Nickelson v. Nickelson CA2/2

Filed 11/19/21 Nickelson v. Nickelson CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

MAURICE NICKELSON, B302583

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 19IWRO00885)

KARLA NICKELSON,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los
Angeles County. William V. McTaggart, Judge Pro Tempore, and
Patricia J. Titus, Judge. Affirmed with directions.
Maurice Nickelson, in pro. per., for Plaintiff and Appellant.
Karla Nickelson, in pro. per., for Defendant and
Respondent.

_______________________
 This case arises from the trial court’s dismissal of cross-
requests for domestic violence restraining orders (DVRO) by two
adult siblings—brother and sister—residing in their father’s
home. The brother appeals the trial court’s dismissal of his
request for a DVRO and contends that the court also erred in not
ruling on his restitution claim against his sister for property
damage. We conclude that the trial court failed to determine
appellant’s property claim but otherwise affirm the judgment
with directions.
FACTUAL AND PROCEDURAL HISTORY
I. The Parties
Appellant Maurice Nickelson (43) and respondent Karla
Nickelson (49) live together in Los Angeles with their 76-year-old
father, Melvin Nickelson (the homeowner), their brother Marc
Nickelson, and Karla’s three adult children. As adults, Maurice
and Karla have lived in their father’s house together for around
10 years.
II. Maurice’s Domestic Violence Restraining Order
Request and Temporary Restraining Order
Against Karla
On July 22, 2019, Maurice filed a request for a DVRO
against Karla, in propria persona. He sought move-out, stay-
away, and antiharassment orders, permission to record
communication made to him by Karla in violation of the court’s
orders, and orders that Karla attend a 52-week batterer
intervention program and receive “medical/mental health
evaluation and treatment.”
In his request, Maurice alleged that on July 19, 2019, Karla
punched him in the face, causing slight bruising and swelling on
his right cheek, then verbally abused him, denied him access to

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the telephone to call 911, and pushed him from behind, causing
him to fall into a desk and table, which was heard but not
visually observed by Marc. Maurice stated that police arrived
and attempted to talk to Karla, but she locked all the doors and
would not come outside. He further alleged that on March 7,
2019, Karla kicked him in the leg after following him and yelling
verbal abuse at him with “extreme anger” for over 30 minutes
and that this incident also was heard but not directly seen by
Marc. Police arrived and gave him restraining order advice and
advice about how to get mental health help for Karla, but at that
time he decided not to pursue anything unless things escalated.
Prior to these two incidents, Maurice alleged harassment
by Karla toward him had been escalating for 10 years, including
physical acts of spitting on him, “stomp[ing] on [his] feet for no
reason,” turning off the hot water heater when he wanted to take
a bath, and intentionally bumping into him to try to provoke him.
The alleged verbal harassment and “bullying” incidents included
Karla forcing entry into his private room and “trashing” his room
and personal items, following and yelling at him without
provocation, destroying his room locks so that he had to enter by
the window, stealing personal belongings and tampering with his
food, and threatening him and stating that she wished he were
dead.
On July 22, 2019, the trial court partly granted and partly
denied a temporary restraining order, ordering that Karla must
not “Harass, attack, strike, threaten, assault (sexually or
otherwise), hit, follow, stalk, molest, destroy personal property,
disturb the peace, keep under surveillance, impersonate (on the
Internet, electronically, or otherwise), or block movements” of
Maurice, and that Maurice had the right to record

3
communication by Karla that violated the court’s orders. The
trial court denied until a hearing Maurice’s requests for move-out
and stay-away orders, stating it was “unclear that you have the
right to have her removed from the premises” and that “[s]tay
away is unenforceable/impractical since you live together,” and
noting that there was “no arrest when police arrived on the
scene.” The trial court also denied, until a hearing, Maurice’s
requests that Karla receive a medical/mental health evaluation
and attend a batterer intervention program.
On August 7, 2019, Karla filed a response, stating she did
not agree with any of the requested orders “because there was no
(and never has been any) abuse nor harassment on my part.”
On August 13, 2019, Maurice filed a declaration in the form
of a printed questionnaire signed by their brother Marc, which
stated that Marc had seen Karla verbally harass Maurice and
that Karla and Maurice had “very loud arguments at least two
times a week.” Marc declared that on July 19, 2019, he heard
Karla say she was going to fight Maurice “like a man” and that
Marc observed bruising on the right side of Maurice’s cheek or
face after Maurice claimed Karla hit him. Marc also declared
that Karla had harassed their father, Melvin, by saying she was
going to put Melvin in jail based on false statements and that
Marc’s own relationship with Karla was “friendly” but that she
had falsely accused Marc of pulling a knife on her, told him to
leave her alone when he had done nothing wrong, and was
“allways [sic] calling the police trying to get someone arrested,
base[d] on lies.” The declaration was refiled on September 18,
2019, at the request of the trial court, which found the initial
declaration “ambiguous” because the word “ ‘ANONYMOUS’ ”
was handwritten next to Marc’s signature line.

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 On August 23 and 26, 2019, Maurice filed requests for
Melvin and Marc to be added to any approved permanent
protective orders.
III. Karla’s Domestic Violence Restraining Order
Request Against Maurice
On August 26, 2019, Karla filed a civil harassment case
and a request for a DVRO against Maurice, with the assistance of
counsel.1 (Nicholson v. Nicholson (Super. Ct. L.A. County, 2019,
No. 19IWRO01023).) Karla sought move-out, stay-away, and
antiharassment orders as to her and her three adult children,
permission to record communication made to her by Maurice in
violation of the court’s orders, and orders that Maurice attend a
52-week batterer intervention program and pay her attorney fees
and costs.
Karla alleged that on July 19, 2019, Maurice tried to trip
her as she entered the kitchen with dishes, turned off the hot
water heater, hit her on the wrist and grabbed and dug his
fingers into her arm, and blocked her from her living quarters.
She denied that the police had come on that date. Karla alleged
that Maurice had a history of violence and harassment over many
years and had threatened her and her daughter with a knife on
multiple occasions, locked her and her children out of the house,
intentionally contaminated her food, spread trash around the
house and used dangerous chemicals and aerosols inside the
home to harass them, hid sharp knives in their clothes, towels,
and dishwater, and that in 1990 he strangled their sister Karen
Nickelson to the floor until her lips turned blue.

1 Both parties are proceeding in propria persona on appeal.

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 The trial court denied a temporary restraining order until
the hearing because of the existing temporary restraining order
against Karla granted July 22, 2019.
On October 10, 2019, Maurice filed a response to Karla’s
request for a DVRO, stating that he did not agree to the orders
she requested because he had never harassed or abused her or
any of her children or done any of the intentional actions she
alleged and that he could not pay her attorney fees as he himself
was on a fee waiver. He disputed all of her allegations, noted
that he would have been 13 at the time of the alleged strangling
incident of their sister, and stated that Karla’s claims consisted of
“1) Complete fabrications that NEVER occurred[,] 2) Gross
embellishments of actual events[,] 3) Acts by me that were NOT
intentional, WERE done by mistake or may have been unwise
judgment, but were NOT intended to harm anyone, did NOT
harm anyone, and were NOT reckless.”
On September 16, 2019, Maurice filed another declaration
from his brother Marc, stating that the environment at home was
peaceful since the temporary restraining order, there were no
more arguments in the home, Maurice regularly cleaned the
house and yard, and “everyone is on there [sic] best behavior.”
IV. Maurice’s Property Claim
On October 3, 2019, Maurice filed a request for order for
repayment of the value of stolen desk furniture. On October 10,
2019, the trial court ordered that Maurice’s claim for restitution
for damaged property would be heard at the upcoming
restraining order hearing, stating that “any findings of fact
relating to the claims made” in Maurice’s request for order “will
be determined at the October 15th hearing.”

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 V. Hearing and Dismissal of the Restraining Order
Requests
After three continuances, a hearing on both requests for a
restraining order was held on October 15, 2019. The trial court
heard testimony from Maurice and Karla, Marc, and Karla’s
adult daughter Kristina Nickelson. The court stated to the
parties that given their opposing cases, it had “to figure out if
there is a primary aggressor, and if there is, what do we do.”
Karla’s counsel offered that this was a “very sad case, one that
absolutely doesn’t warrant a restraining order,” and that her
recommendation to the parties was that they seek family therapy
to address the problems and tensions in their relationship.
Maurice testified that in 2017 Karla had come into his
room, verbally harassed him, including calling him a “bitch-ass
nigga,” “loser,” and “psychopath,” and “trash[ed] the room” for no
reason, yelling and knocking his possessions to the floor while
Maurice remained calm. Maurice claimed he had recorded video
evidence of this incident, and the trial court instructed him just
to describe what had happened. Maurice testified that in 2018,
Karla had filled her mouth with water, spit it out all over him,
and yelled at the top of her lungs and verbally assaulted him
similarly to the 2017 incident, including that “she hates me and
wishes I was dead,” “she’s hated me ever since I was a baby,” “no
one likes me,” and that he was “a loser with no
accomplishments.” He denied ever pulling knives on Karla or her
daughter.
Maurice testified that on March 7, 2019, Karla had kicked
him after he suggested getting Medi-Cal for her daughter’s
healthcare. Maurice testified that she had “blown up” at his
suggestion, “became extremely loud and angry more so than I

7
have ever seen,” followed him to his room, and kicked him in the
leg. Prior to that date, Karla had only done “minor” physical
things, like stomping his feet or shoving him.
Maurice described July 19, 2019, as an “escalating event.”
On that date, Karla kept turning the water heater off after he
turned it on to take a bath. Eventually they were both standing
by the water heater switch flipping it on and off in front of each
other “in a childish manner,” when Karla accused him of hitting
her, punched him in the face causing a “small bruise,” and
blocked him from reaching the kitchen phone to call 911.
Maurice told the trial court he had a video showing where she hit
him under his eye, and the court replied that it would listen to
what he had to say under oath. Maurice testified that after
hitting him Karla pursued him down the hallway to his room,
where she pushed him from behind and he “fell into the desk
furniture.” He stated that he had a picture of the desk he fell
into.
Maurice admitted that at 6 feet 2 inches and 150 pounds he
was “significantly taller” than Karla, who he believed to be 110
pounds. He claimed emotional distress from all the incidents,
and that he felt after the July 19 incident that Karla’s “anger is
too risky, her escalating behavior is unsafe to live with,” and it
was starting to involve Karla’s children acting against him as
well.
Karla testified that she had observed Maurice “lunge” or
“jabb[ing]” a knife in her daughter’s direction, gesturing with a
knife at Karla herself, and that he turned the hot water off and
threw trash in her bath water. She stated that he hit her twice,
in 2017 and 2018, and hit her wrist and grabbed it away from the
knob on the hot water tank. Karla denied kicking him in March

8
2019. She also stated that Maurice had intentionally left all the
gas stove burners on, unlit, on multiple occasions.
Marc testified that he had not directly seen any physical
violence by either sibling toward the other, just heard a scuffle
when they got into a fight on July 19, 2019, and heard when they
would “get into it” about turning the hot water heater on and off.
Marc stated that Maurice generally did not raise his voice during
interactions with Karla, although Maurice “may say something
that may be inappropriate sometimes,” including comments
about Karla’s children. Marc indicated that he felt stuck in the
middle and said, “I hear them arguing all the time. I don’t know
how it will stop. It seem[s] like it’s been escalating to the
physical nature. I want to avoid the police. I don’t want anybody
going to jail or calling the police. It’s getting out of hand.
Hopefully this forum can correct everyone’s behavior. So far it’s
been peaceful in the house.”
Kristina testified that Maurice often swept trash into
different areas of the house and left the gas on, and that he made
three thrusting motions with a knife at her in the kitchen the
previous year. Kristina stated that on July 19, 2019, she
observed him try to trip Karla in the kitchen, then block Karla’s
exit in a threatening manner until Karla hit him in defense on
the left cheek with a pack of butter.
The trial court concluded there was no basis for the
issuance of a permanent restraining order in either case, and
that both parties failed to carry their burden of proof that abuse
occurred and failed to establish that issuance of a restraining
order was warranted under the totality of the circumstances.
The court stated: “I think at this point, I hear a lot of discontent,
a lot of friction, but I think in this case I really have to agree with

9
Karla’s counsel. We really need family counseling. You guys are
getting on each other’s nerves. I don’t think it’s gotten to the
point where I’m prepared to issue a permanent order.” The trial
court denied both requests for a permanent order, “strongly
urge[d]” the siblings to participate in cocounseling and try to
work things out, and advised them “to get out of each other’s
faces and respect each other’s space.” The court made no findings
or rulings regarding Maurice’s property claim.
On October 25, 2019, Maurice filed a notice of intent to
move for a new trial and subsequently moved for a new trial on
the basis that the trial court improperly excluded video and
photographic evidence and medical reports, and that there was
insufficient evidence to dismiss his case. At the hearing on his
motion for a new trial on November 13, 2019, the trial court
directed Maurice to file an appeal and ordered the new trial
motion off calendar.
Maurice timely appealed the trial court’s dismissal of his
DVPO request. He filed a separate notice of appeal from the trial
court’s order ordering his new trial motion off calendar; as
discussed below we review this order based on Maurice’s appeal
from the underlying dismissal order.
DISCUSSION
Maurice contends that the trial court’s order dismissing his
request for a domestic violence restraining order was an abuse of
discretion and that no substantial evidence supports the court’s
decision. He also contends that the court specifically abused its
discretion by precluding video and photographic evidence, by not
giving him the opportunity to cross-examine Karla and Kristina,
by ordering his new trial motion off calendar, and by not
addressing his property restitution claim. We conclude that the

10
trial court did not address Maurice’s property claim and must do
so on remand. In all other respects, we affirm.
I. Relevant Law
Under the Domestic Violence Prevention Act (DVPA) (Fam.
Code, § 6200 et seq.), the trial court may issue a protective order
enjoining a party from engaging in specific acts of harassment or
abuse against a cohabitant or former cohabitant. (Fam. Code,
§§ 6211, subd. (b), 6218, 6322, 6340, subd. (a)(1).) Under the
DVPA, the court must “ ‘consider the totality of the circumstances
in determining whether to grant or deny a petition for relief.’ ”
(§ 6301, subd. (c); Lugo v. Corona (2019) 35 Cal.App.5th 865,
869.)
The standard of review for the grant or denial of a DVPO is
abuse of discretion. (Rodriguez v. Menjivar (2015) 243
Cal.App.4th 816, 820; In re Marriage of Nadkarni (2009) 173
Cal.App.4th 1483, 1495; Fam. Code, § 6300, subd. (a).) “We
likewise review the trial court’s failure to consider evidence in
issuing a DVRO for an abuse of discretion.” (In re Marriage of
Davila & Mejia (2018) 29 Cal.App.5th 220, 226.) “ ‘A trial court’s
exercise of discretion will not be disturbed on appeal unless, as a
matter of law, an abuse of discretion is shown—i.e.,—where,
considering all the relevant circumstances, the court has
“exceeded the bounds of reason” or it can “fairly be said” that no
judge would reasonably make the same order under the same
circumstances.’ ” (In re Marriage of Smith (1990) 225 Cal.App.3d
469, 480, italics omitted.) “ ‘So long as the court exercised its
discretion along legal lines, its decision will not be reversed on
appeal if there is substantial evidence to support it.’ ” (Ibid.)
In determining whether there is substantial evidence to
support the trial court’s decision to grant or deny a DVPO, we

11
resolve all conflicts in the evidence in favor of the prevailing
party and indulge all legitimate and reasonable inferences in
favor of upholding the trial court’s order. (In re Marriage of
Bonds (2000) 24 Cal.4th 1, 31; McCord v. Smith (2020) 51
Cal.App.5th 358, 364.) “If two or more reasonable inferences can
be reasonably deduced from the facts, we have no authority as a
reviewing court to substitute our judgment for the trial court’s
judgment.” (McCord v. Smith, at p. 364.)
An order denying a request for a restraining order under
Family Code section 6200 et seq. is immediately appealable as an
order refusing to grant an injunction. (Nakamura v. Parker
(2007) 156 Cal.App.4th 327, 332; Code Civ. Proc., § 904.1, subd.
(a)(6).)
II. Substantial evidence supports the trial court’s
order, and it did not abuse its discretion in
dismissing Maurice’s request for a DVPO.
Here, the trial court concluded that the situation in the
parties’ household, although one of “friction” and “discontent,” did
not rise to the level of requiring any permanent protective order.
Substantial evidence supports this determination with regard to
Maurice’s request for a protective order against Karla.
Resolving all evidentiary conflicts in favor of Karla as the
prevailing party, the evidence indicates that on July 19, 2019,
Karla engaged in a verbal confrontation with Maurice regarding
the hot water heater during which he hit and grabbed her hand
on the heater knob, that she struck Maurice’s face in defense
after he tried to trip her in the kitchen, blocking her passage, and
the two had a “scuffle” in Maurice’s bedroom that was overheard
by Marc. In March 2019 Karla engaged in a verbal altercation
with Maurice regarding her daughter’s medical care but denied

12
kicking him. Karla did not offer any contradictory testimony
regarding the 2017 incident in which Maurice alleged she entered
his room, berated him, and trashed his possessions, or regarding
the 2018 incident in which Maurice alleged she spit water on him
and verbally abused him, although she did testify that Maurice
deliberately engaged in provocative and disrespectful behaviors
in the home to incite her to anger and had hit her twice before in
2017 and 2018.
Under the totality of the circumstances, the trial court was
within its discretion to conclude that these incidents and
behaviors in the home did not rise to a level requiring a
protective order. Because the trial court found insufficient
evidence to justify a protective order in Maurice’s favor, we can
find an abuse of discretion in denying the DVRO only if “ ‘the
evidence compels a finding in favor of the appellant as a matter of
law. [Citations.] Specifically, the question becomes whether
[Maurice’s] evidence was (1) “uncontradicted and unimpeached”
and (2) “of such a character and weight as to leave no room for a
judicial determination that it was insufficient to support a
finding.” ’ ” (Sonic Manufacturing Technologies, Inc. v. AAE
Systems, Inc. (2011) 196 Cal.App.4th 456, 466.) Here, there was
ample discretionary room for a judicial determination that the
uncontradicted evidence was insufficient to support a finding in
Maurice’s favor. The parties undisputedly had significant verbal
conflict, and at least one physical incident by Karla against
Maurice where Karla struck Maurice’s cheek and pushed him
into his desk. But even if there have been instances of domestic
violence in the past, the DVPA does not mandate a restraining
order be granted on that basis alone. Rather, the court must
exercise its discretion to decide whether, even if past abuse has

13
been proven, the circumstances of the case warrant a DVRO to
prevent future acts of domestic violence. (Fam. Code, §§ 6220,
6300.)
Maurice urges us to reconsider his version of disputed
events along with his uncontradicted testimony and to conclude
the trial court erred in ruling that the evidence was insufficient
to justify a DVPO. However, on review, we accept as true the
evidence in Karla’s favor (see Burquet v. Brumbaugh (2014) 223
Cal.App.4th 1140, 1143), and we may not make factual
determinations in place of those made by the trial court (Dreyer’s
Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th
828, 838). The testimony of a single witness, even a party, may
alone constitute substantial evidence (In re Marriage of Mix
(1975) 14 Cal.3d 604, 614), and to the extent Maurice argues that
Karla’s testimony was not credible, we must infer the trial court
resolved questions of credibility in a manner that supports its
findings and order (Schild v. Rubin (1991) 232 Cal.App.3d 755,
762). In so doing, we cannot conclude that the trial court abused
its discretion in finding that there was insufficient evidence to
justify a protective order in favor of Maurice.
The trial court also was within its discretion not to consider
Maurice’s video and photographic evidence in its determination.
The trial court has broad authority and a statutory duty to
control trial proceedings, including the introduction and
exclusion of evidence. (Evid. Code, §§ 320, 352.) This discretion
includes “the power to rule on the admissibility of evidence,
exclude proffered evidence that is deemed to be irrelevant,
prejudicial or cumulative and expedite proceedings which, in the
court’s view, are dragging on too long without significantly aiding
the trier of fact.” (In re Marriage of Carlsson (2008) 163

14
Cal.App.4th 281, 291.) It is only when the trial court abuses this
discretion “ ‘in such manner as to prevent a full and fair
opportunity to the parties to present all competent, relevant, and
material evidence bearing upon any issue properly presented for
determination’ ” that a litigant’s due process rights are
implicated. (Elkins v. Superior Court (2007) 41 Cal.4th 1337,
1357; see Evid. Code, § 354 [“A verdict or finding shall not be set
aside, nor shall the judgment or decision based thereon be
reversed, by reason of the erroneous exclusion of evidence unless
the court which passes upon the effect of the error or errors is of
the opinion that the error or errors complained of resulted in a
miscarriage of justice”].)
Here, Maurice informed the trial court that he had a video
recording of the 2017 incident when Karla entered his room,
video evidence showing his face after Karla struck him on
July 19, 2019, and a photograph of the desk Karla pushed him
into on July 19, 2019. But such evidence had only cumulative
value in that its admission would have added nothing to what
was already before the trial court through Maurice’s personal
testimony regarding the 2017 incident, his testimony that he had
a “small bruise” on his face after Karla hit him, and Marc’s
declaration that Maurice’s face was visibly bruised in July 2019.
Karla presented no testimony disputing Maurice’s
characterization of the 2017 incident, nor did she deny that she
struck and bruised Maurice on July 19, 2019, or that she pushed
him into his desk. Under the circumstances, Maurice suffered no
prejudice from the court’s decision not to view his video or photo
evidence. (See McCarthy v. Manhattan Beach (1953) 41 Cal.2d
879, 895 [no prejudice to reject testimony with only cumulative
value regarding undisputed facts].) Even were we to conclude the

15
trial court erroneously excluded Maurice’s evidence, it is not
reasonably probable that a result more favorable to him would
have been reached absent the error. (People v. Watson (1956) 46
Cal.2d 818, 836.)
With regard to Maurice’s argument that he was not given
sufficient opportunity to cross-examine Karla or Kristina at the
hearing, “the trial court has discretionary power over cross-
examination, the exercise of which will be reviewed on appeal
only if such discretion has been abused.” (Melvin v. Berendsen
(1935) 7 Cal.App.2d 389, 391–392.) Maurice contends that the
trial court abused its discretion by not affirmatively offering him
the chance to cross-examine the witnesses. However, he did not
object at the hearing to the scope of cross-examination or request
to question the witnesses. “ ‘An appellate court will not consider
procedural defects or erroneous rulings where an objection could
have been, but was not, raised in the court below.’ ” (Children’s
Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740,
776.)
Likewise, although Maurice also contends that medical
records and police reports should have been considered, he did
not offer any records or reports into evidence at the hearing. The
fact that Maurice is appearing in propria persona makes no
difference. The rules of civil procedure “apply equally to parties
represented by counsel and those who forgo attorney
representation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975,
984–985.) A self-represented litigant is not entitled to “special
treatment” (Stebley v. Litton Loan Servicing, LLP (2011) 202
Cal.App.4th 522, 524) but is held to the same standards as a
party represented by counsel (Nwosu v. Uba (2004) 122
Cal.App.4th 1229, 1247).

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 III. No Prejudice Resulted From the Trial Court
Ordering Maurice’s New Trial Motion Off
Calendar.
The trial court ordered Maurice’s motion for new trial off
calendar after directing him to file an appeal. As an initial
matter, such an order in itself is not equivalent to a denial of the
new trial motion. Although an order dismissing a motion for a
new trial may be construed as an order denying the motion
(Hughes v. De Mund (1924) 70 Cal.App. 265, 267), “ ‘ “[o]ff
[c]alendar” is not synonymous with “dismissal.” “Off” merely
means a postponement whereas a “dismissal” in judicial
procedure has reference to a cessation of consideration’ ” (R & A
Vending Services, Inc. v. City of Los Angeles (1985) 172
Cal.App.3d 1188, 1193–1194).
However, where, as here, no order on a motion for new trial
is entered within 75 days after the moving party’s notice of
intention, the motion is ultimately deemed denied by operation of
law. (Code Civ. Proc., § 660, subd. (c).) The filing of a notice of
appeal from the underlying judgment does not affect the
procedural operation of a motion for new trial (Neff v. Ernst
(1957) 48 Cal.2d 628, 634), and “denial by operation by law of a
motion for new trial is reviewable on appeal from the judgment”
(Weisenburg v. Molina (1976) 58 Cal.App.3d 478, 486; see Walker
v. Los Angeles County Metropolitan Transportation Authority
(2005) 35 Cal.4th 15, 19 [“an order denying a motion for new trial
is not independently appealable and may be reviewed only on
appeal from the underlying judgment”]). “The denial of a new
trial motion is reviewed for an abuse of discretion, except that a
trial court’s factual determinations are reviewed under the

17
substantial evidence test.” (Minnegren v. Nozar (2016) 4
Cal.App.5th 500, 514, fn. 7.)
Here, all of the grounds raised in Maurice’s motion for new
trial were incorporated in his contentions on appeal, and we have
given full consideration to them in our discussion of the issues
raised by this appeal. We therefore conclude that no prejudice
resulted to Maurice from the trial court’s decision to take the
motion for new trial off calendar.
IV. The Trial Court Erred By Not Ruling On
Maurice’s Property Claim.
Although the trial court expressly ordered that Maurice’s
property claim would be determined at the October 15, 2019
hearing, it failed to do so. At the hearing, Maurice stated in
opening, “I’m also seeking restitution in the amount of $500 for
damage to stolen property and lost wages.” However, the trial
court did not thereafter take testimony or make any ruling
regarding the property claim. Maurice is entitled to a
determination of his restitution claim on remand.

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 DISPOSITION
The case is remanded to the superior court for the limited
purpose of a determination of appellant Maurice Nickelson’s
property restitution claim in accordance with this opinion. In all
other respects, the judgment is affirmed. The parties shall bear
their own costs on appeal.
NOT TO BE PUBLISHED.

LUI, P. J.
We concur:

ASHMANN-GERST, J.

HOFFSTADT, J.

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