Dvro Transcript
Dvro Transcript
1 INDEX OF WITNESSES
2
3 PAGE
4 WITNESS: STEVEN FENSKE
5 DIRECT EXAMINATION
BY MR. SCHOOLER 10
6 CROSS-EXAMINATION
BY MS. BEKKEN 13
7
8 WITNESS: NATHAN CARACTER
9 DIRECT EXAMINATION
BY MS. BEKKEN 17
10 EXAMINATION
BY THE COURT 18
11 CROSS-EXAMINATION
BY MR. SCHOOLER 22
12 REDIRECT EXAMINATION
BY MS. BEKKEN 23
13
14
15
16 EXHIBITS
17
18 EXHIBIT MARKED RECEIVED
19 A Document entitled, "Basic 14
Rental Agreement/Residential
20 Lease"
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22
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24
25
26
27
28
3
1 only copy?
2 MR. CARACTER: Yes, your Honor.
3 THE COURT: I actually have two copies in the
4 file. I can give you one of the file copies.
5 THE CLERK: Your Honor, I have been presented
6 with the ex parte application which I stated I served on
7 counsel this morning, and a blank request for order with
8 an attached declaration. Is that what you are
9 considering?
10 THE COURT: Yes. The declaration, you need to
11 make one copy of that.
12 THE CLERK: And that's what's in the court
13 file? Because it's not file stamped.
14 THE COURT: Yes. Interesting. Hang on. Let
15 me deal with the response first.
16 All right. Deputy Bartlett, if you would give
17 a copy of the response to Mr. Schooler. Let me show you
18 what I'm looking at --
19 THE CLERK: Am I making a copy of this?
20 THE COURT: Hold on.
21 Okay. Does it look like this (indicating)?
22 This is what is file stamped July 8th.
23 THE CLERK: No, it does not.
24 THE COURT: Okay. I'm going to go make a copy
25 of this. Would you hand all of that back to
26 Mr. Caracter. Let me just go make a copy of it.
27 For the record, Mr. Schooler, you're being
28 handed a copy of the July 8th, 2016, declaration. It
10
1 about ten minutes and then we will get the case going.
2 Oh, one thing I didn't do, Mr. Fenske,
3 Mr. Caracter, raise your right hand. Do each of you
4 swear, under penalty of perjury, that the evidence and
5 testimony you'll give in the matter is the truth, the
6 whole truth, and nothing but the truth so help you God?
7 MR. FENSKE: I do.
8 MR. CARACTER: I do.
9 THE COURT: Thank you so much. All right. You
10 guys are sworn in. We'll come back, we'll start the
11 hearing.
12 Mr. Schooler, you need about ten minutes or so?
13 MR. SCHOOLER: Yes, your Honor.
14 THE COURT: Deputy Bartlett, are you going to
15 clear the courtroom, have them wait outside, or have
16 them do it from the table there?
17 THE BAILIFF: He can sit there.
18 THE COURT: Deputy Bartlett will let you guys
19 stay in here. I will be back in ten minutes.
20 (Recess.)
21 THE COURT: DV043638. We have Mr. Fenske, the
22 petitioner, with his attorney Mr. Schooler. We have
23 Nathan Caracter, the respondent, with his attorney
24 Ms. Bekken.
25 And, Mr. Schooler, you've now had a chance to
26 read both the response, and your client's had a chance
27 to read that response, as well as the July 11th ex parte
28 declaration; is that correct?
12
1 it.
2 Q What makes you think Mr. Caracter is
3 responsible for that?
4 A I didn't say that.
5 Q Pardon?
6 A I don't know if Mr. Caracter was. I have no
7 photographic evidence of that.
8 Q Okay. So you're not claiming that he has
9 responsibility for that?
10 A For what?
11 THE COURT: Ms. Bekken, may I clarify -- the
12 Court will sustain its own objection as vague. Are you
13 talking about earlier testimony that since the
14 restraining order was issued and since the sheriff
15 removed Mr. Caracter he talked about someone came into
16 the home and messed things up, that's what you're
17 talking about, correct?
18 Is that the time that you're talking about?
19 MS. BEKKEN: Yes.
20 THE COURT: Okay. Then I think you've gotten
21 all the answers on that, nor during his testimony did he
22 indicate that he thought it was Mr. Caracter so I didn't
23 take it as that. Frankly, I didn't see the relevance of
24 it. But you have a declaration that does directly
25 assign certain conduct to Mr. Caracter. Do you want to
26 ask about that? That's in his declaration requesting
27 the restraining order.
28 Do you have any questions, any further
19
1 A Yes, it was.
2 Q Did it involve his home in any way?
3 A No. It was just a basic harassment restraining
4 order stating -- asking for him to stop badgering me and
5 accusing me of installing this sprayer system in the
6 home that sprays toxic chemicals everywhere.
7 Q Why do you want to be in this home if it's such
8 a toxic environment and you feel you're being harassed
9 at all times?
10 A Well, one, if you look at the lease the terms
11 are pretty spectacular. And, two, I didn't see that
12 anything -- or that I was doing anything wrong, and I
13 believe I that I can stay sequestered in my room and
14 pretty much ignore Mr. Fenske's whims.
15 Q Do you still believe that? I guess the
16 question is this, do you think it's a healthy
17 environment for you to live with Mr. Fenske?
18 A I think it's a healthier environment than me
19 being on the street.
20 Q You can afford to pay him rent, correct?
21 A Well, once I get a job, yes.
22 Q So you weren't paying him rent?
23 A The lease agreement was $500 a month beginning
24 September 1st or until I got a full-time job.
25 Q So you're not paying him any rent for this
26 room?
27 A There was -- no. There was only one payment of
28 $100 made to him, that was it.
24
1 Court.
2 THE COURT: All right. Ms. Bekken, any closing
3 comments?
4 MS. BEKKEN: Yes.
5 THE COURT: Go ahead.
6 MS. BEKKEN: In closing, your Honor, I'd like
7 to point out that I don't feel that the issues that --
8 raised to the level of domestic violence, I think that
9 the issues are more appropriate for an unlawful detainer
10 action.
11 THE COURT: Thank you. That is always one of
12 the concerns the Court has any time where you have a
13 roommate/landlord/tenant relationship, in essence, or
14 apparently de facto or written, and whether or not the
15 domestic violence restraining order process is being
16 used to gain advantage over other court processes that
17 are proper; however, in this matter I don't know find
18 that.
19 I find that the behavior as described by
20 Mr. Fenske is credible and I do find Mr. Fenske
21 credible. Our concern, there are issues relating to
22 rage, threats, of particular concern are the knives left
23 in the bedroom. That's a very clear threat when knives
24 are consistently left in places where you are going to
25 find them by someone that you're living with.
26 Let me address the qualification of the
27 relationship first. One of the issues to determine
28 whether or not this is properly brought as a domestic
29
1 him to get Pace, his cat, who I'm certain he misses and
2 I'm sorry that he has been unable to be with his cat.
3 So, Mr. Caracter, how many more items do you
4 believe are still at the home and can you get it done in
5 one occasion?
6 MR. CARACTER: No. It is everything that I
7 own.
8 THE COURT: Okay.
9 MR. CARACTER: The entire contents of a
10 one-bedroom apartment.
11 THE COURT: Do you have furniture?
12 MR. CARACTER: Yes.
13 THE COURT: Okay. So you moved furniture in?
14 MR. CARACTER: Yes.
15 THE COURT: How much furniture? Describe it,
16 if you would.
17 MR. CARACTER: I have a 300-pound dining room
18 table, I have an eight-by-eight sectional, I have a
19 queen-size bed, I have bookcases, a dresser, a large
20 nightstand, end tables, coffee tables, two reclining
21 chairs.
22 THE COURT: Sounds like a small moving truck?
23 MR. CARACTER: Yes.
24 THE COURT: Okay. All right. Mr. Fenske, two
25 occasions, he will have to come with a moving truck, you
26 will have to cooperate in order for him to -- "him,"
27 Mr. Caracter, to get his property out; you understand?
28 MR. FENSKE: I understand.
32
1 you understand?
2 MR. FENSKE: I understand.
3 THE COURT: Please wait in the hallway.
4 Ms. Bekken, if your client would also like a
5 copy of the restraining order please wait in the hallway
6 and we will have one for him also.
7 MR. CARACTER: Your Honor, there's one more
8 thing.
9 THE COURT: Well, talk to your attorney. See,
10 here's the thing, Mr. Caracter, you're represented in
11 court by an attorney so I need to make sure you talk to
12 her first before you say anything. If she says you can
13 speak, go ahead, but I have to make sure you run it
14 through your attorney first.
15 MR. CARACTER: I have a significant amount of
16 mail that has been delivered to Mr. Fenske's home,
17 including some rather time-sensitive documents from the
18 federal courthouse.
19 THE COURT: Contact Mr. Schooler.
20 Mr. Schooler, you will make sure he gets all
21 his mail.
22 MR. SCHOOLER: Yes, sir.
23 THE COURT: And you will need to put in a
24 change of address.
25 MR. CARACTER: Of course.
26 THE COURT: All right. Thank you.
27 MR. SCHOOLER: Thank you, your Honor.
28 (The hearing was concluded at 11:03 a.m.)
38
1 * * * * * *
2
3 STATE OF CALIFORNIA)
: SS:
4 COUNTY OF SAN DIEGO)
5
6
7 I, Kira L. Aberle, Official Reporter for the Superior
8 Court of the State of California, in and for the County of San
9 Diego, do hereby certify:
10 That as such reporter, I reported in machine shorthand
11 the proceedings held in the foregoing case;
12 That my notes were transcribed into typewriting under my
13 direction and the proceedings held on July 26, 2016, contained
14 within Pages 1 through 38, are a true and correct transcription.
15 Dated this 30th day of August, 2016.
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17
18
19 ______________________________
KIRA L. ABERLE
20 CSR No. 12456
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