Filed 7/27/26 R.C. v. C.C. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
R.C., B338856
Appellant, (Los Angeles County
Super. Ct. No.
v. 23STPT03066)
C.C.,
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark Juhas, Judge. Affirmed.
Gabbard Family Law and Nathan W. Gabbard for
Appellant.
James Alex Karagianides for Respondent.
At the request of respondent C.C. (Mother), the family
court issued a domestic violence restraining order against
appellant R.C. (Father), with whom she shares a son, B.C. (Son).
The parties protected by the restraining order the court issued
are Mother, Son, and their nanny, C.S. (Nanny). Father asks us
to decide whether the court should have granted Father’s
requests to continue the evidentiary hearing held to decide
whether the restraining order should issue, whether the court
improperly shifted the burden of proof to him at that hearing,
and whether the family court’s overall decision to grant the
requested order was an abuse of discretion.
I. BACKGROUND
A. Commencement of Family Law Proceedings and
Mother’s Request for a Temporary Restraining Order
Mother and Father were never married. Father initiated
family law proceedings in October 2023 when he filed a petition
to determine his parental relationship with Son.
Shortly thereafter, Mother filed a request that the court
issue a domestic violence restraining order protecting her, Son,
and Nanny from Father. Mother’s supporting declaration
asserted Father had long been abusive to her and Son but his
abuse recently escalated to a point where Mother no longer felt
safe living with Father or allowing Son to live with him. The
declaration described a slew of incidents that Mother believed to
be abusive, e.g., a time when Father berated Son over the quality
of his homework and Son hit himself and said he was stupid and
not good enough, times when Father screamed or threw things at
Mother, and times when Mother claimed Father sexually
assaulted her.
2
The same day that Mother filed her request, the court
issued a temporary restraining order that limited Father’s
contact with Mother, Son, and Nanny; that temporarily gave
Mother sole custody of Son; and that ordered Father not to visit
Son. The court also set a hearing on November 9, 2023, to decide
whether a restraining order should issue on a more permanent
basis.
B. Pre-Hearing Proceedings
1. Father’s first request for continuance
On November 8, 2023, Father filed a request to continue
the restraining order hearing to give him additional time to
prepare a defense in light of the seriousness of Mother’s
accusations and the length of time over which she alleged the
abuse occurred. He also asked the court to modify the temporary
restraining order to allow him monitored visitation with Son.
The family court designated the case a long cause matter
and continued the hearing for reassignment.1 After
reassignment, the court held a trial setting conference in late
November 2023 and reserved dates in late February and early
March 2024 for the evidentiary hearing.
1
The court ordered Father and Son to participate in conjoint
therapy once Son’s therapist confirmed he was ready for it. The
court also ordered that, pending confirmation from Son’s
therapist, Son and Father were to have recorded video calls twice
per week. The temporary restraining order was amended in
December 2023, and the amended order provided Father with
two phone calls per week only.
3
2. Father’s second request for continuance
The trial court held a status conference at the end of
January 2024. There is no reporter’s transcript of the
proceedings, but a minute order indicates the court set various
pretrial deadlines (including dates to exchange video exhibits,
witness lists, and exhibit lists) and left the evidentiary hearing in
place as scheduled.
Approximately one week later, Father filed an ex parte
application to continue the trial date for at least 60 days. A
declaration from counsel supporting the application explained
various witness depositions (including those of Mother, Father,
and Nanny) had been started but not completed and represented
Father needed additional time to complete them. Counsel also
identified several other discovery-related bases for the requested
continuance: Father’s need to depose out-of-state witnesses,
Mother’s production of 22 video files that needed transcription
and metadata investigation, Father’s need to translate 314 pages
of text messages produced by Nanny, Mother’s pending motion to
quash a subpoena Father issued to a third party, and Mother’s
asserted failure to produce documents necessary for trial.2
Father argued Mother would not be prejudiced by a continuance
because Father would agree to extending the terms of the
temporary restraining order pending new trial dates.
Mother opposed Father’s request for a continuance, citing
then-newly effective Family Code section 6309, which provides
for special procedures to “streamlin[e] any domestic violence
restraining order discovery to expedite the adjudication of
2
Many of the requests for production sought documents
related to Mother’s finances.
4
requests for restraining orders and prevent abusive litigation
tactics that interfere with legislative intent to protect domestic
violence victims.” (Fam. Code,3 § 6309, subd. (a)(2)(C).) Mother
argued that, in light of section 6309, Father wrongly assumed he
was entitled to conduct and complete all discovery he deemed
necessary prior to the hearing. Mother also argued Father failed
to seek a continuance as soon as reasonably practicable, and that
granting his request would prejudice Mother by subjecting her to
further abuse via discovery.
The family court denied Father’s requested continuance.
The court explained: “In light of Family Code section 6309, an
ex-parte requesting discovery is not appropriate.”
3. Father’s third request for continuance
Just over two weeks later, Father filed another ex parte
application to continue the trial. At that point, Father had
retained new counsel and counsel submitted a declaration
outlining several reasons for the requested continuance: (1) he
had been retained to file a competing request for a domestic
violence restraining order against Mother and it would make
more sense to hear the matters together, (2) Father’s initial
attorney was anticipating withdrawing due to family issues, (3)
Mother provided “‘discovery dumps’” after the court’s earlier
denial of his request for a continuance that required forensic
expert review,4 (4) some of the videos Mother produced were
3
Undesignated statutory references that follow are to the
Family Code.
4
Specifically, the declaration states that on February 9,
2024, Mother produced 13 new videos, two new photographs, and
5
stripped of metadata and would require production of the
originals, and (5) Father needed time to file a request for the
original video footage and a motion in limine to preclude the use
of videos until the versions produced could be compared with the
original footage.
Mother opposed the ex parte application, arguing Father
was seeking to use excessive discovery and litigation to continue
to harass Mother. She again argued Father could not establish
good cause for a continuance and had not sought a continuance as
soon as reasonably practicable.
The trial court denied the requested continuance. In its
minute order, the court stated the hearing dates had been set for
almost 90 days and the temporary restraining order had been in
place for four months. The court noted it was Father’s second
continuance request that month, this time with new counsel. The
court opined both parties were entitled to resolution of the
domestic violence issues between them and the court’s review of
the papers indicated there was not good cause to continue the
matter so close to the scheduled evidentiary hearing date.
4. Mother’s motions in limine
After Father filed an amended witness list in advance of
the restraining order evidentiary hearing date, Mother filed two
22 videos that were previously produced without metadata. On
February 15, 2024, Mother produced three new photographs and
five new PDF files, at least one of which consisted of 125 pages of
text messages. The declaration did not specify how long any of
the videos were.
6
motions in limine.5 One asked the court to preclude Father from
calling trial witnesses and the other asked the court to preclude
Father from introducing any exhibits at trial. Both motions were
premised on Father’s failure to timely file witness and exhibit
lists by the court’s previously set deadline and his failure to
comply with relevant local rules. Counsel for Mother submitted a
declaration asserting she communicated with Father’s counsel
the day after the deadline to submit an exhibit list and counsel
informed her they would not be submitting an exhibit list.
The motions in limine were argued on the first day of the
restraining order hearing. Though there is a reporter’s transcript
from that day, the motions in limine were not argued on the
record. Rather, toward the beginning of the hearing, the court
stated: “The record should reflect that we had a discussion about
exhibits. [¶] [Father] is going to have no exhibits in [his] case-in-
chief. The only exhibits [he] will have will be impeachment
exhibits. [¶] [Father] has two witness lists. [¶] [Father] advised
that the expert witness that is on the new list will be only for
impeachment; [¶] and that any witness that is not on the initial
list will be precluded from testifying.”
The record also contains a minute order memorializing the
ruling on Mother’s motions in limine. The minute order states
the court granted Mother’s motion in limine to exclude Father’s
trial exhibits and granted in part Mother’s motion in limine to
exclude Father’s witnesses—such that Father could only present
witnesses who were on his initial witness list or who would be
called for impeachment purposes. The minute order additionally
5
No written opposition to the motions in limine is included
in the appellate record.
7
explains that Father “advise[d]” that the expert listed on his
amended witness list would testify for impeachment purposes
only and any exhibits to be offered would likewise be offered only
for impeachment.
C. The Evidentiary Hearing
Mother, Father, and Nanny testified during the evidentiary
hearing. So did Shari Dinnel (Dinnel), Son’s reading tutor for a
period of time; Mohammad Siddiqui (Siddiqui), Father’s brother-
in-law; and Rob Levy (Levy), Father and Mother’s friend.
The testimony at the hearing established a timeline of sorts
for Mother and Father’s relationship. They met in Philadelphia
in January 2012 and moved to California together in 2015.
Mother planned to leave the relationship in 2016, but she became
pregnant and decided to stay with Father. Son was born in
December of that year and Mother informed Father she was
going to leave the relationship in 2017 or 2018, but she
ultimately reconsidered. In January 2019, Mother and Father
hired Nanny to be their live-in nanny. Mother again told Father
she was going to leave the relationship in 2020, but again, she
ultimately reconsidered. In May or June of 2020, and in May of
2021, Mother underwent IVF treatments in hopes of having a
second child. Mother and Father ended their romantic
relationship in February 2023 but they continued to live in a
house in Encino together until October 2023—when Mother left
the home with Son.
8
1. Father’s behavior, as described by Mother and
Nanny
a. Father’s concern for his possessions
When Mother and Father moved to California together in
2015, Father refused to hire movers because he did not want
anyone to touch or break his belongings. Once in California,
Father did not want Mother to have visitors at their home
because he did not want them to touch his belongings. If Mother
moved any of Father’s artwork, Father would scream at her and
tell her not to do so. Father would get very angry when Nanny
touched his clothes or certain tools he used for his art. Once,
when she touched some tools, he got very upset, waved a knife,
and said he would chop off Nanny’s hand if she ever touched it
again. Mother also recounted four incidents in late 2022 in which
Son knocked into or otherwise hit some artwork piled or stacked
around the home and Father screamed at him.
Father placed video cameras in many places in the various
homes Mother and Father shared, including Mother and Father’s
bedroom. After they moved to Encino in September 2022, Mother
had no access to the security cameras in the home.
On the day of Son’s first birthday party in December 2017,
Mother moved boxes of light bulbs Father had left out in the
living space. When Father realized this, he confronted Mother in
the nursery while she was changing Son’s diaper. Mother
submitted a video of the incident, captured on a camera in the
nursery. In the video, Father walks into the room, stops near the
doorway, and says, “I spent fucking hours on these lights.”
Mother tells Father to “start over,” waving her hand at him.
Father turns back toward the door, says, “no, fuck you,” calls
9
Mother a “piece of shit,” and throws a handful of mail in Mother’s
direction before walking away. Mother yells back at Father to
get out of the house.
b. Father’s treatment of Mother
When Mother and Father disagreed about something,
Father would say Mother was not as educated as he was, was not
as smart as he was, and could not make decisions as well as he
could. When Mother did not acquiesce to something Father
wanted, he would tell her she was stupid and her family was
uneducated white trash.
Father once put his arm around Mother’s neck to restrain
her during an argument, hindering her breathing for
approximately two minutes. During a different argument, which
occurred while Mother was pregnant, Mother retreated to take a
shower and Father proceeded to bang on the shower door and yell
at Mother for approximately three minutes while Mother was in
the corner facing away from him and sobbing.
In 2018, Father pressured Mother to have sex with him on
a daily basis. There were times Mother relented to Father’s
demands. There were also times she declined to have sex with
Father and he would spend an hour insulting her and telling her
she was not a good partner and was not meeting his needs. On
other occasions, Father would persist after Mother refused to
have sex and she would just lay there and let him have his way
with her. One night in August 2020, while Mother was
undergoing IVF treatments and was not permitted to have
anything inserted into her vagina, Father pinned her down by
putting his knees on her shoulders after she said “‘no’” and then
thrust his penis into her mouth repeatedly until he orgasmed.
10
In July 2023, which was after Mother and Father had
ended their romantic relationship, Father was caring for Mother
because she was injured on a business trip. While Mother was
still recovering, Father began to pressure Mother for sex. He
repeatedly told Mother that masturbating would help relieve her
pain and purported to show her a research paper on the topic.
Mother told him she was in pain and not feeling sexual. Later,
on an evening in August, Mother fell asleep in bed (she and
Father were sharing a bed) and awoke to find Father rubbing his
erect penis against her, with his fingers in her vagina. Mother
told him to stop and pushed his arm away. Father tried to put
his fingers back in Mother’s vagina, saying she would feel better.
After Mother pushed him away and said no several times, he
stopped.
Mother later sent Father a text message stating that in
order to avoid a repeat of the previous night, Mother wanted to be
clear she did not want to be touched in any sexual way. Father
responded he did not want to repeat it either, saying he did not
want to be “set up.” Father also reminded Mother that he had
paused his life for three weeks to take care of her following her
accident. Father indicated that when he went to bed the night
before, Mother engaged with him verbally and physically rubbed
all over him, “to which [he] reciprocated.” Father reiterated that
he did not want to be set up or spoken to poorly.
c. Father’s treatment of Son and focus on
Son’s education
Father intimidated and screamed at Son. At times, Father
would also try to take Son into the bathroom, and Mother would
step between them, say no, and try to interact with Father such
11
that he would start yelling at her instead. Father would
sometimes threaten to lock Son in the dark garage; the cold, dark
pool; or a closet without the lights on. He did so on New Year’s
Eve 2022, and Son ran into a different room to stay away from
Father.
Father was very fixated on Son’s education. Mother
submitted a video, captured by a camera in Son’s bedroom, of an
incident that took place when Son was three and a half years old.
In the video, Father and Son are sitting together looking at a
piece of paper. Father tells Son to do something “right now” or he
would get in trouble. Son responds that he doesn’t know how to
do it. Father says he does, and instructs him to try. Son appears
to try and looks back at Father. Father gets up and leads him
out of the room. Son asks, “What’s going to happen to me?”
Father says something that sounds like, “What do you think?”
Son says, “spank?” and Father says, “I don’t know, maybe.” Son
later told Mother that Father spanked him. Nanny testified she
saw Father hit Son several times when they were living in
Redondo Beach, and once when they were living in Encino.
In 2021, Mother and Father initially enrolled Son in a
private school close to their home in Redondo Beach. Before the
school year started, Father spoke to a different private school in
Sherman Oaks without informing Mother, filled out an
application without her knowledge, and informed her one
morning they had an interview with the school the same day.
Son ultimately attended the school in Sherman Oaks, and before
he started, Mother, Father, and Son moved to Encino (which was
not what Mother wanted).
Son started first grade in fall 2023. Father was angry Son’s
first homework assignment included words that were spelled
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wrong. On October 12, 2023, Father took issue with how Son
completed a different homework assignment. Mother and Father
proceeded to argue at the dinner table, with Son sitting between
them eating his dinner, about whether the way Son completed
the homework was sufficient. Mother presented 10 video clips of
the argument, which she took on her cell phone. Father asked
Son if he wanted to finish his homework, while Mother spoke
over him and said Son had finished the homework just right.
Father said Mother had sub-par schooling. Father also told Son
that Son was smarter than Mother and tested higher than
Mother. Father threatened Mother that if she continued on this
path she would lose custody of Son.
After the incident, Son told Mother he just does what
Father says so Father does not get “more mad.” Later the same
night, Son was very agitated and started flinging his body down
on the bed. When Mother tried to calm him down, he started
hitting himself and scratching his face. Son said he hated
himself, and did not want to be on this earth. Mother presented
a video of part of the incident, in which Son said he is stupid and
an idiot and said he is going to kill or hit himself.
Mother left the family home with Son the next day. Father
subsequently demanded Nanny disclose their location. Paternal
grandmother asked Nanny if she loves living in America and said
she (the grandmother) could “make one phone call.” Nanny also
said both paternal grandmother and Father threatened her
immigration status. At some point, Father also told Nanny he
would take her to Tijuana and said he had friends in gangs and
in the mafia there.
13
2. Father’s testimony
Father did not deny Mother’s request to use a moving
company when they moved to California. Mother also had access
to all the video cameras in their homes in Redondo Beach and
Encino.
Regarding the December 2017 incident involving
lightbulbs, Father did not intentionally throw mail at Mother.
Instead, he meant to put the mail down on an ottoman or chair
but the mail was heavier than he realized. Father also did not
assault or strangle Mother during any argument.
Father did not engage in any sexual conduct with Mother
when she was asleep and he never did anything sexual to Mother
without her consent. Regarding the allegation of sexual assault
in August 2023, Mother and Father were laying in bed when
Mother asked why Father was not cuddling with her. Father
started cuddling with her, she was moving around a little bit, and
then she asked Father to rub her back. He massaged her from
her neck to her glutes, and she suddenly asked what he was
doing. Father said he was just massaging her, and Mother said
she didn’t want him to do it that way. Father did not do anything
without Mother’s consent that night.
Father never spanked Son, and never wanted to spank him,
but there were a couple of instances where he tapped Son on his
bottom over his pull-ups and pants. He said Son thought it was
funny. Father never put Son in the garage; a cold, dark pool; or a
dark closet. Father also did not threaten Son on New Year’s Eve
2022. Father had no issue with Son touching his possessions or
his art. He did, however, take issue with Son jumping on the
couch at times.
14
Regarding Mother’s education, she told Father on
numerous occasions that she had to get herself ready for school in
the morning and had some gaps in her early learning and
homework because she did not have the support she wanted to
have. Some of those gaps were “obvious” to Father, and though
she had done the best she could to help Son with his schoolwork,
some of what Son was learning was detrimental. As an example,
Son was drawing his letters the wrong way and had to spend four
months with a reading specialist to unlearn it.
The video of the October 2023 interaction with Son (and
Mother) about Son’s homework was missing segments, including
two or three minutes in the beginning in which Mother insulted
Father. Son told Mother he wanted to add to his homework, but
Mother told him the homework was done. Both Father and
Mother said many things in the course of that interaction that
were not appropriate to say in front of Son.
The knife-brandishing incident involving Nanny never
occurred. Father has never brandished a knife at anyone.
Mother sent Father, during their relationship, a “constant
barrage of emails”; of 2,760 emails Father reviewed, Mother
started the vast majority of the arguments in those emails.
Father believed he was being “baited”; he would think they had a
great time and then receive an email purporting to document
something that didn’t happen. Father also reviewed 2,400 pages
of text messages that revealed the consistency of his relationship
with Mother. Father also had video footage of Mother pinching
Son, flicking him in the head, and screaming at him. When this
occurred, Father would confront Mother about the behavior, she
would deny it, and Father “would pull the video and show her.”
15
On cross-examination, Father was asked to confirm he did
not produce in discovery the 2,760 emails he described in his
testimony. Father said he did not know, replying that there was
a “mass” of discovery produced. Father also did not know if he
had produced in discovery the 2,400 pages of text messages he
referenced. Likewise, Father was also asked to confirm he had
not produced any videos of Mother pinching and flicking Son. He
responded, “I don’t believe so. I don’t know. I don’t believe so.”
Since the issuance of the temporary restraining order,
Father had been in therapy and taken parenting classes. Father
had a few phone calls per week with Son since December. During
one call, Son told Father he did not like it when Father yelled at
him. Father asked when he yelled at Son, and Son did not give
specific examples.
3. Additional witnesses called by Father
According to Dinnel, Son never expressed any fear of
Father and she never witnessed Father being inappropriate with
Son or abusive to Mother. According to Siddiqui, he never
observed Mother or Son to be afraid of Father. According to
Levy, Mother never appeared afraid of, controlled by, or
subservient to Father. Levy also never observed Father
physically abusing Son and Levy had no reason to believe Father
was verbally abusive.
D. The Trial Court Issues a Domestic Violence
Restraining Order
The family court took the matter under submission and
made its ruling in a March 7, 2024, minute order setting forth
“further findings and comments [that were intended] to be read
16
in conjunction with” the various “comments and findings” the
court earlier made on the record. Those comments and findings
were made after the close of testimony and partially in
preparation for the parties’ closing arguments. Among other
things, the court commented that Father’s statement that he has
voluminous texts, emails, and videos that would prove Mother
wrong could lead the court to believe Father was not telling the
truth because he did not present any of it. The court also stated
there was pretty good evidence that the sexual assault incident
Mother described as happening after her accident occurred the
way she said it did, but the court said it was not making an
express finding at that time.
As reflected in the minute order, the family court expressly
found Mother was more credible than Father about the various
events. The court specifically highlighted in that regard the
difference between Father’s description of the “mail video”
incident and the events that transpired on the video. The court
found a “common theme” throughout the case was Father’s angry
overreaction to various events in the house, e.g., someone
disturbing his possessions. Though Father denied acting out, the
evidence established the aggressive and threatening nature of his
reactions directed to Mother, Nanny, and Son.
The court found Father threatened to spank Son, and
actually did spank him for not complying with Father’s
homework requirements. The court was unsure whether physical
discipline would be appropriate under those circumstances but
found that threatening Son and causing him anxiety about
physical discipline was not appropriate.
The court found Father denigrated and had no respect for
Mother, especially concerning Son’s education. It was clear from
17
the evidence that Father sought to control every aspect of Son’s
education given his obvious feeling that Mother was incapable of
making any education decisions. The disdain and its delivery
was more than annoying; Mother’s peace was disturbed and it
made her feel “‘less than.’”
The court acknowledged that some of Mother’s complaints
were more consistent with being annoyed and upset as opposed to
having her peace disturbed under the Family Code.
Nevertheless, the court found “there was a consistent
undercurrent of control which ran through the parties’
relationship.” The court found Father’s assertion that he did not
get upset with Son when he touched Father’s art was not credible
given the rest of the evidence. The court found credible Nanny’s
testimony that Father threatened her with physical harm for
touching his art and Father separately threatened her
immigration status. The court considered these illustrative of the
control Father exercised over household members. The court
found Mother’s statement that Father had sole control and access
to the thermostat and interior and external cameras in fall 2023
credible.
The court noted that Father denied many of the allegations,
and “at no time . . . acknowledge[d] or express[ed] remorse for his
role in the family and the resulting intense pressure put on
[Son].” The court reflected Father was quick to point out his
sacrifice in each situation and put the blame on Mother. In the
mail video and subsequent discussion, Father stated over and
over again how many hours he spent with the light bulbs and
how disrespectful Mother was. The court observed that Father
denied the August 2023 sexual assault allegation, but texts
between the parties make clear some sexual activity occurred—
18
rather than acknowledge even a misunderstanding, Father
blamed Mother and responded about his supportive actions.
Based on the evidence, the court found it appropriate to
issue a domestic violence restraining order protecting Mother,
Son, and Nanny. The court signed a three-year domestic violence
restraining order that continued the existing custody order. The
court acknowledged it was draconian in nature, but it said it did
not believe it had sufficient information to make a change—
referencing Father’s scant acknowledgement of his role in the
matter. The restraining order indicates Mother is the protected
person and designates Son and Nanny as other protected people.
The order grants sole legal and physical custody of Son to Mother
and authorizes Father to have two telephone calls per week with
Son.
Father filed a request for a statement of decision. The
court denied the request, which was filed a day too late, was not
in the proper format,6 and was not accompanied by a copy of the
March 5, 2024, transcript that the court referenced in its minute
order.
II. DISCUSSION
All three of Father’s arguments for reversal fail. The
court’s comments regarding Father’s references to documents and
6
Specifically, the court said Father’s request for a statement
of decision took various statements from the court’s minute order
and repeated them in more than 80 requests, rather than
identifying the principal controverted issues at trial and asking
the court to explain the factual and legal basis of the court’s
decision as to each of those issues.
19
videos not produced at trial, and its comments regarding Father’s
lack of remorse for the effect his role in the family had on Son, do
not establish the court improperly shifted the burden of proof to
Father. Father has not demonstrated the trial court abused its
discretion in denying his continuance requests made primarily
because he wanted to take additional discovery. And it was not
an abuse of discretion to issue the requested restraining order
because substantial evidence establishes Father sexually abused
Mother—which means we need not discuss Father’s challenges to
the other grounds for the order.
A. The Family Court Did Not Improperly Shift the
Burden of Proof
The Domestic Violence Prevention Act (DVPA) authorizes
courts to issue a domestic violence restraining order “to prevent
acts of domestic violence, abuse, and sexual abuse and to provide
for a separation of the persons involved . . . for a period sufficient
to enable these persons to seek a resolution of the causes of the
violence,” if the evidence shows “reasonable proof of a past act or
acts of abuse.” (§§ 6220, 6300, subd. (a); In re Marriage of
Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1424.) The
party seeking the order bears the burden of proof. (Jan F. v.
Natalie F. (2023) 96 Cal.App.5th 583, 593; Curcio v. Pels (2020)
47 Cal.App.5th 1, 14.)
Father contends the family court erroneously put the
burden of proof on him instead. He points to the family court’s
comments faulting Father for referencing documentary and video
evidence without introducing it at trial and faulting Father for
not expressing remorse for his role in the family and its effect on
Son.
20
Evidence Code section 412 provides that “[i]f weaker and
less satisfactory evidence is offered when it was within the power
of the party to produce stronger and more satisfactory evidence,
the evidence offered should be viewed with distrust.” (Evid.
Code, § 412.) In comments it made after the close of evidence,
and in its minute order regarding its ruling, the trial court
pointed to Father’s comments regarding the ostensible plethora of
emails, text messages, and videos in his possession which he
indicated would show Mother was not telling the truth and
remarked that they were not provided at trial. Father contends
this was error primarily because Father was precluded from
offering exhibits at trial.
Even if that were true, Father’s inability to introduce
exhibits at trial was of his own making. Father’s attorney did not
file an exhibit list by the court-imposed deadline. (See generally
Code Civ. Proc., §§ 575.1, 575.2; Super. Ct. L.A. County, Local
Rules, rule 5.14.) When Mother’s attorney raised the absence of
an exhibit list, Father affirmatively stated he was not going to
submit one. Then, insofar as the record reveals, Father did not
oppose Mother’s motion in limine, which asked the court to
preclude him from introducing exhibits. Father cannot now
complain that the court drew an adverse inference from the
absence of exhibits he did not produce when he could have
produced them (had he filed an exhibit list) but did not.
Relying on the use notes in CACI 203 and the jury
instruction related to Evidence Code section 412, however,
Father argues the failure to produce evidence should not be held
against a party if there is no evidence the party had the power to
produce superior evidence. But Father himself supplied evidence
of that power. Father voluntarily referenced the thousands of
21
emails, thousands of pages of text messages, and videos in his
possession. He had the power to produce the evidence in
discovery. He had the power to identify the evidence on his
exhibit list. Yet he could not confirm he did the former, and he
did not do the latter.7
Father also asserts the court’s comments evince a
misunderstanding of the reason why he testified about the
myriad emails and text messages. As Father argues it, he
referenced those emails and texts not because he thought they
“disproved the allegations” made by Mother but as examples of
how he “felt ‘baited’ because he believed [Mother] was making a
record of things that did not happen.” That is too limited a view
of the record and Father’s testimony. Although Father did
mention the emails in the context of stating he felt baited by
Mother, his reference to the thousands of text messages and
numerous videos were not made in that context. Rather, Father
asserted he had videos of Mother pinching Son, flicking him in
the head, and screaming at him in the context of explaining
conversations he and Mother had about disciplining Son. And he
asserted he had 2,400 pages of text messages that showed the
consistency of his relationship with Mother. None of that was
introduced in evidence (or apparently produced in discovery), the
7
Father’s complaint that the trial court did not direct
similar comments to Mother lacks merit. Father seemingly
contends that because Mother had access to and preserved some
video recordings, she should have preserved or produced more
videos, and the court should have faulted her for not doing so.
But Mother testified she provided everything she could find or
remember and had not sought to preserve other videos. Father,
in contrast, referenced videos he did not believe he had produced.
22
family court drew an adverse credibility inference on that basis,
and drawing that adverse credibility inference was not an
improper shift in the burden of proof.
Father also argues the trial court placed an undue burden
on him by remarking that Father did not acknowledge or express
remorse. The record does not support Father’s assertion that the
trial court improperly placed the burden of proof on him by
making these comments.
The comments Father highlights come in the family court’s
minute order; the court writes “there was scant acknowledgment
by [Father] of his role in this matter,” and that, “at no time did
[Father] acknowledge or express remorse for his role in the
family and the resulting intense pressure put on [Son].” The
court further stated that “[t]ypically, [Father] was quick to point
out his sacrifice in each situation and put the blame on [Mother].”
The court then went on to discuss two examples of video and
documentary evidence that featured Father acting in such a
manner. The first was the mail video and subsequent video in
the den, where Father focused on how many hours he spent with
the lightbulbs, and how disrespectful Mother was. The second
was the text message chain between Father and Mother
regarding the sexual assault in August 2023, from which it is
clear some sexual activity occurred, but in which Father does not
even acknowledge a misunderstanding and instead blames
Mother for everything.
The context for the court’s observations reveals the family
court never said or intimated that Father should have expressed
remorse during the evidentiary hearing. Instead, it pointed out a
pattern of behavior it observed from the evidence, namely, that
Father did not recognize his role in events as they occurred.
23
Additionally, the court remarked only that Father did not
demonstrate remorse for his role in the family and resulting
pressure on Son, not that he did not express remorse for any
alleged wrongdoing.
In a summary fashion, Father combines a laundry list of
additional wrongs he contends the trial court committed, which
he asserts indicates the court assumed a position of advocacy
against him. The law Father cites cautioning against assuming
such a position of advocacy, however, addresses the propriety of
the way a trial court questions a witness in a jury trial. (See,
e.g., Bailey v. Murray (2024) 102 Cal.App.5th 677, 685 [stating a
court has the discretion and duty to ask questions of witnesses to
elicit material facts or clarify confusing testimony, and noting the
questioning “‘must not convey to the jury the court’s opinion of
the witness’s credibility’”].) Here, of course, there was no jury—
the court itself was the factfinder. And Father identifies no
questions posed by the trial court that he contends were
improper.
Father also takes issue with the court’s decision to quote
section 6309’s statement that “[d]omestic violence survivors who
enter the family or civil court systems seeking protection often
face ongoing abuse in the form of litigation abuse.” (§ 6309, subd.
(a)(1)(C).) We fail to see how the court’s reading of a statutory
provision after the close of testimony rendered the hearing unfair
where, as here, there was no jury for the court to bias and the
court, of course, is presumed to know the applicable law.
Father also asserts the court assumed a position of
advocacy by cutting short a line of questioning regarding “an
education issue” and making adverse findings against Father
involving the issue of education. The testimony in question
24
involved a workbook Son was given by his school and Mother and
Father’s related communications with his teachers. After Mother
testified she did not believe Father communicating with the
school regarding the workbook was abusive, Father continued
asking Mother questions on the topic. It was at that point the
court interjected and indicated Father should move on. Father
does not identify which of the education-related findings were
germane to the line of questioning the court truncated. Without
such an identification, or even a contemporaneous objection, the
argument fails. (Evid. Code, § 354; Steven W. v. Matthew S.
(1995) 33 Cal.App.4th 1108, 1117.)
B. The Trial Court Did Not Abuse Its Discretion by
Denying Father’s Continuance Requests
In a DVPA proceeding, “[t]he respondent shall be entitled,
as a matter of course, to one continuance for a reasonable period,
to respond to the petition.” (§ 245, subd. (a).) Additionally,
“[e]ither party may request a continuance of the hearing, which
the court shall grant on a showing of good cause.” (§ 245, subd.
(b).)
The trial court denied both of the ex parte continuance
requests that Father filed in February 2024 (two of the three
continuances Father requested in total). Because trial courts
enjoy “broad discretion in deciding whether to grant a request for
a continuance” (Freeman v. Sullivant (2011) 192 Cal.App.4th 523,
527), we review the denial of a continuance for an abuse of that
25
discretion (In re Marriage of Falcone & Fyke (2008) 164
Cal.App.4th 814, 823).8
The court’s stated reason for denying Father’s early
February request for a continuance was that an ex parte
application was not appropriate in light of section 6309. Section
6309 provides that a party to a domestic violence restraining
order matter is not permitted to conduct discovery under the
Civil Discovery Act unless the party makes a showing of good
cause. (§ 6309, subds. (b), (c)(1).) The statute further provides
that “[a] party may make an oral or written request for discovery
to the court at an evidentiary hearing pursuant to this part.”
(§ 6309, subd. (c)(2).)
Section 6309 became effective January 1, 2024. It was thus
not effective when Father began discovery, but it was effective
when he requested his continuance on the ground that he needed
additional time to complete discovery. In his ex parte request for
a continuance, Father did not request discovery under section
6309 or attempt to establish good cause for the discovery he
stated he needed to complete. Though, as Father contends, the
statute does not expressly prohibit a party from making a request
for discovery on an ex parte basis, it was not an abuse of the
court’s discretion to deny the request because Father did not
comply with the statute.
8
To the extent Father complains about the cumulative effect
of precluding him from presenting exhibits at trial and denying
his continuance requests, the argument is meritless because, for
reasons already discussed, the issuance of the evidentiary order
was due to Father’s decision not to submit an exhibit list.
26
In denying Father’s subsequent ex parte application for a
continuance, the trial court said the hearing dates had been set
for almost 90 days, the temporary restraining order had been in
place for four months, both parties were entitled to resolution of
the issues, and from the court’s review of the papers there was
not good cause to continue the matter virtually on the eve of trial.
A hearing on a request for a domestic violence restraining order
is an expedited proceeding required to be heard, in the normal
course, 21 to 25 days from when the petition is filed. (§ 242.) The
evidentiary hearing was scheduled to begin (and did begin) 132
days after Mother filed her request for a restraining order. It
was well within the trial court’s discretion to determine granting
Father additional time was not warranted.
Father contends the denial of his requests for continuance
deprived him of the ability to present his case on the merits,
pointing to the many segments of the October 2023 video Mother
presented and asserting forensic analysis would have been
appropriate and reasonable under the circumstances. But Father
does not show he could not have undertaken this sort of forensic
analysis between the time of production and the commencement
of trial: the October 2023 video to which he points consisted of 10
separate videos, but the longest was only two minutes and nine
seconds long, and most were under 30 seconds long. Father also
argues (though he did not so argue below) that forensic analysis
would have been appropriate in light of his testimony that there
were gaps in the clips. But Father’s testimony established those
very gaps, and Father does not explain what forensic
confirmation of the gaps would have added.
Father further contends his requests to continue the
hearing were based on good faith efforts to understand the nature
27
and scope of the allegations against him and in consideration of
the availability of counsel. Father had four months to
understand the nature of the allegations against him and to
obtain discovery. That should have been ample time. Indeed, in
his first request for a continuance he sought “at least 90 days,”
and he received 109 days after making the request. Father also
asserts he sought the continuance due to the availability of his
counsel, but Father was represented by two attorneys at the
evidentiary hearing, at least one of whom had represented Father
since early November 2023. Father has accordingly not
demonstrated the trial court abused its discretion in determining
there was no good cause for the continuance.
C. The Family Court’s Ruling Was Not an Abuse of
Discretion
The DVPA defines abuse to include physical violence or the
threat thereof, including sexual assault, as well as disturbing the
peace of the other party. (§ 6203, subds. (a)(1)-(4); § 6320, subd.
(a); see In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483,
1494, 1497.) “‘[D]isturbing the peace of the other party’ refers to
conduct that, based on the totality of the circumstances, destroys
the mental or emotional calm of the other party,” including by
exercising coercive control. (§ 6320, subd. (c).)
We review an order granting a protective order under the
DVPA for abuse of discretion. (Nadkarni, supra, 173 Cal.App.4th
at 1495.) “[T]o the extent we are called upon to review the court’s
factual findings, we apply the substantial evidence standard of
review.” (Curcio, supra, 47 Cal.App.5th at 12.) We accept as true
all evidence tending to establish the correctness of the trial
court’s findings and resolve every conflict in favor of the
28
judgment. (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140,
1143.)
Father contends the trial court prejudicially erred in
finding abuse under the DVPA because the evidence admitted
does not rise to the level of abuse. Specifically, Father argues
substantial evidence did not support a finding of abuse based on
corporal punishment of Son, the evidence did not support the
finding of “coercive” control, the court improperly ignored the
totality of the circumstances in determining Father disturbed
Mother’s peace, and Father’s right to defend his property meant
any injury inflicted when he acted in defense of that property
could not constitute abuse.
We will assume just for argument’s sake that all of that is
correct even though the family court expressly found Mother
more credible than Father about the various events and we would
accord deference to that finding. (See, e.g., Cohen v. TNP 2008
Participating Notes Program, LLC (2019) 31 Cal.App.5th 840,
859.) There is still a proper basis for the court’s discretionary
decision to issue the restraining order because Mother testified
that Father sexually abused her multiple times over the course of
their relationship, including by refusing to take “no” for an
answer, at least once by physically pinning her down and
thrusting his penis into her mouth, and by penetrating her with
his fingers while she was asleep in August 2023.9 This testimony
9
The trial court did not emphasize the sexual abuse
testimony in its minute order ruling, but it did remark on the
record after the close of evidence that it believed there was
“pretty good evidence . . . that the event that [Mother] testified
[to] actually probably occurred the way she said it did.”
29
(unchallenged by Father on sufficiency of the evidence grounds) is
alone adequate to justify issuance of the order. (See generally
J.M. v. G.H. (2014) 228 Cal.App.4th 925, 935 [“We draw all
reasonable inferences in support of the court’s ruling and defer to
the court’s express or implied findings when supported by
substantial evidence”].)
DISPOSITION
The family court’s order is affirmed. Mother is awarded
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM (D.), J.
30