S.S. v. J.D. CA3 ( 2022 )

Filed 5/27/22 S.S. v. J.D. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
S.S., C094418
Respondent, (Super. Ct. No.
STAFLDVWO20200000751)
v.
J.D.,
Appellant.
Appellant J.D. appeals from the trial court’s order renewing a domestic violence
restraining order (DVRO) issued against him to protect his former girlfriend S.S. He
contends the trial court erred in (1) finding a single act of abuse was sufficient to justify
the DVRO, (2) reissuing the DVRO despite a substantial change in circumstances, and
(3) refusing to modify the DVRO. Finding no error, we will affirm the trial court’s order.
1
BACKGROUND
On February 13, 2020, S.S. filed her original request for a DVRO. The request
sought protection for her and her adult daughter A.W. and asked that J.D. be ordered to
move out of the home they shared.
The DVRO request alleged that on January 17, 2020, J.D. yelled at S.S. and
blocked her bedroom door so she could not leave. When he left the room, S.S. attempted
to close her door, but J.D. kicked the door open and pushed S.S. into the closet. J.D.
yelled at S.S., calling her names and demanding her phone. She refused but J.D. took the
phone and said she could have it back when she paid for it. S.S. alleged J.D. had
threatened her job and her daughter. According to S.S., J.D. said she could not make him
leave.
The request further alleged that on February 11, 2020, J.D. berated her when she
arrived home. Rather than argue with him, S.S. tried to leave in her car. J.D. followed
her to the car, his anger escalating. He attempted to open her car door and demanded she
give him her phone. S.S. called out for someone to contact the police, and J.D. retorted
that no one was going to help her. Noticing a passing car, S.S. attempted to get the
attention of the motorist, and in so doing, got out of her car. J.D. reached into her car and
took her phone. S.S. asked J.D. to return her phone, but he refused, stating she could
have it back when she paid for it. S.S. left and contacted the police.
Following a hearing that included testimony from S.S. and J.D., the trial court
granted S.S.’s request for a DVRO on March 5, 2020. The order required J.D. to (1)
immediately move out of the shared property, (2) stay at least 100 yards away from S.S.,
(3) not contact S.S., and (4) not harass, destroy personal property of, or disturb the peace
of S.S. The order was set to expire March 5, 2021.
On February 17, 2021, S.S. filed a request to renew the DVRO against J.D. The
renewal request attached police reports and a response to a public records request. The
trial court extended protective coverage until a renewal hearing scheduled for May 19,
2
2021. At the May hearing, S.S. testified that J.D. had violated the DVRO six times,
including going to S.S.’s place of employment. S.S. presented Gmail and Facebook
messages sent to her by J.D. S.S. was still afraid of J.D. and had installed video
surveillance at her home.
The trial court noted that J.D. had an outstanding warrant for contempt of court
arising from an incident on April 21, 2020, and that the district attorney had filed a
complaint. In light of this, the trial court advised J.D. of his Fifth Amendment right not
to testify and possibly incriminate himself. J.D. chose to testify. He explained that he
could not have been at S.S.’s home at the complained-of time because it conflicted with
his work schedule. He also denied messaging S.S. on Facebook or ever going to her
work. J.D. admitted e-mailing S.S. in an attempt to arrange a time to pick up his
belongings from her home and indicated that their dispute over those belongings had
ended up in small claims court.
According to the trial court, the security personnel at S.S.’s workplace said they
had J.D. on video. Based on S.S.’s testimony, it found by a preponderance of the
evidence that she continues to entertain a reasonable apprehension of future abuse. The
trial court granted the renewal request, issuing a three year DVRO.
APPLICABLE LAW AND STANDARD OF REVIEW
“[Family Code] [s]ection 6345, subdivision (a) provides that a trial court may
renew a restraining order ‘upon the request of a party, either for five years or
permanently, without a showing of any further abuse since the issuance of the original
order, subject to termination or modification by further order of the court either on
written stipulation filed with the court or on the motion of a party. . . .’ When contested,
a request to renew a restraining order should not be granted pursuant to section 6345
simply because the requesting party has ‘a subjective fear the party to be restrained will
commit abusive acts in the future.’ ” (Rybolt v. Riley (2018) 20 Cal.App.5th 864, 873-
874 (Rybolt).) “However, an imminent and present danger of abuse is not required.”
3
(Lister v. Bowen (2013) 215 Cal.App.4th 319, 332, citing Ritchie v. Konrad (2004)
115 Cal.App.4th 1275, 1288.) Rather, renewal of a DVRO requires a finding, by a
preponderance of the evidence, that there is a “ ‘reasonable apprehension’ of future
abuse.” (Ritchie, at pp. 1279, 1283, 1290; accord, Lister, at p. 333.) “[T]his does not
mean the court must find it is more likely than not future abuse will occur if the
protective order is not renewed. It only means the evidence demonstrates it is more
probable than not there is a sufficient risk of future abuse to find the protected party’s
apprehension is genuine and reasonable.” (Ritchie, at p. 1290; accord Lister, at p. 333.)
“ ‘We review the trial court’s [DVRO] ruling under an abuse of discretion
standard, to determine “ ‘whether the trial court exceeded the bounds of reason. When
two or more inferences can reasonably be deduced from the facts, the reviewing court has
no authority to substitute its decision for that of the trial court.’ ” ’ [Citation.]” (Rybolt,
supra, 20 Cal.App.5th at pp. 874-875.) “ ‘However, the question of “whether a trial court
applied the correct legal standard to an issue in exercising its discretion is a question of
law [citation] requiring de novo review.” [Citation.]’ [Citation].” (Ashby v. Ashby
(2021) 68 Cal.App.5th 491, 509 (Ashby).)
“To the extent that we are called upon to review the trial court’s factual findings,
we apply a substantial evidence standard of review.” (Loeffler v. Medina (2009)
174 Cal.App.4th 1495, 1505 [applying substantial evidence standard on appeal from
denial of application to terminate DVRO issued under Fam. Code, § 6345].)
Accordingly, “[w]e resolve all factual conflicts and questions of credibility in favor of the
prevailing party and indulge in all legitimate and reasonable inferences to uphold the
finding of the trial court if it is supported by substantial evidence which is reasonable,
credible and of solid value.” (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.)
Appellant maintains the burden of affirmatively demonstrating trial court error. (Ashby,
supra, 68 Cal.App.5th at p. 509.)
4
DISCUSSION
I
J.D. contends the trial court erred in finding that a single act of abuse was
sufficient to justify the DVRO. He claims the only evidence relied upon by the trial court
in support the renewal of the DVRO was a single, unreviewed e-mail between the parties.
Not so.
S.S. provided police reports with her renewal request documenting her complaints
of alleged violations of the DVRO. S.S. brought those reports, along with copies of
Gmail and Facebook messages, to the hearing, and the trial court reviewed them. S.S.
then testified at the renewal hearing regarding the violations and her continuing fear of
J.D. The testimony of a single witness may constitute substantial evidence supporting the
renewal of a DVRO (Ashby, supra, 68 Cal.App.5th at p. 517), and the trial court
expressly relied on S.S.’s testimony in granting her request.
J.D. challenges the trial court’s comment at the hearing that S.S. did not have to
affirmatively prove violation of the existing DVRO. But that is an accurate statement of
the law. (See Rybolt, supra, 20 Cal.App.5th at pp. 875-876 [while evidence of restraining
order violations is relevant to a renewal request, such evidence is not required for
renewal]; accord Ritchie, supra, 115 Cal.App.4th at p. 1284.)
II
J.D. next argues the trial court erred in reissuing the DVRO despite a substantial
change in circumstances. He claims he moved out of S.S.’s residence and there have
been no further verbal altercations between them.
There is no dispute that S.S. and J.D. no longer live together. Part of the relief
originally granted to S.S. was a move out order requiring J.D. to leave their shared
residence. Nevertheless, in addition to the reports documenting appellant’s violations of
the DVRO, J.D.’s own testimony established continuing acrimony between S.S. and J.D.
J.D. has not established that the trial court abused its discretion. (See Ashby, supra,
5
68 Cal.App.5th at p. 517 [noncompliance with DVRO supported claim of feared future
abuse given continuing hostility of ex].)
III
J.D. further contends the trial court erred in refusing to modify the DVRO. He
does not explain, however, what modification was sought or why the trial court should
have granted it. As a result, his contention fails. (See In re S.C. (2006) 138 Cal.App.4th
396, 408 [appellant must affirmatively demonstrate error through “meaningful legal
analysis supported by citations to authority and citations to facts in the record that support
the claim of error”].)
DISPOSITION
The order renewing the domestic violence restraining order is affirmed.
/S/
MAURO, J.
We concur:
/S/
BLEASE, Acting P. J.
/S/
HULL, J.
6