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Filed 7/10/14 Gou v. Xiao CA1/3 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 THREE 

QING HUI GOU, 

 Plaintiff and Appellant, 

v. 

BI GUANG XIAO, 

 Defendant and Respondent. 

 A137771 

 (San Francisco County 

 Super. Ct. Nos. FCS-12-347915, 

 FDI-12-777831) 

 Appellant Qing Hui Gou appeals from a December 5, 2012, order, which denied 

her request for a restraining order under the Domestic Violence Prevention Act (DVPA; 

Fam. Code, § 6200, et seq.1

) (DVRO) against respondent Bi Guang Xiao. We agree with 

appellant that the trial court erred in denying her request on the ground she was not a 

victim of domestic violence within the meaning of the DVPA. Accordingly, we reverse 

and remand the matter for further proceedings. 

FACTUAL AND PROCEDURAL BACKGROUND2

 Appellant and respondent were married in China on April 16, 1991. In 

October 2007, respondent and the parties’ then 8-year-old son (hereafter also referred to 

as “the child”) came to the United States while appellant remained in China waiting for 

 

1

 All further statutory references are to the Family Code. 

2

 We recite only those facts as are necessary to resolve the issues raised on this 

appeal. 
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an immigrant visa. Appellant joined the family in October 2011 when her visa was 

approved. 

 On September 11, 2012, appellant filed a judicial council form, ex parte, 

requesting a DVRO in favor of herself and the then 13-year-old child against respondent. 

In her attached declaration, appellant described in detail three incidents of past abuse 

allegedly perpetrated by respondent. In September 2011, while appellant was still in 

China and talking to her son via Skype, appellant saw respondent come into the room and 

start yelling at the child for not cleaning the house. As the child started to crawl away 

respondent whipped him with a long plastic/rubber stick. Respondent also slapped and 

kicked the child. Appellant yelled at respondent to stop and yelled at the child to call the 

police. Thereafter, in December 2011, three months after appellant came to this country, 

she was present and got involved in an altercation between respondent and child. 

Respondent became angry because the child did not help him carry some things from the 

car into the house. As the child was using his computer, respondent knocked the 

computer off the table and put the child in a chokehold. Appellant could see the child’s 

face turn red and his veins pop out of his face and neck as he struggled to breathe. 

Appellant yelled for respondent to stop but he did not do so. Appellant kicked and hit 

respondent to get him to let the child go. Respondent bit appellant on the arm, but finally 

let the child go. Appellant was too shocked and afraid to call the police. When appellant 

and her son went to sleep that night, they blocked the bedroom door with furniture so 

respondent would not come in and hurt them. Then on January 12, 2012, respondent and 

the child got into a fight at the college where appellant was taking an English language 

exam. Appellant did not see the fight, but someone called the police after seeing 

respondent hit the child. Respondent denied hitting the child. However, the fight was 

recorded on a campus security camera, which showed respondent hitting the child. The 

police did not arrest respondent but told him to go to the police station. Respondent did 

not go to the police station because he had with him his 7-year-old daughter from another 

relationship. 
3

 Appellant further alleged that because of the January 2012 incident, a case file was 

opened with Alameda County Child Protective Services. During discussions with the 

case social worker, the child said that respondent had physically and verbally abused him. 

In March 2012, the case social worker arranged for appellant and the child to relocate to a 

domestic violence shelter outside of Alameda County. About one month later, on 

April 10, 2012, appellant and her son left the marital residence and had no further contact 

with respondent. 

 Although appellant and her son apparently found a safe place to live, she alleged 

that she still needed a DVRO to protect herself and her son against respondent. A few 

weeks before making her request, appellant learned that someone called her CalWORKS 

case worker in San Francisco. The unidentified caller said the parties’ son was living 

with his father and therefore San Francisco should stop providing cash aid for appellant. 

The caseworker told the caller that aid could not be stopped because the child was living 

with appellant. Appellant felt she and her son were in danger because the case worker’s 

response implied that appellant and her son were living in San Francisco. Appellant also 

learned that an unidentified person had submitted a request to the child’s new school to 

effect his transfer to another school outside of San Francisco. Appellant opined 

respondent was the only person who could have made that transfer request. She was 

afraid that respondent would find and force appellant and the child to return to the marital 

residence. The child was stressed and unable to sleep because of concern that respondent 

might have learned of his whereabouts. He was afraid of his father and did not want to 

return to him. 

 On September 12, 2012, the trial court (Hon. Charlotte Walter Woolard) issued a 

temporary DVRO in favor of appellant and her son and scheduled a hearing for 

October 3, which was continued to October 24, 2012. In advance of the continued 

hearing, appellant lodged with the court the Alameda County Social Services Agency, 

Child Protective Services Investigative Narrative, dated April 4, 2012, which described 

the agency’s investigation of the January 2012 incident and the family’s circumstances as 

of April 2012. 
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 At the October 24, 2012, hearing, the trial court (Hon. Ronald E. Albers) 

continued the matter and reissued the temporary DVRO. At that time the court stated it 

did not believe an evidentiary hearing was necessary because although the allegations of 

violence between respondent and the child were “relatively straightforward,” the 

application’s factual allegations were insufficient to support a finding that appellant was a 

victim of domestic violence. The court additionally noted that despite her arguments to 

the contrary, appellant had not made a sufficient offer of proof that would justify issuing 

a DVRO in favor of the child. Nevertheless, the court granted appellant additional time 

to submit additional documentary evidence demonstrating the need for an evidentiary 

hearing. In advance of the December 5, 2012, hearing, appellant submitted her counsel’s 

memorandum in further support of her DVRO request, asking the court to consider the 

acts of abuse against the child as described in appellant’s declaration attached to her 

application, as well as the surveillance video and the Hayward Police Department report 

documenting the January 2012 incident. Appellant also asked the court to consider the 

fact that the Alameda County district attorney had filed a criminal charge of child abuse 

(Pen. Code, § 273a, subd. (a)) against respondent and that a jury trial was scheduled for 

December 17, 2012. 

 At the December 5, 2012, hearing, the trial court and appellant’s counsel discussed 

the court’s statutory authority to consider the merits of appellant’s request for a DVRO to 

protect both herself and the child. The court concluded it had no statutory authority to 

consider the DVRO request brought solely in appellant’s name as “she is not apparently 

the victim of domestic violence.” It denied the request for a DVRO, finding that 

appellant “is not the victim of domestic violence within the meaning of the statute . . . .” 

Appellant filed a timely notice of appeal from the December 5, 2012, minute order 

denying her request for a DVRO.3

 

 

3

 Respondent has not filed a responsive brief in this matter. Thus, we “ ‘will decide 

the appeal on the record, the opening brief, and oral argument by appellant.’ ” (Conness 

v. Satram (2004) 122 Cal.App.4th 197, 200, fn. 3 (Conness); Cal. Rules of Court, rule 

8.220(a)(2).) We have also considered an amici curiae brief, in support of appellant’s 
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DISCUSSION 

 The DVPA’s “purposes . . . are to prevent the recurrence of acts of violence 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.” (§ 6220.) Under the DVPA domestic violence is defined as “abuse” 

perpetrated against enumerated individuals, including a “spouse.” (§ 6211, subd. (a).) 

To effectuate the purposes of the DVPA, a trial court is permitted to issue a restraining 

order “simply on the basis of an affidavit showing past abuse. . . . (§ 6300.)” (Nakamura 

v. Parker (2007) 156 Cal.App.4th 327, 334 (Nakamura).) “[T]he requisite abuse need 

not be actual infliction of physical injury or assault.” (Conness, supra, 122 Cal.App.4th 

at p. 202.) Instead, “abuse” is broadly defined as including behavior that “plac[es] a 

person in reasonable apprehension of imminent serious bodily injury to that person or to 

another” or behavior that “has been or could be enjoined pursuant to Section 6320.” 

(§ 6203, subds. (c), (d).) Section 6320 describes enjoinable behavior as including 

“disturbing the peace of the other party . . . .” (§ 6320.) “ ‘[D]isturbing the peace of the 

other party’ ” means “conduct that destroys the mental or emotional calm of the other 

party.” (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497 (Nadkarni).) 

 In reviewing the denial of a DVRO request, we determine whether the trial court 

“applied the correct legal standard to the issue in exercising its discretion, which is a 

question of law for this court.” (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420-

421.) “The scope of discretion always resides in the particular law being applied; action 

that transgresses the confines of the applicable principles of law is outside the scope of 

discretion and we call such action an abuse of discretion.” (Id. at p. 421.) Pertinent to 

 

position, filed by the Family Violence Appellate Project, California Partnership to End 

Domestic Violence, National Family Justice Center Alliance, Family Violence Law 

Center, Los Angeles Center for Law and Justice, Domestic Violence Legal 

Empowerment and Appeals Project, Legal Aid Foundation of Los Angeles, Leadership 

Council on Child Abuse and Interpersonal Violence, Child Abuse Forensic Institute, and 

Dr. Jeffrey L. Edleson, Dean and Professor at the University of California, Berkeley, 

School of Social Welfare. 
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this case, the courts have held that where a DVRO application includes factual allegations 

of abuse within the meaning of the DVPA, a trial court abuses its discretion when it 

summarily denies the application without a hearing and determination on the merits. (See 

Nadkarni, supra, 173 Cal.App.4th at p. 1499; Nakamura, supra, 156 Cal.App.4th at 

p. 337.) 

 Here, we agree with appellant and amici curiae that the trial court erred in denying 

the DVRO request on the sole ground that appellant had failed to demonstrate she was 

the victim of domestic violence under the DVPA. In her declaration attached to the 

DVRO request, appellant alleged specific and admissible facts based on her personal 

knowledge describing past acts perpetrated by respondent against the child and appellant. 

Assuming their truth, these factual allegations would support a finding that respondent’s 

past behavior was abusive as it had placed appellant in reasonable apprehension of 

imminent serious bodily injury to herself or the child, and disturbed appellant’s peace by 

causing the destruction of her mental or emotional calm. (See People v. Kovacich (2011) 

201 Cal.App.4th 863, 895 [“defendant’s assault on the family dog amounted to ‘abuse’ 

within the meaning of Family Code section 6203;” “[t]his abuse was committed against 

his wife and children, who witnessed the violent assault, and amounted to ‘domestic 

violence’ within the meaning of Family Code section 6211”].) Because appellant’s 

application and supporting declaration “are facially sufficient” to support a finding “of 

abuse under the DVPA,” we conclude the trial court abused its discretion in denying the 

DVRO request without a hearing and determination on the merits. (Nadkarni, supra, 173 

Cal.App.4th at p. 1499).4

 

 Accordingly, we shall reverse the order denying the DVRO request and remand 

the matter for a hearing and determination on the merits. In reaching our decision, we 

express no opinion on how the trial court should exercise its discretionary authority in 

conducting the hearing or in determining whether or not to issue a DVRO in favor of 

appellant, the child, or both. We hold only that “the facial adequacy” of appellant’s 

 

4

 In light of our determination, we do not need to further address the arguments of 

appellant and amici curiae. 
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allegations showing “that she was ‘abused’ within the meaning of the DVPA operated to 

divest the court of discretion to summarily deny her application. Because the peremptory 

denial of relief . . . exceeded the discretion vested in the judiciary by the DVPA, the trial 

court’s ruling must be deemed an abuse of discretion.” (Nakamura, supra, 156 

Cal.App.4th at p. 337.) 

DISPOSITION 

 The order of December 5, 2012, denying Qing Hui Gou’s request for a domestic 

violence restraining order is reversed and the matter is remanded for further proceedings 

consistent with this opinion. Qing Hui Gou is awarded costs on appeal. 

 _________________________ 

 Jenkins, J. 

We concur: 

_________________________ 

Pollak, Acting P. J. 

_________________________ 

Siggins, J.