Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. SQ000811 Bobbi Tillmon, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Daniel Ritkes for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant Jeremy Halford (Halford) appeals an order granting a motion by his former girlfriend, plaintiff and respondent Cheryl Logan (Logan), for an order renewing a restraining order against him and making the order permanent.
An order granting an injunction is appealable. (Code Civ. Proc., § 904.1, subd. (a)(6).)
Logan has not filed a respondent’s brief herein. In such a situation, California Rules of Court, rule 8.220(a)(2) provides the court may decide the appeal on the record, the opening brief, and any oral argument by appellant. A respondent’s failure to file a brief does not require an automatic reversal. (In re Marriage of Davies (1983) 143 Cal.App.3d 851, 854). Notwithstanding the respondent’s silence, the appellant still has the affirmative burden to show error. Therefore, this court reviews the record and reverses only if prejudicial error is found. (Ibid.)
Halford did not file any written opposition below, nor did he present any evidence to controvert the showing made by Logan in support of her motion. As stated in Ritchie v. Konrad (2004) 115 Cal.App.4th 1275 (Ritchie), the court “should grant a requested extension unless the request is contested . . . .” (Id. p. 1279, italics added.) Given the absence of an opposition below, the trial court properly granted Logan’s motion. Therefore, the order is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
1. The 2003 restraining order; Halford completes a batterer’s treatment program.
Halford and Logan used to work together at the same firm in Century City and were in a dating relationship.
On August 4, 2003, Logan filed a request for a restraining order, alleging physical abuse by Halford.
According to Logan’s supporting declaration, on one occasion, after returning from a wedding and intoxicated, Halford pushed her down, started to choke her, placed his hands over her mouth and nose so that she was unable to breathe, bit her repeatedly, and then pushed her into a window, breaking a security bar. Also, for the previous three months, Halford had been threatening her, and he had threatened to kill her and then himself.
The trial court issued a temporary restraining order, and the matter proceeded to a hearing on August 20, 2003. At the hearing, Halford testified and agreed to a restraining order, without admitting to the alleged acts.
On August 20, 2003, the trial court issued a three-year restraining order against Halford, to expire on August 19, 2006. The matter was continued to October 26, 2004 for Halford to show proof of completion of a batterer’s treatment program.
On October 26, 2004, the matter came on for hearing. A progress report showed Halford had attended 47 sessions and had missed 7 sessions. According to the program director, Halford “continues to do an excellent job keeping to the structure of the program—he is current with his payments and homework; his excused absences have been due to necessary business travel. [Halford] has been participating actively and making helpful and insightful contributions to group discussions.” The trial court then continued the matter to January 19, 2005.
On January 19, 2005, Halford showed proof of completion of the ordered batterer’s treatment program. The order to show cause was discharged and the review hearing was completed.
2. The 2006 request by Logan to renew the restraining order and to make it permanent.
a. The application to renew the restraining order.
On August 7, 2006, with the three-year restraining order about to expire, Logan filed a request to renew the restraining order, stating she “want[ed] the order to be renewed for . . . Lifetime.” (Italics added.)
In seeking to renew the order, Logan did not check the box on the form to indicate that Halford “has abused and/or harassed me since the order was made.” Logan requested a renewal on the ground “I am afraid of [Halford]” as well as the reasons stated by her psychotherapist in a two-page letter attached to the request.
According to the psychotherapist, who had been seeing Logan for the past three years, Logan “has suffered from Posttraumatic Stress Disorder due to the nature of the emotional and physical abuse experienced during the relationship with her ex-boyfriend . . . . She continues to experience a great deal of fear for her physical safety. . . . It is her belief that because the defendant failed to take responsibility for his actions . . . it is possible that he could try to contact or locate her regarding the charges filed against him back in August 2003. Her emotional and psychological progress in treatment has been largely due to the Restraining Order being in place. If the renewal of the Restraining Order is not granted, it could set her emotionally and psychologically back to . . . where she was in 2003 when I first started treating her.”
b. Proceedings.
On September 5, 2006, the matter came on for hearing. Halford currently resides in London, England, and was not present but was represented by counsel. Logan was present and represented herself.
The trial court sustained a hearsay objection to the letter from Logan’s psychotherapist. The trial court ruled that although said letter could not be considered, Logan was entitled to testify regarding her feelings and her need for a renewal of the restraining order.
Logan testified regarding her fear of Halford, stating the order should remain in place because Halford “physically conned me in such a way that I felt that I was going to die.” “What I’m asking is that I be left alone. . . . And I want to feel safe no matter where I am, whether he’s in Paris or in the city next to me, I just want to know that I’m safe.”
On cross-examination, Logan testified she served Halford by FedEx in London, after learning from a friend that he was living there.
In closing argument, Logan reiterated her fear of Halford that “he will come after me.”
Halford’s attorney, in turn, asserted that Halford was charged in September 2003, he pled no contest to a misdemeanor, completed a 52-week domestic violence class and performed 480 hours of city service. Further, there was no suggestion that Halford had violated the restraining order at any time in the past three years, and “[i]n fact, he would have had no contact with [Logan] whatsoever had she not served him” with the request for an extension of the restraining order. (Italics added.) Although Logan “may be fearful of [Halford] [or of] other men, but he’s done nothing at all to warrant this restraining order being extended.”
c. Trial court’s ruling.
The trial court granted Logan’s request to renew the restraining order and to make it a permanent lifetime order. The trial court indicated that under the Family Code, “[t]he court . . . does not need to have additional evidence presented in order to determine whether or not it’s appropriate to renew a restraining order. . . . [¶] Given the very serious behavior that respondent was convicted of in a criminal court, as well as in response to the domestic violence application, where this court issued a restraining order, and the behavior, again, included very serious physical violence, as well as other abusive conduct, the court . . . is going to renew the restraining order.” The trial court noted under these circumstances it could renew the restraining either for a five-year period or forever. Given “the very serious abusive conduct that did occur,” the trial court chose to make the restraining order permanent, with no expiration date.
In making its ruling, the trial court noted that Halford had not filed a responsive declaration, so “other than the information provided by the petitioner, we have no information, no direct information from the respondent. He hired counsel so he was very aware of the proceedings, and apparently he was in town last week and could have provided, even by facsimile to counsel or to the court or delivered it to the court, a written response to petitioner’s request. [¶] . . . [¶] [T]he court can only consider the information presented, and since he didn’t present any information, the court can assume that there was no information to present. Respondent had the opportunity, and he didn’t, for whatever reason, take advantage of it, its notice and opportunity to be heard. [sic] The court even continued the hearing at the request of counsel with the hope that respondent may be able to personally attend. That’s why the hearing was continued, and yet with all of those opportunities respondent did not file a written response. So on that basis, the court is going to issue this as a permanent restraining order with no expiration date.” (Italics added.)
Halford filed a timely notice of appeal from the order.
CONTENTIONS
Halford contends: the trial court abused its discretion in renewing the order without making a finding, and where the evidence failed to show, it was more probable than not there is a reasonable risk Logan would be subjected to future abuse by Halford; the trial court abused its discretion when it failed to make the finding, and the evidence failed to show, that Logan’s alleged fear of him was genuine and reasonable; and the primary purpose of the 1995 amendment to Family Code section 6345, subdivision (a), was to allow a permanent renewal only where there exists a danger of future abuse.
All further statutory references are to the Family Code, unless otherwise specified.
DISCUSSION
1. General principles.
a. The pertinent statute.
Section 6345, found within the Domestic Violence Prevention Act (§ 6200 et seq.), states in relevant part at subdivision (a): “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 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.” (Italics added.)
b. Case law interpretation of section 6345 .
Ritchie, supra, 115 Cal.App.4th 1275, considered the criteria a trial court should apply in deciding whether to renew a domestic violence protective order. Ritchie concluded the trial court “should grant a requested extension unless the request is contested and the judge determines the protected party does not entertain a ‘reasonable apprehension’ of future abusive conduct.” (Id. at p. 1279, italics added, original italics omitted.)
Ritchie explained: “[A] protected party [such as Logan] would be entitled to a renewal of the protective order merely upon request, if that request were not contested by the restrained party. In that instance, both the protected party and the court are entitled to assume the restrained party has a good reason for not objecting. It could be because of indifference to a continuance of the protective order. Or it could result from a realization there are no grounds to resist that continuation.” (Ritchie, supra, 115 Cal.App.4th at p. 1284, italics added.)
Ritchie continued, “[o]n the other hand, if the restrained party does contest the renewal, . . . we conclude the protected party is not entitled to a renewal merely because she (or he) desires one. Section 6345 does not provide the trial court shall automatically renew the existing protective order if the protected party requests. By its terms, section 6345 only states the trial court may do so in the proper exercise of its discretion. In this court’s view, that exercise of discretion requires an inquiry beyond whether the protected party requested a renewal and entertains a subjective desire the protective order continue.” (Ritchie, supra, 115 Cal.App.4th at p. 1284, italics added, original italics omitted.)
In construing section 6345, Ritchie observed the statute authorizes an extension or renewal of a restraining order “without requiring evidence the restrained party violated the existing order by committing a new act of abuse. But this does not mean other evidence bearing on the need for a continued protective order is unnecessary or irrelevant.” (Ritchie, supra, 115 Cal.App.4th at p. 1289.)
Ritchie “conclude[d] . . . an objective test must be satisfied before a protective order is renewed in contested cases. From the language of California statutes and the legislative history, we have drawn the following formula (limited, however, to cases where the restrained party appears and challenges the requested renewal of the existing order). A trial court should renew the protective order, if, and only if, it finds by a preponderance of the evidence that the protected party entertains a ‘reasonable apprehension’ of future abuse. So there should be no misunderstanding, this does not mean the court must find it is more likely than not future 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 is genuine and reasonable.” (Ritchie, supra, 115 Cal.App.4th at p. 1290, italics added.)
In Ritchie, “because the restrained party appeared and challenged the requested extension the trial court erred when it issued the renewal order based solely on Ritchie’s subjective desire the protective order be extended. Instead the court should have considered evidence tendered by both sides and determined whether Ritchie’s expressed fear of future abuse was genuine and also reasonable.” (Ritchie, supra, 115 Cal.App.4th at p. 1282, italics added.)
2. Because the instant matter was uncontested, the trial court properly granted Logan’s request for a permanent restraining order; contrary to Halford’s contention on appeal, no additional evidence or findings were required.
Halford argues at length that the trial court abused its discretion in renewing the order without making a finding, and where the evidence failed to show, it was more probable than not there is a reasonable risk Logan would be subjected to future abuse by Halford and that Logan’s alleged fear of him was genuine and reasonable. Halford also relies on the legislative history underlying the 1995 amendment to section 6345 to argue a permanent renewal may be had only where there exists a danger of future abuse.
The fatal flaw in Halford’s contentions on appeal is that Halford overlooks the fact he did not file any written opposition below to Logan’s motion to renew and extend the restraining order, did not submit a responsive declaration below and did not present any evidence at the hearing. As a consequence, the averments in the moving papers were uncontroverted, as was Logan’s testimony at the hearing on the renewal motion.
The mere fact Halford appeared at the hearing through counsel, who objected to the renewal motion, does not cure the deficiency in the opposition. It is well settled that argument of counsel does not constitute evidence. (Beagle v. Vasold (1966) 65 Cal.2d 166, 176.) Further, the very limited cross-examination of Logan by Halford’s attorney did not challenge Logan’s testimony that she remained fearful of Halford due to the violence he perpetrated on her.
Thus, the state of the record before the trial court was that there was no denial of the allegations in the moving papers and no evidence to controvert Logan’s testimony regarding her continuing fear of Halford.
As stated in Ritchie, the court “should grant a requested extension unless the request is contested . . . .” (Ritchie, supra, 115 Cal.App.4th at p. 1279, italics added.) Although Halford contends the trial court’s ruling herein is contrary to Ritchie’s criteria for renewing a domestic violence restraining order, those criteria only apply where the request is contested. (Id. at pp. 1279, 1290.) Here, because Halford in effect failed to contest Logan’s request to renew and extend the restraining order, the trial court’s ruling is fully consistent with Ritchie.
3. In the alternative, even assuming we were to construe this as a contested matter below, the result would be the same.
Finally, assuming arguendo the presence of Halford’s counsel at the hearing were sufficient to make this a contested matter below, the result is unchanged.
As indicated, Halford filed no responsive declaration below, and indeed no opposition whatsoever, to Logan’s motion to renew the restraining order and to make the order permanent. At the hearing, Logan testified she continued to fear Halford due to the violence he perpetrated on her. Halford did not appear personally, nor did he present any oral or other evidence to dispute Logan’s testimony that she remained in fear of him. Although Halford’s attorney did appear and cross-examined Logan, counsel did not question Logan on the subject of her continuing fear of Halford. The very limited cross-examination of Logan by Halford’s attorney did not challenge Logan’s testimony that she remained fearful of Halford due to the violence he perpetrated on her. Thus, Logan’s testimony regarding her continuing fear of Halford was uncontroverted and constitutes substantial evidence in support of the trial court’s order.
It was in this context that the trial court stated it was granting the motion in the absence of any opposition by Halford. The trial court was entitled to credit Logan’s unchallenged and uncontroverted testimony regarding her continuing fear of Halford. In granting Logan’s motion, the trial court impliedly found that Logan “entertains a ‘reasonable apprehension’ of future abuse.” (Ritchie, supra, 115 Cal.App.4th at p. 1290.) Contrary to Halford’s contention, the trial court was not required to make express findings in support of its order. Because there was no request for a statement of decision, we imply all necessary findings in favor of Logan, the prevailing party. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)
For all these reasons, we perceive no abuse of discretion in the trial court’s ruling.
DISPOSITION
The order is affirmed. Halford shall bear his own costs on appeal.
We concur: CROSKEY, J., KITCHING, J.