Clark
Filed 8/6/12 Clark v. Clark
CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
YOLANDA CLARK,
Plaintiff and Respondent,
v.
MARGIE A. CLARK,
Defendant and Appellant.
B235881
(Los Angeles
County
Super. Ct.
No. YQ015910)
APPEAL
from a judgment of the Superior Court
of
County. Susan K.
Weiss, Judge. Affirmed.
Margie
A. Clark, in pro. per., for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
______________________________
Margie Clark (appellant) appeals from the trial court’s
issuance of a temporary restraining order
prohibiting her from coming within 100 yards of respondent Yolanda Clark’s
residence, car, and place of employment.
We affirm.
FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
On July 20, 2011, respondent filed a
request for a domestic violence
prevention order pursuant to Family Code sections 6200 et seq.
In her
written request, respondent stated that appellant showed up at their mother’s
house when respondent was there to check on their mother.
respondent’s car. Respondent claimed
that appellant tried to drag her out of her car and began to physically assault
and threaten her. Respondent also
alleged that a neighbor helped her call the police, but appellant threatened
that neighbor. Appellant told respondent
that she had “heat,” showing respondent her purse. Respondent also alleged that a second event
occurred in which she was threatened in court by appellant. Finally, respondent alleged in her petition
that she had scars, scratches and bruises as evidence of the physical
altercations between her and appellant.
Appellant
submitted a lengthy letter in opposition, and it was difficult to ascertain the
facts and arguments she was presenting.
It appears that appellant claims respondent and her boyfriend live at
the mother’s house, selling and using drugs.
Appellant asserted that respondent induced appellant’s 19-year-old son
into staying in the house, where he is using and selling drugs. According to appellant, respondent sought
this protective order to keep appellant away from her son, so that respondent
can continue to use her son to deal drugs and generate income.
At the
hearing on August 10, 2011,
both parties appeared. Respondent
described the physical altercation that took place in great detail, explaining
that she does not live at the mother’s house.
Appellant maintained that she has only had verbal altercations with
respondent. Respondent conceded she did
not complete the call to the police because the man who allowed her to use his
cell phone had to leave, and not because appellant had threatened her.
Both
appellant and respondent agreed at the hearing that their altercations are also
fueled by an underlying dispute over their mother’s government aid check, which
was cut off in 2010 for a fraud investigation.
Appellant admitted that she reported respondent for a fraud
investigation because respondent took over their mother’s house. Appellant insisted respondent is keeping her
son against his will and uses him to sell drugs because she is angry that
appellant reported her. However,
respondent claimed appellant was upset that she stopped receiving their
mother’s government check, and in retaliation, she reported that their mother
uses drugs.
Upon
hearing the parties’ contentions, the trial court issued a domestic violence
restraining order for one year, ordering appellant to stay 100 yards away from
respondent’s residence, car, and place of employment. The court also instructed respondent to apply
for an extension at the end of that year if she still needed a protective
order.
Appellant
filed a timely appeal on September 8,
2011.
not file a brief.
DISCUSSION
A temporary
restraining order issued under the Domestic Violence Protection Act (DVPA) (§
6220) is of the nature of an order granting an injunction, thus it is
“separately appealable.” (
Cal.App.3d 343, 357; Code Civ. Proc., §904.1, subd. (a)(6).)
On appeal
from the issuance of a domestic violence
temporary restraining order, we apply an abuse of discretion standard of review
to determine whether the trial court exceeded the bounds of reason. (Gonzalez
v. Munoz (2007) 156 Cal.App.4th 413, 420 (Gonzalez); Quintana v.
Guijosa (2003) 107 Cal.App.4th 1077, 1079.)
“When two or more inferences can reasonably be deduced from the facts,
the reviewing court has no authority to substitute its decision for that of the
trial court.” (Gonzales, supra, 156
Cal.App.4th at p. 420, citing Shamblin v.
Brattain (1988) 48 Cal.3d 474, 478-479.)
The DVPA
authorizes issuance of a restraining order “to prevent the recurrence of acts
of violence and sexual abuse and to provide for a separation of the persons
involved in the domestic violence for a period sufficient to enable these
persons to seek a resolution of the causes of violence.” (§ 6220; Gonzalez,
156 Cal.App.4th at p. 421.) “The
Legislature has set forth the relevant factors in Family Code section 6300, by
providing that a domestic violence restraining order may be issued ‘if an
affidavit shows, to the satisfaction of the court, reasonable proof of a past
act or acts of abuse.’” (
v. Parker (2007) 156 Cal.App.4th 327, 334.)
Abuse is defined as intentionally or recklessly causing or attempting to
cause bodily injury, sexual assault, or placing a person “in reasonable
apprehension of imminent serious bodily injury” to that person or to
another. (Gonzalez, supra, at p.
421; § 6203.)
Courts
construe the DVPA liberally, and may issue a domestic violence restraining
order when the applicant makes the requisite showing by a preponderance of the
evidence. (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137.)
In her
lengthy letter brief, appellant appears to be contending on appeal that the
temporary restraining order should not have been issued because she was not
involved in a physical altercation with respondent and that she was simply
trying to save her son.
Because
respondent in this case has failed to file a brief, we “decide the appeal on
the record, the opening brief, and any oral argument by the appellant
. . . reversing only if prejudicial error exists.” (Nakamura
v. Parker, supra, 156 Cal.App.4th at pp. 333-334; citations omitted.)
Here,
nothing in the trial court’s record demonstrates the court erred in exercising
its discretion. The trial court based
its decision on respondent’s petition for a temporary restraining order, which
described particular incidents of abuse that occurred when appellant attacked
respondent. Respondent alleged that
appellant attacked her by pulling her hair, trying to pull her out of her car,
and threatening her with “heat,” which appeared to be a threat to use a
firearm. The trial court also heard both
appellant’s and respondent’s arguments.
We defer to
the trier of facts on issues of credibility because it is a function of the
trial court to evaluate the parties’ testimony and the evidence they
present. Thus, “‘[n]either conflicts in
the evidence nor “‘testimony which is subject to justifiable suspicion …
justif[ies] the reversal of a judgment, for it is the exclusive province of the
[trier of fact] to determine the credibility of a witness and the truth or
falsity of the facts upon which a determination depends.’”’” (Lenk
v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.) These facts are sufficient to constitute
abuse that warrants a temporary restraining order within the meaning of the
DVPA.
Appellant
contends on appeal that the court should have considered her reasons for trying
to retrieve her adult son from respondent’s care. She claims respondent was responsible for her
son’s drug addiction. She includes in
her brief medical documents which indicate that her mother Ethel Clark was
found to be delusional and unable to care for herself and that respondent was
found to be under the influence of drugs and could not care for her. Appellant then had to provide for and assist
her mother. The facts alleged in
appellant’s brief do not refute respondent’s claims, nor do they provide a
justification for appellant’s actions.
Appellant does not dispute in her brief that she was at her mother’s
house on June 29, 2011, and does not dispute that she has had disagreements
with her sister. As noted by the trial
court, appellant’s son is an adult, and there is no indication that he is not
capable of making his own decisions.
Given the information it had before it, the trial court did not abuse
its discretion in issuing the temporary restraining order.
The judgment is
affirmed. Appellant shall bear her own
costs on appeal.
WOODS,
Acting P. J.
We concur:
ZELON, J.
JACKSON, J.
shall be to the Family Code unless otherwise indicated.
application for restraining order states the date of the incident as July 20,
2011, but the parties later stated the
incident took place on June 29, 2011.
