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Loeffler v. Medina

June 18, 2009

HOLLY LOEFFLER, PLAINTIFF AND RESPONDENT,
v.
WILLIAM M. MEDINA, DEFENDANT AND APPELLANT.



APPEAL from an order of the Superior Court of San Diego County, Christine K. Goldsmith, Judge. Affirmed. (Super. Ct. No. EV002236).

The opinion of the court was delivered by: Irion, J.

CERTIFIED FOR PUBLICATION

William M. Medina appeals from an order denying his application to terminate a domestic violence restraining order issued under Family Code*fn1 section 6345, subdivision (a) and requiring him to pay a portion of the attorney fees and costs of the prevailing party. Applying the standard applicable to motions to dissolve injunctions set forth in Code of Civil Procedure section 533, we conclude that the trial court was within its discretion to deny Medina's application. We further conclude that the trial court properly awarded attorney fees and costs to the prevailing party under section 6344. Accordingly, we affirm the order.

I. FACTUAL AND PROCEDURAL BACKGROUND

Holly Loeffler and Medina began living together in 1995 in a home they purchased together in Jamul, California. Their relationship ended in 2001, and Loeffler remained in the house. In April 2001, based on Loeffler's allegations about Medina's behavior toward her, the trial court issued a restraining order pursuant to section 6340, restraining Medina from, among other things, contacting, harassing, threatening, or coming within 200 yards of Loeffler and her teenaged daughter.*fn2 Pursuant to the statutory requirements for the issuance of a domestic violence restraining order, Medina was also ordered to relinquish any firearms in his possession.*fn3 (§ 6389.) The domestic violence restraining order was to expire in April 2004.

Three years later, in April 2004, Loeffler applied for an extension of the restraining order. In support of her application, Loeffler submitted a declaration detailing the reasons she was concerned that Medina might harass or harm her if the restraining order was not renewed, including that (1) she was recently the prevailing party to a real property partition action against Medina concerning their jointly owned home, and (2) she had experienced several acts of vandalism and harassment in which she suspected Medina. The hearing on the application was delayed while Loeffler attempted to locate and serve Medina. The trial court eventually ruled that Medina could be served by substituted service directed to the clerk of the court. Medina did not appear for the hearing, and on June 23, 2004, the trial court ruled that the "restraining order is extended indefinitely. No expiration."*fn4

Three months later, on August 23, 2004, Medina filed an application for an order terminating the permanent restraining order. Among other things, Medina contended that Loeffler knew his address but did not give him notice of the application to renew the restraining order, and he denied taking part in any harassment of Loeffler or vandalism of her property. Medina also stated, "I plan on returning to law enforcement work in the near future and I need to have the restraining order . . . terminated, as it was issued based on falsely stated facts and allegations." The trial court denied Medina's application to terminate the permanent restraining order, specifically rejecting Medina's argument that Loeffler had not given him proper notice of her application to renew the restraining order. There is no indication that Medina appealed this order.

Almost two years later, on June 7, 2006, Medina filed another application to terminate the permanent restraining order. In support of the application, Medina declared that he resided in Arizona, had recently married, had minimal contact with the San Diego area, and wanted the restraining order lifted because it was impacting his employment on government contracts and his possible future activity as a reserve law enforcement officer. The trial court continued the hearing on the application so that Loeffler could conduct discovery.

The trial court heard testimony on September 27, 2007, November 30, 2007 and February 15, 2008.*fn5 Loeffler testified to events occurring in 2002, 2003 and 2004, including Medina's violation of the restraining order during their litigation of the partition action, her belief that Medina was involved in vandalizing her property and Medina's brother's videotaping of her property.

With respect to more recent events, Loeffler described (1) vandalism of her car in the summer of 2006 by an unknown person; (2) a telephone message she received in June 2006 from a man named J.D. Killer stating that he had found a check from Medina's construction company that had her phone number printed on it; (3) calls that she received in August 2006 from Medina's creditors who were given her telephone number; (4) unsolicited advertisements for life insurance received on her fax machine in mid-2006, which she thought may have been instigated by Medina because they were received around specific dates such as court hearings and filings; and (5) the fact that someone placed a "for sale" sign on her car in March 2007. Loeffler testified that she had seen Medina driving in the Jamul area several times, including on a date that he had claimed not to be in town. She testified that she is afraid of Medina, and that if the restraining order were lifted she would consider moving away to hide.

In addition, although Medina stated in a May 24, 2006 declaration that the only contact he had with San Diego in nearly a year was to collect and bring the rest of his personal property to Arizona, the evidence established that Medina was in San Diego several times during that period. The evidence was that Medina was in San Diego in November 2005, in January 2006 and on May 21, 2006. Medina also admitted that he still had an apartment in La Mesa during 2006, and that he was in San Diego for a court appearance in July 2006 but stayed extra days to spend time with one of his sons. Moreover, Medina has numerous close family members living in the San Diego area, his new wife has close friends in the area with whom she and Medina stay when they are in town, and Medina's parents live less than three miles from Loeffler's house.

Medina testified about his recent work history, including several construction jobs for the military. He also stated that he was planning to move to New Mexico shortly, and that in New Mexico he was interested in volunteering for the fire department or the federal forestry station. He admitted that neither position would require him to carry a gun.

The trial court issued a detailed statement of decision in which it acknowledged that it was uncertain about the legal standard for deciding an application to terminate a domestic violence restraining order.

"The statute does not articulate what standard the Court should use upon a request to terminate an order. It should be noted that [Code of Civil Procedure section] 1008 provides that a party making a motion to reconsider or revoke an order must 'state by affidavit . . . what new or different facts, circumstances, or law are claimed to be shown.' While the present case is clearly not a motion under [Code of Civil Procedure section] 1008, the Court adopts this standard in considering the motion at hand." Applying that standard, the trial court found that "there are few 'changed circumstances' in this case that would justify a termination of the order." Although Medina had moved to Arizona and recently married, the trial court observed that Medina nevertheless "returns to San Diego County to visit friends and relatives," and "[t]here has been contact since he moved out of state." Although Medina had asked that the restraining order be terminated because his employment in the construction industry required a security clearance, the trial court found that Medina "has been able to work in his field, despite the [restraining] order." Finally, although Medina had cited his desire to volunteer once again for law enforcement and possess firearms in that position, the trial court found that "[s]imply because he 'might' volunteer again is not justification to remove the order and allow him to possess firearms."

In its statement of decision, the trial court also discussed the standard for deciding an application to renew a domestic violence restraining order, as set forth in Ritchie v. Konrad (2004) 115 Cal.App.4th 1275 (Ritchie). As the trial court observed, Ritchie held that "[a] trial court should renew the protective order, if, and only if, it finds by a preponderance of the evidence that the protected party entertains a 'reasonable apprehension' of future abuse." (Id. at p. 1290.) The trial court stated that "[a]lthough the present case is not a request by [Loeffler] to extend and make permanent a restraining order, this Court finds that [Loeffler] does, by a preponderance of the evidence, continue to have a reasonable apprehension of future abuse based upon the testimony and evidence presented." To support this conclusion, the trial court found that "the parties parted in a very hostile manner and resentment, particularly relating to the Jamul property, remains until this day. The Court, in assessing the credibility of the parties' testimony believes [Loeffler's] statement that she is afraid."

The trial court also expressly made a negative credibility determination with respect to Medina, finding that Medina "was not truthful in many particulars of his testimony, such as his education, his bills, type and length of work with the San Diego ...


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