Filed 5/12/20; Certified for Publication 6/3/20 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                               DIVISION EIGHT

NICOLE G.,                                               B294228

        Plaintiff and Respondent,                        (Los Angeles County
                                                         Super. Ct. No. 18STRO04529)
        v.

WARREN BRAITHWAITE,

        Defendant and Appellant.


     APPEAL from order of the Superior Court of Los Angeles
County, Lynn H. Scaduto, Judge. Affirmed.

     Willoughby & Associates, Anthony Willoughby and
Anthony Willoughby II for Defendant and Appellant.

     ADLI Law Group and Marina Manoukian for Plaintiff and
Respondent.

                              _________________________
                        INTRODUCTION
       Warren Braithwaite and his long-term girlfriend Nicole G.
resided at a property they co-owned. After contentious
arguments and stalking incidents, Nicole retained counsel to file
a request for a domestic violence restraining order (DVRO) and
moved out of their shared property amidst their break-up.
Warren and Nicole each requested DVROs against the other in
connection with overlapping events and incidents.
       After concluding trial on both parties’ DVRO requests, the
trial court denied Warren’s requested DVRO and granted Nicole’s
requested DVRO against Warren. As part of the DVRO
protecting Nicole, the trial court ordered Warren to move out of
the property, allowing Nicole to move back in and resume her
residence there. Meanwhile, the parties are involved in a civil
suit for partition and quiet title in Los Angeles Superior Court
Case No. BC719593, regarding the issue of title to the property.
       Warren appeals from the DVRO issued against him,
arguing that the trial court erred by ordering him to move out of
the property and by awarding use and possession of the property
to Nicole. He contends the issue of ownership and possession of
the property should be handled by the ongoing civil suit, and a
DVRO is “not a tool to dispute ownership and control of
property.” The denial of Warren’s request for a DVRO against
Nicole has not been appealed and is not at issue here.
       We affirm. The Domestic Violence Prevention Act and
Family Code1 sections 6340, 6321, and 6324 authorize a court to
order the restrained party to move out of property and allow the
protected party to use and possess the property. While

1     All further statutory references are to the Family Code,
unless otherwise stated.




                                2
ownership of the property will be determined in the pending civil
suit, the trial court had authority to make orders about the use
and possession of the property. It properly did so.

      FACTUAL AND PROCEDURAL BACKGROUND
A.    Relevant Background Information2
       In 2010, Warren and Nicole began dating. Warren was
married at the time, but “was unhappy and . . . looking for
someone else.”
       Warren found a one-bedroom apartment for Nicole, with
high monthly rent that “fit his taste”; he insisted Nicole move to
this new apartment because he did not like where Nicole lived.
He co-signed for the apartment, paid the rent, and paid for new
furnishings and electronic devices. Warren soon became “very
possessive” and would demand that Nicole unlock her phone and
give it to him. When she once refused, he became “irate” and
“picked up a 9-pound weight bar” and threatened to “smash” her
car if she did not hand over her phone. When Nicole did not give
in, Warren used the weight bar to smash the glass coffee table.

2      It is appellant’s responsibility to designate a clerk’s
transcript that includes all documents and evidence necessary for
our understanding and proper consideration of the factual and
legal issues before us. Based on a review of the record, many
documents were not provided by Warren by way of the clerk’s
transcript, including but not limited to Warren’s DVRO request
and his declaration, filed May 1, 2018, and the temporary
restraining order against Nicole, granted May 1, 2018. The
parties refer to these pleadings in their appellate briefs; further,
a review of the record reflects the court also relied upon evidence
included in these omitted pleadings in making its DVRO findings
and credibility determinations on November 27, 2018.




                                 3
       In June 2011, Warren was arrested for drug trafficking.
During his five years of incarceration, Nicole “did as he
instructed” with respect to his finances, property mortgages, and
legal fees and expenses.
       While Warren was imprisoned, Nicole purchased a
condominium located on Temple Terrace in Los Angeles,
California (the Property), as her sole and separate property. As
the down payment, she used the settlement proceeds she had
received from an employment case. Warren did not contribute
anything towards the purchase of the Property. Nicole moved
into the Property, paid the mortgage, property taxes, insurance,
and all other household expenses for the Property.
       Around the time Nicole purchased the Property, Warren’s
wife confronted Warren about Nicole because “she saw money
going to Nicole.” As a result, Warren’s wife filed for divorce.
       Upon Warren’s release from prison in March 2016, Nicole
picked him up, helped him move in with her, and “was there for
him.” She helped him establish his construction company.
       One year later, in April 2017, Warren presented Nicole
with a joint tenancy agreement and a quitclaim deed transferring
50 percent ownership of the Property to Warren as a gift without
consideration. Nicole maintained she was not given the
opportunity to consult with an attorney or review the paperwork.
Instead, she was “driven to a notary public to execute the
documents on the same day.” She was “too scared to deny
Warren’s demand” and signed the paperwork.
       Warren and Nicole soon began to experience relationship
issues, as Warren was angry with Nicole for seeing other men
during his incarceration.




                                4
B.    Nicole’s Request for Restraining Order
      On June 27, 2018, Nicole filed her request for a domestic
violence restraining order (DVRO) against Warren. She said
Warren had stalked her, physically abused her, extorted money
from her and coerced her into transferring the Property to him.
She described the following instances of “recent abuse, stalking
and harassment” she suffered from Warren:
          • On Valentine’s Day in 2018, Warren and Nicole had a
      “big argument,” as a result of which Nicole left the Property
      and drove to her father’s home in the Bay Area. She
      contended Warren “followed” her there and made promises
      to her and her father that he would “stop tracking” her.
          • On March 18, 2018, Nicole told Warren she lost her
      phone earlier that day when she had gone to Urgent Care
      to be treated for the flu. Warren returned shortly
      thereafter and said he “tracked [her] phone” and that it was
      “still in the house.” She checked and realized he was
      correct.
          • On April 13, 2018, Warren called Nicole and told her
      when he drove past her place of employment, he saw her
      standing next to a man smoking a cigar—a man she was
      romantically involved with in the past. Warren also told
      Nicole he heard her through her cell phone “talking to a
      guy at work with an accent.”
          • On April 30, 2018, the day they ultimately broke up,
      Warrena “repeatedly” called Nicole, asking her where she
      was. She told him she was in Pasadena taking care of
      personal business. Soon, she pulled into a gas station near
      the Property and saw Warren pull up right behind her.
      She believed Warren was tracking her movements and




                                5
      stalking her, so she drove to the Pasadena police station “to
      report his stalking and abuse.” She then called Warren
      and told him she was moving out.
          • On May 4, 2018, she returned to the Property and
      realized Warren had changed the locks. She was unable to
      retrieve her belongings.
          • On May 5, 2018, while Nicole was at a Big 5 store,
      Warren “showed up again,” approaching her at the cashier
      and arguing about a home insurance check. She believed
      he was “tracking and stalking” her, as he “showed up there
      at the exact moment when [she] was there.”
          • On May 22, 2018, after returning from a trip to Las
      Vegas, she saw “a lot of missed calls from Warren and
      multiple texts and missed calls from an unknown 925 area
      code number” including texts such as, “Vegas huh?”
      Another text message stated, “nice air mattress”; according
      to Nicole, this text was meant to show her that Warren
      knew she rented an apartment and had to use an air
      mattress as a bed. She believed “Warren was tracking
      [her] location.”
       Given the history of their relationship and “the fact that he
is also a convicted felon,” Nicole felt “terrified” of Warren. She
requested the court order Warren not to harass, attack, strike,
threaten, assault, hit, follow, stalk, surveil or disturb her. She
also requested the court order Warren not to contact her, directly
or indirectly, in any way. She requested a 100-yard stay-away
order from her person, home, vehicle and workplace. And finally,
she requested the court order Warren to move out of the
Property, as she was owner of record, and award her “temporary
use, possession, and control” of the Property.




                                 6
C.    Trial Court Proceedings
       The combined trial proceedings on Warren’s and Nicole’s
respective DVRO requests took place on September 21, October
24 and 25, November 26 and 27, 2018. During trial, both parties
testified, along with Nicole’s half-sister and father and Warren’s
ex-wife and sister. A responding police officer from the Los
Angeles Police Department (L.A.P.D.) also testified about his
interactions with both parties. We summarize their testimony, in
relevant part.
       Nicole’s half-sister Roxanne testified Warren told her he
changed the locks to the Property because Nicole “shouldn’t be
able to come in and out as she pleases.” Warren told Roxanne he
“wasn’t going to pay the mortgage so that the condo went into
foreclosure.” Roxanne also testified Nicole had confided in her
about Warren having “hit her, he threatened her and was
abusive.” Warren struck Nicole after he “found out that she’d
been with other guys while he was in prison.” Nicole had also
confided that she “was forced to sign over half of the condo.”
       Roxanne testified she contacted Warren after learning
about the ongoing abuse. During that call, Warren “admitted to
hitting her. He said that he’d done it once and he wouldn’t do it
again.” He also discussed the many ways he would track her.
       Ricardo Verduzco, an officer with the L.A.P.D. for over
22 years, received a radio call to meet Nicole at the Property and
perform a “civil standby” while she had a locksmith change the
locks to the Property. Nicole told the officer she “got a




                                7
restraining order overturned” and needed to get her things.3
Officer Verduzco testified he received another radio call the
following morning about the same Property location; this time,
Warren was the caller and reported a violation of a restraining
order, as someone had damaged the locks and entered the
Property.
      Warren, then 46 years old, testified. In February 2018 he
had “made a conscious decision” that he was going to leave Nicole
after he “found out Nicole had slept with her former boss and co-
worker.” He planned to return to his ex-wife. He recalled telling
Nicole on April 23, 2018 that he wanted to end the relationship
with her. He told Nicole, “I am going to work it out with Elsa,
and I want us to sell this condo so I can get my money”; in
response, Nicole “just went bananas” and threw a metal flask at
Warren. A week later, on April 30, Warren received a
photograph from Nicole via Whatsapp that showed her holding
an AR-15; he believed it was a threat.
      Warren confirmed Nicole had purchased the Property as
her sole and separate property. He confirmed having presented
Nicole with a quitclaim deed to deed half the property ownership
to him.
      He testified he had never tracked Nicole’s location or
followed her during their relationship. When asked whether he
has ever put his hands on Nicole, Warren said, “No.” However,
his counsel reminded him, “Well, then, one time I think you
indicated I think you pushed her. Let’s acknowledge that[,]”


3     We surmise Nicole was referring to the temporary
restraining order the court had granted to protect Warren from
Nicole until the hearing date on the DVRO. The restraining
order against Nicole was then set aside on May 22, 2018.




                                8
Warren immediately confirmed having previously pushed Nicole,
but as a means to protect himself: she “ripped out my skin.”
      Nicole testified to being physically abused by Warren at a
nightclub during a New Year’s Eve party; she recalled
confronting him about a text message he received from his ex-
wife, which caused Warren to respond with “rage.” She testified:
Warren “grabbed me and he lifted me up between – by my torso.
And he grabs me and heads me out the double doors head first.
And I’m screaming for him to let me go because I didn’t
understand why he had grabbed me when we were only in a
conversation about this text. And . . . finally, one of his friends
told him to let me go.”
      Nicole denied Warren ever told her on April 23, 2018 that
he wanted to break up. She also denied throwing a flask or bottle
at him. She described how she decided to leave and began
packing up her belongings and “items that he would not see,” to
move them to her new apartment “without his knowledge.”
Warren is a “very big man” and Nicole testified she was
“intimidated and afraid” of him,” especially because he would
stalk her and track her movements. She simultaneously retained
counsel and discussed filing a restraining order. She explained
she used a “coping method” whereby she knew she was leaving
and refrained from putting herself “in any . . . situation that was
going to flare him up.”
      She believed Warren had “some kind of hacker guy that’s
got into all [her] devices – digital devices, [her] phones, [her]
computers.” She also testified having personally seen an app on
Warren’s phone that “literally downloads [her] phone information
in realtime onto his phone.”




                                 9
       She explained she sent the photo of herself holding an AR-
15 to Warren on April 30, 2018 because he did not believe her
when she told him two days prior that she had previously shot
that weapon at a social event. Nicole testified she always tried to
prove to Warren that she was being honest, as a result of the
past; “he kept bringing up my past over and over again
throughout the course of the years [and] accused me of lying.”
That was why she felt it important to show him she was telling
the truth about shooting the AR-15.
       The court admitted many exhibits into evidence, including
a text message conversation between Nicole and Warren, where
Nicole says, “it’s over”, to which Warren responds, “Nicole, can
you just call my please? [Why] can’t you see a difference man.
I am not even following you. I am not coming behind you and I
just need to talk to you. It’s not fair.” Nicole texted Warren she
was “staying at [her] dad’s until [he] stops tracking” her.
D.    Trial Court’s Ruling
       On November 27, 2018, the trial court denied Warren’s
request for a DVRO against Nicole, finding insufficient evidence
of acts of domestic abuse by her. The court found Warren’s
testimony about feeling threatened by the photo of Nicole holding
an AR-15 “hurt his credibility”, as the court believed Warren
“adjusted his testimony to fit the evidence as it came in.”
       The trial court granted Nicole’s DVRO request and issued
the DVRO against Warren for a period of five years; it is set to
expire on November 27, 2023.
       The trial court found “there have been both acts of physical
violence here as well as stalking behavior” by Warren. The court
found there was a “pattern” since Warren’s release from his
incarceration “of an increasing level through different types of




                                10
acts of establishing and maintaining control” over Nicole. The
court told Warren: “I think she’s genuinely afraid of you, and I
think she was throughout at least the last year and a half. And,
for that reason, I find that a restraining order is necessary here.”
       Warren was ordered to stay at least 100 yards away from
Nicole, her home, car, and place of work. The DVRO also
prohibited Warren from: (1) harassing, attacking, threatening,
assaulting, keeping under surveillance, following stalking Nicole;
(2) contacting Nicole either directly or indirectly, by any means;
and (3) taking any action, directly or through others, to obtain
Nicole’s location.
       The DVRO also included a “move-out order”, requiring
Warren to immediately move out of the Property. The DVRO
also included a “property control” order, wherein only Nicole was
allowed the “use, control, and possess[ion]” of the Property.
       While issuing the DVRO, the court made credibility
determinations, finding the testimony of Nicole’s half-sister and
her corroboration of events described by Nicole “highly credible.”
       This appeal followed.

                          DISCUSSION
      Warren contends the trial court erred by issuing a DVRO
that requires Warren to move out of the Property and awards
Nicole control, use, and possession of the Property. He argues
the DVRO was made “without sufficient findings on the record
and without sufficient evidence being presented at trial.”
      We disagree.
A.    Applicable Law and Standard of Review
      The Domestic Violence Prevention Act (§ 6200 et seq.)
(hereinafter DVPA) exists “to prevent acts of domestic violence,




                                 11
abuse, and sexual abuse and to provide for a separation of the
persons involved in the domestic violence for a period sufficient to
enable these persons to seek a resolution of the causes of the
violence.” (§ 6220.) Under the DVPA, a court is authorized to
issue a restraining order enjoining a party from engaging in
specific acts of harassment or abuse against a cohabitant or
former cohabitant. (§§ 6211, subd. (b), 6218, 6322, 6340, subd.
(a)(1).)
       The DVPA similarly authorizes a court to issue a
restraining order excluding a person from the “family dwelling”
or “common dwelling of both parties” (§§ 6321, 6218, subd. (b)),
“on the conditions the court determines.” (§ 6321, subd. (a).) The
court may issue an exclusion order only on a showing that: 1) the
party who will stay in the dwelling has a right under color of law
to possess the property; 2) the party to be excluded has assaulted
or threatens to assault the other party; and 3) physical or
emotional harm would otherwise result to the other party.
(§ 6321, subd. (b)(1)-(3); § 6340, subd. (a)(1).) And finally, the
court also has authority to issue orders determining the
temporary use, possession, and control of real or personal
property of the parties and the payment of any liens or
encumbrances coming due during the period the order is in effect.
(§ 6324.)
       The court’s issuance of a protective order under the DVPA
is a discretionary matter. (§ 6300.) “ ‘A trial court’s exercise of
discretion will not be disturbed on appeal unless, as a matter of
law, an abuse of discretion is shown—i.e.,—where, considering all
the relevant circumstances, the court has “exceeded the bounds of
reason” or it can “fairly be said” that no judge would reasonably
make the same order under the same circumstances.’ ” (In re




                                12
Marriage of Smith (1990) 225 Cal.App.3d 469, 480.) “ ‘So long as
the court exercised its discretion along legal lines, its decision
will not be reversed on appeal if there is substantial evidence to
support it.’ ” (Ibid.) We resolve all conflicts in the evidence in
favor of the prevailing party, and indulge all legitimate and
reasonable inferences in favor of upholding the trial court’s
findings. (In re Marriage of Bonds (2000) 24 Cal.4th 1, 31.)
B.    The Trial Court Did Not Abuse its Discretion in Issuing
      Nicole’s Requested DVRO, including the Move-Out Order,
      Against Warren.
      Warren argues the trial court granted Nicole’s requested
DVRO, including the order granting her exclusive use and
possession of the Property, “without [having made] sufficient
findings on the record.” He contends Nicole “left the property
long before the matter came to trial” and all “available testimony”
demonstrates Warren and his sister were the occupants of the
Property at the time of the proceedings; based on the foregoing,
Warren believes the trial court erred in granting Nicole exclusive
use of the property because the “mere fact that [Nicole] resided
on the Subject Property at one time in the past does not entitle
her to current possession and control.”
      On this record, we cannot say the court abused its
discretion. There was substantial evidence of Warren’s past acts
toward Nicole, which constituted threatening, stalking, and
abusive behavior. The testimony and evidence in the record
demonstrate Nicole had planned to reach a place of safety, i.e., a
new apartment to which she was slowly moving her belongings,
before communicating her desire to break-up to Warren. The
court found evidence of both physical abuse and stalking
behavior, and we agree. Warren’s own text messages to Nicole,




                                13
pleading for her to “see a difference” in him as he is “not even
following” her and is “not coming behind” her, confirm to us that
his stalking and tracking behavior was an ongoing issue. The
testimony provided by Nicole’s sister—testimony the trial court
found highly credible—corroborated Nicole’s testimony that
Warren employed many ways to track her.
       The DVRO against Warren, including an order requiring
Warren to move out of the Property and granting Nicole
temporary use and possession of the property, falls within the
trial court’s authority provided by the DVPA. (See §§ 6321, 6218,
subd. (b), 6340, subd. (a)(1).) Indeed, Judicial Council form DV-
100 includes item No. 8 entitled “Move-Out Order” and item No.
14 entitled “Property Control” allowing those applying for a
DVRO to request orders regarding the “common dwelling of both
parties.” (§ 6321, subd. (a).)
       More specifically, section 6324 authorizes the court to issue
orders determining the temporary use, possession, and control of
real property. Here, that’s exactly what the court did by
providing Nicole with temporary control and possession of the
Property.
       Further, the three requirements set forth in section 6321,
subdivision (b), were met in the case before us, allowing for the
trial court to issue an order excluding Warren from the Property.
In satisfaction of section 6321, subdivision (b)(1), there was
evidence the “party who will stay in the dwelling” (i.e., Nicole)
has a right under color of law to use and possess the property.
Here, Nicole stated in her declaration in support of the DVRO
request that she purchased the Property as her sole and separate
property, and currently owns it in joint tenancy with Warren.
Warren himself testified Nicole had purchased the Property as




                                 14
her sole and separate property and currently co-owned the
Property. In satisfaction of section 6321, subdivision (b)(2), there
was ample evidence Warren (the party to be excluded) had
assaulted the other party (Nicole). And in satisfaction of the final
requirement—section 6321, subdivision (b)(3), there was evidence
of continued physical/emotional harm should the parties reside in
the co-owned Property together. Based on the record, Nicole
continued to pay for the mortgage and household expenses,
although she could not reside there while Warren was present.
Nicole’s sister testified Warren told her he did not care if the
house ended up in foreclosure. Based on the past acts of domestic
violence and stalking, further harm would have resulted to Nicole
if she had resumed her residence in the Property without an
order also excluding Warren.
       Based on the foregoing, the DVRO, including the move-out
order and use/possession order, did not exceed the bounds of
reason. Nicole was paying for the mortgage and property taxes
for the Property. Her decision to move-out of the shared Property
to escape further abuse and stalking amidst the filing of her
DVRO request does not bar a trial court from using its authority
to award a protected party with temporary use, control, and
possession of a Property as part of a DVRO. We offer no opinion
on the parties’ pending civil action over title to and ownership of
the Property. But until that case concludes, Nicole has
temporary possession and use of the Property pursuant to the
terms of the November 27, 2018 DVRO granted by the trial court.




                                15
      During oral argument, Nicole argued she is entitled to an
award of attorney fees and costs incurred in connection with
opposing Warren’s appeal, per section 6344. As the prevailing
party on appeal, Nicole may file a motion for attorney fees on
appeal pursuant to California Rules of Court, rule 3.1702(c), and
section 6344. (See also Butler-Rupp v. Lourdeaux (2007) 154
Cal.App.4th 918, 924 [“trial courts retain discretion to award
attorney fees incurred on appeal to the eventual prevailing
party”].)
                         DISPOSITION
      The order is affirmed. Respondent Nicole G. is awarded
costs on appeal per California Rules of Court, rule 8.278.




                                    STRATTON, J.

We concur:




      GRIMES, Acting P. J.




      WILEY, J.




                               16
Filed 6/3/20
                     CERTIFIED FOR PUBLICATION

       IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                      SECOND APPELLATE DISTRICT

                              DIVISION EIGHT

NICOLE G.,                                B294228

       Plaintiff and Respondent,          (Los Angeles County
                                          Super. Ct. No. 8STRO04529)
       v.
                                          ORDER CERTIFYING
WARREN BRAITHWAITE,                       OPINION FOR PUBLICATION

       Defendant and Appellant.           [NO CHANGE IN JUDGMENT]



THE COURT:
       The opinion in the above-entitled matter filed on May 12, 2020, was not
certified for publication in the Official Reports. For good cause, it now
appears that the opinion should be published in the Official Reports and it is
so ordered.
       There is no change in the judgment.




________________________________________________________________________
GRIMES, Acting, P. J.         STRATTON, J.                    WILEY, J.
