Nevarez v. Tonna
227 Cal. App. 4th 774
| Cal. Ct. App. | 2014Background
- Nevarez and Tonna dated for ~5 years and broke up in December 2011; post‑breakup Tonna repeatedly sought contact by texts, emails, visits to her workplace, and social media.
- On June 2, 2012, at Tonna’s apartment Nevarez alleged Tonna grabbed her wrist (leaving a bruise) and pushed her near a stairwell; she left and he persisted in contacting her and came to her workplace that night.
- On July 27, 2012, at a concert parking lot Nevarez said Tonna banged on her car window, insisted she roll it down, and impeded her departure; Tonna disputed the degree of his conduct.
- Nevarez filed for a DVPA restraining order; the trial court credited Nevarez, found clear and convincing evidence of abuse, and issued a two‑year restraining order with personal‑conduct and stay‑away terms.
- Tonna appealed, arguing (1) the court needed a finding of likelihood of future abuse; (2) the conduct was mere "badgering" not abuse; (3) the court erred in refusing to view a witness’s phone messages; and (4) the court was biased in favor of Nevarez.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a DVPA restraining order requires a finding of probable future abuse | Restraining order may issue based on past abuse to prevent recurrence (court relied on §6300) | Ritchie requires showing of probability of future abuse | Court: No future‑abuse probability is required to issue an initial DVPA order; §6300 permits issuance on reasonable proof of past abuse. |
| Whether Tonna’s conduct constituted legally sufficient "abuse" under §6203 | Nevarez: physical force (grab/bruise, push) and repeated unwanted contacts constitute abuse and enjoinable conduct | Tonna: conduct was only persistent advances/"badgering," not abuse per S.M. | Court: Evidence supported abuse (physical assault + ongoing harassment); distinguished S.M. where no physical violence occurred. |
| Whether exclusion of brother’s phone texts was an abuse of discretion | Nevarez: trial court rightly relied on testimony and other evidence | Tonna: exclusion prevented presentation of exculpatory evidence | Court: No reversible error—no contemporaneous objection; texts would be cumulative of brother’s testimony; exclusion, if error, was harmless. |
| Whether trial judge was biased in favor of Nevarez | Nevarez: credibility findings were proper and supported by record | Tonna: judge’s rulings and credibility preference showed bias | Court: No bias; credibility assessments are for trial court and were not inherently improbable or unbelievable. |
Key Cases Cited
- Ritchie v. Konrad, 115 Cal.App.4th 1275 (Cal. Ct. App. 2004) (addressed renewal standard under §6345; not dispositive for initial DVPA issuance)
- S.M. v. E.P., 184 Cal.App.4th 1249 (Cal. Ct. App. 2010) ("badgering" may be insufficient for DVPA relief where no physical violence)
- Nakamura v. Parker, 156 Cal.App.4th 327 (Cal. Ct. App. 2007) (DVPA restraining order may be issued on basis of past abuse)
- Burquet v. Brumbaugh, 223 Cal.App.4th 1140 (Cal. Ct. App. 2014) (repeated unwanted contacts and uninvited visits can justify protective orders)
- Oldham v. Kizer, 235 Cal.App.3d 1046 (Cal. Ct. App. 1991) (standard for rejecting testimony on appeal: only if inherently improbable or impossible)