Opinion
B324132
10-25-2023
KATHRYN L. PENA, Respondent, v. CARLOS EMMANUEL EGUIA, Appellant.
Diamond & Associates and David D. Diamond for Appellant.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 22PDRO00650 Sarah J. Heidel, Judge. Reversed.
Diamond & Associates and David D. Diamond for Appellant.
No appearance for Respondent.
CHAVEZ, J.
Carlos Emmanuel Eguia (appellant) appeals from an order granting Kathryn L. Pena's (respondent) request for a restraining order against him. Appellant argues it was an error to issue the restraining order because the parties had not been in contact for almost two years before the hearing. After considering the totality of the circumstances, we find the restraining order was not issued in accord with the purposes of the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.) (DVPA), and we reverse the order.
All further statutory references are to the Family Code.
BACKGROUND
Appellant and respondent were married from November 2018 until July 2020. Though incidents of domestic violence occurred during the marriage, respondent never sought a restraining order nor were criminal charges brought against appellant. Specific incidents include a violent argument on May 1, 2019, when respondent threw her wedding ring at appellant, who responded by throwing a television remote control device at her. Subsequently, respondent slapped appellant, and he retaliated with punches to her arm and face. On February 14, 2020, while appellant was retrieving items from the garage during a period of separation, respondent shut the garage door before appellant finished and he kicked the door until it bent inward. Another confrontation occurred on July 2, 2020, during an argument in the bathroom. Respondent slapped and pushed appellant and in return he headbutted her.
The parties saw each other in November 2020 when appellant delivered divorce papers to respondent. The parties argued, and appellant grew angry and said he wanted to run respondent off the road and kill her.
After this incident the parties had no further violent confrontations. The incident that prompted respondent to seek a restraining order occurred 17 months later, in April 2022. Both parties were employed at the March Air Reserve Base, but had no direct contact while working. On April 2, 2022, appellant was on the base for a scheduled appointment in preparation for his upcoming retirement in May 2022. Respondent was working in her office and did not see appellant, though she observed his vehicle from her office window as he left.
On May 9, 2022, a month after respondent's visit to the base, respondent filed a petition for a domestic violence restraining order (DVRO).
The trial court's minute order of September 13, 2022 reflects appellant's request for a DVRO was denied though no such petition was made part of the record on appeal.
At the September 13, 2022 hearing, the focus was largely on the parties conduct between 2019 and 2020. No evidence was presented to suggest appellant had harassed or abused respondent since November 2020, including during his April 2022 visit to the base.
After both parties rested, the court issued a restraining order protecting respondent from appellant. Additionally, the court ordered appellant to pay $924.38 for damage to the garage door and to attend a 52-week batterer intervention program.
Appellant filed a timely notice of appeal.
DISCUSSION
I. Applicable law and standard of review
The DVPA provides for the issuance of restraining orders to enjoin specific acts of abuse, defined under the statute to include "intentionally or recklessly caus[ing] or attempt[ing] to cause bodily injury," and "plac[ing] a person in reasonable apprehension of imminent serious bodily injury to that person or to another." (§ 6203, subd. (a)(1), (3).)
A trial court has broad discretion in determining whether to grant a petition for a restraining order under the DVPA. (In re Marriage of Fregoso &Hernandez (2016) 5 Cal.App.5th 698, 702.) We review an order granting a restraining order under the DVPA for abuse of that discretion. (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1143.)
"Judicial discretion to grant or deny an application for a protective order is not unfettered. The scope of discretion always resides in the particular law being applied by the court, i.e., in the '"legal principles governing the subject of [the] action ...."'" (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 337.) Thus, "we consider whether the trial court's exercise of discretion is consistent with the statute's intended purpose." (People v. Rodriguez (2016) 1 Cal.5th 676, 685.)
II. Issuance of restraining order was abuse of discretion
Appellant contends that no basis existed for a restraining order because the parties had not had contact since November 2020.
The DVPA is intended "'to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence.'" (J.H. v. G.H. (2021) 63 Cal.App.5th 633, 640-641; see § 6220.) "Under the DVPA, a court may issue a protective order '"to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved" upon "reasonable proof of a past act or acts of abuse."'" (In re Marriage of F.M. & M.M. (2021) 65 Cal.App.5th 106, 115.)
Under section 6301, subdivision (c), "The length of time since the most recent act of abuse is not, by itself, determinative. The court shall consider the totality of the circumstances in determining whether to grant or deny a petition for relief." Further, the DVPA protects against more than just physical violence and threats. Disturbing the peace or "destroying the mental or emotional calm" of the other party is considered abuse under the DVPA. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1498.)
Thus, even if the last act of abuse was years earlier, a court can issue a restraining order if after considering the totality of the circumstances, an order is needed to restrain a person to prevent the recurrence of violence. For example, in McCord v. Smith (2020) 51 Cal.App.5th 358, despite a lack of violence, the trial court issued a DVRO against McCord based on evidence McCord repeatedly went to Smith's house and workplace uninvited, sent threatening messages to Smith, and continued his involvement in Smith's financial affairs, when he had no actual connection. The order was affirmed on appeal because the totality of circumstances showed McCord was harassing Smith and destroying her mental and emotional calm. (Id. at p. 365.)
Here, the most recent act of abuse disclosed by the record occurred in November 2020 when appellant threatened respondent when he delivered divorce papers to her. There was no evidence presented that in the 18 months between this act of abuse and the May 2022 hearing, appellant harassed respondent or acted to destroy her mental or emotional calm.
Although in April 2022, appellant visited the military base where he and respondent worked, no evidence was presented that appellant made this visit with the intent to threaten respondent or destroy her mental or emotional calm. Indeed there was no evidence the parties ever saw each other that day. Appellant remained an employee on the base at the time of his visit until a month later, in May 2022 when he retired. Appellant did not visit respondent's immediate work area; instead, he had a scheduled appointment on base. Respondent offered no evidence that this was a pretext or that appellant attempted to contact her or demonstrated any intent to destroy respondent's mental or emotional calm during his visit.
The DVPA does not authorize a restraining order to issue based on any act that upsets the petitioning party. (Curcio v. Pels (2020) 47 Cal.App.5th 1, 13.) Although respondent was upset by appellant's visit to the base, there was no evidence that this was his intent; instead, he was employed at the base and he was there for a scheduled appointment regarding his retirement.
Although there was some evidence of acts of abuse in 2019 and 2020, when the totality of circumstances is considered, there was no evidence presented to support the position that a restraining order would prevent acts of domestic violence. Nor was there evidence that a restraining order was even needed to prevent abuse for a period sufficient for the parties to resolve the causes of the violence. The last act of abuse was in November 2020 and the parties had not been in contact since. There was no need for a restraining order to create a period of separation because such a period had existed for 18 months before the hearing.
As there was no evidence showing a possibility that violence would reoccur, a restraining order under these circumstances was not consistent with the DVPA's purpose of preventing a recurrence of domestic violence and ensuring a period of separation. When as required by section 6301, subdivision (c), the totality of the circumstances is considered, it was an abuse of discretion to issue a restraining order that was not consistent with the DVPA's purposes. We therefore reverse and vacate the May 13, 2022 order.
DISPOSITION
The order is reversed and vacated. Appellant is awarded his costs of appeal.
We concur: ASHMANN-GERST, Acting P. J., HOFFSTADT, J.