BAILEY YOST, Plaintiff and Respondent, v. ANTHONY FORESTIERE, Defendant and Appellant.
F078580
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
June 29, 2020
Monica R. Diaz, Judge
CERTIFIED FOR PARTIAL PUBLICATION (Super. Ct. No. 15CECG00315)
OPINION
APPEAL from an order of the Superior Court of Fresno County. Monica R. Diaz, Judge.
Glenn R. Wilson for Defendant and Appellant.
No appearance for Respondent.
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In the published portion of this opinion, we address and resolve several legal questions involving
In this case, defendant Anthony Forestiere (Grandfather) was subject to a 2015 restraining order requiring him to have no contact with his granddaughter or the girl’s mother and to stay 100 yards away from them. The stay-away order included the girl because of the risk Grandfather and the grandmother would abduct the girl from her mother. Grandfather requested a modification of the stay-away order only as it relates to his granddaughter so that he could attend family functions attended by the granddaughter in the company of her father (Grandfather’s son). Grandfather argued the bitter custody battle between his son and the girl’s mother had been resolved with his son obtaining 50 percent custody and this change in the custody arrangement justifies a modification of the stay-away order. In short, Grandfather implies his son’s equal custody of the child effectively eliminates the threat Grandfather and the grandmother would abduct the child.
The trial court denied Grandfather’s modification request based on its determination that the custody orders for the child were not relevant to whether a modification was appropriate. As described below, we conclude the court interpreted the scope of its statutory discretion too narrowly. As a result, its order denying the modification request was “ ‘not an exercise of informed discretion and is subject to reversal.’ ” (Cooper v. Bettinger (2015) 242 Cal.App.4th 77, 90 (Cooper).)
We therefore reverse the order denying Grandfather’s request to modify.2
FACTS AND PROCEEDINGS
In May 2014, a daughter was born to respondent Bailey Yost (Mother) and Joseph Forestiere. Grandfather is the father of Joseph and the girl’s paternal grandfather. Mother and child stayed at Grandfather’s house for a short time after she was born. The parties disagree about Mother’s reason for moving
Initial Restraining Order
On January 29, 2015, Mother filed requests for civil harassment restraining order against Joseph’s parents and named the child as an additional protected person. Mother asserted that the grandmother had threatened to flee with the child, and she feared the grandparents would abduct the child. The trial court issued a temporary restraining order and set the matter for a hearing. In February 2015, while the temporary restraining order was in place, the family court issued a new custody and visitation order restricting Joseph to supervised visits with his daughter and directing Grandfather to have no contact with the girl. Grandfather contends the family court’s no-contact directive simply acknowledged the restriction in the temporary restraining order and was not a finding that contact would be contrary to the child’s best interests.
On March 16, 2015, the trial court held a hearing on Mother’s request for a restraining order against Grandfather. Both parties were present at the hearing and were represented by counsel. On March 18, 2015, the court issued a civil harassment restraining order after hearing on Judicial Council form CH-130. The personal conduct order prohibited Grandfather from contacting Mother or the child. The stay-away order required Grandfather to keep at least 100 yards away from them. The court set March 18, 2020, as the order’s expiration date.
Later that March, Grandfather filed a motion for reconsideration. He argued circumstances had changed because the couple who were to supervise Joseph’s visit with his daughter were no longer willing to act as supervisors, which effectively eliminated Joseph’s ability to see the child prior to a hearing set for April 27, 2015. Mother opposed the motion. In May 2015, the trial court denied Grandfather’s motion for reconsideration and directed him to pay attorney’s fees in the amount of $500 within 10 days.
Request to Modify
Approximately three years later, in February 2018, Grandfather filed a request to modify civil harassment restraining order on mandatory Judicial Council form CH-600 (new Jan. 1, 2018). Grandfather asked to have his granddaughter removed as a party protected by the restraining order or,
The hearing on Grandfather’s modification request, initially scheduled in March 2018, was continued at the request of the parties. After subsequent continuances and the filing of motions in limine, the request to modify the restraining order was heard on October 25, 2018.
During the hearing, the trial court confirmed with counsel that Grandfather was seeking only to modify the stay-away order covering the child and was not seeking any change in the restrictions relating to Mother. The court then stated that what it had “read in the moving papers seem irrelevant to this hearing quite frankly. I am doing my best not to rehear the original proceeding,” which had been decided by another judge. Counsel for Mother argued the modification request was really asking the court to relook and reconsider the original judge’s order, which was entered after a lengthy hearing where both parties were represented by counsel. Counsel for Mother argued that visitation was clear at the time of the hearing on the original restraining order and nothing in the order said that if Joseph got more visitation the court would consider a modification.
Counsel for Grandfather asserted that when the original restraining order was issued, Joseph did not have joint legal and physical custody of the child and those circumstances had changed because Joseph “now has equal custody, equal footing with [Mother] in the ability to make decisions regarding the child’s best interests.” Counsel argued that “because dad has equal footing, something that didn’t exist at the time, and the child is with dad an equal amount of time, that is a substantial change in circumstances over what was occurring at the time the order was issued and what the judge had before it at that time.” Counsel emphasized the narrowness of the request by stating Grandfather was not seeking visitation, only that the grandparents be allowed to “be in the same spot without it creating a violation of the order. That’s it.”
The court asked how had “what’s occurred in the family law case with respect to the father have any impact on the Court’s decision in this case? I just don’t see it.” The court stated, “I just don’t see how that impacts this case or how it can because it was never part of these orders. It’s nowhere in this file … and I think you’re asking me to do something that I can’t do.”
Another issue addressed at the hearing was how the restraining order fit with the custody and visitation orders entered in the family court proceeding. Counsel for the Grandfather argued the question of allowing the grandparents to be near the child had not been addressed in the family law proceeding and, moreover, the question could not have been addressed there because the restraining order was in place. In response, the court stated: “I think the family court can take this matter, this case and do whatever it wants with it. In fact, this court often defers to the family law court, especially in issues like this.”
Counsel for Mother then argued that the grandparents could not prevail on a request for grandparent visitation under
“Your Honor, the restriction [on the grandparents] with regard to the child was not based [on] anything to do with the father’s visitation. It had to do with other allegations that were in the case at the time. We would be completely opposed to having that lifted for them to have any type of contact with the child. That would have to be dealt with in family court. But those were already litigated issues.”
After the trial court agreed with the characterization of the modification request as a request for visitation, counsel for Grandfather withdrew the
The law and motion minute order from the hearing stated: “The court finds defense has not provided sufficient basis for re-consideration.” The court established a briefing schedule on Mother’s attorney fees request and set a hearing on January 9, 2019. In December 2018, Grandfather filed a timely notice of appeal.
Subsequent Events
In January 2019, before Mother’s motion for attorney fees was heard, Grandfather filed an ex parte request to stay the proceeding. The minute order from the hearing stated the “Stay of Proceedings until Appeal is resolved is Granted.” It also stated the motion for attorney fees was taken off calendar. As a result, Mother’s motion for attorney fees is still pending in the trial court.
A year later, in January 2020, Mother filed a request to renew the restraining order. Grandfather filed a response stating he did not agree to extend the order. At the March 13, 2020 hearing on Mother’s renewal request, the trial court met with counsel in chambers off the record. After the meeting, Mother’s counsel stated on the record that the application to renew the restraining order was withdrawn. The law and motion minute order from the hearing also noted: “Permanent restraining order to expire 03/18/2020.”
I. MOOTNESS*
A. General Principles
An issue must be justiciable before a court will decide it. (Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1573.) Justiciability means the questions litigated are based on an actual controversy. (Ibid.) Unripeness and mootness describe situations where there is no justiciable controversy. (Ibid.) A case becomes moot when an actual controversy that once was ripe no longer exists due to a change in circumstances. (Ibid.)
The general test for mootness states “[a]n appeal is moot if the appellate court cannot grant practical, effective relief.” (Citizens for the Restoration of L Street v. City of Fresno (2014) 229 Cal.App.4th 340, 362.) “ ‘If relief granted by the trial court is temporal, and if the relief granted expires before an appeal can be heard, then an appeal by the adverse party is moot.’ ” (City of Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1079 [injunction against operation of medical marijuana dispensaries terminated when citywide moratorium prohibiting operation of dispensaries expired; appeal challenging the injunction was moot]; see Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2019) ¶ 5:25.1, pp. 5-7 to 5-8.)
B. Effect of Pending Motion for Attorney Fees
The original restraining order expired on March 18, 2020. Furthermore, the restraining order was not renewed. (Cf. Harris v. Stampolis (2016) 248 Cal.App.4th 484, 495 [appeal was not moot because restraining order was renewed prior to its expiration] (Harris).) Because the restraining order is no longer operative, this court is not able to grant effective relief as to the terms contained in the restraining order. Consequently, our evaluation of mootness considers whether there are other aspects of the litigation that would be affected by the resolution of this appeal.
The litigation has not been completed because Mother’s motion for attorney fees is still pending in the trial court. The trial court’s discretionary determination of whether Mother was a prevailing party and thus eligible for attorney fees under
II. MOTIONS TO MODIFY RESTRAINING ORDERS
A. Overview of Civil Harassment Restraining Orders
The legislative history for
The quick, injunctive relief provided by
To provide quick relief, “[a] request for the issuance of a temporary restraining order without notice under this section shall be granted or denied on the same day that the petition is submitted to the court.” (
Compared to the normal injunctive procedures set forth in the
To assist persons proceeding without a lawyer, the Legislature directed the Judicial Council to “develop forms, instructions, and rules relating to matters governed by this section. The petition and response forms shall be simple and concise, and their use by parties in actions brought pursuant to this section is mandatory.” (
The Legislature offset the expedited procedures in
A second limitation is that any restraining order issued may enjoin only “harassment” as defined in the statute. (
A third limitation safeguarding defendants involves the burden of proof.
A fourth set of safeguards assures that a person charged with harassment is given an opportunity to present his or her case. (Schraer, supra, 207 Cal.App.3d at p. 730.) Such a person “may file a response that explains, excuses, justifies or denies the alleged harassment, or may file a cross-petition.” (
B. Modification of Restraining Orders
A fifth safeguard—the one at issue in this appeal—allows either party to bring a motion to terminate or modify the restraining order.
1. Modifications Are Discretionary
The first question of statutory interpretation we address is whether the phrase “[i]n the discretion of the court” applies to a trial court’s determination of a request to modify or terminate a restraining order. We conclude it does.
The phrase “[i]n the discretion of the court” was placed at the beginning of the sentence addressing both the duration of the civil harassment restraining order and the modification or termination of such orders. It is possible to interpret the phrase as relating only to the court’s authority to
Other aspects of the wording of the statute support the interpretation that the decision to modify or terminate a restraining order was committed to the trial court’s discretion.
The interpretation that commits modification and termination orders to the trial court’s discretion also is supported by the principle that statutory provisions are not construed in isolation, but are read with reference to the entire scheme of law so that the scheme operates in harmony and retains its effectiveness. (Scripps Health, supra, 72 Cal.App.4th at p. 332.) Treating modification orders as within trial court’s discretion makes
Consequently, we interpret
The second question of statutory interpretation we address relates to the scope of the trial court’s discretionary authority—specifically, whether the trial court’s discretion is limited to the grounds set forth in
“In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order.”
Thus,
Grandfather argued below that a trial court’s discretion to modify a civil harassment restraining order is not limited to the grounds set forth in
Based on
In adopting this interpretation, we have considered the Fourth District’s interpretation of
First, the arguments presented in Loeffler were different from Grandfather’s arguments in this case. In Loeffler, the restrained party argued the protected party should have the burden of proving by a preponderance of the evidence that she continued to have a reasonable apprehension of future abuse. (Loeffler, supra, 174 Cal.App.4th at p. 1503.) It does not appear the restrained party argued in the alternative that the grounds listed in
To summarize, we conclude a trial court’s discretion to modify a civil harassment restraining order includes, but is not limited to, the three grounds articulated in
3. Scope of a Trial Court’s Discretion
The third issue of statutory interpretation we address relates to defining the scope of a trial court’s discretion. We conclude the extent of a trial court’s discretion to modify a civil harassment restraining order should be defined by considering (1) the Legislature’s choice not to specify the grounds for modification, (2) the principles that define when a trial court may issue an initial restraining order and renew such an order, and (3) the legislative purpose underlying
The fundamental principles for the issuance of a restraining order under
“Under section 527.6, the court may grant an injunction when there is a threat of harm because of harassment, as defined in the statute. [Citations.] The ‘purpose of a prohibitory injunction is to prevent future harm to the applicant by ordering the defendant to refrain from doing a particular act. [Citations.] Consequently, injunctive relief lies only to prevent threatened injury and has no application to wrongs that have been completed. [Citation.] It should neither serve as punishment for past acts, nor be exercised in the absence of any evidence establishing the reasonable probability the acts will be repeated in the future.’ [Citation.]” (Id. at pp. 1265–1266, italics omitted.)
Stated another way, “[a]n injunction restraining future conduct is only authorized when it appears that harassment is likely to recur in the future.” (Harris, supra, 248 Cal.App.4th at p. 496.)5
This basic idea of preventing future harm also appears in the standard that trial courts apply to requests to renew a restraining order. In Cooper, supra, 242 Cal.App.4th 77, the court addressed “the proper standard for the trial court to apply in exercising its discretion” to renew a restraining order and concluded “a restraining order should be renewed only when the
We conclude this principle about the prevention of reasonably probable future harm can be adapted to a restrained party’s modification request to define the extent of the trial court’s discretionary authority. Specifically, when a trial court, after considering the relevant evidence presented, determines there is no reasonable probability a particular act of harassment will be committed in the future, the court has the discretion to modify the terms of the restraining order addressing that particular act of harassment.6 On the fourth question of statutory interpretation, we conclude the restrained party, as the party requesting the modification, has the burden of proving by a preponderance of the evidence that a reasonable probability does not exist. (See
A further question presented relates to the evidence relevant to this inquiry. We conclude “ ‘the determination of whether it is reasonably probable an unlawful act will be [occur] in the future rests upon the nature of the unlawful [harassment] evaluated in the light of the relevant surrounding circumstances of its commission and whether precipitating circumstances continue to exist so as to establish the likelihood of future harm.’ ” (Harris, supra, 248 Cal.App.4th at pp. 499-500, quoting Scripps Health, supra, 72 Cal.App.4th at p. 335, fn. 9.)
4. Trial Court’s View of Its Discretion
Here, the wrongful act that resulted in the inclusion of the child in the restraining order was the grandparents’ threat to take the child and flee. Thus, the orders requiring Grandfather and the grandmother to stay 100 yards away from the child were designed to protect the child from being abducted by her grandparents and to protect Mother from the emotional distress that an abduction would cause. (See
Accordingly, the trial court in this case should have considered the surrounding circumstances in evaluating the threat of kidnapping that was the original basis for requiring Grandfather to stay away from the girl. (Harris, supra, 248 Cal.App.4th at p. 499.) In addition, the trial court should have considered “ ‘whether precipitating circumstances continue to exist so as to establish the likelihood of future harm.’ ” (Harris, supra, at pp. 499-500.) A proper exercise of a trial court’s discretion included a comparison of the circumstances that caused the court to grant the initial restraining order and the circumstances that existed at the time of the hearing on the request to modify.
The trial court in this case did not undertake the foregoing evaluation of the circumstances and make the relevant comparison. Instead, the court stated, “I am doing my best not to rehear the original proceeding.” In addition, the court determined the existing family court custody order was not relevant because custody had not been discussed in the original order.
In contrast, we conclude the existing child custody order, which gave Joseph custody 50 percent of the time, was relevant to whether Grandfather would attempt to abduct the child when she was in the custody and presence of her father. Evidence is relevant if it has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (
When, as here, a trial court’s decision reflects an unawareness or misunderstanding of the full scope of its discretion, the court has not properly exercised its discretion under the law. (Cooper, supra, 242 Cal.App.4th at p. 90.) In such situations, the trial court’s decision “ ‘is subject to reversal.’ ” (Ibid.)
DISPOSITION
The October 25, 2018, order denying the request to modify civil harassment restraining order is reversed and the trial court is directed to vacate the order. The trial court shall, in light of this ruling and exercising its full discretion, determine the prevailing party in this motion, if any.8 The parties shall bear their own costs on appeal.
FRANSON, Acting P.J.
WE CONCUR:
SMITH, J.
DESANTOS, J.