FVAP Restraining Order Case Law
Below is a list of FVAP’s published cases regarding restraining orders. These cases are binding legal precedent in all trial courts in California, and can be used to support domestic violence-related cases in trial court. Please note: This is not a comprehensive list. Rather, it is a list of FVAP’s successful published restraining order appellate cases since 2012.
Laws often change. Reviewing this list is not a suitable substitute for legal research specific to your case. Additional legal research should be done before citing any case law in trial court. While a decision below may be used to support your (or your client’s) case in court, it may not be the best decision to use in your particular case, and/or there may be additional cases that you should cite. This list does not constitute legal advice, and does not create an attorney-client relationship between you and FVAP.
To read a decision, click on the case name. See our Legal Resource Library for toolkits, tip sheets, court templates, and other restraining order resources for survivors.
Courts must weigh relevant acts against each other to determine the most significant aggressor for restraining order rulings.
In K.L v. R.H. , the Court of Appeal explained that the trial court made an error by considering the parties’ allegations separately and determined that the trial court should weigh the acts of the parties against each other to decide which person was the most significant aggressor in the relationship, and whether either of them acted in self-defense. In considering the case this way, the Court of Appeal ruled that the opposing party was the most significant aggressor, and only he should have been restrained. The Court of Appeal also ruled that the trial court made an error by relying on the survivor’s previous criminal conviction to issue a mutual restraining order against her because it did not relate to domestic violence or other serious violence.
FVAP litigated this case in collaboration with pro-bono co-counsel, Sheppard Mullin Richter & Hampton, UCI School of Law Domestic Violence Clinic, and Legal Aid SoCal. FVAP obtained publication.
Physical Separation Is Not An Excuse to Not Give a Restraining Order, Courts Must Hear About Acts of Abuse That Happen After Filing the Request for a Restraining Order:
In re Marriage of F.M. v. M.M. (2021) 65 Cal.App.5th 106 is a case where the survivor was denied a restraining order because of many errors by the court. This case says that physical separation is not an excuse to not give a Domestic Violence Restraining Order (DVRO), courts must hear about abuse that happened after asking for a DVRO, and DVROs can be given because of a survivor’s testimony alone and it does not require and above normal level of detail or additional (corroborating) support. (FVAP represented the survivor on appeal with assistance from pro bono counsel Jones Day and successfully obtained publication.)
Coercive and controlling behavior are domestic violence under California’s restraining order laws and the totality of the circumstances needs to be considered when determining whether to issue a restraining order:
McCord v. Smith (2020) ___ Cal.App.5th ____. In this case, Ms. Smith proved that Mr. McCord had disturbed her peace, which is one definition of abuse in California’s restraining order laws, by repeatedly visiting her uninvited, texting her, emailing her, and sending her harassing and threatening photos. The trial court issued a restraining order protecting Ms.Smith and Mr. McCord appealed. The Court of Appeal upheld the restraining order explaining that courts should consider the totality of the circumstances when deciding whether to issue a restraining order. In this case seemingly isolated events — like texting a picture of Ms. McCord’s professional license — were part of an overall series of actions that were used as a means of exercising control and dominion over Ms. Smith which threatened her peace of mind and sufficiently justified a restraining order. (FVAP obtained publication.)
When a court should order an abuser to move out of the home as part of a restraining order:
Nicole G. v. Braithwaite (2020) 49 Cal.App.5th 990. In this decision, a survivor of domestic violence requested that her abuser move out of the home as part of her domestic violence restraining order, but her abuser claimed that because the survivor had already moved out of their shared residence, he should not have to move out. The Court used the abuser’s past acts of abuse and stalking to determine that further harm would have come to the survivor if a move-out order was not made, and a survivor should not have to permanently vacate their residence because they previously moved in order to flee abuse. (FVAP obtained publication.)
Definition of “good cause” for adding family or household members to a restraining order:
Tanguilig v. Valdez, (2019) 36 Cal.App.5th 514. In this case, the appellant argued that it was inappropriate that the restraining order against him also protected additional family and household members of the person who asked for the restraining order. The Court of Appeal held that there was “good cause” to include the additional members on the restraining order because the repeated abuse occurred outside of the home. The Court of Appeal also defined “good cause” for adding family or household members to a protective order stating “As a general rule, “good cause” includes reasons that are fair, honest, in good faith, not trivial, arbitrary, capricious, or pretextual, and reasonably related to legitimate needs, goals, and purposes.” (FVAP obtained publication.)
Temporary Restraining Order Violations:
N.T. v. H.T. (2019) 34 Cal.App.5th 595. In this case, the Court of Appeal overturned the trial court’s denial of the domestic violence restraining order request. In doing so, the Court of Appeal ruled that a violation of a temporary restraining order constitutes abuse under Family Code section 6203(a)(4). The Court of Appeal also held that the conduct underlying the violations constituted abuse under Family Code section 6320. (FVAP represented the survivor and obtained publication.) Pro bono co-counsel: Jones Day, UCI Domestic Violence Law Clinic
Unwanted and harassing contacts:
Sabato v. Brooks (2015) 242 Cal.App.4th 715. The Court of Appeal affirmed that unwanted and harassing contacts, even without allegations of violence or threats, are sufficient to issue a three-year domestic violence restraining order (DVRO). The court also granted the DVRO because the restrained party failed to properly challenge the trial court’s exercise of jurisdiction over him. (FVAP litigated this appeal and obtained publication.) Pro bono co-counsel: Sucherman & Insalaco
Controlling or coercive behavior:
Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816. The Court of Appeal’s opinion clarifies that controlling and coercive behavior does count as abuse under the Domestic Violence Protection Act, and that the length of time since abuse occurred (in this case, about 6 months since the temporary restraining order was issued) has never been a basis for denying a Domestic Violence Restraining Order in California. (FVAP litigated this appeal and obtained publication) Pro bono co-counsel: Gibson Dunn & Crutcher, Los Angeles Center for Law and Justice
CA restraining order against out-of-state person (cyber abuse, etc.):
Hogue v. Hogue (2017) 16 Cal.App.5th 833. The Court of Appeal’s opinion confirms that, if a person in another state commits an act of domestic violence against someone who is in California (for example, via social media or electronic communications), then the California court can (has jurisdiction to) issue a restraining order against the abusive out-of-state person. This decision also confirms that California’s Domestic Violence Prevention Act (DVPA) is a “special regulation,” meaning the effects of domestic violence warrant special jurisdiction over out-of-state persons who commit acts domestic violence against California residents. (FVAP litigated this appeal and obtained publication.) Pro bono co-counsel: Lieff Cabraser Heimann and Bernstein
Restraining order despite brief reconciliation:
In re Marriage of Fregoso and Hernandez (2016) 5 Cal.App.5th 698. This is the first decision to clarify that a restraining order may be issued even if there is a brief period of reconciliation between the two parties after a temporary restraining order (TRO) was issued. The case also explains that the testimony of one witness, such as the person requesting a restraining order, can be sufficient evidence to support a Domestic Violence Restraining Order. The protected party in this case testified that the reconciliation was “part of their six-year repeated cycle of violence, gifts, forgiveness, sex, and then repeated acts of violence”; thus, her explanation was consistent with the trial court’s decision to issue the restraining order. (FVAP obtained publication.)
Definition of “dating relationship”:
Phillips v. Campbell (2016) 2 Cal.App.5th 844. This is the first case to discuss what constitutes a “dating relationship” under the Domestic Violence Prevention Act (DVPA). The DVPA allows a trial court to issue a domestic violence restraining order (DVRO) for only certain qualifying relationships, including “dating relationships.” The Court of Appeal, in this case, decided that where the parties are “more than mere friends,” and evidence shows “frequent intimate associations primarily characterized by the expectation of affection” — in this case, via text messages — then this counts as a “dating relationship” for purposes of issuing a DVRO. This decision can help in obtaining a DVRO even if the relationship does not fit a traditional definition of “dating.” (FVAP obtained publication.)
Disclosing private/intimate information about someone can be abuse; and abusive speech is not protected by the 1st Amendment:
In re Marriage of Evilsizor and Sweeney (2015) 237 Cal.App.4th 1416. The Court of Appeal ruled that (1) physical abuse is not necessary to issue a restraining order; (2) disclosing intimate details of someone’s life, even if the information is legally obtained, can constitute abuse; and (3) abusive speech is not protected by the 1st Amendment to the U.S. Constitution. (FVAP obtained publication.)
Restraining order for a parent whose child is the abused party:
Gou v. Xiao (2014) 228 Cal.App.4th 812. The Court of Appeal ruled that a parent can seek a restraining order based on abuse against their child, because abuse of a child can disturb the peace of the parent requesting the restraining order, and can give the parent reasonable apprehension of imminent serious bodily injury to their child. (FVAP submitted an amicus (friend-of-the-court) brief and obtained publication.) Pro bono co-counsel: Reed Smith
Likelihood of future abuse is not required:
Nevarez v. Tonna (2014) 227 Cal.App.4th 774. The Court of Appeal ruled that, in order to issue a restraining order, the trial court is only required to find a past act of abuse. The court is not required to find likelihood of future abuse. (FVAP litigated this appeal, which the court published.) Pro bono co-counsel: Taylor & Company
“Disturbing the peace” as domestic violence in non-marriage relationship:
Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140. This is the first case to interpret “disturbing the peace” as defined in the Domestic Violence Prevention Act in the context of a non-marital relationship, especially when telephonic, digital, and in-person contacts impact the abuse survivor’s sense of safety and security. (FVAP obtained publication.)
Requesting attorney’s fees after RO application is filed:
Faton v. Ahmedo (2015) 236 Cal.App.4th 1160. The Court of Appeal ruled that (1) a party is not barred from requesting attorney fees where the request was not made in the initial restraining order application, and (2) a request for attorney fees arising from a domestic violence restraining order petition need not be decided with the restraining order petition. (FVAP obtained publication)
Considering children’s extracurricular activities; considering overall career when determining “burden” to restrained party:
Rybolt v. Riley (2018) 20 Cal.App.5th 864. This case involving a domestic violence restraining order (DVRO) renewal establishes legal precedence in at least two ways. First, the appellate court affirmed the trial court’s consideration of a restrained party’s actions (threatening, harassing, controlling, and manipulating) toward the survivor during shared parenting time (their child’s extracurricular activities) as “abuse” under the Domestic Violence Prevention Act (DVPA), and as violations of a DVRO. Thus, this case instructs trial courts to consider everyone’s physical and emotional safety and wellbeing when crafting parenting plans (custody and visitation). Second, the appellate court affirmed the trial court’s considerations of the “burdens” that a DVRO renewal could place on the restrained party, and said trial courts should consider the restrained party’s overall career to determine how a renewed DVRO could impact their employment prospects. (The only California case other than Lister v. Bowen to discuss possible “burdens” to the restrained party since 2004.) (FVAP obtained publication.)
Child abuse is relevant in RO renewals:
De la Luz Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389. This is the first California decision to confirm that evidence of abuse against the child of someone who has a Domestic Violence Restraining Order (DVRO) is relevant information and should be considered when deciding whether to renew the DVRO, because abuse against a person’s child disturbs the protected party’s peace and can cause fear of future abuse to both the child and the protected party. Child abuse must also be considered when deciding whether “good cause” exists to add children as protected parties to a DVRO. The decision also confirms that fear of future physical abuse is not necessary to renew a DVRO. The opinion also summarizes many social science studies on the overlap between child abuse and intimate partner abuse. (FVAP litigated this appeal and obtained publication.) (Click here to read a San Francisco Chronicle article about the statewide significance of this case.) Pro bonon co-counsel: Folger Levin, Bay Area Legal Aid
Testimonies with specific descriptions of abuse not in DVRO application are admissible:
In re Marriage of Davila, (2018) 29 Cal.App.5th 220. In this case, husband appealed the issuance of a domestic violence restraining order (DVRO) against him, arguing that the trial court improperly admitted wife’s testimony about husband holding a gun to wife’s head because that allegation was not in her written DVRO application. The appellate court upheld the DVRO, holding that it was proper to consider this testimony because her application requesting a DVRO included general statements that husband threatened to physically harm her. (FVAP successfully obtained publication in partnership with 11 other organizations.)
Mutual Restraining Orders
A mutual restraining order requires both parties to file restraining order requests:
Isidora M. v. Silvino M. (2015) 239 Cal.App.4th 11. The Court of Appeal ruled that trial courts may issue mutual domestic violence restraining orders only if both parties have filed requests for restraining orders. (FVAP provided legal technical assistance and research support to counsel, Neighborhood Legal Services of Los Angeles. FVAP also obtained publication.)
“Primary aggressor” in mutual restraining order action:
J.J. v. M.F. (2014) 223 Cal.App.4th 968. In this decision, the Court of Appeal defined “primary aggressor” for the first time in the context of mutual restraining orders, and ruled that the larger context of the parties’ relationship must be considered when determining who is the “primary aggressor.” (FVAP obtained publication.)
Restraining orders based on separate incidents are mutual restraining orders; and required factual findings:
Melissa G. v. Raymond M., (2018) 27 Cal.App.5th 360. The Court of Appeal held that the trial court made an error by issuing a mutual restraining order without making the factual findings required under the Family Code. In this decision, the Court of Appeal also ruled that restraining orders based on separate incidents are mutual restraining orders, affirming that domestic violence is often a series of separate but related incidents. Pro bono co-counsel: Covington & Burling
