Garcia v. Escobar

Filed 11/15/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
MARIA G. GARCIA, B279530
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. LQ020533)
v.
GILBERT ESCOBAR,
Defendant and
Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Robert E. Willett, Judge. Affirmed with
directions.
Family Violence Appellate Project, Catherine Ongiri,
Erin C. Smith, Jennafer Dorfman Wagner, Anya Emerson; Mayer
Brown, Donald M. Falk and Samantha Booth for Plaintiff and
Appellant.
Pepper Hamilton, Pamela S. Palmer, Brian M. Nichilo and
Courtney A. Munnings for the California Women’s Law Center as
Amicus Curiae on behalf of Plaintiff and Appellant.
No appearance for Defendant and Respondent.
******
“A ‘juvenile court’ is a superior court exercising limited
jurisdiction arising under juvenile law.” (In re Chantal S. (1996)
13 Cal. 4th 196, 200.) “ ‘[F]amily court’ refers to the activities of
one or more superior court judicial officers who handle litigation
arising under the Family Code. It is not a separate court with
special jurisdiction, but is instead the superior court performing
one of its general duties.” (Id. at p. 201.) Both the juvenile court
and the family court may issue protective orders to protect
against domestic violence. (Welf. & Inst. Code, §§ 213.5, 304;
Fam. Code, §§ 6218, 6320.) A protective order enjoins specific
acts of abuse. (Fam. Code, § 6218.)
In this case, the juvenile court issued a protective order,
protecting appellant Maria G. Garcia and her daughter and
enjoining respondent Gilbert Escobar from specified acts of
abuse. The protective order remained effective after the juvenile
court terminated its jurisdiction. On appeal, Garcia and amicus
curiae persuasively show that Family Code section 6345—which
governs the renewal of a domestic violence restraining order—
applies to the renewal of a domestic violence restraining order
issued by a juvenile court (not exclusively to the renewal of an
order issued by the family court). We hold that after a juvenile
court has terminated its jurisdiction, the family court has
jurisdiction over domestic violence orders and may issue a
renewal. We remand the case to the superior court to apply the
renewal statute.
BACKGROUND
Garcia and Escobar dated for seven years and separated in
July 2013. Their only child, A., was three at the time of their
separation.
2
On July 29, 2013, Garcia filed a request for a restraining
order in family court (Judicial Council form DV-100). The case
apparently was transferred to juvenile court. On September 16,
2013, the juvenile court issued a restraining order protecting
Garcia and A. from Escobar. The order indicated that it was an
“[o]rder [a]fter [h]earing,” and that a hearing had been conducted
September 16, 2013. The order expired September 16, 2016. The
order was on a form mandated by the Judicial Council, which
referenced both the Welfare and Institutions Code and the
Family Code. The order enjoined Escobar from “molest[ing],
attack[ing], strik[ing], stalk[ing], threaten[ing], sexually
assault[ing], batter[ing], harass[ing], destroy[ing] the personal
property of, contact[ing], or disturb[ing] the peace” and required
him to stay 100 yards from Garcia and A. except for his visitation
of A.
On May 20, 2014—prior to the expiration of the restraining
order—the juvenile court terminated its jurisdiction. Escobar
was permitted only supervised visitation of A. because, among
other reasons, he had not made progress in his court ordered
domestic violence offenders program.
1. Request for Domestic Violence Restraining Order
On September 7, 2016 (nine days before her juvenile court
restraining order was set to expire), Garcia filed a request for a
domestic violence restraining order in family court. A copy of the
juvenile court’s restraining order was attached to Garcia’s
declaration. Also on September 7, 2016, Garcia caused Escobar
to be served with notice of a hearing on the restraining order.
2. Hearing
At the outset of the hearing concerning Garcia’s requested
restraining order, the trial court indicated that it understood
3
Garcia’s application as a request for a restraining order, not a
request for the renewal of a restraining order. The court stated:
“[T]he way I read the papers is, this is not really a renewal, it is a
request for a restraining order.” Garcia’s counsel did not argue
that she was requesting a renewal. But subsequently, the parties
appeared willing to stipulate to a renewal of a restraining order
though no stipulation concerning a five-year or other specific time
period was discussed. The trial court, however, concluded it did
not have jurisdiction to renew the restraining order because it
was issued by the juvenile court.1
3. Order
The trial court issued a one-year restraining order on
October 21, 2016. The trial court’s order protected both Garcia
and A. from Escobar.
DISCUSSION
As we shall explain, the family court erroneously concluded
that it lacked jurisdiction to renew Garcia’s restraining order.
Family Code section 6345, subdivision (a) provides: “In the
discretion of the court, the personal conduct, stay-away, and
residence exclusion orders contained in a court order issued after
notice and a hearing under this article may have a duration of
not more than five years, subject to termination or modification
by further order of the court either on written stipulation filed
with the court or on the motion of a party. These orders may be
1 Garcia testified at the hearing. Garcia testified that in
2010, she requested a restraining order and the case was
transferred to juvenile court. A copy of the then-recently expired
juvenile court restraining order was admitted into evidence. A
criminal protective order also was admitted into evidence.
Escobar testified and admitted that he had violated the prior
restraining order.
4
renewed, upon the request of a party, either for five years or
permanently, without a showing of any further abuse since the
issuance of the original order, subject to termination or
modification by further order of the court either on written
stipulation filed with the court or on the motion of a party. The
request for renewal may be brought at any time within the three
months before the expiration of the orders.” As we shall explain,
section 6345 applies not only to restraining orders issued by the
family court, but also to restraining orders issued by the juvenile
court.
When a Welfare and Institutions Code section 300 petition
is filed in juvenile court, the juvenile court has jurisdiction to
issue restraining orders until the petition is dismissed or the
dependency is terminated. (Cal. Rules of Court, rules 5.620(b),
5.630.) The jurisdiction of the juvenile court is not affected by the
jurisdiction of the family court. (Fam. Code, § 6221, subd. (b).)
However, once the juvenile court terminates jurisdiction, the
family court assumes jurisdiction over restraining orders issued
in juvenile court. (See Welf. & Inst. Code, § 362.4.)2
Even when the juvenile court has jurisdiction, the Family
Code applies to protective orders issued by the juvenile court. (In
re Chantal S., supra, 13 Cal.4th at p. 206.) Both courts apply the
same definitions of abuse when issuing restraining orders. (Cal.
Rules of Court, rule 5.630, citing Fam. Code, § 6203.) Like the
2 Welfare and Institutions Code section 362.4 provides that
when a juvenile court terminates jurisdiction over a child, the
juvenile court may issue a protective order as defined by Family
Code section 6218. Such an order “shall continue until modified
or terminated by a subsequent order of the superior court.”
(Welf. & Inst. Code, § 362.4.)
5
family court, the juvenile court may issue orders both ex parte
and after notice and a hearing. Welfare and Institutions Code
section 213.5 expressly references Family Code section 6300
(allowing for ex parte orders). Under Welfare and Institutions
Code section 213.5, subdivision (d)(1), the court may issue those
orders upon notice and a hearing consistent with Family Code
section 6340.3 Thus, the process for obtaining a restraining order
is the same in juvenile and in family court.
By its plain language, Family Code section 6345 is not
limited to restraining orders originating in family court. It
requires that the order sought to be renewed was issued “after
notice and a hearing under this article,” referring to article 2
(orders issuable after notice and a hearing) of part 4 (protective
orders and other domestic violence prevention orders) of division
10 (prevention of domestic violence) of the Family Code. The
juvenile court’s order was an “order after hearing” consistent
with Family Code section 6340. (In re B.S. (2009) 172
Cal. App. 4th 183, 194 [order issued under Welf. & Inst. Code,
§ 213.5 was analogous to order issued under Fam. Code, § 6340].)
The hearing that led to Garcia’s restraining order was held
September 16, 2013, in the juvenile court. The conduct
restrained was identical to conduct described in the Family Code
3 The juvenile court’s restraining order referenced Family
Code section 6218, which in turn references Family Code section
6320. Section 6320 allows for an ex parte order “enjoining a
party from molesting, attacking, striking, stalking, threatening,
sexually assaulting, battering, . . . harassing, telephoning, . . .
contacting . . . , coming within a specified distance of, or
disturbing the peace,” and Family Code section 6340 allows for
the same order following a noticed hearing.
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warranting protection. (Fam. Code, §§ 6320, subd. (a), 6340,
subd. (a).) Therefore, the restraining order issued by the juvenile
court was subject to renewal by the family court.
The purpose of Family Code section 6345 also supports this
conclusion. In 1993, section 6345 was expanded to cover
restraining orders regardless of the nature of the proceeding in
which they were issued. (Cal. Law Revision Com. com., 29F
West’s Ann. Fam. Code (2013 ed.) foll. § 6345, p. 398.) Stated
otherwise the statute was expanded to include orders issued in a
proceeding for dissolution or in a paternity action. (Ibid.)
Moreover, the purpose of section 6345 applies equally to
restraining orders issued by the juvenile court as well as those
issued by family court. The lengthy five-year renewal period in
section 6345 was implemented to “ ‘save the victims [of domestic
violence] the harrowing ordeal of returning to court every three
years [or sooner] to renew the orders and allow them to go about
their lives with more peace of mind.’ ” (Avalos v. Perez (2011) 196
Cal. App. 4th 773, 777.) The same purpose applies regardless of
which court issued the restraining order. In short, as Garcia
argues, the family court erred in concluding it lacked jurisdiction
to renew her restraining order issued by the juvenile court. The
case must be remanded for the trial court to apply the renewal
statute to determine whether Garcia is entitled to a five-year or
permanent restraining order.4
4 Although Garcia argues that her request for the renewal of
a restraining order was uncontested and that therefore this court
should enter a five-year or permanent restraining order, the
record does not support her assertion. Initially, Escobar’s counsel
appeared willing to stipulate to the renewal of a restraining
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DISPOSITION
The order is affirmed. The case is remanded to the trial
court to apply Family Code section 6345 to determine if Garcia is
entitled to a five-year or permanent restraining order. Each side
is to bear his or her own costs on appeal. The stay extending
Garcia’s domestic violence order through December 31, 2017,
shall remain in place until further order by the trial court.
FLIER, J.
WE CONCUR:
RUBIN, Acting P. J.
GRIMES, J.
order, but ultimately Escobar’s counsel stated, “There is no
stipulation.”
8