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Isidora M. v. Silvino M.

California Court of Appeals, Second District, Third Division

July 31, 2015

ISIDORA M., Plaintiff and Appellant,
v.
SILVINO M., Defendant and Respondent.

APPEAL from an order of the Superior Court of Los Angeles County, No. KQ017897 H. Don Christian, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

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[Copyrighted Material Omitted]

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COUNSEL

Neighborhood Legal Services, Natalie Samarjian and David Pallack for Plaintiff and Appellant.

Guerrero & Chan, Marissa E. Barela and Daniel A. Guerrero for Defendant and Respondent.

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OPINION

EDMON, P. J.

Plaintiff and appellant Isidora M. (Isidora)[1] appeals the trial court’s issuance of a mutual restraining order insofar as the order enjoins her conduct. The trial court issued a five-year mutual restraining order on a petition brought by Isidora pursuant to the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.), [2] in which she sought a restraining order against her husband, defendant and respondent Silvino M. (Silvino), from whom she was separated.

Isidora contends the trial court erred in making the restraining order mutual in the absence of an affirmative request by Silvino for such protection. We agree. We conclude tat a trial court may issue a mutual domestic violence restraining order under section 6305 only if both parties have filed requests for such relief, so as to give the requisite notice to the opposing party.

Accordingly, the mutual restraining order, insofar as it restrains Isidora, is reversed.

FACTUAL AND PROCEDURAL BACKGROUND

1. Earlier proceedings

The parties had a volatile relationship. They were married in 2001 and separated in 2009. On May 8, 2012, Isidora was arrested following a heated confrontation between them. On May 10, 2012, a criminal protective order was issued against her. That order was modified on July 31, 2012, and again on July 31, 2013, the latter order barring Isidora from coming within 100 yards of Silvino. The criminal protective order will expire on July 31, 2016.

2. The instant case

On February 14, 2014, Isidora filed a request for a domestic violence restraining order, pursuant to the DVPA, against Silvino for herself and their two minor children. She stated in the request that she feared for her safety and that of her family because Silvino had threatened to kill her.

Silvino did not request a restraining order against Isidora. Silvino filed a response (Judicial Council form DV-120), stating he did not agree to the

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order requested by Isidora.[3] Silvino’s supporting declaration requested that the court deny relief to Isidora and that he be granted sole legal and physical custody of the children. In support of his request for sole legal and physical custody, Silvino attached supporting exhibits, including a 2009 crime report from the West Covina Police Department that showed Isidora had been arrested for willful infliction of corporal injury on Silvino, a 2012 crime report indicating Isidora had been arrested for assault with a deadly weapon and spousal battery, the May 10, 2012 criminal protective order restraining Isidora, and the two subsequent modifications thereto.

When the matter came on for hearing on March 28, 2014, the trial court indicated the matter at hand was Isidora’s request for a domestic violence restraining order against Silvino. The trial court heard testimony from Isidora, Silvino, and others. Isidora was asked about her 2012 guilty plea to a charge of domestic violence, and about the underlying incident that led to that arrest. Isidora testified, inter alia, that she needed a restraining order in this case because Silvino repeatedly had threatened to kill her.

During closing argument, there was no discussion of a restraining order to protect Silvino from Isidora. The focus of argument was on Isidora’s credibility and whether ...


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