Avalos v. Perez

California Court of Appeal May 25, 2011 No. No. A129985Published

Before: Pollak

AI Brief

AI-generated · verify before citing

Holding. Under Family Code section 6345, a trial court lacks the discretion to renew a domestic violence restraining order for a period other than five years or permanently.

Issues

Does Family Code section 6345 authorize a trial court to renew a domestic violence restraining order for a duration of less than five years?
May an appellate court address a claim of error that was not raised by objection in the trial court?

Disposition. remanded

Quotations verified verbatim against the opinion

“These orders may be renewed, upon the request of a party, either for five years or permanently”

“The plain language of the statute does not authorize renewal for only two years.”

“Avalos was entitled to the full five-year extension authorized under section 6345.”

[775]Opinion

POLLAK, J. Karen Avalos appeals from an order granting her unopposed request to renew a domestic restraining order against her former boyfriend, Zabdi Lopez Perez. She argues that the court erred in renewing the restraining order for only two years rather than five years, as required by Family Code section 6345, subdivision (a). Perez has made no appearance in this court. We agree with Avalos’s contention and therefore shall remand with instructions to modify the order.

Factual and Procedural History

On June 20, 2008, after receiving evidence of Perez’s repeated physical, sexual and mental abuse of Avalos and his threats to physically harm her as well as her family and friends, the court issued a two-year restraining order prohibiting Perez from assaulting, harassing or contacting, either directly or indirectly, Avalos.

On June 18, 2010, Avalos filed a request to renew the restraining order for a period of five years. According to Avalos, she had no contact with Perez after issuance of the original order until sometime in May 2010 when one of Perez’s friends came to the restaurant where she worked and told her that Perez was sending her “greetings.” She explained that she was requesting renewal of the restraining order because Perez knew where she worked and she was afraid that once the order expired he would try to contact her.

At the hearing on August 13, 2010, Perez did not appear or oppose the motion. The court questioned whether Avalos’s declaration showed a reasonable, continuing fear of Perez, but ultimately renewed the restraining order for a period of two years “[b]ased on the contact made through a third party . . . just prior to the restraining order expiring.” Avalos filed a timely notice of appeal.

Discussion

Family Code section 6345, subdivision (a), found within the Domestic Violence Prevention Act (§ 6200 et seq.), provides: “In the discretion of the court, the personal conduct, stay-away, and residence exclusion orders contained in a court order issued after notice and a hearing under this article [776]

Avalos v. Perez

AI Brief

More from California Court of Appeal

Related research

AI Brief