Kelly-Lieras v. Lieras CA1/2 ( 2015 )

Filed 9/29/15 Kwelly-Lieras v. Lieras CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION TWO
MARGARET KELLY-LIERAS,
Plaintiff and Appellant,
A140756
v.
LARRY LIERAS, (San Mateo County
Super. Ct. No. FAM0109234)
Defendant and Respondent.
In 2010, appellant Margaret Kelly-Lieras (Kelly-Lieras) obtained a three-year
domestic violence prevention restraining order against her then-husband, respondent
Larry Lieras (Lieras). Shortly before the order was set to expire, Kelly-Lieras sought
renewal of the order. Following a hearing, the trial court denied her request, finding she
had not established she had an objectively reasonable fear of future abuse by Lieras.
Kelly-Lieras appeals, contending the trial court’s order constituted an abuse of discretion
for a multitude of reasons. We conclude her arguments lack merit, and we affirm.
BACKGROUND
The Initial Restraining Order
On May 27, 2010, Kelly-Lieras filed an ex parte request for a domestic violence
prevention restraining order, seeking to bar Lieras, her husband of 16 years, from
contacting or coming within 100 yards of her, the couple’s two minor daughters, and
Kelly-Lieras’s mother and grandmother, as well as their homes, vehicles, schools, and
workplaces.
1
In support of her request, Kelly-Lieras alleged that eight days earlier Lieras had
assaulted her in an incident she described as follows:
“On May 19th at approximately 11 pm I was woken by [Lieras] punching me and
yelling at me. He was screaming ‘I’m sick of this’ and continued to punch me. I stayed
on my left side in the fetal position trying to protect myself. I got bruises on my left
wrist, left hand, whole right arm including my shoulder, right jaw, and split my lip. The
next day [Lieras] came home from work and told me I am lucky he held back. Next time
he won’t, I better change or else and that he will not hold back when it comes to that fat
bitch Margaret and fat bitch Claudia. I will let them have it if you got me you got me
[sic]. Claudia is my mother and Margaret is my grandmother. . . . Eight days after this
incident my bruises are still visible and my right arm is still sore.”
Kelly-Lieras also alleged that she and her daughters had long suffered abuse at the
hands of Lieras, asserting that over the previous five years, he had verbally and
physically abused them, as well as verbally abused her mother and grandmother. As
Kelly-Lieras described it: “Throughout our relationship [Lieras] has been very verbal
with hateful things towards myself and my daughters and when [Lieras] snaps he
becomes violent (physically) toward me. With my children they are afraid to tell me
what [Lieras] has done or said because he has told them ‘not to say anything to anyone or
they will have to deal with him.’ When [Lieras] wants to talk with one of us he will
always do it in the downstairs room where no one else in the house can hear and see. We
are very vulnerable and try not to go but [Lieras] will get more upset so we go. [Lieras]
has gotten mad at me because I came home late from Christmas shopping with my
mother which resulted in [him] yelling at me, throughing [sic] things including a laundry
basket and ended with him pinning me against the downstairs back door and choking me
to the point I started losing consciousness.” As additional specific examples, she
described an incident in January 2009 when Lieras punched one daughter in the mouth
because she had “messed up at softball practice” and another incident in July 2009 when
he hit and choked Kelly-Lieras because he was mad about something she had purportedly
done wrong.
2
Kelly-Lieras’s declaration concluded with this: “Myself and my daughters live
day to day in fear of what [Lieras] will do to us or my grandmother who is frail and
elderly or my mother. By being awarded this restraining order and removing [Lieras]
from the house would allow us to move on, heal, and not be afraid day in and day out.”
On May 27, 2010, the trial court issued a temporary restraining order barring
Lieras from harassing, attacking, striking, threatening, assaulting, hitting, following,
stalking, molesting, destroying the personal property of, disturbing the peace of, keeping
under surveillance, blocking the movements of, or coming within 100 yards of Kelly-
Lieras, the couple’s two daughters, and Kelly-Lieras’s grandmother, as well as their
home, vehicles, schools, and workplace.
On June 18, 2010, the court issued a three-year restraining order.1 Lieras was also
ordered to immediately move out of Kelly-Lieras’s grandmother’s home where the
family was living.
Kelly-Lieras’s Request to Renew the Restraining Order
On May 22, 2013, Kelly-Lieras filed a request for a five-year renewal of the
restraining order, which was set to expire the following month. In support, Kelly-
Lieras’s written declaration stated she was “afraid of abuse in the future” for the
following reasons:
“During court hearings in the hall with both attorneys present [Lieras] has yelled
down the hall to me ‘You better listen and you better listen well!’ He has stood behind
his attorney giving mean stare downs in a threatening manner. During supervised
visitations he has kicked [our daughter] under the table, whispered to them so the
supervising person and court order supervising therapist couldn’t hear what he is talking
about with the children. Conversations at these visits are not positive. The children
come out crying because he is harping on them about their sports and school. He tells the
girls not to tell me or their grandmother who was supervising the visits what he said to
them. I had to go back to court and change supervised visits to court supervised visits
1
It was narrower in scope than the temporary restraining order, however, applying
only to Kelly-Lieras and not her grandmother or the couple’s children.
3
because he was getting out of hand with my mother in his mannerism (angry),
disrespectful, and very rude. The children do not like to go for visits with him and have
told him and the therapist at the visitation center and Rally [Family Visitation Services]
that they do not feel safe around him. . . . To this day if we see him in passing we are
scared to death of what he will do or say and try to quickly get out of the area. My oldest
daughter . . . gets severe medical/physical issues when she knows she is going to see him.
It impacts her daily life and she misses school because of it. We are still extremely afraid
of [Lieras] and what he can and will do if there is no longer an active [restraining
order].”2
Lieras filed opposition to the renewal request, asking the court to set the matter for
trial because he believed Kelly-Lieras did “not have a reasonable basis for her request.”
In reply, Kelly-Lieras represented that Lieras had been convicted of domestic
violence against her, resulting in a 15-day jail sentence and an 18-month probation. She
reiterated that he had expressed aggression against her in a courthouse with both
attorneys present, yelling at her and staring her down in a threatening manner. In light of
his “violent criminal conduct and potential future violent acts,” she continued to feel
unsafe.
Hearing On Kelly-Lieras’s Renewal Request
Kelly-Lieras’s request to renew the restraining order came on for hearing on
July 19, 2013. The first witness to take the stand, Kelly-Lieras testified that she remained
“scared” and “afraid for [her] life” as a result of the 2010 incident. This was so because
the day after the incident, Lieras told her, “You are lucky I held back because the next
time I will not.” He had never shown remorse or apologized for the incident.
2
The above-quoted statement is taken verbatim from an attachment to a Judicial
Council form completed by Kelly-Lieras. As it appears in the record, it seems to be
incomplete, since it actually commences with the partial phrase, “try to move away from
him.”
4
After Kelly-Lieras obtained the initial restraining order, she felt “a little safer,” but
she still “watch[ed] over [her] shoulder all the time” because she did not believe Lieras
had changed and she still feared “something could happen.”
In the three years since the issuance of the restraining order, Kelly-Lieras had
mostly seen Lieras in court, at which time he had made threatening comments to her.
Specifically, on one occasion, when he was standing with their respective attorneys, he
yelled in a loud and angry voice, “You better listen and you better listen well.”
Kelly-Lieras heard him even though she was two courtrooms away. More recently, when
they were standing outside a courtroom with their attorneys, Lieras stood behind his
attorney and gave her a “very mean scary looking stare down.” It made her afraid: “I am
scared for my life and I am afraid the next time I may not survive it.”
According to Kelly-Lieras, just seeing Lieras in court for the hearing made her
afraid because it brought back what had happened three years ago and made her fearful of
what could happen in the future. She did not think he had changed in the intervening
three years, believing he was even more angry because she obtained the restraining order
and pressed charges: “I think the anger has gotten worse because I did it. I didn’t just sit
there and take it.” She felt he could kill her if the restraining order was not renewed.
On cross-examination, counsel for Lieras asked Kelly-Lieras about the incident in
which Lieras yelled down the hallway in the presence of their attorneys. When asked
what she heard Lieras say to her, Kelly-Lieras responded, “He yelled, ‘You better listen
and you better listen well.’ He was ‘She better listen and she better listen well’ were the
exact words he yelled down the hall.” When asked if he made the remark to her or her
attorney, she answered that he was turned in her direction.
Counsel for Lieras asked her how many times, other than court appearances, she
had seen Lieras in the past three years. Kelly-Lieras answered a “couple in passing such
as the freeway and that, but not an intentional meeting.” Asked to describe specific
incidents, she identified one time when they were both driving on the freeway and he
“kept moving toward where [she] was, like trying to wave ‘Hi’ and [she was] trying to
get away.” She was afraid and got his probation officer on her speakerphone and told
5
him to tell Lieras to get away from her. She did not make a police report, instead
contacting his probation officer as she had been instructed to do. Another time they
passed each other in a McDonald’s parking lot but there was no interaction. When she
stated, “To this day if we see him in passing, we are scared to death of what he will do or
say and try to quickly get out of the area” in her declaration, she was referring only to
those two incidents.
Kelly-Lieras also discovered at one point that Lieras was living across the street
from where their daughters went to school. She was afraid because she would have to
drive by every day when she dropped off and picked up their daughters. She immediately
contacted his probation officer to request that Lieras move.
Kelly-Lieras had not seen Lieras at her place of employment, but about a year
earlier, two of her coworkers told her they had seen him there. She was scared, so she
contacted her building security and provided a copy of the restraining order and a photo
of Lieras.
At the time of the hearing, Kelly-Lieras did not know where Lieras was living nor
did she know his telephone number. She believed, however, that he knew her telephone
number, although he had not contacted her on it.
Clinical psychologist Richard Ferry testified as a domestic violence expert on
Kelly-Lieras’s behalf. He did not evaluate her, having spoken with her for less than five
minutes, and instead gave “generic jury education testimony about the common
experiences of battered women.” Ferry testified that it is common and reasonable for a
victim who received multiple injuries from her abuser to fear the abuser three years later
because abuse often involves creating an expectation of future abuse. And, according to
Ferry, “Those expectations don’t have an expiration date or a shelf date, a shelf life like a
quart of milk. There is significant individual variation across victims, but it is well
within normal limits that a woman or a man who’s been battered in an intimate
relationship will remain fearful for quite some time afterwards.” Ferry likened it to being
bitten by a dog and subsequently being afraid of dogs, which is a reasonable fear for that
person.
6
Lieras was the final witness to testify. At the time of the hearing, he was working
at a law firm in Menlo Park and living in Millbrae, approximately 10 miles from Kelly-
Lieras’s grandmother’s house. He never had occasion to go to his old neighborhood.
According to Lieras, Kelly-Lieras worked at Kaiser Permanente. She had
previously worked at the Redwood City location, but he had heard she had transferred to
a different location, although he was not know where that was. He acknowledged that he
had been at her workplace the previous year, explaining that he was a Kaiser Permanente
member and was only there to have an eye examination and get new glasses. He had
spoken to two of her coworkers but did not ask any questions about Kelly-Lieras. He
saw them again more recently when he returned to get new contact lenses, but he did not
see Kelly-Lieras.
Lieras gave a different version of the freeway incident Kelly-Lieras described.
According to him, he was “driving along” and “just happened” to look and saw
Kelly-Lieras speeding up behind him. She “just passed [him] up” and “sped off” and he
“just went on [his] way.” He denied waving to her, speeding to catch up with her, or
chasing her. Shortly after he got off the freeway, he pulled over and reported the incident
to his probation officer.
As to the second encounter Kelly-Lieras mentioned, Lieras testified he was on his
way to McDonald’s before going to church when they suddenly drove past each and “we
both kind of stopped and looked at each other and I just looked at her and she just looked
at me and then a few seconds later she just took off and that was it.” He did not interact
with her at all.
Lieras also described two additional encounters over the previous three years. On
one occasion, he was driving home from church when he saw Kelly-Lieras driving away
from a store with their two children. The children saw him, but he ignored them because
he did not want to wave and have Kelly-Lieras think he was waving at her. On another,
he had just come out of a credit union where both he and Kelly-Lieras did their banking
and was about to go back in, but he saw her going in so he left. According to Lieras, he
had made no attempts to contact Kelly-Lieras since the restraining order was issued, had
7
not received any information suggesting he had violated the restraining order, and had no
intention of contacting her in the future.
Lieras acknowledged that shortly after he was released from jail, he moved in with
a friend who lived across the street from his daughters’ school. He received a call from
his probation officer, who gave Lieras one day to move after Lieras told him he was
living directly across from the school rather than one block behind it, as the officer had
believed. Lieras moved out as instructed.
When asked about the incident in the courthouse that Kelly-Lieras described in her
testimony, Lieras denied having yelled at her. He acknowledged, however, telling her
attorney, “She better listen.” He claimed that the comment arose in connection with their
property division, explaining that he expected to get back an old money collection, and he
wanted to make sure she returned it to him since she had packed up his belongings and
sent them to storage.
Lieras acknowledged he had been convicted of spousal abuse and served a jail
sentence, following which he was placed on 18 months probation. As a condition of his
probation, he was required to complete a 52-week domestic violence program. He
completed the program, which included both individual and group therapy sessions, and
he never violated probation. He also participated in individual therapy on his own for a
year and a half, and his visits with his children were supervised by a therapist. As of the
hearing, Lieras was still not seeing his children unsupervised, because Kelly-Lieras had
wrongly told the therapist that there was a restraining order prohibiting him from seeing
the children.
Following testimony and closing argument, the court rejected Kelly-Lieras’s
position that it was required to automatically renew the restraining order where, as here,
the restrained party had been convicted of domestic violence, and an expert testified that
the victim’s fear of future abuse was reasonable. Instead, the court noted that the
evidence supporting the issuance of the initial restraining order was one factor to
consider, but that other factors were relevant as well, such as “other things that have
8
occurred or . . . the status of both parties [to] determine if there is a reasonable
apprehension of future abuse.”
The court then went on to rule, first noting that while there was no doubt Kelly-
Lieras was the victim of domestic violence in 2010, there was no evidence she was
undergoing therapy to address her fears. It then expressed “concern about her
testimony”:
“Her belief is, as she said several times, not that she might get hurt again but that
she could, he could cause her harm up to ‘I could be dead’ is what she stated, that is a
quote. So her fear is not just that he might hurt her, is that her fear is that he is going to
kill her. I didn’t see any evidence to back that fear up, that in itself I don’t believe that’s
reasonable for her to believe, based even on these circumstances of what happened in the
past that he at this point in time in their lives is going to kill her.
“And—but if I was to accept that that she is so fearful that he is going to kill her,
she then testified that he came to her workplace. She hears about it, she doesn’t call the
police, she doesn’t call her attorney, she doesn’t come to court to say there was a
violation of the restraining order, files a contempt. She doesn’t do anything except go to
the security guard when there were other things that could have protected her more and
better.
“So there is a conflict there. Does she really believe that he is going to kill her and
if he showed up at work, then why didn’t she act appropriately to that belief or, perhaps,
her belief is not that strong that he is going to actually hurt her or kill her.
“And then there is the inconsistency in the declaration in today’s testimony that
the interaction that they had in the courthouse was a threat against her and it was directed
at her and as we now know that’s not the case. It was not directed to her. He said ‘she
better listen’ as opposed to ‘you better listen.’
“Lastly, again, I believe that if she was, if she had these fears and was so
distraught over these years about what had happened to the point where even seeing him
passing on the freeway or passing at the, in a driveway at McDonald’s that I would have
heard that she is seeking some sort of counseling.
9
“Again, I didn’t hear she is not going to counseling, but I am going to assume that
if she was in therapy and trying to get this, these issues dealt with, I would have heard
about it because it would have been relevant to the, to her state of mind and somebody
who is in so much fear or in living this way I would, I would hope would be in
counseling.
“And the last piece I don’t believe is of reasonable belief or some feeling that’s
within reason is that she said he had a child support case recently and that he was staring
her down. The fact that they were, that no words were exchanged, they were in a
courthouse, they were with attorneys. I just don’t think that’s reasonable.
“It does appear that the separation between the parties, what Mr. Lieras has stated
that he has done in the meantime besides the required 52-week batterer classes, that he
continued with some individual therapy on his own has helped to resolve the underlying
issues as contemplated by [Family Code section] 6220. And at this time I am not going
to renew the restraining order.”
Kelly-Lieras filed a timely notice of appeal.
DISCUSSION
The Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.)3 exists “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.) As provided in
section 6345, subdivision (a), a domestic violence prevention restraining order “may be
renewed 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. The request for renewal may be brought at any
time within the three months before the expiration of the orders.”
3
All statutory references are to the Family Code.
10
Section 6345 does not provide a standard for a trial court to apply in deciding
whether to grant a renewal request. In Ritchie v. Konrad (2004) 115 Cal. App. 4th 1275,
1290 (Ritchie), the court engaged in an in depth analysis of what that standard should be,
ultimately holding that “[a] trial court should renew the protective order, if, and only if, it
finds by a preponderance of the evidence that the protected party entertains a ‘reasonable
apprehension’ of future abuse.” In Lister v. Bowen (2013) 215 Cal. App. 4th 319, we
recently discussed the Ritchie holding, summarizing it as follows:
“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.’ [Citation.] ‘The
“apprehension” those acts will occur must be “reasonable.” That is, the court must find
the probability of future abuse is sufficient that a reasonable woman (or man, if the
protected party is a male) in the same circumstances would have a “reasonable
apprehension” such abuse will occur unless the court issues a protective order.’
[Citation.] However, an imminent and present danger of abuse is not required.
[Citation.] In other words, under this objective test, ‘[a] trial court should renew the
protective order, if, and only if, it finds by a preponderance of the evidence that the
protected party entertains a “reasonable apprehension” of future abuse. . . . [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.’ [Citation.]
“In evaluating whether the requesting party has a reasonable apprehension of
future abuse, ‘the existence of the initial order certainly is relevant and the underlying
findings and facts supporting that order often will be enough in themselves to provide the
necessary proof to satisfy that test.’ [Citation.] ‘Also potentially relevant are any
significant changes in the circumstances surrounding the events justifying the initial
protective order. For instance, have the restrained and protected parties moved on with
their lives so far that the opportunity and likelihood of future abuse has diminished to the
11
degree they no longer support a renewal of the order?’ [Citation.] Also relevant are the
seriousness and degree of risk, such as whether it involves potential physical abuse, and
the burdens the protective order imposes on the restrained person, such as interference
with job opportunities. [Citation.]” (Lister v. Bowen, supra, 215 Cal.App.4th at pp. 332-
333; accord, Eneaji v. Ubboe (2014) 229 Cal. App. 4th 1457, 1463.)
We review an appeal from an order denying a request to renew a domestic
violence restraining order for abuse of discretion. (Lister v. Bowen, supra, 215
Cal.App.4th at p. 333; Eneaji v. Ubboe, supra, 229 Cal.App.4th at p. 1463.) As we
explained in Lister v. Bowen, supra, at page 333, an abuse of discretion occurs where
“ ‘ “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.” ’ ” We conclude the trial court’s denial of
Kelly-Lieras’s renewal request did not exceed the bounds of reason, and there was no
abuse of discretion.
In the three years since the issuance of the initial restraining order, Lieras had not
made any efforts to contact Kelly-Lieras, and there was never a finding that Lieras
violated the restraining order. Kelly-Lieras testified to two brief encounters—one on the
freeway and one in a McDonald’s parking lot—but she confirmed both were
unintentional. Lieras also acknowledged two additional encounters of which Kelly-
Lieras appeared to be unaware—one outside a store and another outside a credit union.
In both of those instances, Lieras acted appropriately, taking steps to avoid coming into
contact with Kelly-Lieras. He also complied with his probation officer’s instruction to
move within one day when Kelly-Lieras reported that he was living across the street from
the school their daughters attended.
There was testimony that Lieras was seen at Kelly-Lieras’s place of business,
Kaiser Permanente, but there was no evidence Lieras had gone there to contact, stalk, or
menace Kelly-Lieras in any way. Rather, he testified that he was a Kaiser patient and had
merely gone there for an eye examination and a new pair of eyeglasses. He
12
acknowledged having encountered two of Kelly-Lieras’s coworkers while there, but he
made no inquiries concerning Kelly-Lieras.
Additionally, there was evidence that the parties had “moved on with their lives so
far that the opportunity and likelihood of future abuse has diminished . . . .” (Ritchie,
supra, 115 Cal.App.4th at p. 1291.) The couple had divorced since the initial restraining
order was issued. Lieras was living approximately 10 miles away from Kelly-Lieras’s
grandmother’s home and had no occasion to return to his old neighborhood. He did not
know where Kelly-Lieras worked, as he believed she had transferred from her previous
location. Kelly-Lieras did not know where Lieras lived and did not have his contact
information.
Further, Lieras had taken steps to address his abusive tendencies. He completed a
52-week domestic violence treatment program, participating in both individual and group
therapy as a part of that program. He also participated in individual therapy outside of
that program. Lieras had satisfied the terms of his probation without incurring any
violations. This suggests that the likelihood of future abuse had diminished (Ritchie,
supra, 115 Cal.App.4th at p. 1291), as had the need “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.)
While it is true that the underlying facts supporting the initial restraining order
“often will be enough in themselves to provide the necessary proof” to renew the order
(Ritchie, supra, 115 Cal.App.4th at p. 1291), the trial court must also consider significant
changes in the circumstances that supported the initial order. (Ibid.) In light of the above
detailed changes, we cannot say that it was outside the bounds of reason for the trial court
to conclude that Kelly-Lieras had not demonstrated by a preponderance of the evidence
that she had an objectively reasonable fear that Lieras would harm her in the future.
In challenging this conclusion, Kelly-Lieras asserts four errors by the trial court.
First, she contends that the trial court erred in limiting its analysis to developments since
the initial restraining order was issued. That was not in fact the case. The trial court
denied the repeated attempts by Kelly-Lieras’s counsel to introduce evidence of the abuse
13
that formed the basis for the initial restraining order. But as the trial court explained, this
was because it had heard Kelly-Lieras’s initial restraining order request, had reviewed the
court’s file from that initial restraining order request, and did not need to hear that
evidence again. It cannot be said on this record that the trial court did not consider the
evidence.
In a somewhat related argument, Kelly-Lieras next contends the trial court applied
the wrong legal standard when it failed to consider the reasonableness of her ongoing fear
in light of the past physical abuse she suffered. Kelly-Lieras’s position is that “where the
underlying abuse was violent and physical as it was here,” and when the protected party
is “willing to get up in court and testify that they still fear their abuser at a contested
hearing, and they express reasons for that ongoing fear and bring an expert to provide
testimony supporting the objective reasonableness of the testimony, that evidence should
be sufficient to justify renewal.” By this argument, Kelly-Lieras apparently suggests that
renewal should be automatic when the initial restraining order was necessitated by
physical abuse, the victim testifies she is in fear of future abuse, and an expert testifies
that fear is reasonable. That is not the law. As Ritchie held, and as we discussed above,
the court must decide whether the victim’s fear of future abuse is objectively reasonable,
taking into consideration the past abuse and changes in the parties’ circumstances.4
Third, Kelly-Lieras contends the trial court failed to consider the lack of any
significantly changed circumstances since the issuance of the initial restraining order.
This argument is undermined by the record, which contains evidence of changed
circumstances.
Finally, Kelly-Lieras argues the trial court erred in basing its denial of her renewal
request on the lack of evidence that she had participated in therapy to address her
ongoing fear of abuse. We agree that this was not an appropriate factor for the trial court
to consider. The court’s reasoning would, as amicus curiae Family Violence Appellate
4
It is also significant that expert witness Ferry testified generally to the
reasonableness of a victim’s fear of future abuse based on past abuse, but he offered no
opinion about the reasonableness of Kelly-Lieras’s fear under the circumstances.
14
Project rightly notes, “effectively impose a burden upon victims of domestic violence to
proffer evidence of their participation in rehabilitation services before their apprehension
of future abuse could be found to be genuine or reasonable.” Such evidence is not
required by section 6345, subdivision (a) or case law. There are many reasons a domestic
violence victim may not pursue therapy that are unrelated to the victim’s apprehension of
fear, be it a lack of access to treatment services, a preference for using other coping
strategies, or a perception that therapy is stigmatizing, to name but a few. This
conclusion does not, however, compel reversal, because the absence of evidence that
Kelly-Lieras participated in therapy was not the sole factor behind the court’s decision.
The record contains additional evidence supporting the trial court’s decision—discussed
above—such that there was no abuse of discretion.
DISPOSITION
The order denying Kelly-Lieras’s request for renewal of the original domestic
violence prevention restraining order is affirmed.
_________________________
Miller, J.
We concur:
_________________________
Kline, P.J.
_________________________
Stewart, J.
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