APPEAL COURT AFFIRMS DENIAL OF DV RESTRAINING ORDER IN #ME2 CASE
APPEAL COURT AFFIRMS DENIAL OF DV RESTRAINING ORDER IN #ME2 CASE
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APPEAL COURT AFFIRMS DENIAL OF DV RESTRAINING ORDER IN #ME2 CASE

| Apr 8, 2020 | Firm News

Appellant Jennifer K. and respondent Shane K. are the parents of a daughter they have jointly parented since her birth in 2009. On December 22, 2017, 10 years after a “dating” relationship had ended, appellant filed a request for a domestic violence restraining order (DVRO) from the San Francisco County Superior Court.

The request stated that respondent “has been verbally abusive and physically violent with me since I met him in July or August of 2007. In fact, though I love her dearly and feel grateful every day to be her parent, our daughter is the product of a rape that [respondent] perpetrated on me in 2009, a week after I had stopped dating him. It began while I was asleep and continued after I resisted. Since this happened so long ago, I will spare the court the details; I raised this to shed light on my fear of [respondent] and why it is reasonable, my having endured his abuse for many years, abuse which continues.”

The request for a DVRO went on to describe the alleged rape and certain other violent acts assertedly demonstrating respondent’s abusive treatment of appellant since the birth of their daughter. These matters were the subject of a bench trial lasting six afternoons, at which the court heard the testimony of the parties and 18 other witnesses, 8 on behalf of appellant and 10 on behalf of respondent.

On May 23, 2018, after the receipt of testimony and closing arguments of counsel, the court denied appellant’s request for a DVRO, dissolved all provisions of the temporary restraining order that had been granted pending the hearing on the DVRO, and explained from the bench the bases of its determinations at considerable length.

Appellant asks the California Court of Appeal to reverse denial of the restraining order, issue a protective order, reverse the custody order, and remand that matter “for reconsideration based on the presumption against granting custody to a perpetrator of domestic violence.”

Appellant also requested that the California Court of Appeal remand this case to a different judge.

Appellant’s opening brief focuses on the three incidents of alleged domestic violence by respondent that the trial court found did not constitute “abuse” within the meaning of the DVPA: (1) the alleged rape on January 1, 2009; (2) punching a refrigerator door near appellant’s head in 2011; and (3) slamming appellant into a door frame on November 10, 2017. However, the only allegedly abusive act as to which appellant challenges the trial court’s ruling is the punching of the refrigerator door.

The court’s ruling on the foregoing issues is as follows:

“It’s been a long trial. I’ve heard a lot of testimony. I’ve had a lot of chance to see the witnesses and hear the evidence. I’ve reviewed the testimony again and the transcripts and I’ve reviewed the exhibits. “I am denying the restraining order. I’m going to tell you why. I want to tell you on the record so you understand why I’m denying it. I’m going to talk about the specific incidents, [starting with] the door. Based on the eyewitnesses, the configuration of the doorway, I think it was more likely that the father was shutting the door to end the shouting match and that the mother moved into the breach to keep the door from closing.

“I think it’s much more likely that she tried to enter the house after being told not to do so. I don’t think that the father tried to slam her and [injure] her. That’s what I find after listening to the witnesses and the credibility of their stories. And that I think that narrative—that set of events is supported by the father’s wife who had a clear view. A deliberate slamming of the door on someone entering your house is a very violent act and the mother’s conduct after that event is not consistent with someone who was violently attacked and injured.

“I also find that the mother saw the door closing quickly and jumped forward to use her body to keep it from closing in an effort to get inside to get her daughter. I don’t find that the father closing the door to end a shouting match and inadvertently closing it on the mother is an act of domestic violence. “The refrigerator, I do believe that—I think the father admitted he punched that refrigerator. I do not believe he tried to hit the mother. Based on the evidence that was presented at trial, I think he vented his frustration in a physical way and he regretted it but did not try to injure the mother. That was no evidence . . . that the father communicated anything that was implied that the punch was a threat or an effort to hurt her.

“The rape, that’s obviously a very serious allegation. I listened to the evidence. It was seven years ago. I heard the testimony of both the witnesses who were there. They are completely inconsistent with one another. I have to look at the whole picture and other circumstances, the actions of the parties before and after. “What I see and the evidence based on that that was presented, seven years of conduct that is more consistent with two parents co-parenting in the best interests of the child. I did not see evidence that was consistent with what I would expect following a forcible rape.

“I also have to look at whether on balance that one event from seven years ago followed by conduct that I saw following that event and over the last seven years warrants the issuance of a DVRO. I don’t conclude that it does. “Ultimately, my conclusion is the testimony of the father on the issue of that forced nonconsensual sex was more credible than the mother.”

The DVPA “defines domestic violence as ‘abuse’ perpetrated against” enumerated individuals, including a former spouse or cohabitant. (Pen. Code, § 6211, subds. (a) and (b).) Its purpose is to prevent the recurrence of acts of such abuse and to provide for a separation of those involved in order to resolve the underlying causes. (Pen. Code, § 6220).) To this end, the DVPA provides for the issuance of restraining or “protective” orders, either ex parte or after hearing that enjoin specific acts of abuse. The DVPA defines “abuse” as either an intentional or reckless act that causes or attempts to cause bodily injury; an act of sexual assault; an act that places a person in reasonable apprehension of imminent serious bodily injury to himself or herself or to another; and an act that involves any behavior that has been or may be enjoined under section 6320.

The behavior that may be enjoined under section 6320 includes “molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing [and making] annoying telephone calls as described in section 653m of the Penal Code.” (Pen. Code, § 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. ([Pen. Code,] § 6320.) A trial court is vested with discretion to issue a protective order under the DVPA simply on the basis of an affidavit showing past abuse. Specifically, it ‘may’ issue an order ‘with or without notice,’ to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit . . . shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.’ ([Pen. Code,] § 6300.)” (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334 (Nakamura).)

In Nakamura, the DVPA defines “abuse” as “either an intentional or reckless act that causes or attempts to cause bodily injury”; an act of sexual assault; “[or] an act that places a person in reasonable apprehension of imminent serious bodily injury to himself or herself or to another.” (Nakamura, supra, 156 Cal.App.4th at p. 334, italics added.)

the reasoning of Nakamura and Cueto would require the granting of a DVRO only if appellant was able to show either that respondent’s punching of the refrigerator door was “an intentional or reckless act that causes or attempts to cause bodily injury” or “an act that places a person in reasonable apprehension of imminent serious bodily injury.” (Nakamura, supra, 156 Cal.App.4th at p. 334.)

The California Court of Appeal stated it shall deny the requests and affirm the judgment. The appeal presents two issues: whether the trial court erred in finding that one of respondent’s alleged prior acts did not constitute “abuse” within the meaning of the Domestic Violence Prevention Act (DVPA) (§ 6200 et seq.) and whether, as appellant also claims, “[g]ender bias disqualified the judicial officer as a matter of due process.”

“ ‘ “the probability of actual bias on the part of the judge or decisionmaker [that] is too high to be constitutionally tolerable,” ’ ” must be “based on an objective assessment of the circumstances in the particular case.” (Peo. v. Freeman, (1994), 47 Cal.4th 993, 996.)  An objective assessment of Judge Darwin’s conduct reveals it to be exemplary in every respect.

DISPOSITION:

For the foregoing reasons, the challenged rulings were affirmed.

See Jennifer K. v. Shane K.

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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