Opinion
G036995
5-18-2007
RANDY F. GATES, Plaintiff and Respondent, v. RICH PFEIFFER, Defendant and Appellant.
Nicole Williams for Defendant and Appellant. Thomas F. Nowland for Plaintiff and Respondent.
NOT TO BE PUBLISHED
I
Rich Pfeiffer appeals from a restraining order directed against him, obtained by Randy Gates, who is the ex-husband of Pfeiffers wife, Jennifer. The restraining order essentially requires that Pfeiffer stay away from sporting events and activities involving Jennifers children by Randy Gates, and stay away from Gates, his wife Amy, and from their two children. (Visitation and church are excepted.) Generally speaking, the restraining order was sought because of difficulties centering on the teenage children of Pfeiffers wife Jennifer and Randy Gates, particularly then 15-year-old Aaron.
Technically, it is a premature appeal. The notice of appeal was filed April 6, 2006. It is from a written order entered February 8, 2006 based on a ruling made the day before. However, the written order entered February 8, 2006 was vacated, because the written order went beyond the trial judges ruling. Among other things, the February 8 order, if read literally, required Pfeiffer to avoid his own stepchildren during their visitation with his wife and at church. Pfeiffer brought a motion to successful vacate that order. A (less expansive) re-done restraining order was filed April 12, 2006 — six days after the notice of appeal — and excepts from its ambit visitation at Pfeiffers wifes residence or a particular Lutheran Church in Orange. Under the rule of liberal construction of notices of appeal in (current) California Rules of Court, rule 8.100(a)(2), it is the April 12, 2006 order from which we deem the notice of appeal to have been taken. (See Boyer v. Jensen (2005) 129 Cal.App.4th 62, 69 [appellate court has discretion "to entertain a premature appeal as long as a judgment was actually entered, there is no doubt concerning which ruling appellant seeks to have reviewed, and respondents were not misled to their prejudice"].) Ironically, though, the April 12, 2006 order does not appear in the clerks transcript requested by appellant. This appellate court has a copy only because plaintiff and respondent Gates brought a motion in this court, seeking an order to show cause to this court why appellant Pfeiffer should not be held in contempt for allegedly having violated the April 12 restraining order during the pendency of the appeal. He attached a copy of the April 12 order to his motion. (The motion was denied.)
Since Pfeiffer does not contest the sufficiency of the evidence to sustain the restraining order, no good purpose would be served in delineating these difficulties, though one, relatively central example serves to show the problematic relationship between the two families: The trial court heard testimony from Randy Gates that at a baseball game in which Aaron had played, Aaron wanted to leave to play in another game, but Pfeiffer (under the impression that it was Pfeiffers wife Jennifer, not Randy Gates, who had parental control over Aaron at that moment) told Aaron to get in the car. Aaron got in, but got out again when he realized he wasnt being taken to the second game. Pfeifer then got out of the car and grabbed Aaron by the neck. (Pfeiffers side of the story was that Aaron "ordered" him to take him to the second game, Pfeiffer said he would have to check with Aarons mother Jennifer, Pfeiffer tried to lock the car door, and did not touch Aaron at all except to restrain him from jumping out of a moving vehicle.)
Aaron is a very good baseball player, having played in the Junior Olympics.
Rather, Pfeiffers appeal is limited to an attack on two purported evidentiary errors: First, he asserts that the trial court erroneously restricted his defense by not allowing him to cross-examine the minor children involved in the case. Second, he claims that the trial court erroneously prevented him from calling Randy Gates wife Amys ex-husband, Dana. Pfeiffer wanted to call Dana because Amy Gates had purportedly made false accusations of child molestation against Dana when Dana and Amy were married; presumably Pfeiffer wanted to show that Amy Gates was wont to make false accusations against Pfeiffer as well, even though there were no accusations of any inappropriate sexual behavior in regards to the restraining order sought against Pfeiffer.
II
The request for a restraining order was supported by, among other papers, declarations by Randy and Amy Gates based obviously on statements from their children, as well as a copy of a handwritten statement by Aaron that found its way into a Irvine Police Department supplemental form giving details about the incident concerning the second baseball game.
A brief excerpt: "After my second game on Saturday, I told Rich that I wanted to go to my Lutheran Game and he told me that it wasnt up to me to decide but my moms decision. . . He kept yelling at me to get inside the car. At that point I said no and he to [sic] grabbed me by the shoulder and my bag and force me in the direction of his car."
To the degree, however, that the court may have, arguendo, erroneously precluded Pfeiffer from calling any of the children (and Aaron was included in Pfeiffers witness list), the argument was waived at trial, as a tactical decision clearly expressed on the record. The reason was a sensible judgment call not to offend the trier of fact. Here is the relevant portion from the reporters transcript. First, there was this discussion before any actual testimony was heard:
"Mr. Pfeiffer: Your honor, I respectfully object to any of the hearsay declarations, which are basically everything before the court at this point, and wish to cross-examine all of the witnesses and would ask for an admonition that none of the witnesses converse with each other. [¶] These declarations are suspiciously similar in some areas.
"Mr. Nowland: Your honor, we object to him directly questioning the children. [¶] Thank you.
"The Court: I have a problem with direct questioning of minor children.
"Mr. Pfeiffer: I have no problems with that, your honor, so long as thats not going to be used, their statements are not going to be used; but if their statements are going to be used — I do child abuse cases all of the time, so I understand how delicate it is. I mean, Im not going to win any points with the court beating up a little child; but if they are willing to, if they are willing to exclude those declarations, thats fine with me.
"Mr. Nowland: It depends on what your honor would like for evidence. [¶] We have documented as many incidents as we can. We can testify to all or some or a few. It is up to your honor.
"The Court: Exactly. So what well do is well start with the adults."
At the end of the testimony of the four adult protagonists (Mr. and Mrs. Gates and Mr. and Mrs. Pfeiffer), Pfeiffer asked for tentative ruling. The transcript states: "Mr. Pfeiffer: Now, here is what I would like to do, at this point is ask for a tentative ruling because I would like to call Aaron, and he has apparently accused myself of manhandling him and yelling at him, but I dont want do so that if its not necessary."
At that point the parties began a discussion of whether Gates was seeking a temporary or permanent restraining order. Pfeiffer reiterated his opposition to a "restraining order without me being able to bring in all of the witnesses" and stated again: "My response is if this is going to be a permanent restraining order, I would like to put on all of the witnesses and, you know, have due process," but then he added: "I have the same feelings that the court would have about children being forced to testify. Thats why I am preliminarily asking for a tentative at this point to try to avoid that."
The trial court replied, "Well, let me share with you — I gather thats your concluding arguments to the court. [¶] So in light of —."
Randy Gatess attorney then interjected that he had a "little bit more" to say by way of oral argument. He said it, and a few moments later Pfeiffer addressed the court, and made a substantive argument as to why the restraining order should not issue, without renewing any request to call more witnesses.
We note that in the preliminary discussion about the case, Pfeiffer was clearly agreeable to having only adults called, explicitly recognizing (in his "Im not going to win any points" statement) that calling minors as witnesses could backfire on him. The trial court, at that time, expressed a like desire to restrict the testimony solely to adults. Further, it was reasonably clear from the courts colloquy with Pfeiffer that it shared with him the assumption that the statements of the minor children were "not going to be used" and the court would exclude their statements from the declarations. The trial court was true to his word. As shown by his remarks explaining his decision to grant the restraining order, his ruling was based on testimony he had heard in court, not the moving papers.
Thus, the "agreement" on which the trial court was proceeding by the end of the trial was that only adults would be called, and only the trial testimony would be considered, unless the court wanted to hear from any minor witnesses. Pfeiffer essentially sought to modify the "deal" by coaxing a tentative ruling from the trial judge, which would put Pfeiffer in a no-lose position. If the tentative were against him, he wanted to call the minor witnesses, presumably to impeach the Gates. If the tentative were in his favor, he could rest. Pfeiffers attempted modification to the deal, of course, was unfair to the Gates: They had put on their case, and had proceeded on the assumption that the trial court wasnt going to consider their moving papers. What would they have had to gain from Pfeiffers calling the minor witnesses other than, at best, corroboration of their own oral testimony? And we may presume that, based on the earlier agreement, they had not prepared themselves to mount a rearguard action to defend their childrens veracity.
Thus, the trial court could not honor the request to give a "tentative" as framed, because it would have given Pfeiffer an unfair advantage: Pfeiffer would have had a peek, as it were, at the result, with the option of calling more witnesses if he didnt like it, something which the Gates didnt have in preparing their case-in-chief. The cliché food metaphors that come to mind are cakes and apples. (As in "have," "eat" and "second bite.")
So naturally the trial court didnt give a tentative, but, instead, gave each side an opportunity for more oral argument. Both sides availed themselves of the opportunity, and Pfeiffer took his without renewing his request to call more witnesses.
Under such circumstances, it is impossible to come to any other conclusion than that Pfeiffer waived any right he might otherwise have had to call the minor witnesses. The trial court expressly proceeded on the theory of using only adult testimony, Pfeiffer agreed with that game plan, and Pfeiffer (and somewhat too ambiguously) tried to change it after the court heard evidence with a "lets have a tentative first" strategy.
III
The other challenge, however, deals with the preclusion of an adult witness, so we cannot say that it was waived in the initial agreement to proceed only on adult testimony. Pfeiffer proposed to call a man named Dana, who he described as "the ex-husband of Amy Gates, and he has been through what I am going through now with his family." Gates attorney immediately interposed an objection to the witness, and the court responded that it didnt "see the relevance of this ladys ex-husband." Pfeiffer responded with an offer of proof: "He has been accused of child molestation and some other egregious things by this family, and they have done some investigations to find out that not only were they unfounded, but this family has coached the children against him, and this is a common course of action that is continuing today with me." The trial court sustained the objection on the ground that "it has nothing to do with anything we have discussed today."
Under section 352 of the Evidence Code, a trial court has the discretion to exclude evidence where the "probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." The standard of review is unquestionably that of abuse of discretion: The statute opens with the words "The court in its discretion may exclude evidence if. . . ." (Italics added.) Hence, there can be no reversals under section 352 "absent a manifest abuse of that discretion resulting in a miscarriage of justice." (People v. Milner (1988) 45 Cal.3d 227, 239.)
All references hereinafter to section 352 will be to the Evidence Code.
In a classic formulation, our Supreme Court has said that section 352
"empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." (People v. Wheeler (1992) 4 Cal.4th 284, 296; see also People v. Sapp (2003) 31 Cal.4th 240, 289 [quoting Wheeler].)
To be sure, prior false accusations are relevant to impeach a victims credibility by showing a character trait for dishonesty. (See Evid. Code, § 780.) But such a prior accusation is relevant only if the accusation is shown to be false. (People v. Bittaker (1989) 48 Cal.3d 1046, 1097.) And the proponent of the evidence bears the burden on the point. (Evid. Code, § 403.)
Under the circumstances, we must conclude that the trial court did not abuse its discretion in precluding Dana from testifying. Significantly, to be at all relevant (that is, that Amy had indeed made false accusations against her ex-husband), Pfeiffer would have had to carry the burden of proving a negative — namely that Amys ex-husband had not been guilty of child molestation "and some other egregious things."
That would have been time consuming enough, since the Gates would have been entitled to call witnesses to rebut the attack on Amys credibility. (Pfeiffer seems to assume that a lack of prosecution of Dana for child molestation would have ipso facto established the falsity of the accusations; answer: not necessarily.) A hearing on a simple domestic restraining order thus could easily have degenerated into a time-consuming trial of a long-dropped accusation of child molestation involving a non-party.
The probity of the proffered evidence was further undercut by its relevance to only Amys credibility. We emphasize that there were no allegations of inappropriate sexual behavior leveled at Pfeiffer, much less child molestation. This is really a case of two households, related by a family law judgment and common children, who do not get along. An accusation of child molestation is a serious charge, not to be made lightly, and qualitatively different from the sort of annoying conduct (often occurring at Aarons baseball games) that formed the basis of Randy Gates request for the restraining order.
And finally there is the unseemly nature of the contents — evoking the undue prejudice aspect of section 352 — of the box that Pfeiffer wanted to open: Would it really serve the best interests of the children, for example, to dredge up old wounds between defendant Pfeiffers wifes ex-husbands wifes ex-husband in an attempt to demonstrate that Pfeiffers wifes ex-husbands wife had made a false accusation of molestation against her ex-husband? Hardly. A hearing centering on the propriety of a restraining order based in significant measure on Pfeiffers conduct at baseball games toward the father of his stepchildren would be turned into a defamation trial based on Amys accusation of Dana, an accusation which, by itself, had nothing to do with Pfeiffer.
IV
We affirm the trial courts order. At this point, an observation is in order: This case falls into the category of bitter family conflict that this court, in Bidna v. Rosen (1993) 19 Cal.App.4th 27, recognized requires a single judge to ride herd on the parties in order to prevent abuses. (See id. at p. 38 [recommending single-judge calendaring in family law departments to prevent one side in family conflict from trying to "wear the other down" in a "campaign of attrition"].) This record, for example, contains allusions to several ongoing civil and family actions between these two families. Also, the issue of the proper scope of the present family law custody and visitation orders underlies many of the facts brought out at the hearing and appears to have been the unspoken focal point of much of the conflict.
Therefore, we will not award costs to either side in this proceeding involving a civil restraining order, but, in the interests of justice (see Cal. Rules of Court, rule 8.276(a)(4)) leave each side to bear its own costs, with this proviso: In any future family law proceeding that substantially involves issues of custody or visitation between the Gates and the Pfeiffers, the family court shall have discretion to award the costs of this appeal to whatever side best "furthers . . . the policy of the law to promote settlement of litigation." (Fam. Code, § 271, subd. (a).)
By the same token, we urge the presiding judge of the Orange County Superior Court to consider, if at all possible, appointing a single judge to preside over the various Gates-Pfeiffer cases, so that at least one jurist will be able to have an overview of this family feud. Even if the appointment of a single judge is not now feasible, future judges hearing Gates-Pfeiffer cases would do well to recognize that they may be presiding over only one skirmish in a greater war.
WE CONCUR:
OLEARY, J.
MOORE, J.