Qing Hui Gou v. Bi Guang Xiao
228 Cal. App. 4th 812
Cal. Ct. App.2014Background
- Gou and Xiao, married in 1991, later had a son and proceeded to separate lives in the U.S. and China as immigration processes unfolded.
- Xiao and the child came to the United States in 2007 while Gou remained in China awaiting an immigrant visa, and Gou joined them in 2011 after the visa was approved.
- In September 2012 Gou filed an ex parte DVRO request alleging past abuse by Xiao toward the child in 2011 and 2012, described in her declaration.
- Gou detailed a 2011 incident where Xiao allegedly whipped the child with a stick, slapped and kicked him, witnessed remotely via Skype while Gou was abroad.
- She described a December 2011 confrontation where Xiao allegedly choked the child during a dispute, and a January 2012 campus incident where surveillance footage showed Xiao hitting the child.
- Alameda County CPS opened a case and, by April 2012, arranged for Gou and the child to relocate to a domestic violence shelter; by April 2012 they had left the marital residence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court could deny a DVRO when the applicant is not the DV victim | Gou's declaration showed abuse under DVPA against the child and distress to Gou. | DVRO requires the applicant to be the victim of domestic violence. | Court erred by denying without merits hearing; must consider facially sufficient abuse allegations. |
| Whether facially sufficient allegations of abuse against the respondent justify a DVRO | Allegations describe abuse placing Gou or the child in reasonable apprehension. | The allegations were not proven to constitute domestic violence against Gou. | Abuse allegations were facially sufficient to support a finding of abuse under DVPA. |
| Whether the trial court abused its discretion by denying a merits hearing | Denying without a hearing transgresses DVPA standards when allegations are facially sufficient. | No merits hearing needed if the allegations were insufficient. | The denial without a hearing was an abuse of discretion; remand for merits determination. |
| Scope of review when evaluating DVRO decisions | Appellate review should assess the legal standards applied and whether abuse was shown. | Appellate review constrains discretion to the court's factual findings. | Court must apply correct legal standard; improper denial requires reversal. |
Key Cases Cited
- In re Marriage of Nadkarni, 173 Cal.App.4th 1483 (2009) (abuse can support DVRO even without physical injury)
- Nakamura v. Parker, 156 Cal.App.4th 327 (2007) (facial sufficiency requires merits hearing when allegations show abuse)
- People v. Kovacich, 201 Cal.App.4th 863 (2011) (abuse of family members can constitute domestic violence for DVPA purposes)
- Conness v. Satram, 122 Cal.App.4th 197 (2004) (rules for appellate decision on record and arguments)