Covington & Burling, Morgan E. Lewis, Sonya D. Winner, Melissa Decker; Family Violence Appellate Project, Cory Hernandez, Arati Vasan, Jennafer D. Wagner and Erin C. Smith, for Plaintiff and Appellant. No appearance for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County No. MFL-17-000176, Kenneth R. Green, Judge.
Covington & Burling, Morgan E. Lewis, Sonya D. Winner, Melissa Decker; Family Violence Appellate Project, Cory Hernandez, Arati Vasan, Jennafer D. Wagner and Erin C. Smith, for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
THE COURT [*]
Plaintiff appeals the denial of her request for a restraining order against defendant, her ex-husband, pursuant to the Domestic Violence Prevention Act (DVPA; Fam. Code, § 6200, et seq.) The trial court stated it could consider only matters presented at the hearing and, based on that evidence, found plaintiff did not meet her burden for the issuance of a restraining order.
Subsequent unlabeled statutory references are to the Family Code.
The DVPA addresses the scope of the evidence a trial court must consider when evaluating a request for restraining order. The trial "court shall consider the totality of the circumstances in determining whether to grant or deny a petition for relief." (§ 6301, subd. (c).) Furthermore, the court may issue a restraining order "based solely on the affidavit or testimony of the person requesting the restraining order." (§ 6300, subd. (a).) We interpret these provisions to mean that any affidavits or declarations, and accompanying exhibits, properly served and filed must be considered by the trial court when deciding whether to grant or deny a request for a restraining order. Consequently, the trial court committed legal error when it limited its evaluation to the evidence presented at the hearing and, as a result, did not consider the declarations and exhibits submitted with plaintiff's initial request and her supplemental request for a restraining order. Under the circumstances, this legal error constitutes a prejudicial abuse of discretion and requires a new hearing.
We therefore reverse the order denying plaintiff's request and remand for further proceedings.
Plaintiff M.H. and defendant C.H. were married in December 2011. They had one minor child (daughter) and plaintiff had a daughter from a previous relationship (older sister). In March 2017, plaintiff and defendant separated. In May 2017, plaintiff filed a petition for dissolution of marriage in Kern County Superior Court.
First DVRO Request
In October 2018, while the dissolution proceeding was pending in Kern County, plaintiff filed a Judicial Council form DV-100 request for a domestic violence restraining order (DVRO) against defendant in Los Angeles County Superior Court. Plaintiff's supporting declaration described numerous instances of physical, emotional, and financial actions on the part of defendant. The trial court granted a temporary restraining order (TRO) that contained personal conduct orders prohibiting defendant from harassing, attacking, striking, threatening, assaulting, hitting, following, stalking, molesting, destroying personal property, disturbing the peace, keeping under surveillance, impersonating, or blocking the movements of plaintiff, daughter, and older sister. A hearing on the request for restraining orders was set for November 15, 2018. The appellate record does not show whether that hearing was held or how the Los Angeles County proceeding was resolved.
Judgment of Dissolution
On February 28, 2019, the Kern County Superior Court entered a judgment of dissolution terminating the parties' marriage. As stipulated by the parties, the judgment awarded plaintiff sole legal and physical custody of daughter with defendant having visitation rights with daughter "as mutually agreed to between the parties." Also as stipulated, the judgment required defendant to submit to drug testing at least twice per month at plaintiff's discretion.
December 2019 Proceedings
On December 3, 2019, defendant filed a request for an order changing certain terms of the February 2019 judgment. He requested joint legal custody of daughter with a defined visitation schedule of alternating weekends during the school year and alternating weeks while school was out. Defendant also requested that the parties exclusively utilize the "Talking Parent" communications platform for non-emergency communications.
On December 16, 2019, before filing a response to defendant's modification request, plaintiff filed a form DV-100, request for DVRO, against defendant. Before that filing, plaintiff had worked for defendant's family business and had lived on the business's property with her children.
In describing recent abuse, the form DV-100 stated that defendant had been investigated by the Department of Child and Family Services in August 2019 for giving the children shots of alcohol the prior New Year's Eve and that defendant was angry because he incorrectly believed plaintiff and older sister had reported him to the department. The form DV-100 asserted that in August 2019, defendant came into the office, closed both doors, and threatened to ruin plaintiff's life if she "didn't comply to what he wants" and then laughed when she asked him to leave.
The form DV-100 also asserted that on November 22, 2019, defendant threatened to have plaintiff fired from the family business and evicted, that defendant was "intimidating [her] by messing with the mobile home, family pets and security cameras," and that defendant subsequently had her fired and evicted from the property. Plaintiff stated defendant had taken the dogs and had one of them put down. Plaintiff also stated that she was afraid to return to the mobile home to collect her belongings because of his threats and the fear he might take her children.
The form DV-100 also stated that defendant physically and emotionally hurt older sister and had threatened plaintiff's boyfriend with physical harm. The form also stated that when older sister was around eight years old, she told defendant that she wanted to die and defendant gave her a knife and told her to kill herself. Attached to plaintiff's form DV-100 was an unsworn, handwritten statement by older sister asserting that, when defendant became angry, he "ended up hitting me and sometimes my sister" and that she continued to get hit until after her 10th birthday, when she moved out.
Based on these and other allegations, plaintiff requested a restraining order that barred defendant from (1) harassing, attacking, striking, threatening, assaulting, hitting, following, stalking, molesting, destroying personal property, disturbing the peace, keeping under surveillance, impersonating, or blocking the movements of plaintiff, daughter, older sister, or plaintiff's boyfriend; and (2) contacting, directly or indirectly, in any way, plaintiff, daughter, older sister, or plaintiff's boyfriend. Plaintiff also requested modification of existing child custody and visitation orders and an order prohibiting defendant from traveling with daughter or older sister.
On December 17, 2019, the trial court, based on the contents of plaintiff's form DV-100 and the exhibits thereto, granted plaintiff's request by issuing (1) a temporary restraining order (form DV-110) against defendant, (2) a child custody and visitation order (form DV-140) directing that defendant have no child visitation for the duration of the order, and (3) a no-travel order (form DV-145) directing that defendant not travel with the children outside of California without the permission of plaintiff. The no-travel order included findings that defendant has a history of domestic violence, child abuse, and not cooperating with plaintiff in parenting. The temporary restraining order set a hearing date for December 30, 2019. That hearing date was continued.
On January 13, 2020, plaintiff filed a responsive declaration to defendant's December 3, 2019 request for order. Plaintiff stated that she did not consent to the request for changes to the child custody or visitation provisions, and outlined actions of defendant in the prior two years that she regarded as threats against her job, her home, and her well-being. Among other things, the responsive declaration and exhibits recounted the August 2019 investigation into defendant giving the children shots of alcohol the prior New Year's Eve. The declaration also stated that older sister explained to plaintiff that she would insist on accompanying daughter on visits to defendant so that she could endure the physical abuse and her sister would be spared.
In February 2020, the trial court continued both proceedings due to potential criminal charges against defendant. On March 23, 2020, the trial court held the hearing. Plaintiff appeared and represented herself. Defendant appeared and was represented by counsel. After plaintiff testified in support of her request for a restraining order, defendant moved for a continuance to deal with a warrant. The court continued the proceedings to June 1, 2020. As no court reporter attended the hearing, there is no transcript of this hearing in the appellate record. Further orders continuing the proceedings were issued in June and September 2020.
On September 28, 2020, plaintiff filed a motion for leave to present additional evidence of abuse, including violations of the December 2019 temporary restraining order. In support of that motion, plaintiff filed another declaration with the trial court, alleging defendant had violated the terms of the temporary restraining order on the following five occasions. First, on December 30, 2019, defendant texted M.H. and referred to the temporary restraining order then in place as "fake." Second, on January 15, 2020, defendant followed plaintiff in his vehicle on the freeway to plaintiff's home. Plaintiff called the police regarding this incident. A police report was prepared, and charges were filed against defendant on March 23, 2020 over the incident. Third, on February 7, 2020, defendant removed plaintiff from his health insurance, which removal plaintiff reported to the police. Fourth, on February 12, 2020, defendant texted plaintiff. Fifth, on April 10, 2020, defendant again texted plaintiff.
Plaintiff's supplemental declaration in support of her motion for leave to present additional evidence alleged defendant was not fit to safely and responsibly care for daughter on his own based on actions daughter had witnessed and statements defendant had made, including statements that daughter would "never see" plaintiff again.
On December 18, 2020, the trial court held a hearing on the pending requests. Plaintiff appeared and represented herself. Defendant appeared and was represented by counsel. The parties were the only witnesses who testified.
Plaintiff testified regarding a January 2020 incident in which defendant followed plaintiff's vehicle to her place of employment, and which prompted her to call 911. Plaintiff also testified regarding the 2018 incident in which defendant provided alcoholic beverages to daughter and older sister. Plaintiff additionally testified regarding defendant's activities concerning family pet dogs, including having one dog euthanized, and removing others from the home plaintiff maintained. Plaintiff testified about losing her job at defendant's family-owned business and being evicted from her home on that property, both of which she attributed to defendant's intervention. Plaintiff testified that defendant openly mused to her about physically striking plaintiff's boyfriend and making that appear accidental, and the fear that she experienced as a result. Plaintiff offered testimony of a video she discovered in March 2017 on defendant's phone of defendant setting up a camera in a women's bathroom, and how that discovery led to plaintiff being afraid of her children being traumatized.
Nine pages of text messages between plaintiff and defendant as well as surveillance video images were admitted into evidence at the hearing. Plaintiff requested an additional continuance to obtain more evidence, but the trial court denied that request. Plaintiff also requested permission of the trial court to submit certain incident reports into the record as evidence. The trial court denied this request as well, holding that it was barred by the prohibition against hearsay, as contemplated by Evidence Code, section 1280, People v. Duarte (2000) 24 Cal.4th 603, and Crawford v. Washington (2004) 541 U.S. 36, 53. Defendant then made an oral motion for a directed verdict, which was denied.
During the hearing, the trial court stated its view that the three most salient episodes that plaintiff testified to in support of her request were her firing from defendant's family business, defendant's giving the children alcohol, and the euthanizing of a family dog. Plaintiff's testimony regarding the August 2019 Department of Social Services investigation of defendant giving the children alcohol was curtailed when the trial court sustained the relevancy objection of defendant's counsel to that line of testimony. The court stated: "Ma'am, I'm going to ask that you stay focused on the actions that [defendant] took against you."
On the issue of euthanizing the dog, defendant's attorney withdrew his objection as to relevance and stated he would address the issue when defendant was on the stand. When plaintiff stated her children were affected by that act, the trial court stated the need to focus on those portions of section 6203 that plaintiff felt defendant's actions violated and not whether defendant was a good parent or "whether his actions have caused the children distress."
Defendant's testimony included denials of threatening to fire plaintiff, being responsible for plaintiff's firing from his family's business, or giving the children shots of whiskey. Defendant also testified that the English Mastiff was euthanized for medical reasons based "on the vet's saying" and that she was old, blind, sickly, and could not find her water. Defendant gave his approval to the veterinarian's recommendation when the employee who took the dog to the veterinarian phoned him with the recommendation.
Plaintiff then briefly testified in rebuttal, and stated that the family dog in question was euthanized in 2019, approximately two years after she and defendant had separated.
Following closing arguments from both sides, the trial court denied plaintiff's request for a restraining order against defendant. The court explained its decision by stating:
"I say that based upon the evidence presented at this hearing. I have been participating in this case I think it was, I remember signing a judgment or I remember reviewing a judgment and recognizing that it was my signature and remembering the terms and conditions. I read through all of the statements. I reviewed all of the exhibits that were submitted both in the initial request for domestic violence restraining order and then the supplemental request.
"Had those come into evidence, the Court in all likelihood would have granted this request. The items contained in the declaration and the exhibits accompanying caused the Court great concern, but I am limited to only those things which are presented at this hearing; therefore, I cannot grant the request for a [DVRO]."
The trial court then proceeded to consider plaintiff's request for an order modifying the existing child custody, visitation and travel orders. Plaintiff testified in support of her request, but time constraints caused the court to continue the hearing on those remaining matters until December 30, 2020.
After the December 18, 2020 hearing, the court filed a minute order reflecting its denial of plaintiff's request for a DVRO. Plaintiff timely appealed.
In June 2021, this court issued an order directing the parties' appellate briefs to address whether the trial court's determination that plaintiff has not carried her burden of proof was subject to review under the finding-compelled-as-a-matter-of-law standard. (See Wells Fargo Bank, N.A. v. 6354 Figarden General Partnership (2015) 238 Cal.App.4th 370, 390; Dreyer's Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838.) We also quoted Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711, and directed plaintiff to identify with particularity each aspect of the trial court's ruling being challenged along with the corresponding standard of review.
In August 2021, plaintiff, now represented by counsel, filed an opening brief complying with our briefing instructions. Defendant did not file a respondent's brief. His failure to file a respondent's brief is not a concession and means that we "decide the appeal on the record, the opening brief, and any oral argument by the appellant." (Cal. Rules of Court, rule 8.220(a)(2).) Only if plaintiff has carried her burden of demonstrating prejudicial error, may we reverse. (Lane v. Valverde (2012) 203 Cal.App.4th 71, 74, fn. 1.) In November 2021, we granted plaintiff's motion for calendar preference.
Plaintiff contends the trial court erred as a matter of law by failing to consider all forms of abuse she alleged and by failing to base its ruling on the full record. Plaintiff contends these legal errors require this court, at a minimum, to reverse and remand with direction to the trial court to evaluate the full record before ruling on plaintiff's request. Plaintiff also contends her uncontradicted evidence met her burden of proof and requires us to direct the trial court to issue a DVRO.
I. BASIC LEGAL PRINCIPLES
A. The Domestic Violence Protection Act
"The 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.) To accomplish its purpose of preventing acts of domestic violence, the DVPA should be construed broadly. (In re Marriage of F.M. & M.M. (2021) 65 Cal.App.5th 106, 115 (F.M.); N.T. v. H.T. (2019) 34 Cal.App.5th 595, 602; In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1498, (Nadkarni).)
" 'Domestic violence'" is defined as "abuse" perpetrated against a person in one of the relationships covered by the statute, such as a spouse or former spouse. (§ 6211.) In turn," 'abuse'" occurs if the perpetrator "intentionally or recklessly cause[s] or attempt[s] to cause bodily injury"; "place[s] a person in reasonable apprehension of imminent serious bodily injury to that person or to another"; or "engage[s] in any behavior that has been or could be enjoined pursuant to Section 6320." (§ 6203, subd. (a)(1)-(4).) "Abuse is not limited to the actual infliction of physical injury or assault." (§ 6203, subd. (b).)
Pursuant to section 6320, trial courts are authorized to issue ex parte orders "enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, … harassing, telephoning, … 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 party …." (See § 6340 [order after notice and hearing].) The phrase" 'disturbing the peace of the other party'" has been interpreted to mean "conduct that destroys the mental or emotional calm of the other party." (Nadkarni, supra, 173 Cal.App.4th at p. 1497.) "Annoying and harassing an individual is protected in the same way as physical abuse." (Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 398.)
In 2020, the Legislature incorporated this definition into the DVPA. Section 6320, subdivision (c) now provides that" 'disturbing the peace of the other party' refers to conduct that, based on the totality of the circumstances, destroys the mental or emotional calm of the other party. This conduct may be committed directly or indirectly, including through the use of a third party, and by any method or through any means .…" The statute also gives examples of such conduct. (§ 6320, subd. (c)(1)-(5).)
The statutory provisions addressing the scope of evidence properly considered by a trial court are discussed in part II.A., post.
B. Standards of Review
1. Order Denying Injunctive Relief
The denial of a DVRO is appealable. (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 332; see Code Civ. Proc., § 904.1, subd. (a)(6).) "The standard of review for an order denying injunctive relief is abuse of discretion, because '" 'granting, denial, dissolving or refusing to dissolve a permanent or preliminary injunction rests in the sound discretion of the trial court upon consideration of all of the particular circumstances of each individual case' "…. [Citation.]' [Citation.]" (Nadkarni, supra, 173 Cal.App.4th at p. 1495.) "This standard applies to a grant or denial of a protective order under the DVPA. [Citations.]" (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420 (Gonzalez).) "At the outset, however, we must determine whether the trial court applied the correct legal standard to the issue in exercising its discretion, which is a question of law for this court. 'The scope of discretion always resides in the particular law being applied; action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an abuse of discretion.' [Citation.]" (Gonzalez, supra, at pp. 420-421.)
2. Questions of Law
The trial court's decision to exclude from evidence incident reports based on the application of the hearsay rule and its interpretation of the DVPA resolved questions of law. We independently review the trial court's decisions on questions of law. (Haraguchi v. Superior Court, supra, 43 Cal.4th at p. 712 ["conclusions of law are reviewed de novo"]; Isidora M. v. Silvino M. (2015) 239 Cal.App.4th 11, 16 [de novo standard of review applied to trial court's interpretation of the DVPA].) Under the independent standard of review, no deference is given to how the trial court decided the question of law. (Coburn v. Sievert (2005) 133 Cal.App.4th 1483, 1492.)
II. SCOPE OF THE EVIDENCE
The first issue we consider is raised by plaintiff's contention that the trial court erred by failing to base its ruling on the full record and, more specifically, (1) improperly limited the evidence it considered to that presented at the hearing, (2) improperly admonished plaintiff not to present evidence of defendant's abuse of her children, and (3) failed in its duty to assist an unrepresented litigant develop the record needed to make a full and fair determination on the merits.
A. Evidence Presented at the Hearing
In explaining its decision to deny plaintiff's request for a DVRO, the trial court stated it had read all of the statements and exhibits to plaintiff's initial and supplemental requests. The court also stated, "Had those come into evidence, the Court in all likelihood would have granted this request[, ] … but I am limited to only those things which are presented at this hearing." This view of the scope of the evidence that could be the basis for a DVRO is contrary to law. Application of this erroneous view was a prejudicial abuse of discretion.
1. Applicable Statutes
The statutory provisions relevant to whether the scope of the evidence properly considered when evaluating a request for a DVRO are contained in sections 6300 and 6301. Section 6300, subdivision (a) provides that a DVRO "may be issued … if an affidavit or testimony and any additional information provided to the court pursuant to Section 6306, shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse. The court may issue [a DVRO] based solely on the affidavit or testimony of the person requesting the restraining order." Section 6300 has been interpreted to permit the issuance of a DVRO" 'simply on the basis of an affidavit showing past abuse'" without a showing of a threat of future harm. (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137.) In addition, section 6301, subdivision (c) states: "The length of time since the most recent act of abuse is not, by itself, determinative. The court shall consider the totality of the circumstances in determining whether to grant or deny a petition for relief." (Italics added.) When used in the Family Code, "shall" is mandatory. (§ 12.)
2. Interpretation of Statutory Text
The trial court impliedly interpreted the statutory requirement that it "shall consider the totality of the circumstances" to mean the totality of the circumstances as shown by the evidence presented at the hearing. (§ 6301, subd. (c).) We conclude this interpretation is too narrow because section 6300, subdivision (a) states that a court may issue a DVRO "based solely on the affidavit … of the person requesting the restraining order." No language in the statutes expressly states or impliedly suggests that the phrase "based solely on the affidavit" loses its effect once an evidentiary hearing is held.
In the absence of such language, we apply the principle that the DVPA should be construed broadly to accomplish its purpose of preventing acts of domestic violence (F.M., supra, 65 Cal.App.5th at p. 115) and conclude the phrase "based solely on the affidavit" remains in full force and effect even when an evidentiary hearing has been held. Therefore, any affidavits or declarations, along with accompanying exhibits, properly filed and served may be considered by the trial court when deciding whether to grant or deny a request for a DVRO. Indeed, pursuant to mandatory language in the DVPA, the court must consider affidavits, declarations and accompanying exhibits to fulfill its obligation to "consider the totality of the circumstances." (§ 6301, subd. (c).)
3. Application of Interpretation to the Facts of This Case
Here, the trial court did not consider the totality of the circumstances properly before it because it excluded from its consideration the declarations and exhibits filed by plaintiff as part of her initial request and as part of her supplemental request. In Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, the appellate court reversed an order under the DVPA and remanded for further consideration of the plaintiff's request because the trial court erred when it did not consider the evidence tendered by both sides. (Ritchie, supra, at p. 1282; see F.M., supra, 65 Cal.App.5th 116 [failure to consider evidence in issuing a DVRO may constitute an abuse of discretion].) Here, we conclude the trial court committed a similar legal error. It abused its discretion by not considering the declarations and exhibits filed by plaintiff as part of her initial request and as part of her supplemental request. (See Oldham v. California Capital Fund, Inc. (2003) 109 Cal.App.4th 421, 430 [trial court abused its discretion by failing to consider all material facts and evidence].)
We further conclude that this abuse of discretion was prejudicial and, therefore, warrants a reversal. (Cal. Const., art. VI, § 13 [to obtain appellate relief, error must result in miscarriage of justice], see Cal. Code Civ. Proc., § 475 [errors not affecting substantial rights].) The record clearly establishes a reasonable probability that, in the absence of the error, a result more favorable to plaintiff would have been reached. The trial court stated that had it considered the statements and exhibits submitted with the initial request and supplemental request, it "in all likelihood would have granted this request." Plaintiff's reference to this statement is sufficient to carry her burden of demonstrating the failure to consider evidence was prejudicial and requires a reversal.
We commend the trial court for clearly explaining on the record the basis for its decision and the consequences of its determination to limit its evaluation to matters presented at the hearing.
B. Evidence of Abuse of Children
Plaintiff contends that evidence of defendant's abuse of her daughters constitutes a type of abuse that can be the basis for a DVRO and the trial court improperly admonished her not to present evidence regarding abuse of the children when it stated: "Ma'am, I'm going to ask that you stay focused on the actions that [defendant] took against you."
First, the statutory definition of domestic violence includes abuse perpetrated against a child of a party. (§ 6211, subd. (e).) Therefore, evidence that defendant abused plaintiff's children is directly relevant to proving past acts of domestic violence and is also relevant to whether defendant disturbed the peace of plaintiff by destroying her mental or emotional calm. (§ 6320; Nadkarni, supra, 173 Cal.App.4th at p. 1497; Gou v. Xiao (2014) 228 Cal.App.4th 812, 818.) Also, plaintiff's testimony about statements the children made about their feelings of concern or fear may be admissible under the state of mind exception to the hearsay rule. (Evid. Code, § 1250 [declarant's statement of then existing mental or physical state].)
Second, we need not consider whether the limitation imposed by the trial court's statement about staying focused constituted a prejudicial abuse of discretion because reversal is required on another ground. Accordingly, we need only identify the applicable principles and state that those principles apply to the further proceedings conducted on remand.
C. Duty to Assist Self-Represented Litigants
Plaintiff also contends the trial court erred by failing to assist her, an unrepresented litigant, in developing the factual record needed for a fair decision on the merits. Her supporting authority includes the California Code of Judicial Ethics, Gonzalez, supra, 156 Cal.App.4th 413, and Ross v. Figueroa (2006) 139 Cal.App.4th 856 (Ross).
1. Principles Governing Treatment of Self-Represented Litigants
First, we consider the general standards established by the California Code of Judicial Ethics. Under those standards, judges are required to perform the duties of their office impartially, competently, and diligently. (Nuño v. California State University, Bakersfield (2020) 47 Cal.App.5th 799, 810.) "Impartiality means the absence of bias or prejudice in favor of, or against, particular parties or classes of parties and the maintenance of an open mind in considering the issues presented." (Ibid.) In other words, the California Code of Judicial Ethics requires judges to treat all litigants fairly. (Ibid.)
Canon 3(B)(8) of the California Code of Judicial Ethics provides: "A judge shall dispose of all judicial matters fairly, promptly, and efficiently. A judge shall manage the courtroom in a manner that provides all litigants the opportunity to have their matters fairly adjudicated in accordance with the law." (Italics added.) The advisory comment recognizes that promptness and efficiency sometimes conflicts with fairness: "The obligation of a judge to dispose of matters promptly and efficiently must not take precedence over the judge's obligation to dispose of the matters fairly and with patience. For example, when a litigant is self-represented, a judge has the discretion to take reasonable steps, appropriate under the circumstances and consistent with the law and the canons, to enable the litigant to be heard." (Cal. Code Jud. Ethics, Advisory Com. com. foll. cannon 3(B)(8), italics added.) This discretion relating to self-represented litigants must be exercised in a manner that does not violate a litigant's constitutional rights of meaningful access to the courts and due process.
A handbook on judicial conduct describes ethically permissible conduct related to self-represented litigants and identifies areas where accommodation is proper. (Rothman, et al., California Judicial Conduct Handbook (4th ed. 2017) § 2:28, p. 99.) For instance, it is ethically permissible for judges to "explain court procedures, inform a party of the process for securing witnesses, and even inform a party of missing elements of proof or other legal requirements, so long as the court remains impartial and provides such guidance to all parties, whether or not they are represented. A court needs to be very careful, however, when engaging in such activities to avoid becoming an advocate and stepping out of the judicial role." (Id. at pp. 99-100.)
2. Treatment of Self-Represented Litigant Under the DVPA
Second, we consider the specific principles governing the treatment of self-represented litigants in proceedings brought under the DVPA. In Ross, supra, 139 Cal.App.4th 856, the Second District referred to a 2000 Judicial Council study and stated that, in domestic violence proceedings, "the litigants, both plaintiffs and defendants, are unrepresented by counsel in the vast majority of cases." (Ross, supra, at p. 861.) The court stated that "this fact influences how these hearings should be conducted-with the judge necessarily expected to play a far more active role in developing the facts, before then making the decision whether or not to issue the requested permanent protective order. In such a hearing, the judge cannot rely on the propria persona litigants to know each of the procedural steps, to raise objections, to ask all the relevant questions of witnesses, and to otherwise protect their due process rights." (Ibid.) The court reversed the order granting the restraining order because the trial court lacked the discretion to deny the defendant's request for a continuance. (Id. at p. 864.) The court then addressed some due process and procedural problems that should be avoided on remand. (Id. at p. 865.)
One procedural problem involved the defendant's written statement, which had not been served on the plaintiff. The defendant asked the referee if he could present the written statement and the referee answered "no," and proceeded to grant the DVRO. (Ross, supra, 139 Cal.App.4th at p. 866.) The court stated that "the referee should have advised [the defendant that] he could provide oral testimony, even though he would not be permitted to file the written statement he had failed to timely serve on [the plaintiff.]" (Ibid.) Therefore, Ross stands as an example of a case where the trial court should have advised a self-represented litigant of a procedural right and giving such guidance, by itself, would not have violated the court's duty of impartiality.
In Gonzalez, supra, 156 Cal.App.4th 413, another division of the Second District addressed the court's responsibilities in administrating the DVPA and stated that "in light of the vulnerability of the targeted population (largely unrepresented women and their minor children), bench officers are 'necessarily expected to play a far more active role in developing the facts, before then making the decision whether or not to issue the requested permanent protective order.' [Citation.] The paramount interest here, and in all similar cases, is 'the safety' of all family members. (§ 6340.)" (Gonzalez, supra, at p. 423.)
We join in the principles set forth in Ross and Gonzalez for handling self-represented litigants in proceedings under the DVPA and conclude those principles apply in a case where, as here, one party is self-represented and the other is represented by counsel. Those principles limit the trial court's discretion and place affirmative obligations on the trial court that are different from the limitations and obligations generally applicable in civil proceedings.
3. Trial Court's Approach
During the December 2020 hearing, the trial court addressed certain objections made to plaintiff's testimony and exhibits and stated that (1) it was confronting the issue that plaintiff, a self-represented litigant, was held to the same standard as an attorney, (2) about 80 percent of the explanations given to plaintiff would not have been made to an attorney, and (3) if the court explained to plaintiff what she needed "to do to get those statements in, then I have ceded my position as an impartial arbiter and have become an advocate for one side or the other."
We conclude the trial court's approach did not comport with the principles set forth in Ross and Gonzalez for handling self-represented litigants in proceedings under the DVPA and, as a result, the trial court abused its discretion. We need not discuss whether this error was prejudicial because we have already determined another ground requires reversal and a remand for further proceedings.
We note that in Taylor v. Bell (1971) 21 Cal.App.3d 1002, the court stated that "[a] lay person, who is not indigent, and who exercises the privilege of trying his own case must expect and receive the same treatment as if represented by an attorney-no different, no better, no worse." (Id. at p. 1009.) Assuming this statement remains good law, it does not apply to proceedings under the DVPA.
III. CONDUCT CONSTITUTING A FORM OF ABUSE
Plaintiff's contention that the trial court erred by failing to consider all the forms of abuse is based on the view that abuse under the DVPA includes (1) violations of a temporary restraining order, (2) unwanted contacts, and (3) defendant's threats against her and her boyfriend. We agree such conduct may constitute abuse. We need not determine whether the trial court actually concluded these acts did not constitute abuse or, alternatively, whether the court determined the evidence presented at the hearing did not adequately prove these types of abuse occurred. We simply conclude these types of conduct can constitute abuse and, therefore, allegations regarding such conduct must be considered on remand.
A. Violations of Temporary Restraining Order
Plaintiff contends it is error for a court not to consider violations of a temporary restraining order to be relevant forms of abuse. Plaintiff has correctly stated the law.
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. Applying this statutory provision, the appellate court in N.T. v. H.T., supra, 34 Cal.App.5th 595, concluded the trial court erred in deciding that a violation of the temporary restraining order was not itself an act of abuse. (Id. at p. 602.) Similarly, in F.M., supra, 65 Cal.App.5th 106, the appellate court stated that the trial court's refusal to consider postfiling evidence of the defendant's violation of the temporary restraining order, based solely on the ground that the conduct occurred after the plaintiff had filed her request for a DVRO, was legal error and, thus, an abuse of discretion. (Id. at p. 115.)
In accordance with these principles, on remand, the trial court must consider the alleged violations of the temporary restraining order set forth in plaintiff's supplemental request in determining whether defendant committed acts of abuse.
B. Unwanted Contacts
Plaintiff also contends she presented evidence that defendant repeatedly contacted her, including coming to her house and entering the property after she told him not to. We conclude that unwanted contacts are a type of conduct that a trial court might find result in "disturbing the peace of the other party" for purposes of section 6320 and, thus, constitutes a type of abuse recognized under section 6203. (See Sabato v. Brooks (2015) 242 Cal.App.4th 715, 725 [unilateral, unwanted and harassing conduct supported the issuance of DVRO]; Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 784.) Accordingly, on remand, the trial court must consider the alleged unwanted contacts in determining whether defendant's conduct disturbed the peace of plaintiff and, thus, constituted abuse.
Plaintiff contends that threats are a form of abuse and alleges that defendant made threats against her and her boyfriend. As an example, plaintiff refers to her testimony that defendant texted her, stating that maybe he would punch her boyfriend in the throat and make it look like an accident. The DVPA's definition of abuse includes conduct that is "threatening, … harassing, … or disturbing to the peace of the other party." (§ 6320, subd. (a).) Consequently, the alleged threats may qualify as abuse under one or more of these three categories of conduct. (See Perez v. Torres-Hernandez, supra, 1 Cal.App.5th at p. 398 [DVPA's definition of abuse is broader than violence or actual infliction of violence; phone calls and texts constituted abuse].) On remand, the trial court must consider the alleged threats in determining whether defendant's conduct constituted abuse.
IV. RELIEF ON APPEAL
Plaintiff requests that this court remand with directions to enter a DVRO because the uncontradicted evidence compels a ruling that she met her burden of proof. We conclude the appropriate relief is to remand with instructions for the trial court to conduct a new hearing consistent with this opinion because the trial court is best situated to evaluate the credibility of the parties and weigh the evidence.
The order denying the request for a restraining order is reversed, and the matter is remanded with directions for the trial court to conduct a new hearing on plaintiff's request and supplemental request for a DVRO consistent with the views expressed in this opinion.
Neither party shall recover costs on appeal because defendant did not file a respondent's brief or otherwise appear on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
[*] Before Detjen, Acting P. J., Franson, J. and DeSantos, J.