APPEAL COURT REVERSES DISTURBING THE PEACE DV RESTRAINING ORDER
APPEAL COURT REVERSES DISTURBING THE PEACE DV RESTRAINING ORDER
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APPEAL COURT REVERSES DISTURBING THE PEACE DV RESTRAINING ORDER

| Mar 28, 2020 | Firm News

Julia Pels appeals from a restraining order issued under the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.) at the request of her former girlfriend Jennifer Curcio.

Curcio and Pels used to date. Their relationship ended in early  2016. They both are comedic performers. On November 2, 2018, Curcio filed a Judicial Council form DV-100 request for a domestic violence restraining order against Pels. The form asks the applicant to describe the most recent abuse and any past abuse. Curcio stated the most recent abuse occurred October 16, 2018, and Pels had abused her from November 2015 through the present.2 Curcio attached a declaration to describe the abuse: On October 16, 2018, “Pels reached out to people” at the theater where Curcio performed “in an attempt to have [Curcio] banned by falsely accusing [her] of physical [and] sexual assault.” Curcio stated that when she was not banned from the theater, Pels “publicly posted on social media with [her] name [and] the accusations.” Curcio declared “multiple friends” sent her “screen shots from [Pels’s] social media accounts vaguely accusing [her] of abuse [and] urging people not to book [her] on comedy shows.”

Curcio accused Pels of threatening, in December 2015, “to ruin [her] reputation with false accusations of abuse, if [she] ever crossed her.” She also asserted that during their relationship in November 2015, she awoke to a “blow to [her] head” after falling asleep during an intimate encounter with Pels. Curcio stated that after they broke up in early 2016, Pels tried to get into comedy shows where Curcio was performing and “behaved aggressively” when she was not let in. When Pels “made an aggressive attempt to get into” one of Curcio’s shows in March 2016, the host banned Pels from the show. Curcio also declared Pels waited outside the front door of her apartment in March 2016 and would not leave until Curcio had two friends come over. Curcio described Pels as coming to one of her comedy shows in January 2018 and trying to get “physically close” to her, despite Curcio’s “attempts to get away from her.”

She stated Pels “has also tried to be booked on the same shows as me [and] has occasionally heckled me.” She said she wanted the restraining order because she “talked” to Pels’s “ex.” Curcio described her conversation with the woman. She attached a text message the woman sent to her as an exhibit to her petition. In it the woman described Pels as “unstable, dangerous, and [a] pathologically lying person.” After describing the woman’s account of her relationship with Pels, Curcio asserted, “This is the repeated pattern of explosive, volatile behavior that makes me feel scared of Julia Pels. Her obsession [and] fixation on me for the last 3 years since our breakup also makes me feel threatened [and] like this will escalate to physical abuse again.” Curcio attached several exhibits to her petition, including what she described as Pels’s “public[ ] social media post, accusing me of physical/sexual assault [and] likening booking me on comedy shows to supporting a rapist.”

Because it is the primary basis for the restraining, Pels’s Facebook post as it originally appears in the record is reproduced:

“I HAVE WAITED THREE YEARS to say this. with all the talk of equality and ‘believing women,’ I thought it was time to share my story. as much as i’ve wanted to write this post, i’ve also dreaded it. like most abuse victims, we are afraid we won’t be believed or we will be shamed for telling the truth. but i’m NOT a victim, i’m a survivor and i’m NOT afraid to tell the truth anymore. “JEN CURCIO (yes, i just outted my abuser) was SEVERELY AND DISTURBINGLY ABUSIVE TO ME in the six months we dated. she still abused ME EVEN AFTER i broke up with her. she gave me ptsd among other things.

“NOW, i’m here to say this to all of the ‘FEMINISTS’ out there. if you are going to believe ALL WOMEN, that goes for QUEER women as well. men are not the only predators in this world, unfortunately. women, YES WOMEN, can be just as bad. “AND, FOR THE RECORD it’s not a ‘she said/ she said.’ i have proof. wanna see the death threats from her friends, pictures of bruises or recordings of her verbally accosting me? i’m tired of keeping my mouth shut. she doesn’t even deserve this post, but other women  5 deserve to be SAFE. that’s the ONLY reason why i’m telling this story.

“WHEN YOU BOOK HER ON YOUR SHOWS, BEFRIEND HER, PLAY ON IMPROV TEAMS WITH HER YOU, ARE ENABLING AN ABUSER. IT IS LIKE SUPPORTING A RAPIST, would you book a male comic rapist or abuser of any sort? LET US ALL STOP BEING HYPOCRITICAL AND BELIEVE ALL WOMEN, including me. “AND TO ALL OF MY FRIENDS THAT HAVE AND DO BELIEVE AND SUPPORT ME, i love you infinitely.

TO THOSE that don’t believe me, unfollow me now! “p.s. she has abused other women and even improv members so please be careful. she is currently under investigation by multiple theatres.”

Curcio also attached screen shots of messages from her friends commenting about Pels and a “cease and desist” letter she sent to Pels in October 2018 after the Facebook post. Curcio checked the boxes on the form to request personal conduct orders, including that Pels be restrained from harassing or disturbing Curcio’s peace, a stay-away order requiring Pels to stay 100 yards away from Curcio, and the right to record any communication that violated the court’s orders. Curcio also asked the court “to order [Pels] to stop posting about me on social media platforms.”

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 (Davila & Mejia); Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 782; accord, §§ 6220, 6300.)

Abuse includes “intentionally or recklessly caus[ing] or attempt[ing] to cause bodily injury”; “[s]exual assault”; “plac[ing] a person in reasonable apprehension of imminent serious bodily injury to that person or to another”; and “engag[ing] in any behavior that has been or could be enjoined” under section 6320. (§ 6203, subd. (a).) Behavior that may be enjoined under section 6320 relevant to this appeal includes “disturbing the peace of  the other party” (§ 6320, subd. (a)), which “may be properly understood as conduct that destroys [another’s] mental or emotional calm.” (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1496-1497 (Nadkarni).) “Thus, section 6320 provides that ‘the requisite abuse need not be actual infliction of physical injury or assault.’ ” (Id. at p. 1496.) The DVPA vests the court with discretion to issue a restraining order “simply on the basis of an affidavit showing past abuse.” (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334, 337-338 [reversing summary denial of TRO].)

The burden of proof is 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.) The DVPA “confer[s] a discretion designed to be exercised liberally, at least more liberally than a trial court’s discretion to restrain civil harassment generally.” (Nakamura, at p. 334.)

Courts of Appeal have found conduct involving communications such as text messages, email, and social media constitutes abuse under the DVPA for disturbing the petitioner’s peace. In defining “disturbing the peace” under the DVPA as “conduct that destroys [another’s] mental or emotional calm,” the Sixth District Court of Appeal in Nadkarni concluded the petitioner’s application for a restraining order was facially sufficient where she alleged her ex-husband accessed, read, and publicly disclosed the content of her confidential emails, which caused her to suffer embarrassment and “to fear for her safety.” (Nadkarni, supra, 173 Cal.App.4th at pp. 1497-1499 [reversing dismissal of application for restraining order].)

The court concluded the ex-husband’s conduct with respect to the e-mail account allegedly caused the “destruction of [petitioner’s] mental or emotional calm and could, if found to be true, constitute ‘disturbing the peace of’ ” the ex-wife “sufficient for a showing of abuse under the DVPA.” (Id. at pp. 1498-1499.)

The California Court of Appeal stated, Pels’s single, private Facebook post accusing Curcio of abusing her is a far cry from the conduct described in cited and above cases. Pels expressed political views and posted her opinion of Curcio to her own private social media account. Curcio herself told the court she believed the post “was not public.” Curcio also presented no evidence Pels sent her harassing, threatening, or unwanted texts or e-mails, as in Burquet, or social media posts, for example. Indeed, Curcio told the court she had not been in contact with Pels. Nor is there evidence Pels published or distributed to third parties Curcio’s private information or messages, as was the case in both Nadkarni and  In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1419. Curcio certainly never claimed the Facebook post included her confidential information

The California Court of Appeal noted, the DVPA was not enacted to address all disputes between former couples, or to create an alternative forum for resolution of every dispute between such individuals. If Pels’s Facebook post is libelous, for example, Curcio may seek recourse through a defamation suit.

As the party seeking the restraining order, Curcio was required to prove past abuse by a preponderance of the evidence. (Davila & Mejia, supra, 29 Cal.App.5th 220, at p. 226 [“The DVPA requires a showing of past abuse by a preponderance of the evidence.”].)

The California Court of Appeal agreed with Pels that the trial court’s finding she disturbed the peace is not supported by substantial evidence and the trial court improperly shifted the burden of proof of past abuse to her. The California Court of Appeal reversed.

See Curcio v Pels.

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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