Hogan v.
Filed 8/27/12 Hogan v. Avila CA2/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
ONE
STEPHANIE M. HOGAN,
Plaintiff and Respondent,
v.
RONALD AVILA,
Defendant and Appellant.
B232627
(Los Angeles
County
Super. Ct.
No. GQ007504)
APPEAL from an order of the Superior Court of
County. Dianna J.
Gould-Saltman, Judge. Affirmed.
Ronald Avila, in pro. per., for
Defendant and Appellant.
Stephanie M. Hogan, in pro. per.,
for Plaintiff and Respondent.
________________
Ronald
Avila appeals from a February 23,
2011 order of the trial court granting Stephanie M. Hogan’s request
for a restraining order against
him. He contends that substantial
evidence does not support the court’s order.
We disagree and affirm the order.
BACKGROUND
Hogan and Avila
have never been married to each other, but have a child together (the
minor). In 2000, Hogan filed an
application for a restraining order against Avila,
which resulted in a stipulated order filed on November 7, 2000.
Among other things, the order required Hogan and Avila
to stay at least 100 yards away from each other and to refrain from making
derogatory comments about each other to the minor. The order further provided that Hogan “will
not raise allegations of any acts of violence by [Avila] towards herself or any
other person alleged to have occurred prior to March 30, 1999 in any
future proceeding regarding custody and or visitation of†the minor. On November 10,
2008, Hogan filed a request for restraining order against Avila
and a temporary restraining order (TRO) was granted. On December 2,
2008, the trial court dissolved the TRO and denied Hogan’s request
for a restraining order, finding “insufficient evidence to grant the request
for the permanent restraining order.â€
The instant
appeal concerns Hogan’s request, filed on
February 1, 2011, for an order requiring Avila to not harass,
physically assault, or contact Hogan, Hogan’s mother, and the minor. In support of her request for a restraining
order, Hogan declared that on January 23,
2011, she had reported to police that Avila
was making annoying phone calls and sending annoying texts. On January 24,
2011, Hogan was in her home office located in the backyard off the
side of the garage. Avila
sent her multiple faxes requesting information regarding the minor. Hogan turned off the lights in the
office. The backyard lights were not on
and it was dark outside. When Hogan
opened the door, someone punched her in the jaw. Hogan believed Avila
was the attacker. She thought that Avila
hit her because he was angry that on the previous day she had not turned on the
fax machine to receive messages. The
police responded to the incident but did not give Hogan an emergency protective
order. Hogan also declared that Avila
had hit her on many occasions and had pushed and shoved her and grabbed her by
the throat. In recent months, Avila
sent Hogan demanding, harassing, and threatening letters and texts. On one occasion, Avila
showed Hogan his loaded gun and asked her if “she trusted him.†Avila
threatened Hogan constantly by saying, “‘Unless you have any proof of what I
say and do, don’t even bother saying anything because you won’t have any
proof.’†Avila
was in current violation of court orders by failing to attend anger management
and joint counseling sessions with the minor.
The “Child Custody Evaluator†reported that the minor’s mental health
would be at serious risk if he were placed in Avila’s
primary custody. When Avila
was prosecuted for an assault on another woman, he “threatened [Hogan] on what
to say on his behalf.â€
On February 1, 2011, the trial court
issued a TRO ordering Avila to stay
100 yards away from Hogan and the minor and not to harass or contact them. The TRO also ordered Hogan to have legal and
physical custody of the minor. On February 14, 2011, Avila
filed an answer to the TRO, denying that he had ever battered or harassed
Hogan, and denying that he had assaulted her on the evening of January 24, 2011. He also denied that he had sent Hogan
threatening or harassing letters or text messages and denied that the gun
incident described by Hogan had occurred.
On February 23, 2011, the date of
expiration of the TRO, the trial court heard argument on the request for a
restraining order. Hogan testified that Avila
lived five minutes away from her. She
testified that because Avila had faxed her at all times of the day instead of
faxing her during agreed-upon time periods, Hogan had asked Avila to text her
first when he needed to fax her so that she could turn on the fax machine. On January 23,
2011, Hogan, who is a nurse, was at work when Avila
texted her and asked that she turn on her fax machine. Hogan texted back to Avila
that she was at work and asked if she could connect the fax after 9:00 p.m. that evening or the next
evening. After work, between 9:30 p.m. and 10:00
p.m., Hogan stopped at the police station to report that she feared
Avila would retaliate against her
because she had not turned on the fax machine.
She told the police that in the past, when she had failed to comply with
Avila’s demands, he would hit her
or damage her property. The next day, January 24, 2011, Hogan texted Avila
to make arrangements to turn her fax machine on for a four-hour period. At 6:42 p.m.,
after multiple attempts by Avila to
fax messages to her, Hogan received a fax requesting the name of the minor’s
therapist. She sent Avila
a text stating: “This is what you were
demanding me to leave work and come home and turn my fax on.†She did not receive a reply text. About 20 minutes after she received the
fax, Hogan switched the fax machine off and shut off the office lights. It was dark outside because the backyard
lights, which “come on automatically when it hits . . . a certain darkness,â€
were not on. She opened the office door
and was punched in the right side of her jaw and fell back into the
office. She was dazed and saw “maybe a
silhouette or a shadow.†She stated, “If
it wasn’t [Avila], it was his
twin.†She did not get a good look at
her attacker’s face but noticed that he wore an orange jacket. The next day Hogan saw that a bush against a
wall had been pushed down away from the wall.
An electrician found that the lights were not working. Hogan testified, “Either there was a faulty
wire or it had been pulled. But nothing
that could be 100 percent like they had been cut. There’s nothing like that.â€
Hogan
further testified that in August 2009, when she entered her office she found Avila,
who had not been invited to her home, sitting on a couch. Avila
grabbed Hogan, shoved her, and pushed her against the filing cabinet. He said something about documents and legal
custody. In May 2009, Avila
grabbed Hogan, pulled her and stepped on her foot, fracturing her toe. In April 2008, Avila shoved Hogan into a
concrete trash can when she intervened between Avila and the minor after Avila
tried to pull the minor, who was resisting, into a therapist’s office. She believed that Avila had kicked in the
vents on the side of her house the day before a court hearing in November 2008,
which she reported to the police. In
1996, Avila had pointed a loaded gun at her while he was drunk. Hogan reported that the minor has had
diarrhea, headaches, abdominal pain, anxiety and stress because of Avila’s
actions. She stated that after the TRO
was granted, the minor was “no longer breaking down on the steps of the school
not wanting to go,†and has not had
Avila
testified that his relationship with the minor had improved from the time of
the child custody evaluation and that the minor had told Avila that he wanted
to live with him. Avila believed that
Hogan filed a request for a restraining order to prevent the minor from living
with Avila. Avila lives 10 to 12 minutes
away from Hogan. Avila testified that he
did not ask for the name of the therapist in a text and preferred faxing as a
method of communication because: “I try
to have everything in writing. I find
texting unreliable. Because my
particular phone, after a certain time when it gets full, all my sent texts get
automatically deleted. And sometimes
texts get accidentally deleted.†Avila
denied that he had assaulted Hogan on January 24, 2011, and stated that he
believed someone else had assaulted her because on July 6, 2009, Hogan had
sent him a text — which he believed was meant for someone else —
claiming that “you†had fractured her foot.
Avila still had that text in his phone.
When questioned by the trial
court, Avila conceded that his belief that someone else was harming
Hogan was based on speculation. Avila
denied that in August 2009 he had waited for Hogan in her office, then shoved
her; that in April 2008 he shoved Hogan into a concrete trash can; and that in
May 2009 he fractured Hogan’s toe. Avila
also testified that he had attended anger management sessions pursuant to a
court order.
Avila’s
sister, Cecilia Avila, testified that Avila has lived with her for 12 years and
that his normal routine was to come home between 6:00 p.m. and 6:30 p.m. She testified that on January 24, 2011,
Avila came home at 6:30 p.m. and did not leave the house until the next
morning. Cecilia testified that Avila
always told her if he was planning to go to the gym after work, but he did not
tell her he was going to the gym on January 24, 2011.
Martha
Avila, Avila’s mother, testified that she could not remember if Avila went to
the gym the week of January 24, 2011.
Martha believed Avila had been home on January 24, 2011, because
she remembered him mentioning that he had been having problems faxing to Hogan
and that he did not think she was going to respond to his questions about the
therapist.
The trial
court found that Hogan had met her burden of proof. It noted that Avila had “lost credibilityâ€
when he testified that he did not want to communicate with Hogan by text
because his phone does not retain texts, yet he later testified that he still
had a text in his phone that was sent to him by Hogan on July 6, 2009. The court ordered Avila to not harass,
threaten or stalk Hogan, not to contact her by telephone, email, or text except
for peaceful contact as required for court-ordered visitation, and to stay 100
yards away from Hogan, her home, her vehicle, and her place of employment. The court ordered Avila into a 52-week
batterers’ intervention program and modified the custody order to give Hogan
sole legal and physical custody of the minor, with visitation on the first and
third weekends of the months, from Friday at 3:00 p.m. to Monday at 8:00
a.m. The court ordered the order to be
in effect until February 23, 2016, at 10:15 a.m.
Avila appealed.
Substantial
evidence supports the trial court’s restraining order
Avila contends that the trial court
erred by determining
that he lacked credibility based on a perceived inconsistency in his
testimony. We disagree.
Avila argues that the trial court relied on what it
mistakenly believed to be inconsistencies in his testimony in determining that
he was not a credible witness. Avila
urges that his testimony that he chose to communicate by fax instead of text
because his phone deletes “SENT†texts when the memory gets full and
that texts are sometimes accidentally deleted is not inconsistent with his
testimony that he still had a text on his phone that was sent to him by Hogan
on July 6, 2009. He argues that the
court did not understand the difference between “SENT†“RECEIVEDâ€
and “ALL†texts. Yet it was for the court to determine whether Avila was
a credible witness. “It is an
established principle that the credibility of witnesses and the weight to be
given their testimony are matters within the sole province of the trier of
fact, here the trial court. (Smith v. Regents of University of
California (1997) 56 Cal.App.4th
979, 985, fn. 5.)†(As
You Sow v. Conbraco Industries (2005) 135 Cal.App.4th 431, 454.) A trial
court “is entitled to reject in toto the testimony of a witness, even if
that testimony is uncontradicted.†(
County Employees’ Assn. (2012) 205 Cal.App.4th 960, 966, citing
659–660.) The court had the “opportunity to observe the appearance and demeanor
of the witnesses,†while we review a cold record. (In re
Sheila B. (1993) 19 Cal.App.4th 187, 199–200.)
Accordingly, we conclude that the trial court did not
err in determining that Avila lacked credibility.
Avila also contends that the trial court erred
in issuing the restraining order because Hogan’s false allegations were not supported by
corroborative evidence, including police reports, witness testimony,
photographs, faxes, text messages or emails.
We disagree.
In order to obtain a restraining
order the petitioner must show by a preponderance of the evidence “reasonable proof
of a past act or acts of abuse.†(Fam.
Code, § 6300; Gdowski v. Gdowski
(2009) 175 Cal.App.4th 128, 137.) Family Code section 6300 provides, “An order may be issued under this part, with or without
notice, to restrain any person for the purpose of preventing a recurrence of
domestic violence and ensuring a period of separation of the persons involved,
if an affidavit or, if necessary, an affidavit and any additional information
provided to the court pursuant to Section
6306, shows, to the satisfaction of the court,
reasonable proof of a past act or acts of abuse.†The Domestic Violence Prevention Act (DVPA), codified in
Family Code section 6200 et seq., “defines ‘abuse’ as either an
intentional or reckless act that causes or attempts to cause bodily injury; an
act of sexual assault; an act that places a person in reasonable apprehension
of imminent serious bodily injury to himself or herself or to another; and an
act that involves any behavior that has been or may be enjoined under section
6320. (§ 6203.) The behavior that may be enjoined under
section 6320 includes ‘molesting, attacking, striking, stalking, threatening,
sexually assaulting, battering, harassing, [and making] annoying telephone
calls as described in Section 653m of the Penal Code.’ (§ 6320.)†(Nakamura
v. Parker (2007) 156 Cal.App.4th 327, 334.)
“A grant or
denial of injunctive relief is generally reviewed for abuse of discretion. [Citation.]
This standard applies to a grant or denial of a protective order under
the DVPA. [Citation.]†(Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.)
We conclude that substantial
evidence supports the trial court’s restraining order. In
her declaration under penalty of perjury and sworn testimony, Hogan stated that
although it was dark and she did not get a clear glimpse of her attacker’s
face, she believed it was Avila who had punched her in the jaw on
January 24, 2011. She
stated, “If it wasn’t him, it was his twin.†She believed he was angry because she had not
had the fax machine turned on the day before.
Hogan also stated that in recent months she had received oral threats
and threatening texts, letters, and faxes from Avila. She stated that Avila had assaulted her in
the past by grabbing and choking her, stepping on her toe and fracturing it in
May 2009, and shoving her when he appeared at her office uninvited in August
2009. Further, Hogan stated that in
April 2008, Avila had pushed her into a concrete trash can outside a
therapist’s office, and that in 1996 he had pointed a loaded gun at her head.
Avila argues
that Hogan’s allegations regarding threats and assaults by Avila and the
minor’s mental and physical health were false, uncorroborated by police
reports, texts, and records of property damage, and were contradicted by
himself and his witnesses. He urges that
the trial court was biased against him because it did not require physical
evidence and chose to believe Hogan rather than him. But “[a] trial court is
vested with discretion to issue a protective order under the DVPA simply on the
basis of an affidavit showing past abuse.â€
(Nakamura v. Parker,
perjury, petitioner “provided numerous specific and admissible facts based on
personal knowledge showing past acts and more recent and recurring acts showing
that [respondent] intentionally or
recklessly caused or attempted to cause her bodily injury and placed her in
reasonable apprehension of imminent serious bodily injuryâ€].) Accordingly, Avila’s argument that physical corroborative evidence
is necessary must fail. And as stated,
Avila is attempting to have us reweigh the evidence, which we cannot do. “Weighing evidence, assessing credibility,
and resolving conflicts in evidence and in the inferences to be drawn from
evidence are the domain of the trial court, not the reviewing court.†(In re
Alexis E. (2009) 171 Cal.App.4th 438, 451.)
We also
reject Avila’s objections to Hogan’s testimony presented for the first time on
appeal. (See In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on
other grounds as stated in In re M.R.
(2005) 132 Cal.App.4th 269, 273–274 [failure to object to errors committed at
trial is a forfeiture of claim of error on appeal]; In re Sheena K. (2007) 40 Cal.4th 875, 880–881.) Similarly, Avila cannot claim for the first
time on appeal that the court should have continued the hearing sua sponte in
light of “new†allegations he claims Hogan raised. And Avila’s contention that he has a twin brother —
and therefore reasonable doubt exists as to his guilt for the January 24,
2011 assault — cannot be presented for the first time on appeal.
Avila
contends that the trial court erred in considering the 1996 gun incident
because Hogan stipulated that she would not raise allegations of any acts of
violence by Avila prior to March 30, 1999, in any future custody or
visitation proceedings. Even assuming he
had objected, Avila has not made a cogent argument that Hogan could not use
this evidence in a proceeding for a restraining order to protect herself, her
mother, and the minor. Finally, Avila
argues that the court should not have considered the incident in April 2008
during which Avila allegedly pushed Hogan against a concrete trash can outside
a therapist’s office because a court in a previous matter had found
insufficient evidence to issue a restraining order. Assuming he had objected, again Avila cites
no authority that this evidence is inadmissible simply because it was found
insufficient, in light of the other evidence presented to the court. (See People
v. Griffin (1967) 66 Cal.2d 459,
464.)
Accordingly,
we conclude that the trial court did not abuse its discretion in issuing
the restraining order.
Finally,
Avila attacks the custody and visitation order on the grounds that his “past act
or acts of abuse†are not supported by substantial evidence. As we have discussed previously, he fails in
this regard.
DISPOSITION
The order is
affirmed. Stephanie M.
Hogan is entitled to costs on appeal.
NOT TO BE PUBLISHED.
MALLANO,
P. J.
We concur:
CHANEY, J.
JOHNSON, J.
