Molinaro v. Molinaro ( 2019 )

Filed 2/26/19; pub. order 3/28/19 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
BERTHA A. MOLINARO, B282014
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BD643016
v.
MICHAEL M. MOLINARO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Amy M. Pellman, Judge. Affirmed in part,
reversed in part, with directions.
Michael M. Molinaro, in pro. per., for Defendant and
Appellant.
Lauren Longeretta for Plaintiff and Respondent.
Geoffrey L. Graybill for The National Coalition for Men
as Amicus Curiae on behalf of Defendant and Appellant.
_________________________
Michael Molinaro appeals from a restraining order issued
under the Domestic Violence Prevention Act (DVPA) (Fam. Code,
§ 6200 et seq.).1 We conclude the part of the restraining order
prohibiting Michael from posting anything about his divorce case
on Facebook constitutes an overbroad, invalid restraint on his
freedom of speech. We therefore will reverse that provision and
direct the trial court to strike it from the restraining order. We
affirm the restraining order in all other respects.2
FACTS AND PROCEDURAL BACKGROUND
On July 11, 2016, Bertha Molinaro filed a petition for
dissolution of her marriage to her husband Michael, citing
“irreconcilable differences.” The Molinaros had been married
since June 1997.
On January 6, 2017, Bertha filed an ex parte application
for a domestic violence restraining order using the prescribed
Judicial Council Form DV-100. In a supporting declaration,
Bertha asserted the following: On January 1, 2017, Bertha began
to move out of the family home with the help of her siblings and
other family. After a verbal altercation with Bertha and some of
the family members, Michael moved his car to block the moving
truck from exiting the home’s driveway. Bertha called the police,
who eventually detained Michael. Later that day, she removed
the rest of her belongings from the house. Michael had physically
1 Statutory references are to the Family Code unless
otherwise noted. For clarity, we will refer to the parties by their
first names.
2 In his opening brief, Michael appeared to challenge a
custody and visitation order issued concurrently with the
domestic violence restraining order. However, at oral argument
he acknowledged the interim order is not subject to our appellate
jurisdiction.
2
restricted Bertha from leaving the home on two other occasions―
once by blocking the front door and another time by blocking her
car in the home’s carport. Before filing for divorce, Bertha had
installed locks on her bedroom door “because [Michael] was
acting erratic and [she] was afraid of him.” Michael threatened
to “throw a chair though the bedroom window” if she did not
remove the locks.
Bertha declared she was “afraid of what Michael might do
in retaliation for my moving out.” She continued, “I wanted to
keep my address confidential but he found out where I moved to
and he is now posting on social media derogatory comments
about me and he posted a picture of my new residence and he
included the address. He is angry at me for moving out and I am
afraid for my safety and the safety of my children.”
The application requested a domestic violence restraining
order (and a temporary restraining order in advance of a hearing)
commanding Michael to stay at least 100 yards away from Bertha
and their three children―their 18-year-old daughter and their
two sons, then ages 17 and 13, respectively. She also asked the
court to order Michael to attend a batterer intervention program.
On a separate Form DV-105, Bertha requested legal and physical
custody of the couple’s two minor sons, and no visitation for
Michael until the hearing.
The court denied the request for a temporary restraining
order and set a January 26, 2017 hearing to receive further
evidence on the application. In denying the temporary
restraining order, the court checked a box on Form DV-109
indicating: “The facts as stated in form DV-100 do not show
reasonable proof of a past act or acts of abuse.”
On January 26, 2017, Michael filed a request to continue
the hearing. The parties appeared before Judge Thomas Trent
Lewis the same day. Bertha did not oppose the request, but
3
asked that Michael “please stop posting everything about the
case on Facebook,” and “stop giving the children all of my
pleadings.” Michael responded that he had only given the
children copies of “the domestic violence restraining order, not of
the divorce petition.” When the court asked, “what makes it okay
to give the 13-year-old and the 17-year-old copies of the court
papers,” Michael answered, “My best judgment, Your Honor.”
The court explained to Michael that it intended to “issue an
order against you today that precludes you from discussing the
matter with the 13-year-old and the 17-year-old,” warning him
that courts may “consider parents insinuating children into the
court process” in making custody determinations. Michael
objected to the order, arguing Bertha had “emptied [their] home
equity of $250,000 [sic]” and “relocated [his] children to a mystery
house without informing [him].” The court acknowledged the
objection, but asked Michael to confirm he understood the terms
of the order. Michael responded, “Okay. I understand the what.
I question the sanity.” The court clarified the order did not
preclude Michael from posting on Facebook, except to the extent
those postings “would otherwise violate the no-discussion order.”
On the parties’ stipulation, the court continued the hearing
to February 15, 2017. Judge Lewis’s written order stated,
“Neither party is to discuss any aspect of the case with the minor
children until further order of the court―including Facebook
postings [about the] subject case matter.”
On February 15, 2017, the parties appeared before Judge
Amy M. Pellman. The court clerk swore both Bertha and
Michael. Bertha testified Michael had “showed up uninvited to
the house” where she and the couple’s children were living, had
posted on Facebook “about the divorce, about everything that’s
happening,” and had sent police to the house “to do a wellness
check on the kids” when she was at her teaching job. Bertha said
4
Michael “posted to Facebook that [she] stole $250,000 from [their]
home equity line, that [she] used it all and ran away with it.”
She continued, “He says that I’m crazy and having
hallucinations.” Bertha said Michael had concluded some emails
to her and her attorney with “F.O.A.D.” She looked the acronym
up and it “stands for fuck off and die.” Bertha testified she
“wasn’t sure” if the “F.O.A.D.” comment was directed at her or
her lawyer, but noted that Michael had called her “a bitch a few
times.” Bertha said Michael’s “name calling” was “unsettling”
and “very stressful.” She also testified the couple’s sons were
“both depressed” and their daughter “was particularly upset
because she had to go back to the house to visit her dogs and
[Michael] . . . threatened to euthanize the dogs.”
Bertha testified she “fear[ed] for her safety and [Michael’s]
conduct [was] just getting worse and worse.” She said Michael’s
behavior toward her at the earlier hearing was “threatening.”
She repeated, “I fear for my safety and that of my children.”3
3 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 we find 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
5
Michael declined the court’s invitation to cross-examine
Bertha, and said he would not testify on his own behalf. The
court asked if Michael planned to call any witnesses. He
responded, “I’d like to call my children.” The court denied the
request, stating, “I don’t need to hear” from the children.
Although Michael suggested that Judge Lewis had made a
“previous court order that [the children] attend,” he made no offer
of proof regarding the relevance of their testimony. When Judge
Pellman responded that she was not bound by the “previous
court,” which had not had the benefit of Bertha’s testimony,
Michael acknowledged the ruling and responded, “Quite sure.
No evidence.”4
The court granted Bertha’s application for a restraining
order, stating the order would be for three years and Michael was
to stay 100 yards away from Bertha and the three children. The
court also ordered Michael not “to post anything on Facebook . . .
in regards to this action” and “not to contact the mother or the
children regarding this action.”
on the witness’s perception and if it is helpful to a clear
understanding of his testimony.”].)
4 Michael argues the trial court erred by barring the
children’s testimony; however, as discussed, the record shows he
made no offer of proof, before the hearing he did not file and serve
a witness list with a brief description of the anticipated testimony
(see § 217, subd. (c)), and, on appeal, he has made no attempt to
show how he was prejudiced by the exclusion of the testimony.
He has forfeited the issue as a basis for appellate relief.
(See Citizens for Open Government v. City of Lodi (2012) 205
Cal. App. 4th 296, 308 [“appellant bears the burden to show it is
reasonably probable he or she would have received a more
favorable result at trial had the error not occurred”].)
6
The court asked Michael if he understood the order.
Michael responded, “No, I don’t. I think you’re insane. I don’t
understand a word you are saying. It lacks reason, Your Honor.
There was no evidentiary foundation for your order. And the
prior order of court dated January 6, 2017, that said the facts as
stated do not show reasonable proof of past act or acts of abuse
was the correct order.” The court acknowledged Michael’s
objection, and asked the parties what they requested regarding
custody and visitation of the minor children.
Bertha’s counsel asked to arrange “reasonable visitation
with the kids.” She suggested the parties go down to the
mediation office to “work out the parenting plan for the kids.”
The court suggested mediation might not be productive at the
moment, in view of Michael’s “behavior.” Michael interrupted the
court, demanding to know “[w]hat behavior.” The bailiff asked
Michael not to “scream,” and the court noted Michael had been
“[y]elling in court.”
The court ordered Michael would have monitored visits
with the children in “a neutral setting.” Michael asked that the
visits take place at the children’s residence. The court denied
the request, admonishing Michael that he was to stay 100 yards
away from the residence. The court also ordered that he was to
work with Bertha’s counsel to find a professional monitor.
Michael responded, “No, I’m not.” The court granted legal and
physical custody to Bertha.
At Bertha’s request, the court also ordered Michael to
attend anger management classes. Michael responded, “On what
basis? There’s been no abuse, Your Honor.”5 The court explained
5 The objection prompted another exchange in which the
court and bailiff cautioned Michael against screaming or “raising
[his] voice and yelling.” When the bailiff, for a third time,
7
it was ordering anger management, not a 52-week batterer’s
intervention program. Michael continued to respond indignantly:
He told the judge, “Why don’t you put me behind bars[?]”; asked,
“How fast can I commit contempt of court by going to none of
them, Your Honor?”; and told the court, “I have no respect for the
court, Your Honor.”
On February 15, 2017, the court entered the restraining
order and child custody and visitation order. The order listed
the couple’s three children as “additional protected persons,”
provided for an expiration date in three years, included no-
contact and stay-away orders, and ordered Michael to attend
anger management classes once a week for six months. In an
attachment to the restraining order, the court ordered the parties
“not to post anything about the case on Facebook” and “not to
discuss the case with the children.”
On March 10, 2017, Michael filed a motion for a new trial
“and/or to vacate judgment/order dated February 15, 2017.”
Among other things, Michael argued the court committed
“misconduct” by precluding him from calling his children as
witnesses; there was no evidence of “abuse” to support the
restraining order; the order was the product of unfair “surprise”
because the parties had not conducted a mandatory mediation on
child custody; and the order was “based on written conduct” that
was constitutionally protected free speech. On March 30, 2017,
the court denied Michael’s new trial motion, finding “no legal
basis for granting the motion.”
admonished Michael not to scream, Michael responded by
disparaging the “family law bar.”
8
Michael timely appealed from the February 15, 2017
domestic violence restraining order.6
DISCUSSION
1. Substantial Evidence Supports the Abuse Finding
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 (Nakamura); accord, § 6320,
subd. (a).) “A court may also enjoin ‘disturbing the peace of
6 Bertha contends Michael is “appealing a non-appealable
issue” and he “should have filed a writ” petition. Bertha is
mistaken. The issuance of a restraining order is appealable as
an order granting an injunction under Code of Civil Procedure
section 904.1, subdivision (a)(6).
On December 18, 2017, Michael filed a motion to strike
Bertha’s respondent’s brief and a request for sanctions, arguing
the brief “ ‘unreasonably’ ” violated the California Rules of Court
governing the form and content of appellate briefs. We originally
deferred ruling on the motion until we had had an opportunity to
consider the merits of the appeal. We later vacated the order and
denied the motion to strike. Michael then filed a renewed motion
to strike and for sanctions, which we denied. To the extent there
is any doubt about our ruling on the December 18, 2017 request
for sanctions, that request for sanctions is also denied.
9
[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.)
The DVPA vests the court with discretion to issue a
restraining order “simply on the basis of an affidavit showing
past abuse.” (Nakamura, supra, 156 Cal.App.4th at p. 334.)
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.)
We review the grant of a DVPA restraining order for abuse
of discretion, and, to the extent we are called to review the court’s
factual findings, we apply the substantial evidence standard of
review. (In re Marriage of G. (2017) 11 Cal.App.5th 773, 780;
In re Marriage of Evilsizor & Sweeney (2015) 237 Cal. App. 4th
1416, 1426-1427.) In reviewing the evidence, we examine the
entire record to determine whether there is any substantial
evidence―contradicted or uncontradicted―to support the trial
court’s findings. (Burquet v. Brumbaugh (2014) 223 Cal. App. 4th
1140, 1143 (Burquet).) We must accept as true all evidence
supporting the trial court’s findings, resolving every conflict in
favor of the judgment. (Ibid.) We do not determine credibility
or reweigh the evidence. (Katsura v. City of San Buenaventura
(2007) 155 Cal. App. 4th 104, 107.) If substantial evidence
supports the judgment, reversal is not warranted even if facts
exist that would support a contrary finding. (Ibid.)
Michael argues the trial court erred by basing its abuse
finding on a series of Facebook posts he made about the divorce
action. He contends the First Amendment protects his right to
publish information about a pending court proceeding on a public
10
forum like Facebook and, absent a true threat, his right to free
speech precludes the trial court from making an adverse finding
against him based on those statements.
Contrary to Michael’s premise, there is little indication in
the record that the trial court received his Facebook posts into
evidence at the restraining order hearing. During Bertha’s
testimony, her attorney attempted to show Bertha “pictures” of
Michael’s Facebook posts and to question Bertha about the posts’
contents. The court stopped counsel, asking if she had “marked”
the pictures and whether she was prepared to “submit[ ] evidence
or not.” Although Bertha’s attorney eventually asked Bertha
whether Michael had posted information about the divorce on
Facebook, it does not appear that the court received the posts into
evidence or that the court reviewed the posts in making the
abuse finding.
In any event, even if we accept Michael’s premise that the
posts were in evidence, this alone is not grounds to reverse the
restraining order. As we discuss below, although orders
enjoining the dissemination of information outside the immediate
family may impermissibly infringe upon the constitutionally
protected right of free speech, in this case we have no reason to
assume the trial court relied upon Michael’s Facebook posts in
making the abuse finding. On the contrary, because there was
substantial evidence, apart from the posts, to support the finding,
we will presume the court relied on that other evidence in issuing
the domestic violence restraining order. (See, e.g., Lister v.
Bowen (2013) 215 Cal. App. 4th 319, 337 [because lower court
judgment is presumed correct, appellate court would not find
restraining order unconstitutionally overbroad absent clear
showing in record that order infringed appellant’s right of
association].)
11
Critically, Bertha was not required to show Michael
physically assaulted or struck her, because section 6320
“provides that ‘the requisite abuse need not be actual infliction of
physical injury or assault.’ ” (In re Marriage of Nadkarni (2009)
173 Cal. App. 4th 1483, 1496 (Nadkarni); Conness v. Satram
(2004) 122 Cal. App. 4th 197, 202.) “To the contrary, section 6320
lists several types of nonviolent conduct that may constitute
abuse within the meaning of the DVPA,” including “ ‘disturbing
the peace of the other party,’ ” which “may be properly
understood as conduct that destroys [another’s] mental or
emotional calm.” (Nadkarni, at pp. 1496-1497.) This
construction, “comports with the legislative history of the DVPA,”
which “reflect[s] the Legislature’s goal of reducing domestic
violence and its recognition that ‘[i]t is virtually impossible for a
statute to anticipate every circumstance or need of the persons
whom it may be intended to protect.’ ” (Id. at pp. 1497-1498.)
Because “the Legislature intended that the DVPA be broadly
construed in order to accomplish th[is] purpose,” the court in
Nadkarni held “the plain meaning of the phrase ‘disturbing the
peace’ in section 6320 may include, as abuse within the meaning
of the DVPA, a former husband’s alleged conduct in destroying
the mental or emotional calm of his former wife.” (Id. at p. 1498.)
In Burquet, our colleagues in Division 5 applied the
Nadkarni court’s construction of disturbing the peace to hold a
defendant’s “course of conduct of contacting plaintiff by phone,
e-mail, and text, . . . and arriving at her residence unannounced
and uninvited, and then refusing to leave” constituted abuse
under the DVPA. (Burquet, supra, 223 Cal.App.4th at p. 1144.)
There, the plaintiff’s ex-boyfriend appeared outside her residence
despite the plaintiff’s requests that he not contact her. When she
pleaded with him, “ ‘Please leave, I’m scared[,] I will call the
police,’ ” he shouted through a window, “ ‘I want to see you do
12
that,’ ” and paced around her porch for about 10 minutes,
leaving only just before the police arrived. (Id. at pp. 1142-1143.)
The trial court granted the domestic violence restraining order,
observing, “ ‘I see uninvited contact that made the petitioner
afraid because he would not leave and showed up [out] of
nowhere uninvited, and unannounced.’ ” (Id. at p. 1143.)
Rejecting the defendant’s contention that the proper “definition
of disturbing the peace” required evidence of “ ‘acts that are
themselves violent’ ” (id. at pp. 1144-1145), the Burquet court
held “[t]here was substantial evidence presented at trial to
support the trial court’s finding that defendant disturbed the
peace of plaintiff, an act of ‘abuse’ under the DVPA.” (Id. at
p. 1147; see also Nadkarni, supra, 173 Cal.App.4th at pp. 1498-
1499 [ex-husband’s conduct, including accessing, reading, and
publicly disclosing the content of ex-wife’s confidential emails,
caused her to suffer embarrassment and “to fear for her safety”;
this “destruction of her mental or emotional calm” could
constitute “disturbing the peace of” the ex-wife, “a form of abuse
within the meaning of the DVPA”].)
Even without Michael’s Facebook posts, the evidence was
sufficient to show conduct that constituted “disturbing the peace
of the other party” (§ 6320, subd. (a)) and, hence, “abuse” as
defined in the DVPA (§ 6203, subd. (a)(4)). Bertha’s sworn
declaration and testimony established that Michael detained
Bertha against her will by using his car to block her moving
truck from leaving the home; he was belligerent during the
confrontation “and had to be restrained” by police officers who
responded to the scene; on another occasion he “blocked the front
entrance of the family residence so no one could go out the front
door”; on still another occasion he “blocked [Bertha’s] car in the
carport so [she] could not leave the house”; he threatened to
“throw a chair through the bedroom window” when Bertha
13
refused to remove locks from her bedroom door; and he
“showed up uninvited to the house” she had moved to, despite
Bertha’s efforts to keep the address confidential. Bertha testified
that Michael’s conduct was “unsettling” and “very stressful,” and
that she was “afraid of what [he] might do in retaliation for [her]
moving out.” She said she had “lost 20 pounds since the whole
thing started.” This evidence was plainly sufficient to support
a finding that Michael’s conduct “destroy[ed] the mental or
emotional calm of his [estranged] wife.” (Nadkarni, supra,
173 Cal.App.4th at p. 1498; Burquet, supra, 223 Cal.App.4th at
pp. 1146-1147.) Notwithstanding Michael’s objection to the
restriction against posting on Facebook, substantial evidence
supports the trial court’s abuse finding.
2. Michael Forfeited His “Void for Vagueness”
Challenge to the DVPA
On appeal, Michael contends for the first time in these
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 argues 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 has 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.
14
“A party typically forfeits constitutional issues not raised
in earlier civil proceedings.” (Minkin, supra, 11 Cal.App.5th at
p. 958.) This is so because, when a party contends a law is
unconstitutionally vague, the court examines the party’s actual
conduct before analyzing other hypothetical applications of the
law (see Village of Hoffman Est. v. Flipside, Hoffman Est. (1982)
455 U.S. 489, 494-495), and this is an assessment best conducted
first in the trial court. This is true even when the court analyzes
a facial challenge to the law on vagueness grounds. (See ibid.)
Although a court may relax this rule to permit a party to raise
new theories, this is appropriate “[o]nly when the issue presented
involves a purely legal question, on an uncontroverted record and
requires no factual determinations.” (Minkin, 11 Cal.App.5th at
p. 958.) The application of “[t]his forgiving approach” “ ‘is largely
a question of an appellate court’s discretion.’ ” (Id. at pp. 958-
959.)
At one point in his opening brief, Michael states, “This
matter . . . presents predominantly pure question [sic] of law on
undisputed facts.” Yet Michael devotes many pages of his brief
to a “statement of facts,” citing, among other things, his own
declaration filed in support of his motion for a new trial, where he
attempts to explain his conduct and disputes Bertha’s account of
the events that occurred before and after she filed a petition to
dissolve the marriage. In short, this is not a case involving “an
uncontroverted record” requiring “no factual determinations.”
(Minkin, 11 Cal.App.5th at p. 958.)
In any event, even if this were such a case, and we
exercised our discretion to consider Michael’s constitutional
challenge to the DVPA, we would find no constitutional infirmity.
“A party making a facial challenge to a statute’s constitutionality
must meet ‘ “exacting” ’ standards. [Citation.] Under the
strictest test, the challenger must show that the statute
15
inevitably poses a present total and fatal conflict with the
constitution. Under the more lenient standard, we ask whether
the statute is unconstitutional in the generality or great majority
of cases.” (Ivory Education Institute v. Department of Fish &
Wildlife (2018) 28 Cal.App.5th 975, 981.) “There is a strong
presumption that statutes must be upheld unless their
unconstitutionality is clear, positive, and unmistakable. . . .
Only a reasonable degree of certainty is required.” (Ibid.)
As noted, section 6203, subdivision (a)(4) defines “abuse”
for purposes of the DVPA to include “engag[ing] in any behavior
that has been or could be enjoined pursuant to Section 6320.”
Michael argues that language “has left the statute easily used in
derogation of fundamental rights and liberties.” We see no
vagueness problem. The “could be” language conveys a temporal
concept: the statute addresses behavior that already has been
enjoined or that qualifies as enjoinable, even if not yet enjoined,
or never enjoined. Section 6320 defines such “enjoinable”
behavior with a list of conduct that includes “disturbing the
peace of the other party.” (§ 6320, subd. (a).)
Michael also urges us to break with a line of cases dating
back nearly ten years that has interpreted “disturbing the peace”
to include non-violent conduct that “destroys the mental or
emotional calm” of its target. (Nadkarni, supra, 173 Cal.App.4th
at p. 1497; see also Burquet, supra, 223 Cal.App.4th at pp. 1146-
1147.) We decline to do so. Notwithstanding Michael’s
inapposite hypotheticals and disputed characterization of the
evidence, it appears clear from the record before us that the
trial court did not base the abuse finding solely upon Michael’s
Facebook posts, text messages, emails, or anything else as
innocuous as Michael visiting his adult daughter at Starbucks.
16
3. The Restraining Order Is Overbroad to the Extent
It Prohibits Michael from Posting on Facebook
Although we have found the evidence sufficient to support
the court’s issuance of a domestic violence restraining order, we
conclude 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.7
“[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 (Aguilar); see Hobbs v. County of Westchester (2d Cir. 2005)
397 F.3d 133, 149 (Hobbs).)
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
7 To the extent Michael purports to appeal a similar part of
the January 26, 2017 order continuing the restraining order
hearing, we conclude his challenge to the speech restriction is
moot, having been superseded by the subsequent order that we
address above.
17
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.)
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 (Candiotti).) 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.)).
Applying these principles, the court in Candiotti held a
custody order limiting a parent’s right to communicate with
third parties about matters related to the custody proceeding
was an unconstitutional prior restraint. (Candiotti, supra, 34
Cal.App.4th at pp. 724-726.) There, the order prohibited a
mother from disclosing negative information about her former
husband’s new wife to anyone except certain specified
professionals. (Id. at p. 720, fn. 3.) The Candiotti court
recognized that courts “are given broad authority to supervise
and promote the welfare of children” and may constitutionally
order parents to refrain from disparaging their former spouse
in front of their children. (Id. at p. 725.) However, the court
observed the challenged order “went further, actually impinging
on a parent’s right to speak about another adult, outside the
presence of the children.” (Ibid.) The court held the order was
overbroad in this respect and constituted an undue prior
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restraint of speech under the California Constitution, reasoning
the order “would prevent [the mother] from talking privately to
her family, friends, coworkers, or perfect strangers about her
dissatisfaction with her children’s living situation.” (Ibid.)
Although the trial court “certainly ha[d] the power to prevent
[the mother] from undermining [the father’s] parental
relationship by alienating the children from [the stepmother],”
the Candiotti court found the challenged order to be “much more
far-reaching, aimed at conduct that might cause others, outside
the immediate family, to think ill of [the stepmother].” (Id. at
p. 726.) The court explained: “Such remarks by [the mother]
may be rude or unkind. They may be motivated by hostility.
To the extent they are libelous, they may be actionable. But they
are too attenuated from conduct directly affecting the children to
support a prior restraint on [the mother’s] constitutional right to
utter them.” (Ibid.)
The same reasoning applies to the part of the restraining
order prohibiting Michael from posting information about the
case to Facebook. The record shows Michael’s Facebook posts
were not specifically directed to the minor children, but in many
cases invited comments from Michael’s adult friends and
extended family, some of whom urged him not to dwell on the
divorce, while others suggested he seek legal representation.
Moreover, although the trial court plainly had the power to
prohibit Michael from disparaging Bertha in the children’s
presence (see In re Marriage of Hartmann (2010) 185 Cal. App. 4th
1247, 1251), the order here, like the order in Candiotti, was
“much more far-reaching,” proscribing speech only peripherally
related to the case and speech that might, at worst, “cause others,
outside the immediate family, to think ill” of Bertha. (Candiotti,
supra, 34 Cal.App.4th at p. 726.) Indeed, most of Michael’s
earlier posts were of this variety―they expressed his apparent
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despair about the divorce and his separation from the children,
but did not directly disparage Bertha or openly seek to alienate
her from the children. Posts of this sort are “too attenuated from
conduct directly affecting the children to support a prior restraint
on [Michael’s] constitutional right to utter them.” (Ibid.)
“It is certainly in the best interests of any children of
divorce that the adults in their lives act in a mature and
courteous manner” (Candiotti, supra, 34 Cal.App.4th at p. 726);
however, where a restraint on the freedom of speech is concerned,
the restriction must be necessary and narrowly tailored to
promoting those interests. The part of the restraining order
prohibiting Michael from posting about the case on Facebook does
not meet this test. We conclude it is overbroad, constituting an
invalid prior restraint, and must be stricken from the domestic
violence restraining order. (Id. at pp. 724-726.)
4. The Restraining Order Properly Included the
Molinaro’s Adult Daughter as a Protected Person
Michael contends the trial court lacked jurisdiction to
include his 18-year-old daughter as a protected person under
the domestic violence restraining order. He is mistaken.
Michael cites sections 6500 and 6501, which merely define
“minor” and “adult,” and In re Marriage of Jensen (2003) 114
Cal. App. 4th 587, which concerned custody and visitation orders
under a marital settlement agreement. In contrast to the statute
conferring jurisdiction to render a judgment concerning the
“custody of minor children of the marriage” in a dissolution
proceeding (§ 2010, subd. (b), italics added), the DVPA expressly
authorizes the court to include as a “protected person” under the
order “[a]ny other person related by consanguinity or affinity
within the second degree.” (§ 6211, subd. (f), italics added.)
Under this authority, the trial court properly included the
Molinaro’s adult daughter as a protected person under the order.
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5. The Court Properly Ordered Michael to Participate
in an Anger Management Program as a Restrained
Party under the DVPA
Finally, Michael argues the trial court abused its discretion
by “imposing an anger management counseling order, and in
failing to make the findings for counseling required by [section]
3190[, subdivision] (d)(2).” However, section 3190 is not part of
the DVPA, and Michael’s argument omits any mention
whatsoever of section 6343, a provision of the DVPA which states
in pertinent part, “[a]fter notice and a hearing, the court may
issue an order requiring the restrained party to participate in a
batterer’s program approved by the probation department as
provided in Section 1203.097 of the Penal Code.”8 (§ 6343,
subd. (a).) Because substantial evidence supports the court’s
finding that Michael committed abuse under the DVPA―not by
physical violence, but by “disturbing the peace of” his estranged
wife (§§ 6320, subd. (a), 6203, subd. (a)(4))―we conclude the trial
court did not abuse its discretion in ordering Michael, as “the
restrained party” (§ 6343), to undergo counseling addressed to
the apparent cause of the type of abuse he committed.9
8 Michael cites two cases, neither of which discusses
restrained parties under the DVPA. (See Camacho v. Camacho
(1985) 173 Cal. App. 3d 214, 221-222 [paternity suit; appellate
court reversed trial court order that appellant “undergo
involuntary psychiatric therapy for an indefinite period of time”];
Stuard v. Stuard (2016) 244 Cal. App. 4th 768 [affirming order
granting grandparents visitation with minor child, apparently
discussing section 3190 in unpublished portion of opinion].)
9 Michael makes several other similarly perfunctory
contentions that do not warrant serious consideration, many of
which he directs at the nonappealable order denying his motion
for new trial. (Cf. Code Civ. Proc., § 904.1, subd. (a)(4) [only
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DISPOSITION
The part of the restraining order prohibiting Michael
Molinaro from posting “anything about the case on Facebook” is
reversed, and the trial court is directed to strike the provision
from the order. The restraining order is affirmed in all other
respects. Each party will bear his and her own costs on appeal.
EGERTON, J.
We concur:
LAVIN, Acting P.J.
DHANIDINA, J.
“order granting a new trial” is appealable].) We have considered
the arguments and find no grounds to reverse the restraining
order. We also have reviewed the National Coalition for Men’s
amicus brief and find nothing in it warranting discussion.
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Filed 3/28/19
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
BERTHA A. MOLINARO, B282014
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BD643016
v.
ORDER CERTIFYING FOR
MICHAEL M. MOLINARO, PARTIAL PUBLICATION
[NO CHANGE IN JUDGMENT]
Defendant and Appellant.
THE COURT:
The opinion in the above-entitled matter filed on
February 26, 2019, was not certified for publication in the
Official Reports. For good cause, it now appears the opinion
should be certified for publication in the Official Reports
with the exception of parts 1, 2, 4, and 5 of the Discussion.
There is no change in the judgment.
________________________________________________________
EGERTON, J. LAVIN, Acting DHANIDINA,
P. J. J.
23