Navigating the challenge of subsequent restraining orders under California's DVPA

The Domestic Violence Prevention Act (DVPA) establishes a comprehensive legal framework to prevent domestic abuse and violence by providing protective orders that safeguard against further violence, abuse or sexual abuse. (See Fam. Code, § 6220.) Time and again the California Legislature has amended the DVPA to expand the definition of "abuse" and strengthen the DVPA's protections. These amendments reflect the Legislature's unwavering recognition that domestic violence is a serious public safety and public health issue.

One issue, however, has escaped the Legislature's watchful eye in this arena for over two decades: the dilemma of what standard applies to subsequent restraining orders. A subsequent restraining order is one where a party already restrained by a domestic violence restraining order (DVRO) (the restrained party) seeks a DVRO against the party that obtained the DVRO against them (the already protected party). The courts of appeals are divided on whether the Legislature intended for subsequent restraining orders to be subject to the heightened requirements applicable to situations where the parties simultaneously seek mutual restraining orders against each other or whether a less stringent standard applies.

To fully appreciate the dilemma, it is first necessary to understand the difference between the two standards.

Requirements for a DVRO

To prevent future abuse among persons in a qualifying relationship under Family Code section 6211, the Legislature has authorized courts to issue permanent Domestic Violence Restraining Orders (DVROs) based upon reasonable proof of a past act or acts of abuse. (Fam. Code, § 6300.) The proof needed for the issuance of a permanent restraining order may be based solely on the affidavit or testimony of the person requesting the order. (Id.) No corroborating evidence or heightened standard for specificity is necessary for a DVRO to issue. (See In re Marriage of F.M. v. M.M. (2021) 65 Cal.App.5th 106, 118.) Because the DVPA is silent as to the burden of proof required to issue a permanent restraining order, the preponderance of evidence standard applies. (See Evid. Code, § 115.)

Heightened requirements for mutual DVROs

When both sides in a qualifying relationship under Family Code section 6211 claim violence or abuse and seek mutual DVROs against one another, the Legislature has required that courts must undertake a more exacting inquiry before issuing a mutual order enjoining both parties from specific acts of abuse. (Fam. Code, § 6305.)  In so doing, the Legislature recognized that the seemingly practical resolution of restraining both parties leads to the misidentification of victims as abusers, allows for a false equivalency between victims and their abusers, stands to further embolden abusers, and diminishes faith in the justice system. 

To ensure the purpose of the DVPA is not subverted by abusers claiming to be victims, the Legislature requires that before a court issues "a mutual restraining order," two conditions must be satisfied. (Fam. Code, § 6305.)  First, each party must "present written evidence of abuse or domestic violence in an application for relief using a mandatory Judicial Council restraining order application form." (Id.) Written allegations of abuse or domestic violence in a responsive pleading to the other party's application for a restraining order do not suffice to satisfy this initial requirement. (Id.) And second, the court must make "detailed findings of fact indicating that both parties acted as a primary aggressor and that neither party acted primarily in self-defense." (Id.)

With respect to the second inquiry, the court must first consider the four factors set forth in Penal Code section 836(c)(3) to identify the "dominant aggressor." "The dominant aggressor is the person determined to be the most significant, rather than the first, aggressor." (Pen. Code, § 836(c)(3).) In determining which party was the dominant aggressor, the court must "consider (A) the intent of the law to protect victims of domestic violence from continuing abuse, (B) the threats creating fear of physical injury, (C) the history of domestic violence between the persons involved, and (D) whether either person involved acted in self-defense." (Id.)

The legislative history of section 6305 illustrates a clear intent to protect true victims of domestic violence and prevent the misidentification of victims as aggressors. Section 6305 was added to the DVPA in 1993. As originally enacted, the 1993 version required: "[b]oth parties personally appear and each party present[] written evidence of abuse or domestic violence." (Stats.1993, ch. 219, § 154.) The written evidence requirement could be waived if both parties agreed that it did not apply. (Id.)

In 1995, the Legislature amended section 6305 by eliminating the waiver provision for written evidence and adding stricter requirements. Specifically, a court could issue a mutual restraining order only if both parties personally appeared, presented written evidence of abuse or domestic violence, and the court made detailed findings of fact indicating that both parties acted primarily as aggressors and that neither party acted primarily in self-defense. (Stats.1995, ch. 246, § 2.) The 1995 amendment to section 6305 further reinforced the Legislature's intent that courts refrain from issuing mutual orders out of convenience. Rather, the Amendment required courts to undertake a rigorous factual inquiry and make detailed findings before doing so. The 1995 amendment also aligned California law with federal requirements under the Violence Against Women Act (VAWA). VAWA was enacted in 1994, in part, to ensure mutual restraining orders would be entitled to full faith and credit in other states. (See 42 U.S.C. § 13981 et seq., abrogated by United States v. Morrison (2000) 529 U.S. 598; see also 18 U.S.C. § 2265(b).) Federal funding, authorized by Congress in conjunction with VAWA, required states to "certify that their laws, policies, or practices prohibit issuance of mutual restraining orders of protection except in cases where both parties file a claim[,] and the court makes detailed findings of fact indicating that both parties acted primarily as aggressors and that neither party acted primarily in self-defense." (42 U.S.C. § 3796hh(c)(1)(C), repealed effective Sept. 1, 2017; see Isidora M. v. Silvino M. (2015) 239 Cal.App.4th 11, 19-21.)

The dilemma posed by subsequent restraining orders

While the Legislature set clear standards for the inquiry courts must undertake when one party seeks a DVRO and a different, more exacting inquiry when courts face requests for mutual DVROs simultaneously sought by the parties, the Legislature has surprisingly remained silent for over two decades with respect to instances when parties seek DVROs against one another at different times, on different dates, and, sometimes, in different counties. Should the subsequent restraining order be treated as an initial request under Family Code section 6300 or as a mutual restraining order request under Family Code section 6305? The Legislature's silence on this question has led the courts of appeals to develop two distinct approaches in addressing this dilemma. The first approach is a narrow reading of the statute, focusing on its plain language. The second is a broader, more functional, approach consistent with the purpose of the provision, but seemingly at odds with the statute's plain language.

The narrower, plain language focused, approach of Conness v. Satram

In 2004, the 1^st Appellate District concluded that subsequent restraining order requests should not be subject to the heightened requirements of section 6305. (See Conness v. Satram (2004) 122 Cal.App.4th 197, 202.) Beginning with the statute's plain language, the Conness court found that the Legislature delineated certain procedural requisites before a court could issue "a mutual restraining order," implying one order that imposes parallel requirements on both parties, as opposed to two distinct orders. (Id.)

First, the court reasoned that the statutory requirement that "both parties personally appear" makes sense only in the context of a single hearing. (Id.) The court further reasoned that the party that obtains the first DVRO could thwart the party seeking the subsequent DVRO by simply failing to appear, giving that party effective "veto power" over the other party's request for a DVRO, as they would not both have "personally appear[ed]" per the procedural requisites of the statute. (Id. at pp. 202-203.)

Second, the Conness court indicated that treating a subsequent request for a DVRO would "create a difficult retroactivity question, that the Legislature, and not this Court, should address." (Id. at p. 203.) That retroactivity question arises when a subsequent court determines that the party that obtained the first DVRO was the "primary aggressor." Does the subsequent court have the authority to invalidate the earlier issued DVRO? The statute is unclear on this point. If the subsequent court does not have such authority, "the winner of the race to the courthouse receives the benefits of his or her share of the 'mutual' order without complying with the requirements designed to ensure that the mutuality is appropriate." (Id.) Conversely, applying section 6305 retroactively might lead, presumably, "to vacating a validly issued order for the failure to provide procedural protections inapplicable at the time of the hearing." (Id.) Generally, a single member of a superior court cannot sit in review of, and invalidate the orders of, another member of the same court. (See In re Alberto (2002) 102 Cal.App.4th 421, 427-428.) What if the first order was issued by the superior court in a county different than the one with jurisdiction over the second order? Does the statute authorize the court adjudicating the subsequent restraining order to invalidate a validly issued restraining order by a court of a different county?

The Conness court recognized that in light of the statute's intended purpose, there were compelling reasons for a broader interpretation of the statute. (Id.) However, it determined that it was not the job of the courts to effectively rewrite the statute. (Id.) That power rested in the Legislature. The Conness court, therefore, declined to expand the mutual restraining order inquiry to situations where the procedural requisites articulated by the Legislature did not exist. (See id.) It noted that the Legislature was fully equipped to amend the statute if it so chose and address the procedural requisite of "both parties personally appearing," as well as the concern regarding one court "retroactively invalidating" the orders of another court. (Id.) Given the Legislature's vigilance in this arena, this alert from the 1st Appellate District should have prompted the Legislature to act. That, however, has not happened.

In the Part Two, we examine how subsequent appellate decisions -- and in particular the Salmon case -- have taken a different approach, further complicating the legal landscape.