Filed 9/12/13 Kandel v. Kandel CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SIX


DAWN L. KANDEL,                                                              2d Civil No. B242499
                                                                           (Super. Ct. No. SD037475)
     Plaintiff and Respondent,                                                 (Ventura County)

v.                                                                ORDER MODIFYING OPINION AND
                                                                      DENYING REHEARING
SCOTT C. KANDEL,
                                                                      [NO CHANGE IN JUDGMENT]
     Defendant and Appellant.




         THE COURT:
         It is ordered that the opinion filed herein on August 20, 2013, be modified as
follows:
         1. On page 1, the second sentence in the second full paragraph, is deleted and the
              following sentence is inserted in its place:
                   "They had two daughters, born in 1998 and 2003."
         2. On page 3, in the first sentence of the third full paragraph, the word
              "temporarily" is deleted, and insert the word "section" between "Code" and
              "6345," so the sentence reads:
                   "Similarly, the procedure for renewing a restraining order under Family
                   Code section 6345 is not akin to adjudication of a disputed claim."
         There is no change in judgment.
         Respondent's petition for rehearing is denied.
Filed 8/20/13 (unmodified version)
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SIX


DAWN L. KANDEL,                                                              2d Civil No. B242499
                                                                           (Super. Ct. No. SD037475)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

SCOTT C. KANDEL,

     Defendant and Appellant.



                   Scott C. Kandel appeals from an order denying his motion to strike Dawn
L. Kandel's request to renew a domestic violence restraining order under the anti-strategic
lawsuit against public participation (SLAPP) statute. (Code Civ. Proc., § 425.16.) We
conclude that Dawn's request to renew the restraining order was not a "cause of action"
within the meaning of the anti-SLAPP statute and did not arise from Scott's protected
activity. We affirm.
                         FACTUAL AND PROCEDURAL BACKGROUND
                   Dawn and Scott Kandel were married for over 20 years. They had two
daughters, born in 1999 and 2003.
                   Soon after their separation in 2008, the court entered an order on their
stipulation concerning child custody, visitation, support and other matters (the stipulated
order). In the stipulated order, Scott agreed to give Dawn sole legal and physical custody
of their children with supervised visitation, to submit to random drug testing, and to
refrain from posting images of Dawn or their daughters on the Internet.
              In 2009, the court granted Dawn a three-year restraining order against Scott
based on threats of violence (the restraining order). The restraining order required Scott
to stay away from Dawn and not to harass her. It did not address Scott's Internet
behavior.
              Shortly before the restraining order expired, Dawn filed a request to extend
it for an additional five years pursuant to Family Code section 6345, subdivision (a). She
declared that she "continue[d] to be apprehensive for [her] well being and safety and for
the well being and safety of [their] children." She declared that Scott "remains disabled,
unstable, continually violates the orders of this court and has failed until just recently to
seek the therapy recommended by . . . the child custody evaluator . . . ." She declared
that she was willing to work with Scott's psychologist "to develop a treatment plan to
address the issues of [their] interaction and what would be required for [her] to feel that
[she] no longer need[ed] a restraining order," and that she was "asking for an extension
and not a permanent order because [she had] hope that this [was] a possibility."
              In support of her request, Dawn submitted exhibits that she described as
copies of Scott's Internet postings. Neither we nor the trial court could verify her
descriptions because the documents were filed by facsimile and are illegible. She
declared that the exhibits included a picture of Scott posing as Hitler above pictures of
their daughters, a picture of a box of penises, pictures of rectums, descriptions of Scott's
sexual activities, and a reference to Dawn "using the 'C___' word."
              The trial court sustained Scott's objection to the Internet exhibits and set
Dawn's request for hearing. Scott filed an anti-SLAPP motion to strike Dawn's request.
(Code Civ. Proc, § 425.16.) The court denied Scott's motion, finding that Dawn's request
was not a cause of action within the meaning of the anti-SLAPP statute and did not arise
from Scott's protected activity.




                                               3
                                      DISCUSSION
              A court will strike a "cause of action" under the anti-SLAPP statute if it (1)
arises from protected speech or petitioning and (2) lacks even minimal merit. (§ 425.16,
subd. (b)(1); Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) We review de novo the trial
court's ruling on the anti-SLAPP motion, including the question whether the statute
applies to the challenged claim. (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 645.)
              We agree with the trial court that Dawn's request to renew the restraining
order for five years was not a "cause of action" subject to the anti-SLAPP statute. A
"cause of action," for purposes of the anti-SLAPP statute, may include a "claim" or
"petition," (§ 425.16, subd. (h)) but it must be comprised of a primary right of the
plaintiff, a primary duty of the defendant, and a wrongful act by the defendant
constituting a breach of that duty. (Marlin v. Aimco Venezia, LLC (2007) 154
Cal.App.4th 154, 162.) For example, a petition to permanently enjoin civil harassment
under Code of Civil Procedure section 527.6 is subject to an anti-SLAPP motion,
whereas a request to temporarily restrain harassment under the same statute is not.
(Thomas v. Quintero, supra, 126 Cal.App.4th at p. 652.) The procedure for obtaining a
temporary restraining order under section 527.6 is not "akin to an adjudication of a
disputed claim." (Ibid.) It requires no prior notice to the person sought to be restrained
and may be granted upon affidavit demonstrating "reasonable proof of harassment."
(Ibid.)
              Similarly, the procedure for temporarily renewing a restraining order under
Family Code 6345 is not akin to adjudication of a disputed claim. Restraining orders
under section 6345 may be renewed "without a showing of any further abuse since the
issuance of the original order." (Fam. Code, § 6345, subd. (a).)
              Even if Dawn's request to renew had been a "cause of action" within the
meaning of the anti-SLAPP motion, it did not arise from Scott's protected activity.
Dawn's request to renew the restraining order was based on her continuing fear of Scott,
his delay in seeking therapy, and his noncompliance with the stipulated order governing
his Internet activity. He relinquished any protection for Internet postings of images of his


                                             4
daughters in the stipulated order. Moreover, Dawn did not ask to broaden the scope of
the restraining order to include Scott's Internet activity. Her counsel clarified that she
sought only to restrain harassment under the terms of the original restraining order
because the independent stipulated order already covered Scott's Internet conduct.
                                       DISPOSITION
              The order is affirmed. The parties are to bear their own costs on appeal, if
any.
              NOT TO BE PUBLISHED.




                                           GILBERT, P.J.


We concur:



              YEGAN, J.



              PERREN, J.




                                              5
                William Q. Liebmann, Judge

             Superior Court County of Ventura

            ______________________________




Scott Kandel, in propria persona for Defendant and Appellant.
No appearance for Plaintiff and Respondent.




                             6
