Johnson v. Johnson CA4/1

Filed 10/14/22 Johnson v. Johnson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

JEFFREY F. JOHNSON, D079048

Plaintiff and Respondent,

v. (Super. Ct. No. 18FL011288C)

LISA BRANDOLO JOHNSON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County,
Jose Castillo, Judge. Affirmed.
Lisa Brandolo Johnson, in pro. per., for Defendant and Appellant.
Godkin & Brengle, Samuel S. Godkin and Shane C. Brengle for
Plaintiff and Respondent.

I.
INTRODUCTION
Lisa Brandolo Johnson appeals from a domestic violence restraining
order (DVRO) issued against her under the Domestic Violence Prevention Act
(DVPA) (Fam. Code,1 § 6200 et seq.) at the request of her ex-husband, Jeffrey

Johnson.2 Jeffrey sought a DVRO after Lisa found out information that he
thought he had kept confidential regarding his location while he was on two
different trips with his girlfriend and about other airplane tickets that he had
purchased. Jeffrey was concerned that Lisa was keeping track of his
whereabouts. He was also troubled by the fact that Lisa made telephone
calls to the hotel in which he was staying on one of his trips and managed to
convince the hotel to connect her to his room, and that she repeatedly
questioned his travels and left negative messages for him and their daughter
about his trips.
Although Lisa’s briefing is not a model of clarity, we discern that she is
challenging the sufficiency of the evidence to support the trial court’s factual
finding that her conduct amounted to abuse under the relevant statutory
standards. Lisa also appears to contend that the trial court prevented her
from presenting evidence that would have demonstrated that Jeffrey was not
being truthful when he claimed that he had not shared his out-of-town
locations through a social media application.
The record on appeal is insufficient to permit us to fully review the
relevant portions of the record because Lisa failed to include some of the
evidence that Jeffrey submitted and on which the trial court relied. However,
the portion of the record that Lisa designated on appeal contains substantial
evidence to support the trial court’s factual findings. In addition, the record
does not support Lisa’s contention that the trial court prevented her from

1 Further statutory references are to the Family Code unless otherwise
indicated.

2 Because the parties share the same last name, we will refer to the
parties by their first names for purposes of clarity.
2
offering evidence to support her defense. We therefore affirm the order of the
trial court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Jeffrey filed a request for a DVRO on February 17, 2021. The record
supplied by Lisa does not include a full copy of Jeffrey’s request for a DVRO,
and fails to include both the initial declaration that Jeffrey submitted in
support of his request for a DVRO and a supplemental declaration that he

submitted in support of his request.3 Lisa also failed to include any of the
exhibits that Jeffrey lodged in support of his request and that the court

admitted in evidence.4
Although Lisa also failed to include her response to Jeffrey’s request for
a restraining order, it appears from the trial court documents that Lisa
responded to Jeffrey’s DVRO request, in part, by requesting that the court
issue a DVRO against Jeffrey.
The trial court held a hearing on the parties’ cross-requests for a DVRO
on March 1, 2021. Both parties testified at the hearing. Jeffrey testified that

3 A copy of the register of actions in the trial court that is included in the
clerk’s transcript on appeal demonstrates that Jeffrey filed a “supplemental
declaration” in support of his request for a DVRO on February 22, 2021.
Additionally, the trial court referred to Jeffrey’s “declaration” at the hearing
on March 1, 2021. We infer from the fact that a “supplemental declaration” is
intended to supplement an initial declaration, as well as the fact that the
trial court referred to Jeffrey’s “declaration” and not to his “supplemental
declaration,” that Jeffrey filed an initial declaration in support of his request
for a DVRO, as well as the supplemental declaration that is included as a
separate entry in the register of actions from the trial court.

4 The transcript indicates that the court admitted certain of Jeffrey’s
proffered exhibits in evidence at the hearing on the DVRO.
3
the parties were obligated by a prior court order to communicate solely
through the “TalkingParents” application. Jeffrey also noted that two
previous restraining orders had been issued protecting him from contact and
harassment from Lisa; the first restraining order was granted after an
incident during which Lisa threatened her own safety and the second was
granted after an incident involving a prior trip that Jeffrey had taken with
his girlfriend to San Clemente. Jeffrey testified that even though there was a
requirement that the parties communicate only through TalkingParents, Lisa
continued to contact him through other means and in a manner that caused
him to feel as if she was keeping track of his whereabouts. He also
complained about her using TalkingParents to repeatedly contact him and
harass him regarding his whereabouts in a manner that felt like it was being
done “to threaten and intimidate,” and contended that her conduct amounted
to a “continu[ing] pattern” that had not stopped, despite the prior orders that
were issued in an attempt to bring a halt to similar behavior.
With respect to certain specific incidents that caused Jeffrey to be
concerned that Lisa was keeping track of his location, Jeffrey testified about
a trip to Arizona that he took with his girlfriend in February 2021. He also
brought his children to Arizona on that trip so that the children could see
Jeffrey’s father and his father’s wife. Jeffrey testified that Lisa had agreed to
“switch . . . weekend[s]” with him so that the kids could accompany him on

the trip to Arizona.5 According to Jeffrey, even though Lisa had agreed to
this change to the parenting schedule, she nevertheless “stalked both

5 Comments made at the hearing suggest that Jeffrey submitted an
exhibit comprised of copies of TalkingParents correspondence between him
and Lisa supporting his contention that Lisa had “agreed to switching the
weekend.” Again, Lisa failed to include the evidence that the court admitted
with respect to this hearing.
4
[Jeffrey] and the kids and their grandparents and called both hotels” while he

and the children were in Arizona.6 Jeffrey said that he had not given Lisa
information about where he was staying, yet she “lied to [the] front desk [at
his hotel] and then even spoke to [him] on the phone that morning of the 13th
of February.” She also interrupted a meal that Jeffrey was having with the
children, his girlfriend, and his parents.
Jeffrey testified about another incident that occurred between January
1 and January 3, 2021, in which Lisa sent Jeffrey text messages about his
location in Mexico, even though he had not shared his location with her.
Lisa did not dispute having made a telephone call to Jeffrey or
otherwise attempting to contact him while he was in Arizona; Lisa admitted
that she had “simply called [Jeffrey at] the hotel and said ‘Please bring my
kids back for my Court-ordered visitation.’ ” At the hearing, Lisa contended
that Jeffrey’s brother had provided her with information regarding where
Jeffrey was staying.
Lisa denied having “track[ed] Mr. Johnson’s whereabouts when he
went to Mexico.” She maintained that she was simply acting as a “concerned
mother” who wanted Jeffrey “to take a Covid test because it was stay-at-
home orders, and he went to a different country.” When directly asked by the
court “how [she found] out that he was in Mexico,” Lisa stated that his
location “pops up on [her] phone.” Lisa contended that Jeffrey was “stalking
[her] on [her] phone,” and that his “stalking” of her was the reason that
information about him “pops up” on her cell phone. Lisa admitted that she
had sent Jeffrey a text message about him drinking “wine in Mexico.”

6 Jeffrey indicated that he and his girlfriend were staying at one hotel,
while the children and their grandparents were staying at a different hotel.
5
 In response to the court’s question concerning how Lisa found out about
certain airplane tickets that Jeffrey had purchased, Lisa contended that the
parties’ “daughter mentioned something to [her] about -- email about plane
tickets.” However, she then immediately indicated to the court that she “d[id
not] know what plane tickets [Jeffrey was] talking about.”
The court indicated that it was “primarily” concerned about Lisa’s
“tracking of [Jeffrey’s] location,” and asked Lisa whether she had anything
else that she wanted the court to consider. Lisa asserted that she was “not
tracking his location,” that “his brother told [her] where they were,” and that
she “do[es not] know about the plane tickets.” She maintained that their
“daughter sent [her] a message about plane tickets.” Lisa went on to
complain that Jeffrey was “tracking” her, and asserted that Jeffrey “controls
all of it” and that she “ha[s] no knowledge or ability to track him.”
The court provided Jeffrey with an opportunity to respond to Lisa’s
testimony. Jeffrey testified that the only two people who had knowledge of
the name of the hotel at which he was staying in Arizona were himself and
his girlfriend. He testified that he had not spoken with his brothers about his
trip to Arizona, that he had not informed them of the fact that he was going
to be in Arizona, and that he had not provided them with the name of the
hotel at which he was planning to stay. Jeffrey also responded to Lisa’s
statement in her declaration to the effect that Jeffrey’s parents had provided
her with information about the trip to Arizona. He testified that his mother
had no knowledge about the trip until after it took place. Jeffrey further
testified that he had spoken with his father and his father’s wife about the
fact that Lisa had known the hotel at which he and his girlfriend were
staying, and they told him that they had not spoken with Lisa about the trip.

6
Jeffrey said that his father told him that Lisa had sent him a “threatening
email” before the trip, and that his father, “ ‘never responded.’ ”
With respect to the trip to Mexico, Jeffrey stated, “As to Mexico, you see
her TalkingParents notes. She knows exactly that I’m drinking wine. She
sent it to my daughter. She sent it to me as a threat. She kept threatening
me over that weekend, which is basically what she does any time she knows
I’m away for a weekend with my girlfriend. And was literally tracking my

location the whole time and threatening me and threatening my daughter.” 7
The trial court inquired of Jeffrey as to whether he had “post[ed] any
type of photos of [him] drinking wine.” Jeffrey denied having done so, and
stated, “I use no social media because of Lisa being in my life. I post none of
my location stuff. I do not use Facebook.” Jeffrey also stated that Lisa “has
not been part of our family [Apple] account since when we got the first
restraining order in October of 2019.” He disputed that he had ever “done
anything to her phone or anything along those matters.”
The court asked Lisa again how she “kn[e]w that he was drinking wine
in Mexico.” Her response was, “So on my phone -- I can share it -- I go to my
Foursquare app and up comes petitioner.” She began to discuss something
else and the court directed her to “just answer the question.” Lisa then
responded, “Petitioner’s social media.” The court clarified, “So you have

7 Although it is unclear what Lisa said that Jeffrey claimed constituted
“threatening” language, at another point during the hearing Jeffrey indicated
that Lisa had said to the parties’ daughter, “ ‘Your dad is drinking wine in
Mexico. He left you alone. You still want to lie for him?’ ” It is possible that
Jeffrey provided evidence of the statements that Lisa made to him and to
their daughter in a declaration he filed in support of his request for a DVRO,
but, again, no declarations filed by Jeffrey are included in the record on
appeal.
7
access to Mr. Johnson’s social media?” Lisa replied, “I don’t know how I have
access to it.”
Jeffrey then stated, “I don’t use social media.” The court asked Lisa
whether it was her “representation that you have different plans now,” to
which Lisa stated, “We’re still all on the same account.” Jeffrey disputed
this, saying, “We are not on the same account, [Y]our Honor. I mean, I can
clearly show you that. She got dropped immediately and started complaining
about she didn’t have access to photos. This is October of 2019.”
The court concluded the hearing by stating, “The Court has significant
information to consider [with respect to] Mr. Johnson’s request for a

restraining order against Ms. Brandolo.[8] In this case, the Court . . . has
considered the totality of the circumstances, including the burden of proof,
which is by a preponderance of the evidence. The Court finds the testimony
of Mr. Johnson credible. The Court finds . . . that he has met his burden by
showing by a preponderance of the evidence that Ms. Brandolo caused abuse
under Section 6203, as well as 6320. Specifically, that she has harassed, as
well as contacted directly or indirectly by mail or otherwise, as well as that
she has disturbed the peace by essentially tracking his whereabouts and
contacting him where he has kept his destination private. The Court,
therefore, grants the restraining order.” The court indicated that it would
issue the restraining order for a period of three years.
At that point, Lisa continued to attempt to make arguments. She said,
“I don’t understand that it’s not okay for me to find out where my kids are,

8 At the beginning of the hearing on March 1, Lisa identified herself to
the court as “Lisa Brandolo Johnson.” At that point, the trial court asked
Lisa whether she preferred to be referred to as Ms. Brandolo or Ms. Brandolo
Johnson. Lisa indicated that “Ms. Brandolo” was “fine,” and the court
referred to Lisa as “Ms. Brandolo” throughout the DVRO proceedings.
8
when they’re supposed to be with me and that petitioner post[s] on social
media, which he just said he doesn’t have, which is perjury. He does have it.”
The court explained, “Well, Ms. Brandolo, the Court . . . heard from both
sides. And in this case there is a disagreement between the parties. The
Court . . . has to resolve those disputes. The Court ruled in favor of Mr.
Johnson, and that is the order of this Court.” At that point, Lisa said, “What
law allows him to take my children and for me not to find out --.” The court
interrupted her, saying, “Ms. Brandolo, we’re not going to engage in this back
and forth.” The court attempted to ascertain whether Lisa understood that a
restraining order was now in place. Lisa continued to make comments such
as, “I don’t understand how this is compliant with the law.”
After granting Jeffrey’s request for a DVRO, the court permitted Lisa
to speak about her allegations regarding “abuse or any sort of harassment”
that caused her to be “in need of a restraining order against [Jeffrey].” Lisa
spoke on the record uninterrupted for what amounts to approximately four

pages of Reporter’s Transcript.9 Lisa contended that Jeffrey “deprives [her]
of basic necessities,” and “deprives [her] of seeing [her] children.” She
asserted that Jeffrey has “a really serious agenda to just erase me from our
children’s lives.” She conceded that “in the beginning . . . [she] was so angry
that [she] did not behave well.” Lisa also asserted that Jeffrey had “turned

9 Because Lisa does not challenge the trial court’s denial of her request
for a DVRO, we limit our recitation of the parties’ testimony with respect to
her request for a DVRO.
9
[her] utilities off twice.” Jeffrey responded to the accusations briefly,10 and
the court permitted Lisa to “have the last word.” Lisa again spoke
uninterrupted for what amounts to two and a half pages of Reporter’s
Transcript.
At that point, the trial court issued its oral ruling regarding Lisa’s
request for a DVRO. The court found that Lisa had not met her burden to
demonstrate that Jeffrey had committed “abuse . . . under the law.” The
court noted that most of the issues that Lisa had raised were “issues that the
Court has dealt with in the past regarding payment of bills, as well as
visitation.” The court specifically found that Jeffrey had not engaged in “any
behavior that is prohibited under Family Code Section 6320, at least based on
the presentation of the evidence in this case,” and denied Lisa’s request for a
DVRO.
A minute order that the trial court issued after the conclusion of the
March 1, 2021 hearing states, in relevant part, with respect to Jeffrey’s
request for a DVRO: “The court has sufficient evidence for [petitioner’s]
request against respondent. Court finds [petitioner’s] testimony is credible
and he has met his burden of proof under a preponderance of evidence and
grants a permanent Restraining Order.” The DVRO document itself orders
Lisa not to, among other things, “[h]arass, . . . stalk, . . . disturb the peace,
[or] keep under surveillance,” or “[c]ontact” or “[t]ake any action . . . to obtain

10 Jeffrey discussed with the court evidence that he had submitted in
response to an ex parte motion that Lisa had filed regarding certain of her
utilities being turned off. Jeffrey stated, “And you’ve seen in the ex parte
that, of course, I gave her notice before I turned off the utilities. I didn’t just
do it. I sent it to her on TalkingParents and told her when it was going to get
turned off both times.” The court indicated that the court “remember[ed]” the
ex parte matter.
10
the addresses or locations of” Jeffrey. The court issued a separate minute
order in which it documented its denial of Lisa’s request for a DVRO.
On March 11, 2021, Lisa filed a request for order (RFO) seeking to

“change” (capitalization omitted) the DVRO.11 In the filing, Lisa stated that
she was seeking to “change or end the orders because,” she asserted, “[t]here
was no willful, threatening, or harassing [of] Petitioner to instill fear[,] rather
Petitioner used social networking to check into locations and denied it.” In
her declaration submitted in support of the RFO, Lisa stated that Jeffrey had
“used a mutual social networking app, [F]oursquare, to check into his location
while he was breaking a court ordered custody agreement . . . .” Lisa also
separately filed a document titled “Notice of motion, motion and supporting
affidavit for reconsideration of order granting Petitioner’s restraining order
after hearing.” (Some capitalization omitted.) In her motion, Lisa contended
that Jeffrey had “lie[d]” during the hearing when he denied having used
“Foursquare to check into his locations.”
Lisa repeatedly asserted in her paperwork that Jeffrey is “an iPhone
app developer with a computer science degree,” and further asserted that he
is a “hacker and tinkerer” who “handled all the technology stuff during [the
parties’] marriage.” Lisa contended that, “new and different facts
demonstrate that [she] was not ‘willfully’ or ‘maliciously’ harassing the
Petitioner.” She asserted that it was her “misplaced concerns as a mother
and abuse survivor that led to the alleged incidents.”
Lisa filed a declaration on April 5, 2021, in which she stated that
Jeffrey’s statement at the hearing that he did not use social media “was
perjury.” Lisa lodged exhibits that she asserted would demonstrate that she

11 Lisa utilized a form request for order, “FL-300,” and marked the box
next to the word “CHANGE” with respect to her “REQUEST FOR ORDER.”
11
and Jeffrey were “checking into [F]oursquare, a social networking app where
you check into your locations.” Lisa claimed that she had requested “to show
[the court] the evidence on [her] phone,” at the hearing on the requests for
DVROs, and that the court denied her request.
Lisa apparently filed an appeal from the DVRO, which led the trial
court to indicate to Lisa that it did not have jurisdiction to hear Lisa’s motion
for reconsideration. Although the record is unclear on this point, it appears
that Lisa voluntarily dismissed her appeal so that the trial court could hear
her motion for reconsideration.
The court held a joint hearing on Lisa’s RFO to change the DVRO and
her motion for reconsideration of the DVRO on May 13, 2021.
At the hearing, Lisa stated that the reason she “knew where [Jeffrey]
was [was] because we had a shared Foursquare app,” and there “was no
stalking.” Lisa repeated that she had valid Covid-related concerns about
Jeffrey’s travel to Mexico. Lisa asserted that “[t]here was no fear instilled in
[Jeffrey]” by her actions. When the trial court indicated that Lisa was
straying from the initial question about what her new facts or evidence was,
Lisa repeated that the new evidence was “he had online access to my phone,
and we had shared apps,” and these “apps” were how she knew about
Jeffrey’s locations regarding his trips to Arizona and Mexico. Lisa asserted
that after the conclusion of the March 1 DVRO hearing, she no longer had
access to the Foursquare application on her cell phone.
In response, Jeffrey testified that the harassment involved the
TalkingParents messages that Lisa had sent, her texts to him, and her
calling his hotel in Arizona. He noted that her comments were not Covid-
related, and included statements such as, “ ‘Have fun drinking wine with
your girlfriend in Mexico.’ ”

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 The trial court asked Jeffrey to address Lisa’s contention that she and
Jeffrey had had shared access to the “Foursquare app” until after the March
1 hearing, when she no longer had access. Jeffrey repeated that he had
“never checked in in Mexico” and “never checked in in Arizona,” and said that
he continued to be unsure as to how, even under Lisa’s claim of having
mutual access, she would have known of his whereabouts. Jeffrey again
stated that he “purposely do[es not] check in when [he’s] . . . in these other
locations just because it’s a point of habit.” Jeffrey indicated that “unless it’s
through some other app that [he’s] not aware of tracking his location,” he
does not “have a Foursquare app on [his] phone, and [he] never [has].”
The trial court reviewed the exhibits that Lisa contended demonstrated
that Jeffrey had “checked in” using the Foursquare application. The court
asked her at least twice how the exhibits that she had lodged with the court
“show . . . that Mr. Johnson checked in,” suggesting that the court was not
sure that the evidence demonstrated what Lisa believed it did. Lisa
specifically identified instances from 2019 and 2020 that she asserted showed
that Jeffrey had been at various locations, including a restaurant in La Mesa,
the San Clemente Pier, and the Old Globe Theater.
When asked how Lisa had access to “these locations,” Jeffrey stated,
“She got my password somehow, obviously on her phone, because it’s under
my account [Jeffrey’s e-mail address].” The court indicated that Lisa was
asserting that it was a “joint” account, and Jeffrey said that it was not, he
had never granted her access to that application, and that he “d[id not] know
where this is coming from.” Jeffrey repeated that he had never checked in on
an application when he was in Mexico or Arizona, and “so [he was] not sure
how she tracked [him] there . . . [t]hat’s what[ is] confusing to [him].”

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 At the conclusion of the hearing, the trial court stated that it had
reviewed Lisa’s submissions, as well as the parties’ testimony. The court
determined that Lisa had not demonstrated that her “request is based upon
any new or different facts, circumstances, or law.” The court explained to
Lisa, “As best as the Court understands your request it is more that you do
have a right to find out Mr. Johnson’s location when your children are
involved. The concern that the Court had in issuing the restraining order is
that Mr. Johnson has a right to his privacy as well as to not be harassed or
that his peace be disturbed. And the issue regarding you finding out where
he was when he wasn’t necessarily sharing that information [with] you --
that’s what the Court found that was weighty in finding that he had met his
burden by a preponderance of the evidence.” The court proceeded to deny
Lisa’s request for reconsideration.
III.
DISCUSSION
A. Lisa’s challenge to the trial court’s issuance of the DVRO
Although Lisa’s briefing is confusing and lacks coherent legal
arguments, we glean from the briefing that Lisa is challenging the sufficiency
of the evidence to support the trial court’s issuance of a DVRO against her,
and is also contending that the trial court prevented her from presenting
evidence of Jeffrey’s dishonesty.
1. Legal standards
“Under the DVPA, a court is authorized to issue a protective order ‘ “ ‘to
restrain any person for the purpose of preventing a recurrence of domestic
violence and ensuring a period of separation of the persons involved’ upon
‘reasonable proof of a past act or acts of abuse.’ ” ’ [Citations.] Abuse
includes ‘intentionally or recklessly caus[ing] or attempt[ing] to cause bodily

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injury’; ‘[s]exual assault’; ‘plac[ing] a person in reasonable apprehension of
imminent serious bodily injury to that person or to another’; and ‘engag[ing]
in any behavior that has been or could be enjoined’ under section 6320.
(§ 6203, subd. (a).) Behavior that may be enjoined under section 6320
relevant to this appeal includes ‘disturbing the peace of the other party’
(§ 6320, subd. (a)), which ‘may be properly understood as conduct that
destroys [another's] mental or emotional calm.’ [Citation.] ‘Thus, section
6320 provides that “the requisite abuse need not be actual infliction of
physical injury or assault.” ’ [Citation.]” (Curcio v. Pels (2020)
47 Cal.App.5th 1, 11 (Curcio), italics added.)
“The DVPA vests the court with discretion to issue a restraining order
‘simply on the basis of an affidavit showing past abuse.’ [Citation.] The
burden of proof is by a preponderance of the evidence. [Citations.] The
DVPA ‘confer[s] a discretion designed to be exercised liberally, at least more
liberally than a trial court’s discretion to restrain civil harassment generally.’
[Citation.]” (Curcio, supra, 47 Cal.App.5th at p. 11.) We therefore “review
the grant of a DVPA restraining order for abuse of discretion, and, to the
extent we are called upon to review the court’s factual findings, we apply the
substantial evidence standard of review.” (Id. at p. 12.) “In reviewing the
evidence, we examine the entire record to determine whether there is any
substantial evidence—contradicted or uncontradicted—to support the trial
court’s findings,” and “[w]e must accept as true all evidence supporting the
trial court’s findings, resolving every conflict in favor of the judgment.”
(Ibid.) A basic tenet of appellate review is that an appellate court does not
make credibility determinations or reweigh the evidence; if substantial
evidence supports the judgment, reversal is not warranted even if facts exist
that would support a contrary finding. (Ibid.)

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 2. Analysis
Although Lisa’s briefing on appeal lacks clarity, it is clear that she is
challenging the trial court’s finding that her conduct rose to the level of
“stalking or harassing” Jeffrey. She asserts that that “there is no substantial
evidence to support [the court’s] finding” in this regard.
We conclude that Lisa cannot demonstrate that there is insufficient
evidence to support the trial court’s findings. First, Lisa has not included in
the record on appeal all of the evidence that the trial court admitted and
considered with respect to Jeffrey’s request for a DVRO. In particular, as
noted, the record does not include the declarations that Jeffrey submitted to
the court in support of his request. “ ‘A judgment or order of the lower court
is presumed correct. All intendments and presumptions are indulged to
support it on matters as to which the record is silent’ ” (Rossiter v. Benoit
(1979) 88 Cal.App.3d 706, 712.) “It is the appellant’s affirmative duty to
show error by an adequate record.” (Osgood v. Landon (2005)
127 Cal.App.4th 425, 435.) “A necessary corollary to this rule [is] that a
record is inadequate, and appellant defaults, if the appellant predicates error
only on the part of the record he provides [in] the trial court, but ignores or
does not present to the appellate court portions of the proceedings below
which may provide grounds upon which the decision of the trial court could
be affirmed.” (Uniroyal Chemical Co. v. American Vanguard Corp. (1988)
203 Cal.App.3d 285, 302.) Lisa’s failure to provide this court with all
relevant evidence that the trial court considered requires that we presume
that those portions that Lisa failed to include on appeal would support the
trial court’s findings.
Despite Lisa’s failure to provide all of the evidence on which the trial
court relied in ruling on Jeffrey’s request for a DVRO, the record that Lisa

16
has provided on appeal contains substantial evidence to support the trial
court’s findings.
Although Lisa focuses on challenging whether her conduct in fact
amounted to “stalking” or “harassment,” it is clear that the trial court
concluded not only that Lisa had engaged in harassment, but also that she
had disturbed Jeffrey’s peace, which itself constitutes “abuse” under the
DVPA scheme. (See 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. This conduct may be committed directly or
indirectly, . . . and by any method or through any means including, but not
limited to, telephone, online accounts, text messages, internet-connected
devices, or other electronic technologies.” (§ 6320, subd. (c).) Lisa has not
addressed the court’s finding that she “destroy[ed] the mental or emotional
calm” of Jeffrey; a review of the testimony given at the hearing demonstrates
that the court relied on sufficient evidence in making its determination on
this point. The trial court clearly credited Jeffrey’s testimony with respect to
the issues about which he testified, and believed Jeffrey’s assertions that he
had not shared his locations through social media and that he had not shared
information with the parties’ daughter about purchasing certain plane
tickets. “[T]rial courts are in the best position to assess witness credibility”
and for this reason we must defer to a trial court’s credibility determinations.
(Doe v. Lee (2022) 79 Cal.App.5th 612, 621.) In particular, the trial court
relied on Jeffrey’s testimony that he had specifically tried to avoid sharing his
location with anyone, and, specifically, with Lisa. The testimony of a single
witness, if believed by the factfinder, constitutes substantial evidence to
support a finding. (In re Marriage of F.M. & M.M. (2021) 65 Cal.App.5th 106,

17
119 [“ ‘The testimony of one witness, even that of a party, may constitute
substantial evidence’ ”].)
In addition, Jeffrey’s testimony reasonably supports the conclusion that
Lisa’s actions had the effect of destroying his mental and emotional calm. He
testified that he had experienced “trauma” from Lisa’s repeated actions. His
testimony clearly indicated that he was unnerved by the fact that Lisa was
able to locate him when he thought that he had kept his whereabouts
confidential, and also by the fact that Lisa was repeatedly making hostile
comments to him about his travels. Further, although the trial court focused
much of its questioning on whether and to what extent Lisa had improperly
tracked Jeffrey, her repeated conduct in messaging, calling, and texting
Jeffrey with hostile commentary about his travels, as well as her accusations
that he was violating the custody order despite the fact that Lisa had agreed
to the schedule changes, provided additional grounds for the court’s issuance
of a DVRO. The court determined that Lisa’s conduct, in discovering Jeffrey’s
location and ensuring that she made him aware of the fact that she knew his
location, was having the effect of disturbing Jeffrey’s peace to such a degree
that the issuance of a DVRO was warranted. Jeffrey’s testimony at the
hearing provides sufficient evidence to support the trial court’s finding that
Lisa’s conduct, on the whole, destroyed Jeffrey’s sense of mental and
emotional calm.
Lisa also contends that the trial court “did not allow [her] to show
evidence of Jeffrey’s social media account,” and claims that if the court would
have permitted her “to present evidence of [Jeffrey’s] social media account
checking in to locations,” this “evidence would have caught Jeffrey in a lie.”
However, Lisa does not cite to the record to support her assertion that the
court precluded her from presenting any evidence. This court has

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independently reviewed the transcripts of the proceedings included in this
record and has found nothing that would support Lisa’s contention that the
trial court prevented her from presenting evidence. In fact, during the
hearing on Lisa’s motion for reconsideration, she presented documents that
she contended would demonstrate that Jeffrey in fact had the “social media
account” in question and that he had therefore lied to the court at the prior
hearing. The trial court not only considered those documents, but it engaged
with both Lisa and Jeffrey regarding those documents and the conclusions
that could be drawn from them. The court ultimately concluded that the
evidence that Lisa presented was insufficient to cause the court to change its
determination with respect to the DVRO. There is nothing in the record that
indicates that the court prevented Lisa from “show[ing]” her evidence or
attempting to demonstrate that Jeffrey had been dishonest at the prior
hearing. We therefore reject Lisa’s assertion that the trial court prevented
her from fully presenting the evidence in her possession that was relevant to
Jeffrey’s credibility or to the issues addressed in the DVRO matter.
In sum, Lisa has failed to demonstrate that the court erred in issuing a
DVRO protecting Jeffrey, either by making findings unsupported by
substantial evidence, or by unfairly limiting the evidence that Lisa was
permitted to submit.
B. Lisa’s request for judicial notice and lodgment of evidence in this court
On May 27, 2022, the same date on which Lisa filed her reply brief, she
submitted two sets of documents in this court. The first is a request for
judicial notice, pursuant to which Lisa seeks to have this court take judicial
notice of an order filed by a judge of the San Diego County Superior Court in

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Lisa and Jeffrey’s martial dissolution action.12 The order was entered and
filed by the trial court on March 11, 2022—i.e., almost a year after the trial
court held the hearing on Jeffrey’s request for a DVRO and issued the ruling
at issue in this appeal. “ ‘Reviewing courts generally do not take judicial
notice of evidence not presented to the trial court’ absent exceptional
circumstances.” (Haworth v. Superior Court (2010) 50 Cal.4th 372, 379,

fn. 2.)13 Lisa has offered no exceptional circumstances that would warrant
our consideration of this document, and we find none.
In any event, the court order is not relevant to our resolution of this
appeal. (See 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”].) Lisa offers the document in an
attempt to call into question Jeffrey’s credibility as to his testimony
regarding the need for the DVRO; in other words, Lisa believes that the order
provides evidence of Jeffrey’s dishonesty. However, on appeal, we do not
make independent assessments of credibility or weigh evidence (See, e.g.,
In re Caden C. (2021) 11 Cal.5th 614, 640 [a reviewing court does not reweigh

12 The proceeding resulting in the order for which Lisa seeks judicial
notice by this court was presided over by a judge other than the judge who
presided over the DVRO proceeding at issue in this appeal.

13 “It has long been the general rule and understanding that ‘an appeal
reviews the correctness of a judgment as of the time of its rendition, upon a
record of matters which were before the trial court for its consideration.’
[Citation.] This rule reflects an ‘essential distinction between the trial and
the appellate court . . . that it is the province of the trial court to decide
questions of fact and of the appellate court to decide questions of law . . . .’
[Citation.] The rule promotes the orderly settling of factual questions and
disputes in the trial court, provides a meaningful record for review, and
serves to avoid prolonged delays on appeal.” (In re Zeth S. (2003) 31 Cal.4th
396, 405 (Zeth S.).)
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evidence, evaluate the credibility of witnesses, or resolve conflicts in the
evidence]); rather, our role is to determine whether there is substantial
evidence in the record before the trial court to support the trial court’s
findings. This court therefore has no occasion to consider and/or weigh the
findings made by a different judge in a separate, subsequent proceeding in
this matter. Because the order of which Lisa seeks judicial notice is not
relevant to our review of the trial court’s DVRO ruling, we decline to take
judicial notice of it.
The second set of documents that Lisa submitted on May 27, 2022 is a
lodgment of exhibits. This court is unable to ascertain definitively from the
appellate record whether any or all of these documents were lodged in the
trial court; the mere lodging of evidentiary exhibits directly in this court does
not render those documents (a) part of the record in this court or

(b) appropriate for consideration by this court.14
“As a general rule, documents not before the trial court cannot be
included as a part of the record on appeal.” (Doers v. Golden Gate Bridge etc.
Dist. (1979) 23 Cal.3d 180, 184.) However, in rare circumstances, a reviewing
court may take new evidence on appeal: “ ‘Although appellate courts are
authorized to make findings of fact on appeal by Code of Civil Procedure
section 909 and rule [8.252(b)] of the California Rules of Court, the authority
should be exercised sparingly. [Citation.] Absent exceptional circumstances,

14 Some of the documents appear to be similar to exhibits mentioned in
the reporter’s transcript from the hearing on Lisa’s motion for
reconsideration and the RFO modifying the DVRO held on May 13, 2021.
Others do not appear to be mentioned in the transcript. With respect the
documents that seem to resemble documents mentioned by the court or
parties in the reporter’s transcript, this court has not been presented with
sufficient information to ascertain whether these documents are, in fact, the
same documents that Lisa lodged as exhibits in the trial court.
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no such findings should be made.’ ” (Zeth S., supra, 31 Cal.4th at p. 405.)
“The power [of an appellate court to make findings of fact] created by the
statute is discretionary and should be invoked sparingly, and only to affirm
the case.” (Golden West Baseball Co. v. City of Anaheim (1994)
25 Cal.App.4th 11, 42.)
To the extent that Lisa is requesting that this court take new evidence
that is not in the record on appeal, California Rules of Court, rule 8.252
requires that a party “move that the reviewing court take [new] evidence”
(italics added). In other words, a party to an appeal must file a motion that
complies with the general rules for motions made on appeal (see Cal. Rules of
Court, rule 8.54 [setting out rules for motions made on appeal]) in order to
request that a reviewing court take new evidence. Lisa has not filed a motion
requesting that this court take and admit new evidence, nor has she complied
in substance with the requirements associated with the making of a motion
on appeal (see rules 8.54(a)(1) [party “must serve and file a written motion
stating the grounds and the relief requested and identifying any documents
on which the motion is based”] and 8.54(a)(2) [“motion must be accompanied
by a memorandum and, if it is based on matters outside the record, by
declarations or other supporting evidence”]). Given the lack of compliance
with these important procedural requirements, we decline to accept or
consider the documents that Lisa has lodged as exhibits in this court.
Moreover, even if Lisa had followed the procedural rules for requesting
that this court take new evidence, there is no indication in the record that the
taking of such evidence would be proper under the circumstances presented.
“The power to take evidence in the Court of Appeal is never used where there
is conflicting evidence in the record and substantial evidence supports the
trial court’s findings.” (Philippine Export & Foreign Loan Guarantee Corp. v.

22
Chuidian (1990) 218 Cal.App.3d 1058, 1090.) This is because such “[new]
evidence normally must enable the Court of Appeal to affirm the judgment,
not lead to a reversal.” (Ibid.) In this case, the parties presented conflicting
evidence in the trial court, and as we have explained, there is substantial
evidence in the record to support the trial court’s factual findings. In such
circumstances, it is not proper for this court to take and consider new

evidence proffered on appeal.15
IV.
DISPOSITION
The order of the trial court is affirmed.

AARON, J.

WE CONCUR:

MCCONNELL, P. J.

DATO, J.

15 To the extent that Lisa believes that trial court order that is the subject
of her request for judicial notice in this court or the documents that she has
lodged in this court constitute new evidence that would warrant the
termination of the DVRO, she may file a motion in the trial court to
terminate the DVRO and submit the evidence to the trial court in support of
that motion. (See § 6345, subd. (a) [a DVRO is “subject to termination or
modification by further order of the court either on written stipulation filed
with the court or on the motion of a party” (italics added)].) However, to the
extent that any of the lodged documents are the same documents that were
previously presented to the trial court but have not been identified as such
and properly included in the record on appeal, the documents clearly would
not support the termination of the DVRO, given that such evidence would
have been considered and weighed by the trial court in the proceedings that
form the basis of this appeal.
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