Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YQ011105, William R. Torres, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Gibson, Dunn & Crutcher, Julian W. Poon, Julie Metnick Zankel and Hane Kim for Plaintiff and Appellant.
David V. Herriford for Defendant and Respondent.
KRIEGLER, J.
In this domestic violence case, plaintiff and appellant Robin R. appeals from an order terminating a domestic violence restraining order that had been issued against defendant and respondent Johnny B. Robin contends the trial court lacked subject matter jurisdiction to terminate the restraining order and termination of the restraining order was an abuse of discretion. Finding the trial court had subject matter jurisdiction and its order was not an abuse of discretion, we affirm.
STATEMENT OF FACTS AND PROCEDURE
We have taken judicial notice of the reporter’s transcripts of the proceedings on October 3 and 10, 2008, filed in Court of Appeal docket No. B213529, an earlier appeal in this matter, and the superior court file.
On September 11, 2008, Robin filed a request for a restraining order against Johnny seeking protection for herself and Johnny’s 15-year-old daughter. Robin alleged she and Johnny used to live together and were dating or had dated. She alleged the most recent abuse occurred on September 9, 2008, when Johnny placed her in a choke hold, slammed her on the bed, took her telephone away so she could not call the police, and prevented her from meeting the police when they arrived. A temporary restraining order was issued, and a hearing on the request for a restraining order was set for October 3, 2008.
On September 25, 2008, Johnny filed an ex parte notice of motion for an order dismissing the temporary restraining order and ordering Robin to move out of his house. He alleged he and Robin had an argument on September 9, 2008, about another woman and money he owed her, and on September 11, Robin obtained a restraining order which she served on him. Johnny stayed away from Robin since that time. On September 13, Robin tried to find the location of Johnny and the other woman. On September 23, 2008, Robin called Johnny on his cell phone and left a message. Johnny asserted that he was in law enforcement and Robin’s telephone calls hindered his efforts to finish his law enforcement career. Johnny’s ex parte motion was heard on September 25, 2008, and denied.
At the hearing on October 3, 2008, Robin stated Johnny was physically violent and harassed her. Johnny denied the allegations and said Robin contacted him after the temporary restraining order was issued. Johnny told the court that the apartment belonged to him. Robin stated daughter asked to be included in the restraining order because she was afraid of Johnny. The trial court continued the matter to October 17, 2008, indicating that if no further violence was reported, the trial court intended to dismiss the matter. The trial court admonished Johnny and Robin to have nothing to do with one another.
On October 10, 2008, Robin filed an ex parte request to modify the temporary restraining order. She sought to add the address where she resided (on Orchard Drive), and her mother’s address, to the restraining order. She alleged Johnny violated the temporary restraining order twice since October 3, and she asked to expand on her reasons for requesting a restraining order. The trial court advanced and vacated the scheduled hearing date of October 17 and held a hearing on the restraining order that morning. Robin said she resided with Johnny in a building her family owned. She told the trial court Johnny came to the residence on October 4, stalked Robin on subsequent days, and on the night of October 9, Johnny called Robin and said, “Bitch, you show up to court tomorrow, and I’m going to kill you.” Johnny stated the apartment was owned by Robin’s cousin, but he is the renter. He denied Robin’s allegations. He told the trial court he had witnesses who would testify in support of his denial of Robin’s allegation he called Robin on the night of October 9 and threatened her. However, he did not have them in court, as he did not know the October 17 hearing date would be advanced and vacated. The trial court denied his request to allow the witnesses to come in and testify. Johnny stated that, at the time Robin said he was threatening her, he was assisting paramedic, fire, and police personnel providing aid to a man having a diabetic seizure.
The trial court did not swear in the witnesses. The court merely had the witnesses tell their sides of the case.
Concluding that Johnny had not complied with the trial court’s orders, the trial court issued a three-year restraining order, which consisted of personal conduct orders and a stay-away order. The personal conduct orders prohibited Johnny from harassing, contacting, or taking any action to obtain the address of Robin and daughter. The stay-away order required Johnny to stay at least 100 yards away from Robin, daughter, Robin’s home and job, and Robin’s mother’s home. Johnny was prohibited from owning or possessing any firearms.
Although the oral pronouncement did not include daughter in the restraining order, she was included in the written order after hearing signed by the trial court.
Johnny filed a notice of appeal of the restraining order on November 5, 2008.
On February 9, 2009, Johnny filed an application in the trial court to terminate the restraining order issued on October 10, 2008. He alleged that daughter is not Robin’s child and he obtained sole legal custody of daughter in 2004. In 2006, Johnny and daughter moved to Los Angeles from Illinois. When the restraining order was issued, Robin sent daughter to Illinois to live with daughter’s grandmother. Prior to the issuance of the restraining order, daughter lived with Johnny at his residence on Orchard Drive. Daughter never lived with Robin, and Robin’s request for a restraining order contained no allegations of violence against daughter. The existence of the restraining order prevented Johnny from regaining custody of daughter, because the order is in CLETS. The firearm prohibition should be modified to permit Johnny to use firearms for work. Johnny is a lateral transfer police officer from Illinois. The only requirement left to be certified as a police officer in California is a firearm requalification certification. He must complete requalification firearm training by February 23, 2009, and has until April 15, 2009, to receive a firearm certification. Since the restraining order was issued, he stayed away from Robin and daughter. No criminal charges were filed against him. Moreover, on October 10, 2008, without notice to Johnny, the trial court advanced and vacated the trial date of October 17 and heard the request for a permanent restraining order. Johnny denied Robin’s allegations that he called her the night of October 9 and threatened to kill her. The trial court denied his request for a full evidentiary hearing to hear the witnesses Johnny had scheduled to appear on October17.
The record contains a proof of service by mail on Robin on February 5, 2009.
CLETS stands for California Law Enforcement Telecommunications System.
Johnny did not notice a hearing on his application, and the trial court did not set it for a hearing. Robin did not file papers in opposition. No hearing was held. On February 24, 2009, the trial court, upon consideration of the application, signed an order granting the application and terminated the restraining order.
Robin makes no contention on appeal regarding notice or lack of a hearing.
On April 15, 2009, Robin filed a notice of appeal of the order terminating the restraining order.
DISCUSSION
Subject Matter Jurisdiction
Johnny’s appeal of the October 10 order was dismissed on his request on June 23, 2009. Robin contends the trial court lacked jurisdiction to terminate the restraining order on February 24, 2009, because Johnny’s appeal of the restraining order was pending at that time. We conclude the trial court had subject matter jurisdiction to decide Johnny’s application to terminate.
We have taken judicial notice of the Court of Appeal’s June 23, 2009 order in the prior appeal.
Code of Civil Procedure section 916, subdivision (a) provides: “Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.”
“‘The trial court’s power to enforce, vacate or modify an appealed judgment or order is suspended while the appeal is pending....’ [Citation.]” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189-190.) However, “an appeal does not stay proceedings on ‘ancillary or collateral matters which do not affect the judgment [or order] on appeal’ even though the proceedings may render the appeal moot. [Citation.]... [¶] A postjudgment or postorder proceeding is... ancillary or collateral to the appeal despite its potential effect on the appeal, if the proceeding could or would have occurred regardless of the outcome of the appeal.” (Id. at p. 191.)
A proceeding to modify a modifiable judgment is a “matter embraced in the action and not affected by the judgment” (Code Civ. Proc., § 916, subd. (a)), and accordingly, the modification proceeding in the trial court is not stayed pending an appeal from the judgment. (In re Marriage of Horowitz (1984) 159 Cal.App.3d 377, 381-382 [spousal support judgment].) “[S]imple common sense demonstrates the inequities inherent in a rule that would deprive the trial court of jurisdiction to modify, upon a showing of changed circumstances, an otherwise modifiable spousal support order pending appeal. The purpose of Code of Civil Procedure section 916 is to protect the appellate court’s jurisdiction by preserving the status quo pending appeal. Upon rendition of a permanent spousal support order under Civil Code section 4801, the status quo includes a modifiable money judgment. (Civ. Code, § 4801, subd. (a).) If the trial court lacked jurisdiction to modify the support order pending appeal, the appeal would alter the nature of the order; the order would become nonmodifiable until after resolution of the appeal. The order could not be modified retroactively after rendition of the appellate judgment, since the trial court could not entertain a motion for modification until after the appeal ended, and would then be precluded by statute from modifying the order as to any amounts that accrued before the motion for modification was made. ([Ibid.]) If a change of circumstances had indeed occurred, the court could never redress inequities during the pendency of the appeal resulting from changed needs of the supported spouse or changed ability of the supporting spouse to pay support. This cannot have been intended by the Legislature.” (In re Marriage of Horowitz, supra, at p. 383.) “Modification of the trial judge’s order for child or spousal support while the issue of the validity of that amount is on appeal, when based upon a change of circumstances justifying a change in amount, does not interfere with the jurisdiction of the appellate court, since its review is based upon the record at trial.” (Id. at p. 384.)
As we discuss more fully below, a domestic violence restraining order may be modified or terminated when the facts or the law change or when the ends of justice would be served. (See Fam. Code, § 6345, subd. (a) [“personal conduct, stay-away, and residence exclusion orders... [are] subject to termination or modification by further order of the court”]; Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1503-1504.) Proceedings on an application to modify or terminate do not affect the restraining order appealed from, despite potentially rendering the appeal moot, because the restraining order is modifiable when circumstances change or the ends of justice would be served. Accordingly, trial court proceedings on Johnny’s application to modify or terminate the restraining order were not stayed by Code of Civil Procedure section 916. (See Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th at p. 191; In re Marriage of Horowitz, supra, 159 Cal.App.3d at pp. 381-384.)
The record on appeal does not include a transcript of oral proceedings on February 24, 2009. We asked the parties to file supplemental briefing addressing the adequacy of the record on appeal. Robin submitted a letter brief stating no oral proceedings were held. Johnny acknowledged no oral proceedings were held. Johnny contended the record was nonetheless inadequate because Robin provided no record of the trial court’s ruling in any form. We disagree with Johnny’s contention. The clerk’s transcript contains an order signed by the trial court on February 24, 2009, granting Johnny’s petition to vacate. Moreover, we have reviewed the superior court file and found no other record of the proceedings on February 24, 2009. The appellate record is adequate.
Robin contends that, even if the trial court had jurisdiction, terminating the restraining order was an abuse of discretion, because there was no showing of a material change in the facts or law and no showing the ends of justice would be served by terminating the order as it pertains to Robin. We conclude the trial court’s implied finding that the ends of justice would be served by terminating the restraining order is not an abuse of discretion.
Family Code section 6345, subdivision (a) provides in pertinent part: “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.”
“A domestic violence restraining order is a type of injunction, as it is an ‘order requiring a person to refrain from a particular act.’ (Code Civ. Proc., § 525 [defining an ‘injunction’].) Thus, in seeking to have the domestic violence restraining order terminated, [defendant] was seeking to dissolve an injunction. Code of Civil Procedure section 533 sets forth the standards for a trial court to apply when considering whether to 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.’ (Code Civ. Proc., § 533....)” (Loeffler v. Medina, supra, 174 Cal.App.4th at pp. 1503-1504.)
We review a ruling on a motion to dissolve a domestic violence restraining order for abuse of discretion, applying the substantial evidence standard of review to the trial court’s factual findings. (Loeffler v. Medina, supra, 174 Cal.App.4that p. 1505.) “‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ [Citation.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) In determining whether substantial evidence supports the factual findings, “all intendments are in favor of the judgment and [we] must accept as true the evidence which tends to establish the correctness of the findings as made, taking into account as well all inferences which might reasonably have been drawn by the trial court.” (Crogan v. Metz (1956) 47 Cal.2d 398, 403-404.)
In a declaration in support of his application in the trial court, Johnny presented evidence and arguments amounting to a claim that terminating the restraining order would serve the ends of justice. Johnny had sole legal custody over daughter, and he moved with her to Los Angeles in 2006. She lived with Johnny, not with Robin. As a result of the restraining order, Robin, who had no biological connection or legal custody, took daughter out of her familiar surroundings and sent her to Illinois to live with daughter’s grandmother. The restraining order prevents Johnny from returning daughter to Los Angeles. Johnny needs to be able to use firearms for purposes of work. He is a lateral transfer police officer from Illinois. The only thing he has left to do in order to be eligible to gain employment here as a police officer without attending the police academy is to complete requalification firearm training and receive firearm certification prior to April 15, 2009. Employment in law enforcement will help Johnny serve as a positive role model for the single mothers and children he helps through the nonprofit organization he founded called Compassion for Youth. Without a law enforcement job, he cannot earn a stable income and provide medical benefits for daughter. Johnny has stayed away from Robin and not contacted her since the issuance of the restraining order. No criminal charges were filed against him. Johnny “will continue to make every effort possible to stay completely away from” Robin.
We are required by the standard of review to credit all evidence and reasonable inferences tending to support the judgment. Johnny’s declaration contains substantial evidence that, if the restraining order were lifted, daughter could be returned to her familiar surroundings and the home of her custodial parent, Johnny would obtain employment in California law enforcement, and Johnny would continue to stay away from Robin. Applying the applicable abuse of discretion standard to the trial court’s ruling based on that evidence, we hold the trial court could reasonably find that lifting the restraining order would serve the ends of justice. Accordingly, the trial court’s order terminating the restraining order did not exceed the bounds of reason.
Our determination that the order terminating the restraining order must be affirmed under the appropriate standard of review, and in light of the issues raised in this appeal, should not be taken as an endorsement of the ruling below or the relaxed procedures followed by the trial court. Actions involving allegations of domestic violence are of serious concern, and disregard of the rules of evidence and lack of a formal hearing are not insignificant matters. While another trier of fact might conclude that Johnny’s showing was insufficient to support a finding that the order terminating the restraining order serves the ends of justice, there is substantial evidence that it serves that purpose and we are therefore compelled to affirm, notwithstanding our reservations regarding this result.
CONCLUSION
The order is affirmed. The parties are to bear their own costs on appeal.
We concur: ARMSTRONG, Acting P. J. WEISMAN, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.