Epifanio Cervantes Mendoza v. Darlene Gasca
Case No: 18FL02897
Hearing Date: Tue Aug 06, 2019 10:30

Nature of Proceedings: Evidentiary Hearing DVRO

Evidentiary hearing on Petitioner’s [“Epifanio”] Req. for DVRO against Respondent [“Darlene”]

Elizabeth Diaz, Attorney for Epifanio

Jay Valentine, Attorney for Darlene

Ruling: The Court has put vastly too much time into this case for there to have been no resolution; do NOT ask for a continuance again; I am now very familiar with what everyone has said because I have read it all several times; the case will go forward sometime on Tuesday; I have a heavy calendar. The Declarations of the parties will go into evidence subject to cross examination. The Declaration filed in this case of anyone other than the parties will go into evidence only if that party is present and subjected to cross examination.

Analysis:

On 12/18/18 the case was on the Commissioner’s Calendar; there was an objection to the Commissioner hearing it; the case was assigned to this Department; Counsel’s request for the Commissioner to make temporary visitation orders was denied, as the objection was already made.

Temporary/existing orders shall remain in full force and effect pending a hearing on the merits. It was set for Department #3 for 1/15/19.

On 1/15 the case was on this Court’s calendar and the Court said: I have read everything; but will not make any change in the present outstanding orders until after mediation. Mediation is now set for 1/22/19 at 8:30. The file reflects that the present and current orders obtained by Epifanio against Darlene, were made on 11/30/18; they included: personal conduct orders; 100 yard stay-away orders from him and the child; Darlene ordered to move out from 1432 San Pascual St., Unit 66, Santa Barbara, CA 93101; property control of the 2106 White Nissan Ultima; property restraint; child custody and visitation — “no visitation.” The Court will continue this hearing to 2/5/19 with all present orders to remain in place. CMCSs are invited to bring the Court up to date and to be filed about 1 week in advance of the hearing. You may include any information or declarations that you believe might be helpful.

Background

At the 1/15 hearing this Court reviewed the background of the case and said:

Epifanio filed this Request for a DVRO on 11/27/18; on 11/30 the Commissioner granted a TDVRO that was set to expire on 12/18/18 when the hearing was set; on that day the Commissioner sent the matter to Department 3; counsel requested the Court to make temporary visitation orders; but the temporary/existing orders were to remain in full force and effect pending a hearing on the merits.

Response by Darlene. Filed 12/2/18; she does not agree with anything Epifanio requests; instead she wants sole physical custody of Samantha Mae Cervantes who is four years old; Epifanio can see her, but they need a regular schedule that is appropriate; Darlene testifies that they met in 2011; started dating off and on thru 2012; stopped seeing each other for about seven months; he contacted her; he asked her to marry him; there is an age difference issue and there’s also a language barrier; she accepted his proposal; 2013 married; at the beginning relationship seemed to work; after marriage he had her filing tons of paper work thru the courts and providing certain documentations; it was eventually brought to her attention that he had married her only for papers to make him a resident here and he was born in Mexico; she moved forward; he started changing towards her after daughter was born in 2014; completely devoted her life and time to daughter.

Darlene testified that in 2015 she went back to work at Smart and Final; currently still employed going on three years; stable job and income providing financially; am a manager there; during the time she was a stay-at-home mom problems seemed to arise more frequently; but Epifanio was never interested or involved in the care of their daughter; throughout the past years he’s been verbally abusive; has escalated extremely, leaving visible large bruises and scratches on her body and face; he has stolen her rent money; she has come to the conclusion that he has a drug addiction and this has put a damper on their relationship; he also has a gambling addiction; also a language barrier between daughter and her father; he has never tried to take English classes or try to bond with daughter; makes it very difficult for them to communicate and to establish a healthy relationship; he has been threatening her constantly; yelling in their home; landlord has become aware and concerned about her and daughter’s wellbeing and safety.

Darlene testifies that the most recent episode they got into an altercation, daughter wasn’t present; does not want to raise daughter in a dysfunctional relationship and expose her to this life style; she is requesting physical and sole custody of daughter for her safety reasons; filing for divorce; requesting orders for him to take anger management classes and to get drug tested once they have established a safe and healthy visiting routine for daughter; she fears for daughter’s safety and well-being; husband’s nephews or brothers never had a healthy relationship with daughter nor her; a grown man should not be taking care of a four year old; it is not appropriate; he does drugs and also drinks.

A mediation appointment was scheduled with Family Custody Services on 2/19/19.

Reply. Epifanio filed his reply on 12/28/18; testifies that he requests that the Court grant him a domestic violence restraining order for three years because Darlene has been verbally and physically abusive towards him and their daughter, and a protection order is required to protect Epifanio and his daughter from further abuse; argues that Darlene in her Response does not deny she was abusive to Epifanio, but alleges that Epifanio has been abusive towards her; her accusations are vague and general and she does not set forth any evidence to support her claims; Epifanio denies Darlene’s claim of abuse; there have been occasions where Epifanio has defended himself against Darlene and he has had to push her away, but he has never abused her as she alleges in her Response; Epifanio maintains that he has been the victim of abuse by Darlene, supported by his testimony in his declaration attached to his request for domestic violence restraining order, and Darlene’s arrest for misdemeanor 273.5(a) Penal Code [Inflict Corporal Injury On a Spouse/ Cohabitant, SBSC No. 18CR114428]; Darlene bit him on the lip; he took a picture of the injury to his lip; picture is attached as Exhibit “A” to his declaration; Exhibit “B” is a picture that Epifanio took of the fan that Darlene broke over his head.

Epifanio testifies that Darlene’s excessive alcohol use is a problem and has been a major factor in her abusive behavior towards him; he claims that Darlene’s excessive alcohol intake and being drunk was when she has physically assaulted him; she does not deny her excessive alcohol use; instead alleges that Epifanio has a “drug addiction” without setting forth any evidence to support her allegations; Epifanio denies this claim.

Epifanjo requests this Court find that domestic violence has been committed against him by Darlene based on his sworn testimony, and reject Darlene’s claims of abuse based on lack of evidence; claims it is in Samantha’s best interest that Epifanio have sole legal and physical custody of Samantha based on the finding that domestic Violence was committed by Darlene against Epifanio; with the finding of domestic Violence in this case, the presumption arises that awarding joint physical or legal custody of the child to the parent who perpetrated domestic violence is detrimental to the best interest of the child.

Epifanio requests supervised visitation for Darlene until the parties are able to attend mediation that is set for February 19, 2019, at 1:30 p.m.

Specifically, his Proposed Visitation Schedule Pending Mediation is:

1. That Darlene have supervised visitation with Samantha as follows:

a. Every Monday from 9:30 am to 11:30 am.

b. The supervisor shall be Celia Gonzalez Auchstetter, or any other professional supervisor mutually agreed upon by the parties. The parties shall each be responsible for one-half of the supervisor’s fees and costs.

c. As to the location for the visitations, the parties and the supervisor shall discuss and agree upon a location.

2. Darlene shall not drink alcohol 12 hours prior to and during visitation.

3. Darlene shall not use corporal punishment (spank or hit) to discipline Samantha.

Declaration of Rafaela Mendoza de Cervantes in support of Epifanio’s Response

She is Epifanio’s mother; lived with Epifanio for approximately seven years; lived with Darlene too when she moved in and married Epifanio; they all lived together from 2010 to 2017; has helped take care of the granddaughter from her birth until she was three years old; left the parties’ home for a couple of months and returned to live with them from January 2018 to March 2018; currently living with Epifanio and Samantha; helping Epifanio take care of Samantha when he is at work, and Samantha is not in school; she has been present when Darlene has been drunk while trying to care for Samantha; Darlene would arrive home after 11pm intoxicated; she would stay in the home for a little while and then she would go out; would not return until 5am the next morning, still drunk; she did this almost every night.

She testifies that she witnessed her arguing and fighting with Epifanio; on one occasion, she witnessed Darlene pick up a kitchen knife and act like she was going to stab Epifanio; Samantha was in the kitchen and followed Darlene; told Darlene she was going to cut Samantha with the knife and to put the knife away; she thought that Darlene was going to kill all of them; another incident occurred earlier this year (2018) when Darlene was on the phone; Samantha was asking Darlene to make her a quesadilla; Darlene didn’t pay any attention to her; she suddenly slapped Samantha on both sides of her face; Samantha started to cry; there were many nights that she was not able to sleep when Darlene was drunk; was scary; was afraid of her; on March 20, 2018, finally had enough of Darlene’s behavior and abruptly left; asked Epifanio to take her to daughter’s home in Merced, California; could not stay in his home any longer.

The Court said and noted as follows: Epifanio’s requests that the Court grant him a three-year domestic violence restraining order with sole legal and physical custody to him, and the visitation schedule he proposes above for Darlene pending mediation. A follow-up hearing date should be scheduled by the Court after the parties have attended mediation in case the parties do not reach an agreement. But the Court prefers not to modify the present orders [whatever they are, assuming they have been modified by the parties] until after mediation; want to give that every chance.

The Court set the next trial date for 4/23.

On 4/23 the matter was set for an Evidentiary Hearing to 5/21/19. All Temporary Orders Remain in Full Force and Effect pending the next court hearing.

On 5/21 this Court had the lawyers for both sides in the courtroom and ruled that: The Court granted the Petitioner’s request for judicial notice; to wit: 18CR11428 People v Darlene Gasca; set a firm trial time estimate of one hour; father’s witness list (will rely on declarations filed); case is continued to August 6, 2019, at 10:30 am for trial with all terms and conditions of the present restraining order to remain in full force and effect pending trial; will try the case between 10:30 am and noon on 8/6; Mr. Valentine has signed the mediation agreement.

On 8/1 Elizabeth Diaz, attorney for Petitioner, filed a Status Report; reports that:

Petitioner filed a request for domestic violence restraining order (DVRO) on November 27, 2018. The Court granted temporary restraining orders on 11/30/2018; matter has been continued a number of times, and is currently on calendar for 8/6/2019 for an evidentiary hearing with a time estimate of one hour; Petitioner plans to submit on the pleadings that he has filed; he and his mother, Rafaela Mendoza de Cervantes, will be present at the evidentiary hearing, and will be available for cross-examination; Petitioner requests the DVRO be granted for three years, that he be granted sole legal and physical custody of the child, Samantha Cervantes (dob: 11/29/2014), and that the mediation agreement filed on May 21, 2019, be made part of the Restraining Order After Hearing (ROAH).

The Court’s Conclusions

This case needs to be resolved; do not continue it again.