In re E.F. ( 2020 )

Filed 2/13/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re E.F., A Person Coming Under B295755 (Consolidated with
the Juvenile Court Law. B297079)
(Los Angeles County
Super. Ct. No. PJ53161)
THE PEOPLE,
Plaintiff and Respondent,
v.
E.F.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Morton Rochman, Judge. Affirmed.
Courtney M. Selan, under appointment by the Court of
Appeal, for Defendant and Appellant E.F.
Jackie Lacey, District Attorney, Phyllis Asayama and
Grace Shin, Deputy District Attorneys, for Plaintiff and
Respondent.
******
The juvenile court entered a temporary restraining order
(TRO) and, subsequently, a three-year restraining order against
a 14-year-old charged with poisoning one of her high school
classmates. Among other things, this appeal presents the
following question: Is a prosecutor seeking a TRO under Welfare
and Institutions Code section 213.5 required to give advance
notice of her intent to do so (or is notice at the hearing where the
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TRO is requested sufficient)? The Court of Appeal in In re L.W.
(2020) 44 Cal.App.5th 44 (L.W.) held that advance notice is
required. We respectfully disagree, and publish to explain why.
We also reject the juvenile’s challenge to the lengthier restraining
order, and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
In December 2018, E.F. (minor) and L.S. were ninth
graders enrolled in the same art class in high school. For
unknown reasons, minor offered L.S. a Cup of Noodles,
microwaved it, and handed it to him. When L.S. went to drink
the broth, it smelled of bleach and he threw it out.
II. Procedural Background
In January 2019, the People filed a petition urging the
juvenile court to exert delinquency jurisdiction over minor
because she had committed the crime of poisoning, a felony (Pen.
Code, § 347, subd. (a)).
On February 11, 2019, minor first appeared in juvenile
court with counsel for arraignment and denied the allegation.
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
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The prosecutor asked the juvenile court to issue a TRO enjoining
minor from having any contact with L.S. and ordering her to stay
away from him. Minor objected on the ground that the
prosecutor’s request did not meet the procedural requirements
set forth in Code of Civil Procedure section 527. Citing the arrest
report that summarized the offense, the juvenile court overruled
minor’s objection and issued the requested TRO, which was set to
expire on March 5, 2019 when the court would hear evidence on
whether to issue a further restraining order.
On March 5, 2019, the juvenile court continued the hearing
until April 2, 2019, and ordered that the TRO remain in effect
until that date.
At the April 2, 2019 hearing, the prosecutor called L.S. as a
witness in support of the People’s request for a longer, three-year
restraining order. L.S. testified to the facts set forth above. He
also repeatedly affirmed that he wanted a restraining order to
protect him because he was unsure what else minor might do,
although he admitted that he did not think minor’s conduct was
“a big deal” at the time. The juvenile court issued the further
restraining order with terms mirroring the TRO’s.
Minor filed timely notices of appeal from the TRO and the
restraining order. We consolidated the appeals.
DISCUSSION
On appeal, minor argues that (1) the TRO was invalid
because (a) it was procedurally defective and (b) unsupported by
substantial evidence, and (2) the restraining order is invalid
because it is unsupported by substantial evidence. We have
jurisdiction to hear her appeals of these orders. (In re Jonathan
V. (2018) 19 Cal.App.5th 236, 238, fn. 1 [“Restraining orders
issued in juvenile proceedings are appealable.”] (Jonathan V.).)
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I. TRO
A. Mootness
As a threshold matter, minor’s challenge to the TRO is
moot. (O’Kane v. Irvine (1996) 47 Cal.App.4th 207, 210, fn. 4 [an
“appeal from [a] TRO, following [a] trial court’s grant of [a longer]
restraining order, is moot”].)
Minor urges us to exercise the discretion we have to
overlook mootness as to issues that are “‘“capable of repetition,
yet evading review.”’” (United Farm Workers v. Superior Court of
Santa Cruz County (1975) 14 Cal.3d 902, 906-907, quoting So.
Pac. Terminal Co. v. Int. Comm. Comm. (1911) 219 U.S. 498,
515.) At most, this discretion extends to her procedural
challenge, since her substantial evidence challenge is necessarily
grounded in the facts of this case and hence not “capable of
repetition.”
B. Notice requirement for TROs under section 213.5
In her procedural challenge, minor argues that the juvenile
court erred in issuing the TRO because the prosecutor did not
provide her advance notice of his intention to seek a TRO before
the hearing when it was requested. Because minor’s argument
turns on statutory interpretation, our review is de novo.
(Jonathan V., supra, 19 Cal.App.5th at p. 241.)
Section 213.5 authorizes a juvenile court, when a petition
to exert delinquency jurisdiction is pending, to issue an “ex parte
order” that “enjoin[s] the child from contacting, threatening,
stalking or disturbing the peace of any person the court finds to
be at risk from the conduct of the child.” (§ 213.5, subd. (b).)
More specifically, section 213.5 explicitly authorizes two different
types of ex parte restraining orders: (1) TROs that may be
“granted without notice,” but which presumptively expire after 21
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to 25 days (§ 213.5, subd. (c)(1)), and (2) restraining orders that
may be granted “upon notice and a hearing,” but which may be
effective for up to three years (id., subd. (d)(1)). (See Jonathan
V., supra, 19 Cal.App.5th at p. 241 [so recognizing].) The
applicable Rule of Court echoes these distinctions, providing in
pertinent part that a TRO application “may be submitted without
notice.” (Cal. Rules of Court, rule 5.630(d).) In light of the plain
language of section 213.5 spelled out above, a juvenile court that
issues a TRO (rather than a longer-term restraining order) may
do so “without notice”—that is, even when a prosecutor does not
give the juvenile advance notice of his or her intent to do so.
(People v. Maultsby (2012) 53 Cal.4th 296, 299 [“The statute’s
plain language controls unless its words are ambiguous.”].)
Minor resists this conclusion by highlighting the language
contained in subdivision (b) of section 213.5. That is the
subdivision that authorizes both types of restraining orders (that
is, TROs and longer-lasting restraining orders), and it requires
an “application in the manner provided by Section 527 of the
Code of Civil Procedure.” (§ 213.5, subd. (b).) From this, minor
argues that (1) Code of Civil Procedure section 527 provides that
“[n]o temporary restraining order shall be granted without notice
to the opposing party” unless (a) an “affidavit” or “verified
complaint” “show[]” “that great or irreparable injury will result to
the applicant before the matter can be heard on notice,” and (b)
the applicant “certifies . . . under oath” to his or her efforts to give
notice (Code Civ. Proc., § 527, subd. (c)); and (2) several cases
have held that “notice” for purposes of granting a restraining
order means notice in advance of the hearing where the order is
granted (Babalola v. Superior Court (2011) 192 Cal.App.4th 948,
965 [so noting, in dicta] (Babalola); Jonathan V., supra, 19
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Cal.App.5th at p. 242 [so noting]). Thus, minor concludes, the
issuance of the TRO in this case was improper because section
213.5, through its cross-reference to Code of Civil Procedure
section 527, requires advance notice unless one of its special
requirements are met and the prosecutor did not meet those
requirements here.
We reject minor’s argument—and thus part ways with
L.W.—for three reasons.
First, minor’s reading of section 213.5 contravenes the
plain language of section 213.5 and that language, as discussed
above, expressly contemplates—and hence expressly authorizes—
that “a temporary restraining order” may be “granted without
notice.” (§ 213.5, subd. (c)(1).) At best, section 213.5’s cross-
reference to Code of Civil Procedure section 527 creates some
degree of ambiguity regarding the necessity of advance notice
insofar as section 213.5 does not require advance notice for TROs
and Code of Civil Procedure section 527 presumptively does. But
any ambiguity must be resolved in favor of section 213.5’s explicit
language that TROs issued under its auspices may be issued
“without notice.” This resolution is the only construction of
section 213.5 that gives effect to the subdivision that most
directly and specifically speaks to the notice required for TROs
issued under section 213.5 (State Dept. of Public Health v.
Superior Court (2015) 60 Cal.4th 940, 960 [“‘more specific
provisions take precedence over more general ones’”], that
harmonizes both subdivisions of section 213.5 by giving effect to
section 213.5’s specific language dispensing with advance notice
for TROs while incorporating all Code of Civil Procedure section
527’s procedures that do not conflict with section 213.5’s specific
language (Ste. Marie v. Riverside County Regional Park & Open-
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Space Dist. (2009) 46 Cal.4th 282, 289 [“We must of course read
statutes as a whole so that all parts are harmonized and given
effect.”]), and that avoids rendering section 213.5’s specific
language superfluous (People v. Villatoro (2012) 54 Cal.4th 1152,
1173 [“We generally avoid interpretations that render any part of
a statute superfluous.”]).
Second, giving effect to section 213.5’s express language
dispensing with advance notice for TROs also gives effect to the
reasonable line drawn by our Legislature: TROs do not need
advance notice because they are typically issued under more
emergency circumstances, while longer-lasting restraining orders
do need advance notice because they are typically issued under
less pressing circumstances (usually because a TRO is already in
place). Indeed, all of the cases minor cites in support of her
argument that advance notice is required all deal with non-TROs.
(Babalola, supra, 192 Cal.App.4th at pp. 951, 965 [restraining
order to protect witnesses under Penal Code section 136.2];
Jonathan V., supra, 19 Cal.App.5th at pp. 240-242 [two-year
restraining order under section 213.5]; see also, People v. Ponce
(2009) 173 Cal.App.4th 378, 380-383 [restraining order to protect
witnesses under Penal Code section 136.2] (Ponce); People v.
Selga (2008) 162 Cal.App.4th 113, 115-119 [same] (Selga).) None
deals with TROs, as Jonathan V. was careful to point out.
(Jonathan V., at p. 242 [“[t]he restraining order in this case is not
a temporary restraining order”].)
Lastly, giving effect to section 213.5’s express language
disavowing any advance notice requirement still accords with due
process. Although section 213.5 and its implementing Rule of
Court purport to authorize TROs “without notice,” TROs issued
at arraignments are not literally “without notice”; instead, they
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are issued without notice in advance of the hearing. The minor
appearing at the arraignment with counsel is still notified of the
prosecutor’s TRO application and has the opportunity to oppose
the application. Because due process guarantees notice and the
opportunity to be heard (Today’s Fresh Start, Inc. v. Los Angeles
County Office of Education (2013) 57 Cal.4th 197, 212), the
issuance of TROs under section 213.5 accords with due process
and thus provides no basis to read section 213.5 in a counter-
textual manner to avoid possible constitutional infirmity. (E.g.,
People v. Garcia (2017) 2 Cal.5th 792, 815 [noting “canon of
constitutional avoidance” obligating courts to “construe statutes
to avoid serious constitutional problems if such a reading is fairly
possible”].)
II. Restraining Order
We review a trial court’s issuance of a restraining order for
an abuse of its discretion, and the evidentiary foundation for such
an order for substantial evidence. (In re Carlos H. (2016) 5
Cal.App.5th 861, 864 (Carlos H.); In re Cassandra B. (2004) 125
Cal.App.4th 199, 210-211.) Under substantial evidence review,
we “interpret the facts in the light most favorable to the [order],
indulge . . . all reasonable inferences in support of the trial court’s
order,” and do not reweigh the evidence. (Hilb, Rogal &
Hamilton Ins. Services v. Robb (1995) 33 Cal.App.4th 1812,
1820.)
Substantial evidence supports the juvenile court’s issuance
of the restraining order in this case. As noted above, and as
pertinent here, the court may issue an order that “enjoin[s] the
child from . . . disturbing the peace of any person the court finds
to be at risk from the conduct of the child.” (§ 213.5, subd. (b).)
To issue such an order, “[t]here need only be evidence that the
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[minor who is restrained] ‘disturbed the peace’ of the protected
child”—that is, that the minor engaged in “‘“conduct that
destroy[ed] the mental or emotional calm of the other party.”’”
(In re Bruno M. (2018) 28 Cal.App.5th 990, 997, (Bruno M.),
quoting Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389,
401.) Here, L.S. testified that minor put a chemical smelling like
bleach in a Cup of Noodles she offered to prepare for him, and
that he was “possibly” concerned that drinking bleach could cause
“something bad” to happen to him. Minor’s act of putting bleach
in food given to a classmate, who recognized that ingesting it
could hurt him and feared that she could do something similar in
the future, is sufficient to destroy that classmate’s “mental or
emotional calm.” Thus, it was enough to support the restraining
order.
Minor resists this conclusion. Citing Selga, supra, 162
Cal.App.4th at p. 118, and Ponce, supra, 173 Cal.App.4th at pp.
383-385, she contends that the People also needed to prove a
potential for future intimidation or dissuasion and points out the
absence of any evidence that minor has since tried to harm L.S.
Citing Carlos H., supra, 5 Cal.App.5th 861, she further argues
that there is no reason to apply a different standard for juveniles
than adults. As noted above, however, Selga and Ponce regard
orders to protect witnesses under Penal Code section 136.2 and
are for that reason inapt. Unlike Penal Code section 136.2,
section 213.5 does not require “evidence of a reasonable
apprehension of future physical abuse” or potential harm as a
predicate to the issuance of a restraining order. (Bruno M.,
supra, 28 Cal.App.5th at p. 997.) Thus, the different standards
rest—not on the age of the restrained party—but on the different
substantive standards in the two different statutes. And Carlos
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H. is not to the contrary; indeed, it merely held that section 213.5
empowers a juvenile court to issue a stay-away order like the
ones available for adults, but in no way held that section 213.5 is
limited to the types of restraining orders (or the subset of such
orders authorized by Penal Code section 136.2) that may be
issued against adults. (Carlos H., at p. 870.) Citing Code of Civil
Procedure section 527, subdivision (c), minor asserts that the
People also needed to prove that L.S. would suffer “great or
irreparable injury” if the order were not issued. But this showing
is only required when a restraining order is issued “without
notice to the opposing party” (Code Civ. Proc., § 527, subd. (c)),
and the restraining order issued by the juvenile court on April 2,
2019 was preceded by weeks’ worth of notice. Minor lastly notes
that the People failed to prove that she actually put bleach in
L.S.’s Cup of Noodles. But under substantial evidence review, we
are to indulge reasonable inferences favorable to the order and
one can reasonably infer that a liquid that smells like bleach may
contain bleach.
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DISPOSITION
The orders are affirmed.
CERTIFIED FOR PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, P.J.
LUI
_________________________, J.
CHAVEZ
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