A.A. v. K.A. CA4/1 ( 2023 )

Filed 5/30/23 A.A. v K.A. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
A.A., a Minor, etc., D079506
Plaintiff and Appellant,
v. (Super. Ct. No. 20FDV01515C)
K.A.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of San Diego County,
Marcella O. McLaughlin, Judge. Affirmed as modified.
N.D., in pro. per., on behalf of A.A. as guardian ad litem, for Plaintiff
and Appellant.
Linda Cianciolo for Defendant and Respondent.
INTRODUCTION
A.A., through her guardian ad litem1 and maternal aunt, N.D. (GAL),
appeals from an order denying her application for a domestic violence
1 Although not asserted by Father in his responding brief on appeal, we
question whether N.D., in her role as guardian ad litem, may proceed in
restraining order (DVRO) against her father, K.A. (Father). She asserts five
claims of error, all which are either not cognizable on appeal or supported by
the record. We therefore conclude A.A. has not met her burden of
establishing any reversible error, and that the trial court did not abuse its
discretion by denying her application for a DVRO. However, the trial court’s
award of attorney fees to Father was unauthorized because GAL is not a
party to the action. We shall affirm the trial court’s order denying the DVRO
but vacate the award of the attorney fees.
FACTUAL AND PROCEDURAL BACKGROUND
I.
The Family Law Case
This appeal⎯the third from this family law case⎯arises from a long,
contentious custody battle between L.R. (Mother)2 and Father in what is now
a seven-year-old dissolution case.3 Mother filed a petition for dissolution on
propria persona on appeal without violating the prohibition against the
unauthorized practice of law. (See J.W. v. Superior Court (1993) 17
Cal.App.4th 958, 962 [“a non[-]attorney who represents another person in
court proceedings violates the prohibition against unauthorized practice of
law”]; Code Civ. Proc., § 374 [“a minor under 12 years of age, accompanied by
a duly appointed and acting guardian ad litem, shall be permitted to appear
in court without counsel for the limited purpose of requesting or opposing a
request for . . . a protective order” (italics added)].) However, considering the
age of this matter and the parties’ respective interests in finality, we exercise
our discretion to reach the merits of the appeal to promote the ends of justice.
2 Mother is not a party to this appeal and is discussed only when
relevant.
3 On our own motion, we take judicial notice of the register of actions in
San Diego Superior Court case number D557861 pursuant to Evidence Code
sections 452, subdivision (d), and 459, subdivision (a).
2
October 26, 2015. As best as we can determine from the record before us,
other than a status-only judgment terminating the marriage entered on
November 1, 2018, there has been no trial or judgment entered on any issues,
including child custody and visitation. Under the current pendente lite
custody order, Father had sole legal and sole physical custody of the couple’s
now 12-year-old daughter, A.A. Mother had supervised visitation.
II.
A.A.’s Application for a DVRO Against Father
A. The Application (DV-140 Form)
On April 20, 2020, in the midst of the parents’ custody dispute, A.A.
filed an application for a DVRO against Father through GAL. A.A. was nine
years old when she sought the DVRO.
GAL filed a supporting declaration that summarized A.A.’s alleged
complaints of abuse while in Father’s care. GAL stated she watched “Zoom
videos” that were recorded of professionally supervised visitations between
Mother and A.A. in March and April 2020 (Zoom videos) “showing [A.A.]
complaining of being abused by [F]ather.” GAL then stated she “accurately
transcribed the relevant portions” of A.A.’s complaints from the videos, as
follows.
On March 29, 2020, A.A. allegedly stated: “ ‘a lot of bad things happen
like before he has grabbed me here and stuff and has thrown me on the bed
and stuff and I get hurt a lot here . . . ’ The video shows her eating a rotten
apple, and her complaining that ‘I just don’t have anything to eat really. And
I know like it’s not really use asking him because he’s just going to say no.’ ”
(Boldface omitted.)
On April 1, 2020, A.A. allegedly stated: “ ‘He hurts me a lot. . . . He
hurts me like when I do something he doesn’t sometimes he’ll grab me by my
3
arms and legs and carry me smashed together in his hands and drop me on
the couch. And then sometimes, . . . he’ll grab my ribs and then it feels like
they’re shrinking and I try to get away from him to stop, stop he never
stops.’ ” (Boldface omitted.)
On April 5, 2020, A.A. allegedly stated: “Father strangles her, causing
her to fall to the floor. Father hurts her and throws her on the bed and couch
when he is upset.” (Boldface omitted.)
On April 12, 2020, A.A. allegedly “point[ed] to bruises all over her legs
and state[d] her Father caused them. Also, that [F]ather ‘grabs me a lot and
it really hurts he’ll just throw me on the bed or couch or sometimes even the
floor whenever he feels like it.’ She also complains about him drinking.”
(Boldface omitted.)
On April 19, 2020, A.A. allegedly stated: “ ‘Like he’ll grab me and . . .
throw me on a bed, the floor, a couch usually on the floor and it’s just really
painful and he’ll grab me by my arms and legs and like my ankles and my
wrists. And he’ll just carry me. And it looks like a Chocolate chip, like my
back’s the bottom and my feet and uh, and my wrists are like, the top of it.
And then, um, he just like drops me. Sometimes he holds me by my ribs too,
and feels like they’re shrinking.’ ” (Boldface omitted.)
In the DVRO application, GAL requested her appointment as A.A.’s
guardian ad litem and a change to the existing custody orders.
B. A Temporary Restraining Order (TRO) Is Denied
On the basis of the allegations in the DVRO application, the trial court
(Hon. Judge Lisa Rodriguez) denied A.A.’s request for a TRO, finding the
alleged facts stated in the application “do not show a reasonable proof of a
past act or acts of abuse.” The court provided a lengthy explanation of its
reasons for the denial:
4
“The court has read and considered the application and
attachments as well as the associated [family law] court file,
D557861. The court notes there is a significant history of
unsubstantiated abuse alleged toward daughter by [F]ather and
multiple attempts by Mother to undermine the relationship
between [F]ather and minor child. Given that there is no
corroborating CWS investigation or law enforcement action and
that all of these allegations have been made with a supervisor
present, the court does not find them credible at this time. This
is a high conflict case with a history of allegations against
[F]ather that have been fully litigated and investigated and
resulted in a DV Restraining Order protecting [F]ather and child
being issued by Judge McLaughlin on [February 27, ]2020. At
this time, based on the above there is not sufficient credible
evidence to grant the TRO.”
The court set an evidentiary hearing on the matter for June 22, 2020.
C. The Evidentiary Hearing
The evidentiary hearing eventually commenced on December 16, 2020,
with Judge Marcella O. McLaughlin presiding, and concluded after five non-
consecutive days on February 3, 2021. During the lengthy hearing, the trial
court heard testimony from six witnesses⎯Father; A.A.4; GAL; another of
A.A.’s maternal aunts, G.R.; a supervised visitation monitor, Leyla Kabban;
and a third-party witness, S.F.⎯and received into evidence numerous
exhibits, including video recordings and a psychological report by a court-
4 The trial court closed the courtroom to the public during A.A.’s
testimony and ordered the transcript placed under seal, finding that the need
to protect A.A.’s privacy overcame the public’s right of access to the record.
The court allowed counsel for A.A., GAL, and Father to be present during
A.A.’s testimony. Although we have reviewed the transcript of A.A.’s
testimony in deciding this appeal, it remains sealed and we do not include a
recitation of her testimony in our factual summary.
5
ordered custody evaluator detailing A.A.’s relationship with Father and her
maternal relatives.5
We summarize the relevant evidence next.6
5 A.A. filed various motions to augment the record, including a motion to
consider police body worn camera videos within Exhibit E dated April 23,
2020. She also moved to include a document apparently written by GAL,
titled “My Plan to Heal this Family and Letters of Recommendation,” that
she did not attempt to lodge with the trial court during the evidentiary
hearing. Finally, A.A. asked this court to take judicial notice of this court’s
unpublished opinion in In re Marriage of L.R. and K.A. (July 27, 2021,
D077533). The court deferred decision as to these requests.
The request to augment the record to include videos related to Exhibit
E is denied because they were not admitted into evidence and considered by
the trial court. (In re Ricky R. (2022) 82 Cal.App.5th 671, 681
[“ ‘Augmentation does not function to supplement the record with materials
not before the trial court.’ ”].) The request to include the document titled “My
Plan to Heal this Family and Letters of Recommendation” is denied because
it was not admitted into evidence, nor is it relevant to the issues presented in
the instant appeal. (Ibid.) A.A.’s request for judicial notice of the court’s
opinion in In re Marriage of L.R and K.A., supra, D077533 is denied because
it is not relevant to the legal questions presented in the instant appeal. (Save
Lafayette Trees v. East Bay Regional Park Dist. (2021) 66 Cal.App.5th 21, 29,
fn. 2 [denying judicial notice of documents that “are not necessary to resolve
th[e] appeal”].)
6 In summarizing the evidence, “[w]e draw all reasonable inferences in
support of the court’s ruling and defer to the court’s express or implied
findings when supported by substantial evidence.” (J.M. v. G.H. (2014) 228
Cal.App.4th 925, 935.) “All conflicts in the evidence are drawn in favor of the
judgment,” and “[w]hen supported by substantial evidence, we must defer to
the trial court’s findings,” including its finding on the credibility of witnesses,
which is within the trial court’s discretion. (Niko v. Foreman (2006) 144
Cal.App.4th 344, 364–365 (Niko).)
6
1. Father’s Testimony
Father testified over the course of several days. He discussed the
background of his relationship with A.A., in which he described “moments of
great, healthy relationship building experiences.” He stated that when A.A.
is not around her maternal family, they share an “excellent, warm,
relationship.” But he also acknowledged that A.A. and Mother shared a
“close emotional bond” that caused A.A. difficulty moving between Mother’s
and Father’s homes.
Father described a particularly difficult time in his relationship with
A.A. during the month following a change in A.A.’s custody schedule with
Mother. During this period, Father and A.A.’s relationship was filled with
“turmoil and grief and rage and d[y]sregulation.” Father described incidents
in which A.A. behaved aggressively and expressed hatred for him. On
multiple occasions, A.A. punched and kicked Father and pulled his hair.
When A.A. hit Father, he held her arms because he did not want her to
hurt herself and did not want A.A. to believe that violence is acceptable
behavior. On more than one occasion, Father had to chase A.A. down the
street and physically pick her up. Father explained that when he had to
physically restrain A.A., he did so gently and with the intent of preventing
A.A. from hurting herself or others.
Father described a particularly emotionally charged exchange in which
police officers were present while he took A.A. from Mother’s custody.7 Law
enforcement was also present during the exchange because Mother took
physical custody of A.A. for 75 days in violation of the court’s custody order.
7 This incident was video-recorded and entered into evidence as Exhibit
15.
7
During the incident, Father physically picked up A.A. and took her to a
vehicle during what he described as an “exceptionally emotional scene.”
Father explained that A.A. typically did not have such strong negative
emotional reactions to him. A.A. generally had such reactions when she
transitioned from Mother’s care back to his care. Father acknowledged that
he used physical force with A.A. during these transitions, but he claimed that
he did so only in order to restrain her when she was being physically
confrontational towards him.8
Father acknowledged that he made a decision to limit A.A.’s physical
visitation with Mother even though he was aware A.A. would be “emotionally
impacted” by this limitation. He explained that his decision was made during
the Covid-19 pandemic because multiple members of A.A.’s maternal family
were diagnosed with cancer and therefore at risk during the pandemic.
Father also limited A.A.’s social interactions during the pandemic out of
concern for A.A.’s paternal grandmother, who lived with them.
2. Leyla Kabban’s Testimony
Kabban, a court-appointed professional visitation monitor, supervised
around 40 to 50 visits between A.A. and Father in 2019. Based on her
observations of Father and A.A.’s interactions, Kabban testified she did not
8 Father, G.R., and S.F., also testified about another altercation.
According to G.R. (A.A.’s other maternal aunt), she ran into Father and A.A.
sitting outside a restaurant. A.A. ran towards G.R., jumped into her arms,
and said, “Help me. Help me.” G.R. described A.A.’s demeanor as “scared
and desperate” and believed A.A. wanted help. G.R. testified that Father
kicked and pushed her while she embraced A.A., which caused G.R. to fall
backwards. Father denied G.R.’s claims and testified that he pulled A.A. out
of G.R.’s grip to avoid what he believed may be a potential “abduction”
attempt. S.F. (Father’s friend) was present and testified that Father never
pushed G.R., but he did scream at her to release A.A.
8
see Father treat A.A. inappropriately. By contrast, Kabban witnessed
Mother “constantly bring up negative information” about Father, and she
observed A.A. “acting out” against Father when she was transitioning from
Father’s care to Mother’s care.
Kabban was aware that A.A. made allegations of abuse by Father, but
she did not believe they were credible. For example, A.A. alleged that her
bathroom at Father’s house was full of spiders and that she had no clothes.
Kabban personally observed A.A.’s bathroom to be clean and that A.A.’s
closet was full of clothes. Kabban did not contact child protective services to
report A.A.’s allegations because she did not believe A.A. was credible and
she knew when A.A. was being “truthful or not truthful.”
3. GAL’s Testimony
GAL’s testimony was given over two days of the evidentiary hearing.
During her testimony, the Zoom videos between A.A. and Mother were
entered into evidence and played before the trial court. GAL believed A.A.’s
demeanor showed she was “hopeless,” “sad,” and “depleted.” In the videos,
A.A. described instances in which Father grabbed her by the arms, legs, and
ribs in a way that made her feel like her ribs were “shrinking.” She
complained of stomachaches while at Father’s house and described instances
in which Father hurt her by throwing her on the bed and the couch and
suffocated her.
Based on her description of the way in which Father grabbed her wrists
and feet, GAL testified she believed he may have “hogtied” A.A. GAL
expressed concern at the force used by Father and believed that he was
unable to control his anger without using force. However, GAL acknowledged
that she has never personally seen Father physically attack or abuse A.A.,
aside from an exchange in the presence of law enforcement in which Father
9
picked up A.A. in a manner she considered abusive. GAL confirmed that she
did not believe Father would intentionally hurt A.A.
GAL further opined that A.A. was in need of protection from the court
because of Father’s emotional abuse. She believed that Father emotionally
abused A.A. by yelling at her and refusing to allow her to express emotions
about Mother. She asserted that Father disturbed A.A.’s peace because he
refused to leave A.A. alone when she expressed that she wanted to be left
alone, and because he disparaged Mother knowing that she is an important
person in A.A.’s life. GAL testified that Father stopped all visitation between
A.A. and Mother during the pandemic, despite the “emotional distress” this
caused A.A.
D. The Trial Court’s Ruling
At the conclusion of the evidence, the trial court denied A.A.’s DVRO
application from the bench. The court later issued a 19-page statement of
decision and judgment, on July 14, 2021. We summarize the court’s findings
from its final, written statement of decision.
The court found that although the DVRO application was sought on the
basis of allegations “characterized as physical abuse of the child by Father,”
at the hearing “the allegations of abuse were broadened and characterized to
include disturbing the peace and emotional abuse.” The new allegations were
based on GAL’s theory that Father “exhibits coercive control over the child
and does not afford her even the basic liberty of peace, at best, and at worst is
regularly physically abusive towards the child when he tries to control her.”
The court then stated these allegations, if believed, would establish behavior
that could be enjoined under Family Code section 6320.9
9 All further unspecified statutory references are to the Family Code.
10
The court found that from the “considerable amount of evidence”
presented over the five days: “[O]ne thing that is uncontroverted by all in
this case is that [A.A.] . . . is the unfortunate victim of her circumstances. It
is certainly apparent the toll the extreme conflict that has been created in the
Family Law case and the deep animus that exists between her parents and
the families has had a profound effect on [A.A.’s] life[.]” The court noted the
“highlight” and “the most heartbreaking aspect” of the hearing was meeting
A.A., whom the court described as “lovely and intelligent” but “obvious[ly]
suffering.” The court then stated it “cannot simply decide this case in a
vacuum,” and instead it was compelled to consider the circumstances of the
family law case when it determines whether A.A., through her GAL, had met
her burden of proof.
Although the court found A.A.’s testimony to be “heartfelt,” in
evaluating whether her testimony is “credible,” the court stated that it
needed to consider the issues of “alienation and triggering and a
reinforcement of [A.A.’s] negative disposition towards Father that has
occurred for years. There has been a history of disruptive events and trauma
at which the child has been the central focus.” In this regard, the court
considered the March 31, 2019 court-ordered psychological evaluation report
for child custody written by Dr. Steven N. Sparta for the family law case.10
10 A.A. argues the trial court erred by admitting the psychological
evaluation report because it was hearsay, and alternatively argues that the
report was never entered into evidence. She takes issue with the contents of
the report and argues the author of the report “should have been cross-
examined.” (Boldface omitted.) We reject this claim of asserted error because
it is not supported by the record. The record reflects it was A.A.’s counsel
who offered the report into evidence and that the parties stipulated to the
admissibility of the report, and it was admitted.
11
The court, in evaluating A.A.’s credibility, drew from Dr. Sparta’s
descriptions of various events he observed that demonstrated “the child’s
discussions [about Father] illustrated contradictions and/or exaggerations in
her critical statements” about Father. As examples: A.A. reported that
Father took away all of her toys, but a visit to Father’s home showed an
“abundance” of toys and books. A.A. reported that Father “never at any time
had taken her to the zoo.” When Father showed Dr. Sparta and A.A.
photographs he had of their trips to the zoo just the month before, A.A.
denied that she was the child in the photographs. A.A. had reported that
Father “had allegedly given her a time-out for a 10 hour period.”
The court also considered Dr. Sparta’s belief that A.A. may have been
“coached about what to say” in a number of instances. As examples: He
observed that A.A. was “exposed to conflict between the parents and aligned
[herself] with the mother. The child was overly concerned about her
statements [to him] becoming known to the mother.” A.A.’s pediatrician
refused to certify Mother’s request to have A.A. see a different therapist
because his “impression was that the child ha[d] been coached about what to
say.” During an incident at the child’s school, school staff reported A.A. did
not want to go with Father. A.A. was observed “ ‘to be assaultive to the
father, going for his eyes, kicking him’ ” and “ ‘[t]he child would slip notes,
stating that the father was a liar and was hurting her.’ ” It was also observed
that Mother was saying “ ‘horrible things [about Father] right in front of the
child.’ ” In another incident at school, Mother stated “ ‘in front of the child
“he’s dragging it out, it’s all for money, the child is suffering.” ’ ”
The court also considered Dr. Sparta’s opinion that A.A.’s negative
“beliefs towards her Father, at least partly based on inaccurate, negative
information were communicated in an emotionally coercive context, and the
12
child’s allegations of physical force used by Father are inconsistent and
contradictory.” Dr. Sparta observed A.A. act in “a provocative, inappropriate
manner towards the Father,” and noted that he did not “become angry or
retaliatory” in these moments. By contrast, Mother’s “ ‘critical remarks
about [Father] in the presence of [A.A.]’ ” caused A.A. distress. The court also
noted that during Father’s testimony at the evidentiary hearing, presented
remotely over video, A.A. walked into Father’s office into the camera frame
several times and appeared “very playful” and “extremely comfortable” with
Father.
Finally, the court considered Dr. Sparta’s report that A.A. had once
reported a bruise on her head, as she explained, “ ‘ “so I can live with my
mom.” ’ ” The court found this as corroboration that “at least some of the
child’s negative accounts about her Father [were] motivated by her objective
to live exclusively with her Mother.”
In considering Dr. Sparta’s report, the trial court acknowledged the
report was from 2019 and the allegations before it “are more recent.”
However, the court stated it could not “ignore the powerful psychological
impact that the last couple of years have had on [A.A.] as it relates to these
[current] allegations of physical abuse.” Moreover, the court found A.A.’s
testimony and its own observations about A.A. to be consistent with Dr.
Sparta’s report. The court found A.A.’s answers to be “absolute and very
extreme,” such as stating “there was nothing that she could think about that
she enjoyed doing with her father” and that she did not believe her father
loved her. The court also considered the fact that Mother had “abduct[ed]”
A.A. from Father’s care for “over 70 days” in violation of a lawful court order
and factored in Mother’s exclusive control of A.A. during that period in
evaluating A.A.’s credibility.
13
In evaluating the credibility of A.A.’s allegations of physical abuse by
Father, the court found Exhibit 15, the video recording of the November 2020
custody exchange, to be “very important.” The court explained that
subsequent to the issuance of an arrest warrant for Mother (presumably
related to the allegations of child abduction), “the District Attorney’s Office
assisted in recovering [A.A.]” and returned her to Father’s care. The court
saw in the video that A.A. was “incredibly emotionally upset” as Father tried
to coax her into coming with him. Although “Father did pick [A.A.] up and
. . . sling her over his shoulder,” he tried to speak with her (even bending
down to her level) before “physically removing her.” During this time,
“Mother’s family . . . were screaming and yelling at them, including
obscenities, and members of the public [who witnessed the scene] . . . were
clearly upset.”
Based on the totality of the evidence described by the trial court, it
found the degree of any physical force Father has used to restrain A.A.,
including to prevent her from hurting herself when she is “very aggressive,”
failed to demonstrate that he “intentionally or recklessly caused or attempted
to cause her bodily injury” within the meaning of section 6320.
Finally, the trial court found A.A. failed to establish through credible
evidence that Father’s conduct disturbed her peace through coercive control,
including emotional abuse and “isolation from family and others.” In
reaching its finding, the court considered that there have been “numerous”
child protective services referrals “that are unfounded on Father”; and Dr.
Sparta’s report that “Father, rather than Mother, has never reacted in any
way that is inappropriate” in his presence. In its oral statement of decision
from the bench, the court also found the conflict between Father and A.A.’s
14
maternal family provided context as to why Father would want to restrict
A.A.’s contact with Mother’s family.
In sum, the trial court found A.A., through her GAL, failed to meet her
burden of proof to show there was any abuse under the Domestic Violence
Prevention Act (DVPA; § 6200 et seq.) and denied the request for a DVRO
against Father. The court granted Father’s request for an award of attorney
fees under former section 6344 and ordered the GAL to pay an amount of
$5,000 at the rate of $150 each month until paid in full. A.A., through her
GAL, timely appealed the order denying the DVRO and GAL also appeals the
order awarding Father attorney fees.
DISCUSSION
I.
Noncognizable Issues
A.A., through her GAL, raises several issues that are not cognizable on
appeal, and she fails to follow the rules of appellate procedure by not
adequately citing to the trial court record. Although GAL is proceeding in
propria persona on behalf of A.A., and we appreciate the inherent challenges
in doing so, this does not exempt her from the rules of appellate procedure.
(See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.) We afford litigants
proceeding in propria persona “ ‘the same, but no greater consideration than
other litigants and attorneys.’ ” (Ibid.) “Appellate briefs must provide
argument and legal authority for the positions taken. ‘When an appellant
fails to raise a point, or asserts it but fails to support it with reasoned
argument and citations to authority, we treat the point as waived.’ ” (Nelson
v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.) With this
standard in mind, we conclude A.A. has not presented sufficient grounds for
reversal on the following issues raised in her appeal.
15
First, A.A. asserts the trial court erred in its April 20, 2020 order
denying her request for a TRO. Although A.A.’s notice of appeal indicates
that she only appeals from the July 14, 2021 order denying her DVRO
application (see Cal. Rules of Court, rule 8.100(a)(2) [A notice of appeal “is
sufficient if it identifies the particular judgment or order being appealed.”]),
any appeal from the denial of the TRO would become moot when the trial
court conducted a hearing on the merits of the request for a permanent
restraining order (see In re L.W. (2020) 44 Cal.App.5th 44, 47, fn. 2 [“The
appeal from the temporary restraining orders is technically moot because
those orders terminated when the three-year restraining order was issued.”]).
Second, A.A. asserts the trial court erred by denying Mother’s motion to
join in A.A.’s DVRO application on August 31, 2021. However, A.A. lacks
standing to appeal the denial of Mother’s motion because she is not
“aggrieved” by the order, as her rights in the underlying DVRO matter were
not affected by the denial of joinder. (Code Civ. Proc., § 902 [“Any party
aggrieved may appeal” in civil matters.”]; County of Alameda v. Carleson
(1971) 5 Cal.3d 730, 737 [A party is considered aggrieved by an adverse
judgment or order when their “rights or interests are injuriously affected by
the judgment.”].) Rather, the party with standing to appeal the denial of a
motion for joinder is the party who was denied the right to intervene. (See
County of Alameda, at p. 736 [“[O]ne who is denied the right to intervene in
an action ordinarily may not appeal from a judgment subsequently entered in
the case. [Citations.] Instead, he may appeal from the order denying
intervention.”].)
Further, here, Mother pursued her appellate remedies as the party who
was denied joinder. The record reflects that after the joinder was denied,
Mother filed a petition for writ of mandamus asking this court to order the
16
trial court to vacate its order denying the motion for joinder and enter an
order granting the motion. (Rhodes v. Superior Court of San Diego County
(Sept. 25, 2020, D077967) [nonpub. opn.].) This court denied the petition on
September 25, 2020. (Ibid.) Accordingly, although A.A. does not have
standing to appeal the order, this issue has already been decided in a prior
proceeding, and collateral estoppel precludes the issue from being relitigated.
(Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th
921, 943 [“ ‘Collateral estoppel precludes relitigation of issues argued and
decided in prior proceedings.’ ”].) We therefore dismiss this claim.
Lastly, A.A. asserts the trial court erred by limiting her counsel’s
discussion of unspecified emails authored by Father. She states that the
emails included “several . . . examples of the violence and physical
altercations in Respondent’s home spanning from 2017, 2018 and 2019.”
However, it is unclear what part of the record she refers to, and she presents
no legal argument to support her contention. Rather, she presents a personal
narrative that is entirely outside the record. This assertion is also not
properly supported by legal authority. For these reasons, we do not consider
the merits of this claim. (See WFG National Title Ins. Co. v. Wells Fargo
Bank, N.A. (2020) 51 Cal.App.5th 881, 894 [“In order to demonstrate error,
an appellant must supply the reviewing court with some cogent argument
supported by legal analysis and citation to the record. Rather than scour the
record unguided, we may decide that the appellant has forfeited a point urged
on appeal when it is not supported by accurate citations to the record.”].)
17
II.
The Trial Court Did Not Abuse Its Discretion
in Denying the DVRO Application
While A.A.’s briefing on appeal presents arguments that are difficult to
understand, we discern the intent of her contentions on appeal to be that the
trial court misapplied the applicable legal standards, that its findings were
not supported by substantial evidence, and that the court abused its
discretion in denying her application for a DVRO. As we shall explain, we
disagree with these contentions and conclude A.A. has not met her burden of
affirmatively establishing reversible error.
We review a trial court’s factual findings under the DVPA for
substantial evidence, (J.J. v. M.F. (2014) 223 Cal.App.4th 968, 975) and we
review a trial court’s denial of a domestic violence restraining order for abuse
of discretion (In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220,
226). With these standards in mind, we emphasize that we must defer to the
trial court’s credibility findings when supported by substantial evidence, and
we do not reweigh credibility findings on appeal. (Niko, supra, 144
Cal.App.4th at pp. 364–365; Sabbah v. Sabbah (2007) 151 Cal.App.4th 818,
823 [“ ‘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.’ ”].)
A.A. argues there was sufficient evidence of physical abuse and coercive
control by Father to justify the issuance of a restraining order, focusing
largely on isolated excerpts from the record. Indeed, during the evidentiary
hearing, A.A. presented evidence of alleged acts of physical force by Father
through her testimony and video recordings of prior statements. She alleged
that Father grabbed her hands and wrists, squeezed her ribs in a painful
18
manner, and threw her down. In reviewing this evidence, we agree with the
trial court’s statement that these allegations, if believed, would constitute
behavior that may be enjoined under section 6320. But after meticulously
weighing the totality of the evidence, the trial court made extensive
credibility findings that undermined A.A.’s claims, and we will not disturb
these findings on appeal.
Father expressly denied using force with A.A. except in instances in
which he needed to restrain A.A. for her own safety. Father testified that on
multiple occasions, A.A. physically attacked Father and attempted to run
away, and in these circumstances he used gentle physical force to prevent
A.A. from hurting herself. Dr. Sparta’s report, which was considered by the
trial court in assessing the credibility of the parties, corroborated Father’s
testimony. Dr. Sparta noted instances in which Father refrained from
becoming angry or retaliatory when A.A. acted aggressively and provocatively
towards him. The court also viewed video evidence of Father physically
restraining A.A. during a custody exchange, and expressly found that the
force he used did not qualify as abuse under section 6320.
By contrast, the trial court found credible Dr. Sparta’s findings that
A.A.’s claims of physical force by Father were “inconsistent and
contradictory.” The report discussed multiple instances in which A.A. made
allegations against Father that were demonstrably false (including her claim
that Father took away all of her toys, when a visit to Father’s home showed
an abundance of toys), and numerous child protective services referrals
regarding Father that were determined to be unfounded. The court also
considered the testimony of the court-appointed professional visitation
monitor, Kabban, who supervised over 40 visits between A.A. and Father and
did not observe Father to act inappropriately.
19
Thus, the trial court impliedly found Father’s testimony to be credible
in concluding A.A. failed to meet her burden of establishing evidence of abuse
under the DVPA. (See Chase v. Wizmann (2021) 71 Cal.App.5th 244, 257
[“absent an express credibility finding, we must infer the trial court resolved
questions of credibility in a manner that supports its findings and order”].)
And we conclude the trial court’s credibility finding is supported by
substantial evidence. The record evidence before the trial court established
that A.A. was exposed to extreme conflict between the parents, and her
negative beliefs towards Father were “at least partly based on inaccurate,
negative information [that] were communicated in an emotionally coercive
context.” And in its own observations of A.A., the trial court found her
descriptions of Father to be “absolute and very extreme,” and thus impliedly
not credible.
Similarly, the trial court’s finding that A.A. failed to establish her
allegations of coercive control by Father is also supported by substantial
evidence. Abuse, as defined in the DVPA, includes conduct that “ ‘disturb[s]
the peace of the other party’ ” in a way that “destroys the mental or emotional
calm of the other party.” (§ 6320, subd. (c); see also In re Marriage of
Nadkarni (2009) 173 Cal.App.4th 1483, 1497 [“ ‘[D]isturbing the peace of the
other party’ ” refers to conduct that, based on the totality of the
circumstances, “destroys the mental or emotional calm of the other party.”].)
Disturbing the peace of the other party includes, but is not limited to,
“coercive control.” (§ 6320, subd. (c).) Relevant here, coercive control may
include behavior such as isolating the other party from relatives and
monitoring the other party’s movements, communications, and daily
behavior. (§ 6320, subd. (c).)
20
In her briefing, A.A. suggests the trial court did not consider A.A.’s
isolation from her maternal relatives as a form of coercive control in
rendering its decision, and therefore she argues the court did not correctly
apply the applicable law. However, the record demonstrates that the court
considered and rejected A.A.’s argument that Father isolated her in a manner
constituting coercive control under section 6320. In rejecting this argument,
the court discussed the applicable law and expressly found that the evidence
did not establish A.A.’s legal “theory of isolation and coercive control.”
In so finding, the trial court acknowledged the complexity of the
family’s circumstances and the importance of the maternal relatives in A.A.’s
life. However, the court found that the history of the parents’ conflict and the
maternal relatives’ recent conduct “certainly would support why [Father]
would not be warm to having [A.A.] have a lot of contact with [the maternal
relatives.]” Father provided further context, testifying that he limited A.A.’s
visitation with her maternal relatives due to health concerns on both sides of
the family during the Covid-19 pandemic. Accordingly, drawing all
reasonable inferences in favor of the trial court’s findings, as we must, we
conclude substantial evidence supported the court’s finding that A.A. failed to
establish coercive control under section 6320.
In sum, with substantial evidence supporting its factual findings, we
conclude the trial court did not abuse its discretion in denying A.A.’s
application for a DVRO. (See Herriott v. Herriott (2019) 33 Cal.App.5th 212,
223 [we will not reverse the trial court’s decision unless the court
“ ‘ “ ‘exceeded the bounds of reason’ or it can ‘fairly be said’ that no judge
would reasonably make the same order under the same circumstances” ’ ”].)
21
III.
Asserted Judicial Bias
A.A. does not set forth a separate contention that the judgment must be
reversed because of purported bias by the trial court, but intermingles
tangential claims of alleged judicial bias throughout her brief. For example,
she states in conclusory manner, “[w]ithout the errors, bias, and prejudice
demonstrated by the [trial] [c]ourt, I truly believe [A.A.] would already by
enjoying her childhood in peace.” She alleges, without any corresponding
citation to the record, “[d]ue to bias and favoritism, [Father] was going to win
against [A.A.] in this DVRO trial no matter how numerous and voluminous
the amount of the evidence, or how wonderful, articulate, and credible [A.A.]
was in her sealed testimony.”
We conclude A.A. has forfeited any claim of judicial bias by failing to
file a motion to disqualify the trial judge pursuant to Code of Civil Procedure
section 170.3, or otherwise timely raising or objecting to the purported bias in
the proceedings below. (See Moulton Niguel Water Dist. v. Colombo (2003)
111 Cal.App.4th 1210, 1218 [appellants failed to “preserve their claim of
judicial bias for review because they did not object to the alleged
improprieties and never asked the judge to correct remarks made or recuse
himself”].) A.A. was required to object “at the earliest practicable
opportunity” and set forth the grounds for the disqualification of the judge,
and she failed to do so. (Code Civ. Proc., § 170.3, subd. (c)(1).) Accordingly,
she has failed to preserve this claim for appeal. (Moulton, at p. 1218.)
Even if not forfeited, we find no merit to the claim. Although A.A.
contends the trial court erred in several of its rulings, “[t]he mere fact that
the trial court issued rulings adverse to [A.A.] on several matters in this case,
even assuming one or more of those rulings were erroneous, does not indicate
22
an appearance of bias, much less demonstrate actual bias.” (Brown v.
American Bicycle Group, LLC (2014) 224 Cal.App.4th 665, 674; see also,
Blakemore v. Superior Court (2005) 129 Cal.App.4th 36, 59–60 [mere
erroneous rulings do not show appearance of bias].) Likewise, “[m]ere
expressions of opinion by a trial judge based on actual observation of the
witnesses and evidence in the courtroom do not demonstrate a bias.” (People
v. Guerra (2006) 37 Cal.4th 1067, 1111, overruled on another ground in
People v. Rundle (2008) 43 Cal.4th 76, 151.) A.A., as the party bearing the
burden of proving prejudicial judicial bias, has failed to affirmatively
demonstrate evidence of bias by the trial court. (Guerra, at p. 1112.) To the
contrary, the record demonstrates A.A. received a fair evidentiary hearing
before an unbiased court.
IV.
The Award of Attorney Fees Against the GAL Is Not Authorized Under Section
6344 Because GAL Is Not a “Party”
Although GAL does not set forth a separate argument challenging the
trial court’s award of attorney fees, or legal authority to support her claim,
she states, “we appeal the award of $5,000 in attorney fees against GAL to
[Father].” We review the determination of the legal basis for an award of
attorney fees de novo (Leamon v. Krajkiewcz (2003) 107 Cal.App.4th 424,
431), and “[w]e apply an abuse of discretion standard in reviewing the
amount of an attorney fee award” (Loeffler v. Medina (2009) 174 Cal.App.4th
1495, 1509). Under the de novo standard, we conclude the award of attorney
fees against GAL, (maternal aunt N.D.) who was not a party to the action,
was not legally authorized.
23
Pursuant to former section 6344,11 a trial court may award attorney
fees to the prevailing party in a DVRO proceeding. (Former § 6344, subd.(a)
[“[a]fter notice and a hearing, the court may issue an order for the payment of
attorney’s fees and costs of the prevailing party”].) However, “[a] guardian ad
litem is not a party to the action, but merely a party’s representative.” (In re
Christina B. (1993) 19 Cal.App.4th 1441, 1453.) Because a guardian ad litem
is not a party, “ ‘a judgment may not be rendered for or against a guardian ad
litem, but only for or against the party he [or she] represents.” (First Security
Bank of California, N.A. v. Paquet (2002) 98 Cal.App.4th 468, 475, italics
omitted.)
Here, following the presentation of evidence at the evidentiary hearing,
Father asked the court to order GAL “to pay the entirety of his [attorney]
fees, $30,710.50, as the prevailing party.” The court considered GAL’s and
Father’s respective incomes and ability to pay, and ordered GAL to pay
$5,000 in attorney fees to Father under former section 6344. In its statement
of decision and judgment, the trial ordered “attorney fees on behalf of the
prevailing party, [Father,] in the amount of $5,000 against [GAL] directly to
[Father’s] counsel . . . payable at the rate of $150 per month until paid in
full.” This was error.
11 Section 6344 was amended, effective January 1, 2023, to require the
court to issue an order for the payment of attorney fees to a prevailing
petitioner, and authorize the court to issue an order for the payment of
attorney fees to a prevailing respondent if the respondent establishes by a
preponderance of the evidence that the petition was frivolous or solely
intended to abuse, intimidate, or cause unnecessary delay. (See Assem. Bill
No. 2369 (2021–22 Reg. Sess.); Stats. 2022, ch. 591.) The recent amendments
to section 6344 do not affect our analysis as the petitioner was not the
prevailing party and the award of attorney fees to respondent was not legally
authorized as a matter of law.
24
The trial court was not permitted to enter a judgment of attorney fees
against GAL because she was not a party to the restraining order proceeding.
(See Moore v. Kaufman (2010) 189 Cal.App.4th 604, 616 [holding that a court
may not award a judgment of attorney fees against a nonparty attorney].)
The trial court’s order purports to enter a judgment for attorney fees against
GAL, who is acting as a representative of A.A.’s interests as her guardian ad
litem and not a party to the action. The judgment for attorney fees against
GAL was therefore unauthorized and we conclude the judgment is void.
(Selma Auto Mall II v. Appellate Department 44 Cal.App.4th 1672, 1684 [“an
award of costs not authorized by law is a ‘ “grant of relief to one of the parties
which the law declares shall not be granted” ’ and is therefore void.”].)
Accordingly, we vacate the order awarding attorney fees against GAL.
DISPOSITION
The order denying A.A.’s application for a DVRO is affirmed. The
judgment awarding attorney fees against N.D. as GAL is vacated. In the
interests of justice, no costs are awarded on appeal. (Cal. Rules of Court, rule
8.278(a)(5).)
DO, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
25