Marriage of Reichental ( 2021 )

Filed 12/29/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re Marriage of DORIT and 2d Civil No. B307255
AVI REICHENTAL. (Super. Ct. No. 17FL00447)
(Santa Barbara County)
DORIT REICHENTAL,
Appellant,
v.
AVI REICHENTAL,
Respondent.
Dorit Reichental (Wife) filed a petition for the
dissolution of her 39-year marriage to Avi Reichental (Husband).
The parties stipulated to the appointment of the Honorable
Melinda Johnson, retired seasoned veteran in family law, as
temporary judge “to hear and determine the above-entitled
matter until its final determination.” At Husband’s request and
after an eight-day evidentiary hearing, Judge Johnson entered a
“non-CLETS”1 domestic violence restraining order (DVRO)
prohibiting Wife from entering the property where Husband was
residing with Jenna Jobst, his girlfriend, harassing or surveilling
either of them, communicating with them, or coming within 50
yards of them.
Wife contends Judge Johnson lacked jurisdiction to
enter the DVRO because it was beyond the scope of the parties’
stipulation and Wife did not consent to have the DVRO request
heard by her. She further contends the order must be vacated
because it is a “non-CLETS” order, in violation of Family Code
section 63802 and because it improperly extends to Jobst, who is
not a party to this matter. Wife also contends Judge Johnson
erred in ruling on the application because Husband did not first
file it in the Superior Court.
We conclude Judge Johnson did not exceed the scope
of her appointment when she heard and decided Husband’s
request for a DVRO, but did err as a matter of law when she
specified that the restraining order was a “non-CLETS” order.
We will remand the matter to permit Judge Johnson to enter an
order in compliance with section 6380. In all other respects, the
order is affirmed.
1“CLETS” refers to the California Law Enforcement
Telecommunications System. Domestic violence restraining
orders (DVROs) are reported to law enforcement through this
system. (Fam. Code, § 6380, subd. (a).)
2All further statutory references are to the Family Code,
unless otherwise stated.
2
FACTS AND PROCEDURAL HISTORY3
Wife filed the petition for dissolution of marriage in
February 2017. In May 2017, the parties agreed to the
appointment of Judge Johnson. The stipulation provides, “The
temporary judge shall hear and try the above- entitled matter,
including hearing and determining all pretrial motions, discovery
matters, and orders to show cause; presiding over the trial;
rendering judgment; and hearing and determining all post-trial
motions and orders to show cause.”
Husband filed a request for a DVRO. His supporting
declaration described receiving “numerous harassing and
threatening emails from [Wife] that have frightened me and
caused me to be concerned about her mental stability.” Husband
noted that, after their separation, Wife bought a home that was
near their former residence, where he was living with Jobst. He
believed that Wife was watching him and Jobst from a neighbor’s
property and that she gained access to his gated property
through that neighbor’s yard. Husband claimed Wife had filed a
false police report accusing him and Jobst of disabling the
security system and installing listening devices in her home. He
also described an incident in which a package addressed to Wife
was delivered to his house. The package contained a book titled,
“Women Who Love Psychopaths: Inside the Relationships of
Inevitable Harm with Psychopaths, Sociopaths, & Narcissists.”
Husband declared that Wife had “repeatedly accused me of being
a sociopath and narcissist,” and that she repeatedly left a copy of
the book on his bedside table while they were still living together.
3Wife does not challenge the evidentiary basis for the
restraining order. As a consequence, we offer an abridged
statement of the facts on which the DVRO request is based.
3
The final incident Husband described involved Wife and two
other people standing in his driveway, looking through the
wrought-iron gate in the direction of his house.
Jobst provided a declaration in which she described
two interactions with Wife. First, she described Wife following
her in an aggressively unsafe manner as Jobst drove Husband’s
Bentley on the northbound 101 Freeway, down the Conejo grade.
Second, on four occasions in one week, Jobst saw Wife parked in
a bus stop near Husband’s house. From this vantage point, Wife
could “monitor each person who enters or leaves our street.”
Wife’s opposition argued Husband’s claims were not a
sufficient basis for a restraining order. She denied that her
emails were abusive, threatening or harassing, and contended
that filing the police report was a constitutionally protected
activity. Wife further asserted that Husband’s residence was
community property and that there was no “exclusive use” order
in place. Consequently, it was not improper for her to walk onto
the property, knock on the front door of the house or look at the
house through the gate. Wife provided similar, purportedly
innocent, explanations for the other conduct described in
Husband’s declaration.
In addition to her written opposition to the DVRO
request and her declaration, Wife filed written objections to
Husband’s evidence and requested that Judge Johnson rule on
those objections.
After a two-hour hearing, Judge Johnson denied the
request for “temporary emergency orders” without prejudice and
directed the parties “to obtain the first available date for an
evidentiary hearing on the petition.” The parties selected dates
for the evidentiary hearing and then engaged in discovery,
4
including producing documents and deposing Husband, Jobst and
Wife.
On the first day of the evidentiary hearing, Wife
objected to Judge Johnson presiding over Husband’s DVRO
request. She contended the DVRO request should be dismissed
because the proceeding was outside the scope of the stipulation
appointing the temporary judge. She described the DVRO
request as an ancillary proceeding that was independent from the
dissolution action referred to Judge Johnson. Wife noted the
DVRO request was based on facts that arose after the petition for
dissolution was filed and included a request that the order extend
to Jobst, who is not a party to the dissolution action.
Judge Johnson declined to dismiss the DVRO
proceeding, concluding that it was related to the petition for
dissolution and fell within the scope of the parties’ stipulation.
Judge Johnson acknowledged that the DVRO request relied on
circumstances arising after the dissolution petition was filed but
noted, “[T]here are a lot [of] things that we try that weren’t
contemplated at all at the time the petition[] or response was
filed. That is typical in family law, particularly the ones that
linger on for some period of time.”
Over the next eight days, Judge Johnson heard in
exacting detail the content of emails and text messages Husband
considered abusive or threatening, and the instances in which he
believed Wife spied on him or entered the property where he was
living. Wife provided explanations for her language and
behavior. She attempted to impeach Husband’s testimony that
he felt harassed or threatened with evidence that, for example, he
sometimes initiated communication with her, visited her house,
5
offered to set up weekly breakfasts or lunches with her, and
stayed at the same hotel when they traveled to family events.
Judge Johnson granted a “non-CLETS” restraining
order accompanied by a statement of decision. She concluded
many of Wife’s communications to Husband were “disturbing,
annoying and often extremely insulting and profane.” While
these communications were “unwelcome and intrusive,” they
were not, in the Judge Johnson’s view, “enjoinable.” However,
Wife engaged in other conduct that was a proper basis for a
restraining order. Wife copied some of her inappropriate
communications to third parties, including the couple’s therapist
and their grown children. She exploited Husband’s childhood
traumas and threatened to destroy his reputation by revealing
negative information about him if he did not do what she wanted.
Judge Johnson credited Jobst’s testimony about Wife
chasing her on the freeway. She found this conduct, “is evidence
of [Wife’s] volatility and of the very real possibility of her acting
on her threats.” In addition to expressing concerns about Wife’s
credibility, Judge Johnson noted that Wife had never
acknowledged her behavior was inappropriate, raising the
concern it would be repeated. She concluded Wife had destroyed
Husband’s sense of mental and emotional calm by threatening to
use the “highly sensitive information” she possessed to “expose”
Husband and damage his reputation “if he did not behave as she
wished in the context of the divorce litigation.”
Judge Johnson acknowledged that direct
communication between the parties had “largely ended,” and that
Wife had not engaged in “similarly abusive and harassing
behavior” since the dissolution petition was filed. However, the
litigation was ongoing and complex financial issues remained to
6
be decided. “The situation remains volatile and [Wife’s] total
failure to comprehend the seriousness of her behavior raises
concerns it could be repeated as the litigation proceeds.”
In addition, Judge Johnson acknowledged that a
CLETS order would have “the potential of disrupting [Wife’s]
employment as a life coach and, perhaps, eventually, a therapist,
to an unwarranted degree.” She concluded a non-CLETS order,
“[a]lthough disfavored in the law,” was appropriate. The judge
explained, “just as the pattern of the behavior is such as to leave
the Court in a state of mind to believe re-offen[d] is more than a
hypothetical possibility, the length of time since the last reported
incident suggests something less than the full force of law may be
sufficient to prevent such a re-offense.”
The resulting “non-CLETS” order provided: (1)
Husband has exclusive use of the former marital residence and
Wife is prohibited from entering the premises, including the
driveway, except by invitation; (2) Wife shall not “harass, attack,
strike, threaten, hit, follow, stalk, molest, destroy personal
property, disturb the peace, keep under surveillance or block the
movements of” Husband or Jobst “as a household member;” (3)
Wife shall stay 50 yards away from Husband, Jobst and their
vehicles; (4) Wife shall not communicate with Husband or Jobst,
“except in the case of a true emergency.” The order further
specified, “Nothing in this order is intended to prevent [Wife]
from driving the most direct route to her residence . . . , even if it
entails driving closer than 50 yards” from Husband’s residence.
7
DISCUSSION
Jurisdiction
Wife contends the DVRO proceeding is ancillary to
and independent of the dissolution action that she consented to
have decided by a temporary judge. As a consequence, she
contends, the temporary judge lacked jurisdiction to enter the
“non-CLETS” restraining order.
“‘“The appointment of a temporary judge to hear a
particular ‘cause’ carries with it the power to act until the final
determination of that proceeding. [Citation.] . . .”’” (Gridley v.
Gridley (2008) 166 Cal.App.4th 1562, 1581, quoting In re Steven
A. (1993) 15 Cal.App.4th 754, 768.) In determining whether a
temporary judge is authorized to resolve a particular matter,
“courts apply the rule that ‘[t]he determination of a cause
encompasses subsequent proceedings that are its “direct
progeny,” but not those considered “ancillary” to the stipulated
cause. [Citation.] Direct progeny are those which are a
continuation of the stipulated cause or question its finality, such
as motions to vacate or reconsider. [Citations.] An ancillary
proceeding, on the other hand, is heard on a separate record and
seeks an independent judgment or reviewable order. . . .’”
(Gridley, supra, at pp. 1582-1583.)
Wife argues the parties’ stipulation appointing Judge
Johnson defined the “cause” assigned to her as the dissolution of
the parties’ marriage. The DVRO proceeding is ancillary to that
“cause,” she contends, because it is a separate cause of action that
proceeds on its own record and whose outcome does not impact
any final judgment in the dissolution action. We disagree.
The parties stipulated that Judge Johnson was
authorized to “hear and try the above-entitled matter,” e.g., the
8
petition for the dissolution of the parties’ marriage, “including
hearing and determining all pretrial motions . . . .” In the family
law context, a request for order is the equivalent of a motion.
(Cal. Rules of Court, rule 5.92(a)(1)(A).) The Family Code also
expressly authorizes the court to issue a DVRO “in a proceeding
for dissolution of marriage . . . .” (§ 6221, subd. (a).) We conclude
a request for a domestic violence restraining order, filed in a
pending dissolution case, is a motion in that case. (S.A. v.
Maiden (2014) 229 Cal.App.4th 27, 37.) Phrased otherwise, a
DVRO can, as this case shows, arise out of, and may be the
offspring of, or “direct progeny” of, a marital dissolution action.
(Gridley, supra, 166 Cal.App. 4th at pp. 1582-1583.) Accordingly,
the parties’ stipulation authorizing Judge Johhson to hear and
determine pretrial motions applies to Husband’s request for a
DVRO.
Wife protests that a DVRO request is an ancillary
proceeding and not a motion because the request can be made by
filing a form petition, without also seeking a dissolution or
separation. (Nakamura v. Parker (2007) 156 Cal.App.4th 327,
335; § 6221, subd. (a) [DVRO may be issued “in a proceeding
brought pursuant to this division,” in an action under the
Uniform Parentage Act, or in a dissolution proceeding].) The
DVRO request has a separate record and resolution of the
request need not impact the judgment in the dissolution action.
But the fact that a DVRO may be obtained in a separate
proceeding does not mean that it must be a separate proceeding.
As we have noted, a DVRO may also be obtained in a dissolution
proceeding, as it was here. A DVRO may be included in a
judgment of dissolution and may impact other provisions of the
judgment, such as the division of property and child custody.
9
Here, the parties agreed the Judge Johnson would
“hear and try the above-entitled matter until its final
determination.” Husband’s DVRO request arose during the
pendency of the dissolution and relates to incidents that occurred
while the matter was pending. There has been no “final
determination.” We conclude the DVRO request is part of the
“above-entitled matter,” was therefore within the scope of the
temporary judge’s appointment.
Family Code § 6380
Family Code section 6300 grants the court discretion
to enter a DVRO to “prevent acts of domestic violence [or]
abuse . . .” when the person seeking the order “shows, to the
satisfaction of the court, reasonable proof of a past act or acts of
abuse.” (§§ 6220, 6300, subd. (a).) Abuse in this context includes
physical abuse or injury and acts that “destroy[] the mental or
emotional calm of the other party.” (In re Marriage of Nadkarni
(2009) 173 Cal.App.4th 1483, 1497.)
Section 6380 provides, “Upon the issuance of a
protective order to which this division applies . . . the Department
of Justice shall immediately be notified of the contents of the
order . . . .” (Id., subd. (b).) This process enters the order into
CLETS, which permits it to be enforced by law enforcement
officers. Section 6380 describes the process of reporting a DVRO
and entering its contents in CLETS in mandatory, not
discretionary terms.
Wife contends Judge Johnson abused her discretion
by specifying that the restraining order was based on a finding of
domestic abuse but was a “non-CLETS” order that would not be
reported to the Department of Justice. The “non-CLETS” aspect
of the order was an error of law. Judge Johnson found that Wife
10
committed acts of abuse within the meaning of the statute.
Section 6380 required the resulting restraining order to be
reported to the Department of Justice and entered in CLETS.
(§§ 6221, 6380.) The obligation to register the order in CLETS
was mandatory, not discretionary.
Wife contends the remedy for this error is to vacate
the order in its entirety. She is incorrect. Judge Johnson found
Wife had engaged in abuse within the meaning of section 6320
and properly granted Husband’s DVRO request. (§ 6300; see,
e.g., In re Marriage of Nadkarni, supra, 173 Cal.App.4th at p.
1497.) The appropriate remedy is to remand the matter, to
permit Judge Johnson to enter an order that complies with the
mandatory provisions of section 6380.
Scope of Order
Wife contends Judge Johnson erred because the
DVRO included Husband’s girlfriend, Jobst, as a protected
person, even though Jobst is not a party to the dissolution. She is
incorrect. Section 6320 grants the court discretion to “issue an ex
parte order enjoining a party from . . . disturbing the peace of the
other party, and, in the discretion of the court, on a showing of
good cause, of other named family or household members.” (Id.,
subd. (a).) Section 6340 grants the trial court discretion to issue
“any of the orders described in Article 1 (commencing with
Section 6320) after notice and a hearing.” (Id., subd. (a).)
Jobst is a member of Husband’s household because
she lives with him. Judge Johnson found good cause to include
Jobst in the protective order based on Wife’s conduct in chasing
Jobst on the freeway, falsely accusing Jobst and Husband of
disabling her home security system and surveilling Husband and
Jobst from the neighbor’s property. Including Jobst in the
11
restraining order was not an abuse of discretion. (In re Marriage
of Nadkarni, supra, 173 Cal.App.4th at p. 1495 [decision to grant
DVRO “‘“‘rests in the sound discretion of the trial court . . . ’”’”].)
For similar reasons, we conclude Judge Johnson did
not err when she permitted Jobst to testify. The testimony
regarding Wife’s conduct toward Jobst was admissible because
Jobst was entitled to protection as a member of Husband’s
household. (§ 6320.) Additionally, Jobst witnessed acts of abuse
committed against Husband. Her testimony was relevant to
establish that those acts occurred. (Tanguilig v. Valdez (2019) 36
Cal.App.5th 514, 522 [testimony of third party witness to act of
elder abuse properly admitted].)
Rule 2.400
California Rules of Court, rule 2.400 (rule 2.400)
provides, “All original documents in a case pending before a
temporary judge or referee shall be filed with the clerk in the
same manner as would be required if the case were being heard
by a judge, including filing within any time limits specified by
law and paying any required fees.” (Rule 2.400, subd. (b)(1).)
Here, Husband initially filed his request for a DVRO with Judge
Johnson and only later with the clerk of the superior court. Wife
contends the initial failure to file with the court clerk deprived
Judge Johnson of jurisdiction to consider the DVRO request.
“Rule 2.400 is intended to ensure open access to
records in any proceedings before temporary judges and referees.”
(In re Conservatorship of Townsend (2014) 231 Cal.App.4th 691,
705.) The filing requirement ensures “‘that the court clerk’s office
has the complete case file and can make all nonconfidential
portions of the file available to the public . . . .’” (Ibid.)
12
Townsend held that a motion to vacate a judgment
did not extend the moving party’s time to file a notice of appeal
because the motion was filed with a temporary judge and not
with the clerk of the superior court. (In re Conservatorship of
Townsend, supra, 231 Cal.App.4th at pp. 705-706.) “While there
may be circumstances in which the failure to file documents with
the superior court clerk as required under rule 2.400(b) may be
waived, a motion to vacate is not one of the circumstances. . . . A
motion to vacate is part of the calculation to determine the
jurisdictional time limits to file an appeal. To extend the time to
appeal, the procedural requirements in [Code of Civil Procedure]
section 663a must be met. We have no authority to rewrite the
statute to create exceptions in section 663a, subdivision (a) in
proceedings before a temporary judge where the parties submit
the motion to vacate to the temporary judge but do not file it with
the clerk.” (Ibid.)
Here, Husband filed his DVRO request with Judge
Johnson before filing it with the superior court clerk. The
document was, however, filed with the superior court clerk before
the evidentiary hearing concluded and before Judge Johnson
entered the order. Unlike a motion to vacate or a notice of
appeal, there is no jurisdictional time period within which a
DVRO request must be filed. Under these circumstances, as
Husband points out, any error is harmless.
Attorney Fees
Wife contends she was the prevailing party on the
DVRO request because Judge Johnson denied Husband’s request
for a CLETS order. Wife had contended the DVRO request
should be denied in its entirety. Instead, the DVRO request was
granted, even though Judge Johnson entered a “non-CLETS”
13
order. Husband obtained the restraining order he sought. He
should have been awarded the CLETS order he sought.
Disposition
The matter is remanded to Judge Johnson with
instructions to enter a modified order that complies with Family
Code section 6380. In all other respects, the order is affirmed.
Husband shall recover his costs on appeal.
CERTIFIED FOR PUBLICATION.
YEGAN, Acting P. J.
We concur:
PERREN, J.
TANGEMAN, J.
14
Melinda A. Johnson, Temporary Judge*
Superior Court County of Santa Barbara
______________________________
M. Jude Egan, for Appellant.
Phillips Jessner, Gregory W. Jessner, Adam N. King
and Raymond K. Martinez, for Respondent.
*Superior Court of Santa Barbara, Melinda A. Johnson, Temporary Judge.
(Pursuant to Cal. Const., art. VI, § 21.)