Russell v. Walsh CA1/2 ( 2021 )

Filed 8/24/21 Russell v. Walsh CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
STEPHEN RUSSELL
Plaintiff and Appellant,
A160588
v.
(San Francisco Super.
TARA WALSH, Ct. No. FPT-18-377425)
Defendant and Respondent.
Plaintiff Stephen Russell appeals from the San Francisco Superior
Court’s denial of his request that it renew for five years a six-month domestic
violence restraining order (DVRO) previously issued against defendant Tara
Walsh, Russell’s former girlfriend and the co-parent of their young child.
Russell argues the court applied incorrect legal standards to deny his renewal
request and conclude Walsh did not have notice of the DVRO’s “no contact”
provision, and abused its discretion in evaluating the evidence of Walsh’s
abuse. Walsh argues the court lacked jurisdiction over the renewal
proceedings and that Russell’s claims lack merit. We conclude the court had
jurisdiction and Russell does not show error, in part because he relies on
documents not contained in the record before us. We affirm.
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BACKGROUND
I.
The 2018 Proceedings
Russell and Walsh are a former unmarried couple and the parents of a
young child born to Walsh in January 2018, when the couple lived together in
New York. By March 2018, the three lived together in San Francisco. In
June 2018, Russell filed a parentage action in the County of San Francisco
Superior Court (Superior Court). Walsh thereafter returned to New York
with their child and in July 2018 filed a custody petition in the Westchester
County Family Court (Westchester Court). This triggered a jurisdictional
conflict between the two courts under the Uniform Child Custody Jurisdiction
and Enforcement Act (UCCJEA) regarding child custody determinations.
(See Fam. Code, § 3421.)
Also, in July 2018, Russell obtained an emergency one-week protective
order against Walsh from the San Francisco Police Department based on his
allegation that Walsh had put Seroquel in his drinks without his consent. He
then filed a request in Superior Court for a DVRO against Walsh based on
this and other allegations of abuse. The court issued a temporary restraining
order against Walsh pending consideration of Russell’s request.
In August 2018, the Superior Court and the Westchester Court held a
joint bench conference at which they agreed that the Superior Court would
stay Russell’s parentage action and related motions until the Westchester
Court ruled on its jurisdiction under the UCCJEA. In agreeing to this stay,
the Superior Court stated, “I think I have jurisdiction over [Russell’s] DV
restraining order request so I will hear that. And . . . the child is not included
on it.” Subsequently, the Superior Court told the parties at an August 2018
hearing that it was staying the parentage action “and related motions” until
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the Westchester Court ruled. It then heard Russell’s DVRO request but
withheld a decision until it could hold another hearing. The court’s register
of actions indicates the DVRO action was then dismissed after the parties
agreed to withdraw the temporary restraining order.
II.
The 2019 DVRO Proceeding
In June 2019, Russell again filed a request for a DVRO against Walsh
in the Superior Court, this time for a period of five years, based on the same
abuse he had asserted in 2018 as well as other alleged abuse.
Both parties, represented by counsel, testified at a long-cause hearing
held in October 2019, and their counsel presented argument to the court. It
appears from the hearing transcript, which was filed under seal, that Russell
contended in his papers and before the court that Walsh engaged in a series
of abusive behaviors towards him, most of which Walsh denied. However,
Walsh admitted that while they were living together, she put a medication
prescribed to her into drinks of Russell’s without his knowledge or consent on
at least two occasions.
At the conclusion of the hearing, the court found that Walsh’s putting
her prescription medication into Russell’s drinks without his knowledge or
consent warranted a DVRO against her but rejected or did not rely on the
other claims of abuse. The court stated its intent to issue a six-month, “no
harassment, personal conduct orders only,” but not a no-contact order,
against Walsh. The court explained it was ordering a relatively short time
period for the DVRO because “I don’t think that under the circumstances that
exist now—they are no longer in a relationship, they live far away from each
other—there is a need for a longer amount of time or a stay away. They still
have their [child] to deal with, and there’s going to be exchanges; so you’re
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going to have to deal with that. But I think a no harassment, no threats, no
stalking, no disturbing the peace type of restraining order for the next six
months is warranted.” The court said it would order “[p]ersonal conduct
orders only with the box checked to allow for court-ordered visitation per the
[Westchester Court], which has custody jurisdiction over the custody issue.”
Despite the court’s statements at the hearing, it apparently issued a
written DVRO—which Russell does not include in the record before us—that
had a box next to “no contact” checked, according to the court’s description of
the written DVRO at the 2020 renewal request hearing.
III.
Russell’s 2020 DVRO Renewal Request
In 2020, Russell apparently filed a request with the Superior Court
(also not included in the record) that it renew the 2019 DVRO for five years.
The record does not contain any of the papers filed by the parties regarding
this request, but does contain the transcript of the hearing the court held.
At the renewal request hearing, Russell, through counsel, argued he
had a reasonable apprehension of future abuse by Walsh because of “the
significant abusive behavior that led to the issuance of the original
restraining order,” “the fact that there has been no significant change in
circumstances,” the limited time that had passed since the issuance of the
2019 DVRO, Walsh’s lack of remorse, her continued efforts to contact Russell
in violation of the DVRO’s “no contact” provision, and her efforts to prevent
him from seeing their child. Counsel claimed Walsh had violated the DVRO
by sending emails to Russell reporting about their child and sending
anonymous text messages to Russell, but the evidence of this, if any, is not
contained in the record before us. Counsel acknowledged the emails were not
harassing in content, but claimed they were nonetheless harassing when
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viewed in the context of the couple’s dispute over his visitation rights
regarding the child.
The court rejected the contention that Walsh’s emails violated the 2019
DVRO. It concluded, apparently based on Walsh’s own declaration (which
also is not contained in the record), that she had no notice of the 2019
DVRO’s “no contact” provision because she had never received the final,
written DVRO.
The court reviewed the emails Walsh sent Russell about their child and
found they were “friendly” and did not constitute “a continuation of any
harassing behavior”—that is, they were unrelated to the “specific conduct” of
placing medication into Russell’s drink, the basis for the 2019 DVRO. Also,
the court found the emails “appear[ed] to be ordered by the [Westchester
Court],” which, as discussed above, was handling the child custody
proceedings. The court concluded that Walsh did not violate the 2019 DVRO
and declined to renew it.
Russell timely appealed. Walsh filed a request for judicial notice on
May 5, 2021, with this court, which Russell does not oppose. We grant this
request regarding exhibits A through C under Evidence Code sections 452,
subdivision (d) and 459. We deny it regarding exhibits D through H, which
are not relevant to our resolution of this appeal.
DISCUSSION
I.
The Superior Court Had Jurisdiction.
Walsh argues that because the Superior Court dismissed Russell’s
parentage action and “all related proceedings” in September 2018, it lacked
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jurisdiction to issue a DVRO in 2019 and entertain further proceedings in
2020. We disagree.
A. Relevant Proceedings Below
As we have discussed, in June and July 2018, Russell filed both a
parentage action and a DVRO request in the Superior Court. Both were filed
under the same case number. In July 2018, Walsh filed a custody petition in
the Westchester Court, and the two courts soon agreed that the Superior
Court would stay the parentage action until the Westchester Court ruled on
jurisdiction under the UCCJEA regarding custody proceedings, but that the
Superior Court could proceed to hear Russell’s DVRO request. The Superior
Court held one hearing and scheduled another regarding the initial DVRO
request, but, again, the court’s register of actions indicates the action was
then dismissed after the parties agreed to withdraw the temporary
restraining order. In September 2018, after the Westchester Court ruled that
it had jurisdiction under the UCCJEA, the Superior Court dismissed
Russell’s parentage action along with “all related proceedings,” “declin[ing] to
exercise jurisdiction.”
Russell’s second (2019) DVRO request was filed under the same case
number as the previous proceedings. Walsh attended the hearing on this
request and did not challenge the Superior Court’s jurisdiction.
B. Analysis
Walsh argues the Superior Court lacked jurisdiction to issue the 2019
DVRO because it was “issued . . . after the Superior Court had stayed all
proceedings and ultimately dismissed the [parentage action] and related
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proceedings” and, therefore, it did not have jurisdiction to consider its
renewal in 2020. We disagree.
The jurisdictional question here—although not expressly identified in
Walsh’s brief—relates to subject matter, as she does not dispute the Superior
Court’s personal jurisdiction over her or claim she lacked “presence, contacts,
or other conduct within the forum state.” (Donaldson v. National Marine,
Inc. (2005) 35 Cal.4th 503, 512 [defining issues of personal jurisdiction].)
Rather, she challenges the Superior Court’s “power to hear and resolve a
particular dispute or cause of action” (Serrano v. Stefan Merli Plastering Co.,
Inc. (2008) 162 Cal.App.4th 1014, 1029 [defining issues of subject matter
jurisdiction]), i.e., Russell’s 2019 DVRO request and the proceedings that
followed. “ ‘Where the evidence is not in dispute, a determination of subject
matter jurisdiction is a legal question subject to de novo review.’ ” (Saffer v.
JP Morgan Chase Bank, N.A. (2014) 225 Cal.App.4th 1239, 1248.)1
The Westchester Court ruled under the UCCJEA that the Superior
Court did not have subject matter jurisdiction over Russell’s parentage action.
This appears to have been appropriate because “the UCCJEA is the ‘exclusive
means of determining subject matter jurisdiction in custody disputes
involving other jurisdictions.’ ” (In re Marriage of Fernandez-Abin & Sanchez
(2011) 191 Cal.App.4th 1015, 1037.) But neither of the two courts
determined that the Superior Court lacked jurisdiction to consider Russell’s
DVRO request, which did not involve a custody determination but a claim of
1 Russell does not contend that Walsh has forfeited this issue by not
first raising it below. We do not decide the question, but case law suggests
Walsh has not forfeited the issue. (See, e.g., Totten v. Hill (2007)
154 Cal.App.4th 40, 46 [“ ‘The adequacy of the court’s subject matter
jurisdiction must be addressed whenever that issue comes to the court’s
attention’ ”].)
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domestic violence under California’s Domestic Violence Protection Act
(DVPA). (Fam. Code, § 6211, § 6203.)
Still, Walsh implies, the Superior Court in 2018 acknowledged a lack of
jurisdiction when it dismissed Russell’s DVRO request along with the
parentage action. Walsh relies on the language of the dismissal order, in
which the court stated it was dismissing “the Petition to Establish Parental
Relationship filed on June 4, 2018, and all related proceedings.” This ruling,
Walsh contends, encompassed the DVRO request. Her argument is not
persuasive for two reasons.
First, it is evident from the record that the two courts discussed
Russell’s DVRO request, agreed the Superior Court could hear it and agreed
to “leave it up to [Russell]” whether to “withdraw his DV restraining order
request [in San Francisco] and refile in New York.” In other words, the
courts’ discussion indicated their understanding that Russell’s DVRO request
was not among the “related proceedings” the Superior Court would stay
under the UCCJEA.2 Indeed, the Superior Court made plain that it intended
to maintain its jurisdiction over Russell’s DVRO request, recognizing that the
request and the parties’ custody proceedings were independent of each other.
It stated that it would “stay the petition to establish parental relationship
and related motions including the motion to dismiss” but would continue to
2 In its August 2018 conference with the Westchester Court, the
Superior Court indicated that, along with Russell’s parentage petition, it had
before it Walsh’s motion to dismiss that action for lack of jurisdiction and
Russell’s request for custody and visitation. Most likely the Superior Court’s
later reference in its dismissal order to “related proceedings” referred to the
child custody and visitation matters. In the August 2018 discussion, the
Superior Court contrasted these child-related matters with Russell’s “request
for the DV restraining order,” which, it observed, “does not include the child.”
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hear the DVRO request, saying, “I think I have jurisdiction over Father’s [i.e.,
Russell’s] DV restraining order request so I will hear that.”
Second, Walsh does not establish that Russell’s 2018 and 2019 DVRO
requests were part of the same action. Walsh contends they were filed in the
same action, which was dismissed in September 2018, ending the court’s
jurisdiction over matters filed in the case. However, the fact that the
requests were filed under the same case number is of no consequence. “The
assignment of case numbers is a clerical administrative matter that reflects
only the manner in which [a party] presents the initiating pleadings to the
court; the “continued application of a purely clerical designation cannot take
precedence over the court’s substantive ruling on the merits.” (People v.
Barros (2012) 209 Cal.App.4th 1581, 1595 [assignment of a single case
number to multiple charges not sufficient to show the charges were of the
same proceeding].) Further, the first DVRO proceeding having been
dismissed, the second was necessarily a new action. Russell’s 2019 DVRO
request as filed is not contained in the record, but the hearing regarding it
indicates the court treated it as a separate proceeding from the 2018 DVRO.
Walsh gives us no reason to question that the two requests were separate.
In short, Walsh’s argument that the Superior Court lacked subject
matter jurisdiction here is without merit.
II.
Russell Fails to Show the Court Abused Its Discretion in
Denying His DVRO Renewal Request.
A. Russell Fails to Show the Court Committed Legal Error.
Russell first argues that the court abused its discretion in denying his
DVRO renewal request by failing to apply the correct legal standards in two
respects: (1) it rejected his request without considering whether he had a
reasonable apprehension of future abuse; and (2) its conclusion that Walsh
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had not received notice of the 2019 DVRO’s “no contact” provision ignored
that by statute she received notice of the DVRO as a result of her attendance
at the October 2019 hearing. We review these claims for abuse of discretion.
However, whether the legal standard the Superior Court applied is correct is
a question of law that we review de novo. (Cueto v. Dozier (2015)
241 Cal.App.4th 550, 560 (Cueto).)
Further, and most pertinent here, “ ‘ “[a]ll intendments and
presumptions are indulged to support [the judgment] on matters as to which
the record is silent, and error must be affirmatively shown.” ’ ” (Ketchum v.
Moses (2001) 24 Cal.4th 1122, 1140 (Ketchum).) An appellant has the burden
of providing a record of the trial court proceedings adequate enough to allow
an appellate court to assess claims of error. (Id. at pp. 1140-1141.) If an
appellant “ ‘fail[s] to furnish an adequate record . . . [the] claim must be
resolved against [him].’ ” (Id. at p. 1141.) “We cannot presume error from an
incomplete record.” (Christie v. Kimball (2012) 202 Cal.App.4th 1407, 1412.)
1. The Reasonable Apprehension Standard
Russell first argues that the court used the wrong legal standard in
denying his DVRO renewal request because it failed to assess his
apprehension of future abuse from the perspective of a reasonable person in
the same circumstances. Russell fails to show error.
“[A]n objective test must be satisfied before a protective order is
renewed in contested cases.” (Ritchie v. Konrad (2004) 115 Cal.App.4th 1275,
1290 (Ritchie).) Under this test, the “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.”
(Ibid.) In making this determination, a court should consider factors such as
“the evidence and findings on which that initial order was based,” “any
significant changes in the circumstances surrounding the events justifying
10
the initial protective order” and “changes that enhance the opportunity and
possibility of future abuse[.]” (Id. at pp. 1290-1291.) The trial court is not
required to state the legal standard when ruling on a DVRO request. (See
Cueto, supra, 241 Cal.App.4th at pp. 560-561 [“While the trial court referred
to a ‘reasonable person’ without including the phrase ‘in the same
circumstances’ . . . the record as a whole demonstrates the trial court
understood and applied the correct legal standard.”].)
Here, Russell fails to show that the Superior Court did not apply the
proper legal standard. At the renewal request hearing, Russell’s counsel fully
explained the legal standard to the court and argued the evidence met that
legal standard. The court’s statements at the hearing indicated it considered
these arguments and the evidence related to it, such as the emails that
counsel claimed showed Walsh had repeatedly violated the DVRO. Also, the
court considered the evidence and findings of the original order, noting the
basis for the order was Walsh putting medication into Russell’s drinks
without his consent. It considered the significant changes in the
circumstances surrounding the events which justified the 2019 DVRO,
concluding that “what we have here is a very different type of situation.”
Finally, the court did not see any changes that enhanced the opportunity and
possibility of future abuse, stating “I don’t think there’s a continuation of any
harassing behavior.” The court’s reasoning demonstrates an understanding
and application of the legal standard set forth in Ritchie.
Similar to the appellant in Cueto, Russell argues the Superior Court
did not use the correct legal standard because it never mentioned the
“reasonable apprehension” standard in assessing his fear of future abuse.
Russell further contends the court did not inquire into whether he was
apprehensive of future abuse from Walsh. However, we presume the correct
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legal standard was applied. (Ketchum, supra, 24 Cal.4th at pp. 1140-1141.)
Further, the trial court is not obliged to recite the standard. (See Cueto,
supra, 241 Cal.App.4th at pp. 560-561.) Therefore, Russell’s argument fails.
2. The Legal Standard Regarding Notice of the 2019 DVRO.
Russell next argues that the Superior Court applied the wrong legal
standard in finding that Walsh did not have notice of the 2019 DVRO’s terms
despite her presence at the October 2019 hearing, when the court announced
it would issue a DVRO. Russell is incorrect.
Russell relies on the fact that the Superior Court issued the 2019
DVRO under Family Code section 6384, which provides “no additional proof
of service is required for enforcement of the order” if the respondent makes a
“personal appearance in court to hear the terms of the order from the court.”
(Fam. Code, § 6384, subd. (a), italics added.) There is no question that Walsh
was present for the October 2019 DVRO hearing. Nonetheless, she did not
hear the terms of the 2019 DVRO then because the court did not issue its
final order at that time. Rather, the court merely indicated its intention to
issue a “no harassment, personal conduct orders only, not a stay away”
DVRO for six months and asked Russell’s counsel to submit a proposed
written order to the court. Therefore, Family Code section 6384’s no-further-
notice provision did not apply to Walsh.
And indeed, the court’s stated intentions at the October 2019 hearing
apparently were different from the terms of the final, written 2019 DVRO
that it issued after the hearing. We understand this to be the case because,
although the 2019 DVRO is also not in the record before us, the court stated
at the 2020 renewal request hearing that “no contact” was checked on the
2019 DVRO. Based on the difference between the court’s October 2019
hearing statements and the 2019 DVRO, and on Walsh’s contention, which
the court found credible, that, while she attended the October 2019 hearing,
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she did not receive the written 2019 DVRO, the court in 2020 found that
Walsh only received notice at the hearing that the court intended to issue a
DVRO that restricted her personal conduct but would not prohibit contact
between her and Russell because of their child. Russell gives us no reason to
question the court’s finding. In light of the trial court’s finding that Walsh
had no notice of the no-contact aspect of the ultimate written DVRO, Russell
has not established legal error.
C. Russell Has Not Shown That the Superior Court Abused Its
Discretion in Considering the Evidence of Walsh’s Abuse.
Russell further argues that the Superior Court, even if it applied the
correct legal standards, abused its discretion in its consideration of certain
evidence of Walsh’s abuse. Again, we disagree.
Under the abuse of discretion standard of review, we review the lower
court’s factual findings for substantial evidence. (See Jennifer K. v. Shane K.
(2020) 47 Cal.App.5th 558, 580 [“Because substantial evidence supports the
court’s finding that appellant failed to show that she was ‘abused’ within the
meaning of the DVPA, the denial of her application for a DVRO cannot be
deemed an abuse of discretion”].) That is, “we look only to the evidence
supporting the prevailing party. [Citation.] We discard evidence unfavorable
to the prevailing party as not having sufficient verity to be accepted by the
trier of fact. [Citation.] Where the trial court has drawn reasonable
inferences from the evidence, we have no power to draw different inferences,
even though different inferences may also be reasonable.” (Federal Home
Loan Mortgage Corp. v. La Conchita Ranch Co. (1998) 68 Cal.App.4th 856,
860.) “[E]ven where there are no express findings, we must review the trial
court’s exercise of discretion based on implied findings that are supported by
substantial evidence. [Citation.]” (Ibid.)
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Russell first claims that the evidence and findings underlying the 2019
DVRO were sufficient in themselves to justify renewal and that it was
therefore an abuse of discretion for the Superior Court to deny his renewal
request.
As we have indicated, “the existence of [an] 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 [justify
renewal].” (Ritchie, supra, 115 Cal.App.4th at p. 1291.) Nonetheless, a trial
court should only review “the evidence and findings on which that initial
order was based in appraising the risk of future abuse should the existing
order expire.” (Id. at p. 1290, italics added.)
In issuing the DVRO in 2019, the court relied solely on the evidence
that Walsh had put her prescription medication in Russell’s drinks without
his knowledge or consent, which Walsh admitted having done at least twice.
At the DVRO renewal request hearing in 2020, the court found that this
alone was the basis for the 2019 DVRO, and either rejected other claims of
abuse or found, inferentially, that they were not grounds for a DVRO.
Russell ignores this finding, and further ignores the basic principles of
appellate review by implicitly arguing we should relitigate the credibility and
significance of the evidence presented by the parties in 2019—much of which
is not in the record before us. We shall not do so.
Further, Russell fails to include in the record any of the papers
submitted to the court regarding his 2020 DVRO renewal request. We are
unable to properly evaluate his claims of evidentiary error in the absence of a
full record of what the court considered in 2020 in evaluating his renewal
request. Because Russell “ ‘fail[s] to furnish an adequate record . . . [the]
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claim must be resolved against [him].’ ” (See Ketchum, supra, 24 Cal.4th at
p. 1141.)
Russell also argues on three grounds that the court abused its
discretion in 2020 by finding that, because Walsh was residing in New York
at the time of the renewal request, circumstances had so changed that
Russell no longer had a reasonable apprehension of future abuse. These
arguments, too, are unpersuasive.
A trial court evaluating a DVRO renewal request may consider “any
significant changes in the circumstances surrounding the events justifying
the initial protective order.” (Ritchie, supra, 115 Cal.App.4th at p. 1291.)
Such changes may weaken or strengthen the case for renewal: on one hand,
“the restrained and protected parties [may have] 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”; on the other hand,
there may have been “no significant changes or even perhaps changes that
enhance the opportunity and possibility of future abuse[.]” (Ibid.)
Russell first asserts that Walsh violated the 2019 DVRO by emailing
Russell and purportedly sending him anonymous text messages, and that her
knowing violations constituted acts of abuse. As we have discussed, the court
found Walsh did not receive notice of the terms of the final written DVRO
and thus did not knowingly violate the DVRO by emailing Russell. Further,
the court stated that it had “reviewed all of the emails that were allegedly
sent” and found they “appear[ed] to be friendly, where Ms. Walsh is updating
Mr. Russell on the child’s health and condition, which does appear to be
ordered by the court in New York.” Given that none of the emails and text
messages are contained in the record before us, Russell gives us no basis to
15
second-guess the Superior Court’s findings and conclusions. (See Ketchum,
supra, 24 Cal.4th at p. 1141.)
Second, Russell contends Walsh’s residence in New York should not be
deemed a changed circumstance because “some of the abuse that underlay
the initial restraining order was committed remotely (i.e., through electronic
means via phone calls, emails, and text messages),” such as Walsh refusing to
sign an agreement preventing her from releasing videos and photos of Russell
and her “fail[ure] to comply with an Order on Mental Examination.” But as
we have discussed, none of these contentions were a basis for the 2019 DVRO
that Russell sought to renew. Therefore, the trial court had no obligation to
consider them (See Ritchie, supra, 115 Cal.App.4th at p. 1291), and neither
does this court.
Third, Russell argues the court should not have found Walsh’s living in
New York was a changed circumstance because people frequently travel from
New York to California. The court did not expressly discuss this argument.
Nonetheless, the 2019 DVRO relied solely on Walsh’s conduct in covertly
medicating Russell while she was living with him and not on other alleged
forms of abuse. And indeed, the court in 2019 limited the time duration of
the DVRO to six months because the two had terminated their romantic
relationship and Walsh had moved to New York. The court did not abuse its
discretion in giving little or no weight to this argument.
In short, Russell has not shown that the court’s treatment of the
evidence and denial of his renewal request was an abuse of discretion.
DISPOSITION
We affirm. Walsh is entitled to her costs of appeal.
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STEWART, J.
We concur.
RICHMAN, Acting P.J.
MILLER, J.
Russell v. Walsh (A160588)
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