Filed 7/31/15
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                    DIVISION THREE


ISIDORA M.,                                         B256587

        Plaintiff and Appellant,                    (Los Angeles County
                                                    Super. Ct. No. KQ017897)
        v.

SILVINO M.,

        Defendant and Respondent.




        APPEAL from an order of the Superior Court of Los Angeles County,
H. Don Christian, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed in
part and otherwise affirmed.
        Neighborhood Legal Services, Natalie Samarjian and David Pallack for Plaintiff
and Appellant.
        Guerrero & Chan, Marissa E. Barela and Daniel A. Guerrero for Defendant and
Respondent.
                               _________________________
       Plaintiff and appellant Isidora M. (Isidora)1 appeals the trial court’s issuance of a
mutual restraining order insofar as the order enjoins her conduct. The trial court issued a
five-year mutual restraining order on a petition brought by Isidora pursuant to the
Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.),2 in which she
sought a restraining order against her husband, defendant and respondent Silvino M.
(Silvino), from whom she was separated.
       Isidora contends the trial court erred in making the restraining order mutual in the
absence of an affirmative request by Silvino for such protection. We agree. We
conclude that a trial court may issue a mutual domestic violence restraining order under
section 6305 only if both parties have filed requests for such relief, so as to give the
requisite notice to the opposing party.
       Accordingly, the mutual restraining order, insofar as it restrains Isidora, is
reversed.
                  FACTUAL AND PROCEDURAL BACKGROUND
       1. Earlier proceedings
       The parties had a volatile relationship. They were married in 2001 and separated
in 2009. On May 8, 2012, Isidora was arrested following a heated confrontation between
them. On May 10, 2012, a criminal protective order was issued against her. That order
was modified on July 31, 2012, and again on July 31, 2013, the latter order barring
Isidora from coming within 100 yards of Silvino. The criminal protective order will
expire on July 31, 2016.




1
       We refer to the parties by their first names for purposes of clarity and not out of
disrespect. (See In re Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1704, fn. 1.)
2
       All further statutory references are to the Family Code, unless otherwise specified.

                                              2
       2. The instant case
       On February 14, 2014, Isidora filed a request for a domestic violence restraining
order, pursuant to the DVPA, against Silvino for herself and their two minor children.
She stated in the request that she feared for her safety and that of her family because
Silvino had threatened to kill her.
       Silvino did not request a restraining order against Isidora. Silvino filed a response
(Judicial Council Form DV-120), stating he did not agree to the order requested by
Isidora.3 Silvino’s supporting declaration requested that the court deny relief to Isidora
and that he be granted sole legal and physical custody of the children. In support of his
request for sole legal and physical custody, Silvino attached supporting exhibits,
including a 2009 crime report from the West Covina Police Department that showed
Isidora had been arrested for willful infliction of corporal injury on Silvino, a 2012 crime
report indicating Isidora had been arrested for assault with a deadly weapon and spousal
battery, the May 10, 2012 criminal protective order restraining Isidora, and the two
subsequent modifications thereto.
       When the matter came on for hearing on March 28, 2014, the trial court indicated
the matter at hand was Isidora’s request for a domestic violence restraining order against
Silvino. The trial court heard testimony from Isidora, Silvino, and others. Isidora was
asked about her 2012 guilty plea to a charge of domestic violence, and about the
underlying incident that led to that arrest. Isidora testified, inter alia, that she needed a
restraining order in this case because Silvino repeatedly had threatened to kill her.
       During closing argument, there was no discussion of a restraining order to protect
Silvino from Isidora. The focus of argument was on Isidora’s credibility and whether she
needed a restraining order against Silvino.


3
        Although Silvino filed a DV-120 form responding to Isidora’s request for a
domestic violence restraining order—and although he checked the boxes indicating he
did not agree to the personal conduct order or stay-away orders that Isidora requested—
his DV-120 response did not give notice to Isidora that the upcoming hearing could lead
to the issuance of a mutual restraining order.
                                               3
       Once the matter was submitted, the trial court issued a five-year mutual restraining
order. The court stated, “[I]t’s clear to me that there . . . has been domestic violence in
this household. [¶] [Isidora has] already been convicted so I don’t have to make any
findings. That’s been established [ ] beyond a reasonable doubt. She’s a restrained
person. . . . [¶] . . . [¶] Simply put, it’s unfortunate for these parties; but what they forgot
is when they brought it to hearing[,] because there are written responsive pleadings in this
case[,] that authorizes me to make cross orders. So, therefore, I find that there is
evidence of domestic violence in [this] household and in this relationship. [¶] I also
make a finding that I’m going to make mutual orders. . . . [¶] . . . [¶] I’m issuing these
orders for five years against both parties, five years from this date.” The trial court noted
that Isidora was already subject to a criminal protective order to stay away from Silvino,
“so this is really kind of a repetition of that order.”
       Isidora’s attorney sought a clarification, stating: “I just want to make sure I
understand correctly that, although a restraining order was never requested by [Silvino] in
[this] case it is still being issued, five years protective to [Silvino]?” The trial court
confirmed, “That’s correct. . . . [Be]cause he filed responsive papers. That opens my
jurisdiction.” (Italics added.)
       Isidora filed a timely notice of appeal from the March 28, 2014 restraining order.4
                                      CONTENTIONS
       Isidora contends the trial court lacked the authority to issue a restraining order
against her without a request by Silvino for such relief. We consider both that issue and
whether the restraining order against Isidora is infirm on the ground the trial court issued
the order without making the detailed factual findings required by section 6305.5

4
       The DVPA mutual restraining order is appealable as an order granting an
injunction. (Code Civ. Proc., § 904.1, subd. (a)(6); see, e.g., R.D. v. P.M. (2011)
202 Cal.App.4th 181, 187 [civil harassment restraining order under Code Civ. Proc.,
§ 527.6]; see generally, 4 Cal.Jur.3d Appellate Review (2015 ed.) § 74.)
5
      Following the receipt of the parties’ briefs, pursuant to Government Code section
68081 we requested supplemental briefing on the following issues: (1) whether the 2012
                                                4
                                       DISCUSSION
       1. Standard of appellate review.
       While we review the trial court’s decision issuing a restraining order under the
DVPA for an abuse of discretion (J.J. v. M.F. (2014) 223 Cal.App.4th 968, 975), the
statutory construction of section 6305 is a pure question of law which we review de novo
(In re Marriage of Davis (July 20, 2015, S215050) __ Cal.4th __, __ [2015 DJDAR
8319, 8320] (Marriage of Davis); People ex rel. Lockyer v. Shamrock Foods Co. (2000)
24 Cal. 4th 415, 432).
       2. Trial court erred in issuing a mutual restraining order under section 6305
because Silvino did not file a request seeking a restraining order against Isidora.
              a. Viewing section 6305 in the context of the entire DVPA of which it is a
part, a mutual restraining order may not be issued without a written request by the
responding party seeking such relief against the moving party.
       The trial court issued a mutual DVPA restraining order pursuant to section 6305,
although Silvino had not requested a restraining order against Isidora.6 At the relevant


criminal protective order against Isidora was sufficient to relieve the trial court of its duty
to make detailed findings of fact as to whether Isidora was a primary aggressor and was
not acting primarily in self-defense; (2) whether the 2012 restraining order and
modifications thereto were the sole basis for the 2014 restraining order against Isidora;
and (3) if so, whether the 2014 restraining order against Isidora could be predicated
entirely on the previously adjudicated matter. We have considered the parties’
supplemental filings.
6
       The stated purpose of the DVPA is “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.) Section 6320 enumerates various types of conduct that may
be addressed by a restraining order, to wit, a party may be enjoined “from molesting,
attacking, striking, stalking, threatening, sexually assaulting, battering, credibly
impersonating as described in Section 528.5 of the Penal Code, falsely personating as
described in Section 529 of the Penal Code, harassing, telephoning, including, but not
limited to, making annoying telephone calls as described in Section 653m of the Penal
Code, destroying personal property, contacting, either directly or indirectly, by mail or
otherwise, coming within a specified distance of, or disturbing the peace of the other
                                               5
time, section 6305 provided: “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.”
(Stats. 1995, ch. 246, § 2, italics added.)7
       Silvino contends that section 6305’s plain language provides that all that is
required for a mutual restraining order is (1) both parties appear and present written
evidence of abuse or domestic violence, and (2) the trial court make detailed findings that
both parties acted as aggressors and not primarily in self-defense. In other words, Silvino
urges that a court has the power to issue a mutual restraining order without a reciprocal
request by the responding party. Isidora disagrees, asserting that the trial court lacked
authority to issue a restraining order against her in the absence of a written request by
Silvino seeking such relief.
       As Silvino notes, section 6305 sets forth two criteria for the issuance of a mutual
restraining order: both parties must personally appear and present written evidence, and
the trial court must make detailed findings that both parties acted primarily as aggressors
and not primarily in self-defense. However, although section 6305 is phrased in the

party, and, in the discretion of the court, on a showing of good cause, of other named
family or household members.” (§ 6320, subd. (a).)
7
        The 1995 version of section 6305 was operative at the time this matter was heard
below. The statute was amended effective January 1, 2015. At present, it provides:
“(a) The court shall not issue a mutual order enjoining the parties from specific acts of
abuse described in Section 6320 unless both of the following apply: [¶] (1) Both parties
personally appear and each party presents written evidence of abuse or domestic
violence. [¶] (2) The court makes detailed findings of fact indicating that both parties
acted as a primary aggressor and that neither party acted primarily in self-defense. [¶]
(b) For purposes of subdivision (a), in determining if both parties acted primarily as
aggressors, the court shall consider the provisions concerning dominant aggressors set
forth in paragraph (3) of subdivision (c) of Section 836 of the Penal Code.” (§ 6305,
italics added; Stats. 2014, ch. 635, § 6, eff. Jan. 1, 2015.)

                                               6
negative—it precludes the issuance of a mutual restraining order unless both these criteria
are met—it does not purport to specify every prerequisite to the issuance of a mutual
restraining order. Section 6305 does not state that a court is empowered to enter a
restraining order so long as the two specified criteria are met; rather, it states that a
mutual restraining order cannot issue unless those requirements are met. Accordingly,
considered alone, section 6305 is ambiguous as to whether the two criteria specified
therein are sufficient, or merely necessary.
       Our analysis of the statute is guided by well-settled principles. “ ‘A fundamental
rule of statutory construction is that a court should ascertain the intent of the Legislature
so as to effectuate the purpose of the law. [Citations.] In construing a statute, our first
task is to look to the language of the statute itself. [Citation.] When the language is clear
and there is no uncertainty as to the legislative intent, we look no further and simply
enforce the statute according to its terms. [Citations.] [¶] Additionally, however, we
must consider the [statutory language] in the context of the entire statute [citation] and
the statutory scheme of which it is a part. “We are required to give effect to statutes
‘according to the usual, ordinary import of the language employed in framing them.’
[Citations.]” [Citations.] “ ‘If possible, significance should be given to every word,
phrase, sentence and part of an act in pursuance of the legislative purpose.’
[Citation.] . . . ‘When used in a statute [words] must be construed in context, keeping in
mind the nature and obvious purpose of the statute where they appear.’ [Citations.]
Moreover, the various parts of a statutory enactment must be harmonized by considering
the particular clause or section in the context of the statutory framework as a whole.
[Citations.]” ’ [Citation.]” (Phelps v. Stostad (1997) 16 Cal.4th 23, 32; accord, Marriage
of Davis, supra, __ Cal.4th at p. __ [2015 DJDAR at pp. 8320-8321].)
       Under the DVPA, a temporary domestic violence restraining order may be issued
“without notice” (§ 6300), but an order issued without notice becomes unenforceable if
no hearing is held within 21 or 25 days thereof (unless the temporary order is reissued).



                                               7
(§§ 242, 6327.) Thus, although a domestic violence restraining order may be issued
without notice, on an ex parte basis, such an order is temporary and for a brief duration.
         In contrast, a permanent restraining order with a duration of five years, such as
was issued in this case, may be issued only “after notice and a hearing under this article.”
(§ 6345, subd. (a), italics added.) The notice of hearing must “notify the respondent that
if he or she does not attend the hearing, the court may make orders against him or her that
could last up to five years.” (§ 6302.) There was no need for the Legislature to include a
separate notice requirement within section 6305 because that section is preceded by
section 6302, which requires that notice of hearing be given to the person against whom a
permanent restraining order is being sought.
         Construing section 6305 in the context of the DVPA statutory scheme of which it
is a part, we conclude the trial court may issue a mutual restraining order under section
6305, with a duration of up to five years, only where both parties have filed requests for
such relief, so as to give the requisite notice to the opposing party.
                b. Legislative history.
         Our conclusion regarding the interpretation of section 6305 is confirmed by its
legislative history.
         Assuming arguendo the plain language of the statutory scheme does not resolve
the interpretive question, so as to require this court to consider extrinsic aids such as the
legislative history of the statute (Marriage of Davis, supra, __ Cal.4th at p. __ [2015
DJDAR at p. 8321]; Ailanto Properties, Inc. v. City of Half Moon Bay (2006) 142
Cal.App.4th 572, 582-583), the legislative history of section 6305 is clear. It is
recognized that “an ‘examination of the original text of the statute and the evolution of
the language’ of a statute that has been amended is ‘useful in ascertaining its current
meaning.’ [Citation.]” (Mt. Hawley Ins. Co. v. Lopez (2013) 215 Cal.App.4th 1385,
1400.)
         As originally enacted in 1993, section 6305 provided: “The court may not issue a
mutual order enjoining the parties from specific acts of abuse described in Section 6320


                                               8
unless both parties personally appear and each party presents written evidence of abuse or
domestic violence. In this case, written evidence is not required if both parties agree that
this requirement does not apply.” (Stats. 1993, ch. 219, § 154.)
       In 1994, Congress enacted the Violence Against Women Act (VAWA) (42 U.S.C.
§ 13981 et seq.). In conjunction with VAWA, Congress empowered the Attorney
General of the United States to award grants to eligible states, local governments and
Indian tribal units, to promote various policy goals aimed at reducing domestic violence.
(42 U.S.C. § 3796hh(b).) To obtain funding, grantees were required to “certify that their
laws, policies, or practices prohibit issuance of mutual restraining orders of protection
except in cases where both spouses file a claim and the court makes detailed findings of
fact indicating that both spouses acted primarily as aggressors and that neither spouse
acted primarily in self-defense.” (42 U.S.C. § 3796hh, former subd. (c)(3), italics
added.)8
       In 1995, the California Legislature amended section 6305 in two respects. It
eliminated the waiver provision, by deleting the sentence that provided that “written
evidence is not required if both parties agree that this requirement does not apply.” (See
1995 Amendment, Deering’s Ann. Fam. Code (2006 ed.) foll. § 6305, pp. 342-343.) The
Legislature also added the requirement that for a mutual protective order, the trial court
must make detailed findings of fact that both parties acted primarily as aggressors and
that neither party acted primarily in self-defense. (Id. at p. 342.)9 10


8
      The current version of the federal statute uses the word “parties” instead of
“spouses.” (42 U.S.C. § 3796hh(c)(1)(C).)
9
       The 1995 version of section 6305 is quoted above at section 2a. of the Discussion.
10
       The 1995 amendment “help[ed] ensure that a mutual order is the product of the
careful evaluation of a thorough record and not simply the result of the moving party
yielding to the other’s importunities or the court deciding that a mutual order is an
expedient response to joint claims of abuse.” (Conness v. Satram (2004)
122 Cal.App.4th 197, 204.)

                                               9
       The express purpose of the 1995 amendment to section 6305 was “to make
California eligible for federal funding under the Violence Against Women Act and to
improve the response of law enforcement to domestic violence and protective order
violation calls.” (Sen. Rules Com., analysis of Sen. Bill No. 591 (1995-1996 Reg. Sess.)
as amended June 13, 1995, p. 3.) The California Senate Rules Committee analysis stated:
“The federal Violent Crime Control and Law Enforcement Act of 1994 [(of which the
VAWA is a part11)] authorizes $120 million in grant money available to states, local
governments and Indian tribal units to encourage arrest policies for domestic violence
offenders. Applicants for these funds must certify that their laws and official policies:
[¶] . . . [¶] Prohibit issuance of mutual restraining orders of protection except in cases
where both spouses file a claim and the court makes detailed findings of fact indicating
that both spouses acted primarily as aggressors and that neither spouse acted primarily in
self-defense.” (Id. at p. 3, italics added.)
       Thus, the Legislature’s express intent in amending section 6305 was to ensure
California’s full conformity with federal law so as to make the state eligible for federal
funding under the VAWA. Therefore, section 6305 cannot be construed as authorizing
the issuance of a mutual DVPA restraining order in a case in which only one party has
filed a request for a domestic violence restraining order.
       c.     Constitutional considerations.
       When “a question of statutory interpretation implicates constitutional issues, we
are guided by the precept that ‘ “[i]f a statute is susceptible of two constructions, one of
which will render it constitutional and the other unconstitutional in whole or in part, or
raise serious and doubtful constitutional questions, the court will adopt the construction

11
       In “September 1994, Congress passed the Violence Against Women Act of 1994,
a comprehensive statutory enactment designed to address ‘the escalating problem of
violent crime against women,’ as part of the larger Violent Crime Control and Law
Enforcement Act of 1994, P.L. 103–322. S.Rep. 103-138, 103rd Cong., 1st Sess.,
Violence Against Women Act of 1993, 38 (Sept. 10, 1993).” (Doe v. Doe (D.Conn. 1996)
929 F.Supp. 608, 610-611, fn. omitted.)

                                               10
which, without doing violence to the reasonable meaning of the language used, will
render it valid in its entirety, or free from doubt as to its constitutionality, even though the
other construction is equally reasonable.” ’ (Conservatorship of Wendland (2001)
26 Cal.4th 519, 548; see People v. Leiva (2013) 56 Cal.4th 498, 506–507 (Leiva) [‘[W]e
adhere to “the precept ‘that a court, when faced with an ambiguous statute that raises
serious constitutional questions, should endeavor to construe the statute in a manner
which avoids any doubt concerning its validity.’ ” ’].) This rule, called the canon of
constitutional doubt (Scalia & Garner, Reading Law: The Interpretation of Legal Texts
(2012) p. 249 (Scalia & Garner)), has been described as a ‘cardinal principle’ of statutory
interpretation that ‘has for so long been applied . . . that it is beyond debate’ (DeBartolo
Corp. v. Fla. Gulf Coast Trades Council (1988) 485 U.S. 568, 575 [99 L.Ed.2d 645,
108 S.Ct. 1392]).” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1373.)
       Judicial Council Form DV-130, Restraining Order After Hearing (rev. July 1,
2014), describes the serious consequences that may result from the violation of a
restraining order, including: “If you do not obey this order, you can be arrested and
charged with a crime. [¶] If you do not obey this order, you can go to jail or prison
and/or pay a fine. [¶] It is a felony to take or hide a child in violation of this order. [¶]
If you travel to another state or to tribal lands or make the protected person do so, with
the intention of disobeying this order, you can be charged with a federal crime. [¶] You
cannot have guns, firearms, and/or ammunition.” (Id. at p. 5.)
       If we were to interpret section 6305 in the manner proposed by Silvino, so as to
permit the trial court to enter a five-year restraining order against Isidora without any
notice to her that it was considering doing so, a serious due process question would be
raised. “ ‘The essence of procedural due process is notice and an opportunity to respond.
[Citation.] “The purpose of notice under the Due Process Clause is to apprise the
affected individual of, and permit adequate preparation for, an impending ‘hearing.’ ” ’
(Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264, 1279.)” (Thornbrough v.
Western Placer Unified School District (2013) 223 Cal.App.4th 169, 183-184.) Isidora


                                              11
was not given the opportunity to defend against the entry of a restraining order against
her because Silvino never requested, and the trial court never advised it was
contemplating, such an order. Our determination that the trial court may issue a mutual
restraining order under section 6305 only where both parties have filed requests for such
relief avoids any concerns with respect to the statute’s constitutionality.
              d. Silvino’s reliance on Monterroso is misplaced.
       Silvino cites Monterroso v. Moran (2006) 135 Cal.App.4th 732 for the proposition
that an affirmative pleading by the responding party is not required for the issuance of a
mutual restraining order. There, wife sought a restraining order, husband filed an answer,
wife indicated she would be agreeable to mutual restraining orders and the trial court
altered the proposed restraining order submitted by wife to make it mutual. (Id. at
pp. 735-736.) The reviewing court reversed on the ground the trial court failed to make
the detailed findings required by section 6305. (Id. at p. 734.)
       Monterroso is a thin reed upon which to rely. Monterroso did not address whether
both parties must file a request for a restraining order in order for a mutual restraining
order to issue. It therefore is not authority for that proposition. “ ‘ “It is axiomatic that
cases are not authority for propositions not considered.” ’ [Citation.]” (McWilliams v.
City of Long Beach (2013) 56 Cal.4th 613, 626; accord, Marriage of Davis, supra, __
Cal.4th at p. __ [2015 DJDAR at p. 8325].)12




12
        We also note that in J.J. v. M.F., supra, 223 Cal.App.4th 968, as here, the
petitioner sought a restraining order pursuant to the DVPA, the response to the
application for a restraining order did not request a restraining order against the moving
party, but the trial court issued a mutual restraining order. (Id. at pp. 973-974.) The
reviewing court held substantial evidence did not support the issuance of a restraining
order against the moving party and therefore did not reach the appellant’s contention that
the trial court’s sua sponte issuance of a mutual restraining order violated her due process
rights. (Id. at pp. 974-975.)

                                              12
       3. The trial court also failed to make detailed findings of fact in accordance with
section 6305.
       As indicated, section 6305 required the trial court to make “detailed findings of
fact indicating that both parties acted primarily as aggressors and that neither party acted
primarily in self-defense” before issuing a mutual restraining order.
       Here, the trial court reasoned, “[Isidora has] already been convicted so I don’t
have to make any findings. That’s been established [ ] beyond a reasonable doubt. She’s
a restrained person.” (Italics added.)
       Given the language of section 6305, we conclude the trial court erred in
substituting the bare fact of Isidora’s guilty plea to a charge of domestic violence for
detailed findings of fact indicating that she acted primarily as an aggressor and not
primarily in self-defense as required by section 6305. (See Monterroso v. Moran, supra,
135 Cal.App.4th at p. 734 [trial court acts in excess of jurisdiction by entering a mutual
restraining order without making detailed findings required by section 6305].)13




13
        In any event, a guilty plea, while admissible in a subsequent civil action, does not
have conclusive effect. (Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd. (1962)
58 Cal.2d 601, 605; City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 767, fn. 4;
20th Century Ins. Co. v. Schurtz (2001) 92 Cal.App.4th 1188, 1193.) Therefore, Isidora’s
earlier guilty plea did not conclusively establish that she acted primarily as an aggressor
and not primarily in self-defense.

                                             13
                                      DISPOSITION
       The March 28, 2014 mutual restraining order, insofar as it restrains Isidora, is
reversed. In all other respects, the order is affirmed. Isidora shall recover her costs on
appeal.


       CERTIFIED FOR PUBLICATION




                                                  EDMON, P. J.


We concur:




                     KITCHING, J.




                     EGERTON, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                             14
