CAN A DVPA RESTRAINING ORDER & CRIMINAL PROTECTIVE COEXIST? YES!
CAN A DVPA RESTRAINING ORDER & CRIMINAL PROTECTIVE COEXIST? YES!
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CAN A DVPA RESTRAINING ORDER & CRIMINAL PROTECTIVE COEXIST? YES!

| May 31, 2019 | Firm News

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Appellant Adali Lugo filed a request for a domestic violence restraining order (DVRO) against her husband, Moises Corona, under the Domestic Violence Prevention Act (DVPA) (Family Code, section 6200 et seq.1). The family court denied her request on the basis that a criminal protective order was already in place. Lugo asserts that the family court erred, because a criminal protective order does not bar the entry of a DVRO.

The purpose of the DVPA “is to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence.” (§ 6220.) Under the DVPA, the court is required to “consider the totality of the circumstances in determining whether to grant or deny a petition for relief.” (§ 6301, subd. (c).)

The DVPA states that the “remedies provided in this division are in addition to any other civil or criminal remedies that may be available to the petitioner.” (§ 6227.) When a statute states that its remedies are “‘in addition to’” other available remedies, “its remedies are ‘nonexclusive.’” (Bright v. 99¢ Only Stores (2010) 189 Cal.App.4th 1472, 1481.) Section 6383, subdivision (h)(2) discusses the priority of enforcing protective orders “[i]f there is more than one order issued,” including “[i]f there are both civil and criminal orders regarding the same parties.” Thus, the DVPA makes clear that both criminal and civil protective orders may coexist and address the same parties.

The Penal Code also acknowledges that criminal and civil protective orders may address the same parties. Penal Code section 136.2, subdivision (e)(2), addressing protective orders in criminal cases involving domestic violence, states that “a restraining order or protective order against the defendant issued by the criminal court in that case has precedence in enforcement over a civil court order against the defendant.” Subdivision (f) of the same section directed the Judicial Council to provide protocols “to provide for the timely coordination of all orders against the same defendant and in favor of the same named victim or victims,” including “mechanisms for ensuring appropriate communication and information sharing between criminal, family, and juvenile courts concerning orders and cases that involve the same parties, and shall permit a family or juvenile court order to coexist with a criminal court protective order subject to the following conditions.” (Pen. Code, § 136.2, subd. (f).)

The Legislature has made “consistent and repeated efforts to ensure the courts utilize all available tools, including section 136.2, to safeguard victims of domestic abuse. (See, e.g., Stats.2001, ch. 698, § 1 . . . [‘The Legislature recognizes that both criminal courts and civil courts may issue protective orders or restraining orders to prevent domestic violence. . . .’].)” (Babalola v. Superior Court (2011) 192 Cal.App.4th 948, 963.)

Thus, it is clear that criminal and civil protective orders may coexist, and the issuance of one does not bar the other.  The California Court of Appeal agreed and reversed.

See Lugo v Corona.

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.  Contact the Law Office of Robert Rodriguez!

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.

LEGAL ADVERTISEMENT – Robert Rodriguez Best Divorce & Family Law Attorney in Pleasanton California.