Croteau v. Croteau CA4/1

Filed 5/21/15 Croteau v. Croteau 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

JESSIE G. CROTEAU, D065942

Plaintiff and Respondent,

v. (Super. Ct. No. DV038367)

HANS S. CROTEAU,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Cindy Davis,

Judge. Affirmed.

Hans S. Croteau, in pro. per., for Defendant and Appellant.

Patrick M. Howe for Plaintiff and Respondent.

Jessie Croteau (Jessie) petitioned for a "stay away" and "no contact" restraining

order, pursuant to the provisions of the Domestic Violence Prevention Act (Fam. Code,

§ 6200 et seq. (DVPA)),1 against his brother, Hans Croteau (Hans). Jessie's petition

alleged Hans had a long-standing animosity toward Jessie arising from litigation between

1 All further statutory references are to the Family Code unless otherwise specified.
them that had culminated in a December 2013 incident (after Hans suffered another and

significant setback in litigation) when Hans came to Jessie's home at night and vandalized

Jessie's home and car. The court found in favor of Jessie, and issued the requested order.

Hans challenges the order, asserting (1) there was no evidence to support the

order, (2) the provisions of the DVPA are unconstitutional for vagueness and

overbreadth, and (3) the court erroneously admitted certain evidence.

I

FACTUAL AND PROCEDURAL BACKGROUND

A. Plaintiff's Evidence

On December 17, 2013, between 9:00 and 9:30 p.m., Jessie was in the living room

of his home, waiting for his 12-year-old daughter to put on her shoes to go out Christmas

shopping. Jessie's dog began barking, and he looked outside through a bay window and

saw Hans on the steps of the front porch. Jessie saw that Hans was carrying what

appeared to be a white, five-gallon bucket. Hans turned and saw Jessie looking at him,

and reacted by crouching and going back down the steps and "jetting" away. Jessie did

not immediately react or go to the door because he was shocked to see Hans on his porch

at that time of night.

A few minutes later, Jessie opened the front door to leave with his daughter.

Jessie first looked to see if Hans had left any legal papers on the porch, as he had on prior

occasions, but saw no papers. Jessie started to walk down the steps but immediately

slipped and fell flat on his back. He tried to warn his daughter not to follow, but she also

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partially slipped and hit her knee. Jessie then observed there was an oily substance on his

steps, the driveway, and the family car. Jessie spent hours that night trying to clean up

the oily substance. Jessie took pictures of the damage, reported the vandalism to the

police, and also reported it to his homeowner's insurance company.

Jessie did not see Hans pouring the oily substance on his property. However, the

substance had to have been deposited after 8:30 p.m., because his wife had been driving

the family car that night and did not arrive home until 8:30 p.m. Jessie also asked his

neighbors if anyone else had experienced any vandalism that night and learned his home

was the only one vandalized that evening.

B. Defense Evidence

Hans called two witnesses—his mother and a close friend—who both claimed

Hans had been with them the entire evening of December 17. Hans also testified and

claimed he had not been to Jessie's house since 2007, and was with his mother and his

friend that night.

C. The Ruling

After hearing the evidence, the court ruled Jessie had demonstrated, by the

requisite preponderance of the evidence, that Hans had engaged in abusive behavior

toward him, within the meaning of former Family Code section 6203, subdivision (d)

(now § 6203, subd. (a)(4)), because the court credited Jessie's testimony that Hans was

responsible for the vandalism to Jessie's property on December 17, 2013, and disbelieved

the alibi evidence proffered by Hans. The court ruled the vandalism constituted both

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damage to personal property and disturbing the peace of another party, within the

meaning of section 6320, subdivision (a), and justified issuance of the requested

restraining order. Hans timely appealed the order.

II

ANALYSIS

A. The DVPA and Standard of Review

The DVPA defines domestic violence as "abuse" perpetrated against enumerated

individuals, including "[a]ny . . . person related by consanguinity or affinity within the

second degree." (§ 6211, subd. (f).) Its purpose is to prevent the recurrence of acts of

such abuse and to provide for a separation of those involved to resolve its underlying

causes. (§ 6220.) To this end, the DVPA provides for the issuance of restraining orders,

either ex parte or after a hearing, that enjoin specific acts of abuse. The DVPA defines

"abuse" to include an act that involves any behavior that has been or may be enjoined

under section 6320. (§ 6203.) The behavior that may be enjoined under section 6320

includes "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." (§ 6320, subd. (a).)

A trial court is vested with discretion to issue a protective order under the DVPA

when the applicant shows, to the satisfaction of the court, reasonable proof of a past act

or acts of abuse. (§ 6300; Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 421.) This

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level of proof, which has been construed to impose a preponderance of the evidence

standard (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137), permits a court to issue

the requested restraining order if the applicant shows the requisite abuse by a

preponderance of the evidence. (Cf. Bookout v. Nielsen (2007) 155 Cal.App.4th 1131,

1138.)

On appeal, a reviewing court applies the substantial evidence standard of review to

a trial court's factual findings, "regardless of the burden of proof at trial." (In re

Marriage of Murray (2002) 101 Cal.App.4th 581, 604.) Our sole inquiry is "whether, on

the entire record, there is any substantial evidence, contradicted or uncontradicted,"

supporting the court's finding. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621,

631.) The testimony of a single witness may provide sufficient evidence (In re Marriage

of Mix (1975) 14 Cal.3d 604, 614), even if contradicted by the testimony of other

witnesses, because " ' " 'it is the exclusive province of the [trier of fact] to determine the

credibility of a witness . . . .' " ' " (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th

959, 968.)

B. Substantial Evidence Supports the Order

Hans claims there was no substantial evidence to support the court's finding he

committed the alleged acts of vandalism. However, Jessie testified the vandalism

occurred in a very narrow time window (between 8:30 and 9:15 p.m.), during which he

saw Hans in one of the areas vandalized. Moreover, the vandalism was caused by use of

a liquid, and Jessie saw Hans carrying a bucket of the type that would facilitate carrying

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and dispersing a liquid. Third, Jessie testified Hans fled when he realized Jessie had

observed him, which permits an inference of guilt. (See, e.g., People v. Mulqueen (1970)

9 Cal.App.3d 532, 543 [flight supports an inference that the actor was conscious of

guilt].) There is substantial evidence to support the finding Hans committed the acts of

vandalism.

C. Hans Waived His Evidentiary Objections

Hans appears to complain that the trial court erred when it took judicial notice of

documents that showed (1) Hans, as well as Hans's mother, filed numerous lawsuits in

the courts over the years, and (2) Hans had been declared a vexatious litigant in 2005.2

However, Hans does not in his brief identify what (if any) objection he lodged to this

evidence3 and, absent a timely and specific objection to evidence, an appellant may not

complain on appeal as to admission. (People v. Riel (2000) 22 Cal.4th 1153, 1185.)

2 Hans also purports to challenge the constitutionality of the vexatious litigant
statute. Hans cites no authority that permits a litigant collaterally to attack (in an
unrelated proceeding) a determination declaring him to be a vexatious litigant, and it
appears the proper channel to challenge the propriety of that determination is on appeal
from a judgment in which the litigant suffered some injury under the vexatious litigant
statute. (Golin v. Allenby (2010) 190 Cal.App.4th 616, 635.) Moreover, even were
Hans's claims cognizable here, the constitutionality of the vexatious litigant statute has
been repeatedly upheld by both the federal and state courts (see, e.g., Wolfe v. George
(9th Cir. 2007) 486 F.3d 1120; Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007)
40 Cal.4th 780; Fink v. Shemtov (2010) 180 Cal.App.4th 1160), and Hans presents no
argument explaining why those cases were wrongly decided.

3 " 'It is the duty of a party to support the arguments in its briefs by appropriate
reference to the record, which includes providing exact page citations.' [Citations.] If a
party fails to support an argument with the necessary citations to the record, . . . the
argument [is] deemed to have been waived." (Duarte v. Chino Community Hospital
(1999) 72 Cal.App.4th 849, 856.)
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 D. Hans's Constitutional Challenges to the DVPA

Hans's "Vagueness" Challenge

Hans argues the DVPA is unconstitutional because it permits entry of the

restraining order on "reasonable proof of a past act or acts of abuse" (§ 6300), and Hans

asserts that employing the term "reasonable proof" renders the statute unconstitutionally

vague. We begin with the oft noted principle " '[a]ll presumptions and intendments favor

the validity of a statute and mere doubt does not afford sufficient reason for a judicial

declaration of invalidity.' " (Personal Watercraft Coalition v. Marin County Bd. of

Supervisors (2002) 100 Cal.App.4th 129, 137, quoting Lockheed Aircraft Corp. v.

Superior Court (1946) 28 Cal.2d 481, 484.) The presumption of validity prevails if there

is a reasonable degree of certainty in the text of the challenged provisions. (People v.

Heitzman (1994) 9 Cal.4th 189, 199.) A statute " 'will not be held void for uncertainty if

any reasonable and practical construction can be given its language.' [Citation.] It will

be upheld if its terms may be made reasonably certain by reference to other definable

sources" (American Civil Liberties Union v. Board of Education (1963) 59 Cal.2d 203,

218), including reference to other statutes or code provisions (ibid.; accord, Rose v. Locke

(1975) 423 U.S. 48, 49-50) or other "definable sources," such as judicial decisions and

the common law. (See, e.g., People v. McCaughan (1957) 49 Cal.2d 409, 414.) Here,

the standard of "reasonable proof" is not impermissibly vague for purposes of the due

process clause because the courts have determined the DVPA requires the applicant to

satisfy the "preponderance of the evidence" standard. (Gdowski v. Gdowski, supra, 175

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Cal.App.4th at p. 137; cf. Bookout v. Nielsen, supra, 155 Cal.App.4th at p. 1138.)

Because Hans raises no claim that satisfaction of the "preponderance of the evidence"

standard is itself an impermissibly vague standard, his vagueness challenge is not

persuasive.

Hans's "Overbreadth" Challenge

Hans also argues the DVPA is unconstitutional because it is overbroad. He asserts

that the DVPA—by including (among the types of "acts of abuse" that can trigger a

restraining order) the "perfectly legal expressive conduct" of "making innocent telephone

calls" or "mailing innocent letters"—is facially overbroad because it prohibits "not only

unprotected speech, but also protected speech." (Ketchens v. Reiner (1987) 194

Cal.App.3d 470, 475.)

In New York v. Ferber (1982) 458 U.S. 747, the United States Supreme explained

the scope of the First Amendment overbreadth doctrine:

"[L]ike most exceptions to established principles, [the doctrine] must
be carefully tied to the circumstances in which facial invalidation of
a statute is truly warranted. Because of the wide-reaching effects of
striking down a statute on its face at the request of one whose own
conduct may be punished despite the First Amendment, we have
recognized that the overbreadth doctrine is 'strong medicine' and
have employed it with hesitation, and then 'only as a last resort.'
[Citation.] We have, in consequence, insisted that the overbreadth
involved be 'substantial' before the statute involved will be
invalidated on its face. [¶] . . . [¶] In Broadrick [v. Oklahoma
(1973) 413 U.S. 601, 615], we explained the basis for this
requirement: [¶] '[T]he plain import of our cases is, at the very
least, that facial overbreadth adjudication is an exception to our
traditional rules of practice and that its function, a limited one at the
outset, attenuates as the otherwise unprotected behavior that it
forbids the State to sanction moves from "pure speech" toward

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 conduct and that conduct—even if expressive—falls within the
scope of otherwise valid criminal laws that reflect legitimate state
interests in maintaining comprehensive controls over harmful,
constitutionally unprotected conduct. Although such laws, if too
broadly worded, may deter protected speech to some unknown
extent, there comes a point where that effect—at best a prediction—
cannot, with confidence, justify invalidating a statute on its face and
so prohibiting a State from enforcing the statute against conduct that
is admittedly within its power to proscribe. [Citation.]' [Citation.]
[¶] We accordingly held that 'particularly where conduct and not
merely speech is involved, we believe that the overbreadth of a
statute must not only be real, but substantial as well, judged in
relation to the statute's plainly legitimate sweep.' " (New York v.
Ferber (1982) 458 U.S. at pp. 769-770, italics added, fn. omitted,
quoting Broadrick v. Oklahoma, supra, 413 U.S. at p. 615.)

Although Hans concedes his alleged conduct did not involve protected speech, and

the vast bulk of the activities that could trigger injunctive relief likewise do not involve

protected speech, he peremptorily asserts he can nevertheless challenge the statute

because it can encompass private phone calls or private letters, and "when statutes

regulate or proscribe speech . . . [citation], the transcendent value to all society of

constitutionally protected expression is deemed to justify allowing 'attacks on overly

broad statutes with no requirement that the person making the attack demonstrate that his

own conduct could not be regulated by a statute drawn with the requisite narrow

specificity.' " (Gooding v. Wilson (1972) 405 U.S. 518, 520-521 [Quoting Dombrowski

v. Pfister (1965) 380 U.S. 479, 486.) However, Hans cites no authority that a statute

regulating personal phone calls or letters involves the type of core First Amendment

conduct permitting a facial overbreadth challenge, and the courts have repeatedly noted

that such speech on matters of purely private concern is entitled to less First Amendment

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protection than speech concerning public issues. (See, e.g., DVD Copy Control Assn.,

Inc. v. Bunner (2003) 31 Cal.4th 864, 882-883; Dun & Bradsteet, Inc. v. Greenmoss

Builders, Inc. (1985) 472 U.S. 749, 759 ["speech on matters of purely private concern is

of less First Amendment concern" than " 'speech on public issues' "].)

A number of cases have rejected nearly identical constitutional challenges under

circumstances substantially similar to those presented here. For example, in Brekke v.

Wills (2005) 125 Cal.App.4th 1400, a parent obtained an injunction prohibiting

harassment by her minor daughter's boyfriend, and the enjoined boyfriend challenged the

injunction on the grounds that it violated his First Amendment rights. The court rejected

those challenges, noting defendant's speech "was between purely private parties, about

purely private parties, on matters of purely private interest. Thus, this case is ' "wholly

without the First Amendment concerns with which the Supreme Court of the United

States has been [struggling]" [citation]' [quoting Dun & Bradstreet, Inc. v. Greenmoss

Builders, Inc., supra, 472 U.S. at p. 760]; and the trial court properly considered

defendant's speech in determining whether to issue injunctive relief . . . ." (Brekke, at

p. 1409.) Again, in People v. Astalis (2014) 226 Cal.App.4th Supp. 1, the defendant

claimed Penal Code section 653m, subdivision (b), which criminalized making repeated

telephone calls or repeated contact by means of an electronic communication with the

intent to annoy and harass, was void as overbroad. The court rejected that argument,

noting the government had a substantial interest in protecting against harassment, and the

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statute did not pose a realistic danger that it would " 'significantly compromise

recognized First Amendment protections.' " (Astalis, at pp. Supp. 6-10.)

We are confident that the observations of the United States Supreme Court in

Parker v. Levy (1974) 417 U.S. 733 control here. In Parker, the court reiterated its

longstanding "reluctance to strike down a statute on its face where there were a

substantial number of situations to which it might be validly applied. Thus, even if there

are marginal applications in which a statute would infringe on First Amendment values,

facial invalidation is inappropriate if the 'remainder of the statute . . . covers a whole

range of easily identifiable and constitutionally proscribable . . . conduct . . . .' " (Id. at

p. 760.) Here, section 6203 defines abuse to include (1) intentionally or recklessly to

cause or attempt to cause bodily injury, (2) sexual assault, (3) placing a person in

reasonable apprehension of imminent serious bodily injury to that person or to another,

and (4) any behavior that has been or could be enjoined under section 6320, which

thereby also includes molesting, stalking, threatening, destroying personal property,

coming within a specified distance, disturbing the peace of the other party, and

telephoning or contacting by mail or otherwise. Because the vast bulk of the statute on

its face " 'covers a whole range of easily identifiable and constitutionally proscribable . . .

conduct' " (Parker, at p. 760), and the latter two categories at most cover speech

"between purely private parties, about purely private parties, on matters of purely private

interest[, which is] ' "wholly without the First Amendment concerns with which the

Supreme Court of the United States has been struggling" ' " (Brekke v. Wills, supra, 125

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Cal.App.4th at p. 1409), we conclude Hans's purported facial overbreadth challenge,

which makes no effort to show the DVPA is substantially overbroad, is not persuasive.

DISPOSITION

The order is affirmed. Jessie is entitled to costs on appeal.

McDONALD, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.

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