1

Filed 8/22/24

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

KAMILA MALINOWSKI,

Plaintiff and Appellant,

v.

JUSTIN MARTIN,

Defendant and Respondent.

 A167187

 (San Mateo County

 Super. Ct. No. 21-FAM-01531)

Kamila Malinowski appeals from the trial court’s denial of her request 

to include her two children as protected parties under an existing domestic 

violence restraining order (DVRO) under the Domestic Violence Prevention 

Act (DVPA; Fam. Code, § 6200 et seq.)1 against the children’s father, Justin 

Martin. Malinowski claims that Martin abused the children during several 

visitation exchanges in 2021, and that these events, along with the children’s 

reports of other alleged abuse, were captured on video by a vehicle “dash 

cam.” Among other things, Malinowski contends the dash cam videos were 

erroneously excluded at trial because the videos did not, as the trial court 

found, record “confidential communications” within the meaning of the 

California Invasion of Privacy Act (Privacy Act; Pen. Code, § 630 et seq.), and 

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this 

opinion is certified for publication with the exception of parts A.5., B., C., and 

D. of the Discussion.

1 Further unspecified statutory references are to this code.
2

because the recordings were otherwise permitted under statutory exceptions 

to the Privacy Act (Pen. Code, §§ 633.5 and 633.6).

In the published portion of this opinion, we conclude that although the 

statutory exceptions of Penal Code sections 633.5 and 633.6 were inapplicable 

on the record presented below, the trial court erred in ruling that the dash 

cam videos captured Martin’s confidential communications with the children

in violation of the Privacy Act. In the unpublished portion of this opinion, we 

conclude the trial court’s Privacy Act error was harmless, and we reject 

Malinowski’s other claims of error. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

This case has a complicated history in the lower court, as well as a 

prior appeal in this court (Malinowski v. Martin (2023) 93 Cal.App.5th 681 

(Malinowski)). We will first provide a general summary of events, adapted in 

part from our prior decision in Malinowski. Additional background facts 

relevant to the contentions on appeal will be set forth in the applicable 

sections of the Discussion, post.

A. Marriage, Dissolution, and First DVPA Case

Malinowski and Martin were married in September 2013. They have 

two children, I.M. and J.M. 

In September 2018, Malinowski filed for dissolution of marriage (case 

No. 18-FAM-02115). That same day, she obtained a domestic violence 

temporary restraining order (DVTRO) against Martin protecting herself, I.M. 

and J.M. (ages 3 and 1 at the time), and her parents (case No. 18-FAM02115-A). 

B. Elder Abuse Restraining Order

In a separate case (case No. 18-PRO-01021), Malinowski’s parents 

obtained a three-year elder abuse restraining order against Martin. In 
3

January 2019, the trial court found by clear and convincing evidence that 

Martin committed elder abuse against Malinowski’s father (hereafter 

Grandfather) and ordered Martin to, among other things, stay 100 yards from 

Malinowski’s parents.2

C. Early Custody and Visitation Orders

In the dissolution matter, the family court appointed Dr. Robin Press to 

perform a full child custody evaluation. The court also granted Martin 

supervised visitation with the children. 

D. First DVPA Trial

Meanwhile, the trial court in the DVPA action held a trial in October 

2020. At the conclusion of testimony, the court announced its decision to 

issue a three-year DVRO protecting Malinowski from Martin, finding “there 

were incidences of domestic violence in all of the testimony going back to 

2015 or somewhere in that nature.” However, the court elected not to include 

Malinowski’s parents or the children as protected parties because the 

grandparents had “their own restraining order,” and the children were 

adequately protected in the “hands-on family law action currently pending.”3 

Two items of the October 2020 DVRO are noteworthy. First, it 

contained an exception to the personal conduct and stay-away orders for 

Martin’s “peaceful contact with children . . . as required for court-ordered 

visitation of children.” Second, the October 2020 DVRO checked a box 

2 In February 2022, the elder abuse restraining order was renewed for 

five years. 

3 The trial court instructed Malinowski’s counsel to prepare and file a 

formal order. For whatever reason, the DVRO was not filed until May 2021. 

To avoid confusion regarding the chronology of events, we will refer to this

DVRO as the “October 2020 DVRO.”
4

permitting Malinowski “to record communications made by [Martin] that 

violate the judge’s orders.” 

E. Family Court Hearings Regarding Visitation and Exchanges

Back in the family court proceedings, the Honorable Sean P. Dabel 

conducted a March 2021 hearing and heard testimony from supervised 

visitation provider Julie Espinoza. Judge Dabel changed Martin’s visitation 

status from supervised to unsupervised but ordered that the exchanges of the 

children be supervised by Espinoza. Judge Dabel instructed Espinoza “to 

take notes as to what’s going on with these kids and what they are saying,” 

noting that it “is a benefit to the father and a benefit to the Court” to have 

her document the events in order to understand the basis for the children’s 

resistance to visitation. Judge Dabel further remarked that supervised 

exchanges would allow the court to “gain information about how these 

parents are interacting and how the children, then, are provided to the 

father.” 

In July 2021, Judge Dabel held an evidentiary hearing on, among other 

matters, Martin’s request for increased visitation hours and his claim that 

Malinowski was interfering with visitation. Espinoza testified that since she 

had begun supervising exchanges in March 2021, the children had refused to 

go on approximately one-third to one-half of the visits, claiming Martin had 

hit them, and that their mother had told them they could not go. Espinoza 

said she had never observed Martin inappropriately handle the children. 

Espinoza’s testimony then turned to several events that would become 

the subject of Malinowski’s second DVPA action from which this appeal lies. 

We will briefly mention them now.

Espinoza was examined about an exchange on June 14, 2021, in which 

Martin allegedly drove away with only J.M. and left I.M. alone in a parking 
5

lot. As Espinoza explained, “if I step away and leave the kids alone with Dad, 

they will go on the visit. So I parked about 20 yards away, and I’m watching 

the situation happen. [J.M.] gets out of the car. The kids are getting in and 

out of the car, running around the car, getting back in the car, getting out of 

the car. [¶] One of the times while [J.M.] is out of the car, Dad scoops him up 

and puts him into his vehicle. [I.M.] is calling for [J.M.], and [J.M.] is saying 

that he wants [I.M.] to go. I am close enough so I can hear them. Dad goes 

back to the car. I can see him talk with [I.M.], and then he walks away, gets 

in his car, and he drives away. As he’s driving away, I’m getting out of my 

vehicle, walking towards [I.M.], who is in the vehicle. Grandfather is across 

the street. . . . [¶] [I.M.] gets out of the car. She’s not in distress. And 

Grandpa starts walking over, and I tell Grandpa that [I.M.] has been very 

naughty today. And Grandpa tells her in a really firm voice ‘You are no 

good.’ [I.M.] bursts into tears and runs back to the car.” 

Espinoza further testified that during another supervised exchange, 

Martin told J.M. that if he did not come on the visit to take care of his pet 

fish, Martin would flush the fish down the toilet. Espinoza admonished 

Martin for this remark. 

Espinoza was asked by Malinowski’s counsel, Diane Morin, about an 

incident on June 1, 2021, in which Martin allegedly told I.M. that she could 

go to jail for six-year-olds for lying. Espinoza testified that she did not recall 

this remark and that it did not appear in her written report. When Morin 

attempted to refresh Espinoza’s recollection, Judge Dabel asked Morin what 

document she would be using. Morin responded, “it’s not a document” and 

indicated there were video recordings of the children exchanges that 

Espinoza supervised. Morin continued, “So my question to Ms. Espinoza is 

simply isn’t it true that on June 1st, 2021, the father gets upset and says to 
6

his daughter . . . that he will call the police on her; she will go to jail; the jail 

is just next to them; and there are jails for six-year-olds?” Espinoza 

responded, “I do not know. As she stated, the visits are recorded, and once 

Dad is with the kids, I may not necessarily be there because that’s his 

parental time. So conversations may have happened with the kids that I was 

not privy to because I had stepped away.”4

Espinoza provided further testimony on allegations that the children 

sometimes waited in the car for hours during exchanges; that she once had 

J.M. lift up his shirt to show where I.M. had kicked him; that the children 

sometimes urinated on themselves during the exchanges; and that J.M. was 

once bitten by a turtle during a visit with Martin. 

After the conclusion of testimony, Judge Dabel announced his decision 

to increase Martin’s visitation hours. Though Judge Dabel admonished 

Martin for threatening to flush J.M.’s fish down the toilet, he also

admonished Malinowski for telling the children that visitation should not go 

forward and expressed his “deep suspicion” that Malinowski was not 

encouraging visits and alienating the children from Martin. On July 13, 

2021, Judge Dabel issued a written order increasing Martin’s visitation with 

the children to 15 hours per week, with the exchanges to be supervised by 

Espinoza. 

F. Second DVPA Petition

On September 14, 2021, Malinowski filed a second DVPA petition (case 

No. 21-FAM-101531) seeking a DVRO to protect herself and the children 

from Martin. In a supporting declaration, Malinowski alleged that Martin 

4 We may reasonably assume, based on context, that Espinoza meant to 

say the exchanges were recorded, as Espinoza was referring to what Morin 

had just previously told the court.
7

had committed the following nine instances of abuse against the children in 

2021: (1) on April 3, the children returned from a visit reporting that Martin 

had pulled J.M. by the wrists and locked I.M. in another room; (2) on April 8, 

upon returning from a visit, I.M. reported that Martin allowed J.M. to leave 

the residence unattended, and J.M. thereafter fell and sustained a 

concussion; (3) on May 13, the children returned from a visit reporting that 

Martin had punched J.M. in the chest at the front gate of Martin’s property; 

(4) on May 17, upon returning from a visit, J.M. reported that Martin hit him 

in the shoulder and said “ ‘Fuck you, [J.M.]’ ”; (5) during an exchange on May 

24, Martin threatened to kill J.M.’s fish if he did not agree to a visit; 

(6) during an exchange on June 1, Martin threatened to send I.M. to “jail for 

six-year-olds”; (7) on June 3, J.M. reported to school personnel that his father 

had punched him in the chest while yelling, “ ‘Fuck you, [J.M.]’ ”; (8) during 

an exchange on June 14, Martin took a crying J.M. and drove away, 

abandoning I.M. in the parking lot; and (9) on August 9, after an 

unsupervised visit, I.M. reported that “ ‘Daddy tried to punch my head’ ” and 

“ ‘Daddy said he will make me dead.’ ” (Italics omitted.)

The trial court immediately issued a DVTRO against Martin that 

included the children as protected persons and contained no-contact and stayaway orders, with no exceptions. (Malinowski, supra, 93 Cal.App.5th at 

p. 686.) As a result, Martin’s visitation with the children ceased for several 

months. (Id. at p. 687.)

After the DVPA case was assigned for all purposes to Judge Dabel, 

Malinowski filed a successful peremptory challenge under Code of Civil 

Procedure section 170.6. (Malinowski, supra, 93 Cal.App.5th at p. 687.) The 

matter was then reassigned several times until both the second DVPA matter 

and the dissolution case were assigned to one trial court judge. (Id. at 
8

pp. 687–688.) In March 2022, the court explained that after having become 

fully acquainted with the case, including Judge Dabel’s prior orders allowing 

Martin unsupervised visits and increasing his visitation hours, it would 

modify the DVTRO to contain exceptions for brief and peaceful contact for 

court-ordered visitation. (Id. at p. 689.) In Malinowski, we affirmed the trial 

court’s order, concluding it was not required to follow the procedures of Code 

of Civil Procedure section 533 in order to modify the DVTRO to allow for 

exceptions consistent with child visitation ordered in the parallel dissolution 

case. (Malinowski, at p. 685.)

G. Second DVPA Trial

The second DVPA trial was held in October 2022. In her amended 

exhibit list submitted before trial, Malinowski identified several exhibits as 

video clips of the alleged abuse. She also identified several exhibits 

collectively as “Video transcript of abuse.”5

Both parties filed motions in limine. Martin’s motion in limine no. 7 

sought to exclude the children from testifying at trial. The trial court granted 

that motion, and Malinowski does not challenge that ruling on appeal.

Malinowski’s motion in limine no. 2 sought to admit video footage of the 

supervised exchanges captured by a vehicle dash cam, while Martin’s motion 

in limine no. 5 sought to exclude the “secretly-obtained unlawful recordings.” 

The trial court granted Martin’s motion to exclude the dash cam evidence. 

Over the course of nine days, the trial court heard testimony from 

Malinowski; the children’s therapist, Valerie Houghton; the visitation 

exchange supervisor, Espinoza; Malinowski’s private investigator, Cliff 

5 The videos are not in the record. The transcript of the videos, which 

appears to have been prepared by Malinowski, is in the record, and we 

discuss it in detail in part A.5. of the Discussion, post.
9

Jorgensen; Grandfather; and Martin. After closing arguments, the court 

issued its oral ruling denying Malinowski’s request to add the children as 

protected parties to the DVRO. 

Malinowski requested a statement of decision, and in December 2022, 

the trial court issued a written decision finding that Martin “did not commit 

the alleged acts of domestic violence or abuse against the minor children.” 

The court noted that Judge Dabel had previously conducted a hearing in 

“March 2021” addressing many of the same allegations raised here, and, like 

Judge Dabel, the court found that Espinoza was “an objective observer of the 

exchanges” and “a credible witness,” and that “she represented the voice of 

sanity amidst all the chaos.” The court further found that Espinoza “was met 

with roadblocks erected by” Malinowski and Grandfather. 

The trial court did not “find reliable the opinion testimony of the 

children’s therapist Valerie Houghton that, based upon what Ms. Houghton 

described as a ‘convergence of data,’ the children were telling the truth when 

they reported to her acts of abuse by their father.” The court further 

emphasized that Houghton had never spoken directly to either Martin or 

Espinoza about the children’s reports. 

The trial court also found that Malinowski’s testimony about the 

children’s reports of abuse and her observed symptoms of alleged abuse was 

unreliable, as Malinowski “was not a personal witness to any of the alleged 

abuse perpetrated by [Martin] and thus, had no personal knowledge of any 

such abuse. The evidence, in toto, does not support any of the allegations of 

abuse of the children by [Martin].” 

Based on these findings, the trial court denied Malinowski’s request to 

add the children to the existing DVRO and ordered “the immediate 
10

implementation of the 120 day recommendation contained in the Child 

Custody Evaluation.” 

This appeal followed. 

DISCUSSION

Under the DVPA, the trial court may issue a restraining order “to 

prevent acts of domestic violence, abuse, and sexual abuse and to provide for 

a separation of the persons involved in the domestic violence for a period 

sufficient to enable these persons to seek a resolution of the causes of the 

violence.” (§ 6220.) “Abuse” under the DVPA includes intentionally causing 

or attempting to cause bodily injury, and “plac[ing] a person in reasonable 

apprehension of imminent serious bodily injury to that person or to another.” 

(§ 6203, subd. (a)(1), (3).) Section 6203 “broadly provides that ‘disturbing the 

peace of the other party’ constitutes abuse for purposes of the DVPA.” (In re 

Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497 (Nadkarni); see 

§§ 6203, subd. (a)(4), and 6320, subd. (c).) The court must “consider the 

totality of the circumstances in determining whether to grant or deny a 

petition for relief.” (§ 6301, subd. (c).)

A. Exclusion of Dash Cam Footage

In considering Malinowski’s request to add the children to the existing 

DVRO, the trial court excluded Malinowski’s dash cam videos on the ground 

that they recorded Martin’s confidential communications with the children in 

violation of the Privacy Act (Pen. Code, § 632). Malinowski contends this was 

a prejudicial evidentiary error, as Martin “could have no objectively 

reasonable expectation that things he said and did at the supervised 

exchanges would not be overheard due to both prior court orders and the 

public nature of the exchange location.” 
11

1. Additional Background Facts

In her motion in limine no. 2, Malinowski argued the dash cam 

recordings were admissible because (1) the October 2020 DVRO authorized 

her to record violations of the trial court’s orders; (2) no “confidential 

communications” were captured given the public nature of the exchange 

location; and (3) the recordings fell within the exceptions to the Privacy Act 

under Penal Code sections 633.5 and 633.6. 

Martin meanwhile argued the videos should be excluded from evidence 

because they were unlawfully obtained without his and Espinoza’s express 

consent, and because Malinowski was not recording the exchanges with a 

reasonable belief in obtaining evidence of felony child abuse, as there has 

never been a finding of his domestic violence against the children, and the 

children were not the subject of any protective order. Martin also complained 

that Malinowski had refused to produce the videos until the eve of trial 

“despite multiple requests . . . going back to April/May 2021.” 

During argument on these motions, Martin’s counsel additionally 

contended that the videos were more prejudicial than probative, as 

Malinowski had admitted she edited the video clips. Malinowski’s counsel 

acknowledged that edited versions of the dash cam videos had been sent to 

Houghton for her review, but he insisted the videos offered as trial exhibits 

were complete and unedited. Additionally, Malinowski’s counsel reiterated a 

previous request for a hearing under Evidence Code section 402.

The trial court declined to admit the video evidence, finding that 

Martin had a reasonable expectation of not being recorded or overheard at 

the supervised exchanges of the children, and that therefore the recordings 

were made “in violation of Penal Code [section] 632.” The court further 

remarked that Espinoza “is the best evidence in regards to the nature of the 
12

exchange. And so the dashcam footage, which the Court also has concerns 

about in terms of its completeness, is also an undue use of the Court’s time 

when we have a witness who will be present to testify about those 

exchanges.” 

During the course of the trial, Malinowski provided general testimony 

on how the exchanges were conducted and the nature of the location in which 

they were held. As she explained, Grandfather would drive the children to a 

public parking lot to meet Espinoza. The parking lot was adjacent to various 

buildings, including a bank, a city council building, and a police station. 

Once Espinoza removed the children from the car, Grandfather would wait

across the street—a step necessitated by the fact that the elder abuse 

restraining order against Martin was still in place. After confirming that 

Grandfather was across the street, Espinoza would contact Martin and

instruct him to come pick up the children. If the children agreed to go with 

Martin, Espinoza would inform Grandfather the exchange was successful. If 

the children refused, Espinoza would call for Grandfather to return to the 

parking lot and take the children home.

Espinoza testified her role as exchange supervisor was “ ‘to observe, 

monitor, and document,’ ” as well as to keep the children safe. According to 

Espinoza, the children were often loud and unruly during the exchanges, 

which attracted the attention of bystanders. Once Martin arrived at the 

exchange location, Espinoza would sometimes drive to another part of the 

parking lot and supervise the interaction from a distance. 

Private investigator Jorgensen testified that Malinowski hired him to 

surveil an exchange on April 19, 2021. He took photographs and videos 

showing, among other things, I.M. screaming and climbing on top of an SUV. 

Espinoza testified she did not know a private investigator was watching, but 
13

she often had the feeling of being watched “in addition to the cameras inside 

Mom’s car.”6 She further testified that Grandfather sometimes hid in the 

bushes and watched the exchange through binoculars. 

2. Governing Law

A trial court’s ruling on a motion in limine is generally reviewed for 

abuse of discretion, but where, as here, the issue is one of law, we exercise de 

novo review. (Condon-Johnson & Associates, Inc. v. Sacramento Municipal 

Utility Dist. (2007) 149 Cal.App.4th 1384, 1392.)

The Privacy Act bars the recording of a “confidential communication” 

without the consent of all parties to the communication. (Pen. Code, § 632, 

subd. (a).) A “ ‘confidential communication’ means any communication 

carried on in circumstances as may reasonably indicate that any party to the 

communication desires it to be confined to the parties thereto, but excludes a 

communication made in a public gathering or in any legislative, judicial, 

executive, or administrative proceeding open to the public, or in any other 

circumstance in which the parties to the communication may reasonably 

expect that the communication may be overheard or recorded.” (Id., 

subd. (c).) Evidence obtained in violation of this statute is not admissible in 

any judicial, administrative, legislative, or other proceeding. (Id., subd. (d).)7

“The test of confidentiality is objective.” (Coulter v. Bank of America

(1994) 28 Cal.App.4th 923, 929.) In Flanagan v. Flanagan (2002) 27 Cal.4th 

6 We assume that by “Mom’s car,” Espinoza was referring to the vehicle 

Grandfather drove to the exchange. We also note that the earliest date on 

which Espinoza testified noticing cameras in the car was May 17, 2021. 

7 Those who violate Penal Code section 632 face fines, imprisonment, or 

both. (Pen. Code, § 632, subd. (a).) Additionally, any person who has been 

injured by a violation of the Privacy Act may bring a civil action against the 

violator for the greater of treble damages or a statutory penalty, as well as 

injunctive relief. (Pen. Code, § 637.2.)
14

766 (Flanagan), the Supreme Court endorsed the test set forth in Frio v. 

Superior Court (1988) 203 Cal.App.3d 1480 (Frio) for determining the 

confidentiality of a communication: “ ‘[U]nder section 632 “confidentiality” 

appears to require nothing more than the existence of a reasonable 

expectation by one of the parties that no one is “listening in” or overhearing 

the conversation.’ ” (Flanagan, at pp. 772–773, italics omitted.)

3. Martin’s Communications Were Not Confidential

As set forth above, Penal Code section 632, subdivision (c), defines 

“confidential communications” in essentially two parts. The first clause

generally defines what is confidential, while the second phrase explains what 

is excluded from the definition. We conclude communications made during 

visitation exchanges that have been ordered by a family court to be 

supervised do not meet the definition of “confidential communications” under 

the first clause of Penal Code section 632, subdivision (c). That is, such 

communications are not “carried on in circumstances as may reasonably 

indicate that any party to the communication desires it to be confined to the 

parties thereto.” This is because a supervised exchange, by its very nature, 

involves the monitoring and documenting of the statements made by the 

participants. Espinoza’s role as exchange supervisor was not simply to be 

present but to carefully observe the events and “take notes as to what’s going 

on with these kids” so that the court could gain information about the 

interactions between Martin and the children.” Where, as here, the 

exchanges were subject to formal oversight by Espinoza and ultimately the 

court, Martin could not reasonably expect that statements made during such 

exchanges would be confined just to those present.

8

8 Our conclusion does not advance the disapproved test of O’Laskey v. 

Sortino (1990) 224 Cal.App.3d 241 (see Flanagan, supra, 27 Cal.4th at 
15

We also conclude the communications in question fall within the 

exclusionary language in the second clause of Penal Code section 632, 

subdivision (c)—that is, “a communication made . . . in any . . . circumstance 

in which the parties to the communication may reasonably expect that the 

communication may be overheard or recorded.” Here, the communications 

were made during supervised exchanges that took place in a public parking 

lot during daylight hours, and the parking lot was adjacent to businesses and 

public buildings. Moreover, the conversations occurred in and around a 

vehicle that was not Martin’s own, and the commotion during the exchanges 

often attracted the attention of bystanders. Unlike other cases involving 

surreptitious recordings of telephone conversations (see, e.g., Flanagan, 

supra, 27 Cal.4th at p. 770; Frio, supra, 203 Cal.App.3d at pp. 1485–1486),

the circumstances were such that the parties to the exchanges could 

reasonably expect their statements to be overheard at any time by members 

of the public who happened to be nearby. At this juncture it bears 

emphasizing that both the statutory and decisional law state the test for 

confidentiality in the disjunctive—whether a communication may reasonably 

be expected to be “overheard or recorded.” (Pen. Code, § 632, subd. (c), italics 

added; Flanagan, supra, 27 Cal.4th at pp. 776–777, italics added.) 

Additionally, we note there were indications in this case that both 

Espinoza and Martin were actually aware they were being recorded during 

the exchanges. At various times during the proceedings below, Espinoza 

testified she knew of the camera in Malinowski’s vehicle, including during a 

July 2021 family court hearing in which Martin was present. Likewise, 

pp. 768, 776, fn. 4), as we are not assessing confidentiality based on the 

contents of the statements made during the exchanges, but on the external 

circumstances in which the statements were made.
16

Martin’s motion in limine no. 5 represented he had been requesting 

production of the videos since “April/May 2021.” Taking Martin at his word, 

it stands to reason he knew the exchanges were being recorded from April 

2021 onward. Though we need not decide whether his consent to the 

recordings may be implied from this circumstance (see Rojas v. HSBC Card 

Services Inc. (2023) 93 Cal.App.5th 860, 881), it is relevant to show that 

Martin could not reasonably believe the statements he made during the 

exchanges would be “confined to the parties thereto” and would not be 

“overheard or recorded.” (Pen. Code, § 632, subd. (c).)

In sum, we conclude the trial court erred in finding that Malinowski 

recorded “confidential communications” in violation of Penal Code section 

632.

4. Penal Code Sections 633.5 and 633.6

We will also address Malinowski’s alternative contention that the dash 

cam recordings came within domestic violence exceptions to the Privacy Act’s 

prohibitions under Penal Code sections 633.5 and 633.6. We do so in order to 

clarify the scope of these exceptions and discourage any potential abuses of 

their provisions.

We first address subdivision (a) of Penal Code section 633.6, which

provides that a judge issuing a DVRO “may include a provision in the order 

that permits the victim to record any prohibited communication made to him 

or her by the perpetrator.” Malinowski contends this statutory exception

applies because the October 2020 DVRO permitted her to record 

communications “that violate the judge’s orders.” We disagree, as the only 

“prohibited communication” for purposes of the October 2020 DVRO was 

Martin’s contact with Malinowski, the sole person protected under that 

restraining order. Significantly, the trial court intentionally excluded the 
17

children as protected persons under the October 2020 DVRO, and Martin was 

otherwise permitted by the family and domestic violence courts to have 

contact with the children for purposes of visitation. Because Martin was

allowed to have contact with the children, it cannot be said that his 

communications during the supervised exchanges were “prohibited” within 

the meaning of Penal Code section 633.6, subdivision (a). True, the October 

2020 DVRO mentioned the children in specifying an exception to the nocontact and stay-away orders for Martin’s “peaceful contact with children . . . 

as required for court-ordered visitation of children,” but the court seemed to 

indicate its view that enforcement of the “peaceful contact” language was 

within the ambit of the family court, not the DVPA court. In short, because 

the October 2020 DVRO did not prohibit Martin’s contacts with the children, 

it did not grant Malinowski permission to record their confidential 

communications.

Next, we turn to Penal Code section 633.6, subdivision (b), and section 

633.5, both of which permit, under specified circumstances, the recording of 

confidential communications for purposes of evidence-gathering. Penal Code 

section 633.6, subdivision (b), provides that “a victim of domestic violence 

who is seeking a domestic violence restraining order from a court, and who 

reasonably believes that a confidential communication made to him or her by 

the perpetrator may contain evidence germane to that restraining order, may 

record that communication for the exclusive purpose and use of providing 

that evidence to the court.” And as relevant here, Penal Code section 633.5 

states that Penal Code section 632 does “not prohibit one party to a 

confidential communication from recording the communication for the 

purpose of obtaining evidence reasonably believed to relate to the commission 

by another party to the communication of” various enumerated crimes, 
18

including “any felony involving violence against the person” such as 

“domestic violence as defined in [Penal Code] Section 13700.” 

As indicated, these statutes require a reasonable belief the recordings 

will result in evidence that is “germane” to an anticipated DVRO9 (Pen. Code, 

§ 633.6, subd. (b)) or that “relate[s]” to felony domestic violence (Pen. Code, 

§ 633.5). In In re Trever P. (2017) 14 Cal.App.5th 486 (Trever P.), the court 

clarified that in order for a parent to make a surreptitious recording of their

child with another for the purpose of gathering evidence of abuse, the parent 

must have “a good faith, objectively reasonable belief that the recording is in 

the best interest of the child.” (Trever P., at p. 501 [addressing Penal Code, 

§ 633.5].)

We cannot conclude Malinowski has met Trever P.’s objective test. 

Malinowski began recording in or around March 2021 when the supervised 

exchanges first started. Notably, however, she identifies no specific facts 

from that time period demonstrating a good faith, objectively reasonable 

belief that recording the supervised exchanges would be in the children’s best 

interest. Instead, she claims she had reasonable grounds for making the 

recordings because of Martin’s “long history of being uncontrollably violent,” 

which included death threats against her, the children, Grandfather, and 

Martin’s own father. 

9 In Br. C. v. Be. C. (2024) 101 Cal.App.5th 259, the court explained that 

Penal Code section 633.6, subdivision (b)’s phrase “seeking a domestic 

violence restraining order from a court” does not require an active DVRO 

request at the time the confidential communications are recorded. Rather, a 

domestic violence victim may make the recording “so long as he or she 

intends to request a DVRO and reasonably believes that the communication 

may contain evidence germane to that request, regardless of whether a 

petition has yet been filed with a court.” (Br. C., at p. 266.)
19

We fully acknowledge that the allegations of Martin’s prior domestic 

violence against Malinowski were examined and adjudicated in her favor in 

the first DVPA case, leading to the October 2020 DVRO, and that the 

allegations of abuse against Grandfather led to the elder abuse restraining 

order. While we do not intend to minimize or gloss over the gravity of these 

circumstances, it remains the case that the October 2020 DVRO did not 

include the children as protected parties, and the family court thereafter 

monitored the children’s safety and gradually increased and elevated 

Martin’s visitation status after holding evidentiary hearings that involved 

extensive examinations of Malinowski’s claims of abuse. Given the children’s 

exclusion from the original DVRO and the family court’s subsequent 

determinations that evidence supported the increase of Martin’s visitation 

status, we cannot conclude that Martin’s violent history toward Malinowski 

and Grandfather compelled a finding that Malinowski had objectively

reasonable grounds under Penal Code sections 633.5 and 633.6, subdivision 

(b), for recording Martin’s communications with the children. Were we to 

hold otherwise, there would effectively be no limit on Malinowski’s ability to 

record Martin’s confidential communications with the children going forward. 

We decline to read the statutory exceptions so broadly.

As further support for her claim of an objectively reasonable belief, 

Malinowski highlights the children’s on-camera accusations of abuse, in 

particular, I.M.’s recorded report in August 2021 that Martin said he would 

“make [her] dead.” But of all the dash cam recordings allegedly reflecting 

acts or reports of abuse, the recorded August 2021 report occurred last in 

time and, accordingly, provides no basis—let alone an objectively reasonable 

one—for recording the supervised exchanges beginning in March 2021. 

Malinowski cites no authority for such an ends-justifies-the-means 
20

interpretation of the reasonable belief requirement of Penal Code sections 

633.5 and 633.6, subdivision (b), and we decline to endorse one.

Though we reject Malinowski’s argument that Penal Code sections 

633.5 and 633.6, subdivision (b), permitted her to make the dash cam 

recordings of the supervised exchanges for the purpose of evidence-gathering,

we reiterate our holding that the trial court erred in concluding the dash cam 

videos captured confidential communications in violation of Penal Code 

section 632 and in excluding the evidence on that basis.

5. Prejudice

In determining whether the trial court’s error was prejudicial, we must 

decide, based on “an examination of the entire cause, including the evidence” 

(Cal. Const., Art. VI, § 13), if it is reasonably probable that a result more 

favorable to Malinowski would have been reached in the absence of the error

(People v. Nakai (2010) 183 Cal.App.4th 499, 519).

Having carefully examined the entire record in this case, including 

Malinowski’s transcript of the dash cam recordings and the testimony and 

exhibits admitted at trial, we are satisfied that the erroneous exclusion of the 

dash cam evidence was harmless. Put another way, it is not reasonably 

probable that the admission of the dash cam footage would have led to the 

issuance of a DVRO protecting the children.

a. On-Camera Accusations of Abuse

We begin by noting that only three of the 25 video clips identified in 

Malinowski’s transcript purport to depict incidents of abuse by Martin.

10 

10 The transcript contains separate entries for each alleged instance of 

abuse caught on video. In total, there are 25 separate clips of varying 

lengths, ranging from 44 seconds to 15 minutes, with most clips being several 

minutes long. At the top of each entry, the transcript provides a summary of 

the clip and identifies the “Video Date,” “Video Start” (the time a particular 
21

These are: (1) the May 24, 2021, video of Martin saying he would flush J.M.’s 

fish down the toilet; (2) the June 1, 2021, clip of Martin telling I.M. that sixyear-olds can go to jail for lying; and (3) the June 14, 2021, clip of the 

exchange during which Martin allegedly abandoned I.M. in the parking lot. 

These incidents will be discussed, post, in part 5.b.

The remaining videos consist mostly of the children’s on-camera 

accusations that Martin had previously committed acts of abuse against 

them. As such, these video clips were cumulative of other testimony 

admitted at trial regarding the children’s reports of abuse. Malinowski 

testified at length regarding each of the children’s reports in 2021 that 

Martin had pulled J.M. by the wrists and locked I.M. in another room in 

April; left J.M. unattended when he fell and suffered a concussion in April; 

pulled J.M. by the wrists and cursed at him during I.M.’s birthday 

celebration in May; punched J.M. in the chest at the front gate of Martin’s 

property in May; abandoned I.M. in the parking lot on June 14; and tried to 

punch I.M.’s head and said he would “make [her] dead” in August. The 

children’s therapist, Houghton, offered similar testimony regarding the 

children’s reports of abuse. Meanwhile, the transcript reflects that the 

children’s on-camera accusations were often uttered quickly during the frenzy 

of the exchanges and did not add any new details about the alleged abuse 

that were not already established through the admitted testimony. If 

clip starts within a longer video), “Clip Length” (in minutes and seconds), and 

“Speaker Key” (initials for each of the persons shown in the clip). Below this 

is a transcription of the statements made in the recordings, with each 

statement attributed to the initials of a speaker. We will assume, for the 

sake of argument, that the transcript is accurate. Notably, however, it is not 

clear from the transcript, briefing, or record whether the dash cam was dualfacing, or whether it was positioned to record the front of the vehicle or its 

interior. 
22

anything, Malinowski’s and Houghton’s testimony about the children’s 

reports were far more detailed than what the children said in the videos.

Additionally, we cannot ignore that the children’s on-camera 

accusations were hearsay to the extent they were offered to prove the truth of 

the matters asserted by the children. (Evid. Code, § 1200.) Malinowski does 

not argue that any hearsay exception applies, and on the present record, the 

trial court could have validly concluded that none did.11 The on-camera 

statements were not made close in time to the described events so as to 

qualify as either contemporaneous statements (Evid. Code, § 1241) or 

spontaneous utterances made under the stress of excitement and without 

deliberation or reflection (id., § 1240; People v. Lozano (2024) 101 Cal.App.5th 

366, 376).12 

Nor do other hearsay exceptions appear applicable. The child abuse 

hearsay exception under Evidence Code section 1253 applies to statements 

made for purposes of medical diagnosis or treatment, while the exception for 

nonmedical statements by a child under the age of 12 describing abuse or 

neglect applies only in criminal prosecutions. (Evid. Code, § 1360, subd. (a).) 

The judicially-articulated hearsay exception of In re Cindy L. (1997) 17 

Cal.4th 15 applies to out-of-court statements of children “subject to juvenile 

11 Martin preserved a hearsay objection to the children’s out-of-court 

statements through his motion in limine no. 6. The trial court reserved 

decision on that motion and would have likely had to confront the hearsay 

question head-on had the court not excluded the dash cam footage on Privacy 

Act grounds.

12 The videos depicting the children’s accusations of abuse were recorded 

anywhere from three days to more than a month after the alleged incidents of 

abuse.
23

dependency hearings”13 and requires that the statements “show particular 

indicia of reliability.” (In re Lucero L. (2000) 22 Cal.4th 1227, 1231.) This 

case presents none of the requisite circumstances justifying application of 

these exceptions.

But even if we were to overlook this problematic hearsay issue and

accept the possibility that seeing and hearing the accusations of abuse 

directly from the children might have some independent probative value, we 

nevertheless arrive at the same conclusion of harmless error. In light of the 

entire record, including the trial court’s credibility and other express and 

implied findings, we are not convinced the admission of the dash cam videos 

would in reasonable probability have led the court to issue a DVRO 

protecting the children.

There was ample evidence suggesting the children were prone to 

making unreliable and exaggerated statements, possibly spurred on by 

Malinowski and Grandfather.

14 Both Espinoza and Martin testified the 

13 There were several child protective services referrals made during the 

events of this case. One was by a staff member at J.M.’s school after he 

reported that Martin punched his chest and cursed at him. Houghton made 

several referrals, and Espinoza made one referral on June 14, 2021, due to 

the children’s “story about dad hitting [J.M.].” However, Espinoza clarified to 

the child protective services worker that it was actually I.M. who had hit J.M.

on June 10, 2021. Although the record does not disclose the outcome of these 

reports, Malinowski testified that she never received any correspondence 

from a child welfare agency indicating that it was following up on the 

referrals or opening a case file. 

14 Substantial evidence supports the trial court’s express finding that 

Malinowski and Grandfather erected “roadblocks” to successful exchanges. 

Espinoza testified before Judge Dabel that the children said their mother told 

them they could not go on visits, giving rise to Judge Dabel’s “deep suspicion” 

that Malinowski was not encouraging visits. At the second DVPA trial, 

Espinoza noted that Grandfather’s tendency to linger at the parking lot made 

the children more agitated and disruptive. In Espinoza’s view, the children 
24

children struggled with telling the truth, and the evidence bore this out. For 

instance, Espinoza testified that I.M. once stated, “ ‘Daddy hit me and killed 

me today.’ ” She also made statements about what occurred on visits she did 

not personally attend, giving Espinoza the impression that “somebody was 

discussing what happened on the visits and telling her . . . different 

situations.” Espinoza further noted that I.M. “would turn on the tears and off 

the tears at will; so it was really hard to determine her level of distress.” As 

for J.M., the evidence at trial included a June 2021 police report based on a 

child protective services referral that J.M. tried to explain a bruise on his 

chest by claiming “his sister hit him,” and then “changed his story and said 

he fell. Moments later J.M. changed his story again” and said that his 

mother, father and Grandfather “all hit him 100 times each.” In another 

instance, J.M. accused Martin of hitting him “tomorrow.” Given the 

questionable reliability of the children’s statements, it is unlikely the 

children’s on-camera accusations would have lent more credibility to the 

arrived at the exchange with “an agenda,” which was “[t]o not go on the visit,” 

and “[t]o cause chaos in the exchange, to be disruptive.” Espinoza testified, 

for example, that on April 19, 2021—the day a private investigator was 

surveilling the exchange—the children were acting out more than usual, and 

that J.M. told Espinoza “ ‘Mommy said not to go,’ ” while I.M. reported that 

“ ‘Mommy says that we’re going to drown’ ” if they went swimming in 

Martin’s pool. On another occasion, after I.M. threatened to make herself 

throw up and urinated on herself, Grandfather ended the exchange, and I.M.

then “looked over her shoulder at [Espinoza] and flashe[d] [Espinoza] a big 

smile.” In May 2021, the children stated that Malinowski had told them to 

hit Martin. I.M. further said, “ ‘I like to pee in my pants because that means 

I don’t go,’ ” and told J.M. “if they pee their pants they don’t have to go.” 

Espinoza’s belief in the children’s “agenda” was reinforced by the fact that 

they seemed to be agitated only during the exchange, but then they would 

generally return from visits they attended calm and happy. 
25

reports of abuse that Malinowski and Houghton recounted, which the trial 

court evidently rejected.

In sum, the video evidence of the children’s on-camera accusations 

against Martin constituted hearsay without an applicable exception; was 

cumulative to other more detailed evidence admitted at trial; and, in any 

event, was lacking in sufficient indicia of reliability. As such, it is not 

reasonably probable that the admission of these videos at trial would have 

led to a different outcome in this case.

b. Videos of Alleged Abuse

As for the video evidence purporting to depict alleged abuse by Martin, 

we likewise conclude the exclusion of this evidence was harmless.

We begin with the video of the exchange on June 14, 2021, which, 

according to Malinowski, depicted Martin’s “abandonment of [I.M.] in a busy 

parking lot.” As Espinoza recounted during her testimony, the June 14 

exchange was an especially difficult one due to the children’s behavior. 

Espinoza, an experienced visitation provider, described it as “disheartening” 

and “utter chaos” and testified she “couldn’t believe there was so much venom 

coming from such small children.” The exchange ended with Martin putting 

J.M. in his vehicle and driving away without I.M.

This was not, however, the first time Martin took J.M. on the visit and 

left I.M. behind; it had happened several times before when I.M. persisted in 

refusing to go. Moreover, the transcript does not indicate that Martin left 

I.M. wandering in the parking lot, and Espinoza’s written report of the June 

14 exchange as well as her trial testimony reflected that I.M. was still in the 

car when Martin drove off and Espinoza arrived back at the exchange site. 

I.M. exited the vehicle around the time Grandfather was arriving from across 
26

the street. Nothing in the transcript of the June 14 video purports to dispute 

Espinoza’s testimony in these important particulars.

15

We acknowledge there is some uncertainty as to how long I.M. was left 

alone in the car, whether Martin drove off before Espinoza returned to the 

exchange spot, and if so, how much time had elapsed in between. (The clip of 

the entire incident is 7 minutes, 12 seconds long.) But even if we assume for 

the sake of argument that Martin left I.M. in the car sooner than was 

prudent, he could still reasonably expect that Espinoza, who was supervising 

the exchange from 20 yards away, would quickly return to the exchange spot

to secure I.M. Indeed, the record reflects that Martin signaled to Espinoza he 

was taking only J.M. on the visit before leaving the area, and that Espinoza 

arrived before I.M. exited the car. Based on a complete picture of the June 14 

exchange, we cannot say it is reasonably probable the video footage would 

have led the trial court to find that Martin committed an act of abuse within 

the meaning of the DVPA and to issue a DVRO protecting the children.

The same goes for the videos of the fish and jail remarks, which were 

cumulative to the admitted testimony at trial. The threat to flush J.M.’s fish 

down the toilet was discussed during the testimony of Malinowski, Espinoza,

and Martin. Likewise, these same witnesses testified as to Martin’s 

statement to I.M. about jail for six-year-olds. The court impliedly found that 

neither of these statements rose to the level of abuse within the meaning of 

the DVPA, and we fail to see how anything depicted in the videos of these 

incidents would have led to a different result.

15 Malinowski appears to concede as much in her opening brief, stating 

Martin “drove away, abandoning [I.M.] in the car in the parking lot where the 

exchanges occurred.” (Italics added.)
27

Malinowski insists the dash cam footage would have provided grounds 

to impeach both Espinoza and Martin. (See People v. Crow (1994) 28 

Cal.App.4th 440, 452 [evidence of confidential communications obtained in 

violation of Penal Code section 632 can be used to impeach inconsistent 

testimony by those seeking to exclude the evidence]; Frio, supra, 203 

Cal.App.3d at p. 1497 [Penal Code section 632 “cannot be construed so as to 

confer upon a testifying witness the right to commit perjury”].) In one of her 

lengthier arguments on this score, Malinowski accuses Espinoza of 

committing perjury by falsely testifying that Martin told the children he was 

merely joking about flushing J.M.’s fish down the toilet when, in fact, the 

video shows that Martin never characterized his remark as a joke. 

We conclude Malinowski fails to provide an adequate record to 

demonstrate the falsity of Espinoza’s testimony. Although Malinowski’s 

counsel insisted the videos were complete and unedited, it is clear from the 

face of the transcript that each clip was taken from a longer video. The 

transcript of the fish remark indicates that it took place on May 24, 2021, and 

the start time for the two-minute long clip is “0:09:46.” The very next entry 

in the transcript describes another incident on the same day, just a few 

minutes later at “0:13:40.” This means there were approximately two 

minutes in between the end of the first clip and the start of the next one that 

are not accounted for in the transcript. Malinowski cannot, on this 

incomplete and selectively edited record, demonstrate that Martin never told 

the children his remark was merely a joke.

16

16 For that matter, the trial court’s prescient concerns about the 

completeness of the videos, along with its finding that the admission of the 

videos would involve an undue consumption of the court’s time, provided a 

separate and independent basis for excluding the video evidence pursuant to 

Evidence Code section 352, one that Malinowski leaves unchallenged in this 
28

In another example, Malinowski argues the video taken on June 14, 

2021, would have shown that Martin was lying when he “denied” being 

confronted by the children about punching J.M. But this argument is based 

on a flawed recitation of the record. In the cited portion of his testimony, 

Martin did not deny that the children accused him of punching J.M. He was 

asked, “You heard testimony about the children’s accusing you of punching 

[J.M.] by the gate your estate; right?” Martin responded, “I heard your false 

allegations, yes. [¶] Q. You heard [I.M.]’s false allegations? A. I’ve heard 

everybody’s false allegations about these events, yes.” In other words, Martin 

did not deny being confronted with the allegations, either on June 14, 2021, 

or at any other time; rather, he affirmed he had heard the allegations but 

claimed they were false. Accordingly, the June 14 video showing I.M.

confronting Martin about punching J.M. would not have contradicted his 

cited testimony.

Malinowski further argues the June 14 video “exposes instances of 

perjury” and reveals that Espinoza “falsely claims to have witnessed [I.M.]

punching [J.M.]’s chest.” This argument, too, falters on Malinowski’s 

mischaracterization of the record. It is true the transcript of the June 14 

video depicts Espinoza trying to persuade J.M. that it was I.M., not Martin, 

who struck him in the chest, but Malinowski assumes (wrongly) that 

Espinoza was referring to an alleged incident on May 13, 2021, at the gate of 

Martin’s residence that Espinoza was not in attendance to witness. In 

context, however, Espinoza was referring to an incident that occurred during 

an exchange on June 10, 2021. As Espinoza testified, on June 10, she was 

appeal. (See Goncharov v. Uber Technologies, Inc. (2018) 19 Cal.App.5th 

1157, 1167, fn. 8 [issue not briefed is forfeited]; Winograd v. American 

Broadcasting Co. (1998) 68 Cal.App.4th 624, 631–632 [trial court’s ruling is 

presumed correct and burden is on appellant to demonstrate error].)
29

sitting on a set of steps waiting for Martin to arrive when J.M. came over to 

her crying, saying “[I.M.] kicked him.” J.M. was crying “[p]retty hard” and 

rubbing the area “just below the rib cage.”17 Four days later, at the June 14

exchange, I.M. claimed it was Martin who hit J.M. She told Espinoza, 

“ ‘Mommy saw you lift up [J.M.’s] shirt to see where the hit was, but I didn’t 

hit [J.M.]. Daddy did,’ ” whereupon Espinoza and Martin “both tried to 

explain to [I.M.] that is not what happened.” In other words, the June 14 

video does not show Espinoza making a false statement about the May 13 

incident at Martin’s residence; rather, it shows her trying to correct I.M.’s 

statement about the June 10 incident that Espinoza had witnessed.

Malinowski makes several more unpersuasive arguments along these 

lines. Suffice it to say, either they are based on an incomplete record and 

Malinowski’s self-interested interpretations of the trial testimony, or they go 

to the weight of the testimony and not whether the witnesses gave 

demonstrably false testimony.

18 In short, we remain unconvinced of the 

17 Malinowski’s transcript of June 10 exchange reflects that Martin 

admonished I.M. for kicking J.M. in the chest, and that I.M. did not deny the 

charge at the time, instead stating, “I am going to kick you hard.”

18 For instance, Malinowski argues it was false for Espinoza to testify 

that her reports were truthful and complete because the dash cam videos 

would have shown that she did not report incidents such as Martin’s jail 

remark or his “admission” that he “wasn’t even there” when J.M. suffered the 

concussion. But Espinoza’s failure to document these events and her 

characterization of her reports as complete goes to the weight of her 

testimony. In another example, Malinowski contends Martin committed 

perjury by testifying he and J.M. had an “agreement” about feeding the fish, 

as the dash cam recording shows “no deal whatsoever.” Once again, the 

incompleteness of the video footage precludes Malinowski from 

demonstrating that Martin never mentioned an agreement with J.M. 

Moreover, Martin did not testify that he explicitly mentioned an agreement 

with J.M., and when pressed to answer whether he referenced J.M. “holding 

up his end of the agreement in those words,” Martin said that he could not 
30

reasonable probability that Malinowski would have successfully impeached

Espinoza and Martin in any material respect using the dash cam footage.

Finally, we observe that several of the videos described in the 

transcript purport to depict the children crying and complaining about not 

wanting to go on visits, and Espinoza responding with comments like, “you 

can just sit in the car, and get hot, and melt,” or in another instance, 

dismissing the children’s conduct as “fake crying” and remarking, “See . . . my 

heart is hard and cold. The tears don’t bother me.” (Boldface omitted.) In 

one instance, Grandfather said that J.M. was choking, and Espinoza 

responded, “He is fine.” (Boldface omitted.) It goes without saying that the 

written transcript is incapable of conveying the actual condition of the 

children, as well as the tone and tenor of the conversations; but it is of no 

ultimate matter. Though these videos may have shown the children in 

distress, they did not depict abuse by Martin within the meaning of the 

DVPA or otherwise provide a basis to impeach his or Espinoza’s credibility. 

That the children sometimes sat for long periods of time in the car during 

attempted exchanges was attributable in no small part to their own behavior, 

which the court found (and substantial evidence showed) was encouraged by 

Malinowski and Grandfather in order to thwart visitation. We find no 

reasonable probability that the video evidence of the children’s distress would 

have led to a different outcome in this case.

recall whether he did. Malinowski further contends the dash cam evidence 

would have shown that Martin’s jail comment to I.M. was not, as he testified, 

an effort to make the children show respect but “was just another part of his 

pattern of threats.” Reasonably construed, however, Martin’s testimony 

simply went to the intentions behind his jail remark. Even if Martin did not 

express these intentions on video, we are not convinced the footage would 

have changed the court’s view of Martin’s testimony and this incident in any 

material respect.
31

In sum, we conclude the trial court’s erroneous exclusion of the dash 

cam footage was harmless.

B. Preclusion of Houghton’s Expert Testimony

1. Additional Background Facts

After the children’s therapist, Houghton, was sworn in, Malinowski’s 

counsel informed the trial court Houghton would testify in part as an expert. 

The court inquired whether Houghton had been disclosed as an expert 

witness, and Martin’s counsel responded that she had not. Malinowski’s 

counsel explained that Houghton would offer testimony regarding statements 

made by the children during therapy sessions as well as her observations of 

them, to which the court responded, “She is not an expert in regards to 

domestic violence, and you don’t need to designate her as an expert in 

regards to the testimony that you anticipate to elicit that you just 

represented to the Court. [¶] So, again, you can elicit a brief foundation in 

regards to her training and experience in regards to the role that she played 

in regards to these children, but she’s not going to be designated as an expert 

because it’s not a custody hearing and it’s up to the court to determine 

whether or not [domestic violence] occurred.” 

Houghton then testified as to her education and licensing in the fields 

of nursing; marriage, family and child therapy; and the law. She also

testified that in the dissolution case, Judge Dabel had qualified her as an 

expert in “ ‘marriage and family therapy, therapy for children, therapy 

concerning families that are experiencing trauma, and functional family 

therapy.’ ” 

Houghton further testified that she spent approximately 60 hours in 

therapy with the children. She discussed many of the children’s reports of 

abuse by Martin, the emotional effects of these incidents, and the emergency 
32

therapy sessions that were held after various visits with Martin. According 

to Houghton, J.M. was “[e]xtremely distraught” after Martin threatened to 

flush his fish down the toilet, and I.M. was very scared by Martin’s remark 

about jail for six-year-olds. The children were also very distraught after the 

June 14, 2021, exchange when Martin took J.M. on the visit and left I.M. 

I.M. was also “very scared” and described having nightmares after Martin

threatened to punch her head. 

Houghton further testified that the children’s reports “kept coming up,”

with “the story remain[ing] the same.” In her view, “the way the children 

perseverate in a story over time and independently, individually, with both of 

them together, then when I asked Mother to come into the room to, you know, 

be part of the demonstration and to hear the story, and then what the mother 

independently reports to me about what the children have said to her, when 

all of those match, there’s a convergence of data that makes me take that 

very seriously.” 

Malinowski’s counsel later revisited the issue of Houghton’s expert 

testimony, arguing there was no obligation to make an expert witness 

disclosure because there had never been a demand from Martin for expert 

information. Martin’s counsel conceded “[t]here was no demand for expert 

witness, but on the witness list here, Ms. Houghton was designated solely to 

testify about, quote, ‘abuse.’ There was no indication on the witness list that 

she would be proffering an expert opinion or that she would be qualified as an 

expert. She is also the children’s therapist . . . and the mother’s therapist as 

a family therapist . . . , and offering an expert opinion when she also stands 

in that role of therapist would be contradictory. She can’t testify as a 

percipient witness to abuse and then also take a step back and put on an 

expert hat and issue opinions thereof. So it’s not disclosed as an expert, and 
33

it would be inappropriate given the role that she has as the children’s 

therapist.” 

The trial court stood by its previous order preventing Houghton from 

giving expert testimony. 

2. Analysis

Malinowski contends the trial court erred in precluding Houghton from 

giving expert testimony due to Malinowski’s failure to designate Houghton as 

an expert before trial. Malinowski claims she had no obligation under Code 

of Civil Procedure section 2034.260, subdivision (a), to exchange expert 

information, as this requirement is triggered by the timely service of a 

written demand for an exchange of expert information under Code of Civil 

Procedure section 2034.220, which Martin concededly never made. (See

Hirano v. Hirano (2007) 158 Cal.App.4th 1, 6 [where no demand for exchange 

of expert witness information is made by any party, “no party is required to 

comply with the statutory exchange requirements.”])

19

We need not reach the merits of this procedural issue, as the record 

discloses an alternative (and valid) basis for the trial court’s decision. 

Specifically, the court explained it would not allow Houghton to give expert 

testimony because she was not a domestic violence expert, and it was the 

court’s role to determine whether or not domestic violence occurred. We find 

no abuse of discretion by the court in so concluding. (See Du-All Safety, LLC 

19 Malinowski makes a secondary argument that the trial court erred in 

not permitting Houghton to testify as to what she saw on the dash cam 

videos. For the same reasons discussed above, we see no resulting prejudice 

from this exclusionary ruling. Indeed, our discussion of the incompleteness of 

the videos is even more apt here, as Malinowski’s counsel acknowledged that 

the videos sent to Houghton were comparatively more edited than the ones 

offered at trial. 
34

v. Superior Court (2019) 34 Cal.App.5th 485, 494–495 [decision to exclude 

expert testimony reviewed for abuse of discretion].) 

“[E]xpert witness testimony is admissible if it is ‘[r]elated to a subject 

that is sufficiently beyond common experience that the opinion of an expert 

would assist the trier of fact.’ ” (People v. Coulthard (2023) 90 Cal.App.5th 

743, 764–765.) Here, the trial court could reasonably conclude Houghton’s 

expert testimony would not assist it in determining whether domestic 

violence occurred because Houghton was not a domestic violence expert.

That Houghton was previously qualified by Judge Dabel as a family 

therapy expert during the family court proceedings was not dispositive as to 

whether her testimony would assist the trial court in determining whether 

abuse had occurred. True, Houghton’s testimony on the children’s emotional 

distress was relevant to the determination of whether the children had 

experienced abuse within the meaning of the DVPA, e.g., a disturbance of 

their peace. (See § 6203, subd. (a)(3); Nadkarni, supra, 173 Cal.App.4th at 

p. 1497.) However, Houghton was already permitted to give ample testimony 

on that score. Moreover, any assumed error in precluding Houghton’s expert 

testimony was not prejudicial, as the court’s main criticism against Houghton 

for not having spoken to either Martin or Espinoza would have impacted her 

credibility as an expert witness as well. On this record, we cannot say the 

court prejudicially erred in excluding Houghton from testifying as an expert

in these domestic violence proceedings.

C. Espinoza’s Credibility

Malinowski next contends the trial court abused its discretion by 

crediting Espinoza’s testimony despite her “demonstrable lack of credibility.” 

However, “[i]t is the trial court’s role to assess the credibility of the various 

witnesses, to weigh the evidence to resolve the conflicts in the evidence. We 
35

have no power to judge the effect or value of the evidence, to weigh the 

evidence, to consider the credibility of witnesses or to resolve conflicts in the 

evidence or the reasonable inferences which may be drawn from that 

evidence.” (In re Casey D. (1999) 70 Cal.App.4th 38, 52–53 (Casey D.), 

disapproved on another ground in In re Caden C. (2021) 11 Cal.5th 614, 636, 

fn. 5.) This is because the “the trier of fact is in a superior position to observe 

the demeanor of witnesses” for purposes of determining their credibility. 

(People v. Lindberg (2008) 45 Cal.4th 1, 36.) On appeal, “[t]estimony may be 

rejected only when it is inherently improbable or incredible, i.e., 

‘ “unbelievable per se,” ’ physically impossible or ‘ “wholly unacceptable to 

reasonable minds.” ’ ” (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065, 

italics omitted (Oldham).) Malinowski fails to meet this high bar.

Malinowski’s criticisms that Espinoza only vaguely recalled Martin’s 

jail remark to I.M. and J.M.’s reaction to the fish remark go to the weight of 

Espinoza’s testimony. They do not demonstrate her testimony was 

“inherently improbable or incredible” or “ ‘wholly unacceptable to reasonable 

minds.’ ” (Oldham, supra, 235 Cal.App.3d at p. 1065.)

Malinowski maintains that Espinoza’s testimony about the June 14, 

2021, exchange was contradicted Grandfather’s testimony. But even if this 

were the case, we defer to the trial court’s resolution of such conflicts in the 

evidence. (Casey D., supra, 70 Cal.App.4th at pp. 52–53.)

Additionally, Malinowski attacks Espinoza for telling the children that 

I.M. was the one who hit J.M., claiming “[t]his deliberate misrepresentation 

and attempt to shift blame raise questions about Espinoza’s integrity and 

impartiality in her role as an exchange supervisor.” As we have already 

discussed, this argument is based on an incorrect assumption of the event to 
36

which Espinoza was referring when she accused I.M. of hurting J.M. (See 

Discussion, ante, part A.5.b.)

Malinowski further accuses Espinoza of overstepping her role by telling 

I.M. that “the judge says she needs to go” on the visit with Martin. 

Malinowski claims this statement violated a court order prohibiting the 

parties from discussing the case with the children. At trial, Espinoza 

explained that she made this remark because “[t]here are times when we 

have to let children know that there are rules that are in place and that there 

are higher authorities that have implemented rules that need to be followed.” 

Espinoza further “guess[ed]” that it was I.M. who “referenced the judge first” 

and that she (Espinoza) “would not most likely have referenced the judge 

without that.” There is nothing inherently unbelievable about this 

testimony. As before, Malinowski’s criticisms go to the weight of Espinoza’s 

testimony.

Finally, we highlight one particular argument by Malinowski that not 

only lacks merit but is based on a troubling misstatement of the record. 

According to Malinowski, Espinoza “initially denied” that I.M. climbed on top 

of a vehicle during the exchange on April 19, 2021, and when later 

“confronted” with Jorgenson’s testimony and evidence that I.M. climbed on 

top of an SUV, Espinoza then “stated that while a little girl climbing on top of 

an SUV is a ‘dramatic event’ she purposefully excluded the incident from her 

visitation report because [I.M.] repeatedly climbed on top of the SUV and . . . 

according to Espinoza, [I.M.] is ‘a good climber.’ ” According to Malinowski, 

nowhere in Espinoza’s hundreds of pages of visitation reports did Espinoza

ever report that I.M. had ever climbed on top of an SUV, and furthermore, 

Martin claimed the April 19 exchange was the first time I.M. had done so. 
37

There are several critical inaccuracies in this argument. First, 

Espinoza never “denied” that I.M. climbed on top of a vehicle during the April 

19 exchange. As the trial transcript reflects, Espinoza’s first day of testimony 

was interrupted to accommodate Jorgensen’s testimony, and prior to the 

interruption, Espinoza had not yet testified about the April 19 exchange. It 

was not until the following day during cross-examination that Espinoza was 

asked about I.M. climbing on top of a vehicle during the April 19 exchange. 

Espinoza explained she was not too concerned about I.M.’s safety during this 

incident because I.M. “was a very good climber, and I watched the children 

climb rocks and trees all the time.” (Italics added.) At no time did Espinoza 

testify that she had seen I.M. repeatedly climb “on top of the SUV” as 

Malinowski maintains. In short, Espinoza never denied the climbing incident 

or backtracked on her testimony after being confronted by Jorgensen’s 

evidence. Nor was her testimony contradicted by Martin’s testimony that the 

April 19 exchange was the first time I.M. climbed onto a vehicle. The irony is 

not lost on this court that Malinowski’s attempt to discredit the witness is 

based on her own distortion of the witness’s testimony.

D. Remaining Arguments

Malinowski claims the trial court violated the DVPA’s mandate to 

consider the totality of the circumstances (§ 6301, subd. (c)) by refusing to 

admit testimony about Martin’s prior domestic violence against her, the 

children, and Grandfather, and unduly limiting the evidence to what was 

alleged in the latest DPVA petition. We are not persuaded. 

The ruling in question was in response to Martin’s motion in limine 

no. 1, which sought to exclude evidence of prior allegations of domestic 

violence. The argument was based on Malinowski’s amended witness list, 

which went beyond the three witnesses Malinowski had initially identified 
38

and added several more who, according to Martin, were not privy to the 

supervised exchanges, and whose testimony would involve an undue use of 

time. The court ruled it would permit counsel to make arguments about prior 

restraining orders issued against Martin but would not allow “testimony or 

evidence in regards to the previous domestic violence that led to those 

orders.” The court’s ruling was not an erroneous refusal to consider the 

totality of the circumstances, as the court permitted the relevant facts to 

come in through argument, while reasonably barring relitigation of prior 

domestic violence allegations that had already been examined and 

adjudicated.

Malinowski next argues the trial court improperly relied on incorrect 

facts and made findings that were unsupported by substantial evidence. 

First, she claims the trial court wrongly characterized the second DVPA 

petition as a request to add the children to the existing DVRO rather than a 

request for a new DVRO based on new allegations of abuse. Belying her 

claim of error is the following testimony from the trial: “[Q.] Ms. Malinowski, 

on page 1 of your declaration—and this is the declaration that you filed on 

September 14th, 2021—you said that you filed it to add the children as 

protected parties—correct?—that was your goal?” (Italics added.) 

Malinowski responded, “Yes.” Malinowski does not address this portion of 

her testimony, nor does she identify any prejudice resulting from the claimed 

error.

Malinowski next claims the trial court erred in relying on the family 

court’s prior finding of Espinoza’s credibility in “March 2021,” as the March 

2021 hearing preceded the allegations of abuse in Malinowski’s second DVPA 

petition. It appears the trial court’s reference to “March 2021” was a 

typographical error, and we may reasonably presume the court intended to 
39

refer to the July 2021 family court hearing during which Espinoza testified 

about many of the same instances of alleged abuse raised in this case. 

Moreover, notwithstanding the typographical error, the court independently 

found Espinoza to be a credible witness based on its own observations of 

Espinoza’s testimony at the second DVPA trial.

Malinowski argues that at the July 2021 family court hearing, Judge 

Dabel did not address her claim regarding the falsity of Espinoza’s reports

and did not permit her or Houghton to testify or present evidence of alleged 

child abuse. We fail to understand how Malinowski’s belated attacks on the 

family court’s rulings in July 2021 impact this appeal, which arises from the 

second DVPA trial during which Malinowski and Houghton both testified, 

and Malinowski’s allegations of Martin’s child abuse were fully tried.

Finally, Malinowski argues it was improper for the trial court to admit 

and implement the custody evaluation from the dissolution case because Dr. 

Press refused to consider the new evidence of child abuse, including the dash 

cam recordings. We conclude Malinowski fails to provide an adequate record 

for review of this alleged error, as the custody evaluation is not in the record

before us.

20 (Osgood v. Landon (2005) 127 Cal.App.4th 425, 435 [appellant 

has affirmative duty to show error by adequate record].)21

DISPOSITION

The judgment is affirmed. Martin is entitled to his costs on appeal.

20 The record contains only a proof of service from Dr. Press stating that 

she served the custody evaluation report by mail on February 23, 2022. 

21 During the appeal, Malinowski filed two motions seeking amendments 

to her prayer for relief and asking the court to take new evidence, make 

factual findings, and issue various orders, including an award of attorney fees 

and the disqualification of the trial court judge. We deferred consideration of 

the motions until the merits of the appeal and now deny them.
40

_________________________

Fujisaki, Acting P. J.

WE CONCUR:

_________________________

Petrou, J.

_________________________

Rodríguez, J.
41

Trial Court: San Mateo County Superior Court

Trial Judge: Hon. Rachel Holt

Counsel: Kamila Malinowski, in pro. per., for Petitioner and 

Appellant

No appearance for Defendant and Respondent

Malinowski v. Martin (A167187)