Marriage of Brubaker and Strum CA2/7 ( 2021 )

Filed 12/10/21 Marriage of Brubaker and Strum CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re Marriage of BETSEY B307887
BRUBAKER and ANDY STRUM.
(Los Angeles County
Super. Ct. No. 17STFL05662)
BETSEY BRUBAKER,
Appellant,
v.
ANDY STRUM,
Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Michael R. Powell. Reversed with
directions.
Fernandez & Karney and Mark H. Karney for Petitioner
and Appellant.
Feinberg Mindel Brandt & Klein, Gregory A. Girvan and
Collette Torunyan for Respondent.
INTRODUCTION
Betsey Brubaker appeals from an order denying her
request to renew a restraining order against her former husband,
Andy Strum, under the Domestic Violence Prevention Act (the
Act) (Fam. Code, § 6200 et seq.).1 Because the trial court
erroneously considered only whether Strum committed acts of
domestic violence during a narrow window of time when the
original restraining order was in effect, and not whether
Brubaker had a reasonable fear of future abuse in light of all
relevant facts and circumstances, we reverse the order denying
the request to renew the restraining order and direct the trial
court to hold a new hearing on the request and allow Brubaker to
introduce the evidence the court erroneously excluded.
FACTUAL AND PROCEDURAL BACKGROUND
A. Brubaker Obtains a Domestic Violence Restraining
Order Against Strum
Brubaker and Strum married in 2009 and had twins in
2015. On October 6, 2017 Brubaker filed a petition for
dissolution of the marriage, which, according to Brubaker, Strum
opposed.
On October 13, 2017 Brubaker filed a request for a
domestic violence restraining order against Strum. Brubaker
alleged Strum threatened to strangle and kill her, stalked her,
and told her he would make her life “a living hell” if she
continued to pursue a divorce. Brubaker alleged that in 2014,
1 Statutory references are to the Family Code.
2
after Brubaker failed to quickly find their destination in a smart
phone application, Strum left her on the side of the road, forcing
her to walk 20 miles home. Brubaker alleged that in April 2017
Strum, with the children in the car, drove erratically and
threatened to hit a group of cyclists he felt was slowing traffic.
Brubaker alleged Strum threatened violence against her several
other times but did not follow through on his threats.
On November 3, 2017 Brubaker and Strum entered into a
stipulated temporary protective order. The order required Strum
to remain 100 yards from Brubaker (except during school events,
extracurricular activities, and when exchanging the children for
visitation), prevented Strum from contacting Brubaker except in
connection with custody and visitation matters, and established a
temporary custody schedule for the children.
On January 25, 2018 Brubaker filed another request for a
domestic violence restraining order, alleging Strum violated the
stipulated protective order on multiple occasions and committed
additional acts of abuse. Brubaker alleged Strum stalked her,
monitored her actions using a “nanny cam,” threatened to report
her to child protective services, and harassed her verbally and in
written communications. Brubaker again alleged Strum said he
wanted to strangle and kill her. Brubaker claimed Strum’s
behavior was “triggered by anger regarding the normal divorce
proceedings, which he was against and uses to lash out . . . .”
Following a hearing on February 22, 2018, the family law
court (Judge Hank M. Goldberg) issued a two-year domestic
violence restraining order against Strum. The court found that
Strum placed Brubaker “in reasonable apprehension of imminent
or serious bodily injury” by threatening violence against her and
that Strum had violated the stipulated protective order. The
3
court also found Strum’s violations of the stipulated protective
order amounted to “disturbing the peace” under the Act and
showed, through “conduct and in words,” that Strum would “do
whatever [he] want[ed] to do,” regardless of whether there was a
restraining order in effect. The court found Strum had “a very
significant anger management issue” and an “explosive temper.”
The court described the abuse as “situational” and stated a two-
year order would give the parties sufficient time to “finish the
divorce case” with the restraining order in place.
The domestic violence restraining order prevented Strum
from coming within 100 yards of Brubaker, her home, or her
vehicle, and from contacting Brubaker directly or indirectly. The
court made an exception for “brief and peaceful contact” required
to facilitate Strum’s court-ordered visitation with the children
and ordered the parties to communicate using Our Family
Wizard (OFW), an online platform designed to facilitate
communications for co-parenting. The court also granted
Brubaker sole physical and legal custody of the children.
B. Brubaker Alleges Strum Violated the Domestic
Violence Restraining Order, and the Family Law
Court Issues a Final Statement of Decision in the
Divorce Proceeding
On May 22, 2018 Brubaker asked for an order limiting
Strum’s use of OFW. The family law court (Commissioner
Doreen Boxer) found Strum had violated the domestic violence
restraining order by using OFW to “scold, admonish, [and]
reprimand” Brubaker and by “using the children as a pretext to
further harass” her. The court modified the restraining order by
limiting the scope of permitted OFW communications.
4
On July 23, 2019 the family law court (Judge Lawrence
Riff) entered a final statement of decision in the dissolution
action, ruling the court would award Brubaker sole physical and
legal custody of the children. The court stated a “principal issue
for trial” was whether Strum rebutted the presumption under
section 3044 that “‘an award of sole or joint custody to a
perpetrator of domestic violence “is detrimental to the best
interest of the child.”’” (See § 3044, subd. (a).) The court found
Strum had not carried his burden to rebut the presumption
because Brubaker was “and still is damaged on account of
[Strum’s] abuse” and because Strum’s “inability to control his
explosive temper and aggressive behavior, with [Brubaker] as a
target, has . . . been in the past detrimental to the children.” The
court also found that Strum “continue[d] palpably to radiate
anger and agitation . . . during the Court proceedings,” and that,
“in a less structured environment,” Strum’s issues with anger
management “are likely to be more pronounced.”
The family law court also ruled that, even if Strum had
rebutted the presumption under section 3044, the court would
not grant Strum physical or legal custody of the children because
there was “no prospect” of Strum and Brubaker co-parenting
effectively. The court found giving Strum joint custody “would
require him and [Brubaker] to interact with a high likelihood . . .
of [Brubaker] being further abused.” The court found, however,
Strum had “complied with the terms of the permanent
restraining order” and had “not committed any further acts of
domestic violence since that order was issued.” The court did not
address Commissioner Boxer’s finding Strum had violated the
terms of the restraining order, but the court did relax the
restrictions Commissioner Boxer had imposed on Strum’s use of
5
OFW. The court entered a judgment of dissolution on
November 8, 2019.
C. Brubaker Files a Request To Renew the Domestic
Violence Restraining Order
Meanwhile, on October 1, 2019 Brubaker filed a request to
renew the two-year domestic violence restraining order, which
otherwise would expire on February 22, 2020.2 Brubaker alleged
she had a reasonable apprehension of future abuse based on
Strum’s past abuse and his violations of the existing restraining
order. Specifically, Brubaker alleged Strum continued to use
OFW to harass her, manipulated volunteer opportunities at the
children’s school so he could be within 100 yards of her, and
insisted on exchanging the children at each other’s front door
instead of at the street curb or driveway, which Brubaker claimed
gave Strum the opportunity to “attack [her] unprovoked with
accusations [and] assertions in a highly charged verbal manner
in the clear view of [the] children.” Brubaker also alleged Strum
“hurl[ed] accusations at [her] in an unreasonably loud and
aggressive tone” during an exchange of the children on
August 30, 2019.
Strum opposed the request to renew the restraining order
and filed two motions in limine. One motion sought to exclude
the OFW messages exchanged between the parties prior to
2 Section 6345, subdivision (a), provides that a “request for
renewal may be brought at any time within the three months
before the expiration of the orders.” Brubaker appears to have
filed her request to renew prematurely, but Strum did not object
to renewal on that basis.
6
May 24, 2018. Strum claimed that, prior to that date, counsel for
Brubaker “wantonly violated the rules of professional conduct” by
communicating directly with Strum through OFW without
Strum’s knowledge. Brubaker stipulated to the relief requested
in Strum’s first motion in limine.
Strum’s second motion in limine sought to exclude
Brubaker from “proffering any evidence regarding any
allegations of abuse or violations of the Domestic Violence
Restraining Order by [Strum] prior to February 13, 2019,” which
was the last date the parties presented evidence in the marriage
dissolution trial. Strum argued that, because Judge Riff found
Strum had not committed any acts of domestic violence or abuse
since Judge Goldberg issued the restraining order in
February 22, 2018, the doctrines of issue preclusion and estoppel
precluded the trial court in this proceeding (Judge Michael R.
Powell) from considering that evidence or any other evidence of
domestic violence or abuse occurring before the dissolution trial.
Strum also asked the trial court to take judicial notice of the
family law court’s final statement of decision because “the matter
of violations of the protective order since its issuance . . . through
the last day of trial . . . has already been adjudicated.” Strum’s
motion in limine did not mention Commissioner Boxer’s earlier
finding Strum violated the restraining order.
D. The Trial Court Grants Strum’s Second Motion in
Limine and Denies Brubaker’s Request To Renew the
Restraining Order
The trial court considered Strum’s second motion in limine
at the beginning of the July 10, 2020 hearing on Brubaker’s
request to renew the restraining order. Counsel for Brubaker
7
argued issue preclusion did not apply because some of the issues
relevant to Brubaker’s request to renew the restraining order
were not presented or addressed in the dissolution trial. But the
trial court stated Strum made “a compelling case [for] issue
preclusion . . . in the sense that [the] parties had an opportunity
to present [evidence of violations of the restraining order] earlier
during the hearing with Judge Riff. If it wasn’t presented at that
hearing, it’s almost as if [Brubaker] had a basis for the
restraining order, but [she] didn’t include all of the information.
And then [she] want[s] to go back in time and say . . . this
happened too . . . .” The trial court concluded that Judge Riff
made “an explicit finding” Strum had not violated the restraining
order and that it was “inappropriate” to relitigate that finding.
The court stated that the “question is now, what has occurred
after [Judge Riff made his finding] that would warrant the
continuation of the restraining order?”
The trial court also stated, “This is a renewal of the
restraining order. This isn’t a re-litigation of the past restraining
order. . . . I went back and I made sure that I looked at the
original restraining order request. And I looked at what
Judge Goldberg had said. And I believe that Judge Goldberg had
made the statement that he believe[d] . . . the granting of the
domestic violence restraining order was to be for two years based
on the fact that he felt once [the marriage dissolution] matter
[was] adjudicated, that that’s all that would be needed at that
point. So if we have a restraining order that’s a duration of two
years, and . . . we don’t see any violations within the two-year
period, then the court is left with looking at what are the facts
that exist . . . after this is all adjudicated . . . . This is in effect
saying, ‘What has happened since the restraining order has been
8
issued that warrants it continuing?’ . . . If the events [that led to
the issuance of the restraining order] have ceased, if the behavior
is such that it does not rise to the level that there is prescribed in
[the Act], I don’t think that I have the authority to issue a
restraining order.”
The trial court concluded its discussion of the second
motion in limine by stating: “The court wants to concentrate on
any events that happened after [Judge Riff’s] hearing and during
the restraining order period. And I want to focus on that solely.”
As a result of the court’s ruling, Brubaker did not present, and
the court did not consider, evidence underlying the original
restraining order or evidence Judge Riff considered in finding
Strum had not violated the restraining order as of February 13,
2019.
On the merits of Brubaker’s request the trial court
questioned Brubaker about several occasions where she claimed
Strum violated the terms of the restraining order. Brubaker said
that in one incident Strum yelled at her through her car door “in
front of the kids in a rage” about Brubaker being five minutes
late to pick up the children. (Brubaker denied being late.) The
court also asked Brubaker about her claim Strum harassed her
through OFW messages on September 2, 2019. Brubaker
testified that “this happens regularly,” but that she did not
remember any specifics of what happened on that date.
Brubaker testified that on one (unspecified) occasion Strum
went to the window of her car, banged on it “very hard,” and
threatened her about “what ticked him off in that moment,
something about court.” Brubaker said she called the police, but
she did not say whether officers arrived or what happened if and
when they did. Brubaker testified that on another (again,
9
unspecified) occasion Strum “lunged” at her, but she did not give
any details about the incident. Brubaker said that on still
another occasion Strum appeared at the children’s school “for no
reason,” came within 100 yards of her, and gave her “sinister
looks as a display of power.”
The trial court said that it was presuming the incidents
Brubaker identified occurred “within the timeframe” permitted
by its ruling on the second motion in limine, but that Brubaker
did not provide “any dates,” “statements” or “context” to assist
the court in determining whether Strum’s conduct was abusive.
Brubaker responded she had “countless OFWs” that provided
those details, and counsel for Brubaker asked the court for a
break to determine whether Brubaker had submitted the OFWs
to the court. After the break, counsel for Brubaker informed the
court he had submitted copies of two prior orders to show cause
re contempt based in part on allegedly abusive OFW messages.
Over Strum’s objection, the trial court agreed to review the OFW
messages to determine whether they proved Strum violated the
restraining order, even though Brubaker had stipulated to
exclude messages exchanged before May 24, 2018. Brubaker
testified many of the messages “bullied” her in connection with
decisions she made about school, insurance, and medical and
dental issues. Brubaker said Strum’s messages were “relentless”
and showed no respect for her decisions.
After another break (for the trial court to review the OFW
messages and the orders to show cause), the court denied
Brubaker’s request to renew the restraining order. The court
stated that, to renew the restraining order, Brubaker had to show
she “entertain[ed] a reasonable apprehension of future abuse
without showing any further abuse since the issuance of the
10
original order,” but reiterated that Judge Riff’s statement of
decision in the dissolution trial “gave a timeline as to conduct
that was going to be examined” by the court (with the exception
of some OFW messages) “in determining whether or not the
restraining order should be granted on a permanent basis.” The
court found Brubaker’s testimony “insufficient,” “vague,”
“conclusory,” and lacking a “time frame.” The court
acknowledged the incident where Strum banged on Brubaker’s
car window, but said an OFW message related to that incident
showed the parties had “different viewpoints about what
happened that day.” 3 Regarding the OFW messages in general,
the court stated: “The most that I could glean . . . was that
potentially [Strum] was being patronizing. His choice of words
and language in terms of characterizing [Brubaker’s] behavior
[was not] ideal,” but it did not create a “reasonable apprehension”
under the Act. The court found that, “based on the aggregate of
what [Brubaker] presented to the court,” her “concerns are not
reasonable.” The court denied her request to renew the
restraining order, and Brubaker timely appealed.
DISCUSSION
Brubaker argues the trial court erred in granting Strum’s
motion in limine based on issue preclusion and effectively
requiring Brubaker to prove, contrary to the plain language of
the Act, Strum violated the domestic violence restraining order
after February 13, 2019. Brubaker also argues the court abused
3 Strum did not testify at the hearing.
11
its discretion in denying her request to renew the restraining
order. We agree with Brubaker’s first argument.
A. Requests To Renew Domestic Violence Restraining
Orders Under the Domestic Violence Prevention Act
The Act is intended “‘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.’” (J.H. v. G.H. (2021) 63 Cal.App.5th 633, 640-641; see
§ 6220.) “Under the [Act], a court may issue a protective order
‘“to restrain any person for the purpose of preventing a
recurrence of domestic violence and ensuring a period of
separation of the persons involved” upon “reasonable proof of a
past act or acts of abuse.”’” (In re Marriage of F.M. & M.M.
(2021) 65 Cal.App.5th 106, 115; see J.H., at p. 641 [“Courts may
issue a restraining order to achieve [the Act’s] purpose upon
‘reasonable proof of a past act or acts of abuse.’”]; see also § 6300,
subd. (a).) Courts should broadly construe the Act to accomplish
its purpose of preventing acts of domestic violence. (In re
Marriage of F.M. & M.M., at p. 115; In re Marriage of Nadkarni
(2009) 173 Cal.App.4th 1483, 1498.)
Section 6211 defines “domestic violence” as “abuse
perpetrated against,” among others, a spouse or former spouse.
(§ 6211, subd. (a).) The Act defines “abuse” as “intentionally or
recklessly causing or attempting to cause bodily injury, placing a
person in reasonable apprehension of imminent serious bodily
injury, or engaging in behavior that could be enjoined under
section 6320,” including “harassing” or “disturbing the peace of
the other party.” (In re Marriage of F.M. & M.M., supra,
12
65 Cal.App.5th at p. 115; see §§ 6203, 6320.)4 The definition of
“abuse” under the Act is generally broader than acts of physical
abuse or threats of physical abuse. (Perez v. Torres-Hernandez
(2016) 1 Cal.App.5th 389, 398 (Perez); see § 6203, subd. (b)
[“[a]buse is not limited to the actual infliction of physical injury
or assault”].) Rather, “[a]nnoying and harassing an individual is
protected in the same way as physical abuse.” (Perez, at p. 398;
see Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1290-1291
(Ritchie).)
Restraining orders issued under the Act “may have a
duration of not more than five years, subject to termination or
modification by further order of the court . . . .” (§ 6345,
subd. (a).) A restraining order “may be renewed, upon the
request of a party, either for five years or permanently, without a
showing of further abuse since the issuance of the original order,
subject to termination or modification by further order of the
4 Section 6320, subdivision (a), authorizes the court to enjoin,
among other conduct, “molesting, attacking, striking, stalking,
threatening, sexually assaulting, battering, . . . harassing,
telephoning, . . . contacting, either directly or indirectly, by mail
or otherwise, [and] coming within a specified distance of, or
disturbing the peace of the other party.” (See In re Marriage of
F.M. & M.M., supra, 65 Cal.App.5th at p. 115.) The phrase
“disturbing the peace of the other party” means “conduct that,
based on the totality of the circumstances, destroys the mental or
emotional calm of the other party. This conduct may be
committed directly or indirectly, including through the use of a
third party, and by any method or through any means including,
but not limited to, telephone, online accounts, text messages,
internet-connected devices, or other electronic technologies.”
(§ 6320, subd. (c).)
13
court either on written stipulation filed with the court or on the
motion of a party.” (Ibid., italics added.) As the court explained
in Ritchie, supra, 115 Cal.App.4th 1275, “Section 6345 makes it
unnecessary for the protected party to introduce or the court to
consider actual acts of abuse the restrained party committed
after the original order went into effect. It would be anomalous
to require the protected party to prove further abuse occurred in
order to justify renewal of that original order. If this were the
standard, the protected party would have to demonstrate the
initial order had proved ineffectual in halting the restrained
party’s abusive conduct just to obtain an extension of that
ineffectual order.” (Ritchie, at p. 1284; accord Ashby v. Ashby
(2021) 68 Cal.App.5th 491, 509-510; Perez, supra, 1 Cal.App.5th
at p. 397; see Lister v. Bowen (2013) 215 Cal.App.4th 319, 333
[“‘the existence of the initial order certainly is relevant [to a
request for renewal,] and the underlying findings and facts
supporting that order often will be enough in themselves to
provide the necessary proof’” to warrant renewal].)
Instead, a court should renew a domestic violence
restraining order when the court “‘find[s] 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.’” (Lister v. Bowen, supra,
215 Cal.App.4th at p. 332; see Ritchie, supra, 115 Cal.App.4th at
p. 1288.) “In challenging a renewal order, the restrained party is
not permitted ‘to challenge the truth of the evidence and findings
underlying the initial order.’” (Lister, at p. 333; see Ritchie, at
p. 1290.)
14
B. Issue Preclusion Did Not Apply
1. Applicable Law and Standard of Review
“Issue preclusion prohibits the relitigation of issues argued
and decided in a previous case, even if the second suit raises
different causes of action. [Citation.] Under issue preclusion, the
prior judgment conclusively resolves an issue actually litigated
and determined in the first action.” (DKN Holdings LLC v.
Faerber (2015) 61 Cal.4th 813, 824, italics omitted; accord,
Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th
657, 686.) “[I]ssue preclusion applies (1) after final adjudication
(2) of an identical issue (3) actually litigated and necessarily
decided in the first suit and (4) asserted against one who was a
party in the first suit or one in privity with that party.” (DKN
Holdings, at p. 825; see Meridian Financial Services, at p. 686.)
“[A]n issue was actually litigated in a prior proceeding if it
was properly raised, submitted for determination, and
determined in that proceeding.” (Hernandez v. City of Pomona
(2009) 46 Cal.4th 501, 511; see Ayala v. Dawson (2017)
13 Cal.App.5th 1319, 1330.) “‘The “identical issue” requirement
addresses whether “identical factual allegations” are at stake in
the two proceedings, not whether the ultimate issues or
dispositions are the same.’” (Hernandez, at pp. 511-512; see
Lucido v. Superior Court (1990) 51 Cal.3d 335, 342; Key v. Tyler
(2019) 34 Cal.App.5th 505, 534.) “And the ‘“necessarily decided”’
prong means only that ‘the issue not have been “entirely
unnecessary” to the judgment in the initial proceeding.’” (Key, at
p. 534; see Lucido, at p. 342.) “In considering whether these
criteria have been met, courts look carefully at the entire record
from the prior proceeding, including the pleadings, the evidence,
15
the jury instructions, and any special jury findings or verdicts.”
(Hernandez, at p. 511; see Ayala, at pp. 1326-1327 [“‘the
pleadings and proof in each case must be carefully scrutinized to
determine whether a particular issue was raised even though
some legal theory, argument or “matter” relating to the issue was
not expressly mentioned or asserted’”].)
If all four of the requirements are satisfied, the court must
also determine whether applying issue preclusion would be
consistent with the public policies underlying the doctrine.
(Meridian Financial Services, Inc. v. Phan, supra, 67 Cal.App.5th
at p. 686; State Compensation Insurance Fund v. ReadyLink
Healthcare, Inc. (2020) 50 Cal.App.5th 422, 448.) “These policies
include ‘conserving judicial resources and promoting judicial
economy by minimizing repetitive litigation, preventing
inconsistent judgments which undermine the integrity of the
judicial system, and avoiding the harassment of parties through
repeated litigation.’” (Meridian Financial Services, at
pp. 686-687; see State Compensation Insurance Fund, at p. 448.)
The party asserting issue preclusion has the burden of
establishing the requirements to apply that doctrine. (Howard
Jarvis Taxpayers Assn. v. Weber (2021) 67 Cal.App.5th 488, 499;
see Lucido v. Superior Court, supra, 51 Cal.3d at p. 341; State
Compensation Insurance Fund v. ReadyLink Healthcare, Inc.,
supra, 50 Cal.App.5th at p. 448.) Whether to apply the doctrine
of issue preclusion is a question of law that we review de novo.
(Thee Aguila, Inc. v. Century Law Group, LLP (2019)
37 Cal.App.5th 22, 28; Johnson v. GlaxoSmithKline, Inc. (2008)
166 Cal.App.4th 1497, 1507.)
16
2. Issue Preclusion Did Not Apply To Prevent the
Trial Court from Considering Evidence Strum
Committed Acts of Domestic Violence Between
February 2018 and February 2019
In the dissolution action, the family law court considered
whether Strum “committed further acts of domestic violence” in
connection with the court’s analysis of whether Strum rebutted
the presumption under section 3044 that, as a perpetrator of
domestic violence, awarding him sole or joint physical or legal
custody of his children was detrimental to their best interest.
(See § 3044, subds. (a), (b)(2)(F).) Under section 3044,
subdivision (b), a perpetrator of domestic violence can overcome
the presumption that awarding the perpetrator sole or joint
physical or legal custody of a child would be detrimental to the
child’s best interest by showing that (1) giving the perpetrator
sole or joint custody is in the best interest of the child and (2) on
balance, the factors listed in section 3044, subdivision (b)(2),
support the finding that frequent and continuing contact with
both parents will not jeopardize the child’s health, safety, or
welfare. The factors the court must consider include whether
“[t]he perpetrator is restrained by a protective order or
restraining order, and has or has not complied with its terms and
conditions,” and whether “[t]he perpetrator of domestic violence
has committed further acts of domestic violence.” (§ 3044,
subds. (b)(2)(E), (F).)
The family law court found Strum had “complied with the
terms of the permanent restraining order; and [Strum] has not
committed any further acts of domestic violence since [the
restraining order] was issued.” Based on this finding, Strum, in
his motion in limine for the hearing on Brubaker’s motion to
17
renew the restraining order, argued that any alleged abuse
during the time period February 22, 2018 to February 13, 2019
had already been adjudicated and that Brubaker “should be
estopped from presenting any further evidence at the hearing for
[her] renewal of the protective order.”
The trial court erred in finding issue preclusion barred
Brubaker from presenting evidence of Strum’s alleged abuse from
February 2018 to February 2019 because the issue addressed by
the trial court on Brubaker’s request to renew the restraining
order was not an issue the parties litigated and the family law
court necessarily decided in the marriage dissolution trial. (See
DKN Holdings LLC v. Faerber, supra, 61 Cal.4th at p. 825;
Meridian Financial Services, Inc. v. Phan, supra, 67 Cal.App.5th
at p. 686.) The issue the family law court heard in February 2019
and decided in July 2019 was whether Strum rebutted the
presumption under section 3044 that giving him sole or joint
custody of the children was detrimental to their best interest.
The issue the trial court heard and decided in July 2020 in ruling
on Brubaker’s request to renew the restraining order was
whether Brubaker had a reasonable fear of future abuse. Those
issues were very different. (See Lucido v. Superior Court, supra,
51 Cal.3d at p. 342; Key v. Tyler, supra, 34 Cal.App.5th at p. 534.)
And while evidence of additional acts of domestic violence
or a violation of the original restraining order was relevant to
whether Brubaker had a reasonable fear of future abuse (see
Lister v. Bowen, supra, 215 Cal.App.4th at p. 335), such evidence
was not required to renew the restraining order. (See Ashby v.
Ashby, supra, 68 Cal.App.5th at pp. 515-516 [“a party’s violation
of [a domestic violence restraining order] can support a finding of
reasonable apprehension,” but “the reverse is not true”:
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compliance with a domestic violence restraining order does not
“preclude[ ] a finding of reasonable apprehension”]; Abatti v.
Imperial Irrigation Dist. (2020) 52 Cal.App.5th 236, 306-307
[issue preclusion does not apply where a finding from an earlier
action is relevant to “but does not resolve the inquiry” in the later
action]; Johnson v. GlaxoSmithKline, Inc., supra,
166 Cal.App.4th at p. 1513 [“‘where the previous decision rests on
a “different factual and legal foundation” than the issue sought to
be adjudicated in the case at bar, [issue preclusion] should be
denied’”].) Even if Strum’s conduct between February 2018 and
February 2019 did not constitute domestic violence or violate the
terms of the restraining order, it could have contributed to a
reasonable fear of future abuse. (See Ashby v. Ashby, supra,
68 Cal.App.5th at p. 516 [conduct that does not violate the
original restraining order may still contribute to the protected
person’s fear of future abuse].) Thus, issue preclusion did not
apply, and the trial court erred in granting Strum’s second
motion in limine and excluding evidence of Strum’s conduct
between February 22, 2018 and February 13, 2019.
C. The Trial Court Erred in Excluding Evidence
Underlying the Original Restraining Order
The trial court compounded its error in granting Strum’s
second motion in limine by also excluding evidence underlying
the original restraining order (even though Strum did not request
that relief).5 Brubaker argues the trial court erred “in holding
5 We review a trial court’s rulings on the admissibility of
evidence for abuse of discretion. (Pilliod v. Monsanto Co. (2021)
19
that the party seeking renewal must show that abuse occurred
while the original restraining order was in place.” That
characterization of the trial court’s ruling is not quite correct.
The trial court acknowledged the legal standard for renewal was
a reasonable apprehension of future abuse, but the court
precluded Brubaker from demonstrating that fear through
evidence of Strum’s conduct prior to the original restraining
order. Brubaker is correct, however, that the trial court erred.
The trial court suggested it would exclude the evidence that
led to the original restraining order because Judge Goldberg
believed at the time he issued that order that two years was
sufficient to protect Brubaker throughout the divorce
proceedings. But neither the fact Judge Goldberg issued the
original restraining order for two years nor his reason for doing
so made the evidence underlying the original restraining order
irrelevant to Brubaker’s request to renew that order. Section
6345 does not require “‘a showing of any further abuse since the
issuance of the original order’” to warrant renewal. (Perez, supra,
1 Cal.App.5th at p. 397; see Ashby v. Ashby, supra,
68 Cal.App.5th at pp. 509-510; Eneaji v. Ubboe (2014)
229 Cal.App.4th 1457, 1464.) Indeed, the most important
consideration in determining whether to grant a request to renew
a domestic violence restraining order “is not the type or timing of
abuse, but whether the protected party has a reasonable fear of
future abuse.” (Perez, at p. 397; see ibid. [reversing an order
denying a request to renew a domestic violence restraining order
where the trial court considered only whether there was “‘actual
67 Cal.App.5th 591, 630; Christ v. Schwartz (2016) 2 Cal.App.5th
440, 446-447.)
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abuse within the time period that the restraining order has been
issued’”]; Eneaji, at p. 1464 [reversing an order denying a request
to renew a domestic violence restraining order where the trial
court found “nothing happened in the three years since the
restraining order”].)
The trial court wrongly believed it could not consider the
evidence underlying the original restraining order. By excluding
relevant evidence of Brubaker’s fear of future abuse, the court
abused its discretion by limiting Brubaker’s ability to meet her
burden of proof. (See Perez, supra, 1 Cal.App.5th at p. 396 [“‘“If
the court’s decision is influenced by an erroneous understanding
of applicable law or reflects an unawareness of the full scope of
its discretion, the court has not properly exercised its discretion
under the law.”’”]; Eneaji v. Ubboe, supra, 229 Cal.App.4th at
p. 1465 [a decision “predicated on an erroneous understanding of
the applicable law . . . must be reversed and remanded”].)
Following the trial court’s lead, Strum argues the “‘pattern
of situational abuse’” that justified limiting the original
restraining order to two years supports an exception to the
general rule that a protected party need not present evidence of
additional abuse to renew a domestic violence restraining order.
But the Act does not include any such exception, and we decline
Strum’s invitation to read one into it. (See Mora v. Webcor
Construction, L.P. (2018) 20 Cal.App.5th 211, 223 [a court should
not rewrite statutes or read into them an exception that will
materially affect their operation to make the statutes conform to
a presumed intention not expressed or otherwise apparent in the
statutory language]; Soto v. Motel 6 Operating, L.P. (2016)
4 Cal.App.5th 385, 393 [same].)
21
Strum also argues the trial court did consider “the
underlying abuse that gave rise to the restraining order.” He
contends the trial court “‘went back and . . . made sure that [it]
looked at the original restraining order request’” and reviewed
Judge Goldberg’s reasons for granting the two-year restraining
order. The trial court, however, considered the original request
for a restraining order and Judge Goldberg’s reasoning in the
context of granting Strum’s motion in limine, not in considering
the merits of Brubaker’s request to renew the restraining order.
Moreover, Judge Goldberg’s reasons for limiting the original
restraining order to two years did not preclude Brubaker from
showing she continued to have a reasonable fear of future abuse
after the restraining order was due to expire. (See Ritchie, supra,
115 Cal.App.4th at p. 1290 [“the trial judge ordinarily should
consider the evidence and findings on which th[e] initial order
was based in appraising the risk of future abuse should the
existing order expire”].)
22
DISPOSITION
The order is reversed with directions for the trial court to
hold a new hearing on Brubaker’s request to renew the protective
order and to allow Brubaker to introduce all relevant evidence in
support of her request. Brubaker is to recover her costs on
appeal.
SEGAL, Acting P. J.
We concur:
FEUER, J.
IBARRA, J.*
* Judge of the Santa Clara County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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