Filed 3/22/22 Millner v. Joyce CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County. Bryant Y. Yang, Judge. Affirmed.

Shawn M. Millner, in pro. per., for Plaintiff and Appellant.

Latham & Watkins, Kristen M. Tuey, Nicholas N. Goshgarian, Jesus Roberto Medina-Garcia; Neighborhood Legal Services of Los Angeles County and David Pallack for Defendant and Respondent.

______________________________

Plaintiff and appellant Shawn M. Millner (Millner) sought a permanent restraining order against her mother, defendant and respondent Nobia Joyce (Joyce), after Joyce visited Millner’s place of employment. The trial court denied Millner’s request, finding that Millner had not demonstrated, by a preponderance of the evidence, a reasonable apprehension of future abuse. (Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1290 (Ritchie).) Millner appeals, claiming that the trial court erred.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Initial Request for a Restraining Order (2015)

On April 2, 2015, Millner sought a broad order of protection from Joyce. She alleged that on March 24, 2015, Joyce “threaten[ed] to use a gun” the prior night and that Joyce “attacked [Millner’s son/Joyce’s grandson] over his gaming device.”

At the April 22, 2015, hearing, the trial court granted Millner’s request in part, limiting it to Joyce not “harass[ing], attack[ing], strik[ing], threaten[ing], [or] assault[ing]” Millner. It also granted Millner’s request for a stay away order, but limited it to Joyce staying 100 yards away from the property at which Millner resided.[1]

The original order was limited to one year and set to expire on April 22, 2016.

First Request for a Renewal (2016)

On April 7, 2016, Millner filed a request to renew the restraining order for another five years. Millner asserted that she was afraid of Joyce “getting a ‘gun.’” She was also “fearful” of her mother because, among other things, Joyce allegedly stole Millner’s personal mail and some settlement proceeds arising out of a personal injury accident in which Joyce was involved.

At the June 8, 2016, hearing, the trial court noted that the parties’ lawsuit concerning the subject property was still pending. “In the interim time, the court finds that [Millner] has indicated that she continues to have a fear for herself based on what had happened in the past. Under the law, there does not need to be any new violation of the existing orders. There does not need to be any new conduct. If the protected person establishes that they still fear for their safety, that is sufficient to renew the orders.” Thus, it renewed the original restraining order for five years. The renewed order set forth the same terms as the original order, and was set to expire on June 8, 2021.

Instant Request for a Permanent Restraining Order (2021)

On March 15, 2021, Millner filed a request to permanently renew the original restraining order. She alleged that Joyce had violated the protective order when she visited Millner’s place of employment on June 14, 2019. After Joyce allegedly “lie[d] her way onto the premises,” Millner told her “to leave and to never come back.” According to Millner, Joyce was hostile and refused to leave until she threatened to call the police. After Joyce left, Millner left for home; before entering her gated community, she noticed Joyce behind her, but Millner still safely entered the premises. Millner then went to the police station; Joyce allegedly followed her there as well.

Millner further argued that Joyce violated the original order by getting mail delivered to her house and by initiating a legal action against Millner to establish ownership rights in the subject property. Despite not alleging that Joyce had visited the property in the past six years, Millner alleged that she was “certain” that Joyce would return to the property without regard for Millner’s safety.

Joyce’s Opposition

Joyce opposed Millner’s request, attesting that she visited Millner’s place of employment to give a gift to her daughter and grandson. She located Millner’s place of employment by “doing basic searching online and using [her] limited technology skills.” Joyce asserted that after she was turned away, she left. She denied following Millner back to the subject property.

Joyce further testified that she formerly lived at the subject property and was defrauded into assigning away her interest in the property. She continues to allege an ownership interest in the property and brought quiet title action against Millner to establish her interest in the property.

Because she used to live at the property, Joyce stated that “t is possible there is mail of mine that goes” there. Joyce explained that she had not had her mail forwarded because she was homeless.

[i]Trial Court Order

After two evidentiary hearings and the parties’ argument, the trial court issued its ruling. First, the trial court laid “out the applicable law which neither party really briefed,” stating: “Family Code section 6345 provides in relevant part that a trial court may renew a restraining order upon the request of a party either for five years or permanently without a showing of any further abuse since the issuance of the original order. However, when it is contested, a request to renew a restraining order should not be granted simply because the requesting party has, quote, a subjective fear that the party to be restrained will commit abusive acts in the future, end quote. And that is from essentially the seminal case on renewal of restraining orders.” Citing Ritchie, supra, 115 Cal.App.4th 1275, the trial court noted that it should not renew the protective order unless it found that the protected party entertained a reasonable apprehension of future abuse.

Applying Ritchie, the trial court then considered the evidence presented. Regarding the original protective order, the trial court found that it did not restrain Joyce much at all, particularly because the initial trial court refused to extend protection to Millner’s son (Joyce’s grandson), declined to restrict contact between the parties, and only prohibited “harassment, attacks, strikes, threat[s] and assault.” “[A]lso telling [was] the length of the original protective order”—only one year.

Second, the trial court noted that circumstances had changed between the time of the original order (2015) and the present (2021). Significantly, Joyce no longer lived at the subject property, thereby “lessen[ing] the potential for conflict and the potential for abuse.”

Third, the trial court considered the burdens a restraining order placed on Joyce, finding credible her testimony “that because of the restraining order, she [could not] find a part-time job to help her make an earning.”

The trial court made other factual findings relevant to the issues raised in this appeal. It found that Joyce’s litigation against Millner over the property’s ownership rights did not constitute harassment or any other violation of the original protective order. It also found that even if Joyce continued to receive mail at the subject property, that did not constitute a violation of the original order because that order did not prohibit Joyce from using the property’s address to receive mail. Finally, the trial court found that Joyce’s visit to Millner’s workplace did not violate the original protective order because the visit only lasted five minutes and Joyce left upon Millner’s request. And, even if Joyce had been following Millner after Millner left work and headed home, Millner failed to demonstrate that Joyce was ever within 100 yards of the property.

In addition, the trial court specifically found “a number of credibility issues” with Millner’s “inconsistencies and conflicting testimony.”

Ultimately, the trial court denied Millner’s request to renew the original order. While it did not doubt Millner’s subjective fear, the trial court stated that “the standard under the law is whether [Millner] ha[s] a reasonable apprehension, a reasonable fear,” and, under Ritchie and “in light of the credibility assessment that the court makes today,” she failed to so prove. But, that did not preclude Millner from filing a request for a new restraining order should Joyce do anything to constitute abuse in the future. That is Millner’s right under the law.

Appeal

Millner’s timely appeal ensued.

DISCUSSION

I. Standard of review

As the parties agree, “[w]e review the trial court’s ruling under an abuse of discretion standard, to determine ‘“whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”’ [Citation.]” (Lister v. Bowen (2013) 215 Cal.App.4th 319, 333.)

II. Relevant law

Family Code section 6345 provides, in relevant part, that a trial court may renew a restraining order “upon the request of a party, either for five years or permanently, without a showing of [any] further abuse since the issuance of the original order, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party.” (Fam. Code, § 6345, subd. (a).)

When contested, a request to renew a restraining order should not be granted pursuant to Family Code section 6345 simply because the requesting party has “a subjective fear the party to be restrained will commit abusive acts in the future.” (Ritchie, supra, 115 Cal.App.4th at p. 1288.) “The ‘apprehension’ those acts will occur must be ‘reasonable.’ That is, the court must find the probability of future abuse is sufficient that a reasonable woman (or man, if the protected party is a male) in the same circumstances would have a ‘reasonable apprehension’ such abuse will occur unless the court issues a protective order.” (Ibid.) In other words, under this objective test, “[a] trial court should renew the protective order, if, and only if, it finds by a preponderance of the evidence that the protected party entertains a ‘reasonable apprehension’ of future abuse. . . . [T]his does not mean the court must find it is more likely than not future abuse will occur if the protective order is not renewed. It only means the evidence demonstrates it is more probable than not there is a sufficient risk of future abuse to find the protected party’s apprehension is genuine and reasonable.” (Id. at p. 1290.)

In evaluating whether the requesting party has a reasonable apprehension of future abuse, Ritchie articulated three factors for courts to consider: (1) “the evidence and findings on which [the] initial [protective] order was based” (Ritchie, supra, 115 Cal.App.4th at p. 1290); (2) “any significant changes in the circumstances surrounding the events justifying the initial protective order” (id. at p. 1291); and (3) “the ‘burdens’ the protective order imposes on the restrained party” (ibid.). (See also Lister v. Bowen, supra, 215 Cal.App.4th at pp. 332–333.)

III. The trial court did not abuse its discretion in denying Millner’s request for a permanent restraining order

Applying these legal principles, we conclude that the trial court did not abuse its discretion in denying Millner’s request to permanently renew the original restraining order.

A. Ritchie Factors

1. Evidence and findings on which the initial protective order was based

“The existence of the [initial] order itself will be less telling than the facts supporting its issuance” because “the . . . order itself often fails to disclose . . . the conduct on which it is based.” (Ritchie, supra, 115 Cal.App.4th at pp. 1290, 1291) While “the mere existence of a protective order, typically issued several years earlier, seldom if ever will provide conclusive evidence the requesting party entertains a ‘reasonable apprehension’ of future abuse,” “the existence of the initial order certainly is relevant and the underlying findings and facts supporting that order often will be enough in themselves to provide the necessary proof to satisfy that test.” (Id. at p. 1291.)

Here, the trial court acted within its discretion when it implicitly found little evidence warranted the original protective order. After all, that order did not actually restrain Joyce that much, and the original trial court did not find good cause to include certain terms as Millner had requested.

Urging us to reverse, Millner argues that the trial court erred by “clearly exclud[ing] the 5 year renewal of [her initial protective order] in its analysis. Specifically, the court did not consider the evidence and findings on which the initial protective order was based or that supported a reasonable apprehension which further supported the renewal for 5 additional years.” She is mistaken. The trial court expressly noted the existence of the initial order as well as its renewal. There is no evidence that it excluded any prior procedural history or facts in its analysis.

We reject Millner’s assertion that Joyce is attempting to relitigate the issues that were previously decided at the time of the issuance of the initial restraining order and subsequent renewal. Rather, those issues were simply considered by the trial court at the time it engaged in the first factor analysis as set forth in Ritchie.

Finally, after reviewing the entire appellate record, there is no indication that the trial court wrongly held that it could only grant Millner’s request if she demonstrated violations of the original restraining order and its renewal.

2. Any significant changes in the circumstances surrounding the events justifying the initial protective order

Under Ritchie, we next consider whether there “are any significant changes in the circumstances surrounding the events justifying the initial protective order. For instance, have the restrained and protected parties moved on with their lives so far that the opportunity and likelihood of future abuse has diminished to the degree they no longer support a renewal of the order?” (Ritchie, supra, 115 Cal.App.4th at p. 1291.)

Ample evidence supports the trial court’s finding that circumstances had changed. In 2015, Joyce lived with Millner at the subject property. But, by the time of the hearing on the instant petition, Joyce no longer lived there, thereby avoiding the potential for conflict and abuse.

Millner asserts that the trial court’s assessment of the evidence was incorrect because, at the time of the hearing in 2016 on Millner’s request for a renewal of the initial order, Joyce was not residing at the subject property and was subject to a move-out order. Millner misinterprets Ritchie: Ritchie held that the trial court should consider changes since the “initial” protective order (Ritchie, supra, 115 Cal.App.4th at p. 1291), not changes since a renewal of that order. Thus, the trial court rightly considered the fact that on April 22, 2015, when Millner first sought a protective order, Joyce did reside at the property.

The remainder of Millner’s arguments are unsupported by the evidence. For example, she suggests that Joyce was ordered to stop having her mail sent to the subject property, suggesting that this conduct demonstrates that circumstances have not changed and that the trial court should have granted Millner’s request. Not so. As the trial court correctly found, the initial protective order did no such thing. And, there was no evidence that Joyce failed to change her mailing address so that “unknown individuals [could] come to [her] property” and put her “life . . . in danger.”

3. Burdens on the restrained party

Finally, the trial court considered the burden the protective order would impose on Joyce. (Ritchie, supra, 115 Cal.App.4th at p. 1291.) In so doing, it found credible her testimony “that because of the restraining order, she [could not] find a part-time job to help her make an earning.” It is well-settled that we do not reassess a witness’s credibility. (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622–623.)

B. Millner’s Remaining Arguments

Millner further asserts that the trial court improperly considered matters outside its jurisdiction. She is mistaken. The trial court did not consider or decide claims related to the ownership of the subject property.[2] It merely commented upon inconsistencies in Millner’s testimony regarding the property to make a determination regarding her credibility as a witness. To the extent Millner challenges the trial court’s credibility findings, as set forth above, we do not weigh the evidence or consider the credibility of witnesses. (Johnson v. Pratt & Whitney Canada, Inc., supra, 28 Cal.App.4th at pp. 622–623.)

Finally, relying upon Cueto v. Dozier (2015) 241 Cal.App.4th 550 (Cueto), Millner argues that the trial court abused its discretion by giving Joyce a verbal admonishment at the hearing yet denying Millner’s request for protection. Cueto is readily distinguishable. In that case, the appellate court reversed a trial court’s denial of a request to renew a restraining order where the petitioner presented credible evidence of “a troubling history of physical abuse, including being punched in the face . . . and threatened on two occasions,” and nothing in the record suggested that there had been significant changes so that the likelihood of future abuse had diminished. (Id. at p. 562.) In dicta, the Cueto court added that it was “troubled” by the trial court’s comments that, despite denying the renewal, the respondent “did not have ‘free rein to contact’ [the petitioner] or to ‘drive by her house, or anything of the sort’; and that [the respondent] did not have ‘free license to contact her in any way.’” (Ibid.)

In contrast, at the conclusion of the hearing, the trial court here did not verbally restrain Joyce from any specific conduct. Rather, it simply advised Millner of her legal rights. The trial court had discretion to give general advice to a pro se litigant. (Holloway v. Quetel (2015) 242 Cal.App.4th 1425, 1435; Ross v. Figueroa (2006) 139 Cal.App.4th 856, 861.)

DISPOSITION

The order is affirmed. Joyce is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

________________________, P. J.

LUI

________________________, J.

HOFFSTADT

[1] This property is the subject of ongoing litigation between Joyce, who used to reside at the property, and Millner.

[2] This is a curious argument given that Millner devotes time in her appellate briefs arguing that Joyce was party to a fraudulent scheme to obtain the subject property.