Burquet v. Brumbaugh
Filed 1/14/14 Burquet v.
Brumbaugh CA2/5
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
GISELA
BURQUET,
Plaintiff and Respondent,
v.
RANDY
BRUMBAUGH,
Defendant and Appellant.
B248031
(Los
Angeles County
Super. Ct. No.
BQ039688)
APPEAL
from an order of the Superior Court of Los
Angeles County, Thomas Trent Lewis, Judge.
Affirmed.
Michael
Anthony Cisneros for Defendant and Appellant.
Gisela
Burquet, in pro.per.
Appellant, Randy Brumbaugh
Act (“DVPAâ€).
PROCEDURAL HISTORY
On February 20, 2013
plaintiff
parte restraining order, requesting therein that defendant be ordered to stay
at least 200 yards away from plaintiff, her home, job, school, and
vehicle. The court granted the ex parte
restraining order on that date, but limited its scope to plaintiff’s person and
home and limited it to 100 yards. On
March 4, 2013, defendant filed his Response
to the request for Domestic Violence Restraining
Order. The hearing on Plaintiff’ s
request for a further injunction after
hearing was called for hearing on March 20, 2013. At the conclusion of the hearing the trial
court made the following ruling: “The
Court has read and considered the Petitioner’s [Plaintiff’s] request for a
restraining order and after hearing testimony from both sides, the Court finds
good cause that warrants the granting of a restraining order. [¶] RESTRAINING ORDER IS GRANTED and in effect
[sic] until 3/20/15. The Court makes its orders
pursuant to the Clets Order After
Hearing†signed and filed this date. A copy of the order is presented to the
parties in open court.†On April 8, 2013, defendant filed his Notice of Appeal.
OF THE LAW
The evidence
presented at the hearing, accepting as true all evidence tending to establish
the correctness of the trial court’s findings and resolving every conflict in
favor of the judgment is as follows: The
parties had an intimate relationship which terminated in April of 2012. Plaintiff terminated the relationship and defendant
could not accept it. He kept contacting
her. Between June and October of 2012 plaintiff
asked defendant several times to not contact her. Despite her requests that he cease contacting
her, defendant continued to do so beseeching her to renew their intimate
relationship. His communications were
inappropriate and contained sexual innuendos.
She constantly turned down his overtures and requested that he stop
contacting her and each time he would get angry. The last time she asked him to not contact her
was on October
31, 2012, subsequent thereto he continued
to contact her by email and text. On February 18, 2013, defendant, unannounced and uninvited, and despite plaintiff’s
requests that he not contact her, appeared outside her residence. He knocked on the door and plaintiff opened it
but did not invite him inside. After a
short conversation she told him to respect her wishes and to leave. “He got angry. He started saying very-- in a loud voice “I
love you, I don’t know, I’m sorry.†She
was afraid of what he was going to do, and
said “Please leave, I’m scared. I will call the police. And that’s when he shouted at me through my door
window, I want to see you do that.†Defendant
still did not leave, he paced around her porch for about 10 minutes. After about ten minutes he called her from his
cell phone and told her he was leaving.
He asked her not to be scared, but she was scared because he was angry. On two prior occasions during their
relationship when he had gotten angry he became physical with her. He left before the police arrived.
After hearing
all of the evidence the Court stated in part when making its ruling: [¶] “All
right. There’s enough here for a
restraining order. I’m granting a
restraining order. [¶] It just doesn’t make sense that Mr. Brumbaugh
would show up five months later out of nowhere unannounced, uninvited, stick
around, not leave when asked to leave and pace around the porch. It just was at least immature, if not
threatening. . . . [¶] I see uninvited contact that made the
petitioner afraid because he would not leave and showed up of nowhere
uninvited, and unannounced. And so the
restraining order will expire on March 20, 2015. Two years from now you guys should be enough
done with each other that it’s time to move on with life, which it sounds like
that’s what you want. . . .[¶] I do
think the evidence here is enough to make me concerned and assure the peace and
tranquility of the Petitioner.†Defendant
seeks a reversal of the trial court’s decision based upon his contention that
the trial court abused its discretion in issuing the restraining order. He
argues that though the parties had been in a past dating relationship, no
evidence was presented to the trial court of past act or acts of “abuse.â€
A granting or
denial of injunctive relief is generally reviewed by the appellate court based
upon the abuse of discretion standard. (
of protective order under the DVPA. (See
Quintana v. Guijosa
Cal.App.4th 1249, 1265). In reviewing
the evidence, the reviewing court must apply the “substantial evidence standard
of review,†meaning “‘whether, on the entire record, there is any substantial
evidence, contradicted or uncontradicted,’ supporting the trial court’s
finding. (Howard v. Owens Corning
to establish the correctness of the trial court’s findings resolving every
conflict in favor of the judgment.’†(
818, 822.)
Family Code section
6203 provides that “For purposes of this act, [DVPA] ‘abuse’ means any of the
following:
(a)
Intentionally or recklessly to cause or attempt to cause bodily injury.
(b)
Sexual assault.
(c)
To place a person in reasonable apprehension of imminent serious bodily
injury to that person or to another.
(d)
To engage in any behavior that has been or could be enjoined pursuant to Section 6320.â€
Family Code section
6211 provides in part: “‘Domestic violence’
is abuse perpetrated against any of the following persons . . . (c) a person
with whom the respondent is having or has had a dating or engagement
relationship.†Family Code Section 6320(a)
provides: “The court may issue an . . . order
enjoining a party from molesting , attacking, striking, stalking, threatening,
sexually assaulting, battering, harassing, telephoning, including, but not
limited to, annoying telephone calls as described in Section 653m of the Penal
Code, destroying personal property, contacting , either directly or indirectly,
by mail or otherwise, coming within a specified distance, or disturbing the
peace of the other party, and, in the discretion of the court, on a showing of
good cause, of other named family or household members.â€
It is clear from
the trial court’s statements at the time that it made its ruling [see above]
that the court granted Plaintiff an injunction pursuant to Section 6320 based
upon its finding that defendant had violated sub-section (d) of Section
6203(d), referring to that portion of Section 6320 which states “or disturbing
the peace of the other party . . .†There were as set forth above, substantial
facts presented at the hearing to support the trial court’s decision that the defendant,
because of his inability to accept that his romantic relationship with the plaintiff
was over, and despite plaintiff’s numerous requests that he not contact her,
was engaging in a course of conduct of contacting plaintiff by phone, email,
and text, which messages contained inappropriate sexual innuendos, and
arriving at her residence unannounced
and uninvited, and then refusing to leave and making a scene, when she refused
to see him for the purpose of causing her to renew their romantic relationship.
The result of which actions by defendant
“disturbed the peace of the other party.†Such a disturbance of plaintiff’s “peace†in
the present case constitutes an act of “abuse†under the DVPA.
Defendant
contends, however, that there was insufficient evidence presented to the trial
court to support a finding of “disturbing the peace†of plaintiff to allow the
trial court to issue a DVPA restraining
order and that the court’s order exceeded “the bounds of reason.†(See Gonzalez
v. Munoz (2007) 156 Cal.App.4th
413). He urges this court in determining
whether the trial court abused its discretion in finding an act of “abuseâ€
under the DVPA, based upon “disturbing the peace of another,†to follow the
definition of disturbing the peace as set forth in In re Bushman
name="_ftnref3" title="">[3] (1970) 1 Cal. 3d 767, 773,
where the California Supreme Court in a case not involving the DVPA defined
disturbing the peace, as that language is used in Penal Code section 415, for criminal
law purposes, as the “disruption of public order by acts that are themselves
violent or that tend to incite violence.†He then specifically asks this court in
arriving at its decision to reject the holding in In re Marriage of Nadkarni (2009)173
Cal.App.4th1483, 1494 wherein in a case involving the DVPA the appellate court
held as follows: “For purposes of the
DVPA, “‘abuse†means any of the following:
[¶] (a) Intentionally or
recklessly to cause or attempt to cause bodily injury. [¶] (b)
Sexual assault. [¶] (c)
To place a person in reasonable apprehension or imminent serious bodily injury
to that person or to another. [¶] (d)
could be enjoined pursuant to Section 6320.’ [Citation.] [¶] Section
6320 provides in part that ‘[t]he court may issue an ex parte order enjoining a
party from molesting, attacking, striking, stalking, threatening, sexual
assaulting, battering, harassing, telephoning, including, but not limited to,
annoying telephone calls as described in Section 653m of the Penal Code,
destroying personal property, contacting, either directly or indirectly, by
mail or otherwise, coming within a specified distance of, or disturbing the
peace of the other party, and, in the discretion of the court on a showing of
good cause, of other named family or household members.’. . . . [¶] Thus,
section 6320 provides that ‘the requisite abuse need not be actual physical
injury or assault.’ (
197, 202.) To the contrary, section 6320
lists several types of nonviolent conduct that may constitute abuse within the
meaning of the DVPA, including two types of conduct relevant to the present
case. . . . [¶] Second, section 6320
broadly provides that ‘disturbing the peace of the other party’ constitutes
abuse for purposes of the DVPA. The DVPA
does not provide any definition of the phrase ‘disturbing the peace of the
other party,’ and we therefore turn to the rules of statutory construction to
determine the meaning of the phrase and whether Datta’s conduct, as alleged by
Darshana in her declaration may constitute with the meaning of the DVPA. [¶] ‘In
statutory construction cases, our fundamental task is to ascertain the intent
of the lawmakers so as to effectuate the purpose of the statute. [Citation.]’
(Estate of Griswold
language, giving the words their usual and ordinary meaning.†[Citations.] If the terms of the statute are unambiguous,
we presume the lawmakers meant what they said, and the plain meaning of the
language governs. [Citations.] If there is ambiguity, however, we may then
look to extrinsic sources, including the ostensible objects to be achieved and
the legislative history. [Citation.] In such cases, we “‘“select the construction
that comports must closely with the apparent intent of the Legislature, with a
view of to promoting, rather than defeating the general purpose of the statute,
and avoid an interpretation that would lead to absurd consequences.â€â€™â€ [Citation.]’
[Citation.] [¶] To
determine the plain meaning of the statutory language, we may resort to the
dictionary. ‘When attempting to
ascertain the ordinary, usual meaning of a word [in a statute], courts
appropriately refer to the dictionary definition of that word.’ (Wasatch
Property Management v. Degrate (2005) 35 Cal.4th 1111, 1121-1122.) The ordinary meaning of ‘disturb’ is ‘[t]o
agitate and destroy (quiet, peace, rest); to break up the quiet, tranquility,
or rest (of a person, . . . , etc); to stir up, trouble, disquiet.’ (Oxford English Dictionary Online (2d ed.1989)
http://www.oed.com. [as of April 24, 2009.] ‘Peace,’ as a condition of the individual, is
ordinarily defined as ‘freedom from anxiety, disturbance (emotional, mental or
spiritual,) or inner conflict, calm, tranquility.’ (Ibid.
‘disturbing the peace of the other party’ in section 6320 may be properly
understood as conduct that destroy the mental or emotional calm of the other
party. [¶] Our interpretation of the phrase ‘disturbing
the peace of the other party’ in section 6320 also comports with the
legislative history of the DVPA. As
enacted in 1993 (Stats.1993,
ch. 219, § 154, p.1654), the DVPA collected
earlier provisions for the issue of domestic violence restraining orders from
the former Family Law Act (Civ. Code former Sec. 4359), the former Domestic
Violence Prevention Act (Code Civ. Proc. former Sec. 540 et seq.)
foll.sec..6200, p. 675.) These
provisions all expressly authorized a domestic violence restraining order that
enjoined ‘disturbing the peace’ of the other party. [Citations Omitted]. . . .[¶] Accordingly, we believe that the Legislature
intended that the DVPA be broadly construed in order to accomplish the purpose
of the DVPA. Therefore, the plain
meaning of the phrase ‘disturbing the peace’ in section 6320 may include, as
abuse within the meaning of the DVPA, a former husband’s alleged conduct in
destroying the mental or emotional calm of his former wife. . . .†(In re
Marriage of Nadkarni, supra, 173 Cal.App.4th at pp. 1496-1498.)
The definition
of disturbing the peace as set forth in
of section 415 of the Penal Code
[since amended] as set forth in Bushman,
supra, is not applicable to the
meaning of the phrase “disturbing the peace of the other party†as used in the
DVPA. The decision of the appellate
court in In re Marriage of Nadkarni, as
to the statutory interpretation of the phrase “disturbing the peace of the
other party†as set forth in section 6320 of the DVPA is well reasoned, and
this court adopts this position in regard to the present case. There was substantial evidence presented at trial
to support the trial court’s finding that defendant disturbed the peace of the plaintiff,
an act of “abuse†under the DVPA.
The March 13, 2013 order restraining
defendant’s conduct pursuant to the provisions of the DVPA, is affirmed. The respondent is awarded her costs on
appeal.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
MINK,
J.
We concur:
TURNER, P. J.
KRIEGLER, J.
Brief does not affect the defendant’s burden to prove that the trial court
abused its discretion when it issued the Domestic Violence Protection Act
restraining order. (See
(1976) 60 Cal.App.3d 52, 55.)
appellant as defendant and respondent as plaintiff.
