Lugo v. Corona ( 2019 )

Filed 5/28/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
ADALI LUGO, B288730
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 17PDRO00492)
v.
MOISES CORONA,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Timothy Martella, Commissioner. Reversed
and remanded.
Sidley Austin, Jean-Claude André, Katelyn N. Rowe; Los
Angeles Law Center for Law and Justice and Sarah Reisman for
Plaintiff and Appellant.
California Women’s Law Center and Amy C. Poyer; Gibson
Dunn & Crutcher, Theane Evangelis, Michael Holecek and
Daniel Osher as Amicus Curiae on behalf of Plaintiff and
Appellant.
No appearance for Defendant and Respondent.
INTRODUCTION
Appellant Adali Lugo filed a request for a domestic violence
restraining order (DVRO) against her husband, Moises Corona,
under the Domestic Violence Prevention Act (DVPA) (Family
Code, section 6200 et seq.1). The family court denied her request
on the basis that a criminal protective order was already in place.
Lugo asserts that the family court erred, because a criminal
protective order does not bar the entry of a DVRO. We agree and
reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On August 23, 2017, Lugo filed a request for a DVRO in
family court. In a declaration attached to her request, Lugo
stated that on August 13, 2017, she and Corona engaged in a
physical altercation in which Lugo slapped Corona, and Corona
grabbed Lugo by the neck and pushed her down on a sofa. Lugo
said that when Corona let go of her, he said that if Lugo “dare[d]
to do something against him” he would strangle and kill her; he
repeated the threat “a couple of times.” The couple’s 10-year-old
child heard the altercation from a nearby bedroom; their 6-year-
old child in the same bedroom remained asleep.
A criminal protective order dated August 16, 2017 stated
that Corona was restrained from all contact with Lugo, and could
not come within 100 yards of her. It also included a stay-away
order from the family home.2
1Allfurther statutory references are to the Family Code
unless otherwise indicated. Lugo is represented on appeal by
counsel and supported by an amicus brief by the California
Women’s Law Center. Corona did not file a respondent’s brief or
make any other appearance on appeal.
2Lugo asked this court to take judicial notice of a criminal
court case information statement noting that on August 16, 2017,
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Lugo’s DVRO request asked that her mother and 19- and
17-year-old sons be protected, and that Corona be ordered to stay
away from the younger children’s school and to move out of the
family home. Lugo also requested control of a mobile phone, and
a vehicle that was in Corona’s name, but Lugo stated was given
to her by her mother. She checked the box on the form stating, “I
do not have a child custody order and I want one,” and filled out
an additional form requesting a child custody and visitation
order.
The family court issued a temporary restraining order on
August 23, 2017. In the form order, however, each of the
requested protections was checked as “denied until the hearing.”
The court set a hearing for September 13. 2017.
At the hearing, the court said, “It looks like you worked
most of this out downstairs.” The court discussed the parties’
custody agreement, including that the “[e]xhange is going to be in
front of mother’s residence with the paternal half [sic] being
intermediary.” The court noted the existence of the criminal
protective order and asked Lugo, “[W]hy are you seeking a
protective order from me?” Lugo responded, “Someone told me I
had to get an order through the family court.” The court
reviewed the criminal protective order and stated, “I don’t see
any reason for me to make this order because you have that
criminal protective order that takes priority over anything I do
anyway.” The court noted that the criminal protective order
barred all contact, and said, “You might want to take this
Corona pled no contest to Penal Code section 273.5, subd. (a),
willful infliction of corporal injury upon a spouse. We granted the
request.
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agreement . . . about the visitation back to the criminal court and
ask if you can have peaceful contact to facilitate the visitation.”
Corona was confused about the origin of the criminal
protective order, and the court explained that the criminal “court
in Alhambra made that order . . . for three years. I am not going
to make another order on that mitigating the same thing.” The
court said that if the parties wanted to change the no-contact
aspect of that order, “you probably need to go back to Alhambra
and show a copy of the agreement for visitation and see if they
will change that so you can have some kind of communication.”
Lugo asked if the family court could reduce the protective order
from three years to one year, and the court said, “The only person
that can change that order . . . out of [the] Alhambra court is the
Alhambra judge. I can’t change it.” The court continued, “So I
am denying the restraining order due to the fact that you have a
criminal protective order that was for three years. I will sign the
agreement on visitation.” The court noted that the family court
case would remain active to address any custody issues, and
stated, “But the only way you can change that other order is to go
back to Alhambra.”
Lugo timely appealed.
DISCUSSION
“On review of an order granting or denying a protective
order under the DVPA, we consider whether the trial court
abused its discretion.” (In re Marriage of Fregoso and Hernandez
(2016) 5 Cal.App.5th 698, 702.) “Judicial discretion to grant or
deny an application for a protective order is not unfettered. The
scope of discretion always resides in the particular law being
applied by the court, i.e., in the ‘legal principles governing the
subject of [the] action. . . .’” (Nakamura v. Parker (2007) 156
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Cal. App. 4th 327, 337.) Thus, “we consider whether the trial
court’s exercise of discretion is consistent with the statute’s
intended purpose.” (People v. Rodriguez (2016) 1 Cal.5th 676,
685.)
The purpose of the DVPA “is to prevent acts of domestic
violence, abuse, and sexual abuse and to provide for a separation
of the persons involved in the domestic violence for a period
sufficient to enable these persons to seek a resolution of the
causes of the violence.” (§ 6220.) Under the DVPA, the court is
required to “consider the totality of the circumstances in
determining whether to grant or deny a petition for relief.”
(§ 6301, subd. (c).)
Lugo contends that the family court erred by denying her
request for a protective order on the basis that a criminal
protective order was already in place. She is correct that the
existence of a criminal protective order is not a bar to the
issuance of a DVRO, and the court’s refusal to consider the merits
of Lugo’s DVRO request on that basis was erroneous.
The DVPA states that the “remedies provided in this
division are in addition to any other civil or criminal remedies
that may be available to the petitioner.” (§ 6227.) When a
statute states that its remedies are “‘in addition to’” other
available remedies, “its remedies are ‘nonexclusive.’” (Bright v.
99¢ Only Stores (2010) 189 Cal. App. 4th 1472, 1481.) Section
6383, subdivision (h)(2) discusses the priority of enforcing
protective orders “[i]f there is more than one order issued,”
including “[i]f there are both civil and criminal orders regarding
the same parties.” Thus, the DVPA makes clear that both
criminal and civil protective orders may coexist and address the
same parties.
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The Penal Code also acknowledges that criminal and civil
protective orders may address the same parties. Penal Code
section 136.2, subdivision (e)(2), addressing protective orders in
criminal cases involving domestic violence, states that “a
restraining order or protective order against the defendant issued
by the criminal court in that case has precedence in enforcement
over a civil court order against the defendant.” Subdivision (f) of
the same section directed the Judicial Council to provide
protocols “to provide for the timely coordination of all orders
against the same defendant and in favor of the same named
victim or victims,” including “mechanisms for ensuring
appropriate communication and information sharing between
criminal, family, and juvenile courts concerning orders and cases
that involve the same parties, and shall permit a family or
juvenile court order to coexist with a criminal court protective
order subject to the following conditions.” (Pen. Code, § 136.2,
subd. (f).) As our colleagues in Division Seven have observed, the
Legislature has made “consistent and repeated efforts to ensure
the courts utilize all available tools, including section 136.2, to
safeguard victims of domestic abuse. (See, e.g., Stats.2001, ch.
698, § 1 . . . [‘The Legislature recognizes that both criminal
courts and civil courts may issue protective orders or restraining
orders to prevent domestic violence. . . .’].)” (Babalola v. Superior
Court (2011) 192 Cal. App. 4th 948, 963.)
Thus, it is clear that criminal and civil protective orders
may coexist, and the issuance of one does not bar the other. The
trial court therefore erred by summarily denying Lugo’s DVRO
request on the basis that a criminal protective order was already
in place, and if the parties wanted a protective order with
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different terms, they were required to have the criminal court
change its order.
Lugo and amicus assert a number of policy arguments
regarding the importance of ensuring that domestic violence
victims are protected by both DVROs and criminal protective
orders. For example, they note that DVROs may sweep more
broadly than criminal protective orders by protecting personal
property and family members, or addressing custody and
visitation issues. We agree that these are important issues.
However, as we find the basis of the court’s order to be legally
erroneous based on the plain language of the relevant statutes,
there is no need to address the policy bases for allowing
overlapping protective orders. (See Mejia v. Reed (2003) 31
Cal. 4th 657, 663 [courts appropriately rely on policy
considerations where “statutory text is insufficient to resolve the
question of its interpretation.”].)
Lugo asserts that the family court’s failure to make the
factual determinations required by the DVPA warrants a
reversal of the order and remand for a rehearing.3 We agree, and
therefore remand so that the family court may consider Lugo’s
DVRO request on the merits.
DISPOSITION
The order denying Lugo’s request for a domestic violence
restraining order is reversed, and the matter is remanded to the
family court for reconsideration of that request. Because
3Under section 6300, subdivision (a), a DVRO may be
issued “if an affidavit or testimony and any additional
information provided to the court pursuant to Section 6306,
shows, to the satisfaction of the court, reasonable proof of a past
act or acts of abuse.” (§ 6300, subd. (a).)
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respondent did not appear on appeal, no party shall recover costs.
(Cal. Rules of Court, rule 8.278(a)(5).)
CERTIFIED FOR PUBLICATION
COLLINS, J.
We concur:
WILLHITE, ACTING P.J.
CURREY, J.
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