Filed 8/17/26 Hartwell v. O’Shea CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
KRISTA HARTWELL, B342600
Appellant, (Los Angeles County
Super. Ct. Nos.
v. 24TRRO00723;
24STPT02797;
KEAN PATRICK O’SHEA, 24TRPT00187)
Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Gia G. Bosley, Judge. Affirmed.
Summers, Levine, Gary J. Cohen and Jon S. Summers for
Appellant.
Thompson Thompson & Valladolid and Jeffrey S.
Valladolid for Respondent.
______________________________
Krista Hartwell appeals from the trial court’s denial of her
request for a domestic violence restraining order (DVRO)
protecting her from Kean Patrick O’Shea. Hartwell contends the
trial court abused its discretion in denying the DVRO because
there was uncontradicted evidence that O’Shea had disturbed the
peace of Hartwell within the meaning of Family Code
section 6360,1 including an audio recording of O’Shea yelling
loudly at Hartwell using profanity and testimony from Hartwell’s
mother. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Hartwell’s Request for a DVRO
Hartwell and O’Shea were in a relationship since 2019 but
never married. They have one child together, Ronan, who was
born in 2021. The family lived in a house in Redondo Beach
owned by Hartwell.
On August 26, 2024 Hartwell filed a Request for a DVRO
seeking protection from O’Shea for herself and Ronan. Hartwell
stated in her supporting declaration that O’Shea physically and
emotionally abused her on an ongoing basis since 2020, including
instances of “grabbing, shoving, coercive sexual advances and
acts while drunk and sober,” ignoring her entreaties to stop, and
“using intimidation if [she] resist[ed].” He also yelled at her on a
daily basis, threatening her and demanding she add him as a
beneficiary to her assets. Further, on June 27, 2024 O’Shea
threatened to sexually abuse Ronan by putting “a finger in [his]
1 Further undesignated statutory references are to the
Family Code.
2
butthole.” In addition, O’Shea abused alcohol and kept multiple
firearms in the house or garage.
Hartwell averred the most recent abuse took place on
August 23, 2024 (the August 23 incident). Hartwell audiotaped
an argument in which O’Shea screamed and cursed at her,
demanded to review her financial accounts, and told her that she
was going to learn how much of a problem he could be. He also
waved his hands at her face in a manner that made her think he
was going to hit her. Hartwell ran out of her house in fear and
called the police, who responded to the scene.
On August 26 the trial court issued a temporary
restraining order requiring O’Shea to stay away from Hartwell
and Ronan, and the court set a hearing on the DVRO for
September 16.
O’Shea filed a response with a supporting declaration in
which O’Shea denied he had ever physically harmed Hartwell or
Ronan or engaged in any other conduct proscribed by
section 6320. Further, he “never engaged in coercive or forceful
behavior, sexually or otherwise,” and Hartwell’s “claims of daily
yelling and cursing are just more of her generic use of scary
words.” The allegation that O’Shea threatened Ronan with
sexual abuse was a “total lie,” and Hartwell was referring to an
incident during Ronan’s potty training when O’Shea joked he
would put a finger in Ronan’s “butthole” after Ronan said he was
going to “toot” in O’Shea’s face. O’Shea lawfully owned several
firearms for his hobby of clay sport shooting, and he had a gun
safe in the garage.
With respect to the August 23 incident, O’Shea averred
that he and Hartwell argued over their agreement to list each
other as a beneficiary on their assets to protect Ronan upon the
3
death of the other. Hartwell induced O’Shea to sell his
condominium and to list her as a beneficiary on his financial
accounts, but on the day of the argument O’Shea learned that
Hartwell had been lying about listing him as a beneficiary, and
O’Shea told her that he wanted to end their relationship. O’Shea
admitted that when Hartwell came into his office to continue the
argument, he “did yell at [Hartwell] during this exchange,” but
he “never got near her physically or caused her any fear of bodily
injury.” Hartwell could have left the room at any time but
instead stayed and recorded the conversation without his
knowledge in an effort to “concoct an incident worthy of a
restraining order” and to gain an advantage in a future custody
dispute.
B. The Hearing on the DVRO Request
The trial court held a three-day hearing on Hartwell’s
DVRO request starting on September 16, 2024. Both parties
were represented by counsel. Hartwell testified and called her
mother, Sendy Hartwell (Sendy), and O’Shea as witnesses. The
court admitted into evidence Hartwell’s audio recording of the
August 23 incident, an informal transcript of the audio recording,
text messages exchanged between O’Shea and Hartwell on
August 23, and two photographs.2
1. Hartwell’s testimony
Hartwell is a lawyer with a graduate degree in taxation; at
the time of the August 23 incident, Hartwell worked for
2 The audio recording, transcript, and text messages from
August 2024 are in the record; the more recent text messages and
photographs are not.
4
Charles Schwab financial services company.3 On August 23 she
went to a meeting in the morning, then talked to O’Shea on her
way home. During their telephone conversation, O’Shea told
Hartwell that he wanted to invest with her in a real estate
development. Hartwell responded that she needed more
information before she would consider investing. During the
conversation, O’Shea told Hartwell that he had sold his home to
move in with her, helped to improve her home, and expected they
would build a future together. He inquired whether she had
listed him as a beneficiary on her financial accounts. She
changed the subject without answering. Hartwell explained that
she had recommended they each list the other as a beneficiary on
their individual financial accounts to provide for Ronan in case of
either’s death. O’Shea had listed Hartwell as a beneficiary on his
accounts, but Hartwell had not listed O’Shea. O’Shea told
Hartwell during their conversation that he was unhappy that she
was not willing to commit to their relationship or their future,
and he was going to move out.
Later that afternoon O’Shea went to a neighborhood bar
near the family home. Hartwell went to the bar to talk to him,
but O’Shea refused to speak with her and asked her to leave.
According to Hartwell, “O’Shea had been drinking and appeared
drunk.” Hartwell left the bar and went home; O’Shea returned
home a short time later and went to the garage, where he had an
office.
3 Because there was no court reporter on September 16,
2024, Hartwell’s testimony on that date is taken from the trial
court’s settled statement. The testimony on September 17 and 18
is taken from the reporter’s transcript.
5
After O’Shea returned, Hartwell went to the garage to
make sure everything between them was okay. She walked in
and found O’Shea sitting behind his desk on the opposite side of
the room. Hartwell began secretly recording O’Shea when she
entered the garage out of a concern he might become violent.
When she started recording, O’Shea was sitting behind the desk.
He was drunk and began yelling at her. He then approached her,
screaming and gesturing, until he was just a few feet away from
her. O’Shea’s speech was slurred, and his eyes were glassy. She
continued to record him as he approached her because she was
concerned that he was standing in front of the cabinet where he
stored his guns.
The five-minute recording was played at the hearing. On
the recording O’Shea can be heard yelling at Hartwell and
expressing his anger at her. He used the word “fuck” or “fucking”
dozens of times as he yelled at her. O’Shea told Hartwell she had
“strung [him] along for fucking five years.” He asked rhetorically,
“What the fuck did you ever do for me?” As O’Shea can be heard
yelling at Hartwell, Hartwell said multiple times in a quivering
voice, “Stop yelling at me.” O’Shea responded, “I don’t . . . fucking
care. . . . I mean nothing to you.” He angrily said to Hartwell
that she was not willing to commit to their relationship. When
Hartwell again said, “stop yelling at me,” he responded that he
could see she was crying, but he was “on to [her]” and knew she
was shedding “fucking crocodile tears.” Hartwell then said,
“[Y]ou yell at me” and “threaten me,” and O’Shea stated, “I don’t
yell at you. I fucking yell at you now.” O’Shea continued to yell
at Hartwell that she was not committed to their relationship, she
did not list him as her beneficiary, and he did not want Sendy
watching Ronan.
6
During the argument, Hartwell said, “You say you’re going
to put your finger in Ronan’s butthole.” O’Shea responded that
Ronan was “sitting in my fucking face” and added, “Cherry-pick
whatever the fuck you want. You’re a coward and you’re not in
this relationship.” O’Shea asked (again rhetorically) who was her
beneficiary, and he answered that it was her mother, not him.
Toward the end of the recording, O’Shea stated, “You haven’t
seen me angry. You haven’t seen me as a fucking problem, but
you’re going to soon learn . . . . I’m fucking done, and you don’t
fucking know.” He told Hartwell to “get the fuck out of here.”
Then he repeated that she had induced him to sell all his assets,
and he had helped Hartwell build her house but had nothing to
show for it.
After the argument, Hartwell left the house and picked up
Ronan from her mother’s care. She stopped communicating with
O’Shea and did not return. Hartwell reported the incident to the
police.
Hartwell explained that O’Shea previously threatened to
take her financial assets. He also threatened to take Ronan away
and told Hartwell that he wanted 50-50 custody. On one occasion
prior to the August 23 incident O’Shea put his arms around her
from behind, pressed his body into hers, grabbed her, and caused
bruising on her body. On another occasion, O’Shea grabbed her
leg, which also caused bruising. In addition, during the prior six
months Hartwell had entered the garage and saw O’Shea holding
an assault rifle he had recently purchased. He appeared drunk,
but he did not move or say anything to her.
7
2. O’Shea’s testimony
O’Shea admitted that it was his voice on the audio
recording of the August 23 incident and that he had yelled at
Hartwell. He had no idea Hartwell was recording their
encounter. He acknowledged that Hartwell asked him to stop
yelling, but he did not stop because he was “in distress over
[their] relationship.” When asked whether he believed Hartwell
deserved to be screamed at, O’Shea responded that he was “now
ashamed of yelling” at her, but “it was a build-up from the whole
day.” He felt Hartwell had manipulated him during their
relationship, and he believed Hartwell misled him about their
future together. His statements were made in anger and
frustration, but he did not intend to threaten Hartwell. Further,
during the argument he was not drunk, he stood behind the desk,
and he was more than eight feet from Hartwell.
O’Shea admitted he had eight guns, two of which he used
for skeet shooting. However, he denied he had ever physically
harmed Hartwell, coerced her, or had nonconsensual sex with
her. He also denied threatening to sexually abuse Ronan,
explaining that his comment about putting a finger in Ronan’s
“butthole” was a joke that Hartwell took out of context. Ronan
had run out of the bathroom and jumped on O’Shea, put his
buttocks in O’Shea’s face, and said, “I’m going to toot in your face,
Dada.” O’Shea responded, “You better get off of me or I’m going
to poke you in the butt,” and he placed Ronan on the floor.
O’Shea acknowledged he sent 54 messages to Hartwell
after she left, asking where she was and inquiring about Ronan’s
welfare. He also admitted that he sent a message in which he
apologized, saying, “I lost my temper and let my emotions get the
best of me.” He also stated in a message to Hartwell, “You did
8
not deserve to be spoken to like that.” Further, he repeatedly
asked Hartwell to come home, saying they could fix things.
O’Shea explained that his efforts to reconcile with Hartwell after
the August 23 argument were not intended to harass her, but
rather, arose from his anxiety about not knowing where Ronan or
Hartwell were.
1. Sendy’s testimony
Sendy testified with respect to a Super Bowl gathering in
January 2023 at Hartwell’s home that O’Shea grabbed Ronan
around the rib cage and “tosse[ed] him back and forth.”
According to Sendy, Ronan’s head “narrowly missed hitting the
wall several times.” When O’Shea put Ronan down, he cried, and
a couple of days later Sendy observed bruises on Ronan’s body.
Sendy believed O’Shea was drunk at the time. Later that day
O’Shea returned, picked up Ronan, and tried to leave with him.
Hartwell pleaded for him to stop, but he “push[ed] her away.”
Hartwell was finally able to get Ronan “out of [O’Shea’s] grip,”
and O’Shea left the house. During cross-examination, Sendy
clarified with respect to the incident that O’Shea was sitting on
the floor holding Ronan when O’Shea “started rolling back and
forth with him,” and O’Shea was not “throw[ing] him up in the
air and swing[ing] him around.” Further, Ronan did not hit any
furniture or the floor, although he came “very close to hitting the
wall.”
In March 2023 Sendy was at Hartwell’s house at
dinnertime and was holding Ronan when O’Shea walked into the
room. O’Shea started screaming at her and, she explained, he
was “putting his hands in my face, pointing in my face.” Sendy
told O’Shea to take his hands away, and O’Shea responded that
9
he can “‘do whatever the fuck’” he wants. Hartwell started crying
and “plead[ed] for him to stop and go away.” Sendy described
that while this was happening, Ronan “was squeezing his legs
around my waist” and “grabbing my arms hard enough to pinch
them.” On cross-examination, Sendy stated that O’Shea yelled at
her because he was angry that Sendy and Hartwell went
shopping for tile to remodel Sendy’s bathroom (and not, as
O’Shea had suggested, because of an argument O’Shea had with
Sendy’s son.)
C. The Trial Court’s Ruling
On September 19, after Hartwell rested, the trial court
inquired whether O’Shea wanted to call any witnesses. O’Shea’s
attorney made an oral motion for a judgment in favor of O’Shea
on the basis Hartwell had not met her burden to show abuse by a
preponderance of the evidence.4 The court granted the motion,
stating it found Hartwell failed to meet her burden of proof by a
preponderance of the evidence to show that an act of abuse
occurred within the meaning of section 6203. The court
recounted that the testimony showed that O’Shea was angry
about Hartwell’s lack of commitment to the relationship and her
failure to designate him as her beneficiary despite their
agreement to list each other as a beneficiary on their assets. The
court did not find Hartwell’s contention credible that O’Shea had
4 The trial court described the motion as one for a directed
verdict. In a court trial, the motion is more properly described as
a motion for judgment under Code of Civil Procedure
section 631.8. On appeal, Hartwell does not challenge the court’s
order on the basis it was styled as a motion for directed verdict.
10
threatened to take all her assets given that the couple was not
married, and she was an educated lawyer with a master’s degree.
Moreover, the trial court found that the audio recording of
the August 23 incident did not support Hartwell’s version of
events that O’Shea had approached her aggressively and pointed
his hands in her face, placing her in fear for her personal safety.
The court explained that after listening to the recording, it was
“clear to the court that [O’Shea] was the same distance from the
phone that he was during the entire discourse,” and “[w]hile the
court did hear [O’Shea] raise his voice toward the end, he never
came closer to the recording device.” The court also found not
credible Hartwell’s testimony that O’Shea was drunk, explaining
with respect to the audio recording that the court “did not hear
any slurred speech or any evidence of [O’Shea] being intoxicated
during the course of [his] rant.”
The trial court noted Hartwell had testified that she had
bruises on her body, but the court explained it was not clear
whether Hartwell claimed the bruises were from a physical
assault by O’Shea, and Hartwell acknowledged that the bruises
might have been caused by her wrestling with Ronan or when
Ronan hit her with his scooter while he was playing. She also
indicated that she bruises easily.5 In addition, the barrage of
apologetic text messages after the August 23 incident showed
that O’Shea was concerned about Ronan’s whereabouts, and the
5 During the trial O’Shea testified about text messages from
Hartwell in which she stated that she “bet” the bruises on her
resulted from Ronan “smashing me like W.W.E. on the mat.” In
the same chain of messages, Hartwell said, “I do bruise easy.”
One of the messages from Hartwell stated, “He hit me with his
scooter in my leg. So I know how I got that one.”
11
messages were not harassing or abusive. Because Hartwell did
not meet her burden of proof, the court dissolved the temporary
restraining order and dismissed the action.
On September 30, 2024 Hartwell filed a request for a
statement of decision, and she subsequently filed a notice of
intention to move for a new trial and a motion to set aside and
vacate the judgment. The trial court did not rule on either
motion, and the motions were denied by operation of law. (Code.
Civ. Proc., §§ 660, subd. (c), 663a, subd. (b).)
On November 15, 2024, Hartwell appealed from the trial
court’s September 19 order denying her request for a DVRO.
On November 22 the trial court issued its statement of
decision explaining why it had denied Hartwell’s request for a
DVRO. The court recounted the testimony of the parties and
stated it found Hartwell’s “lack of credibility so pervasive that
[the court] chose not to believe any of her testimony.” The court
noted as to the audio recording that O’Shea “did not have slurred
speech and did not appear to be intoxicated.” The court also
found not credible that during the August 23 incident O’Shea
approached Hartwell, pointed his hands in her face, and caused
her to be afraid he would hit her. The court made additional
credibility findings, including that it found not credible that
Hartwell, an educated lawyer, was concerned that O’Shea was
trying to control her assets, as alleged in her request for a DVRO.
The court noted there was no testimony that O’Shea had ever
requested money from Hartwell, and at most she testified that he
wanted them to invest together. The court also found no evidence
that O’Shea had ever threatened Hartwell with a weapon,
contrary to Hartwell’s assertion in her request for a DVRO.
12
With respect to the numerous calls and messages O’Shea
sent Hartwell after she left with Ronan, the trial court observed
that Hartwell never responded to O’Shea’s request to see Ronan,
and she did not tell O’Shea where they were going or whether
they would return. The court “did not find [O’Shea’s] desperate
pleas to see the child abusive.” The court likewise did not find
“that after days of no response, his offers to resume the
relationship [were] harassing or abusive.”
DISCUSSION
A. Governing Law and Standard of Review
Pursuant to the Domestic Violence Prevention Act (§ 6200
et seq.; DVPA), “a court may issue a protective order ‘“to restrain
any person for the purpose of preventing a recurrence of domestic
violence and ensuring a period of separation of the persons
involved” upon “reasonable proof of a past act or acts of abuse.”’”
(In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220, 225
(Davila & Mejia); accord, Nevarez v. Tonna (2014)
227 Cal.App.4th 774, 782; see §§ 6220, 6300.) The purpose of the
DVPA is “to prevent acts of domestic violence, abuse, 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 the violence.”
(§ 6220.) “The court shall consider the totality of the
circumstances in determining whether to grant or deny a petition
for relief.” (§ 6301, subd. (d).)
The DVPA defines domestic violence as abuse perpetrated
against, as relevant here, a former cohabitant, a person in a prior
dating relationship, and a coparent. (§ 6211, subds. (b)-(d).)
13
Abuse includes “plac[ing] a person in reasonable apprehension of
imminent serious bodily injury to that person or to another” or
“engag[ing] in any behavior that has been or could be enjoined
pursuant to Section 6320.” (§ 6203, subd. (a)(3), (4).) Conduct
that may be enjoined under section 6320, subdivision (a), includes
“molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, . . . harassing, telephoning, . . . destroying
personal property, contacting, either directly or indirectly, by
mail or otherwise, coming within a specified distance of, or
disturbing the peace of the other party . . . .” (See Hogue v. Hogue
(2017) 16 Cal.App.5th 833, 839.) “‘[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.” (§ 6320, subd. (c).) “Abuse is not limited to the
actual infliction of physical injury or assault.” (§ 6203, subd. (b).)
“The party seeking a restraining order bears the burden of
establishing the circumstances justifying the order.” (Jan F. v.
Natalie F. (2023) 96 Cal.App.5th 583, 593; accord, Curcio v. Pels
(2020) 47 Cal.App.5th 1, 14.) The DVPA requires proof of past
abuse by a preponderance of the evidence. (Curcio, at p. 14;
Davila & Mejia, supra, 29 Cal.App.5th at p. 226.) We review the
grant or denial of a request for a DVRO for an abuse of discretion.
(Davila & Mejia, at p. 226; In re Marriage of G. (2017)
11 Cal.App.5th 773, 780; In re Marriage of Evilsizor & Sweeney
(2015) 237 Cal.App.4th 1416, 1424.)
Generally, “‘“[t]o the extent that we are called upon to
review the trial court’s factual findings, we apply a substantial
evidence standard of review.”’” (Davila & Mejia, supra,
29 Cal.App.5th at p. 226; accord, In re Marriage of G., supra,
11 Cal.App.5th at p. 780.) However, “‘[i]n a case where the trier
14
of fact has determined that the party with the burden of proof did
not carry its burden and that party appeals, “it is misleading to
characterize the failure-of-proof issue as whether substantial
evidence supports the judgment [or order].” [Citations.] Instead,
“where the issue on appeal turns on a failure of proof at trial, the
question for a reviewing court becomes whether the evidence
compels a finding in favor of the appellant as a matter of law.”’”
(Estes v. Eaton Corp. (2020) 51 Cal.App.5th 636; accord, Juen v.
Alain Pinel Realtors, Inc. (2019) 32 Cal.App.5th 972, 978-979.)
B. Hartwell Did Not Present Evidence Compelling a Finding of
Abuse
Hartwell contends the trial court abused its discretion in
denying her request for a DVRO because the August 23 audio
recording of O’Shea’s “loud, threatening, expletive-filled tirade”
at Hartwell, together with Sandy’s “unimpeached” testimony
about the January and March 2023 incidents, established that
O’Shea engaged in conduct that disturbed Hartwell’s peace
within the meaning of section 6320, subdivision (a). The court
did not abuse its discretion.
Hartwell contends the audio recording alone provided
sufficient evidence of abuse to support issuance of the DVRO. It
is reasonable to infer that it would have been upsetting for
Hartwell to listen to O’Shea angrily yell at her with numerous
expletives for five minutes. But the fact O’Shea’s angry “tirade”
was upsetting does not alone show abuse within the meaning of
section 6320. Rather, it was for the trial court to consider the
audio recording in light of the other evidence presented at the
hearing to determine “based on the totality of the circumstances”
15
whether O’Shea’s conduct had “destroy[ed] the mental or
emotional calm” of Hartwell. (§ 6320, subd. (c).)
Hartwell testified that O’Shea was drunk, slurred his
speech, and approached her aggressively, until he was only a few
feet away. Further, Hartwell claimed in her declaration in
support of her request for a DVRO that O’Shea raised his hands
as he approached her, causing Hartwell to believe he was going to
hit her, and she fled in fear. This testimony could have
supported a finding of abuse, but the trial court found it was not
credible. As discussed, the court found O’Shea’s speech on the
tape was not slurred, and it did not appear that O’Shea moved
closer to the recording device (that Hartwell was holding), as
shown by the fact O’Shea’s voice only got louder at the end of the
recording. Our review of the audiotape does not show otherwise.
Further, the trial court found Hartwell’s lack of credibility
as to all of her testimony was so pervasive (including that O’Shea
had previously abused her, he wanted to take her assets, and he
had threatened her with a weapon) that it did not believe any of
her testimony. We defer to the court’s credibility findings.
(Herriott v. Herriott (2019) 33 Cal.App.5th 212, 223 [“It was for
the trial court to weigh the evidence and consider the demeanor
and credibility of the witness, as ‘credibility issues [are] routinely
resolved by [the] trier[] of fact.’”]; In re Marriage of Evilsizor &
Sweeney, supra, 237 Cal.App.4th at pp. 1426-1427 [“the trial
court was in the best position to evaluate credibility and to
resolve factual disputes”].)
The cases relied on by Hartwell are not to the contrary.
Hartwell relies on Br. C. v. Be. C. (2024) 101 Cal.App.5th 259,
267 for the proposition that secret recordings are the “‘“most
reliable types of evidence,”’” citing the legislative history for
16
Penal Code section 633.6 (which allows a victim of domestic
abuse to record a confidential conversation as evidence to support
a restraining order). In this case, the accuracy of the audio
recording is not in dispute. But that does not mean, as argued by
Hartwell, that she met her burden to show abuse (or that the
audio recording compelled a finding of abuse). In contrast to this
case, the trial court in Br. C. found the wife’s account of abuse
more credible than that of her husband, and the wife’s account
was consistent with audio recordings that revealed several
instances in which the husband “lost his temper at [the wife],
insulted her, angrily ranted, and in one instance, refused to let
her out of the vehicle despite numerous pleas.” (Id. at pp. 263-
269.) In affirming the court’s grant of a DVRO, the Court of
Appeal deferred to the trial court’s credibility findings. (Ibid.)
We likewise defer to the trial court’s credibility findings, in which
the court rejected Hartwell’s account that O’Shea was drunk,
aggressively approached Hartwell, and caused her to be in fear.
Moreover, O’Shea’s five minutes of yelling at Hartwell with
profanities did not necessarily rise to the level of disturbing her
mental and emotional calm. As the Court of Appeal explained in
Curcio v. Pels, supra, 47 Cal.App.5th at page 13, in reversing an
order issuing a DVRO based on a private social media post by the
petitioner’s ex-girlfriend accusing the petitioner of abusing her
and comparing him to a rapist, the law does not “hold a [DVRO]
may issue based on any act that upsets the petitioning party.
The DVPA was not enacted to address all disputes between
former couples, or to create an alternative forum for resolution of
every dispute between such individuals.” Although it is a
reasonable inference that Hartwell would have been upset as a
result of O’Shea yelling at her, the trial court acted within its
17
discretion in evaluating the recording in light of the parties’
testimony, including evidence of their dispute over commitment
and financial matters that precipitated the argument.
Moreover, the fact the audio recording could have
supported issuance of a DVRO does not mean it compelled a
finding of abuse as a matter of law. In the principal cases relied
on by Hartwell, the Courts of Appeal concluded substantial
evidence supported issuance of the restraining orders after
“resolv[ing] all conflicts in the evidence in [the petitioner’s] favor
and indulg[ing] all reasonable, legitimate inferences in favor of
upholding the trial court’s order.” (McCord v. Smith (2020)
51 Cal.App.5th 358, 364-365 [affirming issuance of DVRO based
on trial court’s finding that former domestic partner of petitioner
disturbed petitioner’s peace after they broke up by efforts to
exercise control and dominion over petitioner and by threatening
and stalking her]; see Herriott v. Herriott, supra, 33 Cal.App.5th
at pp. 218, 221-222 [substantial evidence supported issuance of
restraining order against former husband where former husband
on different occasions refused to leave her apartment, yelled at
her, slammed the iron gate to her front door, and yelled
embarrassing things about her for other tenants to hear]; In re
Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1498-1499
[substantial evidence supported issuance of DVRO against former
husband, whose “conduct included accessing, reading, and
publicly disclosing the content of [petitioner’s] confidential
emails, and that his conduct caused her to suffer ‘shock’ and
18
‘embarrassment,’ to fear the destruction of her ‘business
relationships,’ and to fear for her safety”].)6
Finally, Hartwell contends Sendy’s testimony—that on the
day of the Super Bowl in 2023 O’Shea was drunk and “toss[ed]”
Ronan back and forth, then returned and pushed Hartwell away
to take Ronan out of the room, in addition to the March 2023
incident in which O’Shea yelled at Sendy and waved his hands in
her face while she was holding Ronan—showed that O’Shea had
committed abuse. It does not. Even accepting Sendy’s testimony
as true, it did not compel a finding that O’Shea had disturbed
Hartwell’s peace. In the Super Bowl incident, Sendy described an
incident that reasonably could be viewed as O’Shea roughhousing
with his son, and the March incident involved O’Shea’s conduct
toward Sendy. Although Sendy testified that in the first instance
O’Shea pushed Hartwell away when she tried to take Ronan from
6 Hartwell’s reliance on N.T. v. H.T. (2019) 34 Cal.App.5th
595 is also misplaced. In N.T., the Court of Appeal reversed the
trial court’s denial of a DVRO on the basis “the trial court used
an incorrect legal standard in denying the DVRO” and “failed to
make the necessary factual findings regarding the issuance of the
DVRO.” (Id. at p. 603.) On this basis the appellate court
reversed the order denying the DVRO and remanded for the trial
court to apply the correct legal standard and “to make the
necessary findings and determine whether to issue the DVRO.”
(Ibid.)
19
him, these incidents, without more, do not compel a finding that
O’Shea committed abuse within the meaning of section 6320.7
D. The Trial Court Did Not Err in Certifying the Settled
Statement
On December 24, 2024 Hartwell filed an appellant’s
proposed settled statement that included a summary of
Hartwell’s September 16 testimony. On January 23, 2025 the
trial court filed an order on appellant’s proposed settled
statement finding that corrections were necessary and attaching
a “modified settled statement.” The order attached the court’s
description of Hartwell’s testimony on September 16, 2024 and
O’Shea’s testimony on September 18, 2024. Hartwell filed
objections and proposed modifications to the court’s settled
statement in which she argued the court improperly included its
observations and characterization of the testimony. O’Shea filed
a response, and after further briefing, Hartwell requested the
court issue an order certifying her proposed settled statement, as
amended. On June 4, 2025 the court held a hearing on
Hartwell’s request for an order certifying the settled statement.
After hearing argument from counsel, the court certified its
January 23 settled statement without any modifications.
Hartwell contends, as she did in the trial court, that the
court improperly included in the certified settled statement its
characterization of the testimony by stating Hartwell
7 Hartwell argues the trial court compounded its error in
denying the DVRO by denying her motions to vacate and for a
new trial. However, the motions made the same arguments we
have rejected: that the audio recording and testimony established
abuse as a matter of law.
20
“surreptitiously” recorded the August 23 incident. Hartwell also
argues the court improperly included its observations that
O’Shea did not slur his speech in the audio recording and that
there was no testimony about the parties arguing or fighting
before or during the two incidents Hartwell described in which
O’Shea grabbed her in a manner that caused bruising.8 The court
did not err.
California Rules of Court, rule 8.137(b)(1)(A) provides that
an appellant may elect “to use a settled statement as the record
of the oral proceedings in the superior court” if the oral
proceedings were not reported by a court reporter. After the
appellant files a proposed statement (and a respondent files a
response or proposed amendment, if any), rule 8.137 entrusts the
trial court with the ultimate responsibility for settling the record
and making any corrections or modifications “necessary to ensure
that it is an accurate summary of the evidence and testimony of
each witness” relevant to the issues on appeal. (Cal. Rules of
Court, rule 8.137(f)(3)(B)(i); see Marks v. Superior Court (2002)
27 Cal.4th 176, 195 [“‘The rules confer full power over such a
record in the trial judge. As long as the trial judge does not act in
an arbitrary fashion he has full and complete power over such a
record.’”].)
Judicial Council form APP-022 (used by the trial court
here) expressly authorizes the court to find (in paragraph 2.c)
8 Hartwell also contends the trial court erred in including a
summary of the September 18, 2025 testimony in its settled
statement because there is a reporter’s transcript for that date.
We agree the court should not have included testimony from
September 18, but we rely on the reporter’s transcript for this
testimony.
21
that corrections are required and to attach a “modified settled
statement” to ensure the settled statement provides an “accurate
summary of the evidence and testimony” at issue on appeal.
Nothing in rule 8.137 prevents the court from including
observations necessary to explain the evidence, such as use of the
word “surreptitiously” to explain that Hartwell recorded the
conversation without O’Shea’s knowledge or reciting that there
was an absence of testimony on a certain subject.9 Further, any
error by the court in stating in the certified settled statement
that the audio recording did not reflect O’Shea’s slurring of his
speech was harmless because the court made that finding in both
its oral ruling and statement of decision and the audio recording
is in the appellate record. (See Cassim v. Allstate Ins. Co. (2004)
33 Cal.4th 780, 800 [harmless error standard under People v.
Watson (1956) 46 Cal.2d 818, 836 applies to civil cases].)
Mooney v. Superior Court (2016) 245 Cal.App.4th 523,
relied on by Hartwell, does not support her position. There, the
Court of Appeal concluded the trial court abused its discretion by
failing to rule on appellant’s motion to settle the statement under
California Rules of Court, rule 8.137, instead deciding a
nonexistent motion for attorneys’ fees. (Id. at p. 535.) By
contrast, the court in this case considered Hartwell’s proposed
settled statement and held a hearing before certifying its settled
9 We note that Merriam-Webster’s dictionary defines
“surreptitious” as “done, made, or acquired by stealth” or “acting
or doing something clandestinely.” (Merriam-Webster's Online
Dictionary (2026)
This is an accurate way of describing that Hartwell made the
recording without O’Shea’s knowledge.
22
statement. There was no abuse of discretion.
DISPOSITION
The September 19, 2024 order denying Hartwell’s request
for a domestic violence restraining order is affirmed. O’Shea is to
recover his costs on appeal.
FEUER, J.
We concur:
SEGAL, Acting P. J.
STONE, J.
23
