Burquet v. Brumbaugh CA2/5 , 223 Cal. App. 4th 1140 ( 2014 )

Filed 1/14/14 Burquet v. Brumbaugh CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
GISELA BURQUET, B248031
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BQ039688)
v.
RANDY BRUMBAUGH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Thomas
Trent Lewis, Judge. Affirmed.
Michael Anthony Cisneros for Defendant and Appellant.
Gisela Burquet, in pro.per.
Appellant, Randy Brumbaugh1 appeals from a March 20, 2013 order granting a
restraining order, issued pursuant to the California Domestic Violence Protection Act
(“DVPA”).
PROCEDURAL HISTORY
On February 20, 2013 plaintiff2 submitted to the trial court an application for a
DVPA ex parte restraining order, requesting therein that defendant be ordered to stay at
least 200 yards away from plaintiff, her home, job, school, and vehicle. The court
granted the ex parte restraining order on that date, but limited its scope to plaintiff’s
person and home and limited it to 100 yards. On March 4, 2013, defendant filed his
Response to the request for Domestic Violence Restraining Order. The hearing on
Plaintiff’ s request for a further injunction after hearing was called for hearing on March
20, 2013. At the conclusion of the hearing the trial court made the following ruling:
“The Court has read and considered the Petitioner’s [Plaintiff’s] request for a restraining
order and after hearing testimony from both sides, the Court finds good cause that
warrants the granting of a restraining order. [¶] RESTRAINING ORDER IS
GRANTED and in effect [sic] until 3/20/15. The Court makes its orders pursuant to the
Clets Order After Hearing” signed and filed this date. A copy of the order is presented to
the parties in open court.” On April 8, 2013, defendant filed his Notice of Appeal.
1
Plaintiff’s failure to file a Respondent’s Brief does not affect the defendant’s
burden to prove that the trial court abused its discretion when it issued the Domestic
Violence Protection Act restraining order. (See Votaw Precision Tool v. Air Canada
(1976) 60 Cal. App. 3d 52, 55.)
2
In the interest of clarity we refer to the appellant as defendant and respondent as
plaintiff.
2
SUMMARY OF FACTS AND DISCUSSION OF THE LAW
The evidence presented at the hearing, accepting as true all evidence tending to
establish the correctness of the trial court’s findings and resolving every conflict in favor
of the judgment is as follows: The parties had an intimate relationship which terminated
in April of 2012. Plaintiff terminated the relationship and defendant could not accept it.
He kept contacting her. Between June and October of 2012 plaintiff asked defendant
several times to not contact her. Despite her requests that he cease contacting her,
defendant continued to do so beseeching her to renew their intimate relationship. His
communications were inappropriate and contained sexual innuendos. She constantly
turned down his overtures and requested that he stop contacting her and each time he
would get angry. The last time she asked him to not contact her was on October 31,
2012, subsequent thereto he continued to contact her by email and text. On February 18,
2013, defendant, unannounced and uninvited, and despite plaintiff’s requests that he not
contact her, appeared outside her residence. He knocked on the door and plaintiff opened
it but did not invite him inside. After a short conversation she told him to respect her
wishes and to leave. “He got angry. He started saying very-- in a loud voice “I love you,
I don’t know, I’m sorry.” She was afraid of what he was going to do, and said “Please
leave, I’m scared. I will call the police. And that’s when he shouted at me through my
door window, I want to see you do that.” Defendant still did not leave, he paced around
her porch for about 10 minutes. After about ten minutes he called her from his cell phone
and told her he was leaving. He asked her not to be scared, but she was scared because
he was angry. On two prior occasions during their relationship when he had gotten angry
he became physical with her. He left before the police arrived.
After hearing all of the evidence the Court stated in part when making its ruling:
[¶] “All right. There’s enough here for a restraining order. I’m granting a restraining
order. [¶] It just doesn’t make sense that Mr. Brumbaugh would show up five months
later out of nowhere unannounced, uninvited, stick around, not leave when asked to leave
and pace around the porch. It just was at least immature, if not threatening. . . . [¶] I see
uninvited contact that made the petitioner afraid because he would not leave and showed
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up of nowhere uninvited, and unannounced. And so the restraining order will expire on
March 20, 2015. Two years from now you guys should be enough done with each other
that it’s time to move on with life, which it sounds like that’s what you want. . . .[¶] I do
think the evidence here is enough to make me concerned and assure the peace and
tranquility of the Petitioner.” Defendant seeks a reversal of the trial court’s decision
based upon his contention that the trial court abused its discretion in issuing the
restraining order. He argues that though the parties had been in a past dating relationship,
no evidence was presented to the trial court of past act or acts of “abuse.”
A granting or denial of injunctive relief is generally reviewed by the appellate
court based upon the abuse of discretion standard. (Salazar v. Eastin (1995) 9 Cal. 4th
836, 849-850). This standard applies to the grant or denial of protective order under the
DVPA. (See Quintana v. Guijosa (2003) 107 Cal. App. 4th 1077, 1079; Gonzalez v.
Munoz (2007) 156 Cal. App. 4th 413, 420; S.M. v. E.P. (2010) 184 Cal. App. 4th 1249,
1265). In reviewing the evidence, the reviewing court 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.
(Howard v. Owens Corning (1999) 72 Cal. App. 4th 621, 631.) ‘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.’” (Sabbah v. Sabbah (2007) 151 Cal. App. 4th
818, 822.)
Family Code section 6203 provides that “For purposes of this act, [DVPA] ‘abuse’
means any of the following:
(a) Intentionally or recklessly to cause or attempt to cause bodily injury.
(b) Sexual assault.
(c) To place a person in reasonable apprehension of imminent serious bodily
injury to that person or to another.
(d) To engage in any behavior that has been or could be enjoined pursuant to
Section 6320.”
4
Family Code section 6211 provides in part: “‘Domestic violence’ is abuse
perpetrated against any of the following persons . . . (c) a person with whom the
respondent is having or has had a dating or engagement relationship.” Family Code
Section 6320(a) provides: “The court may issue an . . . order enjoining a party from
molesting , attacking, striking, stalking, threatening, sexually assaulting, battering,
harassing, telephoning, including, but not limited to, annoying telephone calls as
described in Section 653m of the Penal Code, destroying personal property, contacting ,
either directly or indirectly, by mail or otherwise, coming within a specified distance, or
disturbing the peace of the other party, and, in the discretion of the court, on a showing of
good cause, of other named family or household members.”
It is clear from the trial court’s statements at the time that it made its ruling [see
above] that the court granted Plaintiff an injunction pursuant to Section 6320 based upon
its finding that defendant had violated sub-section (d) of Section 6203(d), referring to that
portion of Section 6320 which states “or disturbing the peace of the other party . . .”
There were as set forth above, substantial facts presented at the hearing to support the
trial court’s decision that the defendant, because of his inability to accept that his
romantic relationship with the plaintiff was over, and despite plaintiff’s numerous
requests that he not contact her, was engaging in a course of conduct of contacting
plaintiff by phone, email, and text, which messages contained inappropriate sexual
innuendos, and arriving at her residence unannounced and uninvited, and then refusing
to leave and making a scene, when she refused to see him for the purpose of causing her
to renew their romantic relationship. The result of which actions by defendant “disturbed
the peace of the other party.” Such a disturbance of plaintiff’s “peace” in the present case
constitutes an act of “abuse” under the DVPA.
Defendant contends, however, that there was insufficient evidence presented to the
trial court to support a finding of “disturbing the peace” of plaintiff to allow the trial court
to issue a DVPA restraining order and that the court’s order exceeded “the bounds of
reason.” (See Gonzalez v. Munoz (2007) 156 Cal. App. 4th 413). He urges this court in
determining whether the trial court abused its discretion in finding an act of “abuse”
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under the DVPA, based upon “disturbing the peace of another,” to follow the definition
of disturbing the peace as set forth in In re Bushman 3 (1970) 1 Cal. 3d 767, 773, where
the California Supreme Court in a case not involving the DVPA defined disturbing the
peace, as that language is used in Penal Code section 415, for criminal law purposes, as
the “disruption of public order by acts that are themselves violent or that tend to incite
violence.” He then specifically asks this court in arriving at its decision to reject the
holding in In re Marriage of Nadkarni (2009)173 Cal.App.4th1483, 1494 wherein in a
case involving the DVPA the appellate court held as follows: “For purposes of the
DVPA, “‘abuse” means any of the following: [¶] (a) Intentionally or recklessly to cause
or attempt to cause bodily injury. [¶] (b) Sexual assault. [¶] (c) To place a person in
reasonable apprehension or imminent serious bodily injury to that person or to another.
[¶] (d) to engage in any behavior that has been or could be enjoined pursuant to Section
6320.’ [Citation.] [¶] Section 6320 provides in part that ‘[t]he court may issue an ex
parte order enjoining a party from molesting, attacking, striking, stalking, threatening,
sexual assaulting, battering, harassing, telephoning, including, but not limited to,
annoying telephone calls as described in Section 653m of the Penal Code, 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, and, in the
discretion of the court on a showing of good cause, of other named family or household
members.’. . . . [¶] Thus, section 6320 provides that ‘the requisite abuse need not be
actual physical injury or assault.’ (Conness v. Satram (2004) 122 Cal. App. 4th 197, 202.)
To the contrary, section 6320 lists several types of nonviolent conduct that may constitute
abuse within the meaning of the DVPA, including two types of conduct relevant to the
present case. . . . [¶] Second, section 6320 broadly provides that ‘disturbing the peace of
the other party’ constitutes abuse for purposes of the DVPA. The DVPA does not
3
The case of In re Bushman involved the application of section 415 of the Penal
Code, which makes a violation of that section a misdemeanor punishable by a fine and up
to six months imprisonment in the county jail. Section 415 has nothing to do with the
DPVA or the purpose of the DPVA.
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provide any definition of the phrase ‘disturbing the peace of the other party,’ and we
therefore turn to the rules of statutory construction to determine the meaning of the
phrase and whether Datta’s conduct, as alleged by Darshana in her declaration may
constitute with the meaning of the DVPA. [¶] ‘In statutory construction cases, our
fundamental task is to ascertain the intent of the lawmakers so as to effectuate the
purpose of the statute. [Citation.]’ (Estate of Griswold (2001) 25 Cal. 4th 904, 910-911.)
‘“We begin by examining the statutory language, giving the words their usual and
ordinary meaning.” [Citations.] If the terms of the statute are unambiguous, we presume
the lawmakers meant what they said, and the plain meaning of the language governs.
[Citations.] If there is ambiguity, however, we may then look to extrinsic sources,
including the ostensible objects to be achieved and the legislative history. [Citation.] In
such cases, we “‘“select the construction that comports must closely with the apparent
intent of the Legislature, with a view of to promoting, rather than defeating the general
purpose of the statute, and avoid an interpretation that would lead to absurd
consequences.”’” [Citation.]’ [Citation.] [¶] To determine the plain meaning of the
statutory language, we may resort to the dictionary. ‘When attempting to ascertain the
ordinary, usual meaning of a word [in a statute], courts appropriately refer to the
dictionary definition of that word.’ (Wasatch Property Management v. Degrate (2005)
35 Cal. 4th 1111, 1121-1122.) The ordinary meaning of ‘disturb’ is ‘[t]o agitate and
destroy (quiet, peace, rest); to break up the quiet, tranquility, or rest (of a person, . . . ,
etc); to stir up, trouble, disquiet.’ (Oxford English Dictionary Online (2d ed.1989)
http://www.oed.com. [as of April 24, 2009.] ‘Peace,’ as a condition of the individual, is
ordinarily defined as ‘freedom from anxiety, disturbance (emotional, mental or spiritual,)
or inner conflict, calm, tranquility.’ (Ibid.) Thus the plain meaning of the phrase
‘disturbing the peace of the other party’ in section 6320 may be properly understood as
conduct that destroy the mental or emotional calm of the other party. [¶] Our
interpretation of the phrase ‘disturbing the peace of the other party’ in section 6320 also
comports with the legislative history of the DVPA. As enacted in 1993 (Stats.1993,
7
ch. 219, § 154, p.1654), the DVPA collected earlier provisions for the issue of domestic
violence restraining orders from the former Family Law Act (Civ. Code former Sec.
4359), the former Domestic Violence Prevention Act (Code Civ. Proc. former Sec. 540 et
seq.) foll.sec..6200, p. 675.) These provisions all expressly authorized a domestic
violence restraining order that enjoined ‘disturbing the peace’ of the other party.
[Citations Omitted]. . . .[¶] Accordingly, we believe that the Legislature intended that the
DVPA be broadly construed in order to accomplish the purpose of the DVPA. Therefore,
the plain meaning of the phrase ‘disturbing the peace’ in section 6320 may include, as
abuse within the meaning of the DVPA, a former husband’s alleged conduct in
destroying the mental or emotional calm of his former wife. . . .” (In re Marriage of
Nadkarni, supra, 173 Cal.App.4th at pp. 1496-1498.)
The definition of disturbing the peace as set forth in of section 415 of the Penal
Code [since amended] as set forth in Bushman, supra, is not applicable to the meaning of
the phrase “disturbing the peace of the other party” as used in the DVPA. The decision
of the appellate court in In re Marriage of Nadkarni, as to the statutory interpretation of
the phrase “disturbing the peace of the other party” as set forth in section 6320 of the
DVPA is well reasoned, and this court adopts this position in regard to the present case.
There was substantial evidence presented at trial to support the trial court’s finding that
defendant disturbed the peace of the plaintiff, an act of “abuse” under the DVPA.
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DISPOSITION
The March 13, 2013 order restraining defendant’s conduct pursuant to the
provisions of the DVPA, is affirmed. The respondent is awarded her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MINK, J.*
We concur:
TURNER, P. J.
KRIEGLER, J.
*
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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