Opinion
E075915
10-18-2022
In re the Marriage of KATRINA AND HERIBERTO R. v. HERIBERTO R., JR., Appellant. KATRINA R., Respondent,
The Law Office of Lauren Laundis and Laruen Laundis, for Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. DVRI2002145. Jennifer R. Gerard, Judge. Affirmed.
The Law Office of Lauren Laundis and Laruen Laundis, for Appellant.
No appearance for Respondent.
OPINION
CODRINGTON J.
I.
INTRODUCTION
While dissolving their marriage, Heriberto R. and Katrina R. filed requests for domestic violation restraining orders (DVRO) against one another. The trial court entered a DVRO against Heriberto, but denied his request for a DVRO against Katrina. Heriberto appeals, and we affirm.
We refer to the parties by their first name because they share the same last name. We mean no disrespect. And because this case involves the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.), we refer to the parties by first name and last initial to protect their privacy. (Cal. Rules of Court, rule 8.90(b)(1), (11).)
II.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant also filed a petition for writ of mandate, case No. E078806, which we ordered considered with this appeal. We shall rule on the petition by separate order.
Katrina filed a request for a DVRO in early May 2020 in which she alleged Heriberto abused her on April 28 and 30, 2020. As to the first incident, Katrina alleged that Heriberto followed her around the house while screaming in her face and calling her degrading names. Katrina put a blanket over her head, and Heriberto pulled it off, ripping her hair out and "tweak[ing]" her neck. He then told her she was a "33 cent problem," referring to the cost of a bullet.
Katrina alleged that Heriberto physically abused her again two days later. According to Katrina, Heriberto wrestled her to the ground and pinned her to the wall, injuring her right hand, left foot, stomach, and neck. Katrina also claimed that Heriberto verbally abused her and told her he would shoot her if she called the police. Nonetheless, Katrina called the police and Heriberto was arrested.
Heriberto filed a request for a DVRO against Katrina a few weeks after his arrest. He claimed that Katrina had physically and verbally abused him about a year prior and in 2015. According to Heriberto, Katrina hit him in 2015, leaving him with two black eyes, and hit him again in 2019, causing his lip to split.
The trial court held a hearing on the parties' requests for a DVRO during which they and their two teenage daughters, M.R. and K.R., testified. Consistent with her DVRO petition, Katrina testified that on April 28, Heriberto pulled a blanket off of her head that she had placed over her head because Heriberto was verbally abusing her. Katrina also testified that Heriberto told her she was a "22-cent problem" and that there was "plenty of desert for [her] to disappear in." Katrina was scared, but did not call the police. Two days later, Heriberto grabbed and wrestled her, pinned her against the wall, pushed her, and stomped on her foot. Katrina called the police and Heriberto was arrested.
Katrina explained that the Riverside County District Attorney filed domestic violence charges against Heriberto. Katrina filed her request for a DVRO about a week later because she feared for her safety and the safety of her children.
Although there is no record of Heriberto's arrest in the record on appeal, the trial court stated at the hearing that it had confirmed there was a record of Heriberto's arrest.
After closing arguments, the trial court explained its rulings and reasoning at length. The trial court found, among other things, that Heriberto and K.R. were not credible, that M.R.'s testimony was credible but "not all that helpful" because "she didn't see a whole lot." The court also found that there was "mutual domestic violence," but Heriberto was the "primary aggressor" given his conduct on April 28 and 30. The trial court therefore granted Katrina's request for a one-year DVRO and denied Heriberto's request for one against Katrina. Heriberto timely appealed.
III.
DISCUSSION
Heriberto argues the trial court erroneously granted Katrina's request for a DVRO while denying his request for one against Katrina. We find no error.
Because the trial court's one-year DVRO expired while this appeal was pending, we directed Heriberto to file a supplemental brief addressing whether his appeal of the DVRO is moot. (See Harris v. Stampolis (2016) 248 Cal.App.4th 484, 495 ["'"If relief granted by the trial court is temporal, and if the relief granted expires before an appeal can be heard, then an appeal by the adverse party is moot."'"].) Heriberto argues it is not moot because the outcome of the appeal may affect his child visitation rights, his pending domestic violence criminal proceeding, and his right to own firearms.
"Appellate courts generally will neither decide controversies that are moot nor render decisions on abstract propositions. [Citations.] 'A case is moot when the decision of the reviewing court "can have no practical impact or provide the parties effectual relief. [Citation.]" [Citation.] "When no effective relief can be granted, an appeal is moot and will be dismissed." [Citations.]'" (Steiner v. Superior Court (2013) 220 Cal.App.4th 1479, 1485.)
However, "there are three discretionary exceptions to the rules regarding mootness: (1) when the case presents an issue of broad public interest that is likely to recur [citation]; (2) when there may be a recurrence of the controversy between the parties [citation]; and (3) when a material question remains for the court's determination [citation]." (Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479-480.) Because the DVRO's issuance alone may affect Heriberto's family court and criminal proceedings, we agree that his appeal of the DVRO is not moot. (See In re Cassandra B. (2004) 125 Cal.App.4th 199, 209 [holding appeal from restraining order that expired during appeal was not moot "because its issuance in the first instance could have consequences for mother in this and future court proceedings"].)
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." (Fam. Code, § 6220.) To effectuate this purpose, a trial court may issue a DVRO upon a showing "to the satisfaction of the court, [of] reasonable proof of a past act or acts of abuse." (Fam. Code, § 6300, subd. (a).)
We review the trial court's order granting or denying a DVRO for an abuse of discretion. (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1143.) This means that we will reverse only if the trial court's "decision exceeds 'the bounds of reason,'" and no judge could "reasonably have reached that decision under applicable law." (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 957.) "In reviewing the evidence, [we] must apply the 'substantial evidence standard of review,' meaning '"whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted," supporting the trial court's finding. [Citation.] "We must accept as true all evidence ... tending to establish the correctness of the trial court's findings . . ., resolving every conflict in favor of the judgment."' [Citation.]" (Burquet v. Brumbaugh, supra, at p. 1143.) Thus, if there is substantial evidence to support the trial court's orders granting Katrina's request for a DVRO against Heriberto and denying Heriberto's request for one against Katrina, we must affirm the orders. (Ibid.)
Heriberto first contends the trial court was "blatantly prejudiced" against him. He points to the court's "vitriolic diatribe" against him as evidence of the trial court's purported bias. Heriberto forfeited this argument because he did not assert it in the trial court. (See People v. Samuels (2005) 36 Cal.4th 96, 114 ["Failure to raise the issue of judicial conduct at trial waives claims of statutory or constitutional error."]; People v. Seaton (2001) 26 Cal.4th 598, 698 ["Defendant has not preserved this claim for review because he failed to object to the allegedly improper acts and never asked the judge to recuse himself."].)
Heriberto next argues that the trial court erred by granting Katrina's request for a DVRO because the court failed to make sufficient findings that Heriberto abused Katrina and did not adequately explain its reasoning for issuing a DVRO against him. We disagree.
In making its oral ruling, the trial court stated that it found Heriberto was the "primary aggressor, based on his actions on" April 28 and 30. This shows that the trial court found that Heriberto committed domestic violence against Katrina on April 28 and 30. The trial court's minute order issued after the hearing reflected this finding.
In doing so, the trial court necessarily found that Katrina's testimony about the incidents on April 28 and 30 was credible. The trial court thus credited Katrina's testimony that Heriberto abused her on two separate occasions. We must defer to the trial court's credibility findings, which provided substantial evidence for the trial court's order granting Katrina's request for a DVRO. (See Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 782 [trial court may issue DVRO upon finding of abuse]; Estate of Sapp (2019) 36 Cal.App.5th 86, 106 ["'The trial court was the trier of fact and the sole judge of the credibility of witnesses.'"]; In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 703 ["The testimony of one witness, even that of a party, may constitute substantial evidence."].) The trial court therefore did not abuse its discretion by issuing a DVRO against Heriberto.
Nor did the trial court abuse its discretion by denying Heriberto's request for a DVRO against Katrina after granting her DVRO request. As Heriberto correctly observes, the trial court could have issued a mutual DVRO against him and Katrina only if the court found that they were both a "primary aggressor." (See Fam. Code, § 6305; Herriott v. Herriott (2019) 33 Cal.App.5th 212, 226.) The trial court found Heriberto was the only primary aggressor and denied his request for a mutual restraining order on that basis.
Heriberto faults the trial court for not making sufficient factual findings on the record and failing to explain its reasoning. But the trial court expressly found that Heriberto put a blanket over Katrina's head and accidentally ripped out her hair when he intentionally pulled it off her head. And although the trial court did not identify every alleged act of abuse the court found true, the trial court found that Heriberto was the primary aggressor "based on his actions on" April 28 and 30. We can infer from this finding that the trial court found Katrina's allegations were true, particularly given that nothing in the record suggests the trial court disbelieved Katrina's testimony. Katrina's testimony was sufficient for the trial court to find that Heriberto verbally abused, threatened, pushed, and wrestled her, stomped on her foot, and pinned her to the ground and against the wall, and injured her in several places on her body.
By contrast, the trial court found that Katrina only slapped Heriberto once in 2015 and/or 2019, but did not believe that she gave him two black eyes. The trial court thus found that although Katrina had engaged in some domestic violence long before Heriberto filed his DVRO request, Heriberto's two instances of abusing Katrina were much more serious and occurred about a week before Katrina filed her DVRO request.
Substantial evidence thus supports the trial court's finding that Heriberto, not Katrina, was the primary aggressor. (Cf. In re Marriage of Everard (2020) 47 Cal.App.5th 109, 126 [husband who choked wife was primary aggressor].) As a result, the trial court properly denied Heriberto's request for a DVRO against Katrina.
IV.
DISPOSITION
The trial court's orders granting Katrina's request for a DVRO and denying Heriberto's request for a DVRO are affirmed. Katrina may recover her costs on appeal.
We concur: RAMIREZ P. J., MILLER J.