When a couple repeatedly fought and a domestic violence restraining order (DVRO) was issued against the man, the woman tried to force her abusive boyfriend to vacate the apartment. But the trial judge declined to issue a move-out order. Instead, because both names were on the lease, he left the decision up to the landlord. The appellate court found that the trial judge erred. The justices determined that the landlord had no legal authority to decide and remanded the case to the trial judge to determine who gets to stay and who must go.

In an unpublished, “By the Court” opinion signed by Acting Presiding Justices Charles Poochigian, Jennifer R.S. Detjen and Thomas DeSantos, California’s Fifth District Court of Appeal reversed part of the opinion by Merced Superior Court Judge Donald E. Shaver. The court said that Shaver’s decision to issue the DVRO and stay-away order against the boyfriend, Richard Gallegos, was correct. But Shaver also should have decided whether to grant the girlfriend Nathalie Weil’s move-out order.

Weil appealed from the DVRO, claiming the trial court “abused its discretion” when it denied her request for a move-out order. She said the landlord lacked the legal authority to rule on the eviction. The appellate court agreed and wrote that the trial judge “applied an erroneous legal standard” as it remanded the case back to him.

The case began when Weil filed a DVRO request in November 2021 asking for personal conduct, stay-away and move-out orders. At the hearing, Weil explained that she and Gallegos lived in a leased apartment. Both names were on the lease, but Weil told the court she made the payments and performed her job remotely from her home. Unlike Weil, Gallegos was unemployed and had a history of criminal violence which included assault with a deadly weapon, aggravated battery, and corporal punishment on a spouse. He spent time in prison and when he was released, his wife “died from a fall down a flight of stairs.”

Gallegos’ behavior did not improve when he lived with Weil. He returned to his old ways and on several occasions, the police were called to the apartment he now shared with Weil. For example, one time he threatened her with a knife, tore her clothing, and said he was going to take her on a long ride and he would “come back alone.”

In September 2021, Weil tried to leave. Gallegos’ abuse had escalated and he became more physically violent. On one occasion, for example, Gallegos pushed her and she sustained bruises on her chest, back, buttocks and legs. The following month, he struck her again, called her a “stupid bitch,” and forced her on the ground, pinning her beneath him and almost causing her to lose consciousness. After more violence, she finally escaped and ran to a neighbor’s house to call the police.

Gallegos responded to Weil’s requests to the court by agreeing to his personal conduct orders under a DVRO but objecting to the stay-away and move-out requests. He said he had been the one who found the apartment, paid $3,000 for the first and last month’s rent, and added Weil to the lease at a later date. He said she had no proof of injury, and it was her actions that provoked his violent responses.

After hearing both litigants, each of whom gave different versions of the brawls and police responses, Judge Shaver said that the truth of the “actual event(s) probably lie somewhere between the two versions here." In addition, because both parties wanted the apartment and were on the lease, Shaver said that whoever stayed would have to renegotiate a new lease, and “it would be up to the landlord as to which party would stay.” He explained that the landlord could run various background and financial checks to help him make his decision. Also, the landlord would ultimately be the one who would have to collect the rent.

Judge Shaver removed the move-out order from the three-year DVRO but left the 100-yard stay-away order. Weil’s appeal was singularly focused on Shaver’s decision to exclude the move-out order. The appellate court then cited relevant law. They wrote that the Domestic Violence Prevention Act (DVPA) authorizes the court to “issue a restraining order… (to prevent) acts of harassment or abuse against a cohabitant…” Under the law, a person can be “excluded from a family dwelling” if the person who will stay has a right to possess the property, the excluded party has assaulted the person who will stay, and “physical or emotional hard would otherwise result.”

The appellate court then disagreed with Shaver’s reasoning that he did not have the power to exclude Gallegos since both his and Weil’s names were on the lease. They cited the subdivision of the DVPA that clearly gives the trial court the power to “exclude Gallegos…regardless of which party…is the lessee of the dwelling.” When Shaver failed to do so, he was “mistaken.”

The landlord, the opinion said, “does not have the legal authority to order the exclusion of one over the other.” Landlords do not have the authority to end tenancy or change locks without “just cause” and could not force either party to vacate the property. The “By the Court” opinion concluded that the trial court had “acted under the misapprehension that it did not have the power to issue an order excluding Gallegos from the parties’ apartment.” Shaver did not apply the correct standard in deciding to issue a move-out order. In a somewhat harsh conclusion, the appellate court wrote that the trial court had abused its discretion, and either had “an erroneous understanding of applicable law” or “an unawareness of the full scope of its discretion.”

The trial court was ordered to “exercise its discretion in accordance with this opinion.”