Marriage of Farshi
Filed 1/10/13
Marriage of Farshi CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage
of SEPIDEH and ESMAEIL FARSHI.
SEPIDEH
MOJTAHEDZADEH,
Plaintiff and Respondent,
v.
ESMAEIL
FARSHI,
Defendant and Appellant.
D060218
(Super. Ct. No. D528075)
APPEAL
from an order of the Superior Court of
County, Christine K. Goldsmith, Judge. Affirmed as modified. Motion to take judicial notice denied.
Defendant
and appellant Esmaeil Farshi (Father) appeals a 2011 domestic violence
restraining order (DVRO) that prevents him from contacting his former wife,
plaintiff and respondent Sepideh Mojtahedzadeh (Mother) and their two children,
for a stated period (until 2066). (Fam.
Code, § 6200 et seq., the Domestic
Violence Prevention Act (DVPA); all statutory
references are to this code unless noted.)
Father contends the order was issued contrary to his own evidence, or
alternatively, it is void because its duration exceeds the five years expressly
permitted by the statutory scheme. He
also appears to challenge the family court's exercise of discretion in denying
his own cross-petition for such an order.
In
response, Mother argues that the family court acted well within its discretion
and in compliance with the evidence when it issued the
the reporter's transcript of the hearing indicated that the duration of the
order should be five years from date of issuance, while the written order is to
the contrary. She proposes that the
written order be modified on appeal, to comply with the statutory scheme. (§ 6345; Code Civ.
Proc., § 43.)
The
record substantially supports the issuance of the order on Mother's petition,
and the order denying Father's cross-petition, based upon the evidence
presented and the trial court's interpretation of the applicable legal
standards. However, section 6345,
subdivision (a) clearly provides that the proper duration of such an order is not more than five years, unless the court, in its discretion, orders a shorter effective period (the
order "may have a duration of not more than five
years . . . ."). (Ibid.) We affirm the order as modified, with
directions to the trial court to issue a corrected DVRO restraining the conduct
of Father, to clarify that its duration is five years, or until June 26, 2016.
FACTUAL AND PROCEDURAL BACKGROUND
In
2011, the parties were married and had one son who was about age 2 and one
daughter, age 14. Mother is highly
trained in medicine and Father, the same in physics, and they formerly lived in
Iran. On February 8, 2011, Mother filed a petition seeking a temporary DVRO under the DVPA,
which was granted. Her supporting
declarations stated that Father lost his job in 2008, and he had become
increasingly angry and abusive over the past year. They separated in January 2011, after a
period in which Mother was out of town and Father stayed home and had
apparently cut the wires to some of the appliances and left trash around the
house. Mother stated that Father came
back to the house and threatened her on February 3, 2011,
in the presence of the children, upsetting them all. He was granted supervised visitation but did
not pay the fees and it did not take place.
On
February 16,
2011, Father had apparently started the
process of selling their house to friends, allegedly without her permission,
and he had a notice to quit posted upon the front door. Somebody interfered with the operation of the
electrical box outside the house.
On
February 28,
2011, Mother filed her petition for
dissolution and later obtained a reissuance of the DVRO. Numerous contested hearings ensued on the
support and property division issues in the dissolution, and interim orders
were made. Father filed a responsive
declaration, claiming that Mother had previous domestic violence offenses, is
an agent of the Islamic Republic of Iran, and is under investigation by the
FBI, Homeland Security, and the IRS for stealing his company's antiterrorism
security technology. He contended that
the DVRO she obtained caused his company's guns to be unfairly taken away.
The
DVRO was reissued several times, the matters were consolidated, and the hearing
was set for June
20, 2011, when oral testimony would be
presented according to Mother's request.
On June
13, 2011, Mother lodged numerous documents
in support of her request for the order, including the 60-day notice to quit,
e-mails between them on the property issues, and information about Father's
mental problems and his prescriptions for treatment of depression and other
ailments.
On
June 8, 2011, Father filed his answer to the DVRO proceedings and lodged
supporting documents. On June 16, 2011, Father filed a cross-petition for a restraining order to keep
Mother away from him and his parents. He
alleged that Mother had threatened him with a knife and cursed him in the February 3, 2011 incident, and threatened him again in May 2011.
Mother
filed an answer denying his allegations and notifying the court that Father's
guns that had been at the house had been turned in to law enforcement. She attached a copy of a sheriff's report of
her claims of identity theft by Father in May 2011, causing her credit card
losses of $1,250.87.
The
contested evidentiary hearing began on June 20 and concluded on June 27, 2011. Both parties testified, as
did their daughter, Mother's relative Mohammad Jebelli, and Father's parents,
with the help of a Farsi interpreter.
Father offered tape recordings of his conversations in Turkish with
Mother during the February 3, 2011 incident, when
they argued and alleged threats were made.
The judge responded that the tapes would not be useful to her, since she
had no knowledge of the Turkish language, but Father could explain in testimony
what was said during those three conversations in January and February
2011. Father did so.
In
Father's testimony, he explained that agents of the Iranian regime were
following him, and the FBI and Homeland Security were cooperating with him
against Mother's activities on behalf of the Iranian National Guard and
Revolutionary Guard. He stated that
Mother had threatened him on May 31 after a hearing. Mother denied such allegations.
Both
Mother and their daughter testified about police officers coming to the family
home the week between the two hearings, and taking the son and daughter to the
Polinsky Children's Center overnight, on suspicion of child abuse by Mother, as
reported by Father. A worker there
talked to Mother about preparing a safety plan and advised Mother not to go
home, but to stay at a nearby hotel, because child protective services
personnel thought that Mother's and the children's lives were in danger from
Father. The children were returned the
next day, and although the police came back a few days later at the request of
Father, the children were not again taken out of the home.
The
minute order of June 27, 2011 states that the
court considered the pleadings and the exhibits that had been presented, and
determined that "there is sufficient cause to issue a permanent
restraining order" against Father and "the expiration date of the
restraining order will be 6/26/66 for computer
purposes." The form order has 2066
penciled in. The court found that there
was not enough evidence to issue a restraining order against Mother (the
petitioner) and denied the cross-petition.
The
court's oral statement of decision, as taken down by the court reporter,
instead granted Mother a DVRO for a five-year period, to expire June 26, 2016. The court found that Mother
had made an extremely credible case for a restraining order to protect her
safety and the safety of the children, based on Father's past actions. The court denied Father's cross-petition.
Father
sued the original family court judge (Judge Christine Goldsmith) in federal
court, and she recused herself from further proceedings July 5, 2011.
Request
On
July 22, 2011, Father appealed from the DVRO granted against him, apparently also
challenging the order denying his own request.
Both parties lodged their exhibits with this court. Numerous filings postdating the
the dissolution action, are also included in the clerk's transcript.
Additionally,
Mother has filed an amended motion to take judicial notice of numerous
pleadings and orders filed in other cases that Father has brought against
Mother in California and Arizona, and the action against Judge Goldsmith, and
the dissolution judgment issued in this case in December 2011. All of these were filed later than the notice
of appeal in this case. This motion was
deferred for this merits panel to decide, and we now address it. (Evid. Code, § 459; Cal. Rules of Court,
rule 8.252(a); all further rule references are to the California Rules of
Court.)
Generally,
review on appeal is based solely on the evidence before the trial court at the
time of the challenged ruling, particularly in a discretionary matter such as
the issuance of a DVRO. (See
14 Cal.4th 434, 444, fn. 3.) Although an
appellate court has limited authority to admit additional evidence, this
authority must be "exercised sparingly." (In re
Zeth S. (2003) 31 Cal.4th 396, 405; Code Civ. Proc., § 909.) There is no justification for doing so in
this case, which presents limited issues for resolution, all based upon the
showing made before the trial court. The
motion is denied.
DISCUSSION
Father
appears to claim there were incidents of corruption or irregularities at the
family court level that operated against him, or that he did not get a fair
hearing on all of the available evidence.
He attacks the order as excessive and void, as the statute only allows a
five-year term for the order.
(§ 6345.) In his reply
brief, he disagrees with any suggested reduction of the term of the order,
instead seeking to have it wholly vacated.
To
address the issues that have been validly raised in Father's appeal, we set
forth applicable standards of review for evaluating the record, and explain the
proper limitations upon our scope of review.
I
A. Review
This dispute was heard on companion petitions for
DVRO's. A trial court has broad
discretion in determining whether to grant such an order under this statutory
scheme. (See § 6345, subd. (a); Gonzalez
v. Munoz (2007) 156 Cal.App.4th 413, 420 (Gonzalez); Loeffler v. Medina
(2009) 174 Cal.App.4th 1495, 1505 (Loeffler).)
Abuse of discretion occurs if the
trial court exceeds the bounds of reason, or fails to apply correct legal
standards and thereby takes action outside the confines of the applicable
principles of law, or acts without substantial support in the evidence. (Gonzalez, supra, 156 Cal.App.4th 413, 420-421.) As a trier of fact, a trial judge is required
to reject evidence only " 'when it is inherently improbable or
incredible, i.e., " 'unbelievable per se,' "
physically impossible or " 'wholly unacceptable to reasonable minds.' " [Citations.]' " (Lenk v.
Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.)
On appeal, we do
not reweigh the evidence or second guess the credibility of a witness. (In re
Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531.) In determining whether substantial evidence
supports the court's order, we view the evidence in the light most favorable to
the order. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1151;
1505.)
Where
there is a discrepancy between the reporter's transcript and a written order,
the general rules are that the oral pronouncement controls, or the version
entitled to the most credence, under all the relevant circumstances, is
accepted. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2;
599.)
As
an appellant, Father has the burden of providing an adequate record and of
showing that error occurred and that it was prejudicial. (Maria
P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121,
132.) The arguments on appeal must be
restricted to documents in the record, and we generally may not consider
references to matters outside the record.
(Rule 8.204(a)(2)(C) [appellant's opening brief must provide a summary
of significant facts limited to matters in the record on appeal].) Absent an adequate record to demonstrate
error, a reviewing court presumes the judgment or order is supported by the
evidence. (In re Angel L. (2008) 159 Cal.App.4th 1127, 1136-1137.)
It
is well established that "[i]n propria persona litigants are entitled to
the same, but no greater, rights than represented litigants and are presumed to
know the [procedural and court] rules."
(Wantuch v. Davis (1995) 32
Cal.App.4th 786, 795.) For any
appellant, "[a]ppellate briefs must provide argument and legal authority
for the positions taken. 'When an
appellant fails to raise a point, or asserts it but fails to support it with
reasoned argument and citations to authority, we treat the point as
waived. [Citations.]' " (Nelson
v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.) "We are not bound to develop appellants'
arguments for them. [Citation.] The absence of cogent legal argument or
citation to authority allows this court to treat the contention as
waived." (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814,
830.)
B. Statutory Scheme
The DVPA permits a court, upon a
showing of "reasonable proof of a past act or acts of abuse," to
issue a protective order restraining any person from contact, for the purpose
of preventing a recurrence of domestic violence. (§§ 6220, 6300; S.M. v. E.P. (2010)
184 Cal.App.4th 1249, 1264.)
"Abuse" in this domestic violence context may include, under
section 6203, subdivision (c), placing "a person in reasonable
apprehension of imminent serious bodily injury to that person or to
another," or engaging "in any behavior that has been or could be
enjoined pursuant to Section 6320."
(§ 6203, subd. (d).) Among
the behaviors that may justify a DVRO, section 6320 includes "molesting,
attacking, striking, stalking, threatening . . . harassing,
telephoning . . . destroying
personal property, contacting, either directly or indirectly, by mail or
otherwise, coming within a specified distance of, 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." (§ 6320, subd. (a).)
Abuse, even if nonviolent, may warrant the issuance or
renewal of such a protective order. (In
re Marriage of Nadkarni (2009) 173
Cal.App.4th 1483, 1496; § 6345.)
"[S]ection 6320 broadly provides that 'disturbing the peace of the
other party' constitutes abuse . . . ." (Nadkarni, supra, at p. 1497.) "[T]he plain meaning of the phrase
'disturbing the peace of the other party' in section 6320 may be properly
understood as conduct that destroys the mental or emotional calm of the other
party." (Id. at pp. 1497-1498.) To obtain such an order, a protected
party has the burden to show by a preponderance of the evidence that a
reasonable person would have a " 'reasonable
apprehension' " of future abuse.
(Ritchie v. Konrad (2004) 115
Cal.App.4th 1275, 1290.)
II
A. Respective Showings: DVRO
We first
acknowledge that Father's arguments on appeal are diffuse, extremely difficult
to understand, and unsupported by record citations or legal argument. Basic appellate procedure required Father as
an appellant to summarize the relevant underlying facts fairly, but instead, he
makes only broad based attacks and arguments about the political and legal
systems and their participants, according to his particular world view. Such factual statements in appellate briefs
not supported by citations to the record are improper and cannot be
considered. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
Although we could
consider Father's apparent claims that the order is not supported by the record
to be waived, we exercise our discretion to examine the record for any
evidentiary and legal support for the DVRO granted, and for the denial of the
cross-petition.
We reiterate that
Father has made no factual showing to support his serious allegations of
corruption or other misfeasance at the family court proceedings. Instead, the reporter's transcript shows that
the judge conscientiously gave Father a chance to be heard and to explain his
position, but he could not or did not offer any support for it.
The record fully
supports Mother's request for injunctive relief arising from the dysfunctional interactions between Father,
the children, and herself, up to and including the time of hearing. "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."
(Gonzalez, supra, 156 Cal.App.4th at p. 420.) " 'The scope of discretion always
resides in the particular law being applied by the court, i.e., in the
" 'legal principles governing the subject of [the] action. . . .' " ' " (S.M. v. E.P., supra, 184
Cal.App.4th 1249, 1264-1265.)
Numerous hearings and continuances
of these related matters had occurred, and the trial judge was very familiar
with the history of the case. Absent an indication to the contrary, we are required to presume the
trial court applied the correct legal standards in making its discretionary
determinations. (In re Angel L., supra, 159 Cal.App.4th 1127, 1136-1137;
Mother's petition, and to deny the request by Father, there is no basis in the
record to show the court abused its discretion in any way in evaluating these
competing requests.
B. Duration of DVRO
Section 6345, subdivision (a) provides in
relevant part that "in the discretion of the court," a DVRO issued
after notice and hearing "may have a duration of not more than five years,
subject to termination or modification by further order of the court either on
written stipulation filed with the court or on the motion of a
party." Under subdivision (c) of
this section, "The failure to state the expiration date on the face of the
form creates an order with a duration of three years from the date of issuance." (§ 6345.)
Here,
the written minute order and form order seem to provide an expiration date of
June 26, 2066, but as acknowledged in the respondent's brief, "some
confusion exists in the record regarding whether the superior court intended
the June 27, 2011 Order's duration to be five years or fifty five
years . . . ."
Specifically, the reporter's transcript shows the court set an
expiration date of June 26, 2016, to be entered into the court computer, and
that latter date is appropriate as in compliance with the express terms of
section 6345. (People v. Farell, supra,
28 Cal.4th 381, 384, fn. 2.)
The
appropriate action for this court is to modify the June 27, 2011 order to
confirm its expiration date is June 26, 2016.
No issues are currently before us regarding any future modification
requests that may be made according to statute.
We affirm the DVRO as it is so modified and corrected.
DISPOSITION
The
order is affirmed as modified to clarify that pursuant to section 6345, the
duration of the order is five years, and the trial court shall prepare a modified
and corrected order. Costs are awarded
to Respondent.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER,
J.
IRION,
J.
