Understanding California DVROs: The challenge of subsequent restraining orders

In Part 1, we reviewed the framework of California's Domestic Violence Prevention Act (DVPA), the standards for issuing restraining orders, and the Conness court's narrow reading of section 6305. In this second part, we turn to how later appellate decisions -- most notably Salmon -- adopted a more functional approach, highlighting the unresolved tension over subsequent restraining orders.

The legislature has twice amended Section 6305 since the Conness decision. Each time, it failed to address the subsequent restraining order dilemma. The rules of statutory interpretation presume that the legislature is mindful of judicial interpretations of statutes at the time it amends a statute. (See Estate of McDill (1975) 14 Cal.3d 831, 878.) The failure of the legislature to modify a law in a particular respect while it changes the law in other respects indicates a conscious decision on the part of the legislature to leave the interpretation as it stands in the aspects not amended. (Id.)

The 2014 amendment to section 6305 added subsection (b), which requires the court to consider the "provisions concerning dominant aggressors set forth in paragraph (3) of subdivision (c) of Section 836 of the Penal Code." (Stats. 2014, ch. 635, § 6.) The 2016 amendment to section 6305 further clarified the procedural requirements for mutual restraining orders. It mandated that both parties must present written evidence of abuse or domestic violence using a mandatory Judicial Council restraining order application form. (Stats. 2015, ch. 73, § 1.) The 2016 amendment was once again designed to ensure full faith and credit be accorded to orders. Federal law instructs that if a court issues a protective order against a person who has filed a petition for a protective order, that order is not entitled to full faith and credit unless there was a "cross or counter petition, complaint, or other written pleading was filed seeking such a protection order," strongly suggesting that issuing a mutual order on the basis of one Petition and one Answer would result in an order that is not accorded full faith and credit. (18 U.S.C. § 2265(c).)

Noticeably, and under the canons of statutory interpretation, presumably intentionally, neither of the amendments to the statute in the intervening period addressed the subsequent restraining order dilemma clearly articulated in Conness.

The broader, functional approach of Salmon v. Salmon

In 2022, the 4^th Appellate District, found that subsequent requests for DVROs should be treated as a request for mutual DVROs pursuant to section 6305. (Salmon v. Salmon (2022) 85 Cal.App.5th 1047, 1057.) It is noteworthy that the facts before the Salmon court satisfied the procedural requisites of section 6305. This case did not present the subsequent restraining order dilemma. No prior DVRO had issued. Both husband and wife filed competing requests for DVROs against each other as contemplated by the statute, and the trial court held a joint hearing on both applications over multiple days with live witness testimony, determining that husband was the "primary aggressor." (Id. at p. 1052.) Accordingly, the trial court granted wife's DVRO and denied husband's request in written findings made in a minute order, as well as explaining its findings orally on the record. (Id. at pp. 1052-1053.)

On appeal, husband's primary contention was that section 6305 does not apply when two competing petitions allege different incidents of domestic violence as the basis for seeking a protective order under the DVPA. (Id. at p. 1053.) Husband argued that where distinct incidents are at issue, each petition for a DVRO must be determined on its own merits, independent of the other, regardless of whether the petitions are heard separately or together. (Id. at p. 1053.)

Despite the subsequent restraining order dilemma not being presented, the Salmon court acknowledged a division in authority, citing to Conness and Melissa G. v. Raymond M. (2018) 27 Cal.App.5th 360 (Melissa G.). Whereas the Conness court interpreted the "a mutual restraining order" in subsection (a) of section 6305 to imply one order restraining both parties, in Melissa G., the 2nd Appellate District held that "[a]s used in section 6305, the phrase 'mutual order' may refer to a single order restraining two opposing parties ... or two separate orders which together accomplish the same result as a single order." (Id. at p. 1055 (quoting Melissa G., supra, 27 Cal.App.5th at p. 368 (internal quotations omitted).) As in Salmon, Melissa G. did not involve a subsequent restraining order dilemma. The parties filed competing petitions for restraining orders, which the court adjudicated at a single evidentiary hearing. (See Melissa G., supra, 27 Cal.App.5th at pp. 365-366.) The central issue on appeal was the trial court's failure to undertake the necessary inquiry and make the detail findings required by section 6305. (Id. at p. at 373.) Finding error on the part of the trial court for failing to undertake the heightened inquiry before issuing a mutual restraining order or mutual restraining orders, the 2nd Appellate District reversed the trial court. (Id.)

The Salmon court went on find that section 6305's heightened inquiry applies to all cases involving competing DVROs--regardless of whether they are heard together or separately--ensuring that "in every case the same standard is applied...." (Salmon, supra, 85 Cal.App.5th at p. 1057.) The court reasoned that trial courts must always apply the "dominant aggressor" analysis and make the detailed findings required by § 6305 when faced with competing petitions, even when a prior restraining order was obtained by one party. (Id.)

Unlike the Conness court, which focused on the plain language of the statute, the Salmon court emphasized legislature's intent to protect victims and avoid misidentifying victims as abusers. (Id. at pp. 1058-1059.) The Salmon court found that lower courts are well equipped to unravel the "procedural snarl" identified in Conness. (Id. at p. 1057.) Judicial Council Forms (DV-100) require petitioning parties to disclose the existence of any other restraining orders as well as any other court cases involving the parties. (Id. at p. 1058.) Additionally, DVROs are not permanent orders. Rather, they are subject to modification and termination based upon changed circumstances or as warranted by the ends of justice. (Id.) Hence, the "incentive for a party to attempt to hold the proceedings hostage by refusing to appear," as described in Conness, would be minimal, at best, as the "absent party would risk termination of any prior order and issuance of a new order in favor of the opposing party." (Id.) Finally, if a party restrained by a DVRO files a subsequent petition for a DVRO against the protected party in a different county, the court could transfer the matter to the county where the original DVRO issued, as the court in that county could modify or terminate the underlying DVRO after undertaking the section 6305 mutual DVRO inquiry. (Id.) Any inconvenience to the subsequent petitioner in having to travel back to the county where the original DVRO issued, is no greater than the inconvenience to modify, terminate, or defend against a renewal of the underlying DVRO. (Id.) The Salmon court found that this functional approach ensures that courts assess the relative culpability of the parties regardless of the procedural sequence of filings and hearings. (Id. at p. 1057.)

Choosing between the Conness and Salmon approaches

It has now been nearly three years since the Salmon decision, and the legislature has not clarified this issue. "[W]here there is more than one appellate court decision, and such appellate decisions are in conflict[,] ...the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions." (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456.) Thus, on the surface it appears that trial courts facing the subsequent restraining order dilemma may navigate the legal puzzle by opting for either the narrow, judicially retrained, approach of Conness or the broader, more functional, approach applied in Salmon. However, there is one problem. The doctrine of "stare decisis[,] extends only to the ratio decidendi of a decision, not to supplementary or explanatory comments which might be included in an opinion." (Western Landscape Construction v. Bank of America (1997) 58 Cal.App.4th 57, 61.) In determining the precedential value of a statement in a decision, lower courts must compare the facts of the decision with the issues raised in it. (See id.) Only those statements necessary to the decision are binding precedents. While dicta, statements made in a decision that are not essential to the determination of the case, can be persuasive, they are not binding. (See PacifiCare Life & Health Ins. v. Jones (2018) 27 Cal.App.5th 391, 410.) Trial courts opting to follow the Salmon approach will have the additional task of determining whether the court's statements about subsequent restraining orders were essential to its holding, as the facts of that case did not involve a subsequent restraining order request.

Conclusion

The tension between the approaches in the Conness and Salmon decisions reveals a gap in the statutory scheme when trying to harmonize the statutory text with its legislative intent. Either the California Supreme Court or the legislature will need to clarify whether subsequent restraining orders should be treated as requests for mutual restraining orders under section 6305, and whether a court faced with a request for a subsequent restraining order has the authority to invalidate an earlier DVRO granted by another court in that county. Until this tension is abated, courts and litigants alike will have to navigate the legal puzzle of subsequent restraining orders without guidance.