*1 Filed 10/6/23 Hughes v. Avakian CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE STATE OF CALIFORNIA ZACHARY JACK HUGHES, D081250
Respondent,
v. (Super. Ct. No. 22FDV01972N) TERI ANNE AVAKIAN,
Appellant.
APPEAL from an order of the Superior Court of San Diego County, Sara Kirby, Commissioner. Affirmed.
Oscar Valencia for Appellant.
Decker Law and James D. Decker for Respondent.
This case involves a complicated relationship between a mother, Teri Anne Avakian, and her son, Zachary Jack Hughes. Throughout his high school and college years, Hughes felt that Avakian attempted to exercise control over his life, including his romantic relationships and income. During a tense period in their relationship, Hughes moved out of Avakian’s home and informed her that he did not want to have further contact. Over repeated objections, Avakian continued to reach out to him by mail, text message, e-mail, and by showing up to his home unannounced. Hughes claimed that after he moved out, Avakian nearly ran him over with her car as he walked along the sidewalk near his residence. Following this incident, Avakian sent Hughes a series of e-mails that caused him significant emotional distress. In one e-mail she called him pathetic, and in another she discussed her newly developed interest in firearms.
Immediately after receiving Avakian’s e -mail referencing firearms, Hughes sought a domestic violence restraining order (DVRO). During the DVRO hearing, the trial court found testimony — describing Avakian’s repeated unwanted contact and the incident in which she nearly ran him over — to be credible. It concluded that the evidence established Hughes was in reasonable apprehension of imminent serious bodily harm and issued a DVRO for a period of one year, including a related firearms prohibition.
On appeal, Avakian claims the trial court abused its discretion by issuing the DVRO because it was not supported by substantial evidence and because the DVRO resulted from evidentiary errors by the trial court. She further contends the firearms prohibition viоlated her constitutional rights under the Second and Fourteenth Amendments to the United States *3 Constitution. As we discuss, we conclude the court did not abuse its discretion when it issued the DVRO. We further determine that the firearms restriction issued in conjunction with the DVRO was constitutional. We therefore affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND Hughes filed a request for a DVRO against Avakian in April 2022. The trial court held a hearing that took place on two nonconsecutive days in August and October 2022. Both parties testified at the hearing.
During testimony, he provided the court with the background of his relationship with Avakian. He described incidents of violence throughout his childhood in which Avakian hit him with a wooden spoon, slapped him with a wet hand, and made him kneel on uncooked rice that she scattered on the floor. Hughes alleged that while he was in college, Avakian took his paychecks and cashed them without his consent. He felt that Avakian’s behavior was aimed at manipul ation and control, including her attempts to influence his romantic relationships.
In October 2020, Hughes informed Avakian that he intended to move out of her home at the end of the month. In response, Avakian told him, “ ‘No, you’re not, get your shit now and get the hell out of my house.’ ” Hughes moved out of Avakian’s home to an apartment complex nearby. Although he did not share the location of his new residence with Avakian, she sеnt Hughes a text message a few weeks later stating, “ [H]ave fun at [the name of new apartment complex ].” Hughes testified that Avaki an’s text message “created a great sense of emotional distress and mental distress, because [he] didn ’t feel safe.” Following her text message, Hughes told Avakian that he did not want to have any further contact with her.
In July 2021, Avakian went to Hu ghes’s home unannounced. Although Hughes did not interact with Avakian, he observed her standing at his front door through his Ring door camera. Less than two weeks later, Avakian again went to Hughes’s residence unannounced, this time on his birthday. Avakian left a present at his doorstep and Hughes observed her “pacing back and fоrth and then ultimately going up and pounding on what actually was [ Hughes’s] neighbor’s window . ” Again in August, Avakian went to home unannounced for a third time and dropped off some of childhood belongings. Hughes felt unsafe and emotionally distressed because Avakian repeatedly ignored his requests to stay away and refrain from contacting him.
In October 2021, Hughes and his girlfriend encountered Avakian driving her vehicle as they walked along a sidewalk. They hid in a bush to avoid her and then ran towards their apartment building. Avakian made a U-turn and drove onto the curb, nearly running them over. As Hughes started to film Avakian using his cell phone’s camera, 1 he heard her giggle and say “run, [Hughes’s girlfriend], run, run, [Hughes], run, run . . . . ” Avakian got out of her vehiclе and continued to follow Hughes on foot. Hughes testified he “was scared for [his] life at that point” beca use Avakian attempted to hit him with her car.
Two days later, Hughes again encountered Avakian in her vehicle as he walked along the sidewalk. She slowed her car as she drove in the center median, and attempted to communicate something to Hughes. Hughes 1 The video recording was admitted into evidence and reviewed by the trial court. The court noted that the video did not record most of the incident in the manner described by Hughes, showing only the sidewalk as Hughes ran away. The court specifically found, however, that Avakian could be heard at the bеginning of the video saying the word “run . ” *5 testified that Avakian was smiling and laughing at him. He felt terrified by the experience and no longer felt safe walking outside alone.
Two months later, in December 2021, Avakian went to home unannounced. She left an easter basket from Hu ghes’s childhood at his doorstep. Through his Ring camera, Hughes observed Avakian bend down and examine mail that was left at his front door.
In response to her repeated unwanted contact, Hughes e-mailed Avakian and told her , “ [S]top leaving objects in the way of my apartment. You are not welcome here and I do not want any contact with you as well as my roommate. Examining mail that is not mine is not welcomed either. Do not harass me while I walk down the road either as there is no justifiable reason t o be doing so.” Avakian continued to e-mail Hughes from January through March 2022.
On March 10, Hughes arrived home and noticed Avakian’s vehicle “inching slowly next to the curb by [his] apartment.” He started recording the incident and Avakian drove away. Later that day, Avakian sent Hughes an e-mail that said, “you are pathetic” in the subject line, and “truly pathetic” in the body of the e-mail. Hughes testified he felt distressed because “ she was not respecting [his] wishes that [he] had stated multiple times at this point to refrain from contact .”
On April 29, 2022, Avakian sent Hughes and his sister a series of e- mails. The first e-mail contained images of a text message exchange between Avakian and a third party. Avakian and the third party discussed parenting and she expressed gratitude to the third party for his advice regarding firearms. Avakian sent a second e-mail later that day stating , “I did forget to mention that in my first e-mail today I talk about guns. Yes I am shooting *6 now and I am part of [A Girl & A Gun] nationwide group. Tony and I talk guns now. [¶] I am good with a pistol but prefer an AR.”
Hughes was “extremely distressed” by Avakian’s e -mail discussing firearms because she was previously “anti - firearms.” He felt that Avakian’s reference to firearms was “utilized as an intim idation factor, as a scare tactic.” Within thirty minutes of receiving the e -mail, Hughes went to the courthouse to seek a restraining order. Hughes testified that his sister also sought and obtained a restraining order against Avakian in the state of Arizona. The trial court took judicial notice of the restraining order involving Hughes’s sister.
In her testimony, Avakian denied Hughes’s claims that she was physically violent with him during in his childhood. Rather, she claimed that Hughes’s father was an alcoholic and that the violent episodes testified to by Hughes were perpetrated by his father. Avakian felt her relationship with Hughes became strained after her divorce from his father, and further deteriorated when Hughes began dating his girlfriend.
Avakian told the court that when Hughes moved out of her residence, he rented an apartment in a complex less than a mile away. Due to his close proximity to her home, Avakian encountered Hughes while driving her vehicle because he walked along the “path in and out of [her] neighborhood.” She explained that she learned of new address because she received notice from the post office. She repeatedly dropped off belongings at his apartment because she found the items as she cleaned out her garage in segments.
Avakian also testified regarding the October 2022 incident in which Hughes claimed she nearly ran him over with her car. She explained that she attempted to contact Hughes as he walked along the sidewalk to inform *7 him that her aunt passed away. Avakian claimed that as she attempted to tell Hughes about her aunt’s funeral through the car window, he ran down the sidewalk “laughing and giggling and ducking behind cars.” She denied attempting to run him over and claimed that it would have been impossible for her to drive onto the curb because there were cars parked along the sidewalk.
Avakian also provided context for the e-mails she sent to Hughes and his sister discussing firearms. She testified that she sent the text message exchange so that her children could see a different perspective regarding their relationship and the difficulty of parenting. Her purpose in sending the e-mail referencing her preference for an “AR” over a pistol was to convey to her children that she had moved on her with life and was exploring other interests.
Following Avakian’s testimony, the trial court rendered its decision. In deciding to issue the requested restraining order, the court expressly found Hughes to be credible, including his testimony that he repeatedly told Avakian, orally and in writing, to leave him alone. It determined that the evidence clearly established Hughes did not want to be contacted by Avakian, and that Avakian understood request for no-contact but “just didn’t think that she should listen to that or that she thought she knew better.” The court did not believe Avakian’s contact with Hughes during thesе incidents was “an issue of being in the same neighborhood an d accidentally coming upon somebody.” Rather, it characterized the case as one in which Avakian intentionally and repeatedly interacted with Hughes after he expressly communicated that he did not want to have any contact.
The court also believed testimony regarding the October 2022 incident in which Avakian “nearly ran over Mr. Hughes and his girlfriend.” *8 In its view, the evidence established that Hughes was in “reasonable apprehension of imminent serious bodily injury to himself or another regarding that October 16th incident about driving up on the curb and nearly — per [ ] testimony, nearly running him over and his girlfriend over that day. ” By a рreponderance of the evidence, it found that Hughes met his burden of demonstrating his need for a DVRO.
The court granted request for a permanent restraining order and issued the DVRO for a period of one year. As a result of the restraining order, the court prohibited Avakian from owning, possessing, or having access to any firearms or ammunition while the DVRO was in effect.
DISCUSSION
Avakian contends the DVRO was not supported by substantial evidence such that its issuance was an abuse of the trial court’s discretion. Relatedly, she argues the trial court erred on several evidentiary matters, including improperly taking judicial notice of an out-of-state restraining order issued for the protection of Avakian’s daughter, and allowing Hughes to introduce three exhibits not included in his exhibit list. Finally, she objects to the firearms prohibition issued in conjunction with the DVRO on various constitutional grounds. As we discuss, we perceive no reversible error in the evidence considered by the trial court and determine the court did not abuse its discretion in granting Hughes’ s request for a DVRO. As to the firearms restriction, we conclude that the order prohibiting Avakian from possessing a firearm or ammunition, and the statute authorizing the issuance of the restriction, are constitutional. We therefore affirm.
A . The Trial Court Did Not Abuse its Discretion in Granting the DVRO
The Domestic Violence Protection Act (DVPA) (Fam. Code,2 § 6200 et seq.) authorizes a court to issue a protective order “ ‘ “to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved ” upon “ reasonable proof of a past act of acts of abuse.” ’ ” ( In re Marriage of Davila and Mejia (2018) 29 Cal.App.5th 220, 225.) “Abuse includes ‘plac[ing] a person in reason able apprehension of imminent serious bodily injury to that person or to another’ or ‘engag[ing] in any behavior that has been or could be enjoined pursuant to Section 6320.’ [Citation.] Enjoined conduct includes molesting, striking, stalking, threatening, or harassing. [Citation.] The DVPA requires a showing of past abuse by a preponderance of the evidence. ” ( Id . at p. 226; accord § 6320, subd. (a).)
“We review an order granting or denying a DVRO for abuse of discretion. [Citation.] In reviewing the trial court ’ s factual findings, we apply the substantial evidence rule. [Citation.] The inquiry is whether substantial evidence supports the court ’ s finding, not whether a contrary finding might have been made. [Citation.] We accept as true all evidence tending to establish the correctness of the trial court ’ s findings and resolve every conflict in favor of the judgment.” ( M.S. v. A.S. (2022) 76 Cal.App.5th 1139, 1143 – 1144.)
Avakian argues the trial court’s order was not supported by substantial evidence because the court improperly interpreted Avakian’s “benign behavior” аs abuse under the DVPA. She urges us to reject the court’s credibility findings pertaining to testimony because it “accepted statements from Mr. Hughes without truly examin ing their validity.” 2 Unspecified statutory references are to the Family Code.
In support of her argument, Avakian emphasizes her own testimony, which proffered competing explanations of the events testified to by Hughes.3
During the hearing, the trial court expressly found Hughes to be credible, specifically including his testimony about how Avakian drove her vehicle onto a curb and nearly ran over Hughes and his girlfriend. As a result of this incident, it properly concluded that Avakian’s conduct qualified as abuse under the DVPA because it рlaced Hughes “ in reasonable apprehension of imminent serious bodily injury. ” (§ 6203, subd. (a)(3).) Although Avakian argues that Hughes’s testimony, which she characterizes as “unsupported,” provide d insufficient evidence to justify the issuance of the DVRO, the testimony of a single witness may constitute substantial evidence to support a finding of fact. ( In re Marriage of F.M. & M.M. (2021) 65 Cal.App.5th 106, 119 ( F.M. & M.M. ) [“ ‘The testimony of one witness, even that of a party, may constitute substantial evidenc e’ ”].) Thus, testimony that Avakian placed him in apprehension of serious bodily injury when she nearly hit him with her car provided substantial evidence of abuse under the DVPA.
Avakian ’s argument that apprehension of harm was not reasonable under the circumstances, considеring that he moved less than a mile away from her home, asks us to disregard the trial court’s credibility findings and reweigh the evidence. We decline to do so. “[T]rial courts are in 3 In her opening brief on appeal, Avakian cites to unpublished case law in violation of the California Rules of Court, rule 8.1115. She asserts that rule 8.1115(b) permits her to cite to unpublished authority in this case. However, rule 8.1115(b) permits citation to an unpublished opinion only when the opinion is relevant under the doctrines of the law of the case, res judicata, collateral estoppel, or when the opinion is relevant to a criminal or disciplinary action. None of the enumerated еxceptions in rule 8.1115(b) apply to this case and we decline to consider this authority.
the best position to asses s witness credibility” and therefore we must
generally defer to their credibility determinations. (
Doe v. Lee
(2022) 79
Cal.App.5th 612, 621; accord
Sabbah v. Sabbah
(2007)
Further, а lthough the trial court did not expressly find that Avakian’s
conduct disturbed peace, we conclude substantial evidence supports
such an implied finding as an additional basis for the issuance of the DVRO.
Under the DVPA, abuse includes conduct that, under the totality of the
circumstances, “ ‘disturb[s] the peace of the other party’ ” in a way that
“destroys the mental or emotional calm of the other party.” (§ 6320, subd. (c);
see also
In re Marriage of Nadkarni
(2009)
Hughes testified that Avakian repeatedly contacted him after he
expressed to her, orally and in writing, that he did not wish to have any
further interaction. Despite his requests, she continued to e-mail Hughes
and go to his home unannounced. Hughes testified that the recurring
*12
unwanted contact caused him mental and emotional distress. testimony, and the video recordings of Avakian’s visits to his ho me, are ample
evidence of conduct that disturbed peace. Although Avakian
claimed she was simply attempting to communicate with her son tо discuss
family matters and to deliver family heirlooms, the trial court was not
required to credit Avakian’s testimony over that of Hughes. (
F.M. & M.M.,
supra
,
Finally, we do not perceive any abuse of discretion in the evidence
considered by the trial court in rendering its decision, including its judicial
notice of an out-of-state restraining order issued against Avakian. (See
Physicians Committee for Responsible Medicine v. Los Angeles Unified School
Dist.
(2019) 43 Cal.App.5t h 175, 182 [“We review judicial notice rulings for
abuse of discretion ” ].) As Avakian acknowledges in her opening brief,
Evidence Code section 452 permitted the trial court to tаke judicial notice of
the restraining order as a record from a “court of reco rd of the United States
or of any state of the United States.” (
Id.
, subd. (d).) Although the trial court
was not permitted to judicially notice the truth of any factual assertions
within the DVRO (
Espinoza v. Calva
(2008)
Nor do we find merit in Avakian ’s argument that the court’s
consideration of three exhibits not included in opposing counsel’s exhibit
list — exhibits 11, 12, and 13 (videos of Avakian near Hughes’s home) —
violated her due process rights. The record does not indicate these exhibits
were ever formally admitted, but assuming they were considered by the
court, we perceive no abuse of discretion in the decision to admit them.
(
McDermott Ranch, LLC v. Connolly Ranch, Inc.
(2019)
In sum, we conclude the trial court’s findings were supported by substantial admissible evidence of abuse under the DVPA. Accordingly, we perceive no abuse of discretion in the issuance of the DVRO and we affirm the order.
B. The Firearms Prohibition Did N ot Violate Avakian’s Constitutional
Rights
Avakian argues for the first time on appeal that the firearms
prohibition imposed by the trial court violated her Second Amendment rights.
She contends that because the court’s order did not allow her to possess a
firearm for self-protection, the order conflicts with the United States
Supreme Court’s decision in
N.Y. State Rifle & Pistol Ass ’ n v. Bruen
(2022)
As a preliminary matter, we make clear that we do not consider
Avakian’s “as - applied” challenge to the firearms restriction because she
forfeited this claim by failing to object in the trial court. (
People v. Patton
(2019)
Section 6389 prohibits an individual subject to a DVRO from
possessing a firearm or ammunition. (§ 6389; see also § 6218.) In
Altafulla v.
Ervin
(2015)
The United States Supreme Court’s recent decision in
Bruen
, which
reaffirmed
Heller’
s guarantee of the right of “law -abiding responsible
citizens ” to possess firearms, does not compel a different result. (
Bruen,
supra,
Here, however, the court’s findings in issuing the DVRO demons trate
that Avakian is not a law-abiding citizen. Moreover, as Justice Alito
emphasized in his concurring opinion
,
“nothing about who may lawfully
possess a firearm” was affected by the United States Supreme Court’s decision in
Bruen
, nor has it disturbed “restrictions that may be imposed on
the possession or carrying of guns.” (
Bruen, supra,
Apart from the Second Amendment, Avakian also asserts that section
6389, subdivision (h), violates the equal protection clause of the Fourteenth
Amendment by allowing an exception to the DVRO-related firearms
prohibition based on employment, but not based on an individual’s need for
self-protection. The Fourteenth Amendment to the United States
Constitution “ ‘ guarantee[s] all persons the equal protection of the laws.’ ”
(
In re Williams
(2020)
(
Conservatorship of Eric B.
(2022)
Here, Avakian’s equal protection argument necessarily fails because individuals seeking an exception to the firearms prohibition based on their employment are not similarly situated with individuals who presеnt a generalized claim of the need to protect themselves with a firearm. Section 6389, subdivision (h) allows for a narrow exception to the firearms prohibition mandated by subdivision (a) if the restrained party demonstrates a firearm “is necessary as a condition of continued employment and that the current employer is unable to reassign the [restrained party] to another position where a firearm or ammunition is unnecessary.” Avakian cites to no authority suggesting this narrow class of individuals, for whom firearms are a necessary part of their employment, are similarly situated with individuals who generally desire a firearm to protect themselves. Nor can we find any precedent that would support such a claim — indeed, such a conclusion would signify that the general public is similarly situated with a group seeking relief from a court-ordered restriction based on a narrow employment-based statutory exception.5
5
Courts have addressed equal protections claims challenging statutory
exceptions to court-imposed firearms limitations in the context of restrictions
resulting from criminal convictions. In
People v. Delacy
(2011) 192
Cal.App.4th 1481, 1495, the court evaluated a criminal statute that
prohibited the possession of firearms by persons convicted of certain
California misdemeanors, but did not prohibit the possession of fireаrms by
persons convicted of similar offenses from other jurisdictions. Although the
court did not explicitly address whether the challenge involved similarly
situated groups, it upheld the law, conclu ding that the Legislature’s decision
to exclude out-of-state misdemeanants from the law did not violate equal
protection. In
People v. Conley
But even assuming the “ similarly situated ” requirement has been met,
section 6389, subdivision (h), does not violate equal protection under the
Fourteenth Amendment. “[E]qual protection is no t violated by a legislative
scheme that distinguishes between different groups of persons if the
classification bears a rational relationship to a legitimate public purpose.”
(
Conley, supra,
Here, the employment exception delineated in section 6389, subdivision (h), permits only a limited category of individuals whose economic well-being would be jeopardized by a firearms restriction to seek an exception to maintain their employment. This exception is especially narrow — it allows an individual to obtain an exception to the firearms prohibition only when their employment requires them to possess a firearm and when they make a showing that their employer is unable to reassign them to a position that enumerated criminal offenses, but not for individuals convicted of other criminal offenses. Again the court did not directly address the similarly situated prong, but ultimately concluded that the legislative distinction between the convictions that required a firearms restriction, and those that did not, was constitutional. ( Ibid .)
does not require a firearm. (§ 6389, subd. (h).) Even when an individual makes such a showing, they are only permitted to possess a firearm during their work hours and during travel to and from their employment. ( Ibid. )
Considering that “ ‘reducing domestic violence is a
compelling
government interest” (
Altafulla, supra
,
We therefore affirm the affirm the order prohibiting Avakian from possessing a firearm while the DVRO is in effect.
DISPOSITION
The order is affirmed. Hughes is entitled to costs on appeal. DATO, J. WE CONCUR:
O ’ ROURKE, Acting P. J.
KELETY, J.