Melissa G. v. Raymond M.

Appellant Raymond M. (father) appeals from two

domestic violence restraining orders granted under the

Domestic Violence Prevention Act (DVPA) (Fam. Code,

§ 6200 et seq.)1 Following a single evidentiary hearing on

separate requests filed by father and respondent Melissa G.

(mother), the court granted both requests. Father contends

reversal is required because section 6305 requires a court to

make detailed factual findings before issuing mutual

restraining orders, and the court did not make the requisite

factual findings. Father further contends there is

insufficient evidence to support a factual finding that he was

the primary aggressor and not acting in self-defense, and he

seeks an unqualified reversal of the order restraining him

from contacting mother, rather than a reversal that remands

the case for factual findings. Mother did not file a

respondent’s brief.2

We agree with father that the court erred by not

making the factual findings required under section 6305.

We disagree, however, with father’s insufficient evidence

argument, and so we reverse and remand.



1 Statutory references are to the Family Code unless

otherwise indicated.

2 When a respondent fails to file a brief, “the court may

decide the appeal on the record, the opening brief, and any

oral argument by the appellant.” (Cal. Rules of Court, rule

8.220(a)(2).)

3

FACTUAL AND PROCEDURAL BACKGROUND

Summary of relevant facts

In the filings before the trial court, it was undisputed

that mother had primary physical custody of C.G. (the son),

who was born in 2010. Father previously obtained a threeyear

restraining order against mother in 2010, which he did

not seek to renew when it expired in 2013. On January 18,

2017, the court ordered weekly Saturday visits for father.

The visits served as a flashpoint for flaring tensions between

mother and father. Because each party offered statements

supporting different versions of events, we review key dates

and summarize the main points raised in statements

presented to the trial court.

1. January 21, 2017

According to father, when mother brought the son for

the first visit following the court’s January 18, 2017 order,

the son’s pants and shirt were sewn together in such a way

that he could not use the bathroom. When father separated

the clothing, a tape recorder fell out, and father noticed

small cuts in the son’s skin around his waist in

approximately the same area the clothes had been sewn

together. When father returned the son to mother at the end

of the visit, mother accused father of stealing the tape

recorder and hit father with her fist multiple times, leaving

4

marks on his cheek and near his eye. Father claimed

mother also threw cake in his face and on his car. Father

attached a photo depicting his injuries. He stated he was

attaching a police report filed after the incident, but the

exhibit does not appear in our record.

Mother’s statements attached to her restraining order

request refer to a number of documents, but the referenced

documents do not appear in our record. Mother claimed she

had photos proving that the son’s shirt was not sewn into his

pants, and that she filed a police report for theft at 7:40 p.m.

on January 21, 2017. She claimed father’s report was for

8:00 p.m. on the same date, but then asked rhetorically “why

is [father’s] report dated for the day after?” In the same

paragraph, making an apparent reference to father’s claim

that mother attacked him, mother stated, “And he has these

magical new bruises. I have video evidence of him

assaulting me in front of my son, the people in the video

clear as day say he was the one doing the assaulting,

including an employee of the station.” Father denied

assaulting mother.

2. February 4, 20173

On February 4, 2017, mother’s friend brought the son



3 Visits did not take place on January 28, 2017, or

February 18, 2017. The parties dispute the reasons why the

visits did not occur, but the details are not relevant to the

current appeal. There was also a dispute about how father

5

to the custody exchange and was videotaping events on her

phone. According to father, mother’s friend pushed her

phone close to his face and called him a racial epithet. He

tried to leave with the son, but saw mother and a man

waiting outside, so he returned to the station, where

mother’s friend spit on him, and he knocked the phone out of

her hand. Mother’s declaration denied father’s version of the

events and referenced portions of a video submitted at an

earlier proceeding, but it is not in our record on appeal.

3. March 4, 2017

On March 4, 2017, mother was not at the police station

where the exchange was supposed to take place, so father

went to mother’s home, where he claims she physically

assaulted him. According to father, mother was not home

when he arrived with police. After the police left, he saw

mother and the son with a group of people, but when he

approached them, mother told the son to run to his

grandmother’s home. Mother then grabbed father’s arm, bit

him, and began to punch and scratch his face, leaving teeth

marks and other visible marks that were documented by

police photographs. Father filed a police report on the same

day. The report indicates it was prepared on March 4, 2017



returned the son to mother at the end of a visit on February

25, 2017, but the details are not relevant to the current

appeal. In addition, no visits have taken place after

February 25, 2017.

6

at 7:50 p.m., concerning an incident that occurred on the

same day at 2:30 p.m. Father also attached a printout from

a messaging program called “Talking Parents,” showing a

message on March 10, 2017 around 7:00 p.m. from mother to

father stating “did it hurt when you bit yourself?”

Mother presented a very different version of the events

of March 4, 2017. According to mother, she notified father

through Talking Parents that she was canceling the son’s

visit because of concerns with father’s behavior. She was at

home when father and a female police officer arrived at

around 1:10 p.m. She called 911 and spoke with a sergeant,

who later arrived at the home and gave mother a business

card. Mother attached the sergeant’s business card, which

stated “child custody dispute; questions regarding R/O;

advised on premises.” The card also gave a time and date of

March 4, 2017 at 2:30 p.m. Mother noted that father was

claiming she attacked him at the same time the business

card shows the sergeant was present. She denied biting or

attacking father, stating the bite mark appeared selfinflicted

and that she “would never do something so

disgusting, especially to someone who has Hepatitis, despite

his attempts to slander my name.” Mother claimed father

“has a long history of claiming someone is hurting him after

he has already done the assaulting on someone else.”

4. Blocked calls to mother’s phone

According to mother, on the evening of March 13, 2017,

7

she received over 350 missed calls from a blocked number,

including a large number of voicemails from either father or

a woman using a voice changer. She claimed that by April

10, 2017, she had received over 2,000 blocked calls. Father

denied contacting mother by any means other than Talking

Parents, and denied instructing anyone else to call, text, or

e-mail mother on his behalf.

Requests for restraining orders

On March 8, 2017, father filed a request for a domestic

violence restraining order against mother, and asked the

court to award him sole legal and physical custody of the

son. Father attached a declaration offered in lieu of personal

testimony. Father also filed an additional declaration in

response to a request for order filed by mother. Mother’s

request for order is not part of the record on appeal, but

according to father’s declaration, mother filed a request

asking for father’s visits with the son to be supervised.

On May 4, 2017, mother filed her own request for a

restraining order against father and a request to curtail

father’s visits. Attached to mother’s requests were 12 pages

of additional details and several exhibits. Father filed a

response to mother’s restraining order request on May 23,

2017.

8

Hearing

The trial court considered both parties’ requests for

restraining orders at the same hearing on May 23, 2017.

The judge was familiar with the parties and its earlier

January 2017 order granting father visitation. Mother

represented herself, and father appeared with counsel.

The court proceeded largely based upon the

declarations of the parties, after the parties swore to their

truth, and took only minimal additional testimony from

mother. Mother testified that she could identify father’s

voice along with that of an unknown woman on some of the

allegedly harassing voicemail messages mother received.

The court and the parties discussed the evidence and their

views about the challenges and conflicts in custody

exchanges. Mother acknowledged she did not have

witnesses to support her version of events, but referencing

the March 4, 2017 events, she argued “There’s police present

at the house from start to finish, and even if a restraining

order is granted, I wanted to, at least, be semi both ways.”

Father’s counsel argued there was no evidence to support a

mutual restraining order, stating “the court has to find that

both parties acted as primary aggressors and neither party

has acted primarily in self defense.” Father’s counsel argued

mother’s version of events was not credible, while father had

credible evidence to support his request. The court

responded there was undisputed evidence that father

knocked the phone out of mother’s friend’s hand while the

9

child was present, which would support a restraining order.

The court indicated that because there were independent

acts of domestic violence, it did not have to analyze which

party was a primary aggressor. The court also

acknowledged that for the incidents where father had bite

and scratch marks, the evidence suggested father may not

even have been an aggressor at all.

Ultimately, the court announced it would issue two

restraining orders “to restrain each party from harassing or

following or stalking, or any of those things to the other

party, and I’m going to issue a restraining order against

communicating with the other party, except on Talking

Parents.” As the court explained, “in other words, I’m just

going to order these two people to leave each other alone.”

The court did not make any findings of fact regarding

whether mother or father acted as a primary aggressor or

was acting primarily in self-defense.

Father’s counsel also argued that father should be

awarded primary physical custody because mother was not

acting in the child’s best interests. The court declined to

shift primary physical custody, reasoning that the child had

only recently started visits with father. The remainder of

the hearing focused on logistical details of implementing the

legal and physical custody orders. Following the hearing,

the court issued a minute order together with two separate

orders on mandatory Judicial Council Form DV-130,

10

Restraining Order After Hearing (Order of Protection).4

DISCUSSION

Father contends the trial court erred when it

determined factual findings were not required under section

6305 where the restraining order requests involved separate

incidents. No published case has yet examined whether,

following a single hearing, a court may enter two restraining

orders that grant two separate applications to restrain

opposing parties without first making the factual findings



4 Section 6221, subdivision (c) states: “Any order

issued by a court to which this division applies shall be

issued on forms adopted by the Judicial Council of

California.” Mandatory Judicial Council Form DV-130,

entitled “Restraining Order After Hearing (Order of

Protection),” does not provide an option to fill out the

restrictions applying to both parties in a single form for a

mutual restraining order. (See Judicial Council Forms, form

DV-130, available at

http://www.courts.ca.gov/documents/dv130.pdf [as of Feb. 15,

2018].) Because the DV-130 form is merely a mechanism to

effectuate the trial court’s order at the hearing that

restrained both parties, the fact that the orders are issued on

separate forms does not affect our analysis of whether the

requirements of section 6305 apply. (See J. H. McKnight

Ranch, Inc. v. Franchise Tax Bd. (2003) 110 Cal.App.4th

978, 988 [declining to adopt statutory interpretation that

would “elevate form over function” in contravention of

legislative purpose].)

11

required under section 6305. Considering the language of

section 6305, its legislative history, and existing case law, we

agree with father that such findings are required regardless

of whether the two restraining order requests stem from a

single incident or separate incidents. We reject father’s

additional contention that there is no substantial evidence to

support a finding that he acted primarily as an aggressor.

Because the question of whether both parties acted primarily

as aggressors and neither acted primarily in self-defense is

best answered in the first instance by the trial court, we

remand for factual findings.

Standard of review

The question posed by father’s appeal is a matter of

statutory construction, and we apply a de novo standard of

review. (Isidora M. v. Silvino M. (2015) 239 Cal.App.4th 11,

16 (Isidora M.).)

Law governing restraining orders

Under the DVPA, a court may issue a restraining order

to prevent domestic violence or abuse if the party seeking

the order “shows, to the satisfaction of the court, reasonable

proof of a past act or acts of abuse.” (§§ 6300, 6220.) “Abuse”

includes intentionally or recklessly causing or attempting to

cause bodily injury to, attacking, striking, stalking,

threatening, harassing, making annoying telephone calls to,

12

or disturbing the peace of the other party. (§§ 6203, 6320.)

“California law regulates the issuance of mutual

restraining orders under the DVPA by subjecting them to

additional procedural requirements. (§ 6305.)” (Conness v.

Satram (2004) 122 Cal.App.4th 197, 200 (Conness).) A court

may not enter “a mutual order” restraining the parties from

further acts of abuse unless “(1) [b]oth parties personally

appear and each party presents written evidence of abuse or

domestic violence” using a mandatory Judicial Council form,

and “(2) [t]he court makes detailed findings of fact indicating

that both parties acted as a primary aggressor and that

neither party acted primarily in self-defense.” (§ 6305, subd.

(a)(2).)5 If the court enters a mutual order without making



5 The full text of section 6305 reads: “(a) The court

shall not issue a mutual order enjoining the parties from

specific acts of abuse described in Section 6320 unless both

of the following apply: [¶] (1) Both parties personally

appear and each party presents written evidence of abuse or

domestic violence in an application for relief using a

mandatory Judicial Council restraining order application

form. For purposes of this paragraph, written evidence of

abuse or domestic violence in a responsive pleading does not

satisfy the party’s obligation to present written evidence of

abuse or domestic violence. By July 1, 2016, the Judicial

Council shall modify forms as necessary to provide notice of

this information. [¶] (2) The court makes detailed findings

of fact indicating that both parties acted as a primary

aggressor and that neither party acted primarily in selfdefense.

[¶] (b) For purposes of subdivision (a), in

determining if both parties acted primarily as aggressors,

13

the required factual findings, it acts in excess of its

jurisdiction and the order is voidable. (Monterroso v. Moran

(2006) 135 Cal.App.4th 732, 737–739 (Monterroso).) As used

in section 6305, the phrase “mutual order” may refer to a

single order restraining two opposing parties from engaging

in the acts of abuse described in section 6320 or two separate

orders which together accomplish the same result as a single

order. (§ 6305; but see Conness, supra, at pp. 202–204 [two

orders entered proximately in time but following separate

hearings on different days do not fall under the definition of

a mutual order].)

In determining whether both parties acted primarily as

aggressors, the court must consider the provisions set forth

in Penal Code section 836, subdivision (c)(3), “concerning

dominant aggressors.” (§ 6305, subd. (b).) Penal Code

section 836, subdivision (c) governs the conduct of peace

officers in connection with making arrests in response to

calls alleging violations of already issued restraining orders.

Subdivision (c)(3) addresses situations where the peace

officer encounters persons who are subject to previously

issued mutual restraining orders, directing that the officer

“make reasonable efforts to identify, and may arrest, the

dominant aggressor involved in the incident.” (Pen. Code,



the court shall consider the provisions concerning dominant

aggressors set forth in paragraph (3) of subdivision (c) of

Section 836 of the Penal Code.”

14

§ 836, subd. (c)(3).)6 A “dominant aggressor” is defined as

“the person determined to be the most significant, rather

than the first, aggressor,” and Penal Code section 836,

subdivision (c)(3) requires the officer to consider a number of

factors in identifying the dominant aggressor, including “(A)

the intent of the law to protect victims of domestic violence

from continuing abuse, (B) the threats creating fear of

physical injury, (C) the history of domestic violence between

the persons involved, and (D) whether either person involved

acted in self-defense.”

The legislative history of section 6305, its relationship

to the Violence Against Women Act of 1994 (VAWA) (42



6 Penal Code section 836, subdivision (c)(3) states: “In

situations where mutual protective orders have been issued

. . . liability for arrest under this subdivision applies only to

those persons who are reasonably believed to have been the

dominant aggressor. In those situations, prior to making an

arrest under this subdivision, the peace officer shall make

reasonable efforts to identify, and may arrest, the dominant

aggressor involved in the incident. The dominant aggressor

is the person determined to be the most significant, rather

than the first, aggressor. In identifying the dominant

aggressor, an officer shall consider (A) the intent of the law

to protect victims of domestic violence from continuing

abuse, (B) the threats creating fear of physical injury, (C) the

history of domestic violence between the persons involved,

and (D) whether either person involved acted in selfdefense.”

15

U.S.C. § 13981 et seq.),7 and the purpose of its factual

finding requirement were discussed at length in Isidora M.,

supra, 239 Cal.App.4th at pages 19–21. “As originally

enacted in 1993, former section 6305 provided: ‘The court

may not issue a mutual order enjoining the parties from

specific acts of abuse described in Section 6320 unless both

parties personally appear and each party presents written

evidence of abuse or domestic violence. In this case, written

evidence is not required if both parties agree that this

requirement does not apply.’ (Stats. 1993, ch. 219, § 154,

p. 1654.)” (Id. at p. 19.) In 1995, the statute was amended

to remove the waiver provision and to limit mutual

restraining orders to situations where a court found that

both parties had acted as primary aggressors and neither

party had acted primarily in self-defense. (Id. at p. 20.) The

California legislature enacted changes to bring California

law on domestic violence restraining orders into conformity

with federal requirements for grants and federal funding.

(Id. at pp. 19–20.) The Conness court explained that the

1995 amendment “help[ed] ensure that a mutual order is the



7 VAWA was part of the larger Violent Crime Control

and Law Enforcement Act of 1994 (Pub.L. No. 103–322

(Sept. 13, 1994) 108 Stat. 1796) and was previously codified

at 42 U.S.C. section 13981 et seq. After the U.S. Supreme

Court held Congress lacked constitutional authority to enact

certain portions of VAWA (United States v. Morrison (2000)

529 U.S. 598), Congress reauthorized, updated, and

recodified certain provisions. (See Pub.L. No. 113–4 (Mar. 7,

2013) 127 Stat. 56.)

16

product of the careful evaluation of a thorough record and

not simply the result of the moving party yielding to the

other party’s importunities or the court deciding that a

mutual order is an expedient response to joint claims of

abuse.” (Conness, supra, 122 Cal.App.4th at p. 204.) The

changes also ensured that mutual restraining orders issued

in California would be entitled to full faith and credit in

other states. (18 U.S.C. § 2265(c); Sen. Com. on Crim. Proc.,

Analysis of Sen. Bill No. 591 (1995-1996 Reg. Sess.) Apr. 4,

1995.)

In 2015, the Legislature added subdivision (b) directing

courts to consider the provisions of Penal Code section 836,

subdivision (c)(3), concerning dominant aggressors in

determining if both parties acted as primary aggressors.

(Isidora M., supra, 239 Cal.App.4th at p. 17, fn. 7.) In 2016,

the Legislature clarified that written evidence of abuse must

be submitted on an application for a restraining order, and

cannot be submitted solely as part of a responsive pleading.

(§ 6305, as amended by Stats. 2015, ch. 73, § 1; Sen. Jud.

Com., Analysis of Assem. Bill No. 536. (2015-2016 Reg.

Sess.) Jun. 9, 2015.)

The scenario presented in this case is different than

those at issue in prior published cases. The issues addressed

on appeal in Monterroso, J.J. v. M.F. (2014) 223 Cal.App.4th

908 (J.J.), and Isidora M., all arose when a trial court

entered a mutual restraining order after only one party had

filed a restraining order request. In Monterroso, the court

concluded that the lower court acted in excess of its

17

jurisdiction in issuing a mutual restraining order without

the requisite findings under section 6305. The appellant, a

victim of domestic violence, sought a restraining order

against her abusive husband. She appeared before the lower

court without counsel and agreed with the husband’s

attorney to make the restraining order mutual, even though

husband had not filed a request. (Monterroso, supra, 135

Cal.App.4th at pp. 735–736.) The trial court accepted the

parties’ stipulation to a mutual restraining order without

making any findings under section 6305. The appellate

court reversed, finding that “[w]hen a trial court issues such

an order in contravention of its statutory obligation to make

the required findings of fact, it acts in excess of its

jurisdiction.” (Id. at p. 736.) The court remanded the

matter, directing the trial court to rule upon the merits of

appellant’s request alone. (Id. at p. 739.) Presumably, the

court did not remand for consideration of a mutual order and

factual findings under section 6305 because the husband did

not initially seek a restraining order.

In J.J., a young child’s mother filed a request for a

restraining order against the father, but following an

evidentiary hearing on mother’s request, the trial court

issued a mutual restraining order against both parties,

finding that a single dispute over their son’s jacket led to

“‘mutual combat’” where both parties “acted with aggression,

which was interspersed with acts of defense.” (J.J., supra,

223 Cal.App.4th at p. 974.) The mother appealed, arguing

the requirements of section 6305 were not met and the

18

court’s issuance of a mutual restraining order without a

request from father violated her due process rights. Noting

evidence of a lengthy history of domestic violence with father

pushing and slapping mother and sending her threatening

text messages, the appellate court found there was no

substantial evidence to support a factual finding that

appellant was a primary aggressor during the incident or in

the relationship overall, and reversed only the portion of the

mutual restraining order enjoining mother from contacting

father. (Id. at pp. 975–976.)

In Isidora M., the appellant sought a restraining order

against her husband in 2014 based on alleged threats; at the

time the appellant filed for the order, she was herself

restrained by a criminal protective order protecting her

husband based upon incidents of domestic violence occurring

two years earlier. The trial court issued a five-year mutual

restraining order even though the husband had not filed a

separate request. In including the appellant in a mutual

order, the trial court reasoned that it need not make any

findings, but instead could rely on the appellant’s prior

criminal conviction as a substitute for findings. On appeal,

the Isidora M. court focused on the trial court’s authority “to

issue a mutual restraining order without a reciprocal request

by the responding party.” (Isidora M., supra, 239

Cal.App.4th at pp. 17–18.) Based upon the statutory

requirements of the DVPA, the legislative history of the 1995

amendment to section 6305, and procedural due process

considerations, the court determined that “[a] trial court

19

may issue a mutual domestic violence restraining order

under section 6305 only if both parties have filed requests

for such relief, so as to give the requisite notice to the

opposing party.” (Id. at p. 14.) Isidora M. also found, “the

trial court erred in substituting the bare fact of Isidora’s

guilty plea to a charge of domestic violence for detailed

findings of fact indicating that she acted primarily as an

aggressor and not primarily in self-defense as required by

section 6305.” (Id. at p. 23.) The appellate court reversed

the mutual restraining order as to the appellant only, and

affirmed it in all other respects. (Ibid.)

In the case before us, both parties submitted written

requests for restraining orders and both requests were part

of the same hearing. Mother argued at the hearing, “even if

a restraining order is granted, I wanted to, at least, be semi

both ways.” When the court began questioning mother about

the basis for her restraining order request, father’s counsel

interjected, stating “there is no evidence here to issue a

mutual restraining order. In order for the court to issue

mutual restraining orders, the court has to find that both

parties acted as primary aggressors and neither party has

acted primarily in self defense. That isn’t what is happening

here.” The court responded by noting that there was

undisputed evidence of violence committed in front of the

child, and continued, “I understand what you’re saying,

however, if there are independent acts of domestic violence,

you don’t have to -- I mean, you find one act here, and one

20

act here, it’s not where there’s one incident, and one person

is the primary aggressor, and the other one is not.”

The trial court erred when it interpreted section 6305

as not requiring factual findings when two parties seek

restraining orders against each other based on separate

incidents. The language of section 6305, its reference to

Penal Code section 836, subdivision (c)(3), the legislative

history, and the case law all support a requirement for

express findings, regardless of whether the two requests

arise from the same incident or different incidents. Section

6305 states, in relevant part, that a “court shall not issue a

mutual order . . . unless . . . [t]he court makes detailed

findings of fact that both parties acted as a primary

aggressor and that neither party acted primarily in selfdefense.”

Nothing in the language limits the requirement to

orders arising from a single incident.8 By separating out for

analysis each party’s claim of abuse against the other, and



8 Penal Code section 836, subdivision (c)(3) does

provide that the responding officer identify “the dominant

aggressor involved in the incident.” We do not read this

language as limiting a court’s obligation, under section 6305,

to making findings only if it issues mutual restraining orders

arising out of the same incident. Rather, the use of the word

incident in the relevant Penal Code section simply

acknowledges that the section addresses situations where

peace officers are responding to an incident and making

decisions about arrests in connection with that incident. In

contrast, the court’s role in issuing restraining orders under

the DVPA is not by definition limited to a single incident.

21

issuing restraining orders against both parties as if incidents

occurring at different times must be wholly unrelated, a

court does not give full effect to the statutory directive that it

“shall consider” both “the history of domestic violence

between the persons involved” and “protect[ing] victims of

domestic violence from continuing abuse.” (§ 6305, subd.

(b); Pen. Code, § 836, subd. (c)(3)(A) & (D).)

Permitting courts to avoid making the required

findings in circumstances where each party’s allegations of

abuse arise from a different incident risks undermining

central policies behind the fact finding requirement added to

section 6305 in 1995: ensuring courts do not issue mutual

orders as a matter of expediency, or simply because an

abused party, in order to get their own protection, yields to

their abuser’s request for a mutual order. (See Isidora M.,

supra, 239 Cal.App.4th at pp. 19–21; Conness, supra, 122

Cal.App.4th at p. 204.)

The cases also lend support to our conclusion that the

requirement to make detailed findings in section 6305

applies regardless of whether the orders arise from separate

incidents. In Isidora M., the court assumed such a

requirement without explicitly addressing the question. In

that case, the ex-wife was alleged to have engaged in acts of

abuse in May 2012, and the ex-husband was alleged to have

engaged in acts of abuse almost two years later, in February

2014. (Isidora M., supra, 239 Cal.App.4th at p. 14.) The

Isidora court found section 6305 applicable, and reversed the

trial court’s entry of a mutual order because of its failure to

22

make the detailed findings. (Id. at pp. 18–19.) The court’s

factual analysis in J.J. also underscores how the

requirement of detailed factual findings helps ensure that

the defensive act of someone who is a victim of domestic

abuse is not considered in isolation from its larger context

and erroneously seen as an act of aggression for which the

person should be restrained. (See J.J., supra, 223

Cal.App.4th at p. 975 [“The single act of pushing M.F. away

does not support a finding that she acted primarily as

aggressor, especially in view of M.F.’s history of abuse

against her”].)

The two orders issued by the court against mother and

father on May 23, 2017, following a combined evidentiary

hearing, constitute a mutual order triggering the

requirements of section 6305.

9 The court erred when it

issued the mutual order without making the findings

required under section 6305, i.e., that both parties acted

primarily as aggressors and that neither party acted

primarily in self-defense.

10



9 The court stated, “I’m going to restrain each party

from harassing or following or stalking, or any of those

things to the other party, and I’m going to issue a

restraining order against communicating with the other

party . . . . [¶] . . . [¶] So, I’m going to eliminate their contact

. . . . I’m going to order each person to stay 100 yards away

from the other person . . . .”

10 Father asks the court to rule that section 6305

applies any time two parties seek restraining orders against

23

Substantial evidence to support a finding that father

was a primary aggressor

In his appeal, father seeks to reverse only the

restraining order entered against him, leaving the

restraining order against mother in place. But if the

infirmity in the court’s ruling was a failure to make factual

findings, and there is evidence upon which the court might

base such a finding, then the validity of both restraining

orders is in doubt. Having determined that the court’s

failure to make required findings before issuing mutual

restraining orders was based upon an error of law, we now

consider whether the proper remedy is to only reverse the

restraining order against father, or to remand the matter for

the required factual findings.

In determining whether substantial evidence exists to

support a court’s order, “‘we may not confine our



each other, and those requests for restraining orders are

pending at the same time, even if not addressed at the same

hearing. Our holding today is intentionally narrow, and is

necessarily limited to the procedural posture of the case

before us: where competing requests for restraining orders

come before the court at the same hearing. We decline to

address procedural scenarios not present in this case. (See

Conness, supra, 122 Cal.App.4th at pp. 202–203 [discussing

the challenges of non-simultaneous restraining orders and

the application of section 6305 to restraining order requests

that are not pending at the same time].)

24

consideration to isolated bits of evidence, but must view the

whole record in a light most favorable to the judgment,

resolving all evidentiary conflicts and drawing all reasonable

inferences in favor of the decision of the trial court.

[Citation.] We may not substitute our view of the correct

findings for those of the trial court; rather, we must accept

any reasonable interpretation of the evidence which supports

the trial court’s decision. However, we may not defer to that

decision entirely. “[I]f the word ‘substantial’ means anything

at all, it clearly implies that such evidence must be of

ponderable legal significance. Obviously the word cannot be

deemed synonymous with ‘any’ evidence. It must be

reasonable in nature, credible, and of solid value; it must

actually be ‘substantial’ proof of the essentials which the law

requires in a particular case.” [Citations.]’ [Citation.]”

(DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329,

336.)

Father’s argument on appeal is limited to the evidence

and findings necessary for a mutual restraining order under

section 6305; he does not argue there was inadequate

evidence to support the court’s decision to issue a restraining

order against him. The record contains substantial evidence

to support a finding that father was acting as a primary

aggressor and not in self-defense.

The evidence that father acted as a primary aggressor

in at least one incident is stronger than that at issue in J.J.,

where the appellate court found no substantial evidence to

support a finding that mother acted as a primary aggressor,

25

given the evidence of a long history of father perpetrating

physical violence against mother, as compared to a single act

of mother pushing father away when he approached mother

and their son during a confrontation about the son’s jacket.

(J.J., supra, 223 Cal.App.4th at pp. 975-976.) The appellate

court in J.J. reversed only the order restraining mother and

left the order restraining father in place, rather than

remanding for factual findings. Here, we express no view on

whether father should be found to be a primary aggressor

and not acting primarily in self-defense. Our inquiry is

limited to whether there is substantial evidence to support

such a finding, and we find sufficient evidence in the record

to warrant a remand for the court to make its own factual

determination. Among the evidence that might support a

finding is evidence of numerous phone calls to mother from a

blocked number and evidence of police involvement in the

visitation exchange on March 4, 2017. If the trial court

determines there is not enough evidence to support the

required factual findings justifying a mutual restraining

order, it must determine which party’s request for

restraining order should be granted and which should be

denied.

The court’s mutual restraining orders are reversed, and the matter is remanded for factual findings and reconsideration of the restraining order requests based on

those findings. The parties are to bear their own costs on appeal.