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Filed 6/2/23 Breja v. Breja CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

NEHA DUA BREJA,

Plaintiff and Appellant,

v.

SIDDHARTH BREJA,

Defendant and Respondent.

 A164778

 (San Francisco City and County 

Super. Ct. No. FDI-21-795427)

Neha Dua Breja appeals an order denying her requests for 

a domestic violence restraining order against respondent 

Siddharth Breja and sole custody of the couple’s child, S.B. She 

contends the court abused its discretion in finding she failed to 

establish a factual basis for a restraining order, excluding 

supporting declarations, and ordering joint custody. We affirm.

BACKGROUND

In November 2021, while the couple’s divorce case was 

pending, Neha1 filed a request for a domestic violence restraining 

order, child custody, and spousal and child support. She alleged 

two instances of abuse. The first occurred on February 29, 2020, 

when Siddharth “abused” her, apparently by shouting at her 

during an argument; struck his own face “till his face turned blue 

and had bumps;” and held her hand tightly until she threatened 

to call 911. Siddharth backed off, but continued to “abuse” Neha 

1 We will refer to the parties by their first names for clarity.
2

and her parents (who were in India) in a phone call to his own

parents in India. 

The second incident occurred almost two years later, on 

November 7, 2021, when Neha served Siddharth with legal 

separation papers while he was visiting S.B. at her home. 

According to Neha, Siddharth cursed at her and her parents, 

threatened to obtain full custody, and said he would “show you 

guys.” Neha maintained Siddharth had neglected S.B. since 

August 2020 and “had the potential to” physically and 

emotionally harm their son due to his “volatile temperament and 

aggression.” 

In his opposition, Siddharth recounted that Neha had 

taken S.B. to India in August 2020 without his knowledge or 

consent. He followed them there in December but in July 2021 

Neha returned with S.B. to San Francisco, again without 

notifying Siddharth. 

Siddharth maintains that he returned to the United States 

in November 2021. On November 7, the day after his return, he 

visited S.B. at Neha’s home. He neither asked Neha for full 

custody nor cursed at or threatened her or her parents. As he left 

Neha’s house, her landlord (A.H.) served him with legal 

separation papers. Siddharth asked A.H. to give him a moment 

with Neha, but he did not raise his voice, the couple did not 

argue, and there was no violence. The next day Siddharth met 

Neha and A.H. at S.B.’s school; A.H. offered to give him a ride 

back to their house. 

Siddharth denied that he ever hit himself (much less until 

he turned blue and had bumps), restrained Neha by grabbing her 

hand, or otherwise abused her. He had no idea how it was 

possible for him to have abused Neha and her parents during a 

phone call to his parents in India. He asked the court for joint 

legal and physical custody and visitation. 
3

On November 30, 2021, a day before the scheduled hearing, 

Neha filed two supplemental declarations. One, from A.H., 

reiterated Neha’s claim that Siddharth had cursed and yelled at 

her when he visited S.B. on November 7. His behavior was 

“forceful and insistent” when he met her and Neha at S.B.’s 

school the next day. The second declaration, apparently from a 

staff member at S.B.’s school, recounted that Siddharth had twice 

visited the school and conversed with her. He was “cordial and 

polite,” but commented that he would get full custody of S.B. 

because of his wealth. 

The hearing was continued to January 26, 2022. On 

January 24, Neha filed and served five additional declarations. 

Four were transcriptions of telephone conversations she had with 

Siddharth in 2020 and 2021. The fifth was a 12-page, single 

spaced “chronological and faithful account, to the best of my 

knowledge and belief, of the last 4 years of my marriage with 

Siddharth Breja,” supported in part with references to the 

transcriptions. 

At the outset of the hearing, the court clarified with Neha 

that she had recorded the transcribed calls without Siddharth’s 

knowledge. The court explained that this was illegal and struck 

all five declarations. It then asked Neha whether she wanted to 

add to or change anything in her original declaration. She 

declined. 

The court questioned Neha at length about her basis for 

seeking a restraining order. She responded that she felt isolated 

in San Francisco without family, friends or resources. She feared 

Siddharth because “each time when you do not comply by what 

he wants, you know, he - - his way is that ‘It is my way or I force 

it through anything,’ through any means - - throwing things on 

me, or, you know, coming close to me. And, like, the last time he 

just held my hand. I know with every passing step it was only 

increasing.” 
4

The court prompted Neha to describe specific occasions 

when Siddharth threw things at her. Neha said that in April 

2018 he had become upset during an argument and threw his 

eyeglasses onto the ground or a shopping cart. In January 2019, 

during another argument, he threw her phone across the room at 

her. The phone landed at her feet. In February 2020, during a 

dispute about her parents, Siddharth threw a dining room chair 

onto the floor and broke it. A week later, he called his mother in 

India and “started abusing me and my parents . . . and then he 

used curse words for my parents.” A week after that, he struck 

himself and then held her right hand until she said she would 

call 911. Finally, that summer Siddharth “started yelling and 

abusing” her in front of S.B. during an argument in a hotel lobby. 

Siddharth gave a different version of these events. He 

reiterated that Neha had taken their son to India and then back 

to the United States without informing him. In India they had 

argued in a hotel lobby, but that was all. Siddharth never threw 

a phone, a chair, or anything else at Neha; nor did he hit himself. 

Neha’s allegations were intended to alienate him from S.B. and 

retaliate for his filing for divorce and not giving in to her 

financial demands. 

Invited by the court to respond, Neha said Siddharth had 

been threatening her with divorce since S.B.’s birth and that he 

tracked her phone, mail, credit cards, and social media. After she 

returned from India he threatened to “ ‘make a mockery’ ” of her 

and S.B. He cursed when A.H. served him with the separation 

papers, and he tried to talk to S.B. at inconvenient times. 

Moreover, he did not take appropriate responsibility for the 

child’s schooling and insurance. 

The court stated it had reviewed all of Neha’s submissions, 

including her November 30, 2021, and January 24, 2022, 

declarations, but that its focus was on her live testimony. It 

explained: “The [declarations] that she filed most recently are a 
5

violation of the rules. So I’m going to strike those that were filed 

on January 24th. But the other declarations she submitted don’t 

really change my mind one way or the other. It’s really her 

testimony today about a number of incidents that have 

happened[.]”

The court denied the request for a restraining order. It 

noted, “[i]t’s not that I don’t believe what you say happened. I’m 

taking into consideration, sort of, the timing of the development 

of the case. So I’m not disputing that what you say is correct.” 

The court found the incidents in which Siddharth broke things or 

hit himself had occurred more than a year earlier, and, more 

recently, his “somewhat understandable” verbal reaction after 

being served with the separation papers did not warrant a 

restraining order. The court awarded joint legal and physical 

custody and ordered the parties to communicate only through 

text messaging except in emergencies.

DISCUSSION

A.

Neha contends the court abused its discretion in denying 

the restraining order because she proved by a preponderance of 

the evidence that Siddharth’s actions made her reasonably fear 

for her safety. We do not question that, on this record, the court 

could have found in her favor. (To be clear, we do not decide that 

question.) The issue, however, is whether its contrary 

determination exceeded the bounds of reason. (Ashby v. Ashby 

(2021) 68 Cal.App.5th 491, 509 [restraining order]; S.Y. v. 

Superior Court (2018) 29 Cal.App.5th 324, 333-334 [child 

custody].) It did not. 

The Domestic Violence Prevention Act (Fam. Code, § 6200 

et seq. (the Act))2 permits a court to issue a protective order for 

the purpose of preventing a recurrence of domestic violence upon 

2 Undesignated statutory references are to the Family Code.
6

“reasonable proof” of past abuse. (§§ 6220, 6300; Gonzalez v. 

Munoz (2007) 156 Cal.App.4th 413, 420.) “Abuse” in this context 

includes intentionally or recklessly causing or attempting to 

cause bodily injury, placing a person in reasonable apprehension 

of imminent serious bodily injury, molesting, threatening, 

harassing, and disturbing the peace of the other party. (§§ 6203, 

6320, subd. (a).) “ ‘[D]isturbing the peace of the other party’ ” 

includes a pattern of behavior that unreasonably interferes with 

the other person’s free will and personal liberty and which may 

include controlling, regulating, or monitoring the person’s 

movements, communications, daily behavior, or finances. (§ 

6320, subd. (c).)

Our review is for abuse of discretion. (In re Marriage of 

Davila and Mejia (2018) 29 Cal.App.5th 220, 226.) 

Neha asserts the court abused its discretion by incorrectly 

evaluating the evidence. Specifically, she faults (1) its 

determination that the occasions when Siddharth destroyed 

things (presumably the chair) or hit himself were too far in the 

past to warrant a restraining order; and (2) its failure to find 

Siddharth abused her by tracking her phone, social media, and 

credit cards.3 In other words, she asks us to reweigh the evidence 

and resolve evidentiary conflicts differently than the trial court—

something we may not do. (M.S. v. A.S. (2022) 76 Cal.App.5th 

1139, 1145; Gonzalez v. Munoz, supra, 156 Cal.App.4th at p. 420 

[where two or more inferences can reasonably be deduced from 

the facts, appellate court has no authority to substitute its 

judgment for that of the trial court].)

The other incidents Neha described largely consisted of 

shouting and swearing, most frequently while the couple argued. 

3 In her reply brief, Neha also asserts this was legal error. 

The assertion is forfeited by her failure to argue legal error in her 

opening brief. (Allen v. City of Sacramento (2015) 234 

Cal.App.4th 41, 56.) 
7

The court could reasonably infer from the nature of these events 

and/or their remoteness in time that they did not indicate a 

likelihood of future abuse requiring a protective order. (See §§ 

6220, 6300, subd. (a) [statutory purpose is to prevent domestic 

violence and provide parties with a cooling-off period].)

This is so whether or not the court found any of the past 

incidents—the couple’s arguments, Siddharth’s throwing the 

eyeglasses, chair, or phone, hitting himself, “yelling and cursing,” 

or tracking her calls and social media—were abusive within the 

meaning of the Act.4 While a restraining order “may be issued” (§ 

6300, subd. (a), italics added) upon reasonable proof of past 

abuse, the Act does not, as Neha suggests, require the court to 

issue a protective order upon any showing of past abuse, no 

matter how remote or insubstantial, if it is unpersuaded of a need 

to prevent potential future abuse. The court’s determination that 

a restraining order was unnecessary was within its discretion.

Finally, Neha claims the court improperly ordered the 

parties to restrict their communication to text messaging as a 

substitute for issuing a restraining order. The claim is 

contradicted by the record, which clearly shows the court imposed 

the restriction after it denied the restraining order, “during the 

course of the custody and visitation orders.” 

B.

Neha next contends the court abused its discretion in 

excluding the declarations she filed two days before the hearing. 

It did not. Four of those five declarations were transcriptions of 

telephone calls rendered inadmissible by Family Code section 

2022, subdivision (a) and Penal Code section 632, subdivision (d), 

both of which proscribe the use of evidence obtained as a result of 

eavesdropping upon or recording confidential communications.

4 Neha’s claim that it is “undisputed” Siddharth isolated 

her is unsupported by her citations to the record. 
8

Neha is mistaken in claiming those declarations fall within 

an exception for victims of domestic violence “who [are] seeking a 

domestic violence restraining order from a court” and reasonably 

believe a confidential communication may contain relevant 

evidence. (Pen. Code, § 633.6, subd. (b).) Under those 

circumstances, the victim may record a confidential 

communication with the perpetrator to use in court. Neha did 

not assert this exception in the trial court, so it is forfeited. 

(People v. Stowell (2003) 31 Cal.4th 1107, 1114.) In any event, 

the exception is inapplicable because she recorded the calls in 

July 2020 and July 2021, sixteen months and four months, 

respectively, before she sought a restraining order.

Neha contends the court abused its discretion in striking 

the fifth declaration, a “chronology of events which led her to seek 

a restraining order,” as it was not subject to the statutory 

exclusion the court identified as the basis for its ruling.5 She 

forfeited this point as well by failing to object on that ground 

when the court ordered all five declarations stricken. (People v. 

Stowell, supra, 31 Cal.4th at p. 1114.) Moreover, the court gave 

Neha every opportunity to testify about the events she believed 

supported a restraining order, and she testified to her view of the 

relevant events at length and without any apparent restriction. 

Accordingly, if there was an abuse of discretion, it was harmless.

C.

We turn to the joint custody award. Neha asserts the court 

failed to apply the rebuttable presumption in favor of sole custody 

triggered by a finding a parent perpetrated domestic violence 

against the other within the preceding five years. (§ 3044; see 

5 We express no opinion as to whether parts of this 

declaration might have properly been excluded because they 

referred to and/or incorporated information from the illegal calls. 
9

Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 661-662.)6 The 

assertion fails for the simple reason that the court made no such 

finding.

Neha disagrees, arguing the court’s comment that it did not 

dispute or disbelieve her account of events was a de facto finding 

of domestic violence. The argument is meritless. First, that the 

court did not dispute or disbelieve Neha’s testimony does not 

mean it found the events she described amounted to domestic 

violence. Second, it reasonably could have found joint custody 

was in S.B.’s best interest, thereby rebutting the presumption. 

(Celia S. v. Hugo H., supra, 3 Cal.App.5th at p. 662.) 

DISPOSITION

The orders are affirmed. Respondent is entitled to costs on 

appeal. (Cal. Rules of Court, rule 8.278.)

6 Pursuant to section 3044, subdivision (a), “Upon a finding 

by the court that a party seeking custody of a child has 

perpetrated domestic violence within the previous five years 

against the other party seeking custody of the child . . . there is a 

rebuttable presumption that an award of sole or joint physical or 

legal custody of a child to a person who has perpetrated domestic 

violence is detrimental to the best interest of the child. . . . This 

presumption may only be rebutted by a preponderance of the 

evidence.” 
10

______________________

BURNS, J. 

We concur:

____________________________

SIMONS, ACTING P.J. 

____________________________

LANGHORNE, J.*

A164778

* Judge of the Napa County Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.