Gordon v. LaPoint CA4/1

Filed 3/9/16 Gordon v. LaPoint 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

DAVID W. GORDON, D067701

Plaintiff and Respondent,

v. (Super. Ct. No. DV040568)

KIMBERLY LAPOINT,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Ernest M.

Gross, Commissioner. Affirmed.

Kimberly LaPoint, in pro. per., for Defendant and Appellant.

No appearance by Plaintiff and Respondent.

Defendant and appellant Kimberly LaPoint appeals a domestic violence

restraining order issued on behalf of plaintiff and respondent David Gordon, with whom

she was formerly in a dating relationship, and his two minor children. (Fam. Code,

§ 6200 et seq.; the Domestic Violence Prevention Act (DVPA); subsequent statutory

references are to this code unless noted.) Representing herself on appeal, LaPoint
essentially argues that because she presented testimony that conflicted with Gordon's

testimony, the trial court could properly have found only that the evidence was

insufficient to support any such relief. She also seems to argue that a competing

application for a similar order against Gordon that she recently filed should have been

given more weight, although it was not before the court at the time of this hearing.

Our rules of review applied to this very limited record lead us to determine that the

trial court had a sufficient basis to conclude from all of the reported testimony that

LaPoint's repeated conduct toward Gordon at the vicinity of his home and workplace

amounted to abuse and harassment within the meaning of the DVPA. (§ 6203,

subd. (a)(4) [defining domestic violence behavior that may be enjoined under section

6320]; § 6320, subd. (a) [injunctive order, "DVRO," may be issued to prevent "stalking,

threatening . . . harassing, telephoning . . . 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"].) The court did not abuse its discretion in issuing this injunctive

order and we affirm.

I

RULES OF REVIEW

On a petition for a DVRO, a trial court has broad discretion to apply the statutory

scheme in determining whether such an order is justified. (See § 6345, subd. (a);

Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420 (Gonzalez); Loeffler v. Medina

(2009) 174 Cal.App.4th 1495, 1505 (Loeffler).) Abuse of discretion occurs if the trial

court exceeds the bounds of reason, or fails to apply correct legal standards and thereby

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takes action outside the confines of the applicable principles of law, or acts without

substantial support in the evidence. (Gonzalez, supra, at pp. 420-421.) As a trier of fact,

a trial judge is required to reject evidence only " 'when it is inherently improbable or

incredible, i.e., " 'unbelievable per se,' " physically impossible or " 'wholly unacceptable

to reasonable minds.' " [Citations.]' " (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th

959, 968.)

On appeal, we do not reweigh the evidence or second guess the credibility of a

witness. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531.) In determining

whether substantial evidence supports the court's order, we view the evidence in the light

most favorable to the order. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139,

1151.)

As an appellant, LaPoint has the burden of providing an adequate record and of

showing that error occurred and that it was prejudicial. (Maria P. v. Riles (1987) 43

Cal.3d 1281, 1295-1296; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121,

132.) The arguments on appeal must be restricted to documents in the record, and we

generally may not consider references to matters outside the record. (Cal. Rules of Court,

rule 8.204(a)(2)(C) [appellant's opening brief must provide a summary of significant facts

limited to matters in the record on appeal].) Absent an adequate record to demonstrate

error, a reviewing court presumes the judgment or order is supported by the evidence. (In

re Angel L. (2008) 159 Cal.App.4th 1127, 1136-1137.)

Further, "[i]n propria persona litigants are entitled to the same, but no greater,

rights than represented litigants and are presumed to know the [procedural and court]

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rules." (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.) For any appellant,

"[a]ppellate 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; In re Marriage of Falcone & Fyke

(2008) 164 Cal.App.4th 814, 830.)

II

EXTENT OF RECORD

The record contains a copy of the February 23, 2015 DVRO, issued after a

hearing, for a period of five years. It identifies LaPoint as Gordon's ex-girlfriend, but

there is no copy of Gordon's petition. No copy of any competing application for a

temporary restraining order (TRO) by LaPoint has been provided, although her brief

refers to one and it was discussed in the reporter's transcript. Apparently, her first such

application was dismissed by the trial court because she could not provide a police report,

but a TRO was granted later, with a hearing date assigned a few weeks after the current

trial was concluded. Although the record is sketchy and the briefing is confusing, we

exercise our discretion to determine whether the DVRO has the required evidentiary and

legal support.

According to testimony at the hearing, Gordon and LaPoint began a romantic

relationship in 2000, while both were living on the East Coast. Eventually, Gordon, his

wife Hazel and their children moved to San Diego. Gordon and LaPoint kept up their

dating relationship, e-mailing frequently. In February 2014, LaPoint moved to San

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Diego, although Gordon had told her not to try to join him. At that time, she learned he

was still married and was not planning to leave Hazel. He nevertheless helped LaPoint

and her children off and on, and the relationship continued. Gordon worked in security at

the La Jolla Veterans Administration (VA) hospital, and LaPoint started to volunteer

there. They often had lunch and otherwise interacted there and elsewhere through the

summer and fall of 2014.

Gordon acknowledged at the hearing that he did not seriously try to put the

relationship to an end until around November 2014, when he stopped communicating

with LaPoint. He continued to interact with her on a professional level, thanking her for

the birthday cake she dropped off at his office, and helping her with a car problem in

December 2014. He then told her again they were done, but LaPoint did not accept that,

as she noticed he was still wearing a watch that she gave him. He learned that she had

sent information about their relationship to the administrative head of the hospital and to

the head of the Navy Police Department, where he worked, claiming she was afraid of

him and trying to get his firearms privileges revoked. He became concerned that his job

and Hazel's job might be affected, as she was also working at the VA. In court, he played

some of the daily taunting voice mails that LaPoint had left on the family telephone in

December, after he asked her not to call him.

Gordon testified at the hearing that LaPoint moved into his neighborhood around

December 2014 and often drove by his house, honking her car horn to make herself

known to his family. He showed the court photographs of chalk writings he found in

January 2015 on his driveway, which said she had moved 3,000 miles to join him. He

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had previously found another message on his driveway with her birthday in it, and he said

LaPoint wrote them both. A few days after the January message, his sister visited and

sent Facebook messages to LaPoint, telling her to leave Gordon alone. On January 13,

2015, LaPoint drove by Gordon's house when the sister was there, and somebody

encouraged one of his kids to throw an egg at LaPoint's car. When Hazel arrived home

about the same time, she started screaming at LaPoint through the car window. LaPoint

backed up, hit a neighbor's car nearby, and drove off. At the hearing, Gordon played a

cell phone video of the incident.

In LaPoint's testimony, she admitted to calling Gordon's business and home

numbers within the last few months, including talking to Hazel, because she was hurt and

frustrated. LaPoint broke off the relationship with Gordon by sending a text to his sister

on January 11, 2015, saying to leave her alone, and she thought that would notify Gordon

as well. Two days later, she was taking her children to a restaurant in the neighborhood,

but when she heard something hit her car, she backed up so she could tell Gordon his

children were misbehaving. She then drove off because she and her children were upset

and the sister was banging on her car door. LaPoint's friend told her to call 911, and San

Diego police officers responded and told her she should not have left the scene of an

accident. They admonished Gordon's son not to throw things at cars.

After the incident at Gordon's home, LaPoint filed a petition for a temporary

restraining order and got one on her second try, when she obtained a police report from

the car incident. She met with the head of the VA on January 30, 2015, trying to ensure

she would have a safe working environment as a volunteer. LaPoint denied writing the

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chalk messages on Gordon's driveway. Her fellow volunteer, Ms. Adams, testified at the

hearing that LaPoint and Gordon continued to get together in a friendly way through the

end of 2014.

In summarizing the evidence, the court acknowledged that Gordon and LaPoint

both had equal parts in what was going on until late 2014. In late December or early

January 2015, LaPoint took it to another level, by directly going at him and his family

and moving into the abuse definition of domestic violence. The court was concerned that

LaPoint had inappropriately moved into his neighborhood and volunteered at his

workplace to put herself in close proximity to him. The court noted that when someone

threw something at LaPoint's car, she did not have to go back to confront people further,

but she chose to do so, was inviting this trouble, and apparently could not help herself.

The court issued the restraining order for a five-year period because it concluded

only an order would convince LaPoint to stay away from Gordon and his children. The

court noted that Hazel would not be included in the order, because as an adult, she could

seek her own order if necessary. LaPoint was not restricted from continuing to volunteer

at the VA, as long as she stayed away from Gordon individually. LaPoint inquired

whether she should attend her scheduled hearing on her own restraining order request,

and the court responded that that was up to her whether to pursue it or not.

LaPoint filed a timely notice of appeal from the trial court's order.

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 III

ANALYSIS

LaPoint contends that Gordon failed to carry his burden to show by a

preponderance of the evidence that her conduct amounted to abuse within the meaning of

the DVPA statutory scheme. She argues that Gordon was inconsistent in his evidence

and not worthy of belief, or he in fact committed perjury. (Pen. Code, § 118 [perjury

defined].) She also contends that her conduct was in some way privileged or justifiable

within the applicable definition of a dating relationship. (§ 6210 ["frequent, intimate

associations primarily characterized by the expectation of affection or sexual involvement

independent of financial considerations"].)

Under section 6320, subdivision (a), " 'disturbing the peace of the other party' "

may constitute abuse for purposes of the DVPA. (In re Marriage of Nadkarni (2009) 173

Cal.App.4th 1483, 1495-1497.) The statutory definition of conduct that may justify the

issuance of a restraining order under section 6320, subdivision (a) includes "stalking,

threatening . . . harassing, telephoning." The evidence, including admissions by LaPoint,

showed that toward the end of 2014 and the beginning of 2015, she engaged in several

types of such conduct, including contacting Gordon's work supervisors to make

allegations that she could not show were justified, about being afraid of him. She

repeatedly telephoned his home in a taunting way, and admitted that it was wrongful of

her to contact his wife with her complaints. Her explanation for why she repeatedly

drove by Gordon's house was evidently not accepted by the trial court. It is not for us to

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reweigh the evidence on appeal or reevaluate witness credibility. (In re Marriage of

Balcof, supra, 141 Cal.App.4th 1509, 1531.)

Although the evidence also showed that LaPoint had obtained her own temporary

restraining order against Gordon, the court at the hearing explained to her that that

proceeding was a separate matter and the upcoming court date in it could be pursued or

not, as she chose. To the extent that LaPoint seems to argue that the trial court abused its

discretion in failing to grant her own application for a restraining order against Gordon,

the record does not support any claim that that matter was properly brought before the

court at the time. Since the record does not include any information about any other

related civil proceedings, she does not support her position by citing to Civil Code

sections providing a tort remedy for stalking or harassment. (Civ. Code, §§ 1708.6

[remedies available in civil action for tort of domestic violence]; 1708.7 [damages

remedy for tort of stalking].)

LaPoint also seeks to show that Gordon's application had no merit when compared

to other trial court cases, but her citations to such other lower court cases do not provide

any proper legal authority for such an argument. (See Nelson v. Avondale Homeowners

Assn., supra, 172 Cal.App.4th 857, 862.) From the reporter's transcript, it is evident that

the commissioner who heard the case examined the merits of the petition and LaPoint's

opposition, and conscientiously gave her a chance to be heard. In response to questioning

by the court, Gordon admitted that he allowed the relationship to continue through the

summer and fall of 2014, but then tried to stop it. LaPoint admitted that after the

beginning of 2014, she was aware that he was not leaving his wife and he said he wanted

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to end the relationship. However, through January 11, 2015, she continued to contact his

home, relatives, and supervisors at his business, and two days later, she drove by his

house and engaged in confrontations. She could not provide any showing of justification

for her actions and was inconsistent in her explanations of what happened and why.

"A grant or denial of injunctive relief is generally reviewed for abuse of discretion.

[Citation.] This standard applies to a grant or denial of a protective order under the

DVPA." (Gonzalez, supra, 156 Cal.App.4th at p. 420.) " 'The scope of discretion always

resides in the particular law being applied by the court, i.e., in the " 'legal principles

governing the subject of [the] action. . . .' " ' " (S.M. v. E.P. (2010) 184 Cal.App.4th

1249, 1264-1265.) The record supports a conclusion that during a period of at least

several months, LaPoint carried out several types of actions evidently aimed at disturbing

the peace of Gordon and his family. (In re Marriage of Nadkarni, supra, 173

Cal.App.4th 1483, 1495-1497.) She distributed information about their affair, which

Gordon plainly did not want to share with his supervisors and family, and her conduct

was evidently designed to taunt and cause him emotional distress. The court could

reasonably have concluded that this conduct seemed to be escalating and would cause a

reasonable person substantial emotional distress, and it did.

Moreover, a five-year term of the order, applicable to Gordon and his children,

was appropriate in light of the length of the relationship as a whole, and the court

explained why there was no good cause to extend the order to Hazel, who could seek her

own order if the evidence supported it. (§ 6320, subd. (a) [DVRO applicable to other

household members may be issued on a showing of good cause].) Absent any indication

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to the contrary, which there is not, we are required to presume the trial court applied the

correct legal standards in making its discretionary determinations. (In re Angel L., supra,

159 Cal.App.4th at pp. 1136-1137; Gonzales, supra, 156 Cal.App.4th at pp. 420-421.)

The record supports the issuance of this injunctive relief.

DISPOSITION

The order is affirmed. Each party to bear his or her own costs.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

O'ROURKE, J.

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