Filed 3/24/16 Galvan v. Galvan CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



KALIA GALVAN,                                                       D067180

         Appellant,

         v.                                                         (Super. Ct. No. DV035555)

RAYMOND C. GALVAN,

         Respondent.


         APPEAL from an order of the Superior Court of San Diego County, Pamela M.

Parker, Judge. Affirmed.



         SDFJC Foundation Legal Center, Alexia Peters and David Q. Meyer for

Appellant.

         No appearance for Respondent.
                                    INTRODUCTION

       Kalia Galvan appeals an order modifying a restraining order she obtained against

her father, Raymond C. Galvan in August 2012. Kalia1 contends the family court abused

its discretion in modifying the restraining order because it applied the wrong legal

standard. We disagree and conclude the family court acted within its discretion to

modify the restraining order pursuant to Code of Civil Procedure section 533.2 We,

therefore, affirm the order amending the restraining order.

                  FACTUAL AND PROCEDURAL BACKGROUND

                                             A

       By way of background, Kalia filed a request for a domestic violence restraining

order against Raymond in August 2012 to protect herself, her brother (then age 15), and

her mother. In support of her request, she submitted a declaration stating there had been

two restraining orders issued against Raymond following instances of domestic violence

against her brother and her. A one-year restraining order was issued in 2005 after

Raymond attacked Kalia's brother and she tried to defend him. A three-year restraining

order was issued in 2008 after an incident in which Raymond threw Kalia's brother across

a garage and then grabbed Kalia by the neck and lifted her up against a wall until Kalia's

mother slammed into Raymond.



1       Because the parties share a surname, we refer to them by their first names for
clarity. No disrespect is intended.

2      Further statutory references are to the Code of Civil Procedure unless otherwise
indicated.
                                             2
       Kalia was surprised and became scared when she saw Raymond driving down her

street in July 2012. She made a U-turn and followed him to a parking lot where they

talked for over two hours. When she asked why he was there, he told her he was making

sure they were doing well and he was "checking up" on them. Raymond told her "[t]hey

were his kids and that there was no hiding from him." He said he knew the hotel where

she, her mother, and her brother stayed when they were hiding in 2005. He said he

watched them move into their current home in 2008. He said he rented a car and parked

in front of their house. He also watched them from the park across the street from their

house. During the meeting, Raymond inquired about their dogs. Kalia stated this made

her feel that Raymond would not leave them alone. She stated she was scared for her

safety as well as for the safety of her brother and mother.

       Raymond filed a response stating no restraining order was in effect when he met

with Kalia in July 2012. He admitted he wanted to reconnect with his children.

However, he denied having any contact with his children or their mother for over five

years and denied stalking or harassing them. He submitted evidence of an exchange of

social media messages between Kalia and Raymond's girlfriend about the possibility of

reconnecting with Raymond.

       The family court issued a five-year restraining order on August 27, 2012, ordering

Raymond to stay more than 100 yards away from Kalia, her brother and their mother as

well as from Kalia's home, the work locations for Kalia and her mother, and the park

across the street from their home.



                                             3
                                             B

       Two years later, in August 2014 Raymond filed a request for modification of the

restraining order requesting a court order to allow him to make certain deliveries to

remain employed. He was employed by Bimbo Bakeries for 16 years and obtained a new

route in March 2014. He was making a delivery to a store on his route when his ex-wife

came into the bread aisle of the store and started yelling at him to leave. The police were

called and Kalia arrived with a copy of the restraining order. Raymond stated he needed

"the court to verify that I have a right to work without any of them coming into the store

after seeing my truck parked there causing me trouble with my employers."

       Kalia opposed the motion contending there was no basis under section 533 to

modify the restraining order because there was no material change in facts to justify

modification and a modification was not necessary to serve the ends of justice. She

argued Raymond intentionally bid on the new route to be near her and her family.

       At the hearing, Raymond testified the route became available six months earlier

and it was a good opportunity because the route offered a higher commission than either

the route he was driving before or other routes available at the same time. Raymond

stated he did not drive past their home after he started the new route. Instead, he turned

two blocks away from the home and went through a residential neighborhood to make his

delivery at the nearby store. He explained he works every day from 5:30 a.m. until 1:30

p.m. except Wednesdays and Sundays. The difference in pay was approximately $150

per week. There were eight or 10 routes that offered similar commission, but those

routes were not available at the time.

                                             4
       Raymond admitted he missed his children and wanted to rekindle a relationship

with them in 2012 before the latest restraining order issued. He did drive by their house

after the expiration of the prior restraining order in the hopes of seeing them. When he

saw Kalia, he waved at her. She followed him, approached his truck, and they spoke for

two and a half hours, which he thought was nice. He stated he was surprised to receive

the restraining order a few weeks later.

       Kalia testified she talked to Raymond in 2012 because she wanted to know why he

was in the area. She stated he made disturbing remarks during their conversation about

watching them in the past from parked vehicles and attempting to go to her places of

work. She stated Raymond abused her and her brother since they were children and they

had multiple restraining orders against him. She had mixed emotions during the

conversation, but the more she thought about what he knew about her life the more

unsafe she felt. When asked if there had been any incidents since Raymond took the new

route, Kalia stated she had seen him once or twice on the road before the incident where

her mother saw him in the store.

       After considering the evidence and arguments of counsel, the court issued a ruling

requiring Raymond to provide the protected parties with updated information regarding

his delivery route details including the dates and times of his delivery schedule. The

court advised the protected parties not to intentionally go to those places during his

delivery schedule and, if they found themselves in the same parking lot, to "walk away

from each other, if it is possible." The court encouraged all parties "to use their common

sense."

                                             5
       The attachment to the amended restraining order stated, "It is NOT a violation of

the Restraining Order to have a truck route that is in the same neighborhood as the

Protected Parties. [¶] [Raymond] shall keep his route updated at all times. (Current

schedule attached hereto) [¶] Protected Parties will not shop at the listed stores during his

work schedule. [¶] ALL PARTIES will use common sense when they are inadvertently

at the same public place. The last to arrive should leave. [¶] [Raymond] shall not drive

down or park on the Protected Parties['] Street."

                                        DISCUSSION

                                               I

       As with an order granting or denying injunctive relief, we review an order granting

a motion to amend a restraining order under the Domestic Violence Prevention Act (Fam.

Code, § 6200 et seq.) for abuse of discretion. (S.M. v. E.P. (2010) 184 Cal.App.4th 1249,

1264; Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1504-1505 (Loeffler).) " 'The

appropriate test for abuse of discretion is whether 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.' "

(Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.) "To the extent that we are called

upon to review the trial court's factual findings, we apply a substantial evidence standard

of review." (Loeffler, supra, at p. 1505.)

                                               II

       Section 533 provides, "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

                                               6
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." Since a restrained party seeking to modify or

dissolve a domestic violence restraining order is essentially seeking to modify or dissolve

an injunction, "the burden is on the restrained party to show by a preponderance of the

evidence that one of the circumstances set forth in [section 533] is present and justifies a

[modification or] termination of the restraining order." (Loeffler, supra, 174 Cal.App.4th

at p. 1504.)

       Kalia contends the order amending the restraining order must be reversed because

the family court did not apply the legal standards required by section 533 in determining

whether to grant Raymond's request for modification of the restraining order. We do not

agree the court applied the wrong legal standard. However, even if we were to assume

the court did not apply the appropriate standard because it did not expressly identify

section 533, " '[w]e do not review the trial court's reasoning, but rather its ruling. A trial

court's order is affirmed if correct on any theory, even if the trail court's reasoning was

not correct.' [Citation.] Moreover, to the extent the trial court erred in applying the

wrong standard, that error is harmless because …, [based on implied findings,] we are

able to apply to the standard set forth in [section 533] to determine that, had the trial court

applied the correct standard, it would have reached the same result." (Loeffler, supra,

174 Cal.App.4th at p. 1504, fn. 11.) As a general rule, " 'we must review the trial court's



                                               7
exercise of discretion based on implied findings that are supported by substantial

evidence.' " (Fair v. Bakhtiari (2011) 195 Cal.App.4th 1135, 1148-1149.)

       In this case, Raymond requested an order clarifying or modifying the restraining

order to allow him to be in a public place and to do his job "without having to leave just

because they [choose] to walk through the door." The court examined Raymond about

when and why he decided to change routes to this particular route as well as the dates and

times he makes his deliveries. Raymond testified this route became available recently

and offered a higher commission than his previous route. He stated other routes offering

similar commissions were not available at the time. Kalia offered no evidence to dispute

this evidence and admitted there was no way to prove he changed routes to be near the

protected parties as opposed to making a legitimate economic choice. Therefore, there is

substantial evidence to support the court's exercise of discretion to modify the restraining

order based upon an implied finding of changed factual circumstances.

       The court also considered and weighed the competing interests of the parties

stating the issue was "to what extent can you really restrict someone's freedom of

movement and freedom to work and so forth, which are legitimate concerns." The court

stated, "protective orders are two-way streets. … Both parties have to take actions to

protect themselves." The court observed an order requiring Raymond to disclose where

he would be during certain hours allowed him to do his work while not endangering the

protected parties. The protected parties would know not to do their shopping during

those hours or to send a nonprotected party, if necessary. The court also noted a

protected party who inadvertently sees Raymond loading shelves while performing his

                                             8
job should use common sense and stay away from him. "Don't make contact and say

you're here. You shouldn't be here. That's an explosive situation. That's inviting a

problem. Just turn around and walk out." The court asked Raymond to confirm he did

not drive past the protected parties' home on his new route and his schedule did not allow

him to stop near their house for periods of time.

       In making its ruling, the court stated, "[t]he purpose of the restraining order is not

to prevent [Raymond] from earning a living … . [¶] The purpose is to keep yourself safe.

… All parties have an obligation to do that. [¶] … For the sake of keeping the peace

here, I think it's important to clarify the orders of the court." The court's amendment to

the restraining order clarifies it is not a violation of the restraining order for Raymond to

have a route that takes him into the protected parties neighborhood, but requires him to

provide to the protected parties with information regarding where and when he will be

making deliveries. It advises the protected parties to avoid those stores during those time

frames. It prohibits Raymond from driving down or parking on the protected parties'

street. It advises all parties to use common sense if they encounter one another in a

public space. The record as a whole supports an implied finding the court considered

modification of the restraining order was necessary to serve the ends of justice. The trial

court did not abuse its discretion in modifying the restraining order.




                                              9
                                     DISPOSITION

      The order amending the August 27, 2012, restraining order is affirmed.




                                                                     MCCONNELL, P. J.

WE CONCUR:


MCDONALD, J.


PRAGER, J.*




*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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