1

Filed 7/22/24 Keeler-Hodgetts v. Tsukroff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

KATHERINE KEELER-HODGETTS,

Plaintiff and Appellant,

v.

BRANDON TSUKROFF,

Defendant and Respondent.

 A166521

 (Alameda County

 Super. Ct. No. HF21102556)

INTRODUCTION

Katherine Keeler-Hodgetts and Brandon Tsukroff are the parents of 

twin daughters they have jointly parented since their birth in 2012.

On June 22, 2021, four years after their relationship and cohabitation 

had ended, Katherine filed a request for a domestic violence restraining order 

(DVRO) against Brandon. In the request, Katherine stated Brandon “has 

been abusing me and our twin girls for years . . . . Recently, he has been 

surreptitiously filming our custody exchanges without my consent, which is 

upsetting both to me and to the children. Because of this filming and the 

many previous instances of abuse, the children and I feel harassed.” The 

DVRO request went on to describe several incidents that occurred several 
2

years earlier in which Brandon had engaged in profanity laced rants, 

destroyed Katherine’s property, and threatened self-harm.

1

Approximately one year later, in her May 27, 2022 trial brief, 

Katherine alleged for the first time that Brandon had “sexually violated” her 

throughout their relationship. During an incident which allegedly occurred 

while visiting her parents, Brandon “stripped her naked, gagged her, tied her 

hands behind her back, took her downstairs, and forced himself upon her.”

These matters were the subject of a four-day trial, at which the court 

heard testimony of the parties and their witnesses.

On September 6, 2022, after receipt of testimony and closing arguments 

of counsel, the court issued a comprehensive 15-page statement of decision 

denying Katherine’s request for a DVRO. The court found Katherine had 

failed to prove by a preponderance of the evidence that Brandon sexually 

abused her during their live-in relationship between 2010 and 2017. The 

court found Katherine was simply “not credible” because she failed to bring 

the sexual abuse allegations any time before the contested hearing. The 

court found it was even “more incredulous” that Katherine would have agreed 

to share custody with Brandon if the sexual abuse allegations were true. The 

court found the other incidents did not rise to the level of “ ‘abuse’ ” within 

the meaning of the Domestic Violence Prevention Act (DVPA) (Fam. Code, 

§ 6200, et seq.).2

Katherine seeks reversal of the court’s denial of her DVRO request on 

the grounds that the court failed to consider the totality of the circumstances 

given the uncontroverted evidence of past abuse. She also contends the court 

1 The court denied Katherine’s request for a temporary restraining 

order and set the matter for a hearing, which was later held in June 2022. 

2 All further undesignated statutory references are to the Family Code.
3

erred by “taking a limited view of how domestic violence victims should act in 

response to abuse.” 

The State of California takes allegations of domestic violence seriously, 

as do we. The statements which Katherine cites out of context do not 

establish that the trial court misunderstood its duty, nor that it took “a 

limited view of how domestic violence victims should act in response to 

abuse.” We affirm the judgment because Katherine failed to establish that 

the trial court abused its discretion in denying her request for a DVRO.

FACTS 

Katherine’s opening brief describes numerous incidents of alleged 

domestic violence by Brandon that occurred during the relationship and 

continued after their separation in 2017.

Alleged Incidents of Abuse Between 2010 and 2017

Katherine testified that during their seven-year relationship, Brandon 

would threaten her, scare the children, break objects, and harm himself. He 

was often intoxicated during these incidents. Katherine admitted drinking 

too much herself, but she had since gotten her drinking under control. 

Katherine said she began using her phone to record the incidents out of 

safety concerns for herself and the children. These recordings, which were 

made without Brandon’s knowledge or consent, were played at trial.3

Alleged Violent Behavior 

Katherine described an incident in 2016 where Brandon screamed and 

berated her for moving a garden hose. In 2017, while attempting to change a 

3 We have reviewed the recordings lodged in the record on appeal. 

Although Katherine submits transcripts of the recordings, with the exception 

of one video, it does not appear transcripts accompanied the recordings at the 

time they were played in the trial court.
4

faucet, Brandon tried to use a butane torch to loosen the joint and became 

frustrated when he could not light the torch. The audio recordings of these 

incidents reflect Brandon screaming obscenities at Katherine in a frightening 

tone. 

In 2016 or 2017, Brandon intentionally smashed Katherine’s Beatrix 

Potter porcelain set that she had saved from childhood. A video shows 

shattered porcelain fragments all over the floor; Brandon can be heard saying 

“I broke it all.” 

Katherine testified about other incidents that were not recorded. In 

2015, Brandon became enraged while Katherine was unloading the 

dishwasher. He picked up a handful of compost from the compost pail and 

smeared it all over the clean dishes, the silverware, and the stove, repeating,

“ ‘Is that clean? There, that’s clean.’ ” On another occasion, Katherine came 

home to find the children crying. The children said, “ ‘Daddy is in the 

kitchen. He is very angry. He is breaking dishes. He is throwing food 

away.’ ”

Also in 2015, Brandon broke the top of a bookshelf that had belonged to 

Katherine’s great-grandmother after he lost his keys behind it. 

Alleged Sexual Assaults 

Katherine testified that in 2016, while the family was visiting 

Katherine’s parents in Santa Barbara, Brandon gagged and zip-tied her late 

at night and forced her to walk naked downstairs, through the living room, 

into an end room, while six other family members were in the house. 

Katherine testified she told a consulting psychologist about the sexual abuse. 

In posttrial briefing, Brandon argued that despite the obvious relevance of 

such evidence, Katherine had not told her own attorneys in either the DVPA 

action or related parentage action that Brandon had sexually abused her.
5

Alleged Suicide Attempt 

On March 23, 2017, Brandon was upset because Katherine’s brother

had visited their house that day and arrived an hour late. As the evening 

progressed, Brandon’s anger intensified, and he became more aggressive and 

frightening. While he and Katherine were putting the girls to bed, Brandon 

threatened to shoot himself in the head. The audio recording of the incident 

is laced with profanity and graphic descriptions of self-harm.

Brandon explained that he had been drinking heavily on March 23, 

2017 and his conduct was triggered by Katherine’s announcement that she 

had enrolled the children in a school in Santa Barbara without his 

permission. Although the parties had talked about retiring in Santa 

Barbara, Katherine’s unilateral decision moved up their “timeline by five, 

seven years.” He felt she was “essentially taking the children away” from 

him. There was no way he could move and still be an Oakland firefighter. 

Brandon denied that his statement about blowing his brains out was a 

suicide threat. However, he “[a]bsolutely” agreed “parts of my history are 

punctuated by very regrettable violence.” Brandon admitted the recorded 

incidents were “emotionally violent,” for which he expressed deep remorse. 

Brandon testified he had been drinking heavily and was under extreme 

stress during these incidents. Brandon said Katherine also drank heavily 

and argued with him in an aggressive manner, but he did not think to record 

those incidents.

Brandon vehemently denied the sexual assaults. In fact, the first he 

heard of the sexual assault allegations was after Katherine filed her initial 

DVRO request. Brandon said the allegations “seemed to coordinate” with the 

hiring of Katherine’s new domestic violence expert.
6

Brandon had been sober since May 2017 and had sought support from a 

therapist in maintaining his sobriety and dealing with his anger issues. He 

sold his guns the day after he and Katherine separated. Since the time of 

their separation, there had been no further incidents like the ones in the 

recordings.

Alleged Incidents of Abuse After the 2017 Separation

Following their separation, Katherine voluntarily participated in the 

children’s visitation with Brandon. In summer of 2017, Katherine and 

Brandon began “more formal” exchanges at a coffee shop.

Brandon’s Videotaping of Katherine and the Children 

Katherine testified about an incident where Brandon appeared 

unexpectedly at the children’s school in June 2017. When Katherine arrived

at the school, Brandon began videotaping her. Brandon said that Katherine

“terrified” him and called her an “abuser.” On another occasion in 2017, 

Brandon videotaped Katherine, the girls, and their nanny at Katherine’s van. 

When the nanny asked Brandon to stop recording them, he replied, “That’s 

okay,” and continued filming them. Brandon wanted to talk about the 

custody case, but Katherine said it was not appropriate because the “children 

are listening.” In response, Brandon said, “I felt very threatened by you, 

Katherine . . . [¶] . . . You advanced on me. I felt very threatened. I’m going 

to go to the police now and file a police report.” Katherine testified that after 

this incident, the girls were crying and asked if the police would come and 

take Katherine to jail. Katherine explained the videotaping made her feel as 

though she was “still being controlled . . . being placed under a microscope.”

In late summer of 2017, when the parties took the girls to a therapist’s 

office for evaluation, Brandon began filming Katherine in the waiting room. 
7

Katherine testified she felt “trapped” in the office with Brandon as he 

recorded her.

In October 2018, the parties’ parenting coordinator advised Brandon to 

stop videotaping, as it was an “irritant.” Katherine testified that Brandon 

continued to film her surreptitiously by placing his cell phone in his shirt 

pocket with the lens facing out. Katherine testified that Brandon finally 

stopped putting his cell phone in his shirt pocket with the lens facing out 

after she filed her request for a DVRO. 

Brandon testified that he videotaped the early exchanges because he 

wanted to document the custody exchanges and to show the children were 

happy and healthy; he also wanted to protect himself from any untrue 

allegations. Brandon stopped videotaping the exchanges after the parenting

coordinator suggested that neither party videotape the interactions. Brandon 

admitted that now knowing the placement of his cellphone in his pocket so 

irritated Katherine, it was a “serious judgment error” to continue to do so. 

The October 6, 2021 Incident 

On September 30, 2021, in his capacity as an Oakland firefighter, 

Brandon found a backpack containing two loaded guns in the Oakland Hills.

He took it to the fire station and the police were called. Two individuals 

came by the station demanding their weapons back and threatened the 

firefighters and their families. In his 18 years as an Oakland firefighter, he 

had been threatened many times. He took precautionary measures, like 

changing his license plate and DMV address, but he did not consider it a 

significant situation.

After learning about the threats, Katherine went to the children’s 

school on October 6, 2021 and attempted to talk to Brandon about her safety 
8

concerns for the children. Brandon refused to talk to her and instead 

videotaped Katherine as she was asking about the welfare of the children.

Brandon testified the children were not in his care when the threat was 

made. The children came to him four days later. When Katherine showed up 

at school—which was not her time to have the children—Brandon felt she 

was trying to use the incident as an opportunity to take the children from 

him. Brandon’s attorney later responded to Katherine by email.

Alleged Recent Conduct 

When asked what Brandon had done recently which disturbed her 

peace, Katherine mentioned his videotaping, although she could not confirm 

if he had done so recently: “There have been times when it seemed like he 

has, but I cannot know for sure.” When asked about conduct other than 

videotaping which disturbed her, Katherine responded: “At transitions, he 

does not acknowledge my presence in any normal way. During telephone 

calls, he does not greet me most of the time. Or if he does, it’s in a low 

monotone before he begins to speak in an animated way with the girls. So I 

feel as though I am a non-presence, unimportant, virtually non-existent 

entity, and that his only focus is on the children.”

Additional Witness Testimony

Katherine’s 18-year-old daughter Elizabeth from a former marriage 

testified that she overheard Brandon telling Katherine to take her clothes off 

and “[e]xpose [her] vagina” in a room where the curtains were transparent 

and did not provide privacy. Elizabeth further testified that Brandon called 

Katherine “a waste,” “a wastrel,” “a nothing,” “stupid,” and a “failure as a 

mother.” She witnessed Brandon screaming at Katherine as loud as he could, 

which she described as “terrifying.”
9

Richard Ferry, a licensed marriage and family therapist specializing in 

issues related to domestic violence, interviewed Katherine and prepared a 

“detailed assessment.” Katherine told Ferry she felt intimidated by 

Brandon’s rages and described “some sexual abuse and some coerced 

intercourse she did not want.” Ferry did not interview Brandon. Ferry 

concluded Katherine “did show some of the effects of having been abused in 

an intimate relationship,” but admitted “that doesn’t prove [Brandon] abused 

her. She could have lied and faked it and fooled me.” He described 

Katherine as being “eccentric in the way she arrives at her conclusions,” 

adding, “Her conclusions may be informed by her past history with 

[Brandon], she may be hypervigilant and may come to a conclusion that 

makes sense to her but may not make sense to someone who hasn’t been 

through her experiences.”

Ferry acknowledged on cross-examination that the risk of problems 

developing between the parties was reduced because they are no longer living 

together and their contact is limited to bi-weekly custody exchanges. He

explained that “in the aftermath of abuse, all things being equal, the impact 

on the individual declines. So the effects observed soon after abuse or soon 

after the termination of an abusive relationship tend to wane over time.”

Ferry agreed with Brandon’s expert, Dr. Robert Kaufman, that “when alcohol 

abuse or substance use is removed from the picture, then the risk of ongoing 

or further violence is reduced.” Ferry also agreed with Dr. Kaufman that 

“ ‘the possibility that this application for a DVRO is something that could 

facilitate mom’s documented interest in moving the children to Santa 

Barbara,’ is something that should be considered.”

Brandon called Robert Kaufman, Ph.D., a board certified psychologist 

with 30 years of experience as a consulting psychologist. He reviewed Ferry’s 
10

work and was of the opinion it did not qualify as an “assessment.” The data 

Ferry considered was primarily from Katherine, i.e., a “single-source.” Ferry 

also did not adequately explore the role of alcohol in the relationship.

Dr. Kaufman opined that “if alcohol was a significant component and 

influencer during incidents of violence,” the cessation of alcohol use by one or 

both parties could alleviate a risk factor for ongoing violence.

Dr. Kaufman admitted that the “awful incident” of March 23, 2017,

during which Brandon screamed obscenities at Katherine could have induced 

fear in Katherine because Brandon was “out of control.” He also noted that

after the alleged violent events, the parties were often able to work together 

cooperatively.

The Trial Court’s Statement of Decision

The court found that Katherine had not met her burden of “showing a 

past act of abuse within the meaning of the [DVPA] by a preponderance of 

the evidence.” The court explained the factual and legal basis for its decision 

in a detailed statement of decision. 

The court found the recordings of Brandon’s rages to be “concerning.”

It also considered, however, Brandon’s testimony that he “was ashamed of his 

behavior” and that he was “under the influence of alcohol,” “under extreme 

stress from the problems in his and Katherine’s relationship,” and that he 

was “overworked and exhausted from work.” The court further found that 

both parties had problems with alcohol during the time they lived together

but were now sober—Katherine since December 2016 and Brandon since May 

2017.

The court found that Brandon “was advised by many professionals in 

the child custody case not to videotape the exchanges, yet he continued to do 

so.” It found, however, that “the videotaping of the children during custody 
11

exchanges ceased after late 2018 or early 2019. The court noted there “were 

times that Brandon had a cell phone in his shirt pocket,” but “the evidence 

[was] unclear whether or not he was taping any exchanges.”

With respect to the 2021 incident in front of the children’s school where 

Brandon filmed Katherine as she tried to talk to him about the threats made 

against him at work, the court found that Brandon’s “failure to communicate” 

with Katherine about the potential risk to the children was “insensitive and 

stretching the bounds of common decency,” but found it was not abuse under 

the DVPA.

As to Katherine’s allegations of sexual abuse, the court found that 

Katherine had not proven the conduct by a preponderance of the evidence.

Other than Katherine’s testimony, which was simply “not credible,” there 

was no other evidence, oral or documentary, substantiating the allegations. 

The court was also troubled by the timing of Katherine’s sexual abuse 

allegations. The alleged misconduct occurred from 2013 to 2017, five to nine 

years before Katherine first raised the issue in a trial brief filed in May 2022.

The court noted that Katherine, who had been represented by competent and 

experienced family law attorneys in the related parentage action, had 

stipulated in 2019 to a final custody order4 which provided for joint physical 

and legal custody of the twins. In 2020, Katherine filed a request for order 

seeking to have the children spend the school year in Berkeley with Brandon, 

and summers in Santa Barbara with her. The court found that Katherine’s

position in the parentage action “calls into question the validity of [her] 

sexual abuse allegations.” The court further noted: “Katherine testified

during the hearing that her ‘primary goal is that they (the children) be with 

4 The stipulation was designated “a final Judicial custody order” 

pursuant to Montenegro v. Diaz (2001) 26 Cal.4th 249.
12

me and be happy in Santa Barbara,’ ” thus drawing an inference that 

Katherine’s accusations may have been motivated by her desire to modify the 

custody orders.

Following the issuance of the court’s statement of decision, Katherine 

filed objections thereto.

5 The trial court overruled Katherine’s objections. 

Katherine timely appealed.6

DISCUSSION

Katherine contends the trial court failed to consider the totality of the 

circumstances and took a limited view of how a victim of domestic violence 

should act. 

I. Applicable Law and Standard of Review

Under the DVPA (§ 6200 et seq.), a trial court may issue a protective 

order after notice and a hearing “ ‘ “to restrain any person for the purpose of 

preventing a recurrence of domestic violence and ensuring a period of 

separation of the persons involved.” ’ ” (In re Marriage of Davila & Mejia

(2018) 29 Cal.App.5th 220, 225, 228.) The petitioner must prove an “act of 

past abuse” by a preponderance of the evidence. (Curcio v. Pels (2020) 47 

Cal.App.5th 1, 14.) Abuse includes “plac[ing] a person in reasonable 

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

or “engag[ing] in any behavior that has been or could be enjoined pursuant to 

Section 6320.” (§ 6203, subd. (a)(3), (4).) Enjoined conduct includes 

threatening, sexually assaulting, harassing, destroying personal property,

5The nine “objections” essentially asked the trial court reweigh the 

evidence in Katherine’s favor. 

6 On February 26, 2024, we granted the unopposed application of 

Family Violence Appellate Project for leave to file an amicus brief in support 

of Katherine.
13

and disturbing the peace of the other party. (§ 6320, subd. (a).) “When 

determining whether to make any orders under [the DVPA], the court shall 

consider whether failure to make any of these orders may jeopardize the 

safety of the petitioner and the children for whom the custody and visitation 

orders are sought.” (§ 6340, subd. (a)(1))

An order denying a DVRO is reviewed on appeal for abuse of discretion. 

(Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1143.) “To establish an 

abuse of discretion, [a party] must demonstrate that the trial court’s decision 

was so erroneous that it ‘falls outside the bounds of reason.’ [Citations.] A 

merely debatable ruling cannot be deemed an abuse of discretion.

[Citations.] An abuse of discretion will be ‘established by “a showing the trial 

court exercised its discretion in an arbitrary, capricious, or patently absurd 

manner that resulted in a manifest miscarriage of justice . . . .” ’ ” (People v. 

Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.)

In reviewing the evidence, we review the entire record to determine 

whether there is any substantial evidence to support the findings below. 

(Burquet v. Brumbaugh, supra, 223 Cal.App.4th p. at 1143.) “ ‘ “We must 

accept as true all evidence . . . tending to establish the correctness of the trial 

court’s findings . . . , resolving every conflict in favor of the judgment.” ’ ” 

(Ibid.) We do not determine credibility or reweigh the evidence. (Katsura v. 

City of San Buenaventura (2007) 155 Cal.App.4th 104, 107.) If substantial 

evidence supports the judgment, reversal is not warranted even if facts exist 

which would support a contrary finding. (Ibid.)

“[W]hen conflicting inferences may be drawn from undisputed facts, the 

reviewing court must accept the inference drawn by the trier of fact so long as 

it is reasonable.” (Boling v. Public Employment Relations Bd. (2018) 5 

Cal.5th 898, 913; see also Husain v. California Pacific Bank (2021) 61 
14

Cal.App.5th 717, 732 [whether a question of fact is decided on conflicting or 

undisputed facts, that fact question decided against appellant “must be 

affirmed under the rule of conflicting inferences by which we must indulge all 

reasonable inferences” in favor of the respondent].) And, as here, “ ‘ “[w]here 

[a] statement of decision sets forth the factual and legal basis for the decision, 

any conflict in the evidence or reasonable inferences to be drawn from the 

facts will be resolved in support of the determination of the trial court 

decision.” ’ ” (In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 94, italics 

added.)

Also, where, as here, the trial court determines the party with the 

burden of proof failed to carry that burden, we may reverse the decision only 

if we determine “ ‘the evidence compels a finding in favor of the appellant as 

a matter of law.’ ” (Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013) 

218 Cal.App.4th 828, 838 (Dreyer’s); Sonic Manufacturing Technologies, Inc. 

v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 466.) Under this standard, 

a finding is compelled only if the appellant’s evidence was ‘ “(1) 

“uncontradicted and unimpeached” and (2) “of such a character and weight as 

to leave no room for a judicial determination that it was insufficient to 

support a finding.” ’ ” (Dreyer’s at p. 838.) In connection with the latter 

point, we note the trier of fact may discredit the testimony of a witness even 

if it is uncontested. (LandWatch San Luis Obispo County v. Cambria 

Community Services Dist. (2018) 25 Cal.App.5th 638, 643; Palmieri v. State 

Personnel Bd. (2018) 28 Cal.App.5th 845, 857.)

II. The Trial Court Did Not Abuse its Discretion in Denying 

Katherine’s Request for a DVRO 

We consider the allegations of abuse based on sexual assault claims 

and based on disturbing the peace claims separately. As we explain, 
15

Katherine has not shown the trial court abused its discretion on either set of 

claims.

7

A. Sexual Assault Claims 

Katherine claims the court erred in finding she had not met her burden 

of proof in establishing her sexual abuse allegations because she failed to 

raise her allegations earlier and stipulated to joint legal and physical 

custody. 

The trial court found that Katherine’s allegations that Brandon had 

sexually abused her were not credible. The court explained the basis for this 

finding as follows: “It is simply not credible to this Court, that Katherine 

would have agreed to [joint] custody orders, and agreed to a shared custody 

arrangement of the parties’ children since July of 2017 if these sexual 

allegations were true.” Katherine attacks the adverse credibility finding by 

asserting that “the court erroneously imposed on Katherine . . . ‘a singular 

vision of how an abused woman should act.’ ”

It is commonly understood that “ ‘women exposed to violence and abuse 

in their intimate relationships do not respond similarly, contradicting the 

mistaken assumption that there exists a singular “battered woman profile.” 

Like other trauma victims, battered women differ in the type and

severity of their psychological reactions to violence and abuse, as well as in 

their strategies for responding to violence and abuse.’ ” (In re I.B. (2020) 53 

Cal.App.5th 133, 155, quoting Dutton, Understanding Women’s Responses to 

7 Brandon claims Katherine failed to set forth all of the facts in her 

opening brief; Katherine’s appendix fails to comply with the applicable rules 

of court; and, although he never raised a res judicata defense, the allegations 

relating to the March 23, 2017 incident and earlier conduct “should have been 

barred by res judicata.” We elect to address the merits of Katherine’s claims 

and conclude they fail.
16

Domestic Violence: A Redefinition of Battered Woman Syndrome (1993) 21 

Hofstra L.Rev. 1191, 1225.) However, we do not understand the trial court’s 

credibility finding to be based upon improper assumptions about how a victim 

of domestic violence should act. Instead, the court found that taking into 

account all of the circumstances, Katherine’s failure to raise pertinent 

allegations during protracted custody proceedings in the related parentage 

action undermined her credibility in the DVRO hearing. This is a finding it 

was well within its discretion to make.

“It is settled that, ‘in a bench trial, the trial court is the “sole judge” of 

witness credibility. [Citation.] The trial judge may believe or disbelieve 

uncontradicted witnesses if there is any rational ground for doing so. 

[Citation.] The fact finder’s determination of the veracity of a witness is 

final. [Citation.] Credibility determinations thus are subject to extremely 

deferential review. (La Jolla Casa de Manana v. Hopkins (1950) 98 

Cal.App.2d 339, 345–346 [ “[A] trial judge has an inherent right to disregard 

the testimony of any witness . . . . The trial judge is the arbiter of the 

credibility of the witnesses”].)’ ” (Jennifer K. v. Shane K. (2020) 47 

Cal.App.5th 558, 579.)

There is no evidence that the trial court’s assessment of Katherine’s 

credibility was based on an erroneous stereotype about how victims of 

domestic violence should act. In the statement of decision, the court 

explained that it evaluated the credibility of the parties and witnesses based 

on “demeanor, manner of responding to the attorneys’ and the Court’s 

questions, body language, facial expressions, consistency of their testimony, 

[and] bias, among other factors.” The court noted that Katherine had not 
17

presented any evidence to corroborate her claims of sexual abuse.

8 The court 

also considered that the alleged incidents of sexual abuse occurred five to 

nine years prior to Katherine filing her DVRO request. 

Katherine asserts that the court placed too much weight on the timing 

of her sexual abuse allegations given her explanations for the delay. “While 

absence of a prompt complaint is not a reliable indicator that an alleged 

sexual assault did not occur, the circumstances surrounding a delayed 

complaint may be relevant in evaluating the likelihood that the assault 

occurred.” (Jennifer K. v. Shane K., supra, 47 Cal.App.5th at p. 585.) Here, 

Katherine did not raise the sexual assault allegations in her June 2021 

petition for a DVRO. Instead, the first time Katherine complained about the 

alleged incidents was nearly a year later in her May 27, 2022 trial brief, 

which was filed just prior to the contested hearing that commenced on June 

6, 2022. Katherine testified: “Sometimes it takes a great deal of time for the 

worst things to surface and be articulated.” She claimed that she did not file 

the request for the DVRO earlier due to fear that Brandon would be angry, 

which would make things worse. Brandon strenuously denied the sexual 

assault allegations. He testified he was unaware that Katherine had accused 

him of sexual abuse until just prior to the hearing, and believed the recent 

claims coincided with her hiring of Ferry. The court found Brandon’s 

testimony more credible than that of Katherine. 

“As the exclusive judge of the credit and weight to be given to the 

testimony of a witness, the trier of fact may reject the testimony of a witness 

8 We do not mean to suggest that Katherine was required to provide 

corroborating evidence, merely that the lack of corroboration was something 

the trial court was entitled to consider. (See In re Marriage of F.M. & M.M.

(2021) 65 Cal.App.5th 106, 118 [DVPA does not contain a corroboration 

requirement].)
18

even if, as is certainly not the case here, it is uncontradicted. [Citations.] 

The trial court was therefore not required to believe appellant’s testimony 

was true and accurate in every respect. ‘ “In passing on the credibility of 

witnesses and the weight to be given their testimony, the trier of fact is 

entitled to consider their interest in the result of the case, their motives, the 

manner in which they testify, and the contradictions appearing in the 

evidence.” ’ ” (Jennifer K. v. Shane K., supra, 47 Cal.App.5th at p. 579.) That 

is precisely what the trial court did in this case.

Katherine’s reliance on our decision in Vinson v. Kinsey (2023) 93 

Cal.App.5th 1166, 1175–1180 (Vinson) does not further her position. In 

Vinson, we found the trial court had abused its discretion in denying a 

petitioner’s DVRO request based on the fact that she continued to have 

contact with the party she sought to be restrained. There, petitioner waited 

approximately seven weeks after the offending conduct to seek a restraining 

order. (Id. at p. 1177.) In reversing, we held the court abused its discretion 

by narrowly focusing on the timing of the offending incident and failing to 

consider the totality of the circumstances. (Id. at p. 1180.) The court’s focus 

on the timing ignored the “parties’ overall history over the course of a decadelong relationship and the difficulty of leaving an abusive relationship.” (Id.

at p. 1177, fn. omitted.) 

In Vinson, the parties appeared in pro per at a “brief” hearing, in which 

the court denied petitioner’s request by focusing on a single incident. 

(Vinson, supra, 93 Cal.App.5th at p. 1178.) The court ignored petitioner’s 

other claims of physical and mental abuse, which she supported by 

statements from relatives who witnessed the verbal abuse and saw the 

resulting injuries and the holes in the wall. (Ibid.) We reversed and 

remanded for a “full consideration” of petitioner’s case. (Id. at p. 1180.) In 
19

doing so, we explained: “This is not to say the court was required to believe 

any or everything [petitioner] or any other witness said; the evidence was not 

undisputed, and we cannot say [petitioner] was entitled to the order she 

sought as a matter of law.” (Ibid.)

Here, unlike in Vinson, the parties were ably represented by counsel at 

a contested hearing spanning four days, during which the court fully 

considered Katherine’s claims. The court’s determination that Katherine

failed to establish “reasonable proof of a past act or acts of abuse” was within 

its exclusive province. (§ 6300, subd. (a); Sabbah v. Sabbah (2007) 151 

Cal.App.4th 818, 823.) “ ‘We have no power on appeal to judge the credibility 

of witnesses or to reweigh the evidence.’ ” (Patricia A. Murray Dental Corp. 

v. Dentsply International, Inc. (2018) 19 Cal.App.5th 258, 270.) As noted, the 

issue before us on appeal is whether Katherine’s evidence regarding the 

sexual assault allegations was ‘ “(1) ‘ “uncontradicted and unimpeached” and 

(2) “of such a character and weight as to leave no room for a judicial 

determination that it was insufficient to support a finding.” ’ ” (Dreyer’s, 

supra, 218 Cal.App.4th at p. 838.) The answer to both questions is no. 

Accordingly, we conclude the trial court did not abuse its discretion in 

finding Katherine failed to prove the sexual abuse allegations by a 

preponderance of the evidence. 

B. Disturbing the Peace Claims

We next address whether the trial court abused its discretion in not 

issuing a DVRO based on Katherine’s disturbing the peace claims. We 

conclude she has not shown error.

The phrase “ ‘disturbing the peace of the other party’ refers to conduct 

that, based on the totality of the circumstances, destroys the mental or 

emotional calm of the other party. This conduct may be committed directly or 
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indirectly, including through the use of a third party, and by any method or 

through any means including, but not limited to, telephone, online accounts, 

text messages, internet-connected devices, or other electronic technologies. 

This conduct includes, but is not limited to, coercive control, which is a 

pattern of behavior that in purpose or effect unreasonably interferes with a 

person’s free will and personal liberty.” (§ 6320, subd. (c).)

As indicated, a court may issue a DVRO “ ‘ “to restrain any person for 

the purpose of preventing a recurrence of domestic violence and ensuring a 

period of separation of the persons involved” upon “reasonable proof of a past 

act or acts of abuse.” [Citation.] The statute should ‘be broadly construed in 

order to accomplish [its] purpose’ of preventing acts of domestic violence.” ’ ” 

(In re Marriage of F.M. & M.M., supra, 65 Cal.App.5th at p. 115.) 

Nevertheless, “[t]he purpose of a [DVRO] is not to punish past conduct.” (Id.

at p. 117.) 

Here, the court considered whether Brandon’s rages—all of which 

occurred before March 23, 2017—would “ ‘support a restraining order in this 

case in 2022.’ ” Katherine argues the court’s “framing of the issue . . . [was] 

too narrow, as it fails to consider the totality of the circumstances.” This 

argument fails for a variety of reasons. First, the record reflects that the trial 

court’s formulation of the issue was drawn directly from Katherine’s

attorney’s closing argument: “Katherine acknowledged . . . all of Brandon’s 

rages happened before March 23, 2017 . . . and that her counsel stated 

[during closing argument] that the issue is, ‘whether that [conduct] will 

support a restraining order in this case in 2022.’ ” Second, the court correctly 

referred to the applicable law, noting “the length of time since the most 

recent act of abuse does not, by itself, control whether a DVPA restraining 

order should issue. Instead, the court must consider the ‘totality of the 
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circumstances’ in deciding whether to grant or deny a petition for relief.” 

(See § 6301, subd. (c).) Finally, the record reflects the court did consider the 

totality of the circumstances, but it did not find in Katherine’s favor. 

Although the court found Brandon’s “rages” were “concerning,” the 

court did not consider this evidence in a vacuum. The court also considered

Brandon’s testimony that he was “ashamed” of his behavior, and that it arose 

because he was drinking excessively, was exhausted from working too much,

and was “under extreme stress” from the relationship problems he had with 

Katherine. The court relied on Brandon’s testimony that he stopped drinking 

after separating from Katherine, and Brandon’s testimony that the “rages” 

ceased once the parties separated. 

With respect to Katherine’s claim that Brandon’s post separation 

videotaping was abusive, the court considered the following circumstances: 

(1) Brandon testified he believed he was justified in making the videotapings

to protect himself against false allegations by Katherine and to show how the 

children were doing; (2) Brandon continued to videotape the exchanges after 

being advised by several professionals to stop this conduct; (3) the 

videotaping of the children during custody exchanges ceased in late 2018 or 

early 2019; (4) although there were times when Brandon had his cell phone in 

his shirt pocket during the exchanges, the evidence was unclear whether or 

not he was taping any exchanges; (5) Katherine admitted she also recorded 

the children during the custody exchanges because she “felt their voices 

deserved to be recorded”; (6) Katherine admitted she recorded Brandon prior 

to their March 23, 2017 separation; (7) Brandon testified that he videotaped 

Katherine when she arrived at the children’s school on October 6, 2021 to

talk about the threats against him and other firefighters. He admitted his 

failure to communicate with Katherine about the threats was a “ ‘poor 
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parenting choice’ ”; (8) Katherine testified she “ ‘c[ould]not know for sure’ ” if 

Brandon had videotaped her and the children since the temporary DVRO was 

denied; (9) Brandon testified he believed most of the custody exchanges “go 

well and are peaceful”; (10) Katherine testified that Brandon had not engaged 

in acts of coercive control: he had not interfered with her financial resources 

or with her ability to move about freely; he had not placed her under 

surveillance, monitored her movements or interfered with her ability to 

communicate; and (11) Finally, the court considered Katherine’s testimony

that Brandon had allegedly affected Katherine’s “ ‘quiet and peace’ ” by 

failing to “acknowledge her presence at transitions in a normal way” or “greet 

her most of the time during phone calls.”

Looking at the totality of all these circumstances, the court concluded 

the acts and events pled by and testified to by Katherine did not reach the 

level of “abuse” within the meaning of the DVPA. Substantial evidence 

supports the court’s finding that Katherine failed to prove she was “abused” 

within the meaning of the DVPA, even if some of the evidence may support a 

contrary conclusion. Not every act that “upsets the petitioning party” may be 

deemed destructive of the party’s mental or emotional calm to warrant 

issuance of a DVRO. (Curcio v. Pels, supra, 47 Cal.App.5th at p. 13.) “The 

DVPA was not enacted to address all disputes between former couples, or to 

create an alternative forum for resolution of every dispute between such 

individuals.” (Ibid.) Moreover, “[w]hat disturbs the peace of a person differs 

in each case.” (K.L. v. R.H. (2021) 70 Cal.App.5th 965, 981.) The trial court’s 

denial of Katherine’s application for a DVRO was not an abuse of discretion. 

(Jennifer K. v. Shane K., supra, 47 Cal.App.5th at p. 580.)
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Even if we assume that the trial court erred in concluding that 

Brandon’s pre-separation conduct did not “reach the level of ‘abuse’,”9 it does 

not follow that the court’s denial of Katherine’s request for a DVRO several 

years after Brandon’s “rages” ceased was an abuse of discretion. “A trial 

court has broad discretion under the DVPA to determine whether to grant a 

petition for a restraining order.” (M.S. v. A.S. (2022) 76 Cal.App.5th 1139, 

1143; In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 702.)

The court must consider whether the failure to make any of the requested 

orders may jeopardize the safety of the petitioner and the children for whom 

custody or visitation orders are sought. (§ 6340, subd. (a).)

Here, the court acknowledged Brandon’s “concerning” behavior, but 

also considered that the parties had separated, stopped drinking alcohol, and 

had been, with minor exceptions, successfully coparenting their children for 

four to five years prior to the DVRO hearing. Under these circumstances, the 

trial court’s conclusion that a DVRO was not required to protect the safety of 

Katherine or the children is not an abuse of discretion. 

DISPOSITION

The judgment is affirmed. Brandon is entitled to his costs on appeal. 

9 During oral argument, Brandon’s attorney conceded that some of the 

pre-separation incidents Katherine testified about (for example, the “rages”

in which Brandon screamed insults and profanities, threatened self-harm, 

and willfully destroyed Katherine’s personal property) objectively fell within 

section 6320’s definition of “abuse.”
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_________________________

Mayfield, J.*

We concur:

_________________________

Richman, Acting P.J.

_________________________

Miller, J.

Keeler-Hodgetts v. Tsukroff (A166521)

* Judge of the Mendocino Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.