Filed 12/10/21 Marriage of Brubaker and Strum CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re Marriage of BETSEY 

BRUBAKER and ANDY STRUM.

B307887

(Los Angeles County

BETSEY BRUBAKER,

Appellant,

v.

ANDY STRUM,

Respondent. 

Super. Ct. No. 17STFL05662)

APPEAL from an order of the Superior Court of 

Los Angeles County, Michael R. Powell. Reversed with 

directions.

Fernandez & Karney and Mark H. Karney for Petitioner 

and Appellant.

Feinberg Mindel Brandt & Klein, Gregory A. Girvan and 

Collette Torunyan for Respondent. 
2

INTRODUCTION

Betsey Brubaker appeals from an order denying her 

request to renew a restraining order against her former husband,

Andy Strum, under the Domestic Violence Prevention Act (the 

Act) (Fam. Code, § 6200 et seq.).

1 Because the trial court 

erroneously considered only whether Strum committed acts of 

domestic violence during a narrow window of time when the 

original restraining order was in effect, and not whether 

Brubaker had a reasonable fear of future abuse in light of all 

relevant facts and circumstances, we reverse the order denying 

the request to renew the restraining order and direct the trial 

court to hold a new hearing on the request and allow Brubaker to 

introduce the evidence the court erroneously excluded.

FACTUAL AND PROCEDURAL BACKGROUND

A. Brubaker Obtains a Domestic Violence Restraining 

Order Against Strum

Brubaker and Strum married in 2009 and had twins in 

2015. On October 6, 2017 Brubaker filed a petition for 

dissolution of the marriage, which, according to Brubaker, Strum

opposed. 

On October 13, 2017 Brubaker filed a request for a 

domestic violence restraining order against Strum. Brubaker 

alleged Strum threatened to strangle and kill her, stalked her, 

and told her he would make her life “a living hell” if she 

continued to pursue a divorce. Brubaker alleged that in 2014, 

1 Statutory references are to the Family Code.
3

after Brubaker failed to quickly find their destination in a smart

phone application, Strum left her on the side of the road, forcing 

her to walk 20 miles home. Brubaker alleged that in April 2017 

Strum, with the children in the car, drove erratically and 

threatened to hit a group of cyclists he felt was slowing traffic. 

Brubaker alleged Strum threatened violence against her several 

other times but did not follow through on his threats. 

On November 3, 2017 Brubaker and Strum entered into a 

stipulated temporary protective order. The order required Strum 

to remain 100 yards from Brubaker (except during school events, 

extracurricular activities, and when exchanging the children for

visitation), prevented Strum from contacting Brubaker except in 

connection with custody and visitation matters, and established a 

temporary custody schedule for the children. 

On January 25, 2018 Brubaker filed another request for a 

domestic violence restraining order, alleging Strum violated the 

stipulated protective order on multiple occasions and committed 

additional acts of abuse. Brubaker alleged Strum stalked her, 

monitored her actions using a “nanny cam,” threatened to report 

her to child protective services, and harassed her verbally and in 

written communications. Brubaker again alleged Strum said he 

wanted to strangle and kill her. Brubaker claimed Strum’s 

behavior was “triggered by anger regarding the normal divorce 

proceedings, which he was against and uses to lash out . . . .”

Following a hearing on February 22, 2018, the family law

court (Judge Hank M. Goldberg) issued a two-year domestic 

violence restraining order against Strum. The court found that 

Strum placed Brubaker “in reasonable apprehension of imminent 

or serious bodily injury” by threatening violence against her and 

that Strum had violated the stipulated protective order. The 
4

court also found Strum’s violations of the stipulated protective 

order amounted to “disturbing the peace” under the Act and 

showed, through “conduct and in words,” that Strum would “do 

whatever [he] want[ed] to do,” regardless of whether there was a 

restraining order in effect. The court found Strum had “a very 

significant anger management issue” and an “explosive temper.” 

The court described the abuse as “situational” and stated a twoyear order would give the parties sufficient time to “finish the 

divorce case” with the restraining order in place. 

The domestic violence restraining order prevented Strum 

from coming within 100 yards of Brubaker, her home, or her 

vehicle, and from contacting Brubaker directly or indirectly. The 

court made an exception for “brief and peaceful contact” required 

to facilitate Strum’s court-ordered visitation with the children 

and ordered the parties to communicate using Our Family 

Wizard (OFW), an online platform designed to facilitate 

communications for co-parenting. The court also granted 

Brubaker sole physical and legal custody of the children. 

B. Brubaker Alleges Strum Violated the Domestic 

Violence Restraining Order, and the Family Law

Court Issues a Final Statement of Decision in the 

Divorce Proceeding

On May 22, 2018 Brubaker asked for an order limiting

Strum’s use of OFW. The family law court (Commissioner 

Doreen Boxer) found Strum had violated the domestic violence 

restraining order by using OFW to “scold, admonish, [and] 

reprimand” Brubaker and by “using the children as a pretext to 

further harass” her. The court modified the restraining order by 

limiting the scope of permitted OFW communications. 
5

On July 23, 2019 the family law court (Judge Lawrence

Riff) entered a final statement of decision in the dissolution 

action, ruling the court would award Brubaker sole physical and 

legal custody of the children. The court stated a “principal issue 

for trial” was whether Strum rebutted the presumption under 

section 3044 that “‘an award of sole or joint custody to a 

perpetrator of domestic violence “is detrimental to the best 

interest of the child.”’” (See § 3044, subd. (a).) The court found 

Strum had not carried his burden to rebut the presumption 

because Brubaker was “and still is damaged on account of 

[Strum’s] abuse” and because Strum’s “inability to control his 

explosive temper and aggressive behavior, with [Brubaker] as a 

target, has . . . been in the past detrimental to the children.” The 

court also found that Strum “continue[d] palpably to radiate 

anger and agitation . . . during the Court proceedings,” and that,

“in a less structured environment,” Strum’s issues with anger 

management “are likely to be more pronounced.” 

The family law court also ruled that, even if Strum had 

rebutted the presumption under section 3044, the court would 

not grant Strum physical or legal custody of the children because 

there was “no prospect” of Strum and Brubaker co-parenting 

effectively. The court found giving Strum joint custody “would 

require him and [Brubaker] to interact with a high likelihood . . . 

of [Brubaker] being further abused.” The court found, however, 

Strum had “complied with the terms of the permanent

restraining order” and had “not committed any further acts of 

domestic violence since that order was issued.” The court did not 

address Commissioner Boxer’s finding Strum had violated the 

terms of the restraining order, but the court did relax the 

restrictions Commissioner Boxer had imposed on Strum’s use of 
6

OFW. The court entered a judgment of dissolution on 

November 8, 2019. 

C. Brubaker Files a Request To Renew the Domestic 

Violence Restraining Order

Meanwhile, on October 1, 2019 Brubaker filed a request to 

renew the two-year domestic violence restraining order, which 

otherwise would expire on February 22, 2020.2 Brubaker alleged 

she had a reasonable apprehension of future abuse based on 

Strum’s past abuse and his violations of the existing restraining 

order. Specifically, Brubaker alleged Strum continued to use 

OFW to harass her, manipulated volunteer opportunities at the

children’s school so he could be within 100 yards of her, and 

insisted on exchanging the children at each other’s front door 

instead of at the street curb or driveway, which Brubaker claimed

gave Strum the opportunity to “attack [her] unprovoked with 

accusations [and] assertions in a highly charged verbal manner 

in the clear view of [the] children.” Brubaker also alleged Strum 

“hurl[ed] accusations at [her] in an unreasonably loud and 

aggressive tone” during an exchange of the children on 

August 30, 2019. 

Strum opposed the request to renew the restraining order 

and filed two motions in limine. One motion sought to exclude 

the OFW messages exchanged between the parties prior to 

2 Section 6345, subdivision (a), provides that a “request for 

renewal may be brought at any time within the three months 

before the expiration of the orders.” Brubaker appears to have 

filed her request to renew prematurely, but Strum did not object 

to renewal on that basis. 
7

May 24, 2018. Strum claimed that, prior to that date, counsel for 

Brubaker “wantonly violated the rules of professional conduct” by 

communicating directly with Strum through OFW without 

Strum’s knowledge. Brubaker stipulated to the relief requested 

in Strum’s first motion in limine. 

Strum’s second motion in limine sought to exclude 

Brubaker from “proffering any evidence regarding any 

allegations of abuse or violations of the Domestic Violence 

Restraining Order by [Strum] prior to February 13, 2019,” which 

was the last date the parties presented evidence in the marriage 

dissolution trial. Strum argued that, because Judge Riff found

Strum had not committed any acts of domestic violence or abuse 

since Judge Goldberg issued the restraining order in

February 22, 2018, the doctrines of issue preclusion and estoppel

precluded the trial court in this proceeding (Judge Michael R. 

Powell) from considering that evidence or any other evidence of 

domestic violence or abuse occurring before the dissolution trial. 

Strum also asked the trial court to take judicial notice of the 

family law court’s final statement of decision because “the matter 

of violations of the protective order since its issuance . . . through 

the last day of trial . . . has already been adjudicated.” Strum’s 

motion in limine did not mention Commissioner Boxer’s earlier 

finding Strum violated the restraining order. 

D. The Trial Court Grants Strum’s Second Motion in 

Limine and Denies Brubaker’s Request To Renew the 

Restraining Order

The trial court considered Strum’s second motion in limine 

at the beginning of the July 10, 2020 hearing on Brubaker’s

request to renew the restraining order. Counsel for Brubaker 
8

argued issue preclusion did not apply because some of the issues 

relevant to Brubaker’s request to renew the restraining order 

were not presented or addressed in the dissolution trial. But the 

trial court stated Strum made “a compelling case [for] issue 

preclusion . . . in the sense that [the] parties had an opportunity 

to present [evidence of violations of the restraining order] earlier 

during the hearing with Judge Riff. If it wasn’t presented at that 

hearing, it’s almost as if [Brubaker] had a basis for the 

restraining order, but [she] didn’t include all of the information. 

And then [she] want[s] to go back in time and say . . . this 

happened too . . . .” The trial court concluded that Judge Riff 

made “an explicit finding” Strum had not violated the restraining 

order and that it was “inappropriate” to relitigate that finding. 

The court stated that the “question is now, what has occurred 

after [Judge Riff made his finding] that would warrant the 

continuation of the restraining order?” 

The trial court also stated, “This is a renewal of the 

restraining order. This isn’t a re-litigation of the past restraining 

order. . . . I went back and I made sure that I looked at the 

original restraining order request. And I looked at what 

Judge Goldberg had said. And I believe that Judge Goldberg had 

made the statement that he believe[d] . . . the granting of the 

domestic violence restraining order was to be for two years based 

on the fact that he felt once [the marriage dissolution] matter 

[was] adjudicated, that that’s all that would be needed at that 

point. So if we have a restraining order that’s a duration of two 

years, and . . . we don’t see any violations within the two-year 

period, then the court is left with looking at what are the facts 

that exist . . . after this is all adjudicated . . . . This is in effect 

saying, ‘What has happened since the restraining order has been 
9

issued that warrants it continuing?’ . . . If the events [that led to 

the issuance of the restraining order] have ceased, if the behavior 

is such that it does not rise to the level that there is prescribed in 

[the Act], I don’t think that I have the authority to issue a 

restraining order.” 

The trial court concluded its discussion of the second 

motion in limine by stating: “The court wants to concentrate on 

any events that happened after [Judge Riff’s] hearing and during 

the restraining order period. And I want to focus on that solely.” 

As a result of the court’s ruling, Brubaker did not present, and 

the court did not consider, evidence underlying the original 

restraining order or evidence Judge Riff considered in finding 

Strum had not violated the restraining order as of February 13, 

2019.

On the merits of Brubaker’s request the trial court 

questioned Brubaker about several occasions where she claimed

Strum violated the terms of the restraining order. Brubaker said 

that in one incident Strum yelled at her through her car door “in 

front of the kids in a rage” about Brubaker being five minutes 

late to pick up the children. (Brubaker denied being late.) The 

court also asked Brubaker about her claim Strum harassed her 

through OFW messages on September 2, 2019. Brubaker 

testified that “this happens regularly,” but that she did not 

remember any specifics of what happened on that date. 

Brubaker testified that on one (unspecified) occasion Strum 

went to the window of her car, banged on it “very hard,” and 

threatened her about “what ticked him off in that moment, 

something about court.” Brubaker said she called the police, but 

she did not say whether officers arrived or what happened if and 

when they did. Brubaker testified that on another (again, 
10

unspecified) occasion Strum “lunged” at her, but she did not give 

any details about the incident. Brubaker said that on still 

another occasion Strum appeared at the children’s school “for no 

reason,” came within 100 yards of her, and gave her “sinister 

looks as a display of power.” 

The trial court said that it was presuming the incidents 

Brubaker identified occurred “within the timeframe” permitted 

by its ruling on the second motion in limine, but that Brubaker 

did not provide “any dates,” “statements” or “context” to assist 

the court in determining whether Strum’s conduct was abusive. 

Brubaker responded she had “countless OFWs” that provided 

those details, and counsel for Brubaker asked the court for a 

break to determine whether Brubaker had submitted the OFWs 

to the court. After the break, counsel for Brubaker informed the 

court he had submitted copies of two prior orders to show cause 

re contempt based in part on allegedly abusive OFW messages. 

Over Strum’s objection, the trial court agreed to review the OFW

messages to determine whether they proved Strum violated the 

restraining order, even though Brubaker had stipulated to 

exclude messages exchanged before May 24, 2018. Brubaker 

testified many of the messages “bullied” her in connection with 

decisions she made about school, insurance, and medical and 

dental issues. Brubaker said Strum’s messages were “relentless” 

and showed no respect for her decisions. 

After another break (for the trial court to review the OFW 

messages and the orders to show cause), the court denied

Brubaker’s request to renew the restraining order. The court 

stated that, to renew the restraining order, Brubaker had to show 

she “entertain[ed] a reasonable apprehension of future abuse 

without showing any further abuse since the issuance of the 
11

original order,” but reiterated that Judge Riff’s statement of 

decision in the dissolution trial “gave a timeline as to conduct 

that was going to be examined” by the court (with the exception 

of some OFW messages) “in determining whether or not the 

restraining order should be granted on a permanent basis.” The 

court found Brubaker’s testimony “insufficient,” “vague,” 

“conclusory,” and lacking a “time frame.” The court 

acknowledged the incident where Strum banged on Brubaker’s 

car window, but said an OFW message related to that incident 

showed the parties had “different viewpoints about what 

happened that day.”3 Regarding the OFW messages in general, 

the court stated: “The most that I could glean . . . was that 

potentially [Strum] was being patronizing. His choice of words 

and language in terms of characterizing [Brubaker’s] behavior 

[was not] ideal,” but it did not create a “reasonable apprehension” 

under the Act. The court found that, “based on the aggregate of 

what [Brubaker] presented to the court,” her “concerns are not 

reasonable.” The court denied her request to renew the 

restraining order, and Brubaker timely appealed. 

DISCUSSION

Brubaker argues the trial court erred in granting Strum’s 

motion in limine based on issue preclusion and effectively 

requiring Brubaker to prove, contrary to the plain language of 

the Act, Strum violated the domestic violence restraining order 

after February 13, 2019. Brubaker also argues the court abused 

3 Strum did not testify at the hearing. 
12

its discretion in denying her request to renew the restraining 

order. We agree with Brubaker’s first argument. 

A. Requests To Renew Domestic Violence Restraining 

Orders Under the Domestic Violence Prevention Act

The Act is intended “‘to prevent acts of domestic violence, 

abuse, and sexual abuse and to provide for a separation of the 

persons involved in the domestic violence for a period sufficient to 

enable these persons to seek a resolution of the causes of the 

violence.’” (J.H. v. G.H. (2021) 63 Cal.App.5th 633, 640-641; see

§ 6220.) “Under the [Act], a court may issue a protective order 

‘“to restrain any person for the purpose of preventing a 

recurrence of domestic violence and ensuring a period of 

separation of the persons involved” upon “reasonable proof of a 

past act or acts of abuse.”’” (In re Marriage of F.M. & M.M.

(2021) 65 Cal.App.5th 106, 115; see J.H., at p. 641 [“Courts may 

issue a restraining order to achieve [the Act’s] purpose upon 

‘reasonable proof of a past act or acts of abuse.’”]; see also § 6300, 

subd. (a).) Courts should broadly construe the Act to accomplish 

its purpose of preventing acts of domestic violence. (In re 

Marriage of F.M. & M.M., at p. 115; In re Marriage of Nadkarni

(2009) 173 Cal.App.4th 1483, 1498.)

Section 6211 defines “domestic violence” as “abuse

perpetrated against,” among others, a spouse or former spouse. 

(§ 6211, subd. (a).) The Act defines “abuse” as “intentionally or 

recklessly causing or attempting to cause bodily injury, placing a 

person in reasonable apprehension of imminent serious bodily 

injury, or engaging in behavior that could be enjoined under

section 6320,” including “harassing” or “disturbing the peace of 

the other party.” (In re Marriage of F.M. & M.M., supra,
13

65 Cal.App.5th at p. 115; see §§ 6203, 6320.)4 The definition of 

“abuse” under the Act is generally broader than acts of physical 

abuse or threats of physical abuse. (Perez v. Torres-Hernandez

(2016) 1 Cal.App.5th 389, 398 (Perez); see § 6203, subd. (b)

[“[a]buse is not limited to the actual infliction of physical injury 

or assault”].) Rather, “[a]nnoying and harassing an individual is 

protected in the same way as physical abuse.” (Perez, at p. 398; 

see Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1290-1291

(Ritchie).)

Restraining orders issued under the Act “may have a 

duration of not more than five years, subject to termination or 

modification by further order of the court . . . .” (§ 6345, 

subd. (a).) A restraining order “may be renewed, upon the 

request of a party, either for five years or permanently, without a 

showing of further abuse since the issuance of the original order, 

subject to termination or modification by further order of the 

4 Section 6320, subdivision (a), authorizes the court to enjoin, 

among other conduct, “molesting, attacking, striking, stalking, 

threatening, sexually assaulting, battering, . . . harassing, 

telephoning, . . . contacting, either directly or indirectly, by mail 

or otherwise, [and] coming within a specified distance of, or 

disturbing the peace of the other party.” (See In re Marriage of 

F.M. & M.M., supra, 65 Cal.App.5th at p. 115.) The phrase 

“disturbing the peace of the other party” means “conduct that, 

based on the totality of the circumstances, destroys the mental or 

emotional calm of the other party. This conduct may be 

committed directly or indirectly, including through the use of a 

third party, and by any method or through any means including, 

but not limited to, telephone, online accounts, text messages, 

internet-connected devices, or other electronic technologies.” 

(§ 6320, subd. (c).)
14

court either on written stipulation filed with the court or on the 

motion of a party.” (Ibid., italics added.) As the court explained

in Ritchie, supra, 115 Cal.App.4th 1275, “Section 6345 makes it 

unnecessary for the protected party to introduce or the court to 

consider actual acts of abuse the restrained party committed 

after the original order went into effect. It would be anomalous 

to require the protected party to prove further abuse occurred in 

order to justify renewal of that original order. If this were the 

standard, the protected party would have to demonstrate the 

initial order had proved ineffectual in halting the restrained 

party’s abusive conduct just to obtain an extension of that 

ineffectual order.” (Ritchie, at p. 1284; accord Ashby v. Ashby

(2021) 68 Cal.App.5th 491, 509-510; Perez, supra, 1 Cal.App.5th 

at p. 397; see Lister v. Bowen (2013) 215 Cal.App.4th 319, 333

[“‘the existence of the initial order certainly is relevant [to a 

request for renewal,] and the underlying findings and facts 

supporting that order often will be enough in themselves to 

provide the necessary proof’” to warrant renewal].) 

Instead, a court should renew a domestic violence 

restraining order when the court “‘find[s] the probability of future 

abuse is sufficient that a reasonable woman (or man, if the 

protected party is a male) in the same circumstances would have 

a “reasonable apprehension” such abuse will occur unless the 

court issues a protective order.’” (Lister v. Bowen, supra,

215 Cal.App.4th at p. 332; see Ritchie, supra, 115 Cal.App.4th at 

p. 1288.) “In challenging a renewal order, the restrained party is 

not permitted ‘to challenge the truth of the evidence and findings 

underlying the initial order.’” (Lister, at p. 333; see Ritchie, at 

p. 1290.) 
15

B. Issue Preclusion Did Not Apply

1. Applicable Law and Standard of Review

“Issue preclusion prohibits the relitigation of issues argued 

and decided in a previous case, even if the second suit raises 

different causes of action. [Citation.] Under issue preclusion, the 

prior judgment conclusively resolves an issue actually litigated 

and determined in the first action.” (DKN Holdings LLC v. 

Faerber (2015) 61 Cal.4th 813, 824, italics omitted; accord, 

Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 

657, 686.) “[I]ssue preclusion applies (1) after final adjudication 

(2) of an identical issue (3) actually litigated and necessarily 

decided in the first suit and (4) asserted against one who was a 

party in the first suit or one in privity with that party.” (DKN 

Holdings, at p. 825; see Meridian Financial Services, at p. 686.)

“[A]n issue was actually litigated in a prior proceeding if it 

was properly raised, submitted for determination, and 

determined in that proceeding.” (Hernandez v. City of Pomona

(2009) 46 Cal.4th 501, 511; see Ayala v. Dawson (2017) 

13 Cal.App.5th 1319, 1330.) “‘The “identical issue” requirement 

addresses whether “identical factual allegations” are at stake in 

the two proceedings, not whether the ultimate issues or 

dispositions are the same.’” (Hernandez, at pp. 511-512; see 

Lucido v. Superior Court (1990) 51 Cal.3d 335, 342; Key v. Tyler

(2019) 34 Cal.App.5th 505, 534.) “And the ‘“necessarily decided”’

prong means only that ‘the issue not have been “entirely 

unnecessary” to the judgment in the initial proceeding.’” (Key, at 

p. 534; see Lucido, at p. 342.) “In considering whether these 

criteria have been met, courts look carefully at the entire record 

from the prior proceeding, including the pleadings, the evidence, 
16

the jury instructions, and any special jury findings or verdicts.” 

(Hernandez, at p. 511; see Ayala, at pp. 1326-1327 [“‘the 

pleadings and proof in each case must be carefully scrutinized to 

determine whether a particular issue was raised even though 

some legal theory, argument or “matter” relating to the issue was 

not expressly mentioned or asserted’”].)

If all four of the requirements are satisfied, the court must 

also determine whether applying issue preclusion would be 

consistent with the public policies underlying the doctrine. 

(Meridian Financial Services, Inc. v. Phan, supra, 67 Cal.App.5th 

at p. 686; State Compensation Insurance Fund v. ReadyLink 

Healthcare, Inc. (2020) 50 Cal.App.5th 422, 448.) “These policies 

include ‘conserving judicial resources and promoting judicial 

economy by minimizing repetitive litigation, preventing 

inconsistent judgments which undermine the integrity of the 

judicial system, and avoiding the harassment of parties through 

repeated litigation.’” (Meridian Financial Services, at 

pp. 686-687; see State Compensation Insurance Fund, at p. 448.)

The party asserting issue preclusion has the burden of 

establishing the requirements to apply that doctrine. (Howard 

Jarvis Taxpayers Assn. v. Weber (2021) 67 Cal.App.5th 488, 499; 

see Lucido v. Superior Court, supra, 51 Cal.3d at p. 341; State 

Compensation Insurance Fund v. ReadyLink Healthcare, Inc., 

supra, 50 Cal.App.5th at p. 448.) Whether to apply the doctrine

of issue preclusion is a question of law that we review de novo. 

(Thee Aguila, Inc. v. Century Law Group, LLP (2019) 

37 Cal.App.5th 22, 28; Johnson v. GlaxoSmithKline, Inc. (2008) 

166 Cal.App.4th 1497, 1507.)
17

2. Issue Preclusion Did Not Apply To Prevent the 

Trial Court from Considering Evidence Strum 

Committed Acts of Domestic Violence Between 

February 2018 and February 2019

In the dissolution action, the family law court considered 

whether Strum “committed further acts of domestic violence” in 

connection with the court’s analysis of whether Strum rebutted 

the presumption under section 3044 that, as a perpetrator of 

domestic violence, awarding him sole or joint physical or legal 

custody of his children was detrimental to their best interest. 

(See § 3044, subds. (a), (b)(2)(F).) Under section 3044, 

subdivision (b), a perpetrator of domestic violence can overcome 

the presumption that awarding the perpetrator sole or joint 

physical or legal custody of a child would be detrimental to the 

child’s best interest by showing that (1) giving the perpetrator 

sole or joint custody is in the best interest of the child and (2) on 

balance, the factors listed in section 3044, subdivision (b)(2), 

support the finding that frequent and continuing contact with 

both parents will not jeopardize the child’s health, safety, or 

welfare. The factors the court must consider include whether

“[t]he perpetrator is restrained by a protective order or 

restraining order, and has or has not complied with its terms and 

conditions,” and whether “[t]he perpetrator of domestic violence 

has committed further acts of domestic violence.” (§ 3044, 

subds. (b)(2)(E), (F).)

The family law court found Strum had “complied with the 

terms of the permanent restraining order; and [Strum] has not 

committed any further acts of domestic violence since [the 

restraining order] was issued.” Based on this finding, Strum, in 

his motion in limine for the hearing on Brubaker’s motion to 
18

renew the restraining order, argued that any alleged abuse 

during the time period February 22, 2018 to February 13, 2019

had already been adjudicated and that Brubaker “should be 

estopped from presenting any further evidence at the hearing for 

[her] renewal of the protective order.” 

The trial court erred in finding issue preclusion barred

Brubaker from presenting evidence of Strum’s alleged abuse from 

February 2018 to February 2019 because the issue addressed by 

the trial court on Brubaker’s request to renew the restraining 

order was not an issue the parties litigated and the family law 

court necessarily decided in the marriage dissolution trial. (See 

DKN Holdings LLC v. Faerber, supra, 61 Cal.4th at p. 825; 

Meridian Financial Services, Inc. v. Phan, supra, 67 Cal.App.5th 

at p. 686.) The issue the family law court heard in February 2019 

and decided in July 2019 was whether Strum rebutted the 

presumption under section 3044 that giving him sole or joint 

custody of the children was detrimental to their best interest. 

The issue the trial court heard and decided in July 2020 in ruling 

on Brubaker’s request to renew the restraining order was 

whether Brubaker had a reasonable fear of future abuse. Those 

issues were very different. (See Lucido v. Superior Court, supra,

51 Cal.3d at p. 342; Key v. Tyler, supra, 34 Cal.App.5th at p. 534.) 

And while evidence of additional acts of domestic violence 

or a violation of the original restraining order was relevant to 

whether Brubaker had a reasonable fear of future abuse (see 

Lister v. Bowen, supra, 215 Cal.App.4th at p. 335), such evidence 

was not required to renew the restraining order. (See Ashby v. 

Ashby, supra, 68 Cal.App.5th at pp. 515-516 [“a party’s violation 

of [a domestic violence restraining order] can support a finding of 

reasonable apprehension,” but “the reverse is not true”: 
19

compliance with a domestic violence restraining order does not 

“preclude[ ] a finding of reasonable apprehension”]; Abatti v. 

Imperial Irrigation Dist. (2020) 52 Cal.App.5th 236, 306-307

[issue preclusion does not apply where a finding from an earlier 

action is relevant to “but does not resolve the inquiry” in the later 

action]; Johnson v. GlaxoSmithKline, Inc., supra,

166 Cal.App.4th at p. 1513 [“‘where the previous decision rests on 

a “different factual and legal foundation” than the issue sought to 

be adjudicated in the case at bar, [issue preclusion] should be 

denied’”].) Even if Strum’s conduct between February 2018 and 

February 2019 did not constitute domestic violence or violate the 

terms of the restraining order, it could have contributed to a 

reasonable fear of future abuse. (See Ashby v. Ashby, supra,

68 Cal.App.5th at p. 516 [conduct that does not violate the 

original restraining order may still contribute to the protected 

person’s fear of future abuse].) Thus, issue preclusion did not 

apply, and the trial court erred in granting Strum’s second 

motion in limine and excluding evidence of Strum’s conduct 

between February 22, 2018 and February 13, 2019.

C. The Trial Court Erred in Excluding Evidence 

Underlying the Original Restraining Order

The trial court compounded its error in granting Strum’s 

second motion in limine by also excluding evidence underlying 

the original restraining order (even though Strum did not request 

that relief).

5 Brubaker argues the trial court erred “in holding 

5 We review a trial court’s rulings on the admissibility of 

evidence for abuse of discretion. (Pilliod v. Monsanto Co. (2021) 
20

that the party seeking renewal must show that abuse occurred 

while the original restraining order was in place.” That

characterization of the trial court’s ruling is not quite correct. 

The trial court acknowledged the legal standard for renewal was 

a reasonable apprehension of future abuse, but the court

precluded Brubaker from demonstrating that fear through 

evidence of Strum’s conduct prior to the original restraining 

order. Brubaker is correct, however, that the trial court erred.

The trial court suggested it would exclude the evidence that

led to the original restraining order because Judge Goldberg 

believed at the time he issued that order that two years was 

sufficient to protect Brubaker throughout the divorce 

proceedings. But neither the fact Judge Goldberg issued the 

original restraining order for two years nor his reason for doing 

so made the evidence underlying the original restraining order 

irrelevant to Brubaker’s request to renew that order. Section

6345 does not require “‘a showing of any further abuse since the 

issuance of the original order’” to warrant renewal. (Perez, supra,

1 Cal.App.5th at p. 397; see Ashby v. Ashby, supra,

68 Cal.App.5th at pp. 509-510; Eneaji v. Ubboe (2014) 

229 Cal.App.4th 1457, 1464.) Indeed, the most important

consideration in determining whether to grant a request to renew 

a domestic violence restraining order “is not the type or timing of 

abuse, but whether the protected party has a reasonable fear of 

future abuse.” (Perez, at p. 397; see ibid. [reversing an order 

denying a request to renew a domestic violence restraining order 

where the trial court considered only whether there was “‘actual 

67 Cal.App.5th 591, 630; Christ v. Schwartz (2016) 2 Cal.App.5th 

440, 446-447.) 
21

abuse within the time period that the restraining order has been 

issued’”]; Eneaji, at p. 1464 [reversing an order denying a request 

to renew a domestic violence restraining order where the trial 

court found “nothing happened in the three years since the 

restraining order”].) 

The trial court wrongly believed it could not consider the 

evidence underlying the original restraining order. By excluding 

relevant evidence of Brubaker’s fear of future abuse, the court 

abused its discretion by limiting Brubaker’s ability to meet her 

burden of proof. (See Perez, supra, 1 Cal.App.5th at p. 396 [“‘“If 

the court’s decision is influenced by an erroneous understanding 

of applicable law or reflects an unawareness of the full scope of 

its discretion, the court has not properly exercised its discretion 

under the law.”’”]; Eneaji v. Ubboe, supra, 229 Cal.App.4th at 

p. 1465 [a decision “predicated on an erroneous understanding of 

the applicable law . . . must be reversed and remanded”].)

Following the trial court’s lead, Strum argues the “‘pattern 

of situational abuse’” that justified limiting the original 

restraining order to two years supports an exception to the

general rule that a protected party need not present evidence of 

additional abuse to renew a domestic violence restraining order. 

But the Act does not include any such exception, and we decline 

Strum’s invitation to read one into it. (See Mora v. Webcor 

Construction, L.P. (2018) 20 Cal.App.5th 211, 223 [a court should 

not rewrite statutes or read into them an exception that will 

materially affect their operation to make the statutes conform to 

a presumed intention not expressed or otherwise apparent in the 

statutory language]; Soto v. Motel 6 Operating, L.P. (2016) 

4 Cal.App.5th 385, 393 [same].) 
22

Strum also argues the trial court did consider “the 

underlying abuse that gave rise to the restraining order.” He 

contends the trial court “‘went back and . . . made sure that [it] 

looked at the original restraining order request’” and reviewed 

Judge Goldberg’s reasons for granting the two-year restraining 

order. The trial court, however, considered the original request 

for a restraining order and Judge Goldberg’s reasoning in the 

context of granting Strum’s motion in limine, not in considering 

the merits of Brubaker’s request to renew the restraining order. 

Moreover, Judge Goldberg’s reasons for limiting the original 

restraining order to two years did not preclude Brubaker from 

showing she continued to have a reasonable fear of future abuse 

after the restraining order was due to expire. (See Ritchie, supra, 

115 Cal.App.4th at p. 1290 [“the trial judge ordinarily should 

consider the evidence and findings on which th[e] initial order 

was based in appraising the risk of future abuse should the 

existing order expire”].) 
23

DISPOSITION

The order is reversed with directions for the trial court to 

hold a new hearing on Brubaker’s request to renew the protective 

order and to allow Brubaker to introduce all relevant evidence in 

support of her request. Brubaker is to recover her costs on 

appeal.

SEGAL, Acting P. J.

We concur:

FEUER, J.

IBARRA, J.*

* Judge of the Santa Clara County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.