51 Cal.App.5th 509
Cal. Ct. App.2020Background
- In March 2015 a civil harassment restraining order under Cal. Code Civ. Proc. § 527.6 was issued against Anthony Forestiere (Grandfather), prohibiting contact and imposing a 100-yard stay-away from his granddaughter and her mother based on a threatened abduction. The order was set to expire March 18, 2020.
- Grandfather sought modification in February 2018 to remove the granddaughter as a protected person or to permit contact when the child was with her father (Grandfather’s son), relying on changed custody arrangements that gave the father increasing, then 50%, custody.
- At the October 25, 2018 hearing the trial court denied the modification, ruling custody changes were irrelevant and characterizing the request as an attempt to relitigate the original restraining-order findings.
- Grandfather appealed; the restraining order later expired and was not renewed, but Mother’s pending attorney-fees motion kept the appeal justiciable.
- The Court of Appeal (published parts) held the trial court misapprehended the scope of its discretionary authority under § 527.6(j)(1), reversed the denial of modification, and directed the trial court to reconsider the motion under the correct legal standards.
Issues
| Issue | Yost (Plaintiff) Argument | Forestiere (Defendant/Appellant) Argument | Held |
|---|---|---|---|
| Whether § 527.6(j)(1) commits modification/termination of civil harassment restraining orders to the trial court’s discretion | Modification should be cabined; the original order’s findings control and court shouldn’t lightly change them | Statute’s phrase “In the discretion of the court” applies to modification/termination and permits flexible review | Held: Yes — § 527.6(j)(1) vests discretionary authority in the trial court to modify or terminate orders |
| Whether the trial court’s discretion is limited to the three § 533 grounds (material change, change in law, ends of justice) | Argues modification should be judged by traditional § 533 standards | Argues § 527.6 does not incorporate § 533; Legislature omitted § 533 on purpose so discretion is broader | Held: Discretion includes but is not limited to § 533 grounds; § 527.6’s modification provision is broader and allows case-specific judgment |
| Proper standard and burden for modifying specific terms (e.g., stay-away as to the child) — may court relax a term when there is no reasonable probability of future harassment? | Modification should be denied absent strong showing that prior findings remain incorrect; burden arguably on protected party to justify continued protection | Restrained party must prove by a preponderance there is no reasonable probability of the specific future harassment at issue to justify modification | Held: Court may modify a term when, after considering relevant evidence, it finds no reasonable probability of the particular future harassment; the moving (restrained) party bears the preponderance burden |
| Whether family-court custody changes were irrelevant and trial court’s refusal to consider them was proper | Custody order is collateral and cannot substitute for revisiting the harassment findings; family court should address visitation issues | Changed custody (50% to father) is relevant to the likelihood of grandparent kidnapping the child and thus relevant to modification | Held: Custody changes were relevant to the likelihood of future abduction; the trial court erred by refusing to consider that evidence and thereby failed to exercise informed discretion |
Key Cases Cited
- Cooper v. Bettinger, 242 Cal.App.4th 77 (explaining renewal/modification review and reversal where court did not exercise informed discretion)
- Scripps Health v. Marin, 72 Cal.App.4th 324 (injunctive relief under § 527.6 prevents threatened future injury and is not punitive)
- Harris v. Stampolis, 248 Cal.App.4th 484 (renewal/renewal-standard discussion and relevance of future-probability analysis)
- Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., 129 Cal.App.4th 1228 (principles for issuing § 527.6 injunctions: prevent future harm and require reasonable probability of recurrence)
- Byers v. Cathcart, 57 Cal.App.4th 805 (§ 527.6 provides expedited, truncated injunctive procedure and attendant safeguards)
- Duronslet v. Kamps, 203 Cal.App.4th 717 (hearsay and relaxed-evidence rules in § 527.6 proceedings)
- Loeffler v. Median, 174 Cal.App.4th 1495 (interpreting similar Family Code language on discretion to terminate/modify domestic violence restraining orders; distinguished here)