California Court of Appeals, Second District, Eighth Division
Order Filed 2/5/14
APPEAL from an order of the Superior Court of Los Angeles County, No. BF 040618 James D. Endman, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Legal Aid Foundation of Los Angeles, Ana M. Storey, Ji-Lan Zang; and Amanda M. Jancu for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
The trial court issued a three-year mutual restraining order against both J.J. and M.F., pursuant to the Domestic Violence Prevention Act (DVPA). (Fam. Code, § 6200 et seq.) J.J. appeals. We reverse that portion of the mutual restraining order against J.J. but otherwise affirm.
FACTS AND PROCEDURE
1. Initial Restraining Order
J.J. first applied for a domestic violence restraining order against M.F. in September 2011. J.J. sought protection for herself and the parties’ son, who was then two years old. In support of her application, she explained the following. She and M.F. started dating in December 2007 and began cohabitating in April 2009. M.F. was first physically violent with her when she was about seven months pregnant. They argued over something insignificant, and he pushed her to the ground. She was able to break her fall with her hand and avoid landing on her stomach. On another occasion, after their son was born, she told M.F. she was going to stay with her mother for a week to get help with taking care of the baby. M.F. became angry and pushed her out of the car, leaving her alone in Compton. He choked her many times during their relationship and initiated many arguments with her in front of their son. She moved out of their shared home in June 2010 when he slapped and kicked her and threw her against a glass door. The glass door cracked, and she had a cut on her back, scratches on her chest, and marks on her throat from where he choked her.
Around September 2011, M.F. repeatedly came to J.J.’s apartment and demanded that she hand over their son. He also sent his friends to her apartment looking for her. M.F. told her he was going to get joint custody of their son so he would not have to pay child support. Beginning around August 3, 2011, he sent threatening text messages to her, saying, among other things: “When I see you I’m going to f you up”; “You’re a stupid b, you’re going to suffer”; “I’m going to get my way one way or the other. I’m going to f you up”; and “I’m going to hurt your money income. Joint custody means no child support and welfare.” He had been sending her messages of this nature up to the night before she applied for the restraining order. Approximately two days before she filed her application, she and her son moved to a confidential location. The court entered a temporary restraining order (TRO), and after a hearing, the court issued the requested three-year restraining order on September 28, 2011.
2. Motion to Set Aside Restraining Order and Attempt to Vacate Set Aside Order
In January 2012, M.F. filed a motion to set aside the restraining order on the ground he did not have notice and an opportunity to respond to J.J.’s application. He also asserted he had never caused or threatened harm to J.J. J.J. did not appear at the hearing on the motion to set aside, when the court granted the motion.
In September 2012, J.J. applied ex parte to vacate the order setting aside the restraining order. She stated she had never received notice of the motion to set aside and did not discover her restraining order was ineffective until September 2012. She also explained she did not give M.F. notice of her application for a restraining order until after the court had entered the TRO. Once the court did, however, she personally served him with the TRO, her application, and notice of the hearing. On the other hand, the address he listed for her on his proof of service for the motion to set aside was not her address it was the address for the superior court on Commonwealth Avenue. Hence, she never received notice of the motion. She only discovered the court had set aside her restraining order because M.F. went to J.J.’s mother’s house while J.J. was at work and tried to take their son from the house, and her cousin, who was babysitting their son, called the police. When she told the police M.F. was violating a restraining order by trying to take their son, the police checked their system and told her there was no restraining order. Given that M.F. had shown up at her ...