Lister v. Bowen CA1/2

Filed 3/15/13 Lister v. Bowen CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO

SONYA LISTER,
Plaintiff and Respondent,
A134290
v.
MICHAEL BOWEN, (San Francisco City and County
Super. Ct. No. 08-806221)
Defendant and Appellant.

Michael Bowen appeals from the trial court‟s order renewing a restraining order
against him for three additional years, arguing that reversal is necessary on multiple
grounds. Sonya Lister, petitioner below, opposes Bowen‟s grounds, and also argues that
the appeal must be dismissed as untimely. We conclude the appeal is timely but that
Bowen‟s appellate claims lack merit. Therefore, we affirm the court‟s order.
BACKGROUND
The Initial Restraining Order
According to Lister‟s November 9, 2011 testimony, she is an outreach case
manager for Community Awareness Treatment Services (CATS) and in the course of her
duties works out in the field and at different CATS locations in San Francisco. In 2008,
the trial court, having found that Bowen had been stalking Lister, including in the parking
lot by her workplace, issued a three-year restraining order against Bowen, through
September 10, 2011. The court ordered Bowen to stay 100 yards away from Lister and
her daughter, as well as Lister‟s Hayward, California home, vehicle, and workplace at
CATS, except that he could visit certain CATS offices for income-producing purposes.

1
The court further limited Bowen‟s ability to contact Lister‟s family members or spend
time in Lister‟s neighborhood.
In an unpublished opinion, Lister v. Bowen, No. A123682, issued on June 29,
2010, we summarized Lister‟s testimony to the trial court at the hearing on her request for
a restraining order.1 Among other things, Lister told the trial court she had dated Bowen
five or six years before, and had recently dated him again for about a month. In the first
half of July 2008, he suddenly appeared as she walked in a parking lot where she worked
and made comments indicating that he was stalking her, such as that he was around
watching her even though she did not always see him, and indicated that he was going to
keep it up. Later in July 2008, he appeared again as she was walking in the parking lot
and started talking to her again. She did not see where he came from, felt unsafe, and did
not wish to talk to him. She had not contacted him or called him, they did not have a
good rapport, and he knew she did not care to speak to him.
Lister also said she had seen Bowen‟s vehicle parked in front of a Hayward
restaurant that was three blocks from her home, although he lived in Daly City, and that
she was “ „not able to access entertainment and things‟ ” “ „with him stalking around and
driving around and frequenting‟ ” her neighborhood. He also had contacted her 16-year-
old daughter without Lister‟s permission or knowledge, and visited her at their home.
Her daughter had contacted him regarding driving lessons he had paid for, unaware of her
mother‟s concerns about him. Lister also said she thought Lister was “ „buying‟ ” her
family and friends.
Lister said Bowen frequented the offices of CATS, having graduated from it,
sometimes visiting at the request of others to say hello or “ „for a consultation on a job
because he [was] a contractor.‟ ” Lister did not want to see him there because she felt he
was stalking her.

1
Lister attaches our previous opinion as an exhibit to her respondent‟s brief. We
construe this as a request for judicial notice and grant it pursuant to Evidence Code
section 452, subdivision (d).
2
 At the hearing, the trial court, after noting that 11 years before Bowen had pled
guilty to inflicting corporal injury to a spouse of inhabitant, albeit before he became
“ „clean and sober‟, ” found Bowen‟s history “ „pretty damning.‟ ” That, along with
Lister‟s contentions and Bowen‟s own statements at the hearing, indicated to the court
that he was “ „pretty obsessive about folks” that he became involved with, engaged in
“ „stalking,‟ ” and was “ „invasive‟ ” and getting into people‟s “emotional and
psychological space.‟ ”
After the court issued the initial restraining order, Bowen retained legal counsel
and filed a motion for reconsideration. The court denied his motion and Bowen appealed
on a variety of grounds. We affirmed the trial court‟s order and remanded the matter to
the trial court with the instruction that it promptly issue a single, comprehensive written
order of all of its orders to date.
In July 2010, the trial court issued an amended restraining order that, among other
things, ordered that Lister stay 100 yards away from the office building in which Lister
was employed, and stated that, if Lister was not present at other CATS offices or
locations, Bowen could enter them for income-producing purposes, although he was
required to leave if Lister arrived. The court added to the written order its previous oral
instruction that Bowen not initiate contact with Lister‟s family or continue any kind of
relationship with them.
The Court’s Renewal of the Restraining Order
On July 11, 2011, Lister filed a request to renew the restraining order with the trial
court. The court held a hearing on September 7, 2011 regarding her request, at which
Bowen, represented by counsel, and Lister both appeared and testified under oath.
Among other things, Lister testified that on July 7, 2011 she was told not to come into her
workplace building because Bowen was present there; as a result, she stayed away for
two days. She also testified that Bowen approached her stepmother at a store about a
year before and told her he had heard she was mad at him for some things he had said at a
previous court hearing. Lister added that she had seen Bowen within a couple of blocks
of her house in 2008 or 2009.

3
 Bowen‟s counsel argued that there was no credible reason to renew the restraining
order, as most of Lister‟s allegations were about 2008, Bowen had not had any contact
with Lister since that time, and there was no credible evidence to suggest that Bowen
posed any imminent risk of harm to Lister. Counsel referred the court to a declaration,
apparently by Perry Zinnanti, indicating that Bowen had gone into the CATS building “to
address someone who had relapsed,” and had promptly left when he learned there were
some questions about his right to be there.
The trial court cited Family Code section 6345 (section 6345) as indicating that
orders could be renewed at the request of a party for either five years or permanently,
without a showing of any further abuse. Bowen‟s counsel asked for additional time to
brief the question because in his experience, “there usually has to be some objective fear.
Some reason to extend it.” Counsel also argued the order had a chilling effect on
Bowen‟s business.
The trial court concluded that, since Bowen‟s defense was based on his allegation
that there was not further abuse and that was not statutorily required, it was appropriate to
renew the order for five years. The court rejected Bowen‟s counsel request for an
evidentiary hearing to address the legal standard, stating, “It is not an evidence issue, it is
a legal issue.” Asked to clarify its ruling, the court stated that “[Lister] has made factual
allegations. She has made it in her request and she has made them here today. And I
believe under the statute she has made sufficient showing to have a reissuance of the
order. And that‟s on the face—on the statute. She made the request to reissue.” It
also stated, “My finding is that she has met the requirements of [section] 6345[,
subdivision] (a). And I am choosing the shorter duration of the choices that are
outlined there for me.”
On September 7, 2011, the court issued a restraining order against Bowen for five
more years, until midnight on September 7, 2016 (September 7 order).
Bowen’s Motion for Reconsideration
On September 16, 2011, Bowen filed a motion for reconsideration of the court‟s
order pursuant to Code of Civil Procedure section 1008, subdivision (a). The register of

4
actions contained in the record indicates that, for reasons that are neither explained by the
parties nor apparent from the record,2 the hearing, originally scheduled for October 25,
2011, was continued to November 2, 2011 and then to November 9, 2011.
At the November 9, 2011 hearing (November 9 hearing), Bowen, again
represented by counsel, and Lister appeared. At the beginning of the hearing, the court
indicated that the legal standard, pursuant to the “Ricci case,” an apparent reference to
Ritchie v. Conrad (2004) 115 Cal.App.4th 1275 (Ritchie), was that Lister “must show a
reasonable apprehension of future abuse and [her] showing must be made by a
preponderance of the evidence.”
Lister testified at the November 9 hearing that Bowen had violated the initial
protective order multiple times. First, in December 2009, he sent mail to her employer.
This caused Lister to be “very, very stressed out and worried about why he‟s contacting
my employer, what is his reasons for it, like what else could they have been discussing
about me,” and also caused fear.
Second, Lister said, on July 7, 2011, Bowen entered one of CATS‟s buildings, on
Mission Street. Her director told her not to go to that site because Bowen was present,
and he was asked to leave the site immediately. This caused Lister to worry.
Third, according to Lister, Bowen sent mail to her home on two occasions in
October 2011. She was afraid to open the mail, which was addressed from him, for fear
that it was “poisoned, anthrax.” She gave one envelope to the police and retained the
other, which was at her home.
Lister also testified that since she filed for a restraining order, Bowen continuously
had filed paperwork with the court, causing her to miss work to come to the court, which
she considered to be continuous harassment.

2
At the November 9 hearing, the court referred to “[w]hen we were here last
week, we set this opportunity for [Bowen] to give testimony and also to have this
opportunity for you [respondent] to address whether the court should be using a
restraining order.” However, the parties do not further explain what occurred at this prior
hearing.
5
 Lister also referred to private investigators following her and her friends,
declarations written against her, including by a coworker, and Bowen‟s tearing apart of
her family “by using his money to buy his way into some people in my family who are
now no longer dealing with him.” Among other things, she said, he had wanted her aunt
to come to court the week before to testify against her. He also told someone at her work
that she had engaged in “paycheck fraud,” resulting in an investigation of her in February
2009 that found the allegations were not true.
On cross-examination by Bowen‟s counsel, Lister testified that the letters she
received from Lister in October 2011 were copies of filings in the present case. In her
view, the correct way to send her such documents would be through his attorney. Lister
also acknowledged that she had been convicted of larceny because she “did not report
[her] earnings to the housing authority seven years ago.” Bowen‟s counsel argued that
this information was relevant to Lister‟s credibility.
Lister called a coworker as a witness, who testified that after Bowen appeared at
the CATS office in July 2011, Lister “was very distressed—crying, unable to focus on
her . . . case load, in fear . . . that her work area is no longer a safe place.” The coworker
said that from July 17, 2008, to the date of the hearing, Lister had been overwhelmed by
very stressful legal proceedings, had been an “emotional wreck,” and had missed work.
Lister also called her sister as a witness. She testified that since May 2008, the
situation had been “very stressful” for Lister, who “seems very paranoid,” worrying that
she would run into Bowen at certain places. Lister‟s spirit had changed and she showed a
lot of anxiety, such as when she had to go to court. The family was divided about the
matter.
On cross-examination, Lister‟s sister testified that Bowen had held some property
of a cousin, including a motorcycle, which caused an aunt to support him for fear that
Bowen would throw the motorcycle in the street. The sister also said she understood that
criminal proceedings against Lister had been initiated as a result of Bowen hiring a
private investigator and getting criminal charges brought against her based on hearsay;

6
the sister had no personal knowledge of this but had been told it by family members that
dealt with Bowen.
Bowen‟s counsel called Perry Zinnanti as a witness and his declaration was
admitted into evidence, presumably the declaration contained in the record that was filed
with the court on August 18, 2001. Zinnanti declared that he contacted Bowen in July
2011, and asked him if he could visit a CATS employee who Zinnanti had heard had
relapsed, and with whom Bowen was close. Zinnanti further declared that Bowen did not
go to the CATS offices to harass Lister, but to help another person in crisis.
Bowen also testified. He said his purpose in entering a CATS building on July 7,
2011 was to see one of his counselors, who, Bowen had been told, had relapsed. He
intended to see the counselor, but was not able to; he spoke to another person and did not
mention the restraining order.
Bowen denied ever hiring a private investigator to follow Lister, or having any
involvement in the criminal proceedings against her. He said he had a friend mail court
papers to Lister that contained the friend‟s address, not his own.
On cross-examination by Lister, Bowen acknowledged his visit to Lister‟s
workplace on July 7, 2011 was not for income-producing matters. He denied being
within three blocks of her Hayward home, attending a gym in her neighborhood to which
he once belonged, or driving down her street since the issuance of the restraining order,
but acknowledged he had been in Hayward and had dinner there. He also acknowledged
contacting one of her family members after the previous week‟s hearing to tell her he had
told the judge that he was going to request her presence at the hearing.
At the end of the hearing, the trial court denied Lister‟s motion for
reconsideration. It stated that, based on the “Ricci case,” the test to be considered was
whether Lister had a reasonable apprehension of future abuse. It found that Lister had
“shown that she has an apprehension of future abuse, and I don‟t find that that
apprehension is unreasonable. I do believe given her concerns about Bowen following
her, concerns about his involvement in her family in a way that wasn‟t appropriate are
sufficient reasons for her to have an apprehension of future abuse.”

7
 The court further noted Bowen was “sophisticated” and “had advice of counsel”
such that he knew the scope of the protective order and had violated it. The court
specifically referred to Bowen‟s choosing to enter Lister‟s work site for a non-economic
reason in violation of the order, and with an awareness of the serious and sensitive nature
of a heavily litigated dispute that had put him on notice that his actions would have an
impact on Lister. This caused the court “grave concern.”
The court was also concerned about the number of hearings held on the matter. It
indicated the view that Bowen could not “let this go” for reasons that were not clear to
the court, and urged him to “let go” and “move on.”
The court then ruled that Lister had shown a reasonable apprehension of future
abuse and met the standard established in the “Ricci case,” and that it was going to keep
the restraining order in place, but would reduce its length from five to three years. It
ruled that the September 7 order would remain in effect until a new order was submitted
to it, which was to “be exactly the same in terms of the terms” as the September 7 order,
but three years shorter in length.
On December 14, 2011, the court issued a new restraining order that contains the
same terms and conditions as the September 7, 2011 restraining order, except that it
expires at midnight on September 7, 2014 rather than on September 7, 2016 (December
14 order).
On December 22, 2011, Bowen filed a notice of appeal from the court‟s December
14 order.
DISCUSSION
Bowen argues that reversal is necessary because the trial court erred in applying
section 6345, in relying on the fact of Bowen‟s litigation as a ground for reissuance of the
restraining order, and in issuing an overbroad injunction that improperly invaded
Bowen‟s associational interests with CATS. Lister opposes each ground and argues that
Bowen‟s appeal should be dismissed as untimely. We begin with whether this appeal has
been timely made.

8
 I. The Timeliness of the Appeal
Lister argues that we must dismiss this appeal as untimely because Bowen filed
his notice of appeal beyond the time allowed, since the date he filed it was more than 90
days after he filed his motion for reconsideration. Bowen disagrees, arguing that the
appeal should be construed as from a grant of a motion for reconsideration and issuance
of an order after a new hearing, from which he is entitled to appeal. We conclude the
appeal was timely because, however we construe the court‟s ruling on Lister‟s motion for
consideration, the December 14 order included a material or substantial modification of
the September 7 order that enabled Bowen to appeal from the latter order.
The parties do not dispute that the court‟s September 7 order was an appealable
order. (Code Civ. Proc., § 904.1, subd. (a)(6).) Bowen then filed a motion for
reconsideration pursuant to Code of Civil Procedure section 1008, subdivision (a).
California Rules of Court, rule 8.108(e) provides that when a party does so, the time to
appeal is extended to the earliest of three circumstances, which in this case, Lister asserts,
was 90 days from Bowen‟s filing of his motion for reconsideration on September 16,
2011.3
Bowen, relying on case law involving grants of motions for reconsideration (see
Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342 and Tuchscher Development
Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1242),
argues that “[a] better characterization of events is that the trial court granted the Motion
to Reconsider,” pointing to the court‟s holding of a long cause evidentiary hearing,

3
Rules of Court, rule 8.108(e) states:
“If any party serves and files a valid motion to reconsider an appealable order
under Code of Civil Procedure section 1008, subdivision (a), the time to appeal that order
is extended for all parties until the earliest of:
“(1) 30 days after the superior court clerk, or a party serves, an order denying the
motion or a notice of entry of that order;
“(2) 90 days after the first motion to reconsider is filed; or
“(3) 180 days after entry of the appealable order.” (Cal. Rules of Court, rule
8.108(e).)
9
where, Bowen contends, the court considered “for the first time the factors detailed in
Ritchie[, supra], 115 Cal.App.4th 1275. It was the conduct of this hearing and the
prejudice which flowed from it which [Bowen] complains of here.” Should we find his
appeal untimely, he asserts, “there would be no way for this court to reach the errors of
the hearing challenged here.”
It does not appear that the trial court granted the motion for reconsideration. At
the end of the November 9 hearing, the court did not explicitly state that Bowen‟s motion
was denied, but referred to its review of the motion for reconsideration and ordered that
the September 7 order would remain in effect until a new order was issued containing the
identical terms and conditions, albeit with a time period shortened from five to three
years. Also, the register of actions contained in the record states that the court denied
Bowen‟s motion for reconsideration and, although we do not know why the court held
the November 9 evidentiary hearing, the register also indicates that, rather than
previously grant the motion, the court continued the hearing regarding it twice. It appears
that the trial court denied the motion, but in the course of doing so ordered a reduction in
the length of the restraining order, for unexplained reasons.
Nonetheless, given these circumstances, we agree with Bowen that he had the
right to appeal from the December 14 order, although for a reason he does not directly
raise. That is, the trial court‟s reduction of the length of the new restraining order from
five to three years was a material or substantial modification of the September 7 order, as
indicated in the case relied on by Lister for her argument, Dakota Payphone, LLC v.
Alcaraz (2011) 192 Cal.App.4th 493 (Dakota).
In Dakota, a party appealed from an amended judgment, seemingly in a timely
manner. Confronted with the issue of whether to dismiss the appeal, the appellate court,
after acknowledging that appellate courts generally had no jurisdiction to consider
untimely appeals, stated that “ [t]he resolution of this issue turns on the question whether
the amended judgment superseded the original judgment for purposes of computing the
time in which to file a notice of appeal.” (Dakota, supra, 192 Cal.App.4th at p. 504.)
“The crux of the problem . . . is whether there is a substantial change in the rights of the

10
parties such that allowing an amendment nunc pro tunc (relating back to the original
judgment) would unfairly deprive them of the right to contest the issue on appeal or
otherwise. . . . [I]t is ultimately the parties‟ ability to challenge the ruling that is key.
The right we are concerned with materially affecting is the right to appeal.” (Id. at pp.
506-508.)
Similarly, this court, in Nestle Ice Cream Co., LLC v. Workers’ Comp. Appeals
Bd. (2007) 146 Cal.App.4th 1104, stated regarding civil judgments that “the period for
filing a notice of appeal is not extended by an amendment that corrects a clerical error,
but it is extended by an amendment that effects a substantial or material change or
involves the exercise of a judicial function or judicial discretion.” (Id. at p. 1109.)
We conclude that the trial court‟s reduction of the length of the renewed
restraining order from five to three years in its December 14 order was a material or
substantial modification of the September 7 order. In the course of arguing for dismissal,
Lister asserts that the trial court had no legal authority to reduce the length of the
restraining order from five to three years. Because Lister has not filed a cross-appeal, we
need not address this issue. However, Lister‟s argument highlights that, if she had
chosen to appeal this reduction, we would have undoubtedly addressed it, which
inevitably would have led to an evaluation of the evidence introduced at the November 9
hearing, including that which was not presented prior to issuance of the September 7
order, and the court‟s findings after the hearing. In other words, the amended restraining
order contains a substantial modification regarding the parties‟ rights based on additional
evidence and involved the exercise of judicial discretion, albeit in Bowen‟s favor.
Lister argues that the December 14 order did not “reset” Bowen‟s time to appeal
based on Dakota. Lister points out that the Dakota court rejected the argument that a
reduction of $4 million in damages via an amended judgment reset the time in that case
because “[a]ll other parts of the judgment not affected by the modification remained valid
and could have been challenged by appeal.” (Dakota, supra, 192 Cal.App.4th at p. 509.)
However, the Dakota court determined that the alteration to the judgment was “not
substantial and [did] not materially affect the parties‟ rights” under the circumstances of

11
that case, analogizing the change to postjudgment orders that filled in the blanks for
attorney fees and interest. (Ibid.) In the present case, the change was one of substance,
as it eliminated two years of previously ordered restraints against Bowen, substantively
altering the parties‟ rights. It is more analogous to the circumstances discussed in Stone
v. Regents of University of California (1999) 77 Cal.App.4th 736, one of the cases
discussed in Dakota (id. at p. 505), in which the appellate court ruled that a modification
of a judgment to require a party to pay an additional nine months of legal expenses “was
undeniably one of substance” that “materially affected their rights.” (Stone, at p. 744.)
We reach the same conclusion here.
In short, whether or not the trial court denied the motion for reconsideration,
Bowen correctly and timely appealed from the December 14 order. We now turn to the
merits of Bowen‟s appeal from the December 14 order.
II. Reasonable Apprehension
Bowen first argues that the trial court erred in its application of section 6345
because Lister did not have the objectively reasonable apprehension of future abuse
required pursuant to Ritchie, supra, 115 Cal.App.4th 1275. Lister counters that the trial
court properly renewed the restraining order based on her reasonable apprehension of
future abuse, which was justified because of Bowen‟s violation of the order and his
litigation abuse. We agree with Lister, based on the evidence cited by the trial court
regarding Bowen‟s violation of the order, particularly in light of the facts underlying the
issuance of the original order.
A. Legal Standards
As we have discussed, the procedural history below is somewhat muddled. The
trial court, in the course of apparently denying respondent‟s motion for reconsideration,
held an evidentiary hearing on November 9, at which it considered additional evidence
regarding renewal of the order, considered the legal standard for renewal articulated in
Ritchie, apparently for the first time, and substantially modified its order. The parties‟
arguments presume that our standard of review under these muddled circumstances is to
evaluate all the evidence presented at this hearing pursuant to Ritchie to determine if

12
there is a basis for the renewal of the order. We do so without determining whether our
standard of review should be more constrained in some way because of the context in
which the trial court‟s ruling was made.
Section 6345 provides in relevant part that a trial court may renew a restraining
order “upon the request of a party, either for five years or permanently, without a
showing of any further abuse since the issuance of the original order, subject to
termination or modification by further order of the court either on written stipulation filed
with the court or on the motion of a party. . . .” (§ 6345, subd. (a).)
When contested, a request to renew a restraining order should not be granted
pursuant to section 6345 simply because the requesting party has “a subjective fear the
party to be restrained will commit abusive acts in the future.” (Ritchie, supra, 115
Cal.App.4th at p. 1288.)4 “The „apprehension‟ those acts will occur must be
„reasonable.‟ That is, the court must find the probability of future abuse is sufficient that
a reasonable woman (or man, if the protected party is a male) in the same circumstances
would have a „reasonable apprehension‟ such abuse will occur unless the court issues a
protective order.” (Ibid.) However, an imminent and present danger of abuse is not
required. (Ibid.) In other words, under this objective test, “[a] trial court should renew
the protective order, if, and only if, it finds by a preponderance of the evidence that the
protected party entertains a „reasonable apprehension‟ of future abuse. . . . [T]his does
not mean the court must find it is more likely than not future abuse will occur if the
protective order is not renewed. It only means the evidence demonstrates it is more
probable than not there is a sufficient risk of future abuse to find the protected party‟s
apprehension is genuine and reasonable.” (Id. at p. 1290.)

4
“Abuse” does not have to involve physical violence. It is statutorily defined as
including “stalking, threatening, . . .harassing, telephoning, . . . contacting, either directly
or indirectly by mail or otherwise, coming within a specified distance of, or disturbing the
peace of the other party and, in the discretion of the court, on a showing of good cause, of
other named family or household members.” (Fam. Code, §§ 6203, subd. (d); 6320,
subd. (a).)
13
 In evaluating whether the requesting party has a reasonable apprehension of future
abuse, “the existence of the initial order certainly is relevant and the underlying findings
and facts supporting that order often will be enough in themselves to provide the
necessary proof to satisfy that test.” (Ritchie, supra, 115 Cal.App.4th at p. 1291.) “Also
potentially relevant are any significant changes in the circumstances surrounding the
events justifying the initial protective order. For instance, have the restrained and
protected parties moved on with their lives so far that the opportunity and likelihood of
future abuse has diminished to the degree they no longer support a renewal of the order?”
(Ibid.) Also relevant are the seriousness and degree of risk, such as whether it involves
potential physical abuse, and the burdens the protective order imposes on the restrained
person, such as interference with job opportunities. (Ibid.)
“[T]he physical security of the protected party trumps all of these burdens the
original or renewed protective order may impose on the restrained party. Thus, where the
protected party has a „reasonable apprehension‟ of future physical abuse if the current
protective order expires, that order should be renewed despite any burdens this inflicts on
the restrained party.” (Ritchie, supra, 115 Cal.App.4th at p. 1292.) A defendant‟s
conduct can place a victim in reasonable fear of serious bodily injury without involving
any violence. (Id. at p. 1299.)
In challenging a renewal order, the restrained party is not permitted “to challenge
the truth of the evidence and findings underlying the initial order[.]” (Ritchie, supra, 115
Cal.App.4th at p. 1290.) We review the trial court‟s ruling under an abuse of discretion
standard, to determine “ „whether the trial court exceeded the bounds of reason. When
two or more inferences can reasonably be deduced from the facts, the reviewing court has
no authority to substitute its decision for that of the trial court.‟ ” (Gonzalez v. Munoz
(2007) 156 Cal.App.4th 413, 420.)
B. Analysis
Bowen argues the trial court erred in renewing the restraining order for several
reasons. First, he contends, rather than there being any physical abuse or threat of
physical abuse, involved, before the court “[a]t most was the claim that [Bowen] had

14
relationships with members of Lister‟s family which Lister found divisive, and that
[Bowen] was socializing or dining in the City of Hayward, when he lives in San
Francisco. There is no evidence that, in so doing, [Bowen] violated the restraining
order.”
Next, Bowen, noting that Lister‟s sister referred to Lister as “paranoid,” contends
that Lister‟s apprehension was unreasonable. “The fear that the service of court papers
could be a subterfuge for the sending of anthrax is plainly unreasonable.”
Next, Bowen contends the trial court erred by failing to consider the burden
imposed by the restraining order on him in light of the record “being replete with
information regarding Bowen‟s contacts with the CATS organization,” which, Bowen
contends, “has helped him to maintain 14 years of sobriety.” He also contends that he
was prepared to testify that the restraining order “creates a substantial impediment to his
ability to secure work,” apparently because it purportedly harms his business and
reputational interests before the court abruptly cut off testimony at the end of the
November 9 hearing.
Bowen concludes that, in light of the restraining order being on the basis of non-
violent conduct, mostly between Bowen and third parties, and all in the “remote past”
except for his brief entry into the CATS building at the invitation of the director of the
office in response to a “crisis,” the court did not properly consider the factors enumerated
in Ritchie and incorrectly renewed the restraining order.
Lister responds with a number of arguments in defense of the court‟s order. We
need not review them all. Bowen‟s contentions are unconvincing in light of evidence that
he knowingly violated the protective order on July 7, 2011 in a manner that caused
reasonable apprehension to Lister, particularly considered with the evidence of stalking
that led to the court‟s issuance of the initial restraining order, and the trial court‟s
continuing to allow him access to certain CATS offices for income-producing purposes.
The trial court placed great emphasis on Bowen‟s July 7, 2011 violation in its
ruling, finding Bowen‟s knowing violation to be “very concerning.” Bowen gives us no
reason to conclude the court‟s evaluation exceeded the bounds of reason. As the court

15
noted, the facts indicate that Bowen knew the terms and scope of the protective order,
and Bowen did not, and does not, challenge this. Instead, he emphasizes that his visit to
CATS involved a “crisis” and was by invitation. He fails to explain why these
circumstances excuse his knowing violation, and we can think of none. The record
indicates that the court was aware of CATS‟s activities and Bowen‟s history with it when
it issued its initial restraining order and nonetheless prohibited him from the activity he
engaged in on July 7, 2011. Assuming the circumstances that day were as described by
Bowen, it can be reasonably concluded from the record that he entered the CATS
building in knowing defiance of the order and without making any effort to obey it, such
as by attempting to be of assistance off-site. It almost goes without saying that any
violation of a restraining order is very serious, and gives very significant support for
renewal of a restraining order. Nonetheless, apparently it needs to be said here,
particularly in light of the characterization of this violation in Bowen‟s reply brief as “a
de minimis and technical violation if at all.”
Bowen‟s July 7, 2011 violation of the restraining order is particularly significant
in light of the facts underlying the issuance of the initial restraining order, which the court
also referred to in its November 9 ruling. Lister rightly points out that Bowen‟s prior
stalking, like his recent violation, occurred around Lister‟s workplace, and it was
reasonable for the court to conclude his recent violation made her feel apprehensive about
her safety there under the circumstances. The evidence presented at the November 9
hearing amply supported this conclusion. It indicated that she stayed away from her
workplace and, according to a coworker, even after she returned to work, “was very
distressed—crying, unable to focus on her . . . case load, in fear . . . that her work area is
no longer a safe place.”
As we have discussed, the underlying findings and facts supporting an initial order
“often will be enough in themselves to provide the necessary proof” to renew the
protective order. (Ritchie, supra, 115 Cal.App.4th at p. 1291.) We need not make such a
determination here in light of Bowen‟s July 7, 2011 violation. The court was within its
discretion to conclude that the evidence together indicated it was more probable than not

16
there was a sufficient risk of future abuse to find that Lister‟s apprehension was genuine
and reasonable. (See Avalos v. Perez (2011) 196 Cal.App.4th 773, 777 [although there
had been no contact during the two-year term of the restraining order, a visit by the
restrained party‟s friend to the protected party‟s restaurant workplace to deliver
“greetings” from the restrained party, along with the initial mental and physical abuse,
was “ample” support for the protected party‟s continued fear].)
As for Bowen‟s summary argument that the court failed to consider or inquire
about Bowen‟s contacts with the CATS organization in weighing the burden of the
restraining order on him, the record indicates this was a topic referred to in the testimony
and known by the court. The court‟s renewed restraining order, as did the prior orders,
plainly took the burden into account when it ordered that Lister could come within 100
yards of four CATS offices “for the sole purpose of conducting any income-producing
matters requiring [Bowen] to be present.” Bowen fails to establish that the court abused
its discretion in determining this struck a proper balance between the interests of the
parties.
Finally, Bowen‟s argument that the court gave insufficient attention to the
“substantial impediment to his ability, as a contractor, to secure work” caused by the
restraining order because it “abruptly” closed testimony at the end of the November 9
hearing is also unpersuasive. The court gave Bowen the opportunity to present
testimony. The record indicates his counsel questioned Bowen until she indicated that
she had no more questions, Lister cross-examined him, Bowen‟s counsel conducted a
brief re-direct examination and stated she had no further questions, and Bowen‟s counsel
then confirmed to the court that it had heard all the testimony she intended to call.
Bowen‟s record citation in support of his argument does not establish that the court
abruptly closed testimony. Therefore, we find no merit in this argument.
In short, we find the trial court made no error and did not abuse its discretion in
renewing the restraining order against Bowen based on the evidence and considerations
we have discussed herein. In light of our conclusion, we do not discuss the other
evidence cited by the parties. We also have no need to discuss Bowen‟s additional

17
argument that the trial court erred by relying on the fact of Bowen‟s litigation as a ground
for renewal of the restraining order. However, given the attention paid to this issue at
oral argument by the parties, we are obliged to comment in the event that there are further
proceedings below. We are decidedly unpersuaded by the argument, to the extent Bowen
asserts it, that a trial court cannot, as a matter of law, rely on a party‟s litigation conduct
in determining whether or not a restraining order should be renewed. We see no reason
why a court, along with findings that it might make about such things as a party‟s
inappropriate demeanor in court or troublesome statements as a witness, cannot also find,
where appropriate, that a party‟s litigation strategies and tactics are evidence of
inappropriate behavior that provides grounds for a restraining order‟s renewal.
Nonetheless, we do not need to, and do not, make a determination of this issue herein.
We also do not address Bowen‟s argument in his opening brief, as part of this
“litigation” claim, that the court unfairly struck, as not probative, his counsel‟s attempts
to question Lister about her motive for seeking to renew the restraining order. In his
reply brief, Bowen argues this action by the court violated due process and Evidence
Code section 788, and that these are independent grounds for finding error. We disregard
this argument because it is tardily made without explanation for the first time in Bowen‟s
reply brief. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3 [“[p]oints raised
in the reply brief for the first time will not be considered, unless good reason is shown for
failure to present them before”].)
III. Overbreadth
Bowen also argues that the trial court erred by issuing an overbroad injunction that
improperly invaded his constitutionally protected associational interests by renewing the
restraining order “without regard for [Bowen‟s] stated, long-standing relationship with
the social service organization for which [Lister] works primarily „in the field,‟ ” which
order “barred him from either receiving or giving treatment to fellow recovering
alcoholics, without any inquiry into the potential overbreadth of the order.” We disagree.
Bowen similarly argued in his previous appeal that the initial restraining order was
unconstitutionally overbroad because it barred him from contacting Lister‟s family

18
members. We explained in that opinion that our Supreme Court has stated that “although
the Constitution recognizes and shields from government intrusion a limited right of
association, it does not recognize „a generalized right of “social association.” ‟ ” (People
ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1110). The United States Supreme Court
“has identified two kinds of associations entitled to First Amendment protection—those
with an „intrinsic‟ or „intimate‟ value, and those that are „instrumental‟ to forms of
religious and political expression and activity.” (Ibid.)
Bowen does not establish that either interest is implicated by the court‟s order, or
how his rights have been violated, particularly in light of the court‟s allowing him contact
with certain CATS offices for income-producing purposes. His sparse argument does not
cite to any evidence establishing that the court‟s order bars him from participating in
activities that he would otherwise participate in, nor to any legal authority beyond the
most general in arguing that a constitutional violation has occurred under the present
circumstances. “ „A judgment or order of the lower court is presumed correct. All
intendments and presumptions are indulged to support it on matters as to which the
record is silent, and error must be affirmatively shown. This is not only a general
principle of appellate practice but an ingredient of the constitutional doctrine of reversible
error.‟ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “To demonstrate error,
appellant must present meaningful legal analysis supported by citations to authority and
citations to facts in the record that support the claim of error.” “[C]onclusory claims of
error will fail.” (In re S.C. (2006) 138 Cal.App.4th 396, 408.) Bowen‟s conclusory claim
of error does so here.
DISPOSITION

The court‟s order is affirmed. Lister is awarded costs of appeal.

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 _________________________
Lambden, J.

We concur:

_________________________
Kline, P.J.

_________________________
Richman, J.

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