Michael Molinaro appealed from a restraining order issued under the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.).
At hearing, Michael objected to several parts of Bertha’s testimony, including a hearsay objection to their daughter’s statement about Michael’s threat to euthanize the dog. He also made a lay opinion objection to the testimony describing his behavior as “threatening.” The court overruled the objections, and the California Court of Appeal found no error in the evidentiary rulings. The court properly admitted the daughter’s out of court statement as circumstantial evidence of her state of mind―that is, why she was “upset” when she returned from visiting her dogs. (Evid. Code, § 1250, subd. (a)(1); see also People v. Frye (1985) 166 Cal.App.3d 941, 950 [“Evidence of a declarant’s statement is not hearsay if it relates facts other than declarant’s state of mind and is offered to circumstantially prove the declarant’s state of mind.”].) As for Michael’s lay opinion objection, the court properly received the testimony as evidence that Bertha felt threatened by Michael’s conduct. (Evid. Code, § 800; People v. Farnam (2002) 28 Cal.4th 107, 153 [“A lay witness may testify to an opinion if it is rationally based on the witness’s perception and if it is helpful to a clear understanding of his testimony.”].)
The California Court of Appeal held that under the DVPA, a court is authorized to issue a protective order “to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved” upon “reasonable proof of a past act or acts of abuse.” (In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220, 225, 228; Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 782; accord, §§ 6220, 6300.) Abuse includes “ ‘engag[ing] in any behavior that has been or could be enjoined’ ” under section 6320. (Davila, at p. 226; § 6203, subd. (a)(4).) Behavior that may be enjoined under section 6320 includes stalking, threatening, and harassing. (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334; accord, § 6320, subd. (a).) “A court may also enjoin ‘disturbing the peace of [another] party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.’ ” (Nakamura, at p. 334.)
On appeal, Michael contended for the first time in the proceedings that the Nadkarni court’s construction of “abuse” and “disturbing the peace” renders the DVPA unconstitutionally vague because it could allow “a mother [to] obtain a restraining order because her husband contacted her adult daughter.” He also argued the DVPA is facially vague because the phrase defining abuse as “any behavior that has been or could be enjoined pursuant to Section 6320” (§ 6203, subd. (a)(4), italics added) invites the judiciary to create definitions of “abuse” for conduct that “was never enjoined, but that ‘could be’ enjoined, such as ‘contacting’ a daughter, or ‘coming within a distance’ of a daughter.” Because Michael did not make this argument in the trial court, he forfeited this constitutional challenge by failing to raise it below. (In re Marriage of Minkin (2017) 11 Cal.App.5th 939, 958 (Minkin).) And, the argument lacks merit in any event.
Although the California Court of Appeal found the evidence sufficient to support the court’s issuance of a domestic violence restraining order, they concluded the part of the order prohibiting Michael from posting “anything about the case on Facebook” is overbroad and impermissibly infringes upon his constitutionally protected right of free speech.
“[P]rior restraints on speech . . . are the most serious and the least tolerable infringement on First Amendment rights.” (Nebraska Press Ass’n v. Stuart (1976) 427 U.S. 539, 559 (Nebraska Press).) Orders enjoining the right to speak on a particular topic are disfavored and presumptively invalid. (Id. at p. 558.) However, courts have recognized a prior restraint may be permissible under certain limited circumstances. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 143; see Hobbs v. County of Westchester (2d Cir. 2005) 397 F.3d 133, 149.
To establish a valid prior restraint under the federal Constitution, a proponent has the heavy burden to show the countervailing interest is compelling, the prior restraint is necessary and would be effective in promoting this interest, and less extreme measures are unavailable. (See Hobbs, supra, 397 F.3d at p. 149; see also Nebraska Press, supra, 427 U.S. at pp. 562-568.) A permissible order restraining future speech “must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order.” (Carroll v. President & Com’rs of Princess Anne (1968) 393 U.S. 175, 183-184.) T
The California Constitution is more protective of free speech rights than the federal Constitution, and California courts require “extraordinary circumstances” before a prior restraint may be imposed. (Wilson v. Superior Court of Los Angeles County (1975) 13 Cal.3d 652, 658-661; In re Marriage of Candiotti (1995) 34 Cal.App.4th 718, 724.) Nonetheless, in determining the validity of a prior restraint, California courts engage in an analysis of various factors similar to the federal constitutional analysis (Aguilar, supra, 21 Cal.4th at pp. 145- 146), and injunctive relief restraining speech under the California Constitution may be permissible where the relief is necessary to “protect private rights” and further a “sufficiently strong public policy” (id. at p. 167 (conc. opn. of Werdegar, J.)).
The California Court of Appeal concluded the part of the restraining order prohibiting Michael from posting anything about his divorce case on Facebook constituted an overbroad, invalid restraint on his freedom of speech. he California Court of Appeal therefore will reversed that provision and direct the trial court to strike it from the restraining order. The California Court of Appeal affirmed the restraining order in all other respects.
When faced with such circumstances in a family law matter, you need a skilled and knowledgeable attorney by your side protecting all of your interests.
Robert Rodriguez has litigated dozens of cases under the California DVPA, as well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, wrongful termination, workplace and employment matters including sexual harassment, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.
* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law. Robert D. Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California. Robert Rodriguez has practiced in the State of California Court of Appeal.
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