1

Filed 12/2/20 Yurasek v. Kesala CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not 

certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not 

been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

JASON YURASEK,

Petitioner, Appellant and 

Cross-Respondent,

v.

BOHDANNA KESALA,

Respondent, Respondent and 

Cross-Appellant.

 A158859

 (San Francisco County

 Super. Ct. No. FDI-12-778342)

Jason Yurasek, as guardian ad litem for his three sons, sought a 

domestic violence restraining order (DVRO) against his ex-wife Bohdanna 

Kesala. Following seven days of trial, the court entered a DVRO, and Kesala 

appeals, contending that the DVRO cannot stand for four separate reasons: 

(1) the trial court erroneously applied the law, and the DVRO is (2) not 

supported by substantial evidence, (3) violates due process, and (4) is 

overbroad. Kesala also asserts error in the exclusion of one item of evidence. 

We conclude none of Kesala’s arguments has merit, and thus affirm the 

DVRO.

In the course of trial, Kesala filed a request for attorney fees, seeking 

$150,000. The trial court awarded her $80,000, the amount involved to 

contest the change in custody dispute between the parties. Yurasek appeals 
2

that order, contending it is not supported by the Family Code and is against 

public policy. We disagree, and thus affirm that order as well.

BACKGROUND

The General Setting

Yurasek and Kesala were married in 1994 and divorced in 2012. They 

have three boys, S. (born in 2004), O. (born in 2007), and L. (born in 2008). 

All three children testified at the 2019 trial, at which time they were 14, 12, 

and 10, giving testimony, we note, that the trial court expressly found to be 

“credible.” 

Yurasek and Kesala are both well educated professionals. Yurasek is 

the general counsel at a social media company. And Kesala has Bachelor of 

Science and Master of Fine Arts degrees, and currently earns a significant 

salary running the global licensing program at a university.

Yurasek and Kesala separated in 2012, and in November of that year 

Yurasek filed a petition for dissolution. Working with Deepa Pulipati of the 

San Francisco Family Court Services, Yurasek and Kesala resolved the 

custody issue through mediation. And in 2014, the court entered a final 

judgment of dissolution providing for support and shared custody of the 

minor children—shared custody that remained the status until the 2019 trial 

here. 

According to the register of actions, there were no further contested 

proceedings relating to the dissolution of the marriage until 2017.1 But while 

there apparently were no issues necessitating court involvement, there were 

issues in the relationship, issues caused by various incidents where Kesala 

engaged in physical contact with the children. For example, in July 2014, 

1 In 2016 the trial court entered a stipulation and order

modifying child support. 
3

Kesala grabbed S. by the shirt and twisted it, leaving an abrasive burn on his 

neck and shoulder, and in March 2018, she grabbed S. around the upper 

neck, leaving visible marks on his face. As to O., one time Kesala slammed 

his finger in a shower door, causing his nail to fall off; another time, she hit 

him in the back, leaving what was described as a “five star” mark. As 

14-year-old S. described the incidents, there were “just random times when 

she’s mad or she can’t handle herself,” and “[y]ou never know when that’s 

going to happen.” Or as 12-year-old O. put it, “my mom can get really mad 

really easily,” and “she starts arguments very quickly.” 

In an incident Yurasek describes as “particularly troubling,” on an 

outing to buy a Christmas tree, Kesala left the boys unattended in a running 

car in the middle of a busy intersection to confront “four or five adult males 

wearing football jerseys and carrying dixie cups of beer” whom she felt were 

obstructing the intersection. Another driver stopped to intervene, and the 

men went away, but not before throwing a cup of beer that hit Kesala and 

one of the boys. When Yurasek learned of the incident, he told Kesala “you 

need to call the police”; she responded, “I can’t call the police because if I call 

the police they will arrest me because I punched him first.”

Incidents with the children caused Yurasek concern over Kesala’s selfcontrol and the well-being of the children. Yurasek attempted to address the 

concerns with her, but her fundamental response was to deny she had 

engaged in any abusive conduct with the children, and to cast blame on 

others, including Yurasek or the children. As Yurasek would put it at trial, 

“Whenever confronted with anything, she would always say it didn’t happen. 

I didn’t do it.”

Yurasek contacted Ms. Pulipati, the Family Court Services mediator 

who, as noted, had negotiated the custody aspect of the dissolution. She was 
4

unable to assist, and told Yurasek he would need “to get a private person,” 

that there was no “open matter” at the court.

In October 2016, following an incident where Kesala had hit L. with a 

shoe, Yurasek was referred to Dr. Charles Brinamen, a family psychologist. 

Dr. Brinamen began working with the family, including regularly meeting 

with Yurasek and Kesala, in the course of which he counseled the parents 

against being physical with the children. 

In March 2018, after the incident in which Kesala grabbed S. by the 

neck, Yurasek went to Dr. Brinamen to, in Yurasek’s words, figure out “how 

are we going to stop this from happening again, and how can we make sure 

the kids have the ability to leave if their mom is losing it.” Kesala promised 

Dr. Brinamen that she would call Yurasek “when she was feeling 

overwhelmed,” and that the children could call Yurasek if “they were 

uncomfortable at their Mom’s” and the children could go to his house earlier 

than planned. And Yurasek agreed that if he were called on to take custody 

of the children from Kesala in these situations, he would not “use it against 

her.” 

Then came March 27, 2019.

The March 27, 2019 Incident

On the afternoon of March 27, a Wednesday, the boys were at Kesala’s 

house after school. Kesala went upstairs to her bedroom with the door closed 

to work, leaving the boys downstairs. L. and S. began arguing about a piece 

of cake and L. told S. he was going to go to his room. They both ran upstairs 

and shortly thereafter came back down, with S. sitting at the dining room 

table. L. pushed S., and S. may have tickled L. 

As O. described it, Kesala “got really mad” and “stumbled downstairs” 

and approached S. without pausing to give the boys the opportunity to speak. 
5

She “like skip hops or leaps” at S., and grabs his face “really, really hard . . . 

with both of her hands” and pushes him “back . . . towards the corner of the 

room” about 10 feet away, holding his “face the entire time,” yelling “why do 

you have to hit your brothers?” S. was scared, thinking, “I want to get the 

hell out of here,” and protested, “mom, I didn’t do anything.” Kesala grabbed 

S.’s phone and “slammed it” on the dining room table, “started screaming at 

S. more,” “shoved his face into the chair,” and hit him with her fist, saying 

“this is what you do to your brothers. This is what you do, you hit them.” 

She yelled in S.’s ear “as close as possible,” causing S. to fall off the chair onto 

the floor and, while still grabbing his face, telling him, “you’re not feeling 

pain. This is not pain.”

Kesala then grabbed S.’s arm and yanked him off the floor, yelling “why 

aren’t you looking at me, I’m your mother.” She then grabbed S. by the face 

again, scratching his chin, and pulled him to the stairs. S. went to his room 

and started crying, and Kesala “busted open” the door and began screaming 

about how S. was “disrespecting” her. 

When Kesala had first come downstairs, O. and L. were together in the 

living room. O. saw that Kesala was “really mad,” and told L. “get upstairs 

now,” which he did. O. then sent this text message to Yurasek: 

“Dad mom is abusing S. She started choking him and slapping him soo 

hard I was crying just staring at it. Mom kept in slapping so so so hard she 

was beating him like he was a punching bag she’s crazy.

“Starring.

“[S.]’s tromatized. [Sic.]

“I’m scared.

“See you at the spring concert.” 
6

Yurasek, who was having a late lunch with a friend, called O. O. 

answered, and in a whisper told Yurasek he was hiding under the dining 

room table, and then cut the call short because he did not want Kesala to 

hear. 

Yurasek attempted to call Dr. Brinamen, who was unavailable, and 

then sent him a text message describing his call with O., summing up: “we 

are in another example of what do I do[?]” Dr. Brinamen did not immediately 

respond, and Yurasek called the police to ask them to check on the children. 

Officer Steve Colgan of the San Francisco Police Department went to 

Kesala’s house and asked to speak with the children alone. Kesala would not

let him, and he left, but remained outside with other officers. 

While Officer Colgan was outside, Kesala told the children, “oh my God. 

Guys, why? Like why? This is all your fault. This is all your fault.” She 

demanded to see the text O. had sent Yurasek, and then “got, like really 

mad,” and said, “you guys are just like, horrible.” She then told S. “I’m going 

to get in serious trouble for this,” and, S. said, he “was scared that she was 

going to jail.”

Yurasek had forwarded O.’s text to Officer Colgan, who determined 

that despite Kesala’s resistance he needed to talk to the children alone. He 

reentered the house, first interviewing Kesala and then each of the children. 

As all three would later describe it, they were afraid Kesala might get in 

trouble and in the interviews downplayed their mother’s conduct.2 Despite 

2 S. testified he “told the story, but in a very—I was really scared, 

and I told, like, a—story not as, like what it is. I told it a little less 

intense. Asked what he was scared of, S. said, “my mom was going to 

jail.”

O. testified, “So I didn’t want, like, my mom to get in trouble. So 

I didn’t really, like, say a lot what happened.”
7

the children’s interviews, Officer Colgan reported the incident to Child 

Protective Services, believing he had an obligation to do so. 

Kesala spoke with Dr. Brinamen by phone on the day of the incident, 

admitting she had grabbed S. by the face, hit him in the arm, and pushed 

him into a chair. She acknowledged that her conduct was “unacceptable” and 

that “things had gotten out of hand.” 

Dr. Brinamen asked Kesala and Yurasek to meet with him the next 

day. Yurasek agreed and Kesala initially did too. She later changed her 

mind and refused to meet, sending this email to Dr. Brinamen: “I’m not 

coming in to talk to Jason. It’s time that he stop himself from escalating and 

realize his behavior is detrimental to the boys because if he keeps doing this, 

the boys will not forgive him. They are already very upset with him and see 

him as the cause of this entire situation.” Kesala met with Dr. Brinamen two 

days later, who told her that the incident “was real problematic” and that 

even her own version of the story “was not ideal. And it wasn’t good for her 

or S.” Kesala responded by nodding her head and becoming teary-eyed.3

The Proceedings Below

L. testified, “I told the story in a less—in, like, a lower 

exaggerated way of like how it actually happened. Because I thought 

when the police officers came that maybe, like, I would—it would affect 

my mom if I said something too bad.”

3 At trial Kesala would give an account of the incident in which 

she was not responsible. She essentially accused S. of giving perjured 

testimony. And she denied that she grabbed him by the face (“I just 

forcefully, but gently held his face”), and denied she pushed him, 

slammed his phone on the table, hit him, yelled at him, or that he was 

ever on the ground. In her mind, S. “wasn’t scared as hell. He was 

being obstinate,” claiming that S. deserved the treatment because he 

had a “smug look on his face.” She also blamed Yurasek, testifying that 

he had “gone way too far” by calling the police in response to the text 

from O. 
8

On April 5, 2019, Yurasek, on behalf of the three minor children, filed a 

request for a DVRO based on the March 27 incident, stating that the 

application was sought “only reluctantly and only after our efforts to address 

the health and safety of our children were unsuccessful.” The court 

appointed Yurasek as guardian ad litem and issued a temporary restraining 

order (TRO) the same day, which TRO provided that Yurasek would have 

temporary legal and physical custody of the children, who would have 

supervised visitation with Kesala one day every weekend from 11:00 a.m. to 

6:00 p.m. 

Two weeks after the TRO issued, Yurasek requested the court appoint 

a child custody evaluator as a court-appointed expert under Evidence Code 

section 700 and California Rules of Court, rule 5.250, and place the trial on 

the long-cause calendar. Kesala filed opposition and requested that the court 

“change the visitation orders that are attached to th[e] TRO.” The matter 

came on for hearing, during which Kesala’s counsel made an oral motion to 

remove Yurasek as guardian ad litem, on which the court ordered briefing.

4

The court did not address Yurasek’s request for a custody evaluator as a 

court-appointed expert, but did modify the TRO by adding three hours to 

Kesala’s supervised visitations on Saturdays. 

Trial took place over seven days from May 21 to July 25. Yurasek, 

Kesala, Officer Colgan, and Dr. Brinamen testified in open court with 

traditional direct and cross-examination. The three children testified in the 

court mediator’s office, without counsel present, accompanied by Donna 

4 On the first day of trial, Kesala withdrew her objection to 

Yurasek’s appointment as guardian ad litem.
9

Guillory, the Family Court Services Supervisor, who questioned the children, 

as did the court. 

On the last day of trial, Kesala sought to introduce a 26-minute 

videotape from the body camera worn by Officer Colgan, who had testified on 

the second day of trial. The trial court excluded the video as cumulative. 

On July 25, the court heard closing argument and, following a brief 

recess, announced its extensive findings and orders. Among other things, the 

court found that Kesala had committed domestic violence and issued a oneyear restraining order for the protection of the three minor children. The 

court specifically found each of the children’s testimony to be “credible,” and 

specifically rejected Kesala’s contention that their testimony was “coached or 

somehow influenced by their father, Mr. Yurasek.” And the court expressly 

rejected Kesala’s argument that her conduct was nothing more than “the 

exercise of a parent’s authority to guide and discipline” children. The court 

ordered Kesala to continue with individual therapy, and granted temporary 

sole legal and physical custody to Yurasek, maintaining the visitation 

schedule set by the TRO. The court also ordered a “tier 2 interview for 

Family Court Services mediator to interview” the children, and a custody 

evaluation. 

On August 20, the court entered its DV-130 restraining order after 

hearing, from which Kesala filed her notice of appeal.

The Attorney Fees Request

On June 24, the fourth day of trial, Kesala filed an ex parte application 

seeking among other things modification of the TRO and an “order for 

attorneys’ fees of $150,000 and costs of $20,000 pursuant to Family Code 

section 2030.” Yurasek objected, and the court did not immediately rule on 

Kesala’s ex parte application, stating essentially that the request should be 
10

made in the law and motion department. However, and as will be discussed 

in detail below, at the conclusion of trial the court announced it would deny

Kesala “fees and costs related to the DVRO proceedings,” but that it was 

“going to order attorneys’ fees for the purpose of proceeding with the child 

custody proceedings under section 2030.” The court directed Kesala’s counsel 

to “break out the attorneys’ fees request and indicate what is needed on the 

child custody portion of the case, and separate it out from the fees incurred 

on the DVRO proceedings.” 

Following further briefing, by order of September 5 the court awarded 

Kesala $80,000 in attorney fees and costs. Yurasek paid those fees under 

protest and filed an appeal. 

DISCUSSION

Summary of Kesala’s Argument

Kesala’s brief sums up her appeal on page 13, that she appeals “on the 

following grounds”:

“Kesala’s exercise of her fundamental right to engage in reasonable 

parental discipline constituted a complete defense.

“The trial court’s application of law was erroneous;

“The orders were not supported by substantial evidence;

“The erroneous exclusion of video evidence was prejudicial;

“The trial court violated Kesala’s procedural due process rights; and

“The protective order is overbroad.” 

Page 41 of the brief elaborates on this, in the “Summary of Argument”: 

“The finding of disturbing the peace is not supported by substantial evidence 

of mens rea, thereby creating a strict liability offense. Kesala engaged in 

reasonable parental discipline, thereby affording her a complete defense. 

Reasonable parental discipline is a fundamental right that cannot be 
11

enjoined. There was no substantial evidence the boys’ mental or emotional 

calm was destroyed or of causation. The trial court erroneously excluded the 

police video tending to disprove the boys’ peace was disturbed and which was 

the best evidence of their mental state resulting from the incident. The trial 

court violated Kesala’s due process rights by finding against her on an issue 

not advance[d] at trial. The protective order is overbroad because it prohibits

lawful behavior and includes O. who was not afraid of Kesala.”

Kesala is wrong on all counts. 

The Trial Court Properly Applied the Law in Finding Abuse

The Statutory Scheme and the Standard of Review

California law has a comprehensive statutory scheme aimed at the 

prevention of domestic violence: the Domestic Violence Protection Act 

(DVPA) found at Family Code sections 6200 et seq.5 Section 6220 sets forth 

the purpose of the DVPA: (1) to prevent the recurrence of acts of domestic 

violence and (2) to provide for a separation of those involved in order to 

resolve the underlying causes of the violence.

Our colleagues in Division One distilled the applicable law in In re 

Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1424 

(Evilsizor): “A court may issue an order enjoining specific acts of ‘abuse’ 

(§ 6218, subd. (a)), which are defined as, among other things, behavior that 

could be enjoined under section 6320. [Citation.] Section 6320, in turn, 

permits a court to enjoin a party from engaging in various types of behavior, 

including ‘disturbing the peace of the other party.’ (§ 6320, subd. (a).) ‘[T]he 

plain meaning of the phrase “disturbing the peace of the other party” in 

section 6320 may be properly understood as conduct that destroys the mental 

5 Statutory references are to the Family Code unless otherwise 

indicated. 
12

or emotional calm of the other party.’ (In re Marriage of Nadkarni (2009) 

173 Cal.App.4th 1483, 1497 (Nadkarni).)”

In short, “abuse” is “not limited to the infliction of physical injury or 

assault,” but also includes “mental or emotional” harm as well. (Evilsizor, 

supra, 237 Cal.App.4th at p. 1425; see generally Hogoboom & King, Cal. 

Practice Guide: Family Law (The Rutter Group 2019) ¶ 5:67b and numerous 

cases there cited.) And the phrase “disturbing the peace” must be broadly 

construed in order to accomplish the purpose of the DVPA. (Nadkarni, supra, 

173 Cal.App.4th at pp. 1497–1498.)

We review an order granting a DVRO for abuse of discretion. 

(Nadkarni, supra, 173 Cal.App.4th at p. 1495.) And as Evilsizor also noted: 

“In considering the evidence supporting such an order, ‘the reviewing court

must apply the “substantial evidence standard of review,” meaning

“ ‘whether, on the entire record, there is any substantial evidence,

contradicted or uncontradicted,’ supporting the trial court’s finding. 

[Citation.] ‘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.’ ” [Citation.]’ (Burquet v. Brumbaugh (2014) 223 Cal.App.4th

1140, 1143.)” (Evilsizor, supra, 237 Cal.App.4th at p.1424.)

Our review under the abuse of discretion standard is based on wellsettled principles, including these from the Supreme Court: Discretion is

“abused” only when, in its exercise, the trial court “ ‘exceeds the bounds of

reason, all of the circumstances before it being considered.’ ” (Denham v.

Superior Court (1970) 2 Cal.3d 557, 566; see Sargon Enterprises, Inc. v.

University of Southern California (2012) 55 Cal.4th 747, 773 [“A ruling that

constitutes an abuse of discretion has been described as one that is ‘so

irrational or arbitrary that no reasonable person could agree with it’ ”].)
13

Finally, the trial court’s exercise of its discretion is measured against

its “consisten[cy] with the statute’s intended purpose” (People v. Rodriguez

(2016) 1 Cal.5th 676, 685), which, as quoted above, are the two express

purposes enshrined in the DVPA, both referencing the future. In short, while

past acts of abuse “may” form an adequate basis on which to issue a DVRO,

the purpose of such an order is still entirely prospective: to “prevent acts of

domestic violence [and] abuse” in the future and to “provide for a separation

of the persons involved . . . .” (§ 6220.)

Faced with these principles, Kesala has a daunting challenge—a

challenge she has not met. 

Kesala acknowledges that the “trial court found domestic violence on 

the lesser nonviolent [sic] ground of section 6320’s ‘disturbing the peace’ ” and 

argues that such a finding contains an “implicit” negation of any other form 

of abuse. This argument turns the standard of appellate review on its head, 

as we indulge every reasonable inference to support the trial court’s order, 

not to undermine it. More fundamentally, the argument provides no grounds 

for reversal, since the “disturbing the peace” standard in section 6320 

provides ample grounds for the DVRO here. (Nadkarni, supra, 

173 Cal.App.4th at pp. 1497–1498.)

Kesala argues that she lacked the mens rea or “wrongful intent,” 

asserting that the trial court erred because her subjective intent “was to 

effect reasonable parental discipline, not to disturb the children’s peace or to 

hurt them,” and that “the Legislature expressly included a mental state 

requirement” in the DVPA, in essence requiring proof that she acted with 

“wrongful intent.” And, she claims, the trial court applied the wrong legal 

standard by creating a “strict liability offense” that dispenses with “a mens 

rea, scienter, or wrongful intent element.” 
14

To begin with, Kesala has cited nothing supporting that section 6320 

imposes a “mental state requirement” for all forms of abuse. The purpose of a 

DVRO is to protect victims of domestic abuse, and “the Legislature intended 

that the DVPA be broadly construed in order to accomplish [its] purpose.” 

(Nadkarni, supra, 173 Cal.App.4th at p. 1498.) We agree with Yurasek that

“A child’s need for protection is just as great whether the abuser acts from 

malicious intent, the heat of passion, irresistible impulse, or a misguided 

sense of parental discipline.” 

But even if Kesala were correct, that the statute implicitly applies only 

to abuse committed intentionally, such was present here. Intentionally 

simply means “[t]o do something purposefully, and not accidentally.” (Black’s 

Law Dictionary (6th ed. 1990) p. 810.) Kesala admits she acted with 

“intent . . . to effect reasonable parental discipline.” And the trial court found 

that Kesala carried out this intent in a manner that constitutes “abuse” 

under the DVPA. 

Kesala argues that she has a “fundamental right” to discipline the 

children that “is not enjoinable,” and that her imposition of discipline cannot 

constitute “abuse” under the DVPA. This is very wrong, as perhaps best 

shown by Kesala’s acknowledgement in the first paragraph of her brief that 

“when discipline is excessive, a parent commits domestic violence or child 

abuse.” In any event, the trial court was fully cognizant of “a parent’s 

authority to guide and discipline your children,” and found that Kesala had 

crossed the line into “behavior that is enjoinable under the [DVPA].” And 

that finding is supported by substantial evidence.
15

The Trial Court’s Finding of Abuse is Supported by Substantial 

Evidence

Introduction

As will be discussed to some extent below, Kesala’s position on appeal 

is premised on her version of events, essentially disregarding the evidence 

adverse to her. For example, Kesala’s brief references her testimony that “I 

don’t hit my kids in anger” and “I don’t punish them with physical 

punishments for being bad,” but omits Dr. Brinamen’s testimony that Kesala 

had admitted to him that she “had hit [S.] in the arm” and “pushed him into a 

chair,” and that she referred to “her own conduct as unacceptable.” Kesala 

states that Officer Colgan “found no abuse,” but omits that all three children 

testified they toned down what they told Officer Colgan. Indeed, Kesala 

devotes an entire section of her brief—over five pages—challenging “S.’s 

credibility,” asserting that his version of the incident was “suspect” and “was 

contradicted by Yurasek,” all this in the face of the trial court’s express

finding that S. and his brothers were credible, a finding binding here.

6 (In re 

Marriage of Roe (1993) 18 Cal.App.4th 1483, 1488.) 

This is most improper.

California Rules of Court, rule 8.204(a)(2)(C) provides that an 

appellant’s opening brief shall “[p]rovide a summary of the significant facts.” 

And the leading California appellate practice guide instructs about this: 

“Before addressing the legal issues, your brief should accurately and fairly 

state the critical facts (including the evidence), free of bias; and likewise as to 

the applicable law. [¶] Misstatements, misrepresentations and/or material 

6 This is illustrated in Kesala’s brief which in its “Statement of 

Relevant Facts,” has headings describing O.’s “false text to Yurasek,” 

S.’s version of the incident was “suspect,” and there were “no 

indications of fear.” 
16

omissions of the relevant facts or law can instantly ‘undo’ an otherwise 

effective brief, waiving issues and arguments; it will certainly cast doubt on 

your credibility, may draw sanctions [citation], and may well cause you to 

lose the case!” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and 

Writs (The Rutter Group 2010) ¶ 9:27, p. 9-8 (rev. # 1, 2010, italics omitted.) 

Kesala’s brief ignores this instruction.

Kesala’s brief also ignores the precept that all evidence must be viewed 

favorably to Yurasek. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 925–926; 

Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) In sum, what 

Kesala attempts here is merely to reargue the “facts” as she would have 

them, an argumentative presentation that violates the rules noted above, a 

treatment of the record that disregards the most fundamental rules of 

appellate review. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, 

§§ 365, 368 421–424, pp. 425–426.) As Justice Mosk well put it, such “factual 

presentation is but an attempt to reargue on appeal those factual issues 

decided adversely to it at the trial level, contrary to established precepts of 

appellate review. As such, it is doomed to fail.” (Hasson v. Ford Motor Co. 

(1982) 32 Cal.3d 388, 398–399.)

There was substantial evidence of abuse, substantial evidence to 

support the trial court’s express finding that Kesala “disturbed the peace” of 

the children, i.e., destroyed their mental or emotional calm. (Nadkarni, 

supra, 173 Cal.App.4th at p. 1497.) All three children testified to their fear of 

Kesala. And as shown above, Kesala physically and verbally attacked S. in 

front of O. and L., with O. so scared he told his younger brother to “get 

upstairs right now.” L. did, and shut his bedroom door and sat with his back 

against it, afraid Kesala was going to attack him like she had S. Meanwhile,

O., who had texted his father, said in a phone call that he was under the 
17

dining room table, a call he cut short because he was scared his mother would 

hear. And S. was so afraid after Kesala’s attack that he went to his room and 

cried until the police arrived. 

Moreover, Kesala’s conduct had repercussions on the children. 

Fourteen-year-old S. began crying while testifying about the incident, and 

still did not feel safe visiting Kesala without the nanny present. O.’s best 

friend noticed a change in O.’s demeanor after the incident. And L. thought 

about the incident “a lot” and, like S., felt safer at Kesala’s house when the 

nanny was present. 

Kesala herself acknowledged to Dr. Brinamen that her conduct during 

the March 27 incident had been unacceptable, that it was not good for her or 

S. In her words, for S. “there’s always going to be a before and after . . . this 

incident.” Dr. Brinamen agreed, testifying that Kesala’s behavior had been 

“problematic,” that she had subjected the children to “a really upsetting 

incident.”

Such evidence is more than sufficient to support a finding that Kesala’s 

conduct destroyed the children’s peace and calm. That is disturbing the 

peace. (See, e.g., Nadkarni, supra, 173 Cal.App.4th at p. 1483; Burquet v. 

Brumbaugh, supra, 223 Cal.App.4th at pp. 1146–1147 [legal standard for 

disturbing the peace under DVPA different from that under Penal Code].)7

7 Kesala did not request a statement of decision. “In the absence of a 

request for specific findings, a reviewing court must imply in support of the 

judgment all reasonably necessary factual findings that may be inferred from 

the findings actually made.” (Union Bank v. Ross (1976) 54 Cal.App.3d 290, 

297.) 

In light of this, there is also substantial evidence to support an implied 

finding that Kesala attacked S. causing bodily injury and causing him to 

reasonably fear imminent serious harm. (§ 6203, subds. (a)(1), (a)(3).) As the 

boys testified, Kesala pounced on S. in the dining room, grabbing him by the 

face “really, really hard” and pushing him down into a chair, and then onto 
18

The DVRO Did Not Violate Due Process

Kesala argues that the trial court violated due process because she 

lacked notice that “the trial court was considering disturbing the peace” as a 

basis for the DVRO. The essence of the argument is that “disturbing the 

peace” was not the thrust of the trial and entered the case only in closing 

argument, when counsel for Yurasek argued it. 

By way of brief background, following the argument by Yurasek’s 

counsel, Kesala’s counsel had the opportunity to respond. This is what he 

said about “disturbing the peace”: 

“MR. O’KEEFE [counsel for Kesala]: So she made an argument that 

they proved that the kids—you know, that there was a disturbance of the 

peace. That’s not the standard in this case. You know, there’s a right to 

parental discipline and a right to use force. We didn’t even get to that level.

“But the standard in this case is defined under Penal Code section 

11165.6 which requires intent—the willful intent to harm or injure a child. 

So it’s not disturbing the peace. That’s not true.

“She made a lot of references to [O.’s] texts and used that to show [O.] 

was scared because he said he was scared, but we know [O.] said that text 

was not true, including the part about him being scared.” 

That was it. There was no objection to “disturbing the peace.”

8 

the floor, hitting him multiple times with a closed fist. The attack left S. with 

scratches and bruises, an attack, it can be inferred, that caused all three boys 

to fear bodily injury.

8 Sixteen pages later, after the trial court announced its decision, 

counsel for Kesala referred again without objection to “the finding here 

is that it’s disturbance of the children’s peace and well-being.” 
19

Then, when the trial court announced its decision, among other things

finding Kesala’s conduct “enjoinable as disturbing the peace of the children,”

counsel for Kesala again voiced no objection.

In light of this, the argument Kesala raises here—that disturbing the 

peace was not involved—was not raised below. It was thus waived or 

forfeited. (Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794 

[“It must appear from the record that the issue argued on appeal was raised 

in the trial court. If not, the issue is waived”]; City of San Diego v. D.R. 

Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 685

[contentions or theories raised for the first time on appeal are not entitled to 

consideration].)

In any event, the argument would lose on the merits. 

To begin with, Kesala’s assertion that she lacked notice about 

“disturbing the peace” is belied by the record. The mandatory form DV-100 

Yurasek filed expressly references the statutory definition of “abuse,” which 

includes disturbing a party’s peace. Even more importantly, the form had

attached to it Yurasek’s declaration setting forth the facts regarding the 

incident on March 27 and numerous other facts. The declaration was nine 

pages long, and had 24 paragraphs, which among other things referred to the 

boys confirming “the physical and emotional abuse inflicted by their mother.” 

Kesala was on notice of what was involved, and it included emotional abuse.

Beyond that, Kesala has not shown the claimed lack of notice was 

prejudicial such that a more favorable result would have been probable,

which is what is required. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.) 

While Kesala argues that “she would have approached the case differently,”

she does not elaborate as to how, nor does she identify any evidence that 

contradicts or undermines the trial court’s findings.
20

The DVRO is Not Overbroad

In a brief 16-line argument, and citing no cases involving the DVPA, 

Kesala argues that the DVRO is overbroad because it prohibits lawful 

behavior, specifically, “any behavior that could cause . . . emotional 

discomfort” or “would cause the children to become anxious or fearful.”9

Kesala has once again forfeited the issue, as she did not challenge the 

language below. Indeed, not only did she not object to it, her own form of 

order agreed with it, which “constitutes a waiver of the issue, since appellant 

and counsel acquiesced in and contributed to any such error.” (Sperber v. 

Robinson (1994) 26 Cal.App.4th 736, 742–743.) In any event, Kesala does not

specify what “lawful behavior” is prohibited, that is, what “law” authorizes 

her to inflict “fear and anxiety” on her children.

Kesala also asserts, however briefly, that the DVRO was overbroad 

because it “included O., who was not afraid of Kesala.” Section 6320 gives the 

trial court discretion as to whom to include in a protective order. (§ 6320, 

subd. (a).) And the trial court acted within its discretion by including O., who 

Kesala had slapped in the past, who had witnessed Kesala’s attack on S., and 

who sent Yurasek a text telling him he was scared. Kesala may assert that 

O. was “not afraid of Kesala,” but O. testified that his mother “was, like 

hitting [S.], and it was, like, really scary.” 

9 The excerpted language is found in this paragraph of the DVRO: 

“The parents will not subject the children to corporal or harsh 

punishment such as yelling in the children’s face; intimidation of any 

kind; berating comments; threats of self-harm; spanking; hitting or 

striking with any instrument; hitting with a closed fist; hitting with 

head or face; choking; kicking; shaking; grabbing a child’s face; or any 

behavior that could cause injury, bruising, or physical or emotional 

discomfort. Additionally, the parents will not engage in any other type 

of behavior that would cause the children to become anxious or fearful.” 
21

Exclusion of the Body Camera Video Was Not Error

As noted, on June 10, the second day of trial, Kesala called Officer 

Colgan out of order,

10 and did not seek to introduce his body camera video

during his testimony. On July 25, the last day of trial, Kesala sought to 

introduce 26 minutes of video footage from the body camera. Doing so, 

Kesala’s counsel conceded the video provided no direct evidence of the truth 

of any disputed fact, and was offered as circumstantial evidence of the 

“mental state” of Kesala and the children, going so far as to concede the video 

“may be duplicative in some respects” of evidence already admitted. The trial 

court excluded the video, stating “[a]t this point I think it’s cumulative.” 

This, of course, is a discretionary ruling. (Belfiore-Braman v. Rotenberg 

(2018) 25 Cal.App.5th 234, 249–250; Evid. Code, § 352.) And Kesala has 

shown no abuse, nor that the exclusion of the video resulted “in a miscarriage 

of justice.” (Evid. Code, § 354.)

Yurasek’s Appeal Has No Merit: The Order Awarding Fees Was 

Not Error11

Introduction and the Standard of Review

As noted above, following various post trial proceedings the trial court 

awarded $80,000 in need-based attorney fees to Kesala under section 2030.

12 

10 Officer Colgan had been subpoenaed and had apparently come 

to court on two prior occasions. 

11 Months after briefing was completed, counsel for Kesala filed 

letters with this court, one of which attached a transcript from an 

August 2020 hearing, the thrust of which was to seek to have Yurasek’s 

appeal dismissed under the disentitlement doctrine. We reject the 

attempt and address the merits of Yurasek’s appeal.

12 Which provides in relevant part: “In a proceeding for 

dissolution of marriage, nullity of marriage, or legal separation of the 

parties, and in any proceeding subsequent to entry of a related 

judgment, the court shall ensure that each party has access to legal 
22

The trial court enjoys broad discretion in awarding attorney fees in maritalbased disputes (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768), and its 

decision whether and in what amount to award such fees is reviewed for 

abuse of discretion. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 

282–283.) 

Yurasek does not challenge the findings that Kesala demonstrated 

need or that he had the ability to pay, nor does he claim that the amount

awarded was unreasonable. Rather, Yurasek’s appeal is premised on the 

arguments that there must be a statutory basis for attorney fees, which the 

DVPA does not provide; that he brought the request for DVRO as guardian 

ad litem and was thus not a party against whom fees could be awarded; and 

that to award fees to one against whom a DVRO was entered is against 

public policy. Based on that, Yurasek asserts that the standard of review is 

de novo, relying on this quotation from the Supreme Court in Connerly v. 

State Personnel Bd. (2006) 37 Cal.4th 1169, 1175, quoting Carver v. Chevron 

U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142: “ ‘On review of an award of 

attorney fees after trial, the normal standard of review is abuse of discretion. 

However, de novo review of such a trial court order is warranted where the 

determination of whether the criteria for an award of attorney fees and costs 

in this context have been satisfied amounts to statutory construction and a 

question of law.’ ” So, Yurasek contends, the standard of review is de novo 

representation, including access early in the proceedings, to preserve 

each party’s rights by ordering, if necessary based on the income and 

needs assessments, one party . . . to pay the other party . . . whatever 

amount is reasonably necessary for attorney’s fees and for the cost of 

maintaining or defending the proceeding during the pendency of the 

proceeding.” (§ 2030, subd. (a)(1).)
23

“because whether fees are available depends on the construction of section 

2030 and the DVPA.”

We disagree, especially because Yurasek’s treatment of the record is 

less than complete, and indeed suffers from similar infirmities as does 

Kesala’s brief. Put otherwise, Yurasek’s brief utterly ignores that custody 

was involved in the proceeding—put there by Yurasek himself. 

As indicated above, Yurasek started the DVRO proceeding with his 

request on April 5, a request that not only sought temporary custody pending 

hearing on the DVRO, but affirmatively requested modification of the parties’ 

joint custody order. Specifically, following instructions to “check the orders 

you want,” Yurasek checked the box in item 12 that said: “I have a child 

custody or visitation order and I want it changed.” Yurasek attached form 

DV-105, “Request for Child Custody and Visitation Orders,” identifying 

himself as “Dad” for purposes of requesting modification of a current custody 

order, and as such, sought sole legal and physical custody of the boys, stating, 

“I want to change a current child custody or visitation court order” in case 

number “FDI-12-778342.” On the next page, Yurasek checked the box that 

represented as a “Party” he was “involved in” the “Other Custody Case,” i.e., 

“FDI-12778342,” a case he described as a “Divorce” case in which the trial 

court issued a custody order dated “9/12/2017.” In sum, Yurasek in his 

individual capacity as “Dad” and a “Party” to the divorce case, initiated a 

custody modification proceeding by affirmatively seeking modification of the 

joint custody order. 

On June 11, the third day of trial, the trial court granted Yurasek’s 

request for a custody evaluation, with the understanding that it would not be 

completed in time for use in the trial. This is what the court said: “[L]et me 

just also provide some feedback about the child custody evaluation that both 
24

sides seem to acknowledge is going to happen. [¶] . . . [¶] Given how long it 

takes to select, retain, and then get started with a custody evaluator, I’m 

going to suggest to both sides, if you agree that there needs to be a custody 

evaluation, that you start talking now about the selection of that person, how 

the person is going to be paid, and then start inquiring about availability. 

[¶] . . . [¶] Because I understand that Ms. Kesala’s concerned about doing a 

custody evaluation under the current temporary visitation orders. But I 

think the fact of the matter is, by the time your selected evaluator gets

started and does home visits, this trial should be long over.” The court went 

on to describe the DVRO and custody modification proceedings “as two 

separate issues.” 

In late June, apparently the 24th, Kesala served her ex parte request 

for change of custody, attorney fees, and costs under section 2030, and the 

trial court set hearing on the request for July 25. At the hearing on June 24, 

Yurasek’s counsel took issue with Kesala’s “motion asking for emergency 

relief and new custody orders,” and complained that Kesala did not agree to 

an evaluator who would not be available for six months. The trial court again 

stated its view that custody issues were separate from the DVRO proceeding: 

“I know that the child custody issues are complex and highly contested, but I 

would like to deal with the domestic violence issue first.” And the court again 

indicated its ruling regarding custody evaluation was in anticipation of 

future events: “So I am trying to, because we know custody evaluations take 

time under the best of circumstances, I am trying to get the parties to start 

working on it now so that it can be completed in as timely a fashion as 

possible. [¶] . . . [¶] I would say six months is probably too long to wait to get 

started.” 
25

On July 19, having received no substantive opposition from Yurasek to 

her request for fees and custody, Kesala submitted a brief in support of her 

request. Among other things, Kesala argued that a DVRO action is “related” 

for purposes of awarding fees under section 2030 because “post-dissolution 

custody modification proceedings [are] ‘related’ to the dissolution proceeding 

for purposes of a need-based fee request.” Kesala further argued that 

“although [Yurasek] could have pursued a modification of custody by motion, 

he chose the heavy-handed tactic of an ex parte restraining order, 

notwithstanding the contrary reports/advice he received from Officer Colgan 

and Dr. Brinamen. [Yurasek’s] strategy gained him advantage of an 

immediate change from 50% to full custody without notice and a hearing. 

Thus, the substance and effect of [Yurasek’s] DV[RO] action was the 

modification of custody.” Kesala requested a fee award and reinstatement of 

her right to joint legal custody.

As noted, the DVRO trial concluded on July 25, and following closing 

arguments the trial court announced its findings and decision to issue a 

DVRO against Kesala and related items, going on for over four pages. After 

all that, the trial court said: “The next major step in your case is to 

participate in and complete the child custody evaluation. In regards to the 

scope of the child custody evaluation, Mr. O’Keefe, the scope of evaluation 

that you proposed is acceptable to the court. And I will add on a question for 

the evaluator to directly answer whether or not there’s any reason to believe 

there’s parental alienation on either side. . . .”

The court then turned to the issue of attorney fees, saying this: 

“Regarding attorneys’ fees, the court is not going to order Mr. Yurasek to pay 

attorneys’ fees to Ms. Kesala for fees and costs related to the DVRO 

proceedings. . . .
26

“However, I am going to order attorneys’ fees for the purpose of 

proceeding with the child custody proceedings under section 2030. The court 

definitely finds that Mr. Yurasek has greater access to funds.

“What I need to know, Mr. O’Keefe, is I need you to break out the 

attorneys’ fees request and indicate what is needed on the child custody 

portion of the case, and separate it out from the fees incurred on the DVRO 

proceedings. And the court will make a reasonable grant of attorneys’ fees to 

enable Ms. Kesala to have even footing on the child custody part of the case 

and move forward with the next set of proceedings, which I know there will 

be.

“So I’m going to make an order for [section] 2030 attorneys’ fees, but I 

need some information, Mr. O’Keefe, on what the amount incurred was 

related to custody and visitation— so the child custody evaluation for 

example—and what the expected need is moving forward.”

The trial court set the matter for hearing on September 5. 

On August 16, in a further effort to modify the temporary custody 

order, Yurasek filed an ex parte application seeking an emergency order that 

Kesala should only be allowed to visit with the boys once per week. On 

August 20, Yurasek filed another ex parte request to change the temporary 

custody order. And on August 23, Yurasek filed a belated opposition to the 

fee request, raising the same arguments the trial court had already 

considered on July 25. Yurasek also asserted that Kesala pay him prevailing 

party fees and costs of $389,422, under section 6344. 

On August 29, counsel for Kesala filed his apportionment of fees, along 

with opposition to Yurasek’s motion for reconsideration and request for 

prevailing party fees. 
27

On August 30, Yurasek reiterated his request for modification of the 

“custody schedule and parenting plan . . . as requested in [his] ex parte 

request filed on August 20.” The August 30 filing not only argued for denial 

of the fees to Kesala, it also accused Kesala and her counsel in engaging in 

unethical conduct. And it reiterated Yurasek’s claim to attorneys’ fees under 

section 6344. 

On September 3, Kesala filed her response to Yurasek’s charge of 

unethical conduct and his request for fees. 

Prior to the scheduled September 5 hearing, the court issued a 

tentative ruling. Yurasek contested it, and a lengthy hearing ensued, which 

began with the court noting: “I . . . read everything that both sides gave 

me. . . . About three inches high. . . . And I have reviewed the numerous 

filings that were given to me by both sides and so I do understand.” Then, 

five pages later, and as relevant here, the court explained its reasoning for 

awarding fees: “[T]here’s been a parallel subaction running alongside the 

DVRO hearing, which was the child’s custody evaluation. . . . I have ruled on 

the domestic violence restraining order. I have granted the request. I have 

found that there’s been an act of abuse under the DVPA. Now we are moving 

to the next phase of the case, which is going to be—and I have made 

temporary custody orders, and now we need to move forward to the custody 

evaluation and getting back to a more permanent custody arrangement down

the road, assuming the presumption against custody is rebutted.” 

The trial court then noted that “Mr. Yurasek has filed another request 

for order regarding custody and visitation separate from the DVRO. So 

procedurally there is a custody issue going on.” To which counsel for Yurasek 

responded, Kesala “may be entitled to fees if there is a motion for a change in 

custody.” Then following brief argument by Kesala’s counsel, the court 
28

announced it would adopt its “tentative ruling with some modifications,” 

saying this: “In terms of the amount of attorney’s fees, the court is going to 

award [section] 2030 attorney’s fees to mother. The $80,000 breakdown for 

your information was $45,000 in prospective fees, 100 hours, and $40,000 for 

incurred fees related to the custody evaluation and issues on the 2030 motion 

as identified in Mr. O’Keefe’s invoice. I didn’t give the full amount of fees 

associated with those activities, but I awarded $35,000 related to fees 

incurred for the custody evaluation and motion issues related to the ex parte 

request from Mr. Yurasek and the 2030 motion. [¶] . . . [¶]

“I went through the invoice submitted by Mr. O’Keefe and 

identified . . . I previously ruled that Ms. Kesala is not going to recover fees 

on a DVRO as she is not the prevailing party. And I went through the invoice 

by Mr. O’Keefe and identified the fees incurred that were related to the child 

custody evaluator, the ex parte motion that’s on calendar for today, and the 

2030 fees request. Okay? So I am going to maintain that amount. [¶] . . . [¶]

And just to be clear, the court anticipates that this fee award is going to cover 

the completion of the next phase of the case on the child custody evaluation.” 

On that same day, the trial court filed its findings and order after 

hearing, a comprehensive four-page, single-spaced order reflecting all—and 

we mean all—that the court had done. It was a model order, ending with 

this: “Mother’s request for attorney’s fees and costs for the child custody and 

visitation issues is GRANTED IN PART. The court finds that the 

appropriate amount is $35,000 for fees and costs already incurred related to 

the child custody evaluation and the two motions on calendar today, and 

$45,000 for anticipated future fees to complete the phase of the case related 

to the pending child custody evaluation. Father is ordered to pay the total 
29

amount of $80,000 to Mother as and for attorney’s fees and costs pursuant to 

[Family] Code [section] 2030 in two equal payments. . . .”

The ruling by the trial court was spot on, manifesting conduct of the 

trial court about as far from abuse of discretion as imaginable. But even

were our review de novo, the trial court had it right, as the issue of custody 

was in the case from the beginning, put there by Yurasek’s request for DVRO 

and the boxes he checked and the attachments he filed. As the trial court 

properly held, the DVRO and the custody dispute were “two separate 

proceedings,” with the understanding that the latter would not be completed 

before the end of the DVRO trial. Were all that not enough, as Yurasek’s own 

counsel acknowledged at the September 5 hearing, “if there is a motion for 

change in custody,” Kesala “may be entitled” to attorney fees. Indeed. There 

was no error.

DISPOSITION

The DVRO and the order of September 5, 2019 are affirmed. Each side 

will bear its respective costs on appeal.
30

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Miller, J.

Yurasek v. Kesala (A158859)