Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 07V001330, Franz E. Miller, Judge.
Vincent Dean Malicek, Jr., in pro. per., for Defendant and Appellant.
Rients & Lonner and Jeffrey B. Lonner for Plaintiff and Respondent.
OPINION
MOORE, J.
Vincent Dean Malicek, Jr., appeals the trial court’s order granting a restraining order to Lisa Myers under the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq., (the Act)). Because the trial court’s conclusions are supported by substantial evidence, we affirm the order.
Subsequent statutory references are to the Family Code.
I
FACTS
Malicek represents himself on appeal. Unfortunately, his brief is nearly incoherent, failing to present the facts or legal argument in any orderly form. In the interests of justice, we shall attempt to look past as many of Malicek’s lapses of form and procedure as possible. We note, however, that propria persona litigants are required to follow the rules of procedure. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522.) Rule 8.204(a)(2)(C) of the California Rules of Court requires the appellant to “provide a summary of the significant facts limited to matters in the record.” Malicek has failed to do so. To the extent we are unable to address any of his arguments based on his failure to provide a pertinent statement of facts, that argument is deemed waived. (Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 109.)
Apparently, Malicek and Myers dated and lived together for some time prior to January 2007. Prior to their separation, Myers became pregnant and Malicek filed a petition to establish paternity in a separate action. On January 30, 2007, Myers, on her own behalf, filed a request for a domestic violence restraining order. The petition claimed that on January 19, Malicek followed Myers to a park and would not leave her alone at her request. She claimed that Malicek would not let her shut the door of her vehicle until she shouted, drawing the attention of passersby. Myers’s affidavit further stated that she believed Malicek was using drugs, had broken into her residence and left threatening messages. Myers was apparently granted a temporary restraining order (TRO), but the order itself is not in the record.
On February 21, after an evidentiary hearing, the court made a finding of domestic violence and entered a restraining order for one year. It is difficult to discern from the record, but according to Myers, Malicek dismissed his paternity petition in March 2007, and at the same time, the court inadvertently dismissed the restraining order. Pursuant to Myers’s motion, the court reinstated the order on June 14. Malicek apparently refiled his paternity petition thereafter.
II
DISCUSSION
The only question on appeal is whether the trial court properly granted Myers’s request for a restraining order. We begin by noting that Malicek’s claims under the Sixth and Fourteenth Amendments are misplaced, as the Sixth Amendment does not apply in civil cases. (See, e.g., People v. $30,000 United States Currency (1995) 35 Cal.App.4th 936, 942.) Rather than try to follow Malicek’s other arguments, which misapprehend both the applicable law and the role of the appellate court, we shall instead try to address the gist of his brief, which is premised upon the argument that the restraining order should not have been issued.
We review a grant or denial of injunctive relief for abuse of discretion. (Salazar v. Eastin (1995) 9 Cal.4th 836, 849-850.) This standard applies to a grant or denial of a protective order under the Act. (See Quintana v. Guijosa (2003) 107 Cal.App.4th 1077, 1079.) A trial court’s discretion must “‘be exercised in conformity with the spirit of the [applicable] law and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ [Citations.]” (In re Robert L. (1993) 21 Cal.App.4th 1057, 1066, superseded on other grounds by statute, as stated in Cesar V. v.Superior Court (2001) 91 Cal.App.4th 1023, 1032.) Thus, the scope of the trial court’s discretion is determined by the governing law — in this case, the Act.
“The Legislature has set forth the relevant factors in Family Code section 6300, by providing that a domestic violence restraining order may be issued ‘if an affidavit shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.’ ‘Abuse’ is defined. It means intentionally or recklessly causing or attempting to cause bodily injury, sexual assault, or placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another. [Citation.]” (Quintana v. Guijosa, supra, 107 Cal.App.4th at p. 1079.) Abuse also includes any behavior that has been or could be enjoined pursuant to section 6320. (§ 6203.) The behavior outlined in section 6320 includes “stalking, threatening . . . harassing, telephoning . . . contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party . . . .” (§ 6320, subd (a).) Thus, the requisite abuse need not be actual infliction of physical injury or assault.
Further, the Act grants the trial court considerable discretion on the basis of an act showing past abuse. The court “may” issue an order “with or without notice, to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit . . . shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” (§ 6300.) This is considerably more liberal than, for example, the trial court’s discretion to restrain abuse generally, which requires clear and convincing evidence. (See Code Civ. Proc., § 527.6, subds. (b), (d).)
Myers testified at the hearing that Malicek had harassed her at the park on January 19. She testified that Malicek had not respected her requests that he not contact her, and that he came to her place of employment. Further, he had contacted her by e-mail since the issuance of the TRO. She stated that Malicek had acknowledged a drug problem, specifically methamphetamine, and that when he was under the influence, she could tell the difference in his demeanor. His behavior while under the influence of methamphetamine put her in fear of her life and safety. Myers testified that Malicek had broken into her house, vandalized food in her refrigerator, and caused her to change her locks twice. She also testified to an incident in October 2006 when Malicek put his hands around her throat.
We find no abuse of discretion. The acts testified to by Myers are well within the contours outlined by the statute, specifically “stalking, threatening . . . harassing, telephoning . . . contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party . . . .” (§ 6320, subd. (a).) To a considerable extent, Malicek essentially asks this court to reweigh the evidence, and that we cannot do. The trial court assesses credibility, not this court. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.)
To the extent that Malicek argues the court wrongfully admitted or excluded evidence, we also review such claims for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 201.) We find no evidentiary error — indeed, the court was careful to constrain the evidence admitted to the facts set forth in Myers’s application. The only exception was the incident of violent contact, which the court specifically stated was relevant only to the contours of what an appropriate order would be. This was not error. Thus, in sum, we find the order was properly issued.
III
DISPOSITION
The order is affirmed. Myers is entitled to her costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J., O’LEARY, J.