Opinion
E051239 Super.Ct.No. IND099786
08-17-2011
PAULA R. PARIS, Plaintiff and Appellant, v. FAREED M. SALAHUDDIN, Defendant and Respondent.
Gregory & Rhea, Kenneth C. Gregory, and Joseph T. Rhea for Plaintiff and Appellant. No appearance for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. J. Michael McCoy, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed with directions.
Gregory & Rhea, Kenneth C. Gregory, and Joseph T. Rhea for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
I. INTRODUCTION
Paula R. Paris appeals from a May 5, 2010, order restraining her from engaging in specific acts of abuse against her former cohabitant and fiance, Fareed M. Salahuddin, under the Domestic Violence Prevention Act (the DVPA). (Fam. Code, § 6200 et seq.)Paris claims the order restraining her must be reversed because the family court issued separate but "mutual" restraining orders against both her and Salahuddin, without making "detailed findings of fact indicating that both parties acted primarily as aggressors and that neither party acted primarily in self-defense," as section 6305 requires.
All further statutory references are to the Family Code unless otherwise indicated.
Section 6305 provides that a court may not enter "a mutual order" restraining "the parties" from engaging in specific acts of abuse described in section 6320, unless "(a) 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." If the court enters a mutual order without making the required factual findings, it acts in excess of its jurisdiction and the order is voidable. (Monterroso v. Moran (2006) 135 Cal.App.4th 732, 737-739 (Monterroso).)
We conclude that the two separate but mutual orders against Paris and Salahuddin must both be reversed and the matter remanded to the family court with directions to consider whether both parties acted primarily as aggressors and not primarily in self-defense. (§ 6305.) Based on the evidence presented at the May 5, 2010, hearing on the parties' applications for restraining orders against each other, the family court could have found that either party or both acted primarily as aggressors and not primarily in self- defense. If on remand the court finds that both parties acted primarily as aggressors and not primarily in self-defense, then the mutual orders may reissue. (§ 6305.) If, however, the court finds that only one party acted primarily as the aggressor and not primarily in self-defense, it may issue a restraining order against that party only. (§ 6300.)
Salahuddin did not appeal from the separate May 5, 2010, order restraining him from engaging in specific acts of abuse against Paris. Still, the order against him must be reversed and remanded for factual findings along with the order against Paris, because the two orders together constitute "a mutual order" subject to the factfinding requirement of section 6305. If we were to reverse only the order against Paris and on remand the family court does not find that Salahuddin acted primarily as an aggressor and not primarily in self-defense, then Paris would unjustly benefit from the court's original failure to make the required findings.
Salahuddin appealed from a subsequent July 14, 2010, order imposing $1,500 in sanctions against him for failing to comply with that portion of the court's May 5, 2010, order requiring him to promptly sell or surrender all firearms in his possession and control. (Code Civ. Proc., § 177.5.) Salahuddin's appeal from the sanctions order was assigned case No. E051425 and was consolidated with Paris's earlier-filed appeal in case No. E051239. On May 10, 2011, this court dismissed Salahuddin's appeal from the sanctions order. In the same order, we ordered that Paris's appeal was fully briefed and that we would decide that appeal based on the record, Paris's opening brief, and any oral argument presented by Paris because Salahuddin did not timely file a respondent's brief to Paris's opening brief on her appeal.
II. FACTUAL AND PROCEDURAL BACKGROUND
On March 22 and 25, 2010, respectively, Salahuddin and Paris filed requests with the family court seeking domestic violence protective orders against each other on Judicial Council form DV-100 (Request for Order (Domestic Violence Prevention)). (§ 6200 et seq.) Among other relief, each party sought an order directing the other not to "[h]arass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance, or block movements" of the other party. (See § 6320.) The family court promptly issued temporary restraining orders against both parties.
A hearing on Salahuddin's request for a permanent restraining order against Paris was scheduled for April 14, and a hearing on Paris's request for a permanent restraining order against Salahuddin was set for April 16. At the April 14 hearing, the family court told the parties they each had a right to file an answer to the other's request, and urged the parties to agree to have their requests heard at the same time. The parties agreed to a combined hearing, and the court continued the matters to May 5. Meanwhile, the parties filed answers on Judicial Council form DV-120 (Answer to Temporary Restraining Order), and in their answers provided additional statements in support of their own requests.
Salahuddin represented himself at the May 5 hearing, and Paris was represented by counsel. In presenting his case, Salahuddin repeated the statements he made in his request for order and answer. He described an incident that occurred on March 21 after he and Paris finished eating dinner. According to Salahuddin, Paris was in an "unpleasant mood" after consuming a "large martini glass" of "pure vodka," so he suggested they go to a video store to get some DVD's. On their way to the video store, Paris began arguing with Salahuddin about money. When they arrived at the video store, Paris was angry and refused to get out of the car. After Salahuddin returned to the car, Paris resumed "the heated discussion."
Salahuddin was driving on Highway 111 at approximately 50 to 55 miles per hour when Paris suddenly struck him in the mouth. When he turned to look at Paris, he saw she had removed her right arm from her shoulder seat belt and was facing him "on her knees" in her seat. In attempting to "block" Paris's arm from striking him again, he struck Paris on her right check just below her right eye. He claimed he hit Paris in "self-defense" and not as "a deliberate act." His inner lip was slightly swollen from being struck by Paris.
Paris began screaming for help, and threatened to use one of Salahuddin's firearms to kill him while he was sleeping. Salahuddin stopped talking or arguing with Paris, and drove to Paris's home in Indio, where he and Paris had been living together for two and one-half years. They were also engaged to be married. Upon returning home, Salahuddin removed his firearms from the house and garage and placed them in a lockbox in the trunk of his car. Paris was saying she could not see out of her right eye and called a friend to drive her to the emergency room.
Meanwhile, Salahuddin left Paris's house to "secure the firearms" by taking them to another location. When he returned, the security guard at the gate told him that the owner of the house had demanded he be denied entry. He asked the guard to call the police, and the police escorted him to the house so he could retrieve his clothing and tools "for work in the morning." Paris was not at home when Salahuddin and the officers arrived at her house. Before entering the house, the officers asked Salahuddin whether there were any firearms in the house. Salahuddin told the officers he had "removed and secured" his firearms away from the house because Paris had threatened his life.
After entering the house, Salahuddin and one of the officers discovered they were both former United States Marines. The officer then "closely approached" Salahuddin and told him "the first thing" he "needed" to do in the morning was file a restraining order against Paris. Salahuddin told the officer he did not think that would be necessary. The officer then explained to Salahuddin that if he did not "move first" to become the "protected party," he would be required to sell or surrender his firearms in the event Paris obtained a restraining order against him. The next morning, on March 22, Salahuddin "act[ed] upon" the officer's advice and filed his request for a restraining order.
In her March 25 application, Paris claimed that Salahuddin struck her in her right eye and cheek while driving on Highway 111 and after "just starting out from a signal light." He struck her with "such force" that she lost the sight in her right eye for a "long while." He also "rammed" her upper right arm into the car door and bruised it when he struck her, and he repeatedly hit her right thigh with his fist while driving and screaming epithets at her. After they returned home, Salahuddin took his guns from the house and garage and put them in his car trunk, which frightened Paris because she did not know what he planned to do with them.
Paris "adamantly den[ied]" threatening to kill Salahuddin in his sleep. She also claimed he had "escalated" his verbal abuse of her over the past year; had "chest-bumped" her; and "punched the pillow [her] head was on when he became angry." Along with her March 25 application, Paris submitted two photographs showing bruising on her right check below her right eye. She did not testify or present any additional evidence at the May 5 hearing.
After Salahuddin presented his evidence at the May 5 hearing, counsel for Paris asked the court to deny his request for a protective order on the ground he admitted he filed his request only to "protect his firearms," which was "obviously an illegitimate use of a [temporary restraining order] . . . ." Counsel also argued that the court should issue a protective order against Salahuddin because he admitted hitting Paris below her right eye and also admitted having a "trunk load of guns," which he had yet to sell or surrender pursuant to the court's March 25 temporary restraining order against him.
In response, Salahuddin argued that he filed his March 22 request for a protective order because Paris had threatened his life, and that was also why he removed his firearms from her house and garage. He had not sold or surrendered his firearms pursuant to the court's March 25 temporary restraining order against him because he had been advised and believed he did not have to do so because he was the "protected person" in the March 22 temporary restraining order against Paris.
After the parties submitted their respective requests for protective orders based on the evidence presented at the May 5 hearing, the court found both parties had "met the burden of proof to grant restraining orders." The court issued two separate restraining orders which, among other things, directed each party not to "harass, attack, strike, threaten, assault sexually or otherwise, hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance or block movements" of the other party. The orders were to remain in effect for five years, through May 4, 2015.
III. DISCUSSION
Under the DVPA, the family court may issue a protective order enjoining a party from committing "specific acts of abuse," described in section 6320, against the enjoined party's current or former cohabitant, among other persons. (§§ 6211, 6218, 6300, 6320.) The order must be based on "reasonable proof to the court of "a past act or acts of abuse" as shown in an affidavit submitted by the moving party. (§ 6300.)
Section 6305 governs the issuance of "a mutual order" enjoining "the parties" from engaging in "specific acts of abuse described in Section 6320 . . . ." (§ 6305.) Section 6305 provides: "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." (Italics added.)
Section 6320 allows the family court to issue an ex parte order enjoining a party from "molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning . . . destroying personal property, contacting . . . or disturbing the peace of the other party. . . ." Judicial Council form DV-100 (Request for Order (Domestic Violence Prevention)) allows a party applying for a protective order to check a box asking the court to specifically order that a person be restrained from engaging in acts described in section 6320.
As indicated, Paris and Salahuddin filed their applications for protective orders on Judicial Council form DV-100. In the preprinted language of the form, both parties asked the court to issue orders directing each other not to "[h]arass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance, or block movements" of themselves and, in Paris's case, other family and household members. The protective orders issued by the family court tracked the preprinted language of the form which, in turn, substantially tracks the language of section 6320.
Paris claims the order restraining her must be reversed because the court did not make the detailed "findings of fact" described in section 6305 in issuing the "mutual" orders against herself and Salahuddin. Whether section 6305 requires reversal of the order against Paris or the mutual order against both parties is a question of law which we review de novo. (Monterroso, supra, 135 Cal.App.4th at p. 736.) A. The Present Case Involves "a Mutual Order" for Purposes of Section 6305
We first address whether the present case involves "a mutual order" subject to the detailed factfinding requirement of section 6305. This is not a settled question under current case law. We conclude that two restraining orders issued on May 5, 2010—the one against Paris and the one against Salahuddin—together constitute "a mutual order" for purposes of section 6305.
In construing a statute, our "fundamental task" is to ascertain the intent of the Legislature so that we may implement the Legislature's intent in enacting the statute. (Day v. City of Fontana (2001) 25 Cal.4th 268, 272.) We first examine the language of the statute, giving the words their usual and ordinary meaning and construing them in context. (People v. Lawrence (2000) 24 Cal.4th 219, 230.) If the language is not ambiguous, the plain meaning of the language governs. (Id. at pp. 230-231.) If the statutory terms are ambiguous, we may resolve the ambiguity by resorting to extrinsic courses, including the ostensible objects to be achieved and the legislative history. (People v. Coronado (1995) 12 Cal.4th 145, 151.) "In such circumstances, we '"select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences." [Citation.]'" (Day v. City of Fontana, supra, at p. 272.)
As used in section 6305, the phrase "a mutual order" may refer to a single order restraining two opposing parties from engaging in the acts of abuse described in section 6320. The phrase may also refer to or encompass two separate orders which together accomplish the same result as a single order. (§ 6305.) We believe the latter interpretation comports most closely with the apparent intent of the Legislature in enacting section 6305. The two orders against Paris and Salahuddin were issued on the same date, May 5, 2010, following a combined evidentiary hearing on the parties' reciprocal requests for protective orders against each other. Together, the orders constitute "a mutual order" in the sense that they restrain both parties from engaging in specific acts of abuse against each other. (§ 6305.)
The two orders are not identical because they do not provide for "mutual" relief in favor of each party in all respects. For example, the order in favor of Paris protects not only Paris but several other persons who are members of her family or household, whereas the order in favor of Salahuddin protects only Salahuddin. Nevertheless, section 6305 does not state that it applies only to orders that are "mutual" or identical in all respects. Instead, it states that it applies to "a mutual order enjoining the parties from specific acts of abuse described in Section 6320 . . . ." (§ 6305.)
Further, the language of section 6305 is directed squarely at the issuance of an order or orders enjoining two opposing parties from engaging in specific acts of abuse against each other—particularly when, as here, the order or orders are issued following a single evidentiary hearing on the parties' separate but reciprocal applications for protective orders against each other. By its terms, the statute authorizes the family court to issue "a mutual order" enjoining "the parties" from specific acts of abuse described in section 6320, provided two conditions are met: "(a) . . . 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." (§ 6305.)
Although the statute says nothing about applying solely to orders issued following a combined evidentiary hearing on two opposing parties' applications for protective orders against each other, the statute plainly contemplates that any "mutual order" subject to its detailed factfinding requirement will be issued as following a combined evidentiary hearing at which "both parties appear and present written evidence of abuse or domestic violence," and at which both parties seek orders enjoining the other from engaging in specific acts of abuse described in section 6320.
To illustrate, it is useful to compare the two protective orders issued in the present case, which were issued following a single evidentiary hearing on the parties' separate requests for protective orders against each other, to the two orders issued in Conness v. Satram (2004) 122 Cal.App.4th 197 (Conness), which were issued following separate evidentiary hearings on different dates.
The court in Conness concluded that the factfinding requirement of section 6305 does not apply to protective orders issued on different dates, even though the orders are "mutual" in the sense they enjoined "the parties" from engaging in specific acts of domestic violence described in section 6320 against each other. (Conness, supra, 122 Cal.App.4th at pp. 202-203.) The court first noted that if the second party's later-filed application for a protective order were treated as an application for "a mutual order," the first party to apply for and obtain a protective order could "thwart" the second party's ability to obtain a "mutual" order "by the simple expedient of failing to appear" at the hearing on the second party's application. (Id. at p. 203.) The court reasoned that the Legislature "could not have intended such a result." (Ibid., fn. omitted.)
The court also pointed out that "a difficult retroactivity question" would be presented if the second separately-filed request for a protective order was treated as an application for "a mutual order." (Conness, supra, 122 Cal.App.4th at p. 203.) The court posed the following question: If the second application was treated as a request for a mutual order, should the detailed factfindings requirement of section 6305 apply retroactively to the first, previously-issued protective order? (Conness, supra, at p. 203.) The court answered this question in the negative, reasoning: "If not, the winner of the race to the courthouse receives the benefits of his or her share of the 'mutual' order without complying with the requirements designed to ensure that the mutuality is appropriate. On the other hand, applying section 6305 retroactively would lead, presumably, to vacating a validly issued order for the failure to provide procedural protections inapplicable at the time of the hearing. A trial court's ability to unravel this procedural snarl would be limited, particularly in those situations where the original order was issued by the superior court in a county different than the one with jurisdiction over the second order." (Ibid., fn. omitted.)
The "thwarting" and retroactivity problems discussed in Conness are not present here, because a single evidentiary hearing was held on the parties' applications, and the two protective orders were issued following the combined evidentiary hearing. In sum, the two orders constitute "a mutual order" within the meaning of section 6305 because they were issued following a combined evidentiary hearing, and because the orders enjoined both parties from engaging in specific acts of abuse described in section 6320. B. The Two Orders Restraining Paris and Salahuddin Must Be Reversed
Having concluded that the two protective orders in favor of Paris and Salahuddin constitute "a mutual order" subject to the detailed factfinding requirement of section 6305, we now address Paris's claim that the order against her must be reversed because the court issued it without making detailed findings of fact indicating that she acted primarily as the aggressor and not primarily in self-defense. (§ 6305.) We agree with Paris that the order enjoining her from specific acts of abuse must be reversed, but we also conclude that the order against Salahuddin must likewise be reversed.
Paris relies on Monterroso, supra, 135 Cal.App.4th 732, where the court reversed a single, mutual restraining order against a husband and wife on the ground the family court did not make the detailed findings of fact required by section 6305. (Monterroso, supra, at pp. 734, 736.) The court reasoned that "[t]he language of section 6305 is clear and its plain meaning must be respected," and a family court acts "in excess of" its jurisdiction when it enters a mutual restraining order without making the detailed findings of fact required by section 6305. (Monterroso, supra, at pp. 734, 736.)
In Monterroso, the wife applied for a restraining order against the husband, but the husband did not apply for a restraining order against the wife. (Monterroso, supra, 135 Cal.App.4th at pp. 734-735.) The husband, represented by counsel, filed an answer and appeared at the hearing on the wife's application. The wife was not represented by counsel and needed a Spanish-language interpreter. (Id. at p. 737.) At the hearing, the wife agreed to a mutual restraining order as a means of resolving the matter, and the court entered a six-month mutual restraining order against both parties. (Id. at pp. 735-736.) The family court did not explain to the wife the ramifications of a mutual restraining order, and it did not appear to the appellate court that the wife understood those ramifications. (Id. at pp. 737.) Thus, the appellate court concluded that the wife was not estopped from challenging the mutual restraining order on appeal. (Ibid.)
The Monterroso court reasoned that the detailed factfinding requirement, which was added to section 6305 in 1995 (Stats. 1995, ch. 246, § 2, p. 852), "helps 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 party's importunities or the court deciding that a mutual order is an expedient response to joint claims of abuse." (Monterroso, supra, 135 Cal.App.4th at p. 737, quoting Conness, supra, 122 Cal.App.4th at p. 204.) The court also pointed out that the family court had apparently entered the mutual order as "an expedient way to protect or mollify [the husband] and resolve the matter without reaching the merits." (Monterroso, supra, at p. 738.)
Lastly, the court cited a 1996 final report issued by the Judicial Council Advisory Committee on Gender Bias in the Courts, which found that "'mutual restraining orders create difficult enforcement problems' because the police often do not know whom to arrest if there is a subsequent altercation and may end up arresting both parties or neither party. Moreover, 'the committee received convincing testimony that victims of domestic violence who have not engaged in an act of violence are confused, humiliated, and degraded by orders restraining them from such conduct.' Some witnesses 'reported that mutual restraining orders give victims the message that they are being blamed.' According to the committee, '[p]erhaps a potentially volatile courtroom situation is diffused somewhat by issuing orders against both parties, but respect for the law is undermined.'" (Monterroso, supra, 135 Cal.App.4th at p. 738.)
We believe that the reasoning of Monterroso is sound and requires reversal of the mutual restraining orders against both parties. To be sure, the language of section 6305 does not allow a court to issue a mutual order enjoining two parties from specific acts of abuse unless "the court makes detailed findings of fact indicating that both parties acted primarily as aggressors and that neither party acted primarily in self-defense." (§ 6305; Monterroso, supra, 135 Cal.App.4th at p. 736.)
The family court here did not make the required factfindings under section 6305 before it entered the mutual restraining orders against both parties. Instead, it found that both parties "met the burden of proof to grant restraining orders." This satisfied the general requirement of section 6300 that a protective order may issue upon "reasonable proof to the court" of "a past act or acts of abuse," but it did not satisfy the specific factfinding requirement of section 6305, which is a jurisdictional prerequisite to the family court's power and authority to enter a mutual restraining order against two opposing parties. (Monterroso, supra, 135 Cal.App.4th at p. 737.)
In issuing the restraining orders against both parties without making the required factfindings, the court acted in excess of its jurisdiction and rendered both of the orders voidable. (Monterroso, supra, 135 Cal.App.4th at pp. 737-739.) The court in Monterroso reversed a mutual order against a husband and wife because the family court did not make the detailed factual findings required by section 6305. Though only the wife appealed, reversal of the entire mutual order was necessary because it was not supported by the required factual findings.
The same is true here. Even though the two mutual orders were issued on separate documents rather than a single document, as in Monterroso, the mutual orders are not supported by the required detailed factual findings. The mutual orders must therefore be reversed and the matter remanded to the family court with directions to reconsider the evidence presented at the May 5, 2010, hearing, and determine whether the evidence warrants the issuance of a mutual restraining order against both parties (§ 6305), or a nonmutual restraining order against only one party (§ 6300).
We note that, based on all of the evidence presented at the hearing, the court could have found that "both parties acted primarily as aggressors and that neither party acted primarily in self-defense." (§ 6305.) But the court also could have found that one party or the other, but not both, acted primarily as the aggressor and not in self-defense.
Salahuddin presented evidence that he did not act primarily as the aggressor but acted primarily in self-defense when he struck Paris on her right cheek below her eye. (§ 6305.) He claimed that Paris intentionally struck him while he was driving, and he inadvertently struck her right cheek while attempting to block her arm from striking him again. If the court found Salahuddin's entire account credible, then Salahuddin did not act primarily as an aggressor and acted primarily in self-defense.
Notably, Paris did not deny that she struck Salahuddin before he struck her, either in her request for order, which was filed after Salahuddin's request was filed, or in her answer to Salahuddin's request for order. Paris did deny, however, that Salahuddin "inadvertently" struck her in the eye as he claimed. She claimed he deliberately "punched" her in the eye, and the photographs of her eye showed bruising below her eye. Paris also claimed that Salahuddin "rammed" her upper right arm into the car door, and continued hitting her with his fist on her right thigh.
If the family court did not believe Salahuddin's claim that Paris struck him before he struck her, then it could have found that Salahuddin acted primarily as an aggressor and not primarily in self-defense, but it could not have also found that Paris acted primarily as an aggressor but not in self-defense. Alternatively, if the court believed both parties aggressively struck each other, then it could have found that both acted primarily as aggressors and neither acted primarily in self-defense. Only the latter finding will support issuance of mutual restraining orders against both parties. (§ 6305.) On remand, the court must reconsider the evidence and make the appropriate findings.
IV. DISPOSITION
The two May 5, 2010, orders restraining Paris and Salahuddin from engaging in specific acts of abuse described in section 6320 are reversed. The matter is remanded to the trial court with directions to reconsider the evidence presented at the May 5, 2010, hearing, and determine whether, based on that evidence, a mutual restraining order against both parties or a single restraining order against one party should issue. The parties shall bear their respective costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
King
J.
We concur: Hollenhorst
Acting P.J.
Codrington
J.