Sholokhova v. Enriquez CA1/5 ( 2024 )

Filed 10/10/24 Sholokhova v. Enriquez CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
YELENA SHOLOKHOVA,
Respondent,
A169076
v.
VICTOR ENRIQUEZ, (San Mateo County
Super. Ct. No. 19-FAM-01592)
Appellant.
Victor Enriquez challenges the renewal of a domestic
violence restraining order against him, alleging that the order
was issued without proper notice to him and that it violates his
rights under the Second Amendment to the United States
Constitution. We affirm.
BACKGROUND
A.
Enriquez and Yelena Sholokhova are former romantic
partners who have a child together. In fall 2020, while the two
were in the midst of a custody dispute, Sholokhova obtained a
domestic violence restraining order against Enriquez. The
Domestic Violence Prevention Act authorizes the issuance of
restraining orders to enjoin specific acts of abuse. (See
Malinowski v. Martin (2023) 93 Cal.App.5th 681, 691
(Malinowski).) In issuing the restraining order here, the court
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found that, by a preponderance of the evidence, “there was abuse
. . . that warrants a restraining order.”
B.
When the initial restraining order was about to expire in
September 2021, Sholokhova filed a request to renew the order.
A domestic violence restraining order “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.” (Fam. Code, § 6345,
subd. (a).) A renewal request must be brought within the three
month period before the expiration of the order. (Ibid.)
In her renewal request, Sholokhova alleged that she
continued to be fearful of Enriquez and that he had harassed her
in various ways. Enriquez opposed the renewal request,
disputing Sholokhova’s allegations and arguing that even if true,
the conduct alleged did not constitute harassment.
The hearing on the renewal request was continued, and the
restraining order temporarily extended, on several occasions. On
September 2, 2022, without further extending the expiration date
of the restraining order, the court continued the hearing to
September 21, 2022, at 2:00 p.m.
Enriquez alleges that no hearing was held at 2:00 p.m. on
September 21, 2022. Instead, the court held a hearing at 9:00
a.m. on September 21 and the following day on September 22,
2022; Enriquez asserts that he did not attend these hearings
because he did not receive notice of either hearing. On
September 22, 2022, the court granted Sholokhova’s renewal
request and entered a restraining order with an expiration date
of September 22, 2027.
On October 5, 2022, Sholokhova served Enriquez with a
copy of the renewed restraining order.
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C.
Just over six months after the court renewed the
restraining order, on April 4, 2023, Enriquez filed a request for
an order to change or modify the restraining order and obtained a
hearing date on his request of August 14, 2023. Pursuant to
Code of Civil Procedure sections 473.5 and 473, subdivision (b)1,
he sought vacatur of the September 22, 2022 restraining order
based on his lack of notice.
On August 14, 2023, the court held a hearing which
Enriquez attended, received evidence, and issued a restraining
order with an expiration date of August 14, 2028. Among other
conditions, the order prohibits Enriquez from harassing,
assaulting, or contacting Sholokhova and requires him to stay
away from her person, home, workplace, and vehicle except when
participating in court-ordered visitation with their child. In
addition, the order bars Enriquez from owning, possessing,
having, buying, receiving, or trying to buy or receive firearms or
ammunition.
DISCUSSION
Enriquez appeals from the decisions the trial court made at
the August 14, 2023 hearing, asserting that the court should
have terminated the restraining order. We presume that the
trial court’s decision is correct, and it is Enriquez’s burden to
demonstrate error on appeal. (See Jameson v. Desta (2018) 5
Cal.5th 594, 608-609.) Because he has not provided a transcript
of the August 14, 2023 hearing for our review, we have no way of
knowing what evidence or arguments were presented at the
hearing, nor do we have the benefit of any findings the trial court
1 Undesignated statutory references are to the Code of Civil
Procedure.
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made. As a result, we presume that any matters necessary to
justify the trial court’s decision were so presented. (See ibid.)
A.
We affirm the denial of Enriquez’s motion under section
473.5 to set aside the September 22, 2022 order.
Section 473.5 applies to requests to set aside a default or
default judgment. (§ 473.5, subd. (a).) But no default or default
judgment was entered here, so that section is inapplicable. Even
if it did apply, Enriquez’s April 4, 2023 request was untimely
because he filed it more than 180 days after he received notice of
the order on October 5, 2022. (See § 473.5, subd. (a) [providing,
as relevant here, that a motion to set aside a default shall be
“filed within a reasonable time, but in no event exceeding . . . 180
days after service on him or her of a written notice that the
default or default judgment has been entered”].)
With respect to his statutory argument that the restraining
order could not be renewed because it had already expired by
September 22, 2022, we note that Enriquez did not raise this
point in his motion. Instead, the first time he raised this
argument was in a supplemental brief filed only three days before
the hearing. As a result, the trial court also could have concluded
that Enriquez forfeited the argument by failing to raise it in his
moving papers. (See, e.g., People v. Romero and Self (2015) 62
Cal.4th 1, 25 [“ ‘Obvious reasons of fairness militate against
consideration of an issue raised initially in [a] reply brief, ’ ”
quoting Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295,
fn. 11].)
B.
Enriquez also challenges the trial court’s decision to reissue
the restraining order on August 14, 2023. He contends that the
court’s decision to hold a hearing on the question whether to
reissue the restraining order violated his due process rights
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because he lacked notice that the court would consider evidence
on the underlying merits of the order. On our de novo review of
his due process claim (see In re J.R. (2022) 82 Cal.App.5th 569,
588), we disagree.
Enriquez requested an order to “change” or “end” the
September 22, 2022 restraining order. As part of that request, he
sought a hearing, stating in his motion papers: “I believe that the
[restraining order] should be vacated and that I should be given
the opportunity to participate in a new hearing on the matter.”
He obtained a hearing date and provided notice to Sholokhova
that on August 14, 2023, a hearing would be held on his request
to change or dissolve the restraining order.
A request to modify or terminate a domestic violence
restraining order typically requires the court to consider whether
“there has been a material change in the facts upon which the
injunction or temporary restraining order was granted, . . . the
law upon which the injunction or temporary restraining order
was granted has changed, or . . . the ends of justice would be
served by the modification or dissolution of the injunction or
temporary restraining order.” (§ 533; Loeffler v. Medina (2009)
174 Cal.App.4th 1495, 1504; see also Malinowski, supra, 93
Cal.App.5th at p. 695).
Given that Enriquez requested modification or termination
of the restraining order, requested an “opportunity to participate
in a new hearing on the matter,” and obtained a hearing date, we
are unpersuaded that he lacked notice that the trial court would
conduct an evidentiary hearing on the merits of the restraining
order. His request to modify or terminate the restraining order
placed the merits of that order at issue, as the critical question
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was whether the order should be terminated or whether it should
continue. We therefore reject his due process argument.2
C.
Finally, Enriquez contends that the restraining order’s
restriction on his ownership, possession, and purchase of firearms
violates the Second Amendment. Because he has forfeited this
claim in the circumstances here, we decline to reach it.
The Second Amendment protects the right to keep and bear
arms for self-defense. (New York State Rifle & Pistol Ass'n, Inc.
v. Bruen (2022) 597 U.S. 1, 17 (Bruen).) To assess a Second
Amendment claim, a court must first determine whether the
individual’s proposed course of conduct is protected by the text of
the Second Amendment. (Ibid.) If so, the court must determine
whether the government has demonstrated that its regulation is
consistent with our nation’s historical tradition of regulating
firearms. (Ibid.) Evaluating whether a firearm regulation is
“relevantly similar” to our historical tradition requires a
comparison between the burdens posed by the challenged
regulation and the burdens of the historical regulations, as well
as a comparison between the purposes of the challenged
regulation and those of the historical precedents. (Id. at p. 29.)
The central question at the second stage of the inquiry is how and
why the challenged regulation burdens the Second Amendment
right to self-defense. (Ibid.; see also United States v. Rahimi
(2024) 602 U.S. ___, ___ [144 S.Ct. 1889, 1898] (Rahimi); People v.
Anderson (2024) 104 Cal.App.5th 577, 585.)
Here, Enriquez challenges Family Code section 6389,
subdivision (a), which prohibits persons who are subject to a
protective order from owning, possessing, purchasing, or
2 Enriquez does not argue on appeal that the evidence was
insufficient to warrant the issuance of the August 14, 2023
restraining order.
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receiving a firearm or ammunition. But he has forfeited his
claim for two reasons. First, Enriquez raises this claim for the
first time on appeal, which is unfair to Sholokhova. (See People v.
Tully (2012) 54 Cal.4th 952, 979.) Second, his briefing is wholly
inadequate. In particular, Enriquez fails to address the
applicable historical analogues relied upon by the United States
Supreme Court in rejecting a Second Amendment challenge to a
federal statute banning firearm possession by persons subject to
domestic violence restraining orders. (See Rahimi, supra, 602
U.S. at pp. ___ - ___ [144 S.Ct. at pp. 1899-1901].) He omits any
discussion of Rahimi, the controlling precedent in this context.
Nor does he address Altafulla v. Ervin (2015) 238 Cal.App.4th
571, 581-582, which, prior to Bruen, rejected a Second
Amendment challenge to Family Code section 6389.
DISPOSITION
The trial court’s order is affirmed.
BURNS, J.
WE CONCUR:
JACKSON, P. J.
SIMONS, J.
Enriquez v. Sholokhova (A169076)
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