Perez v. Torres-Hernandez

• Court: California Court of Appeals
• Writing for the Court: RUVOLO, P.J.
• Citation: Perez v. Torres-Hernandez, 1 Cal.App.5th 389, 206 Cal.Rptr.3d 873 (Cal. App. 2016)
• Decision Date: 09 June 2016
• Docket Number: A139710
• Parties: Maria De La Luz PEREZ, Plaintiff and Appellant, v. Job Francisco TORRES–HERNANDEZ, Defendant and Respondent.

1 Cal.App.5th 389

206 Cal.Rptr.3d 873

Maria De La Luz PEREZ, Plaintiff and Appellant

v.Job Francisco TORRES–HERNANDEZ, Defendant and Respondent.

A139710

Court of Appeal, First District, Division 4, California.

Filed June 9, 2016

Bay Area Legal Aid, Brenda Star Adams, Family Violence Appellate Project, Nancy K.D. Lemon, Jennafer Dorfman Wagner, Shuray Ghorishi, Walnut Creek, Folger Levin, Andrew J. Davis, Rosha Jones, for Appellant.

Law Offices of Sanjay Bhardwaj and Sanjay Bhardwaj, Fremont, for Respondent.

RUVOLO, P.J.

I.INTRODUCTION

Appellant Maria del la Luz Perez (Perez) appeals the trial court's denial of the renewal of her domestic violence restraining order (DVRO) against respondent Job Francisco Torres–Hernandez (Torres–Hernandez). Perez alleges that the trial court applied the incorrect legal standard in denying her petition. She asserts the court erroneously concluded that: (1) there must be new evidence of abuse or threatened abuse to renew the order, and Torres–Hernandez's past abuse or violations of the existing order did not support renewal; (2) the evidence of “new” abuse must be physical in nature; and (3) evidence of Torres–Hernandez's abuse of the couple's children was not relevant to the DVRO renewal. We agree the court erred in all of these respects, and reverse with directions to grant renewal of the DVRO.

II.FACTUAL AND PROCEDURAL BACKGROUND

In February 2010, Perez filed a request for a DVRO against Torres–Hernandez to stay away from her and their two children, eight and two-year-old daughters, as well as Perez's ten-year-old son from a previous relationship. Perez and Torres–Hernandez had been in a relationship for 10 years and Perez claimed many instances of physical and emotional abuse by Torres–Hernandez. She wrote on the request for the DVRO that Torres–Hernandez was going to kill her and take her children away. In her declaration, she recounted an incident where Torres–Hernandez became angry and yelled “fuck you bitch” at her in front of the children. She said the following day, Torres–Hernandez called her hundreds of times. A few days later, Torres–Hernandez came into her home while she was gone, and without her permission. Later that same day, in the middle of the night, Torres–Hernandez again broke into her home while everyone was sleeping. He startled a friend who was sleeping on the couch and rushed out. She said that she was afraid because Torres–Hernandez was capable of becoming violent and had hit her many times in the past.

The court held a hearing and both Perez and Torres–Hernandez testified. The court issued a three-year restraining order preventing Torres–Hernandez from doing the following things to Perez: “[h]arass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance, or block movements.” The order provided sole physical custody of the children to Perez, and weekend visitation with Torres–Hernandez. The restraining order expired on March 16, 2013.

In September 2011, Perez filed a petition to modify the restraining order to include protection for her three children. Perez claimed that during Torres–Hernandez's visits with the children, he had physically abused them. After a visit with Torres–Hernandez, their younger daughter had bruising on her chest. The daughter told Perez that Torres–Hernandez was angry and hit her. Torres–Hernandez was arrested after the incident.

Perez explained that Torres–Hernandez had been abusive to her throughout their relationship but had not previously hit the children. She said that since the restraining order was issued, Torres–Hernandez had hit the children with his hands or objects, including shoes. He had previously hit the younger daughter causing bruising on her lip. Perez claimed that Torres–Hernandez also hit her son with a belt causing a welt on his leg.

The court suspended visitation between Torres–Hernandez and the younger daughter and ordered supervised visitation with the older daughter. The court amended the order to prohibit Torres–Hernandez from making contact with Perez including phone calls, e-mails, and text messages.

In February 2013, Perez petitioned the court for a permanent renewal of the restraining order. Perez alleged that Torres–Hernandez had repeatedly violated the order. He called her from an anonymous number but identified himself as the caller and told her to stop going to court and to stop asking for child support. She also alleged that Torres–Hernandez was facing child abuse charges for hitting their younger daughter.

The court held a contested hearing on March 13, 2013. At the outset, Torres–Hernandez explained that the criminal case for his conduct toward his daughter had been dismissed. When asked by the court, Perez explained that the district attorney's office had told her that the charges were dropped because their daughter was too young to testify against Torres–Hernandez.

Perez testified that she sought to have the restraining order extended permanently because “I have a lot of fear of him.” She said she feared physical abuse both against herself and her children. Even with the restraining order in place, he had continued to call her, text her, and threaten her. He had also mistreated their daughters. She explained Torres–Hernandez had hit their younger daughter on the chest causing bruising.

During Perez's testimony, the court initially advised her counsel that any testimony about the abuse towards their daughter was not relevant. The court stated the standard to renew or extend the order “has to do with whether she has a reasonable apprehension of future abuse. The abuse is as to her as opposed to the children.” Counsel argued it was relevant to Perez's reasonable apprehension of future abuse and she was seeking to modify the order to add the children as protected parties.

The court then allowed further testimony. Perez testified that Torres–Hernandez had hit their younger daughter once with a shoe, and hit her on another occasion causing a swollen lip. He had also grabbed the older daughter causing a red mark on her wrist. Perez stated: “He is a very aggressive person, and I, frankly, have a lot of fear for my own safety and that of my children.” She said the fact he hit her children made her more afraid of him because he had broken the law.

She testified that she received a call from Torres–Hernandez in November 2012 and he threatened her, saying “Fuck you, bitch,” and told her to stop going to court to ask for support and custody of their daughters. She said it made her “very fearful” because he was not supposed to call or text her. He also sent her a text after the call, from an anonymous number, but it made reference to the content of the prior call. She said the text made her feel “scared and helpless.” He sent her texts on February 4, 2013, the date the criminal charges for hitting their younger daughter were dismissed. The first text stated: “Ha, ha, ha. Poor kids for having a crazy mom like you. Was it worth putting your kids through all that trouble and end up with nothing?” She received another anonymous text that said “the kids pay the consequences,” and remarked that he was about to have the son he always wanted. Perez testified that text messages created “a lot of fear.”

When she found out the criminal charges had been dismissed, she felt “[v]ery scared, very terrified, because now he feels that he can break the law.”

Perez testified that she did not want him bothering her, calling her, or sending her messages because she was “very scared because he has been doing things that have affected me.” She stated she was afraid Torres–Hernandez would cause her future physical harm if the order were not renewed. She said that she felt helpless “because in spite of the fact that there's a restraining order, he continues to do that and because the law hasn't been able to stop him. So I feel helpless and fearful at the same time.”

The court asked Perez if she had been threatened since the restraining order had been issued, and she responded that his calls were threatening. She said that he told her “You're going pay for it.” She was not sure “exactly what he can do, but I'm afraid.”

Counsel sought to introduce the testimony of Perez's father, who had seen the bruising on the younger daughter, but the court excluded the testimony as “redundant.”

Torres–Hernandez denied contacting Perez by phone or sending her text messages. He claimed Perez was making these claims in order to get a green card.

The court found “there is no basis to extend this order on a permanent basis. I find that there is insufficient evidence as to a reasonable belief of continued abuse. There is no evidence before the Court that there has been actual abuse within the time period that the restraining order has been issued.” The court found that the abuse, if true, had been toward the children, but that was irrelevant as to the abuse alleged by Perez “because it does not speak to any abuse that Ms. Perez has been subjected to.” Perez has been subjected to “annoying phone calls. I wouldn't let it rise to the level of a pattern of harassment, but the phone calls are intended to annoy her.”

The court stated it did not find Torres–Hernandez's testimony to be “particularly persuasive,” and “there may be some credibility issues.” The court found that Torres–Hernandez made the phone calls and sent the text messages in violation of the restraining order, but that this was not enough to extend the DVRO.

The court stated: “Abuse is not merely simply annoying or harassing—occasional harassing phone calls intended to annoy the other person. Abuse is not exerting your rights under the law to say, you know ‘If you keep going to court, you may lose out. The kids may—they're tired of putting up with a crazy mother.’ ” Stating an opinion does not rise to the level of a threat of violence or actual infliction of violence. Abuse must be “violence or the...