Filed 4/28/20 Madley v. Greenfield CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

SIX ALEXANDER MADLEY,

Appellant,

v.

SARAH NASIA GREENFIELD,

Respondent.

A158008

(Humboldt County

Super. Ct. No. FL190243)

Appellant Six Alexander Madley (Father) appeals an order denying his request for a domestic violence restraining order (DVRO) against Sarah Nasia Greenfield (Mother), the mother of his child (Daughter). He contends the trial court failed to act on his application in a timely manner, failed to provide an adequate statement of reasons for denying it, and improperly denied him a hearing, causing him prejudice in a related child custody matter. We shall affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

As an initial matter, we note that Father’s opening brief is replete with factual assertions unsupported by references to the record; in particular, he includes almost no references to the clerk’s transcript. “[I]t is counsel’s duty to point out portions of the record that support the position taken on appeal. The appellate court is not required to search the record on its own seeking error. . . . [A]ny point that lacks citation may, in this court’s discretion, be deemed waived.” (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) We have nevertheless exercised our discretion to review the full record and consider Father’s contentions on the merits; however, to the extent we omit any factual matters as to which Father has not provided references to appropriate portions of the appellate record, we treat those points as forfeited.

Father filed a petition for child custody and child support on April 5, 2019. On the same date, he filed a request for a DVRO against Mother, alleging, inter alia, that Mother had threatened to have him killed; the request also expressed concerns about matters related to Mother’s drug use and visitation with Daughter. Father does not draw our attention to any portion of the record that reflects a ruling on this request.

In turn, Mother filed a request for a DVRO on May 29, 2019, alleging that, after an argument in January 2019, Father kicked her in the thigh hard enough that she could not walk for ten days and was bruised for 25 days. The request included photographs of bruising.

Father filed another request for a DVRO on June 5, 2019, alleging that Mother had tested positive for drugs; that she had failed to take other drug tests; that she stole $30,000 from him when she moved out of the family home; and that on May 22, 2019 she broke into Father’s truck, stole tools, and assaulted Father, grabbing him by the throat, choking him, and ripping his shirt off. The request included a declaration by a witness to the alleged attack.

On June 12, 2019, the court filed a “Notice of Court Hearing” on Father’s request for a restraining order against Mother, with a hearing date of June 20, 2019 at 8:30 a.m. The notice indicated Father’s request for a DRVO was denied until the court hearing; in the area of the notice for a reason for the denial, the court wrote “See you on 6/20.” Father later filed a supplement to his request, which included a letter from the director of a local women’s shelter stating Mother had told her the bruising on her leg was the result of a car accident.

Mother was not present at the June 20, 2019 hearing. Her counsel told the court she had believed, and told Mother, that Mother did not need to be present, and expressed her view that the hearing was not intended to be evidentiary. Father’s counsel said he believed it was an evidentiary hearing. The court noted the dueling requests for DVRO’s and the difficulty that law enforcement would face if both Father and Mother had restraining orders against each other. It told Father’s counsel it had denied his request pending the June 20 hearing because the court date had already been set, at which everything would be “figure[d] out.” In light of Mother’s absence, the court indicated the matter would be continued until 8:30 the following day. Father’s counsel said that the women’s shelter director was available to testify immediately, and the court heard her testimony at the June 20 hearing.

At the continued hearing the following day, the court indicated it was “on the 5/29/19 DV,” which is to say Mother’s application. Both Mother and Father testified, after which the trial court explained its reasons for not crediting the testimony of the women’s shelter director. The court granted Mother a three-year restraining order, directed Father to begin a batterer’s program, and continued Daughter in Father’s custody in the home.

Father’s counsel then noted that Father had also made a request for a DVRO based on the affidavit by the witness who saw Mother attack Father, and he argued Father was also entitled to a DVRO. The trial court replied, “Well, I don’t know why we want to complicate this further. Let’s do that. I’ll give you five minutes to call that [witness] up and testify.” Father’s counsel told the court that he had not thought his request for a restraining order would be considered that day, and he said the witness was not present. The court replied that the previous day—June 20—had been the date set for Father’s request, and said that if Father had additional evidence, he should have presented it then.

The trial court denied Father’s request for a DVRO without prejudice. (RT 100)~ It also confirmed with Mother that she had no reason to go to Father’s home, and stated that it would make a non-domestic violence family law order that Mother was not allowed to go back to the property. “Findings and Orders After Hearing” provided that Mother must stay at least 100 yards from Father’s home.

DISCUSSION

Father’s first contention on appeal is that the trial court was required to rule on his request for a temporary restraining order by the day after it was submitted, at the latest (Code Civ. Proc., § 527.6, subd. (e)), and that it failed to do so. The record contains no indication of any ruling on his DVRO request until the June 12, 2019 “Notice of Court Hearing,” which indicated the request was denied until the hearing.

In considering this contention, we are mindful that we reverse a judgment or order only if any error was prejudicial—for instance, if it amounted to the denial of a fair hearing—and that the burden to show prejudice rests on the appellant. (Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 527–528; Code Civ. Proc., § 475.) Father has not shown he was prejudiced by any failure of the trial court to rule on his request in a timely manner, and there is no basis to reverse the order on this ground.

We likewise reject Father’s contention that we should reverse because Family Code sections 6320.5 and 6340, subdivision (b) required the trial court to provide a statement of its reasons for denying his request for a DVRO, and the notation on the June 12, 2019 notice—“See you on 6/20”—was insufficient. Although it appears that here, too, the court failed to satisfy applicable statutory requirements, Father has not met his burden to show he suffered prejudice thereby.

Father also contends he was denied a hearing on his request for a DVRO. For support, he points to a statement the trial court made to Father’s counsel at the June 20 hearing that, “I denied the one motion. That’s not even on today. That was denied. I’m going to continue to deny that of your client.” In light of the multiple requests that had been made over the course of the proceedings, the meaning of this colloquy is not entirely clear; and the court’s comments the following day suggest that it understood that Father’s request had been set for June 20. In any event, ambiguity on this point does not persuade us that Father was denied a fair hearing. The June 12, 2019 notice indicates unambiguously that Father’s request would be heard on June 20; the court allowed him to call a witness on that date; and at the continued hearing the following day, the court told Father he could call a second witness to support his request. There is no reason to think it would not have allowed him to present further evidence if it had been available. Moreover, the court stated its denial of Father’s request for a DVRO was without prejudice, making clear he could bring the matter before the court again if he thought it necessary. Father has not shown he was denied a fair hearing on his request.

DISPOSITION

The order is affirmed.

 

_________________________

TUCHER, J.

WE CONCUR:

_________________________

STREETER, Acting P. J.

_________________________

BROWN, J.

Madley v. Greenfield (A158008)