Filed 10/9/19 Broussard v. Abrams CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
JIA BROUSSARD,
Plaintiff and Respondent,
v.
GEORGE LAWRENCE ABRAMS, JR.,
Defendant and Appellant.
A156158
(Alameda County
Super. Ct. No. HF18921871)
On September 24, 2018, respondent Jia Broussard filed a request for a domestic violence restraining order in the Alameda County Superior Court seeking personal conduct and stay away orders against appellant, George Lawrence Abrams, Jr. On November 6, 2018, after a hearing, the court issued the orders. A timely notice of appeal was filed on January 3, 2019.
FACTS AND PROCEEDINGS BELOW
Respondent’s request for restraining orders, which sought protection not only for herself but also her father, Edmound Broussard, and her friend, Desmond Walker, described appellant as an “ex-partner.” The request alleged that appellant had spray-painted her and her father’s cars, and the front of their house and adjacent sidewalk with messages stating “Jia has herpes,” “Jiaslut.com,” “cheater,” “bitch,” “find your man,” and that he had also vandalized Desmond Walker’s car by slashing all four tires, breaking a window, and “throwing sewage in his front seat.” The request also stated that appellant “has a history of stalking me.”
Respondent appeared in propria persona at the scheduled hearing on October 15, 2018, but appellant did not appear and the hearing was continued to November 6, at which respondent again represented herself. Appellant was represented by counsel, who failed to serve respondent with appellant’s answer to her petition. The court continued the case to provide respondent time to review the document.
Appellant’s defense focused almost entirely on respondent’s assertion that the spray-painting of her car and her father’s car took place between 5:00 p.m. Saturday, September 22, 2018, and 11:00 a.m. the following day. To refute this allegation, appellant provided a receipt from a hotel in Napa assertedly showing he had checked out of the hotel at 11:00 a.m. on Sunday, September 23, at the end of the period during which respondent claimed the spray-painting took place.
Respondent answered that the receipt did not establish appellant checked out of the hotel at 11:00 a.m. but only that 11:00 a.m. was the checkout time, and he could have left Napa earlier Sunday and arrived back in Berkeley well before 11:00 a.m. Respondent also pointed out that the spray-painting was far from the only evidence of appellant’s abusive conduct: “I have flowers that he sent, and the date and time stamp of that picture [of the flowers]. I have text messages that also demonstrate his behavior and the proof that I have told him repeatedly to end contact with me and that we are not in a relationship.” Respondent also noted that the vandalizing of her male friend’s car took place a week after the spray-painting of the two cars, and she produced photographs of the damage to all three cars. Respondent emphasized that most of the hostile texts and other conduct she complained of took place between April and July 2018, before the spray-painting on September 22 or 23, which was “an escalation of things that had happened from April to July.”
The trial court found respondent sustained her burden of proof by a preponderance of the evidence and issued a one-year restraining order to November 6, 2019. Among other explanations, the court stated that it did not find appellant credible. “When [appellant] described the relationship [as ending] amicably, that they went their separate directions and he sent flowers because of how great the relationship was, that is completely inconsistent with the text messages that have been provided to the court. What is clear from the text messages before the court is that [respondent] consistently, in almost every message, told you, ‘[s]top contacting me. Stop contacting my dad . . . because he makes you feel good. I don’t care if my sister is your sissy and she’s like a sister you never had. Stop contacting my family.’ [¶] And you persisted. You wanted to continue talking about where the relationship went wrong. You wanted to continue talking about what a great partner you were and how you are as fit as people half your age. You were not getting the message.” Indeed, the court declared, some of appellant’s texts “actually express anger about the fact that [respondent] did not want to speak with you.”
The court allowed that appellant may have been in Napa on Sunday, September 23, but “[i]t is not inconceivable that you, nonetheless, made the trip [to Berkeley within respondent’s timeline].”
DISCUSSION
The two arguments advanced in appellant’s six-page opening brief, which in violation of rule 8.204(b)(7) of the California Rules of Court, is unpaginated, are set forth in two brief paragraphs.
The first argument is that “there is absolutely no evidence” that appellant spray-painted respondent’s car. “There was no witness, no video, nothing. There was, however, evidence that [appellant] was some 50+ miles away for the weekend. The trial court mentioned this fact, . . . however, the trial court shifts the burden from [respondent] to establish her case to [appellant]. Not only does [appellant] have to show that he was out of town for the weekend (which he did) he had to demonstrate that he was actually physically present out of town during specified hours, the assumption being that he came back to Berkeley to vandalize her car and then go back to Napa to check out of his hotel[;] this is not reasonable.” According to appellant, respondent was required by the court merely “to speculate” that appellant was the perpetrator.
This argument is frivolous. First of all, as we have explained, respondent’s case hardly relied solely on the allegation that appellant spray-painted her car, as appellant erroneously assumes. She also alleged numerous other acts over a period of three months that appellant totally ignores. Additionally, appellant clearly did not satisfactorily establish that he was in Napa when respondent’s car was spray-painted. Finally, the court’s reasoning, and particularly its credibility determination, make clear it would grant the petition even if not fully convinced appellant spray-painted respondent’s car.
Putting aside the fact that appellant ignores most of the evidence respondent presented and the court relied upon, his primary argument wholly ignores the principle that all evidence must be viewed most favorably to respondent and in support of the judgment. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925–926.) Appellant’s “ ‘ “attempt to reargue on appeal those factual issues decided adversely to it at the trial level, contrary to established precepts of appellate review . . . is doomed to fail.” ’ ” (Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1166, quoting Hasson v. Ford Motor Co. (1982) 388, 398–399.)
The only other argument in appellant’s opening brief—which was the only brief he filed because respondent did not submit a reply—is that appellant’s text messages to respondent stopped in June 2018. So that “[f]rom June 2018 to September 23, 2018 (the date of the vandalism) [appellant] and [respondent] ran into each other on July 1, 2018 by chance where there are numerous restaurants [sic] without incident and without texting and without a restraining order being filed.” Appellant’s point is that “[w]hat we have here is [appellant’s] attempt to boots strap [sic] the more serious vandalism claim into other normal incautious breakup communication [sic] in order to obtain a domestic violence restraining order.”
Appellant’s attempt to normalize his numerous angry and threatening text messages to respondent as merely “incautious breakup communication” is also reargument of facts unsuccessfully relied upon in the trial court. The texts appear to have carried more weight with the court than the spray-painting of respondent’s and her father’s cars. By establishing appellant’s anger and repeated rejection of respondent’s constant pleas that he stop contacting her and others in her family, the texts powerfully contradicted appellant’s foundational claim: that the breakup of the parties was “amicable.” Because they devastated appellant’s credibility, the text messages (and appellant’s inability to suggest who else might have vandalized respondent’s car and those of her father and male friend) also undermined appellant’s denial that he was the spray-painter and vandal. Appellant’s request that we retry this case cannot succeed.
As we believe this opinion demonstrates, appellant’s assertion that the trial court failed to make an adequate record cannot be taken seriously.
Appellant’s opening and only brief closes with the observation that the trial court has a great deal of discretion to grant or deny a protective order under the Domestic Violence Prevention Act (DVPA), “however, judicial discretion to grant or deny an application for a protective order is not unfettered.” In support of the conventional proposition that judicial discretion “is not unfettered,” appellant cites In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1424, which is the only judicial citation contained in appellant’s entire brief. The statement that “judicial discretion to grant or deny an application for a protective order is not unfettered” does not, however, appear either at the page of Evilsizor appellant cites or anywhere else in that opinion. But the page counsel cites does vigorously reaffirm principles applicable to this appeal to which appellant appears oblivious: that in considering whether substantial evidence, contradicted or uncontradicted, supports an order under the DVPA, “ ‘ “ ‘[w]e must accept as true all the evidence . . . tending to establish the correctness of the trial court’s findings . . . , resolving every conflict in favor of the judgment.’ ” [Citation.]’ ” (Evilsizor, at p. 1424, italics added, citing Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1143.)
The contradicted and uncontradicted evidence supporting the challenged order is overwhelming.
As indicated, this appeal appears frivolous; we decline to consider sanctions only because respondent has not asked us to do so.
DISPOSITION
For the foregoing reasons, the trial court’s order is affirmed.
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Kline, P.J.
We concur:
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Stewart, J.
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Miller, J.
Broussard v. Abrams (A156158)