In re Marriage of BETSEY BRUBAKER and ANDY STRUM.
B307887
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN
Filed 12/10/21
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. (Los Angeles County Super. Ct. No. 17STFL05662).
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
BETSEY BRUBAKER, Appellant, v. ANDY STRUM, Respondent.
Fernandez & Karney and Mark H. Karney for Petitioner and Appellant.
Feinberg Mindel Brandt & Klein, Gregory A. Girvan and Collette Torunyan for Respondent.
INTRODUCTION
Betsey Brubaker appeals from an order denying her request to renew a restraining order against her former husband, Andy Strum, under the Domestic Violence Prevention Act (the Act) (
FACTUAL AND PROCEDURAL BACKGROUND
A. Brubaker Obtains a Domestic Violence Restraining Order Against Strum
Brubaker and Strum married in 2009 and had twins in 2015. On October 6, 2017 Brubaker filed a petition for dissolution of the marriage, which, according to Brubaker, Strum opposed.
On November 3, 2017 Brubaker and Strum entered into a stipulated temporary protective order. The order required Strum to remain 100 yards from Brubaker (except during school events, extracurricular activities, and when exchanging the children for visitation), prevented Strum from contacting Brubaker except in connection with custody and visitation matters, and established a temporary custody schedule for the children.
On January 25, 2018 Brubaker filed another request for a domestic violence restraining order, alleging Strum violated the stipulated protective order on multiple occasions and committed additional acts of abuse. Brubaker alleged Strum stalked her, monitored her actions using a “nanny cam,” threatened to report her to child protective services, and harassed her verbally and in written communications. Brubaker again alleged Strum said he wanted to strangle and kill her. Brubaker claimed Strum‘s behavior was “triggered by anger regarding the normal divorce proceedings, which he was against and uses to lash out . . . .”
Following a hearing on February 22, 2018, the family law court (Judge Hank M. Goldberg) issued a two-year domestic violence restraining order against Strum. The court found that Strum placed Brubaker “in reasonable apprehension of imminent or serious bodily injury” by threatening violence against her and that Strum had violated the stipulated protective order. The court also found Strum‘s violations of the stipulated protective order amounted to “disturbing the peace” under the Act and showed, through “conduct and in words,” that Strum would “do whatever [he] want[ed] to do,” regardless of whether there was a restraining order in effect. The court found Strum had “a very significant anger management issue” and an “explosive temper.” The court described the abuse as “situational” and stated a two-year order would give the parties sufficient time to “finish the divorce case” with the restraining order in place.
The domestic violence restraining order prevented Strum from coming within 100 yards of Brubaker, her home, or her vehicle, and from contacting
B. Brubaker Alleges Strum Violated the Domestic Violence Restraining Order, and the Family Law Court Issues a Final Statement of Decision in the Divorce Proceeding
On May 22, 2018 Brubaker asked for an order limiting Strum‘s use of OFW. The family law court (Commissioner Doreen Boxer) found Strum had violated the domestic violence restraining order by using OFW to “scold, admonish, [and] reprimand” Brubaker and by “using the children as a pretext to further harass” her. The court modified the restraining order by limiting the scope of permitted OFW communications.
On July 23, 2019 the family law court (Judge Lawrence Riff) entered a final statement of decision in the dissolution action, ruling the court would award Brubaker sole physical and legal custody of the children. The court stated a “principal issue for trial” was whether Strum rebutted the presumption under
The family law court also ruled that, even if Strum had rebutted the presumption under
Meanwhile, on October 1, 2019 Brubaker filed a request to renew the two-year domestic violence restraining order, which otherwise would expire on February 22, 2020.2 Brubaker alleged she had a reasonable apprehension of future abuse based on Strum‘s past abuse and his violations of the existing restraining order. Specifically, Brubaker alleged Strum continued to use OFW to harass her, manipulated volunteer opportunities at the children‘s school so he could be within 100 yards of her, and insisted on exchanging the children at each other‘s front door instead of at the street curb or driveway, which Brubaker claimed gave Strum the opportunity to “attack [her] unprovoked with accusations [and] assertions in a highly charged verbal manner in the clear view of [the] children.” Brubaker also alleged Strum “hurl[ed] accusations at [her] in an unreasonably loud and aggressive tone” during an exchange of the children on August 30, 2019.
Strum opposed the request to renew the restraining order and filed two motions in limine. One motion sought to exclude the OFW messages exchanged between the parties prior to May 24, 2018. Strum claimed that, prior to that date, counsel for Brubaker “wantonly violated the rules of professional conduct” by communicating directly with Strum through OFW without Strum‘s knowledge. Brubaker stipulated to the relief requested in Strum‘s first motion in limine.
Strum‘s second motion in limine sought to exclude Brubaker from “proffering any evidence regarding any allegations of abuse or violations of the Domestic Violence Restraining Order by [Strum] prior to February 13, 2019,” which was the last date the parties presented evidence in the marriage dissolution trial. Strum argued that, because Judge Riff found Strum had not committed any acts of domestic violence or abuse since Judge Goldberg issued the restraining order in February 22, 2018, the doctrines of issue preclusion and estoppel precluded the trial court in this proceeding (Judge Michael R. Powell) from considering that evidence or any other evidence of domestic violence or abuse occurring before the dissolution trial. Strum also asked the trial court to take judicial notice of the family law court‘s final statement of decision because “the matter of violations of the protective order since its issuance . . . through the last day of trial . . . has already been adjudicated.” Strum‘s motion in limine did not mention Commissioner Boxer‘s earlier finding Strum violated the restraining order.
The trial court considered Strum‘s second motion in limine at the beginning of the July 10, 2020 hearing on Brubaker‘s request to renew the restraining order. Counsel for Brubaker argued issue preclusion did not apply because some of the issues relevant to Brubaker‘s request to renew the restraining order were not presented or addressed in the dissolution trial. But the trial court stated Strum made “a compelling case [for] issue preclusion . . . in the sense that [the] parties had an opportunity to present [evidence of violations of the restraining order] earlier during the hearing with Judge Riff. If it wasn‘t presented at that hearing, it‘s almost as if [Brubaker] had a basis for the restraining order, but [she] didn‘t include all of the information. And then [she] want[s] to go back in time and say . . . this happened too . . . .” The trial court concluded that Judge Riff made “an explicit finding” Strum had not violated the restraining order and that it was “inappropriate” to relitigate that finding. The court stated that the “question is now, what has occurred after [Judge Riff made his finding] that would warrant the continuation of the restraining order?”
The trial court also stated, “This is a renewal of the restraining order. This isn‘t a re-litigation of the past restraining order. . . . I went back and I made sure that I looked at the original restraining order request. And I looked at what Judge Goldberg had said. And I believe that Judge Goldberg had made the statement that he believe[d] . . . the granting of the domestic violence restraining order was to be for two years based on the fact that he felt once [the marriage dissolution] matter [was] adjudicated, that that‘s all that would be needed at that point. So if we have a restraining order that‘s a duration of two years, and . . . we don‘t see any violations within the two-year period, then the court is left with looking at what are the facts that exist . . . after this is all adjudicated . . . . This is in effect saying, ‘What has happened since the restraining order has been issued that warrants it continuing?’ . . . If the events [that led to the issuance of the restraining order] have ceased, if the behavior is such that it does not rise to the level that there is prescribed in [the Act], I don‘t think that I have the authority to issue a restraining order.”
The trial court concluded its discussion of the second motion in limine by stating: “The court wants to concentrate on any events that happened after [Judge Riff‘s] hearing and during the restraining order period. And I want to focus on that solely.” As a result of the court‘s ruling, Brubaker did not present, and the court did not consider, evidence underlying the original restraining order or evidence Judge Riff considered in finding Strum had not violated the restraining order as of February 13, 2019.
Brubaker testified that on one (unspecified) occasion Strum went to the window of her car, banged on it “very hard,” and threatened her about “what ticked him off in that moment, something about court.” Brubaker said she called the police, but she did not say whether officers arrived or what happened if and when they did. Brubaker testified that on another (again, unspecified) occasion Strum “lunged” at her, but she did not give any details about the incident. Brubaker said that on still another occasion Strum appeared at the children‘s school “for no reason,” came within 100 yards of her, and gave her “sinister looks as a display of power.”
The trial court said that it was presuming the incidents Brubaker identified occurred “within the timeframe” permitted by its ruling on the second motion in limine, but that Brubaker did not provide “any dates,” “statements” or “context” to assist the court in determining whether Strum‘s conduct was abusive. Brubaker responded she had “countless OFWs” that provided those details, and counsel for Brubaker asked the court for a break to determine whether Brubaker had submitted the OFWs to the court. After the break, counsel for Brubaker informed the court he had submitted copies of two prior orders to show cause re contempt based in part on allegedly abusive OFW messages. Over Strum‘s objection, the trial court agreed to review the OFW messages to determine whether they proved Strum violated the restraining order, even though Brubaker had stipulated to exclude messages exchanged before May 24, 2018. Brubaker testified many of the messages “bullied” her in connection with decisions she made about school, insurance, and medical and dental issues. Brubaker said Strum‘s messages were “relentless” and showed no respect for her decisions.
After another break (for the trial court to review the OFW messages and the orders to show cause), the court denied Brubaker‘s request to renew the restraining order. The court stated that, to renew the restraining order, Brubaker had to show she “entertain[ed] a reasonable apprehension of future abuse without showing any further abuse since the issuance of the original order,” but reiterated that Judge Riff‘s statement of decision in the dissolution trial “gave a timeline as to conduct that was going to be examined” by the
DISCUSSION
Brubaker argues the trial court erred in granting Strum‘s motion in limine based on issue preclusion and effectively requiring Brubaker to prove, contrary to the plain language of the Act, Strum violated the domestic violence restraining order after February 13, 2019. Brubaker also argues the court abused its discretion in denying her request to renew the restraining order. We agree with Brubaker‘s first argument.
A. Requests To Renew Domestic Violence Restraining Orders Under the Domestic Violence Prevention Act
The Act is intended “‘to prevent acts of domestic violence, abuse, and 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.‘” (J.H. v. G.H. (2021) 63 Cal.App.5th 633, 640-641; see
Restraining orders issued under the Act “may have a duration of not more than five years, subject to termination or modification by further order of the court . . . .” (
Instead, a court should renew a domestic violence restraining order when the court “‘find[s] the probability of future abuse is sufficient that a reasonable woman (or man, if the protected party is a male) in the same circumstances would have a “reasonable apprehension” such abuse will occur unless the court issues a protective order.‘” (Lister v. Bowen, supra, 215 Cal.App.4th at p. 332; see Ritchie, supra, 115 Cal.App.4th at p. 1288.) “In challenging a renewal order, the restrained party is not permitted ‘to challenge the truth of the evidence and findings underlying the initial order.‘” (Lister, at p. 333; see Ritchie, at p. 1290.)
B. Issue Preclusion Did Not Apply
1. Applicable Law and Standard of Review
“Issue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action. [Citation.] Under issue preclusion, the prior judgment conclusively resolves an issue actually litigated and determined in the first action.” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824, italics omitted; accord, Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 686.) “[I]ssue preclusion applies (1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.” (DKN Holdings, at p. 825; see Meridian Financial Services, at p. 686.)
“[A]n issue was actually litigated in a prior proceeding if it was properly raised, submitted for determination, and determined in that proceeding.” (Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511; see Ayala v. Dawson (2017) 13 Cal.App.5th 1319, 1330.) “‘The “identical issue” requirement addresses whether “identical factual allegations” are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same.‘” (Hernandez, at pp. 511-512; see Lucido v. Superior Court (1990) 51 Cal.3d 335, 342; Key v. Tyler (2019) 34 Cal.App.5th 505, 534.) “And the ‘\“necessarily decided\“’ prong means only that ‘the issue not have been \“entirely unnecessary\” to the judgment in the initial proceeding.‘” (Key, at p. 534; see Lucido, at p. 342.) “In considering whether these criteria have been met, courts look carefully at the entire record from the prior proceeding, including the pleadings, the evidence, the jury instructions, and any special jury findings or
If all four of the requirements are satisfied, the court must also determine whether applying issue preclusion would be consistent with the public policies underlying the doctrine. (Meridian Financial Services, Inc. v. Phan, supra, 67 Cal.App.5th at p. 686; State Compensation Insurance Fund v. ReadyLink Healthcare, Inc. (2020) 50 Cal.App.5th 422, 448.) “These policies include ‘conserving judicial resources and promoting judicial economy by minimizing repetitive litigation, preventing inconsistent judgments which undermine the integrity of the judicial system, and avoiding the harassment of parties through repeated litigation.‘” (Meridian Financial Services, at pp. 686-687; see State Compensation Insurance Fund, at p. 448.)
The party asserting issue preclusion has the burden of establishing the requirements to apply that doctrine. (Howard Jarvis Taxpayers Assn. v. Weber (2021) 67 Cal.App.5th 488, 499; see Lucido v. Superior Court, supra, 51 Cal.3d at p. 341; State Compensation Insurance Fund v. ReadyLink Healthcare, Inc., supra, 50 Cal.App.5th at p. 448.) Whether to apply the doctrine of issue preclusion is a question of law that we review de novo. (Thee Aguila, Inc. v. Century Law Group, LLP (2019) 37 Cal.App.5th 22, 28; Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497, 1507.)
2. Issue Preclusion Did Not Apply To Prevent the Trial Court from Considering Evidence Strum Committed Acts of Domestic Violence Between February 2018 and February 2019
In the dissolution action, the family law court considered whether Strum “committed further acts of domestic violence” in connection with the court‘s analysis of whether Strum rebutted the presumption under
The family law court found Strum had “complied with the terms of the permanent restraining order; and [Strum] has not committed any further acts of domestic violence since [the restraining order] was issued.” Based on this finding, Strum, in his motion in limine for the hearing on Brubaker‘s motion to renew the restraining order, argued that any alleged abuse during the time period February 22, 2018 to February 13, 2019 had already been adjudicated and that Brubaker “should be estopped from presenting any further evidence at the hearing for [her] renewal of the protective order.”
The trial court erred in finding issue preclusion barred Brubaker from presenting evidence of Strum‘s alleged abuse from February 2018 to February 2019 because the issue addressed by the trial court on Brubaker‘s request to renew the restraining order was not an issue the parties litigated and the family law court necessarily decided in the marriage dissolution trial. (See DKN Holdings LLC v. Faerber, supra, 61 Cal.4th at p. 825; Meridian Financial Services, Inc. v. Phan, supra, 67 Cal.App.5th at p. 686.) The issue the family law court heard in February 2019 and decided in July 2019 was whether Strum rebutted the presumption under
And while evidence of additional acts of domestic violence or a violation of the original restraining order was relevant to whether Brubaker had a reasonable fear of future abuse (see Lister v. Bowen, supra, 215 Cal.App.4th at p. 335), such evidence was not required to renew the restraining order. (See Ashby v. Ashby, supra, 68 Cal.App.5th at pp. 515-516 [“a party‘s violation of [a domestic violence restraining order] can support a finding of reasonable apprehension,” but “the reverse is not true“: compliance with a domestic violence restraining order does not “preclude[ ] a finding of reasonable apprehension“]; Abatti v. Imperial Irrigation Dist. (2020) 52 Cal.App.5th 236, 306-307 [issue preclusion does not apply where a finding from an earlier action is relevant to “but does not resolve the inquiry” in the later action]; Johnson v. GlaxoSmithKline, Inc., supra, 166 Cal.App.4th at p. 1513 [“‘where the previous decision rests on a \“different factual and legal foundation\” than the issue sought to be adjudicated in the case at bar,
C. The Trial Court Erred in Excluding Evidence Underlying the Original Restraining Order
The trial court compounded its error in granting Strum‘s second motion in limine by also excluding evidence underlying the original restraining order (even though Strum did not request that relief).5 Brubaker argues the trial court erred “in holding that the party seeking renewal must show that abuse occurred while the original restraining order was in place.” That characterization of the trial court‘s ruling is not quite correct. The trial court acknowledged the legal standard for renewal was a reasonable apprehension of future abuse, but the court precluded Brubaker from demonstrating that fear through evidence of Strum‘s conduct prior to the original restraining order. Brubaker is correct, however, that the trial court erred.
The trial court suggested it would exclude the evidence that led to the original restraining order because Judge Goldberg believed at the time he issued that order that two years was sufficient to protect Brubaker throughout the divorce proceedings. But neither the fact Judge Goldberg issued the original restraining order for two years nor his reason for doing so made the evidence underlying the original restraining order irrelevant to Brubaker‘s request to renew that order.
The trial court wrongly believed it could not consider the evidence underlying the original restraining order. By excluding relevant evidence of Brubaker‘s fear of future abuse, the court abused its discretion by limiting Brubaker‘s ability to meet her burden of proof. (See Perez, supra, 1 Cal.App.5th at p. 396 [“‘\“If the court‘s decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, the court has not properly exercised its discretion under the law.\“‘“]; Eneaji v. Ubboe, supra, 229 Cal.App.4th at p. 1465 [a decision “predicated on an erroneous understanding of the applicable law . . . must be reversed and remanded“].)
Following the trial court‘s lead, Strum argues the “‘pattern of situational abuse‘” that justified limiting the original restraining order to two years supports an exception to the general rule that a protected party need not present evidence of additional abuse to renew a domestic violence restraining order. But the Act does not include any such exception, and we decline Strum‘s invitation to read one into it. (See Mora v. Webcor Construction, L.P. (2018) 20 Cal.App.5th 211, 223 [a court should not rewrite statutes or read into them an exception that will materially affect their operation to make the statutes conform to a presumed intention not expressed or otherwise apparent in the statutory language]; Soto v. Motel 6 Operating, L.P. (2016) 4 Cal.App.5th 385, 393 [same].)
Strum also argues the trial court did consider “the underlying abuse that gave rise to the restraining order.” He contends the trial court “‘went back and . . . made sure that [it] looked at the original restraining order request‘” and reviewed Judge Goldberg‘s reasons for granting the two-year restraining order. The trial court, however, considered the original request for a restraining order and Judge Goldberg‘s reasoning in the context of granting Strum‘s motion in limine, not in considering the merits of Brubaker‘s request to renew the restraining order. Moreover, Judge Goldberg‘s reasons for limiting the original restraining order to two years did not preclude Brubaker from showing she continued to have a reasonable fear of future abuse after the restraining order was due to expire. (See Ritchie, supra, 115 Cal.App.4th at p. 1290 [“the trial judge ordinarily should consider the evidence and findings on which th[e] initial order was based in appraising the risk of future abuse should the existing order expire“].)
The order is reversed with directions for the trial court to hold a new hearing on Brubaker‘s request to renew the protective order and to allow Brubaker to introduce all relevant evidence in support of her request. Brubaker is to recover her costs on appeal.
SEGAL, Acting P. J.
We concur:
FEUER, J.
IBARRA, J.*
* Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.