1 Filed 7/10/14 Gou v. Xiao CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No s. 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 th e 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 de nying her request on the ground she was not a
victim of domestic violence within the meani ng of the DVPA. Accordingly, we reverse
and remand the matter fo r further proceedings.
FACTUAL AND PROCED URAL BACKGROUND 2 Appellant and respondent were married in China on Apr il 16, 1991. In October 2007, respondent and the parties’ then 8-year-old son (hereaf ter also referred to as “the child”) came to the United States wh ile appellant remained in China waiting for

1 All further statutory referen ces are to the Family Code.

2 We recite only those facts as are necessary to resolve the issu es raised on this appeal.2 an immigrant visa. Appellant joined the family in October 2011 when her visa was approved. On September 11, 2012, appellant file d a judicial council form, ex parte, requesting a DVRO in favor of he rself and the then 13-year-old child against respondent. In her attached declaration, appellant descri bed in detail three incidents of past abuse allegedly perpetrated by respondent. In Se ptember 2011, while appellant was still in China and talking to her son via Skype, appe llant saw respondent come into the room and start yelling at the child for not cleaning the ho use. 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 responde nt to stop and yelled at the child to call the police. Thereafter, in Decembe r 2011, three months after a ppellant came to this country, she was present and got involved in an a ltercation 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 us ing his computer, res pondent knocked the computer off the table and put the child in a chokehold. Ap pellant 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. Re spondent bit appellant on the arm, but finally let the child go. Appellant was too shocked an d afraid to call the po lice. 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 Ja nuary 12, 2012, respondent and the child got into a fight at the college where appellant wa s taking an English language exam. Appellant did not see the fight, but someone called the police after seeing respondent hit the child. Re spondent denied hitting the ch ild. However, the fight was recorded on a campus security camera, which showed respo ndent hitting the child. The police did not arrest respondent but told him to go to the po lice station. Respondent did not go to the police station be cause he had with him his 7- year-old daughter from another relationship.3 Appellant further alleged that because of the January 2012 incide nt, a case file was opened with Alameda County Child Protective Services. During di scussions with the case social worker, the ch ild said that respondent had physi cally and verbally abused him. In March 2012, the case social worker arranged for appellant a nd the child to relocate to a
domestic violence shelter outside of Alam eda County. About one month later, on April 10, 2012, appellant and her son left th e 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 he r son against respondent. A few weeks before making her request, appellant learned that someone called her CalWORKS
case worker in San Francisco. The unidentif ied caller said the parties’ son was living
with his father and therefore San Francisco sh ould stop providing cash aid for appellant.
The caseworker told the caller that aid could not be stopped becaus e the child was living with appellant. Appellant felt she and her so n were in danger becaus e 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 out side of San Francisco. Appellant opined respondent was the only person who could ha ve made that transfer request. She was afraid that respondent would fi nd and force appellant and the ch ild to return to the marital
residence. The child was stress ed and unable to sleep because of concern that respondent might have learned of his wherea bouts. 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 th e Alameda County Soci al Services Agency,
Child Protective Services Inve stigative Narrative, dated Ap ril 4, 2012, which described the agency’s investigation of the January 2012 incident and the family’s circumstances as of April 2012.4 At the October 24, 2012, hearing, th e trial court (Hon. Ronald E. Albers) continued the matter and reissued the temporar y 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 insuffici ent to support a finding that appellant was a
victim of domestic violence. The court add itionally noted that despite her arguments to the contrary, appellant had not made a sufficien t offer of proof that would justify issuing a DVRO in favor of the child. Nevertheless, the court granted ap pellant additional time
to submit additional documentar y evidence demonstrating th e need for an evidentiary hearing. In advance of the December 5, 201 2, 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 vi deo and the Hayward Police Department report documenting the January 2012 incident. Appella nt also asked the court to consider the fact that the Alameda County di strict attorney had filed a cr iminal charge of child abuse (Pen. Code, § 273a, subd. (a)) against responde nt and that a jury trial was scheduled for December 17, 2012. At the December 5, 2012, hearing, the tr ial court and appellant’s counsel discussed the court’s statutory authority to consider th e merits of appellant’s request for a DVRO to protect both herself and the child. The cour t concluded it had no statutory authority to consider the DVRO request brough t solely in appellant’s name as “she is not apparently
the victim of domestic violence.” It de nied 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. Th us, we “ ‘will decide the appeal on the record, th e 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 am ici curiae brief, in support of appellant’s5 DISCUSSION The DVPA’s “purposes . . . are to prevent the recurren ce of acts of violence and sexual abuse and to provide fo r 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 tr ial court is permitted to issue a restraining order “simply on the basis of an affidavit s howing past abuse. . . . (§ 6300.)” ( Nakamura
v. Parker (2007) 156 Cal.App.4th 327, 334 ( Nakamura ).) “[T]he requisite abuse need not be actual infliction of phys ical injury or assault.” ( Conness, supra , 122 Cal.App.4th at p. 202.) Instead, “abuse” is broadly defi ned 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 coul d be enjoined pursuant to Section 6320.” (§ 6203, subds. (c), (d).) Section 6320 de scribes enjoinable behavior as including “disturbing the peace of the other party . . . .” (§ 6320.) “ ‘[D]istur bing 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 reque st, we determine whether the trial court “applied the correct legal standard to the i ssue 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 reside s 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 actio n an abuse of discretion.” ( Id . at p. 421.) Pertinent to

position, filed by the Family Violence Appell ate Project, California Partnership to End Domestic Violence, National Family Justice Center Allia nce, Family Violence Law Center, Los Angeles Center for Law an d Justice, Domestic Violence Legal Empowerment and Appeals Proj ect, Legal Aid Foundation of Los Angeles, Leadership Council on Child Abuse and Inte rpersonal Violence, Child A buse Forensic Institute, and Dr. Jeffrey L. Edleson, Dean and Professor at the University of California, Berkeley, School of Social Welfare.6 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 applicatio n without a hearing and determin ation 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 cu riae that the trial c ourt 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 assa ult 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 vi olent assault, and amounted to ‘domestic violence’ within the meaning of Family C ode section 6211”].) Because appellant’s application and supporting declar ation “are facially sufficien t” to support a finding “of abuse under the DVPA,” we conclude the tria l court abused its discretion in denying the DVRO request without a hearing a nd 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 shou ld exercise its discretionary authority in conducting the hearing or in determining whet her 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 determina tion, we do not need to furt her address the arguments of appellant and amici curiae.7 allegations showing “that she was ‘abused’ with in the meaning of th e DVPA operated to divest the court of discretion to summarily de ny her application. Because the peremptory
denial of relief . . . exceeded the discretion ve sted 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, denyi ng Qing Hui Gou’s request for a domestic violence restraining order is reversed and th e 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.