Monday, July 6, 2020
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Court of Appeal:
DVPA Order Doesn’t Require Finding of Probable Future Danger
Family Code §6300 Calls for Protection Based Only on Past Acts, Willhite Says
By a MetNews Staff Writer
A domestic violence restraining order may be issued in the absence of a finding that the defendant is prone to commit future acts of abuse, the Court of Appeal for this district held yesterday.
Justice Thomas L. Willhite Jr. of Div. Four wrote the opinion, which was not certified for publication. It affirms an order, pursuant to the Domestic Violence Prevention Act (“DVPA”), made by then-Los Angeles Superior Court Judge Hank Goldberg, now with an alternative dispute resolution firm.
Yuan Wang argued that the order was infirm because no finding was made of a probability of future acts of violence by her against her husband, Mitchell Edward Dauterive. Rejecting that proposition, Willhite pointed to the wording of Family Code §6300.
It provides that where the plaintiff “shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse,” the judge “may issue an order under this part based solely on the affidavit or testimony of the person requesting the restraining order.”
Under that language, Willhite said, a finding of a probability of future abuse “is not required.”
Future Acts
Wang pointed to §6220 of the Family Code, which says that 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.” Accordingly, she argued, the order cannot stand given the lack of a finding of a need to prevent future acts of the sort described in the statute.
Willhite responded:
“Her reasoning is faulty. By specifically stating in section 6300 that a protective order may issue upon satisfactory proof of past acts of abuse, the Legislature necessarily has determined that a demonstration that future abuse is likely is not necessary to satisfy the purpose expressed in section 6220.”
Wang Cites Precedent
Wang—whose acts included punching and slapping her husband and threatening to kill both of them—observed that a domestic violence restraining order is in the nature of an injunction and quoted the 2005 Court of Appeal opinion in Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. as saying (quoting a 1999 decision, and adding italics):
“[I]njunctive relief lies only to prevent threatened injury and has no application to wrongs that have been completed.… It should neither serve as punishment for past acts, nor be exercised in the absence of any evidence establishing the reasonable probability the acts will be repeated in the future.”
Willhite remarked:
“The principle articulated in Huntingdon does not apply here, however, because that case involved an injunction issued under Code of Civil Procedure section 525 et seq., which governs general civil injunctions. By enacting section 6300 the Legislature has determined that in the case of domestic violence, all that is required for issuance of a restraining order is evidence of past abuse.”
Two Cases
The appellant cited two cases for the proposition that a domestic violence restraining order should not be renewed unless it appears that the person who is protected by it has reasonable apprehension of further harm. The jurist said:
“In those cases, however, the appellate courts were not reviewing the issuance of restraining orders under section 6300. Rather, the courts were reviewing the renewal (or denial of renewal) of such an order, which is governed by section 6345.
“Unlike section 6300, section 6345 does not include a provision stating what showing is sufficient for renewal of a restraining order.”
Order Has Expired
Goldberg made the two-year order on Feb. 16, 2018. Willhite said in a footnote:
“We note that the protective order expired under its own terms less than three months after Wang filed her appellant’s opening brief. In light of the fact that there could be negative effects from having a domestic violence protective order issued against her…, we find this appeal is not moot.”
A new temporary restraining order against Wang was issued on Feb. 24 by Los Angeles Superior Court Judge David Friedman. A hearing on a domestic violence restraining order was scheduled for June 15 but was taken off calendar pursuant to stipulation.
The case is Dauterive v. Wang, B291604.
Benjamin Ekenes and John L. Dodd of the Irvine firm of John L. Dodd & Associates represented Wang. There was no appearance for her husband.
Dauterive filed for dissolution of marriage on July 10, 2017.
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