Blackburn v. Alarcon CA2/1 ( 2020 )

Filed 12/17/20 Blackburn v. Alarcon CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
DAVID RICHARD BLACKBURN, B302746
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 19STFL02659)
v.
TANIA OLIVA ALARCON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Rolf M. Treu, Judge. Affirmed.
Law Office of Benjamin Kanani and Benjamin F. Kanani
for Defendant and Appellant.
The Broadway Law Firm and Anthony J. Catena for
Plaintiff and Respondent.
_________________________
The superior court issued a domestic violence restraining
order (DVRO; Fam. Code, § 6200 et seq.) protecting David
Richard Blackburn and his two children from his estranged wife,
Tania Oliva Alarcon. The court denied Alarcon’s competing
request for a DVRO. Alarcon appealed. For the reasons below,
we affirm the order.
BACKGROUND
Blackburn and Alarcon married on February 24, 2018.
Approximately one year later, Blackburn informed Alarcon that
he planned to end their marriage. In response, Alarcon moved
out of the residence. Afterward, a series of altercations ensued
between the parties.
On March 7, 2019, Blackburn filed a request for a DVRO to
protect himself and his two children from a prior marriage (ages
9 and 12). Alarcon filed a DVRO request on April 29, 2019. The
trial court conducted a trial on October 2, 2019, to adjudicate
both petitions. The court heard testimony from Blackburn, his
former tenant Carola Bianchi, his companion Michelle Vega, and
Alarcon.
A. February 9, 2019, Incident1
Blackburn’s evidence showed that on February 9, 2019,
Alarcon entered his home at approximately 3 o’clock in the
morning. She engaged in an argument with Vega, pulling her
hair and attempting to block her from descending the staircase.
1 Whether this incident began early in the morning of
February 9 or February 10 is unclear from the record. Precisely
when the incident occurred does not affect our reasoning, and we
refer to this first incident as the February 9, 2019, incident for
purposes of clarity.
2
Bianchi awoke to the sound of people screaming. When she
opened the door of her bedroom, she saw Alarcon screaming at
Blackburn and standing in the front doorway, preventing him
and Vega from leaving the home.
Once Blackburn and Vega exited the house, they entered a
hired car in order to leave. Alarcon moved to the front of the car
and blocked it to prevent it from moving. Alarcon allowed the car
to leave once Blackburn exited the vehicle. The police arrived.
After they prepared a report, Alarcon collected some personal
items and left.
Alarcon denied pulling Vega’s hair, instead testifying that
Vega strangled her on the staircase by placing her hands around
Alarcon’s neck. Alarcon admitted standing at the front door to
prevent Blackburn and Vega from leaving, at which point
Blackburn grabbed her arms and pushed her against the door
while Vega slapped her. Once the three exited the home, Vega
threw Alarcon down onto the driveway and Blackburn restrained
her again while Vega hit and slapped her. This beating left
Alarcon bleeding and in shock. When the police arrived,
however, Alarcon did not remember whether she showed the
officers the injuries she claimed were caused by Blackburn and
Vega.
Alarcon went to a nearby hospital emergency room for
treatment. While there, she was joined by her friend Olga. At
first, she testified that Olga took photographs of her injuries.
When Alarcon introduced the photographs as evidence, however,
she testified they were taken by the hospital medical staff.
Alarcon agreed that she appeared in the photographs
alternatively in a hospital gown, a black top, a sweatshirt, and
once with a necklace that did not appear in the other
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photographs. When the trial court questioned her about the
changes of clothing, she was unable to provide a clear
explanation, only stating that she was cold.
B. February 14, 2019, Incident
Blackburn testified that Alarcon returned to the residence
again on February 14, 2019, at 3 o’clock in the morning with a
law enforcement escort. Alarcon retrieved some possessions and
left the residence.
Alarcon testified that she was afraid of Blackburn after the
events that took place on February 9. When asked why she
returned to the home on February 14 if she was afraid of
Blackburn, she said she was “completely dependent on him
financially,” and she had to return to gather some belongings.
When asked what she retrieved from the home, she initially
answered “a sweater.” She followed this response by identifying
a few other belongings, including clothing she wanted to sell on a
website.
C. February 21, 2019, Incident
On February 21, 2019, Bianchi called Blackburn and
reported that Alarcon had returned to the home a third time.
Alarcon was “screaming and shouting.” Alarcon left before
Blackburn returned home. Later, Blackburn sent Alarcon text
messages hoping to expedite the divorce process. In response,
Alarcon threatened to come back to the house “in the same way
she had done over the last few weeks.”
Alarcon agreed she went to the home a third time on
February 21, 2019, at 3 o’clock in the morning. The purpose of
this visit was to pick up clothing to sell online.
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D. The Trial Court’s Ruling
The trial court denied Alarcon’s petition. It granted
Blackburn’s request for a three-year DVRO naming Blackburn
and his two children as protected persons.
In announcing its ruling, the court found Alarcon’s
testimony was not credible, stating it had “grave doubts about
the believability of [Alarcon], given the nature of her testimony,
the number of inconsistencies, the manner in which she testified,
very importantly the lack of Olga being here to testify, the lack of
peace officers being here to testify to verify the various claims
made by [Alarcon] relative to what they saw at the scene. And
most importantly, the records of [the hospital] which the court is
told exist but have not been presented to the court, either by
subpoena or testimony of any emergency worker.” The court
further stated it had “grave concern” about the photographs
taken at the hospital purporting to show Alarcon’s injuries. The
court observed Alarcon was wearing different clothing in the
various photographs, and stated it was “difficult for the court to
believe that the emergency room personnel would have the time
for the taking of the [photographs] of a patient three different
times . . . .”
Alarcon timely appealed.
DISCUSSION
A. Applicable Legal Standards
The Domestic Violence Prevention Act (DVPA) authorizes a
trial court “ ‘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 evidence shows
“ ‘reasonable proof of a past act or acts of abuse.’ ” (In re
Marriage of Evilsizor & Sweeney (2015) 237 Cal. App. 4th 1416,
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1424.) “Abuse” is defined by the DVPA to include physical
violence, sexual assault, or “behavior that has been or could be
enjoined pursuant to [Family Code s]ection 6320.” (Fam. Code,
§ 6203, subd. (a).) “[Family Code s]ection 6320 broadly provides
that ‘disturbing the peace of the other party’ constitutes abuse for
purposes of the DVPA.” (In re Marriage of Nadkarni (2009) 173
Cal. App. 4th 1483, 1497.) “ ‘[D]isturbing the peace of the other
party’ ” is “conduct that destroys the mental or emotional calm of
the other party.” (Ibid.)
We review an order granting a protective order under the
DVPA for abuse of discretion. (In re Marriage of Nadkarni,
supra, 173 Cal.App.4th at p. 1495.) In reviewing the evidence, we
apply the substantial evidence standard of review. (In re
Marriage of Davila & Mejia (2018) 29 Cal. App. 5th 220, 226;
Burquet v. Brumbaugh (2014) 223 Cal. App. 4th 1140, 1143.)
Under this standard, “ ‘ “[w]e 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, supra, at p. 1143.) If there is substantial
evidence, we must affirm the judgment unless the trial court
“exceeded ‘the bounds of reason,’ ” or applied the wrong legal
standard in exercising its discretion. (Id. at p. 1144.)
B. The Trial Court’s Ruling is Supported by Substantial
Evidence
Alarcon contends the trial court arbitrarily found her not
credible and failed to give appropriate weight to evidence
supporting her version of the events. She argues the trial court
rested its ruling on the limited evidence involving the hospital
photographs in which she appeared in different clothing.
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“The trial court sits as trier of fact and it is called upon to
determine that a witness is to be believed or not believed. This is
the nature of fact finding. ‘The trier of fact is the sole judge of the
credibility and weight of the evidence . . . .’ [Citation.]” (In re
Marriage of Greenberg (2011) 194 Cal. App. 4th 1095, 1099.) “A
trier of fact is free to disbelieve a witness . . . if there is any
rational ground for doing so.” (In re Jessica C. (2001) 93
Cal. App. 4th 1027, 1043.) On appeal, we defer to the trial court’s
credibility findings, which are binding on appeal in the absence of
a showing that the trial court’s judgment is arbitrary, capricious,
or exceeds the bounds of reason. (In re Marriage of Boswell
(2014) 225 Cal. App. 4th 1172, 1175-1176.)
The trial court’s reasons for questioning the validity of
Alarcon’s photographs were well grounded, based on its
observation that Alarcon appeared in different clothing in the
various photographs.2 In addition to the lack of third party
witnesses to support her version of events, as well as the absence
of any medical records substantiating her claims of physical
abuse, Alarcon’s testimony was frequently inconsistent and her
explanations implausible. We conclude the trial court’s
credibility finding was premised on rational grounds.
2 The photographs that were marked as exhibits at the time
of trial were not included in the record on appeal. The record,
however, does include Alarcon’s second amended declaration filed
on August 8, 2019, in support of her DVRO petition. The
declaration includes a reference to photographs of Alarcon’s
injuries which were taken at the hospital. Those photographs are
consistent with the description of the photographs the trial judge
reviewed.
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Alarcon also contends the trial court denied her the
opportunity to present evidence of abuse by Blackburn that
predated their marriage. This argument is specious, as the
record clearly shows she testified about alleged incidents of abuse
that occurred in December 2016, and November and December
2018.
To the extent that Alarcon challenges the trial court’s
ruling in favor of Blackburn, we note that “[t]he testimony of one
witness, even that of a party, may constitute substantial
evidence” supporting the issuance of a DVRO. (In re Marriage of
Fregoso & Hernandez (2016) 5 Cal. App. 5th 698, 703.)
The evidence showed that Alarcon entered Blackburn’s
home at 3 o’clock in the morning on three occasions without
permission. On the first occasion, she was screaming, she pulled
Vega’s hair, she blocked Blackburn and Vega from leaving the
house and from driving away in their hired car. On the second
and third occasions she entered the home solely to obtain clothes
to sell on an online marketplace. Bianchi reported Alarcon was
screaming during the third incident. In a subsequent text
message, she threatened to continue reentering Blackburn’s
home “in the same way.” This is substantial evidence of “abuse”
within the meaning of Family Code section 6320 by engaging in
“conduct that destroys the mental or emotional calm of the other
party.” (In re Marriage of Nadkarni, supra, 173 Cal.App.4th at
p. 1497.)3
3 Neither Alarcon’s notice of appeal nor her briefing
indicates whether she is appealing both the grant of Blackburn’s
petition as well as the denial of her petition. To the extent she
challenges the denial of her petition on appeal, we affirm the
court’s ruling for the reasons stated above.
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DISPOSITION
The order is affirmed. The parties shall bear their own
costs on appeal.
NOT TO BE PUBLISHED
FEDERMAN, J.*
We concur:
CHANEY, J.
BENDIX, Acting P. J.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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