Blades v. Grau
Filed 6/24/10 Blades v. Grau CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
PATRICIA J. BLADES,
Plaintiff and Respondent, A126621
v. (ContraCostaCounty
Super. Ct. No. D0903904
ROBERTO A. GRAU,
Defendant and Appellant.
_____________________________________/
Roberto A. Grau appeals from an order that compels him to stop contacting or harassing respondent Patricia J. Blades or her son. Appellant contends the order is not supported by substantial evidence. We disagree and will affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant and respondent were dating. In June 2009, respondent decided to end the relationship. Appellant wanted the relationship to continue. He continued to contact respondent calling her on the telephone repeatedly and sending her more than 300 emails and text messages. Respondent asked appellant to stop contacting her. Appellant ignored the request and he went so far as to send respondent 127 text messages on a single day. Respondent contacted the local police to ask for help. A police officer called appellant and told him to stop contacting respondent. Appellant ignored the request. He continued to send respondent emails and text messages and he even showed up in front of her house and at her place of work.
Respondent applied to the court for an order under the Domestic Violence Prevention Act (DVPA) (Fam. Code, 6200 et seq.) to stop appellant from harassing her. The trial court granted a temporary restraining order and set the matter for a hearing to determine whether the order should be made permanent.
A hearing on respondents request for a restraining order was conducted. Respondent testified and she provided the evidence we have set forth above. Respondent also said that appellant had threatened her son physically. Appellant testified at the hearing. He denied threatening respondents son, although he admitted that he continued to contact respondent even after she and the police had asked him to stop. Appellant said he was just trying to reconcile with respondent.
The trial court was unconvinced by appellants explanation and it ordered appellant to stop contacting or harassing respondent or her son.
II. DISCUSSION
Appellant contends the trial court erred when it issued the domestic violence restraining order.
The DVPA grants courts the authority to issue orders to restrain any person for the purpose of preventing a recurrence of domestic violence . . . . (Fam. Code, 6300.) Courts have authority under the act to prevent physical acts such as assault or battery (Fam. Code, 6320, subd. (a)); but courts are not limited to preventing violent conduct. Courts are also granted the authority to prevent annoying telephone calls as described in Section 653m of the Penal Code . . . . (Fam. Code, 6320, subd. (a).) Penal Code section 653m, subdivision (b), in turn, prohibits inter alia, repeated contact by means of an electronic communication device . . . . The trial court is granted broad discretion to decide whether an injunction to prevent harassment is appropriate and its ruling will be reversed on appeal only where the court abused its discretion. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.) We find no abuse here.
The evidence here showed that after respondent broke up with appellant, she and the police both asked him to stop contacting her. Appellant ignored those requests and he sent her over 300 emails and text messages including 127 text messages on a single day. The trial court reasonably could conclude that appellants repeated attempts to contact respondent by means of an electronic communication device was harassing and order him to stop. We conclude the courts order is supported by substantial evidence.
None of the arguments appellant makes convince us the trial court erred. First, appellant seems to argue the court could not validly issue an injunction against him because he was not dating respondent when the court acted. However, the DVPA grants courts the power to prevent acts of domestic violence, (Fam. Code, 6300) and the term domestic violence is defined by the act to include abuse perpetrated against [a] person with whom the respondent is having or has had a dating . . . relationship. (Fam. Code, 6211, subd. (c), italics added.) The court had full authority to act even though appellant and respondent were not currently dating when the injunction was issued.
Next, citing various sections of the Evidence Code, appellant argues the evidence presented at trial was too weak to support the conclusion reached by the trial court. Appellant misconstrues our function on appeal. When evaluating the sufficiency of the evidence we must view the evidence in the light most favorable to the party prevailing below. [Citation.] The weight of the evidence and the credibility of the witnesses are matters for the trier of fact and not for the appellate court. [Citation.] The test is not whether there is substantial conflict in the evidence but whether there is substantial evidence in favor of the respondent. (Harland v. State of California (1977) 75 Cal.App.3d 475, 482-483, quoting McKinley v. Buchanan (1959) 176 Cal.App.2d 608, 611-612.) The evidence here, viewed in the appropriate light, was more than sufficient to support the conclusion reached by the trial court.
Next, appellant seems to argue the evidence presented at trial was insufficient to support an injunction under the standard set forth in the civil harassment statute, Code of Civil Procedure section 527.6.[1] However, the court here did not purport to issue an injunction under Code of Civil Procedure section 527.6. It acted under the authority of the DVPA. The latter statute is more liberal and authorizes injunctions under broader circumstances. (See, e.g., Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.)
Next, appellant argues the evidence presented at trial was hearsay and was therefore insufficient to support the injunction that was issued. Appellant did not object on this ground in the court below. He cannot validly raise that issue on appeal. (Evid. Code, 353, subd. (b).)
Finally, appellant seems to argue the injunction issued here was invalid because he was not allowed to cross-examine respondent at the hearing in the court below. We find no place in the record where appellant asked to cross-examine respondent. Appellant has forfeited the right to raise that issue on appeal. (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.)
We conclude the trial court did not abuse its discretion when it issued the order in question.
III. DISPOSITION
The order is affirmed.
_________________________
Jones, P.J.
We concur:
_________________________
Simons, J.
_________________________
Needham, J.
Publication Courtesy of California attorney directory.
Analysis and review provided by Oceanside Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com
[1] Appellant in fact relies on Code of Civil Procedure section 526.6 a statute that does not exist. We presume he means section 527.6.
