Tomi B. v. Andre V. CA4/1
D079049
| Cal. Ct. App. | May 23, 2022Background
- Tomi and Andre cohabited; during an argument Andre entered the home through a kitchen window, kicked a hole in Tomi’s bedroom door, and pushed her while she tried to remove him.
- After the incident they stopped living together but continued working for the same employer; Andre allegedly contacted Tomi multiple times daily despite her objections.
- Tomi filed for a domestic violence restraining order (DVRO); the court issued a temporary order (100-yard stay-away, no contact) and set a hearing.
- At the hearing the court found Tomi more credible, found domestic violence and harassment proven by a preponderance of the evidence, ordered Andre to a 52-week batterer’s program, and issued a one-year DVRO with a 100-yard exclusion except at work.
- Andre appealed pro se, arguing lack of evidence, justification for entering the home, and that the DVRO was retaliatory after he moved out.
- The Court of Appeal affirmed: it found Andre’s appellate brief procedurally deficient (forfeiture) but reviewed the record and concluded the DVRO was supported by substantial evidence; it refused to accept new evidence on appeal and noted Andre could seek modification in the trial court if circumstances changed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the DVRO was supported by evidence of domestic violence and harassment | Tomi: her sworn declarations and testimony describe entry, property damage, pushing, and unwanted repeated contact | Andre: entry was justified, there was no direct domestic violence, harassment allegations were retaliatory | Court: Found Tomi credible; her sworn statements and testimony provided substantial evidence to support DVRO; affirmed |
| Whether appellate court could consider new documents/changed circumstances | Tomi: (no separate argument presented on appeal) | Andre: circumstances changed; offered new documents at oral argument | Court: Declined new evidence on appeal; noted appellate review is limited to record and advised seeking modification in family court |
Key Cases Cited
- Fernandes v. Singh, 16 Cal.App.5th 932 (2017) (briefing forfeiture rule requires adequate legal analysis and record citations)
- In re Marriage of G., 11 Cal.App.5th 773 (2017) (abuse of discretion standard for DVROs; factual findings reviewed for substantial evidence)
- Nevarez v. Tonna, 227 Cal.App.4th 774 (2014) (DVRO proper where defendant grabbed/pushed and continued contact after being told to stop)
- Riley v. Dunbar, 55 Cal.App.2d 452 (1942) (presumption that matters supporting a judgment were presented when record is silent)
- Jameson v. Desta, 5 Cal.5th 594 (2018) (same presumption regarding matters presented to trial court)
- Reserve Ins. Co. v. Pisciotta, 30 Cal.3d 800 (1982) (appellate courts generally consider only the record as of judgment; new evidence on appeal is exceptional)