Filed 8/27/18 Marriage of Martinez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re the Marriage of KELLY GEORGIA and JOSE MARIA MARTINEZ.

KELLY GEORGIA MARTINEZ,

Appellant,

v.

JOSE MARIA MARTINEZ,

Respondent.

G055766

(Super. Ct. No. 08D007826)

O P I N I O N

Appeal from orders of the Superior Court of Orange County, Donald F. Gaffney, Judge. Affirmed. Motion to dismiss appeal denied.

Kelly Georgia Martinez, in pro. per., for Appellant.

Treviño Law and Denise Treviño for Respondent.

* * *

The court issued a domestic violence restraining order (DVRO) against appellant Kelly Georgia Martinez (Kelly) and in favor of respondent Jose Maria Martinez (Jose) and the parties’ two children and ordered Kelly to attend a batterers’ intervention program. The court also denied Kelly’s request for a DVRO against Jose. Kelly appeals from all three orders on various grounds, none of which are well taken. We affirm the orders.

Jose filed a motion to dismiss the appeal under the disentitlement doctrine on the grounds Kelly has twice been arrested for violating the DVRO resulting in two pending criminal cases. He also claims she has engaged in several other violations.

We have “‘the inherent power to dismiss an appeal by any party who has refused to comply with trial court orders. [Citation.] The disentitlement doctrine is based on the equitable notion that a party to an action cannot seek the assistance of a court while the party “stands in an attitude of contempt to legal orders and processes of the courts of this state.”’” (In re E.M. (2012) 204 Cal.App.4th 467, 476-477.)

Jose correctly points out that a formal judgment of contempt is not a prerequisite for dismissing the appeal. (In re E.M., supra, 204 Cal.App.4th at p. 477.) Nevertheless, in cases where an appeal was dismissed without a formal contempt finding, often the misconduct was verifiable or such that the court had actual knowledge of it. For example, in TMS, Inc. v. Aihara (1999) 71 Cal.App.4th 377, 379-380, an appeal was dismissed based on the appellants’ violation of an order to answer postjudgment interrogatories.

In Stone v. Bach (1978) 80 Cal.App.3d 442, 448, the court dismissed an appeal based on the appellant’s refusal to comply with a pretrial order to deposit money into a trustee account and refusal to participate in a postjudgment debtor examination. Similarly, in Tobin v. Casaus (1954) 128 Cal.App.2d 588, 592, the court conditionally dismissed an appeal based on the appellant’s refusal to appear at a judgment debtor examination or surrender pursuant to an arrest warrant. In our case, without a conviction we have no way of verifying Kelly’s alleged criminal conduct. We exercise our discretion to deny the motion.

FACTS AND PROCEDURAL HISTORY

Kelly filed a petition for dissolution in August 2008. The action is still pending. The parties have two sons, now almost 17 and 15 and a half (children).

On September 19, 2017 Jose filed a request for a DVRO (Jose’s Request) against Kelly on behalf of himself, the children, and his mother, who lived with them. He claimed Kelly deliberately drove into his car when he and one of the sons were inside. He also alleged that three months earlier one son called to tell him Kelly was at their residence, banging on the door, wanting him to leave with her. The son did not want to go with Kelly. Police were called to the house and when Jose arrived they told him Kelly “appeared to be intoxicated” and could not drive.

The court issued a temporary restraining order (TRO) barring Kelly from harassing, threatening, contacting, or taking any action against Jose, the children, and Jose’s mother, requiring she stay at least 100 yards away from them. It also awarded legal and physical custody of the children to Jose and denied Kelly visitation.

In her response to Jose’s Request filed on October 5, Kelly did not deny Jose’s allegations or make any substantive claims.

On about the same date Kelly filed a request for a DVRO (Kelly’s Request). As explained in more detail below the court did not grant a TRO on Kelly’s Request but set the matter for hearing in late October. Kelly essentially claimed the reverse of what Jose had alleged, i.e., that Jose had driven into her car while one of the children was with him.

At the hearing on Jose’s Request, Jose explained in detail what had occurred. He had been driving on the freeway with one of the children and pulled off into a shopping center parking lot. Kelly had been following him and pulled in front of his vehicle at a 45 degree angle, blocking his way forward. When Jose attempted to go around Kelly’s car to leave the center, Kelly yelled something, stepped on the gas, and intentionally rammed into his vehicle. She left the scene of the incident.

Kelly testified she had followed Jose into the parking lot and parked to prevent him from moving forward. She stated Jose hit her car.

The court found Jose met his burden and showed Kelly had committed domestic violence and granted Jose’s Request for a DVRO for a period of five years, protecting Jose and the children. It granted Jose sole legal and physical custody and ordered Kelly would have no visitation. It also ordered Kelly attend a 52-week batterers’ intervention program.

Thereafter, Kelly filed a request for order to change custody, visitation, and Jose’s DVRO (Kelly’s Modification). She claimed it was in the children’s best interest because she had never been violent and was “a dedicated and loving mother.” She maintained one son needed to live with her to avoid failing in school. She also claimed it harmed the children’s future to be away from her. She further alleged she had “irrefutable evidence” to contradict the violence on which Jose’s DVRO was based. She again asserted Jose “was [the] aggressor and hit [her] vehicle.” She also sought to set aside the order she attend the batterers’ intervention program.

Jose’s response to Kelly’s Modification disputed Kelly’s version of the facts and repeated the facts he had offered in support of Jose’s Request.

After trial the court found Kelly had not proven domestic violence by a preponderance of the evidence and denied Kelly’s Request. It also denied Kelly’s Modification.

Additional facts are set out in the discussion.

DISCUSSION

1. Statement of Decision

Kelly claims the court erred in denying her request for a statement of decision pursuant to Family Code section 3022.3 (all further statutory references are to this code unless otherwise stated) and Code of Civil Procedure sections 632 and 634. She is incorrect.

Under Code of Civil Procedure section 632, on which section 3022.3 is based, in trials completed within one calendar day, as occurred here, a request for a statement of decision must be made before the matter is submitted for decision. Here, Kelly did not make such a request until after the court had already ruled on both Kelly’s Request and Kelly’s Modification. Thus, Kelly waived her right to a statement of decision and the court was not required to issue one. (In re Marriage of Gray (2002) 103 Cal.App.4th 974, 980.)

Kelly’s reliance on Code of Civil Procedure section 634 is misplaced. The statute provides that where a statement of decision fails to resolve a controverted issue or is ambiguous, and the defect was timely called to the court’s attention, we shall not infer “the trial court decided in favor of the prevailing party as to those facts or on that issue.” (Code Civ. Proc., § 634.) Kelly argues we cannot make such an inference because her request for a statement of decision was denied. But Code of Civil Procedure section 634 does not apply because no statement of decision was rendered or required.

2. Testimony of Children

At the hearing on Jose’s Request Jose asked the court to allow the children to testify and the court refused. Relying on section 3042 and California Rules of Court, rule 5.250 (rule 5.250), Kelly contends this was error. We are not persuaded.

Section 3042, subdivision (a) provides that if a child is old enough and has the capacity to “form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to” the child’s wishes when making a custody or visitation order. If a child is at least 14 years old and “wishes to address the court regarding custody or visitation, the child shall be permitted to do so,” unless the court finds it is not in the child’s best interest to do so. (§ 3042, subd. (c).) In that case the court shall state the reasons for the finding. (Ibid.) Rule 5.250, implements section 3042.

Section 3042 does not apply here. When Jose asked to call one of the children to testify, the court asked why it was in the child’s best interest. Jose’s counsel replied, “He’s willing to testify and he’s concerned about this situation and he was involved in the situation. He was in the passenger seat when all this occurred.” This offer of proof was as to the incident where Kelly hit Jose’s car. Nothing was said about the child testifying about his custody or visitation preferences, the subject of section 3042. On that basis the court found it was not in the child’s best interest “to subject him to these proceedings.”

We reject Kelly’s claim the court was required and failed to give a reason for disallowing the child’s testimony. Since section 3042 did not apply, the court had no duty to state a reason. Nevertheless, it did. Implied in the court’s ruling is its determination it was not in the child’s best interest to testify as a witness to the incident or become even more embroiled in this less than savory dispute between his parents.

Additionally, because section 3042 did not apply, the court had no duty to comply with the other procedures set out in rule 5.250 such as weighing the probative value of the testimony. Further, the fact the child could have testified in chambers, by video, or by other alternate means is irrelevant.

Finally, Kelly makes a vague due process claim, apparently complaining because her proffered evidence was rejected as under evidentiary rules. Requiring a party to follow the rules of evidence is not a due process violation. Kelly did not challenge the specific evidentiary rulings and thus forfeited any claim she might have had. (City of Crescent City v. Reddy (2017) 9 Cal.App.5th 458, 463-464.)

More importantly, Kelly was given ample opportunity to present admissible evidence. The court repeatedly directed her to present evidence to support her claim of domestic violence.

3. Denial of Kelly’s Request

Kelly contends the court erroneously denied Kelly’s Request on the basis she had not given proper notice. She further maintains the court erred by failing to hear her ex parte request for a temporary restraining order and by setting the hearing on Kelly’s Request 10 days after the hearing on Jose’s Request. We disagree.

According to the record, on October 5 Kelly filed an ex parte request for a temporary restraining order. Her declaration re notice of that request states she had not given notice to Jose “[e]xcept by mail to attorney on record – which I will mail or have served today, if allowable by court.” Apparently the ex parte hearing was trailed until October 6.

Kelly was required to give Jose or his lawyer at least four hours’ notice of the hearing, giving the date, time, and location of the court and explaining the relief she was seeking and Jose’s right to attend. (Super. Ct. Orange County, Local Rules, rule 704 A.1.) Kelly states in her brief telephone notice was given but there is no proof of service or other evidence in the record supporting that claim. Thus, we cannot consider that assertion. (State Comp. Ins. Fund v. WallDesign Inc. (2011) 199 Cal.App.4th 1525, 1528, fn. 1 [“‘[I]f it is not in the record, it did not happen’”].)

Kelly also claims she was told to bring a proof of service to file on October 6. She maintains she did so but was not allowed to file it. Again, none of this is in the record so we cannot consider it. Kelly cites to a purported proof of service showing she gave notice. But this document was never filed and is in the record only by virtue of being attached to her notice of appeal. It does not substantiate notice.

Kelly claims notice must have been given because Jose’s attorney was in the courtroom on October 6. As support, she cites to an invoice from Jose’s lawyer showing a hearing for that date. Yet again, this is in the record only as an attachment to the notice of appeal. We cannot consider it. In any event, the mere presence of Jose’s lawyer without more does not prove proper notice.

Also, Kelly could have raised these claims at the hearing on Kelly’s Request in order to make a record but she did not do so.

It is true there is a proof of service showing Kelly’s Request was hand delivered on the afternoon of October 6, but that was not sufficient notice for an ex parte hearing that day. This was service for the noticed hearing on Kelly’s Request.

Further, there is no evidence Kelly was prejudiced by failure of the court to issue a TRO despite her conclusory claim of prejudice. Nothing in the record suggests the court would have issued a TRO, especially in view of the fact Kelly’s Request was denied after the hearing. Kelly does not argue the court erroneously denied it on a substantive basis.

Kelly also complains the court should have set the hearing on Kelly’s Request on October 10, when the hearing on Jose’s Request was set. But this would have been insufficient notice. Pursuant to Code of Civil Procedure section 1005, subdivision (b) and California Rules of Court, rule 3.1300(a), at least 16 days’ notice of the hearing was required.

Kelly next asserts the court erred when it denied her written request for a continuance of the hearing on Kelly’s Request submitted four days before the hearing. She claims the continuance request was “immediately denied” when it was submitted to the courtroom clerk. However, on the date of the hearing on Kelly’s Request, Kelly requested a continuance for the same reason, unavailability of a witness, which the court granted.

Kelly asserts the failure to grant the continuance based on her written request caused inconvenience, undue hardship and “COSTS.” She also maintains the court’s failure to grant the request on the date the request was filed shows the judge has “unbridled disdain,” for her is biased, lacks impartiality, and ignores the Standards of Judicial Administration, standard 10.17(b)(1)(C)-(F) relating to access to justice.

Nothing in the record supports these claims. We do not know why the continuance was not granted on the date the written request was made. But “‘[e]very court has the inherent power, in furtherance of justice, to regulate the proceedings of a trial before it; to effect an orderly disposition of the issues presented; and to control the conduct of all persons in any manner connected therewith.’” (Schimmel v. Levin (2011) 195 Cal.App.4th 81, 87.) We see no evidence the court abused its discretion in any of its rulings. (Ibid.)

4. Evidentiary Claims

Kelly contends the court “prematurely” terminated her cross-examination of Jose, “prejudicially preventing her from completing her ideas in context of witness testimony,” and preventing “the witness from perjuring himself.” Kelly directs us to an exchange at the end of Jose’s testimony, where the court asked her if she had “a question about domestic violence in this hearing about domestic violence.” Kelly then asked Jose whether she had ever been violent toward their children. Jose responded, “It would depend on how you describe degrees of violence.” The court then stated, “Stop. You can return to counsel table. [¶] Under [Evidence Code section] 352 court is terminating that examination.”

Kelly failed to quote the remainder of the court’s statement: “Three witnesses have testified now and I have not heard word one about a single act of domestic violence committed by this particular respondent.” She also failed to mention that at least six times before it terminated Jose’s testimony, the court had directed her to ask questions about domestic violence. It specifically “warn[ed her], that under [section] 352 of the Evidence Code, I’m going to terminate this direct examination – – that’s an undue consumption of the court’s time – – if you don’t get to the issue at hand quickly.”

The court did not err. Evidence Code section 352, subdivision (a) gives the court the discretion to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . necessitate undue consumption of time.” Our review of the record shows that was the case here. The basis of Kelly’s Request was Jose allegedly hitting her with his car. There was no testimony elicited on this allegation. Jose testified Kelly had driven her car into his. Neither of Kelly’s other two witnesses, the security guard in the parking lot where the incident occurred and a responding police officer, testified about any acts by Jose to support Kelly’s Request

The court gave Kelly ample time and leeway in her examination. When she continued to ask questions that were not relevant to her claim, the court had right to suspend the examination. It did not abuse its discretion in terminating the testimony. (Austin B. v. Escondido Union School Dist., supra, 149 Cal.App.4th at p. 885.)

5. Miscellaneous Claims

In her reply brief Kelly argues Jose’s DVRO is not supported by sufficient evidence. This argument is procedurally flawed.

Kelly did not raise this in her opening brief. However, Jose argued in his brief issuance of the DVRO against Kelly was supported by substantial evidence. Thus, Kelly had the right to address it in her reply. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 723, pp. 790-791.) But to raise a substantial evidence question, an appellant must set out all material evidence related to the issue. She cannot state only those facts favorable to her position. (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.) Kelly did not set out all material evidence. On that basis her argument is forfeited. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)

In her reply brief Kelly also asks that we take judicial notice of two pending criminal charges against her. But a request for judicial notice on appeal must be made by a separate motion. (Cal. Rules of Court, rule 8.252.) We deny the request on that basis.

In her reply brief Kelly also asks us to take judicial notice of section 3044. Judicial notice of a statute is not required. This statute sets out a presumption against someone who has perpetrated domestic violence that an award of custody would be detrimental to a child’s best interest. Kelly’s argument is unclear but this section does not apply to the issues before us.

Kelly has scattered miscellaneous arguments throughout her briefs. Any argument not within a discrete section with a heading and supported by authority and reasoned legal argument is forfeited. (Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1294 [“we do not consider all of the loose and disparate arguments that are not clearly set out in a heading and supported by reasoned legal argument”]; Cal. Rules of Court, rule 8.204(a)(1)(B) [each point must be separately headed and supported by argument and authority if available].)

DISPOSITION

The orders are affirmed. Jose is entitled to costs on appeal. The motion to dismiss the appeal is denied

THOMPSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.