Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. F05-00494
Marchiano, P.J.
Maria Guijosa appeals an order denying her application for a protective order pursuant to the Domestic Violence Prevention Act (DVPA). (Fam. Code, § 6200 et seq.) She claims the facts in her sworn declaration were sufficient to justify a temporary ex parte protective order under section 6320. She also urges the facts were sufficient, in any event, to require the trial court to set the matter for a hearing pursuant to section 6340. As discussed below, we conclude the summary denial was an abuse of discretion under the circumstances, and reverse.
Further statutory references are to the Family Code unless otherwise indicated.
Background
Dominguez and Guijosa are “former cohabitants” (see § 6209) who lived together in Watsonville between February 2002 and July 2004. During this period, Guijosa gave birth to two daughters. Dominguez is their father. It appears that sometime after their separation, Guijosa sought welfare benefits for herself and her children. As a result, the local child support services agency initiated a proceeding against Dominguez, in February 2005, to establish and enforce child support for the two daughters. (See § 17415.)
The trial court apparently consolidated this proceeding with one that Dominguez instituted in October 2006, to establish his rights as father. (See § 7600 et seq.)
On September 1, 2006, Guijosa filed a form application for a protective order against Dominguez pursuant to the DVPA. (See § 6221, subd. (c).) Her application attested the following facts. In June 2002, after Guijosa gave birth to her first daughter, Dominguez “became furious with [her,] telling [her] that he’d wanted a boy but that [she had] only given him a girl.” When she “protested” these remarks, he “grabbed [her] by both of [her] wrists, picked [her] up and threw [her] across the room and on to the bed.” She afterward experienced “soreness on her wrists and body.” Guijosa did not call the police after this incident because Dominguez had told her “repeatedly that [she] couldn’t do anything to stop his abuse because . . . of [her] immigration status, and that he was going to file a legal case against [her] for ‘abandoning the family home’ if [she] tried to leave him or complained of the way he treated [her].” Guijosa believed Dominguez could have taken such action in Mexico, but did not then know that “in the United States there [were] laws to protect [her].” Dominguez “repeatedly subjected [her] to verbal abuse, physical abuse and forced sex while [they] were living together.” Following the birth of her second daughter in June 2003, Guijosa telephoned her family in Mexico, told them about Dominguez’s behavior and “begg[ed] them to help [her] return.” They had no money and could not help her. Dominguez told her parents “he would send [her], but then didn’t do so.” Guijosa continued to live with Dominguez for another year. At some point during this period, Dominguez “took [their] daughters’ birth records, telling [her] that without them [she] could not leave.” During this time he also “forced [her] to have sex with him 2 or more times a week, saying that it was [her] duty since [she] was still living with him.” Guijosa was finally able to leave Dominguez after an aunt “came to get [her and her daughters] and took [them] to live with her in Pittsburg.” Dominguez remained in Watsonville. Sometime afterward Guijosa began cohabiting with Martin Gordiano. In April 2006 she gave birth to his son. A few weeks later, Dominguez came to their home and “demanded to see the children, including the infant.” When Guijosa refused to allow him to see the infant, Dominguez “became very angry” and complained that he had always wanted a son, yet she “had only given him girls.” He “took [the two] daughters but wouldn’t tell [Guijosa] when or if he was going to return them.” Three days later he called to say “he was going to return them.” At this time Guijosa was “very afraid of what [Dominguez] might do, because he ha[d] repeatedly threatened to call immigration to try to get [her] deported [so she would] never see [her] daughters again and he [would not] have to pay child support.” More recently, Guijosa complained that Dominguez “ha[d] repeatedly called [her] home and threatened [her and Martin].” In August 2006, he “ha[d] called twice and screamed very loudly on the message machine.” “[C]aller ID [had] identified him as the one calling and screaming into the phone.”
On the basis of these facts, Guijosa’s application sought a temporary ex parte protective order under section 6320 et seq., as well as a protective order after hearing under 6340. She asked that the orders direct Dominguez to stay at least 100 yards away from her, her children, and Martin, and not to contact them except as necessary for court-ordered visitation with his daughters. She requested that they prohibit Dominguez from taking any action to obtain information concerning their addresses or locations, and prohibit him from subjecting them to certain behaviors: harassing, attacking, striking, threatening, assaulting, hitting, following, stalking, molesting, destroying personal property, disturbing the peace, keeping them under surveillance, and blocking their movement. Guijosa additionally asked that the orders prohibit Dominguez from having any visitation with his daughters until he completed mediation. Finally, she requested authorization to record any communication Dominguez might make in violation of these prohibitions.
The appeal appears to be moot as to the portion of the requested order concerning custody and visitation. The record indicates the trial court subsequently resolved these issues in the consolidated proceeding. (See fn. 2, ante.)
The trial court denied the application on the same day it was filed, without a hearing. (See § 6326.) Specifically, the judge form stamped on the application: “The undersigned judicial officer has read and reviewed the attached application and declaration for order. The facts set forth do not provide a legal basis to issue the order requested and the application is therefore denied.” This appeal followed. (Code Civ. Proc., § 904.1, subd. (a)(6).)
Discussion
Guijosa essentially argues that the trial court’s summary, stamped denial was prejudicial error because her application stated facts that, under the DVPA, supported a prima facie showing of her entitlement to a temporary ex parte protective order and also to a hearing on her request for a more permanent protective order. A brief filed by amici curiae—various organizations dedicated to the assistance of victims of domestic violence—supports her argument, advancing various policy reasons to justify a liberal construction of the DVPA that would, in effect, require the issuance of a protective order when an applicant such as Guijosa has averred facts stating a prima facie case for relief.
No respondent’s brief was filed. In such a case we examine the record and consider the opening brief and oral argument, if any, to determine whether the trial court’s ruling was prejudicial error. (See Conness v. Satram (2004) 122 Cal.App.4th 197, 200, fn. 3; Cal. Rules of Court, rule 8.220(a)(2).)
A grant or denial of injunctive relief is reviewed for abuse of discretion. (Salazar v. Eastin (1995) 9 Cal.4th 836, 849-850.) This standard applies similarly to a grant or denial of a protective order under the DVPA. (See Quintana v. Guijosa (2003) 107 Cal.App.4th 1077, 1079.) Whether a trial court’s discretion vests under common law or, as here, pursuant to statute, legal discretion is “to be exercised in conformity with the spirit of the [applicable] law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” (In re Robert L. (1993) 21 Cal.App.4th 1057, 1066, superseded on other grounds by statute, as stated in Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.) That is, the scope of the trial court’s discretion is measured by reference to the governing law—in this case the DVPA. When a trial court transgresses the applicable principles of law, its ruling is outside the scope of discretion, and we term this an “abuse” of discretion. (Thayer v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 833; City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1298.) This appeal turns on the question whether the trial court abused its discretion, resulting in a miscarriage of judgment. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 331.)
The DVPA defines domestic violence as “abuse” perpetrated against enumerated individuals, including a former cohabitant. (§ 6211, subd. (b).) Its purpose is to prevent the recurrence of acts of such abuse and to provide for a separation of those involved in order to resolve its underlying causes. (§ 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. The act defines “abuse,” as either: an intentional or reckless act that causes or attempts to cause bodily injury; an act of sexual assault; an act that places a person in reasonable apprehension of imminent serious bodily injury to himself or herself or to another; and an act that involves any behavior that has been or may be enjoined under section 6320. (§ 6203.) Those behaviors that may be enjoined under section 6320 include “molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, [and making] annoying telephone calls as described in Section 653m of the Penal Code.” (§ 6320.) The behaviors that may be enjoined also include “disturbing the peace of [another] party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.” (§ 6320.) A trial court is vested with discretion to issue a protective order under the DVPA simply on the basis of an affidavit showing past abuse. Specifically, it “may” issue an order “with or without notice, to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit . . . shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” (§ 6300.)
These provisions of the DVPA confer a discretion designed to be exercised liberally, at least more liberally than a trial court’s discretion to restrain civil harassment generally. For example, the “abuse” that may be enjoined under sections 6203 and 6320 is much broader than that which is defined as civil harassment. (Cf. Code Civ. Proc., § 527.6, subd. (b).) Moreover, an order after hearing may enjoin civil harassment only on proof by clear and convincing evidence. (Code Civ. Proc., § 527.6, subd. (d).) This stringent standard of proof does not apply to an order after hearing restraining abuse under the DVPA. (See § 6340, subd. (a).)
As we have noted, the trial court denied Guijosa’s application because it found that the stated facts did “not provide a legal basis to issue the order requested.” This stamped ruling was, in effect, one that assumed the truth of Guijosa’s averred facts and found them, as a matter of law, not sufficient to constitute “reasonable proof of a past act or acts of abuse” pursuant to section 6300.
It is true that some of her statements may be insufficient. For example, the averment that Dominguez “repeatedly subjected [Guijosa] to verbal abuse, physical abuse, and forced sex while [they] were living together”—without additional underlying facts—borders on the conclusionary. By analogy to summary judgment procedure, the affidavit of a party seeking relief under the DVPA should state evidentiary facts as distinguished from ultimate facts or conclusions of law or fact. (See Scheble v. Nell (1962) 200 Cal.App.2d 435, 439.) Similarly, a number of the attested facts, such as Dominguez’s unfulfilled promise to return Guijosa to her parents in Mexico, describe acts that fall short of “abuse.” Still others describe acts as to which reasonable minds might differ concerning whether or not they constitute harassment or some other instance of “abuse.” One such example would be Dominguez’s criticism of Guijosa for “only giv[ing] him girls.”
Nonetheless, some of Guijosa’s declared facts are sufficient as a matter of law to show past acts of abuse, as that term is broadly defined for purposes of the DVPA. For example, Guijosa averred Dominguez had coerced her into having sex at least twice a week during the last year she lived with him, after she had made an unsuccessful attempt to leave, and that during this period of time he “repeatedly” warned her not to “do anything to stop his abuse” or he would alert authorities for the purpose of having her deported. These facts, if true, were sufficient to constitute “reasonable proof” of sexual assault and threatening conduct. (§§ 6203, subd. (b), 6320; cf., Pen. Code, § 261, subds. (a)(2), (7) & (b).) The averment that Dominguez once grabbed Guijosa by the wrists and “threw [her] across the room” was, if true, sufficient to constitute reasonable proof of a past act of “battering” (§ 6320; see § 6203, subd. (d)), if not a past act involving a “reckless[] . . . attempt to cause bodily injury” (§ 6203, subd. (a)). The attested fact that Dominguez, in August 2006, had called Guijosa’s home telephone number and left “screaming” messages was sufficient to constitute reasonable proof of “annoying telephone calls as described in Section 653m of the Penal Code.” (§ 6320; see 6203, subd. (d); see also Pen. Code, § 653m, subd. (b) [describing “repeated telephone calls . . . with intent to annoy another person at his or her place of residence . . . whether or not conversation ensues”].)
Thus, Guijosa’s declared facts were sufficient to show at least three past acts of abuse, within the meaning of the DVPA. Reasonable proof of a single act of past abuse is sufficient to support the issuance of a protective order, with or without notice. The trial court abused its discretion when it concluded that Guijosa’s declaration failed as a matter of law under DVPA principles to state facts providing a basis for her requested orders.
We conclude further that Guijosa was prejudiced by the ruling, at least to the extent that the court failed to issue a temporary ex parte protective order tailored to prevent any recurrence of the pasts acts of abuse she had shown, and to the extent it deprived her of a hearing on her request for a protective order of longer duration.
Disposition
The order is reversed.
We concur: Swager, J. Margulies, J.