Filed 8/28/20 Childs v. Dunn CA1/4

                  NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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ordered published for purposes of rule 8.1115.


          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      FIRST APPELLATE DISTRICT

                                                  DIVISION FOUR


 DERRICK CHILDS,
           Plaintiff and Appellant,
                                                                        A156699, A156775, A156777
 v.
 ALEXIS DUNN,                                                           (Alameda County
                                                                        Super. Ct. No. HF18918731)
           Defendant and Respondent.


         The matter before us is a consolidation of three appeals arising from
domestic violence restraining order proceedings between Derrick Childs and
Alexis Dunn. Childs appeals four orders from those proceedings: (1) the trial
court’s order refusing to set aside Dunn’s five-year restraining order against
Childs, (2) the trial court’s order refusing to set aside the dismissal of his
temporary restraining order against Dunn, (3) the trial court’s order denying
his second restraining order against Dunn, and (4) the trial court’s order
refusing to hold Dunn in contempt of court. Childs also argues that Dunn’s
five-year restraining order is not supported by substantial evidence. We
affirm the judgments.
                    FACTUAL AND PROCEDURAL BACKGROUND
         Dunn and Childs began a romantic relationship in mid-June of 2018.
Their relationship was short-lived. On August 29, 2018, Childs requested a


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domestic violence restraining order against Dunn. In his request, Childs
alleged that on August 28, 2018, Dunn punched and kicked him, stole his
phone, and threatened to have her brothers kill him. The court granted a
temporary restraining order against Dunn on August 30, 2018 and set a
hearing for a permanent restraining order.
       After the temporary restraining order issued but before the hearing,
Dunn allegedly violated the order by texting and calling Childs on several
occasions. She also allegedly attempted to visit Childs at his home on one
occasion.
       At the hearing to consider Childs’ restraining order on September 19,
2020, Dunn indicated she wished to file her own restraining order request
against Childs. The court reissued Childs’ temporary restraining order
against Dunn. Dunn subsequently requested and was granted her own
temporary restraining order against Childs. In her request, Dunn alleged
Childs had threatened her on multiple occasions and was physically abusive
to her on August 1, 2018. A hearing to consider both restraining orders was
set.
       On September 21, 2018, Childs requested the court hold Dunn in
contempt for violating his restraining order. The court denied the request on
October 26, 2018. Childs did not appeal this denial until March 12, 2019.
       Before the next hearing, Childs was charged with domestic violence
battery and making criminal threats based on his conduct towards Dunn in
August of 2018. A three-year criminal protective order protecting Dunn from
Childs was issued on October 3, 2018. For her part, Dunn was charged with
disorderly conduct and willful resistance of an officer, but the charges against
Dunn were later dismissed.




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      At an October 11, 2018 hearing to consider the competing restraining
orders, both parties chose not to testify and asserted their Fifth Amendment
right against self-incrimination because of the pending criminal charges. The
court opted to reissue both temporary restraining orders “to give [Childs and
Dunn] sometime to figure out what’s going on with the criminal case.” The
court did not want to force the parties “to pick between exercising your 5th
Amendment right to remain silent, and participating in the hearing” on the
civil restraining orders. The court set a hearing for December 17, 2018 to
consider the requests, and made clear the parties could ask for a further
continuance if necessary. Both Childs and Dunn agreed to attend the
December 17, 2018 hearing.
      Childs did not attend the December 17, 2018 hearing, at which the
court granted Dunn a five-year restraining order against Childs. The court
based its decision on evidence presented by Dunn, including “a text message
in which Mr. Childs makes some reference about a bounty on [Dunn’s] head,
and a photograph of [Childs] holding a firearm.” The court denied Childs’s
competing request for a permanent restraining order without prejudice, due
to his failure to appear. On that same day but after the hearing, Childs
arrived at the courtroom and realized what had transpired.
      On December 19, 2018, Childs filed a motion pursuant to Code of Civil
Procedure section 473, subdivision (b) (section 473(b)) to set aside the
restraining order granted to Dunn. Section 473(b) allows a court to set aside
a judgment based on a party’s mistake, inadvertence, surprise, or excusable
neglect. Childs did not raise any other arguments supporting his motion.
Childs also filed a request to reinstate his temporary restraining order
against Dunn. A hearing to consider Childs’ motions was held on January
22, 2019. Childs maintained his failure to attend the December hearing was



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a reasonable mistake or excusable neglect under section 473(b), stating he
“thought [the court] wasn’t going to hear [the restraining order cases] until
the criminal case was resolved.” The court found Childs’s “failure to [attend
the December 17 hearing] was [not] a reasonable mistake or excusable
neglect” under section 473(b), concluding Childs “had notice . . . [and] due
process . . . [but] chose not to come.” The court denied “the request to set
aside the five-year restraining order that was granted” for Dunn and
“decline[d] to exercise its discretion to reinstate [his] Temporary Restraining
Order.”
      On January 23, 2018, Childs requested a new domestic violence
restraining order against Dunn. This time the court denied Childs a
temporary domestic violence restraining order, and scheduled a hearing to
consider whether to grant a permanent restraining order.
      A hearing was held on March 7, 2019 to consider Childs’s new request
for a permanent restraining order. In support of his request, Childs provided
phone and text message records between himself and Dunn. In one text
exchange, Dunn told Childs she had secretly taken pictures of sexually
explicit material on Childs’ phone that she thought proved he was “gay . . . or
. . . bi,” and included the vague but menacing phrase, “[s]o try me.” Childs
responded saying he had placed a one-thousand-dollar “bounty on [her]
head.” Childs also presented evidence showing Dunn had messaged one of
his ex-girlfriend’s and inquired whether Childs was abusive to her. In
addition, Childs alleged Dunn violated the original restraining order against
her by attempting to contact him in November 2018. Lastly, Childs shared
several of the police reports Childs and Dunn had filed against one another.
The court found this evidence unconvincing, concluding Childs had “not met
his burden by a preponderance of evidence” that Dunn committed an act or



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acts of abuse and denying his request for a restraining order. The court
considered “credibility determinations made at previous hearings between
the two parties” in making its decision. The court also explained that Family
Code Section 6305 (section 6305) imposed a special burden before it could
impose a mutual restraining order in light of the existing five-year
restraining order protecting Dunn from Childs.
      Childs timely appealed (1) the trial court’s order refusing to set aside
Dunn’s five-year restraining order against Childs, (2) the trial court’s order
refusing to set aside the dismissal of his temporary restraining order against
Dunn, (3) the trial court’s order denying his second restraining order against
Dunn. Childs also attempts to appeal the trial court’s order refusing to hold
Dunn in contempt of court, but, as we will later explain, that appeal is
untimely. These appeals were consolidated into the case before us.
                                 DISCUSSION
      Dunn did not file a brief, so, we “decide the appeal on the record, the
opening brief, and any oral argument by” Childs and Dunn. (Cal. Rules of
Court, rule 8.220(a)(2), references to rules are to Rules of Court; see also Gou
v. Xiao (2014) 228 Cal.App.4th 812, 817, fn. 3 [court considered only
appellant’s materials where respondent did not file a responsive brief in
domestic violence restraining order case].)
I.    Domestic Violence Restraining Orders
      The Domestic Violence Prevention Act (DVPA) allows a court to issue a
restraining order “for the purpose of preventing a recurrence of domestic
violence and ensuring a period of separation of the persons involved, if an
affidavit . . . shows, to the satisfaction of the court, reasonable proof of a past
act or acts of abuse.” (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 421;
see Fam. Code, § 6300.) The issuance of a restraining order “requires a



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showing of past abuse by a preponderance of the evidence.” (In re Marriage
of Davila & Mejia (2018) 29 Cal.App.5th 220, 226 (Davila & Mejia).) Under
the DVPA, “abuse” includes intentionally or recklessly causing or attempting
to cause bodily injury to, attacking, striking, sexually assaulting, stalking,
threatening, harassing, making annoying telephone calls to, or disturbing the
peace of the other party. (Fam. Code, §§ 6203, 6320; see also Perez v. Torres-
Hernandez (2016) 1 Cal.App.5th 389, 396.) The court may issue an order
based solely on the affidavit or testimony of the person requesting the
restraining order. (Fam. Code, § 6300.)
      A court may issue an ex parte temporary restraining order on a
showing of good cause. (Fam. Code, § 6320.) Regardless of whether the court
grants or denies a temporary restraining order, the court must set a hearing
within 21 or 25 days to consider any restraining order application. (Fam.
Code, § 242.) At that hearing, the court has the discretion to issue a
restraining order lasting up to five years, which “may be renewed, upon the
request of a party, either for five years or permanently.” (Fam. Code, § 6345,
subd. (a).) A restraining order after hearing is colloquially known as a
“permanent” restraining order. (See, e.g., Loeffler v. Medina (2009) 174
Cal.App.4th 1495, 1499, 1503.)
      The issuance of mutual restraining orders under the DVPA is subject to
additional procedural requirements under section 6305. (Conness v. Satram
(2004) 122 Cal.App.4th 197, 200.) “As used in section 6305, the phrase
‘mutual order’ may refer to a single order restraining two opposing parties
from engaging in the acts of abuse . . . or two separate orders which together
accomplish the same result as a single order.” (Melissa G. v. Raymond M.
(2018) 27 Cal.App.5th 360, 368.) A court may not enter “a mutual order”
restraining the parties from further acts of abuse unless “[b]oth parties



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personally appear and each party presents written evidence of abuse or
domestic violence” and “[t]he court makes detailed findings of fact indicating
that both parties acted as a primary aggressor and that neither party acted
primarily in self-defense.” (Fam. Code, § 6305, subd. (a)(1), (2).) “[I]n
determining if both parties acted primarily as aggressors, the court shall
consider the provisions concerning dominant aggressors” set forth in Penal
Code Section 836, subdivision (c)(3). (Fam. Code, § 6305, subd. (b).) A
“dominant aggressor” is defined as “the person determined to be the most
significant, rather than the first, aggressor.” (Pen. Code, § 836, subd. (c)(3).)
II.   The trial court did not abuse its discretion in denying relief
      pursuant to section 473(b)
      Childs first argues the trial court abused its discretion in refusing to
set aside Dunn’s five-year restraining order against him, and in refusing to
set aside the dismissal of his temporary restraining order against Dunn.
Specifically, Childs contends the trial court abused its discretion in denying
him discretionary relief from default under section 473(b). He argues his
missing the December 17 hearing amounted to a reasonable mistake or
excusable neglect under section 473(b).
      Section 473(b) reads, “The court may, upon any terms as may be just,
relieve a party or his or her legal representative from a judgment, dismissal,
order, or other proceeding taken against him or her through his or her
mistake, inadvertence, surprise, or excusable neglect.” “ ‘It is the duty of
every party desiring to resist an action or to participate in a judicial
proceeding to take timely and adequate steps to retain counsel or to act in his
own person to avoid an undesirable judgment. Unless in arranging for his
defense he shows that he has exercised such reasonable diligence as a man of
ordinary prudence usually bestows upon important business, his motion for



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relief under [Code of Civil Procedure] section 473 will be denied.’ ” (Hearn v.
Howard (2009) 177 Cal.App.4th 1193, 1206 (Hearn).)
      We review a trial court’s denial of relief under this section for abuse of
discretion. (See Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488,
495.) “A motion to vacate a default and set aside judgment ([Code Civ. Proc.,]
§ 473) ‘is addressed to the sound discretion of the trial court, and in the
absence of a clear showing of abuse . . . the exercise of that discretion will not
be disturbed on appeal.’ [Citations.] Moreover, all presumptions will be
made in favor of the correctness of the order, and the burden of showing
abuse is on the appellant.” (Lint v. Chisholm (1981) 121 Cal.App.3d 615,
619–620.)
      Childs maintains the court “told the parties [the court] would not hear
the parties’ cases until their criminal matters had been resolved” at the
October 11, 2018 hearing. Childs claims he therefore believed the Court
would simply continue the restraining orders indefinitely, and he argues he
missed the December 17, 2018 hearing because he did not know of its
existence. The trial court said no such thing at the October hearing. The
court stated it would “trail the civil matter after the criminal case” for a few
months so Childs and Dunn did not have to sacrifice their Fifth Amendment
rights in pursuing their restraining orders. But the court made clear it would
not continue reissuing the restraining orders “forever” because the parties
needed “closure,” and set a hearing date on the restraining orders for
December 17, 2018. Childs replied in the affirmative when the court asked if
he could attend the December hearing. In addition, Childs was at the
courtroom on December 17, 2018, albeit after the hearing had already
concluded.




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       The record supports the notion Childs knew of the December hearing
but simply forgot to attend. The trial court found this failure did not rise to
the level of a reasonable mistake or excusable neglect under section 473(b).
We hold the trial court did not abuse its discretion in making this finding.
“ ‘Reasonable diligence’ ” requires an individual to attend scheduled judicial
proceedings on time, and Childs did not demonstrate such diligence. (Hearn,
supra, 177 Cal.App.4th at p. 1206.) “[T]o require relief in circumstances like
these would reward parties who ignore or flout the most basic rules governing
civil actions, resulting in delay and congestion of the courts, and would
undermine trial courts’ ability to conduct proceedings in a way that is fair,
efficient and orderly, and serves the interest of all litigants.” (McClain v.
Kissler (2019) 39 Cal.App.5th 399, 405.) We therefore conclude the trial court
did not abuse its discretion in refusing to set aside Dunn’s five-year
restraining order against him, or in refusing to set aside the dismissal of his
temporary restraining order against Dunn.
III.   The trial court did not abuse its discretion in refusing to issue a
       mutual restraining order against Dunn
       Childs also argues the trial court abused its discretion in refusing to
issue a second, mutual restraining order against Dunn at the March 7, 2019
hearing. Specifically, Childs maintains there is substantial evidence that
Dunn committed past acts of abuse against him and that she was a primary
aggressor in their relationship.
       We review an order granting or denying a domestic violence restraining
order for abuse of discretion. (In re Marriage of Nadkarni (2009) 173
Cal.App.4th 1483, 1495.) Accordingly, “[w]e resolve all factual conflicts and
questions of credibility in favor of the prevailing party and indulge in all
legitimate and reasonable inferences to uphold the finding of the trial court if



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it is supported by substantial evidence which is reasonable, credible and of
solid value.” (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.) “However,
‘[j]udicial discretion to grant or deny an application for a protective order is
not unfettered. The scope of discretion always resides in the particular law
being applied by the court.’ ” (S.M. v. E.P. (2010) 184 Cal.App.4th 1249,
1264–1265.) And the court must be careful to apply the law even-handedly,
recognizing that “the problem of domestic violence affects men as well” as
women. (In re Marriage of Brewster & Clevenger (2020) 45 Cal.App.5th 481,
507, fn. 18.)
      Childs alleges Dunn committed several acts of abuse against him. He
alleges Dunn “attacked him and took his cellphone” on the morning of August
29, 2018. He also alleges Dunn “harassed, annoyed, stalked and telephoned”
him after the issuance of the temporary restraining order against her on
August 29, 2018, and then made a “false accusation of Domestic Violence”
against him to the police. In support of these allegations, Childs presented
evidence of telephone calls and text messages between himself and Dunn,
including communications after the first restraining order was issued. Childs
also cites police reports and other court documents.
      The trial court found Childs’s evidence unconvincing, concluding Childs
did not meet his burden of showing evidence of past abuse by a
preponderance of the evidence. (See Davila & Mejia, supra, 29 Cal.App.5th
at p. 226.) The court also appeared to question Childs’ credibility. We agree
the evidence Childs provides is weak. The phone and text records do indicate
that Dunn violated the restraining order against her on multiple occasions,
but the most abusive of these communications was her text threatening “try
me.” That phrase is both vague and defensive, suggesting she will retaliate if
provoked, but not initiate harm. And even if Childs did show abuse, the



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evidence does not indicate Dunn was primarily an aggressor, as required for
mutual restraining orders under section 6305. (See J.J. v. M.F. (2014) 223
Cal.App.4th 968, 975.) In fact, the text message exchanges are substantial
evidence that Childs was the more significant aggressor in their relationship.
(See Pen. Code, § 836, subd. (c)(3).) In response to Dunn’s ambiguous threat
about his sexuality, Childs indicated he had placed a bounty on her head.
The other evidence presented also fails to establish Dunn was primarily an
aggressor. Therefore, the trial court did not abuse its discretion in denying
Childs a mutual restraining order against Dunn.
IV.   Substantial evidence supports the restraining Order Protecting
      Dunn
      Childs argues Dunn’s five-year restraining order against him is not
supported by substantial evidence. Although Childs did not raise this
argument in his motion to set aside the restraining order granted to Dunn,
we will consider it here. The trial court may issue a permanent restraining
order to prevent domestic violence if evidence shows, to the satisfaction of the
court, reasonable proof of a past act or acts of abuse (Fam. Code, § 6300), and
here, substantial evidence supports the trial court’s finding that Childs
committed such acts. Specifically, text messages where Childs states he had
placed a bounty on Dunn’s life constitute abuse, as they placed Dunn “in
reasonable apprehension of imminent serious bodily injury.” (Fam. Code,
§ 6203, subd. (a)(3).) Therefore, the trial court did not abuse its discretion in
granting Dunn a permanent restraining order.
V.    Childs’ appeal of the order denying his request to hold Dunn in
      contempt of court must be dismissed as untimely
      “[A] notice of appeal must be filed on or before . . . . [¶] (A) 60 days
after the superior court clerk serves on the party filing the notice of appeal a



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document entitled ‘Notice of Entry’ of judgment.” (Rule 8.104(a)(1).) Here,
the trial court clerk served on the parties a notice of entry of the order
denying Childs’s request to hold Dunn in contempt of court on October 26,
2018. Childs identified that order in his notice of appeal filed on March 12,
2019. That date is well more than 60 days after service of the notice of entry
of the order being appealed from. Thus, the appeal of that ruling is untimely,
and we dismiss it. (Rule 8.104(b).)
                                DISPOSITION
      The trial court’s order refusing to set aside Dunn’s five-year restraining
order against Childs is affirmed. The trial court’s order refusing to set aside
the dismissal of Childs’ temporary restraining order against Dunn and its
order denying Childs’ second restraining order against Dunn are also
affirmed. Childs’ appeal of the trial court’s order denying his request to hold
Dunn in contempt of court is dismissed as untimely. Dunn is awarded costs
on appeal.




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                                                  _________________________
                                                  TUCHER, J.


WE CONCUR:


_________________________
POLLAK, P. J.


_________________________
STREETER, J.




Childs v. Dunn (A156699, A156775, A156777)




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