Marriage of L.R. and K.A. ( 2021 )

Filed 7/27/21
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of L.R. and K.A.
D077533
L.R.,
Appellant,
(Super. Ct. No. D557861)
v.
K.A.,
Respondent.
APPEAL from an order of the Superior Court of San Diego County,
Marcella O. McLaughlin, Judge. Reversed.
L. R., in pro. per.; Elyse B. Butler and Chalsie D. Keller for Appellant.
[Retained.]
Linda Cianciolo for Respondent.
INTRODUCTION
After a two-day evidentiary hearing, the trial court found L.R. 1
(Mother) to be obsessive, aggressive, manipulative, and controlling of K.A.
(Father) during a two-hour urgent care visit with the parties’ sick minor
childan incident described by the responding police officer as “boil[ing]
down to being a child custody dispute.” The incident ended with Mother, who
did not have physical custody, taking the child home in violation of the child
custody and visitation order. Finding Mother’s conduct disturbed Father’s
peace, the court issued a three-year domestic violence restraining order
(DVRO) against Mother for Father’s protection and included the child as a
protected party. We conclude Mother’s conduct—although demonstrating
poor co-parenting—did not rise to the level of destroying Father’s mental and
emotional calm to constitute abuse within the meaning of the Domestic
Violence Prevention Act (DVPA) (Fam. Code, 2 § 6200 et seq.). Accordingly,
we reverse.
1 Pursuant to the California Rules of Court, rule 8.90, governing privacy
in opinions, we refer to the parties by first and last initials only.
2 All statutory references are to the Family Code unless otherwise
indicated.
2
FACTUAL AND PROCEDURAL BACKGROUND
I.
Child Custody Orders
Mother filed a petition for dissolution in October 2015. A status-only
judgment terminating the marriage was entered in November 2018. 3 The
parties have a 10-year-old daughter (the child) and have been co-parenting
under child custody and visitation orders. At the time relevant to this
appeal, the child was eight years old and, pursuant to a family court order
made on May 10, 2019, Mother and Father shared legal custody, Father had
primary physical custody, and Mother had professionally supervised
parenting time three days each week at a visitation center.
II.
Father’s DVRO Request
In June 2019, Father filed a request for a DVRO seeking protection
from Mother for himself and the child. He requested orders prohibiting
Mother from abuse and compelling her to stay away from him and the child.
He also sought a modification to the existing child custody orders to deny
Mother parenting time until the hearing on his DVRO request, or
alternatively to limit her time to professionally supervised video contact with
3 For the limited purpose of establishing the dates of filing of the petition
for dissolution and entry of the status-only judgment, we take judicial notice
of the Register of Actions filed in a related appeal pending in this court, L.R.
v. K.A. (D078331, app. pending), which arises from a child custody and
visitation order issued on September 23, 2020. (Evid. Code, § 452, subd. (d);
see Dwan v. Dixon (1963) 216 Cal.App.2d 260, 265 [“a court may take judicial
notice of the contents of its own records”].)
3
the child. Father alleged there was a risk that Mother would abduct the
child.
Father’s DVRO request was primarily based on an incident that had
occurred on May 29, 2019, during Mother’s scheduled parenting time with
the child at the visitation center (the May 29 incident). According to Father,
he brought the child to the visitation center that day to see Mother, even
though the child had been home sick from school for the past two days. When
they got to the lobby of the visitation center, the child “vomited almost
immediately.” Moments later, Mother came into the lobby, even though she
was required by court order to wait for the visitation monitor to conduct the
exchange. Upon seeing the child, “Mother refused to leave [her] side and
caused great turmoil and anguish for everyone, especially [the child].”
Mother then argued for “about fifteen” minutes with the monitor in front of
the child.
Mother “demanded” that Father take the child “right away” to urgent
care. Father agreed but told Mother she needed to stay away because it
would not be a supervised visit anymore. Mother “did not understand this,”
asserting that joint legal custody “gives her the right to attend the [medical]
appointment.” At the hospital, Mother “held [the child] the whole time” and
“proceeded to yell at [Father] in front of [the child].” Father alleged she
“videotaped [him] with her cell phone inches from [his] face, . . . put her
hands in [his] face, and generally assaulted [him] the remaining time” they
were there at urgent care.
After the child was discharged with strep throat, and police had
responded, the incident continued in the parking lot. Father alleged that as
he pulled his car to the front of urgent care to take the child home, “Mother
argued, yelled, accused, videotaped, harassed, and bullied three (3) grown
4
men who were employed by the San Diego Police Department,” all while
“holding [the child] in a death grip.” Mother made four “faux attempts” to
put the child in his car, each time the child “screamed at the top of her lungs
and . . . refused to go in the car seat.”
Father described one prior incident of alleged abuse that occurred on
May 15, 2019, during another of Mother’s scheduled parenting time with the
child at the visitation center (the May 15 incident). Although he did not
provide much detail, Father alleged this incident was “similar” to the May 29
incident and “ended when Mother abducted [the child] from [his] care by
driving off.” On May 16, Father filed an ex parte application for an order to
enforce the child custody and visitation orders on the basis of the alleged
abduction. The trial court denied the application and directed Father to seek
assistance from law enforcement and the child abduction unit of the San
Diego County District Attorney’s Office.
Based on these allegations, on June 10, 2019, the trial court issued a
temporary restraining order (TRO) enjoining Mother from having any contact
with Father and the child. Father was given temporary sole legal and
physical custody of the child, and Mother was denied further parenting time
until the hearing on the merits of Father’s DVRO request. On July 1, 2019,
Mother’s request for a continuance of the DVRO hearing to February 13,
2020 was granted. The court re-issued the TRO with modified child custody
orders, allowing Mother to resume professionally supervised parenting time.
III.
The Evidentiary Hearing
At the evidentiary hearing on Father’s DVRO request, held over two
days in February 2020, four witnesses testified: San Diego Police Officer
Gordon Leek, Father, Mother, and Mother’s sister (K.R.). Evidence of the
5
police bodycam video recordings of the May 29 incident were also admitted. 4
We summarize the evidence presented at the hearing. 5
A. Officer Leek’s Testimony
Three San Diego police officers, including Officer Leek, responded to a
call regarding “domestic violence occurring now” at the Sharp Hospital
Urgent Care Center on May 29, 2019. “[A]fter being there for over two
hours,” Officer Leek determined that the incident “boiled down to being a
child custody dispute.”
4 Mother has moved to augment the record with certain video exhibits
and related transcripts. (Cal. Rules of Court, rule 8.155(b)(1).) These include
a 3-minute, 47-second video that Mother recorded (Exhibit 5L), and two
bodycam videos recorded by Officer Leek, the first being 13 minutes, 24
seconds in length (Exhibit B1) and the second being 22 minutes, 54 seconds
in length (Exhibit B2). Mother also moves to augment with an April 30, 2019
ex parte application and order directing Father to provide Mother supervised
visits. Mother contends each of these exhibits is necessary to provide a “clear
picture” of both the May 29 incident and the timeline of events in this case.
Father does not oppose Mother’s request to augment the record with excerpts
of the video exhibits and related transcripts that were admitted into evidence
at the hearing. He opposes the request to include the April 30, 2019 ex parte
application and order since it was not admitted into evidence. We grant
Mother’s motion as to only those portions of the video exhibits and related
transcripts that were admitted into evidence, and in deciding this appeal, we
have reviewed this evidence. Mother’s motion to augment the record is
otherwise denied.
5 Because this appeal implicates the substantial evidence standard of
review, we accept as true all evidence tending to establish the correctness of
the trial court’s findings and resolving every conflict in favor of the judgment.
(In re Marriage of G. (2017) 11 Cal.App.5th 773, 780 (Marriage of G.).) As to
K.R.’s testimony, the trial court did not find her testimony “particularly
beneficial” and questioned her credibility and objectivity. We therefore do not
consider and need not include a summary of K.R.’s testimony.
6
When he first arrived, Officer Leek saw “some heated debate” between
Mother and Father in the hospital hallway. “Both [parties] seemed to want
to talk to [Officer Leek] at the same time, and [he] tried to separate them and
figure out what was going on.” But other than “some semi-heated debate,”
Officer Leek did not observe “any altercations” between the parties inside the
hospital. Father did not report to Officer Leek he had been “assaulted” by
Mother that day.
When the child was taken into the examination room by medical staff,
Officer Leek joined the parties there. He observed that the “child was calm,”
Father was “calm,” and Mother was “neutral.” When the examination
finished, the parties went outside to the parking lot where Officer Leek saw
Mother try to put the child in Father’s car two to three times. Each time
Mother tried, the child screamed. The child had her “arms strongly wrapped
around [Mother’s] neck” and her feet “wrapped around [Mother’s] body.” K.R.
also tried to help put the child in the car but it “[d]id not go well.”
At one point, Mother sat down on the curb with the child still wrapped
around her. The child, as could be seen in the bodycam video recording, “was
screaming she does not want to go with dad.” Father told Officer Leek that
he expected Mother was “going to be contesting putting the child in the car”
and he “insisted” on taking the child home that day because he had “a
hundred percent physical custody.” Father told Officer Leek that “basically
they went through this a couple of weeks ago . . . [and] he did not want to let
the child go with [Mother] that night.”
To resolve the situation, Officer Leek wanted one of the parents to
“cooperate,” by which he meant one of them would “back down so the
screaming would stop.” Officer Leek felt this was the only solution because
he didn’t want to “physically rip the child off of [Mother’s] neck,” and Mother
7
was not making a good faith effort to place the child in the car. He agreed
with his sergeant who told Mother: “I’m not going to take any little kid’s arm
from yours, from you, and put them in the car. I’m not going to do that. And
if [the child] doesn’t want to let go and you can’t get her in the car, then I
guess she’s going to stay with you.”
In Officer Leek’s experience, one parent will usually back down within
15 or 20 minutes. On this call, however, the situation lasted for
approximately two and a half hours. He found both parents “uncooperative”
in the sense that Father wanted to assert his legal rights while Mother “was
just uncooperative in many ways.” Ultimately, the child went with Mother
under “protest of [the] father,” who was “making allegations that [Mother
was] abducting the child.”
Officer Leek did not believe it was child abduction for Mother to take
the child home because “there was no maliciousness” on her part. But he
found “this child custody dispute” to be “concerning” because it was
“unnecessary and unneeded.” In his 28 years of experience, “this would be
top three of calls [he has] had to deal with,” leading him to request the
presence of his sergeant because of how unproductive the situation had
become. In his opinion, it “could have been handled quickly and decisively,”
without police intervention and “all that screaming” and “tortur[ing] [of] a
child.” Officer Leek believed that a doctor (Mother) and a teacher (Father)
should have been able to “completely avoid[ ]” the situation.
When asked whether he believed “one of the parties was the aggressor,”
Officer Leek answered: “Yes. I wouldn’t say the word aggressor. I would say
more of an agitator.” He identified Mother as the agitator, and believed the
situation “went downhill so quickly” because of Mother’s “attitude” and her
“belligerent behavior” for nearly the entire time he was present. He believed
8
Mother did not make a “good faith, genuine effort” in following his
instructions to put the child in Father’s car. On the other hand, Officer Leek
described Father as “extremely calm” and “very professional.”
Officer Leek had no concerns about the child’s physical welfare, other
than she was sick, and no concerns about the child’s emotional or mental
welfare during the incident. Father’s attorney then asked (in a leading
question) if Officer Leek believed the “mother’s actions were harmful to the
child,” and Officer Leek testified that, based on his personal experience of
raising three kids, “this scenario was definitely not good for a kid.”
B. Father’s Testimony
Father took the child to the May 29 supervised visit to see Mother even
though he was “conflicted” about it. The child had been sick the day before
and had vomited that day, and he was concerned “her health would make it a
difficult visit.” On the other hand, Father believed it would be “beneficial” for
the child to see Mother since their visits had been suspended for two weeks.
When Father arrived with the child to the visitation center, they met
with the monitor on the first floor to facilitate the exchange. However,
Mother came down from the upper floor, where she had been instructed to
wait for the monitor, and “surprised” them. It was then that the child
vomited. Mother picked her up and “right away started to condemn” Father
for “roughly five to ten minutes” for not taking the child to the doctor earlier.
The monitor directed Mother to stop and took her upstairs to speak with her
one-on-one. When Mother came back down, she was “very agitated” and
“demanding” that Father take the child to the urgent care immediately.
Father decided “it was in everybody’s best interest to take [the child] to
get immediate medical help, . . . the situation had really escalated with [the
monitor] losing control because of [Mother’s] loud voice and the events that
9
occurred right in front of [the child].” Father “agreed” with Mother that she
could come to urgent care, but he repeatedly told her that she could not be “in
the proximity of [the child]” without a monitor present. The monitor had
offered to go with Mother so that she could continue the supervised visit at
urgent care, but Mother declined her offer.
Mother arrived at the urgent care less than five minutes after Father
did, immediately took the child from him, and began to “criticize” him again
for the child’s condition. Father did not like Mother holding the child, he felt
upset that the child sought to be comforted by Mother and not him, and he
felt that Mother was “overstepping her boundaries and not allowing [him] to
give [the child] the comfort and the support [he] was entitled to give.” Father
believed Mother not only broke their agreement that she would be in passive
attendance at the urgent care visit, but that she was violating the child
custody orders by holding the child. He also felt “insulted” that Mother was
accusing him of not taking proper care of the child.
When he thought the situation was going to “be heated,” Father moved
away from Mother to get some space, but “she followed [him] to an area
where [they] could talk a little bit but still in earshot” of people in the waiting
room. Mother began to film Father with her phone “[i]nches away” from his
face. This caused Father to feel “threatened” and “harassed.” He felt “angry
by the fact that [he] had agreed to allow her . . . to go to urgent care on [his]
watch” and she “would come in and create an instantly chaotic, emotionally
damaging situation.” Needing to get “some control,” Father asked a security
guard to call the police. He told the security guard: “[T]his is out of control.
We have a custody issue. I’m getting harassed. She’s sticking the phone in
my face.” The police responded within “15 minutes or less.”
10
Around the time that the police arrived, the parties took the child into
an examination room to be seen by a doctor. Inside the examination room,
Mother was “very aggressive” and “[s]he asserted [sic] herself into the
doctor’s diagnosis.” Father became “very concerned because [he] saw a
heightened emotional level” in the child and “a doctor who wasn’t able to do
his job and who was now trying to play between these two opposing parties.”
Mother’s behavior “caused too much anxiety” for Father, and he felt
“excluded” in the decision-making process. Father also felt “offended”
because Mother took over the discussions with the doctor about the child’s
medical condition. To try to diffuse the situation, Father left the examination
room and waited in the attending area. He felt leaving was “best for the
physician and best for [the child]” because “she was being put in between two
parents who desperately want to see her get healthy but who were placing
her in harm’s way.” The child was discharged with strep throat.
Once outside the hospital, Father wanted to take the child home, but
the child held tight to Mother and refused to go with him. Mother attempted
to put the child in Father’s car multiple times and told the child that she
needed to go with Father. Each time, the child screamed “at the top of her
lungs” that she wanted to go with Mother. Father believed that Mother could
have tried harder to get the child into his car, and he continued to insist the
child leave with him because he had physical custody. Father explained: “It
was my sincere hope that [Mother] would make a good faith effort in helping
[the child] understand that she needed to go with me. This was the second
time this [child custody] order . . . had been thrown to the ground and not
followed. [¶] And I was concerned about the consequences of her staying
with her mom, being sick for multiple days, and how that would affect my
11
relationship with her and her ability to connect with me and do what I was
asking her to do and be a good father for her.”
Father acknowledged that one of the officers told Mother that the child
could go home with her since the child refused to leave with him. Ultimately,
Mother took the child home with her on May 29 and kept her for five days.
Father eventually picked up the child from school the following Monday.
Immediately following the May 29 incident, Father felt “[u]tter turmoil,
emotional turmoil” and “devastated” because the child was not with him and
he felt “powerless to do anything” in the moment.
When asked if Mother had previously engaged in “this type of
harassing behavior,” Father described the May 15 incident. On that day,
after Mother’s supervised visit ended, the child was “screaming at the top of
her lungs,” hyperventilating, and arguing with Father and the monitor that
she did not want to go home with him. Mother then came downstairs a few
minutes later when the child had already been “emotionally distraught.” The
child ran into Mother’s arms crying, and Mother began to comfort her. At
this point, the monitor accused Mother of interfering and the monitor called
the police. Mother videotaped Father and the monitor during this incident.
While they waited for the police to arrive, neither Mother nor Father
was able to get the child into Father’s car. During the one-and-a-half hours
that they waited for the police, the child screamed “nonstop” and “begg[ed]” to
leave with Mother. At some point, Mother told Father she was taking the
child home with her and told him that when the police arrived, “to give them
her phone number so [Father] could pick up [the child].” Father
acknowledged that when he alleged Mother had “abducted” the child in his ex
parte application, filed with the court on May 16, 2019, he had stated (under
penalty of perjury) that he did not know where the child was. Father
12
admitted this was a “false” statement. After Mother left with the child,
Father did not inquire of the monitor whether the police ever arrived that
night and he “made no effort” to pick up the child from Mother’s residence.
Another incident where Father felt “harassed” by Mother occurred in
March 2018 at the child’s school where the police were called. When Father
arrived at the school, Mother was “irately communicating” with the police
and school administrators while videotaping Father and yelling at him in the
child’s presence. Father testified there have been three welfare checks at his
home by the San Diego Police Department and six to seven visits from a
Child Welfare Services social worker, in the last two years. Although he did
not initiate these services, Father did not testify Mother did either.
Father believed Mother violated the TRO on January 20, 2020 when, at
a scheduled exchange of the child at Mother’s home, Father saw Mother
videotaping him as he was outside leaving her residence. It made him feel
“uncomfortable.” Mother has filmed him on other (unspecified) occasions
when he was picking up the child at school on his custodial days, making him
feel “[t]hreatened” and “[o]dd.” Father also testified Mother violated the TRO
when she sent him “e-mails . . . threatening and signing it under [her sister
K.R.’s name].” 6 Father agreed that the “majority” of his disputes with
6 When K.R. testified, Father’s attorney inquired about one email sent to
Father on January 9, 2020. K.R. testified she sent it, and it was about
Father’s allegedly late cancellations of scheduled visits interfering with
Mother’s cancer treatments. When Mother’s attorney attempted to inquire
further on the subject, the court questioned its relevance and Mother’s
attorney explained that she was attempting to establish that Mother did not
send any emails to Father in violation of the TRO. Both Father and the court
then stated, “that’s been established.”
13
Mother, who is herself a doctor, in the last 12 months centered on the child’s
medical care.
C. Mother’s Testimony
Mother testified that when she first saw the child on May 29, the child
was vomiting on the floor. The child then got up and ran into Mother’s arms
and said she was feeling “sick and nauseated.” The monitor told Mother the
visit would be cancelled because the child was “too sick.” Concerned about
the child’s condition, Mother had a “disagreement” with Father and the
monitor about taking the child to urgent care immediately, but they “yell[ed]”
at Mother that the child needed to go home with Father since the child had a
doctor’s appointment scheduled for the following day. During this exchange,
Mother was video recording Father, but claimed a prior family court order
permitted the parties to do so during exchanges.
Mother refused to place the child in Father’s car until Father agreed to
take her to urgent care. Eventually, Father agreed to take the child to
urgent care and to have Mother follow them there. Based on their
agreement, Mother placed the child in Father’s car. Mother was otherwise
aware that she was required by court order to leave the visitation center
immediately after her supervised visit.
Once at the urgent care lobby, Mother held the child as they waited for
the doctor. Soon after their arrival, Father asked the security guard to call
the police because Mother was violating the court order by holding the child.
This led Mother to begin filming Father again “for protection,” which she
then continued to do for “the majority of the time” they were at the hospital
at a distance of “several feet” from Father.
Mother described herself during the May 29 incident as a “distressed
mother,” “a mama bear, protecting my child.” Mother believed that there was
14
nothing she could say to the child to get her to go with Father after the
urgent care visit. She explained the only reason she was able to get the child
in the car earlier at the visitation center was because she assured the child
that she would join her at the urgent care. When asked if she violated the
court order by taking the child home after the urgent care visit, Mother
invoked her Fifth Amendment right upon advice of her attorney.
As for the May 15 incident, Mother testified she waited, as she had
been instructed, for 15 minutes after the visit concluded before she went
downstairs. Mother admitted she took the child home with her after the
supervised visitation ended because the child “was in distress,” “crying and in
fear,” and refusing to leave with Father. However, she told Father that she
was taking the child home with her and to call her when the police arrived.
Mother did not believe she was violating the court order because, she
claimed, the police had previously told her the child could leave with her if
she was distressed and refused to go with Father. Mother acknowledged the
court order itself made no exception if the child was in distress.
D. The Trial Court’s Ruling
The trial court ruled that Father met his burden of proof in
demonstrating that Mother had committed “domestic abuse” and issued a
three-year DVRO protecting Father and the child against her.
The court found it “certainly true” that Mother “is passionate about her
daughter’s welfare” but concluded that Mother’s conduct during the May 29
incident was “obsessive,” and that she was “aggressive and controlling” in her
demands that Father take the child to urgent care when “[s]he did not need
emergency care.” It found Mother’s conduct “escalated an already
emotionally intense situation, and subjected both the [Father] and the child
15
to further distress,” and “she manipulated that child’s already sensitive
emotional state to a degree that was not acceptable.”
The court found “from the video” that her “tone, demeanor, and manner
was aggressive. Her speech was rapid and persistent throughout, with both
the police officers and with the [Father], and in no way did she act to lessen
the anxiety and tension of the circumstance. She acted in quite the
opposite.” 7 Recalling Officer Leek’s testimony that this was “one of the
worse” calls regarding “domestic issues between parties” of his 28-year
career, the court found Mother “escalated [the situation] beyond control.”
The trial court found that the May 29 incident “was a completely
avoidable circumstance” had Mother “simply abided by the boundaries and
parameters of the Court’s [child custody] orders.” It found that Mother
“focuses on the decision-making and the choices being made by [Father] in
terms of how he is choosing to parent the young [child] . . . who,
unfortunately, has fallen victim to the conflicts between these two
individuals.” The court determined that Mother “simply did not belong at the
hospital and had no business being there.”
Although the trial court “focus[ed] its decision” on Mother’s conduct
during the May 29 incident, it found “relevant” that there was a “prior
incident” on May 15 “where [Mother] did not leave the visitation, as required
7 The video exhibits admitted at the hearing provide support for the trial
court’s description of Mother’s conduct. We accept these findings and do not
reweigh the evidence. But we do note that Mother’s interactions in the
urgent care parking lot appear to be almost entirely with the police officers,
and not with Father. Indeed, when Father attempted to speak to her, Mother
can be heard responding, “Please don’t talk to me. [Father], please don’t talk
to me.”
16
by the [child custody] order.” The court made no findings that Mother
violated the TRO.
Based on these findings, 8 and relying on In re Marriage of Nadkarni
(2009) 173 Cal.App.4th 1483 (Nadkarni) and progeny cases, the trial court
concluded Mother had committed abuse within the meaning of the DVPA by
disturbing Father’s peace and mental calm. In particular, the court relied on
Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 817 (Menjivar) and
Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140 (Burquet) to find that
“controlling and coercive behavior” and “an unwanted course of conduct” can
violate a person’s peace and mental calm and constitute domestic abuse.
Finally, the court included the child as an additional protected party in
the DVRO “based on the fact that [Mother] has a disregard for court orders.”
The court found that Mother’s behavior “very clearly” shows that while she
believes she is acting in the child’s best interest, each time “she drove away
with [the child] . . . because [Father] ended up giving in and allow[ed] the
[child] to be taken away by Mother,” Mother “persists in acting in a behavior
that is incredibly detrimental to her daughter’s best interests.” 9
8 Father testified he “felt threatened” and “harassed” when Mother was
“sticking the phone in [his] face.” Father’s attorney argued that this
happened “repeatedly” and that Mother filmed him “for two hours.” The trial
court did not make any findings as to Mother’s video recordings, and Father
did not refute Mother’s claim that a prior family court order permitted the
parties to video record exchanges of the child. We do note from the video
evidence in our record that none shows Mother holding a phone “in [Father’s]
face.” Instead, Mother held her cell phone close to her body and directed it at
whomever was close to her at the time, which was primarily the police
officers.
9 We are aware the trial court likely had in mind the history of what
appears to be a long, contentious custody battle between the parties in a
nearly five-year-old dissolution case. Indeed, in his closing remarks, Father’s
17
DISCUSSION 10, 11
On appeal, Mother contends the trial court erred in issuing the DVRO.
Although we agree with the trial court that Mother’s behavior did nothing to
attorney argued that “Dr. Sparta testified at length that he believes there is a
cognitive inability for [Mother] to consider her own wrongdoing.” Since Dr.
Sparta did not testify at the DVRO hearing, we infer that Father’s attorney
was referring to evidence introduced at a different proceeding. However, no
such evidence was introduced at the DVRO hearing and no such evidence was
relied on by the trial court in issuing the DVRO. Because we are constrained
by the record before us, we limit our review to the evidence considered by the
court in rendering its decision. (Estate of Johnston (1967) 252 Cal.App.2d
923, 931 [invoking “well-established rule of appellate review that this court
cannot consider matters which are not included in the record on appeal”].)
10 Mother moved to strike the declaration of the director of the visitation
center, incident reports for the May 15, 2019 and May 29, 2019 supervised
visits, and a September 29, 2020 trial court order, as well as portions of
Father’s responding brief on appeal that rely on these records. Because none
of these records were admitted at the hearing, nor relied on by the trial court
in its decision, or were events that occurred after the trial court rendered its
decision, we grant Mother’s motion to strike the records and any portions of
Father’s brief referencing them.
11 Father moved to strike Mother’s brief in its entirety because it fails to
comply with the California Rules of Court. Mother is presently represented
by counsel, but she initiated this appeal as a self-represented litigant. A
person who forgoes attorney representation is not exempt from the rules of
appellate procedure or relieved of her burden on appeal. (Nwosu v. Uba
(2004) 122 Cal.App.4th 1229, 1246–1247 [self-represented litigants “must
follow correct rules of procedure” and their failure to do so forfeits any
challenge on appeal].) Mother’s burden on appeal includes the obligation to
provide a statement of facts in her opening brief conforming with California
Rules of Court, rule 8.204(a)(2)(C), which requires a “summary of the
significant facts limited to matters in the record.” Under this rule, Mother is
required to “[s]upport any reference to a matter in the record by a citation to
the volume and page number of the record where the matter appears.” (Cal.
Rules of Court, rule 8.204, subd. (a)(1)(C).) Mother does provide citations to
certain portions of the record, but these citations are few and far between.
18
lessen the anxiety and tension at the May 29 incident, and it demonstrated
poor co-parenting by her, we conclude that Mother’s conduct did not rise to
the level of destroying Father’s mental and emotional calm to constitute
abuse within the meaning of the DVPA.
I.
Standard of Review
We review the trial court’s grant or denial of a DVRO request for an
abuse of discretion. (In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th
220, 226.) “ ‘To the extent that we are called upon to review the trial court’s
factual findings, we apply a substantial evidence standard of review.’ ”
(Marriage of G., supra, 11 Cal.App.5th at p. 780.) “We draw all reasonable
inferences in support of the court’s ruling and defer to the court’s express or
implied findings when supported by substantial evidence.” (J.M. v. G.H.
(2014) 228 Cal.App.4th 925, 935.) “All conflicts in the evidence are drawn in
favor of the judgment,” and “[w]hen supported by substantial evidence, we
must defer to the trial court’s findings,” including its finding on the
credibility of witnesses. (Niko v. Foreman (2006) 144 Cal.App.4th 344,
364−365.)
However, “[j]udicial discretion to grant or deny an application for a
protective order is not unfettered. The scope of discretion always resides in
the particular law being applied by the court, i.e., in the ‘ “legal principles
governing the subject of [the] action[.]” ’ ” (Nakamura v. Parker (2007) 156
Cal.App.4th 327, 337.) Here, “we consider whether the trial court's exercise
Although this would be a sufficient basis to conclude that Mother has waived
her claims (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881), we
exercise our discretion to review the merits.
19
of discretion is consistent with the [DVPA’s] intended purpose.” (People v.
Rodriguez (2016) 1 Cal.5th 676, 685.) “ ‘If the court’s decision is influenced by
an erroneous understanding of applicable law or reflects an unawareness of
the full scope of its discretion, the court has not properly exercised its
discretion under the law. [Citation.] Therefore, a discretionary order based
on an application of improper criteria or incorrect legal assumptions is not an
exercise of informed discretion and is subject to reversal. [Citation.]’
[Citation.] The question of whether a trial court applied the correct legal
standard to an issue in exercising its discretion is a question of law [citation]
requiring de novo review [citation].” (Eneaji v. Ubboe (2014) 229 Cal.App.4th
1457, 1463.)
II.
“Disturbing the Peace of the Other Party” Under the DVPA
Under the DVPA, a court may issue a protective order “to prevent acts
of domestic violence, abuse, and sexual abuse and to provide for a separation
of the persons involved in the domestic violence for a period sufficient to
enable these persons to seek a resolution of the causes of the violence”
(§ 6220), upon “reasonable proof of a past act or acts of abuse” (§ 6300, subd.
(a)). The statute should “be broadly construed in order to accomplish [its]
purpose” of preventing acts of domestic abuse. (Nadkarni, supra, 173
Cal.App.4th at p. 1498.)
The DVPA defines “ ‘abuse’ ” as intentionally or recklessly causing or
attempting to cause bodily injury, sexual assault, placing a person in
reasonable apprehension of imminent serious bodily injury to that person or
to another, or engaging in any behavior that could be enjoined pursuant to
section 6320. (§ 6203, subd. (a).) “Abuse is not limited to the actual infliction
of physical injury or assault.” (§ 6203, subd. (b).) Rather, it includes a broad
20
range of harmful behaviors enumerated under section 6320, including
threats, stalking, annoying phone calls, vandalism, and most relevant here,
“disturbing the peace of the other party.” (§ 6320, subd. (a).)
A. Subdivision (c) of Section 6320
Effective January 1, 2021, section 6320 was amended by Senate Bill
No. 1141 (2019-2020 Reg. Sess.) (Senate Bill 1141) to add subdivision (c),
which defines “ ‘disturbing the peace of the other party’ ” as “conduct that,
based on the totality of the circumstances, destroys the mental or emotional
calm of the other party.” (§ 6320, subd. (c); Stats. 2020, ch. 248 (Sen. Bill
1141), § 2, italics added.) The “conduct may be committed directly or
indirectly, including through the use of a third party, and by any method or
through any means including, but not limited to, telephone, online accounts,
text messages, internet-connected devices, or other electronic technologies.”
(§ 6320, subd. (c).)
Subdivision (c) of section 6320 then identifies “coercive control” as but
one example of conduct that could disturb the peace of the other party.
“Coercive control” is defined as “a pattern of behavior that in purpose or effect
unreasonably interferes with a person’s free will and personal liberty.”
(§ 6320, subd. (c), italics added.) It is conduct that can include “unreasonably
engaging in any of the following: [¶] (1) Isolating the other party from
friends, relatives, or other sources of support. [¶] (2) Depriving the other
party of basic necessities. [¶] (3) Controlling, regulating, or monitoring the
other party’s movements, communications, daily behavior, finances, economic
resources, or access to services. [¶] (4) Compelling the other party by force,
threat of force, or intimidation, including threats based on actual or
suspected immigration status, to engage in conduct from which the other
party has a right to abstain or to abstain from conduct in which the other
party has a right to engage.” (§ 6320, subd. (c)(1)–(4).)
21
The legislative history of the amendment to add subdivision (c) to
section 6320 reveals that it was to “codif[y] and elaborate[ ] on case law
defining when a restraining order under the [DVPA] may be issued because a
person was ‘disturbing the peace of the other party’ (§ 6320), which includes
coercive control.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished
Business Analysis of Sen. Bill 1141, as amended Aug. 6, 2020, p. 1.) 12 This
history references several articles, studies, and cases highlighting that
coercive control and psychological abuse are “pervasive form[s] of abuse.”
(Assem. Com. on Judiciary, Analysis of Sen. Bill 1141, as amended Aug. 6,
2020, pp. 3–5.)
The legislative history also indicates the amendment of section 6320
was intended to “build[ ] on existing law and [was] not, in any way, meant to
reduce the protections available under existing law to victims of domestic
violence[.]” (Assem. Com. on Judiciary, Analysis of Sen. Bill 1141, as
amended Aug. 6, 2020, p. 6.) The amendment drew on existing case law to
define “ ‘disturbing the peace of the other party,’ ” including: Nadkarni,
supra, 173 Cal.App.4th 1483; N.T. v. H.T. (2019) 34 Cal.App.5th 595 (N.T.);
Burquet, supra, 223 Cal.App.4th 1140; In re Marriage of Evilsizor & Sweeney
(2015) 237 Cal.App.4th 1416 (Marriage of Evilsizor); and Menjivar, supra,
243 Cal.App.4th 816. (Id. at pp. 5–6.) We discuss Nadkarni and its progeny
next.
12 We take judicial notice of this report and the other legislative materials
referenced herein to aid in our interpretation of the phrase “disturbing the
peace of the other party.” (In re J.W. (2002) 29 Cal.4th 200, 211 [court may
take judicial notice of legislative history]; see Kaufman & Broad
Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26,
34−35, 39 [identifying legislative history documents that a court may take
judicial notice of].)
22
B. Nadkarni and its Progeny
The first case to interpret the meaning of the phrase “disturbing the
peace of the other party” under the DVPA was Nadkarni. In Nadkarni, the
former husband accessed his ex-wife’s email account during a child custody
dispute. (Nadkarni, supra, 173 Cal.App.4th at pp. 1488–1489.) The email
account was private and the ex-wife used it for confidential matters,
including to communicate with her clients and her family law attorney. (Id.
at p. 1489.) The former husband copied some of these emails and filed them
in the child custody case. (Id. at pp. 1488–1489.) He claimed he had more
emails in his possession that were “ ‘ “inflammatory and sensitive” ’ ” to
others and suggested that he may introduce them in future legal proceedings.
(Id. at p. 1490.) He also used information obtained from the email account to
subpoena third parties to find out what social events his ex-wife would be
attending and told others that he knew which social events she attended
within the past three months. (Ibid.) The ex-wife sought a restraining order,
arguing that, with the former husband’s history of physical and emotional
abuse, she feared for her safety and feared that he would use the improperly-
obtained emails “ ‘to control, harass, and abuse’ her if he were not enjoined
from such conduct.” (Id. at p. 1492.)
Although it issued a TRO, the trial court subsequently dismissed the
ex-wife’s request for a restraining order “on the pleadings” without a hearing
on the merits, finding that her former husband’s conduct did not “rise[ ] to
the level of conduct that is amenable to the Domestic Violence Prevention
Act.” (Nadkarni, supra, 173 Cal.App.4th at p. 1493.) On appeal, the trial
court was reversed. (Id. at p. 1501.)
The Nadkarni court construed the phrase “ ‘disturbing the peace of the
other party’ ” to mean “conduct that destroys the mental or emotional calm of
23
the other party.” (Nadkarni, supra, 173 Cal.App.4th at p. 1497.) It reached
that conclusion based on the ordinary meaning of “ ‘disturb’ ” and “ ‘peace,’ ”
and found support for its interpretation in the legislative history of the
DVPA. (Id. at pp. 1497–1498.) Enacted in 1993, the DVPA collected from
earlier provisions for the issuance of domestic violence restraining orders in
several former statutory schemes, with each of these provisions authorizing a
DVRO that enjoined “ ‘disturbing the peace’ ” of the other party. (Id. at p.
1498.) The court also found support in the 1979 Domestic Violence
Prevention Act (Code Civ. Proc., former § 540 et seq.), which similarly had a
“ ‘protective purpose,’ ” intended “ ‘to provide more protective orders to a
broader class of victims of domestic violence.’ ” (Ibid.) The court concluded
that the Legislature’s intent was to “broadly construe[ ]” the DVPA in order
to accomplish its purpose. (Ibid.) It thus held that “ ‘disturbing the peace’ ”
may include the former husband’s conduct in accessing, reading, and publicly
disclosing his ex-wife’s confidential emails. (Ibid.)
Nadkarni has since been followed by appellate courts to support the
issuance of a DVRO for non-violent conduct deemed to disturb the peace of
the other party. In Burquet, supra, 223 Cal.App.4th at pages 1142–1143, the
court affirmed the issuance of a DVRO against an ex-boyfriend who initiated
unwanted and unwelcomed contact with the petitioner for eight months after
their breakup. His communications were “inappropriate and contained
sexual innuendos.” (Id. at p. 1142.) After she repeatedly turned down his
overtures, the ex-boyfriend showed up at the petitioner’s house “unannounced
and uninvited” and refused to leave even when she threatened to call the
police. (Id. at pp. 1142–1143.) The petitioner was “scared” because the ex-
boyfriend on two prior occasions had gotten angry and “physical” with her.
(Ibid.) The court of appeal concluded there was substantial evidence to
24
support the issuance of the DVRO, finding that the ex-boyfriend’s “course of
conduct” disturbed the petitioner’s peace as defined by Nadkarni. (Id. at pp.
1144, 1147)
In Marriage of Evilsizor, supra, 237 Cal.App.4th at page 1420, a
husband downloaded “tens of thousands” of his wife’s text messages and
notes she kept on her cell phone, which she used as a diary. He then went
“uninvited” to the home of his wife’s parents and disclosed “private and
sensitive” information about her to them. (Ibid.) He filed copies of some of
the messages during the dissolution proceedings, and he also hacked into his
wife’s Facebook account, changed her password, and changed the email
address associated with the account to his own. (Id. at pp. 1420−1421.) The
trial court concluded, and the Court of Appeal agreed, that husband
disturbed wife’s peace “ ‘because [he was] going around either disclosing or
threatening to disclose to third parties for no particular reason intimate
details of [their] lives[.]’ ” (Id. at p. 1425.)
In Menjivar, supra, 243 Cal.App.4th at pages 817–819, an ex-girlfriend
requested a DVRO because, throughout their relationship and in addition to
being physically abusive, her ex-boyfriend was controlling, called her
multiple times a day, and isolated her from others. The ex-boyfriend enrolled
in three of the woman’s four college classes to monitor her, required her to
keep a telephone call open during the one class in which he was not enrolled
and while she was at home so that he could continue monitoring her. (Id. at
p. 817.) The ex-boyfriend also played with a knife close to her face,
threatened to beat her with a studded belt, threatened to send her to jail,
took her phone away when she tried to call for help, drove erratically during
a ride to the hospital while she was pregnant, and threatened to drive into
the path of an oncoming train. (Id. at pp. 817–818.)
25
Despite these and other incidents, the trial court in Menjivar denied
the ex-girlfriend’s request, finding that the evidence of physical abuse was too
remote in time and the evidence of mental abuse and controlling behavior
were not relevant to its determination. (Menjivar, supra, 243 Cal.App.4th at
pp. 818–819.) The appellate court reversed because “[m]ental abuse is
relevant evidence in a DVPA proceeding.” (Id. at p. 821.) The court held that
the testimony before the trial court “revealed significant acts of emotional
abuse, well beyond accessing and disseminating texts and e-mail. The acts of
isolation, control, and threats were sufficient to demonstrate the destruction
of [the ex-girlfriend’s] mental and emotional calm.” (Id. at p. 822.)
In N.T., supra, 34 Cal.App.5th at pages 597, 600, a wife sought a DVRO
because her husband repeatedly violated a TRO, which ordered, among other
things, that he limit communications with her to “ ‘[b]rief and peaceful
contact’ ” concerning visitation. At several child custody exchanges, however,
the husband refused to hand over the child until his wife engaged in
conversation with him. (Id. at p. 598.) The husband had become more
“ ‘aggressive with his constant harassment,’ ” urging his wife to kiss him and
hold his hand, and telling her that she had demons and that she had
responsibilities as his wife. (Ibid.) He also once followed the wife after a
visitation exchange, was once seen “ ‘around [the wife’s] house’ ” despite the
fact that her address was confidential pursuant to the TRO, and once took
the child from the wife at a time and in a place that was not agreed upon in
the TRO. (Id. at pp. 599–600.) He also gave the wife a letter at one
exchange, which “quoted or paraphrased several verses from the Bible
regarding overcoming sin and demons, intermixed with [husband]’s
comments regarding [wife]’s ‘dirtiness’ resulting from her childhood
experiences.” (Id. at p. 600.) The trial court denied the wife’s DVRO request
26
because it found that “ ‘technical violations of the TRO’ ” did not constitute
domestic violence. (Id. at p. 601.) On appeal, the court held that the conduct
alleged, even without the existence of a TRO, would be sufficient to destroy
the wife’s mental or emotional calm and thus “would have justified the
issuance of a DVRO on their own.” (Id. at p. 603.)
C. “Guardrails”
In amending section 6320, the Legislature intended to “better protect[ ]
victims of domestic violence by . . . codifying language from case on law on
destroying the other party’s mental or emotional calm” and specifically
including “coercive control” within the definition of “disturbing the peace of
the other party.” (Assem. Com. on Judiciary, Analysis of Sen. Bill 1141, as
amended Aug. 6, 2020, p. 1.) But the Legislature was also concerned about
expanding the scope of abusive conduct beyond what was necessary, taking
care to “to limit the application of its provisions to clearly abusive behaviors.”
(Sen. Judiciary Com., Analysis of Sen. Bill 1141, May 6, 2020, p. 7.) For
instance, the examples of coercive control added to the statute set forth
certain parameters“a mental state, objective reasonableness, causation,
foreseeable harm, actual harm”to “provide strong guardrails to help ensure
that the bill will function as intended and not reach benign conduct that is
ordinarily tolerated in relationships or that does not actually distress the
person.” (Id. at pp. 7–8, italics added.)
These “guardrails” are necessary because “[a] protective order
implicates fundamental liberty rights, as a violation of its provisions is a
crime (Penal Code § 273.6), and it is a factor that is weighed in child custody
and visitation determinations (see §§ 3011, 3030, 3044).” (Sen. Judiciary
Com., Analysis of Sen. Bill 1141, May 6, 2020, p. 7.) As one court has noted,
“a domestic violence restraining order is no ordinary injunction. Its violation
27
is punishable as a misdemeanor. (Pen. Code, §§ 166, subd. (c)(3)(A); 273.6.)
Arrest is mandatory where an officer has probable cause to believe the order
has been violated. (Pen. Code, § 836, subd. (c)(1).)” (Curcio v. Pels (2020) 47
Cal.App.5th 1, 13, fn. 6 (Curcio).) “Moreover, ‘[t]here often will be some social
stigma attached while a person is subject to a protective order. Existing
employers may frown on an employee who is subject to such an order and
prospective employers almost surely will. Thus the restrained party may lose
out on a promotion or a job.’ ” (Ibid., quoting Ritchie v. Konrad (2004) 115
Cal.App.4th 1275, 1291 (Ritchie).) Further still, under section 3044,
subdivision (a), a finding that a parent committed domestic abuse raises a
rebuttable presumption that an award of sole or joint physical or legal
custody of a child is “detrimental to the best interest of the child.” (§ 3044,
subd. (a).)
Respecting these guardrails, courts are concluding that “[t]he 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.” (Curcio, supra, 47 Cal.App.5th at p. 13.) In Curcio, the
petitioner sought a DVRO against her ex-girlfriend who, like the petitioner,
was a comedic performer. The petitioner alleged her ex-girlfriend had falsely
and publicly accused her of physical and sexual assault in attempt to have
her banned from the theater where the petitioner performed. (Id. at p. 4.)
This included a Facebook post made by the ex-girlfriend containing vague
assault allegations against the petitioner and urging people to not book her
for performances. (Id. at pp. 5–6.) The trial court issued the restraining
order on the basis of the Facebook post, finding that interfering with a
person’s ability to earn a living “ ‘would disturb the peace of any reasonable
person.’ ” (Id. at p. 8.)
28
In reversing the trial court, the Court of Appeal held the evidence did
not meet the Nadkarni court’s definition of “ ‘disturbing the peace.’ ” (Curcio,
supra, 47 Cal.App.5th at pp. 12−13.) It concluded that the ex-girlfriend’s
“single, private Facebook post accusing [petitioner] of abusing her is a far cry
from the conduct described in [Nadkarni, Marriage of Evilsizor, and
Burquet].” (Id. at p. 13.) Beyond that single post, there was no evidence that
the ex-girlfriend sent the petitioner harassing, threatening, or unwanted
texts or emails, as in Burquet, and there was no evidence that the ex-
girlfriend published or distributed to third parties the petitioner’s private
information or messages, as in Nadkarni and Marriage of Evilsizor. (Ibid.)
Although recognizing the petitioner “was upset by the social media post and
it may have made her fear for her career,” the court concluded “it cannot be
said to rise to the level of destruction of [the petitioner’s] mental and
emotional calm, sufficient to support the issuance of a domestic violence
restraining order.” (Id. at p. 13.)
III.
Mother’s Conduct Did Not Constitute “Disturbing the Peace of the Other
Party” Within the Meaning of the DVPA
In this case, the trial court issued the DVRO on the basis that Mother’s
conduct disturbed Father’s peace, relying on Nadkarni and its progeny cases.
It correctly noted that courts have “define[d] disturbing the peace as conduct
that destroys the mental or emotional calm of the protected party.” The court
also called out specifically Menjivar for the proposition that “controlling and
coercive behavior” can violate a person’s peace and constitute abuse, and
Burquet for the proposition that “an unwanted course of conduct” can
similarly constitute abuse. While these are generally true propositions, a
comparison of Mother’s conduct to the conduct in Menjivar and Burquet, and
29
the other Nadkarni progeny cases, compels us to conclude that the issuance
of a DVRO on the facts of this case was improper because Mother’s conduct
was insufficient to support a finding that she “destroyed” Father’s mental or
emotional calm. The trial court, therefore, went over the “guardrails” put in
place by the legislature to ensure the DVPA reached only “clearly abusive
behaviors.” 13 (Sen. Judiciary Com., Analysis of Sen. Bill 1141, May 6, 2020,
pp. 7−8.)
As an initial matter, we accept the trial court’s findings that Mother
acted “obsessive[ly]” during the May 29 incident; that she was “aggressive
and controlling” in her demands that Father take the child to urgent care;
that Mother “escalated an already emotionally intense situation” and caused
Father and child “further distress”; that Mother “manipulated [the] child’s
already sensitive emotional state”; that Mother had an “aggressive” tone,
demeanor, and manner with the officers and Father; and that Mother
violated the terms of the child custody orders and has shown a “persistent
disregard for court [child custody] orders.” The record demonstrates that
there was substantial evidence to provide support for the trial court’s
interpretation of the evidence. We also have no doubt that Mother’s behavior
in her co-parenting with Father causes him (and the child) needless distress
in an already emotionally fraught custody dispute. But that conduct, no
13 We recognize that when the DVRO was issued in this case, the trial
court did not have the opportunity to consider the amendment to section 6320
and subdivision (c), which became effective on January 1, 2021 or Curcio,
supra, 47 Cal.App.5th 1, which was issued the day after the court granted
Father’s request. Even so, the legislative amendment simply codified
existing case law. (Assem. Com. on Judiciary, Analysis of Sen. Bill 1141, as
amended Aug. 6, 2020, p. 3.)
30
matter how disagreeable, is not enough to establish domestic abuse within
the meaning of the DVPA.
Mother’s conduct is a far cry from the conduct in Menjivar, where the
ex-boyfriend engaged in a pattern of behavior that intimidated, isolated, and
controlled Rodriguez, to include calling her multiple times a day, monitoring
her movements and conversations, playing with a knife near her face,
threatening to beat her and send her to jail, preventing her from calling for
help, and endangering her life while in a car. (Menjivar, supra, 243
Cal.App.4th at pp. 817–818.) In fact, the legislative history of the
amendment to section 6320 refers to Menjivar as “a stark example of the type
of harmful conduct that would be covered” by the amendment to section 6320.
(Sen. Judiciary Com., Analysis of Sen. Bill 1141, May 6, 2020, p. 6.)
Nor is Mother’s conduct anything similar to that in Burquet, where the
court affirmed the issuance of a DVRO against an ex-boyfriend who engaged
in an eight-month long campaign of unwelcomed and unwanted contact of his
ex-girlfriend after a breakup and for having once appeared at her home
unannounced and refusing to leave. (Burquet, supra, 223 Cal.App.4th at pp.
1142–1143.)
Mother’s behavior is also unlike the pattern of behavior in N.T.,
wherein the husband, during or after multiple child custody exchanges,
refused to hand over the child unless the wife engaged in conversation with
him “about issues in excess of those necessary” to custody exchanges (N.T.,
supra, 34 Cal.App.5th at p. 603), requested intimate physical contact,
followed the wife after an exchange, was once seen in her undisclosed
neighborhood, took the child before the start of his visitation and from a
different location than as set forth in the TRO, and handed the wife a letter
in violation of the TRO (id. at pp. 597–600).
31
Mother’s conduct, although distressful to Father, was also significantly
different from the invasion of privacy and the threats to release private
communications and diary entries, as in Nadkarni, supra, 173 Cal.App.4th
1483, and Marriage of Evilsizor, supra, 237 Cal.App.4th 1416, or the acts of
following the other party and being observed in their undisclosed
neighborhood, as in N.T., supra, 34 Cal.App.5th 595.
In this case, Mother’s “aggressive and controlling” or “manipulat[ive]”
conduct was in her demands that Father take the child to urgent care, 14 in
her failure to make reasonable and good faith efforts to put the child in
Father’s car, and in her failure to lessen an emotionally intense situation
all during a single two-hour incident that ended with her taking the child
home in violation of the custody order. There is a significant chasm between
Mother’s conduct and conduct that has been found by courts to have
destroyed the mental peace or emotional calm of the other person under the
standard of Nadkarni. Her conduct simply does not fall within the ambit of
subdivision (c) of section 6320, such as unreasonably isolating the other
party, depriving them of basic necessities, controlling or monitoring their
movements, or compelling them by force or intimidation to engage in conduct
that they have a right to abstain from or to abstain from conduct that they
have a right to engage in. (§ 6320, subd. (c)(1)–(4).)
Trial courts are routinely presented with contentious disputes following
the breakdown of a family unit. Some of these disputes can lead to physical
abuse, unwelcome contact, threats, and coercion. In those contexts, a DVRO
is the proper mechanism to protect the petitioning party. We are cognizant
14 We note that Mother had joint legal custody pursuant to the family
court’s child custody orders, which gave her equal rights and responsibilities
to make decisions related to the child’s health.
32
that this area of the law is not amenable to bright line rules and that trial
courts must exercise their discretion based on the facts before them. That
discretion, however, must be exercised within the legal bounds of the statute
and in furtherance of the statute’s intent and purpose. The Legislature
sought to “limit the application of its provisions to clearly abusive behaviors.”
(Sen. Judiciary Com., Analysis of Sen. Bill 1141, May 6, 2020, pp. 7–8.)
While the DVPA should “be broadly construed in order to accomplish [its]
purpose” (Nadkarni, supra, 173 Cal.App.4th at p. 1498), it cannot be used to
restrain “any act that upsets the petitioning party” (Curcio, supra, 47
Cal.App.5th at p. 13).
In that regard, it may be helpful to make explicit what was implicit
in Nadkarni and its progeny, which is that a trial court must consider
allegations of abuse not just through the subjective lens of the petitioning
party, but also through an objective lens. In codifying Nadkarni and its
progeny in section 6320, subdivision (c), the Legislature stated there must be
“objective unreasonableness” in the conduct alleged to be coercive control.
(Sen. Judiciary Com., Analysis of Sen. Bill 1141, May 6, 2020, p. 7.) Thus,
section 6320, subdivision (c), defines coercive control as “a pattern of behavior
that in purpose or effect unreasonably interferes with a person’s free will and
personal liberty” or where the other party “unreasonably engag[es] in” certain
conduct. (Italics added.) “ ‘[A]buse,’ ” itself, is defined to include “plac[ing] a
person in reasonable apprehension of imminent serious bodily injury to that
person or to another.” (§ 6203, subd. (a)(3), italics added; see also § 6250.5
[authorizing the issuance of an ex parte emergency protective order to a
police officer who “asserts reasonable grounds to believe that there is a
demonstrated threat” (italics added)].) Similarly, the court in Ritchie, supra,
115 Cal.App.4th 1275, held that a contested request for the renewal of a
33
DVRO must be accompanied by a “ ‘reasonable apprehension’ of future
abuse.” (Id. at p. 1289, italics added.) “It is not enough [that the petitioner]
entertain a subjective fear the party to be restrained will commit abusive acts
in the future. The ‘apprehension’ those acts will occur must be
‘reasonable.’ ” (Id. at p. 1288.)
We conclude the trial court abused its discretion in finding Mother’s
conduct “disturbed” Father’s peace within the meaning of the DVPA because
her conduct did not rise to the level of destroying Father’s mental and
emotional calm within the meaning of the DVPA. Our decision to reverse
should not be interpreted as condoning Mother’s behavior, including any
violations by her of child custody orders. It does not. But under the laws
governing child custody (§ 3000 et seq.), if a court determines that a parent’s
behavior is detrimental to a child’s health, safety, or welfare, then the court
has broad discretion to control the parent’s interactions through the issuance
or modification of child custody and visitation orders. (§ 3022 [“The court
may, during the pendency of a proceeding or at any time thereafter, make an
order for the custody of a child during minority that seems necessary or
proper.”].) The trial court had all the authority under the Family Code to
handle, as described by Officer Leek, what “boiled down to . . . a child custody
dispute.” The DVRO, however, was not appropriate based on the facts of this
case.
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DISPOSITION
The DVRO restraining Mother is reversed with directions to the trial
court to enter an order denying Father’s request for a DVRO. The parties are
to bear their own costs on appeal.
DO, J.
I CONCUR IN THE RESULT:
BENKE, Acting P. J.
I CONCUR:
IRION, J.
35