S.S. v. B.S. CA1/5

Opinion

Filed 8/24/26 S.S. v. B.S. CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

S.S., A173968 Plaintiff and Respondent, v. (Alameda County Super. Ct. No. 25FL119124) B.S., Defendant and Appellant.

B.S. (Father) appeals from the trial court’s order granting the request of S.S. (Mother) for a domestic violence restraining order (DVRO) under the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.).1 We modify the order to remove an additional protected person, and otherwise affirm. BACKGROUND Father and Mother are former romantic partners with shared custody of their two minor children. In April 2025, Mother filed a request for a DVRO.2 Mother’s request stated, “I have been separated from [Father] since 1 All undesignated statutory references are to the Family Code.

2 Mother and Father both appeared in propria persona below, as they do on appeal.

1 December 2011 . . . . Since then, it has been a constant struggle to get him to leave me alone.” Mother explained, “At public events, especially our children’s sports games, [Father] purposely walks near me to make contact or mumbles words like ‘gross,’ ‘liar,’ or ‘stupid’ ”; “He taunts and belittles me, especially when no one is around”; and “He’s even followed me to school drop- offs, which the school staff reported as concerning.” Mother’s request identified four specific alleged incidents in the previous year. The trial court granted a temporary restraining order and set a hearing. Father filed a response opposing Mother’s request. Father included a statement that “[Mother] has made repeated attempts to alter custody and alienate me from our children. I believe this is an effort to interfere with our existing custody orders and gain an improper advantage in our co-parenting arrangement.” (Boldface omitted.) At the evidentiary hearing, Mother, Mother’s partner, and Father testified. Mother confirmed that everything in her DVRO request was accurate, and responded to the court’s questions about the four recent incidents. As to two of the incidents, Mother’s testimony indicated she was not personally present and the court excluded her testimony about these incidents as hearsay. Mother’s partner was present for one of these incidents and testified about it. Father also testified about the recent incidents. At the conclusion of the hearing, the court granted Mother’s request and issued a two-year DVRO protecting Mother and Mother’s partner. DISCUSSION I. Due Process Father first argues the conduct of the hearing was fundamentally unfair and therefore violated his right to due process. We disagree.

2 Father argues the trial court’s questioning of the witnesses was improper. “Whenever the court receives live testimony from a party or any witness it may elicit testimony by directing questions to the parties and other witnesses.” (Cal. Rules of Court, rule 5.113(g); see also Evid. Code, § 775 [“The court, on its own motion or on the motion of any party, may call witnesses and interrogate them the same as if they had been produced by a party to the action”].) The fact that the court questioned witnesses was not improper. Father also argues certain of the court’s questions or comments were improper for various reasons, but the cited pages of the reporter’s transcript do not reveal any improper conduct by the court. Father contends, with respect to a letter he attached to his written response, that the court “did not admit the letter into evidence, did not permit testimony regarding its contents, and did not address it in its ruling.” Father has not established that he sought admission of the letter, requested the opportunity to testify about it or ask questions about it, or objected to its omission from the court’s ruling. He has forfeited the claim. (Doe WHBE 3 v. Uber Technologies, Inc. (2024) 102 Cal.App.5th 1135, 1152 [“ ‘ “issues not raised in the trial court cannot be raised for the first time on appeal” ’ ”].) Father also argues the court “repeatedly curtailed [his] ability to testify and respond,” but the cited pages of the reporter’s transcript do not support this claim. Indeed, at the conclusion of Father’s testimony, the court asked “if either party has anything else that they want the Court to know,” and Father expressly declined the invitation. Finally, Father’s complaints about the court’s ruling do not establish any improper conduct. In sum, Father has shown no violation of his due process rights. In re Marriage of Carlsson (2008) 163 Cal.App.4th 281, relied on by Father, is 3 easily distinguishable. (See id. at p. 284 [due process right to a fair hearing violated where “the family law judge suddenly declared an end to the trial before the husband had finished putting on his case-in-chief”].) II. Evidentiary Ruling Father argues the court violated evidence rules and denied him a fair hearing with respect to one of the incidents alleged in Mother’s DVRO request. We disagree. In her written request, Mother described an incident in which Father “arm-check[ed]” Mother’s partner. During Mother’s testimony, the court asked whether Mother was present for this incident and Mother testified she was not. The court ruled that the incident would “be excluded for your lack of personally witnessing that incident.” Mother then stated that her partner was present outside the courtroom in order to testify about the incident, and the court permitted Mother to call him as a witness and he testified about the incident. Father argues the court “nullif[ied] its own exclusionary ruling.” Not so. The court properly excluded hearsay testimony about the incident from Mother and properly allowed nonhearsay testimony about it from Mother’s partner. Father has shown no error or improper conduct. III. Substantial Evidence “We review the grant or denial of a request for a DVRO for abuse of discretion.” (In re Marriage of Davila and Mejia (2018) 29 Cal.App.5th 220, 226 (Davila).) “ ‘ “To the extent that we are called upon to review the trial court’s factual findings, we apply a substantial evidence standard of review.” ’ ” (Ibid.) Father disputes the court’s characterization of Mother’s description of two incidents as “described in very specific detail.” Father argues Mother’s 4 narrative testimony was not detailed, but the court’s full finding was that Mother “described in very specific detail not only in her DV-100 [DVRO request form] but also confirmed by her testimony in court today.” The DVRO request form and Mother’s testimony provide ample evidence to support this finding. Father argues the court failed to clarify which of two April 16, 2025 encounters it was referring to in its ruling. Given that Mother expressly disclaimed that one of the encounters was abusive, we may easily infer that the court was referring to the other one when it described “the specific abuse that [Mother] alleged that occurred on April 16th, 2025.” Father contends no evidence established any physical contact with Mother. DVRO’s may be issued for “disturbing the peace of the other party,” which is defined as “conduct that, based on the totality of the circumstances, destroys the mental or emotional calm of the other party.” (§§ 6320, subds. (a) & (c), 6203, subd. (a).) Evidence of physical contact was not required to support the order. Father challenges the court’s order, as part of the DVRO, that Father attend a “batterer intervention program.” The order was authorized by statute and Father has shown no abuse of discretion. (§ 6343, subd. (a) [“the court may issue an order requiring the restrained party to participate in a batterer’s program”]; Davila, supra, 29 Cal.App.5th at p. 226.) Finally, Father argues the inclusion of Mother’s partner as a protected person is not supported by substantial evidence. On this issue, we agree. DVROs may additionally protect, “on a showing of good cause, . . . other named family or household members.” (§ 6320, subd. (a).) Mother’s DVRO request identified her partner as her “boyfriend” and stated they do not live 5 together. No testimony provided otherwise. Mother’s partner is therefore not eligible for protection from Father by a DVRO. DISPOSITION The order is modified to remove Mother’s partner as a protected person and, as so modified, is affirmed. The parties shall bear their own costs on appeal.

SIMONS, Acting P. J.

We concur. BURNS, J. CHOU, J.

(A173968)