BACKGROUND
The parties had a daughter together in 2009 and married in 2011. Appellant commenced dissolution proceedings in November 2013. Appellant was represented by counsel and respondent represented himself.
In December 2013, appellant filed a request for a domestic violence restraining order. The trial court, who was the same judge that issued the order at issue in the present appeal, held a hearing on the request in March 2014. Appellant testified to various instances of domestic abuse over the course of her relationship with respondent. He was often jealous and he threatened to "hurt," "kill," and "destroy" her. Sometimes he would physically restrain her when they argued. On a number of occasions, respondent damaged property. In 2007, respondent raped her after an argument. In 2013, he started to initiate nonconsensual sex after an argument but stopped when appellant said, "Are you going to rape me?" Appellant's sister corroborated that appellant said respondent tried to rape her and that appellant had a large thigh bruise. At the 2013 Sonoma July 4th parade, respondent pushed appellant while she was holding their daughter. A witness corroborated her account. Respondent testified, among other things, that appellant was making false accusations because she did not want to pay him support.
At the close of the hearing, the trial court imposed a three-year restraining order on respondent. The court observed that its role was "to decide is there more evidence that would support [appellant's] version of what happened compared to the evidence that supports [respondent's]. And the Court finds a preponderance of the evidence that [appellant] has met her burden of proof that there has been domestic violence." The court denied respondent's request for spousal support due to its domestic violence finding and made child support orders.
In June 2015, a stipulated judgment was entered that terminated the parties' marriage and divided their property.
In December 2016, appellant requested a permanent renewal of the March 2014 restraining order. Respondent, now represented by counsel, opposed the request.
Appellant also alleged respondent violated the 2014 restraining order on four occasions. First, she encountered him at a farmer's market in June 2014 and requested his removal by law enforcement. She claimed respondent was drinking alcohol and he protested his removal from the event. However, the sheriff's deputy who was involved in the incident testified respondent said he was unaware of appellant's presence, he left without objection, and there was no sign he had been drinking.
Second, appellant claimed respondent violated the restraining order in April 2015 by remaining at a bar called the Glen Ellen Lodge after seeing her there. She testified respondent entered the bar, walked past her, and "glared" at her from the other end of the bar. However, another patron testified that respondent did not see appellant when he came into the bar and that respondent left immediately (within seconds of entering the bar) when appellant saw him and referred to the restraining order. Appellant then proceeded to talk badly of respondent to the other patron. Respondent testified he left as soon as he noticed appellant was present.
Third, appellant testified that in June 2015 patio furniture and a bicycle were removed from her property. A bicycle lock was cut in the process. Respondent testified he had arranged for two friends to pick up the items because he had been told at a settlement conference he had to remove the property. He admitted he did not seek appellant's permission to pick up the property that day. The sheriff's deputy that investigated the incident testified
Finally, appellant testified she saw respondent in a high school parking lot in December 2016, when she was picking up her older children. Respondent testified he had gone to the high school to pick up the children of a friend and that he did not see appellant or her children at the school. He had only been to the high school on that one occasion in the preceding three years.
Respondent testified regarding his efforts to avoid appellant. He testified that he avoided going to the town of Sonoma for social activities due to the restraining
In September 2017, the trial court denied appellant's request for renewal of the restraining order in a detailed written decision. The court stated it was "cognizant of the basis upon which the initial [r]estraining order was granted," but observed, "[t]he granting of the original [r]estraining order does not confirm that this Court made a finding that every allegation made by [appellant] was true, but that this court found a sufficient factual basis to determine that spousal abuse had occurred." In regards to the testimony presented at the hearing on the renewal request, the court stated it "generally found [respondent] to be the more credible witness." In denying the renewal request, the court found "that the factual testimony at the original trial resulting in the granting of the current restraining order is insufficient to provide a basis by itself to support the necessary findings to order the continuation of this restraining order."
The present appeal followed.
DISCUSSION
The Domestic Violence Prevention Act (DVPA) ( Fam. Code, § 6200 et seq. )
In Ritchie , supra ,
"We review an appeal from an order denying a request to renew a domestic violence restraining order for abuse of discretion. [Citations.] ... [A]n abuse of discretion occurs where ' " 'the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' " ' However, the question of 'whether a trial court applied the correct legal standard to an issue in exercising its discretion is a question of law [citation] requiring de novo review.' " ( Cueto , supra ,
Appellant contends the trial court abused its discretion in denying her request for lifetime renewal of the restraining order. Her primary contention
Although appellant's 2014 testimony plainly supported issuance of the original restraining order, appellant's collateral estoppel argument is misplaced, because the doctrine only applies where "the issue decided in the prior case is identical with the one now presented." ( Stolz v. Bank of America (1993)
The one case appellant cites that addresses this issue is Ritchie , supra ,
Instead, the record shows the trial court denied the renewal request based on additional evidence developed at the hearing on the request. The court emphasized all the evidence showing respondent's "intentional avoidance of unintended contact" and respondent's testimony "that he goes out of his way to not be in areas where it would occur to him [appellant] might be present." The court noted that, when respondent inadvertently was in the vicinity of appellant, respondent "acted appropriately and left as soon he was aware of [appellant] being present." The court also observed, "The fact that [appellant] was willing to apply for membership and then use the gym knowing that [respondent] was a member causes this Court to question her claim of fearing [respondent]." Further, the court found that appellant, "perhaps unintentionally, uses the restraining order to defame or harass [respondent]." The court referred to appellant's negative comments to another patron about respondent during the incident at the Glen Ellen Lodge, observing "[i]t seems inconsistent that if someone is fearful of domestic violence from someone that they would then take the opportunity to publicly defame that person to a friend of the person of whom they purport to be afraid." The court concluded "that the factual testimony at the original trial resulting in the granting of the current restraining order is insufficient to provide a basis by itself to support the necessary findings to order the continuation of this restraining order."
Appellant disputes the trial court's view of the evidence, but we are required to defer to the court's credibility determinations and make all reasonable inferences in support of the court's findings. (
Cueto , supra ,
DISPOSITION
The trial court's order is affirmed and the matter is remanded for further proceedings consistent with this decision. Costs on appeal are awarded to respondent.
We concur.
NEEDHAM, J.
BRUINIERS, J.
Notes
All undesignated section references are to the Family Code.
Neither party argues it had new evidence to present at the renewal hearing regarding incidents underlying the original order that was improperly excluded by the trial court. Therefore, we need not and do not address when such evidence is admissible as to a factual issue not conclusively established by collateral estoppel.
We observe that, because Ritchie's interpretation of the statute on this point "was not necessary to its resolution" of the case, "it was dicta rather than a holding." (In re D.Y. (2018)
In her opening brief, appellant argues the trial court erred in denying her request to strike the testimony of the Sonoma Fit employee who testified about appellant's enrollment at the gym. Appellant contends the testimony should have been stricken under Evidence Code section 771, because the employee used gym records to refresh her recollection but did not produce the records at trial. However, the trial court did strike the portion of her testimony "dealing with the dates," because the employee said that the records provided the "exact dates" when the parties joined the gym. Appellant has not shown error. Evidence Code section 771, subdivision (a) only requires the striking of testimony "concerning [the] matter" that was refreshed by the writing. Under the trial court's ruling, the testimony still stands that appellant knew respondent was a member when she enrolled, which was the relevant information.
We also reject appellant's similar claim that testimony of the sheriff's deputy who received respondent's child abuse allegation should have been stricken because he used his report to refresh his recollection but did not produce the report in court. Any error was harmless, because the child abuse allegation is part of the evidence appellant employed to argue in favor of the renewal request.
We reject appellant's suggestion that the vigorous litigation surrounding the renewal request, and the evidence developed in that context, shows the parties have not "moved on with their lives so far that the opportunity and likelihood of future abuse has diminished." (Ritchie , supra ,
We reject appellant's request that further proceedings should be heard by a different trial court judge. Appellant has not shown any bias or appearance of bias on the part of the trial court judge below. (See Nevarez v. Tonna (2014)
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.