Rivera v. Hillard, A163818

CourtCalifornia Court of Appeals
Writing for the CourtWHITMAN, J.
PartiesJOANNA RIVERA, Plaintiff and Appellant, v. DAVID HILLARD, Defendant and Respondent.
Docket NumberA163818
Decision Date29 March 2023


JOANNA RIVERA, Plaintiff and Appellant,

DAVID HILLARD, Defendant and Respondent.


California Court of Appeals, First District, Fourth Division

March 29, 2023

Marin County Superior Court Nos. FL1903763, FL1903800 Honorable Sheila Shah Lichtblau, Trial judge

Counsel for plaintiff and appellant: FAMILY LEGAL, A Professional Law Corporation, Edward M. Lyman

Counsel for defendant and respondent: Ann F. VanDePol, Esq.


While their marriage dissolution proceeding was pending in Virginia, David Hillard and Joanna Rivera, previously known as Joanna Hillard, filed dueling requests for domestic violence restraining orders in Marin County Superior Court under the Domestic Violence Prevention Act (DVPA), Family Code section 6200 et seq.[1] After trial, the family court found both parties had committed domestic violence and issued mutual restraining orders. The court also found that Joanna[2] had obtained orders temporarily excluding David from his residence under false pretenses, and then damaged and confiscated substantial amounts of David's property, so it conducted a second hearing on restitution and issued a substantial award. Joanna challenges both the sufficiency of the findings supporting the mutual restraining orders and various aspects of the restitution award. We affirm.



The parties were married in 1999. At the time, David had substantial assets, some of which he used to buy a residence on Eagle Drive in the City of Novato, where the parties lived for much of their marriage, and some of which he liquidated to purchase stocks, bonds and other investments. A few years into the marriage, David left his employment to focus, full time, on managing these investments and began to diversify into nontraditional investment vehicles, such as precious metals, original artwork, antique firearms, wine, and watches. These items were located (along with purchase documentation) at Eagle Drive.

In August 2017, the parties and their two teenage children moved to Virginia. They maintained the Eagle Drive property, as well as a home in Lake Tahoe.

1. Dissolution Proceedings

David and Joanna separated in June 2018 and David filed for divorce in Virginia. A child-custody trial commenced that summer. In October 2018, the parties entered into a custody and support agreement (CSA). Section 2.7 of the CSA acknowledged David's ownership of Eagle Drive and provided "he shall have exclusive use and possession of said property upon execution of this agreement." The CSA was incorporated into a Virginia order in November 2018.

In August 2019, the parties entered into a mediated marital settlement agreement (MSA). It incorporated the CSA and provided, among other things, for separation, support and property division. With respect to Eagle Drive, it


obligated David to buy out Joanna's interest[3] by January 15, 2020. However, it also stated that the CSA "shall remain in full force and effect," leaving intact David's right to exclusive use and possession of the property.

The MSA further made each party the sole and separate owner of his or her personal possessions, such as jewelry, watches, purses, clothing, personal electronic devices, books and papers, and sports equipment. It provided "[a]ll artwork shall be David's sole and separate property" and set forth a process for appraisal and buyout or, alternatively, division of proceeds, in the event certain artwork was sold; a process for dividing wine located at Eagle Drive; and an agreement that, by December 31, 2019, the parties would reach a further agreement about how to divide personal property other than wine, art, and furniture. Finally, the MSA provided for the Virginia court to retain jurisdiction to divide any assets that "either party has failed to disclose" with a net value of $10,000 or more.

A final judgment of divorce was entered in the Virginia action on September 30, 2019.

2. The September 2019 Altercation and Aftermath

On September 25, 2019, David and Joanna had an altercation at Eagle Drive, where David was residing. Although they were separated, he had occasionally permitted Joanna to stay overnight.[4] Joanna had returned from Virginia the night before and, despite having a rental unit nearby, asked to stay for a night; David had reluctantly agreed. The next day, when she asked


to stay a second night, an argument ensued. David called the police to have Joanna removed. Before the police arrived, the parties tussled over a bottle of David's cologne and Joanna hit her elbow on a kitchen counter, causing a laceration.

The police arrested David and issued an emergency protective order, including an order to stay away from Eagle Drive. A box was checked on the form and order indicating that Joanna "lives with the person to be restrained and requests an order that the restrained person move out immediately from" Eagle Drive. When asked what she told the police, Joanna denied showing the police a driver's license listing Eagle Drive as her residence. She testified she told the police that she "was at the residence"; she could not recall whether she said she lived there.

3. The Parties Initiate Domestic Violence Proceedings

On October 2, 2019, Joanna filed a request for domestic violence restraining order (DVRO), including temporary restraining order (TRO). She alleged several incidents of domestic violence, including the September 25 altercation. She asked for an order excluding David from Eagle Drive and for control of the residence and all personal property located there. Joanna asserted a right to occupy the home, claiming she had a "community property interest" and describing it as "our family residence" and "our home" (despite having signed the CSA granting David exclusive possession).

On October 4, 2019, David filed his own request for DVRO. He asked the court to exclude Joanna from Eagle Drive and sought a "property control" order for the residence. He alleged the CSA had awarded him "exclusive use and possession" of the home and a divorce decree had been entered awarding


the residence to him.[5] David sought a "property restraint" order that Joanna "not . . . sell, hide, or get rid of or destroy any possessions or property, except in the usual course of business or for the necessities of life." Although David did not check box 21 for an order of restitution, he described in detail Joanna's entry into his office and desk and her eventual success in opening his safe, and expressed concern she might take his money and other personal property.

The family court granted Joanna's request for a TRO, among other things, temporarily excluding David from Eagle Drive. David's request for TRO was denied. Joanna remained in possession of Eagle Drive until January 12, 2020. In October, the court granted a civil standby for David to retrieve certain personal items from the premises.[6] During the months he was excluded from Eagle Drive, David incurred out-of-pocket expenses for lodging and a rental car.

When David was permitted to return to Eagle Drive, he "found a catastrophe." Rooms had been upturned, drawers forced open, and the attic and crawl spaces cleaned out. Joanna (with two "investigators") had thoroughly searched the house, breaking locks and hacking into David's computer. His computer and security cameras were damaged. Many items were missing, including hard drives, an office safe, cash, original artwork, jewelry, and ice chests full of gold and silver coins that had been stored in the garage attic and gun safe. Because paper receipts and David's check ledger


were also missing, and electronic records were no longer available for some items, David was unable to fully document his losses.

4. Trial of the Parties' Dueling Domestic Abuse Allegations

Over the course of four days in 2019 and 2020, the court heard testimony and received evidence on both restraining order requests. The parties submitted closing briefs, the matter was taken under submission and, on February 28, 2020, the court issued a detailed written order (the restraining order) ruling on their dueling requests.

The court found that, of Joanna's numerous abuse allegations, she proved two: first, during an argument in 2018, David became angry and threw various objects at Joanna and second, during the September 2019 incident described above, David "forcibly grabbed [Joanna]'s phone and threw it in the bushes." (The court found Joanna failed to prove her elbow laceration was the result of domestic violence.) The court issued a stayaway order against David.

The court also found that Joanna had committed abuse, following David's arrest and subsequent exclusion from Eagle Drive, by "confiscating and destroying [David]'s property," which "improperly disturbed [David's] peace in violation of section 6203." The court issued a stayaway order against Joanna and ordered her to vacate Eagle Drive. In discussing restitution, the court stated that Joanna must return the property she took and set a hearing date "to consider the amount of restitution owed, if any." It ordered David to file an accounting, including "all items specified in [David]'s testimony," and Joanna to file a response detailing items that had been returned or reimbursed.

While the restitution issue was pending, neither party appealed the restraining order.


5. The Restitution Trial

David filed an accounting and supporting documentation on June 30, 2020, alleging lost cash, lost property, and property damage in a total value exceeding $245,000. Joanna objected to restitution on various legal grounds (including the existence of the Virginia dissolution proceeding, and orders therein), admitted that she had taken $11,530 in cash but denied taking any of the other items set forth in David's accounting; and failed to dispute his valuations.

The restitution hearing was conducted over nine days between...

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