RICHLI, J.
Plaintiff and respondent Marc Minkoff obtained a restraining order against defendant and appellant Silvy Alcalay after Alcalay came to Minkoff's house to discuss with Minkoff his pending divorce from Alcalay's daughter, Ronnie. During the discussion, Alcalay brandished a gun and told Minkoff he should give Ronnie $1 million in the divorce settlement. Minkoff filed for a restraining order under the Domestic Violence Prevention Act (DVPA), and a permanent restraining order for Alcalay to stay away from Minkoff and his grandson was granted for five years.
Alcalay appeals the issuance of the permanent restraining order on the following grounds:
We affirm the order.
The facts are taken from the hearing testimony and documents filed by both parties in the trial court.
On March 30, 2010, Minkoff filed a DV-100 form requesting an order under the DVPA to restrain Alcalay from him and his two children, R. (age 18) and J. (age 17).
Minkoff recorded the entire conversation, but only included several pages of a transcript with the request for the order.
Along with the request for a permanent restraining order, Minkoff filed a request for a temporary restraining order until the scheduled hearing on the permanent injunction. The temporary restraining order was granted on March 30, 2010.
In response to the request for the permanent restraining order, Alcalay filed a trial brief entitled "Elements of [Code of Civil Procedure] Section 527.6." Alcalay indicated that he was 87 years old and could not drive to Minkoff's house. The declaration provided by Minkoff in support of the restraining order did not show that Minkoff was in fear of Alcalay. It provided that the parties had known each other for over 20 years, and the reason there was a request under the DVPA, rather than a civil harassment order under Code of Civil Procedure section 527.6, was solely because of the divorce. It should not have been filed under the DVPA. Alcalay alleged that Minkoff was using the restraining order as leverage in his divorce case.
Alcalay argued that Minkoff had not met the requirements of Code of Civil Procedure section 527.6, that harm had occurred and was ongoing, causing Minkoff substantial emotional distress. Alcalay also stated that Minkoff waited five days to contact law enforcement. Minkoff hugged both Alcalay and Carol when they left the house that day, and it was witnessed by Minkoff's daughter. Further, the act had been completed, and there was no showing that it would happen again.
A hearing was conducted on June 4, 2010. Minkoff testified. Minkoff was working out at the gym on March 25, 2010. R. met him at the gym and told him that Alcalay and Carol were at their house and wanted to talk to him. Minkoff returned home to find Carol outside and Alcalay inside the house. J. was also home and Alcalay asked that Minkoff have him leave. Minkoff recounted the events that were included on the transcript of the tape and in his declaration, including that Alcalay told Minkoff to turn off his digital recorder, and when he did not, Alcalay "came storming" at him and held the handgun to his head. Minkoff assumed the firearm was loaded.
Minkoff asked Alcalay to put away the gun. Alcalay told Minkoff that "this will go away" if he gave Ronnie $1 million.
Minkoff was in a state of shock during the entire incident. Nothing like this had occurred between Alcalay and Minkoff before. Alcalay eventually put the handgun away, and Minkoff allowed him to stay because he wanted to tell his side of the story. Minkoff shook Alcalay's hand when he left; Minkoff wanted to do whatever it took to get him out of the house. Minkoff filed a police report the following day. Minkoff received two telephone calls from Alcalay after the temporary restraining order was filed on March 30. Alcalay left a message for Minkoff that he should send flowers to Ronnie for Mother's Day.
Minkoff insisted that he feared for his life when Alcalay was in his house. Minkoff became aware the gun possessed by Alcalay was not loaded after it was held to his head. Minkoff hugged Carol when they left.
After Minkoff's testimony, Alcalay's counsel brought a motion to dismiss the restraining order. Initially, he argued that the issue should be resolved under the civil harassment burden of proof and that it should not be decided as a domestic violence restraining order. Moreover, under either standard, Minkoff was not in fear of his life from an 87-year-old man. Alcalay's counsel also noted that Alcalay lived in Los Angeles and could not drive himself to Minkoff's home. Counsel argued that Minkoff was using this "unfortunate situation" as an advantage in the divorce proceedings. The motion to dismiss was denied and Alcalay's counsel then presented the defense case.
Carol testified that she drove Alcalay to Minkoff's house that day. Carol waited in the car when Minkoff and Alcalay started talking and did not witness Alcalay brandish the gun. She did hear Alcalay ask Minkoff to give Ronnie $1 million in the divorce settlement. Alcalay asked Minkoff to think about it and then shook hands with Minkoff. Carol and Minkoff then hugged.
Carol admitted that Alcalay had a gun in his possession that day. Carol indicated that Alcalay, since he had become "infirm," carried the gun on lengthy trips in case they encountered car trouble and needed to defend themselves from thieves. It was Alcalay's custom and practice to carry the gun when driving to Minkoff's house.
R. testified that she became aware of the temporary restraining order, which included her, from Minkoff. R. had come home while Minkoff and Alcalay were talking inside. R. sat outside, but could hear the conversation. She heard Minkoff expressing his opinion about what he thought Ronnie had done wrong in their marriage. When Alcalay and Carol left, she believed that everything was "cordial." She did notice that Minkoff appeared "uncomfortable" or "edgy" after the encounter. R. observed Minkoff shake Alcalay's hand and hug Carol.
R. indicated that she did not have much discussion with Minkoff after the incident, and he immediately went to his office. R. did not want to be part of the restraining order and wanted Alcalay and Carol to attend her upcoming high school graduation.
In arguing for issuance of the restraining order, Minkoff's counsel referred to Family Code sections 6203 and 6211. The evidence supported that Alcalay brandished a firearm in Minkoff's presence. Whether or not the gun was loaded, it was dangerous. Further, Alcalay had violated the temporary restraining order by making telephone calls to Minkoff and by not providing proof that he had sold the gun or turned it over to law enforcement.
Alcalay's counsel responded that this was a one-time incident and was not likely to happen again. Minkoff's own testimony showed that he was not afraid of Alcalay. Minkoff did not immediately call the police or leave when Alcalay pulled out the gun. He engaged in a lengthy discussion with Alcalay and Carol. Alcalay's counsel admitted that it was "a little bit of a judgment error" on the part of Alcalay. However, it did not warrant a three- or five-year restraining order against an 87-year-old man who had limited contact with Minkoff.
The trial court ruled: "The Court finds [Minkoff] has met the burden of proof to grant the restraining orders requested." The restraining order was issued for Minkoff and J. only. The order was set to expire on June 3, 2015. Alcalay was to stay 100 yards from Minkoff's home, vehicle, job, and the children's school. Alcalay was ordered to sell or turn over to law enforcement any firearms in his possession. The parties were ordered to return to the court on June 7, 2010, for proof of compliance by Alcalay that he relinquished his firearm.
Alcalay filed his notice of appeal on August 2, 2010. A restraining order issued under the DVPA is in the nature of an order granting an injunction and is therefore appealable. (Code Civ. Proc., § 904.1, subd. (a)(6).)
Alcalay contends the injunction issued here was subject to Code of Civil Procedure section 527.6, rather than under the DVPA. He further contends that under either standard, the trial court abused its discretion by ordering the permanent injunction.
The DVPA defines domestic violence as abuse committed upon certain defined persons. (Fam. Code, § 6211.) Family Code section 6211, subdivision (f) includes as persons those "related by consanguinity or affinity within the second degree." Family Code section 6205 provides: "`Affinity,' when applied to the marriage relation, signifies the connection existing in consequence of marriage between each of the married person and the blood relatives of the other."
Code of Civil Procedure section 527.6, subdivision (a) allows for any person who has suffered harassment to file a temporary restraining order or permanent injunction to stop the harassment. There is no restriction as to who such restraining order can be filed against like that in the DVPA. Further, subdivision (l) of Code of Civil Procedure section 527.6 provides that the section does not apply to any action or proceeding covered by the Family Code, commencing with section 6200.
Based on the plain language of each statute, since Minkoff was related to Alcalay, he could file for protection under the DVPA. Although Alcalay disagrees, he provides no authority or argument, and we have found none, that would support that a son-in-law cannot file for such protection against a father-in-law. Minkoff and Alcalay were in a special relationship in that they were forced to have some contact, including R.'s upcoming graduation. Hence, we review the issuance of the permanent restraining order in this case under the standard for DVPA restraining orders.
The purpose of the DVPA is to "`prevent the recurrence of acts of violence and sexual 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.' (Fam.Code, § 6220.)" (Quintana v. Guijosa (2003) 107 Cal.App.4th 1077, 1079.)
"The Legislature has set forth the relevant factors in Family Code section 6300, by providing that a domestic violence restraining order may be issued `if an affidavit shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.' `Abuse' is defined. It means intentionally or recklessly causing or attempting to cause bodily injury, sexual assault, or placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another. [Citation.]" (Quintana v. Guijosa, supra, 107 Cal.App.4th at p. 1079.) Abuse also includes any behavior that has been or could be enjoined pursuant to Family Code section 6320. (Fam. Code, § 6203, subd. (d).) The behavior outlined in Family Code section 6320 includes "stalking, threatening, . . . harassing, telephoning, . . . contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party . . . ." (Fam. Code, § 6320, subd (a).) Thus, the requisite abuse need not be actual infliction of physical injury or assault.
As the court explained in Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137: "Family Code section 6300 . . . require[s] a showing of past abuse, not a threat of future harm. Family Code section 6300 has been interpreted to permit a trial court `to issue a protective order under the DVPA simply on the basis of an affidavit showing past abuse.' [Citation.]" (See also Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.)
Courts construe the DVPA liberally, and may issue a domestic violence restraining order when the applicant makes the requisite showing by a preponderance of the evidence. (Gdowski v. Gdowski, supra, 175 Cal.App.4th at p. 137.) We review the issuance of a domestic violence restraining order for an abuse of discretion. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.) "`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.' [Citation.]" (Ibid.) "To the extent that we are called upon to review the trial court's factual findings, we apply a substantial evidence standard of review. [Citation.]" (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1505.)
Here, based on the evidence before it, the trial court did not abuse its discretion by finding that a restraining order was properly issued. It heard evidence that Minkoff was confronted in his own home by Alcalay, while Minkoff and Ronnie were involved in divorce proceedings. Alcalay came to the location armed with a handgun. Alcalay immediately advised Minkoff to have J. leave.
When Minkoff refused to turn off his digital recorder, Alcalay brandished a gun and pointed it at Minkoff's head. When Minkoff threatened to call the police, Alcalay told him, "You're dead." Although Minkoff allowed Alcalay to stay in his house, he stated that he was stunned and in shock during the visit. He also stated that he wanted to do whatever he could to get Alcalay out of the house.
Based on the foregoing, the trial court could conclude that Minkoff was in reasonable apprehension of imminent serious bodily injury and that Alcalay was harassing Minkoff within the meaning of Family Code section 6320. It had the opportunity to observe Minkoff during his testimony. We cannot reweigh the evidence or disturb the trial court's credibility determinations. (Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 544, overruled on another point in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.) There was no countervailing evidence that the event did not occur as testified to by Minkoff.
Alcalay complains that he did not pose a future risk to Minkoff because of his age. However, as set forth, ante, in issuing a permanent injunction under the DVPA, the trial court need not consider future harm. Moreover, although Alcalay was much older than Minkoff, Alcalay brandished a firearm. An 87-year-old man certainly can pull a trigger on a handgun.
Moreover, even after the temporary restraining order was granted, Alcalay continued to harass Minkoff. Alcalay suggested that Minkoff buy Ronnie flowers. He also did not comply with the order by immediately relinquishing his handgun to authorities. Based on the totality of the evidence, the trial court did not abuse its discretion by granting the five-year restraining order against Alcalay.
Alcalay contends the trial court improperly excluded evidence that would show Minkoff had a motive to file the restraining order other than his fear of Alcalay.
During cross-examination of Minkoff, Alcalay's counsel asked him if he was only bringing the restraining order in order to use it against Ronnie in the divorce proceedings. The objection on argumentative grounds was sustained. Counsel then asked Minkoff: "As recently as this week, sir, didn't you offer to drop this restraining order if she agreed to the financial settlement?" Minkoff's counsel's hearsay objection was sustained.
Evidence Code section 1220 provides: "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity." "[A]s a general rule, if a party to a proceeding has made an out-of-court statement that is relevant and not excludable under Evidence Code section 352, the statement is admissible against that party declarant" under Evidence Code section 1220. (People v. Castille (2005) 129 Cal.App.4th 863, 875-876, fn. omitted.)
Evidence Code section 350 states: "No evidence is admissible except relevant evidence." "`Relevant evidence' means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid.Code, § 210.) Although there is no universal test of relevancy, the general rule in criminal cases is whether or not the evidence tends logically, naturally, and by reasonable inference to establish any fact material for the prosecution. (People v. Freeman (1994) 8 Cal.4th 450, 491.)
Initially, it is impossible to discern from the record whether Minkoff actually made such a statement. Ronnie was not offered as a witness and Minkoff had continually denied that he was bringing the restraining order to gain an advantage in the divorce proceedings. Clearly, if Minkoff simply denied making such a statement, and there was no other evidence of the statement, then it was irrelevant.
Assuming that Minkoff made such a statement, we find that any error by the trial court in excluding the evidence was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) Alcalay was able to argue to the trial court that the motivation behind the restraining order was not Minkoff's fear of him but, rather, because he was seeking to gain an advantage in the divorce proceedings. Alcalay was not foreclosed from presenting such a theory to the trial court.
Moreover, the facts supported that Minkoff was generally in fear of Alcalay when he pulled a gun on him and the trial court only need find that Alcalay committed an act of abuse against Minkoff to support the restraining order. As outlined extensively, ante, a preponderance of the evidence showed that Minkoff was in fear of imminent serious bodily injury when Alcalay held a gun to his head. That Minkoff may have later said that he would drop the restraining order is not inconsistent with his fear of Alcalay or negate that Alcalay was harassing him. Even had the trial court allowed such statement to be introduced, it is not reasonably probable that the results of the proceeding would have been different.
The domestic violence restraining order filed June 4, 2010, is affirmed. Minkoff is awarded his costs on appeal.
HOLLENHORST, Acting P.J. and KING, J., concurs.
