G.G. v. G.S.

321 Cal.Rptr.3d 519

G.G., Petitioner and Appellant,

v.G.S., Respondent.

B331994

Court of Appeal, Second District, Division 4.

Filed May 28, 2024

APPEAL from a judgment of the Superior Court of Los Angeles County, Dennis F. Hernandez, Commissioner. Reversed and Remanded. (Los Angeles County Super. Ct. No. 20STPT02557)

Family Violence Appellate Project, Cory Hernandez, Shuray Ghorishi, Walnut Creek, and Jennafer Dorfman Wagner; Horvitz & Levy, Jeremy B. Rosen, Burbank, Melissa B. Whalen and Nicole P. Hood for Petitioner and Appellant.

No appearance for Respondent.

Complex Appellate Litigation Group and Mary-Christine Sungaila for Amicus Curiae California Women’s Law Center in support of Petitioner and Appellant.

ZUKIN, J.

INTRODUCTION

Appellant G.G. unsuccessfully sought renewal of a domestic violence restraining order (DVRO) against her former partner. The order was originally issued based on stalking. Ritchie v. Konrad (2004) 115 Cal. App.4th 1275, 10 Cal.Rptr.3d 387 (Ritchie) establishes the legal standard a trial court must apply when determining whether to renew a restraining order. Courts renew a DVRO if the protected person has a reasonable apprehension of future abuse. To make this determination, courts analyze three factors set forth in Ritchie. Here, we reverse and remand for the trial court to reconsider its decision consistent with those factors, as articulated in Ritchie and its progeny.

FACTUAL AND PROCEDURAL BACKGROUND

I. Relationship Between the Parties

Appellant and respondent were romantic partners and are the parents of two young children.¹ In her initial request for a DVRO, appellant testified that respondent repeatedly attempted to exert control over her during their relationship. If appellant did not do what respondent wanted, "he would intimidate and bully [her], get very angry, follow [her] through the house, corner [her]." Respondent planted a listening device in their home for the purpose of recording appellant. On multiple occasions, respondent took appellant’s phone so that she could not call for help. He also physically pulled their daughter out of bed and tried to take her from their home.

Respondent was undeterred from this behavior by the presence or involvement of other people. Appellant is a court employee, and respondent would follow her to work and watch her there, in her assigned courtroom. On multiple other occasions, the police were called because respondent "manhandl[ed]" appellant in public places.

In August 2019, respondent moved out of their shared home. After moving out, respondent planted another listening device. Thereafter, every time their daughter said the word "daddy" he would immediately call appellant. The relationship between appellant and respondent ended in January 2020.

II. Original Restraining Order

After the break-up, respondent repeatedly inquired if appellant was seeing someone else. Respondent sent appellant a picture that was taken from appellant’s phone, to which he obtained access using appellant’s Apple ID. Respondent also collected pictures of appellant from a dating site she used. Appellant heard someone walking outside her home and found her mail ransacked. In response to all this, appellant installed cameras at her house and asked respondent’s family to intervene, which they attempted to do, unsuccessfully.

Appellant’s new cameras recorded respondent’s subsequent behavior. In April 2020, appellant captured footage of respondent hopping the fence, walking around the house, and looking in her window late at night. This happened at least twice.

For an entire week in May 2020, respondent drove back and forth (appellant described it as "cruising") in front of appellant’s house every night. In June 2020, respondent "cruised" in front of appellant’s house on 16 different nights and approached the house on foot twice, also at night. After that, respondent switched cars, but continued to regularly drive in front of appellant’s house for four more months. In total, appellant counted 70 incidents in which respondent appeared at or in front of her home at night.

Appellant filed a request for a DVRO on October 30, 2020. In support of her request, appellant filed a declaration that described how respondent had planted listening devices in her home, how he was monitoring her phone and her online presence, and how he had stalked her after the break-up.

The trial court issued a temporary restraining order and set a hearing. Respondent, who was self-represented, filed a response to appellant’s request.

The hearing was held on December 14, 2020. Respondent again represented himself. Appellant testified and re-affirmed her written statement, adding that respondent had "intimidated" her during their relationship. She said all of respondent’s appearances at her home, with one excep- tion, had occurred in "the middle of the night," between 1:00 and 3:00 a.m. She presented the video recording showing respondent hopping a fence into her yard, then walking up to her window. She also presented the footage of respondent driving by her house, first in a white Dodge Challenger, then in a black sport utility vehicle of unspecified make and model. Finally, appellant discussed her decision to hire a private investigator in reaction to respondent’s cruising.

Respondent asked one question on cross-examination, about information appellant claimed to have learned through the private investigator. Respondent briefly testified that he did not own or drive a black sport utility vehicle. But otherwise, respondent declined to dispute the evidence presented by the appellant.

The trial court found that respondent had been stalking appellant and issued a DVRO for a two-year period. The court also issued a child custody and visitation order to govern respondent’s interactions with the children. These orders permitted respondent to (1) communicate with appellant over the Talking Parents application, (2) visit the older child two Sundays per month, and (3) have a Facetime call with both children every Tuesday and Thursday at 8:00 p.m. The orders also obliged respondent to provide appellant with a contact phone number and address where respondent could be reached during each visit with the older child.

III. Request for Renewal

In the period that followed these orders, appellant’s unwanted contact with the respondent was reduced, but not wholly eliminated. Appellant received several Facetime calls from respondent that were made outside the court-ordered visitation with the children. Respondent tried to pass messages to appellant through a family member rather than using the authorized channel—the Talking Parents application. Some of respondent’s mail still came to appellant’s house. Appellant’s uncle encountered respondent shopping at the grocery store appellant frequented. Appellant took a video of what she believed was respondent’s car driving up her street, though respondent could not be identified in the vehicle. Finally, respondent used appellant’s Apple account to purchase items for video games.

On December 1, 2022, two weeks before the expiration of the DVRO, appellant filed a request to renew, asking that the order be made permanent. In support, appellant filed a new declaration recounting the events that led to the issuance of the DVRO and giving a brief history of her interactions with respondent since. This new declaration also added the information, not previously presented to the court, that the police had been called repeatedly during the parties’ relationship "because of [respondent] manhandling [appellant] in public and within our home."

Respondent did not file a written opposition. The hearing on appellant’s request was held on March 16, 2023. Both parties were represented by counsel.

At the hearing, appellant affirmed her declaration and provided additional details of what had happened since the order was issued. Appellant also clarified that the Facetime calls had occurred three to four times during the previous year. Appellant had not personally seen respondent at the grocery store. She did not get the license plate of respondent’s car in her video but identified the vehicle as a silver BMW 5-series, which no one on her street owned. Appellant also produced a receipt which showed someone purchasing a three-month PlayStation subscription on her Apple account. Appellant testified that she was ter- rifled about what would happen if the DVRO was not extended.

During his testimony, respondent denied making any purchases with appellant’s Apple account. He suggested the charge might be an automatic renewal, which had been set up while the parties were together and never canceled afterward. Respondent admitted to sending one text message directly to appellant, in March 2022. However, he denied making the Facetime calls. He also denied any knowledge about his bills going to appellant’s house. He explained that he was sometimes in appellant’s regular grocery store because he works as a personal shopper through the Instacart platform, which requires him to go to grocery stores "all over Los Angeles" depending on where his clients are. He admitted to having a silver BMW 535i.

After argument, the trial court found no evidence that the Facetime calls were intentional. The court also found that respondent had no "pattern" of driving by appellant’s home after the DVRO had been issued. The court concluded that appellant’s fear, while genuine, was not reasonable. The request to renew the DVRO was denied.

Appellant timely appealed.

DISCUSSION

I. Standard of Review

[1–4] "We generally review an order denying a request to renew a DVRO for abuse of discretion. [Citation.] But the question whether the trial court applied the correct legal standard in exercising its discretion is a question of law requiring de novo review. [Citation.] If the court’s decision to deny a renewal request is influenced by an erroneous understanding of the law, the court has not properly exercised its discretion under...