1 Filed 12/12/13 Woo v. Woo CA1/5


### NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

SUZANNE SIMS WOO, Plaintiff and Respondent,

v. ALAN WOO, Defendant and Appellant. A137279

(San Mateo County Super. Ct. No. FAM0105651)

Alan Woo appeals from the trial court’s order renewing for five years a domestic violence restraining order against him, arguing the trial court employed the wrong legal
standard and the evidence did not support the renewal. We reject his arguments and
affirm.
BACKGROUND In 2009, Suzanne Sims Woo sought a dom estic violence restraining order against Alan Woo, her then husband and the father of her child. 1 In February 2010, the parties commenced a multi-day hearin g on the restraining order; around the same time, according to Suzanne, the parties’ case was “converted” to a disso lution of marriage action. At the restraining or der hearing, Suzanne testifie d to two incidents involving physical force: In January 20 09, Alan grabbed and twisted her forearms; and in August

1 For convenience, we refer to the parties by their first names; no disrespect is intended.2 2009, Alan poked her in the chest with his finger. Alan admitted placi ng his hands on Suzanne’s forearms and brushing his raised fi nger against her, but denied using force or aggression in either incident. In March 2010, at the conclusion of the hearing, the court issued a two-year restraining order against Alan, which was subsequently modified in nonmaterial respects in June 2010. The restraining orde r expressly permitted contact
related to Alan’s visitati on rights with their child. Suzanne subsequently sought permission to relocate with their child to the east coast. A multi-day trial on the issue took pl ace over the course of many months. In May 2012, the trial court issued a tentative decisi on granting Suzanne leave to relocate to the east coast and awarding Alan certain visitation rights. Meanwhile, in March 2012, Suzanne filed a request to renew the restraining order against Alan. Suzanne did not contend Alan ha d used physical force against her since the issuance of the original orde r. Instead, she cited the ong oing and contentious litigation over her requested relocation and certain beha vior she characterized as “bullying.” A hearing on the renewal request was held befo re the same judge w ho presided over the hearing on the initial restraining order and the re location trial. As part of the hearing, the court took judicial notice of the testimony and exhibits from the hearing on the initial restraining order. In June 2012, after hearing testimony and argument, the trial court announced from the bench its decision to grant Suzanne’s renewal request. The court found none “of the [new] contact that was alleged to be ab usive.” However, it re lied upon evidence from the hearing on the original restraining order that the court “did find to constitute domestic violence including the finger hitting [Suzanne] in th e chest and the twisting of
the arms.” The court also cons idered the current circumstance s, including that “[t]here is a move away order contemplated.” The court c oncluded, “[Suzanne’s] fear in this case is well beyond that which you would expect in a case given the incidents that have occurred; however, the incident s that the court found were such that a reasonable person would be concerned, would have reasonable apprehension that given the situation occurring, given the situation of arguing in the future that, y eah, that might occur again.”3 The restraining order was renewed for five years. 2 However, the court specifically noted Alan “may move for a modification for term ination of the restraining order once the move-away is either finalized or [S uzanne] decides not to move away.”
DISCUSSION “A trial court should renew [a domestic vi olence restraining order], if, and only if, it finds by a preponderance of the evidence that the prot ected party entertains a ‘reasonable apprehension’ of future abuse,” meaning “the evidence demonstrates it is more probable than not there is a sufficient risk of fu ture abuse to find the protected party’s apprehension is genuine and reasonable.” ( Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1290 ( Ritchie ).) Such a finding may be ma de “without a showing of any further abuse since the issuance of the original order.” (Fam. Code, § 6345, subd. (a).) “[T]he trial judge ordinarily should consider the evidence and findings on which [the] initial order was based in appraising th e risk of future abuse should the existing order expire.” ( Ritchie, supra, at p. 1290

. ) Indeed, “the underlying findings and facts supporting that order often will be enough in themse lves to provide the necessary proof to satisfy [the reasonable apprehensi on of future abuse] test.” ( Id. at p. 1291.) “Also potentially relevant are any significant ch anges in the circumstances surrounding the events justifying the initial protective orde r. For instance, have the restrained and protected parties 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? Or have there been no signi ficant changes or even perhap s changes that enhance the opportunity and possibility of future abuse?” ( Ibid. ) Finally, the burdens the restraining order imposes on the restrained party are not relevant “where the protected party has a ‘reasonable apprehension’ of future physical abuse,” but may become relevant if the

2 The trial court properly found it lacked discretion under the governing statute to renew the order for less than five years. (See Fam. Code, § 6345, subd. (a) [domestic violence restraining orders “may be renewed . . . either for five years or permanently”]; Avalos v. Perez (2011) 196 Cal.A pp.4th 773, 777.)4 threat is of “lesser forms of abuse — unwant ed telephone calls or mail, for example.” ( Id. at p. 1292.) We review the trial court’s order renewing the restraining order “under an abuse of discretion standard, to determine ‘ “whether the trial court exceeded the bounds of reason. . . .” ’ [Citation.]” ( Lister v. Bowen (2013) 215 Cal.App.4th 319, 333 ( Lister ).) As an initial matter, Alan contends the trial court failed to issue a statement of
decision. If a “trial is concluded . . . in le ss than eight hours over more than one day,” “the request [for a statement of decision] mu st be made prior to the submission of the matter for decision.” (Code Civ. Proc., § 632.) The hearing on the renewal request lasted less than eight hours over the course of two days. (See In re Marriage of Gray (2002) 103 Cal.App.4th 974, 980 [trial time for pur poses of Civ. Proc. Code, § 632 “means the time that the court is in session, in open co urt, and also includes morning and afternoon recesses when the partie s remain at the courthouse. It does not include time spent by the judge off the bench without th e parties present — lunch, fo r example — except for such
routine recesses as occur duri ng the day”].) The matter wa s submitted on June 18, 2012 (see Cal. Rules of Court, Rule 2.900, subd. (a)(2)) and the order issued on June 19, but Alan did not request a statement of decision until June 27. As his request was untimely, the trial court had no obligation to issue a statement of decision. ( In re Marriage of Gray, at p. 980.) In any event, the trial court did announ ce the reasons for its decision on the record before the parties in what it likely intended to be the statement of decision. (See Code Civ. Proc., § 632 [“when the trial is conclude d . . . in less than 8 hours over more than one day, the statement of decisi on may be made orally on th e record in the presence of the parties”].) As explained below, we affi rm even assuming this constitutes a statement
of decision to which we look “to determine wh ether the court’s decision is supported by the facts and the law.” ( In re Marriage of Rising (1999) 76 Cal.App.4th 472, 477, fn. 7 [considering document “that the trial court clea rly intended . . . be a statement of decision under Code of Civil Procedure section 662”].)5 Alan next contends the trial court im properly used a subjective rather than objective standard. To the contrary, the tria l court explicitly stat ed the evidence was
“such that a reasonable person would be concerned, would have reasonable apprehension that [the physical abuse] might occur again.” (Italics added.) That the trial
court also found Suzanne’s “fear in this case is well beyond that which you would expect” is not in conflict with this finding. For example, Suzanne implied she feared a
fatal attack from Alan. Even if the trial court could find su ch a fear was not objectively reasonable, a fear of nonfatal physical abuse was. Finally, Alan argues the evid ence does not support the tr ial court’s conclusion that Suzanne had a reasonable apprehension of future abuse. In so concluding, the trial court relied on the evidence underlyi ng the initial restraining orde r, specifically, “facts I did
find to constitute domestic vi olence including the finger hitti ng [Suzanne] in the chest and the twisting of the arms.” Alan argues no statement of decisi on issued after the
initial restraining order hearing, despite Alan’s timely request. Any error in failing to
issue a statement of decision has been forfe ited as Alan did not appeal the original restraining order. (8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 10, p. 593 [“where prior orders ar e independently appealable and become final by lapse of time, an attack on them in an appeal from th e judgment or from some later order is collateral”].) The absence of a stat ement of decision in the initial order did not preclude the trial court from reviewing the evidence underlying the initial order. The trial court’s consideration of this evidence was proper. ( Ritchie, supra, 115 Cal.App.4th at p. 1290

. ) The trial court also properly considered the current circumstances of the parties. The ongoing litigation involvi ng Suzanne’s relocation reque st placed the parties in adversarial positions. The trial court’s statem ent that it would consid er a request by Alan to terminate the restraining or der once Suzanne’s move was either finalized or canceled indicates an understanding that this litigati on was particularly contentious and increased the possibility of heated argu ments. The trial court considered this a “change[] that6 enhance[d] the opportunity and possibility of future abuse,” an appropriate consideration in assessing a renewal request. ( Ritchie, supra, 115 Cal.App.4th at p. 1291.)
The trial court found no additional harassment had occurred since the initial restraining order issued, but nonethel ess concluded Suzanne had a reasonable apprehension of future abuse. In light of th e trial court’s finding of physical abuse from the hearing on the initial restraining orde r and the ongoing litigation over Suzanne’s relocation request, we cannot say the trial cour t’s conclusion “ ‘exceeded the bounds of reason.’ ” ( Lister, supra, 215 Cal.App.4th at p. 333.) 3
DISPOSITION The judgment is affirmed. Suza nne is awarded her costs on appeal.

3 Because we find the trial court did not abus e of its discretion, we need not resolve Suzanne’s contention that th e “reasonable person” standard properly considers a reasonable domestic violence victim.