Filed 11/19/19 Marriage of Villalobos 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re the Marriage of PAUL VILLALOBOS and DARLENE VILLALOBOS.

PAUL VILLALOBOS,

Appellant,

v.

DARLENE VILLALOBOS,

Respondent.

F078477

(Super. Ct. No. 17CEFL01127)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Cindy J. Hopper, Commissioner.

Paul Villalobos, in pro. per., for Appellant.

No appearance for Respondent.

-ooOoo-

BACKGROUND

On August 31, 2017, Paul Villalobos (Paul) filed a request for a restraining order under the Domestic Violence Prevention Act (DVPA), Family Code section 6200 et seq., against his wife and cohabitant Darlene Villalobos (Darlene). Paul alleged Darlene abused him on several occasions. He detailed:

“Darlene asked me why didn’t I sell the house. I ignored her[.] [S]he then came in the living [room] with a taser and started making sparks come out of it[.] I told her she needs to stop doing that. [¶] . . . [¶]

“When I was in our room[,] Darlene came in th[ere] and said that she was going to have her dad kick my ass because I asked her son to help me with the rent[.] I told her I was sorry. [¶] . . . [¶]

“Darlene has made threats to put holes in the wall and burn the house down. She has vo[o]do[o] cards and burn[s] candles with eggs in it and put[s] crosses around the house. I am in fear of my life because she also had her son come to the house and kick the door in. She is taking my personal property out of the house because I filed for divor[ce]. She also has told me I a[i]n[’]t going to live to[o] long.” (Some capitalization omitted.)

The superior court issued a temporary restraining order and set the matter for a hearing on the merits of Paul’s request.

At the November 1, 2018 hearing, Paul appeared in pro. per. while Darlene was accompanied by her attorney Glenn Wilson. Darlene was examined and cross-examined on the witness stand. Paul and Wilson each gave a summation, the former having “[the] last word to the court.” In a minute order issued the same day, the court ruled:

“After speaking to the parties, the Court finds that [Paul] has not met his burden of proof and . . . denies his request to issue the restraining order. Temporary restraining order is terminated. . . . [¶] . . . [¶]

“As to [the] request for [a]ttorney [f]ees for the restraining order hearing made by [a]ttorney Wilson, [C]ourt allows . . . Wilson to speak and [Paul] objects to the attorney fee request. Pursuant to . . . [s]ection 6344[, subdivision] (b)[,] [C]ourt grants attorney fees . . . [and] orders the following: [Paul] shall pay the amount of $2,500.00 payable directly to [a]ttorney Wilson’s office. The fees are payable at a rate of $200.00 per month commencing 12/1/18 and payable on the first of each month and thereafter until paid in full. If any payment is more than 10 days late the entire unpaid principal amount becomes due and payable immediately and will accrue interest at the legal rate.”

The minute order “d[id] not provide for or require that a written order be prepared for entry. It is therefore appealable even though it is not a formal, signed order.” (Walton v. Mueller (2009) 180 Cal.App.4th 161, 167; accord, In re Marriage of Dupre (2005) 127 Cal.App.4th 1517, 1523.)

DISCUSSION

On appeal, Paul contends the court should have granted his request for a domestic violence restraining order and denied Darlene’s request for section 6344 attorney fees. Darlene did not file a respondent’s brief. “[W]e do not treat the failure to file a respondent’s brief as a ‘default’ (i.e., an admission of error) but examine the record, appellant’s brief, and any oral argument by appellant to see if it supports any claims of error made by the appellant.” (In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1, italics omitted.)

I. Denial of Paul’s request for a domestic violence restraining order
II.
DVPA’s purpose “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. (§ 6220.) “ ‘Domestic violence’ ” is defined as abuse perpetrated against a spouse or cohabitant, inter alios. (§ 6211, subds. (a)-(b).) “Abuse” is defined as “either an intentional or reckless act that causes or attempts to cause bodily injury; an act of sexual assault; an act that places a person in reasonable apprehension of imminent serious bodily injury to himself or herself or to another; and an act that involves any behavior that has been or may be enjoined under section 6320.[ ]” (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334, citing § 6203, subd. (a); see § 6203, subd. (b) [“Abuse is not limited to the actual infliction of physical injury or assault.”].) DVPA “provides for the issuance of restraining or ‘protective’ orders, either ex parte or after hearing, that enjoin . . . acts of abuse.” (Nakamura v. Parker, supra, at p. 334; see §§ 6320 et seq., 6340 et seq.)

In determining whether to issue a protective order in the first instance following notice and a hearing, the court must consider whether the failure to do so may jeopardize the safety of the petitioner. (§ 6340, subd. (a)(1); In re B.S. (2009) 172 Cal.App.4th 183, 194; cf. Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1290 [“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.” (italics added)].) “The court shall, upon denying a petition . . . , provide a brief statement of the reasons for the decision in writing or on the record. A decision stating ‘denied’ is insufficient.” (§ 6340, subd. (b).) Normally, the court’s issuance of or denial to issue a protective order under the DVPA is reviewed for abuse of discretion (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1143) and the factual findings necessary to support the ruling are reviewed under the substantial evidence test (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822). However, in the instant case, Paul elected to proceed without the reporter’s transcript of the November 1, 2018 hearing. “It is the burden of the [appellant] to provide an adequate record to assess error.” (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.) Because Paul chose not to provide the reporter’s transcript, “we must treat this as an appeal ‘on the judgment roll.’ [Citations.]” (Ibid.) “[W]e ‘ “must conclusively presume that the evidence is ample to sustain the [trial court’s] findings.” ’ [Citation.] Our review is limited to determining whether any error ‘appears on the face of the record.’ [Citations.]” (Id. at pp. 324-325.)

Paul argues his request for a restraining order should have been granted because “Darlene[’s] repeated intrusive and harassing behavior constituted disturbing the peace under the DVPA,” but the court “impos[ed] additional requirements beyond those required under the DVPA” and “elevat[ed] the evidentiary showing necessary to obtain a domestic violence protection order.” The record shows Darlene testified at the hearing, and Paul and Wilson (Darlene’s attorney) each made a closing argument. Without the reporter’s transcript at our disposal, it is impossible for us to determine what had been articulated. Based on the minute order, the court did not summarily deny Paul’s request. Rather, the court elaborated that Paul failed to establish his case by a preponderance of the evidence. (See In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220, 226; Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137; see also Evid. Code, § 115 [“Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.”].) We conclusively presume Darlene’s testimony sufficiently demonstrated Paul’s safety would not be jeopardized absent a protective order. (See Rubin v. Los Angeles Fed. Sav. & Loan Assn. (1984) 159 Cal.App.3d 292, 296 [“ ‘Since it is impossible to determine from the clerk’s transcript what evidence the trial court heard and considered, this court must assume there was substantial evidence to support the order.’ ”]; see also Sabbah v. Sabbah, supra, 151 Cal.App.4th at p. 823 [“The testimony of a single witness may provide sufficient evidence.”].) Therefore, we uphold the court’s denial of Paul’s request for a domestic violence restraining order.

III. Award of section 6344 attorney fees
IV.
“After notice and a hearing, the court may issue an order for the payment of attorney’s fees and costs of the prevailing party.” (§ 6344, subd. (a).)

Paul argues Darlene’s award of attorney fees was improper because the court “failed to consider the respective incomes and needs of the parties” as required by section 270. The record shows, at the hearing, after denying Paul’s request for a domestic violence restraining order, the court considered Darlene’s request for attorney fees. Wilson spoke, and Paul voiced his objections. Thereafter, the court awarded attorney fees in the amount of $2,500, to be paid by Paul in fixed monthly installments. Again, without the reporter’s transcript at our disposal, it is impossible for us to determine the court’s rationale for the award. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; Rhule v. WaveFront Technology, Inc. (2017) 8 Cal.App.5th 1223, 1228-1229.) “It is the burden of the party challenging the fee award on appeal to provide an adequate record to assess error.” (Maria P. v. Riles, supra, at p. 1295.) Because Paul “failed to furnish an adequate record of the attorney fee proceedings, [his] claim must be resolved against [hi]m.” (Id. at p. 1296.) Therefore, we uphold the court’s award of section 6344 attorney fees.

DISPOSITION

The November 1, 2018 order is affirmed. Costs on appeal are awarded to respondent Darlene Villalobos.