Nicole G. v. Warren Braithwaite

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.

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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.

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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.

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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

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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.

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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

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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 coworker.” 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.

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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 exwife, 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.”

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She explained she sent the photo of herself holding an AR15 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

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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,

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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

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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,

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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 DV100 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

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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.

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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”].)

The order is affirmed. Respondent Nicole G. is awarded costs on appeal per California Rules of Court, rule 8.278.