1

1 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

2 IN AND FOR THE COUNTY OF SAN DIEGO
3
4 DEPARTMENT 45 HON. DAVID BERRY
5
6 STEVEN FENSKE, )
)
7 Petitioner, )
)
8 vs. ) CASE NO. DV043638
)
9 NATHAN CARACHTER, )
) RESTRAINING ORDER HEARING
10 Respondent. )
_________________________) CERTIFIED TRANSCRIPT
11
12
13 REPORTER'S TRANSCRIPT
14 SAN DIEGO, CALIFORNIA
JULY 26, 2016
15
16
17 APPEARANCES:
18 FOR THE PETITIONER:
19 SEVENS LEGAL, APC
BY: ANDY SCHOOLER
20 3555 FOURTH AVENUE
SAN DIEGO, CALIFORNIA 92103
21 (619) 297-2800
22
FOR THE RESPONDENT:
23
SAN DIEGO VOLUNTEER LAWYERS PROJECT
24 BY: MARTHA ELIZABETH BEKKEN
1767 SECOND AVENUE
25 SAN DIEGO, CALIFORNIA 92101
(619) 232-7819
26
27 KIRA ABERLE, CSR 12456
OFFICIAL COURT REPORTER
28 SAN DIEGO, CALIFORNIA
 2

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"
21
22
23
24
25
26
27
28
 3

1 SAN DIEGO, CALIFORNIA; TUESDAY, JULY 26, 2016; 9:53 A.M.

2 -o0o-
3 THE COURT: DV043638, Steven Fenske, Nathan
4 Caracter. If the parties could sit in the outside
5 chairs.
6 MR. SCHOOLER: Andy Schooler on behalf of
7 Mr. Fenske.
8 THE COURT: Mr. Schooler, good morning, sir.
9 MS. BEKKEN: Good morning, your Honor. Martha
10 Elizabeth Bekken, appearing for San Diego Volunteer
11 Lawyers Project, for the respondent, Nathan Caracter.
12 THE COURT: All right. Hold on one moment
13 here. I do have Andy Schooler's substitution of
14 attorney in the file.
15 And then Martha Bekken?
16 MS. BEKKEN: Bekken, yes.
17 THE COURT: Did you file a substitution of
18 attorney?
19 MS. BEKKEN: No, I did not. I'm appearing for
20 the San Diego Volunteer Lawyers Project for this
21 hearing.
22 THE COURT: Okay. So you need to file a
23 limited scope appearance indicating that you're
24 appearing for today's hearing only.
25 MS. BEKKEN: I did not file one.
26 THE COURT: No, but you need to. There's a
27 business office across the hall. You can get the form
28 over there and file it with the Court right now.
 4

1 MS. BEKKEN: All right.

2 THE COURT: I'll wait.
3 I'll wait. Go across the hall and get the
4 form, fill it out, and bring it back so that I know
5 you're the attorney of record.
6 MS. BEKKEN: I did not bring my purse, your
7 Honor, to buy a form.
8 THE COURT: There's no buying a form. We will
9 give you a form.
10 THE CLERK: They cost money.
11 THE COURT: Hold on. We'll print it for you
12 here, Ms. Bekken.
13 MR. CARACTER: I should have a fee waiver on
14 this.
15 THE COURT: Thank you for waiting, Mr. Fenske.
16 Please have a seat too.
17 MR. FENSKE: Thank you, your Honor.
18 (Recess.)
19 THE COURT: Back in session on DV043638.
20 Steven Fenske, Nathan Caracter. I have Mr. Schooler
21 representing the petitioner Mr. Fenske, and I have a
22 Notice of Limited Scope for today's hearing by
23 Ms. Bekken.
24 MS. BEKKEN: Yes.
25 THE COURT: Thank you, Ms. Bekken, for getting
26 that done. Now you're officially in the case.
27 In this matter, then, I note the domestic
28 violence temporary restraining order was previously
 5

1 issued on July 7, 2016. Proof of service was effected

2 on July 7, 2016. Service requirements have been met.
3 Hearing date was set for today's date and time. The
4 parties are all here.
5 Mr. Fenske, am I saying your name correctly?
6 MR. FENSKE: Yes, sir, your Honor.
7 THE COURT: Is everything in your request for
8 and your declaration in support of the request for the
9 restraining order true and accurate?
10 MR. FENSKE: Yes, it is.
11 THE COURT: I would like to ask you something
12 about Page 3. Page 3, Item 9, asks the question, "I
13 believe the person in number two," that would be Mr. --
14 and, sir, how do you say your last name?
15 MR. CARACTER: Caracter.
16 THE COURT: Mr. Caracter "owns, possesses guns,
17 firearms or ammunition," you answered that question
18 "No." Is it correct you have no reason to believe he
19 has, possesses any guns, firearms, or ammunition?
20 MR. FENSKE: I don't know all of his
21 belongings.
22 THE COURT: Is it correct you have no reason to
23 believe he owns or possesses any of those items?
24 MR. FENSKE: I have no reason to believe so,
25 your Honor.
26 THE COURT: So is that correct?
27 MR. FENSKE: Yes, it is.
28 THE COURT: Thank you very much.
 6

1 Mr. Caracter, you filed a response and in that

2 response you address firearms and you said you have no
3 guns or ammunition; is that correct?
4 MR. CARACTER: That's correct.
5 THE COURT: All right. In your response you
6 filed on July 20, 2016, you indicate, as I just noted,
7 that you do not own or have any guns. Sir, do you
8 understand that if a restraining order is granted you
9 are prohibited from owning, possessing, retrieving,
10 trying to own, possess, or receive any guns, firearms,
11 or ammunition for the time the restraining order is in
12 effect?
13 MR. CARACTER: Understood, your Honor.
14 THE COURT: If a restraining order is granted
15 you will be required to complete a form here in court
16 today that acknowledges that I've given you that advisal
17 and that you do not own or possess any of those items.
18 You must sign them under penalty of perjury. Do you
19 understand?
20 MR. CARACTER: Yes, your Honor.
21 THE COURT: Thank you. And you've indicated
22 everything in your response is true and accurate?
23 MR. CARACTER: Yes, your Honor.
24 THE COURT: In your declaration?
25 MR. CARACTER: Yes.
26 THE COURT: As I noted, I have the original
27 request sworn declaration by Mr. Fenske. I also have
28 read both an ex parte declaration filed by Mr. Caracter
 7

1 July 11th addressing these issues, as well as his

2 response declaration on July 20th. All that's in
3 evidence is subject to cross-examination. The Court
4 will sustain its own objection as to cumulative if I
5 hear people beginning to repeat what's already in your
6 declaration, otherwise there would have been no value,
7 Mr. Fenske and Mr. Caracter, in you preparing the
8 declarations, filing them, serving them on the other
9 party, all -- if all you're going to do is just repeat
10 them.
11 Mr. Schooler, let me confirm, though, that
12 Mr. Fenske has both the July 11th ex parte declaration
13 by Mr. Caracter and the July 20th response?
14 MR. SCHOOLER: I believe so, your Honor. I was
15 given them this -- I was given -- July 26th declaration?
16 THE COURT: July 20th declaration, that was his
17 response, and then there was an ex parte request on
18 July 11th.
19 Do you have copies of those, Ms. Bekken?
20 Mr. Caracter, do you have copies of those?
21 MR. CARACTER: I believe so, yes.
22 THE COURT: Please pull them out.
23 MR. SCHOOLER: The declaration I have is the
24 one from the -- filed the 26th.
25 THE COURT: Twenty-sixth?
26 THE CLERK: Your Honor, the Court provided
27 counsel with both copies of the ex parte applications
28 that were brought by respondent.
 8

1 THE COURT: That's why they are file stamped

2 the 26th?
3 THE CLERK: I'm not certain of the date, but
4 I'm just notifying the Court it appears to be what he is
5 looking at.
6 THE COURT: So you have the ex parte
7 declarations, correct?
8 THE CLERK: The ex parte application and order,
9 and one is an NCR form, the other one is a photocopy
10 of --
11 THE COURT: Did they get the declarations that
12 were attached to those?
13 THE CLERK: No.
14 MR. SCHOOLER: I only have the ex parte --
15 THE COURT: Hold on. You have your July 11th
16 declaration?
17 MR. CARACTER: Yes, your Honor.
18 THE COURT: Do you have a copy or is that your
19 only copy?
20 MR. CARACTER: I believe that's my only copy.
21 THE COURT: Hand that to Deputy Bartlett. We
22 have a Xerox machine.
23 And then did you get the July 20th response to
24 the domestic violence restraining order?
25 MR. FENSKE: No, your Honor.
26 THE COURT: Okay. Do you have a copy of that?
27 MR. CARACTER: Yes, I believe so, your Honor.
28 THE COURT: All right. Thank you. Is it your
 9

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 was actually part of an ex parte request that was denied

2 because domestic violence hearings are not conducted
3 ex parte, it is required that we have a reporter at all
4 times, nor do they get advanced beyond the day of the
5 restraining order date because that is the way the law
6 is written, Mr. Caracter, but. Do I appreciate you made
7 efforts to have it heard earlier.
8 In addition, you have, now, a copy of his
9 July 20th response. How long do you need? About ten
10 minutes, maybe, to review it and go over with your
11 client, the information? Because I'm taking this as his
12 declaration, not allowing further testimony on this
13 subject that's already covered in his declaration,
14 because that would be an undue consumption of time, and
15 then allowing cross-examination.
16 So how long do you need?
17 MR. SCHOOLER: Ten minutes will be fine.
18 THE COURT: Good.
19 Ms. Bekken, let me just make sure you have the
20 original DVTRO, the request and the declaration.
21 MS. BEKKEN: I don't have copies. He has
22 copies. I don't have anything in copies.
23 THE COURT: Have you read them?
24 MS. BEKKEN: Yes.
25 THE COURT: Are you prepared to conduct
26 cross-examination on Mr. Fenske?
27 MS. BEKKEN: Yes.
28 THE COURT: All right. Well, let's give you
 11

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 MR. SCHOOLER: Yes, your Honor.

2 THE COURT: Okay. Mr. Schooler, any witnesses
3 you plan to present in this case?
4 MR. SCHOOLER: Mr. Fenske.
5 THE COURT: I'm sorry, Mr. Schooler?
6 MR. SCHOOLER: Mr. Fenske.
7 THE COURT: Okay. Mr. Fenske, you can stay
8 where you are. You're under oath. Go ahead.
9 MR. SCHOOLER: Thank you, your Honor.
10
11 DIRECT EXAMINATION
12
13 BY MR. SCHOOLER:
14 Q Mr. Fenske, approximately when did you meet --
15 first meet Mr. Caracter?
16 A In the spring of this year.
17 Q Okay. And what was the nature of your
18 relationship?
19 A It was a passionate relationship.
20 Q So it was an intimate relationship?
21 A Intimate relationship, yes.
22 Q Okay. And at some point in time did you allow
23 him to stay at your house?
24 A Yes, I did.
25 Q When was that? When did that occur?
26 A He moved in on July 20 --
27 MS. BEKKEN: Your Honor --
28 THE COURT: I'm sorry. Is there an objection?
 13

1 MS. BEKKEN: Can you ask him to speak up a

2 little bit louder with his responses, please?
3 THE COURT: Certainly. Would you like to go
4 sit in the jury box so can you hear better? Would that
5 help you at all?
6 MS. BEKKEN: Well, if he spoke a little louder
7 it will be fine. I can hear his attorney just fine. I
8 just can't hear his responses well.
9 THE COURT: Okay. Thank you.
10 Mr. Fenske, feel free to be as loud as you wish
11 to be. None of that will be offensive to anyone and
12 it's important that everyone can hear. I will note I'm
13 quite loud. It's a large room and you need to fill it
14 with your voice.
15 THE WITNESS: Yes, your Honor.
16 THE COURT: Was that better?
17 MS. BEKKEN: Yes, thank you.
18 THE COURT: Go ahead.
19 MR. SCHOOLER: Thank you, your Honor.
20 BY MR. SCHOOLER:
21 Q Did you ever have a lease or agreement with
22 Mr. Caracter?
23 A No, did I not.
24 Q Did you allow him to stay free at your house?
25 A Yes, I did.
26 Q At some point did you ask him to leave?
27 A I did, yes.
28 Q And what happened that precipitated this --
 14

1 what led up to and what ultimately happened that

2 precipitated this being filed?
3 THE COURT: The Court's going to sustain its
4 own objection as cumulative. If you are going to have
5 him repeat what's in the declaration there is no need to
6 do that. I have read the declaration. Is there some
7 information other than what's in the declaration?
8 MR. SCHOOLER: Yes -- your Honor, I'll just
9 move forward.
10 THE COURT: Thank you.
11 MR. SCHOOLER: I apologize.
12 THE COURT: No need to apologize. There's no
13 point having him repeat what he said, otherwise there's
14 no value in his previously filed declaration.
15 MR. SCHOOLER: Yes, your Honor. Thank you.
16 BY MR. SCHOOLER:
17 Q In this -- in Mr. Caracter's declaration that
18 we just read, is it true that your -- you own the home
19 at -- on Albatross, correct?
20 A Yes, I do, your Honor.
21 Q Okay. And was your home entered into when you
22 were not there?
23 A Yes, it was.
24 Q And this is since you filed this restraining
25 order?
26 A Yes, it has been.
27 Q Where things messed up in your house?
28 A Yes, they were.
 15

1 Q Okay. Did -- at one point in time did

2 Mr. Caracter come to the house and enter with the aid of
3 a police officer?
4 A Yes, he did. About a weak after he was asked
5 to leave, or about a week after the sheriff's department
6 came with him, took him.
7 Q In -- I would refer to in his response where he
8 says, "he did not have access to my money," was there
9 any limitation that the officers made on him at that
10 point in time in terms of taking any money that he might
11 have had there?
12 A Not that I'm aware of.
13 Q Okay.
14 THE COURT: Was there anything else?
15 MR. SCHOOLER: No, your Honor.
16 THE COURT: All right. Ms. Bekken,
17 cross-examination?
18
19 CROSS-EXAMINATION
20
21 BY MS. BEKKEN:
22 Q Isn't it true that you did have an agreement
23 that he could be there? A written agreement?
24 A No. We had no written agreement.
25 MS. BEKKEN: Your Honor, could I refresh his
26 memory with a written agreement?
27 THE COURT: Well, no, you may not, because he
28 has said there's no written agreement. He has not
 16

1 expressed a lack of memory. However, if you wish to

2 impeach him with a written agreement, certainly you can
3 present a written agreement. Do you wish it marked as
4 Respondent's Exhibit A?
5 MS. BEKKEN: May I show him the written
6 agreement?
7 THE COURT: First let's get it marked so that
8 we're clear on the record what we're doing. What
9 document do you have?
10 Ma'am, I'm sorry, can you hear me okay?
11 MS. BEKKEN: Yes.
12 THE COURT: What document do you have?
13 MS. BEKKEN: A document called, "Basic Rental
14 Agreement/Residential Lease."
15 THE COURT: How many pages?
16 MS. BEKKEN: It has -- it has four pages plus
17 the last page I have a photocopy that shows the
18 signature.
19 THE COURT: So five pages total?
20 MS. BEKKEN: Five.
21 THE COURT: Thank you. Five-page document
22 Rental Agreement, we will mark that as Respondent's
23 Exhibit A.
24 (Respondent's Exhibit A marked.)
25 THE COURT: And showing that to you,
26 Mr. Schooler, to show to Mr. Fenske.
27 Mr. Fenske, please look at Exhibit A.
28 You had a question about Exhibit A, Ms. Bekken?
 17

1 MS. BEKKEN: Yes. I feel that this --

2 THE COURT: Do you have a question? This is
3 cross-examination.
4 BY MS. BEKKEN:
5 Q Okay. Now that you have had a chance to look
6 at it, do you still contend that there is no written
7 agreement?
8 A I have never seen this document before in my
9 life and that is not my signature.
10 MS. BEKKEN: I have a further question on that.
11 THE COURT: Go ahead.
12 BY MS. BEKKEN:
13 Q Is that not your signature?
14 A That is not my signature. That appears to be a
15 pixilated version of my signature placed on that, to the
16 best of my knowledge.
17 THE CLERK: Is it being presented to the Court?
18 THE COURT: I'm going to put it up here for
19 now. I don't know what we're going to do with it later.
20 I will hold on to Exhibit A for right new.
21 Ms. Bekken, any other questions?
22 BY MS. BEKKEN:
23 Q With -- in response to things "messed up," in
24 your -- you said things were "messed up" in your house.
25 Exactly what was "messed up" in your house?
26 A Things were put there, there would be sheets
27 and items all swirled up together into a ball in the
28 middle of the floor with some kind of liquid underneath
 18

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 questions of Mr. Fenske?

2 MS. BEKKEN: One moment, your Honor.
3 I don't believe so, your Honor.
4 THE COURT: All right. Thank you.
5 Ms. Bekken having no further questions,
6 Mr. Schooler, did you have any redirect?
7 MR. SCHOOLER: No, your Honor.
8 THE COURT: Mr. Schooler, you rest?
9 MR. SCHOOLER: Yes, your Honor.
10 THE COURT: Thank you, sir.
11 Ms. Bekken, as I've indicated, I read through
12 your client's -- both his declarations and considered
13 those as testimony. Was there any further witnesses you
14 wish to present? Do you wish to call Mr. Caracter?
15 MS. BEKKEN: All right.
16
17 DIRECT EXAMINATION
18
19 BY MS. BEKKEN:
20 Q What relationship did you have, if any, with
21 Mr. Fenske?
22 A Mr. Fenske and I met and hung out as platonic
23 friends. We had a lot in common. We are both from the
24 midwest and we both have -- we both like music and so we
25 kind of bonded over that.
26 Q This was a purely platonic relationship?
27 A It was, yes.
28 MS. BEKKEN: No other questions.
 20

1 THE COURT: Okay. Thank you very much.

2 Cross-examination, Mr. Scholar?
3 MR. SCHOOLER: No, your Honor.
4 THE COURT: Okay.
5
6 EXAMINATION
7
8 BY THE COURT:
9 Q Where did you -- Mr. Caracter, where did you
10 meet Mr. Fenske?
11 A Mr. Fenske and I met at a men's only resort
12 called Club San Diego.
13 Q When was that?
14 A Let's see. That would have been early May of
15 2016.
16 Q And when did you move in with him?
17 A The movers moved me in June 22nd, 2016.
18 Q All right. Did you get your cat when you went
19 back with the sheriff?
20 A No.
21 Q Why not?
22 A One, I actually didn't have a place to take my
23 cat.
24 Q What is your cat's name?
25 A Pace.
26 Q Can you spell it?
27 A P-a-c-e.
28 Q Where is Pace now?
 21

1 A I assume and I hope he's still at the

2 apartment.
3 Q Why haven't you picked him up?
4 A I tried to go over there three or four times
5 since my initial entrance with the sheriff's department
6 and, although Mr. Fenske's truck was parked in front and
7 the dogs were there, he didn't answer the door. I was
8 unable to go in because the locks were changed so my key
9 doesn't work.
10 Q The first time you went back with sheriff's
11 deputies to collect your belongings according to the
12 restraining order, when was that?
13 A That was July 12th.
14 Q So it was after you filed the ex parte request?
15 A Correct.
16 Q Now, prior to filing the ex parte request did
17 you understand that the order allowed you to return to
18 the residence to get your property and your cat, Pace?
19 A Yes, with a peace officer.
20 Q Why haven't you done that?
21 A Because -- well, I had hoped that the ex parte
22 hearing would quash this whole debacle. Afterwards when
23 I had tried to, like I said, I couldn't get into the
24 apartment.
25 Q Okay. And on July 12th why did you not take
26 your cat with you?
27 A At the time I didn't have a place to take the
28 cat.
 22

1 Q Where are you living now?

2 A I'm couch surfing between a couple different
3 friends of mine.
4 Q You're saying you have a platonic relationship
5 with Mr. Fenske, correct?
6 A Correct.
7 Q So under oath -- you understand you're under
8 oath?
9 A Yes.
10 Q At no time have you had any intimate
11 relationship with him whatsoever?
12 A No, that's not completely true.
13 Q What is the truth?
14 A When we first met we did hook up once.
15 Q The word "hook up" is a vague term.
16 A I'm sorry.
17 Q And I'm not embarrassed by anything, but it
18 is -- in the law there's certain requirements and I do
19 need to understand them. So if you would clarify so I
20 can understand whether there was intimacy or not.
21 A We had sex once.
22 Q Okay. Thank you. But in general you viewed it
23 as a platonic relationship?
24 A Definitely.
25 Q Okay. You obtained a restraining order against
26 Mr. Fenske?
27 A Correct.
28 Q Was that a civil restraining order?
 23

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 THE COURT: Okay. Mr. Schooler, any other

2 questions based on the Court's questions?
3 MR. SCHOOLER: Only this, your Honor, I --
4 THE COURT: No, questions. Do you have
5 cross-examination questions? There will be an
6 opportunity for closing comments.
7 MR. SCHOOLER: Thank you.
8
9 CROSS-EXAMINATION
10
11 BY MR. SCHOOLER:
12 Q Mr. Caracter, did you send me a text yesterday
13 that indicated that you did not -- you thought it would
14 be insanity to move back in or to come back to
15 Mr. Fenske's home and stay?
16 A I believe what the text said was I was reminded
17 of Einstein's statement saying, "To repeat an action and
18 expect a different result is the definition of
19 insanity."
20 Q And that was in reference to you going back to
21 Mr. Fenske's house?
22 A Correct.
23 Q In that you also asked for money in terms of
24 settlement; is that correct?
25 A That was in response to you asking me what I
26 want for settlement, yes.
27 Q And your actions are really about money here,
28 isn't it?
 25

1 A No, actually it's quite not. I told you on the

2 phone when we spoke that I would not want money thrown
3 at me at this problem, that that was not the issue, that
4 me having a place to live was more important than
5 Mr. Fenske throwing a check at me.
6 Q But you did state it would be insanity,
7 essentially, to go back to Mr. Fenske's house?
8 A Yes.
9 MR. SCHOOLER: No further questions.
10 THE COURT: All right. Thank you,
11 Mr. Schooler.
12 Ms. Bekken, any redirect for your client?
13
14 REDIRECT EXAMINATION
15
16 BY MS. BEKKEN:
17 Q At the point that you spoke with the opposing
18 counsel yesterday, were you already represented by
19 San Diego Volunteer Lawyers Project?
20 A Yes, yes I was.
21 THE COURT: Okay. Ma'am, had you filed a
22 Notice of Limited Scope so that anyone else would know?
23 Because I believe today is the first day that anyone
24 would have had any idea that you're the lawyer in this
25 case.
26 MS. BEKKEN: Okay.
27 THE COURT: It doesn't matter when you're
28 retained, you need to give public notice by filing a
 26

1 Notice of Limited Scope. Did you contact Mr. Schooler?

2 MS. BEKKEN: I'm saying --
3 THE COURT: Did you contact Mr. Schooler and
4 indicate that Mr. Caracter was being represented by you?
5 MS. BEKKEN: Okay.
6 THE COURT: No. Please answer the question. I
7 need to know.
8 MS. BEKKEN: I don't know if San Diego Bar
9 Association knew that Mr. Schooler was on the case at
10 all or not. I was handed --
11 THE COURT: I notice you are not answering my
12 question. Let me clarify. I'm sorry if I'm not being
13 articulate or clear. Did you contact Mr. Schooler and
14 advise him that you are representing Mr. Caracter?
15 MS. BEKKEN: No. I did not know Mr. Schooler
16 was representing Mr. Fenske until we were in the
17 courtroom today when he handed me his Substitution of
18 Attorney.
19 THE COURT: You didn't look in the file? The
20 Substitution of Attorney has previously been filed. You
21 didn't check the file to see if there was an attorney?
22 MS. BEKKEN: I did not check the file, no. He
23 did not --
24 THE COURT: Thank you.
25 MS. BEKKEN: -- as far as I know, serve a copy
26 of this on Mr. Caracter.
27 THE COURT: Thank you so much.
28 Any other questions for your client?
 27

1 MS. BEKKEN: No other questions.

2 THE COURT: All right. Mr. Schooler having no
3 further questions of Mr. Caracter, Ms. Bekken on behalf
4 of the respondent having no further evidence, do you
5 rest?
6 MS. BEKKEN: Okay.
7 THE COURT: Do you rest on behalf of your
8 client or did you have further evidence?
9 MS. BEKKEN: I feel, your Honor, that --
10 THE COURT: Ma'am, do you have further
11 evidence? I'm sorry. What I'm trying to do is run a
12 hearing here, and it's done by a step-by-step process to
13 make sure both sides have an opportunity to both call
14 witnesses --
15 MS. BEKKEN: No, your Honor.
16 THE COURT: -- present documents and present
17 any further evidence they wish to.
18 MS. BEKKEN: No.
19 THE COURT: Do you have any further evidence?
20 MS. BEKKEN: No, your Honor.
21 THE COURT: Thank you. Do you rest? Meaning
22 no further evidence, you rest, correct?
23 MS. BEKKEN: Correct.
24 THE COURT: Thank you so much. I'm going to
25 return Exhibit A. It was never offered into evidence so
26 I didn't look at that.
27 All right. Closing comments, Mr. Schooler?
28 MR. SCHOOLER: No, your Honor. Submit to the
 28

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 violence protection action is whether or not there's an

2 intimate relationship between the parties. Although it
3 may not be a continuing intimate relationship, there is
4 an intimate relationship. The parties did, in fact,
5 have sex together and that does create the intimate
6 relationship, so this is properly a Domestic Violence
7 Protection Act case.
8 In addition, based on the testimony of
9 Mr. Fenske, who I find credible, I find the existence --
10 that he has satisfied his burden of proof by a
11 preponderance of the evidence, that there is good cause
12 for issuance of a restraining order and I do find to
13 issue the restraining order. I will issue it as
14 follows; first of all, it doesn't need to be a lengthy
15 restraining order. This is not a lengthy relationship
16 and really they shouldn't have anything else to do with
17 each other. And Mr. Caracter has a restraining order
18 against Mr. Fenske, a civil restraining order, although
19 he could have sought domestic violence restraining order
20 also.
21 So in this matter, then, I believe 18 months
22 should be sufficient in order to ensure the two of you
23 move on, separate your lives, and have no further
24 contact. Today's date is July 26, 2016. Eighteen
25 months from today will be January 25th, of the year
26 2018. January 25th of the year 2018.
27 Deputy Bartlett, if you would give an MC-030
28 form to Ms. Bekken and Mr. Caracter. I do need to have
 30

1 that completed today in court now so I don't have to set

2 an order to show cause re firearms. Okay. It's just
3 the form that I advised you about, Mr. Caracter, that
4 you would be completing. The terms of the restraining
5 order will be that you're to -- under Item 6, the
6 personal conduct order under 6A, the stay-away order
7 under 7, 100 yards from the person, one of Mr. Fenske,
8 his home, his job his vehicle, his school if he attends
9 school, no exception.
10 It will include the move-out order from 3865
11 Albatross Street, San Diego, California 92103, Unit
12 Number 7. I'm not -- under Number 9 I'm not setting the
13 firearms hearing because I'm going to get the MC-030
14 form completed. There it is, tray number 12. You're
15 way ahead of me. Thank you so much. It's good to have
16 good court staff that's ahead of you.
17 Thank you, Deputy Bartlett.
18 Care of the animals. There are two dogs. One
19 is a dog named Droopy, a Cairn Terrier, C-a-i-r-n. The
20 other is a mixed Terrier named Patches. Droopy is
21 D-r-o-o-p-y, Patches is P-a-t-c-h-e-s. You're to stay
22 100 yards away from and have no contact with those
23 animals as per Number 11. There's no other orders under
24 the rest of the restraining order.
25 I'm not awarding attorney's fees. I have no
26 information that's an appropriate order. Under Item 22
27 we do need to get Mr. Caracter to get back to pick up
28 any remaining personal items and, specifically, we need
 31

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 THE COURT: Mr. Schooler, do you want to work

2 with Ms. Bekken to arrange that? You are going to
3 continue being in this case? I guess, you know,
4 Ms. Bekken is appearing for a limited scope here today.
5 You're a more general appearance. Will you work with
6 Mr. Caracter to make sure that the arrangements are
7 made? Law enforcement will be present to keep the peace
8 so that he can get, on two occasions, all the rest of
9 his furniture, make sure he gets Pace, his cat, and any
10 other property he needs to get out of the apartment.
11 MR. SCHOOLER: I will, your Honor.
12 Mr. Caracter has my cell phone number and is welcome to
13 contact me.
14 THE COURT: All right. And you will -- now,
15 Mr. Fenske, you don't need to be present at the time but
16 there has to be access to the apartment; do you
17 understand?
18 MR. FENSKE: I will provide access to the
19 apartment, your Honor.
20 THE COURT: Okay.
21 MR. FENSKE: And I will be present, your Honor.
22 THE COURT: Okay. Mr. Caracter, is that okay
23 for you to work with Mr. Schooler?
24 MR. CARACTER: That's fine.
25 THE COURT: All right. So under Item 22,
26 restrained party, Nathan Caracter, may pick up his
27 personal -- the rest of his personal belongings from the
28 home of Steven Fenske on two occasions with law
 33

1 enforcement officers present to keep the peace. Once

2 you've made all your arrangements to get a small moving
3 truck there, get it into storage, how soon -- how long
4 do you need before you put all of this together? About
5 a month? I have to put a deadline on it.
6 MR. CARACTER: Sure. I don't have a job or a
7 place to live so it's very difficult to say when those
8 things will fall into place.
9 THE COURT: Well, I need to set a deadline.
10 Today is the 26th of July. Can I set it on or before
11 September 1st, make sure you get it done in the month of
12 August?
13 MR. CARACTER: No, I don't think that's enough
14 time. Assuming I find a job in two weeks, that still is
15 another two weeks before I get one paycheck, which isn't
16 enough to secure an apartment, first month's rent. No,
17 I don't think it is enough time.
18 THE COURT: Mr. Schooler, you have a
19 suggestion?
20 MR. SCHOOLER: Yes, your Honor. My suggestion
21 is that Mr. Fenske would be willing to move his property
22 into a storage unit and pay for it for a month to allow
23 Mr. Caracter to have his property moved and stored for
24 him.
25 THE COURT: Okay. And he would absorb the cost
26 of the move?
27 MR. SCHOOLER: Yes, he would.
28 THE COURT: Sounds like we need two months in
 34

1 storage, not one month.

2 MR. SCHOOLER: My client, in thought, doesn't
3 want to be liable for anything that might be broken and
4 feels that that might be an ongoing problem.
5 THE COURT: I understand. That's why a month
6 is about right. How about middle of September, then, at
7 the outside. That would be September 16th at the
8 outside. You are going to have to make arrangements,
9 Mr. Caracter.
10 MR. CARACTER: Of course. I'm just trying to
11 make realistic arrangements.
12 THE COURT: No, and I appreciate that. The
13 Court doesn't want to have orders that aren't realistic,
14 but at the same time it is your responsibility, it is
15 your property, you need to get it, you need to move on,
16 the two of you need to have no further contact
17 whatsoever according to the order.
18 So two times. I will set September 16th as the
19 deadline. You are to complete both occasions, remove
20 the rest of your property, by September 16th. If you
21 don't, you run the risk that Mr. Fenske will simply have
22 it removed. Okay?
23 MR. CARACTER: Understood.
24 MS. BEKKEN: Can I ask one clarification?
25 THE COURT: Yes, ma'am.
26 MS. BEKKEN: On these two occasions, if he can
27 remove his cat first does that count as one occasion?
28 THE COURT: That would be one occasion, yes.
 35

1 He should be able to go in and get Pace and anything

2 else that's small and moveable, then the furniture will
3 need to be arranged as an actual move. But if there's
4 anything else small and removable, suitcase, duffle bag
5 kind of items, that should get done fairly quickly. I
6 would expect he would like to go get his cat. He
7 mentioned it repeatedly in the ex parte and I want to
8 make sure that that's not ignored.
9 So does that answer your question?
10 MS. BEKKEN: All right.
11 THE COURT: Okay. All right. Anything
12 further?
13 Now, Deputy Hogan, we have the restraining
14 order.
15 Mr. Schooler, was there anything else, any
16 other conditions you were seeking that I didn't address?
17 MR. FENSKE: No, your Honor. You addressed
18 everything.
19 THE COURT: Anything else, Ms. Bekken?
20 MS. BEKKEN: No.
21 THE COURT: Deputy Hogan, anything further?
22 Let me clarify. Under Item 10, Mr. Fenske, you do have
23 the authority to record any communications made -- any
24 communication that violates this order.
25 MR. FENSKE: Yes, your Honor.
26 THE COURT: So if you're contacted by a way of
27 communication that violates this order. Now,
28 Mr. Caracter is allowed to contact you about moving in.
 36

1 It is preferred that he works with Mr. Schooler, but he

2 can contact you also. It sounds like it's much more
3 efficient to contact Mr. Schooler, though, because he
4 will make sure it gets done.
5 Right, Mr. Schooler?
6 MR. SCHOOLER: Yes, your Honor.
7 MR. FENSKE: May I ask that he only contact
8 Mr. Schooler?
9 THE COURT: Well, Mr. Schooler, will you be
10 available?
11 MR. SCHOOLER: I'm available.
12 THE COURT: Under the move-out orders under
13 Item 22 I will indicate that Mr. Caracter is only to
14 contact Mr. Schooler relating to setting up the two
15 occasions for the move out.
16 MR. SCHOOLER: Thank you, your Honor.
17 THE COURT: Please have a seat in the
18 audience -- actually, you have to wait outside. Deputy
19 Bartlett's going to close the courtroom.
20 Please wait for your copy of the restraining
21 order, Mr. Fenske. Once you get a copy of the
22 restraining order, Mr. Fenske, hang on to it, make
23 copies of it, keep it in your home, keep it in your car,
24 keep it at your work. If anything happens that you feel
25 is a violation of the restraining order and you feel the
26 need to contact law enforcement they will need to see a
27 copy of the restraining order. They will know one is in
28 the system but they will not know the exact terms. Do
 37

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.
16
17
18
19 ______________________________
KIRA L. ABERLE
20 CSR No. 12456
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