divorce and custody proceedings. To this end, Sharkh wrote a post on Stanford Parent Net in February 2015, claiming that the “day care is run by a woman who had her own child taken from her in probate court and has a long history of child and substance abuse.”

In the exhibits attached to her response, as well as responsive declarations, Bird details a number of alleged incidents of Sharkh committing domestic violence against her children, her ex husband and other family members. Bird accuses Sharkh of making false allegations of rape and domestic violence against her ex husband in their custody case, and Bird also alleges that Sharkh’s landlord, John R., is “emotionally and financially involved” with Sharkh. Bird also attaches “witness statements” from various family members, including John S., Lucas N. (Bird’s grandson), R., and Melanie (John S.’s wife), all supporting her version of the events on December 24, 2014, or otherwise rebutting Sharkh’s allegations about Bird.

D. August 20, 2015 DVRO hearing

At the outset of the hearing, the trial court indicated that it did not read or consider Sharkh’s supplemental declaration, filed on August 17, 2015, because it was not timely filed or served. Sharkh did not object to the trial court’s decision to disregard this evidence.

1. Bird’s testimony

Bird testified that she arrived at Sharkh’s home on Christmas Eve to deliver presents for the children. Sharkh did not ask her to leave but began taking pictures of Bird with her phone. When Bird asked why, Sharkh said it was “ ‘family photos’ ” even though there were no other family members near Bird at the time.

Bird noticed that Sharkh took Joseph into the kitchen, and he came out carrying a plastic cup which contained alcohol. Because he was a recovering alcoholic, Bird confronted him about the drink. Sharkh immediately became upset, repeatedly called Bird a “child killer,” cursed at her, and then physically attacked her. Bird tried to leave, but Sharkh kept “throwing herself on me, . . . punching and beating me.” Bird was finally able to escape, but without her shoes. Sharkh continued to throw various objects at her, until finally throwing Bird’s shoes outside.

Bird testified that Sharkh made falsely allegations against Bird in an effort to destroy Bird’s daycare business. Sharkh made these same false claims to social services, but after an investigation, social services concluded the allegations were unfounded. According to Bird, Sharkh did these things in retaliation for Bird supporting Sharkh’s ex husband in their court proceedings. Bird was “very scared” of Sharkh.

On cross examination, Bird admitted she did not suffer any injuries which required immediate medical attention on the night of December 24, 2014, though she was bruised by Sharkh.

2. John S.’s testimony

John S. testified that he was at Sharkh’s home on December 24, 2014, and became aware that Sharkh gave his brother, Joseph, an alcoholic drink. He saw Bird ask Sharkh why she would do that, and John S. said Sharkh become enraged. She started screaming at Bird, calling her “ ‘Child killer’ ” before physically attacking her. John S. tried to separate them, and Sharkh went to the kitchen door to prevent anyone from leaving, calling out for the landlord, John R.

On cross examination, John S. denied pushing anyone that evening, and during a phone call with Sharkh a few days after the incident, he told her he “ ‘went to the police to protect [himself].’ ”

3. Melanie’s testimony

Melanie testified that she is married to John S. and was with him and Bird on Christmas Eve in 2014 at Sharkh’s home. They were at the house for about an hour and a half before Bird discovered Joseph was drinking alcohol and confronted him about it. Sharkh began yelling at Bird, calling her bad names. Sharkh started throwing things at Bird, and then attacked her. Melanie’s children were frightened, so she gathered them up and got out of the house as her husband tried to keep Sharkh away from Bird.

4. Sharkh’s testimony

In response to Bird’s request for a DVRO, Sharkh testified that she was surprised that Bird, John S., and Melanie showed up at her house on December 24, 2014. She did give her brother, Joseph, a glass of wine that evening, but he was not an alcoholic. Rather, he had been addicted to heroin for 10 years. Bird got very upset and raised her voice. Sharkh told Bird calmly she should leave, but Bird refused to get up from the couch.

Sharkh “tried to run past her . . . to get my landlord,” but she thinks Bird tried to trip her. Then John S. started attacking her, but she managed to get outside and called out to her landlord. Her landlord saw her, and said he would go to her cottage, so Sharkh returned for her children. At this point, Bird grabbed her and started slamming her against the refrigerator. John R. came in and guided Bird out of the cottage.

In support of her own request for a DVRO, Sharkh testified that she needs a DVRO because Bird came to her home uninvited, refused to leave when asked, and physically attacked her. Bird regularly appears at Shark’s family court proceedings to which she is not a party, “trying to influence the judge and the social worker telling, you know, made up stories about all—my mental illness and my, you know, methamphetamine addiction and my—my abusing the children.” Sharkh denied using drugs and denied having a history of mental health issues.

5. John R.’s testimony

John R. testified that, on Christmas Eve 2014, he and his wife heard some commotion coming from the cottage they rented to Sharkh. As he went to investigate, Sharkh appeared at the back door and asked for help getting Bird out of her house. John R. had to calm his wife first as she had prior bad experiences with Bird, but then went to the cottage. When he arrived he saw Bird pushing Sharkh against the refrigerator, as Sharkh repeatedly asked Bird to leave. John R. said it was hard to hear what was going on because Bird “had been continually screeching.” He touched Bird on the shoulder and he was able to guide her out of the house, although she continued to screech words he “could not understand.” As they reached the driveway, John R. understood that Bird was yelling for her shoes. John S. was also there, yelling to his wife to get their children.

John R. further testified that, due to his wife’s PTSD, they had previously asked Bird via e mail not to visit their property and she agreed not to do so. Following the incident on December 24, 2014, John R.’s wife obtained a restraining order against Bird.

In November 2014, John R. attended a hearing where Sharkh’s ex husband recited a “litany of grievances against . . . [Sharkh].” John R. observed Bird in the back of the courtroom, quietly saying “ ‘That’s it. Get her. Get her,’ ” as Sharkh’s ex husband spoke.

6. Bird’s responsive testimony

Bird testified in response to Sharkh’s and John R.’s testimony and denied she attacked Sharkh on Christmas Eve 2014. Bird admitted she was in the courtroom during a family court hearing involving Sharkh and Sharkh’s ex husband, but denied saying anything as she sat in the gallery.

7. Trial court’s orders

The trial court granted the parties’ requests for DVROs, finding that “each side has met their burden of proof that abuse has occurred at different times, including on the night of December 24th.” The court continued that, “[i]n my estimation, one and not the other has been the dominant aggressor. [Sic.]” The court made no other written or oral statements regarding the mutual DVROs.

II. DISCUSSION

Before turning to the merits of the appeal, we note that Sharkh’s opening brief includes photocopies of documents, such as a screenshot of a text message (in German, no less) and court documents filed in 2002 consisting of letters of guardianship and a restraining order. This is improper. Despite her in pro persona status, Sharkh is required to “[p]rovide a summary of the significant facts limited to matters in the record.” (Cal. Rules of Court, rule 8.204(a)(2)(C).) “Factual matters that are not part of the appellate record will not be considered on appeal and such matters should not be referred to in the briefs.” (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 102.) We therefore disregard extraneous matters outside the record that are referenced in Sharkh’s brief. (Banning v. Newdow (2004) 119 Cal.App.4th 438, 453, fn. 6.)

A. Factual findings

We now address Sharkh’s contention that the trial court erred in granting a mutual DVRO because it failed to review all the evidence presented and did not make the factual findings required by section 6305.

1. Standard of review and relevant statutes

Because “a trial court has broad discretion in determining whether to grant a petition for a restraining order under [the DVPA],” we normally review the trial court’s decision to issue such a restraining order for an abuse of discretion. (In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 702.) However, where the question on appeal presents a matter of statutory construction, we apply a de novo standard of review. (Isidora M. v. Silvino M. (2015) 239 Cal.App.4th 11, 16.)

At the time of the August 20, 2015 hearing, former section 6305, subdivision (a) provided, “The court shall not issue a mutual order enjoining the parties from specific acts of abuse described in Section 6320 unless both of the following apply: [¶] (1) Both parties personally appear and each party presents written evidence of abuse or domestic violence. [¶] (2) The court makes detailed findings of fact indicating that both parties acted as a primary aggressor and that neither party acted primarily in self defense. [¶] (b) For purposes of subdivision (a), in determining if both parties acted primarily as aggressors, the court shall consider the provisions concerning dominant aggressors set forth in paragraph (3) of subdivision (c) of Section 836 of the Penal Code.” (Stats. 2014, ch. 635, § 6, p. 4252.)

We are concerned here only with the criterion set forth in former section 6305, subdivision (a)(2), which requires the trial court to make “detailed findings of fact indicating that both parties acted as a primary aggressor and that neither party acted primarily in self defense.” If the court enters a mutual order without making the required factual findings, it acts in excess of its jurisdiction and the order is voidable. (Monterroso v. Moran (2006) 135 Cal.App.4th 732, 737 739 (Monterroso).)

2. Findings of fact

Sharkh claims that the order against her must be reversed because the trial court issued it without making detailed findings of fact indicating that she acted primarily as the aggressor and not primarily in self defense. (§ 6305.) We agree that the order enjoining Sharkh from specific acts of abuse must be reversed, because the trial court failed in its statutory duties. However, that fatal defect is equally applicable to the order Sharkh obtained against Bird, and accordingly that order must likewise be reversed.

In Monterroso, supra, 135 Cal.App.4th 732, the court reversed a single, mutual restraining order against a husband and wife on the ground that the family court did not make the detailed findings of fact required by section 6305. (Monterroso, supra, at pp. 734, 736.) The court reasoned that “[t]he language of section 6305 is clear and its plain meaning must be respected,” and a family court acts “in excess of” its jurisdiction when it enters a mutual restraining order without making the detailed findings of fact required by section 6305. (Monterroso, supra, at p. 736.)

In Monterroso, the wife applied for a restraining order against the husband, but the husband did not apply for a reciprocal restraining order against the wife. (Monterroso, supra, 135 Cal.App.4th at pp. 734 735.) The husband, represented by counsel, filed a response and appeared at the hearing on wife’s application. At the hearing, the wife was not represented by counsel and needed a Spanish language interpreter to participate. (Id. at p. 737.) The wife agreed to a mutual restraining order in order to resolve the matter, and the court duly entered a six month mutual restraining order against both parties. (Id. at pp. 735 736.) At no time did the court explain to the wife the implications of a mutual restraining order, and it did not appear to the appellate court that the wife understood those implications. (Id. at p. 737.)

The Monterroso court reasoned that the detailed factfinding requirement, which was added to section 6305 in 1995 (Stats. 1995, ch. 246, § 2, p. 852), “ ‘helps ensure that a mutual order is the product of the careful evaluation of a thorough record and not simply the result of the moving party yielding to the other party’s importunities or the court deciding that a mutual order is an expedient response to joint claims of abuse.’ ” (Monterroso, supra, 135 Cal.App.4th at p. 737, quoting Conness v. Satram (2004) 122 Cal.App.4th 197, 204.)

We believe that the reasoning of Monterroso is sound and requires reversal of the mutual restraining orders against both parties. The language of section 6305 does not allow a court to issue a mutual order enjoining two parties from specific acts of abuse 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.” (§ 6305, subd. (a)(2).)

In this case, the trial court did not make the required findings of fact under section 6305 before it entered the mutual restraining orders against both parties.

Its “detailed findings of fact” consist of the following two sentences: (1) “[E]ach side has met their burden of proof that abuse has occurred at different times, including on the night of December 24th”; and (2) “In my estimation, one and not the other has been the dominant aggressor. [Sic.]”

Its finding that the parties “met their burden of proof” satisfied the general requirement of section 6300 that a protective order may issue upon “reasonable proof” to the court of “a past act or acts of abuse.” (§ 6300, subd. (a).) However, neither this statement nor the following statement—“In my estimation, one and not the other has been the dominant aggressor”—satisfied the separate, specific factfinding requirement of section 6305, which sets forth a jurisdictional prerequisite to the family court’s authority to enter a mutual restraining order. (Monterroso, supra, 135 Cal.App.4th at p. 737.)

In issuing the restraining orders against both parties without making the required findings of fact, the court acted in excess of its jurisdiction and rendered both of the orders voidable. (Monterroso, supra, 135 Cal.App.4th at pp. 737 739.) Even though the two mutual orders were issued on separate documents rather than a single document, as in Monterroso, neither order is supported by the required detailed factual findings. Both orders must therefore be reversed and the matter remanded to the trial court with directions to reconsider the evidence presented at the August 20, 2015 hearing, and determine whether the evidence supports detailed factual findings that “both parties acted as a primary aggressor and that neither party acted primarily in self defense.” (§ 6305, subd. (a)(2).)

III. DISPOSITION

The August 20, 2015, orders restraining Sharkh and Bird from engaging in specific acts of abuse described in Family Code section 6320 are reversed. The matter is remanded to the trial court with directions to reconsider the evidence presented at the August 20, 2015 hearing, and determine whether, based on that evidence, a mutual restraining order against both parties or a single restraining order against one party should issue. The parties shall bear their respective costs on appeal.

Premo, J.

WE CONCUR:

Greenwood, P. J.

Elia, J.

Bird v. Sharkh

H045119

Parties and Attorneys
Bird v. Sharkh
Case Number H045119
Party Attorney

Barbara Bird : Plaintiff and Respondent pro per
1332 Park Drive
Mountain View, CA 94040

Miriam Abu Sharkh : Defendant and Appellant pro per
520 Palm Avenue
Los Altos, CA 94022

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