APPEAL COURT AFFIRMS GRANTING OF MUTUAL DV RESTRAINING ORDERS!
APPEAL COURT AFFIRMS GRANTING OF MUTUAL DV RESTRAINING ORDERS!
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APPEAL COURT AFFIRMS GRANTING OF MUTUAL DV RESTRAINING ORDERS!

| Mar 31, 2020 | Firm News

Appellant Kyle Linley Everard (Kyle) appeals the order entered after a long-cause hearing in which the court granted reciprocal domestic violence restraining orders (sometimes, DVRO(s)) against Kyle and respondent spouse Valerie Ann Everard  2 (Valerie).

In issuing the DVROs, the court pursuant to Family Code2 section 6305 found both parties acted as primary aggressors and that neither party acted primarily in self-defense in multiple domestic violence incidents.

Kyle on appeal claims the court erred in including him in the DVROs based on its admission of an unauthenticated 2013 police report offered by Valerie, which report Kyle claims was allegedly the exclusive basis for the court’s findings against him under section 6305.

The court at the conclusion of the multiday hearing ruled in part as follows:

“This Court finds that each party in this case has submitted sufficient evidence for this court to grant mutual restraining orders pursuant to [section] 6305. As both parties have met the burden by a preponderance of the evidence pursuant to Evidence Code [section] 115, that domestic violence has occurred as defined by the Domestic Violence Prevention Act. Both parties acted—have acted in this court’s findings as primary aggressors at different times during the many verbal and physical altercations that were testified to by each of the parties in this Court. The Court finds that the domestic violence in this relationship has been prevalent throughout the martial relationship and that neither party necessarily acted primarily in self-defense.[6] The Court does not find either party credible, that each acted primarily in self-defense, as the evidence before the Court does not support that position.”

The court continued that it found Valerie’s testimony “credible in her description of the physical altercations that occurred between her and the petitioner, Mr. Everard, based on her demeanor during her testimony.

Pursuant to the Domestic Violence Prevention Act (DVPA) (§ 6200 et seq.), a court may 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.’ ” (Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 782; accord, § 6300 [providing in part, “(a) An order may be issued under this part to restrain any person for the purpose specified in Section 6220, if an affidavit or testimony and any additional information provided to the court pursuant to Section 6306, shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse”].)

As relevant here, the DVPA defines domestic violence as abuse perpetrated against a spouse or the child of a party. (§ 6211, subds. (a) & (e).) Abuse includes “plac[ing] a person in reasonable apprehension of imminent serious bodily injury to that person or to another” or “engag[ing] in any behavior that has been or could be enjoined pursuant to Section 6320.” (§ 6203, subd. (a)(3) & (4).) Enjoined conduct includes molesting, striking, stalking, threatening, or harassing. (§ 6320, subd. (a).)

The DVPA requires a showing of past abuse by a preponderance of the evidence. (Cooper v. Bettinger (2015) 242 Cal.App.4th 77, 90, fn. 14; Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137.) At issue here is section 6305, which provides: “(a) The court shall not issue a mutual order enjoining the parties from specific acts of abuse described in Section 6320  20 unless both of the following apply: [¶] (1) Both parties personally appear and each party presents written evidence of abuse or domestic violence in an application for relief using a mandatory Judicial Council restraining order application form. For purposes of this paragraph, written evidence of abuse or domestic violence in a responsive pleading does not satisfy the party’s obligation to present written evidence of abuse or domestic violence. By July 1, 2016, the Judicial Council shall modify forms as necessary to provide notice of this information. [¶] (2) The court makes detailed findings of fact indicating that both parties acted as a primary aggressor and that neither party acted primarily in self-defense. [¶] (b) For purposes of subdivision (a), in determining if both parties acted primarily as aggressors, the court shall consider the provisions concerning dominant aggressors set forth in paragraph (3) of subdivision (c) of Section 836 of the Penal Code.”

Although there is a dearth of authority on what constitutes “detailed findings of fact” under subdivision (a)(2) of section 6305, we note in other contexts the concept of detailed findings has been understood to require sufficient factual findings or analysis for a reviewing court to assess the factual or legal basis for the trial court’s decision. (See e.g., LeVesque v. Workmen’s Comp. App. Bd. (1970) 1 Cal.3d 627, 633–634.

On this record,  the California Court of Appeal concluded the court properly exercised its discretion in finding Kyle also subject to the DVROs. (See In re Marriage of Evilsizor & Sweeney, (2015) 237 Cal.App.4th 1416,1426–1427 [reviewing the grant or denial of a DVRO for abuse of discretion].)

Because California Court of Appeal concluded substantial evidence in the record supports the court’s findings independent of the 2013 police report, and because we further conclude the court’s findings satisfied section 6305, they affirmed the DVRO against Kyle.

See IRMO of Kyle and Valerie Everard.

If you are 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!  Call (209) 596-4263 or (510) 736-4033  immediately!

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.  No Guarantees Represented.

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