Gou v. XiaoGou v. Xiao
FACTUAL AND PROCEDURAL BACKGROUND2
Appellant and respondent were married in China on April 16, 1991. In October 2007, respondent and the parties’ then 8-year-old son (hereafter also referred to as “the child“) came to the United States while appellant remained in China waiting for
On September 11, 2012, appellant filed a judicial council form, ex parte, requesting a DVRO in favor of herself and the then 13-year-old child against respondent. In her attached declaration, appellant described in detail three incidents of past abuse allegedly perpetrated by respondent. In September 2011, while appellant was still in China and talking to her son via Skype, appellant saw respondent come into the room and start yelling at the child for not cleaning the house. As the child started to crawl away respondent whipped him with a long plastic/rubber stick. Respondent also slapped and kicked the child. Appellant yelled at respondent to stop and yelled at the child to call the police. Thereafter, in December 2011, three months after appellant came to this country, she was present and got involved in an altercation between respondent and child. Respondent became angry because the child did not help him carry some things from the car into the house. As the сhild was using his computer, respondent knocked the computer off the table and put the child in a chokehold. Appellant could see the child‘s face turn red and his veins pop out of his face and neck as he struggled to breathe. Appellant yelled for respоndent to stop but he did not do so. Appellant kicked and hit respondent to get him to let the child go. Respondent bit appellant on the arm, but finally let the child go. Appellant was too shocked and afraid to call the police. When appellant and her son wеnt to sleep that night, they blocked the bedroom door with furniture so respondent would not come in and hurt them. Then on January 12, 2012, respondent and the child got into a fight at the college where appellant was taking an English language exam. Appellant did not see the fight, but someone called the police after seeing respondent hit the child. Respondent denied hitting the child. However, the fight was recorded on a campus security camera, which showed respondent hitting the child. The police did not arrest respondent but told him to go to the рolice station. Respondent did not go to the police station because he had with him his 7-year-old daughter from another relationship.
Although appellant and her son apparently found a safe place to live, she alleged that she still needed a DVRO to protect herself and her son against respondent. A few weeks before making her request, appellant learned that someone called her CalWORKS case worker in San Francisco. The unidentified caller said the parties’ son was living with his father and therefоre San Francisco should stop providing cash aid for appellant. The caseworker told the caller that aid could not be stopped because the child was living with appellant. Appellant felt she and her son were in danger because the casе worker‘s response implied that appellant and her son were living in San Francisco. Appellant also learned that an unidentified person had submitted a request to the child‘s new school to effect his transfer to another school outside of San Francisco. Aрpellant opined respondent was the only person who could have made that transfer request. She was afraid that respondent would find and force appellant and the child to return to the marital residence. The child was stressed and unable to sleep beсause of concern that respondent might have learned of his whereabouts. He was afraid of his father and did not want to return to him.
On September 12, 2012, the trial court (Hon. Charlotte Walter Woolard) issued a temporary DVRO in favor of appellant and her son and scheduled a hearing for October 3, which was continued to October 24, 2012. In advance of the continued hearing, appellant lodged with the court the Alameda County Social Services Agency, Child Protective Services Investigative Narrative, dated April 4, 2012, which described the agency‘s invеstigation of the January 2012 incident and the family‘s circumstances as of April 2012.
At the December 5, 2012, hearing, the trial court and appellant‘s counsel discussed the court‘s statutory authority to consider the merits of appellant‘s request fоr a DVRO to protect both herself and the child. The court concluded it had no statutory authority to consider the DVRO request brought solely in appellant‘s name as “she is not apparently the victim of domestic violence.” It denied the request for a DVRO, finding that appellant “is not the victim of domestic violence within the meaning of the statute . . . .” Appellant filed a timely notice of appeal from the December 5, 2012, minute order denying her request for a DVRO.3
DISCUSSION
The DVPA‘s “purposes . . . are to prevent the recurrence of acts of violence аnd sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence.” (
In reviewing the denial of a DVRO request, we determine whether the trial court “applied the correct legal standard to the issue in exercising its discretion, which is a question of law for this court.” (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420-421.) “The scope of discretion always resides in the particular law being applied; action that transgrеsses the confines of the applicable principles of law is outside the scope of discretion and we call such action an abuse of discretion.” (Id. at p. 421.) Pertinent to
Here, we agree with appellant and amici curiae that the trial court erred in denying the DVRO request on the sole grоund that appellant had failed to demonstrate she was the victim of domestic violence under the DVPA. In her declaration attached to the DVRO request, appellant alleged specific and admissible facts based on her personal knowledge describing past acts perpetrated by respondent against the child and appellant. Assuming their truth, these factual allegations would support a finding that respondent‘s past behavior was abusive as it had placed appellant in reasonable apprehension of imminеnt serious bodily injury to herself or the child, and disturbed appellant‘s peace by causing the destruction of her mental or emotional calm. (See People v. Kovacich (2011) 201 Cal.App.4th 863, 895 [“defendant‘s assault on the family dog amounted to ‘abuse’ within the meaning of
Accordingly, we shall reverse the order denying the DVRO request and remand the matter for a hearing and determination on the merits. In reaching our decision, we express no opinion on how the trial court should exercise its discretionary authority in conducting the hearing or in determining whether or not to issue a DVRO in favor of appellant, the child, or both. We hold only that “the facial adequacy” of appellant‘s
DISPOSITION
The order of December 5, 2012, dеnying Qing Hui Gou‘s request for a domestic violence restraining order is reversed and the matter is remanded for further proceedings consistent with this opinion. Qing Hui Gou is awarded costs on appeal.
Jenkins, J.
We concur:
Pollak, Acting P. J.
Siggins, J.
THE COURT:
We have received a request to publish the opinion in this case filed July 10, 2014. For reasons stated in the request to publish filed July 30, 2014 by Bay Area Legal Aid and the Family Violence Appellate Project (FVAP), the request is granted.*
It is hereby ordered that the opinion filed July 10, 2014 is certified for publication, pursuant to
Date: ______________
Pollak, Acting P. J.
* Jenkins, J. and Siggins, J. concur
| Trial Court: | San Francisco County, Superior Court |
| Trial Judge: | Hon. Ronald Albers |
| Counsel for Appellant Qing Hui Gou: | Amy P. Lee, Julia Quinn, BAY AREA LEGAL AID |
| Counsel for Respondent: Bi Guang Xiao, in propria persona | No brief filed by respondent after 8.220(a)(2) notice. There was no аppearance for respondent at Oral Argument June 25, 2014. |
| Counsel for Amicus Curiae Family Violence Appellate Project (FVAP) | Paul D. Fogel, Zareh A. Jaltorossian, Ilana R. Herscovitz, REED SMITH Erin C. Smith, Nancy K. D. Lemon, Jennafer Dorfman Wagner, FAMILY VIOLENCE APPELLATE PROJECT |
Qing Hui Gou v. Bi Guang Xiao, A137771