Filed 1/9/14 Certified for publication 2/5/14 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                              DIVISION EIGHT


J.J.,                                                            B246401

         Plaintiff and Appellant,                                (Los Angeles County
                                                                 Super. Ct. No. BF 040618)
         v.

M.F.,

         Defendant and Respondent.




         APPEAL from an order of the Superior Court of Los Angeles County, James D.
Endman, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed in part;
reversed in part.


         Legal Aid Foundation of Los Angeles, Ana M. Storey, Ji-Lan Zang; and
Amanda M. Jancu for Plaintiff and Appellant.


         No appearance for Defendant and Respondent.
       The trial court issued a three-year mutual restraining order against both J.J. and
M.F., pursuant to the Domestic Violence Prevention Act (DVPA). (Fam. Code, § 6200 et
seq.)1 J.J. appeals. We reverse that portion of the mutual restraining order against J.J.
but otherwise affirm.
                               FACTS AND PROCEDURE
1. Initial Restraining Order
       J.J. first applied for a domestic violence restraining order against M.F. in
September 2011. J.J. sought protection for herself and the parties’ son, who was then two
years old. In support of her application, she explained the following. She and M.F.
started dating in December 2007 and began cohabitating in April 2009. M.F. was first
physically violent with her when she was about seven months pregnant. They argued
over something insignificant, and he pushed her to the ground. She was able to break her
fall with her hand and avoid landing on her stomach. On another occasion, after their son
was born, she told M.F. she was going to stay with her mother for a week to get help with
taking care of the baby. M.F. became angry and pushed her out of the car, leaving her
alone in Compton. He choked her many times during their relationship and initiated
many arguments with her in front of their son. She moved out of their shared home in
June 2010 when he slapped and kicked her and threw her against a glass door. The glass
door cracked, and she had a cut on her back, scratches on her chest, and marks on her
throat from where he choked her.
       Around September 2011, M.F. repeatedly came to J.J.’s apartment and demanded
that she hand over their son. He also sent his friends to her apartment looking for her.
M.F. told her he was going to get joint custody of their son so he would not have to pay
child support. Beginning around August 3, 2011, he sent threatening text messages to
her, saying, among other things: “When I see you I’m going to f--- you up”; “You’re a
stupid b----, you’re going to suffer”; “I’m going to get my way one way or the other. I’m


1      Further undesignated statutory references are to the Family Code.



                                              2
going to f--- you up”; and “I’m going to hurt your money income. Joint custody means
no child support and welfare.” He had been sending her messages of this nature up to the
night before she applied for the restraining order. Approximately two days before she
filed her application, she and her son moved to a confidential location. The court entered
a temporary restraining order (TRO), and after a hearing, the court issued the requested
three-year restraining order on September 28, 2011.
2. Motion to Set Aside Restraining Order and Attempt to Vacate Set Aside Order
       In January 2012, M.F. filed a motion to set aside the restraining order on the
ground he did not have notice and an opportunity to respond to J.J.’s application. He also
asserted he had never caused or threatened harm to J.J. J.J. did not appear at the hearing
on the motion to set aside, when the court granted the motion.
       In September 2012, J.J. applied ex parte to vacate the order setting aside the
restraining order. She stated she had never received notice of the motion to set aside and
did not discover her restraining order was ineffective until September 2012. She also
explained she did not give M.F. notice of her application for a restraining order until after
the court had entered the TRO. Once the court did, however, she personally served him
with the TRO, her application, and notice of the hearing. On the other hand, the address
he listed for her on his proof of service for the motion to set aside was not her address --
it was the address for the superior court on Commonwealth Avenue. Hence, she never
received notice of the motion. She only discovered the court had set aside her restraining
order because M.F. went to J.J.’s mother’s house while J.J. was at work and tried to take
their son from the house, and her cousin, who was babysitting their son, called the police.
When she told the police M.F. was violating a restraining order by trying to take their
son, the police checked their system and told her there was no restraining order. Given
that M.F. had shown up at her mother’s house and tried to take their son, she said she was
“even more terrified” of what he would do. He had not shown any interest in visiting
their son when her mother tried to arrange visitation, and she believed the attempt to take
their son was meant to frighten and harass her.



                                              3
        The court did not grant J.J. ex parte relief but set the matter for hearing in October
2012.
3. Application for Second Restraining Order and Court’s Entry of Mutual Restraining
Order
a. J.J.’s Evidence
        In the meantime, J.J. filed a second ex parte application for a restraining order,
with notice to M.F., because of a recent incident that occurred on October 7, 2012. On
that date, M.F. brought their son to J.J.’s grandparents’ house after a visit. Their
visitation exchanges occurred at her grandparents’ or her mother’s house because she has
kept her address confidential. M.F. forgot to bring their son’s only warm jacket back
when he dropped off the boy. At the time, it was cold and she needed the jacket for their
son at night and when she took him to daycare in the mornings. Their son was also sick
with a cold. Her grandmother called M.F. and asked him to bring the jacket. M.F. said
he would bring it the next day, and when her grandmother explained why she needed the
jacket that night, M.F. hung up the phone on her. J.J. then called M.F.’s mother, who
said she would “take care of it” when J.J. explained why she needed the jacket that night.
A few minutes later, M.F. called and told her if their son needed a jacket, she should go
get one, and he hung up on her. J.J. called M.F.’s mother again, but she told J.J. to stop
calling, even when J.J. offered to come pick up the jacket herself.
        J.J. decided to leave her grandmother’s at approximately 9:30 p.m., after going
back and forth with M.F. and his mother. As she was walking to her car with their son,
M.F. approached her with the jacket. She took the jacket and tried to get into her car, but
M.F. had parked behind her and blocked her from leaving. He approached her and
yelled, “I want my son! Give me my son!” He started to try to take their son from her
arms and began yelling at her. Their son looked confused and started crying, and she
pushed M.F. and screamed at him to get away from her. M.F. grabbed her by the neck
while his wife jumped out of their car and punched J.J. in the face. His wife also took off
her shoe and hit J.J. in the face with it, and M.F. continued choking her. J.J.’s
grandparents and their neighbors eventually intervened and forced M.F. and his wife to


                                               4
leave. J.J. called the police, who took J.J.’s statement and also took M.F.’s wife’s shoe,
which she had left behind. A declaration from J.J.’s grandmother was consistent with
J.J.’s account of what happened on October 7, 2012.
       After explaining this October 2012 incident, J.J. recounted the same prior
incidents of violence she had used in support of her September 2011 application for a
restraining order. Further, J.J. explained she had always been their son’s primary
caretaker, and he had always lived with her. In December 2010, the court had granted
her sole legal and physical custody with alternating weekend visits for M.F. J.J. said
M.F. rarely exercised his right to visit their son; he visited with their son only five times
in 2010 and approximately every three months in 2011. When their son was present
during the latest incident, she said he seemed terrified. He was crying, screaming, and
jumping up and down as he saw M.F. and his wife hit and strangle J.J. He had been
reenacting the incident since then with his stuffed animals and telling people that “his
daddy hit his mommy.” J.J. expressed her concern about how the incident was affecting
their son because it seemed to remain fresh in his mind, whereas with prior incidents, he
was much younger and she did not think he was fully aware of what was occurring. For
these reasons, she was asking the court to order supervised visits in a public place. Her
mother was willing to supervise the visits. She also asked the court to order that all
visitation be arranged through her mother or other family members so that she was not
involved in the visits or exchanges.
b. M.F.’s Evidence
       On November 6, 2012, M.F. filed a response to J.J.’s application and served her
with it. In his supporting declaration, he explained that J.J. called him and his mother and
was “cursing and yelling” at them about the jacket, so he finally decided to take it to J.J.
that night, even though he had already told her he would take it the next morning. He
said his mother had over 20 missed calls on her cell phone from J.J. because his mother
refused to answer her calls after J.J. yelled at them. He denied having any physical
contact with J.J. on October 7 and said J.J. instead attacked his wife, and he only served
as a physical barrier between the two women at one or two points. He tried to give his


                                              5
son a kiss goodbye, but J.J. yelled at him and snatched their son away from him. It was
after this that J.J. went to his car and attacked his wife. J.J.’s grandparents had to pull her
away from his wife. He thought J.J. and her grandmother were lying because they
wanted to keep him away from his son, and J.J. had been withholding their son from him
ever since he married in May 2011. M.F.’s wife also filed a declaration stating J.J. had
attacked her on October 7. M.F.’s response to the application for a restraining order did
not request a restraining order against J.J.
c. Hearing and Statement of Decision
       The court heard the matter on the same morning M.F. filed and served his
response and the following morning. J.J., M.F., and J.J.’s grandmother testified
consistent with their written declarations. The court characterized the October 7, 2012
incident as “mutual combat” or a “mutual altercation,” and noted: “[S]o the court will
indicate that according to [J.J.], she indicated she pushed [M.F.] as he was approaching
her. She also, according to [M.F.], was harassing him telephonically over the jacket,
making numerous phone calls regarding that in a harassing fashion.” The court entered a
mutual restraining order against the parties.
       The court’s statement of decision found M.F. had a history of abusing J.J., and
specifically, during past incidents he had pushed J.J. out of a car, pushed her through a
glass door, and sent her several threatening text messages. The court acknowledged the
parties had different accounts of what occurred after M.F. returned the jacket and
recounted the statements of the witnesses. The court found M.F. committed acts of
violence against J.J. by choking and dragging her and he intentionally or recklessly
caused or attempted to cause bodily injury to her. At the same time, the court explained:
“With regards to the mutual restraining order, which was not requested by [M.F.] but was
raised by the court, the court found that there was aggression on the part of both parties.
[J.J.] harassed [M.F.] by calling him several times to have the child’s jacket returned.
[J.J.] also committed the first physical act, as she testified that she pushed [M.F.] away as
he approached her and tried to snatch the child. The court found that both parties acted
with aggression, which was interspersed with acts of defense, but that neither party


                                                6
retreated. The court found that such use of defense without an attempt to retreat is not an
excuse for domestic violence. Therefore, the court issued mutual restraining orders
against both parties.”
       J.J. filed a timely notice of appeal.2
                                       DISCUSSION
       J.J. contends the court erred in issuing a restraining order against her as part of the
mutual restraining order. She argues the court abused its discretion because the statutory
requirements for the issuance of a mutual restraining order were not met, and further, the
court’s sua sponte issuance of the order violated her due process rights. We agree
substantial evidence did not support the issuance of the restraining order against her and
reverse on that basis. We need not reach her remaining due process argument.
       We review the court’s issuance of a restraining order under the DVPA for abuse of
discretion. (S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1264.) “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, i.e., in
the “‘legal principles governing the subject of [the] action . . . .’”’” (Id. at pp. 1264-
1265.) We review the court’s factual findings supporting the mutual restraining order for
substantial evidence. (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822.)
       Under the DVPA, a court may issue an order “with or without notice, to restrain
any person for the purpose of preventing a recurrence of domestic violence and ensuring
a period of separation of the persons involved, if an affidavit or, if necessary, an affidavit
and any additional information . . . shows, to the satisfaction of the court, reasonable
proof of a past act or acts of abuse.” (§ 6300.) “California law regulates the issuance of
mutual restraining orders under the DVPA by subjecting them to additional procedural
requirements. (§ 6305.)” (Conness v. Satram (2004) 122 Cal.App.4th 197, 200.)

2      M.F. has not filed a respondent’s brief. California Rules of Court, rule 8.220,
subdivision (a)(2), provides that in such circumstances, “the court may decide the appeal
on the record, the opening brief, and any oral argument by the appellant.”



                                                7
Section 6305 provides: “The court may not issue a mutual order enjoining the parties
from specific acts of abuse described in Section 6320 (a) unless both parties personally
appear and each party presents written evidence of abuse or domestic violence and (b) the
court makes detailed findings of fact indicating that both parties acted primarily as
aggressors and that neither party acted primarily in self-defense.” (Italics added.)
       Here, the court’s factual findings at the hearing and in its statement of decision
indicate that J.J. was both acting primarily as an aggressor and not acting primarily in
self-defense (§ 6305) because she pushed M.F. before he touched her and she was
“harassing” him with phone calls about their son’s jacket. Substantial evidence does not
support these findings. According to M.F.’s evidence, J.J. never touched him. While J.J.
said she pushed M.F. away from her when he came at her and their son, this was the only
time she acted against him. The rest of the altercation involved, as the court found, M.F.
choking and dragging her. The single act of pushing M.F. away does not support a
finding that she acted primarily as an aggressor, especially in view of M.F.’s history of
abuse against her. He had pushed her out of a car, pushed her through a glass door, and
sent her threatening text messages saying he was going to “f---” her up, among other
things -- acts on which the court had based its previous restraining order against M.F.
       Under these circumstances, the evidence shows J.J. was acting primarily in self-
defense and not primarily as an aggressor. Although the Family Code does not define
self-defense, the Civil Code states that “[a]ny necessary force may be used to protect
from wrongful injury the person or property of oneself, or of a . . . child.” (Civ. Code,
§ 50.) In a suit for assault and battery, the defendant is not liable if that defendant
reasonably believed, in view of all the circumstances of the case, that the plaintiff was
going to harm him or her and the defendant used only the amount of force reasonably
necessary to protect himself or herself. (Vaughn v. Jonas (1948) 31 Cal.2d 586, 600;
CACI No. 1304.) In this case, M.F. had already returned their son’s jacket to J.J. and had
no reason to approach her other than to intimidate her. Emotions were already running
high because of the dispute about the jacket. Given this dispute, his history of physical
abuse, and his threats to harm her, she reasonably believed he might do her harm when he


                                               8
came at her and yelled at her to hand over their son. The force she used to push him
away was not excessive, as neither he nor she said he was harmed by the push.
Substantial evidence did not support a finding that J.J. acted primarily as an aggressor
and not in self-defense when she pushed M.F.
       Nor did J.J.’s phone calls about the jacket support a finding that she was acting
primarily as an aggressor. These calls were not the type of conduct that may be enjoined
under the DVPA. In pertinent part, the DVPA provides the court may issue an order
enjoining a party from “harassing, [and] telephoning, including, but not limited to,
making annoying telephone calls as described in Section 653m of the Penal Code . . . .”
(§ 6320, subd. (a); see § 6340, subd. (a).) Penal Code section 653m, subdivision (b),
prohibits a person from making repeated telephone calls with intent to annoy or harass,
but “[n]othing in this subdivision shall apply to telephone calls or electronic contacts
made in good faith.” The evidence here showed J.J. made the phone calls in good faith.
She made repeated calls because her very young son was ill, the weather was cold when
she took him to daycare in the morning, and the child had only the one warm jacket. As a
mother concerned about her child’s health, she had a legitimate and nonharassing reason
to contact the father. Again, this was not acting out as an aggressor.
       Although not dispositive, we note M.F. never once indicated that he felt threatened
by J.J. or wanted a restraining order against her. He never claimed to have been abused
or threatened by her.3 In short, we cannot say the statutory requisites for a mutual
restraining order -- that J.J. acted primarily as an aggressor and not in self-defense -- were
met.




3      At most, M.F. claimed J.J. attacked his wife, but the mutual restraining order at
issue protects only him and does not restrain J.J. from his wife.



                                              9
                                     DISPOSITION
       The portion of the mutual restraining order granting an injunction against J.J. is
reversed. In all other respects, the order is affirmed. Appellant to recover costs on
appeal.




                                                  FLIER, J.
WE CONCUR:




       BIGELOW, P. J.




       RUBIN, J.




                                             10
Filed 2/5/14
                           CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                    DIVISION EIGHT


J.J.,                                              B246401

        Plaintiff and Appellant,                   (Los Angeles County
                                                   Super. Ct. No. BF 040618)
        v.
                                                   ORDER CERTIFYING OPINION
M.F.,                                              FOR PUBLICATION

        Defendant and Respondent.                  NO CHANGE IN JUDGMENT




THE COURT:*


        The opinion in the above-entitled matter filed on January 9, 2014, was not
certified for publication in the Official Reports. For good cause, it now appears that the
opinion should be published in the Official Reports and it is so ordered.




*       BIGELOW, P. J.                    RUBIN, J.                           FLIER, J.
