Filed 7/2/20 Dauterive v. Wang CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

MITCHELL DAUTERIVE,

Plaintiff and Respondent,

v.

YUAN WANG,

Defendant and Appellant.

B291604

(Los Angeles County

Super. Ct. No. 17VEFL00297)

APPEAL from an order of the Superior Court for Los Angeles County, Hank M. Goldberg, Judge. Affirmed.

John L. Dodd & Associates, Benjamin Ekenes and John L. Dodd for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Yuan Wang appeals from a domestic violence restraining order entered against her under the Domestic Violence Prevention Act (the DVPA, Fam. Code, § 6200 et seq.). She contends the trial court misapplied the law by concluding it could issue the restraining order regardless whether it found there was a probability that Wang would commit future abuse against her husband, Mitchell Dauterive. Under the plain language of the applicable statute, however, such a finding is not required. Accordingly, we affirm the order.

BACKGROUND

Wang and Dauterive married in December 2014 and separated on May 26, 2017. On July 10, 2017, Dauterive filed an ex parte request for a domestic violence restraining order against Wang. In his request, Dauterive listed 13 incidents in which he alleged Wang engaged in domestic violence against him; the first incident took place in March 2013, and the last occurred on May 29, 2017. Because Wang raises only the legal issue whether the trial court was required to find a probability that she would commit incidents of abuse in the future, we need not describe the incidents in detail. Suffice to say that the list includes incidents in which Wang allegedly punched, slapped, and/or scratched Dauterive, ripped his shirt, threatened to go to the human resources department at his work and get him fired, and threatened to kill Dauterive and herself. The list also included as an incident that Wang purchased a handgun despite Dauterive’s objections to having a firearm in the home.

On the day the ex parte request was filed, the trial court (Judge Alicia Y. Blanco, presiding) issued a temporary restraining order against Wang, and set a hearing for a permanent restraining order. The hearing was continued many times, and finally was heard seven months later, over three days in February 2018, before Judge Hank M. Goldberg.

At the hearing, Dauterive testified about the incidents he had listed, describing what had happened in each. Although he admitted that a couple of the statements in his ex parte request were not entirely accurate, he confirmed most of what he had set forth regarding the past incidents. Wang also testified and, for the most part, denied being abusive toward Dauterive; instead, she said that Dauterive was abusive toward her. The remaining witnesses were (1) Dauterive’s friend, Jennifer Webb-Bernstein, who testified about the incident that took place on May 29, 2017, during which Wang came to Webb-Bernstein’s home (Dauterive had stayed at Webb-Bernstein and her husband’s home after he separated from Wang) and refused to leave until the police were called; (2) two of the police officers who responded to Webb-Bernstein’s 911 call; and (3) Dauterive’s therapist, who testified that Dauterive began seeing him in April 2016, and began talking to him about Wang’s abusive behavior early on in therapy.

The trial court did not find credible that Wang threatened to shoot Dauterive, and found it could not determine whether it was Wang or Dauterive who committed the violence with respect to another incident that Dauterive had described. However, the court found every other allegation in the request for restraining order was true, that those allegations described abuse as defined in section 6203, and that it was behavior that could be enjoined under section 6320. The court noted that, in determining whether to issue a restraining order, it was required to consider whether failing to issue the order might jeopardize Dauterive’s safety, but that the court was not required to find a probability that Wang will commit future abuse. Nevertheless, the court found “there is some risk that there might be a danger of further abuse in that [Wang] has taken no responsibility and has disclaimed any responsibility for what has happened.” Therefore, the court issued the requested restraining order, to expire in two years, which the court determined was sufficient time for Dauterive and Wang to get a divorce and move on with their separate lives.

The restraining order was entered on February 16, 2018, with an expiration date of February 16, 2020. The court gave a copy of the signed order to Wang on the day it was entered. Wang timely filed a notice of appeal from the order.

DISCUSSION

Wang contends the trial court misapplied the law in issuing the restraining order when it concluded it was not required to find a probability of future abuse, and thus failed to find that Dauterive was in reasonable apprehension of future abuse. We disagree.

Part 4 of the DVPA (§§ 6300 through 6389) governs the issuance of protective orders and other domestic violence prevention orders. Section 6300 provides, in relevant part: “An order may be issued under this part to restrain any person for the purpose specified in Section 6220, if an affidavit or testimony and any additional information provided to the court pursuant to Section 6306, shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse. The court may issue an order under this part based solely on the affidavit or testimony of the person requesting the restraining order.” (§ 6300, subd. (a).)

Wang makes three arguments in contending that the issuance of a protective order under section 6300 requires a finding of a probability of future abuse. None has merit.

First, she seizes upon the provision in that statute stating that a protective order may be issued to restrain a person “for the purpose specified in Section 6220.” Section 6220 states: “The purpose of this division [i.e., the DVPA] is 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.” She argues that, because section 6220 states that the purpose of the DVPA is to prevent acts of domestic violence, section 6300’s reference to section 6220 necessarily means that a domestic violence restraining order may be issued only for purpose of preventing future abuse. Thus, Wang reasons, the trial court must find some probability of future abuse before it can issue a restraining order. Her reasoning is faulty. By specifically stating in section 6300 that a protective order may issue upon satisfactory proof of past acts of abuse, the Legislature necessarily has determined that a demonstration that future abuse is likely is not necessary to satisfy the purpose expressed in section 6220.

Next, Wang relies upon “general principles concerning a prohibitory injunction” in arguing that proof of a probability of future abuse is required for issuance of a domestic violence restraining order. Observing that a domestic violence restraining order is an injunction, she quotes Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228 (Huntindon) for the principle that “‘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.’” (Id. at p. 1266.) The principle articulated in Huntingdon does not apply here, however, because that case involved an injunction issued under Code of Civil Procedure section 525 et seq., which governs general civil injunctions. By enacting section 6300 the Legislature has determined that in the case of domestic violence, all that is required for issuance of a restraining order is evidence of past abuse. (See Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334-335 [standards for issuing restraining order under general injunction statutes do not apply to orders under the DVPA].)

Finally, Wang cites to two cases in which the appellate court held that a contested request for renewal of a domestic violence restraining order may be granted only if trial court determines that the party seeking protection entertains a reasonable apprehension of future abuse. (Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 397 (Perez); Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1290 (Ritchie).) In those cases, however, the appellate courts were not reviewing the issuance of restraining orders under section 6300. Rather, the courts were reviewing the renewal (or denial of renewal) of such an order, which is governed by section 6345.

Unlike section 6300, section 6345 does not include a provision stating what showing is sufficient for renewal of a restraining order. Instead, section 6345 states that a domestic violence restraining order “may be renewed, upon the request of a party, either for five years or permanently, without a showing of further abuse since the issuance of the original order.” (§ 6345, subd. (a).) The court in Ritchie observed that because section 6345 provides that a trial court “may” (not “shall”) renew a domestic violence protective order in the exercise of its discretion, the Legislature must have intended that exercise of discretion to “require[] an inquiry beyond whether the protected party requested a renewal and entertains a subjective desire the protective order continue.” (Ritchie, supra, 115 Cal.App.4th at p. 1284.) The court looked to the legislative purpose of the DVPA to determine what that inquiry should be, and concluded that “in contested cases, a court is only justified in ordering an extension of such an order where it finds to do so will advance the legislative purpose of preventing future abuse. This means it must find evidence there is some reasonable risk, at least, such abuse will occur sometime in the future if the protective order is not renewed.” (Id. at p. 1287.)

This reasoning does not apply to the issuance of a domestic violence restraining order, because section 6300 expressly states what proof is required. (See Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 783 (Nevarez) [appellant improperly relied upon Ritchie in challenging issuance of DVPA restraining order because Ritchie court addressed the requirements for renewal under section 6345 rather than issuance under section 6300].) Indeed, we have found no reported appellate decisions involving the issuance of a restraining order under section 6300 that have followed Ritchie and held that the issuance of such an order requires evidence demonstrating a probability of future abuse. Rather, all of the reported cases addressing the issue have held that the language of section 6300 governs, and requires only a showing of past abuse. (E.g., Nakamura v. Parker, supra, 156 Cal.App.4th at p. 334 [“A trial court is vested with discretion to issue a protective order under the DVPA simply on the basis of an affidavit showing past abuse”]; Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 823 [same] (Rodriquez).) In fact, in Rodriguez, Division Seven of this Appellate District—the same court that decided Ritchie—reversed a trial court’s denial of a restraining order under section 6300, finding the trial court erred by refusing to issue the order based on the absence of a probability of future abuse. (Rodriguez, supra, 243 Cal.App.4th at p. 823, citing Nakamura, supra, 156 Cal.App.4th at p. 334 and Nevarez, supra, 227 Cal.App.4th 774.)

Because the trial court in this case found, supported by substantial evidence, that Wang had committed several acts of abuse against Dauterive—which finding Wang does not challenge on appeal—we conclude the court did not abuse its discretion in issuing the protective order under section 6300.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

MANELLA, P. J.

COLLINS, J.