Toure v. Oxley CA2/5 ( 2023 )

Filed 12/7/23 Toure v. Oxley CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
JAMIL TOURE,
Petitioner and Appellant, B317378
v. (Los Angeles County
Super. Ct. No.
JAMICE AMBER OXLEY, 21STFL11506)
Respondent. ORDER MODIFYING
OPINION AND
DENYING PETITION
FOR REHEARING
[NO CHANGE IN
JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on November 7,
2023, is modified as follows:
On page 4, the first sentence in the first full paragraph is
modified to insert the word “heard” between the words
“visitation” and “on”.
On page 8, the second sentence of the first paragraph, the
word “associated” is deleted.
The petition for rehearing filed by Jamil Toure on
November 21, 2023, is denied.
There is no change in judgment.
___________________________________________________________
MOOR, J. KIM, J.
I would grant rehearing.
_____________________________
BAKER, Acting, P. J.
2
Filed 11/7/23 Toure v. Oxley CA2/5 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
JAMIL TOURE, B317378
Petitioner and Appellant, (Los Angeles County
Super. Ct. No.
21STFL11506)
v.
JAMICE AMBER OXLEY,
Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Lawrence Riff, Judge. Affirmed.
Nadine Lewis, Esq., Nadine Lewis for Petitioner and
Appellant.
Zarmi Law and David Zarmi for Respondent.
Appellant Jamil Toure (Father) appeals from an order
denying his request for a restraining order under the Domestic
Violence Prevention Act (DVPA; Fam. Code, § 6200 et seq.)
against respondent Jamice Amber Oxley (Mother).1 On appeal,
Toure contends: (1) the trial court did not understand that
accessing and deleting electronic data can constitute abuse under
the DVPA; (2) the trial court abused its discretion by failing to
consider the totality of the circumstances; and (3) the trial court
erred by denying the restraining order on the ground that other
remedies were available. We find no abuse of discretion has been
shown, and therefore, we affirm.
FACTS AND PROCEDURAL HISTORY2
Conduct During Marriage
Mother and Father married on March 23, 2019. The
parties have a minor child, who was born in May 2019.
Discussions between Mother and Father repeatedly escalated
into loud verbal fights, which disturbed their child. In one
incident, Father found the child had not been strapped into her
car seat after a drive with Mother. Mother takes antidepressant
medications, and in August 2020, the child had one of Mother’s
pills in her mouth. Father believed the substance was
1 All further statutory references are to the Family Code
unless otherwise indicated.
2 In accordance with the standard of review, the facts are
stated in the light most favorable to the judgment. (Curcio v.
Pels (2020) 47 Cal.App.5th 1, 11 (Curcio).)
2
Wellbutrin, while Mother believed it was the supplement L-
Methylfolate. The parties attempted therapy.
Father took photos of open bottles of antidepressant
medications and of pills left in areas accessible to the child,
including several pills on the coffee table. He stored the photos
on an application that was included in a family sharing plan for
media.
Mother and Father allowed the daughter to watch cartoons
on an iPad issued by Father’s employer. The iPad was signed
into the shared family account. On about October 5, 2021, while
Mother was sitting next to her daughter, she noticed photos of
her medication bottles and pills popping up on the iPad that her
daughter was using. There were also photos of Mother with her
face contorted. Mother did not understand why these photos
were in the photo album on the shared family plan. She did not
need to enter a password to view the photos on the iPad. She
deleted the photos because they were embarrassing; she wanted
to protect her reputation and did not want the photos to be seen.
Mother also read Father’s personal notes in an application, but
did not delete them, and she took screenshots of communications
between Father and his attorney that she found.
Petition for Dissolution
On October 6, 2021, without notifying Mother of his
intentions, Father filed for dissolution. When he picked up his
daughter from preschool that day, he took a video of the child
3
saying, “I don’t want to go home. I don’t want to see mommy.”
He stored the video on the shared family account.3
Father filed an ex parte request for custody and visitation
on October 7, 2021. Although Father did not provide notice to
Mother, she appeared at the hearing. The trial court granted
Father’s request and ordered temporary legal and physical
custody of the child to Father with supervised visitation for
Mother. While Mother was at the hearing, the child’s maternal
grandmother (Grandmother) removed the child from her
preschool.
Later that day, Father went to the family home along with
a police officer to pick up his daughter pursuant to the court
order. Father tried to enter the home, but the locks had been
changed.
Grandmother told Father to go away, the child would not
be going with him, and the court order was not legal.
Grandmother yelled at father, “We know what you did making
[the child] say those things.” This comment alerted Father that
Mother had accessed his photo account.
Mother was holding the child, but she wriggled away when
she saw Father. Father picked her up. A friend of Father’s
joined them. Mother, who was visibly upset, continually asked
Father to talk to her lawyer while trying to hand him the phone
3 Father’s evidence about the video of the child was
inconsistent. In his declaration, he stated that he took the video
on October 6, 2021, after picking up the child from preschool. In
the same declaration, he stated that he noticed on October 15,
2021, that Mother deleted videos from his account on October 5,
2021, including the video of the child saying that she did not
want to go home and see her mother. The inconsistency with
respect to the timing is immaterial to the issues on appeal.
4
and waving it in his face, however, he declined to speak with the
lawyer. Eventually, Mother forcefully grabbed the child from
Father’s arms, stating “I don’t care what the judge said.” She
stormed off with the child.
Mother withheld the child, despite the court order, because
she believed the order was obtained through lies and she did not
know what would happen if she relinquished the child. Father
had a New York apartment and access to financial resources.
Rather than escalate a situation that might traumatize the
child, Father left that day. Father returned to the family home
several times over multiple days with the police and a witness in
order to retrieve the child, but received no response.
On October 13, 2021, the trial court issued another order
directing Mother to immediately deliver the child to Father.
Father attempted to see his daughter that same day, and again
was met with no response.
Father noticed photos and videos that he had taken were
missing from his account, which he suspected Mother had
deleted. On October 15, 2021, Father received a notification on
his electronic device that photos had been added to a folder that
belonged to Mother. He clicked on the notification and found
Mother had copied his photos and files, including documents that
he was preparing for his attorney, to her own folder. He did not
know how Mother was accessing his materials. He felt scared,
confused, violated, and angry. He tried to copy the photos back to
his folder to preserve them as evidence, but as he was saving
them, Mother deleted them from his folder.
5
Request for Domestic Violence Restraining Order
On October 21, 2021, Father filed a request for domestic
violence restraining order (DVRO) against Mother for the
protection of himself and the child. A temporary restraining
order was issued.
At an ex parte hearing on October 26, 2021, the parties
agreed to exchange the child at the Inglewood Police Department
later that day. The trial court also ordered the parties to meet
and confer to enable Father to retrieve his property, but no
discussions were held. Twenty days after the court ordered
Mother to deliver the child to Father, Mother complied.
When Father brought the child to the family home for
Mother’s visitation, he found his property on the sidewalk in the
back of the house. Upset and angry, he had to take time from
work and make multiple trips to move his property. Father’s
work-issued iPad, which Mother had used to access Father’s
photos and documents, was returned to him.
Hearing on Request for DVRO
A hearing was held on the request for a DVRO on
November 18 and 29, 2021. During the proceeding, the trial
court asked Father’s attorney to explain Father’s theory of the
case related to deleting and transferring electronic data. Father’s
attorney stated that online stalking, destroying electronically
stored evidence, hacking private material, and reading materials
subject to the attorney-client privilege constituted abuse that
supported a restraining order under the DVPA. The attorney
6
cited cases in which hacking into emails constituted domestic
violence.
The trial court responded, “Right. But hacking into e-mails
in and of itself is not abuse. Something has to flow from that;
right? What flows from it?” The attorney explained that it was
harassment and it disturbed Father’s peace. The court asked if it
destroyed Father’s mental calm, and the attorney answered that
it did. The court stated, “Could you establish that, please. [¶]
And I just ask because . . . I look at this declaration and if
everything in it is true, then [Mother] did some bad things that
may have consequences for custody. There may be civil torts.
There may be a lot of stuff that flows from this, but that’s not
why we’re here. [¶] We’re here about a domestic violence
restraining order and whether this gentleman needs an order of
protection. [¶] And as I know you know, not every annoyance,
even very serious annoyances, is abuse. Some serious
annoyances are serious annoyances for which there may be tort
liability, but not [DVPA] equitable relief.”
The court later questioned Mother about her conduct in
deleting photos taken by Father. The court commented, “I’m not
seeing domestic violence here. I’m seeing dispute. I’m seeing
upset. I’m seeing aggravation. [¶] From what I’ve seen and read
yet – if there was a hack into [Father’s] sole and exclusive
password protected account, then maybe there’s something to
that, but that’s not what I’m hearing happened.” Father and his
attorney explained that it was not a shared photo album, but
rather Mother used Father’s work-issued iPad to access his
separate applications containing his photos, his notes and
journal, and his communications with his attorney.
7
In closing argument, Father’s attorney argued the trial
court should grant a restraining order based on online stalking,
harassment, destroying personal property, and disturbing the
peace. The attorney argued that dumping Father’s belongings on
the sidewalk on multiple occasions without any notice and failing
to comply with the order to relinquish the child to Father violated
the temporary restraining order and associated custody order.
Mother’s conduct of hacking into Father’s private work and
personal storage accounts, intentionally destroying his electronic
files and reading privileged information, disturbed Father’s calm
and peace of mind. In addition, Mother’s cavalier attitude about
the baby’s safety around supplements and medications put the
child in danger. The child had witnessed loud, emotional
arguments as well.
Trial Court Ruling
The trial court denied the DVRO request. The court found
that ultimately, Father failed to show by a preponderance of the
evidence that Mother engaged in one or more proscribed acts
under the DVPA. The trial court advised the parties that their
child needed them to be able to co-parent. The court stated, “I
am seriously concerned for this family and this little girl. I will
tell you that the closest for me to [Father] carrying [his] burden
of proof to prove abuse under the standard, under the DVPA[,] is
Mother’s apparent . . . disregard of a clear court order for nearly
two weeks. [¶] And Mother will be answering for that in a
contempt trial, I know. [¶] So this family has a serious problem
with the contempt trial coming up. Has a serious problem with
the custody trial coming up. But that’s not this proceeding. This
8
proceeding asks the question whether a restraining order after
hearing should issue based upon proof of one or more acts of
abuse.”
The trial court stated the following findings: “I believe
Father felt belittled, bullied, and yelled at. I do not find by
preponderance of the evidence that there was coercive control or
a destruction of his mental calm.”
“I do not find that Mother hacked into Father’s technology.
Mother [was] very forthright twice under oath, describing what
she did with photographs and other materials that she deleted.
[¶] And she will answer for that to the extent there’s an answer
to be had with respect to any adverse inference that arises in
family or civil proceedings concerning that. Maybe there’s no
inference that will arise from that. But this is not [In re
Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416(Evilsizor)]. This is not [In re Marriage of Nadkarni (2009) 173
Cal.App.4th 1483 (Nadkarni)]. It is not a situation where
Mother’s hacked into Father’s technology.”
“I believe Mother’s version of events, that she saw this
minor child with access to a shared account and saw disturbing
things that she deleted. I acknowledge[] that she probably
deleted them in part because . . . they would be unhelpful in a
custody dispute later on. And she will have to answer for that in
a custody dispute later on. [¶] But I do not find that it was
hacking or stalking within the meaning of the DVPA. I’ve
already said, I completely understand how upset, angry,
confused, if that’s the right word, Father was by all of these
events for the past several months, including . . . his property
being left unceremoniously at the curb, which I think is very,
very rude. And I don’t understand why that occurred. But I
9
don’t find that it’s a violation of the [temporary restraining
order]. [¶] [And although] I think Father was very, very upset
and angry about it, I don’t think it destroyed his mental calm
within the meaning of the DVPA.”
The court found Mother’s emails to the child’s school were
not harassment and did not disturb the child’s peace, as there
was no evidence the child knew anything about it. The disparity
in access to funds did not arise to the level of dominion or control
over Father. Father’s answers and demeanor during his
testimony led the court to conclude there was not an overbearing
of his will, dominion, and loss of control. Father was angry, but it
did not cross the line into the area required for a DVRO.
The court added, “I commend Father for his responsible
parenting in not permitting . . . [a] tug-of-war involving this
minor. [¶] The current custody order, again based upon a no
notice ex parte for which there has not been an evidentiary
hearing, I do find adequately protects this minor until such time
as it is made to be a permanent order or modified. . . . The
evidence does not lead me to conclude that this child should be a
protected party under this DVRO. I do not think this child
suffered abuse at the hands of Mother.”
Father filed a timely notice of appeal. On November 1,
2022, Mother was found guilty of 21 counts of contempt for
willfully disobeying court orders.4 Mother was given a suspended
sentence of 42 hours of community service and advised that any
future violation of court orders will result in a mandatory
sentence to county jail.
4 Father’s request for judicial notice filed with this court on
April 4, 2023, which includes the November 1, 2022 order in the
contempt proceedings, is granted.
10
DISCUSSION
Statutory Scheme and Standard of Review
A court is authorized to issue a protective order under the
DVPA “ ‘ “ ‘to restrain any person for the purpose of preventing a
recurrence of domestic violence and ensuring a period of
separation of the persons involved’ upon ‘reasonable proof of a
past act or acts of abuse.’ ” ’ ” (Curcio, supra, 47 Cal.App.5th at
p. 11.) “Abuse,” as defined in section 6203, includes “any
behavior that has been or could be enjoined pursuant to Section
6320.” Under section 6320, a court may issue an ex parte order
that enjoins a party from, alongst other things, “ ‘disturbing the
peace of the other party,’ ” which “refers to conduct that, based on
the totality of the circumstances, destroys the mental or
emotional calm of the other party.” This type of conduct can be
committed by means including text messages, internet-connected
devices, or “other electronic technologies.” (§ 6320, subd. (c).)
“The purpose of a domestic violence restraining order is not to
punish past conduct, but to ‘prevent acts of domestic violence
[and] abuse’ from occurring in the future. (§ 6220.)” (In re
Marriage of F.M. & M.M. (2021) 65 Cal.App.5th 106, 117.)
On appeal, we review the denial or grant of a request for a
DVRO under the abuse of discretion standard. (In re Marriage of
Davila & Mejia (2018) 29 Cal.App.5th 220, 226.) Additionally, we
“review the trial court’s failure to consider evidence in issuing a
DVRO for an abuse of discretion.” (Id.) “ ‘ “The appropriate test
for abuse of discretion is whether the trial court exceeded the
bounds of reason. When two or more inferences can reasonably
11
be deduced from the facts, the reviewing court has no authority to
substitute its decision for that of the trial court.” ’ ” (In re
Marriage of G. (2017) 11 Cal.App.5th 773, 780.) Therefore, we
accept all evidence supporting the trial court’s findings as true
and resolve the conflict in favor of the judgment. (Curcio, supra,
47 Cal.App.5th at p. 12.) If substantial evidence supports the
trial court’s judgment, “reversal is not warranted even if facts
exist that would support a contrary finding.” (Id.)
“ ‘ “If the [trial] 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.]” ’ ”
(In re Marriage of F.M. & M.M., supra, 65 Cal.App.5th at p. 116.)
However, “[e]rror on appeal must be affirmatively shown by the
record, and ‘[w]e presume the trial court knew and properly
applied the law absent evidence to the contrary.’ [Citation.]”
(J.H. v. G.H. (2021) 63 Cal.App.5th 633, 644.)
Accessing and Deleting Electronic Files
Father contends that the trial court erred by finding
Mother’s actions of accessing, downloading, and deleting Father’s
electronically stored data was not abuse under the DVPA. We
disagree.
A. Applicable Law
“Courts of Appeal have found conduct involving
communications such as text messages, e-mail, and social media
12
constitutes abuse under the DVPA for disturbing the petitioner’s
peace.” (Curcio, supra, 47 Cal.App.5th at p. 12.)
In Nadkarni, the appellate court concluded a wife’s
allegations that her husband destroyed her mental or emotional
calm by accessing, reading, and publicly disclosing the contents of
her confidential emails, causing her to suffer embarrassment and
fear for her safety, sufficiently alleged abuse under the DVPA to
support a request for a restraining order. (Nadkarni, supra, 173
Cal.App.4th at p. 1498.) The definition of abuse under the DVPA
was not limited to the infliction of physical injury or assault. (Id.
at p. 1496.) The court explained, “the plain meaning of the
phrase ‘disturbing the peace of the other party’ in section 6320
may be properly understood as conduct that destroys the mental
or emotional calm of the other party.” (Id. at p.1497.) The wife’s
allegations that the conduct caused the destruction of her mental
or emotional calm, if found to be true, could constitute disturbing
her peace sufficient to show abuse under the DVPA. (Id. at
pp.1498–1499)
In Evilsizor, the husband downloaded tens of thousands of
text messages from his wife’s cell phones, as well as her personal
notes, and filed copies of her messages with the court. (Evilsizor,
supra, 237 Cal.App.4th at p. 1420.) The wife alleged the husband
“hacked into her Facebook account, changed her password, and
rerouted the e-mail associated with her Facebook account to his
own account,” and “threatened to reveal publicly more text
messages and e-mails for leverage in the dissolution
proceedings.” (Id. at p. 1421.) The trial court concluded that
even if the husband legally obtained the information, an issue
which the trial court did not resolve, the court was authorized to
enjoin the disclosure of the information to protect the wife’s peace
13
of mind. (Id. at p. 1424.) The appellate court affirmed the
DVRO, concluding substantial evidence supported the trial
court's findings. (Id. at p. 1426.)
In addition, under section 6320, disturbing the peace of
another party includes exercising coercive control, which is a
pattern of behavior that unreasonably interferes with free will
and personal liberty, such as “[c]ontrolling, regulating, or
monitoring the other party’s movements, communications, daily
behavior, finances, economic resources, or access to services.”
(§ 6320, subd. (c)(3).)
B. The Trial Court’s Understanding of the Law
Father contends the trial court failed to understand that
accessing and deleting electronic data can constitute abuse under
Family Code section 6320, even absent illegal access. We
conclude Father has not shown that the trial court misunderstood
the law.
To support his contention that the trial court did not
understand the applicable law, Father relies on the trial court’s
statement that “hacking into e-mails in and of itself is not abuse.”
Reviewing the statement in context, however, it is clear that the
trial court was familiar with the applicable law, cited the
relevant cases, and meant that hacking alone was not abuse,
because the conduct must have destroyed Father’s mental or
emotional calm within the meaning of the DVPA. Regardless of
whether Mother accessed Father’s files legally or illegally, if
accessing electronic data does not illicit a disturbance of a party’s
peace within the meaning of the DVPA, then there can be no
14
equitable relief under the DVPA. The trial court’s analysis
showed the court understood the applicable law.
Father also asserts the trial court failed to acknowledge
that destroying electronic data, monitoring electronic
communications, and electronic stalking can constitute abuse
that supports issuance of a restraining order under the DVPA. In
support of this contention, however, Father simply recites his
own evidence that these acts occurred. On appeal, we presume
the trial court understood and properly applied the law. It was
Father’s burden to affirmatively show that the trial court did not
understand the law. In weighing the evidence, the court
distinguished the facts of Nadkarni and Evilsizor from the facts
of the present case, demonstrating the court’s understanding of
the applicable law. The weight that the trial court gave the
evidence does not demonstrate that the trial court did not
understand the applicable law.
C. No Abuse of Discretion
Father also contends the trial court abused its discretion by
failing to find that Mother’s actions with respect to Father’s
electronic data constituted abuse under the DVPA. We conclude
that no abuse of discretion has been shown.
The trial court acknowledged Mother’s bad conduct in
accessing and deleting Father’s electronic data. The court
weighed the evidence carefully in light of the relevant case law,
and it found Mother’s actions did not rise to the level of abuse
under the DVPA; while Father was understandably upset and
angry, his mental and emotional calm was not destroyed within
the meaning of the DVPA.
15
The trial court’s findings were supported by substantial
evidence. Father provided his work-issued iPad, which was
signed into Father’s accounts with the shared media files, for his
family’s use. There were no legal proceedings between the
parties when Mother noticed photos of medications and pills
popping up on an iPad that her young daughter was viewing.
Mother deleted photos and videos that embarrassed her, looked
through other files and read Father’s documents. Although
Mother continued to use her access to Father’s iPad to view, copy,
and delete Father’s electronic data for a few weeks after
proceedings commenced, she returned the iPad with his
belongings.
This case is distinguishable from Evilsizor and Nadkarni,
cases in which one spouse accessed the other spouse’s accounts
without permission, publicly disclosed personal data, and a
restraining order was necessary to prevent further disclosure of
private information. (Evilsizor, supra, 237 Cal.App.4th at
p. 1425; Nadkarni, supra, 173 Cal.App.4th at pp. 1496–497).
We also note that after Father filed for dissolution and the
parties were involved in contentious custody proceedings, Father
used his access to the shared family media account from his own
device to click on a notification that Mother added photos to her
personal folder. He claimed Mother’s conduct in accessing,
monitoring, and deleting his electronic data destroyed his mental
and emotional calm, but he had no qualms about accessing and
reviewing electronic data in her folder, which he understood
belonged to her. At the time of the hearing, Father’s iPad had
been returned to him. Father, who had established the shared
family plan, could clearly disable the plan without a restraining
order. We find the trial court did not abuse its discretion by
16
concluding the parties’ bad behavior with respect to electronic
data did not rise to the level of abuse under the DVPA for which
the protection of a restraining order was required to prevent
future abuse.
In his briefs on appeal, Father asserts that the evidence
supported issuing a restraining order, but we view the factual
findings in the light most favorable to the trial court’s ruling
under the abuse of discretion standard, not whether the evidence
could have supported a different ruling. None of the evidence
found to be true constituted abuse for which the trial court was
required to issue a restraining order under the DVPA as a matter
of law. The record reflects that the trial court carefully weighed
the evidence based on the applicable law, and as such, we find no
abuse of discretion.
Totality of the Circumstances
Father also contends the trial court’s denial of a restraining
order was an abuse of discretion considering the totality of the
circumstances, specifically, the evidence that Mother withheld
the child in violation of the court’s orders, violently pulled the
child from his arms, and engaged in arguments and verbal abuse.
We conclude that the trial court carefully weighed the evidence,
the court’s findings are supported by substantial evidence, and no
abuse of discretion has been shown.
Family Code section 6301, subdivision (c), requires the
court to consider “the totality of the circumstances in determining
whether to grant or deny a petition for relief.” However, when
two or more inferences can reasonably be deduced from the facts,
17
the reviewing court has no authority to substitute its decision.
(In re Marriage of G., supra, 11 Cal.App.5th at p. 780.)
In this case, the trial court explained that it was a close
decision, particularly due to Mother’s withholding of the child in
defiance of court orders. The court acknowledged Mother’s bad
conduct and Father’s understandable frustration. These
comments reveal that the court carefully weighed the evidence
and considered the totality of the circumstances that Father had
raised. Ultimately, the court concluded that Father’s mental and
emotional calm was not destroyed by Mother’s actions. The court
complimented Father’s judgment to resist escalating the
confrontation over custody on October 7, 2021, even though he
had a court order and a police officer present to assist him, as
well as Father’s calm demeanor in the courtroom. We cannot say
that the trial court acted rashly without considering the totality
of the evidence. None of the evidence that Father relies upon
required the trial court to issue a restraining order as a matter of
law under the circumstances of this case. Father simply seeks to
have this court reevaluate the weight of the evidence to reach a
different conclusion, which is not the province of the appellate
court.
Other Available Remedies
Father contends the trial court denied his request for a
DVRO because other remedies were available. We disagree with
Father’s characterization of the record. The trial court did not
deny Father’s request because other remedies were available.
The court denied the request based on the court’s finding that
Mother’s conduct did not support issuing a DVRO under the
18
circumstances of the case. The court explained that although the
circumstances may allow for remedies in other proceedings, they
failed to meet the requirements for a DVRO. In particular,
Mother may be held accountable for destroying electronic
evidence in the parties’ custody dispute or for violating court
orders in the contempt proceedings. Although the court noted
that there may be other legal remedies available to Father, the
trial court found there was no basis to issue a restraining order
under the DVPA after carefully weighing the facts and finding
that Mother’s actions did not amount to a disturbance of Father’s
peace.
DISPOSITION
The November 29, 2021 order denying the request for a
restraining order is affirmed. Respondent Jamice Amber Oxley is
awarded her costs on appeal.
NOT TO BE PUBLISHED.
MOOR, J.
I concur:
KIM, J.
19
Jamil Toure v. Jamice Amber Oxley
B317378
BAKER, Acting P. J., Dissenting
The opinion for the court never engages with the key
question: whether the mental and emotional calm of Jamil Toure
(father) and his daughter were destroyed when Jamice Oxley
(mother) forcefully pulled the daughter out of father’s arms and
then kept the daughter from having any contact with him for
nearly three weeks—in violation of a court-issued custody order.
(Fam. Code, § 6320, subd. (c).) I believe there is strong evidence
that father’s and his daughter’s peace was so disturbed (In re
Marriage of F.M. & M.M. (2021) 65 Cal.App.5th 106, 120, fn. 5)
and that there existed a risk mother would engage in further
actions disturbing their peace in the future. I would accordingly
hold the trial court abused its discretion in refusing to issue the
requested restraining order.
BAKER, Acting P. J.