Sabbah v. Sabbah

• Court: California Court of Appeals
• Writing for the Court: Ikola
• Citation: Sabbah v. Sabbah, 60 Cal.Rptr.3d 175, 151 Cal.App.4th 818 (Cal. App. 2007)
• Decision Date: 30 May 2007
• Docket Number: No. G037223.,G037223.
• Parties: Doreen SABBAH, Plaintiff and Respondent, v. Ramadan SABBAH, Defendant and Appellant.

60 Cal.Rptr.3d 175

151 Cal.App.4th 818

Doreen SABBAH, Plaintiff and Respondent, v. Ramadan SABBAH, Defendant and Appellant.

No. G037223.

Court of Appeal, Fourth District, Division 3.

May 30, 2007.

Ramadan Sabbah, in pro. per.; Law Offices of Joseph A. Shuff, III and Joseph A. Shuff, III, Santa Ana, for Defendant and Appellant.

Doreen S. Sabbah, in pro. per., for Plaintiff and Respondent.

OPINION

IKOLA, J.

Ramadan Sabbah challenges the court's denial of both his new trial motion and his application under Code of Civil Procedure section 473, subdivision (b), for relief from a restraining order against him.¹ He contends his wife, Doreen Sabbah,² failed to carry her burden of proving he committed domestic violence, and the court erred by failing to give him notice under Family Code section 3044 that a domestic violence finding against him would adversely affect him in custody determinations. The latter argument requires us to interpret Family Code section 3044 to determine when and under what circumstances the statutory notice is required. Under our interpretation of the statute, we affirm the court's judgment and its order denying his application to set aside the restraining order.

FACTS

In December 2005, Doreen obtained a domestic violence temporary restraining order against Ramadan seeking, inter alia, custody of their children, and noticed a hearing on her request for a three-year restraining order. Her subsequently filed supplemental declaration stated, inter alia: "December 7, 2005, Ramadan, ... came into the kitchen and I was backed to the wall and he grabbed me by the throat and then grabbed a potato peeler and held it up as a weapon. [¶] December 8, 2005, ... I left [the apartment] to take the children to school.... When I returned Ramadan had locked me out. He told me I could not come in and to go to hell." She alleged she was locked out of their apartment for several days.

In his answer to the temporary order, Ramadan agreed to Doreen's requested custody order with the notation "please see attached dissolution of marriage," but contested all other requests, other than visitation which he left blank. In his attachments, Ramadan stated, "As for the incident she spoke of, the entire agony and argument came as soon as she heard me saying to her I will be moving out of the bedroom...." "I went to the kitchen to peel a Q-cumber [sic], and as soon as she came to the kitchen, I started to have pain in my chest, so I told her not to insult me again you ungrateful bitch, after I fed, [clothe], shelter and put you through a law school.... [¶] By morning I started to feel heavy pain going thru my chest and my left arm as well—I said to myself if she start[s] to babble like last night I might drop dead, so she came home two hours after dropping the kids to school—I locked the door from inside—and I told her to go away, I'm not gonna have three heart attacks in one year.... Ramadan asked the court "to enforce the `dissolution of marriage' signed on 12-31-04" as to child and spousal support and requested that "if the children want to see me and have a relationship with me—I ask the court to facilitate such request." Ramadan attached a copy of the dissolution of marriage agreement in which the parties agreed, inter alia, that Doreen would "have full and legal custody" of their five children.³

At the January 11, 2006 hearing, both parties acted in propria persona. (Doreen is a California licensed attorney.) The court summarized, and Doreen confirmed, that her "allegations generally" were (1) Ramadan grabbed her throat and threatened her with a potato peeler, and (2) he locked her out of the apartment. Doreen testified that after Ramadan locked her out of the apartment, the police advised her to find a place to stay near the court so she could file the temporary restraining order paperwork the next day. Ramadan testified: "[W]hen I locked her out I did experience the symptoms of a severe heart attack on the 8th, which is the next day after she had the fight with me. So the best thing I thought to protect my life is just to close the door and for her to go somewhere else until the kids come home. I did that." "The second thing about the kitchen instance.... [W]e had a dissolution of marriage in 2004.... She wanted me out of the kids' life completely. I signed this letting her have custody of the children, but now she doesn't want me to have any relationship with the children."

The court found Ramadan had perpetrated domestic violence against Doreen and granted a restraining order against him. The court also awarded Doreen sole custody of the children with monitored visitation rights to Ramadan.

Ramadan then retained counsel who filed a motion for a new trial and to set aside the restraining order pursuant to Code of Civil Procedure section 473. Ramadan asserted he "did not understand nor realize the impact of the domestic violence action" on "child custody and related issues"; on the other hand, Doreen, as "an attorney ... previously ... employed by a family law firm and ... knowledgeable regarding the import of a domestic violence action," "knew exactly what she was doing to obtain custody of [the] children...."

Doreen retained counsel and argued Ramadan's "reliance upon Family Code section 3044 [(section 3044)] to support his motion ... is misplaced...." Although Ramadan's motion did not expressly mention section 3044, Doreen apparently inferred from his reference to her seeking custody that he was relying on the statute, because section 3044 creates a rebuttable presumption that an award of custody to a domestic violence perpetrator is not in the child's best interest. Section 3044, subdivision (f) (section 3044(f)) requires a court under certain circumstances to inform the parties about the statute, as discussed in more detail post. Doreen argued section 3044 "is predicated upon the party [accused] of domestic violence ... seeking custody of the children," and further contended section 3044(f) only requires notice prior to custody mediation.⁴ She asserted Ramadan's motion "must fail because he never requested custody."

At the hearing on the motion, Ramadan's counsel argued he "was not aware of [section] 3044 ... and the court should have given him notice of that before any proceeding occurred in this case." The court denied Ramadan's motion, finding "section 3044 is inapplicable," and "the criteria necessary for setting aside the court's orders under [Code of Civil Procedure, section] 473 were not met."

DISCUSSION

Substantial Evidence Supported the Court's Finding Ramadan Committed Acts of Domestic Violence

Ramadan asserts Doreen failed to prove by a preponderance of the evidence that he perpetrated domestic violence, contending this was "a classic `liars' contest with one party arguing that events occurred while the other party argue[d] that they did not."⁵ Thus, Ramadan essentially challenges the court's factual finding he committed the alleged acts of domestic violence.⁶

A reviewing court applies the substantial evidence standard of review to a trial court's factual findings, "regardless of the burden of proof at trial." (In re Marriage of Murray (2002) 101 Cal.App.4th 581, 604, 124 Cal.Rptr.2d 342; see also 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 364, p. 414.) Our sole inquiry is "whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted," supporting the court's finding. (Howard v. Owens Corning (1999) 72 Cal. App.4th 621, 631, 85 Cal.Rptr.2d 386.) "We must accept as true all evidence ... tending to establish the correctness of the trial court's findings ..., resolving every conflict in favor of the judgment." (Ibid.)

Contrary to Ramadan's assertion that he denied Doreen's domestic violence allegations, he admitted locking her out of their apartment. Moreover, even if he had denied all her allegations, "it is the exclusive province of the [trier of fact] to determine the credibility of a witness...." (Lenk v. Total-Western, Inc. (2001) 89 Cal. App.4th 959, 968, 108 Cal.Rptr.2d 34.) The court evidently found credible Doreen's testimony about the potato peeler and lock-out incidents. The testimony of a single witness may provide sufficient evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614, 122 Cal.Rptr. 79, 536 P.2d 479.) In sum, substantial evidence supported the court's finding Ramadan committed the alleged acts of domestic violence.

The Court Properly Ruled Section 30M Was Inapplicable

Ramadan contends the court erred by ruling he was not entitled to notice under section 3044(f) of the rebuttable presumption against an award of custody to a domestic violence perpetrator. He implies he would have more "vigorously" contested Doreen's abuse allegations if he had known a domestic violence finding against him would trigger the presumption that his gaining custody of the children would be detrimental to them. According to Ramadan the purpose of section 3044(f) is to mandate notice to "the parties to ... restraining order applications of the significance of a finding of `domestic violence.'" In his view, a person accused of domestic abuse must be given the section 3044(f) notice "before any ... decisions [are made] regarding domestic violence," i.e. while the accused can still defend against the accusation.

The court ruled section 3044(f) did not apply "at the point in time of a domestic violence underlying proceeding." By this ruling, the court interpreted the statute, an interpretation we review de novo. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432, 101 Cal. Rptr.2d 200,11 P.3d 956.)

Section 3044, subdivision (a) creates a rebuttable presumption affecting domestic violence perpetrators who seek custody of children: "Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child ... within the previous five years,...