Filed 8/17/26 Hartwell v. O’Shea CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
KRISTA HARTWELL, B342600
Appellant, (Los Angeles County Super. Ct. Nos.
v. 24TRRO00723;
24STPT02797;
KEAN PATRICK O’SHEA, 24TRPT00187)
Respondent.
APPEAL from an order of the Superior Court of Los Angeles County, Gia G. Bosley, Judge. Affirmed.
Summers, Levine, Gary J. Cohen and Jon S. Summers for Appellant.
Thompson Thompson & Valladolid and Jeffrey S.
Valladolid for Respondent.
______________________________
Krista Hartwell appeals from the trial court’s denial of her request for a domestic violence restraining order (DVRO) protecting her from Kean Patrick O’Shea. Hartwell contends the trial court abused its discretion in denying the DVRO because there was uncontradicted evidence that O’Shea had disturbed the peace of Hartwell within the meaning of Family Code section 6360,1 including an audio recording of O’Shea yelling loudly at Hartwell using profanity and testimony from Hartwell’s mother. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Hartwell’s Request for a DVRO Hartwell and O’Shea were in a relationship since 2019 but never married. They have one child together, Ronan, who was born in 2021. The family lived in a house in Redondo Beach owned by Hartwell.
On August 26, 2024 Hartwell filed a Request for a DVRO seeking protection from O’Shea for herself and Ronan. Hartwell stated in her supporting declaration that O’Shea physically and emotionally abused her on an ongoing basis since 2020, including instances of “grabbing, shoving, coercive sexual advances and acts while drunk and sober,” ignoring her entreaties to stop, and “using intimidation if [she] resist[ed].” He also yelled at her on a daily basis, threatening her and demanding she add him as a beneficiary to her assets. Further, on June 27, 2024 O’Shea threatened to sexually abuse Ronan by putting “a finger in [his]
1 Further undesignated statutory references are to the Family Code.
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butthole.” In addition, O’Shea abused alcohol and kept multiple firearms in the house or garage.
Hartwell averred the most recent abuse took place on August 23, 2024 (the August 23 incident). Hartwell audiotaped an argument in which O’Shea screamed and cursed at her, demanded to review her financial accounts, and told her that she was going to learn how much of a problem he could be. He also waved his hands at her face in a manner that made her think he was going to hit her. Hartwell ran out of her house in fear and called the police, who responded to the scene.
On August 26 the trial court issued a temporary restraining order requiring O’Shea to stay away from Hartwell and Ronan, and the court set a hearing on the DVRO for September 16.
O’Shea filed a response with a supporting declaration in which O’Shea denied he had ever physically harmed Hartwell or Ronan or engaged in any other conduct proscribed by section 6320. Further, he “never engaged in coercive or forceful behavior, sexually or otherwise,” and Hartwell’s “claims of daily yelling and cursing are just more of her generic use of scary words.” The allegation that O’Shea threatened Ronan with sexual abuse was a “total lie,” and Hartwell was referring to an incident during Ronan’s potty training when O’Shea joked he would put a finger in Ronan’s “butthole” after Ronan said he was going to “toot” in O’Shea’s face. O’Shea lawfully owned several firearms for his hobby of clay sport shooting, and he had a gun safe in the garage.
With respect to the August 23 incident, O’Shea averred that he and Hartwell argued over their agreement to list each other as a beneficiary on their assets to protect Ronan upon the
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death of the other. Hartwell induced O’Shea to sell his condominium and to list her as a beneficiary on his financial accounts, but on the day of the argument O’Shea learned that Hartwell had been lying about listing him as a beneficiary, and O’Shea told her that he wanted to end their relationship. O’Shea admitted that when Hartwell came into his office to continue the argument, he “did yell at [Hartwell] during this exchange,” but he “never got near her physically or caused her any fear of bodily injury.” Hartwell could have left the room at any time but instead stayed and recorded the conversation without his knowledge in an effort to “concoct an incident worthy of a restraining order” and to gain an advantage in a future custody dispute.
B. The Hearing on the DVRO Request The trial court held a three-day hearing on Hartwell’s DVRO request starting on September 16, 2024. Both parties were represented by counsel. Hartwell testified and called her mother, Sendy Hartwell (Sendy), and O’Shea as witnesses. The court admitted into evidence Hartwell’s audio recording of the August 23 incident, an informal transcript of the audio recording, text messages exchanged between O’Shea and Hartwell on August 23, and two photographs.2
1. Hartwell’s testimony Hartwell is a lawyer with a graduate degree in taxation; at the time of the August 23 incident, Hartwell worked for
2 The audio recording, transcript, and text messages from August 2024 are in the record; the more recent text messages and photographs are not.
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Charles Schwab financial services company.3 On August 23 she went to a meeting in the morning, then talked to O’Shea on her way home. During their telephone conversation, O’Shea told Hartwell that he wanted to invest with her in a real estate development. Hartwell responded that she needed more information before she would consider investing. During the conversation, O’Shea told Hartwell that he had sold his home to move in with her, helped to improve her home, and expected they would build a future together. He inquired whether she had listed him as a beneficiary on her financial accounts. She changed the subject without answering. Hartwell explained that she had recommended they each list the other as a beneficiary on their individual financial accounts to provide for Ronan in case of either’s death. O’Shea had listed Hartwell as a beneficiary on his accounts, but Hartwell had not listed O’Shea. O’Shea told Hartwell during their conversation that he was unhappy that she was not willing to commit to their relationship or their future, and he was going to move out.
Later that afternoon O’Shea went to a neighborhood bar near the family home. Hartwell went to the bar to talk to him, but O’Shea refused to speak with her and asked her to leave. According to Hartwell, “O’Shea had been drinking and appeared drunk.” Hartwell left the bar and went home; O’Shea returned home a short time later and went to the garage, where he had an office.
3 Because there was no court reporter on September 16, 2024, Hartwell’s testimony on that date is taken from the trial court’s settled statement. The testimony on September 17 and 18 is taken from the reporter’s transcript.
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After O’Shea returned, Hartwell went to the garage to make sure everything between them was okay. She walked in and found O’Shea sitting behind his desk on the opposite side of the room. Hartwell began secretly recording O’Shea when she entered the garage out of a concern he might become violent. When she started recording, O’Shea was sitting behind the desk. He was drunk and began yelling at her. He then approached her, screaming and gesturing, until he was just a few feet away from her. O’Shea’s speech was slurred, and his eyes were glassy. She continued to record him as he approached her because she was concerned that he was standing in front of the cabinet where he stored his guns.
The five-minute recording was played at the hearing. On the recording O’Shea can be heard yelling at Hartwell and expressing his anger at her. He used the word “fuck” or “fucking” dozens of times as he yelled at her. O’Shea told Hartwell she had “strung [him] along for fucking five years.” He asked rhetorically, “What the fuck did you ever do for me?” As O’Shea can be heard yelling at Hartwell, Hartwell said multiple times in a quivering voice, “Stop yelling at me.” O’Shea responded, “I don’t . . . fucking care. . . . I mean nothing to you.” He angrily said to Hartwell that she was not willing to commit to their relationship. When Hartwell again said, “stop yelling at me,” he responded that he could see she was crying, but he was “on to [her]” and knew she was shedding “fucking crocodile tears.” Hartwell then said, “[Y]ou yell at me” and “threaten me,” and O’Shea stated, “I don’t yell at you. I fucking yell at you now.” O’Shea continued to yell at Hartwell that she was not committed to their relationship, she did not list him as her beneficiary, and he did not want Sendy watching Ronan.
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During the argument, Hartwell said, “You say you’re going to put your finger in Ronan’s butthole.” O’Shea responded that Ronan was “sitting in my fucking face” and added, “Cherry-pick whatever the fuck you want. You’re a coward and you’re not in this relationship.” O’Shea asked (again rhetorically) who was her beneficiary, and he answered that it was her mother, not him. Toward the end of the recording, O’Shea stated, “You haven’t seen me angry. You haven’t seen me as a fucking problem, but you’re going to soon learn . . . . I’m fucking done, and you don’t fucking know.” He told Hartwell to “get the fuck out of here.” Then he repeated that she had induced him to sell all his assets, and he had helped Hartwell build her house but had nothing to show for it.
After the argument, Hartwell left the house and picked up Ronan from her mother’s care. She stopped communicating with O’Shea and did not return. Hartwell reported the incident to the police.
Hartwell explained that O’Shea previously threatened to take her financial assets. He also threatened to take Ronan away and told Hartwell that he wanted 50-50 custody. On one occasion prior to the August 23 incident O’Shea put his arms around her from behind, pressed his body into hers, grabbed her, and caused bruising on her body. On another occasion, O’Shea grabbed her leg, which also caused bruising. In addition, during the prior six months Hartwell had entered the garage and saw O’Shea holding an assault rifle he had recently purchased. He appeared drunk, but he did not move or say anything to her.
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2. O’Shea’s testimony O’Shea admitted that it was his voice on the audio recording of the August 23 incident and that he had yelled at Hartwell. He had no idea Hartwell was recording their encounter. He acknowledged that Hartwell asked him to stop yelling, but he did not stop because he was “in distress over [their] relationship.” When asked whether he believed Hartwell deserved to be screamed at, O’Shea responded that he was “now ashamed of yelling” at her, but “it was a build-up from the whole day.” He felt Hartwell had manipulated him during their relationship, and he believed Hartwell misled him about their future together. His statements were made in anger and frustration, but he did not intend to threaten Hartwell. Further, during the argument he was not drunk, he stood behind the desk, and he was more than eight feet from Hartwell.
O’Shea admitted he had eight guns, two of which he used for skeet shooting. However, he denied he had ever physically harmed Hartwell, coerced her, or had nonconsensual sex with her. He also denied threatening to sexually abuse Ronan, explaining that his comment about putting a finger in Ronan’s “butthole” was a joke that Hartwell took out of context. Ronan had run out of the bathroom and jumped on O’Shea, put his buttocks in O’Shea’s face, and said, “I’m going to toot in your face, Dada.” O’Shea responded, “You better get off of me or I’m going to poke you in the butt,” and he placed Ronan on the floor.
O’Shea acknowledged he sent 54 messages to Hartwell after she left, asking where she was and inquiring about Ronan’s welfare. He also admitted that he sent a message in which he apologized, saying, “I lost my temper and let my emotions get the best of me.” He also stated in a message to Hartwell, “You did
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not deserve to be spoken to like that.” Further, he repeatedly asked Hartwell to come home, saying they could fix things. O’Shea explained that his efforts to reconcile with Hartwell after the August 23 argument were not intended to harass her, but rather, arose from his anxiety about not knowing where Ronan or Hartwell were.
1. Sendy’s testimony
Sendy testified with respect to a Super Bowl gathering in January 2023 at Hartwell’s home that O’Shea grabbed Ronan around the rib cage and “tosse[ed] him back and forth.” According to Sendy, Ronan’s head “narrowly missed hitting the wall several times.” When O’Shea put Ronan down, he cried, and a couple of days later Sendy observed bruises on Ronan’s body. Sendy believed O’Shea was drunk at the time. Later that day O’Shea returned, picked up Ronan, and tried to leave with him. Hartwell pleaded for him to stop, but he “push[ed] her away.” Hartwell was finally able to get Ronan “out of [O’Shea’s] grip,” and O’Shea left the house. During cross-examination, Sendy clarified with respect to the incident that O’Shea was sitting on the floor holding Ronan when O’Shea “started rolling back and forth with him,” and O’Shea was not “throw[ing] him up in the air and swing[ing] him around.” Further, Ronan did not hit any furniture or the floor, although he came “very close to hitting the wall.”
In March 2023 Sendy was at Hartwell’s house at dinnertime and was holding Ronan when O’Shea walked into the room. O’Shea started screaming at her and, she explained, he was “putting his hands in my face, pointing in my face.” Sendy told O’Shea to take his hands away, and O’Shea responded that
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he can “‘do whatever the fuck’” he wants. Hartwell started crying and “plead[ed] for him to stop and go away.” Sendy described that while this was happening, Ronan “was squeezing his legs around my waist” and “grabbing my arms hard enough to pinch them.” On cross-examination, Sendy stated that O’Shea yelled at her because he was angry that Sendy and Hartwell went shopping for tile to remodel Sendy’s bathroom (and not, as O’Shea had suggested, because of an argument O’Shea had with Sendy’s son.)
C. The Trial Court’s Ruling On September 19, after Hartwell rested, the trial court inquired whether O’Shea wanted to call any witnesses. O’Shea’s attorney made an oral motion for a judgment in favor of O’Shea on the basis Hartwell had not met her burden to show abuse by a preponderance of the evidence.4 The court granted the motion, stating it found Hartwell failed to meet her burden of proof by a preponderance of the evidence to show that an act of abuse occurred within the meaning of section 6203. The court recounted that the testimony showed that O’Shea was angry about Hartwell’s lack of commitment to the relationship and her failure to designate him as her beneficiary despite their agreement to list each other as a beneficiary on their assets. The court did not find Hartwell’s contention credible that O’Shea had
4 The trial court described the motion as one for a directed verdict. In a court trial, the motion is more properly described as a motion for judgment under Code of Civil Procedure section 631.8. On appeal, Hartwell does not challenge the court’s order on the basis it was styled as a motion for directed verdict.
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threatened to take all her assets given that the couple was not married, and she was an educated lawyer with a master’s degree.
Moreover, the trial court found that the audio recording of the August 23 incident did not support Hartwell’s version of events that O’Shea had approached her aggressively and pointed his hands in her face, placing her in fear for her personal safety. The court explained that after listening to the recording, it was “clear to the court that [O’Shea] was the same distance from the phone that he was during the entire discourse,” and “[w]hile the court did hear [O’Shea] raise his voice toward the end, he never came closer to the recording device.” The court also found not credible Hartwell’s testimony that O’Shea was drunk, explaining with respect to the audio recording that the court “did not hear any slurred speech or any evidence of [O’Shea] being intoxicated during the course of [his] rant.”
The trial court noted Hartwell had testified that she had bruises on her body, but the court explained it was not clear whether Hartwell claimed the bruises were from a physical assault by O’Shea, and Hartwell acknowledged that the bruises might have been caused by her wrestling with Ronan or when Ronan hit her with his scooter while he was playing. She also indicated that she bruises easily.5 In addition, the barrage of apologetic text messages after the August 23 incident showed that O’Shea was concerned about Ronan’s whereabouts, and the
5 During the trial O’Shea testified about text messages from Hartwell in which she stated that she “bet” the bruises on her resulted from Ronan “smashing me like W.W.E. on the mat.” In the same chain of messages, Hartwell said, “I do bruise easy.” One of the messages from Hartwell stated, “He hit me with his scooter in my leg. So I know how I got that one.”
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messages were not harassing or abusive. Because Hartwell did not meet her burden of proof, the court dissolved the temporary restraining order and dismissed the action.
On September 30, 2024 Hartwell filed a request for a statement of decision, and she subsequently filed a notice of intention to move for a new trial and a motion to set aside and vacate the judgment. The trial court did not rule on either motion, and the motions were denied by operation of law. (Code. Civ. Proc., §§ 660, subd. (c), 663a, subd. (b).)
On November 15, 2024, Hartwell appealed from the trial court’s September 19 order denying her request for a DVRO.
On November 22 the trial court issued its statement of decision explaining why it had denied Hartwell’s request for a DVRO. The court recounted the testimony of the parties and stated it found Hartwell’s “lack of credibility so pervasive that [the court] chose not to believe any of her testimony.” The court noted as to the audio recording that O’Shea “did not have slurred speech and did not appear to be intoxicated.” The court also found not credible that during the August 23 incident O’Shea approached Hartwell, pointed his hands in her face, and caused her to be afraid he would hit her. The court made additional credibility findings, including that it found not credible that Hartwell, an educated lawyer, was concerned that O’Shea was trying to control her assets, as alleged in her request for a DVRO. The court noted there was no testimony that O’Shea had ever requested money from Hartwell, and at most she testified that he wanted them to invest together. The court also found no evidence that O’Shea had ever threatened Hartwell with a weapon, contrary to Hartwell’s assertion in her request for a DVRO.
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With respect to the numerous calls and messages O’Shea sent Hartwell after she left with Ronan, the trial court observed that Hartwell never responded to O’Shea’s request to see Ronan, and she did not tell O’Shea where they were going or whether they would return. The court “did not find [O’Shea’s] desperate pleas to see the child abusive.” The court likewise did not find “that after days of no response, his offers to resume the relationship [were] harassing or abusive.”
DISCUSSION
A. Governing Law and Standard of Review Pursuant to the Domestic Violence Prevention Act (§ 6200 et seq.; DVPA), “a court may issue a protective order ‘“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.”’” (In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220, 225 (Davila & Mejia); accord, Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 782; see §§ 6220, 6300.) The purpose of the DVPA is “to prevent acts of domestic violence, 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.) “The court shall consider the totality of the circumstances in determining whether to grant or deny a petition for relief.” (§ 6301, subd. (d).)
The DVPA defines domestic violence as abuse perpetrated against, as relevant here, a former cohabitant, a person in a prior dating relationship, and a coparent. (§ 6211, subds. (b)-(d).)
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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).) Conduct that may be enjoined under section 6320, subdivision (a), includes “molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, . . . harassing, telephoning, . . . destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party . . . .” (See Hogue v. Hogue (2017) 16 Cal.App.5th 833, 839.) “‘[D]isturbing 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.” (§ 6320, subd. (c).) “Abuse is not limited to the actual infliction of physical injury or assault.” (§ 6203, subd. (b).)
“The party seeking a restraining order bears the burden of establishing the circumstances justifying the order.” (Jan F. v. Natalie F. (2023) 96 Cal.App.5th 583, 593; accord, Curcio v. Pels (2020) 47 Cal.App.5th 1, 14.) The DVPA requires proof of past abuse by a preponderance of the evidence. (Curcio, at p. 14; Davila & Mejia, supra, 29 Cal.App.5th at p. 226.) We review the grant or denial of a request for a DVRO for an abuse of discretion. (Davila & Mejia, at p. 226; In re Marriage of G. (2017) 11 Cal.App.5th 773, 780; In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1424.)
Generally, “‘“[t]o the extent that we are called upon to review the trial court’s factual findings, we apply a substantial evidence standard of review.”’” (Davila & Mejia, supra, 29 Cal.App.5th at p. 226; accord, In re Marriage of G., supra, 11 Cal.App.5th at p. 780.) However, “‘[i]n a case where the trier
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of fact has determined that the party with the burden of proof did not carry its burden and that party appeals, “it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment [or order].” [Citations.] Instead, “where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law.”’” (Estes v. Eaton Corp. (2020) 51 Cal.App.5th 636; accord, Juen v. Alain Pinel Realtors, Inc. (2019) 32 Cal.App.5th 972, 978-979.)
B. Hartwell Did Not Present Evidence Compelling a Finding of Abuse Hartwell contends the trial court abused its discretion in denying her request for a DVRO because the August 23 audio recording of O’Shea’s “loud, threatening, expletive-filled tirade” at Hartwell, together with Sandy’s “unimpeached” testimony about the January and March 2023 incidents, established that O’Shea engaged in conduct that disturbed Hartwell’s peace within the meaning of section 6320, subdivision (a). The court did not abuse its discretion.
Hartwell contends the audio recording alone provided sufficient evidence of abuse to support issuance of the DVRO. It is reasonable to infer that it would have been upsetting for Hartwell to listen to O’Shea angrily yell at her with numerous expletives for five minutes. But the fact O’Shea’s angry “tirade” was upsetting does not alone show abuse within the meaning of section 6320. Rather, it was for the trial court to consider the audio recording in light of the other evidence presented at the hearing to determine “based on the totality of the circumstances”
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whether O’Shea’s conduct had “destroy[ed] the mental or emotional calm” of Hartwell. (§ 6320, subd. (c).)
Hartwell testified that O’Shea was drunk, slurred his speech, and approached her aggressively, until he was only a few feet away. Further, Hartwell claimed in her declaration in support of her request for a DVRO that O’Shea raised his hands as he approached her, causing Hartwell to believe he was going to hit her, and she fled in fear. This testimony could have supported a finding of abuse, but the trial court found it was not credible. As discussed, the court found O’Shea’s speech on the tape was not slurred, and it did not appear that O’Shea moved closer to the recording device (that Hartwell was holding), as shown by the fact O’Shea’s voice only got louder at the end of the recording. Our review of the audiotape does not show otherwise.
Further, the trial court found Hartwell’s lack of credibility as to all of her testimony was so pervasive (including that O’Shea had previously abused her, he wanted to take her assets, and he had threatened her with a weapon) that it did not believe any of her testimony. We defer to the court’s credibility findings. (Herriott v. Herriott (2019) 33 Cal.App.5th 212, 223 [“It was for the trial court to weigh the evidence and consider the demeanor and credibility of the witness, as ‘credibility issues [are] routinely resolved by [the] trier[] of fact.’”]; In re Marriage of Evilsizor & Sweeney, supra, 237 Cal.App.4th at pp. 1426-1427 [“the trial court was in the best position to evaluate credibility and to resolve factual disputes”].)
The cases relied on by Hartwell are not to the contrary.
Hartwell relies on Br. C. v. Be. C. (2024) 101 Cal.App.5th 259, 267 for the proposition that secret recordings are the “‘“most reliable types of evidence,”’” citing the legislative history for
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Penal Code section 633.6 (which allows a victim of domestic abuse to record a confidential conversation as evidence to support a restraining order). In this case, the accuracy of the audio recording is not in dispute. But that does not mean, as argued by Hartwell, that she met her burden to show abuse (or that the audio recording compelled a finding of abuse). In contrast to this case, the trial court in Br. C. found the wife’s account of abuse more credible than that of her husband, and the wife’s account was consistent with audio recordings that revealed several instances in which the husband “lost his temper at [the wife], insulted her, angrily ranted, and in one instance, refused to let her out of the vehicle despite numerous pleas.” (Id. at pp. 263- 269.) In affirming the court’s grant of a DVRO, the Court of Appeal deferred to the trial court’s credibility findings. (Ibid.) We likewise defer to the trial court’s credibility findings, in which the court rejected Hartwell’s account that O’Shea was drunk, aggressively approached Hartwell, and caused her to be in fear.
Moreover, O’Shea’s five minutes of yelling at Hartwell with profanities did not necessarily rise to the level of disturbing her mental and emotional calm. As the Court of Appeal explained in Curcio v. Pels, supra, 47 Cal.App.5th at page 13, in reversing an order issuing a DVRO based on a private social media post by the petitioner’s ex-girlfriend accusing the petitioner of abusing her and comparing him to a rapist, the law does not “hold a [DVRO] may issue based on any act that upsets the petitioning party. 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.” Although it is a reasonable inference that Hartwell would have been upset as a result of O’Shea yelling at her, the trial court acted within its
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discretion in evaluating the recording in light of the parties’ testimony, including evidence of their dispute over commitment and financial matters that precipitated the argument.
Moreover, the fact the audio recording could have supported issuance of a DVRO does not mean it compelled a finding of abuse as a matter of law. In the principal cases relied on by Hartwell, the Courts of Appeal concluded substantial evidence supported issuance of the restraining orders after “resolv[ing] all conflicts in the evidence in [the petitioner’s] favor and indulg[ing] all reasonable, legitimate inferences in favor of upholding the trial court’s order.” (McCord v. Smith (2020) 51 Cal.App.5th 358, 364-365 [affirming issuance of DVRO based on trial court’s finding that former domestic partner of petitioner disturbed petitioner’s peace after they broke up by efforts to exercise control and dominion over petitioner and by threatening and stalking her]; see Herriott v. Herriott, supra, 33 Cal.App.5th at pp. 218, 221-222 [substantial evidence supported issuance of restraining order against former husband where former husband on different occasions refused to leave her apartment, yelled at her, slammed the iron gate to her front door, and yelled embarrassing things about her for other tenants to hear]; In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1498-1499 [substantial evidence supported issuance of DVRO against former husband, whose “conduct included accessing, reading, and publicly disclosing the content of [petitioner’s] confidential emails, and that his conduct caused her to suffer ‘shock’ and
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‘embarrassment,’ to fear the destruction of her ‘business relationships,’ and to fear for her safety”].)6 Finally, Hartwell contends Sendy’s testimony—that on the day of the Super Bowl in 2023 O’Shea was drunk and “toss[ed]” Ronan back and forth, then returned and pushed Hartwell away to take Ronan out of the room, in addition to the March 2023 incident in which O’Shea yelled at Sendy and waved his hands in her face while she was holding Ronan—showed that O’Shea had committed abuse. It does not. Even accepting Sendy’s testimony as true, it did not compel a finding that O’Shea had disturbed Hartwell’s peace. In the Super Bowl incident, Sendy described an incident that reasonably could be viewed as O’Shea roughhousing with his son, and the March incident involved O’Shea’s conduct toward Sendy. Although Sendy testified that in the first instance O’Shea pushed Hartwell away when she tried to take Ronan from
6 Hartwell’s reliance on N.T. v. H.T. (2019) 34 Cal.App.5th 595 is also misplaced. In N.T., the Court of Appeal reversed the trial court’s denial of a DVRO on the basis “the trial court used an incorrect legal standard in denying the DVRO” and “failed to make the necessary factual findings regarding the issuance of the DVRO.” (Id. at p. 603.) On this basis the appellate court reversed the order denying the DVRO and remanded for the trial court to apply the correct legal standard and “to make the necessary findings and determine whether to issue the DVRO.” (Ibid.)
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him, these incidents, without more, do not compel a finding that O’Shea committed abuse within the meaning of section 6320.7
D. The Trial Court Did Not Err in Certifying the Settled Statement On December 24, 2024 Hartwell filed an appellant’s proposed settled statement that included a summary of Hartwell’s September 16 testimony. On January 23, 2025 the trial court filed an order on appellant’s proposed settled statement finding that corrections were necessary and attaching a “modified settled statement.” The order attached the court’s description of Hartwell’s testimony on September 16, 2024 and O’Shea’s testimony on September 18, 2024. Hartwell filed objections and proposed modifications to the court’s settled statement in which she argued the court improperly included its observations and characterization of the testimony. O’Shea filed a response, and after further briefing, Hartwell requested the court issue an order certifying her proposed settled statement, as amended. On June 4, 2025 the court held a hearing on Hartwell’s request for an order certifying the settled statement. After hearing argument from counsel, the court certified its January 23 settled statement without any modifications.
Hartwell contends, as she did in the trial court, that the court improperly included in the certified settled statement its characterization of the testimony by stating Hartwell
7 Hartwell argues the trial court compounded its error in denying the DVRO by denying her motions to vacate and for a new trial. However, the motions made the same arguments we have rejected: that the audio recording and testimony established abuse as a matter of law.
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“surreptitiously” recorded the August 23 incident. Hartwell also argues the court improperly included its observations that O’Shea did not slur his speech in the audio recording and that there was no testimony about the parties arguing or fighting before or during the two incidents Hartwell described in which O’Shea grabbed her in a manner that caused bruising.8 The court did not err.
California Rules of Court, rule 8.137(b)(1)(A) provides that an appellant may elect “to use a settled statement as the record of the oral proceedings in the superior court” if the oral proceedings were not reported by a court reporter. After the appellant files a proposed statement (and a respondent files a response or proposed amendment, if any), rule 8.137 entrusts the trial court with the ultimate responsibility for settling the record and making any corrections or modifications “necessary to ensure that it is an accurate summary of the evidence and testimony of each witness” relevant to the issues on appeal. (Cal. Rules of Court, rule 8.137(f)(3)(B)(i); see Marks v. Superior Court (2002) 27 Cal.4th 176, 195 [“‘The rules confer full power over such a record in the trial judge. As long as the trial judge does not act in an arbitrary fashion he has full and complete power over such a record.’”].)
Judicial Council form APP-022 (used by the trial court here) expressly authorizes the court to find (in paragraph 2.c)
8 Hartwell also contends the trial court erred in including a summary of the September 18, 2025 testimony in its settled statement because there is a reporter’s transcript for that date. We agree the court should not have included testimony from September 18, but we rely on the reporter’s transcript for this testimony.
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that corrections are required and to attach a “modified settled statement” to ensure the settled statement provides an “accurate summary of the evidence and testimony” at issue on appeal. Nothing in rule 8.137 prevents the court from including observations necessary to explain the evidence, such as use of the word “surreptitiously” to explain that Hartwell recorded the conversation without O’Shea’s knowledge or reciting that there was an absence of testimony on a certain subject.9 Further, any error by the court in stating in the certified settled statement that the audio recording did not reflect O’Shea’s slurring of his speech was harmless because the court made that finding in both its oral ruling and statement of decision and the audio recording is in the appellate record. (See Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 [harmless error standard under People v. Watson (1956) 46 Cal.2d 818, 836 applies to civil cases].)
Mooney v. Superior Court (2016) 245 Cal.App.4th 523, relied on by Hartwell, does not support her position. There, the Court of Appeal concluded the trial court abused its discretion by failing to rule on appellant’s motion to settle the statement under California Rules of Court, rule 8.137, instead deciding a nonexistent motion for attorneys’ fees. (Id. at p. 535.) By contrast, the court in this case considered Hartwell’s proposed settled statement and held a hearing before certifying its settled
9 We note that Merriam-Webster’s dictionary defines “surreptitious” as “done, made, or acquired by stealth” or “acting or doing something clandestinely.” (Merriam-Webster's Online Dictionary (2026) <https://www.merriamwebster .com/dictionary/surreptitious> (as of August 13, 2026). This is an accurate way of describing that Hartwell made the recording without O’Shea’s knowledge.
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statement. There was no abuse of discretion.
DISPOSITION
The September 19, 2024 order denying Hartwell’s request for a domestic violence restraining order is affirmed. O’Shea is to recover his costs on appeal.
FEUER, J.
We concur:
SEGAL, Acting P. J.
STONE, J.