Arhip v. Hunt



















Filed 3/25/13 Arhip v. Hunt CA1/4

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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
FOUR




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SERGHEI ARHIP, Plaintiff and Respondent, v. DAVID MICHAEL HUNT, Defendant and Appellant.

A135035 (San Francisco City & County Super. Ct. No. FDV-12-809124)

I.

Introduction

Appellant
David Michael Hunt (Hunt), proceeding in propria
persona, appeals from the issuance of a domestic
violence restraining order against him after a contested hearing. He contends the trial court erred in granting
respondent Serghei Arhip’s (Arhip) request for the restraining order because
the trial court: (1) relied on conduct that does not legally constitute
“abuse”; (2) considered evidence not properly filed or served on Hunt;
(3) violated his right to equal protection of the law by holding him to a
higher standard of evidence than that applied to Arhip; and (4) abused its
discretion by imposing a restraining order
that was overly restrictive.

Arhip> has failed to file a respondent’s
brief. Having considered the record
below and the arguments raised by Hunt on appeal, we affirm the order.

II.

Factual and Procedural Backgrounds

Arhip
filed a request for domestic violence restraining order using Judicial Council
form DV-100 on January 4, 2012.href="#_ftn1" name="_ftnref1" title="">[1] In it, Arhip alleged that on January 3, Hunt
vandalized Arhip’s apartment twice, tried to choke Arhip, bit his neck, and
harassed Arhip by “calling [him] constantly.”
The request sought a stay-away order requiring Hunt to stay at least 100
yards away from Arhip and his dog, Mitch, and a personal conduct order
prohibiting Hunt from certain offensive contacts with Arhip including emails,
telephone calls, and mailings.

The
next day Hunt filed his own DV-100 form seeking essentially the same domestic
violence restraining order against Arhip, but also the return of all gifts
given by Hunt to Arhip. This request
alleged that on January 2, Arhip burned Hunt’s right index finger, hit him
multiple times with an open hand and closed fist, and threw Hunt against a wall
and onto the floor and into furniture causing Hunt multiple bruises and a cut
above his eye. Hunt also alleged that an
earlier occasion of physical abuse occurred when he was assaulted by Arhip on December
14, 2012.href="#_ftn2" name="_ftnref2" title="">[2]

Accompanying
his request for a domestic violence restraining
order was Hunt’s declaration and seven pages of photographs which he states
depict the injuries he received as a result of Arhip’s assaultive conduct.

On
the same date, Hunt filed a response to request for domestic violence
restraining order on Judicial Council form DV-120. In addition to objecting to the specific
terms of the restraining order sought by Arhip, Hunt submitted a three-page
declaration refuting the factual allegations made by Arhip, and setting forth
Hunt’s version of events. In essence,
Hunt asserted that the events set forth in Arhip’s papers “never
happened.” He denied committing a
physical assault on Arhip, and asked that the court disregard Arhip’s version
of events “in toto” because they all were “fraudulent.”

As
to Arhip’s claim that Hunt vandalized his apartment, Hunt explained that this
was a “false embellishment.” Instead,
Hunt stated that he “accidentally caused the disarrangement of a few items of
furniture while [he] was leaving [Arhip’s] apartment.” Likewise, Hunt denied that any significant
property damage occurred while he was leaving, and claimed that he did not
cause any damage to Arhip’s property on either of the two occasions he was
there on January 3. On the last page of
this three-page declaration, Hunt recounted a number of incidents occurring
earlier in the relationship between himself and Arhip during which Arhip caused
Hunt physical and psychological pain.

A
hearing on the two competing requests was held on January 25. After administering an oath to both parties,
Arhip stated that the information
contained in his request was true and correct.
In response to the court’s invitation to add anything into the record,
Arhip stated that Hunt had stolen jewelry from him valued at more than $2,000,
had called the “Board of Nursing” in an effort to “get my license,” had
vandalized Arhip’s apartment three times, and had stolen Arhip’s prescription
medicine. No police report was filed in
connection with the stolen jewelry.

A
police report was produced by Arhip confirming that an incident had been
investigated by the San Francisco Police Department (SFPD) on January 3. Hunt was arrested but the district attorney
decided not to prosecute due to lack of evidence.

A
neighbor, Francis Farrell, testified at the hearing that he lived in> Arhip’s building and knew both
parties. One evening Arhip called
Farrell and asked for his help in ensuring that Hunt left his apartment. Farrell refused to help that night. The next afternoon, Farrell was called again,
and this time went to Arhip’s apartment to ask Hunt to leave. Hunt left after Farrell called 911. On his way out Hunt deliberately knocked over
Arhip’s flat screen TV.

Later
that same evening Farrell was contacted again by Arhip who asked his assistance
in once again getting Hunt to leave the apartment. This time Hunt refused to leave until police
arrived. He was asked to leave by Arhip,
then Farrell, and later by the police after they arrived. Hunt refused to go.

As
to his request for a restraining order, Hunt affirmed that everything stated in
the supporting papers was true and correct.
To refute Hunt’s description of his injuries, Arhip responded that Hunt
self-inflicted several wounds, including cuts, to make it look as if he had
been assaulted by Arhip.

Referring
to Arhip’s form DV-100, Hunt claimed that nothing alleged in “section C”
had ever happened. He denied that he
choked or bit Arhip. All of his contacts
with Arhip during the disputed visits were amicable. As to the property damaged in Arhip’s
apartment, Hunt stated that this occurred because he was in a rush to get some
of his things out of the apartment, and he was clumsy in the process. Hunt admitted that he contacted Arhip’s
employer but that he did so “for the public good.” He told the employer that Arhip was having
problems with alcohol.

As
to Arhip’s assaultive behavior towards Hunt, Hunt stated that Arhip had bitten
him twice, and had injected Hunt with prescription medicine in excessive
doses. This resulted in extensive
cramping. Arhip also burned Hunt with
cigarettes several times, and threatened Hunt’s life.

A
map of Castro Street was proffered by Hunt to illustrate his concern that
Arhip’s requested restraining order would interfere with his ability to get his
medications, from attending 12-step meetings, and from accessing public
transportation.

The
trial court then granted Arhip’s petition for a restraining order with
modifications. These included that Hunt> was not to come within 100 yards of
Arhip and his residence. The distance
was reduced from that requested in order to accommodate Hunt’s concern that a
longer distance would unduly limit his access to his (Hunt’s) pharmacy, 12-step
meetings, and other businesses Hunt frequented.
The restraining order was not applied to Arhip’s dog, Mitch.

As
to Hunt’s petition for a restraining order, the court denied the request. The court concluded that, based on the police
report of the January 3 incident, Hunt was the aggressor that day.>

III.

Discussion

A. Standard of Review

A
temporary restraining order issued under the Domestic Violence Protection Act
(DVPA) (Fam. Code, § 6200 et
seq.)href="#_ftn3" name="_ftnref3" title="">[3] is of the nature
of an order granting an injunction, thus it is “separately appealable.” (McLellan
v. McLellan (1972) 23 Cal.App.3d 343, 357; Code Civ. Proc., § 904.1,
subd. (a)(6).)

On
appeal from the issuance of a domestic violence temporary restraining order, we
apply an abuse of discretion standard of review to determine whether the trial
court exceeded the bounds of reason. (>Gonzalez v. Munoz (2007) 156 Cal.App.4th
413 (Gonzalez); Quintana v. Guijosa (2003) 107 Cal.App.4th 1077, 1079 (>Quintana).) “To the extent that we are called upon to
review the trial court’s factual findings, we apply a substantial evidence standard
of review. [Citation.]” (Loeffler
v. Medina (2009) 174 Cal.App.4th 1495, 1505.) “ ‘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.’ . . .” (Gonzales,
supra, 156 Cal.App.4th at
p. 420, citing Shamblin v. Brattain
(1988) 44 Cal.3d 474, 478-479.)

The
DVPA authorizes issuance of a restraining order “to prevent the recurrence of
acts of violence 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; Gonzalez, supra, 156
Cal.App.4th at p. 421.) “The
Legislature has set forth the relevant factors in Family Code section 6300, by
providing that a domestic violence restraining order may be issued ‘if an
affidavit shows, to the satisfaction of the court, reasonable proof of a past
act or acts of abuse.’ ” (>Quintana, supra, 107 Cal.App.4th at p. 1079; Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.) Abuse is defined as intentionally or
recklessly causing or attempting to cause bodily injury, sexual assault, or
placing a person “in ‘reasonable apprehension of imminent serious bodily
injury’ ” to that person or to another.
(Gonzalez, >supra, at p. 421; § 6203.)

Because
Arhip has failed to file a respondent’s brief, we “ ‘decide the appeal on
the record, the opening brief, and any oral argument by the appellant’
. . . , reversing only if prejudicial error is shown. [Citations.]”
(Nakamura v. Parker, >supra, 156 Cal.App.4th at
pp. 333-334.)

B. The Trial Court Did Not Commit Legal Error by
Relying on Conduct Not Subject to the DVPA

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Under
the DVPA, a restraining order may issue ex parte, after notice and a hearing,
or in a judgment either “enjoining specific acts of abuse,” “excluding a person
from a dwelling,” or “enjoining other specified behavior.” (§ 6218.) Hunt’s initial argument contends that the
trial court improperly relied on conduct not constituting abuse under the
DVPA. We disagree.

Abuse
includes any behavior that has been or could be enjoined pursuant to section
6320. (§ 6203, subd. (d).) The behavior outlined in section 6320
includes “stalking, threatening, . . . harassing, telephoning,
. . . contacting, either directly or indirectly, by mail or
otherwise, coming within a specified distance of, or disturbing the peace of
the other party . . . .”
(§ 6320, subd. (a).) Thus,
the requisite abuse need not be actual infliction of physical injury or
assault.

In
this case, the trial court accepted as true the claims made by Arhip against
Hunt. These included Hunt’s admission that he made at least one contact with Arhip’s
employer in an effort to injure his employment status. In addition, Arhip claimed that he had been
assaulted physically by Hunt, that the property in his apartment had been
“vandalized” by Hunt, and that he had been harassed by virtue of having to
contact law enforcement several times to secure Hunt’s removal from Arhip’s
apartment. Given this record, the
evidence of abuse was sufficient to support the trial court’s order under> the DVPA.

C. In Granting Arhip’s Request for a Restraining
Order, the Trial Court Did Not Rely on Evidence Not Properly Filed or Served on
Hunt

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Hunt’s
second assignment of error concerns the trial court’s consideration of
Farrell’s testimony, and several documents proffered by Arhip at the hearing,
including: (a) a letter from Arhip’s therapist; (b) a letter from
Arhip’s employer; (c) several photographs; and (d) the SFPD police
report. He argues that in submitting
these documents, Arhip violated applicable San Francisco Superior Court local
rules requiring the presubmittal of witness and document lists.

We
refuse to consider the merits of this claim of error, because no objections
were made in the trial court to Farrell’s testimony and the enumerated
documents on the ground now raised on appeal.
Hunt argues that his pro per status should be considered and we should
excuse his failure to object because he was not represented by counsel at the
hearing. However, as a pro per litigant,
Hunt is entitled to no special treatment in this regard. (See Rappleyea
v. Campbell (1994) 8 Cal.4th 975, 984-985 [“[e]xcept when a particular rule
provides otherwise, the rules of civil procedure must apply equally to parties
represented by counsel and those who forego attorney representation”].)href="#_ftn4" name="_ftnref4" title="">[4]

D. The Trial Court Did Not Violate Hunt’s Equal
Protection Rights By Holding Him to a Stricter Standard of Evidence Than That
Applied to Arhip’s Evidence



Hunt’s
next contention is that the trial court erred by “requir[ing] Hunt to prove his
case by a stricter standard of evidence, while granting Arhip a more lenient
standard.” There is absolutely nothing
in the record supporting Hunt’s speculative argument. Essentially, he asserts that the trial court
must have held him to a higher standard of proof because his evidence
justifying a restraining order against Arhip was so much stronger that Arhip’s
against him. He also points to several
statements made by Arhip during the hearing differentiating his background from
that of Hunt in order to create “potentially bias-inducing disparities between
himself and Hunt.”

While
Arhip did attempt to distinguish his background from that of Hunt in an
apparent effort to gain sympathy, there is no suggestion whatsoever that the
trial court was induced to decide the case based on the disparity in the
backgrounds of the parties. In short there
is no evidence supporting Hunt’s claim that the trial court was biased against
him, that his evidence was held to a higher standard of proof than was Arhip’s,
or that his federal equal protection rights guaranteed by the href="http://www.fearnotlaw.com/">Fourteenth Amendment to the federal
constitution were violated.

E. The Trial Court Did Not Abuse Its Discretion
by Imposing an “Overly Restrictive Order”

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Lastly,
Hunt argues that, because his federal equal protection rights are implicated by
the trial court’s decision to grant Arhip a DVPA restraining order, those
rights were violated when the court failed to limit the granting of the order
to the “least restrictive means.” There
is no such legal limitation imposed on the
trial court’s discretion under the circumstances of this case. Not only was Hunt’s equal protection right
not violated (see section III.D. above), but the court carefully crafted the
order with Hunt’s concerns clearly in mind about how the distance would affect
access to his pharmacy, 12-step meetings, and other places of business he
frequented.

For
this same reason, we decline his request that we reverse the trial court’s
order as an abuse of discretion. Indeed,
to the contrary, our review of the record leads us to conclude that the trial
court was patient and even-handed with the parties, and that the court treated
both sides with respect and was careful to exclude from consideration the
extraneous facts presented by both sides.

IV.

Disposition

The
order granting a restraining order in favor of Arhip and denying Hunt a
restraining order is affirmed.











_________________________

RUVOLO,
P. J.





We concur:





_________________________

REARDON, J.





_________________________

HUMES, J.