93 Cal.App.5th 681
Cal. Ct. App.2023Background
- In Sept. 2021, while a marital dissolution was pending, Kamila Malinowski obtained an ex parte domestic violence temporary restraining order (DVTRO) against Justin Martin that included their two children and imposed no-contact and stay-away provisions.
- The dissolution court had entered a July 1, 2021 visitation order allowing Martin unsupervised visits; Malinowski’s DVRO application failed to disclose that order.
- Judge Holt initially issued the DVTRO, then, after review hearings (Nov. 17, 2021; Jan. 5, 2022; Mar. 1, 2022), modified it to carve out exceptions permitting “brief and peaceful” contact consistent with the July 2021 visitation order.
- Malinowski argued the court erred by modifying the DVTRO without following Code Civ. Proc. § 533 (notice and showing of changed circumstances) and sought reconsideration; the court denied relief and she appealed several modification orders.
- The DVRO trial occurred in Oct. 2022 and Malinowski’s request for a permanent DVRO was denied, rendering the appeal moot; the Court of Appeal nonetheless addressed the controlling legal question.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Code Civ. Proc. § 533 is the exclusive procedure/grounds to modify a DVTRO issued under the DVPA | Malinowski: the court had to follow § 533 (notice and showing of changed circumstances) before modifying the DVTRO | Martin: Family Code § 245 and the DVPA give the trial court discretion to modify a DVTRO pending continuance to avoid conflict with existing custody orders | The court: § 533 is not the exclusive means; DVPA/Family Code allow discretionary modification, but § 533–type procedures may be required by due process in some cases |
| Whether the court’s modification here denied Malinowski due process or abused discretion by not taking evidence | Malinowski: court refused to hear evidence and imposed no burden on Martin, denying due process | Martin: the July 2021 visitation order and the absence of dispute about it made a hearing unnecessary | The court: no due process violation shown here because the visitation order was undisputed; but if material factual disputes exist, due process may require an evidentiary, noticed hearing |
| Appealability and mootness of the modification orders | Malinowski: appealed the modification and related orders | Martin: argued the orders were nonappealable or the appeal was moot after the DVRO trial | The court: modification orders are appealable, but the appeal is moot because the DVTRO was terminated at trial; court exercised discretion to decide the legal issue anyway |
Key Cases Cited
- Loeffler v. Medina, 174 Cal.App.4th 1495 (appellate discussion of § 533 standards for termination of a permanent DVRO)
- Yost v. Forestiere, 51 Cal.App.5th 509 (held civil‑harassment restraining order modification not limited to § 533 grounds; trial court has broad discretion)
- Gonzalez v. Munoz, 156 Cal.App.4th 413 (discusses standard of review and context for DVPA appeals)
- In re Butler, 4 Cal.5th 728 (abuse‑of‑discretion standard for injunction modifications)
- Smith v. Smith, 208 Cal.App.4th 1074 (appealability principles for minute orders and custody-related rulings)
- In re Esperanza C., 165 Cal.App.4th 1042 (mootness in domestic violence proceedings)