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Conduct that Disturbs the Peace of the Other Party, or that Places the Party in Reasonable Apprehension of Imminent Serious Bodily Injury, Supports a Request for a Restraining Order Under the Domestic Violence Prevention Act

Qing Hui Gou (“Appellant”) and Bi Guang Xiao (“Respondent”) were married in China on April 16, 1991. In October 2007, Respondent and the parties’ son came to the United States while Appellant remained in China waiting for an immigrant visa. Appellant joined the family in October 2011 when her visa was approved. On September 11, 2012, Appellant requested a domestic violence restraining order (“DVRO”) in favor of herself and her son. In her declaration, Appellant described three past incident of abuse from Respondent, including an incident when she saw Respondent kick and whip their son with a plastic stick, an incident where Respondent put their child in a chokehold, and an incident where Respondent hit their child on a college campus, which was reported to the police and captured on a security camera. As a result of the incident at the college, a case file was opened with Alameda County Child Protective Services. During discussions with the case social worker, the child claimed that Respondent physically and verbally abused him. The case social worker arranged for Appellant and the child to relocate. One month later, Appellant and her son left the marital residence and had no further contact with Respondent.

Although Appellant and her son found a safe place to live, Appellant alleged that she still needed a DVRO to protect herself and her son against Respondent. A few weeks before making this request, Appellant learned that someone called her CalWORKS case worker, who claimed that the parties’ son was living with his father and therefore Appellant should stop being provided cash aid. The caseworker told the caller that the aid could not be stopped because the child was living with Appellant. Appellant felt she and her son were in danger. Appellant also learned that an unidentified person submitted a request to the child’s new school to effect his transfer to another school. Appellant believed Respondent was the only person who could have made the transfer request. Appellant was afraid that Respondent would find her and force Appellant and the child to return to the marital residence. The child was stressed and unable to sleep because of concern that Respondent might have learned of his whereabouts. He was afraid of his father and did not want to return to him. Based on this information, the divorce court issued a temporary DVRO in favor of Appellant and scheduled a hearing. However, at the hearing, the divorce court denied the request for the DVRO, concluding that Appellant was not a victim of domestic violence within the meaning of the statute. Appellant’s family law attorney then filed a timely notice of appeal.

The purpose of the Domestic Violence Protection Act (“DVPA”) is to prevent the recurrence of acts of violence 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. Under the DVPA, “domestic violence” is defined as “abuse” perpetrated against enumerated individuals, including a spouse. To effectuate the purposes of the DVPA, a divorce court is permitted to issue a restraining order “simply on the basis of an affidavit showing past abuse.” “Abuse” is broadly defined as including behavior that places “a person in reasonable apprehension of imminent serious bodily injury to that person or to another” or behavior that “has been or could be enjoined pursuant to Family Code section 6320.” Under section 6320, enjoinable behavior includes “disturbing the peace of the other party,” which means “conduct that destroys the mental or emotional calm of the other party.” Courts have held that where a DVRO application includes factual allegations of abuse within the meaning of the DVPA, a divorce court abuses its discretion when it denies the application without a hearing and determination on the merits.

The Court of Appeal held that the divorce court erred in denying the DVRO request on the sole ground that Appellant’s family law attorney failed to demonstrate she was a victim of domestic violence under the DVPA. In her declaration attached to the DVRO request, Appellant’s family law attorney alleged specific and admissible facts based on her personal knowledge describing past acts perpetrated by Respondent against the child and Appellant. Assuming their truth, these factual allegations supported a finding that Respondent’s past behavior was abusive, as it had placed Appellant in reasonable apprehension of imminent serious bodily injury to herself or the child, and disturbed Appellant’s peace by causing the destruction of her mental or emotional calm. Because Appellant’s family law attorney’s application and supporting declaration were “facially sufficient” to support a finding of abuse under the DVPA, the Court of Appeal concluded that the divorce court abused its discretion in denying the DVRO request.

Qing Hui Gou v. Bi Guang Xiao (2014) 228 Cal. App. 4th 812