Opinion
G061643
11-02-2023
TOMAS CZODOR, Plaintiff and Respondent, v. XINGFEI LUO, Defendant and Appellant.
Xingfei Luo, in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 18V002374, Michael E. Perez, Judge. Affirmed.
Xingfei Luo, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
SANCHEZ, J.
Xingfei Luo appeals from an order denying her second request to end a domestic violence restraining order (DVRO) issued against her. We affirmed the order denying the first request, and we affirm this one too.
BACKGROUND
In October 2018, Tomas Czodor obtained a DVRO under the Domestic Violence Prevention Act (Fam. Code, § 6200 et. seq.) against Xingfei Luo, with whom he had had a brief relationship. The DVRO was issued after a hearing in which Luo had an opportunity to cross-examine Czodor. Luo appealed from the DVRO. A panel of this court affirmed the DVRO. (Czodor v. Luo (Aug. 29, 2019, G056955) [nonpub. opn.] (Luo I).)
In August 2021, Luo brought a request for an order ending the DVRO based on her declaration and exhibits which, she claimed, proved she never had a dating relationship with Czodor. The trial court denied the request to end the DVRO and entered a first amended domestic violence restraining order. A panel of this court affirmed the order denying Luo's request to end the DVRO. In a prior opinion, we concluded, "The issue whether Czodor and Luo once had a dating relationship was fully adjudicated by issuance of the DVRO" and "[a]ccordingly, whether Czodor and Luo ever had a dating relationship was not a change in facts that would permit termination of the DVRO." (Czodor v. Luo (Jan. 10, 2023, G060756) [nonpub.opn.] (Luo II).)
Undaunted, Luo brought yet another request to end the DVRO on the same grounds. She again claimed she never had a dating relationship with Czodor and, therefore, the DVRO was unlawful. She claimed to have additional evidence showing that in 2018 Czodor was married to another woman and as such did not intend to have a dating relationship with Luo. In July 2022, the trial court denied Luo's request to terminate the DVRO. Luo appealed.
DISCUSSION
We review an order denying a request to end a DVRO under the abuse of discretion standard. (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1505 (Loeffler).) "To the extent that we are called upon to review the trial court's factual findings, we apply a substantial evidence standard of review." (Ibid.) Whether the trial court applied the correct legal standard to a particular issue is a question of law subject to de novo review. (Ashby v. Ashby (2021) 68 Cal.App.5th 491, 509.)
A DVRO is a type of injunction because it is an "order requiring a person to refrain from a particular act." (Code Civ. Proc., § 525; Loeffler, supra, 174 Cal.App.4th at pp. 1503-1504.) By requesting an order ending the DVRO, Luo was seeking to dissolve an injunction. (Loeffler, at p. 1504.)
Code of Civil Procedure section 533 sets forth the grounds on which a court may dissolve an injunction: "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." (Ibid.) In short, an injunction may be dissolved upon a showing of (1) a material change in facts, (2) a change in the law, or (3) the ends of justice would be served. (Loeffler, supra, 174 Cal.App.4th at p. 1504.) The restrained party bears the burden of showing by a preponderance of the evidence that one of the three circumstances is present and justifies a termination of the restraining order. (Ibid.)
Luo did not present evidence to show any of the circumstances permitting the termination of the DVRO. We repeat: The issue whether Czodor and Luo ever had a dating relationship was fully adjudicated by the issuance of the DVRO. As we stated in Luo II: "Czodor alleged in his request for a [DVRO] that he and Luo once had a dating relationship, and, in her response, Luo agreed they had had a dating relationship. An evidentiary hearing was conducted, both Czodor and Luo were sworn to testify, and Luo cross-examined Czodor. The trial court, when granting Czodor's request for a [DVRO] found that 'acts of domestic violence have occurred and that [Luo] is the perpetrator, and [Czodor] is the victim.' As relevant here, Family Code section 6211 defines 'domestic violence' as 'abuse perpetrated' against any person 'with whom the [perpetrator] is having or has had a dating or engagement relationship.' (Id., subd. (c).) Thus, by finding that Luo had committed acts of domestic violence, the trial court of necessity also found that Czodor and Luo had or once had a dating relationship." (Luo II, supra, G060756.)
In her appeal from the DVRO, Luo did not assert insufficiency of the evidence to support a finding of a dating relationship. (Luo I, supra, G056955.) The opinion in Luo I affirmed the DVRO. Repeatedly bringing requests to end the DVRO cannot alter the adjudication that Czodor and Luo had a dating relationship.
On our own motion, we take judicial notice of the appellant's opening brief and the opinion in Luo I. (Evid. Code, §§ 452, subds. (c), (d), 459, subd. (a).)
Luo argues the judge who denied her request for order ending the DVRO had the authority to correct a prior ruling or to reconsider and overturn the ruling of a prior judge. The issue presented by a motion to end a DVRO is whether there has been a material change in facts or law which justify, or whether the ends of justice would be served, by ending the DVRO. (Loeffler, supra, 174 Cal.App.4th at p. 1504.) A request to end a DVRO is not a motion for reconsideration of the original decision.
If a trial court believes one of its prior interim orders was erroneous, it may, on its own motion, reconsider that order (LeFrancois v. Goel (2005) 35 Cal.4th 1094, 1108) so long as the court informs the parties of its intent to do so and provides them an opportunity to respond (Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1239). The trial court here did not believe the DVRO was erroneous. The court stated at the hearing on Luo's request: "The trier of fact made findings that were consistent with . . . a qualified relationship and that domestic violence or abuse had occurred within the meaning of the Family Code and had issued that restraining order after hearing. [¶] This court at our hearing on October 1st had made the same indications, that I wasn't in a position to go back and revisit that. I think I gave Ms. Luo the opportunity to offer up any new evidence that wasn't presented to the court at the original restraining order after hearing which was on October the 19th of 2018. That was in front of Commissioner Wilson. [¶] Both parties were sworn and testified. There were exhibits. Commissioner Wilson made the finding that the court indicated and issued the restraining order." The court gave Luo the opportunity to make an offer of proof of what she intended to show that was different from anything presented at the prior two hearing. Luo said she would call Czodor to the stand and question him on his marital status in 2018. The court denied the request. We find no abuse of discretion.
DISPOSITION
The order is affirmed. No costs on appeal to be awarded.
WE CONCUR: MOORE, ACTING P. J., GOETHALS, J.