IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Placer
March 25, 2011
IN RE THE MARRIAGE OF JAYRAJ AND BINDU NAIR. JAYRAJ NAIR, APPELLANT,
BINDU NAIR, RESPONDENT.
Super. Ct. No. SDR0026925
The opinion of the court was delivered by: Raye , P.J.
Marriage of Nair CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Since February 2006 Jayraj Nair (father) and Bindu Nair (mother) have engaged in a nonstop, acrimonious battle for custody of their two children. This is the fifth time that father has asked us to review family court rulings concerning the children. (See Nair v. Superior Court (Mar. 11, 2010, C064338) [summary denial of petition for writ of mandate] (Nair IV)); In re Marriage of Nair (June 10, 2010, C061097 & C062004) [nonpub. opns.] (Nair III)); In re Marriage of Nair (Dec. 29, 2009, C059661) [nonpub. opn.] (Nair II)); Nair v. Superior Court (May 28, 2009, C061761) [summary denial of petition for writ of mandate].)
Father is currently subject to a restraining order issued against him under the Domestic Violence Prevention Act (DVPA). (Fam. Code, § 6200 et seq.)*fn1 The restraining order originally issued in March 2009 to prohibit father from making any direct or indirect contact with mother and the children for a period of one year. We affirmed the validity of the original restraining order in Nair III (June 10, 2010, C061097 & C062004).
While the appeal in Nair III was pending, father sought to engage in discovery to undermine the credibility of Janelle Burrill, Ph.D. Dr. Burrill's testimony constituted a large part of the evidence relied upon by the trial court in issuing the DVPA restraining order. Shortly after we affirmed the restraining order, mother moved for a renewal of the restraining order. The trial court granted the motion and renewed the restraining order for three years.
Father appeals, contending (1) the trial court denied him due process by precluding him from conducting discovery, (2) his due process rights were further undermined when the trial court denied him an evidentiary hearing prior to extending the DVPA restraining order, and (3) insufficient evidence supports the three-year extension of the restraining order.
Mother argues that the order denying father's discovery motions is non-appealable. Thus, she urges us to limit our review to the validity of the DVPA restraining order's renewal.
We shall conclude that father's notice of appeal allows for review of both the denial of his discovery motions as well as the order renewing the DVPA restraining order. However, we deem father to have forfeited his claim of error with respect to his discovery motions because he has failed to properly present the argument. As to father's argument that he was wrongly denied an evidentiary hearing prior to the renewal of the DVPA restraining order, we conclude that the contention has merit. Denial of an evidentiary hearing does not allow a person who is potentially subject to a multi-year restraining order to fairly question the admissibility, credibility, and weight of evidence proffered in support of the restraining order. Renewal of a DVPA restraining order requires more than the opportunity to file written declarations in support of a party's position. Accordingly, we shall reverse and remand the matter for an evidentiary hearing on mother's request to renew the DVPA restraining order.
FACTUAL AND PROCEDURAL HISTORY
In setting forth the factual and procedural history of this case, we draw in part on the recitation of facts and procedure as recounted in our unpublished opinion in Nair III (June 10, 2010, C061097 & C062004), of which we take judicial notice. (Evid. Code, §§ 451, 452, subds. (a) & (d), 459.)
In February 2006 father petitioned for dissolution of marriage. In February 2008 trial was conducted on the issues of custody and visitation of the children (one born in 1996, the other in 2003). In March 2008 the court issued a ruling in which it awarded the parents joint legal custody and found that the long-term best interests of the children required joint physical custody. However, the older child's alienation from his mother required therapy to repair that relationship. The ruling after trial was served on April 1, 2008. Within weeks, father and mother filed new motions regarding issues of custody and visitation.
On May 29, 2008, mother filed a motion to remove the older child from father's custody. On June 9, 2008, the trial court denied the motion without prejudice and noted: "The proper remedy for enforcement of the court's orders is an [order to show cause] in re contempt; removal of [the older child] from father's custody is within the jurisdiction of county counsel's office by way of a Welfare and Institutions Code section 300 proceeding."
On February 10, 2009, an ex parte hearing was held on mother's request for emergency orders to prevent contact with her and the older child by father. The next day, the court issued sua sponte a temporary restraining order and scheduled a hearing on a DVPA restraining order for March 2, 2009.
Father was served with the temporary restraining order during a hearing on February 20, 2009. While father was in court during the hearing, the older child was taken in handcuffs from father's home and placed in the Sutter Center for Psychiatry in Sacramento. He was disallowed from having any contact with his father, teachers, friends, or neighbors. He remained at the psychiatric facility until March 3, 2009, when he was released to his mother.
On March 10, 2009, father and mother attended a hearing on the request for a permanent DVPA restraining order. Mother testified that father was physically abusive toward her in 1996 and 1997. During 1996 father kicked the older child. Mother also reported that the younger child told a therapist that father threatened to kill or hurt her. Mother testified that father's anger issues caused her to fear for her safety and the safety of the children.
During the hearing, mother called Dr. Janelle Burrill, who had been appointed by the court to serve as a reunification therapist. Dr. Burrill testified that the younger child reported a threat by father to kill mother. Dr. Burrill also testified that she believed father remained a threat to mother's safety, lacked impulse control, suffered unstable moods, lacked empathy, and exhibited sociopathic behaviors. Mother also introduced Dr. Burrill's supplemental reunification report, dated February 6, 2009. The report stated, "I usually do not find many allegations of domestic violence in Family Law to be valid, particularly at the time of dissolution. In this case, I have witnessed behaviors of the person Mother and Minor lived with and they are not normal and anyone could be at risk who gets in his way. Father presents a serious risk of physical harm to Mother and to [the older child] and probably [the younger child, if he has contact. After all Father has told both Minors mom is to be killed."
On March 13, 2009, the court granted mother's request, and a DVPA restraining order was filed on March 25, 2009. The order prohibited father from having any contact with mother or the older child for a period of one year. Father was allowed supervised visitation of the younger child.
An attachment to the restraining order notes, "The evidence on which the court relies is contained in the reports of Dr. Burrill and the comments of other court-appointed therapists in this case, as well as the following evidence: testimony of Kelly Graham regarding the child's extreme reaction to mother's presences on the child's school campus; evidence of father not fully complying with court orders reflecting lack of commitment to engage in the counseling and reunification program laid out by the court; evidence of father's desire to control things by taking [the older child] to an unauthorized therapist, by using father's own doctor for a psychiatric evaluation instead of relying on neutral court evaluators, by extremely inappropriate conduct in having [the older child] pay for his own counseling sessions, and by evidence that father has not undertaken any supervised visitation with [the younger child]. [¶] . . . [¶] The court reaffirms that it is not in the best interests of [the older child] for father to have any contact at this time. The court finds that contact between father and [the older child] will substantially undermine the therapeutic efforts that are being undertaken. The court clearly finds that contact by father with [the older child] is not in the child's best interests. The court further finds that it would be detrimental to [the older child's] interests if contact by father with [the older child] was allowed."
Father appealed the DVPA restraining order, which we affirmed on June 10, 2010.
Order denying father's discovery motions
While the appeal challenging the original issuance of the DVPA restraining order was pending, father sought to conduct discovery aimed primarily at discrediting Dr. Burrill. To this end, father filed motions to require Dr. Burrill to answer certain questions at deposition and produce certain documents, impose sanctions on her, compel the release of a clandestinely made recording made by the older child during a session with Dr. Burrill, and to remove her as the older child's reunification counselor. In addition, father sought orders requiring a psychological evaluation of the older child and appointing counsel for the minor.
Mother opposed father's motions and brought a number of her own motions to quash subpoenas for records issued by father; strike an improperly noticed deposition of Dr. Blanco; prohibit further depositions of Drs. Burrill, Blanco, and Mehtani; and to stay all further discovery related to the DVPA restraining order.
Mother and father also sought sanctions against each other.
Following a hearing on October 27, 2009, the trial court denied father's discovery motions. The court granted mother's motions to strike Dr. Blanco's deposition; prohibit further depositions of Drs. Burrill, Blanco, and Mehtani; quash the subpoenas for records issued by father; stay further discovery regarding the DVPA restraining order; and to seal the recording of the older child's therapy session in the court's file.
Father filed a notice of appeal specifying the order issued after the hearing on the discovery motions.
Order extending DVPA restraining order for three years
Three days after the trial court issued its ruling on the parties' discovery motions, mother moved for renewal of the DVPA restraining order. During a short cause hearing, conducted on February 11, 2010, father repeatedly requested an evidentiary hearing. The court denied father's request for an evidentiary hearing and renewed the DVPA restraining order for three years.
Father also appeals the renewal of the DVPA restraining order.
I Appealability of order on father's discovery motions
At the outset, we address mother's argument that father cannot appeal the order denying his discovery motions. Although mother concedes the appealability of the renewed DVPA restraining order, she denies that this court has jurisdiction to review the rulings on the parties' prior discovery motions. As we shall explain, father's appeal of the renewed DVPA restraining order encompasses the antecedent order on his discovery motions.
In California, a party's right to appeal an adverse decision by the trial court is conferred exclusively by statute. (Powers v. City of Richmond (1995) 10 Cal.4th 85, 109.) Consequently, a statutorily unauthorized appeal must be dismissed for lack of jurisdiction. (In re Marriage of Lafkas (2007) 153 Cal.App.4th 1429, 1434.) Code of Civil Procedure section 904.1 constitutes the primary grant of statutory authorization to appeal from a decision of the superior court. Under section 904.1, an appeal lies from a final judgment, an order after judgment, a grant of injunction, and from various other orders not applicable to this case. (Code Civ. Proc., § 904.1, subds. (a)(1), (2) & (6).)
However, "[a]n order denying a party utilization of a discovery proceeding is not directly appealable . . . ." (Carlson v. Superior Court (1961) 56 Cal.2d 431, 435.) Instead, "review on appeal [lies] from such final order or judgment as may be made in the proceeding . . . ." (Id. at pp. 435-436; see also Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185 & fn. 4.) To this end, Code of Civil Procedure section 906 provides: "Upon an appeal pursuant to Section 904.1 or 904.2, the reviewing court may review the verdict or decision and any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party . . . ." (Italics added.)
As we have already noted, mother does not dispute that father has properly appealed the February 25, 2010, order granting a three-year extension of the DVPA restraining order. The renewed restraining order is appealable as from an order granting an injunction. (Code Civ. Proc., § 904.1, subd. (a)(6); Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1502, fn. 9.) Preceding this appealable order was the trial court's order regarding discovery. No interim appealable order separated the order concerning discovery and the renewal of the restraining order. Thus, the order regarding discovery is reviewable as part of father's appeal of the later-issued DVPA restraining order. (Barton v. Ahmanson Developments, Inc. (1993) 17 Cal.App.4th 1358, 1360.)
Mother contends the rule allowing for review of interim orders upon appeal from a later appealable order or judgment does not apply to this case because the discovery father sought was irrelevant to the renewal of the restraining order. We disagree.
The trial court's order on the parties' discovery motions immediately preceded mother's request to renew the restraining order, and it governed father's ability to marshal evidence in opposition to mother's request. At the hearing on the request to renew the restraining order, father's counsel noted his inability to depose the older child or Dr. Burrill. Thus, the evidence father could offer in opposing the renewal request was directly implicated by the restrictions on discovery imposed two days prior to mother's request for renewal. Being constrained by the order regarding discovery in opposing the DVPA renewal, father's appeal from the renewed restraining order encompasses the trial court's rulings on the discovery motions.
II Whether father was denied due process in being denied the opportunity to conduct discovery
Father contends that "the court's denial of discovery was a denial of due process." In support of the argument, father offers no analysis of why his discovery motions were erroneously denied. Instead, father simply asserts that the trial court prohibited father from conducting discovery. His argument is unaccompanied by any citation to authority.*fn2
We deem the argument to be forfeited for lack of analysis as to how the trial court erred in ruling on the discovery motions and for failure to cite any legal authority. "To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239, fn. 16 . . . ; In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672-673, fn. 3 . . . .) When a point is asserted without argument and authority for the proposition, 'it is deemed to be without foundation and requires no discussion by the reviewing court.' (Atchley v. City of Fresno [(1984)] 151 Cal.App.3d [635,] 647; accord, Berger v. Godden [(1985)] 163 Cal.App.3d [1113,] 1117 ['failure of appellant to advance any pertinent or intelligible legal argument . . . constitute[s] an abandonment of the [claim of error'].)" (In re S.C. (2006) 138 Cal.App.4th 396, 408.) Here, father's legally unsupported and conclusory argument fails to properly tender the issue for review.
III Whether father was denied due process for lack of an evidentiary hearing prior to renewal of the DVPA restraining order
Father contends the trial court denied him due process by renewing the DVPA restraining order without affording him the evidentiary hearing he repeatedly requested. The contention has merit.
At the hearing on mother's request for renewal of the DVPA restraining order, her attorney argued: "Since . . . the issuance of the [DVPA restraining order] by Judge Couzens, Mr. Nair has not undertaken any of the corrective action steps that are part of the court's orders. That includes a psychiatric assessment, it includes psychotherapy and a variety of intermediate steps to undertake so that the court could become assured that the problems that Mr. Nair has which have caused or participated in this emotional abuse of mother and the children are being remedied. He has done none of that."
Mother's counsel argued that there was evidence showing the necessity for renewing the restraining order. Counsel noted, "In this case, mother has put forth by declaration and she is here in court today for further inquiry by the court, if it so desires." Counsel asserted that mother's declaration established that father undertook indirect contact with the older child during the time when the DVPA restraining order was in effect. Mother's counsel also referred to a declaration indicating that father failed to meet with the psychiatrist appointed by the court to conduct a psychiatric evaluation. Mother's counsel argued that "[w]hat [indirect contact with the older child] does, and this has been referenced in various declarations throughout this year, is this child is put back emotionally every time something like this happens." Mother's counsel asserted, "even today, in response to an [order to show cause] regarding the restraining orders, he has chosen not to appear."
Mother's counsel urged the court to strike a declaration by father for lack of proper signature. She concluded, "So I submit, your Honor, that the evidence mother has put forth of her apprehension that father is a ticking time bomb, if you will, of ongoing emotional problems without any medical intervention or help is more than sufficient reason on a preponderance standard to grant her motion to renew these orders [sic] and we ask the court to do so permanently . . . ."
Father's counsel responded that mother had no reasonable apprehension or fear of father. He further asserted that father had undergone a psychiatric evaluation, albeit by the psychiatrist he chose. Father's counsel asserted: "[W]e would ask for a contested evidentiary hearing to show that there is a change of circumstance." In response to mother's charge that father had not bothered to show up at the hearing, counsel represented that father had come from Oregon and probably could be available that morning.
Father's counsel reiterated his request for an evidentiary hearing: "What I am urging most today is that the court allow an evidentiary hearing. I believe that some things can't be shown by affidavit. For example, while though there wasn't enough time in the interval, between the notice and the hearing to get a declaration from a psychiatrist, even had we objected, because while the psychiatrist may give his or her opinion in a declaration, they can't establish that they are qualified by a declaration and be considered as an expert by the court, so we believe that an evidentiary hearing is required."
No oral testimony on behalf of any party was admitted before the trial court ruled as follows: "The court is going to strike the declaration [of father]. However, even if I considered the declaration, the court is going to grant the request to extend the restraining order for a period of three years from today's date unless modified by further order of the court.
"Now, that does mean, and I agree with the characterization of what Judge Couzens may have said, that the father does have the right to appear back before the court and to demonstrate that there has been a change of circumstances warranting a review of the restraining order, but he has to present evidence; and so, in looking at his declaration, the court does not find any persuasive evidence that there is anything new and different with respect to the father's position in this case.
"And so for that reason, I am denying his request for an evidentiary hearing because even if I consider his declaration, he has not said anything in the declaration about what he has done new and differently, other than he has said that he hasn't violated the restraining order.
"I am also concerned about the fact that, in light of the history of this case and the findings of Judge Couzens, which was based in large measure, I think, on consideration of the testimony of Dr. Burrell [sic] about the emotional abuse which justified the restraining order, that there has been a continued pattern, as counsel characterizes, of reaching out and touching, and in light of the emotional abuse and the effects that that has had on the child, this does give the court concern.
"I am going to issue an order today that there is to be no contact with minor, whether it be by father or by others on behalf of father for purposes of conducting discovery, in the absence of getting a preliminary order from the court, so I am not saying that there cannot ever be a deposition of this child, that there cannot ever be an evaluation of this child but it must come to court, and that applies to both parents; and so before either counsel can have that child subjected to a deposition, to be involved with any kind of documents, in the best interests of this child, I am going to order that there be a preliminary order from the court.
"And so the restraining order will be for three years from today's date unless modified by further order of the court. I am denying the request for an evidentiary hearing."
Renewal of DVPA restraining orders is governed by section 6345.*fn3 The statutory construction of section 6345 was addressed in Ritchie v. Konrad (2004) 115 Cal.App.4th 1275 (Ritchie). Ritchie involved an order granting renewal of a DVPA restraining order. The appellate court reversed the renewal of the restraining order on grounds that the trial court erroneously concluded that renewal was required upon mere request of a protected party. (Id. at p. 1284.) Ritchie held that when the restrained party contests the extension, "[a] trial court should renew the protective order, if, and only if, it finds by a preponderance of the evidence that the protected party entertains a 'reasonable apprehension' of future abuse." (Id. at p.1290.)
The Ritchie court explained that when the respondent contested the renewal of the restraining order, "the court should have considered evidence tendered by both sides and determined whether Ritchie's expressed fear of future abuse was genuine and also reasonable." (Ritchie, supra, 115 Cal.App.4th at p. 1282.) In so holding, the court noted, "The legislative history of section 6345 tends to reinforce the view a contested extension requires an inquiry into the probability future abuse will occur unless the court renews the protective order." (Ritchie, at p. 1287.)
In assessing the potential for future harm, "the mere existence of a protective order, typically issued several years earlier, seldom if ever will provide conclusive evidence the requesting party entertains a 'reasonable apprehension' of future abuse of any kind should that order expire. But the existence of the initial order certainly is relevant and the underlying findings and facts supporting that order often will be enough in themselves to provide the necessary proof to satisfy that test." (Ritchie, supra, 115 Cal.App.4th at p.1291.)
Even so, the restrained party is entitled to adduce evidence addressing whether there are "significant changes in the circumstances surrounding the events justifying the initial protective order. For instance, have the restrained and protected parties moved on with their lives so far that the opportunity and likelihood of future abuse has diminished to the degree they no longer support a renewal of the order? Or have there been no significant changes or even perhaps changes that enhance the opportunity and possibility of future abuse?" (Ritchie, supra, 115 Cal.App.4th at p. 1291.)
In presenting evidence to oppose renewal of a DVPA restraining order, the trial court may not bar the restrained person from introducing witness testimony. (Ross v. Figueroa (2006) 139 Cal.App.4th 856, 865 (Ross).) The Ross court reversed the renewal of a DVPA restraining order after the restrained person was not given the opportunity to adduce oral testimony prior to the renewal. (Id. at pp. 865-866.) As the Ross court explained, the lack of an evidentiary hearing with oral testimony failed to comport with the restrained person's due process rights. (Ibid.) Because Ross involved the informal proceedings often conducted when all parties are self-represented, the appellate court admonished that "the referee should have advised [respondent] he could provide oral testimony . . . ." (Id. at p. 866.) As the Ross court noted, respondent "certainly could have testified himself and raised questions to be posed to Ross, had the referee advised him of his right to do so." (Ibid.)
Here, both mother and father were represented by legal counsel who acted zealously to protect the rights of their clients. Nonetheless, father's due process rights entitled him to an evidentiary hearing in which he could present oral testimony and documentary evidence in opposition to mother's renewal request. (Ross, supra, 139 Cal.App.4th at p. 866.)
Because DVPA restraining orders may be renewed "permanently," father faced the possibility that he would be deprived of any contact with the children during their childhood years. (§ 6345, subd. (a).) Mother actually requested that the restraining order be renewed permanently. The prospect of a permanent renewal reinforces the conclusion that father's due process rights encompassed the right to an evidentiary hearing prior to the renewal of the restraining order. In the context of a due process challenge based on exclusion of witness testimony from a dependency review hearing, this court noted that "[a]long with the important requirement of providing proper notice of such a hearing, the right to present evidence, and to cross-examine adversarial witnesses, i.e., the right to be heard in a meaningful manner, are the minimum. (In re Matthew P. (1999) 71 Cal.App.4th 841, 851 . . . ; In re Crystal J. (1993) 12 Cal.App.4th 407, 412 . . . , see also In re Malinda S.  51 Cal.3d [368,] 383, fn. 16.) 'A meaningful hearing requires an opportunity to examine evidence and cross-examine witnesses . . . .' (In re Crystal J., supra, at p. 413.)" (In re James Q. (2000) 81 Cal.App.4th 255, 265.) "Moreover, parties in civil proceedings have a due process right to cross-examine and confront witnesses." (Id. at p. 263, citing In re Malinda S. (1990) 51 Cal.3d 368, 383, fn. 16.) We find the same due process minimum protection applicable here, where father was potentially deprived of any contact with the children during their minority.
When a party is entitled to an evidentiary hearing, a court may not substitute declarations for the testimony of witnesses. As the California Supreme Court noted, in a case in which the trial court "called for the admission of declarations in lieu of direct testimony at trial," "[i]t is well established . . . that declarations constitute hearsay and are inadmissible at trial . . . ." (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1354 (Elkins).) As the Elkins court went on to explain, "Permitting oral testimony rather than relying upon written declarations also is consistent with the historically and statutorily accepted practice of conducting trial by means of the oral testimony of witnesses given in the presence of the trier of fact. (See Evid. Code, §§ 711, 780; Code Civ. Proc., §§ 2002, 2005.) The conclusion we reach also permits us to avoid the difficult question whether the local rule and order violate petitioner's right to due process of law . . . ." (Elkins, supra, 41 Cal.4th at p. 1357.) Accordingly, the trial court in this case erred in denying father's request for an evidentiary hearing.
Of course, father's entitlement to an evidentiary hearing does not undermine the trial court's prerogative to manage discovery or to safeguard the witnesses from abuse or harassment. (Save Open Space Santa Monica Mountains v. Superior Court (2000) 84 Cal.App.4th 235, 245-246; Evid. Code, § 765, subd. (a) ["The court shall exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and to protect the witness from undue harassment or embarrassment."].)*fn4
Even though we reverse the renewal of the restraining order, as was the case in Ross, "we are not inclined to immediately dissolve the current protective order. . . . This is not a case where we are reversing because we found the moving party's evidence inadmissible or insufficient to support an order. Rather we are reversing to allow the responding party the . . . hearing to which he was statutorily entitled at which he is offered the opportunity to dispute the moving party's claims and evidence. Accordingly, we will leave the protective order in force until  days after issuance of this court's remittitur. During that time, we expect the court to hold a hearing on whether that order should extend further into the future . . . ." (Ross, supra, 139 Cal.App.4th at p.868.)
The judgment is reversed and the cause remanded to the trial court with instructions to conduct an evidentiary hearing within 60 days after issuance of this court's remittitur, if mother still desires extension of the DVPA restraining order, at which hearing both parties shall be allowed to present oral as well as written evidence. It is further ordered that the restraining order remain in force until the conclusion of this new hearing or 60 days after the issuance of the remittitur, should no such hearing take place. Each party shall bear its own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (5).)
We concur: NICHOLSON,J. MAURO,J.