San Diego Appeals Court Makes It Easier to Get a Temporary Domestic Violence Restraining Order

When a person seeks a California domestic violence restraining order, he or she usually submits paperwork to the family court and the judge decides on an emergency basis whether to grant a temporary restraining order (TRO) to be followed up by a regular hearing where both sides get to tell their side of the story and the judge makes a final decision.

In a recent case from San Diego County, a woman (“A.M.” or “Mother”) filed for a restraining order on May 17, 2024. A so called “follow up” hearing was scheduled for June 6, 2024, but the judge denied a TRO that would have been in place until the June 6, hearing. Ultimately the June 6 hearing was continued, but while the hearing was pending, A.M. filed an appeal.

A.M. argued that the trial judge wrongfully denied the TRO by writing in the paperwork that the “the facts given in the request ‘do not show reasonable proof of a past act or acts of abuse’” and that details of the abuse were not provided in the application. The trial judge also stated “’[i]ssues described center around finalizing the dissolution and child custody/visitation”.

The Court of Appeal unanimously reversed, in a case entitled Marriage of A.M. and R.Y. (2025) 2025 DJDAR 3536.) The panel of three appellate justices agreed with the trial judge that some of the detail provided by the mother was irrelevant to the issue of domestic violence, but mixed in that detail was absolutely evidence of past abuse.

On the other hand, the justices said a trial judge, even in light of evidence of past abuse, “still has discretion to conclude that the circumstances do not pose enough of an immediate threat to warrant ex parte relief pending a noticed hearing”.

The problem here was that the appeals court could not determine if the judge would have denied the emergency application were it not for its mistaken finding of no abuse.

Another issue was under what circumstances when a judge finds that there is evidence of past abuse may it deny the TRO. Under existing law at the time of the A.M. case, a trial judge was allowed to deny a request for a TRO and wait until the follow-up hearing to decide the case, even when there is evidence of past abuse, provided that the judge “determines that such a delay would not jeopardize the petitioner’s safety.  (Nakamura v. Parker  (2007) 156 Cal.App.4th 327.) (Nakamura was from Contra Costa County.)

But the justices in the San Diego case took a different approach. They ruled, based on Family Code section 6220, that if a judge denies a TRO in spite of a sufficient showing of abuse “its statement of reasons must reflect consideration of the fundamental purpose of the DVPA (Domestic Violence Protection Act) to prevent recurring acts of domestic violence”.

Stated differently, the A.M. court held that the trial judge “has discretion to deny a DVTRO to a petitioner who has made a prima facie (i.e., an adequate) showing of past abuse if it reasonably concludes based on the totality of circumstances that a DVTRO is not necessary to protect the petitioner or others for whom the petitioner is seeking protection from further acts of domestic violence pending the noticed hearing.”

The San Diego panel added, “[t]he court should carefully consider the seriousness and recency of the past abuse, whether it was an isolated incident or pattern, the likelihood of recurrence, the nature of the parties’ relationship, the immediacy and seriousness of any threat, any changed circumstances, and any other relevant factors”.

It is important to note what the A.M. case means and what it does not mean. The A.M. case does not decide when a judge should grant a regular restraining order after a contested hearing, i.e., the type of hearing that has been described in this blog as a “follow-up” hearing.

The A.M. case only deals with what should happen between the time a party first seeks a domestic violence restraining order and the court actually hears the matter. This period is only supposed to be 21-25 days long. Moreover, at the time this opinion was issued, the “follow-up” hearing had been continued all the way to three months from now, in August, 2025!

So, the justices did not order the trial court to enter a restraining order, since they do not know what has happened over the past year; that will be up to the trial court. Indeed, they did not even order the trial judge to enter a TRO pending the August hearing.

Usually I end my blogs by saying that because a case is certified for publication – and A.M. was – it is binding on all trial courts and attorneys from north of Mexico to south of Oregon. But the Nakamura case, discussed above, is still good law.

And one branch of the California Court of Appeal does not have authority to overrule the decision of another branch of the Court of Appeal. Rather, as was the case here, the disagreeing justices may elect not to follow the holding or the reasoning or the outcome of the first case.

When that happens, it is up to judges and appellate justices in the future to follow the “better reasoned” case. Still, I would put my money on the A.M. case. After all, the A.M. case was decided after Nakamura.

Thus, A.M. was able to take an “armchair” look at Nakamura and in the future it may be deemed to be the better reasoned one. And San Diego judges, knowing that the local branch of the Court of Appeal is the branch that will ultimately review any contested decision from this County, may have additional motivation to follow A.M.

My feeling on all of this, though, is that the differences between Nakamura and A.M. are subtle. Both involved reversals of trial judges who denied requests for domestic violence restraining orders. And the teaching point here is that even though both cases allow for a denial of a TRO even when there is proof of domestic violence, it is a lot easier to grant a TRO than to take the time to make the detailed findings, especially those required in A.M., especially given that TRO applications are required by law to be ruled on the same or next court day from the time of presentation.

And A.M. continues the trend of victim-oriented decisions in California domestic violence law. The other trend is that many of these domestic violence opinions –perhaps a disproportionate number—end up getting certified for publication, demonstrating the political and judicial consensus in California to treat domestic violence allegations seriously – much more seriously than when I first started practicing law in California nearly 31 years ago.

A lot of that has to do with a high volume of statutes (and revisions to statutes) that have been enacted by the California legislature over the years, and, of course, the evolution of case law.

But whatever side of any domestic violence dispute you may find yourself on, don’t go at it alone. Contact a California certified family law specialist, as designated by the State Bar of California, Board of Legal Specialization, who only practices family law.