Marjorie R. v. Medeiros CA1/1 ( 2024 )

Filed 5/14/24 Marjorie R. v. Medeiros CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
MARJORIE R.,
Plaintiff and Respondent,
A168121
v.
MARIO MEDEIROS, (Sonoma County
Super. Ct. No. SCV-272820)
Defendant and Appellant.
In this dispute between members of a multi-generational family, the
superior court issued a restraining order requested by Marjorie R. under the
Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act;
Welf. & Inst. Code,1 § 15600 et seq.). The restraining order prohibited
Marjorie R.’s son-in-law, Mario Medeiros, from engaging in abusive conduct
toward her; ordered him to move out and stay away from the family home;
and restricted his possession of firearms. On appeal, Medeiros argues that
the restraining order was not supported by substantial evidence. He also
1 All undesignated statutory references are to the Welfare and
Institutions Code.
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raises a host of constitutional claims, alleging violations of due process, the
First Amendment, and the Second Amendment. We affirm.
I. BACKGROUND
On March 10, 2023, Marjorie R.—age 83 and representing herself—
filed a request under the Elder Abuse Act for a restraining order against
Medeiros, who rented a room in her house. Marjorie R. declared she was
emotionally harmed by two acts of abuse and asked for an order requiring
Medeiros to stay away from her, to have no contact with her, to move out of
the family home, to not intimidate, molest, threaten, harass, or otherwise
disturb her, and to not otherwise disturb her peace. She stated she did not
know whether Medeiros owned or possessed firearms. She reported he had
threatened her in the home which she owns and where she resides. She
requested a temporary restraining order pending the hearing, explaining that
she had not told him about her request because she “believe[d] that he might
retaliate and become angry.”
With respect to the most recent act of abuse, Marjorie R. stated she was
sitting in her recliner in her living room around 8:00 p.m., and Medeiros was
sitting at the kitchen counter eating dinner. After she told Medeiros that “he
needed to please fix the broken pipe outside,” Medeiros walked to her chair,
got really red in the face, started waving his hands in the air and stated:
“ ‘You fucking old bitch, I’m not fixing shit, you[’]re nothing but a fucking
bitch and I[’]m sick of you. All you do is believe everyone else[’]s opinions
about me. You just sit here in your wheelchair all day & we take care of you
and I[’]m not doing shit for you anymore Bitch.’ ” Then, while inching closer
to her face and almost touching it with his pointed finger, he cursed at her
and declared: “ ‘We shouldn’t of even brought home food for you from the hall
you bitch.’ ” Medeiros repeated, “ ‘You[’re] nothing but an old fucking bitch.’ ”
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After Marjorie R. told Medeiros to get out of her house and “never look back,”
Medeiros responded: “ ‘I[’]m taking Mary [Marjorie R.’s daughter] with me
then & you’ll have no one to take care of you, you old bitch.’ ” Medeiros then
began walking down the hall to his bedroom, and Marjorie R. told him to
have a “good night” and to “get out.” Medeiros turned around and came back
to the foot of Marjorie R.’s recliner, yelling: “ ‘Fuck you bitch, I[’]m the only
big guy here who does anything.’ ” He turned around again, walked into his
bedroom, and slammed the door. Mary then got up from the kitchen counter
and followed Medeiros into the bedroom.
The second incident of abuse occurred four or five months earlier when
Medeiros got upset with his son’s partner and her children for playing with
his dog. After the partner went into the house to tell Marjorie R. what was
going on, Medeiros followed and yelled at her, “ ‘[T]his is a family matter and
you need to get the fuck out bitch.’ ” According to Marjorie R., the partner
stayed put because she did not trust Medeiros and his temper around
Marjorie R. Medeiros continued to argue that the house was his home, and
he was the only one who did anything there. When Marjorie R. stated she did
not trust Medeiros and did not want him around anymore, Medeiros got red
in the face and got “real close” up near her face, yelling: “ ‘You[’]re nothing
but and old Fucking bitch and your grandson is nothing but a piece of shit
who just tells you lies about me.’ ” The partner yelled back at Medeiros to
“get out” of Marjorie R.’s face and leave the house, and he began “getting into
her face” and yelling, “ ‘Fuck you bitch.’ ” The partner called the police, and
Mary kept yelling at Medeiros to “ ‘shut up and just stop fighting with
everyone.’ ” He would stop for a second and then continue yelling “ ‘Fuck you,
Fuck this, Fuck her,’ ” and it “went on and on” until the police arrived and
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took him outside to calm down. A report regarding the incident was on file
with the police along with several other domestic calls to the home.
The superior court partially granted Marjorie R.’s request for a
temporary restraining order, mandating that Medeiros have only “peaceful
contact” with Marjorie R. It denied the stay-away and move-out requests
pending the hearing. Medeiros was served with the petition and temporary
restraining order on March 17, 2023. He filed a response on March 30, 2023,
stating he did not agree with the requested orders, and he did not own or
control any firearms. Medeiros explained that his wife Mary had been
having seizures since she was an infant, and he was the only one who could
drive her to/from work and perform other necessary errands. He agreed he
would keep his distance from Marjorie R. and not communicate with her.
Medeiros also noted he would like to have no communication with his son or
his son’s partner.
After a hearing at which both parties testified, the court issued a one-
year restraining order as requested by Marjorie R. In addition to the
peaceful contact order, Medeiros was ordered to move out in one week,
required to stay at least 100 yards away from Marjorie R. and the family
home, and restricted from owning or possessing any firearms. This appeal
followed.
II. DISCUSSION
A. Possible Mootness and Limited Appellate Record
Preliminarily, we address several overarching issues impacting this
appeal. First, Marjorie R. did not file a respondent’s brief. Instead of
treating the failure as a “default” (i.e., an admission of error), however, we
independently examine the record and reverse only if prejudicial error is
found. (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1203, citing In re
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Bryce C. (1995) 12 Cal.4th 226, 232–233; accord, Nakamura v. Parker (2007)
156 Cal.App.4th 327, 334; see also Cal. Rules of Court, rule 8.220, subd. (a)(2)
[if the respondent fails to file a respondent’s brief, “the court may decide the
appeal on the record, the opening brief, and any oral argument by the
appellant”].)
Second, as Medeiros concedes, the instant restraining order expired on
April 7, 2024, and thus this appeal is technically moot. (See City of Monterey
v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1079 [“ ‘If relief granted by the
trial court is temporal, and if the relief granted expires before an appeal can
be heard, then an appeal by the adverse party is moot.’ ”].) Medeiros asserts
that we should nevertheless consider the merits of his claims because they
raise important statutory and constitutional issues. He further argues that,
given the short duration of civil harassment restraining orders generally,
they often present issues capable of repetition yet evading review.
Under the circumstances presented, we exercise our discretion to
consider Medeiros’s claims on the merits. “ ‘[T]here are three discretionary
exceptions to the rules regarding mootness: (1) when the case presents an
issue of broad public interest that is likely to recur [citation]; (2) when there
may be a recurrence of the controversy between the parties [citation]; and (3)
when a material question remains for the court’s determination.’ ”
(Environmental Charter High School v. Centinela Valley Union High School
Dist. (2004) 122 Cal.App.4th 139, 144; see also Harris v. Stampolis (2016) 248
Cal.App.4th 484, 495–496 [claims involving civil harassment restraining
order under Code of Civ. Proc. § 527.6 considered on merits because the
issues raised were important and likely to recur]; accord, Malatka v. Helm
(2010) 188 Cal.App.4th 1074, 1088.) Given representations from appellate
counsel that Medeiros planned to move back into the family home upon
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expiration of the restraining order, it is possible that the controversy may
recur between the parties. Moreover, several of Medeiros’s claims present
important issues that may recur.
Thirdly, even though we will review Medeiros’s claims on the merits,
our review is hampered by the limited nature of the record provided. “ ‘A
judgment or order of the lower court is presumed correct. All intendments
and presumptions are indulged to support it on matters as to which the
record is silent.’ ” (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.)
Moreover, “the appellant has the burden of affirmatively demonstrating error
by providing an adequate record.” (Mountain Lion v. Fish & Game Com.
(1989) 214 Cal.App.3d 1043, 1051, fn. 9.) Thus, “ ‘[f]ailure to provide an
adequate record on an issue requires that the issue be resolved against [the
appellant].’ ” (Jameson v. Desta (2018) 5 Cal.5th 594, 609 (Jameson).)
Here, Medeiros has failed to provide either a reporter’s transcript or a
settled statement describing the hearing at which he and Marjorie R.
testified and after which the superior court issued the restraining order
under review. (See Cal. Rules of Court, rule 8.137(a) [a settled statement “is
a summary of the superior court proceedings approved by the superior court”
and can be used where the proceedings were not reported by a court
reporter].) Thus, although we will consider the merits of Medeiros’s
arguments as best we can, we arguably would be justified in simply
dismissing the appeal. (See, e.g., Foust v. San Jose Construction Co., Inc.
(2011) 198 Cal.App.4th 181, 186–187 [citing cases and noting that numerous
appellate courts “have refused to reach the merits of an appellant’s claims
because no reporter’s transcript of a pertinent proceeding or a suitable
substitute was provided”].)
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B. Sufficiency of the Evidence
1. Legal Framework and Standard of Review
The Elder Abuse Act permits a superior court to issue a protective
order “for the purpose of preventing a recurrence of abuse, if a declaration
shows, to the satisfaction of the court, reasonable proof of a past act or acts of
abuse of the petitioning elder.” (§ 15657.03, subd. (c).) An “elder” is defined
as a California resident, age 65 years or older. (§ 15610.27.) “Abuse of an
elder” includes “[p]hysical abuse, neglect, abandonment, isolation, abduction,
or other treatment with resulting physical harm or pain or mental suffering.”
(§ 15610.07, subd. (a)(1).) This case involves allegations of treatment causing
mental suffering. “Mental suffering” is defined in relevant part as “fear,
agitation, confusion, severe depression, or other forms of serious emotional
distress that is brought about by forms of intimidating behavior, threats, [or]
harassment.” (§ 15610.53.)
Upon a sufficient showing, the court may issue a protective order
“enjoining a party from abusing, intimidating, molesting, attacking, striking,
stalking, threatening, sexually assaulting, battering, harassing, telephoning
. . . , contacting, either directly or indirectly, by mail or otherwise, or coming
within a specified distance of, or disturbing the peace of, the petitioner.
(§ 15657.03, subd. (b)(5)(A).) In addition, after notice and hearing, the court
may issue “an order excluding a person from a residence or dwelling if the
court finds that physical or emotional harm would otherwise result to the
petitioner.” (Id., subd. (h).) A superior court makes findings in this context
based on a preponderance of the evidence standard. (Bookout v. Nielsen
(2007) 155 Cal.App.4th 1131, 1140 (Bookout).) A restraining order may be
issued based on a single act of abuse and does not require any showing that
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the wrongful act(s) will be continued or repeated. (§ 15657.03, subd. (c);
Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137.)
Issuance of a protective order under the Elder Abuse Act is reviewed
for abuse of discretion, and the factual findings necessary to support such a
protective order are reviewed under the substantial evidence test. (Bookout,
supra, 155 Cal.App.4th at p. 1137.) Thus, “[w]e resolve all conflicts in the
evidence in favor of respondent, the prevailing party, and indulge all
legitimate and reasonable inferences in favor of upholding the trial court’s
findings. [Citation.] Declarations favoring the prevailing party’s contentions
are deemed to establish the facts stated in the declarations, as well as all
facts which may reasonably be inferred from the declarations; if there is a
substantial conflict in the facts included in the competing declarations, the
trial court’s determination of the controverted facts will not be disturbed on
appeal.” (Id. at pp. 1137–1138.)
“In reviewing the issuance of a restraining order, we will only find an
abuse of discretion when the trial court exceeds the bounds of reason or
disregards the uncontradicted evidence. The party challenging the issuance
of the order bears the burden of showing an abuse of discretion by the trial
court.” (Bookout, supra, 155 Cal.App.4th at p. 1140.) However, whether the
facts found, when construed most favorably to respondent, are legally
sufficient to support issuance of protective orders under the Elder Abuse Act
is a question of law which we review de novo. (See R.D. v. P.M. (2011)
202 Cal.App.4th 181, 188 [“existence or nonexistence of substantial evidence
is a question of law”].)
2. Substantial Evidence Supports the Restraining Order
Medeiros contends that substantial evidence did not support the
restraining order in this case because the two reported incidents—four or five
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months apart—during which he used inappropriate language when speaking
to Marjorie R. do not rise to the level of unlawful conduct causing “mental
suffering” within the meaning of the Elder Abuse Act. He reasons that a
“reasonable person must expect to suffer and submit to some inconveniences
and annoyances from their family members.” We are unconvinced.
In support of his claim, Medeiros cites Schild v. Rubin (1991)
232 Cal.App.3d 755 for the proposition that “[a] reasonable person must
realize that complete emotional tranquility is seldom attainable, and some
degree of transitory emotional distress is the natural consequence of living
among other people in an urban or suburban environment.” (Id. at p. 763.)
The appellate court made this statement in the context of concluding that the
sounds of basketball playing by a neighbor were insufficient to justify
issuance of a civil harassment restraining order under Code of Civil
Procedure section 527.6, which expressly requires that “the course of conduct
must be that which would cause a reasonable person to suffer substantial
emotional distress.” (Code Civ. Pro., § 527.6, subd. (b)(3) [defining
harassment].) Schild is thus obviously distinguishable from this case.
Medeiros also contends that “ ‘ “[m]ere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities’’ ’ do not constitute
extreme and outrageous conduct” necessary to support a cause of action for
intentional infliction of emotional distress. (Okorie v. Los Angeles Unified
School Dist. (2017) 14 Cal.App.5th 574, 597, disapproved on another ground
in Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1012, fn. 2.) He
suggests Marjorie R. “should be expected to endure offensive language and
insults from her son-in-law.” We disagree. The Elder Abuse Act requires
only reasonable proof of an act of abuse. (§ 15657.03, subd. (c).) And, as set
forth above, abuse of an elder does not require “outrageous conduct” but is
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defined more broadly to include “treatment with resulting physical harm or
pain or mental suffering.” (§ 15610.07, subd. (a).) The legislature, when
enacting the Elder Abuse Act, expressly found that this state has a
responsibility to protect elders; elders are more subject to risks of abuse; and
that most elders “who are at the greatest risk of abuse, neglect, or
abandonment by their families or caretakers suffer physical impairments and
other poor health that place them in a dependent and vulnerable position.”
(§ 15600, subds. (a), (c) & (d).)
In the end, all of Medeiros’s arguments in this context fail because he
refuses to acknowledge that elders are uniquely entitled to protection. He
also ignores that his conduct went far beyond mere offensive language and
that Marjorie R. was in a dependent and vulnerable position, as she was 83
and wheelchair bound at the time of the incidents.
Although we do not have the parties’ testimony before us, we can infer
that the court found Marjorie R. credible. And Marjorie R.’s petition is
sufficient to support the court’s protective orders as it contains substantial
evidence of Medeiros’s past acts toward her, which can fairly be characterized
as abusive, threatening, and harassing behavior resulting in mental suffering
and emotional harm. (§§15610.07, subd. (a), 15610.53.) Those acts included
Medeiros invading Marjorie R.’s physical space when she was unable to
retreat; waving his hands and pointing his finger in her face while angry;
impliedly threatening to withhold food from her; and explicitly threatening
that he would take Mary away so that Marjorie R. would have no one to care
for her. In addition, the police were called and intervened. It is also
reasonable to infer from Marjorie R.’s petition that other family members
viewed his behavior as abusive and/or threatening and that it had been
necessary to call the police on several other occasions due to his conduct.
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Substantial evidence supports the conclusion that Medeiros’s intimidating
and threatening behavior caused Marjorie R. fear and serious emotional
distress. (§ 15610.53.)
C. First Amendment Arguments
Medeiros next raises several First Amendment challenges. Given the
state of the record in this case, Medeiros cannot establish that he raised these
constitutional arguments in the superior court, and he has thus forfeited
them on appeal. (San Diego Police Dept. v. Geoffrey S. (2022) 86 Cal.App.5th
550, 579 (Geoffrey S.) [“In both criminal and civil cases, a constitutional claim
is generally forfeited by the failure to assert it in the trial court.”].) We
nevertheless briefly address his challenges and conclude they lack merit.
Our review is de novo. (DVD Copy Control Assn., Inc. v. Bunner (2003) 31
Cal.4th 864, 890 [“ ‘the reviewing court must “ ‘examine for [itself] the
statements in issue and the circumstances under which they were made to
see . . .whether they are of a character which the principles of the First
Amendment . . . protect’ ” ’ ”].)
Medeiros first asserts that his comments to Marjorie R., even if
offensive, are entitled to First Amendment protection because he did not
make threats or use fighting words. The First Amendment, he urges,
prohibits the government from proscribing a citizen’s speech even if it is very
offensive or hateful. As Medeiros acknowledges, however, “ ‘The United
States Supreme Court has “long recognized that not all speech is of equal
First Amendment importance. It is speech on ‘ “matters of public concern” ’
that is ‘at the heart of the First Amendment’s protection.’ [Citations.]”
[Citation.] . . . ‘In contrast, speech on matters of purely private concern’—
while ‘not totally unprotected’—‘is of less First Amendment concern.’
[Citation.] When such speech—for example, as in defamation or the
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intentional infliction of emotional distress—causes damage, civil sanctions
may be imposed because ‘ “[t]here is no threat to the free and robust debate of
public issues; there is no potential interference with a meaningful dialogue of
ideas concerning self-government; and there is no threat of liability causing a
reaction of self-censorship by the press” ’ ” ’ ” (Parisi v. Mazzaferro (2016)
5 Cal.App.5th 1219, 1228, disapproved on another ground in Conservatorship
of O.B. (2020) 9 Cal.5th 989, 1003.) Moreover, the First Amendment does not
protect speech that has been adjudicated as unlawful or in violation of a
specific statutory prohibition. “[O]nce a court has found that a specific
pattern of speech is unlawful, an injunctive order prohibiting the repetition,
perpetuation or continuation of that practice is not a prohibited ‘prior
restraint’ of speech.” (Aguilar v. Avis Rent A Car System, Inc. (1999)
21 Cal.4th 121, 140 (plur. opn. of George, C.J.) In addition, “[v]iolence and
threats of violence . . . fall outside the protection of the First Amendment
because they coerce by unlawful conduct, rather than persuade by expression,
and thus play no part in the ‘marketplace of ideas.’ As such, they are
punishable because of the state’s interest in protecting individuals from the
fear of violence, the disruption fear engenders and the possibility the
threatened violence will occur.” (In re M.S. (1995) 10 Cal.4th 698, 714.)
Thus, in Brekke v. Wills (2005) 125 Cal.App.4th 1400 (Brekke), the
appellate court concluded that the superior court “properly considered the
defendant’s speech in determining whether to issue injunctive relief pursuant
to Code of Civil Procedure section 527.6. [(involving civil harassment
restraining orders)].” (Id. at p. 1409.) Specifically, the appellate court
concluded that the defendant “engaged in a course of conduct directed at [the]
plaintiff that seriously alarmed, annoyed, and harassed her; that would cause
a reasonable person to suffer substantial emotional distress; and that
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actually caused plaintiff to suffer substantial emotional distress. (Code Civ.
Proc., § 527.6, subd. (b).)” (Brekke, at p. 1404.) The defendant’s claim that
the injunction violated his First Amendment rights was “[u]tterly without
merit” as “[h]is speech—which was used to annoy, ridicule, and threaten
plaintiff—was entitled to no protection because it was between purely private
parties, about purely private parties, and on matters of purely private
interest.” (Ibid.)
Likewise, here we have already concluded that Medeiros’s conduct
directed at Marjorie R.—including his offensive speech and express and
implied threats—was abusive, threatening, and harassing behavior resulting
in mental suffering and emotional harm sufficient to support issuance of an
elder abuse restraining order under section 15657.03, subdivision (c).
Moreover, the offensive speech took place between purely private parties,
about purely private parties, and on matters of purely private interest for the
purpose of annoying, ridiculing, and threatening Marjorie R. Under such
circumstances, Medeiros’s claim that the restraining order somehow violated
his First Amendment free speech rights is “[u]tterly without merit.” (Brekke,
supra, 125 Cal.App.4th at p. 1404.)
Medeiros also contends that the restraining order violated his First
Amendment rights because it was overbroad. He notes that he was not
entitled to speak to Marjorie R. for any reason or in any manner and
complains that he was not able to visit his wife or the other members of his
family in the family home. Moreover, his wife was required to walk 100
yards to/from the family home to be picked up/dropped off by Medeiros.
According to Medeiros, the superior court did not consider family dynamics or
the family’s living situation when it issued the restraining order, which
should have been more narrowly tailored. We disagree, as the composition of
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the family and its living situation was squarely before the court. Moreover,
while the restraining order no doubt impacted his free speech and
associational rights, the question is whether the restrictions were more than
were reasonably necessary to protect Marjorie R. from abusive mental
suffering. We conclude they were not. Under the Elder Abuse Act, the court
was permitted to issue restraining orders “for the purpose of preventing a
recurrence of abuse” and could issue “an order excluding a person from a
residence or dwelling” if it found that “physical or emotional harm would
otherwise result to the petitioner.” (§ 15657.03, subds. (c), (h).) Substantial
evidence supports the conclusion that the no-contact and move-out orders
were necessary to protect Marjorie R. from further abuse.
D. No Second Amendment Violation
Citing the Supreme Court’s decision in New York State Rifle & Pistol
Assn., Inc. v. Bruen (2022) 597 U.S. 1 (Bruen) and the Fifth Circuit’s more-
recent opinion in United States v. Rahimi (5th Cir. 2023) 61 F.4th 443 (en
banc), cert. granted June 30, 2023, No. 22-915, ___ U.S. ___ [143 S.Ct. 2688]
(Rahimi), Medeiros next argues that the firearm prohibition issued in
conjunction with the restraining order in this case violated his Second
Amendment right to bear arms. As Medeiros acknowledges, section
15657.03, subdivision (u)(1) mandates the inclusion of a firearm prohibition
in any elder abuse restraining order. He argues that this statute is
unconstitutional both facially and as applied.
To begin with, we do not consider Medeiros’s “as-applied” challenge to
the firearms restriction. An as-applied challenge seeks “ ‘relief from a specific
application of a facially valid statute or ordinance to an individual or class of
individuals who are under allegedly impermissible present restraint or
disability as a result of the manner or circumstances in which the statute or
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ordinance has been applied.’ ” (In re D.L. (2023) 93 Cal.App.5th 144, 157
(D.L.).) Given the state of the record before us, we cannot determine whether
Medeiros objected on this basis in the superior court, and he has therefore
forfeited this claim. (People v. Patton (2019) 41 Cal.App.5th 934, 946 (Patton)
[“An as-applied constitutional challenge is forfeited unless previously
raised.”].) Moreover, while we recognize that we have some discretion at the
appellate level to address otherwise forfeited constitutional claims, an as-
applied challenge asserts a “constitutional defect [that] may be correctable
only by examining factual findings in the record or remanding to the trial
court for further findings.” (In re Sheena K. (2007) 40 Cal.4th 875, 887
(Sheena K.).) It is therefore not appropriately considered for the first time on
appeal.
Medeiros has also forfeited his facial challenge to section 15657.03,
subdivision (u)(1). (Geoffrey S., supra, 86 Cal.App.5th at p. 579.) However,
were we to reach the issue on appeal, we would find it without merit. In
District of Columbia v. Heller (2008) 554 U.S. 570, 635 (Heller), the United
States Supreme Court identified a constitutionally protected right to
possession of handguns in the home based on the Second Amendment. In
doing so, Justice Scalia opined that the Second Amendment “surely elevates
above all other interests the right of law-abiding, responsible citizens to use
arms in defense of hearth and home.” (Ibid., italics added.) Heller went on to
reaffirm the constitutionality of many “longstanding” and “presumptively
lawful” regulatory restrictions on the right to bear arms, including (non-
exhaustively) prohibitions on the possession of firearms by felons and the
mentally ill, the carrying of firearms in “sensitive places” such as schools and
government buildings, and laws “imposing conditions and qualifications on
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the commercial sale of arms.” (Heller, at pp. 626–627 & fn. 26; see also D.L.,
supra, 93 Cal.App.5th at p. 151.)
The Supreme Court’s more recent opinion addressing the Second
Amendment, Bruen, supra, 597 U.S. 1, characterized Heller as recognizing
that “the Second and Fourteenth Amendments protect the right of an
ordinary, law-abiding citizen to possess a handgun in the home for self-
defense” before going on to recognize “that ordinary, law-abiding citizens
have a similar right to carry handguns publicly for their self-defense. (Bruen,
at pp. 9–10, italics added.) Further, Bruen did not disturb the non-
exhaustive list of “presumptively lawful regulatory measures” identified in
Heller. As Justice Alito explained in his concurring opinion, the Court’s
holding in Bruen “decides nothing about who may lawfully possess a firearm,”
nor has it “disturbed anything that [was] said in Heller . . . about restrictions
that may be imposed on the possession or carrying of guns.” (Bruen, at p. 72
(conc. opn. of Alito, J.).) Similarly, Justice Kavanaugh underscored in his
concurring opinion that Supreme Court precedent, including Heller, has
established “the Second Amendment ‘is neither a regulatory straitjacket nor
a regulatory blank check. . . . Properly interpreted, the Second Amendment
allows a ‘variety’ of gun regulations.” (Bruen, at p. 80 (conc. opn. of
Kavanaugh, J.), citing Heller, supra, 554 U.S. at p. 636.)
We acknowledge that the Fifth Circuit recently held that 18 U.S.C.
section 922(g)(8)—which prohibits certain individuals subject to domestic
violence restraining orders from possessing guns—is unconstitutional in light
of Bruen. (Rahimi, 61 F.4th 443.) There, the Fifth District opined that
“Heller simply uses ‘law-abiding, responsible citizens’ as shorthand in
explaining that its holding (that the amendment codifies an individual right
to keep and bear arms) should not ‘be taken to cast doubt on longstanding
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prohibitions on the possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places such as schools
and government buildings . . . .” (Rahimi, at 452.) It then went on to
conclude that there was nothing within the “Nation’s historical tradition of
firearm regulation” sufficient to justify firearm restrictions for an individual
subject to a domestic violence restraining order. (Id. at 452–453.) As
mentioned above, the United States Supreme Court is currently considering
the propriety of this decision.
In contrast, our own Fourth District (pre-Bruen) upheld a similar
firearm restriction contained in the Domestic Violence Prevention Act (Fam.
Code, § 6200 et seq.) against a Second Amendment challenge. The appellate
court concluded that prohibiting firearm possession in the domestic violence
context was “analogous to a prohibition on felon weapon possession, a type of
restriction expressly listed by Heller as untouched by its holding.” (Altafulla
v. Ervin (2015) 238 Cal.App.4th 571, 581 (Altafulla).) Recently, the Fourth
District reaffirmed Altafulla’s holding in Zachary H. v. Teri A. (2023)
96 Cal.App.5th 1136 (Zachary H.), concluding that “Bruen, which reaffirmed
Heller’s guarantee of the right of ‘law-abiding responsible citizens’ to possess
firearms, does not compel a different result.” (Bruen, supra, 597 U.S. at
p. 26.) In Bruen, the court held that New York’s public-carry licensing
scheme violated the Second Amendment because “it prevent[ed] law-abiding
citizens with ordinary self-defense needs from exercising their right to keep
and bear arms.” [(Bruen, at p. 71.)]” (Zachary H., at p. 1144.) Thus, Bruen
did not “call into question the lawfulness of firearms restrictions imposed on
individuals subject to restraining orders.” (Zachary H., at p. 1144.)
The same reasoning extends here to the firearm restriction in section
15657.03, subdivision (u)(1). As Rahimi acknowledges, a citizen may forfeit
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his or her Second Amendment rights if their conduct “ran afoul of a ‘lawful
regulatory measure[]’ ‘prohibiting . . . the possession of firearms,’ Heller, 554
U.S. at 626-27 & 627 n.26, that is consistent with ‘the historical tradition
that delimits the outer bounds of the right to keep and bear arms, Bruen, 142
S. Ct. at 2127. The question turns on whether [the statute] falls within that
historical tradition, or outside of it.” (Rahimi, 61 F.4th at 454–455.) As
stated above, the Rahimi court concluded that there was nothing sufficiently
analogous in our historical tradition of firearm regulation to justify firearm
restrictions for an individual subject to a domestic violence restraining order.
(Id. at 452–453.) We disagree.
Heller recognized that disarming felons or the mentally ill falls
within “longstanding” and “presumptively lawful” regulatory restrictions on
the right to bear arms because of the danger they potentially
pose. (Heller, supra, 554 U.S. at pp. 626–627.) Disarming those who have
been restrained under the Elder Abuse Act is at least analogous, if not more
justified, given the abusive or intimidating behavior they have been found to
have directed toward a particular person. In sum, we decline to
follow Rahimi, and instead follow Altafulla and Zachary H. in concluding
that no Second Amendment violation occurred here given the historical
tradition permitting regulatory restrictions on firearm possession with
respect to dangerous and/or irresponsible citizens. (See People v.
Williams (2013) 56 Cal.4th 630, 668 [federal court of appeal decisions are not
binding on California courts].)
E. Due Process Challenge
As a final matter, Medeiros challenges the restraining order
proceedings in this case on due process grounds. Specifically, he notes that
the local rules of court in Sonoma County state that court reporters will
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generally not be provided in civil matters and that use of electronic recording
is in the court’s discretion. Where a party has filed a fee waiver in an action,
however, a court reporter is provided upon request. (Sonoma County Local
Rules of Court, rules 3.1-3.4; see also Cal. Rules of Court, rule 2.956(c).) The
gist of Medeiros’s argument is that in civil restraining order matters—where
the vast majority of litigants are unrepresented and unfamiliar with the law
and court procedures—due process requires both that the court inform the
litigants of the process for obtaining a court reporter and provide a written
statement summarizing the facts and the legal basis for its decision to aid in
appellate review.
Limited though the record is in this case, it does confirm that Medeiros
was given notice and an opportunity to be heard before the issuance of the
restraining order. We decline to consider Medeiros’s specific procedural due
process claims, however, because the record is devoid of facts essential to our
analysis. It is possible, for example, that the court did advise the parties
about the availability of court reporters/electronic recording and Medeiros did
not request that the proceedings be recorded. Similarly, the court may have
orally explained to the parties the reasons for its decision and/or Medeiros
may have waived a written statement. While we understand the difficulties
on appeal in cases where no reporter’s transcript or other record of
proceedings has been prepared, appellate counsel could have obtained a
settled statement addressing these issues and declined to do so. We will not
consider constitutional claims with potentially far-reaching consequences in a
case where no actual controversy may even exist. (See Sheena K., supra,
40 Cal.4th at p. 887 [inappropriate to consider as-applied constitutional
challenge for the first time on appeal]; Patton, supra, 41 Cal.App.5th at
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p. 946 [as-applied constitutional challenge is forfeited unless previously
raised].)
III. DISPOSITION
The judgment of the superior court is affirmed. Each party shall bear
their own costs on appeal.
HUMES, P. J.
WE CONCUR:
LANGHORNE, WILSON, J.
BANKE, J.
Marjorie R. v. Medeiros; A168121
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