Filed 3/26/19; Modified and Certified for Publication 4/22/19 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FOURTH APPELLATE DISTRICT

                                               DIVISION THREE


N.T.,

    Appellant,                                                     G055885

        v.                                                         (Super. Ct. No. 17D007933)

H.T.,                                                              OPINION

    Respondent.



                 Appeal from an order of the Superior Court of Orange County, Donald F.
Gaffney, Judge. Reversed and remanded with directions.
                 Family Violence Appellate Project, Jennafer Dorfman Wagner, Shorah
Ghorishi; UCI Domestic Violence Clinic, Patricia Cyr, Jane Stover; Jones Day and Craig
E. Stewart for Appellant.
                 No appearance for Respondent.
                                           *             *              *
                                        INTRODUCTION
                A wife sought a domestic violence restraining order (DVRO) against her
husband for acts specifically violating the temporary restraining order (TRO) the trial
court had issued against the husband eight months earlier. The court denied the DVRO
on the ground that a technical violation of a TRO was not an act of domestic violence.
We reverse and remand.
                For purposes of the Domestic Violence Prevention Act, Family Code
section 6200 et seq. (DVPA), abuse includes behaviors that were enjoined by a TRO, and
is not limited to acts inflicting physical injury. (Fam. Code, § 6203.) (All further
statutory references are to the Family Code, unless otherwise noted.) On remand, the
trial court shall make necessary findings regarding whether the acts alleged by the wife
actually occurred and, if they did, the court shall enter the DVRO as requested.
                      STATEMENT OF FACTS AND PROCEDURAL HISTORY
                                                I.
                             THE TEMPORARY RESTRAINING ORDER
                                                                                              1
                In January 2017, N. sought a TRO protecting her, her three-year-old son I.,
and her seven-month-old daughter C. from her husband H. The trial court granted the
TRO and ordered H. not to: “Harass, attack, strike, threaten, assault (sexually or
otherwise), hit, follow, stalk, molest, destroy personal property, disturb the peace, keep
under surveillance, impersonate (on the Internet, electronically or otherwise), or block
movements [of N.]; [¶] Contact [N.], either directly or indirectly, in any way, including
but not limited to, by telephone, mail, e-mail or other electronic means; [¶] [or] Take any
action, directly or through others, to obtain the addresses or locations of [N.]” The order
provided: “Brief and peaceful contact with [N.], and peaceful contact with children . . . ,
as required for court-ordered visitation of children, is allowed.”


1
    I. is N.’s son from a previous relationship; C. is N. and H.’s child.

                                                2
              In May 2017, the parties agreed to extend the TRO to September 2017. At
that time, the TRO was modified to provide that exchanges of C. for visitation were to
take place inside the Mission Viejo police station.
                                             II.
              THE REQUEST FOR A DOMESTIC VIOLENCE RESTRAINING ORDER
              In September 2017, N. filed a request for a DVRO, which was based
entirely on H.’s alleged violations of the TRO. H. denied any violation of the TRO.
              The parties’ written submissions and testimony regarding the alleged TRO
violations are summarized here:

              1. Refusing to give C. to N. during exchanges,
              unless N. would interact with H.
              On multiple occasions at child exchanges where their interaction was to be
limited to communications regarding C., H. urged N. to reconcile with him. In her
declaration in support of the DVRO request, N. stated: “As the end date of the Order is
approaching, H[.] is more aggressive with his constant harassment. He tells me that I
should kiss him and hold his hand and that I have responsibilities as his wife. He also
tells me that I have demons in me. I cannot walk away because, while he is talking to
me, he is either holding our daughter or getting her things one by one from the car.
[¶] . . . One example of this behavior took place on or around July 17, 2017. H[.] was
withholding our girl and I said ‘please do me a favor and give me the girl.’ He said,
‘no talk to me’ and I said ‘whenever I cared for you, you did not care, I don’t want to talk
to you anymore, there is nothing to talk about.’ He continued to keep C[.] from me and
asked me to stay and talk to him. He was withholding her [from] me more than ten
minutes while I told him I did not want to talk to him.”
              At the hearing, N. testified: “[H]e took advantage of the situations and
saying he needed to talk to me and that I had obligations towards him as a wife. He gave
me presents also to get back together. I told him we have a restraining order, and he


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didn’t abide by it.” N. offered into evidence written transcripts of audiotapes of two
visitation exchanges at which H. told N. he did not need to abide by the terms of the
restraining order; engaged N. in discussing their relationship and pending divorce; asked
her for a hug; implied that if N. did not cooperate with him, H. would fight for custody of
C.; asked N. why she was not wearing her wedding ring and whether she missed him;
suggested they go to joint counseling; and referred to N. as “my love” and asked her to
            2
kiss him.
                On another occasion, N.’s friend Yasmin, who had driven N. to the
visitation exchange, videotaped the incident. H. stalled in returning C. to N. so he could
talk to her, and reminded N. that she was his wife. N. said to H., “Just give me the baby.
We’re not supposed to be having a conversation.” H. replied, “You are still my wife, and
I have the right to be here with you and the baby. I just need to talk to you.”
N. repeatedly asked H. to give C. to her, at one point exclaiming, “Give me the girl!
Please!? In what way do I have to tell you!?”
                H.’s declaration in opposition to the DVRO stated, in relevant part:
“During the times of the child exchange, I limit my communication with Petitioner to
comments and/or questions related to our daughter’s health and wellbeing. On occasion
I will tell Petitioner ‘good afternoon’ or ‘good morning’ and there has been a time where
I have said quietly ‘I ask God to pray for our family.’ I do not deny that I am a man of
strong Christian faith.” H. also stated: “Petitioner’s claims that I demand to hold her
hand or to kiss her are more false allegations. When I pick up and return our daughter,
I do so in an organized and efficient manner. I do not unnecessarily prolong the pick up
or return as Petitioner claims.” H. testified that the delays at the exchanges, including



2
  H.’s trial counsel agreed the audio recordings substantially reflected the recorded
conversations, and the transcripts of the audio recordings were admitted without
objection.

                                              4
those evidenced by the audiotapes, were caused by waiting for a police officer to come
out of the station to observe the exchange.
              2. Following N. after a visitation exchange.
              N. testified that after one visitation exchange H. followed her, asking “why
don’t you stay and talk to me?” H. also asked N. who was waiting for her. N. left in a
different direction.
              In his declaration, H. stated that N. accused him of following her from
Santa Ana to Mission Viejo (where they both lived) after visitation, but that he had not
been charged with a violation of the TRO because there was no proof.
              3. Entering N.’s apartment complex.
              The TRO provided that N.’s address was confidential and prohibited H.
from obtaining her address. N. did not provide her address to H., but nevertheless saw
him “around my house.” Yasmin testified she saw H. in his car at N.’s apartment
complex. At the hearing, a time-stamped photograph taken by Yasmin of H.’s car
leaving N.’s neighborhood was admitted. In her declaration, N. stated: “I no longer feel
safe in the home I worked hard to get for my family.”

              4. Taking C. from N. before the scheduled visitation exchange time and
              from a location other than the agreed-upon location.
              The TRO, as modified by the parties’ agreement, provided that H.’s
weekday visitation time with C. was to begin at 2:00 p.m., and the exchange was to take
place inside the Mission Viejo police station. On August 23, N. agreed to change the
start time of the visit to 3:00 p.m. to accommodate H.’s work schedule. N. was with C. at
the Mission Viejo library, which is next to the police station, when H. showed up at
2:45 p.m. and immediately took C. over N.’s objection. H. testified that he had come
early to see if other children were at the library and had not expected to see C. there. He
asserted that he only picked up C. because she smiled at him when she saw him. H. did
not deny that the result was that he had taken C. from the wrong place at the wrong time.


                                              5
              5. Handing N. a letter.
              At one of the child exchanges, H. gave N. a letter. H. admitted writing the
letter, despite the TRO’s specific orders that he limit communication with N. to brief,
peaceful communication concerning visitation. H. testified he placed the letter in C.’s
diaper bag to “uplift hope for the—just hoping, just praying.”
              The letter quoted or paraphrased several verses from the Bible regarding
overcoming sin and demons, intermixed with H.’s comments regarding N.’s “dirtiness”
resulting from her childhood experiences:
              “God’s Promise:
              “I will remove you from a nation and bring you to a new land. And then ‘I
will spray you with clean water’ [clean water = God’s word in the Bible] and you will
heal. Since you were born, your experiences have caused dirtiness and curses on your
soul, spirit, and thought and all the idols, statues, human beings and concepts that
followed you, etc. I will cleanse you of that filth (Ef[e]c[i]os 5:26–28). I will also place
a new spirit inside you; and will remove the heart of stone within your body and will give
you a new heart made of flesh. I shall place ‘my Spirit’ inside you and cause you to walk
in my statutes of my laws and you will be careful in observing my ordinances (E[z]ekiel
36:24–37)
              “Even though your sins and curses are as red as the scarlet, your spirit will
be cleaned and will be as white as the snow (Isaias 1:18)
              “God removes curses, demons, forgotten sins of his children no matter if
they are as ‘deep as the ocean’ (Micah 7:19) and forgives their wickedness and the
mistakes they have committed. Sinner and forgets them (Jeremias 31:34)” (First
brackets in original.)
              H. also admitted giving N. a rose on her birthday.




                                              6
                                              III.
                                 THE TRIAL COURT’S RULING
                In denying N.’s request for a DVRO, the trial court provided the following
analysis: “Everything else, it appears, is only domestic violence if I draw the conclusion
that violating a TRO is in and of itself domestic violence. I cannot draw that conclusion.
And the incidents which have been referred to simply don’t amount to domestic violence.
[¶] . . . [¶]
                “All that was brought up to the court’s attention are what are, yes, technical
violations of the TRO. He picked the child up early. He talked about something at the
exchange other than the child.
                “Are these technical violations of the TRO? Yes, they are. But just
because they are technical violations of the TRO doesn’t mean they are domestic
violence. I am not aware of the authority that says a violation of a TRO is in and of itself
domestic violence. It is the requesting party’s burden to prove by a preponderance of the
evidence that domestic violence has occurred in the relationship. That burden has not
been met here. The court declines to issue a permanent domestic violence restraining
order.” N. timely filed a notice of appeal from the trial court’s order.


                                         DISCUSSION
                The denial of a restraining order under the DVPA is appealable. (Code
Civ. Proc., § 904.1, subd. (a)(6); Nakamura v. Parker (2007) 156 Cal.App.4th 327, 332.)
“We review an appeal from an order denying a request to renew a domestic violence
restraining order for abuse of discretion. [Citations] . . . [T]he question of ‘whether a
trial court applied the correct legal standard to an issue in exercising its discretion is a
question of law [citation] requiring de novo review.’” (Cueto v. Dozier (2015) 241
Cal.App.4th 550, 560.)



                                               7
              Section 6203 defines “‘abuse’” under the DVPA as “any of the following:
[¶] (1) To intentionally or recklessly cause or attempt to cause bodily injury.
[¶] (2) Sexual assault. [¶] (3) To place a person in reasonable apprehension of imminent
serious bodily injury to that person or to another. [¶] (4) To engage in any behavior that
has been or could be enjoined pursuant to Section 6320. [¶] (b) Abuse is not limited to
the actual infliction of physical injury or assault.” (§ 6203, italics added.)
              The DVPA’s “protective purpose is broad both in its stated intent and its
breadth of persons protected.” (Caldwell v. Coppola (1990) 219 Cal.App.3d 859, 863.)
The DVPA must be broadly construed in order to accomplish the statute’s purpose.
(In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1498.)
              N. raises two legal arguments on appeal: (1) the trial court erred in ruling
that a violation of the TRO was not itself an act of abuse; and (2) the trial court erred in
ruling the alleged conduct, if proven at the hearing, would not independently constitute
abuse. We agree as to both arguments.
              Section 6203, subdivision (a)(4) specifically provides that engaging in
behavior that has been enjoined pursuant to section 6320 constitutes abuse for purposes
of the DVPA. Section 6320 allows a court to enjoin, among other things, stalking,
threatening, harassing, contacting directly or indirectly, or disturbing the peace of the
protected party. (Id., subd. (a).)
              In this case, the TRO ordered H. not to harass N.; stalk N.; disturb N.’s
peace; contact N. directly or indirectly, in any way, other than engaging in “peaceful
contact” required for visitation with C.; or obtain N.’s address. N. offered admissible
evidence that H. had violated each of these prohibitions. For his part, H. did not deny he
had engaged in many of the actions of which N. complained, but minimized them or
attempted to justify them by explaining his desire to reunify with N. and spend more time
with C.



                                              8
              “[T]he plain meaning of the phrase ‘disturbing the peace of the other party’
in section 6320 may be properly understood as conduct that destroys the mental or
emotional calm of the other party.” (In re Marriage of Nadkarni, supra, 173
Cal.App.4th at p. 1497; see Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 821-822
[trial court erred in ruling that evidence of mental abuse and controlling behavior was not
relevant to DVRO analysis]; Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140,
1145-1147 [Nadkarni’s interpretation of “‘disturbing the peace of the other party’” under
the DVPA “is well reasoned”].) H.’s alleged acts of (1) communicating with N. about
issues in excess of those necessary to C.’s custody exchanges; (2) obtaining N.’s address
and stalking her; and (3) disturbing N.’s peace by continuing to seek reconciliation,
verbally attacking her, and threatening her regarding visitation and custody would
constitute violations of the TRO, and would justify issuance of the DVRO as requested.
              H.’s alleged violations of the TRO would not be technical violations, as
suggested by the trial court. H.’s alleged attempted verbal communications with N. were
lengthy and were not limited to communications regarding C.’s visitation. To the
contrary, if N. is believed, H. attempted to engage N. in discussions regarding their
relationship and requested intimate physical contact. H. also wrote a letter to N. and
placed it in C.’s diaper bag. H. drove to N.’s apartment complex, where he was
photographed by Yasmin. A knowing violation of a DVRO cannot be characterized “‘as
a de minimis and technical violation.’” (Lister v. Bowen (2013) 215 Cal.App.4th 319,
334-335.)
              In any event, H.’s alleged actions, as described ante, would have been acts
of abuse without the existence of the TRO. H.’s alleged actions would be obvious
breaches of N.’s peace, and therefore would have justified the issuance of a DVRO on
their own.
              We have concluded that the trial court used an incorrect legal standard in
denying the DVRO. Because the court found that H.’s violations were technical, and

                                             9
further found that TRO violations did not constitute acts of abuse for purposes of the
DVPA, it failed to make the necessary factual findings regarding the issuance of the
DVRO. If all material evidence were undisputed, we would be able to determine this as a
matter of law, and would order the trial court to enter the DVRO as requested. H.’s
written opposition and testimony at the hearing in the trial court make this remedy
impossible because we do not weigh evidence. We will therefore reverse the order
denying the DVRO and remand the matter to the trial court to make the necessary
findings and determine whether to issue the DVRO. If the court finds that the acts
alleged by N. did, in fact, occur, then the court shall issue the DVRO.
                                        DISPOSITION
              The order is reversed and the matter is remanded to the trial court.
Appellant to recover costs on appeal.




                                                 FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



GOETHALS, J.




                                            10
Filed 4/22/19




                              CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FOURTH APPELLATE DISTRICT

                                       DIVISION THREE


N.T.,

    Appellant,                                          G055885

        v.                                              (Super. Ct. No. 17D007933)

H.T.,                                                   ORDER MODIFIYING OPINION
                                                        AND GRANTING REQUEST
    Respondent.                                         FOR PUBLICATION; NO CHANGE
                                                        JUDGMENT
                  It is ordered that the opinion filed March 26, 2019, be modified as follows:
                  On page 1, first sentence of the second full paragraph, the name “Shorah” is
changed to “Shuray” so the sentence reads:
                  Family Violence Appellate Project, Jennafer Dorfman Wagner, Shuray
Ghorishi; UCI Domestic Violence Clinic, Patricia Cyr, Jane Stover; Jones Day and Craig
E. Stewart for Appellant.
                  Counsel for Appellant Family Violence Appellate Project and the Domestic
Violence Clinic at the University of California, Irvine, joined by AIDS Legal Referral
Panel, Bay Area Legal Aid, Bet Tzedek Legal Services, California Protective Parents
Association, California Women’s Law Center, Child Abuse Forensic Institute, Domestic
Abuse Center, Domestic Violence Legal Empowerment and Appeals Project, Doves of
Big Bear Valley, Inc., Harriett Buhai Center for Family Law, Lassen Family Services,
Law Foundation of Silicon Valley, Law Office of Melinda Gomez, Los Angeles Center
for Law & Justice, Maitri, National Housing Law Project, Riverside County Coalition for
Alternatives to Domestic Violence, San Diego Volunteer Lawyer Program, Inc., Sojourn,
Professor Margaret Drew, and Professor Julie Saffren, have requested that our opinion,
filed on March 26, 2019, be certified for publication. It appears that our opinion meets
the standards set forth in California Rules of Court, rules 8.1105(c)(2), (3), (4), and (6).
The requests are GRANTED. The opinion is ordered published in the Official Reports.
This modification does not change the judgment.




                                                   FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



GOETHALS, J.




                                              2
