Michael M. v. Robin J. ( 2023 )


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  • Filed 5/9/23 Certified for Publication 6/2/23 (order attached)
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    MICHAEL M.,                                               D080707
    Respondent,
    v.                                                (Super. Ct. No. 17FL014460E)
    ROBIN J.,
    Appellant.
    APPEAL from an order of the Superior Court of San Diego County,
    Shereen J. Charlick, Judge. Reversed and remanded with directions.
    Covington & Burling, Matthew Q. Verdin, Wendy L. Feng; Family
    Violence Appellate Project, Jodi Lewis, Shuray Ghorishi, Jennafer D.
    Wagner, and Eric C. Smith for Appellant.
    No appearance for respondent.
    Robin J. appeals from an order denying her request to renew a
    domestic violence restraining order (DVRO) against Michael M., the father of
    their two children.1 (Fam. Code, § 6345, subd. (a).) We conclude that the
    trial court misapplied the law in denying Robin’s renewal request, and that
    Robin established a reasonable apprehension of future abuse. Accordingly,
    we reverse and remand the matter to the trial court with instructions to
    grant the renewal request and decide whether the DVRO should be renewed
    for five or more years, or permanently. (Ibid.)
    FACTUAL AND PROCEDURAL BACKGROUND
    A. Incident of October 5, 2017
    On October 5, 2017, Robin and Michael had been dating for a year and
    a half and had a one-month-old baby, M.M. They got into an argument and
    Robin threatened to call law enforcement. Michael grabbed Robin’s cell
    phone out of her hand, threw it, and started to leave the house. When Robin
    followed him to the door with the baby in her arms, Michael turned around,
    grabbed Robin, and bit her ear.
    Robin called law enforcement. The deputy sheriffs who responded
    observed significant redness to her right ear. Robin also showed them photos
    of a bruise she said she had sustained on her arm from an unreported
    incident of domestic violence that occurred the prior week. The deputy
    sheriffs arrested Michael.
    B. Incident of September 2, 2018
    By September 2018, Robin and Michael were separated and she was
    five months pregnant with their second child.
    On September 2, 2018, during a meeting at a public park for Robin to
    take custody of one-year-old M.M., Michael shoved Robin aside and forced her
    1      We grant Robin’s motion to use pseudonyms in this opinion. We refer
    to the parties by their first name and last initial and their minor children by
    their initials.
    2
    car door open after she had put M.M. in the car. Michael grabbed M.M. and
    walked away with her. Law enforcement arrested Michael for domestic
    violence.
    C. DVRO
    Two days after the incident of September 2, 2018, Robin filed a pro per
    request for a DVRO against Michael in their pending family law case. In a
    sworn declaration, she stated that she had previously asked for a DVRO in
    July 2018, in which she “documented all forms and history of abuse.” After
    the court denied her prior DVRO request, however, “the abuse continuously
    worsened . . . from provoking texts, manipulation, threats and eventually
    escalating to the assault which occurred over the weekend.” Robin stated
    that “[w]ith everything that has happened I am extremely scared and fearful
    for the safety of [M.M.], myself and my unborn child as of now I am currently
    5 months pregnant.”
    After a hearing, the court granted a three-year DVRO on September 21,
    2018. The DVRO included a stay-away order requiring Michael to stay at
    least 100 yards away from Robin. It also included personal conduct orders
    prohibiting Michael from harassing, attacking, striking, threatening, or
    assaulting Robin, or contacting Robin directly or indirectly by any means,
    including electronic. The stay-away and personal conduct orders included an
    exception for brief and peaceful contact as required for court-ordered
    visitation of children.
    The DVRO also had an attached child custody and visitation order that
    was identified as “part of” the DVRO. The attached order gave legal custody
    of M.M. to Robin and physical custody to Robin and Michael, with Michael
    having exclusive custody of M.M. every other weekend. The order also
    directed the parties “to enroll in Talking Parents” and ordered “that all
    3
    nonemergency communication between the parties take place on this email
    platform.”
    D. Incident of February 26, 2019
    Robin gave birth to the parties’ second daughter, N.M., in late January
    2019. On February 26, 2019, Robin and Michael got into another argument
    at a residence in Ramona.2 Michael threw her to the ground about 10 times,
    strangled her from behind, pulled a knife, and ran the knife across her
    neck—all in the presence of one-year-old M.M. while Robin was holding one-
    month-old N.M. The knife scraped Robin’s neck but did not cut her. Robin
    struggled to breathe throughout the assault. Michael also threatened to kill
    Robin. Robin believed that Michael was trying to kill her and that she would
    die in front of her daughters. M.M. screamed and cried during the incident.
    When law enforcement arrived, Michael fled the scene. Sheriff’s
    deputies observed that Robin had many abrasions and bruises on her neck
    and chest and a red line across her neck. They collected a knife from the
    scene that Robin identified as the one Michael had used.
    Robin requested and the court issued an emergency protective order
    (EPO). The EPO directed Michael to move out of the Ramona residence and
    stay away from it and Robin.
    The next day, law enforcement arrested Michael after he returned to
    the Ramona residence. In a back pocket, they found another knife identical
    to the one they had recovered at the scene. After they served Michael with
    2     The police report identified Michael, his mother, M.M., and N.M. as
    residents of the Ramona residence and Robin as a resident at a different
    address in Fallbrook. However, an emergency protective order issued the
    next day stated that the protected persons (Robin, M.M., and N.M.) lived with
    the person to be restrained (Michael) and ordered Michael to vacate the
    Ramona residence.
    4
    the EPO, he made numerous statements that he intended to violate the EPO
    by returning to the residence once he was released and did not care about the
    ramifications.
    E. Robin’s Request for Renewal of DVRO and Michael’s Response
    On September 17, 2021, four days before the DVRO was set to expire,
    Robin filed a pro per request to renew the DVRO. The court set a hearing for
    October 8, 2021 and issued a notice and order extending the existing DVRO
    until the end of the hearing.3
    Robin filed a declaration and supporting exhibits in support of her
    renewal request. The declaration and attached police reports described the
    domestic violence incidents of October 5, 2017, September 2, 2018, and
    February 26, 2019.
    In her declaration, Robin stated that Michael constantly texted her,
    and she provided a copy of his most recent text on October 2, 2021, which
    stated as follows: “I think it’s absolutely wrong what you are doing to the
    girls you constantly call cws even tho you are the corrupt one trying to pull bs
    it’s absolutely not cool of you trying to pull that on our girls . . . you are one
    sick individual and should be checked[.] It’s very unfortunate you are doing
    this to our daughters.” Robin felt threatened by this text and reported it to
    law enforcement.
    Robin also stated that after the issuance of the DVRO, she had moved
    to a new address and been accepted to the Safe at Home program to keep her
    3     At the time, rule 8 of the Judicial Council’s Emergency Rules Related to
    COVID-19 provided: “Upon the filing of a request to renew a restraining
    order after hearing that is set to expire during the state of emergency related
    to the COVID-19 pandemic, the current restraining order after hearing must
    remain in effect until a hearing on the renewal can occur, for up to 90 days
    from the date of expiration.” (Cal. Rules of Court, Appx. I, Emergency rule
    8(b)(4) [effective April 2020 through June 2022].)
    5
    address confidential. In July 2021, the Secretary of State sent Michael a
    letter notifying him that her office had been designated as the agent for
    service of process on Robin and providing a post office box address for service
    by mail. On September 9, 2021, however, Michael’s attorney served Robin by
    mail with papers at her new confidential address. As a result, Robin was
    “terrified” that Michael knew her new address. She stated: “[I am] literally
    scared to death of this guy and what he has put me and the children through.
    Now I’m living in fear with him knowing where I live even though I went to
    great lengths to provide my family with a safe haven to call home.”
    Robin further asserted that M.M. had to be taken to the emergency
    room in August 2021 and September 2021 “because she was reporting her
    father hit her and she had bruises.” Robin attached hospital records showing
    that M.M. had tenderness to her right knee as a result of an injury that
    allegedly occurred while she was with Michael on September 19, 2021. The
    hospital records quoted Robin as saying “that [M.M.] told her that ‘she was
    bad and daddy hit my knee.’ ”
    Finally, Robin submitted evidence that Michael was delinquent in child
    support payments totaling about $8,000. She asserted that this was “causing
    a severe financial strain.”
    Michael filed a declaration in opposition to the renewal request.
    Without giving any specifics, Michael asserted that Robin had “conveniently
    ignored significant events and issues” and “exaggerated virtually every
    incident she describes in her declaration.” He asserted that Robin’s “primary
    motivation” for seeking a renewal of the DVRO was “to ‘punish me’ for my
    alleged nonpayment of child support.” Michael also stated that the domestic
    violence incidents “occurred years ago” and “[t]here have been no incidents
    6
    justifying or supporting the need for the existence of a [DVRO] in almost 3
    years.”
    F. Hearing and Ruling on Renewal Request
    The parties’ family law case was reassigned to Judge Shereen Charlick
    in January 2021. Between January and September 2021, before the hearing
    on Robin’s DVRO renewal request, Judge Charlick presided over four ex
    parte hearings regarding child custody and visitation. She also presided over
    the October 8, 2021 hearing on the renewal request.
    Robin represented herself at the renewal hearing and Michael
    appeared with counsel. The court began by asking Robin “why recent events
    have you continuing to be afraid of [Michael].” Robin responded by
    mentioning Michael’s violations of the DVRO and the fact that he had
    somehow obtained her confidential address.
    The court told Robin, “the address doesn’t concern me as much as how
    did he violate the order recently.” Robin testified that Michael had violated
    the DVRO by texting her and calling her, including the text of October 2,
    2021 six days before the hearing. She also referred to his failure to pay child
    support, the “pretty severe attack” he committed on February 26, 2019, and
    Michael’s statements to law enforcement that he intended to violate the EPO
    and did not care about the ramifications. The only question the court asked
    Robin about the February 2019 incident was, “This is from 2019?”
    The court then questioned whether Robin was seeking renewal of the
    DVRO as retaliation against Michael for seeking child custody. The court
    stated: “I have seen the two of you in court on multiple competing ex-parties
    [sic] where you were each trying to get custody from each other. And I noted
    that the last time you were here and you were -- actually, he tried to take
    7
    custody from you, you filed this renewal request the very next day after he
    didn’t obtain custody because of your DUI . . . .”
    Robin asserted that she had filed the renewal request when she did
    because she saw her confidential address listed on Michael’s papers served
    September 9, 2021. She explained, “as soon as I saw that, I cannot allow this
    restraining order to lapse without seeking the protection, you know, to keep
    him away from me and my family . . . .” She stated: “I am just asking for you
    to understand my fear of this person, and, you know, I don’t text him. He
    continues to text me directly. There is a huge history of every way that he
    abused me financially, emotionally, physically.” Robin also mentioned the
    “child abuse” that “disturbs my peace” and “causes fear of future abuse to
    both me and the kids.” According to Robin, “the fear that I have of his man is
    real . . . .”
    In response, Michael’s counsel argued that Robin’s renewal request was
    “clear retaliation for [Michael] seeking to change custody when [Robin] was
    arrested for driving under the influence with children in the car.” He also
    asserted that “all of the points that she raises that might fall under violations
    of the Domestic Violence Protection Act occurred years ago.” According to
    defense counsel, Robin was “upset” that Michael “sought custody and brought
    her DUI to light,” “that he got her address,” and “that he is not paying child
    support,” but defense counsel argued that none of this was a basis for
    renewing the DVRO.
    Robin again argued that Michael was violating the DVRO by
    continuing to text her directly. She also noted that in the incident of
    February 2019, “my life was in danger” because “he put a knife to my throat
    while his children were present.”
    8
    Michael did not testify at the hearing, other than to answer one
    question from the court about whether he had been convicted of the February
    2019 assault with a knife. Michael responded, “All of the ones she has --
    three -- I have been arrested three times and not one time have I been
    convicted.” The court did not ask Michael any other questions about the
    February 2019 incident, not even to inquire whether he had in fact held a
    knife to Robin’s throat. Robin asserted that Michael had not been convicted
    only because she had declined to cooperate with prosecutors.
    The trial court then denied Robin’s request for renewal from the bench.
    The court ruled as follows:
    “So, at this time, . . . I am denying your renewal request. I
    do not find that you need this protection anymore. I
    understand you had it in the past. I understand there was
    a great deal of difficulty when you and [Michael] had an
    ongoing relationship. I find that in the past several years,
    other than that one text message, which it’s not necessarily
    custody related, and it was not necessary, but I’m
    exercising my discretion to find it really isn’t a violation in
    this court’s view. I do not find that your fear is reasonable.
    I do find that there is a history of retaliatory behavior
    between the two of you as to custody, as to child support.
    “Of course, if there were any future incidents that could
    constitute abuse, [Michael] is on notice and I would expect
    that [his counsel] has given him similar warnings and
    advice . . . .
    “I am finding that your fear isn’t credible because I find
    there are other circumstances that prompted this renewal,
    and I am aware of them. With the history of this case, I am
    denying this request.
    “[Michael] is on notice that were there really to be any
    event that he precipitates that could cause you reasonable
    fear, you will take appropriate action. So I’m denying the
    request. I find you have not met your burden of
    9
    demonstrating reasonable fear under the totality of the
    circumstances in light of the history. I find that this -- that
    your renewal request was prompted by other actions that
    [Michael] took with respect to custody and the DUI, so I’m
    denying this.”
    DISCUSSION
    A. Standard of Review
    We generally review an order denying a request to renew a DVRO for
    abuse of discretion. (Ashby v. Ashby (2021) 
    68 Cal.App.5th 491
    , 509 (Ashby).)
    But the question whether the trial court applied the correct legal standard in
    exercising its discretion is a question of law requiring de novo review. (Ibid.)
    If the court’s decision to deny a renewal request is influenced by an erroneous
    understanding of the law, the court has not properly exercised its discretion
    under the law. (Eneaji v. Ubboe (2014) 
    229 Cal.App.4th 1457
    , 1463 (Eneaji).)
    B. Governing Law
    Family Code section 6345, subdivision (a) provides that a DVRO shall
    have an initial duration not exceeding five years, but “may be renewed, upon
    the request of a party, either for five or more years, or permanently, at the
    discretion of the court, without a showing of further abuse since the issuance
    of the original order. . . . The request for renewal may be brought at any time
    within the three months before the expiration of the orders.” (Italics added.)
    The legal standard for renewal of a DVRO is whether the protected
    party entertains a reasonable apprehension of future abuse. (Ritchie v.
    Konrad (2004) 
    115 Cal.App.4th 1275
    , 1290 (Ritchie).) “[T]his does not mean
    the court must find it is more likely than not that abuse will occur if the
    protective order is not renewed. It only means the evidence demonstrates it
    is more probable than not there is a sufficient risk of future abuse to find the
    protected party’s apprehension genuine and reasonable.” (Ibid.) An
    10
    imminent and present danger of abuse is not required; there must only be a
    reasonable apprehension that “abuse will occur at some time in the future if
    the protective order is allowed to expire.” (Id. at p. 1288.)
    For a DVRO renewal, the protected party need not show a reasonable
    apprehension of future physical abuse. (Eneaji, supra, 229 Cal.App.4th at
    p. 1464.) The statute defines “abuse” broadly to include any behavior that
    could be enjoined under Family Code section 6320, such as harassing or
    disturbing the peace of the other party. (Fam. Code, § 6203, subd. (a); In re
    Marriage of Brubaker & Strum (2021) 
    73 Cal.App.5th 525
    , 536.) This
    definition encompasses “a multitude of behaviors” that do “not involve any
    physical injury or assaultive acts.” (Eneaji, at p. 1464.) Thus, “there is no
    requirement that the party requesting a renewal have a fear of physical
    abuse.” (Ibid.; accord Rybolt v. Riley (2018) 
    20 Cal.App.5th 864
    , 875
    (Rybolt).)
    “[Family Code] [s]ection 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.” (Ritchie, supra,
    115 Cal.App.4th at p. 1284.) Ritchie explained: “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.” (Ibid.)
    In evaluating whether the requesting party has a reasonable
    apprehension of future abuse, the trial court ordinarily should consider the
    evidence and findings on which the initial DVRO was based. (Ritchie, supra,
    115 Cal.App.4th at p. 1290.) “[T]he underlying findings and facts supporting
    11
    that order often will be enough in themselves to provide the necessary proof
    to satisfy that test.” (Id. at p. 1291.) “Also potentially relevant are any
    significant changes in the circumstances surrounding the events justifying
    the initial protective order. For instance, have the restrained and protected
    parties moved on with their lives so far that the opportunity and likelihood of
    future abuse has diminished to the degree they no longer support a renewal
    of the order?” (Ibid.) “Also relevant are the seriousness and degree of risk,
    such as whether it involves potential physical abuse, and the burdens the
    protective order imposes on the restrained person, such as interference with
    job opportunities.” (Lister v. Bowen (2013) 
    215 Cal.App.4th 319
    , 333 (Lister).)
    A DVRO renewal may not be denied solely on the ground that no
    additional abuse has occurred since the issuance of the original DVRO. In
    Eneaji, for example, the Court of Appeal ruled that “the trial court erred in
    concluding that the denial was appropriate because nothing happened in the
    three years since the restraining order.” (Eneaji, supra, 229 Cal.App.4th at
    p. 1464.) The court reasoned that the trial court’s ruling conflicted with
    Ritchie and Family Code section 6345, subdivision (a). (Eneaji, at p. 1464.)
    “Thus, the trial court’s conclusion that the absence of further abuse in the
    three-year period was a sufficient basis for denying renewal is not supported
    by the law.” (Ibid.)
    “The key consideration for the court is not the type or timing of abuse,
    but whether the protected party has a reasonable fear of future abuse.”
    (Perez v. Torres-Hernandez (2016) 
    1 Cal.App.5th 389
    , 397 (Perez) [following
    Eneaji in ruling that the trial court had similarly erred by denying a request
    for renewal of a DVRO on the ground that there was no evidence of further
    abuse after its issuance].)
    12
    C. Trial Court’s Misapplication of Law
    Robin contends that the trial court applied the wrong legal standard to
    the renewal request and erroneously inferred a retaliatory motive solely from
    the timing of her request. We agree that the trial court’s ruling was
    prejudicially influenced by a misunderstanding of the law in several respects.
    First and foremost, the trial court erred by requiring a showing of
    recent abuse or a recent violation of the DVRO. From the outset of the
    hearing, the trial court quizzed Robin on what “recent events have you
    continuing to be afraid” and “how did [Michael] violate the order recently.” In
    its final ruling, the court found that Robin’s fear was not objectively
    reasonable because there had been no violation of the DVRO “in the past
    several years, other than that one text message” of October 2, 2021 (which
    the court decided “really isn’t a violation”). As we have discussed, however, a
    showing of recent abuse is not required to demonstrate a reasonable
    apprehension of future abuse. (Perez, supra, 1 Cal.App.5th at p. 397; Eneaji,
    supra, 229 Cal.App.4th at p. 1464.)
    The trial court’s mistaken insistence on evidence of recent abuse caused
    it to give no apparent consideration to either the abuse preceding the 2018
    DVRO or the subsequent domestic violence incident of February 2019. As
    noted, a trial court ruling on a renewal request should consider the evidence
    and findings on which the original DVRO was based, which will often be
    enough in themselves to support a renewal. (Ritchie, supra, 115 Cal.App.4th
    at pp. 1290–1291.) Here, Robin presented evidence of two different domestic
    violence incidents that occurred before the issuance of the DVRO: one in
    October 2017 when she was holding one-month-old M.M. and another in
    September 2018 when she was five months pregnant with N.M. and
    attempting to exchange custody of one-year-old M.M. By requiring a showing
    13
    of more recent abuse and failing to analyze whether the original abuse was
    sufficient, the trial court misapplied the law.
    The trial court’s restrictive focus on recent events also caused it to
    disregard Michael’s assault on Robin with a knife in February 2019, five
    months after the DVRO was issued. “It almost goes without saying that any
    violation of a restraining order is very serious, and gives very significant
    support for renewal of a restraining order.” (Lister, supra, 215 Cal.App.4th at
    p. 335; accord Rybolt, supra, 20 Cal.App.5th at p. 876.) A violation involving
    a knife to the victim’s throat is particularly disturbing. Such an incident
    could reasonably be expected to give rise to a long-lasting fear of the
    perpetrator that could continue for many years. Yet the trial court found it
    unnecessary to consider anything “other than that one text message” of
    October 2, 2021 because it deemed everything else to be too remote in time.
    Second, the trial court erred by “exercising [its] discretion to find” that
    Michael’s text of October 2, 2021 “really isn’t a violation in this court’s view.”
    This text—which accused Robin of being “corrupt” and “sick”—was a clear
    violation of the DVRO because it did not relate to court-ordered visitation and
    it was nonemergency communication conducted outside the Talking Parents
    platform. The trial court had no “discretion” to treat an unquestionable
    violation of the DVRO as if it were not “really” a violation. (See Perez, supra,
    1 Cal.App.5th at pp. 398–399 [trial court erred by finding that father’s calls
    and texts to mother in violation of DVRO did not constitute continuing abuse
    under the statute]; N.T. v. H.T. (2019) 
    34 Cal.App.5th 595
    , 603 [“A knowing
    violation of a DVRO cannot be characterized ‘as a de minimis and technical
    violation.’ ”].)
    Finally, the trial court erred by inferring a retaliatory motive from the
    mere timing of Robin’s renewal request—and rejecting her claim of genuine
    14
    fear on that basis alone. The DVRO statute required Robin to file her
    renewal request within three months before the DVRO’s expiration. (Fam.
    Code, § 6345, subd. (a).) She filed her renewal request within this statutory
    window period, four days before the DVRO was set to expire. If Robin had
    filed her renewal request earlier, while the parties were still litigating
    Michael’s application for emergency child custody orders, she could well have
    been accused of doing so for strategic purposes to influence the custody
    dispute. Considering the totality of the record, the mere fact that Robin
    waited to file her renewal request until after the court had ruled on Michael’s
    custody request is not sufficient to support the trial court’s finding of a
    retaliatory motive. And even if it were, the mere existence of a retaliatory
    motive still would not negate the compelling evidence that Robin had a
    reasonable basis to fear Michael. Anger and fear are not mutually exclusive;
    they often go hand in hand.
    D.    Reasonable Apprehension of Future Abuse
    Having determined that the trial court misapplied the law, we must
    now decide on the appropriate remedy. In some cases when appellate courts
    have reversed orders denying renewal of a DVRO, they have remanded for
    the trial court to reconsider the renewal request. (See, e.g., Eneaji, supra,
    229 Cal.App.4th at p. 1465; N.T. v. H.T., supra, 34 Cal.App.5th at p. 603.) In
    others, however, appellate courts have ordered a renewal of the DVRO and
    concluded as a matter of law that the record demonstrates a reasonable
    apprehension of future abuse. (Cueto v. Dozier (2015) 
    241 Cal.App.4th 550
    ,
    562 (Cueto); Perez, supra, 1 Cal.App.5th at pp. 398, 401.)
    We conclude that the latter cases are controlling here. In Cueto, the
    trial court issued a two-year DVRO in 2012 based on evidence of physical
    abuse perpetrated by a father (Dozier) against the mother (Cueto). (Cueto,
    15
    supra, 241 Cal.App.4th at pp. 553–555.) In 2014, before the DVRO expired,
    Cueto filed a request to renew it based in part on evidence that Dozier had
    twice violated the order by driving past her home, which Dozier denied.
    (Id. at pp. 555–556.) Dozier also denied any history of abuse or violence.
    (Id. at pp. 557–558.) The trial court ultimately denied the renewal request,
    finding that Dozier had not driven by Cueto’s house or committed any
    violation of the DVRO, and that Cueto did not show a reasonable
    apprehension of physical or mental abuse. (Id. at p. 558.)
    On review, the Court of Appeal concluded that the trial court had
    applied the correct legal standard, but had still “abused its discretion in
    finding that Cueto had not demonstrated a reasonable apprehension of future
    abuse.” (Cueto, supra, 241 Cal.App.4th at p. 562.) The court reasoned that
    “[e]ach factor articulated by the court in Ritchie supported renewal of the
    restraining order.” (Ibid.) “First, Cueto obtained the initial restraining order
    after a violent incident at the baseball game in April 2012 [in which Dozier
    grabbed Cueto and tried to punch her] and evidence of a troubling history of
    physical abuse, including [Cueto] being punched in the face in 2002, and
    threatened on two occasions in 2010 and 2011.” (Ibid.) “Second, there is
    nothing in the record to suggest that circumstances have changed and that
    Dozier has ‘moved on with [his] li[fe] so far that the opportunity and
    likelihood of future abuse has diminished.’ ” (Ibid.) “Further we are troubled
    by the comments the trial court made to Dozier at the conclusion of the
    hearing after denying the application to renew the protective order . . . .
    These comments suggest that the trial court believed there was a need to
    admonish Dozier from the bench that he must continue to stay away and
    have no contact with Cueto, but without giving Cueto the legal protection of a
    restraining order.” (Ibid.)
    16
    All three of these factors (and more) are present here as well. First,
    Robin presented evidence of a history of physical abuse before the DVRO was
    issued, including incidents that occurred in the presence of their young
    daughter M.M. and when Robin was five months pregnant with N.M. Worse
    yet, Michael’s violence escalated after the DVRO was issued, when he threw
    Robin to the ground 10 times, strangled her, threatened to kill her, and held
    a knife to her throat—all while she was holding their one-month-old daughter
    and in the presence of their one-year-old daughter. This egregious violation
    of the DVRO makes this case even worse than Cueto—in which the Court of
    Appeal did not disturb the trial court’s finding that there was no violation of
    the DVRO. Thus, the “seriousness and degree of risk” factor (including
    “whether it involves potential physical abuse”) strongly supports a renewal of
    the DVRO. (Lister, supra, 215 Cal.App.4th at p. 333.)
    Second, nothing in the record suggests that Michael had moved on with
    his life. On the contrary, his hostile text of October 2, 2021 (the week before
    the renewal hearing) demonstrated that he was still consumed with anger
    against Robin. As Robin explained, she felt threatened by this text. Given
    the prior history of domestic violence, it was reasonable for Robin to feel
    apprehensive for her safety as a result of Michael’s hostile text in violation of
    the DVRO. (Perez, supra, 1 Cal.App.5th at p. 399.) This additional violation
    of the DVRO the week before the renewal hearing also makes this case a
    stronger one for renewal than Cueto. (See also Ashby, supra, 68 Cal.App.5th
    at p. 517 [former husband’s “noncompliance with court orders further
    illustrates he has not moved on and the power and control dynamic of the
    abusive relationship is ongoing”].)
    Third, the trial court found it necessary to warn Michael when it denied
    Robin’s renewal request. The court stated: “Of course, if there were any
    17
    future incidents that could constitute abuse, [Michael] is on notice and I
    would expect that [his counsel] has given him similar warnings and
    advice . . . . [Michael] is on notice that were there really to be any event that
    he precipitates that could cause [Robin] reasonable fear, [Robin] will take
    appropriate action.” As in Cueto, these comments suggest that the trial court
    believed there was a need to admonish Michael, “but without giving [Robin]
    the legal protection of a restraining order.” (Cueto, supra, 241 Cal.App.4th at
    p. 562.) Thus, all the factors cited in Cueto likewise establish that Robin had
    a reasonable apprehension of future abuse.
    In addition, Robin’s unrefuted evidence that Michael hit and injured
    M.M. shortly before the renewal hearing further demonstrates that she had a
    reasonable apprehension of future abuse. (Perez, supra, 1 Cal.App.5th at
    pp. 400–401 [holding that father’s abuse of the couple’s children also
    constituted abuse of mother because it “destroyed [her] emotional calm and
    made her fear for her safety and the safety of her children”].) As Robin
    explained, this “disturbs my peace and it causes fear of future abuse to both
    me and the kids.” Based on the totality of the circumstances, we conclude
    that Robin established a reasonable apprehension of future abuse and is
    therefore entitled to a renewal of the DVRO.
    DISPOSITION
    The order denying Robin’s request for renewal of the DVRO is reversed
    and remanded with instructions to grant the renewal request. On remand,
    the trial court is instructed to decide in the first instance whether the DVRO
    18
    should be renewed for five years or more, or permanently. Robin is awarded
    her costs on appeal.
    BUCHANAN, J.
    WE CONCUR:
    McCONNELL, P. J.
    DATO, J.
    19
    Filed 6/2/23
    CERTIFIED FOR PUBLICATION
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    MICHAEL M.,                                  D080707
    Respondent,
    v.                                   (Super. Ct. No. 17FL014460E)
    ROBIN J.,
    Appellant.
    THE COURT:
    The opinion in this case filed May 9, 2023, was not certified for
    publication. It appearing the opinion meets the standards for publication
    specified in California Rules of Court, rule 8.1105(c), the request pursuant to
    rule 8.1120(a) for publication is GRANTED.
    IT IS HEREBY CERTIFIED that the opinion meets the standards for
    publication specified in California Rules of Court, rule 8.1105(c); and
    ORDERED that the words “Not to Be Published in the Official Reports”
    appearing on page one of said opinion be deleted and the opinion herein be
    published in the Official Reports.
    McCONNELL, P. J.
    Copies to: All parties
    2
    

Document Info

Docket Number: D080707

Filed Date: 6/2/2023

Precedential Status: Precedential

Modified Date: 6/2/2023