Opinion
A154706
02-06-2020
SARAH G., Appellant, v. CLIFFORD G., Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. FDV-16-812367)
Sarah G. appeals from an order denying her request to renew a protective order she obtained under the Domestic Violence Prevention Act against her husband Clifford G. She argues the court applied incorrect legal standards and abused its discretion when it denied her request. We affirm.
BACKGROUND
I. Sarah's Initial Request for a Protective Order
In 2016 Sarah requested a protective order under the Domestic Violence Prevention Act against her husband Clifford. Her declaration recounted eight years of ongoing "violent rages, in which he shouts and screams at me, throws objects at me, grabs my arms hard enough to bruise me, and grabs my neck and shakes me." According to Sarah, on different occasions Clifford: "lunged [at] me . . . and screamed, 'I could throttle you,' " telling her "it was my fault . . . he lashed out physically," "because I . . . 'agitated' him"; threatened her, " 'You're going to get it when you come home,' " and, " 'I am going to get you' "; called, texted, or e-mailed her sometimes "several," sometimes "dozens," sometimes "hundreds" of times after she left home to escape him; and told her "[she] was the one who needed help because [she] couldn't handle his anger." Attributing his behavior to "physiological and mental health problems," Sarah said, "Though I do not blame [him] for his condition, I need to take steps to ensure my safety and peace." The court issued a temporary restraining order and set a hearing on her request.
We use the parties' first names, following California Rules of Court, rule 8.90(b)(1). We intend no disrespect.
Clifford responded, "I will generally agree to numerous restraints," yet he opposed most of the protections Sarah requested. Acknowledging he has "medical issues [that] have taken a toll on me physically and mentally," and describing himself as "animated" when he "suffer[s] from bouts of serious pain," he asserted: "Presently (the past few years) [Sarah] and I have had some disagreements but I do not feel her characterization is accurate—i.e. 'violent rages, throwing things, etc.' This simply has not happened." "I have never touched my wife in anger." But he admitted on different occasions he: "was probably more prone to outbursts" when "very stressed"; "[is] loud on occasions," which Sarah "has construed . . . to be yelling," but that he "repeatedly yelled at" and "probably did yell at" her during separate arguments; and once "called and texted her dozens of times" after she left home after an argument.
At the hearing, Sarah and Clifford both reaffirmed their declarations as "true and correct." While Sarah's testimony was limited to proving up her declaration and laying the foundation for its attached evidence, Clifford added that Sarah exaggerated her accounts of their arguments and "she plotted this. . . . It's a lie." The court issued a two-year protective order that restrained Clifford in part from harassing Sarah or disturbing her peace; contacting her "either directly or indirectly, by any means, including . . . telephone, . . . e-mail, or other electronic means"; and coming within 100 yards of her or her home.
The court intended to issue a five-year order but issued a two-year order on Sarah's agreement to Clifford's request.
When Sarah filed her request, she and Clifford lived together, but the protective order required him to move out and gave her the exclusive use, control, and possession of the property.
II. Sarah's Request to Renew the Protective Order
In 2018 Sarah requested that the court renew the protective order permanently. In her request she said, "I am afraid that [Clifford] will abuse me in the future because . . . he's violated the current Restraining Order" "many times . . . [in] the last two years." She alleged the following violations:
(1) Stay away order: Two weeks after the court issued the protective order, "[Clifford] showed up unexpectedly to our former home. . . . [He] walked up to the front door, and then went around to the back of the house, where he peered in through a window." Sarah hid so Clifford would not see her and "was badly shaken . . . by his presence . . . ." Clifford responded, "I merely went to the other side of the family home to say goodbye to the redwood tree that we planted [there] . . . and had no intention to have contact with [Sarah]." At the hearing on Sarah's renewal request, Clifford's attorney explained the visit as "a single, isolated incident that was not actually intended to be any sort of contact with [Sarah], nor was there any contact with [her]. . . . That incident was over two years ago now. There has been nothing even remotely like that since then."
(2) No contact order (phone): Clifford moved to Florida in 2016 after the court issued the protective order. In January 2017 a call was placed from his home phone to Sarah's cell phone. In a February 2017 declaration, Clifford said, "I was in the hospital on [that] date . . . . [A] friend was staying with me who must have dialed the number for the wrong [person]. . . . I was not at home to place the call . . . ." In his March 2018 response to Sarah's renewal request, he told a different story: "I misplaced my cell phone that day and used my landline to call my cell phone to locate it. . . . I accidentally dialed [Sarah's] number instead of my own and immediately hung up once I found my cell phone." At the hearing, Clifford's attorney characterized the call as "completely unintentional."
(3) No contact order (e-mail): From August 2016 to May 2017, Sarah said Clifford sent e-mails "to an account we used to share when we were married," which he "has no need to use . . . ." Clifford said he used the account as a "supplemental" account because he believed Sarah no longer used it. Sarah disputed this as "untrue. [He] knew that I continually accessed that account throughout our divorce proceedings," and "it's caused me considerable distress to receive communications from him that way." But in November 2016, after Sarah changed the account password, she gave it to Clifford through counsel, thus providing him the means to continue using the account.
Sarah filed a petition for dissolution in April 2016.
(4) No harassment order (Facebook): In 2017 Clifford posted on his Facebook page, "[M]y soon to be ex-wife is slowly trying to kill me with false allegations . . . . She wants me dead, so she can get all my money. I need your [sic] all now for support." Clifford said the post "was not directed at [Sarah]. [She] did not have a Facebook account during our relationship and I [understand] that she does not have [one] currently and therefore I had no idea that [she] would even be aware of it. I have never friended [her] or had any contact with her on Facebook." Clifford also "deliberately deleted all of her family members [and] all of her friends from his Facebook." But Sarah still learned of the post from friends and characterized it as "cause for serious concern" because it was "about me," arguing it supported renewal "whether or not [it was] . . . [a] violation[] of the restraining order."
The court declined to renew the protective order, finding insufficient evidence of Sarah's "reasonable apprehension of future contact." While the court found "there was . . . a violation once a few weeks after [the order] was issued," the court said: "I am particularly persuaded by the fact that [Clifford] has left the state and is on the other end of the country. . . . [¶] . . . [Sarah] obtained a [protective order] that she was entitled to obtain. But to extend it for five years or indefinitely I don't think is warranted by the whole of the evidence that I've seen today." Sarah appealed.
DISCUSSION
I. The Legal Framework
The Domestic Violence Prevention Act (Act) (Fam. Code, § 6200 et seq.) exists "to prevent acts of domestic violence . . . and to provide for a separation of the persons involved . . . for a period sufficient to enable [them] to seek a resolution of the causes of the violence." (§ 6220.) The superior court can renew an existing protective order "for five years or permanently, without a showing of further abuse since the issuance of the original order," "[on] the request of a party . . . brought at any time within the three months before the [order expires]." (§§ 6345, subd. (a), 200.)
All statutory citations and references are to the Family Code.
We follow the Act's terminology and use "protective order" instead of "restraining order." (See §§ 6201 [the Act's definitions govern its construction], 6218 [defining "protective order"].)
Sarah filed her renewal request in February 2018, within the three months before the order expired in April 2018.
The Act "does not provide a standard for a trial court to apply in deciding whether to grant a renewal request" under section 6345. (Cueto v. Dozier (2015) 241 Cal.App.4th 550, 559 (Cueto).) But the Second Appellate District thoroughly analyzed what the standard should be in Ritchie v. Konrad (2004) 115 Cal.App.4th 1275 (Ritchie) and concluded that "an objective test must be satisfied before a protective order is renewed in contested cases. . . . 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. . . . [T]his 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 [likely] than not there is a sufficient risk of future abuse to find the protected party's apprehension is genuine and reasonable." (Id. at p. 1290.)
While "there is no 'horizontal stare decisis' within the Court of Appeal" (In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 409), we adopt the Ritchie test and apply it here, as many of our colleagues in the First Appellate District have already done. (E.g., Lister v. Bowen (2013) 215 Cal.App.4th 319, 331-336 (Lister) [Division Two]; Cueto, supra, 241 Cal.App.4th at pp. 559-562 [Division Two]; Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 397-400 (Perez) [Division Four].)
II. The Standard of Review
"We review an appeal from an order denying a request to renew a [protective] order for abuse of discretion." (Cueto, supra, 241 Cal.App.4th at p. 560.) "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." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.) We presume the order to be correct and indulge all presumptions to support it on matters as to which the record is silent. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) "The question of whether a trial court applied the correct legal standard to an issue in exercising its discretion is a question of law [citation] requiring de novo review [citation]." (Eneaji v. Ubboe (2014) 229 Cal.App.4th 1457, 1463; accord, Cueto, at p. 560.) "The appellant bears the burden of showing a trial court abused its discretion. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [citations].)" (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 16.)
III. Analysis
A. The Standard for Renewal of a Protective Order
Sarah argues the court improperly assessed the reasonableness of her apprehension of future abuse. "When contested, a request to renew a [protective] order should not be granted [under] section 6345 simply because the requesting party has 'a subjective fear the [restrained party] will commit [abuse] in the future.' (Ritchie, supra, 115 Cal.App.4th at p. 1288.)" (Lister, supra, 215 Cal.App.4th at p. 332.) While an imminent and present danger of abuse is not required, "[t]he 'apprehension' [abuse] will occur must be 'reasonable.' That is, the court must find the probability of future abuse is sufficient that a reasonable [person] in the same circumstances would have a 'reasonable apprehension' such abuse will occur unless the court issues a protective order. This same formulation [applies] when a trial court considers a contested request for an extension of the initial order." (Ritchie, at p. 1288, italics added.)
According to Sarah, the court erred by assessing the reasonableness of her apprehension of future abuse "from [the] purely objective standpoint" of a reasonable person and not "from the perspective of a woman in [her] circumstances . . . ." But the record as a whole shows it understood and applied the correct standard: Before the hearing, Sarah filed a memorandum articulating the correct standard, and her attorney argued the correct standard at the hearing. At the hearing the court said, "There have been papers submitted by both sides," and, "I have read the evidence. I have heard you today." "Absent any evidence to the contrary, we presume that the trial court applied the correct legal standard. (Armando D. v. Superior Court (1999) 71 Cal.App.4th 1011, 1025 [citation].)" (Cueto, supra, 241 Cal.App.4th at p. 561.)
B. The Significance of Sarah's Being Contacted by Third Parties
Sarah argues the court improperly concluded third party contacts cannot qualify as abuse under the Act. She refers to phone calls and text messages she received from people doing business with Clifford in Florida and from "other Florida phone numbers," and she points to the court's comment at the hearing, "I don't think they're violations if they're not coming from him," to argue the court made "an error of law." Sarah is correct that the Act broadly defines abuse to include not only "physical injury or assault" (§ 6203, subd. (b)) but also "any behavior that [can] be enjoined [under] Section 6320" (§ 6203, subd. (a)(4)), including "contacting" a protected person "either directly or indirectly" (§ 6320, subd. (a)). But we agree with Clifford that "Sarah takes the [court's] comment out of context."
At the hearing the court said: "Help me understand those phone calls or texts from Florida numbers. I mean, it's not [Clifford], as I understand it. It's people with whom he has some sort of business relationship. But why is that a problem if it seems accidental?" "I specifically want you to direct your attention [to] how incoming e-mails from third parties are—well, I don't think they're violations if they're not coming from him . . . ." Clifford argues "Sarah misinterprets the phrase 'not coming from him' to mean emails not directly sent by [him]. In context of the [court] saying that these emails were accidental, however, the phrase 'not coming from him' actually meant not intentionally caused by [him] (directly or indirectly)."
In her renewal request Sarah said Clifford "apparently" gave her phone number to third parties, and her attorney argued at the hearing that Clifford was the source because she was not getting calls or text messages from Florida before he moved there. Clifford denied giving Sarah's phone number to anyone and said he "was unaware that [she] was being contacted." While the circumstances seem coincidental, Sarah offered only speculation that Clifford instructed anyone to contact her. "Speculation, however, is not evidence." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 864.) Indeed, Sarah's focus appears to be on effect regardless of cause: "[W]hether or not these third-party contacts constituted violations of the restraining order, they certainly disturbed [her] peace, and reasonably caused her to apprehend future abusive contact . . . ." But that is not the legal standard.
C. Reasonable Apprehension of Future Abuse
Ritchie articulated three factors for courts to consider in determining whether the evidence demonstrates a reasonable apprehension of future abuse: (1) "the evidence and findings on which [the] initial [protective] order was based" (Ritchie, supra, 115 Cal.App.4th at p. 1290); (2) "any significant changes in the circumstances surrounding the events justifying the initial protective order" (id. at p. 1291); and (3) "the 'burdens' the protective order imposes on the restrained party" (ibid.).
1. The Evidence and Findings on Which the Initial Protective Order Was Based
"The existence of the order itself often will be less telling than the facts supporting its issuance" because "the . . . order itself often fails to disclose . . . the conduct on which it is based . . . ." (Ritchie, supra, 115 Cal.App.4th at pp. 1290, 1291.) While "the mere existence of a protective order, typically issued several years earlier, seldom if ever will provide conclusive evidence the requesting party entertains a 'reasonable apprehension' of future abuse," "the existence of the initial order certainly is relevant and the underlying findings and facts supporting that order often will be enough in themselves to provide the necessary proof to satisfy that test." (Id. at p. 1291.)
Sarah argues the acts of abuse she alleged "are conclusively established" because the court that issued the protective order concluded she had met the burden of proof to warrant a five-year order. Clifford counters, "The basis of the original order . . . does not conclusively establish the need for a permanent . . . order."
Clifford is correct: "Ritchie does not hold that a court hearing a renewal request must accept the truth of every piece of evidence presented in support of the original order." (In re Marriage of Martindale & Ochoa (2018) 30 Cal.App.5th 54, 60 (Martindale).) " 'The granting of the original . . . order does not confirm that [the court] made a finding that every allegation [of abuse] was true, but that [the] court found a sufficient factual basis to determine that . . . abuse had occurred.' " (Ibid.) The court that issued the order here did not make specific findings about which allegations it found to be true (or not), stating only that Sarah had met her burden of proof. Regardless, the record shows the order was based on "evidence of a troubling history" of abuse. (Cueto, supra, 241 Cal.App.4th at p. 562.) When the court denied Sarah's renewal request, it observed, "She obtained a [protective order] that she was entitled to obtain." Sarah argues this observation implies a "finding that her apprehension [of future abuse] was genuine," and we agree. But the question remains whether her apprehension in 2018 was reasonable.
2. Any Significant Changes in the Circumstances Surrounding the Events Justifying the Initial Protective Order
Under Ritchie we next consider whether "the restrained and protected parties moved on with their lives so far that the opportunity and likelihood of future abuse has [sic] diminished to the degree they no longer support a renewal of the order? Or have there been no significant changes or even perhaps changes that enhance the opportunity and possibility of future abuse?" (Ritchie, supra, 115 Cal.App.4th at p. 1291.) The violation of the stay away order was an isolated incident that occurred in 2016 shortly after the order issued. Although the police were notified at the time, the record does not show that Sarah took any action to enforce the protective order due to the violation or at any time before she requested its renewal. Moreover, Clifford has moved from California to Florida. (See Ritchie, at p. 1293 [protected party's out-of-state move 300 miles from restrained party was "evidence of changed conditions" for court to consider]; cf. Avalos v. Perez (2011) 196 Cal.App.4th 773, 775, 777 [dictum that renewal was justified where restrained party violated protective order one month before order expired].)
Sarah argues the court also "failed to weigh [Clifford's] multiple violations of the restraining order, which in themselves created reasonable apprehension of future abuse, and gave much greater weight than appropriate to the fact that [Clifford] had moved to Florida." On the contrary, the record shows the court did consider the multiple violations as Sarah alleged. And the record supports the court's conclusion that Sarah's apprehension, while genuine, was not reasonable: As to the phone call (ante, p. 4), despite Clifford's unexplained disparate accounts of it, "there was no message, . . . no threat, . . . nothing on his part that indicates an actual attempt to reach [Sarah]." As Clifford argues, it was in the court's discretion to believe the call was "a misdial." (Cf. Ritchie, supra, 115 Cal.App.4th at pp. 1290-1291 ["persistent unwanted phone calls" may support issuance or renewal]; Perez, supra, 1 Cal.App.5th at pp. 397-398 [repeated threatening "post-order telephone calls and text messages" established reasonable apprehension of future abuse].) As to the e-mails (ante, pp. 4-5), Sarah's argument that Clifford's continued use of their shared e-mail account reasonably caused her to apprehend future abuse is unpersuasive as she provided him the account password after she changed it. (See Martindale, supra, 30 Cal.App.5th at p. 62 [protected party's joining a gym where restrained party was already a member "undermined her claim of fear"].) As to the Facebook post (ante, p. 5), although it was about the parties' "divorce case," it was not directed at Sarah (who did not have a Facebook account), and Clifford "did everything he could" to sever his Facebook connections to Sarah's family and friends. (See Martindale, at p. 61 [denial of renewal request justified in part based on "evidence [of restrained party's] 'intentional avoidance of unintended contact' "].)
Sarah argues Clifford's move to Florida "could not render [her] apprehension of future abuse 'unreasonable' for at least three reasons: (1) [Clifford] violated the restraining order . . . while he lived in Florida; (2) much of the abuse which underlay the initial restraining order was committed remotely (i.e., . . . via phone calls, emails, and text messages); and (3) people frequently travel from Florida to California, something [Clifford] had already done at least once in the year preceding Sarah's renewal request." We are not persuaded. The record supports reasonable inferences that the phone call was likely a misdial; Sarah provided Clifford the new shared e-mail account password; and the Facebook post was not directed at her. As Clifford argues, the record does not show that "since [he] moved to Florida, he explicitly directed any [uninvited] communications to her." With regard to Clifford's travel to California, Sarah does not allege that Clifford violated the restraining order during that trip.
While "any violation of a [protective] order . . . gives very significant support for renewal" (Lister, supra, 215 Cal.App.4th at p. 335, italics added [dictum]), we do not agree that the single undisputed violation here entitles Sarah to renewal "as a matter of law" (Priscila N. v. Leonardo G. (2017) 17 Cal.App.5th 1208, 1216 [dictum]). The Act requires the court to "consider the totality of the circumstances in determining whether to grant or deny a petition for relief." (§ 6301, subd. (c).)
Ultimately, "[t]he fact a judge found enough grounds to grant a protective order [before] does not necessarily mean sufficient grounds remain to renew that order . . . merely because the protected party files a 'request' and expresses [his or] her subjective desire the court issue such an extension." (Ritchie, supra, 115 Cal.App.4th at p. 1284.) Under Ritchie, "the evidence [must] demonstrate[] it is more [likely] than not there is a sufficient risk of future abuse . . . ." (Id. at p. 1290.) Sarah "disputes the trial court's view of the evidence, but we are required to defer to [its] credibility determinations and [to] make all reasonable inferences in support of [its] findings. (Cueto, supra, 241 Cal.App.4th at p. 560.)" (Martindale, supra, 30 Cal.App.5th at p. 60.)
3. The Burdens the Protective Order Imposes on the Restrained Party
The burdens a protective order imposes on the restrained party "may or may not be a relevant factor . . . . It is true those 'burdens' . . . can be very real. . . . Existing employers may frown on an employee who is subject to such an order and prospective employers almost surely will. . . . The continued existence of such an order likewise may, fairly or unfairly, interfere with the restrained party's social life." (Ritchie, supra, 115 Cal.App.4th at p. 1291.) The court did not explicitly address this factor. At the hearing Clifford's attorney characterized the protective order as "a major restriction" on his life, and Clifford's brief "noted the burdens a permanent order would place on him," referencing a statement in his memorandum opposing Sarah's renewal request: "[He] is currently unemployed and, if he seeks employment, an unnecessary restraining order could hinder his prospects." (Italics added.) Sarah characterizes this burden as "illusory," and we agree that any burden on Clifford's possible employment seems speculative. (See Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 864 [speculation is not evidence].) Clifford also made a bare reference to "the 'very real' impacts on [his] social life" but did not specify what those are or have been. "We are not required to search the record to ascertain whether it contains support for [his] contentions" (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545), and we "disregard any factual contention not supported by a proper citation to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C); [citation].)" (Lee v. Department of Parks & Recreation (2019) 38 Cal.App.5th 206, 213.) While we agree with Sarah that "[Clifford's] claimed burden . . . does not support the denial of [her renewal] request," we disagree that "[f]ull consideration of the Ritchie factors compels the conclusion that [her] apprehension of future abuse was reasonable." The court determined that in light of Clifford's move to Florida, the isolated violation of the original protective order in 2016 did not serve as a basis for its renewal. On this record we cannot say the court's denial of Sarah's renewal request exceeded the bounds of reason. (Cueto, supra, 241 Cal.App.4th at p. 560.)
DISPOSITION
The order of March 23, 2018, denying Sarah's request to renew the protective order is affirmed. The parties shall bear their own costs on appeal.
/s/_________
Siggins, P. J. WE CONCUR: /s/_________
Fujisaki, J. /s/_________
Petrou, J.