Filed 12/31/19 Hoang v. Esplana CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

MARLI C. HOANG,

Plaintiff and Respondent,

v.

REX C. ESPLANA,

Defendant and Appellant.

A156080

(Alameda County

Super. Ct. No. HF18921184)

MEMORANDUM OPINION

After denying respondent Marli C. Hoang’s application for a temporary Domestic Violence Restraining Order (DVRO)—on the ground she had not provided “evidence” that appellant Rex C. Esplana, whom she once dated, had harassed her and set fire to her car as she alleged in her application—the trial court set the matter for an evidentiary hearing.

At the outset of the hearing, both parties were sworn and the court explained to Esplana that he had three choices as to how they may proceed—he could have a three-week continuance to prepare and file a written response to Hoang’s application, he could proceed forthwith with the evidentiary hearing and the court would rule on the application that day, or he could accede to the issuance of the requested DVRO. Esplana stated he was opposing the application and wanted to proceed with the hearing.

Hoang then proceeded to testify and averred that the allegations in her application were true and correct. She also showed the court a screen shot of a text Esplana had sent to her mother asking to be “reimbursed” for the two months he had dated Hoang. According to Hoang, her mother ignored the text and thereafter Hoang’s car was vandalized and set on fire. She also showed the court a video of the car being set afire in the middle of the night. While she did not see Esplana, she believed one of the individuals she saw might have been a friend of his. She also showed the court a video of Esplana walking in front of her home several days later taking a video of “the burnt ground.”

Esplana testified he was at work the night of the fire, and had nothing to do with it. As for the videos in which he appeared, he claimed he was “work[ing] out” or “jogging,” whereupon the court commented, “That’s not what the pictures showed.”

After the court clarified that Hoang’s claim was not that Esplana, himself, had set the car on fire, but that he had arranged for the torching, Esplana stated he had no explanation for the coincidental timing of his text to and rebuff by Hoang’s mother, and the vandalism of the car. He also denied being angry that Hoang had broken off their relationship. In response to the court’s probing on this point and its comment that it had never heard of a claim for “reimbursement” following a break up, Esplana asserted he had demanded reimbursement from Hoang’s mother because Hoang had told him her parents would reimburse him for all he had spent on her.

After the parties stated they had nothing further, the court ruled from the bench in favor of Hoang and issued a three-year DVRO. The court also required Esplana to turn in any firearms and attend an anger management class.

Nine days later, now represented by counsel, Esplana filed a motion pursuant to Code of Civil Procedure section 1008, subdivision (a), to set aside and reconsider the DVRO. Esplana claimed as “Newly Discovered Facts,” 80 pages of attached documents consisting of text messages, “Uber driving maps and statements showing he was not near her car” at the time of the fire, and personal financial statements “showing no suspicious or odd financial transactions . . . within three months” of the fire. Esplana asserted the text messages undermined Hoang’s credibility and showed she, herself, was prone to threatening behavior and used drugs. Esplana also submitted a two and a half page declaration disputing Hoang’s accusations and stating he was working hard to put himself through college and had aspirations of becoming a peace officer.

After hearing from counsel, the trial court denied the motion to vacate and reconsider the DVRO.

We first address Esplana’s claim that the trial court abused its discretion in denying his motion for reconsideration. (See Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 255 [denial of reconsideration and new trial motions based on new evidence are reviewed for abuse of discretion].) It did not. To begin with, Esplana waived any right to submit the documents accompanying his motion, as he expressly chose not to continue the evidentiary hearing for the purpose of preparing and submitting a written response and, instead, elected to proceed immediately with the evidentiary hearing. (See Reilly v. Inquest Technology, Inc. (2013) 218 Cal.App.4th 536, 552 [an appellant “ ‘ “may waive his right to attack error by expressly or impliedly agreeing at trial to the ruling or procedure objected to on appeal” ’ ” (italics omitted)].) Furthermore, none of the material Esplana submitted in support of his reconsideration motion constituted “new evidence” for purposes of Code of Civil Procedure section 1008. On the contrary, all of the information in the proffered materials existed at the time of the evidentiary hearing and Esplana was aware that it existed. (See In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468 [“facts of which the party seeking reconsideration was aware at the time of the original ruling are not ‘new or different’ ”].) In addition, Esplana provided no “satisfactory explanation” in his reconsideration motion “for failing to offer the evidence in the first instance.” (Ibid.)

Turning to the trial court’s issuance of the DVRO, we review an order granting a protective order for abuse of discretion. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495 (Nadkarni).) “In considering the evidence supporting such an order, ‘the reviewing court must apply the “substantial evidence standard of review,” meaning “ ‘whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted,’ supporting the trial court’s finding. [Citation.] ‘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.” ’ ” (In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1424.)

The purpose of the Domestic Violence Prevention Act (DVPA, Fam. Code, § 6200 et seq.) is “to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence.” (Fam. Code, § 6220.) Under the DVPA, the trial court is authorized to issue an order “to restrain any person for the purpose specified in Section 6220, if [evidence] . . . shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” (Id., § 6300, subd. (a).) “ ‘[A]buse’ ” includes “any behavior that has been or could be enjoined pursuant to Section 6320” (id., § 6203, subd. (a)(4)), and “is not limited to the actual infliction of physical injury or assault.” (Id., § 6203, subd. (b).) Family Code section 6320 by its terms authorizes the court to issue an order enjoining various types of conduct, including “harassing, telephoning . . . or disturbing the peace of the other party.” (Id., § 6320, subd. (a).) “ ‘[D]isturbing the peace of the other party’ ” in this context has been interpreted to mean “conduct that destroys the mental or emotional calm of the other party.” (Nadkarni, supra, 173 Cal.App.4th at p. 1497.)

Here, the trial court credited Hoang’s testimony and disbelieved Esplana’s, particularly his denial that he was angry over the break up with Hoang, his claim that Hoang told him her parents would “reimburse” him for their dating costs and gifts he gave her, and his claim that he was in front of Hoang’s house taking a video of the area where the car burned because he was working out or jogging. In short, there was a sufficient basis for the court to conclude that Esplana engaged in conduct that was “harassing” or that “disturbed the peace of the other party.” Given the court’s credibility determinations, there was also sufficient basis to conclude the timing of Esplana’s text to Hoang’s mother and her refusal to respond, and the torching of the car at night, was not a coincidence and that Esplana was directly or indirectly responsible for conduct that destroyed the emotional calm of the other party.

DISPOSITION

The DVRO and the order denying reconsideration are AFFIRMED.

 

_________________________

Banke, J.

We concur:

_________________________

Humes, P.J.

_________________________

Sanchez, J.

A156080, Hoang v. Esplana