Filed 7/21/26 Martinez v. Franco CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
AMBER MARTINEZ, B342203
Appellant. Los Angeles County
Super. Ct. No.
v. 24STRO02140
LEON DAVID FRANCO,
Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura Cohen, Judge Pro Tempore. Affirmed.
Amber Martinez, in pro. per., for Plaintiff and Appellant.
No appearance for Respondent.
Amber Martinez appeals from an order denying her request
for a domestic violence restraining order (DVRO) against Leon
David Franco. Martinez argues the trial court erroneously
rejected her factual claims about Franco’s alleged abuse. She
further contends the trial court erroneously admitted evidence
Franco had not served on her and that her counsel was
ineffective. We reject these arguments and affirm.
BACKGROUND
I. Allegations in Martinez’s Request for a DVRO
In March 2024, Martinez filed a request for a DVRO
against Franco, her former romantic partner. Martinez wrote
that Franco “assaulted” her “many times” and described multiple
alleged incidents. We summarize the details of her allegations
here.
According to Martinez, Franco pointed a gun at her on one
occasion. She yelled at him to stop. Franco laughed at her and
continued to point the gun at her until she yelled at him again.
Another time, Franco bit her on the arm, leaving a red bite mark
and causing swelling. He also once shoved Martinez against his
refrigerator, then pushed her outside onto the ground and locked
her out.
Martinez further stated that in January 2024, during a
meal at a restaurant with two friends, he screamed at her and
called her a “bitch.” After the meal, Franco hit her in the face
with a couch cushion two or three times. In February 2024, while
they were in a movie theater, Franco repeatedly slapped her
thigh. She got up to leave, and he grabbed her arm before letting
her go.
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Martinez asserted the most recent incident occurred at
Franco’s home in March 2024. Franco hit her in the face several
times with a weighted pillow. She cried and yelled at him.
Franco began filming her while she wore only a bathrobe. He
laughed at her, demanded sexual favors, then told her to make
him breakfast. Martinez said she wanted to leave, but Franco
refused to move his truck, which was blocking her car. He only
moved the truck when Martinez said she was calling the police.
Martinez left and went to the emergency room. Her eye
was swollen and she had an abrasion on her cornea. Medical
staff contacted the police, who issued an emergency protective
order for Martinez. She gathered and organized her evidence,
then filed her DVRO request.
II. Initial Proceedings and Franco’s Written Response
Both parties appeared at the initial hearing on Martinez’s
DVRO request. The court continued the hearing to May 9, 2024,
and ordered the parties to “exchange all evidence prior to the
next hearing” and to file witness and exhibit lists by May 2.
On May 3, Franco filed a response to Martinez’s request.
He filed no proof of service of his response. In it, Franco asserted
Martinez fabricated her claims of domestic violence. He wrote he
does not own a gun and, though he owns a “toy gun,” he never
pointed it at Martinez. He also stated a restraining order was
unnecessary because he had no interest in contacting Martinez
again.
III. Evidentiary Hearing
At the evidentiary hearing, the court began by asking if
Martinez’s counsel had met and conferred with Franco. Her
attorney stated they had done so, he “saw [Franco’s] response,”
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and was ready to proceed. The court told the parties to “exchange
your evidence” while it heard unrelated matters.
Upon resuming the hearing, the court admitted into
evidence both Martinez’s request for DVRO and Franco’s written
response. The court questioned Martinez about the most recent
abuse. She recounted that Franco hit her with a pillow, then
filmed her (wearing only a bathrobe) without her consent.
Martinez described her injuries and identified them in photos she
took. She also testified about other incidents included in her
request: when Franco threw her against a refrigerator, slapped
her thigh, and pointed a gun at her. Martinez further testified
that Franco violated the temporary restraining order twice. On
April 20, he drove to her home, and on May 4, he followed her on
Instagram. Martinez’s counsel also questioned her about the
most recent alleged abuse.
The court asked Martinez about her medical expenses. In
addition to the records attached to her DVRO request, Martinez
offered further documentation supporting her expenses. The
court stated they were unnecessary and that the documents may
be hearsay. Martinez’s counsel then questioned her further
about the incident on April 20. She testified she saw Franco in
his car “try and sit outside” her home.
Franco did not cross-examine Martinez. In his testimony,
he denied following her on Instagram. He said he did not try to
see her after the temporary restraining order took effect, though
he conceded she may have seen him on a street near her home as
he drove elsewhere. Franco said that over the course of their
relationship, he tried to break up with Martinez several times,
but she “would threaten” to “get [him] in trouble.”
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Regarding the most recent alleged incident, Franco denied
hitting Martinez with a pillow. He testified they had an
argument, then Martinez threatened to “get [him] in trouble.” He
began filming her to protect himself from false accusations.
Franco offered to play the video in court. The court asked Franco
if he had shown it to Martinez’s counsel, and he acknowledged he
had not. Martinez’s counsel objected. The court partially
overruled the objection but did not watch the video.
Franco continued testifying about the most recent incident.
According to Franco, after he stopped filming Martinez, he left
the room. About 15 minutes later, Martinez told him she took
photos of his truck blocking her car. Franco testified he was not
trying to block her; they use tandem parking in his driveway, so
one car naturally blocks the other. He told Martinez he was
ready to move his truck.
Franco then began filming Martinez again. She claimed he
was trying to stop her from leaving. Franco denied that and said
he wanted her to leave. Martinez entered the bathroom, but
Franco told her he wanted her to leave now. He moved his truck,
and she left a few minutes later.
Before watching the second video (which is not in the
record on appeal), the court questioned Franco about it. He
stated the video shows Martinez was not injured. Though she
said she was afraid of him, she “was coming towards” him. The
court watched the video and found it corroborated Franco’s
testimony. The court stated that in it, Franco “was encouraging
her to leave” and “said he was happy for her to leave, and she did
not look fearful.”
The court continued questioning Franco. It asked Franco
to respond to Martinez’s claim that he slapped her on the thigh,
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causing a red welt. He stated he had only “grabbed her leg”
during an intense scene in a movie and was not trying to hurt
her. Finally, the court asked Franco if the relationship was over
and if he had any interest in contacting Martinez. He said the
relationship was over and he had no interest in contacting her,
and that he “wish[ed] her the best,” did not “wish to disparage
her in any way,” but had to defend himself from false accusations.
Martinez’s counsel questioned both Franco and Martinez
about the second video. Franco reiterated that in the video,
Martinez only pretended to be scared. On redirect, Martinez
testified that after Franco stopped filming, he stood in her way to
stop her from leaving and refused to move his truck.
IV. The Court’s Ruling
The court denied Martinez’s request for a DVRO against
Franco. It reasoned: “Based on the evidence before me, the
testimony here today, and my credibility determination, and the
totality of the circumstances. I find the respondent credible here
today. I do not find the petitioner very credible.” The court
therefore found Martinez had “not met her burden” of proving
Franco had abused her.
Martinez moved to set aside or reconsider the order. Before
the court ruled on the motion, Martinez timely appealed the
order denying her DVRO request. The court ultimately denied
her motion to set aside or reconsider its order.
DISCUSSION
I. Legal Standard
Under the Domestic Violence Prevention Act (DVPA), a
court may issue a DVRO “ ‘ “to restrain any person for the
purpose of preventing a recurrence of domestic violence and
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ensuring a period of separation of the persons involved” ’ upon
‘reasonable proof of a past act or acts of abuse.’ ” (Parris J. v.
Christopher U. (2023) 96 Cal.App.5th 108, 115.) The petitioner
must prove past abuse by a preponderance of the evidence. (Id.
at p. 116.) Abuse includes intentionally injuring a partner (Fam.
Code, § 6203, subd. (a)(1)) or making a partner fear imminent
injury (id., subd. (a)(3)). The court must “consider the totality of
the circumstances” when ruling on a DVRO request. (Fam. Code,
§ 6301, subd. (d).)
On appeal, we review an order granting or denying a DVRO
for abuse of discretion. (X.K. v. M.C. (2025) 112 Cal.App.5th
1287, 1295.) Where, as here, the trial court found the person
requesting a DVRO did not meet his or her burden of proof, we
reverse the decision below only if “ ‘ “the evidence compels a
finding in favor of the appellant as a matter of law.” ’ ” (Jan F. v.
Natalie F. (2023) 96 Cal.App.5th 583, 593.) “ ‘Specifically, we ask
“whether the appellant’s evidence was (1) ‘uncontradicted and
unimpeached’ and (2) ‘of such a character and weight as to leave
no room for a judicial determination that it was insufficient to
support a finding.’ ” ’ [Citation.] This is ‘an onerous standard’
[citation] and one that is ‘almost impossible’ for a losing [party] to
meet.” (Estes v. Eaton Corp. (2020) 51 Cal.App.5th 636, 651.)
II. The Trial Court Did Not Err in Denying the DVRO
The trial court’s denial of Martinez’s DVRO request was
not an abuse of discretion because Martinez’s evidence did not
compel a finding in her favor as a matter of law. Though she
submitted documentary evidence of injuries, only her written
declaration and oral testimony served as evidence that Franco
caused those injuries. Even before considering Franco’s
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testimony to the contrary, Martinez’s evidence did not have such
character and weight as to require finding in her favor.
Moreover, Franco contradicted Martinez’s evidence. In his
written response and oral testimony, Franco stated Martinez
fabricated her allegations. He denied Martinez’s specific
allegations of abuse, asserted he never threatened or harmed her,
and denied violating the temporary restraining order. After
considering the evidence, the court found Franco more credible
than Martinez. On appeal, we do not “second-guess such
credibility determinations.” (In re S.G. (2021) 71 Cal.App.5th
654, 672.)
It is true Martinez presented evidence that would have
supported a finding that Franco abused her. But as the trier of
fact, the trial court was free to reject that evidence based on a
finding that Martinez was not credible. That is exactly what the
trial court did here. Under the applicable standard of review, we
“draw all reasonable inferences to affirm the trial court.”
(Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 581.)
That the evidence may have supported a different outcome does
not permit us to reverse the decision below.
Based on the record before it, the trial court acted within
its discretion in denying Martinez’s request for a DVRO.
III. Service of Franco’s Response and Evidence
Martinez contends the court erroneously considered
evidence, including Franco’s written response, that he did not
serve on her before the hearing. At the hearing, however,
Martinez’s counsel acknowledged receiving Franco’s response.
When the court admitted Franco’s response into evidence,
Martinez’s counsel did not object. Further, Martinez did not
object to video evidence offered by Franco on the grounds that it
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was untimely served. Martinez therefore forfeited any claim of
error based on Franco not serving or disclosing his evidence
before the hearing. (Kabran v. Sharp Memorial Hospital (2017) 2
Cal.5th 330, 342 [failing to raise a point below results in
forfeiture on appeal]; Vascos Excavation Group LLC v. Gold
(2022) 87 Cal.App.5th 842, 856 [same].)
We also reject this argument on the merits. The applicable
statute requires the petitioner to “personally serve[ ]” the request
for DVRO on respondent “at least five days before the hearing.”
(Fam. Code, § 243, subd. (a).) It further provides that “the
respondent may file a response that explains or denies the
allegations in the petition.” (Id., subd. (c).) The statute does not
impose a deadline for the respondent to serve his or her response.
Indeed, nothing in the DVPA expressly provides when a
party must serve the other party with evidence he or she plans on
using at the evidentiary hearing. On the day of the evidentiary
hearing, the trial court required the parties to exchange evidence
shortly before the hearing commenced. This common practice is
consistent with the DVPA and due process.
Martinez identifies no authority prohibiting the court from
considering evidence respondent did not serve before the hearing
date. She instead refers to various inapplicable or nonexistent
rules on service and filing deadlines. She cites California Rules
of Court, rule 3.510, which only applies to complex coordination
proceedings. (See Gordon’s Cabinet Shop v. State Comp. Ins.
Fund (1999) 74 Cal.App.4th 33, 39.) Martinez also refers to
unspecified California “Court Procedural Rules” and “Federal
Procedural Codes.” With no proper citation to legal authority,
Martinez forfeited any contention based on these unidentified
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rules or statutes. (See Rios v. Singh (2021) 65 Cal.App.5th 871,
881.)
Martinez also argues the court ordered Franco to file his
response by May 2, 2024. The court, however, only ordered the
parties to jointly “[f]ile and serve a witness list and an exhibit list
by” that date. This order did not apply to Franco’s response to
the petition.
Furthermore, assuming the court erroneously admitted
Franco’s written response and video evidence, any error was
harmless. The trial court properly admitted Franco’s oral
testimony at the evidentiary hearing. Martinez does not argue
otherwise. Franco denied abusing Martinez and denied violating
the temporary restraining order. The trial court found this
testimony credible. Thus, even with no other evidence, the trial
court was not compelled to find in Martinez’s favor as a matter of
law.
IV. Ineffective Assistance of Counsel
Lastly, Martinez contends her counsel provided ineffective
assistance. Ineffective assistance of counsel is grounds for relief
only when one has the right to counsel, such as criminal
defendants or parents facing termination of parental rights.
(In re A.R. (2021) 11 Cal.5th 234, 247–248; In re Marriage of Tara
& Robert D. (2024) 99 Cal.App.5th 871, 887.) Martinez provides
no authority that parties in DVPA proceedings have a right to
counsel or that ineffective assistance of counsel in such
proceedings warrants relief on appeal. Any alleged deficiency of
her counsel is not grounds for reversal.
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DISPOSITION
The order denying Amber Martinez’s request for a domestic
violence restraining order is affirmed. Because Leon David
Franco made no appearance on appeal, neither party shall
recover costs. (See In re Marriage of F.M. & M.M. (2021) 65
Cal.App.5th 106, 121.)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TAMZARIAN, J.
We concur:
MORI, Acting P. J.
COGLIATI, J.*
* Judge of the Santa Cruz Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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