Filed 12 / 29 / 21 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re Marriage of DORIT and AVI REICHENTAL. 2d Civil No. B307255 (Super. Ct. No. 17FL00447) (Santa Barbara County)

DORIT REICHENTAL,

Appellant,

v.

AVI REICHENTAL,

Respondent.

Dorit Reichental (Wife) filed a petition for the
dissolution of her 39

- year marriage to Avi Reichental (Husband). The parties stipulated to the appointment of the Honorable Melinda Johnson, retired seasoned veteran in family law

, as temporary judge “ to hear and determine the above

- entitled

matter u ntil its final determination.” At Husband ’s reques t and

a fter an eight

- day evidentiary hearing

, J udge Johnson entered a2

“non

- CLETS” 1 domestic violence restraining order (DVRO) prohibiting Wife from entering the property where Husband was residing with Jenna Jobst, his girlfriend, harassing or surveilling
either of them, communicating with them, or coming within 50 yards of them

.

Wife contends J udge Johnson lacked jurisdiction to enter the DVRO because it was beyond the scope of the parties’ stipulation and Wife did not consent to have the DVRO request heard by her . She further contends the order must be vacated
because it is a “non

- CLETS” order , in violation of Family Code
section 6380 2 and because it improperly extends to Jobst, who is

not a party to this matter. Wife also contends J udge Johnson erred in ruling on the application because Husband did not first
file it in the Superior Court

.

We conclude J udge Johnson did not exceed the scope of her appointment when she heard and decided Husb and’s request for a DVRO , but did err as a matter of law when she specified that the restraining order was a “non

- CLETS” order

. We will remand the matter to permit J udge Johnson to enter an order in compliance with section 6380

. In all other respects, th e order is affirmed.

1 “CLETS” refers to the California Law Enforcement Telecommunications System . Domestic v iolence r estraining

o rders (DVROs) are reported to law enforcement through this system. (Fam. Code

, § 6380, subd. (a)

. )

2 All further statutory references are to the Family Code, unless otherwise stated.3 FACTS AND PROCEDURAL HISTORY 3 Wife filed the petition for dissolution of marriage in February 2017. In May 2017, the parties agreed to the appointment of Judge Johnson

. T he stipulation provides, “The temporary judge shall hear and try the above

- entitled matter, including hearing and determining all pretrial motions, discovery matters, and orders to show cause; presiding over the trial; rendering judgment; and hearing and determining all post

- trial
moti ons and orders to sho w cause.”

Husband filed a request for a DVRO . His supporting
declaration described receiving “numerous harassing and threatening emails from [Wife] that have frightened me and
caused me to be concerne d about her mental stability.” Husband noted that, after their separation, Wife bought a home that was

near their former residence, where he was living with Jobst . He
believed that Wife was watching him and Jobst from a neighbor’s property and that she gained access to his gated property through that neig hbor’s yard

. Husband claimed Wife had filed a false police report accusing him and Jobst of disabling the security system and installing listening devices in her home. He
also described an incident in which a package addressed to Wife

was delivered to his house . The package contained a book titled

, “Women Who Love Psychopaths: Inside the Relationships of Inevitable Harm with Psychopaths, Sociopaths, & Nar cissists.”
Husband declared that Wife had “repeatedly accused me of being a sociopath and narcissist ,” and that she repeatedly left a copy of
the book on his bedside table while th ey were still living together.

3 Wife does not challenge the evident iary basis for the restraining order

. As a consequence, we offer an abridged statement of the facts on which the DVRO request is based.4

The final incident Husband described involved Wife and two
other people standing in his driveway, looking through the wrought

- iro n gate in the direction of his house.

Jobst provided a declaration in which she described
two interactions with Wife

. First , she described Wife following
her in an aggressively unsafe manner as Jobst drove Husband’s Bentley on the northbound 101 F reeway , down the Conejo grade

. Second, on four occasions in one week, Jobst saw Wife parked in a bus stop near Husband’s house . From this vantage point, Wife could “monitor each person who enters or leaves our street.”

Wife’s opposition argued Husband’s claims were not a sufficient basis for a restraining order. She denied that her
emails were abusive , threatening or harassing , and contended
that filing the police report was a constitutionally protected activity. Wife further asserted that Husband’s residence was community property and that there was no “exclusive use” order in place

. Consequently, it was not improper for her to walk onto the pro perty , knock on the front door of the house or look at the house through the gate. Wife provided similar

, purportedly
innocent

, explanations for the other conduct described in
Husband’s declarati on

.

In addition to her written opposition to the DVRO

req uest and her declaration, Wife filed written objections to Husband’s evidence and re quested that Judge Johnson rule on those objections.

After a t wo

- hour hearing, Judge Johnson denied the request for “temporary emergency orders” without prejudice and
di rected the parties “to obtain the first available date for an evidentiary hearing on the petition.” The parties selected dates for the evidentiary hearing and then engaged in discovery

,5

including producing documents and deposing Husband, Jobst and
Wife

. On the first day of the evidentiary hearing, Wife objected to Judge Johnson presid ing over Husband’s DVRO request

. She contended the DVRO request should be dismissed
because the proceeding was out side the scope of the stipulation appointing the temporary judge

. She described the DVRO request as an ancillary proceeding that was independent from the
dissolution action referred to Judge Johnson . Wife noted the DVRO request was based on facts that ar ose after the petition for
dissolution was filed and included a request that the order extend

to Jobst , who is not a party to the dissolution action

.

Judge Johnson declined to dismiss the DVRO proceeding , concluding that it was related to the petition for
dissolution and fell within the scope of the parties’ stipulation

. J udge Johnson acknowledged that the DVRO request relied on
circumstances arising after the dissolution petition was filed but noted, “ [T]here are a lot [ of ] things that we try that weren’t contemplated at all at the time the petition[] or response was
filed. That is typical in family law, particularly the ones that linger on for some period of time.”

Over the next eight days, J udge Johnson heard in
exactin g detail the content of email s and text message s Husband considered abusive or threatening, and the instances in which he
believed Wife spied on him or entered the property where he was living

. Wife provided explanations for her language and
behavior . Sh e attempted to impeach Husband’s testimony that
he felt harassed or threatened with evidence that , for example, he
sometimes initiated communication with her, visited her house,6

offered to set up weekly breakfasts or lunches with her, and stayed at the same hotel when they traveled to family events

.

J udge Johnson granted a “non

- CLETS” restraining
order accompanied by a statement of decision

. She concluded many of Wife’s communications to Husband were “disturbing, annoying and often ext remely insulting and profane.” While these communications were “unwelcome and intrusive,” they were not, in the Judge Johnson ’s view, “ enjoinable. ” However, Wife engaged in other conduct that was a proper basis for a restraining order. Wife copied some of her inappropr iate communications to third parties, including the couple’s therapist
and their grown children . She exploited Husband’s childhood
traumas and threatened to destroy his reputation by revealing negative information about him if he did not do what she wante d.

J udge Johnson credited Jobst’s testi mony about Wife chasing her on the freeway . She found this conduct, “is evidence of [Wife’s] volatility and of the very real possibility of her acting
on her threats.” In addition to expressing concerns about Wi fe’s credibility , Judge Johnson noted that Wife ha d never acknowledged her behavior was inappropriate, raising the concern it would be repeated. She concluded Wife had destroyed Husband’s sense of mental and emotional calm by threatening to use the “highly sensitive information” she possessed to “expose” Husband and damage his reputation “if he did not behave as she
wis h ed in the context of th e di vorce litigation.”

J udge Johnson acknowledged that direct communication between the parties had “largely ended,” and that
Wife had not engaged in “similarly abusive and harassing
behavior” since the d issolution petition was filed. However, the litigati on was ongoing and complex financial issues remained to7

be decided. “The situation remains volatile and [Wife’s] total failure to comprehend the seriousness of her behavior raises concerns it could be repeated as the litigation proceeds.”

In addition, J udge Johnson acknowledged that a CLETS order would have “the potential of disrupting [Wife’s] employment as a life coach and, perhaps, eventually, a therapist, to an unwarranted degree. ” She concluded a non

- CLETS order,

“ [a] lthough disfavored in the law,” was appropriate

. The judge explained, “

just as the pattern of the behavior is such as to leave
the Court in a state of mind to believe re

- offen [d] is more than a hypothetical possibility, the length of time since the last reported incident suggests somet hing less than the full force of law may be
sufficient to prevent such a re

- offense.”

The resulting “non

- CLETS” order provided: (1)
Husband h as exclusive use of the former marital residence and Wife is prohibited from entering the premises, including the driveway, except by invitation; (2) Wife shall not “harass, attack, strike, threaten, hit, follow, stalk, molest, destroy personal property, disturb the peace , keep under surveillance or block the movements of” Husband or Jobst “ as a household member ;” (3) Wife shall stay 50 yards away from Husband, Jobst and their vehicles; (4) Wife shall not communicate with Husband or Jobst, “except in the case of a true emergency.” The order further specified, “Nothing in this order is intended to prevent [ Wife] from driving the most direct route to her residence . . . , even if it entails driving closer than 50 y ards” from Husband’s residence.8 DISCUSSION
Jurisdiction
Wife contends the DVRO proceeding is ancillary to and independent of the dissolution ac tion that she consented to
have decided by a temporary judge. As a consequence, she contends, the temporary judge lacked jurisdiction to enter the “non

- CLETS” restraining order.

“‘“The appointment of a temporary judge to hear a particular ‘cause’ carries with it the power to act until the final
determination of that proceeding. [Citation.]

. . . ”’” ( Gridley v. Gridley (2008) 166 Cal.App.4th 1562, 1581, quoting In re Steven
A. (1993) 15 Cal.App.4th 754, 768.) In determining whether a temporary judge is authorized to resolve a particular matter, “courts apply the rule that ‘[t]he determination of a cause encompasses subse quent proceedings that are its “direct progeny,” but not those considered “ ancillary ” to the stipulated

cause. [Citation.] Direct prog eny are those which are a continuation of the stipulated cause or question its finality, such
as motions to vacate or reconsider. [Citations.] An ancillary proceeding, on the other hand, is heard on a separate record and seeks an independent judgment or reviewable order.

. . .’ ” ( Gridley , supra, at pp. 1582

- 1583.)

Wife argues the parties’ stipulation appointing Judge Johnson defined the “cause” assigned to her as the dissolution of the parties’ marriage. The DVRO proceeding is ancillary to that “cause,” she contends, because it is a separate cause of action that

pr oceeds on its own record and whose outcome does not impact any final judgment in the dissolution action. We disagree.

The parties stipulated that Judge Johnson was authorized to “hear and try the above

- entitled matter,” e.g., the9

petition for the dissolu tion of the parties’ marriage, “including hearing and determining all pretrial motions . . . .” In the family law context, a request for order is the equivalent of a motion. (Cal. Rules of Court, rule 5.92(a)(1)(A).) The Family Code also expressly autho rizes the court to issue a DVRO “in a proceeding for dissolution of marriage . . . .” (§ 6221, subd. (a).) We conclude a request for a domestic violence restraining order, filed in a pending dissolution case, is a motion in that case. ( S.A. v.
Maiden (2 014) 229 Cal.App.4th 27, 37 .) Phrased otherwise, a DVRO can, as this case shows, arise out of, and may be the offspring of, or “direct progeny” of, a marital dissolution action. ( Gridley, supra, 166 Cal.App. 4 th at pp. 1582

- 1583.) Accordingly, the parti es’ stipulation authorizing Judge Johhson to hear and determine pretrial motions applies to Husband’s request for a
DVRO. Wife protests that a DVRO request is an ancillary proceeding and not a motion because the request can be made by filing a form petiti on, without also seeking a dissolution or separati on . ( Nakamura v. Parker (2007) 156 Cal.App.4th 327,
335 ; § 6221, subd. (a) [DVRO may be issued “in a proceeding brought pursuant to this division,” in an action under the Uniform Parentage Act, or in a dis solution proceeding].) The
DVRO request has a separate record and resolution of the request need not impact the judgment in the dissolution action. But the fact that a DVRO may be obtained in a separate proceeding does not mean that it must be a separate proceeding. As we have noted, a DVRO may also be obtained in a dissolution proceeding , as it was here

. A DVRO may be included in a judgment of diss olution and may impact other provisions of the judgment, such as the division of property and child custody.10 Here, the parties agreed the Judge Johnson would “hear and try the above

- entitled matter until its final
determination. ” Husband’s DVRO request arose during the pendency of the dissolution and relates to incidents that occurred while the matter was pending. There has been no “final
determination.” We conclude the DVRO request is part of the
“above

- entitled matter,” was therefore within the scop e of the temporary judge’s appointment. Family Code § 6380 Family Code section 6300 grants the court discretion
to enter a DVRO to “ prevent acts of domestic violence [or]
abuse . . .” when the person seeking the order “shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” (§ § 6220, 6300 , subd. (a) .) Abuse in this context includes physical abuse or injury and acts that “destroy[] the mental or emotional calm of the other party.” ( In re Marriage o f Nadkarni (2009) 173 Cal.App.4th 1483, 1497.)

S ection 6380 provides, “Upon the issuance of a protective order to which this division applies

. . . the Department
of Justice shall immediately be notified of the contents of the
order

. . . . ” ( Id. , subd. (b).) This process enters the order into CLETS, which permits it to be enforced by law enforcement
officers

. Section 6380 describes the process of reporting a DVRO and entering its contents in CLETS in mandatory, not
discretion ary terms.

Wife contend s Judge Johnson abused her discretion by specifying that the restraining order was based on a finding of
domestic abuse but was a “non

- CLETS” order that would not be reported to the Department of Justice. The “non

- CLETS” aspect
of the order was an error of law

. J udge Johnson found that Wife11

committed act s of abuse with in the meaning of the statute. Section 6380 required the resulting restraining or der to be reported to the Department of Justice and entered in CLETS

. (§§ 6221, 6380.) The obligation to register the order in CLETS was mandatory, not discretionary.

Wife contends the remedy for this error is to vacate
the order in its entirety

. Sh e is incorrect

. Judge Johnson found Wife had engaged in abuse within the meaning of section 6 3 20 and properly grant ed Husband’s DVRO request . ( § 6300 ; s ee,
e.g., In re Marriage of Nadkarni , supra, 173 Cal.App.4th at p. 1497.) The appropriate remedy is to remand the m atter, to permit J udge Johnson to enter an order that complies with the
manda tory provisions of section 6380. Scope of Order
Wife contends J udge Johnson erred because the
DVRO included Husband’s girlfriend, Jobst, as a protecte d person, even though Jobst is not a party to the dissolution. She is
incorrect. S ection 6320 grants the court discretion to “ issue an ex parte order enjoining a party from . . . disturbing the peace of the other party, and, in the discretion of the cour t, on a showing of good cause

, of other named family or household members.” ( Id

. , subd. (a).) Section 6340 grants the trial court discretion to issue “any of the orders described in Article 1 (commencing with Section 6320) after notice and a hearing.” ( Id

. , subd. (a).)

Jobst is a member of Husband’s household because
she lives with him. Judge Johnson found good cause to include Jobst in the protective order based on Wife’s conduct in chasing Jobst on the freeway

, falsely accusing Jobst and Husband of disabling her home security system and surveilling Husband and Jobst from the neighbor’s property. Including Jobst in the12

restraining order was not an abuse of discretion

. ( In re Marriage of Nadkarni , supra, 173 Cal.App.4th at p. 1495 [decision to grant DVRO “‘“‘ rests in the sound discreti on of the trial court

. . . ’ ” ’” ].)

For similar reasons, we conclude J udge Johnson did

not err when she permitted Jobst to testify. The testimony regarding Wife’s conduct toward Jobst was admissible because Jobst was entitled to protection as a member of Husband’s household. (§ 6320.) Additionally, Jobst witnessed acts of abuse committed against Husband

. Her testimony was relevant to establish that those acts occurred. ( Tangu ilig v. Valdez (2019) 36 Cal.App.5th 514, 522 [ testimony of third party witness to act of
elder abuse properly admitted ].)
Rule 2.400
California Rule s of Court, rule 2.400 (rule 2.400) provides, “All original documents in a case pending before a temporary judge o r referee shall be filed with the clerk in the

same manner as would be required if the case were being heard by a judge , including filing within any time limits specified by law and paying any required fees .” (Rule 2.400, subd. (b) (1) .) Here, Husband ini tially filed his request for a DVRO with J udge
Johnson and only later with the clerk of the superior court. Wife
contends the initial failure to file with the court clerk deprived
J udge Johnson of jurisdiction to consider the DVRO request.

“Rule 2.400 is intended to e nsure open access to records in any proceedings before temporary judges and referees.” ( In re Conservatorship of Townsend (2014) 231 Cal.App.4th 691, 705.) The filing requirement ensures “ ‘ that the court clerk’s office
has the complete case file and can make all nonconfidential portions of the file available to the public . . . .’” ( I bi d. )13 Townsend held that a motion to vacate a judgment did not extend the moving party’s time to file a notice of appeal
because the motion was filed with a temporary judge and not with the clerk of the superior court

. ( In re Conservatorship of Townsend, supra, 231 Cal.App.4th at p p

. 705

- 706.) “ While there may be circumstances in which the failure to file documents with the superior court clerk as required under rule 2.400(b) may be waived, a motion to vacate is not one of the circumstances.

. . . A motion to vacate is part of the calculation to determine the jurisdictional time limits to file an appeal. To extend the time to appeal, the proced ural requirements in [Code of Civil Procedure]
section 663a must be met. We have no authority to rewrite the statute to create exceptions in section 663a, subdivision (a) in proceedings before a temporary judge where the parties submit
the motion to vacat e to the temporary judge but do not file it with
the clerk.” ( I

bid

. ) Here, Husband filed his DVRO request with J udge
Johnson before filing it with the superior court clerk. The document was, however, filed with the superior court clerk before
the evidentiary hearing concluded and before Judge Johnson
entered the order. Unlike a motion to vacate or a notice of appeal, there is no jurisdictional time period within which a DVRO request must be filed. Under these circumstances, as Husband points out, any error is harmless

. Attorney Fees Wife contends she was the prevailing par ty on the DVRO request because J udge Johnson denied Husband’s request
for a CLETS order. Wife had contended the DVRO request
should be denied in its entirety

. Inst ead, the DVRO request was granted , even though J udge Johnson enter ed a “non

- CLETS”14

order

. Husband obtained the restraining order he sought. He
should have been awarded the CLETS order he sought. Disposition
The matter is remanded to J udge Johnson with
instructions to enter a modified order that complies with Family
Code section 6380

. In all other respects, the order is affirmed. Husband shall recover his costs on appeal.

CERTIFIED FOR PUBLICATION

.

YEGAN, Acting P. J.

We concur:

PERREN, J.

TANGEMAN, J.Melinda A. Johnson , Temporary Judge *

Superior Court County of Santa Barbara

______________________________ M. Jude Egan, for Appellant.

Phillips Jessner, Gregory W. Jessner, Adam N. King and Raymond K. Martinez, for Respondent.

* Superior Court of Santa Barbara , Melinda A. Johnson, Temporary Judge

. (Pursuant to Cal. Const., art. VI, § 21. )