Opinion
F076164
12-06-2019
In re the Marriage of EFRAIN and ANGELICA HERNANDEZ. ANGELICA HERNANDEZ Respondent, v. EFRAIN HERNANDEZ, Appellant.
Glenn R. Wilson for Appellant. Borton Petrini LLP, Christine J. Levin and Natalie M. Packer for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CEFL02065)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Lisa Gamoian, Judge. Glenn R. Wilson for Appellant. Borton Petrini LLP, Christine J. Levin and Natalie M. Packer for Respondent.
Before Levy, Acting P.J., Peña, J. and Snauffer, J.
-ooOoo-
In this marriage dissolution proceeding, the husband contends the superior court's issuance of a restraining order in favor of his wife should be reversed because of procedural errors. Specifically, he contends that the superior court failed to fulfill certain sua sponte obligations applicable to domestic violence restraining order hearings involving a self-represented defendant.
First, we conclude the superior court did not abuse its discretion when it determined the information the wife included on the mandatory Judicial Council forms used to request a domestic violence restraining order substantially complied with the forms' requirements and provided adequate notice to the husband of the abuse alleged. Second, we conclude the superior court did not abuse its discretionary authority under Family Code section 245, subdivision (b) to grant a continuance on its own motion when it went forward with the hearing after the parties confirmed they were ready. Third, we conclude the superior court did not abuse its discretion when it did not, on its own motion, strike wife's testimony about instances of abuse not specifically described in her written request for a restraining order.
Undesignated statutory references are to the Family Code.
We therefore affirm the restraining order.
FACTS AND PROCEEDINGS
Appellant Efrain Hernandez and respondent Angelica Hernandez were married in September 2008 and have a son who was born in the autumn of 2009. Sometime in June 2016 or earlier the parties separated, but continued to live in the same home and to coparent their son. In April 2017, Angelica filed a petition for dissolution of marriage and requested an order relating to child custody and visitation.
We refer to the parties by their first names to avoid confusion. We intend no disrespect.
On Thursday, May 11, 2017, Angelica and Efrain were at their son's karate class. Angelica had asked Efrain to attend the class because the teacher wanted to speak with them. The length of the class exceeded Efrain's patience and he became upset and began mumbling things and calling Angelica names. Angelica testified his calling her names was normal behavior for Efrain and occurred daily. Angelica told Efrain he could leave and she would speak to the karate teacher by herself. Efrain initially decided to stay and then changed his mind, took their son, and went to his truck. Angelica followed Efrain to the truck and told him the class was not over. She testified that Efrain said, " 'This is my son. I can do whatever I want,' and he shut the door. I said, 'Can you please open the door and get my son out?' He said, 'No. This is my son. I can do whatever I want. You can't tell me what to do.' And then he sped off."
Subsequent references to dates are to dates in 2017 unless otherwise stated.
Later that evening, Angelica received a telephone call from a law enforcement officer who informed her that Efrain stated she had placed her hands on him. Angelica asked the officer where her son was and the officer said he would ask Efrain to inform her of where they were going to stay. Efrain did not contact Angelica and the next day—Friday, May 12, 2017—Angelica went to the courthouse and filled out the paperwork for a restraining order because her son was still not home.
On Monday, May 15, the superior court filed the mandatory Judicial Council form DV-100, Request for Domestic Violence Restraining Order, Angelica had completed. In the form, Angelica asked for the issuance of personal conduct orders, a stay-away order, and a move-out order. Angelica's request included as attachments (1) a two-page declaration using optional Judicial Council form MC-031, which described the May 11 incident; (2) optional Judicial Council form DV-101, Description of Abuse; (3) mandatory Judicial Council form DV-105, Request for Child Custody and Visitation Orders, asking for a change of a current court order to provide her with legal and physical custody of their son without visitation until a hearing; and (4) mandatory Judicial Council form DV-108, Request for Order: No Travel With Children.
On May 15, the superior court issued a temporary restraining order on Judicial Council form DV-110 directing Efrain (1) to move out of the family residence in Kerman, (2) to stay as least 100 yards away from Angelica and their son, and (3) not to harass or contact Angelica or their son. A Judicial Council form DV-140, Child Custody and Visitation Order, was included in the temporary restraining order as an attachment. The order gave Angelica legal and physical custody of their son and stated Efrain would have no visitation. The court also issued and filed a Notice of Court Hearing on Judicial Council form DV-109, which scheduled a hearing on Angelica's request for a restraining order on June 9 at 8:30 a.m. and directed Angelica to serve the temporary restraining order and notice on Efrain within five days.
On May 22, Efrain filed his response to Angelica's request using mandatory Judicial Council form DV-120, Response to Request for Domestic Violence Restraining Order. Efrain stated he did not agree to the orders requested and wanted full legal and physical custody of their son with Angelica ordered to move out of the residence. Efrain's response included an attachment on optional Judicial Council form MC-025, which set forth the reasons he did not agree with Angelica's request. Efrain asserted that a "[m]ajority of the allegations were falsified by [Angelica]. The incident that happen[ed] on 05/11/2017 [Angelica] cursed and yelled at me in front of our son at the Karate class. Then attacked me when I was trying to get my son in my truck to go home. She never discussed or ask[ed] permission about the Karate class. All other accusations were completely falsified by [her]."
On June 9, the superior court held a hearing on Angelica's request for restraining orders. Both parties represented themselves at the hearing. At the start of the hearing, the court confirmed Angelica had received a copy of Efrain's response. Next, the court asked if both sides were prepared to proceed and the parties responded, "Yes." The parties were sworn, and each testified about the incident on Father's Day of 2016 and the incident on May 11, 2017. After Efrain testified, he presented testimony of his sister, Anna Hermosillo and his mother, Maria Hernandez.
The court also told the parties there would be no continuance once the hearing started. Neither party requested a continuance.
After hearing the testimony of the parties and Efrain's witnesses, the court stated its findings in open court. The court determined Angelica's testimony was credible and she had met her burden of proof. The court stated it would issue a restraining order. The court then sent the parties to a family court services mediator to discuss (and possibly agree on) a visitation plan for their son.
After the parties met with the mediator, they returned to the courtroom. The court asked the parties if during the mediation they were close to reaching an agreement about child visitation. After discussing Efrain's contact with his son prior to the issuance of the temporary restraining order, the court stated it did not have sufficient evidence to make any findings pursuant to section 3044. The court allowed Efrain to have supervised visits at his parents' home. The court ordered the parties to separately complete a 12-hour coparenting program and also ordered Efrain to complete a 12-hour anger management course. The court set a hearing on August 8, and said it would entertain modifications to the restraining order, "which means that it is imperative that each of you comply with the court orders." The court emphasized this point by stating: "That means both of you. I'm expecting you both to have completed your coparenting class."
In accordance with the decisions announced orally at the hearing, the superior court issued a restraining order on Judicial Council form DV-130, Restraining Order After Hearing (Order of Protection), and filed it on June 9. The order stated it would expire on June 9, 2020. The court checked all three boxes in item 6.a of the form DV-130 and required Efrain (1) not to harass, threaten, assault, stalk, keep under surveillance, impersonate, or block Angelica's movements, (2) not to contact Angelica, either directly or indirectly, by any means, including by telephone, email or other electronic means, and (3) not to take any action to obtain her location. The order required Efrain to stay at least 100 yards away from Angelica. The court also checked the box for the exception allowing contact as required by court-ordered visitation of their son, the terms of which were set forth in an attachment.
On June 19, an attorney representing Efrain filed a motion for reconsideration or, alternatively, for rehearing and set aside of the restraining order. The motion argued the superior court "should have taken on a much more active role in the Domestic Violence proceedings, making Sua Sponte Orders excluding documentation and evidence that were not properly before the Court and issuing Orders In Limine (also Sua Sponte) preventing the introduction of evidence and/or testimony not properly noticed to [Efrain]." The motion also argued the court should have issued a sua sponte order continuing the matter, so Efrain could adequately prepare to defend against Angelica's new allegations.
On August 8, Efrain filed a notice of appeal challenging the restraining order entered on June 9. On August 11, the superior court held a hearing on Efrain's motion to reconsider and his request for a restraining order. The court denied the motion to reconsider on the ground new facts were not submitted and also denied counsel's request for a statement of decision. The court continued the hearing on Efrain's request for a restraining order against Angelica to September 6. Subsequent Judgment
On July 5, 2019, the superior court entered a judgment of dissolution on Judicial Council form FL-180. In the first item on the form, boxes were marked stating: "This judgment ... contains person conduct restraining orders.... [¶] The restraining orders are contained on page(s) 10 of the attachment. They expire on (date): 6/6/2020." The attachment was the parties' stipulation addressing most of the issues raised in the dissolution proceeding, such as custody and visitation, child support, spousal support, division of property and attorney fees. Section M of the stipulation provides in full:
"Right to Live Separately and Free from Interference [¶] The parties acknowledge that there is a current three (3) year restraining order in place listing Petititoner/Wife as the protected party. [¶] Each party shall live separate and apart from the other for the rest of his/her life at any place or places that he or she may select. Neither party shall molest, harass, annoy, injure, threaten or interfere with the other party in any manner whatsoever. Each party may carry on and engage in any employment, profession,
business or other activity as he or she may deem advisable for his or her sole benefit. Neither party shall interfere with the use, ownership, enjoyment or disposition of any property now owned or hereafter acquired by the other. Neither party shall ask the other for the use or possession of property awarded under this Stipulated Judgment."
In October 2019, this court, pursuant to California Rules of Court, rule 8.155(a)(1)(A), ordered the record on appeal to be augmented with the July 5, 2019, notice of entry of judgment and all attachments because of the possibility the judgment contained provisions affecting the terms of the restraining order challenged in Efrain's appeal. The stipulation, while acknowledging the existence of the restraining order, did not address the appeal or, more specifically, the effect of the stipulation and judgment on the appeal. Here, we address whether the stipulation and judgment rendered this appeal moot. We note the terms addressing the parties' respective right to be free from interference by the other does not contain stay-away provisions redundant to those contained in the June 9, 2017, restraining order. Thus, to the extent appellate relief would affect the stay-away provisions, it would constitute "effectual relief" for purposes of California's mootness doctrine. (Association of Irritated Residents v. Dept. of Conservation (2017) 11 Cal.App.5th 1202, 1222.) As a result, we conclude the entry of the judgment and stipulation did not render this appeal moot.
Subsequent references to rules are to the California Rules of Court.
DISCUSSION
I. GENERAL LEGAL PRINCIPLES
A. Overview of the Statute
The Domestic Violence Prevention Act (DVPA) is set forth in Division 10 of the Family Code. (§§ 6200-6460; see § 6200 [short title].) Its purpose "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.) Part 3 of the DVPA (§§ 6240-6275) authorizes emergency protective orders, which may be issued ex parte. (See § 6250 [grounds for issuance].) The issuance of domestic violence restraining orders, which is the subject of this appeal, is addressed in part 4 (§§ 6300-6390).
Section 6203 defines "abuse" to mean "any of the following: [¶] (1) To intentionally or recklessly cause or attempt to cause bodily injury. [¶] (2) Sexual assault. [¶] (3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. [¶] (4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320." Section 6320, subdivision (a) authorizes the issuance of orders enjoining a party "from 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 ...." The statute's reference to "disturbing the peace of the other party" has been interpreted to mean "conduct that destroys the mental or emotional calm of the other party." (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497.) Thus, the statutory definition of "abuse" is not limited to acts of physical abuse or threats of physical abuse. (Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 398.) "Annoying and harassing an individual is protected in the same way as physical abuse." (Ibid.)
The DVPA directs the Judicial Council to "promulgate forms and instructions for applying for orders described in [the act] and to "prescribe the form of the orders and any other documents required by [the act]." (§ 6226.) Any order subject to the DVPA "shall be issued on forms adopted by the Judicial Council of California and that have been approved by the Department of Justice pursuant to subdivision (i) of Section 6380." (§ 6221, subd. (c).) However, a protective or restraining order issued by a court that is not on the specified form "shall not, in and of itself, make the order unenforceable." (Ibid.)
The subject of mandatory and optional Judicial Council forms is addressed in the California Rules of Court. "Forms adopted by the Judicial Council for mandatory use are forms prescribed under Government Code section 68511. Wherever applicable, they must be used by all parties and must be accepted for filing by all courts. In some areas, alternative mandatory forms have been adopted." (Rule 1.31(a).) Optional forms are addressed by rule 1.35.
B. Standard of Review
1. Restraining Orders
Generally, a superior court's decision to grant or deny a restraining order under the DVPA is reviewed for an abuse of discretion. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420 (Gonzalez).) "The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review." (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711 (Haraguchi).)
First, a superior court's findings of fact are upheld on appeal if they are supported by substantial evidence. (Haraguchi, supra, 43 Cal.4th at p. 711; Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1505 [findings relating to protective order].) Under the substantial evidence standard, "[i]t is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.) Furthermore, under the doctrine of implied findings, an appellate court must presume that, where the record is silent, the superior court considered all of the relevant factors and made all of the factual findings necessary to support its decision for which there is substantial evidence. (Brewer v. Carter (2013) 218 Cal.App.4th 1312, 1320.)
Second, when an appellant challenges the superior court's determination of a legal question, the reviewing court conducts an independent review, without deference to the trial court's conclusion. (Haraguchi, supra, 43 Cal.4th at p. 712 [conclusions of law are reviewed de novo].) In other words, "the trial court's discretion is limited by the applicable legal principles." (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1144.) Thus, a superior court abuses its discretion and commits legal error when it selects and applies the wrong legal standard to the circumstances presented. (Gonzalez, supra, 156 Cal.App.4th at pp. 420-421; see Eneaji v. Ubboe (2014) 229 Cal.App.4th 1457, 1463 ["whether a trial court applied the correct legal standard to an issue in exercising its discretion is a question of law"].)
Third, when the applicable rule of law requires the superior court to weigh various factors in making a determination, "[t]he trial court's 'application of the law to the facts is reversible only if arbitrary and capricious.' " (In re Charlisse C. (2008) 45 Cal.4th 145, 159.) Stated another way, the results of the superior court's "weighing process generally will be upheld on appeal so long as the trial court did not exceed the bounds of reason ...." (County of Kern v. T.C.E.F., Inc. (2016) 246 Cal.App.4th 301, 316 (T.C.E.F.); Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076, 1089 [abuse of discretion standard measures whether, given the established evidence, the trial court's decision falls within the permissible range of options set forth by the applicable legal criteria].)
2. Procedural Decisions
Questions of procedure generally are committed to the discretion of the superior court unless there is a specific statute, rule of court or judicial precedent stating otherwise. (E.g., Y.R. v. A.F. (2017) 9 Cal.App.5th 974, 984-985 [§ 4056, subd. (a) imposes sua sponte obligation on superior court to state its reasons for deviating from uniform guideline formula discretion when exercising its discretion to determine amount of child support].) A superior " 'court has both the inherent authority and responsibility to fairly and efficiently administer all of the judicial proceedings that are pending before it, and that one important element of a court's inherent judicial authority in this regard is "the power ... to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance." ' " (Briggs v. Brown (2017) 3 Cal.5th 808, 852.) However, the efforts of a judge presiding over family law cases to expedite matters " 'should never be directed in such manner as to prevent a full and fair opportunity to the parties to present all competent, relevant, and material evidence bearing upon any issue properly presented for determination. [¶] Matters of domestic relations are of the utmost importance to the parties involved and also to the people of the State of California.... To this end a trial judge should not determine any issue that is presented for his consideration until he has heard all competent, material, and relevant evidence the parties desire to introduce.' " (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1357-1358.)
A specific question of procedure is whether to grant or refuse a continuance. In most contexts, this question is committed to the discretion of the superior court and its ruling will not be disturbed unless a clear abuse of that discretion is shown. (Schlothan v. Rusalem (1953) 41 Cal.2d 414, 417 (Schlothan).) For example, an abuse of discretion occurs if the superior court arbitrarily curtails a party's right to present evidence on all material disputed issues. (In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116, 1131 [trial court prejudicially abused its discretion in denying brief continuance to allow testimony of rebuttal witness]; see In re Marriage of Carlsson (2008) 163 Cal.App.4th 281, 291-293 [judgment reversed after superior court halted the presentation of evidence in the middle of one party's case in chief without an opportunity to finish presenting evidence or to present rebuttal evidence].) II. ADEQUACY OF INFORMATION IN ANGELICA'S FORMS
Efrain's first claim of procedural error is that Angelica completed the mandatory Judicial Council forms using vague, nonspecific factual allegations that deprived him of a fair and impartial hearing.
A. Compliance with Mandatory Forms
The first legal question we consider in addressing this contention is whether strict or substantial compliance is required in completing the mandatory forms used for obtaining domestic violence restraining orders. We resolve this question by identifying the purpose underlying the DVPA and determining which approach best effectuates that purpose. (See Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 933 [based on objective of statute, substantial compliance with statutory condition was sufficient].) The DVPA's purpose "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.) We conclude this purpose and the efficient use of the resources of the state's superior courts favor substantial compliance, rather than requiring applicants for protective orders to strictly comply with the information required by each item in the mandatory forms. We further conclude the issue of substantial compliance is committed to the superior court's discretion. Because the exercise of this discretion requires the balancing of a variety of factors, the superior court's determination is reversible only if arbitrary and capricious—that is, if it exceeds the bounds of reason. (See pt. I.B.1., ante.)
B. No Abuse of Discretion
Next, we apply the abuse of discretion standard to the superior court's implied determination that Angelica substantially complied with the information requirements of the mandatory Judicial Council forms. Our determination of whether the superior court exceeded the bounds of reason (i.e., acted arbitrarily or capriciously) is based on a comparison of the abuse Angelica asserted at the hearing and the instances of abuse described in the completed forms. Angelica testified about (1) the incident at their son's karate class on May 11, 2017; (2) continuing verbal abuse throughout her relationship with Efrain; (3) the incident that occurred on Father's Day of 2016; and (4) other, nonspecific instances where Efrain hit her and she did not report it to the police. Angelica also testified that when she was 17 or 18 years old, she found out Efrain was cheating on her. She confronted Efrain and slapped him. Efrain locked Angelica in a room and nailed the windows shut so she could not leave.
Item 27 of the Judicial Council form DV-100 directs the applicant to describe how the person to be restrained abused the applicant and defines abuse based on sections 6203 and 6320. On the line for the date of the most recent abuse, Angelica entered Sunday, June 19, 2016. To describe the abuse, Angelica wrote: "He hit me, threathen[ed] if I left, hid my phone, purse and car keys. Would not allow me to leave the home. Verbally abused me in front of our son. Slammed doors, threw objects around." Angelica marked the "No" box to questions asking whether Efrain used or threatened to use a weapon and whether the police came. She left blank the space provided for a description of injuries. In answering the question about abuse at other times, Angelica listed the date of abuse as 2002-2016, stated "son was there later," and described the abuse as "kick in the head, choke, smack, punch, force to have sex, hide my phone, purse and keys so that I wouldn't leave. Nailed the windows shut." Again, Angelica left the space for a description of injuries blank and answered "No" to whether a weapon was used and whether the police came.
Efrain was born in 1984 and, therefore, would have been 18 years old in 2002.
In addition, Angelica attached a two-page declaration to the form DV-100. The first page described the incident at the karate class and described the abuse by stating: "He began to call me names (bitch, stupid, dumb ass) when I told him to be patient that the class was almost over." Angelica also described Efrain taking their son and stated, "I still haven't seen my son and its Friday 05/12/2017."
A comparison of the contents of Angelica's form DV-100 and the testimony she presented at the hearing shows the two specific incidents—the karate class incident and the Father's Day incident—were identified in the form DV-100 and its attachments. Thus, the form DV-100 provided Efrain with notice that those two incidents would be raised at the hearing. Also, the form DV-100 set forth general allegations of continuing verbal abuse and described physical abuse in general terms. Based on the similarity between the contents of the form DV-100 and the testimony Angelica presented at the hearing, we conclude the trial court acted within the bounds of reason when it impliedly determined the information Angelica provided in completing the mandatory forms (1) substantially complied with the requirements of those forms and (2) provided adequate notice to Efrain of the allegations of abuse that would be presented at the hearing. Efrain's written opposition on Judicial Council form DV-120 presented his version of what occurred at the karate class, even though Angelica used the incorrect attachment for presenting that claim of abuse and failed to list it as the most recent.
Accordingly, we reject the claim that the superior court erred when it impliedly determined Angelica provided adequate information about the alleged abuse when she completed the mandatory Judicial Council forms. III. SUA SPONTE DUTIES OF THE SUPERIOR COURT
Efrain's second claim of procedural error asserts the superior court should have taken a more active role in the litigation to protect the parties' constitutional and procedural rights. This contention is based, in part, on Efrain's assertion that Angelica's documents were deficient and did not properly plead specific details of abuse.
A. Duty to Explain a Defendant's Right to Object to Improper Pleading
Efrain contends the superior court "should have taken a more active role to explain to Efrain that he had the right to object to Angelica's improper documentation, even going as far to explain to Efrain his right to have such documentation stricken, such that its contents could not be considered by the Court." Based on our earlier conclusion that Angelica's forms provided adequate information about the alleged abuse, we conclude the trial court did not have a sua sponte obligation to explain to Efrain the possibility of objecting to lack of specific information and requesting the forms be stricken.
B. Duty to Order a Continuance
1. Statute and Rules
Efrain contends the superior court should have ordered a continuance to allow Angelica to amend her pleading on the mandatory forms and serve the amended pleading on Efrain, which would have cured the deficiencies in Angelica's initial paperwork. Section 245, subdivision (b) states a party may request a continuance based on good cause and the superior court "may also grant a continuance on its own motion." Similarly, rule 5.94(f)(2) states, "on its own motion, the court may: [¶] (A) Continue the hearing and set a new date ...." (See rule 5.2(b)(3), (c) [application of rules to actions under the DVPA].) More generally, "[t]he time within which any act is permitted or required to be done by a party under these rules may be extended by the court upon such terms as may be just." (Rule 5.2(f).)
The word "may" indicates discretionary authority and, therefore, we conclude a superior court's decision not to continue, on its own motion, a hearing for a restraining order under the DVPA is reviewed for an abuse of discretion. (§ 12 [" 'may' is permissive"]; Baldwin v. Baldwin (1944) 67 Cal.App.2d 175, 177 [use of "may" in rule granted discretionary authority].) This conclusion is consistent with the general rule that the grant or refusal of a continuance is committed to the discretion of the superior court and its ruling will not be disturbed unless a clear abuse of that discretion is shown. (Schlothan, supra, 41 Cal.2d at p. 417.) The exercise of this discretion requires the balancing of a variety of factors, such as the preparedness of the parties, the convenience of witnesses, the interests of any children involved, and the demands of the court's schedule. Consequently, a superior court's decision not to impose a continuance when none of the parties have requested one constitutes reversible error only if exceeds the bounds of reason—that is, is arbitrary and capricious. (See pt. I.B.1., ante.)
In this case, a continuance would have extended the terms of the temporary restraining order, which prohibited Efrain from having contact with his son. The permanent restraining order granted Efrain visitation rights and, thus, served the son's interest in renewing contact with his father.
Here, Angelica's written submission provided Efrain with adequate notice of the allegations of abuse he would be required to address at the hearing. Efrain was able to file a written response contesting those allegations. His response stated the majority of the allegations were false and presented his version of the karate class incident. In addition, Efrain came to the hearing with witnesses and two of them testified. Efrain answered that he was ready to proceed and did not request a continuance. Given these circumstances, we conclude the trial court did not act beyond the bounds of reason when it did not continue the matter on its own motion.
2. Self-Represented Litigants and Due Process
In Ross v. Figueroa (2006) 139 Cal.App.4th 856 (Ross), a woman sought and obtained an ex parte temporary restraining order against her former boyfriend. (Id. at p. 859.) At the hearing on the question of whether to make the restraining order permanent, both parties appeared without counsel. (Ibid.) At the outset of the hearing, the boyfriend requested a continuance because (1) he had not had time to get a lawyer and (2) he had not figured out how to serve his response and related papers without violating the temporary restraining order, which prohibited him from sending any written communication to the plaintiff. (Id. at p. 860.) Under the statutory provisions in effect at the time, the boyfriend was entitled as a matter of right to a continuance because the temporary restraining order was issued without notice to him. (Id. at pp. 861-862.) After the plaintiff and her mother objected to a continuance, the referee denied the request and granted the requested protective order for the maximum period of three years. (Id. at p. 860.) The referee took no oral testimony from the plaintiff or the boyfriend, and denied the boyfriend's request to submit his own evidence. (Id. at p. 860.)
In Ross, the appellate court conclude the referee lacked any discretion to deny the continuance requested by the boyfriend. (Ross, supra, 139 Cal.App.4th at 864.) The court reversed the permanent restraining order and remanded to the superior court to conduct a new hearing at which both parties would be allowed to present oral and written evidence. (Id. at p. 869.) The appellate court also addressed issues that might arise at the hearing on remand. In particular, the appellate court was concerned that "[t]he referee did not take any oral testimony from [plaintiff], nor did she ask [boyfriend] whether he wanted to challenge any of the statements in the written submission. Moreover, when [boyfriend] asked whether he could submit evidence of his own, the referee answered, 'no.' " (Id. at p. 860.) The appellate court stated the apparent refusal to allow boyfriend to present evidence in his own behalf at the hearing raised serious due process concerns. (Id. at pp. 865-866.) "We have discussed the due process problems with such a procedure or practice only because the pro tempore referee in this case appeared to act as if this written statement were the only form of evidence [boyfriend] could use to challenge [plaintiff's] 'request for restraining order' and accompanying documents. After his request for continuance had been denied and it was revealed [boyfriend] had a written statement but had not served it on [plaintiff], he asked the referee if he nevertheless could present this evidence. The referee merely answered 'no,' and proceeded to rule, granting a permanent injunction for the maximum period of three years." (Id. at p. 866, fn. omitted.) "At that point, especially in a proceeding largely used by pro pers and in which [boyfriend] was in fact participating on a pro per basis, the referee should have advised [boyfriend] he could provide oral testimony, even though he would not be permitted to file the written statement he had failed to timely serve on [plaintiff]. It is true [boyfriend] had mentioned his witnesses were not present and thus he was in no position to offer their oral testimony. But he certainly could have testified himself and raised questions to be posed to [plaintiff], had the referee advised him of his right to do so. The role of a judicial officer sitting in such a court, which has many attributes of an inquisitorial as opposed to an adversarial process, is different than when sitting in a purely adversarial court where the parties are presumed to be 'well counseled' by skilled and knowledgeable lawyers." (Id. at p. 866.)
"The essence of due process is simply notice and opportunity to be heard." (San Bernardino Community Hospital v. Workers' Comp. Appeals Bd. (1999) 74 Cal.App.4th 928, 936.) The opportunity to be heard must occur " 'at a meaningful time and in a meaningful manner.' " (Mathews v. Eldridge (1976) 424 U.S. 319, 333.)
The appellate court also stated: "In a purely adversarial setting it is reasonable for the judge to sit back and expect a party's lawyer to know about and either assert or by silence forfeit even the most fundamental of the party's constitutional and statutory procedural rights. But not so in a judicial forum, such as this domestic violence court, which can expect most of those appearing before the court to be unrepresented." (Ross, supra, 139 Cal.App.4th at p. 867.)
Here, Efrain relies on Ross to support his contention the superior court should have taken a more active role and should have granted a continuance, sua sponte. We conclude Ross does not support Efrain's contention that the superior court had a sua sponte obligation to grant a continuance. In Ross, the boyfriend requested a continuance and the applicable statute required that it be granted. Other factors discussed by the court included the boyfriend's misunderstanding of the procedure for serving the opposing party, the unavailability of his witnesses, and the referee's denial of his request to present evidence of his own at the hearing. The appellate court's discussion was designed to assure that, on remand, the referee did not require all evidence be in the form of a written statement and did not thwart an attempt by boyfriend to present oral testimony or to cross-examine the witnesses against him.
In this case, Efrain did not cross-examine Angelica and the superior court raised sua sponte objections to speculative testimony from his witnesses. Also, the court did not view Efrain's video evidence of Angelica being aggressive towards him. The court responded to his question about whether the videos could be presented as evidence by stating "this is a restraining order against you that she's seeking," which implied the videos would be relevant evidence were Efrain seeking a restraining order but were not relevant to whether Efrain had committed the acts of abuse Angelica alleged.
Nor does he contend the superior court refused him the opportunity to do so.
Efrain's presentation of his case was markedly different from the boyfriend's presentation in Ross. Efrain filed a written response, acknowledged at the hearing he was ready to proceed, testified at the hearing, and presented testimony from two witnesses. In these circumstances, we conclude the guidance provided in Ross does not support the conclusion that the superior court abused its discretion when it did not continue the hearing on its own motion and did not advise Efrain on other procedural matters.
C. Evidentiary Issues
Efrain contends the superior court's functions and responsibilities include assuring the due process rights of both parties, which includes making sua sponte evidentiary rulings and issuing appropriate orders in limine to prevent the introduction of evidence and testimony not previously noticed or, alternatively, to grant a continuance to allow the responding party to address additional claims not set forth in the pleading.
Here, we conclude Angelica testified at the hearing consistent with the allegations set forth in her form DV-100. Angelica did not, in effect, ambush Efrain by presenting detailed testimony about a specific incident not described in her papers. Her declaration and her testimony asserted verbal abuse was a daily occurrence. Those general assertions are appropriate where (1) two specific instances of abuse were described in the papers and Angelica's testimony and (2) those specific instances served as the primary grounds for issuing the restraining order. Efrain has cited, and we are aware of, no precedent requiring persons who have been subjected to verbal abuse over the course of a relationship to present log-like information about the time, date, and the words spoken to establish a foundation for testimony that a course of verbal abuse occurred during the relationship.
Consequently, we conclude the superior court did not abuse its discretion when it did not, on its own motion, strike Angelica's testimony describing abuse in general terms and as occurring over the course of their relationship. For example, the court was not compelled to strike her testimony that "[h]e'd call me a bitch, a cunt, worthless, bad mom, stupid. And this was continuing, basically, our entire relationship. We've been together for 16 years."
In summary, we conclude the manner in which the superior court conducted the June 9 hearing did not violate sua sponte responsibilities and was not an abuse of discretion.
DISPOSITION
The June 9, 2017, restraining order is affirmed. Angelica shall recover her costs on appeal.