Filed 6/ 4/ 20 Certified for Publication 6/26/20 (order attached)

IN THE COURT OF APPEAL OF TH E STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

KEITH McCORD,

Plaintiff and Appellant,

v. CELESTE SMITH, Defendant and Respondent. G057614
(Super. Ct. No. 19V000007)

O P I N I O N

Appeal from a n order of the Superior Court of Orange County, Maurice Sanchez, Judge. Affirmed.

Keith McCord, in pro. per., for Plaintiff and Appellant. Celeste Smith, in pro. per.; Borchard & Callahan and Tyler B. Borchard for Defendant and Respondent.
* * *2 I NTRODUCTION After the end of their relationship, f ormer domestic p artners Keith McCord
and Celeste Smith each asked the trial court for a domestic violence restraining order (DVRO) against the other. The c ourt granted Smith ’ s request and denied McCord ’ s request. The court also dismissed with prejudice M cCord ’ s request for an order to show

cause (OSC) why Smith should not be held in contempt. McCord appealed from the

court ’ s order . We affirm.

Substantial evidence supported the trial court ’ s findings underlying the
issuance of the DVRO in favor of Smith and against McCo rd. There was no evidence supporting the issuance of a DVRO in favor of McCord and against Smith, and McCord makes no specific argument on appeal regarding this portion of the trial court ’ s order

.

Finally, because a judgment or order in a contempt matter is final and conclusive, no appeal lies from it.

S TATEMENT OF F ACTS AND P ROCEDURAL H ISTORY Smith a n d McCord became involved in a romantic relationship in September 2014. McCord proposed marriage and gave Smith an engagement ring, which she accepted.
Mc Cord testified he and Smith had been fighting via text messages and
tele phone calls over the weekend of September 9, 2018 because he had gone to Las Vegas without her. When McCord returned on Septe mber 9, he went to Smith ’ s home, where they continued to a rgue. McCord testified that Smith then got in her car, backed out of her driveway, and tried to back over McCord. McCord claimed he did n o t immediately file a police report because he loved Smith and wanted to work things out. The appellate record, howe ver, contains documents purporting to be McCord ’ s report to3

the Huntington Beach P olice D epartment , dated September 9, 2018 , claiming that Smith
had threatened to kill him and said he would not live to see tomorrow. 1 Smith testified
she did not threaten M cCord or try to run him over with her car in September or November 2018. Criminal charges were never filed against Smith.

Smith ’ s friend Andrea Branam testified that on October 30, 2018, she was

a t Smith ’ s home when McCord came to the home several times d emanding to speak to Smith, and then called Smith ’ s cell phone and “ bl[e]w her phone up with texts and phone
calls. ” McCord testified he only texted Smith twice on that day.

Smith broke up with Mc Cord on November 2, 2018. She testified that
McCord tried to talk her out o f it , hugged her, and ultimately restrain ed her on her bed
with his hand over her mouth. After he let go of her, Smith ran outside to her driveway ; at that time, she did not call the police

.

McCord sent Smith e

- mails throughout November, after she had stated her
intention to break u p with him. Dawn Sheldon, a nother friend of Smith , testified that the breakup was very volatile and Smith was afraid

. Sheldon was scared for Smith because McCord was being “ forceful , ” and she kept telling Smit h to get a restraining order.

Olivia Freeman, Smith ’ s daughter , testified that on November 12 , McCord came to their home and expressed interest in throwing a surpri se birthday party for Smith.

Smith testified that on November 13, 2018 , McCord showed up a t her home, uninvited , demanding to talk. When Smith asked him to leave, “ he started saying [she] was going to see what it was like to be his enemy. ” When Smith told McCord she

1 McCord ’ s req uest for a temporary restraining order listed the date of the threat as November 11, 2018. The appellate record does not contain any evidence of an alleged act of abuse by Smith against McCord occurring on that date, however. McCord later stated that the November 11 date was incorrect : “ We apologize for the error as we did not receive the correct date of the call report until AFTER McCord filed the police report. ” McCord does not explain how he could have forgotten such a significant fact as the date hi s fiancée threatened to kill him.4

was going to record him , using her cell phone , if he continued to threaten he r, McCord grabbed her by the wrist and squeezed, leaving a bruise. McCord claimed he never touched Smith that day, and th e injury to Smith ’ s wrist mi ght have been caused by her hitting the side of the door when she grabbed her dog ’s collar

.

On two occasio ns after November 11, 2018, McCord let himself into
Smith ’ s home via the access code on her door , without her permission , and demanded to speak to her

. Although Smith asked him to leave, he refused , and Smith stood in her driveway until he left.

Branam te stified that McCord continuously showed up at Smith ’ s workplace, despite Smith ’ s requests that he not do so, which made Smith “ very upset. ” Branam further testified that McCord was waiting for Smith after church services on November 25, and continued to f ollow Smith “ until he finally got the message that she

wasn ’ t going to acknowled ge him. ” Branam encouraged Smith to change the locks on her home and pursue a temporary restraining order ( TRO ) against McCord.

In December, McCord continued to sen d Smith e

- m ails and left flowers on
her doorstep. McCord testified he thought the break up was temporary. On one occasion, McCord texted “ drive safe ” to Smith when she was out with Freeman , which
caused them to believe that McCord was stalking Smith

. At that point , Freeman told
Smith she needed to get a TRO against McCord. For his part, McCo rd claimed Smith responded to his “ drive safe ” text with a picture of a rainbow.

On December 18, 2018, McCord texted Smith a photograph of her nursing
license with the messag e, “ Is this yours? You want to fight me. I did not want to fight. ”
Because S mith was “ alarmed and concerned , ” s he texted McCord, “ What are you doing with my license? ” and “ My license is fine. ” McCord then sent Smith by text message a naked photo of her self. Smith testified she was “ extremely distraught ” and contacted
Mc Cord to say , “ Never contact me again , ” and “ I will sue you if you do anything with5

my photos or my nursing license. ” McCord claimed he was concerned about Smith ’ s personal matters becau se his computer had been hacked

.

McCord claimed Smith sent him a n e

- mail on December 24, 2018 threatening to kill him and to let Yale University know McCord ’ s son (who was a student athlete there) was a cheater

. Smith denied sending that e

- mail and testif ied that McCord had her computer passwords.

Alt hough McCord claimed that Smith ’ s request for a DVRO was made in
retaliation to his own request, Smith offered evidence that she had been contemplating seeking court assistance before that time.

Smith testifie d McCord had stalked, harassed , and threatened her , and used her personal photos, passcodes, and other personal information against her. She did not feel safe at home, work, or in church. Smith testified McCord filed false criminal charges against her.
M cCord ’ s request for a TRO against Smith was granted on January 2, 2019. On February 13, despite the existence of the TRO, McCord left a stuffed bear on Smith ’ s

car. On January 8, 2019, Smith filed a request for a DVRO against McCord. The request was deni ed pen ding a hearing because (1) a TRO had already been issued protecting McCord from Smith, and (2) McCord had not been provided with notice of
Smith ’ s request.

On February 8, 2019, Smith called the Huntington Beach police to report that, after she pulled into her driveway, McCord parked his car behind hers, blocking her
car in. McCord walked up to Smith ’ s driver ’ s side window and asked her to roll down
the window. Smith refused and told McCord through the closed window that he was not supposed to be at her ho me and he should leave. McCord then left. Because McCord was the protected party under the existing TRO, t he responding officer filed an informational report but conducted no further investigation.6 On April 8, 2019, McCord requested an OSC for cont empt a gainst Smith.
McCord ’ s request was based on Sheldon and Freeman blocking McCord ’ s movement in the courthouse hallway following a hearing as they tried to force McCord to take back Smith’s engagement ring.

On April 12, 2019, following an evidentiary hearin g, the trial court entered

a DVRO protecting Smith and her minor daughter from McCord. The DVRO contains personal conduct and stay

- away order s , and permits Smith to record any unlawful communications by McCord. The trial court denied McCord ’ s reque st for a DVRO against Smith, and dismissed with prejudice an OSC for contempt filed by McCord against Smith

.

With regard to the competing requests for DVROs, t he trial court made the following findings that are relevant to this appeal:

“ The Court heard testimony from both sides and weighed the credibility of the witnesses. [Smith] had several witnesses which had a very consistent story with numerous actions where [McCord] went out of his way to contact [Smith] after the Temporary Restrai ning Orders were in place. The Court does not believe [McCord] is fearful of [Smith], as there is nothing indicating that.

. . . The Court finds, there is insufficient evidence to substantiate by a preponderance of the evidence that domestic
violence [by Smith against M cCord] has occurred. .

. . McCord ’ s request for restraining orders is denied. [¶] As to [Smith]’s request, the Court finds [McCord] tried to exercise some dominion or control over [Smith]. The Court finds sending the picture of [Smith]’s nursing license to her as a threat. The Court further finds [McCord] continued to have contact with [Smith] months after he admitted they broke up, which is classic stalking
behavior.

. . . The Court finds, by a preponderance of the evidence, that acts of domestic
viol ence have occurred and that

. . . McCord is the perpetrator, and

. . . Smith and her minor daughter are the victim [s] .”7 D ISCUSSION
I. S UBSTANTIAL E VIDENCE S UPPORTS T HE DVRO IN F

AVOR OF S

MITH AND A GAINST M C C ORD

. The trial court ’ s issuance of a restraining order under the Domestic
Violence Prevention Act is a discretionary matter. (Fam. Code, § 6300 et seq. ; Herriott
v. Herriott (20 19 ) 33 Cal.App.5 th 212, 223 ( Herriott ) ; In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698,702 .) We will not distu rb a trial court ’ s exercise of
discretion unless, as a matter of law , given all the relevant circumstances, we can say (1) the trial court exceeded the bounds of reason, or (2) no reasonable judge would have
made the same order. ( Herriott, supra , at p. 22 3 ; see Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773 .) In determining whether
there is substantial evidence to support the trial court ’ s decision, we resolve all conflicts
in the evidence in Smith ’ s favor and ind ulge all reasonable, legitimate inferences in favor of upholding the trial court ’ s order. ( In re Marriage of Bonds (2000) 24 Cal.4th 1, 31 ; Herriott, supra , at p. 223.) If two or more reasonable inferences can be reasonably deduced from the facts, we hav e no authority as a reviewing court to substitute our judgment for the trial court ’s judgment . ( In re Marriage of Fregoso & Hernandez, supra , 5 Cal.App.5th at p. 702 .)

Credibility determinations are the province of the trial court

. ( Small v. Fritz Compan ies, Inc

. (2003) 30 Cal.4th 167, 182 .) Here, the trial court specifically noted that
it had weighed the witnesses ’ credibility.

A DVRO may be issued to prevent , among other things, “ stalking, threatening,

. . . harassing, telephoning,

. . . contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party

. ” (Fam. Code, § 6320, subd. (a).) Acts th at disturb the peace of a party have
been held to include those that destroy t he party ’ s mental or emotional calm

. ( In re8

Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 149 7 .) The trial court ’ s findings
that Mc Cord ’ s statements and actions were a means o f exercising control and dominion over Smith and threatening her were amply supported by the evidence. Those acts wer e sufficient to constitute a disturbance of her peace , as well as stalking , threatening, and
h arassing. McCord correctly notes that with respect to at least one incident

— his texting the photo of Smith ’ s nursing l icense

— t here was “ [n]o profanity, no shouting, no threats ” ; this is not the relevant standard , however

. The trial court did not err in issuing the DVRO in favor of Smith and her minor daughter, and against McCord.

McCord argues on appeal that Smith improp erly provided significant new evidence on the date of the hearing, which prejudiced him. McCord fails to specify any document that was presented at the last minute , or how his alleged late receipt of such a document prejudiced him. Moreover, defendant wa s represented by counsel in the trial court, and no objection was raised to Smith ’ s alleged late offering of evidence. McCord could not have suffered prejudice due to the alleged late production of documentation at the earlier scheduled hearing when that hearing was continued.

Citing Ross v. Figueroa (2006) 139 Cal.App.4th 856, McCord argues the
trial cour t should have granted him a further continuance to deal with Smith ’ s alleged late
submissions

. That case is distinguishable for two reasons. First, t he defendant in that

case was entitled to a continuance as a matter of law because the restraining order was issued against him without notice. ( Id. at p p

. 861

- 862; see Fam. Code, § 243 , subd. ( a ).) Here, McCord had notice of Smith ’ s request for a restra ining order , which was denied ; McCord is arguing about a continuance of a later proceed ing

. Second, the defendant in Ross v. Figueroa requested a continuance , unlike McCord , who proceeded with the
DVRO hearing without objection or request for a continuanc e.

McCord contends that the trial court abused its discretion and was biased against hi m because the court found that Smith had suffered a bruise to her inner, not
outer wrist. Smith testified McCord caused the bruise when he grabbed her by the wrist9

and squeezed it . She offered into evidence a photograph of her wrist. McCord testified
he did not grab Smith, claimed the photograph showed the outside not the inside of
Smith ’ s wrist, and offered his ideas of how Smith ’ s injury was caused by hitting the sid e of the door

. The court found that it was not credible that the injury to Smith ’ s wrist
occurred as McCord said it did. Finding Smith ’ s evidence to be more compelling and
believable than McCord ’ s does not constitute an abuse of discretion

.

McCord also a rgues that the court abused its discretion by admitting an

“ unauthorized partial t ranscript of a purported taped conversation from May 2018 into
evidence and then finding , that based upon said conv ersation, [McCord] acted with subtle
coercive behavior. ” I n the first place, the court did not admit the transcript into evidence.
Smith te stified she received a voicemail message from McCord threatening to include her

“ financial shenanigans ” in a t a x filing if she continued refusing to talk to him on the phone. McCord denied leaving such a message. No transcript was admitted. Moreover,

t his particular message was not specifically mentioned in the trial court ’ s ruling on the restraining order

.

McCord also argues that he did not coerce Smith by sending her a ph oto of her nursing license with the text message , “ Is this yours? ” Th e trial court found the text
message was a part of an overall series of actions by McCord that threatened Smith ’ s peace of mind: “ Mr. McCord ’ s behavior and continually following up, vis iting
Ms. Smith ’ s house, text messaging her, sending her photographs o f herself and of her nursing license, asking a fairly rhetorical question, ‘ Is this yours? ’ when he knew full well the nursing license was hers

. . . shows that he did intend to exercise some form of
dominion and control

. ” Ample evidence supported the trial court ’ s findings. Whether one single act b y McCord would have been sufficient to justify the issuance of the DVRO is not the question

— the trial court considers whether the totality o f the circumstances supports the iss uance of the DVRO

. (Fam. Code, § 6301, subd. (c)

. )10 McCord next argues that the trial court abused its discretion by basing its issuance of the restraining order on McCord ’ s involvement with Smith ’ s financial
affairs

. 2 Mc C ord ’ s continued involvement with Smith ’ s financial affairs, as to which McCord had no actual connection, was relevant to the court ’ s finding that he was harassing Smith or destroying her mental or emotional calm.

In his appellate briefs, McCord complain s that Smith never provided supplem ental discovery responses. McCord did not raise this issue in the trial court, does not provide the discovery requests or responses here , and fails to explain on appeal how any lack of supplemental discovery responses pr ejudiced him. 3

McCord also argue s that the court erred by failing to allow him to present
evidence from his iPad

. During the hearing, Smith ’ s friend Bra nam testified that on October 30, 2018, McCord texted Smith “ out of control, multiple times

. ” McCord
testified he sent Smith only two text messages , and offered to show the text messages on his iPad as further proof. McCord ’ s counsel, who was questioning him, did not ask the court to view the text messages on the iPad. As discussed ante , when S mith wan ted to use the transcript of a voicemail from McCord at the hearing, the court did not receive the transcript into evidence but allowed Smith to question McCord using the words of the transcript. There is no reason McCord could not have used the s ame proc edure to question Branam or Smith about the number of calls he made to Smith on October 30.

2 McCord also argues that the trial court conflated his attempted involvement with Smith ’ s financial affairs with his request for an OSC re contempt against Smith. McCord misreads the transcript of the hearing. The cour t did not conflate anything. Rather , Smith, who was question ing McCord, changed subject s completely. 3 McCord ’ s opening appellate brief includes a lengthy colloquy between himself and the trial court regarding Smith ’ s failure to provide discovery respons es. This quotation is not taken from the reporter ’ s transcri pt that is a part of the appellate record in this case. From the context , it appears this colloquy occurred at the earlier continued hearing on the parties ’ DVRO requests. As noted ante , any pr ejudice caused by Smith ’ s late provision of documents for the earlier hearing would have been remedied by its continuance.11 II. T HE T RIAL C OURT D ID N

OT E RR IN D ENYING M C C ORD ’ S R EQUEST FOR A DVRO A GAINST S MITH , AND M C C ORD P

ROVIDES N

O A RGUMENT TO THE C ONTRARY ON A PPEAL

. McCord ’ s appell ate brief s do not provide any argument relevant to his request for a restraining order

.

III. T HE J UDGMENT ON M C C ORD ’ S R EQUEST FOR AN O SC R EGARDING C ONTEMPT I S N OT B EFORE U

S ON A PPEAL

. Orders in contempt cases are final and conclusive (Code Civ. Proc., § 1222) and are not appealable ( id. , § 904.1 , subd. (a)(1)) , as McCord conceded in his supplemental brief

. “ Because the order is final and conclusive, neither a trial court nor an appellate court can amend it for any reason, and an appellate court cannot remand a contempt cause in which the order has been declared void and annulled to the superior court to reinstitute contempt proceedings. ” ( In re Bloom (1986) 185 Cal.App.3d 409,
412

- 413.) The issue of the trial court ’ s order dismissing McCord ’ s request for OSC regarding contempt is not properly before us on this appeal. ( John Bruener Co. v. Bryant (1951) 36 Cal.2d 877, 878; Albertson v. Warriner (1962) 199 Cal.App.2d 560, 564

- 565.)

Even if the trial court ’ s o rder dismissing the contempt proceedings with prej udice were properly before us, we would affirm the order. McCord argues that the trial court erred by refusing to consider evidence before denying the request for an OSC regarding contempt. To the contrary, the court indicated the request was not support ed by sufficient evidence. Specifically, the court found that the TRO restrained Smith , while
the actions of Freeman and Sheldon , Smith’s daughter and friend, were alleged to have
constitut ed the contempt

. In the ab se nce of evidence that Smith communicat ed with
Freeman and Sheldon to request that they harass or block McCord , the OSC could not
issue. The court also noted that the relief requested

— dismissal of Smith ’ s request for a12

DVRO

— was inappropriate in a contempt case . The court did consider the evid ence presented and determined it did not make even a prima facie case for issuance of the
OSC.

D ISPOSITION

The order is affirmed. Respondent to recover costs on appeal.

FYBEL, J.

WE CONCUR:

ARONSON, ACTING P. J.

GOETHALS, J.Filed 6/26/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

KEITH McCORD, Plaintiff and Appellant,

v. CELESTE SMITH, Defendant and Respondent. G057614
(Super. Ct. No. 19V000007)

ORDER CERTIFYING OPINION FOR PUBLICATION

Family Violence Appellate Project, ADZ Law, LLP, Building Futures, California Women’s Law Center, Child Abuse Forensic Institute, Coalition for Family Harmony, Community Legal Aid SoCal, Domestic Abuse Center, Domestic Violence Legal Empowerment and Appeals Project, Empower Tehama, Family Violence Law Center, Human Options, Law Foundation of Silicon Valley, Legal Aid Foundation of Los Angeles, Legal Momentum, Los Angeles Center for Law and Justice, Public Interest Law Project, San Diego Volunteer Lawyer Program, Inc., Stopping Domes tic Violence, Tri

Valley Haven, Walnut Avenue Family & Women’s Law Center, Professor Margaret Drew, Professor Joan Meier, and Professor D. Kelly Weisberg have requested that our opinion, filed on June 4, 2020, be certified for publication.2 It appears th at our opinion meets the standards set forth in California Rules of Court, rule 8.1105(c)(2), (3), (4), and (6). The request is GRANTED. The opinion is ordered published in the Official Reports.

FYBEL, J.

WE CONCUR:

ARONSON, ACTING P. J.

GOETHALS, J.