Opinion
D071346
12-26-2017
GABRIEL R., Plaintiff and Respondent, v. ELAINA GOMEZ-VILLEDA, Defendant and Appellant.
Elaina Gomez-Villeda, in pro. per., for Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DV043148) Appeal from an order of the Superior Court of San Diego County, Cindy D. Davis, Judge. Affirmed Elaina Gomez-Villeda, in pro. per., for Appellant. No appearance for Respondent.
Elaina Gomez-Villeda, appearing in propria persona, appeals from a domestic violence protective order issued under the Domestic Violence Prevention Act (DVPA; Fam. Code, § 6200 et seq.). Among other terms, the order required her to stay away from respondent Gabriel R. for a period of one year.
All further statutory references are to the Family Code unless otherwise noted.
Gabriel R. did not submit a respondent's brief in this proceeding. However, we do not "treat the failure to file a respondent's brief as a 'default' (i.e., an admission of error) but independently examine the record and reverse only if prejudicial error is found." (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1203, citing In re Bryce C. (1995) 12 Cal.4th 226, 232-233 and In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1; cf. In re Bryce C., at p. 232 [noting if "an appellant fails to file a brief, the appeal may be dismissed entirely."].)
On appeal, appellant contends that the court erred by awarding respondent about $2,110 for damages to his truck caused by appellant after she threw several large, baseball-sized rocks at him and his truck during the domestic violence incident that was the subject of the protective order in this case. She further contends the court erred in issuing the restraining order against her because the court allegedly failed to consider evidence she had proffered showing that respondent allegedly was a violent and angry person and that he allegedly had mistreated her in the days leading up to the incident. Finally, she contends the court erred in admitting and relying on certain evidence, including photographs of the damage to respondent's truck.
As we explain, we conclude the court properly exercised its authority when it ordered appellant to pay for the damages she caused to respondent's truck, as the court's findings on this issue are amply supported by the evidence in the record. We further conclude appellant's challenge to the stay-away portion of the restraining order is moot because that portion of the order expired on its own terms on June 28, 2017, while this appeal was pending; but that even if not moot, the record shows the court in any event properly exercised its discretion when it issued the restraining order. Lastly, we conclude appellant forfeited her claim the court allegedly erred in admitting certain evidence at the hearing, including various photographs, because in that hearing her counsel expressly stated on at least two occasions that he had no objection whatsoever to the admission of all of respondent's evidence. Affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Where, as here, no statement of decision is requested by the parties, we assume the trial court made whatever findings were necessary to support the order. (Horning v. Shilberg (2005) 130 Cal.App.4th 197, 202.) In doing so, we must indulge all presumptions in favor of the order. (Ibid.)
Appellant and respondent were in a dating relationship but never married. They are the biological parents of E.R. (born June 2010), who also was the subject of the restraining order, and L.R., who was not.
On April 29, 2016, an argument arose between respondent and appellant when respondent took appellant's truck key and attempted to open appellant's truck to obtain E.R.'s car seat. Respondent testified that appellant followed him outside, asked respondent why he did not just buy another car seat, and as they began to argue, she threw the car seat at him and said, "Fuck you." As respondent retrieved the car seat, appellant picked up a baseball-sized rock near the entrance to their home and threw it at him, as he was attempting to secure the car seat in his truck. Appellant continued to throw several large rocks at him, which struck and damaged his truck. Respondent left, drove to his sister's house, and called 911.
Appellant testified their son E.R. was not home at the time of this incident.
While on the phone with dispatch, respondent flagged down a patrol car, explained what had just happened, and asked the officers to accompany him home to retrieve his things. As he was returning home, respondent received text messages from appellant stating, "All your shit's outside" and "Your fishing poles are next." On arrival, respondent found all of his "stuff," including clothes and personal items, strewn on the sidewalk outside their home. Respondent also found his vintage fishing pole snapped in half.
With regard to his truck, respondent submitted multiple photographs showing the damage caused by appellant's rock throwing. As noted ante, at the hearing on the permanent restraining order, appellant's counsel stipulated to the admission of all exhibits proffered by respondent, including the photographs. The photographs showed, and respondent testified, that his truck, which had been repainted in 2015, sustained considerable damage from the rocks, including multiple "dents and dings" on or near the hood; a broken rear taillight; and a crack that spanned nearly the entire windshield.
Appellant testified that, shortly before the April 29 domestic violence incident, she had given birth to a child that was not respondent's; that on April 29, respondent said "ugly" things to her including calling her a "stupid slut" and a "dumb bitch" among other names; and that as respondent went to grab her keys to retrieve the car seat, she went outside, got it herself, and merely handed it to him. Appellant described respondent as an angry and "violent" person.
Appellant admitted throwing all of respondent's personal things on a "public sidewalk" after respondent drove away. She also admitted sending respondent text messages letting him know what she had done with his personal things. About 20 minutes later, respondent returned with police. He gathered his personal belongings and gave appellant his key to their home.
Appellant denied throwing any rocks at respondent and his truck. She claimed the damage to respondent's truck preexisted the April 29 incident, and alleged respondent wanted money from her because he was simply angry. Appellant further claimed about a week before the April 29 incident respondent "rip[ped] up [her] physical therapy mat." Because appellant was on probation, she testified she did not call police over this incident as she was afraid of going back to jail and losing her children.
The record shows appellant admitted she had been convicted for making a criminal threat and assault with a firearm. --------
On May 9, 2016, respondent filed a request for a restraining order against appellant. The court in response issued a temporary restraining order (which is not included in the record, ostensibly) requiring appellant to stay away from respondent and to not harass or contact him.
Respondent's request for a permanent restraining order was heard on June 29, 2016. After hearing the evidence summarized ante and the arguments of counsel, the court found respondent had satisfied his burden by a preponderance of the evidence and ordered appellant to stay at least 100 yards away from respondent for a one-year period, as noted ante.
In issuing the order, the court noted the parties testified to "very different version of the events" concerning the April 29 incident. The court found that the evidence—including the photographs—showed respondent's truck was in "excellent condition" just a few days before April 29; that appellant's testimony the truck was in bad shape and was, in any event, a "work truck," was belied by the evidence; that the "incident report" prepared by the police and the 911 printout supported respondent's version of what had happened on April 29, including that appellant threw rocks at respondent and damaged his truck; and that appellant's testimony was "somewhat overstated" and portions of her declaration in opposition to the request for the permanent restraining order were "simply not true."
The court also found the estimate respondent submitted for repairs to his truck was reasonable and ordered appellant to pay him about $2,110. The record shows appellant did not object to this portion of the order, other than to request a "payment plan," which the court included as part of the order.
DISCUSSION
I
Appellant contends the court abused its discretion by including in the restraining order a monetary award for damages to respondent's truck stemming from the April 29 domestic violence incident. Appellant further contends respondent was required to file a separate tort action to obtain such damages. We disagree.
As noted, appellant—who then was represented by counsel—neither objected to the imposition, nor the amount, of the damage award. For this reason alone, appellant has forfeited this claim of error on appeal. (See Saret-Cook v. Gilbert, Kelly, Crowly & Jennett (1999) 74 Cal.App.4th 1211, 1230 [noting the failure to object forfeits a claim of improper argument, not only as a basis for reversal, but also as a basis for asserting that an award of damages was improper].)
In any event, the record shows a direct link between the April 29 incident and the damage to respondent's truck caused by appellant. (See Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 390 [noting under a substantial evidence standard of review, we must resolve all factual conflicts and questions of credibility in favor of the prevailing party].) The record also shows the court based this award on a repair estimate submitted by respondent, which was admitted as a result of the stipulation of appellant's counsel and which estimate the court found to be reasonable. Although appellant denied throwing any rocks at respondent and his truck, the court as trier of fact found appellant's testimony not credible on this point and ruled in favor of respondent. (See In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 204 [noting the resolution of conflicts in evidence and assessment of credibility of witnesses are matters within the exclusive province of trier of fact].)
Appellant cites to the case of Sosnick v. Sosnick (1999) 71 Cal.App.4th 1335, to support her contention respondent was required to file a separate tort action to obtain recovery for the damage to his truck. However, the issue in Sosnick involved whether a pending civil action could be consolidated with a closed family law matter. The Sosnick court properly determined under the facts of that case that there could be no such consolidation, and therefore, that the trial court which had handled the closed family law matter could not properly decide the merits of the subsequent civil action. (Id. at p. 1340.) Clearly, the facts of and holding in Sosnick do not support appellant's position in this case.
II
Appellant next contends the court erred in issuing the restraining order because it allegedly failed to consider the evidence of respondent's alleged past acts of abuse against her where he allegedly was the aggressor. We also reject this contention.
First, as noted ante, the stay-away portion of the restraining order at issue in this case expired on its own terms on June 28, 2017. As such, the issue of the validity of that portion of the order is now moot. (See Environmental Charter High School v. Centinela Valley Union High School Dist. (2004) 122 Cal.App.4th 139, 144 [noting if the relief granted by the trial court is temporal and expires before an appeal can be heard, the appeal is moot]; Giles v. Horn (2002) 100 Cal.App.4th 206, 226-227 [noting when an event occurs, without any fault of a defendant, " ' " 'which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him [or her] any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.' " [Citations.]' "].)
Second, it is a well-accepted principle of appellate review that when a finding of fact is attacked on grounds it is unsupported by substantial evidence, or when a party seeks a different finding on conflicting evidence such as appellant in the instant case, our power begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which supports the trier of fact's findings. (In re Cheryl E. (1984) 161 Cal.App.3d 587, 598.) When two or more inferences can reasonably be deduced from the facts, we are powerless to substitute our deductions for those of the fact-finder. (Ibid.)
Here, based on the evidence summarized ante, we conclude it is more than sufficient to support the findings of the court in connection with its issuance of the one-year restraining order, including that appellant threw baseball-sized rocks at respondent and his truck, damaging the truck. As a court of review, we cannot reweigh conflicting evidence and alter the court's determination grounded on the evidence. (See In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
III
Finally, appellant contends the court erred when it admitted into evidence, and relied on in support of its ruling, myriad photographs showing respondent's truck was in good condition just days before the April 29 incident. We also reject this contention.
First, as noted ante appellant's counsel stipulated to the admission of all the exhibits proffered by respondent, including the photographs. As such, appellant has forfeited this issue on appeal. (See Evid. Code, § 353.)
Second, as we already have noted there is more than sufficient evidence in the record to support the findings of the court that respondent's truck was in good shape shortly before the April 29 incident and that appellant was responsible for damaging it when she threw large rocks at him on that day. As such, we are bound by those findings and cannot make new findings, despite appellant's contentions otherwise. (See In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
DISPOSITION
The June 29, 2016 restraining order issued by the court is affirmed, on the terms expressly provided in that order.
BENKE, Acting P. J. WE CONCUR: NARES, J. IRION, J.