Filed 10/7/20 Baker v. Baker CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

ALEXANDER COLLIN BAKER,

Plaintiff and Appellant,

v.

CLARA VESELIZA BAKER,

Defendant and Respondent.

B302607

(Los Angeles County

Super. Ct. No. LD068701)

APPEAL from an order of the Superior Court of Los Angeles County. Emily T. Spear, Judge. Affirmed.

Alexander Collin Baker, in pro. per., for Plaintiff and Appellant.

Kelly & Kelly and Michael A. DiNardo; Yanny & Smith, Joseph A. Yanny and Andrea X. Ales for Defendant and Respondent.

Alexander Collin Baker (Alex) appeals from an order denying his petition for a Domestic Violence Restraining Order (DVRO) against respondent Clara Veseliza Baker (Clara). Alex contends that the trial court erred as a matter of law in denying his petition. He characterizes the trial court’s decision as a blanket ruling that impersonation can never constitute domestic violence and that financial harm alone is insufficient to constitute domestic violence as a matter of law. Clara, on the other hand, characterizes the trial court’s decision as a discretionary determination that the evidence presented by Alex was insufficient to warrant a DVRO in this case. After reviewing the record, including the transcript of the hearing below, we agree with Clara’s view of the trial court’s decision. We find that the trial court did not abuse its discretion in determining that a DVRO was not warranted under the facts alleged by Alex.

As to Alex’s claims of erroneous exclusion of evidence, denial of due process rights, and judicial bias, we find no error. Therefore, we affirm the trial court’s ruling in full.

COMBINED FACTS AND PROCEDURAL HISTORY

Litigation between the parties

Alex and Clara were previously married. Together they had two children. The parties separated in 2015. Clara filed a petition for DVRO against Alex in October 2016, seeking a stay-away order as well as an order prohibiting Alex from disseminating private information concerning Clara. An attachment listed three other pending lawsuits between Clara and Alex. Clara alleged that Alex harassed her daily with multiple threatening emails and texts. Clara’s request for DVRO was granted and affirmed on appeal.

On June 7, 2018, upon request from Clara, Alex was declared a vexatious litigant pursuant to Civil Code section 391, subdivision (b)(1). The trial court found that Alex “repeatedly filed unmeritorious motions, pleadings, and other papers, and engages in tactics that are frivolous and solely intended to cause unnecessary delay.” Accordingly, Alex was prohibited from filing any new litigation in the courts of this state in pro. per. without first obtaining leave of the presiding justice or the presiding judge of the court where the litigation is proposed to be filed.

Alex’s request for DVRO against Clara

On May 22, 2019, by and through his former attorney, Alex filed a DV-100 request for DVRO. Attached to Alex’s declaration were copies of documents such as allegedly forged checks evidencing what Alex referred to as a scheme on the part of Clara to impersonate him. Alex also attached the declarations of two handwriting experts. Alex’s request alleged generally that Clara impersonates him by forging his signature on various music contracts, royalty accounts, and credit card applications. Alex’s allegations of forgery dated from 1998 to 2013. Alex contended that his allegations of forgery against Clara were supported by his two independent handwriting experts.

On September 19, 2019, Clara filed a response with supporting documentation including her declaration.

The trial court held a hearing on October 2, 2019. Alex was permitted to testify, although the trial court excluded the testimony of his two handwriting experts, finding that they were not “necessary” for the case. The trial court indicated that instead, its desire was to hear “from [Alex] how this has affected his psyche and why that rises to the level of behavior that should be enjoined under the code.”

Alex’s attorney estimated that Alex’s testimony would take one to two hours. He testified for at least two or three hours. The matter was continued to October 7, 2019.

On October 7, 2019, the trial court inquired of the parties as to whether they “had a chance to do some research” with respect to the case, and whether they had found any case law suggesting “how these financial documents from this long ago constitute domestic violence.” The trial court indicated that it had not heard anything suggesting domestic violence. Instead, Alex’s testimony showed nothing more than “the fact that he doesn’t have money that he wants.” The court repeatedly asked Alex’s counsel what authority he had that the conduct constituted domestic violence. The court indicated that it “went back over everything after we broke last week to try to see if I [could] find something that would constitute domestic violence.” However, the court was “not seeing it.” The court had “read and considered” the declarations filed by the parties and accepted the declarations as direct testimony. Upon review of all the material before it, the court described Alex’s allegations as a “civil trial matter” for which he was entitled to “civil remedies that do not require a domestic violence restraining order.”

The court noted the severe consequences to a restrained person. The court further noted Alex’s allegations concerned a “financial issue” in which there was no “threat of violence,” no isolation from friends and family, and that Alex was “not being financially isolated to the extent he cannot seek redress.” After hearing arguments of counsel, the court stated “I have not seen or heard anything from either side that would indicate to me that a domestic violence restraining order is indicated in this case.” The trial court then denied appellant’s request. Alex was not permitted to re-take the stand to finish his testimony regarding Clara’s alleged forgeries. However, the court indicated it was “willing to accept the premise that all of these things were fraudulent.” Alex had not convinced the court that “this case gets to domestic violence.”

On December 2, 2019, appellant filed his notice of appeal.

DISCUSSION

I. Applicable law and standard of review

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, “abuse” means: (1) to intentionally or recklessly cause or attempt to cause bodily injury; (2) sexual assault; (3) to place a person in a reasonable apprehension of imminent serious bodily injury to that person or to another; and (4) to engage in any behavior that has been or could be enjoined pursuant to Section 6320. (Fam. Code, § 6203, subd. (a).)

Family Code section 6320 permits the trial court to issue an ex parte order enjoining certain behaviors including “credibly impersonating as described in Section 528.5 of the Penal Code, [and] falsely personating as described in Section 529 of the Penal Code.” (Fam. Code § 6320, subd. (a).) Pursuant to Penal Code section 529, a person may be punished if he or she “Verifies, publishes, acknowledges, or proves, in the name of another person, any written instrument, with intent that the same may be recorded, delivered, or used as true.” (Pen. Code, § 529, subd. (a)(2).)

Abuse is not limited to the actual infliction of physical injury or assault. (Fam. Code, § 6203, subd. (b).) A trial court has the discretion to issue a protective order under the DVPA simply on the basis of an affidavit showing past abuse. (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.) However, a petition under the DVPA may be summarily denied if the facts alleged fail to constitute abuse within the meaning of the DVPA. (Id. at p. 337.)

A trial court may issue a restraining order for the purpose specified in Family Code section 6220: to prevent domestic violence, abuse, and sexual abuse, and to provide separation between the parties. (Fam. Code, § 6300.) The trial court’s decision as to whether a restraining order is warranted is discretionary. (Gou v. Xiao (2014) 228 Cal.App.4th 812, 817.)

A trial court’s denial of a restraining order under the DVPA is generally reviewed for abuse of discretion. (Nakamura v. Parker, supra, 156 Cal.App.4th at p. 333.) An abuse of discretion occurs when the ruling exceeds the bounds of reason. (Eneaji v. Ubboe (2014) 229 Cal.App.4th 1457, 1463.) However, the exercise of a court’s discretion is not unfettered. (Ibid.) “‘If the court’s decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, the court has not properly exercised its discretion under the law. [Citation.] Therefore, a discretionary order based on an application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal. [Citation.]’ [Citation.]” (Ibid.)

II. Basis of the trial court’s decision

The parties disagree as to the appropriate standard of review to be applied in this case. Appellant has argued that the trial court made its decision as a matter of law (or alternatively as an abuse of discretion), concluding that acts of impersonation alone can never rise to the level of domestic violence under the DVPA. Respondent, on the other hand, argues that the trial court made a discretionary decision that the acts alleged did not rise to the level of abuse in this case. Thus, respondent argues, it was a discretionary decision that should not be disturbed.

Under the plain language of the applicable statutes, false personation is an act that may be enjoined by way of a restraining order. (Fam. Code, § 6320; Pen. Code, § 529.) However, nothing in the trial court’s remarks indicate that it was denying the request for DVRO on the ground that false personation was not abuse as a matter of law. In fact, the trial court specifically noted: “I do understand that spouses can be hurt by lack of financial finances [sic] and lack of ability to have finances, spouses can be hurt by impersonation . . . but none of what I have heard so far amounts to that.” Thus, the court did not appear to be making the decision based on an erroneous understanding of the law, but based on the evidence presented.

While the trial court requested that the parties locate case law supporting Alex’s allegations that this was domestic violence, it appears that the court was looking for direction as to whether the issuance of a DVRO was the appropriate remedy for the acts that Alex described. The court noted that instead of showing abuse, Alex’s testimony showed nothing more than “the fact that he doesn’t have money that he wants.” The court opined that Alex’s allegations amounted to a “civil trial matter . . . [and] do not require a domestic violence restraining order.” The trial court clearly stated that it had reviewed the entire record and did not find any acts by Clara that would justify a restraining order.

“[T]hree fundamental principles of appellate review” dictate that “(1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error. [Citations.]” (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58, citing In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133, and Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) In the absence of a clear indication that the trial court was making an error of law, we presume its decision was grounded in the correct legal principles.

Based on the explicit statement of the trial court’s rationale for denying the DVRO, as well as the presumption of correctness, we review the court’s decision for abuse of discretion.

III. The trial court did not abuse its discretion

“‘“The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”’ [Citation.]” (In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 702.) A request for DVRO is properly denied when the conduct at issue is insufficient to support issuance of a restraining order. (S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1265-1266.) Here, the record supports the trial court’s finding that Clara did not engage in domestic violence warranting a restraining order.

The trial court reviewed the parties’ filings and heard two to three hours of testimony from Alex, who testified that Clara impersonated him by forging his signature on numerous documents, including music contracts, online royalty accounts, tax forms, and credit card applications. Alex alleged that he was held liable in a collections lawsuit as a result of Clara’s impersonating him on a credit card application. He also testified that Clara engaged in secret business deals with third parties and set up a secret business account solely in her name, making him feel “worthless” and “confused.” Alex explained that Clara’s conduct made him feel disturbed and humiliated, among other things.

The court noted that the alleged acts of abuse were remote, with some occurring in 1998 and the most recent occurring in 2013. The court understood that there is no statute of limitations in domestic violence, but noted that “the weight that this court can give them is going to be much lower than something that, say, was fresh in the mind of the plaintiff.” The court made it clear prior to Alex’s testimony that it was looking for testimony as to why the acts he alleged rose to “the level of behavior that should be enjoined under the code.”

Throughout Alex’s testimony, the court urged Alex to “remember [its] admonition” that “[t]he older stuff to me isn’t as relevant as the newer stuff,” and the most important thing was “how this has affected [Alex].” The impact on Alex was “far more important” to the court than “the intricate details of how these things came about.”

The trial court also appeared to have in mind the DVPA’s purpose of preventing future abuse. (Fam. Code, § 6220.) The court noted that 2015 is the date of separation between the parties, and inquired of Alex’s counsel, “[g]ive me the nexus as to how the 2016 royalty issue is related to domestic violence, since they’re no longer together and she’s just continuing to passively collect royalties.” The trial court also noted that the parties were not living in the same time zone. It also observed that the testimony showed “he doesn’t have money that that he wants.” With regard to the court’s request for case law from the parties, the court noted “I have not heard anything yet that would suggest to me the fact that he doesn’t get some of the money that he thinks he is entitled to translates into domestic violence.”

The court summed up its thoughts as follows:

“All I’m seeing is that [Alex] is frustrated, and he needs a resolution in this case that is a civil trial matter. If he feels he is not getting some of the royalties to which he is entitled to, those are civil remedies that do not require a domestic violence restraining order.”

The record supports the trial court’s determination that the conduct at issue did not rise to the level that warranted a restraining order. The court repeatedly directed Alex to explain how the conduct he was describing impacted him or constituted abusive behavior. Despite the court’s repeated requests, Alex did not provide the necessary evidence. The court found that Alex’s evidence suggesting that Clara forged his name and diverted his royalties did not rise to the level of domestic abuse under the circumstances of the present case, as the parties have been separated for many years and are living apart. We have no authority to reweigh the evidence or substitute our decision for that of the trial court. (In re Marriage of Fregoso & Hernandez, supra, 5 Cal.App.5th at p. 702.) We find no abuse of discretion.

IV. Exclusion of handwriting experts

The trial court excluded Alex’s handwriting experts pursuant to Evidence Code section 352. The court explained, “Even if I were to assume that the documents were forged — and that may or may not be true — I don’t think that’s as relevant to these proceedings as their effect on [Alex] and his state of mind. So I think that the consumption of time that it would entail outweighs the probative value of having the two witnesses testify.” Thus, the court was willing to assume the documents were forgeries, and instead of hearing proof of forgery, the court asked Alex to explain “how this affected his psyche and why that rises to the level of behavior that should be enjoined under the code.”

Alex argues that the trial court erred in excluding his handwriting experts. Alex contends that the question of whether Clara forged his name on a written instrument is relevant to the determination of whether Clara committed an act enjoined by Penal Code section 529. Alex argues that section 529 does not contain any reference to an individual’s “psyche” or emotion. Alex thus argues that the trial court did not present a reasonable basis for exclusion of his experts.

Evidentiary determinations are generally reviewed for abuse of discretion. (People v. Peoples (2016) 62 Cal.4th 718, 743.) The trial court did not abuse its discretion in excluding the handwriting experts. Instead, as the court made clear, it was willing to assume that the documents were forged. Thus, the experts were unnecessary.

While Penal Code section 529 does not reference an individual’s psyche or emotional state, the DVPA exists “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.) Thus, in determining whether violations of Penal Code section 529 rise to the level of domestic violence, the trial court is permitted to consider the impact of the alleged violations of section 529 on the individual seeking the DVRO.

Issuance of a restraining order under the DVPA is an act within the discretion of the trial court. (Fam. Code, § 6300.) In this matter, the trial court assumed the documents were forgeries — but, even assuming the documents were forgeries — concluded that behavior did not rise to the level of abuse that warranted a restraining order in this case. Nothing in the Family Code mandates a trial court to grant a restraining order in the event of a forgery or even multiple forgeries. The trial court here determined that, even assuming multiple forgeries, no restraining order was warranted. It did not err in excluding Alex’s handwriting experts under the circumstances.

V. Due process

Alex invokes the due process protections of the Fifth and Fourteenth Amendments to the United States Constitution in support of his argument that the trial court erred by not allowing him to complete his testimony. Alex cites Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1345 (Elkins), and Noergaard v. Noergaard (2015) 244 Cal.App.4th 76, 87, 95 for the proposition that litigants in a family law proceeding must be allowed to present their case. Alex argues that due to the trial court’s decision to cut off his testimony, he was denied his day in court.

When deciding whether to issue a DVRO, “‘[t]he trial court is empowered to determine motions upon affidavits, and has the discretion to refuse oral testimony.’ [Citation.]” (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1499 [trial court was not required to allow oral testimony at proceeding for application for DVPA restraining order].) The trial court indicated that it had “read and considered the declarations” filed by both Alex and Clara, and was “prepared to accept them as if they testified as so on direct.”

In addition to receiving and accepting the testimony set forth in the declarations, the trial court heard two to three hours of testimony from Alex. This was more than his attorney’s estimate of one to two hours of testimony. Courts have “fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them. [Citation.]” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967 (Rutherford).) Such power “‘entitles trial courts to exercise reasonable control over all proceedings connected with pending litigation.’” (Ibid.) Alex’s counsel did not make an offer of proof as to how any further testimony would address the court’s concerns that Alex’s allegations did not amount to domestic violence. Thus, the court did not err in declining to hear more.

The court was aware of Clara’s position that “this is the same thing he’s been talking about for four years.” In addition, the court was aware that Clara was traveling back and forth from Kansas for the proceedings, while caring for a child in Kansas. The court was permitted, in its discretion, to cut off repetitive or unnecessary testimony. (Rutherford, supra, 16 Cal.4th at p. 967.)

Alex cites authority suggesting that declarations are inadmissible hearsay and thus are “inadmissible” at contested marital dissolution trials. (Elkins, supra, 41 Cal.4th at p. 1354.) However, the Elkins court specified that such is the case “unless the parties stipulate to the admission of the declarations or fail to enter a hearsay objection. [Citations.]” (Ibid.) Alex has failed to provide a citation to the record showing that he made a hearsay objection to either declaration. Thus, he forfeited this argument. (People v. Dykes (2009) 46 Cal.4th 731, 756.)

VI. Judicial bias

Alex argues that the trial court exhibited judicial bias by ignoring statutory black-letter law that impersonation may be enjoined pursuant to a DVRO.

There is a high bar for a finding of judicial bias.

“It is ‘extraordinary’ for an appellant court to find judicial bias amounting to a due process violation. [Citation.] The appellate court’s role is not to examine whether the trial judge’s behavior left something to be desired, or whether some comments would have been better left unsaid, but to determine whether the judge’s behavior was so prejudicial it denied the party a fair, as opposed to a perfect, trial. [Citation.] Mere expressions of opinion, based on observation of the witnesses and evidence, do not demonstrate judicial bias. [Citation.]”

(Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 589.)

Nothing in the record indicates that Alex was denied a fair trial based on judicial bias. Alex points to several exchanges between his attorney and the court in which the court sought legal authority for the grant of a DVRO under circumstances similar to this case. Alex’s counsel drew the court’s attention to Family Code section 6320 on numerous occasions. However, contrary to Alex’s position, the court did not ignore this law. The court stated that it was aware that spouses or partners can be hurt by lack of finances and a lack of the ability to have money. When Alex’s counsel pointed to the language of the statute, the court indicated that it had read the statute. The court commented that just because impersonation can be part of a restraining order does not mean that it rises to the level of domestic violence in every case. The court stated that it was “coming at this with the broadest mind set possible” and was “more than sensitive as to how these are complicated issues.” Accepting that impersonation can be the basis of a restraining order, the court did not see conduct warranting a restraining order in this case. Alex presents no authority that a trial court is required to issue a restraining order on every petition that alleges behavior that fits under Family Code section 6320.

Alex has failed to show judicial bias denying him a fair trial. Instead, the record shows that the court understood the facts and the law and made a reasonable decision based on the evidence before it. We decline to find judicial bias.

DISPOSITION

The order is affirmed. Respondent is awarded her costs of appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.

CHAVEZ

We concur:

__________________________, Acting P. J.

ASHMANN-GERST

__________________________, J.

HOFFSTADT