Act (DVPA) (Fam. Code.1 § 6200 et seq.), we affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
The parties were married for five years and have one child born in 2012. On
October 16, 2015, Fregoso filed a petition for dissolution of their marriage. He also
sought an order seeking legal and physical custody of the parties' child. In an
accompanying declaration, Fregoso stated Hernandez "is an aggressive person who has
hit me in the past" and had recently attempted to throw boiling water on him while he
was holding their daughter.
Four days later, on October 20, 2015, Hernandez filed a request for a domestic
violence restraining order against Fregoso. In an attached declaration, Hernandez stated
that on October 7, 2015, Fregoso grabbed her, pushed her hard onto a bed, and held her
head down into the mattress so that she could not breathe. She also stated that on
1 All statutory references are to the Family Code unless otherwise specified. 2
October 19, Fregoso "hit our daughter with a belt, almost 10 times." Hernandez ended
her declaration by stating, "I am afraid for mine and my daughter's safety."
The court issued a TRO against Fregoso on the same day (October 20) and set the
matter for a hearing.
Before the hearing, Fregoso filed a response. He denied threatening or hitting
Hernandez, and instead stated Hernandez was the aggressor, and he described an incident
where she struck him with a wooden box. Fregoso denied that he had ever abused his
daughter, stating Hernandez's "claims are a lie . . . ."
The court conducted a hearing. Hernandez and Fregoso, who were each
represented by separate counsel, testified.
Hernandez testified that on October 7, 2015, Fregoso "grabbed" her left arm, and
pulled her against his chest so hard, she was "unable to breathe."2 After Hernandez fled
for safety into her daughter's bedroom, Fregoso followed, and pushed Hernandez onto the
daughter's bed with such force the bed collapsed. Hernandez testified Fregoso then
"started to press my head against the bed" and "[h]e squeezed my head against the bed
and I couldn't breathe." She said Fregoso threatened her, saying he "has a godfather who
is a drug trafficker in Sinaloa [Mexico] . . . ." Hernandez denied throwing a wooden box
or boiling water at Fregoso.
On cross-examination, Hernandez explained she did not call the police because
she was "afraid" of Fregoso. Hernandez conceded having sex with Fregoso on November
2 Fregoso outweighs Hernandez by approximately 44 pounds.
3
1, 2015, after the court had issued the TRO. She explained this was a pattern of behavior
where Fregoso would be violent, seek forgiveness, bring gifts, and then they would have
sex. Hernandez testified, "He would always bring me flowers and he would buy Play-
Doh for my daughter." Hernandez added, "after the violence, there were gifts and then
there was sex."
Fregoso testified next, contradicting almost all of Hernandez's assertions about
domestic violence. He denied hitting their daughter. Fregoso denied hitting Hernandez
or threatening her at any time. He testified that in a jealous rage, Hernandez was the one
who hit him. He stated that on other occasions, Hernandez had threatened him with
knives, hit him with a metal pole, and destroyed his important personal papers. Fregoso
testified that after the court entered the TRO, Hernandez sent him text messages asking
for sex. Fregoso believed Hernandez was seeking a restraining order out of spite, to
retaliate against him for seeking dissolution of their marriage.
After hearing the parties' testimony, the court granted the restraining order, stating
in part, "Based on the evidence and the testimony that the court heard today, the court
does find good cause to grant the request for the permanent restraining order. I'm going
to grant it for the period of one year." Under the restraining order, Fregoso is prohibited
from, among other things, attacking or threatening Hernandez, and must stay at least 100
yards away from her person, home, workplace, and vehicle, with the exception for
peaceful contact as required for court-ordered visitation of children.
4
DISCUSSION
I. GOVERNING PRINCIPLES AND THE STANDARD OF REVIEW
The purpose of the DVPA is "to prevent acts of domestic violence, abuse . . . and
to provide for a separation of the persons involved in the domestic violence for a period
sufficient to enable these persons to seek a resolution of the causes of the violence."
(§ 6220.) To this end, the DVPA provides for the issuance of restraining orders that
enjoin specific acts of abuse. "Abuse" is statutorily defined to include, among other
things, to "intentionally or recklessly cause or attempt to cause bodily injury" and to
"place a person in reasonable apprehension of imminent serious bodily injury to that
person or another." (§ 6203, subds. (a)(1) & (3).)
Generally, a trial court has broad discretion in determining whether to grant a
petition for a restraining order under this statutory scheme. (See Gonzalez v. Munoz
(2007) 156 Cal.App.4th 413, 420 (Gonzalez).) The DVPA permits a court, upon a
showing of "reasonable proof of a past act or acts of abuse" (§ 6300), to issue a protective
order restraining any person from contact, for the purpose of preventing a recurrence of
domestic violence. (Ibid.)
On review of an order granting or denying a protective order under the DVPA, we
consider whether the trial court abused its discretion. (Burquet v. Brumbaugh (2014) 223
Cal.App.4th 1140, 1143 (Burquet).) "'The appropriate test for abuse of discretion is
whether the trial court exceeded the bounds of reason. When two or more inferences can
reasonably be deduced from the facts, the reviewing court has no authority to substitute
its decision for that of the trial court.'" (Gonzalez, supra, 156 Cal.App.4th at p. 420.) We
5
accept as true all evidence tending to establish the correctness of the trial court's findings,
resolving every conflict in the evidence in favor of the judgment. (Burquet, supra, 223
Cal.App.4th at p. 1143.) Under the substantial evidence test, the pertinent inquiry is
whether substantial evidence supports the court's finding—not whether a contrary finding
might have been made. (See In re Alexandria P. (2016) 1 Cal.App.5th 331, 355.)
In this case, Hernandez did not file a respondent's brief. However, that failure
does not affect Fregoso's burden to show the court abused its discretion in issuing the
DVPA restraining order. (Burquet, supra, 223 Cal.App.4th at p. 1141, fn.1.)
III. THE COURT DID NOT ABUSE ITS DISCRETION
Fregoso contends the court abused its discretion because "the evidence showed
[Hernandez] was not afraid of [Fregoso]." Noting that Hernandez sought the TRO soon
after he filed for dissolution of the marriage, Fregoso contends Hernandez's "timing and
conduct in requesting that restraining order smacks of game-playing and bad faith." He
emphasizes there were "no police reports" of the alleged domestic violence, and no
arrests or convictions. He claims Hernandez sought a restraining order to gain a tactical
advantage against him in future child custody proceedings. Asserting there was
undisputed evidence Hernandez had consensual sex with him after obtaining the TRO,
Fregoso contends such conduct "obviously showed that [Hernandez] did not fear [him] or
need protection from him."
Fregoso's argument is unavailing because it is inconsistent with the standard of
review. Based only on Fregoso's own testimony, his factual assertions are supported by
the record, and the inferences he draws from those facts are not unreasonable. However,
6
the trial court put more weight in other, contrary evidence, and drew other, reasonable
inferences, contrary to the ones Fregoso advocates here, stating that Hernandez had
carried her burden of proof. Fregoso's appellate claims fail because under the substantial
evidence standard, "[t]he issue is not whether there is evidence in the record to support a
different finding, but whether there is some evidence that, if believed, would support the
findings of the trier of fact." (See Fariba v. Dealer Services Corp. (2009) 178
Cal.App.4th 156, 170.)
The testimony of one witness, even that of a party, may constitute substantial
evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) Hernandez testified: (1)
she was afraid of Fregoso; (2) in October 2015, Fregoso "pressed" her head against a
mattress with such force, she could not breathe; (3) Fregoso grabbed her arm tightly, with
sufficient force to cause bruising and (4) in another incident, he kicked her while she was
on the ground; and (5) Fregoso repeatedly struck their two-year-old daughter with a belt.
This is ample substantial evidence to support the court's implied finding there was
"reasonable proof of a past act or acts of abuse" warranting a domestic violence
restraining order. (§ 6300.)
Hernandez also testified the parties' post-TRO sex was part of their six-year
repeated cycle of violence, gifts, forgiveness, sex, and then repeated acts of violence.
Thus, the evidence Fregoso primarily relies upon as showing the court abused its
discretion was explained by Hernandez in a manner consistent with the court's
determination to issue the order.
7
DISPOSITION
The order is affirmed. Because Hernandez did not file a brief in this court, there
are no costs on appeal to award.
NARES, J.
WE CONCUR:
McCONNELL, P. J.
PRAGER, J.*
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 8
Filed 11/16/16 CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of LUIS M. OVALLE FREGOSO and ADRIANA HERNANDEZ. D069614 LUIS M. OVALLE FREGOSO,
Appellant, (Super. Ct. No. DS56882)
v.
ADRIANA HERNANDEZ, ORDER CERTIFYING OPINION FOR PUBLICATION Respondent.
THE COURT:
The opinion in this case filed October 21, 2016, was not certified for publication.
It appearing the opinion meets the standards for publication specified in California Rules
of Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for publication is
GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words "Not to Be Published in the Official Reports" appearing
on page 1 of said opinion be deleted and the opinion herein be published in the Official
Reports.
MCCONNELL, P. J.
Copies to: All parties
2
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the issuance of a domestic violence restraining order, finding that the respondent's testimony regarding a pattern of abuse constituted substantial evidence to support the trial court's order despite the parties' post-order consensual contact.
Issues
Whether the trial court abused its discretion in granting a domestic violence restraining order under the Domestic Violence Protection Act.
Whether evidence of post-order consensual sexual contact between the parties precludes a finding of abuse or the necessity of a protective order.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Because substantial evidence supports the court's finding of abuse under the Domestic Violence Protection Act (DVPA) (Fam. Code.1 § 6200 et seq.), we affirm the order.”
“The testimony of one witness, even that of a party, may constitute substantial evidence.”
“Hernandez also testified the parties' post-TRO sex was part of their six-year repeated cycle of violence, gifts, forgiveness, sex, and then repeated acts of violence.”