Filed 6/29/20 Yost v. Forestiere CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

BAILEY YOST,

Plaintiff and Respondent,

v.

JULIE FORESTIERE,

Defendant and Appellant.

F078582

(Super. Ct. No. 15CECG00316)

OPINION

THE COURT*

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.

-ooOoo-

A grandmother appeals an order denying her request to modify the terms of a civil harassment restraining order restricting her contact with her granddaughter. The modification request was made pursuant to subdivision (j)(1) of Code of Civil Procedure section 527.6. The grandmother contends the trial court interpreted this statutory provision too narrowly in determining (1) the scope of its discretionary authority to modify a restraining order and (2) the evidence relevant to a modification request. We agree. The trial court, unaided by judicial precedent, interpreted section 527.6, subdivision (j)(1) 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 the modification request.

FACTS AND PROCEEDINGS

In May 2014, a daughter was born to respondent Bailey Yost (Mother) and Joseph Forestiere. Appellant Julie Forestiere (Grandmother) is Joseph’s mother and the girl’s paternal grandmother. During part of the pregnancy and for a short time after the child was born, Mother stayed at the paternal grandparent’s house with the condition that Joseph could not live at the residence during that time. The parties do not agree on the reason Mother moved from the residence and took her infant daughter with her.

In August 2014, after the move, Joseph filed a paternal rights petition against Mother in Fresno County Superior Court, which was assigned case No. 14CEFL04400. In January 2015, the family court entered an order allowing Joseph unsupervised visitation with the child. On January 22, 2015, Mother was served with the custody and visitation order entered by the family court. Within a week, Mother filed a request to modify the custody and visitation order.

In addition, Mother filed requests for civil harassment restraining orders against the paternal grandfather and Grandmother. The Fresno County Superior Court assigned the matters case Nos. 15CECG00315 and 15CECG00316, respectively. These superior court cases generated this appeal (case No. F078582) and an appeal by the grandfather (case No. F078580).

In March 2015, the trial court held a hearing on both of Mother’s requests for civil harassment restraining orders. On March 18, 2015, the court issued a civil harassment restraining order after hearing against each grandparent. The personal conduct orders prohibited the grandparents from contacting Mother or the child. The stay-away orders required the grandparents to keep at least 100 yards away from Mother and child. The court set March 18, 2020, as the expiration date for the orders.

Request to Modify

Approximately three years later, in February 2018, each grandparent filed a request to modify civil harassment restraining order on mandatory Judicial Council form CH-600 (new Jan. 1, 2018). They asked to have their granddaughter removed as a party protected by the restraining order or, alternatively, to be allowed contact with the child when supervised by Joseph. As grounds for the request, the grandparents argued the family court had implemented a graduated custody plan that, at the time of the requests, gave Joseph about 30 percent custody, which would increase to 50 percent on June 1, 2018. The grandparents argued the terms of the restraining order had created an increasing and unnecessary hardship on the entire family because Joseph was forced to choose between having them or his daughter present at family functions.

In April 2018, Mother filed a response to request to modify on mandatory Judicial Council form CH-620 (new Jan. 1, 2018). An attachment asserted Grandmother “had threatened to flee with my daughter which [Grandmother’s] own family member testified to at the contested hearing on the restraining order. [¶] [Grandmother], to this day, claims that she never made threats to take [my daughter] and that I would never see her again. [Grandmother] seems to forget that it was her own family who testified against her as to these statements made by [Grandmother].” Mother also asserted the grandparents had paid for Joseph’s attorney fees in the family court case and had used that proceeding to harass her.

After several continuances, the requests for modification of the restraining orders were heard on October 25, 2018. The trial court denied the modification requests, established a briefing schedule for Mother’s motion for attorney fees, and set January 9, 2019, as the hearing date on that motion. The minute order from the hearing stated: “The court finds defense has not provided sufficient basis for re-consideration.”

In December 2018, each grandparent filed a notice of appeal. In January 2019, they obtained a stay of proceedings and Mother’s motion for attorney fees was taken off calendar.

DISCUSSION

I. MOOTNESS

The restraining order expired on March 18, 2020. That event did not render this appeal moot because the motion for attorney fees is still pending in the trial court. Section 527.6, subdivision (s) grants the trial court the discretion authority to determine who is the “prevailing party” and award that party attorney fees. (Elster v. Friedman (1989) 211 Cal.App.3d 1439, 1443 [“determination of the prevailing party lies in the trial court’s sound discretion”].) Our determination of whether the trial court erred in denying Grandmother’s request to modify the restraining order will affect the trial court’s analysis of whether Mother is the prevailing party and whether to award her attorney fees. Therefore, we conclude Grandmother’s appeal of the denial of her modification request is not moot. (Carson Citizens for Reform v. Kawagoe (2009) 178 Cal.App.4th 357, 365 [appellate review of declaratory relief provided would determine propriety of attorney fee award and, thus, issues were not moot]; see Center for Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 880–881; Save Our Residential Environment v. City of West Hollywood (1992) 9 Cal.App.4th 1745, 1750–1751.)

II. MERITS OF THE APPEAL

Pursuant to section 14 of article VI of the California Constitution, an appellate court’s duties in deciding a cause include issuing a decision “in writing with reasons stated.” Our Supreme Court construed this provision to mean that an appellate court opinion must set forth “the ‘grounds’ or ‘principles’ upon which the justices concur in the judgment.” (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1262.) In related case No. F078580 (Bailey Yost v. Anthony Forestiere), this court resolved the legal issues that are presented in this appeal in a manner favorable to the grandparents. Our constitutional duty does not require us to repeat the discussion supporting those conclusions. It is sufficient for purposes of this opinion simply to restate those legal conclusions and then explain why the application of those principles requires the reversal of the order denying Grandmother’s modification request.

A. Applicable Legal Principles

First, the determination of a request to modify or terminate a civil harassment restraining order is committed to “the discretion of the court.” (§ 527.6, subd. (j)(1).)

Second, the trial court’s discretionary authority to modify or terminate a civil harassment restraining order includes, but is not limited to, the three grounds for modifying ordinary injunctions set forth in section 533.

Third, a trial court has the discretion to modify a restraining order when, after considering the relevant evidence presented, it determines there is no reasonable probability of future harassment. This discretion extends to modifying a specific term in a restraining order that deals with a particular threat of future harm when that threat no longer exists. Accordingly, the court’s discretionary authority allows it to eliminate or relax one restriction in the restraining order while leaving the other restrictions in place.

Fourth, the restrained party seeking modification on the ground that there is no longer a reasonable probability of future harm has the burden of proving this ground by a preponderance of the evidence. (See Evid. Code, §§ 115 [burden of proof], 500 [allocation of burden of proof].)

Fifth, when the ground for modification is the absence of a reasonable probability of a particular type of harassment, the evidence relevant to the evaluation of that ground is defined in part by the following principle: “ ‘[T]he determination of whether it is reasonably probable an unlawful act will [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 v. Stampolis (2016) 248 Cal.App.4th 484, 499 500, quoting Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 335, fn. 9.)

B. Trial Court’s View of Its Authority

Near the beginning of the hearing on the grandparent’s requests for modification, the court 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.” The March 2015 restraining orders had been issued by another judge. Counsel for Grandmother argued 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 stated that “because dad has equal footing, something that didn’t exist at the 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.” In response, the court asked: “[H]ow does that and 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 [restraining] orders. It’s nowhere in this file … and I think you’re asking me to do something that I can’t do.” Later, the trial court rejected Joseph’s increased custody, and its impact on the grandparent’s ability to attend family functions attended by the father and child, as a basis for modifying the terms of the restraining orders, stating “I don’t believe that those [circumstances] are relevant to this hearing.” As a result, the court denied all aspects of the modification requests.

C. Application of Legal Principles

The trial court’s statements of its reasons for denying the requests for modification demonstrated that its view of the discretionary authority granted by subdivision (j)(1) of section 527.6 was different from the five legal conclusions set forth in part II.A., ante.

Under those principles, the trial court had the discretion to relax or eliminate the 100-yard stay-away order as it pertained to the granddaughter if it found, by a preponderance of the evidence, that there was no longer a reasonable probability that Grandmother would be involved in an attempt to abduct the child or otherwise endanger her. Evidence relevant to assessing that probability included Joseph’s right to custody of the child at the time the threat to take the granddaughter was made and at the time of the modification hearing.

Consequently, the trial court’s decision reflects a misunderstanding of the full scope of its discretion. As a result, its order denying the modification request was “ ‘not an exercise of informed discretion and is subject to reversal.’ ” (Cooper, supra, 242 Cal.App.4th at p. 90.) Accordingly, it appears the only issues remaining in the trial court relate to Mother’s pending request for attorney fees. (See Disposition in related case No. F078580.)

DISPOSITION

The October 25, 2018, order denying the request to modify civil harassment restraining order is reversed. The parties shall bear their own costs on appeal.