Melissa G. v. Raymond M. ( 2018 )

Filed 9/20/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
MELISSA G., B284031
(Los Angeles County
Respondent, Super. Ct. No. BF044497)
v.
RAYMOND M.,
Appellant.
Appeal from an order of the Superior Court of Los
Angeles County, Richard J. Burdge, Jr., Judge. Reversed
and remanded.
Covington & Burling, Kathryn E. Cahoy, Helen
Hwang; Family Violence Appellate Project, Shuray Ghorishi,
Erin C. Smith, Nancy K.D. Lemon, Cory D. Hernandez, for
Appellant.
No appearance for Respondent.
__________________________
Appellant Raymond M. (father) appeals from two
domestic violence restraining orders granted under the
Domestic Violence Prevention Act (DVPA) (Fam. Code,
§ 6200 et seq.)1 Following a single evidentiary hearing on
separate requests filed by father and respondent Melissa G.
(mother), the court granted both requests. Father contends
reversal is required because section 6305 requires a court to
make detailed factual findings before issuing mutual
restraining orders, and the court did not make the requisite
factual findings. Father further contends there is
insufficient evidence to support a factual finding that he was
the primary aggressor and not acting in self-defense, and he
seeks an unqualified reversal of the order restraining him
from contacting mother, rather than a reversal that remands
the case for factual findings. Mother did not file a
respondent’s brief.2
We agree with father that the court erred by not
making the factual findings required under section 6305.
We disagree, however, with father’s insufficient evidence
argument, and so we reverse and remand.
1Statutory references are to the Family Code unless
otherwise indicated.
2 When a respondent fails to file a brief, “the court may
decide the appeal on the record, the opening brief, and any
oral argument by the appellant.” (Cal. Rules of Court, rule
8.220(a)(2).)
2
FACTUAL AND PROCEDURAL BACKGROUND
Summary of relevant facts
In the filings before the trial court, it was undisputed
that mother had primary physical custody of C.G. (the son),
who was born in 2010. Father previously obtained a three-
year restraining order against mother in 2010, which he did
not seek to renew when it expired in 2013. On January 18,
2017, the court ordered weekly Saturday visits for father.
The visits served as a flashpoint for flaring tensions between
mother and father. Because each party offered statements
supporting different versions of events, we review key dates
and summarize the main points raised in statements
presented to the trial court.
1. January 21, 2017
According to father, when mother brought the son for
the first visit following the court’s January 18, 2017 order,
the son’s pants and shirt were sewn together in such a way
that he could not use the bathroom. When father separated
the clothing, a tape recorder fell out, and father noticed
small cuts in the son’s skin around his waist in
approximately the same area the clothes had been sewn
together. When father returned the son to mother at the end
of the visit, mother accused father of stealing the tape
recorder and hit father with her fist multiple times, leaving
3
marks on his cheek and near his eye. Father claimed
mother also threw cake in his face and on his car. Father
attached a photo depicting his injuries. He stated he was
attaching a police report filed after the incident, but the
exhibit does not appear in our record.
Mother’s statements attached to her restraining order
request refer to a number of documents, but the referenced
documents do not appear in our record. Mother claimed she
had photos proving that the son’s shirt was not sewn into his
pants, and that she filed a police report for theft at 7:40 p.m.
on January 21, 2017. She claimed father’s report was for
8:00 p.m. on the same date, but then asked rhetorically “why
is [father’s] report dated for the day after?” In the same
paragraph, making an apparent reference to father’s claim
that mother attacked him, mother stated, “And he has these
magical new bruises. I have video evidence of him
assaulting me in front of my son, the people in the video
clear as day say he was the one doing the assaulting,
including an employee of the station.” Father denied
assaulting mother.
2. February 4, 20173
On February 4, 2017, mother’s friend brought the son
3 Visits did not take place on January 28, 2017, or
February 18, 2017. The parties dispute the reasons why the
visits did not occur, but the details are not relevant to the
current appeal. There was also a dispute about how father
4
to the custody exchange and was videotaping events on her
phone. According to father, mother’s friend pushed her
phone close to his face and called him a racial epithet. He
tried to leave with the son, but saw mother and a man
waiting outside, so he returned to the station, where
mother’s friend spit on him, and he knocked the phone out of
her hand. Mother’s declaration denied father’s version of the
events and referenced portions of a video submitted at an
earlier proceeding, but it is not in our record on appeal.
3. March 4, 2017
On March 4, 2017, mother was not at the police station
where the exchange was supposed to take place, so father
went to mother’s home, where he claims she physically
assaulted him. According to father, mother was not home
when he arrived with police. After the police left, he saw
mother and the son with a group of people, but when he
approached them, mother told the son to run to his
grandmother’s home. Mother then grabbed father’s arm, bit
him, and began to punch and scratch his face, leaving teeth
marks and other visible marks that were documented by
police photographs. Father filed a police report on the same
day. The report indicates it was prepared on March 4, 2017
returned the son to mother at the end of a visit on February
25, 2017, but the details are not relevant to the current
appeal. In addition, no visits have taken place after
February 25, 2017.
5
at 7:50 p.m., concerning an incident that occurred on the
same day at 2:30 p.m. Father also attached a printout from
a messaging program called “Talking Parents,” showing a
message on March 10, 2017 around 7:00 p.m. from mother to
father stating “did it hurt when you bit yourself?”
Mother presented a very different version of the events
of March 4, 2017. According to mother, she notified father
through Talking Parents that she was canceling the son’s
visit because of concerns with father’s behavior. She was at
home when father and a female police officer arrived at
around 1:10 p.m. She called 911 and spoke with a sergeant,
who later arrived at the home and gave mother a business
card. Mother attached the sergeant’s business card, which
stated “child custody dispute; questions regarding R/O;
advised on premises.” The card also gave a time and date of
March 4, 2017 at 2:30 p.m. Mother noted that father was
claiming she attacked him at the same time the business
card shows the sergeant was present. She denied biting or
attacking father, stating the bite mark appeared self-
inflicted and that she “would never do something so
disgusting, especially to someone who has Hepatitis, despite
his attempts to slander my name.” Mother claimed father
“has a long history of claiming someone is hurting him after
he has already done the assaulting on someone else.”
4. Blocked calls to mother’s phone
According to mother, on the evening of March 13, 2017,
6
she received over 350 missed calls from a blocked number,
including a large number of voicemails from either father or
a woman using a voice changer. She claimed that by April
10, 2017, she had received over 2,000 blocked calls. Father
denied contacting mother by any means other than Talking
Parents, and denied instructing anyone else to call, text, or
e-mail mother on his behalf.
Requests for restraining orders
On March 8, 2017, father filed a request for a domestic
violence restraining order against mother, and asked the
court to award him sole legal and physical custody of the
son. Father attached a declaration offered in lieu of personal
testimony. Father also filed an additional declaration in
response to a request for order filed by mother. Mother’s
request for order is not part of the record on appeal, but
according to father’s declaration, mother filed a request
asking for father’s visits with the son to be supervised.
On May 4, 2017, mother filed her own request for a
restraining order against father and a request to curtail
father’s visits. Attached to mother’s requests were 12 pages
of additional details and several exhibits. Father filed a
response to mother’s restraining order request on May 23,
2017.
7
Hearing
The trial court considered both parties’ requests for
restraining orders at the same hearing on May 23, 2017.
The judge was familiar with the parties and its earlier
January 2017 order granting father visitation. Mother
represented herself, and father appeared with counsel.
The court proceeded largely based upon the
declarations of the parties, after the parties swore to their
truth, and took only minimal additional testimony from
mother. Mother testified that she could identify father’s
voice along with that of an unknown woman on some of the
allegedly harassing voicemail messages mother received.
The court and the parties discussed the evidence and their
views about the challenges and conflicts in custody
exchanges. Mother acknowledged she did not have
witnesses to support her version of events, but referencing
the March 4, 2017 events, she argued “There’s police present
at the house from start to finish, and even if a restraining
order is granted, I wanted to, at least, be semi both ways.”
Father’s counsel argued there was no evidence to support a
mutual restraining order, stating “the court has to find that
both parties acted as primary aggressors and neither party
has acted primarily in self defense.” Father’s counsel argued
mother’s version of events was not credible, while father had
credible evidence to support his request. The court
responded there was undisputed evidence that father
knocked the phone out of mother’s friend’s hand while the
8
child was present, which would support a restraining order.
The court indicated that because there were independent
acts of domestic violence, it did not have to analyze which
party was a primary aggressor. The court also
acknowledged that for the incidents where father had bite
and scratch marks, the evidence suggested father may not
even have been an aggressor at all.
Ultimately, the court announced it would issue two
restraining orders “to restrain each party from harassing or
following or stalking, or any of those things to the other
party, and I’m going to issue a restraining order against
communicating with the other party, except on Talking
Parents.” As the court explained, “in other words, I’m just
going to order these two people to leave each other alone.”
The court did not make any findings of fact regarding
whether mother or father acted as a primary aggressor or
was acting primarily in self-defense.
Father’s counsel also argued that father should be
awarded primary physical custody because mother was not
acting in the child’s best interests. The court declined to
shift primary physical custody, reasoning that the child had
only recently started visits with father. The remainder of
the hearing focused on logistical details of implementing the
legal and physical custody orders. Following the hearing,
the court issued a minute order together with two separate
orders on mandatory Judicial Council Form DV-130,
9
Restraining Order After Hearing (Order of Protection).4
DISCUSSION
Father contends the trial court erred when it
determined factual findings were not required under section
6305 where the restraining order requests involved separate
incidents. No published case has yet examined whether,
following a single hearing, a court may enter two restraining
orders that grant two separate applications to restrain
opposing parties without first making the factual findings
4 Section 6221, subdivision (c) states: “Any order
issued by a court to which this division applies shall be
issued on forms adopted by the Judicial Council of
California.” Mandatory Judicial Council Form DV-130,
entitled “Restraining Order After Hearing (Order of
Protection),” does not provide an option to fill out the
restrictions applying to both parties in a single form for a
mutual restraining order. (See Judicial Council Forms, form
DV-130, available at
http://www.courts.ca.gov/documents/dv130.pdf [as of Feb. 15,
2018].) Because the DV-130 form is merely a mechanism to
effectuate the trial court’s order at the hearing that
restrained both parties, the fact that the orders are issued on
separate forms does not affect our analysis of whether the
requirements of section 6305 apply. (See J. H. McKnight
Ranch, Inc. v. Franchise Tax Bd. (2003) 110 Cal.App.4th
978, 988 [declining to adopt statutory interpretation that
would “elevate form over function” in contravention of
legislative purpose].)
10
required under section 6305. Considering the language of
section 6305, its legislative history, and existing case law, we
agree with father that such findings are required regardless
of whether the two restraining order requests stem from a
single incident or separate incidents. We reject father’s
additional contention that there is no substantial evidence to
support a finding that he acted primarily as an aggressor.
Because the question of whether both parties acted primarily
as aggressors and neither acted primarily in self-defense is
best answered in the first instance by the trial court, we
remand for factual findings.
Standard of review
The question posed by father’s appeal is a matter of
statutory construction, and we apply a de novo standard of
review. (Isidora M. v. Silvino M. (2015) 239 Cal.App.4th 11,
16 (Isidora M.).)
Law governing restraining orders
Under the DVPA, a court may issue a restraining order
to prevent domestic violence or abuse if the party seeking
the order “shows, to the satisfaction of the court, reasonable
proof of a past act or acts of abuse.” (§§ 6300, 6220.) “Abuse”
includes intentionally or recklessly causing or attempting to
cause bodily injury to, attacking, striking, stalking,
threatening, harassing, making annoying telephone calls to,
11
or disturbing the peace of the other party. (§§ 6203, 6320.)
“California law regulates the issuance of mutual
restraining orders under the DVPA by subjecting them to
additional procedural requirements. (§ 6305.)” (Conness v.
Satram (2004) 122 Cal.App.4th 197, 200 (Conness).) A court
may not enter “a mutual order” restraining the parties from
further acts of abuse unless “(1) [b]oth parties personally
appear and each party presents written evidence of abuse or
domestic violence” using a mandatory Judicial Council form,
and “(2) [t]he court makes detailed findings of fact indicating
that both parties acted as a primary aggressor and that
neither party acted primarily in self-defense.” (§ 6305, subd.
(a)(2).)5 If the court enters a mutual order without making
5 The full text of section 6305 reads: “(a) The court
shall not issue a mutual order enjoining the parties from
specific acts of abuse described in Section 6320 unless both
of the following apply: [¶] (1) Both parties personally
appear and each party presents written evidence of abuse or
domestic violence in an application for relief using a
mandatory Judicial Council restraining order application
form. For purposes of this paragraph, written evidence of
abuse or domestic violence in a responsive pleading does not
satisfy the party’s obligation to present written evidence of
abuse or domestic violence. By July 1, 2016, the Judicial
Council shall modify forms as necessary to provide notice of
this information. [¶] (2) The court makes detailed findings
of fact indicating that both parties acted as a primary
aggressor and that neither party acted primarily in self-
defense. [¶] (b) For purposes of subdivision (a), in
determining if both parties acted primarily as aggressors,
12
the required factual findings, it acts in excess of its
jurisdiction and the order is voidable. (Monterroso v. Moran
(2006) 135 Cal.App.4th 732, 737–739 (Monterroso).) As used
in section 6305, the phrase “mutual order” may refer to a
single order restraining two opposing parties from engaging
in the acts of abuse described in section 6320 or two separate
orders which together accomplish the same result as a single
order. (§ 6305; but see Conness, supra, at pp. 202–204 [two
orders entered proximately in time but following separate
hearings on different days do not fall under the definition of
a mutual order].)
In determining whether both parties acted primarily as
aggressors, the court must consider the provisions set forth
in Penal Code section 836, subdivision (c)(3), “concerning
dominant aggressors.” (§ 6305, subd. (b).) Penal Code
section 836, subdivision (c) governs the conduct of peace
officers in connection with making arrests in response to
calls alleging violations of already issued restraining orders.
Subdivision (c)(3) addresses situations where the peace
officer encounters persons who are subject to previously
issued mutual restraining orders, directing that the officer
“make reasonable efforts to identify, and may arrest, the
dominant aggressor involved in the incident.” (Pen. Code,
the court shall consider the provisions concerning dominant
aggressors set forth in paragraph (3) of subdivision (c) of
Section 836 of the Penal Code.”
13
§ 836, subd. (c)(3).)6 A “dominant aggressor” is defined as
“the person determined to be the most significant, rather
than the first, aggressor,” and Penal Code section 836,
subdivision (c)(3) requires the officer to consider a number of
factors in identifying the dominant aggressor, including “(A)
the intent of the law to protect victims of domestic violence
from continuing abuse, (B) the threats creating fear of
physical injury, (C) the history of domestic violence between
the persons involved, and (D) whether either person involved
acted in self-defense.”
The legislative history of section 6305, its relationship
to the Violence Against Women Act of 1994 (VAWA) (42
6 Penal Code section 836, subdivision (c)(3) states: “In
situations where mutual protective orders have been issued
. . . liability for arrest under this subdivision applies only to
those persons who are reasonably believed to have been the
dominant aggressor. In those situations, prior to making an
arrest under this subdivision, the peace officer shall make
reasonable efforts to identify, and may arrest, the dominant
aggressor involved in the incident. The dominant aggressor
is the person determined to be the most significant, rather
than the first, aggressor. In identifying the dominant
aggressor, an officer shall consider (A) the intent of the law
to protect victims of domestic violence from continuing
abuse, (B) the threats creating fear of physical injury, (C) the
history of domestic violence between the persons involved,
and (D) whether either person involved acted in self-
defense.”
14
U.S.C. § 13981 et seq.),7 and the purpose of its factual
finding requirement were discussed at length in Isidora M.,
supra, 239 Cal.App.4th at pages 19–21. “As originally
enacted in 1993, former section 6305 provided: ‘The court
may not issue a mutual order enjoining the parties from
specific acts of abuse described in Section 6320 unless both
parties personally appear and each party presents written
evidence of abuse or domestic violence. In this case, written
evidence is not required if both parties agree that this
requirement does not apply.’ (Stats. 1993, ch. 219, § 154,
p. 1654.)” (Id. at p. 19.) In 1995, the statute was amended
to remove the waiver provision and to limit mutual
restraining orders to situations where a court found that
both parties had acted as primary aggressors and neither
party had acted primarily in self-defense. (Id. at p. 20.) The
California legislature enacted changes to bring California
law on domestic violence restraining orders into conformity
with federal requirements for grants and federal funding.
(Id. at pp. 19–20.) The Conness court explained that the
1995 amendment “help[ed] ensure that a mutual order is the
7 VAWA was part of the larger Violent Crime Control
and Law Enforcement Act of 1994 (Pub.L. No. 103–322
(Sept. 13, 1994) 108 Stat. 1796) and was previously codified
at 42 U.S.C. section 13981 et seq. After the U.S. Supreme
Court held Congress lacked constitutional authority to enact
certain portions of VAWA (United States v. Morrison (2000)
529 U.S. 598), Congress reauthorized, updated, and
recodified certain provisions. (See Pub.L. No. 113–4 (Mar. 7,
2013) 127 Stat. 56.)
15
product of the careful evaluation of a thorough record and
not simply the result of the moving party yielding to the
other party’s importunities or the court deciding that a
mutual order is an expedient response to joint claims of
abuse.” (Conness, supra, 122 Cal.App.4th at p. 204.) The
changes also ensured that mutual restraining orders issued
in California would be entitled to full faith and credit in
other states. (18 U.S.C. § 2265(c); Sen. Com. on Crim. Proc.,
Analysis of Sen. Bill No. 591 (1995-1996 Reg. Sess.) Apr. 4,
1995.)
In 2015, the Legislature added subdivision (b) directing
courts to consider the provisions of Penal Code section 836,
subdivision (c)(3), concerning dominant aggressors in
determining if both parties acted as primary aggressors.
(Isidora M., supra, 239 Cal.App.4th at p. 17, fn. 7.) In 2016,
the Legislature clarified that written evidence of abuse must
be submitted on an application for a restraining order, and
cannot be submitted solely as part of a responsive pleading.
(§ 6305, as amended by Stats. 2015, ch. 73, § 1; Sen. Jud.
Com., Analysis of Assem. Bill No. 536. (2015-2016 Reg.
Sess.) Jun. 9, 2015.)
The scenario presented in this case is different than
those at issue in prior published cases. The issues addressed
on appeal in Monterroso, J.J. v. M.F. (2014) 223 Cal.App.4th
908 (J.J.), and Isidora M., all arose when a trial court
entered a mutual restraining order after only one party had
filed a restraining order request. In Monterroso, the court
concluded that the lower court acted in excess of its
16
jurisdiction in issuing a mutual restraining order without
the requisite findings under section 6305. The appellant, a
victim of domestic violence, sought a restraining order
against her abusive husband. She appeared before the lower
court without counsel and agreed with the husband’s
attorney to make the restraining order mutual, even though
husband had not filed a request. (Monterroso, supra, 135
Cal.App.4th at pp. 735–736.) The trial court accepted the
parties’ stipulation to a mutual restraining order without
making any findings under section 6305. The appellate
court reversed, finding that “[w]hen a trial court issues such
an order in contravention of its statutory obligation to make
the required findings of fact, it acts in excess of its
jurisdiction.” (Id. at p. 736.) The court remanded the
matter, directing the trial court to rule upon the merits of
appellant’s request alone. (Id. at p. 739.) Presumably, the
court did not remand for consideration of a mutual order and
factual findings under section 6305 because the husband did
not initially seek a restraining order.
In J.J., a young child’s mother filed a request for a
restraining order against the father, but following an
evidentiary hearing on mother’s request, the trial court
issued a mutual restraining order against both parties,
finding that a single dispute over their son’s jacket led to
“‘mutual combat’” where both parties “acted with aggression,
which was interspersed with acts of defense.” (J.J., supra,
223 Cal.App.4th at p. 974.) The mother appealed, arguing
the requirements of section 6305 were not met and the
17
court’s issuance of a mutual restraining order without a
request from father violated her due process rights. Noting
evidence of a lengthy history of domestic violence with father
pushing and slapping mother and sending her threatening
text messages, the appellate court found there was no
substantial evidence to support a factual finding that
appellant was a primary aggressor during the incident or in
the relationship overall, and reversed only the portion of the
mutual restraining order enjoining mother from contacting
father. (Id. at pp. 975–976.)
In Isidora M., the appellant sought a restraining order
against her husband in 2014 based on alleged threats; at the
time the appellant filed for the order, she was herself
restrained by a criminal protective order protecting her
husband based upon incidents of domestic violence occurring
two years earlier. The trial court issued a five-year mutual
restraining order even though the husband had not filed a
separate request. In including the appellant in a mutual
order, the trial court reasoned that it need not make any
findings, but instead could rely on the appellant’s prior
criminal conviction as a substitute for findings. On appeal,
the Isidora M. court focused on the trial court’s authority “to
issue a mutual restraining order without a reciprocal request
by the responding party.” (Isidora M., supra, 239
Cal.App.4th at pp. 17–18.) Based upon the statutory
requirements of the DVPA, the legislative history of the 1995
amendment to section 6305, and procedural due process
considerations, the court determined that “[a] trial court
18
may issue a mutual domestic violence restraining order
under section 6305 only if both parties have filed requests
for such relief, so as to give the requisite notice to the
opposing party.” (Id. at p. 14.) Isidora M. also found, “the
trial court erred in substituting the bare fact of Isidora’s
guilty plea to a charge of domestic violence for detailed
findings of fact indicating that she acted primarily as an
aggressor and not primarily in self-defense as required by
section 6305.” (Id. at p. 23.) The appellate court reversed
the mutual restraining order as to the appellant only, and
affirmed it in all other respects. (Ibid.)
In the case before us, both parties submitted written
requests for restraining orders and both requests were part
of the same hearing. Mother argued at the hearing, “even if
a restraining order is granted, I wanted to, at least, be semi
both ways.” When the court began questioning mother about
the basis for her restraining order request, father’s counsel
interjected, stating “there is no evidence here to issue a
mutual restraining order. In order for the court to issue
mutual restraining orders, the court has to find that both
parties acted as primary aggressors and neither party has
acted primarily in self defense. That isn’t what is happening
here.” The court responded by noting that there was
undisputed evidence of violence committed in front of the
child, and continued, “I understand what you’re saying,
however, if there are independent acts of domestic violence,
you don’t have to -- I mean, you find one act here, and one
19
act here, it’s not where there’s one incident, and one person
is the primary aggressor, and the other one is not.”
The trial court erred when it interpreted section 6305
as not requiring factual findings when two parties seek
restraining orders against each other based on separate
incidents. The language of section 6305, its reference to
Penal Code section 836, subdivision (c)(3), the legislative
history, and the case law all support a requirement for
express findings, regardless of whether the two requests
arise from the same incident or different incidents. Section
6305 states, in relevant part, that a “court shall not issue a
mutual order . . . unless . . . [t]he court makes detailed
findings of fact that both parties acted as a primary
aggressor and that neither party acted primarily in self-
defense.” Nothing in the language limits the requirement to
orders arising from a single incident.8 By separating out for
analysis each party’s claim of abuse against the other, and
8 Penal Code section 836, subdivision (c)(3) does
provide that the responding officer identify “the dominant
aggressor involved in the incident.” We do not read this
language as limiting a court’s obligation, under section 6305,
to making findings only if it issues mutual restraining orders
arising out of the same incident. Rather, the use of the word
incident in the relevant Penal Code section simply
acknowledges that the section addresses situations where
peace officers are responding to an incident and making
decisions about arrests in connection with that incident. In
contrast, the court’s role in issuing restraining orders under
the DVPA is not by definition limited to a single incident.
20
issuing restraining orders against both parties as if incidents
occurring at different times must be wholly unrelated, a
court does not give full effect to the statutory directive that it
“shall consider” both “the history of domestic violence
between the persons involved” and “protect[ing] victims of
domestic violence from continuing abuse.” (§ 6305, subd.
(b); Pen. Code, § 836, subd. (c)(3)(A) & (D).)
Permitting courts to avoid making the required
findings in circumstances where each party’s allegations of
abuse arise from a different incident risks undermining
central policies behind the fact finding requirement added to
section 6305 in 1995: ensuring courts do not issue mutual
orders as a matter of expediency, or simply because an
abused party, in order to get their own protection, yields to
their abuser’s request for a mutual order. (See Isidora M.,
supra, 239 Cal.App.4th at pp. 19–21; Conness, supra, 122
Cal.App.4th at p. 204.)
The cases also lend support to our conclusion that the
requirement to make detailed findings in section 6305
applies regardless of whether the orders arise from separate
incidents. In Isidora M., the court assumed such a
requirement without explicitly addressing the question. In
that case, the ex-wife was alleged to have engaged in acts of
abuse in May 2012, and the ex-husband was alleged to have
engaged in acts of abuse almost two years later, in February
2014. (Isidora M., supra, 239 Cal.App.4th at p. 14.) The
Isidora court found section 6305 applicable, and reversed the
trial court’s entry of a mutual order because of its failure to
21
make the detailed findings. (Id. at pp. 18–19.) The court’s
factual analysis in J.J. also underscores how the
requirement of detailed factual findings helps ensure that
the defensive act of someone who is a victim of domestic
abuse is not considered in isolation from its larger context
and erroneously seen as an act of aggression for which the
person should be restrained. (See J.J., supra, 223
Cal.App.4th at p. 975 [“The single act of pushing M.F. away
does not support a finding that she acted primarily as
aggressor, especially in view of M.F.’s history of abuse
against her”].)
The two orders issued by the court against mother and
father on May 23, 2017, following a combined evidentiary
hearing, constitute a mutual order triggering the
requirements of section 6305.9 The court erred when it
issued the mutual order without making the findings
required under section 6305, i.e., that both parties acted
primarily as aggressors and that neither party acted
primarily in self-defense.10
9 The court stated, “I’m going to restrain each party
from harassing or following or stalking, or any of those
things to the other party, and I’m going to issue a
restraining order against communicating with the other
party . . . . [¶] . . . [¶] So, I’m going to eliminate their contact
. . . . I’m going to order each person to stay 100 yards away
from the other person . . . .”
10Father asks the court to rule that section 6305
applies any time two parties seek restraining orders against
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Substantial evidence to support a finding that father
was a primary aggressor
In his appeal, father seeks to reverse only the
restraining order entered against him, leaving the
restraining order against mother in place. But if the
infirmity in the court’s ruling was a failure to make factual
findings, and there is evidence upon which the court might
base such a finding, then the validity of both restraining
orders is in doubt. Having determined that the court’s
failure to make required findings before issuing mutual
restraining orders was based upon an error of law, we now
consider whether the proper remedy is to only reverse the
restraining order against father, or to remand the matter for
the required factual findings.
In determining whether substantial evidence exists to
support a court’s order, “‘we may not confine our
each other, and those requests for restraining orders are
pending at the same time, even if not addressed at the same
hearing. Our holding today is intentionally narrow, and is
necessarily limited to the procedural posture of the case
before us: where competing requests for restraining orders
come before the court at the same hearing. We decline to
address procedural scenarios not present in this case. (See
Conness, supra, 122 Cal.App.4th at pp. 202–203 [discussing
the challenges of non-simultaneous restraining orders and
the application of section 6305 to restraining order requests
that are not pending at the same time].)
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consideration to isolated bits of evidence, but must view the
whole record in a light most favorable to the judgment,
resolving all evidentiary conflicts and drawing all reasonable
inferences in favor of the decision of the trial court.
[Citation.] We may not substitute our view of the correct
findings for those of the trial court; rather, we must accept
any reasonable interpretation of the evidence which supports
the trial court’s decision. However, we may not defer to that
decision entirely. “[I]f the word ‘substantial’ means anything
at all, it clearly implies that such evidence must be of
ponderable legal significance. Obviously the word cannot be
deemed synonymous with ‘any’ evidence. It must be
reasonable in nature, credible, and of solid value; it must
actually be ‘substantial’ proof of the essentials which the law
requires in a particular case.” [Citations.]’ [Citation.]”
(DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329,
336.)
Father’s argument on appeal is limited to the evidence
and findings necessary for a mutual restraining order under
section 6305; he does not argue there was inadequate
evidence to support the court’s decision to issue a restraining
order against him. The record contains substantial evidence
to support a finding that father was acting as a primary
aggressor and not in self-defense.
The evidence that father acted as a primary aggressor
in at least one incident is stronger than that at issue in J.J.,
where the appellate court found no substantial evidence to
support a finding that mother acted as a primary aggressor,
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given the evidence of a long history of father perpetrating
physical violence against mother, as compared to a single act
of mother pushing father away when he approached mother
and their son during a confrontation about the son’s jacket.
(J.J., supra, 223 Cal.App.4th at pp. 975-976.) The appellate
court in J.J. reversed only the order restraining mother and
left the order restraining father in place, rather than
remanding for factual findings. Here, we express no view on
whether father should be found to be a primary aggressor
and not acting primarily in self-defense. Our inquiry is
limited to whether there is substantial evidence to support
such a finding, and we find sufficient evidence in the record
to warrant a remand for the court to make its own factual
determination. Among the evidence that might support a
finding is evidence of numerous phone calls to mother from a
blocked number and evidence of police involvement in the
visitation exchange on March 4, 2017. If the trial court
determines there is not enough evidence to support the
required factual findings justifying a mutual restraining
order, it must determine which party’s request for
restraining order should be granted and which should be
denied.
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DISPOSITION
The court’s mutual restraining orders are reversed,
and the matter is remanded for factual findings and
reconsideration of the restraining order requests based on
those findings. The parties are to bear their own costs on
appeal.
MOOR, J.
We concur:
BAKER, Acting P.J.
KIN, J.
 Judge of the Los Angeles Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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