Filed 12/7/18; Modified and Certified for Pub. 12/13/18 (order attached)




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    FIRST APPELLATE DISTRICT

                                              DIVISION FIVE


In re the Marriage of HEATHER
MARTINDALE and RAYMOND
OCHOA.


HEATHER MARTINDALE,
        Appellant,                                            A152825
v.
                                                              (Sonoma County
RAYMOND OCHOA,                                                Super. Ct. No. SFL-65050)
        Respondent.


        In 2014, appellant Heather Martindale (appellant) obtained a three-year domestic
violence prevention restraining order against the father of her daughter, respondent
Raymond Ochoa (respondent). Before the order was set to expire, appellant sought
permanent renewal of the order. Following a hearing, the trial court denied the request,
finding appellant had not shown “ ‘reasonable apprehension’ of future abuse.” (Ritchie v.
Konrad (2004) 115 Cal.App.4th 1275, 1290 (Ritchie).) Appellant contends the trial court
abused its discretion. We affirm the denial of renewal of the restraining order.
                                              BACKGROUND
        The parties had a daughter together in 2009 and married in 2011. Appellant
commenced dissolution proceedings in November 2013. Appellant was represented by
counsel and respondent represented himself.




                                                         1
       In December 2013, appellant filed a request for a domestic violence restraining
order. The trial court, who was the same judge that issued the order at issue in the
present appeal, held a hearing on the request in March 2014. Appellant testified to
various instances of domestic abuse over the course of her relationship with respondent.
He was often jealous and he threatened to “hurt,” “kill,” and “destroy” her. Sometimes
he would physically restrain her when they argued. On a number of occasions,
respondent damaged property. In 2007, respondent raped her after an argument. In 2013,
he started to initiate nonconsensual sex after an argument but stopped when appellant
said, “Are you going to rape me?” Appellant’s sister corroborated that appellant said
respondent tried to rape her and that appellant had a large thigh bruise. At the 2013
Sonoma July 4th parade, respondent pushed appellant while she was holding their
daughter. A witness corroborated her account. Respondent testified, among other things,
that appellant was making false accusations because she did not want to pay him support.
       At the close of the hearing, the trial court imposed a three-year restraining order
on respondent. The court observed that its role was “to decide is there more evidence
that would support [appellant’s] version of what happened compared to the evidence that
supports [respondent’s]. And the Court finds a preponderance of the evidence that
[appellant] has met her burden of proof that there has been domestic violence.” The court
denied respondent’s request for spousal support due to its domestic violence finding and
made child support orders.
       In June 2015, a stipulated judgment was entered that terminated the parties’
marriage and divided their property.
       In December 2016, appellant requested a permanent renewal of the March 2014
restraining order. Respondent, now represented by counsel, opposed the request.
       At the hearing on the renewal request, appellant testified regarding her fear of
respondent and submitted into evidence the transcript of the March 2014 hearing
resulting in issuance of the initial restraining order. She testified she installed cameras
and other security measures at home. Her fear was amplified due to respondent’s failure
to acknowledge the past abuse and a police report he made in late 2014 alleging possible


                                              2
child abuse by appellant. With respect to the 2014 child abuse report, appellant averred
in a November 2014 declaration that a sheriff’s deputy told her respondent had reported
physical abuse of their daughter. The deputy testified at the 2017 renewal hearing that
respondent had “showed me his cell phone which had some videotape of his daughter on
it” in which she “seemed upset and said that her mommy hits her on her tummy and her
bottom and her arms.” The next day, respondent left a message for the deputy “saying
that he wanted to cancel the report.” Respondent testified he tried to put the report “on
hold” because he was concerned about child protective services taking their daughter
away from appellant, because he believed the child would not be placed with him. The
deputy testified he went to appellant’s home to investigate the claim and the child told the
deputy appellant “did hit her on the bottom.” The disposition of the complaint was
“unfounded.”
       Appellant also alleged respondent violated the 2014 restraining order on four
occasions. First, she encountered him at a farmer’s market in June 2014 and requested
his removal by law enforcement. She claimed respondent was drinking alcohol and he
protested his removal from the event. However, the sheriff’s deputy who was involved in
the incident testified respondent said he was unaware of appellant’s presence, he left
without objection, and there was no sign he had been drinking.
       Second, appellant claimed respondent violated the restraining order in April 2015
by remaining at a bar called the Glen Ellen Lodge after seeing her there. She testified
respondent entered the bar, walked past her, and “glared” at her from the other end of the
bar. However, another patron testified that respondent did not see appellant when he
came into the bar and that respondent left immediately (within seconds of entering the
bar) when appellant saw him and referred to the restraining order. Appellant then
proceeded to talk badly of respondent to the other patron. Respondent testified he left as
soon as he noticed appellant was present.
       Third, appellant testified that in June 2015 patio furniture and a bicycle were
removed from her property. A bicycle lock was cut in the process. Respondent testified
he had arranged for two friends to pick up the items because he had been told at a


                                             3
settlement conference he had to remove the property. He admitted he did not seek
appellant’s permission to pick up the property that day. The sheriff’s deputy that
investigated the incident testified that a neighbor told him the men who came to
appellant’s property did not sound like respondent and that appellant told him respondent
was supposed to pick up some furniture.
       Finally, appellant testified she saw respondent in a high school parking lot in
December 2016, when she was picking up her older children. Respondent testified he
had gone to the high school to pick up the children of a friend and that he did not see
appellant or her children at the school. He had only been to the high school on that one
occasion in the preceding three years.
       Respondent testified regarding his efforts to avoid appellant. He testified that he
avoided going to the town of Sonoma for social activities due to the restraining order and
that he had not been to any of his daughter’s events during the three years of the order.
He confirmed appellant was not a member when he joined his gym, Sonoma Fit. He saw
her at the gym on three subsequent occasions and each time he immediately stopped
working out and left the gym. A Sonoma Fit employee testified that appellant asked
whether respondent was a member before she joined, which contradicted appellant’s
testimony that she did not know he was a member when she joined.
       In September 2017, the trial court denied appellant’s request for renewal of the
restraining order in a detailed written decision. The court stated it was “cognizant of the
basis upon which the initial [r]estraining order was granted,” but observed, “[t]he
granting of the original [r]estraining order does not confirm that this Court made a
finding that every allegation made by [appellant] was true, but that this court found a
sufficient factual basis to determine that spousal abuse had occurred.” In regards to the
testimony presented at the hearing on the renewal request, the court stated it “generally
found [respondent] to be the more credible witness.” In denying the renewal request, the
court found “that the factual testimony at the original trial resulting in the granting of the
current restraining order is insufficient to provide a basis by itself to support the
necessary findings to order the continuation of this restraining order.”


                                               4
         The present appeal followed.
                                        DISCUSSION
         The Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.)1
exists “to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a
separation of the persons involved in the domestic violence for a period sufficient to
enable these persons to seek a resolution of the causes of the violence.” (§ 6220.) As
provided in section 6345, subdivision (a), a domestic violence prevention restraining
order “may be renewed upon the request of a party, either for five years or permanently,
without a showing of any further abuse since the issuance of the original order, subject to
termination or modification by further order of the court either on written stipulation filed
with the court or on the motion of a party. The request for renewal may be brought at any
time within the three months before the expiration of the orders.”
         In Ritchie, supra, 115 Cal.App.4th 1275, the court of appeal held that, in deciding
whether to grant a renewal request under section 6345, “[a] trial court should renew the
protective order, if, and only if, it finds by a preponderance of the evidence that the
protected party entertains a ‘reasonable apprehension’ of future abuse.” (Ritchie, at p.
1290.) “It is not enough this party entertain a subjective fear the party to be restrained
will commit abusive acts in the future. The ‘apprehension’ those acts will occur must be
‘reasonable.’ That is, the court must find the probability of future abuse is sufficient that
a reasonable woman (or man, if the protected party is a male) in the same circumstances
would have a ‘reasonable apprehension’ such abuse will occur unless the court issues a
protective order.” (Id., at p. 1288.) “In evaluating whether the requesting party has a
reasonable apprehension of future abuse, ‘the existence of the initial order certainly is
relevant and the underlying findings and facts supporting that order often will be enough
in themselves to provide the necessary proof to satisfy that test.’ ” (Lister v. Bowen
(2013) 215 Cal.App.4th 319, 333, quoting Ritchie, at p. 1291; see also Cueto v. Dozier
(2015) 241 Cal.App.4th 550, 559–560 (Cueto).)


1
    All undesignated section references are to the Family Code.

                                              5
         “We review an appeal from an order denying a request to renew a domestic
violence restraining order for abuse of discretion. [Citations.] . . . [A]n abuse of
discretion occurs where ‘ “ ‘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.’ ” ’ However, the 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, supra, 241
Cal.App.4th at p. 560.) The trial court’s order “is presumed to be correct, and all
intendments and presumptions are indulged to support it on matters as to which the
record is silent. [Citations.] It is the appellant’s burden to affirmatively demonstrate
error.” (In re Marriage of Gray (2002) 103 Cal.App.4th 974, 977–978.)
         Appellant contends the trial court abused its discretion in denying her request for
lifetime renewal of the restraining order. Her primary contention is that the court failed
to give “conclusive” effect to the evidence that supported issuance of the restraining
order. In the renewal proceedings, appellant claimed the facts underlying issuance of the
original order were alone sufficient to meet her burden of proof. On appeal, appellant
argues respondent is collaterally estopped from denying the facts underlying the original
order.
         Although appellant’s 2014 testimony plainly supported issuance of the original
restraining order, appellant’s collateral estoppel argument is misplaced, because the
doctrine only applies where “the issue decided in the prior case is identical with the one
now presented.” (Stolz v. Bank of America (1993) 15 Cal.App.4th 217, 222.) As the trial
court below stated, “The granting of the original restraining order does not confirm that
this Court made a finding that every allegation made by [appellant] was true, but that this
court found a sufficient factual basis to determine that spousal abuse had occurred.” That
is, the “issue” decided in the prior proceeding was whether appellant established a basis
for issuance of a restraining order, not whether all the incidents to which she testified
were true.



                                               6
       The one case appellant cites that addresses this issue is Ritchie, supra, 115
Cal.App.4th at page 1290, in which the court of appeal observed that “the trial court
should not permit the restrained party to challenge the truth of the evidence and findings
underlying the initial order . . . . This would contradict principles of collateral estoppel
and undercut the policies supporting those principles. But this does not mean the trial
court should be prohibited from looking behind the order itself when evaluating whether
that order, often three years old, should be extended another three years or even, as here,
permanently.” We certainly agree that the restrained party is collaterally estopped from
challenging the sufficiency of the evidence to support issuance of the initial restraining
order. We also agree courts ordinarily should not entertain new evidence regarding the
underlying incidents, because the issue in the renewal proceedings is “ ‘reasonable
apprehension’ of future abuse.” (Ibid.) But Ritchie does not hold that a court hearing a
renewal request must accept the truth of every piece of evidence presented in support of
the original order.2
       In any event, appellant cites to nothing in the record showing that the trial court
permitted respondent to present evidence challenging the basis for the initial restraining
order. The court discussed the Ritchie decision with counsel during the renewal hearing
and observed, “I think at this hearing there is no ability of the restrained party to question
the accuracy or the factual basis upon which the trial court made its findings. Those
findings were heard. The Court made a finding of domestic violence.” The trial court
then expressly stated, “So at this time I’m ordering that the parties may not go back and
try to prove that the initial restraining order was based on incorrect evidence.” The court
expressed a willingness to consider further briefing on the issue, but appellant cites to
nothing indicating the court changed its ruling. Neither does appellant cite any part of the
record suggesting the trial court did not take seriously the conduct underlying the initial

2
  We observe that, because Ritchie’s interpretation of the statute on this point “was not
necessary to its resolution” of the case, “it was dicta rather than a holding.” (In re D.Y.
(2018) 26 Cal.App.5th 1044, 1055.) The issue in Ritchie was whether the trial court
erred in “grant[ing] the renewal . . . on the assumption petitioner was entitled to that order
‘just upon request.’ ” (Ritchie, supra, 115 Cal.App.4th at p. 1279.)

                                              7
order, or that the court discounted and failed to consider any specific incidents to which
appellant testified in 2014.
       Instead, the record shows the trial court denied the renewal request based on
additional evidence developed at the hearing on the request. The court emphasized all
the evidence showing respondent’s “intentional avoidance of unintended contact” and
respondent’s testimony “that he goes out of his way to not be in areas where it would
occur to him [appellant] might be present.” The court noted that, when respondent
inadvertently was in the vicinity of appellant, respondent “acted appropriately and left as
soon he was aware of [appellant] being present.” The court also observed, “The fact that
[appellant] was willing to apply for membership and then use the gym knowing that
[respondent] was a member causes this Court to question her claim of fearing
[respondent].” Further, the court found that appellant, “perhaps unintentionally, uses the
restraining order to defame or harass [respondent].” The court referred to appellant’s
negative comments to another patron about respondent during the incident at the Glen
Ellen Lodge, observing “[i]t seems inconsistent that if someone is fearful of domestic
violence from someone that they would then take the opportunity to publicly defame that
person to a friend of the person of whom they purport to be afraid.” The court concluded
“that the factual testimony at the original trial resulting in the granting of the current
restraining order is insufficient to provide a basis by itself to support the necessary
findings to order the continuation of this restraining order.”
       Appellant disputes the trial court’s view of the evidence, but we are required to
defer to the court’s credibility determinations and make all reasonable inferences in
support of the court’s findings. (Cueto, supra, 241 Cal.App.4th at p. 560.) Specifically,
appellant argues the trial court should have concluded respondent’s child abuse allegation
supported appellant’s claim of apprehension of future abuse. But the evidence supported
an inference that respondent attempted to withdraw the claim not because it was
unfounded but because respondent decided he did not want child protective services to
get involved. Appellant also argues she did show some concern about avoiding
respondent at the gym where they were both members. But reasonable inferences support


                                               8
the trial court’s assessment that her willingness to join the gym undermined her claim of
fear.3 Appellant claims her “aggressive behavior” at a bar where she encountered
respondent “demonstrates anger and not the absence of fear,” but reasonable inferences
support the trial court’s assessment of the incident. In general, the court’s determination
that respondent’s testimony was more credible than appellant’s testimony influenced the
court’s assessment of the evidence and we are obligated to defer to that determination.4
       Cueto, supra, 241 Cal.App.4th 550, is distinguishable. In that case, as in the
present case, the initial restraining order was issued due to substantial violent conduct
that alone could support renewal of the order. (Id. at p. 562.) The court of appeal found
the trial court abused its discretion in denying the renewal order. (Id. at p. 563.) But the
trial court in Cueto “relied largely on the lack of any violation of the restraining order.”
(Id. at p. 562.) In the present case, in contrast, the trial court had evidence of affirmative
efforts by respondent to avoid appellant, as well as evidence that appellant intentionally
put herself in a situation where she could encounter respondent (by joining Sonoma Fit)

3
  In her opening brief, appellant argues the trial court erred in denying her request to
strike the testimony of the Sonoma Fit employee who testified about appellant’s
enrollment at the gym. Appellant contends the testimony should have been stricken
under Evidence Code section 771, because the employee used gym records to refresh her
recollection but did not produce the records at trial. However, the trial court did strike
the portion of her testimony “dealing with the dates,” because the employee said that the
records provided the “exact dates” when the parties joined the gym. Appellant has not
shown error. Evidence Code section 771, subdivision (a) only requires the striking of
testimony “concerning [the] matter” that was refreshed by the writing. Under the trial
court’s ruling, the testimony still stands that appellant knew respondent was a member
when she enrolled, which was the relevant information.
        We also reject appellant’s similar claim that testimony of the sheriff’s deputy who
received respondent’s child abuse allegation should have been stricken because he used
his report to refresh his recollection but did not produce the report in court. Any error
was harmless, because the child abuse allegation is part of the evidence appellant
employed to argue in favor of the renewal request.
4
  We reject appellant’s suggestion that the vigorous litigation surrounding the renewal
request, and the evidence developed in that context, shows the parties have not “moved
on with their lives so far that the opportunity and likelihood of future abuse has
diminished.” (Ritchie, supra, 115 Cal.App.4th at p. 1291.) The trial court was entitled to
credit the evidence respondent had moved on and was avoiding contact with appellant.

                                               9
and used the restraining order to defame respondent (the incident at the Glen Ellen
Lodge). Moreover, in Cueto, the restrained party failed to attend anger management
classes he had been directed to attend (ibid.); appellant has not pointed to any analogous
failures by respondent. Finally, the trial court in Cueto told the previously-restrained
party that “if there is ‘any contact,’ the [trial] court would ‘strongly consider another
restraining order.’ ” (Ibid.) This admonishment suggested that the party seeking renewal
of the restraining order had demonstrated reasonable apprehension of future abuse.
(Ibid.) Again, appellant points to nothing comparable in the present case.5
                                       DISPOSITION
       The trial court’s order is affirmed and the matter is remanded for further
proceedings consistent with this decision. Costs on appeal are awarded to respondent.




5
  We reject appellant’s request that further proceedings should be heard by a different
trial court judge. Appellant has not shown any bias or appearance of bias on the part of
the trial court judge below. (See Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 786.)
Furthermore, appellant’s May 16, 2018 motion for sanctions against respondent and his
appellate counsel is denied.

                                              10
                                                 SIMONS, Acting P.J.




We concur.




NEEDHAM, J.




BRUINIERS, J. *




(A152825)




*
  Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.


                                            11
Filed 12/13/18
                           CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION FIVE


In re the Marriage of HEATHER
MARTINDALE and RAYMOND
OCHOA.
                                                  A152825
HEATHER MARTINDALE,
                                              ORDER MODIFYING OPINION AND
        Appellant,                            CERTIFYING OPINION FOR
v.                                            PUBLICATION
                                              [NO CHANGE IN JUDGMENT]
RAYMOND OCHOA,
        Respondent.                               (Sonoma County
                                                  Super. Ct. No. SFL-65050)



        THE COURT:

        It is ordered that the opinion filed December 7, 2018 be modified as follows:
(1)     On page 7, after the sentence “We also agree courts ordinarily should not entertain
new evidence regarding the underlying incidents, because the issue in the renewal
proceedings is ‘ “reasonable apprehension” of future abuse.’ ”, add a new footnote 2,
“Neither party argues it had new evidence to present at the renewal hearing regarding
incidents underlying the original order that was improperly excluded by the trial
court. Therefore, we need not and do not address when such evidence is admissible as to
a factual issue not conclusively established by collateral estoppel.”
(2)      All further footnotes should be renumbered accordingly.



                                             1
         The opinion in the above-entitled matter, filed on December 7, 2018, 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.
         There is no change in the judgment.




Dated:                                                                       , Acting P.J.




                                               2
Superior Court of Sonoma County, No. SFL-65050, Hon. Robert S. Byrd, Judge.


Greg Jilka for Appellant.


Perry, Johnson, Anderson, Miller & Moskowitz, Deborah S. Bull; Law Offices of
William B. Doty and William B. Doty for Respondent.




                                         3
