Malinowski v. Martin ( 2023 )

Filed 7/14/23
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
KAMILA MALINOWSKI,
Plaintiff and Appellant,
A164713
v.
JUSTIN STEVEN MARTIN, (San Mateo County
Super. Ct. No. 21FAM01531)
Defendant and Respondent.
In 2018, Kamila Malinowski filed for dissolution of marriage from
Justin Martin. While that case was pending, in September 2021, Malinowski
filed an ex parte request for a domestic violence restraining order (DVRO)
under the Domestic Violence Prevention Act (DVPA; Fam. Code, § 6200 et
seq.), seeking to protect herself and the parties’ two children (as additional
protected persons) from Martin. Pending a hearing on the merits of
Malinowski’s request, the trial court issued a domestic violence temporary
restraining order (DVTRO) against Martin with “no-contact” and “stay-away”
provisions. Subsequently, however, the court modified the DVTRO to allow
Martin brief and peaceful contact with the children consistent with a
visitation order entered in July 2021 in the dissolution case.
* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this
opinion is certified for publication with the exception of parts A and B of the
Discussion.
1
On appeal, Malinowski contends the trial court erred by modifying the
DVTRO without adhering to section 533 of the Code of Civil Procedure,1
which requires notice and a showing of changed circumstances for
modification or dissolution of an injunction or a temporary restraining order.
In the unpublished portion of our opinion, we address threshold
questions of appealability and mootness. Though we find the case is moot, we
will exercise our discretion to retain and decide the appeal because it
presents an important and potentially recurring issue of law in the context of
DVPA cases involving parallel dissolution proceedings. In the published
portion of our opinion, we conclude that section 533 does not provide the
exclusive means by which a trial court in a DVPA action may modify a
DVTRO. Thus, a trial court is not necessarily obligated to proceed under
section 533 before modifying a DVTRO to allow for exceptions consistent with
child visitation ordered in a parallel dissolution case. But in an appropriate
case, the requirements of due process may require the trial court to consider
evidence presented at a noticed hearing consistent with section 533 in order
to resolve disputed factual matters essential to the court’s reasonable
exercise of discretion to modify or terminate a DVTRO.
FACTUAL AND PROCEDURAL BACKGROUND
A. Ex Parte Request for DVRO
On September 14, 2021, Malinowski filed an ex parte request for a
DVRO against Martin, seeking to protect herself, as well as the parties’ two
children as additional protected persons. Malinowski requested that Martin
have no direct or indirect contact with her or the children, and that he be
ordered to stay at least 100 yards from them. In her application, Malinowski
1 Further unspecified section references are to the Code of Civil
Procedure.
2
disclosed the case numbers for the parties’ marital dissolution action and a
prior DVPA case. Her application indicated she had a child custody or
visitation order that she wanted changed and asked that Martin be ordered
to make a debt payment of $17,000 to the court-appointed child custody
evaluator, Dr. Robin Press, for a custody evaluation.
In her supporting declaration, Malinowski described prior instances of
domestic violence by Martin, including acts of abuse “ ‘going back to 2015’ ”
which resulted in a three-year DVRO in October 2020 in favor of Malinowski
that did not include the children as additional protected persons. According
to Malinowski, the trial judge in the prior DVPA case (Hon. Richard Dubois)
indicated he would have included the children “but for the fact that the
Family Court had a careful eye on their safety and health.” She further
alleged nine specific instances of alleged physical and verbal abuse by Martin
against the children in April, May, June, and August of 2021. In the August
incident, Martin allegedly threatened to “ ‘punch’ ” one of the children in the
head. Though Malinowski acknowledged that in March 2021, the trial court
in the dissolution case “ordered the removal of supervised-visitation
protective measures of our children and doubled the amount of time that the
children would spend with their Father,”2 she claimed the children’s “health,
safety, and emotional condition [had] dramatically declined” since
unsupervised visits began.
The trial court (Hon. Rachel Holt) immediately issued a DVTRO
against Martin that included the children as additional protected persons
2 Based on the record, it appears the trial court in the dissolution matter
issued two orders regarding visitation, one in March 2021 and another in
July 2021. Malinowski disclosed only the former order in her supporting
declaration.
3
and contained a no-contact order and a stay-away order.3 The DVTRO
identified no exceptions to the no-contact and stay-away orders. By its terms,
the DVTRO was set to expire at the conclusion of a hearing set for October 7,
2021.
B. Peremptory Challenge and Amended DVTRO
After the DVPA case was assigned for all purposes to the Honorable
Sean Dabel, who was also the judge in the dissolution case, Malinowski filed
a peremptory challenge under section 170.6. On September 22, 2021, the
trial court granted the peremptory challenge and issued an order of
reassignment. The court also issued an amended but mostly identical
DVTRO that included the children as additional protected persons and
extended the order’s protections through October 8, 2021. Like the original
DVTRO, the amended version contained no-contact and stay-away orders
without identifying any exceptions. On October 8, the trial court set the
matter for a further hearing on November 1, 2021, and ordered the DVTRO
to remain in place until then.
C. November 2021
In advance of the November 1, 2021, hearing, the parties filed trial
briefs, witness and exhibit lists, and motions in limine. However, the matter
3 Notably, the trial court did not check a box in item 6a of the DVTRO
(Judicial Council form DV-110) applying the no-contact order to the
“Additional Protected Persons” identified in item 3 (e.g., the parties’
children). It is unclear whether this was intentional or inadvertent.
Additionally, we note that in item 12 of the DVTRO form, the court checked a
box indicating that Malinowski’s request to modify the existing child custody
and visitation order was “[d]enied until the hearing.” Yet the court also
issued a child custody and visitation order on Judicial Council form DV-140
(indicating “[n]o visitation to” Martin) even though a DV-140 order normally
issues only when a request for custody and visitation has been “[g]ranted”
under item 12 of the DVTRO.
4
was reassigned several times and continued for a trial setting conference on
November 17 before Judge Holt. By court order, the amended DVTRO was
set to expire at the conclusion of the November 17 hearing.
At the November 17 trial-setting conference, Judge Holt calendared the
DVRO trial for the earliest available date, which was in October 2022.
Martin informed Judge Holt that he had not had any contact with the
children for three months; that Malinowski had failed to comply with Judge
Dabel’s order to advance the $17,000 in fees for Dr. Press’s report; and that
Judge Dabel had already “lifted the restriction of the supervised visitation
that had been in effect for many months.” Emphasizing that all but one of
the counts in the domestic violence action had been brought to the attention
of Dr. Press as part of the evaluation process in the dissolution action, Martin
urged Judge Holt to defer to Judge Dabel’s decision in July 2021 that allowed
child visitation given his “working history in this case” for years.
After further argument, Judge Holt ruled that “[i]n light of the fact that
there are some subsequent decisions that may be made by Judge Dabel at the
end of this month,” the trial court would reissue the DVTRO with
“modifications providing for the exceptions for any brief and peaceful contact
that is required for any court ordered visitation of the minor children,
pending any further orders in Judge Dabel’s department.” Judge Holt
clarified she was “simply providing the exceptions” that were not included in
the original September 2021 DVTRO and ordered that the amended DVTRO
“remain in full force and effect with the modifications” through October 20,
2022, at 2:00 p.m. Judge Holt scheduled a review hearing for January 5,
2022, and instructed Malinowski to prepare a formal written order consistent
with the court’s rulings.
5
Thereafter Malinowski filed an ex parte application asking the trial
court to reconsider or set aside its November 17, 2021, ruling. Malinowski
argued that the court’s modification of the DVTRO improperly removed the
no-contact and stay-away provisions without notice or an evidentiary
showing as required under section 533. The court denied the application.
D. January 5, 2022
At the January 5, 2022, review hearing, Judge Holt began by recalling
she had previously continued the matter because “you were all going to be
back in front of Judge Dabel in regards to some possible custody modification.
I had made the exception for brief and peaceful contact. My understanding
is, that, apparently, wasn’t filed.[4] Judge Dabel didn’t make any changes.
Judge Dabel has since left the family law department.” Judge Holt further
noted that both the dissolution case and the DVPA action were now assigned
to her.
Martin explained at the hearing that he had not had contact with the
children for five months, and he requested “the immediate restoration of
contact.” Martin represented that all but one of the abuse allegations in
Malinowski’s DVRO application would be covered in Dr. Press’s forthcoming
report. Martin emphasized there was “no battery in any of the counts” and
stated the children “are not in any unreasonable risk of harm.”
Judge Holt set another review hearing for March 1, 2022, based on her
stated hope that Dr. Press’s report would be released by then. Following the
4 Based on the papers filed in connection with Martin’s motion to dismiss
this appeal (which we denied on October 3, 2022), it appears there was a
delay in finalizing the written order after the November 17, 2021, hearing.
However, Malinowski ultimately submitted a proper order which was signed
by Judge Holt and entered on January 5, 2022, following the review hearing
on that date.
6
hearing, Judge Holt issued a second amended DVTRO on the revised version
of Judicial Council form DV-110, which became effective January 1, 2022. In
it, the court granted the no-contact and stay-away orders in items 8a and 9a,
respectively, but also checked boxes in items 8b and 9b for “Exception” and
“Other (explain): see MC-025 Attachment to this Order.” In the attached
form MC-025, the court indicated it was “mak[ing] the exception for brief and
peaceful contact with the minor children only during such court-ordered
contacts or visits as may be ordered following the entry of this Second
Amended Temporary Restraining Order.” By its terms, the second amended
DVTRO was set to expire at conclusion of the DVRO trial in October 2022.
E. March 1, 2022
At the March 1, 2022, review hearing, Judge Holt began with a
comprehensive account of the “fairly complex history” of the case to date. As
she explained, when Malinowski first filed her DVRO application on
September 14, 2021, “somehow it was missed that there was already an
active dissolution matter, as well as the outstanding case number that the
other restraining order had been issued under,” and thus, instead of going to
Judge Dabel, the application went to Judge Holt “as the signing judge on
Tuesdays, which I can tell you all is a flurry of ex partes in the midst of
hearings in the morning and [requests for orders] in the afternoon.” Judge
Holt had issued the initial DVTRO without having “the independent
knowledge of what had long been going on in this case in regards to custody
and evaluation.” After the matter was assigned to her, she “included the
exception for any court-ordered visitation to give Judge Dabel the opportunity
to make whatever orders he felt were appropriate” based on his significant
history with the dissolution case involving the same parties.
7
Judge Holt further explained that having now had the opportunity to
review all of the relevant filings and transcripts for “the hearings that
occurred in front of Judge Dabel through early last year, spring, and
summer,” she understood there was a “current custody order” in place dated
July 1, 2021, “wherein Judge Dabel increased the timeshare with [Martin] to
15 hours per week” with “unsupervised visits, but supervised exchanges.”
Judge Holt explained “the exceptions for court-ordered visitation” that she
ordered in November 2021 “allow[ed] for visitation pursuant to that July 1st
order.”
Judge Holt ultimately ruled that because Judge Dabel’s July 2021
visitation order was still in full force and effect, she would delete the prior
September 14 order that included no visitation to Martin. Judge Holt further
ordered the DVTRO to remain in effect until the DVPA hearing in October
2022, but “with the exceptions for brief and peaceful contact for court-ordered
visitation.” Malinowski objected “to the Court’s ruling as it did without
taking any evidence,” and because “[t]he matter wasn’t even on for a ruling
on visitation today.”
F. Notice of Appeal
On March 7, 2022, Malinowski filed a notice of appeal from the
following orders: (1) the November 17, 2021, minute order allowing for
peaceful contact for visitation and the safe exchange of the children; (2) the
December 1, 2021, order denying Malinowski’s ex parte application to
reconsider or set aside the November 17 ruling; (3) the second amended
DVTRO making exceptions to the no-contact order; and (4) the March 1,
2022, ruling authorizing Martin to have unsupervised visits with the children
pursuant to the terms of the visitation order issued by Judge Dabel in July
2021 in the dissolution case.
8
DISCUSSION
A. Appealability
As a preliminary matter, Martin argues that the statement of
appealability in Malinowski’s opening brief fails to comply with California
Rules of Court, rule 8.204(a)(2)(B), because Malinowski does not identify the
judgment or orders from which she appeals. Even so, we will exercise our
discretion to disregard such noncompliance (Cal. Rules of Court, rule
8.204(e)(2)(C)), as the notice of appeal clearly identifies the four orders from
which the appeal was taken.
Martin nevertheless maintains that Malinowski fails to demonstrate
that any of the four orders listed in the notice of appeal are, in fact,
appealable. Relying on Smith v. Smith (2012) 208 Cal.App.4th 1074 (Smith),
Martin argues that the orders are “in the nature of” nonappealable
temporary custody orders and that the minute orders for the hearings on
November 17, 2021, and March 1, 2022, are likewise not appealable because
they were never reduced to writing. We conclude otherwise.
Section 904.1, subdivision (a)(6), makes “an order granting or
dissolving an injunction” appealable. (See In re Marriage of Carlisle (2021)
60 Cal.App.5th 244, 255; S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1257–
1258.) Likewise, an order granting or refusing to grant a temporary
restraining order is directly appealable. (Courtesy Temp. Serv. v. Camacho
(1990) 222 Cal.App.3d 1278, 1286; McLellan v. McLellan (1972) 23
Cal.App.3d 343, 357.) Orders modifying a preliminary injunction “ ‘in
important particulars’ ” have also been found to be appealable. (Chico
Feminist Women’s Health Center v. Scully (1989) 208 Cal.App.3d 230, 252–
253.) Here, the orders in question are modifications of a DVTRO in
important particulars; thus, they are appealable. And while an appeal does
9
not lie from a minute order where a formal order is required (Smith, supra,
208 Cal.App.4th at p. 1091), it appears from the record that, despite some
initial delays, the substance of the trial court’s rulings on November 17, 2021,
and March 1, 2022, were eventually reduced to formal written orders.
Accordingly, we are satisfied that the instant appeal lies from appealable
orders.
B. Mootness
In her reply brief on appeal, Malinowski acknowledged “the potential
mootness of this appeal” due to the completion of the DVRO trial in October
2022, but argued that an exception to the mootness doctrine applies. In view
of this information, we requested and received supplemental briefing from
Martin on the mootness issue, as well as a copy of the trial court’s written
decision after the DVRO trial. On our own motion, we now take judicial
notice of the trial court’s December 13, 2022, statement of decision after the
DVRO trial. (See Evid. Code, § 452, subd. (d); In re Karen G. (2004) 121
Cal.App.4th 1384, 1390 [judicial notice of minute order in deciding mootness
of appeal].)
The statement of decision confirms that the trial on Malinowski’s
request for a DVRO against Martin in favor of Malinowski and the children
was completed in late October 2022 and that her request was denied.
Accordingly, the challenged DVTRO is no longer in effect (see Fam. Code,
§ 245, subd. (c)), and the case is in fact moot (In re Esperanza C. (2008) 165
Cal.App.4th 1042, 1054).
Nevertheless, because the appeal raises an issue of continuing
importance and involves a question “capable of repetition, yet evading
review,” we will exercise our discretion to reach the merits of the appeal. (In
re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404.) Specifically, in DVPA
10
cases involving parallel dissolution proceedings, an appeal from the
modification of a DVTRO will likely become moot due to the generally short
duration of temporary protective orders. (See Fam. Code, § 242; Gonzalez v.
Munoz (2007) 156 Cal.App.4th 413, 420 (Gonzalez) [noting it “ ‘rare for a
Court of Appeal to get a peek into the world of domestic violence proceedings,
because these protective orders are nearly never appealed’ ”].) This appeal
provides us an opportunity to provide useful guidance to parties and trial
courts in DVPA cases involving parallel dissolution proceedings.
C. Modification of DVTRO
Section 533 governs the general process for modifying or dissolving
injunctions and temporary restraining orders. It provides: “In any action,
the court may on notice modify or dissolve an injunction or temporary
restraining order upon a showing that there has been a material change in
the facts upon which the injunction or temporary restraining order was
granted, that the law upon which the injunction or temporary restraining
order was granted has changed, or that the ends of justice would be served by
the modification or dissolution of the injunction or temporary restraining
order.”
Here, Malinowski argues the trial court did not conduct a noticed
evidentiary hearing pursuant to section 533 before it modified the no-contact
and stay-away provisions of the DVTRO to allow for exceptions consistent
with the child visitation ordered in the dissolution proceeding. Even
assuming that is so, we conclude the DVPA did not require the court to
proceed under section 533 in modifying the DVTRO.
The grant or denial of a DVPA protective order is reviewed for abuse of
discretion. (Gonzalez, supra, 156 Cal.App.4th at p. 420.) This standard also
applies to review of an order modifying an injunction. (In re Butler (2018) 4
11
Cal.5th 728, 738.) Accordingly, “ ‘we determine “whether or not the trial
court exceeded the bounds of reason, all of the circumstances before it being
considered.” [Citation.] We presume an order is correct and imply findings
necessary to support the judgment. [Citation.] An abuse of discretion must
be clearly established to merit reversal on appeal. [Citation.] To the degree
resolution of the appeal requires statutory interpretation, we undertake that
review de novo.’ ” (Hupp v. Solera Oak Valley Greens Assn. (2017) 12
Cal.App.5th 1300, 1309–1310.) A trial court abuses its discretion when its
acts transgress the confines of the applicable principles of law. (Du-All
Safety, LLC v. Superior Court (2019) 34 Cal.App.5th 485, 495.)
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.” (Fam. Code,
§ 6220.) “To this end, the DVPA provides for the issuance of restraining or
‘protective’ orders, either ex parte or after hearing, that enjoin specific acts of
abuse.” (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.) The court
may issue an ex parte restraining order based “solely on the affidavit or
testimony of the person requesting the restraining order” where the affidavit
or testimony “shows, to the satisfaction of the court, reasonable proof of a
past act or acts of abuse.” (Fam. Code, § 6300, subd. (a).) After notice to the
restrained party and a hearing on the merits of the domestic violence
allegations, the court may issue “any of the orders described” in Family Code
sections 6320 through 6327. (Fam. Code, § 6340, subd. (a)(1).)5
5 The DVPA expressly authorizes the trial court to issue a variety of
protective orders on an ex parte basis. (See Fam. Code, §§ 6321, subd. (a)
[excluding party from family or other dwelling], 6322 [enjoining additional
12
Division 2, part 4 of the Family Code generally governs the matter of ex
parte temporary restraining orders issued under the DVPA. (See Fam. Code,
§§ 240, subd. (c), 6327.) A hearing on the DVRO request must typically be
held within 21 to 25 days from the date a DVTRO is granted or denied.
(Fam. Code, § 242, subd. (a).) However, the respondent “shall be entitled” to
one continuance (id., § 245, subd. (a)), and the trial court additionally “may,”
on a written or oral request of either party or on the court’s own motion,
continue the hearing for good cause (id., subd. (b)). If the hearing is
continued, any DVTRO that has been issued will remain in effect until the
end of the continued hearing, unless otherwise ordered by the court (id.,
subd. (c)), and the extended DVTRO “shall state on its face the new date of
expiration of the order” (id., subd. (d)). If the DVTRO is extended, “[a] fee
shall not be charged.” (Id., subd. (e).) As pertinent to our inquiry here, the
second sentence of Family Code section 245, subdivision (c), states that “[i]n
granting a continuance, the court may modify or terminate a temporary
restraining order.”
From “the plain, commonsense meaning” of the statutory language
(People v. Manzo (2012) 53 Cal.4th 880, 885), we see that Family Code section
245 addresses both mandatory (“shall”) acts and permissive (“may”) acts of
the trial court in connection with continuing a DVRO hearing and extending
a DVTRO in the interim. The permissive phrasing in subdivision (c) of
Family Code section 245 leads us to conclude the decision to modify a DVTRO
pending a continued hearing is committed to the trial court’s discretion.
specified behaviors], 6323, subd. (a)(1) [temporary custody and visitation
orders], 6323.5, subd. (b) [restraining access to records and information of
minor child of parties], 6324 [temporary use of real and personal property],
6325 [restraints on property of married persons], and 6325.5 [prohibiting
fraudulent activities regarding insurance beneficiaries].)
13
(Standard Pacific Corp. v. Superior Court (2009) 176 Cal.App.4th 828, 833.)
Significantly, Family Code section 245 confers such discretion without
reference to any of the procedural or substantive requirements of section
533.6
Notwithstanding the language of section 245, Malinowski relies on
Loeffler v. Medina (2009) 174 Cal.App.4th 1495 (Loeffler) for the proposition
that a trial court is powerless to modify a DVTRO without regard to section
533. We are not persuaded.
In Loeffler, the appellant moved for termination of the restraining
order against him pursuant to Family Code section 6345. The appellate court
affirmed the trial court’s denial of termination, applying the standards in
section 533, including its required showing of changed circumstances. As
part of its analysis, Loeffler rejected the appellant’s reliance on Ritchie v.
Konrad (2004) 115 Cal.App.4th 1275 (Ritchie), which held that on a request
to renew an expiring DVRO, the protected party must establish a reasonable
apprehension of future abuse. (See Loeffler, at pp. 1502–1503.) In concluding
that Ritchie did not govern DVRO termination decisions, Loeffler emphasized
that “the party protected by a restraining order has already made the
required showing to obtain a renewal of the order.” (Loeffler, at p. 1504.)
Thus, Loeffler reasoned, when a restrained party seeks to terminate a DVRO,
the burden is on that party “to show by a preponderance of the evidence that
6 Although Family Code section 245 was enacted in 1992 (Stats. 1992,
ch. 162, § 10), prior to the enactment of section 533 (Stats. 1995, ch. 796, § 8),
the language in question (“In granting a continuance, the court may modify
or terminate a temporary restraining order”) was added by amendment to
Family Code section 245 in 2015. (See Stats. 2015, ch. 411, § 6.) Thus, the
Legislature had the opportunity to incorporate section 533 by reference into
Family Code section 245, subdivision (c), but did not do so.
14
one of the circumstances set forth in [section 533] is present and justifies a
termination of the restraining order.” (Loeffler, at p. 1504.)
We find Loeffler distinguishable on a number of fronts. Starting with
an obvious dissimilarity, we note Loeffler involved a motion to terminate a
permanent DVRO issued after notice and hearing, whereas the instant
matter involves a prehearing request to modify a DVTRO pending a
continued merits hearing. Additionally, the burden of proof question raised
in Loeffler was tethered to an underlying factual dispute about the threat of
future abuse, thereby making relevant any changed facts or circumstances
that would justify termination of the DVRO. (See Loeffler, supra, 174
Cal.App.4th at pp. 1505–1508 [restrained party’s move out of state and recent
marriage did not sufficiently negate protected party’s reasonable fear of
abuse and harassment].) Here, in contrast, the trial court’s decision to carve
out exceptions to the DVTRO that would allow for court-ordered visitation
pending the DVRO trial was based largely on the undisputed fact that the
dissolution court had already entered a visitation order allowing Martin to
have certain contact with the children.7 Finally, Loeffler did not purport to
hold that section 533 provides the exclusive standard under which a trial
court in a DVPA action may modify or dissolve a protective order. In sum,
Loeffler does not provide controlling authority on the precise question raised
in this appeal.
Furthermore, at least one appellate court has distinguished and
declined to follow Loeffler in determining the scope of a trial court’s discretion
7 Notably, Malinowski does not contend it was outside the bounds of
reason for the trial court to defer to and avoid inconsistent rulings with the
adjudications and rulings of the court in the dissolution matter on the issues
of custody and visitation given the latter court’s familiarity with the parties
and the case.
15
to modify a civil harassment restraining order under section 527.6. In Yost v.
Forestiere (2020) 51 Cal.App.5th 509, 523 (Yost), a trial court had issued a
civil harassment restraining order that prohibited a paternal grandfather
from contacting his grandchild due to a risk of abduction. (Yost, at p. 516.)
After the family court, in a parallel proceeding, awarded the child’s father 50
percent custody of the child, the grandfather sought modification of the
restraining order on the basis that the changed custody arrangement
eliminated the threat of abduction. (Id. at p. 515.) The trial court denied
modification on the ground that the family court’s custody order was not a
relevant or “proper basis” to modify the restraining order. (Id. at p. 519.)
Yost reversed. As relevant here, Yost specifically addressed whether
the trial court’s discretionary authority to modify the restraining order was
limited to the grounds set forth in section 533 pertaining to the modification
or dissolution of an “ordinary” injunction. (Yost, supra, 51 Cal.App.5th at
pp. 524–526.) Yost ultimately concluded that section 527.6 commits the
modification or termination of a civil harassment restraining order to the
trial court’s discretion and that the exercise of such discretion “includes, but
is not limited to, the three grounds articulated in” section 533. (Yost, at
pp. 522–530.) As part of its analysis, Yost determined that the Legislature’s
decision not to specify the grounds for modification under section 527.6 meant
that trial courts have the flexibility to decide modification requests on a case-
by-case basis, consistent with the reasons for granting or renewing
restraining orders and the purposes of the statute. (Id. at pp. 522–530.)
Although Yost did not involve a DVPA protective order, the court made
several observations about section 533 and section 527.6 that we find
applicable and persuasive to the DVPA proceeding at bar. As Yost explained,
section 533 pertains to “the modification or dissolution of an ordinary
16
injunction” that is “obtained under the usual procedures.” (Yost, supra, 51
Cal.App.5th at p. 524.) Civil harassment restraining orders, by contrast, “are
not normal injunctions” because they are “obtained using simplified, quick
procedures.” (Ibid.) To “offset the expedited procedures” in section 527.6, the
Legislature provided several “safeguards” in the statute, including restricting
the duration of a civil harassment restraining order to five years; enjoining
“ ‘[h]arassment’ ” only as defined in the statute; assuring the alleged harasser
has the opportunity to present a defense and obtain reasonable continuances
of the hearing; and allowing either party to move to terminate or modify the
restraining order. (Yost, at pp. 521–522, citing § 527.6, subds. (b)(3), (h), (i),
(j)(1), (o), (p)(1).) As Yost reasoned, “[b]ecause the truncated, speedy
procedures might result in specific terms, or even entire restraining orders,
that are not appropriate for some or all of the order’s duration, the
Legislature provided the safeguard of the modification or termination request
without limiting the grounds upon which a modification or termination could
be obtained.” (Yost, at p. 524.)
The same can be said for the DVPA, which also “provide[s] expedited
and simplified procedures for victims of violence, abuse, and harassment to
obtain temporary and permanent restraining orders to protect them.” (S.A. v.
Maiden (2014) 229 Cal.App.4th 27, 40; Rivera v. Hillard (2023) 89
Cal.App.5th 964, 983 (Rivera) [DVPA proceedings are “streamlined” and
“expeditious”].) Importantly, the DVPA contains many of the same
safeguards that Yost identified in section 527.6. For instance, the duration of
a DVRO is initially restricted to five years. (Fam. Code, § 6345, subd. (a).)
The DVPA enjoins only conduct specifically defined by statute. (Fam. Code,
§§ 6203 [defining “abuse”], 6211 [defining “domestic violence”], 6320, subd. (a)
[enjoining harassment, threats, and violence].) A restrained person may file
17
a response that explains or denies the allegations in the petition and is
entitled to one continuance of the hearing as a matter of course. (Fam. Code,
§§ 243, subd. (c), 245, subd. (a).) Additional continuances for good cause are
also available. (Fam. Code, § 245, subd. (b).) Moreover, a DVRO is subject to
termination or modification on the motion of a party (Fam. Code, § 6345), and
a DVTRO is subject to termination or modification within the discretion of
the trial court (Fam. Code, § 245, subd. (c)). Additionally, unlike “ordinary”
injunctions, DVPA matters frequently are related to ongoing family law
matters in which overlapping orders are issued concerning custody and
visitation, property control, and other issues. (See, e.g., Rivera, supra, 89
Cal.App.5th at p. 984 [recognizing concurrent jurisdiction between Virginia
court in dissolution matter and California court in DVPA action and finding
no conflicts between courts regarding property ownership interests of
parties].) Accordingly, Yost’s distinction between “ordinary” injunctions and
restraining orders subject to section 533, and those issued under the
“simplified, quick procedures” of a statutory scheme with safeguards that are
not limited to the terms of section 533, aptly applies to this case.
Indeed, the record here illustrates perfectly why a DVTRO issued
under expedited procedures may require flexibility and nimbleness for
modifications as further information comes to light. Malinowski’s DVRO
application, though procedurally sufficient for purposes of obtaining an initial
DVTRO (Fam. Code, § 6300, subd. (a)), omitted reference to Judge Dabel’s
July 2021 visitation order, even as Malinowski sought to prohibit Martin
from all contact with the children. Additionally, Malinowski’s application
sought an order requiring Martin to pay the child custody evaluator’s fee
despite an existing order in the dissolution action requiring her to pay the
fees. Malinowski’s application was presented to Judge Holt in “a flurry of ex
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partes,” which resulted in the quick issuance of a DVTRO that conflicted (or
as to the evaluator’s fee threatened to conflict) with the extant rulings of the
dissolution court.
Yost further observed that “the Legislature clearly was capable of
referring to other provisions in the Code of Civil Procedure when it intended
them to apply to civil harassment restraining orders,” as demonstrated in
other subsections of section 527.6. (Yost, supra, 51 Cal.App.5th at p. 525.)
Because section 527.6 contained no reference to section 533, Yost “infer[red]
the Legislature did not intend section 533 and its three grounds for
modification to be the only grounds for modifying a section 527.6 civil
harassment restraining order.” (Yost, at p. 525.) Likewise, the DVPA itself
contains several references to specific sections of the Code of Civil Procedure,
but it makes no mention of section 533. (See ante, fn. 6; e.g., Fam. Code,
§ 6229 [citing § 374]; Fam. Code, § 6301, subd. (a) [citing § 372, subd. (b)];
Fam. Code, § 6322.5, subd. (c)(2) [citing § 414.10]; Fam. Code, § 6340,
subd. (a)(2)(A)(i) [citing § 415.50]; Fam. Code, § 6345, subd. (d) [citing § 1005,
subd. (b)].) Thus, we may similarly infer the Legislature did not contemplate
that section 533 provides the exclusive statutory vehicle for modifying or
terminating a DVTRO, or that courts should have no discretion to act without
adhering to the particular procedural and substantive requirements
articulated in section 533.
Malinowski’s contention that the requirements of section 533 are
indirectly incorporated into the DVPA through Family Code section 210 is
unavailing. Family Code section 210 provides that “[e]xcept to the extent
that any statute or rules adopted by the Judicial Council provide applicable
rules, the rules of practice and procedure applicable to civil actions generally
. . . apply to, and constitute the rules of practice and procedure in,
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proceedings under” the Family Code. However, Family Code section 245,
subdivision (c), specifically provides that in granting a continuance in a
DVPA case, the court has authority to modify or terminate a temporary
restraining order. Accordingly, resort to section 533 by way of Family Code
section 210 is not required.
Notwithstanding Yost’s other conclusions, Malinowski maintains that
Yost still affirms “the need for the most rudimentary accommodations for due
process.” Malinowski contends she was denied due process because the trial
court modified the DVTRO after expressly refusing her request to present
evidence and because the court imposed no burden “of any kind” on Martin,
who was the party seeking the modification.
We agree that under appropriate circumstances, the requirements of
due process may require a trial court to take evidence at a noticed hearing
consistent with section 533 in order to resolve disputed factual matters
essential to the court’s reasonable exercise of discretion to modify or
terminate a DVTRO. But here, Malinowski did not dispute the existence or
substance of Judge Dabel’s July 2021 visitation order, or the fact that the
visitation order was in effect at the time Judge Holt was asked to modify the
DVTRO. In the absence of a material factual dispute, Judge Holt could
reasonably conclude an evidentiary hearing was not required for her to
exercise her discretion to modify the DVTRO to avoid conflicts with existing
court-ordered visitation.8
8 Indeed, even if section 533 supplied the exclusive bases for modification
of a DVTRO, Judge Holt could reasonably conclude that the court’s
subsequent discovery of the July 2021 custody and visitation order after its
issuance of the original DVTRO was “a material change in the facts upon
which the . . . [original DVTRO] was granted,” and/or that “the ends of justice
would be served by the modification” in light of Malinowski’s incomplete
disclosure of facts from the dissolution case.
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Moreover, the record contains no indication that Malinowski was
deprived of adequate notice in this regard. Malinowski does not contend she
lacked notice of any of the hearings in question, and she knew from the trial
court’s order continuing the matter to November 17, 2021, that the amended
DVTRO was set to expire at the end of that hearing. Thus, Malinowski was
on notice that the DVTRO could be terminated or extended based on matters
discussed at the November 17 hearing, and germane to that discussion was
the possibility that the DVTRO might be reissued with modified terms.
(Fam. Code, § 245, subd. (c).) As for the subsequent hearings in January and
March 2022, it was clear from the trial court’s previous remarks that the
purpose of the review hearings was to apprise the court of certain
developments in the dissolution case that bore on the scope of the DVTRO
and on issues pertaining to custody and visitation of the children. Thus,
Malinowski had sufficient notice that the court was poised to modify the
DVTRO with respect to the children based on the information provided by the
parties at the review hearings.
Having said this, we observe Malinowski’s DVRO application alleged
one incident of abuse occurring after the issuance of the July 2021 visitation
order in the dissolution case. The record does not disclose whether the
August 2021 incident factored into Judge Holt’s initial decision to issue the
DVTRO, or whether she considered it in deciding to modify the DVTRO. It is
a close question whether this allegation by itself necessitated the taking of
evidence at a noticed hearing before the court could reasonably exercise its
discretion to modify the DVTRO to allow for court-ordered visitation, a
question that, in our view, was not satisfactorily addressed in the briefing
and arguments below or on appeal. Accordingly, and in light of the mootness
of the appeal, we limit our holding to the narrow but important question
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discussed above—namely, that the standards of section 533 are not relevant
to every DVPA case, but may, in an appropriate case, be applicable under
principles of due process.
In closing, we emphasize that our decision is not intended to suggest
that courts in DVPA proceedings are necessarily bound by a child visitation
order when material evidence supports a ruling at odds with such an order.
And though we conclude the DVPA does not categorically mandate adherence
to section 533 for modification or termination of a DVTRO, courts should
consider requiring evidence be presented at a noticed hearing when, for
example, doing so would be necessary to protect a party’s due process rights
or essential to a court’s reasonable exercise of discretion under section 245,
subdivision (c).
DISPOSITION
We conclude that section 533 does not provide the exclusive means or
grounds by which a trial court in a DVPA action may modify or dissolve a
DVTRO. However, due to the termination of the DVTRO in question, we
need not issue a disposition on the modification orders and instead dismiss
the appeal as moot. (Cf. People v. Sweeney (2009) 175 Cal.App.4th 210, 215,
225–226.) In the interests of justice, the parties shall bear their own costs on
appeal.
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_________________________
Fujisaki, Acting P. J.
WE CONCUR:
_________________________
Petrou, J.
_________________________
Rodríguez, J.
Malinowski v. Martin (A164713)
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Trial Court: San Mateo County Superior Court
Trial Judge: Hon. Rachel Holt
Counsel: Law Office of Gary K. Dubcoff, Gary Dubcoff, for Petitioner
and Appellant
Seeley Family Law Practice, Helen Yvonne Seeley, and
Jennifer L. Knops; Paul F. Vorsatz Law Office, Paul F.
Vorsatz for Defendant and Respondent
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