Trial Court's Exclusion of Evidence Was Error Requiring Reversal of Order Denying Restraining Order

Timothy Kowal, Esq.
December 15, 2021

Judges have a lot of leeway to exclude evidence at trial. But in Brubaker v. Andy Strum (D2d7 Dec. 10, 2021) 2021 WL 5856791 (no. B307887) (nonpub. opn.), the exclusion was an abuse of discretion. The trial judge excluded the evidence supporting the appellant's motion for a renewed domestic violence restraining order because he thought the evidence of harassment was barred by the doctrine of issue preclusion. But the judge misunderstood the doctrine of issue preclusion. That was a legal error. As a legal error was the basis of the exclusion, the exclusion order had to be reversed.

In Brubaker, the appellant wife obtained a two-year restraining order in February 2018. Despite the restraining order, wife complained of husband's persisting harassment. The parties' marriage dissolution trial concluded a year later in February 2019. Before the restraining order expired, wife sought an order extending it.

But the husband successfully moved to exclude all evidence of harassment prior to February 2019, on the grounds that it should have been raised in the dissolution trial, and thus the dissolution judgment precluded the issue from being raised in wife's motion to extend the restraining order.

The types of harassment that can support a DVRO are very broad. Family Code section 6320 includes in its definition of "abuse" not only intentional or attempted bodily injury, but also "harassing" or "disturbing the peace of the other party." (In re Marriage of F.M. & M.M., supra, 65 Cal.App.5th at p. 115; see §§ 6203, 6320.) This means that “[a]nnoying and harassing an individual is protected in the same way as physical abuse.” (Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 398 (Perez); see Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1290-1291 (Ritchie).)

To prevail on a motion to renew the order, a protected party has the burden to show by a preponderance of the evidence that a reasonable person would have a " 'reasonable apprehension' " of future abuse. (Ritchie, supra,115 Cal.App.4th at p. 1290.)

So the respondent husband decided to get creative to exclude the evidence of his harassment, which appears to have included a lot of needless and unsolicited verbal confrontations, needling the wife about various and sundry grievances. The husband argued the issue of domestic violence came up in the dissolution trial a year ago in 2019. That issue had to be decided for purposes of custody. And sure enough, the court had found the husband had complied with the original restraining order and had "not committed any further acts of domestic violence." The trial judge thought that was a sound argument, and so excluded all such evidence from consideration of the renewed restraining order.

But the Court of Appeal reversed. For issue preclusion to apply, the issues must be identical, and the court found that the issues were not identical. At the dissolution trial, the issue was whether the husband had rebutted the presumption under Family Code section 3044 that granting him custody was detrimental to the children's best interest. But at the restraining order hearing, the issue was whether the wife had a reasonable fear of future abuse.

In other words, although the trial court had found no "further acts of domestic violence," it was still possible the wife could establish a reasonable apprehension of future abuse. Evidence of actual further violations is not strictly required. (See Ashby v. Ashby (2021) 68 Cal.App.5th 491, 515-516 [“a party's violation of [a domestic violence restraining order] can support a finding of reasonable apprehension,” but “the reverse is not true”: compliance with a domestic violence restraining order does not “precludea finding of reasonable apprehension”]; Abatti v. Imperial Irrigation Dist. (2020) 52 Cal.App.5th 236, 306-307 [issue preclusion does not apply where a finding from an earlier action is relevant to “but does not resolve the inquiry” in the later action].)

The trial court also wrongly believed it could not consider the evidence underlying the original restraining order.

On appeal, the reviewing court applies the abuse of discretion standard of review to a trial court's rulings on the admissibility of evidence. (Pilliod v. Monsanto Co. (2021) 67 Cal.App.5th 591, 630; Christ v. Schwartz (2016) 2 Cal.App.5th 440, 446-447.)

But that is not exactly what the Court of Appeal did here. The Court of Appeal held that "[b]y excluding relevant evidence of ]the appellant wife's] fear of future abuse, the court abused its discretion by limiting [the appellant's] ability to meet her burden of proof. (See Perez, supra, 1 Cal.App.5th at p. 396 [““ ‘If the court's decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, the court has not properly exercised its discretion under the law.’ ””]; Eneaji v. Ubboe, supra, 229 Cal.App.4th at p. 1465 [a decision “predicated on an erroneous understanding of the applicable law ... must be reversed and remanded”].)

Under the abuse of discretion standard of review, reviewing courts typically at this point would consider whether the trial court's error resulted in prejudice to the appellant. But the court here did not discuss whether the error prejudiced the appellant. The court appears to have treated the evidentiary ruling not only as an error of law (rather than an abuse of discretion), but an error warranting per se reversal.

The upshot: Evidentiary rulings normally are difficult to challenge on appeal, being subject to the deferential abuse of discretion standard. But when an evidentiary ruling is based on an error of law, you may be entitled to something more like de novo review. That is what happened in this case.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at or (714) 641-1232.

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