Qing Hui Gou v. Bi Guang Xiao

Filed 7/10/14 Gou v. Xiao CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

QING HUI GOU, Plaintiff and Appellant, v. A137771 BI GUANG XIAO, (San Francisco County Defendant and Respondent. Super. Ct. Nos. FCS-12-347915, FDI-12-777831)

Appellant Qing Hui Gou appeals from a December 5, 2012, order, which denied her request for a restraining order under the Domestic Violence Prevention Act (DVPA; Fam. Code, § 6200, et seq.1) (DVRO) against respondent Bi Guang Xiao. We agree with appellant that the trial court erred in denying her request on the ground she was not a victim of domestic violence within the meaning of the DVPA. Accordingly, we reverse and remand the matter for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND2 Appellant and respondent were married in China on April 16, 1991. In October 2007, respondent and the parties’ then 8-year-old son (hereafter also referred to as “the child”) came to the United States while appellant remained in China waiting for

1 All further statutory references are to the Family Code. 2 We recite only those facts as are necessary to resolve the issues raised on this appeal.

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an immigrant visa. Appellant joined the family in October 2011 when her visa was approved. On September 11, 2012, appellant filed a judicial council form, ex parte, requesting a DVRO in favor of herself and the then 13-year-old child against respondent. In her attached declaration, appellant described in detail three incidents of past abuse allegedly perpetrated by respondent. In September 2011, while appellant was still in China and talking to her son via Skype, appellant saw respondent come into the room and start yelling at the child for not cleaning the house. As the child started to crawl away respondent whipped him with a long plastic/rubber stick. Respondent also slapped and kicked the child. Appellant yelled at respondent to stop and yelled at the child to call the police. Thereafter, in December 2011, three months after appellant came to this country, she was present and got involved in an altercation between respondent and child. Respondent became angry because the child did not help him carry some things from the car into the house. As the child was using his computer, respondent knocked the computer off the table and put the child in a chokehold. Appellant could see the child’s face turn red and his veins pop out of his face and neck as he struggled to breathe. Appellant yelled for respondent to stop but he did not do so. Appellant kicked and hit respondent to get him to let the child go. Respondent bit appellant on the arm, but finally let the child go. Appellant was too shocked and afraid to call the police. When appellant and her son went to sleep that night, they blocked the bedroom door with furniture so respondent would not come in and hurt them. Then on January 12, 2012, respondent and the child got into a fight at the college where appellant was taking an English language exam. Appellant did not see the fight, but someone called the police after seeing respondent hit the child. Respondent denied hitting the child. However, the fight was recorded on a campus security camera, which showed respondent hitting the child. The police did not arrest respondent but told him to go to the police station. Respondent did not go to the police station because he had with him his 7-year-old daughter from another relationship.