Jan F. v. Natalie F. CA2/1

Filed 9/20/23 Jan F. v. Natalie F. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
JAN F., B322439
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 20STPT02373)
v.
NATALIE F.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Elizabeth Scully, Judge. Reversed and
remanded with directions.
Family Violence Appellate Project, Jodi Lewis, Arati Vasan,
Jennafer D. Wagner; Crowell & Moring, Joachim B. Steinberg,
and Laura Foggan for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_____________________
Natalie F. (Mother) and Jan F. (Father) are parents of a
now six-year-old girl, M.F., and three-year-old boy, O.F.1 In
January 2022, Mother sought a restraining order under the
Domestic Violence Prevention Act (DVPA; Fam. Code,2 § 6200 et
seq.) against Father. She claimed she suffered abuse within the
meaning of the DVPA as a result of Father making false police
reports to the Santa Monica Police Department (SMPD) to
conduct welfare checks on the children while they were in
Mother’s care and sending her and her attorney over 130
harassing messages via email and the communication platform
Our Family Wizard (OFW) over a 40-day period.
Following an evidentiary hearing limited to the
consideration of Mother’s Judicial Council form DV-100
restraining order request and attached exhibits, the family court
denied Mother’s request for a domestic violence restraining order
(DVRO), finding Father’s actions as alleged by Mother did not
constitute abuse under the DVPA. The court explained it would
not restrain Father from contacting the SMPD “in advance”
because he might have sincere concerns about the children’s
welfare. It further explained that Father had a First
Amendment right to communicate regarding litigation matters.
It observed Mother could obtain some of the relief she sought in
1 We use abbreviations to protect the personal privacy of
children in a Family Code proceeding as well as Mother given
that this appeal involves domestic violence prevention. (Cal.
Rules of Court, rule 8.90(b)(1), (11).)
2 All unspecified statutory references are to the Family
Code.
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an upcoming long cause custody hearing scheduled before
another judicial officer.
Mother argues the family court erred in denying her DVRO
request because Father’s actions amounted to abuse, and the
First Amendment does not protect such conduct. She further
argues that regardless of whether she could seek a remedy in the
custody proceedings, she was still entitled to a DVRO.
We conclude that based on the limited evidence before it,
the family court erred in denying the DVRO. Mother adduced
evidence that Father made multiple requests for police welfare
checks not for any legitimate reason but based on false
information to harass her. If fully credited, that evidence alone
was sufficient to demonstrate abuse under the DVPA and to
require the issuance of a DVRO, and the court erred in finding
otherwise. We say if fully credited, because the court did not
permit Father to offer testimony or evidence that he had
legitimate concerns when he made these calls, or any other
evidence for that matter. In fact, when Father began to attempt
setting forth such evidence, the court advised Father that it had
already ruled in his favor and did not need to hear his reasons for
calling the police. Accordingly, we reverse and remand the
matter for an evidentiary hearing where the court can hear from
both parties.
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FACTUAL AND PROCEDRAL BACKGROUND3
A. The Parentage Action and the Interim Custody and
Visitation Order
M.F. was born in 2017, and O.F was born in 2019. In
October 2020, Father filed the underlying action to establish
parentage of the children and to obtain court orders for custody
and visitation.
On March 25, 2021, the family court granted on an interim
basis sole legal and physical custody of the children to Mother.
The court also granted Father in-person monitored visitation
with the children once a week and video calls with them every
Tuesday and Thursday at 8:00 p.m. for up to 15 minutes. The
supervised visitation order provided that “[e]vidence has been
presented in support of a request that the contact of [Father]
with the child(ren) be supervised based upon allegations of
3 Father did not file a respondent’s brief. Instead, on
June 23, 2023, Father filed his declaration dated May 23, 2023,
and several exhibits with this court. Mother filed a motion to
strike these documents. Because none of Father’s submission
was before the family court when it ruled on Mother’s DVRO
request, we grant Mother’s motion. We also decline to consider
documents that Mother submitted with her appeal that were not
before the family court, including the reporter’s transcripts for
January 25, 2021 (which was a hearing in front of a different
judicial officer than the one that heard the DVRO request) and
April 18, 2022 (which was a hearing that occurred after the court
denied the DVRO request at issue in this appeal). (In re Zeth S.
(2003) 31 Cal.4th 396, 405 [“It has long been the general rule and
understanding that ‘an appeal reviews the correctness of a
judgment as of the time of its rendition, upon a record of matters
which were before the trial court for its consideration’ ”].)
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abduction of child(ren), domestic violence, [and] alcohol abuse.”
However, the court noted the allegations were disputed and that
it “reserves the findings on these issues pending further
investigation and hearing or trial.” The court further ordered the
parents use OFW “as their exclusive communication platform
[and that a]ll communications [through] OFW . . . be limited to
communications regarding the children.”
B. Mother’s Request for a DVRO
On January 3, 2022, Mother filed a request for a DVRO on
Judicial Council form DV-100. She also filed a declaration and
exhibits in support of her request. In her declaration, Mother
stated that on November 23, 2021, the family court prohibited
her from taking the children to New York for the holidays. It also
“suspended [Father]’s visitation [with the children] pending
completion of one session of co-parenting therapy.” She claimed
that since then, Father “has been increasingly harassing me,
directly and indirectly, to the point that I fear for my safety and
well[-]being.” (Bold omitted.)
1. SMPD Welfare Checks
Mother declared that Father called the SMPD for welfare
checks on December 9, 15, 21, 23, 25, 28, and 30, 2021. She
asserted Father was using the police to harass her and disturb
her peace. Each time, SMPD called Mother and asked for her
address. She explained to SMPD that she obtained housing
through a domestic violence group, that Father was the
perpetrator of the domestic violence,4 and that she would not give
4 We repeat only what Mother stated in her declaration.
The record does not include any factual finding that Father
committed acts of domestic violence against Mother.
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out her address because she feared for her safety if Father
obtained it.
There is nothing in the record describing the circumstances
surrounding Father’s call to the SMPD for a welfare check on
December 9, 2021.
On December 14, 2021, Father, as he put it in an OFW
message, “wrongly assumed [Mother] had not attempted to reach
[him],” but later saw Mother’s “attempts to call [him].” He
apologized and requested that Mother allow him to make up the
call the following day, December 15. Mother told Father that she
and the children were not available for the make-up call.
According to Mother, “because I did not meet [Father]’s demand,
he called SMPD . . . for a welfare check.” There is no evidence in
the record to contradict Mother’s assertion.
Mother declared that on December 21, 2021, she did not
receive a call from Father at 8:00 p.m., the time at which he was
to have video calls with the children. At 8:10 p.m., Father called
the SMPD for a welfare check. Thereafter, Father sent an email
to Mother and her attorney in which he claimed Mother was not
answering his calls, accused Mother of disappearing, and stated
that he called the SMPD to investigate where the children were.
Mother spoke with an SMPD officer who called Mother at 10:18
p.m. The officer called her again at 11:03 p.m. to ask if she was
in California. She confirmed that she was. At 11:16 p.m., Father
sent a message to Mother in which he indicated he had spoken
with the SMPD officer after the officer had spoken with her. He
called Mother and her attorney liars and told Mother to “[s]leep
well with your evil ways.” A printout of a call log from Father’s
phone shows five canceled calls between 8:00 and 8:06 p.m.
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Mother declared that M.F. had been watching a movie on the
iPad and Mother had not seen a call come through.
On December 22, 2021, Father sent five to seven messages
to Mother and her attorney. Father “attempted to . . . call [the
children that morning] to discover where you are harboring our
children this morning and last night.” He claimed to have
“opened a criminal investigation on a multitude of fronts as it
pertains to your conduct and disappearance last night.” He also
requested that Mother schedule and confirm a 7:00 p.m. make-up
video call for Christmas Eve.
On December 23, 2021 at 6:29 a.m., Father sent a several-
paragraphs message to Mother accusing her of, inter alia, making
false statements and ignoring his messages. Father concluded
the message stating, “I’m asking to visit with our children on
[December 24, 2021] at 7[:00 p.m.]” At 12:09 p.m. that day, a
SMPD officer contacted Mother and requested her address to
conduct a welfare check. According to Mother, the officer
informed her that he needed to conduct the welfare check because
she had missed a “court[-]ordered phone call with [Father]” and
Father believed Mother was out of state with the children.
Mother informed the officer that she had not missed a call as the
next scheduled call was for 8:00 p.m. that evening. Father called
the SMPD at 8:35 p.m. that evening, but the record does not
indicate any reason for Father to have done so.
On December 25, 2021, Father sent a text message to
Mother at 9:03 a.m. stating that Mother had scheduled a make-
up Christmas day call at 9:00 a.m., and that it was unacceptable
for her to miss the call. Father then called the SMPD at
9:10 a.m. He sent Mother a second text at 10:32 a.m., stating
that his mother wanted to meet the children and to coordinate
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with her. Father texted again at 7:10 p.m. and claimed that
Mother coached M.F. to ask Father if she could call him later.
On December 28, 2021, Mother sent a message to Father at
7:09 p.m., and again at 7:50 p.m., to inform him that they would
not be available for a call until 8:30 p.m. that evening. Mother
sent another message stating that the children would call him
closer to 8:45 p.m. O.F. called Father at 8:43 p.m. Father had
called the SMPD at 8:06 p.m.
On Thursday, December 30, 2021, Father did not call the
children. At 8:16 p.m., Mother sent an OFW message to Father
asking if he would be calling or if he needed to reschedule. The
SMPD service report shows Father called SMPD at 8:09 p.m.
The report includes a notation of “[c]hild [s]tealing” under the
column heading “[i]ncident [t]ype.”
2. Email, OFW, and Text Messages
Mother declared that Father “sent well over 100 emails and
37 OFW messages since . . . November 23, 2021 . . . . All have
been accusatory, argumentative, and abusive towards me and/or
my attorney.”
Mother did not attach all these messages to her
declaration, nor do we summarize each message she did attach.
Suffice it to say, Father’s messages are full of accusations,
including that Mother and her attorney were liars, arrogant and
ignorant as to the best interests of the children, dangerous,
outrageous, perpetuating false narratives, in contempt of court,
engaging in conduct that was grounds for disbarment, and
coaching and brainwashing the children. He further stated that
Mother had “false calls with DCFS,” that Mother was attempting
to create a loyalty conflict with the children, which “is punishable
by law under a form of psychological mental[ ](emotional) child
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abuse,” that Mother maliciously defamed his character, that “any
. . . competent [j]udge within the [f]amily [l]aw [c]ourt[]s of [the]
entire [c]ountry would agree[] it is alarming that a four[-]year[-
]old is placed in therapy,” that Mother’s and counsel’s legal
positions are “garbage” and “juvenile games,” that they created a
“venomous trail of lies,” and that Mother’s and counsel’s conduct
has “deeply affected the well[-]being” of the children.
The court denied a temporary restraining order and set the
matter for a hearing on January 25, 2022. Prior to the hearing,
Father did not file any responsive documents or evidence in
opposition to Mother’s request for a DVRO.
C. The Hearing and the Family Court’s Ruling on the
DVRO
At the January 25, 2022 hearing on Mother’s request for a
restraining order, the family court observed that the case had
been assigned to another judicial officer for purposes of an
upcoming long-cause hearing that involved custody and visitation
issues as well as a request for at least one of the parents to move
out of state. The court asked Mother’s counsel if what was set
forth in Mother’s declaration and exhibits was the evidence
supporting the DVRO request; counsel said it was and
emphasized that the evidence would show Father was making
false police reports to SMPD claiming that Mother had left the
state in violation of court orders, which was not true.
The court then stated that Mother’s evidence was
insufficient to support the issuance of a restraining order. The
court noted that the OFW messages were “inappropriate,” and
were not “helpful to [Father’s] custody and visitation position.”
Further, “there [were] consequences, including possible criminal
consequences of involving police departments or a law
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enforcement when there isn’t a legitimate reason to do that if
that’s what’s going on. I think at some point the police
department is likely to take steps or not take seriously [Father]’s
calls. . . . I’m not saying it’s never something that could be used
as a form of harassment, but all that being said, I don’t—I’m not
inclined to restrain any of this conduct under the [DVPA]. People
are entitled to invoke the police department if they have a sincere
concern about child welfare, and I’m concerned about restraining
that in advance. People have a First Amendment right to
petition courts for redress and to communicate regarding matters
that are being litigated, and I think that the communications
here, while they’re not appropriate, while they may not bode well
for what ultimately happens in the custody and visitation
determinations that [the long-cause judge] will make, they’re not,
in my view, restrainable[] pursuant to the [DVPA], and that’s
why I didn’t grant the temporary orders.”
After the court indicated that it was not inclined to grant
the restraining order, Mother’s counsel asked that the court
modify the custody and visitation order to suspend the video calls
or have them professionally monitored. The court responded, “I
think that those requests [are] all within the purview of the
pending request for custody and visitation that are set for
hearing elsewhere. . . . But I am not inclined . . . to approach
those issues from the point of view of a domestic violence
restraining order. I don’t find that on this record . . . those
activities—while . . . I understand that they’re annoying. I think
they may be counterproductive. I think that may have other
consequences that may be disadvantageous, but they’re not
domestic violence.”
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The court then addressed Father, saying “if you have
something to say, I’m happy to listen to it. Although, I just ruled
in your favor, and there’s no obligation that you say a word. So,
. . . if you want to be heard, you can certainly be heard,
understanding that you probably don’t want to talk me out of
ruling in your favor. Yes?” Father began to state that the first
time he called the police “was on April 25th,” and it was “because
[Mother] failed to show up for a visit.” The court stopped Father,
reiterated “today isn’t the trial on the custody and visitation,”
and said, “I don’t need to hear about context, reasons for calling
. . . the police.”
The court’s minute order stated, “The [c]ourt finds the
party requesting the order of protection did not sustain the
applicable burden of proof and accordingly the request is denied.”
Mother filed a timely notice of appeal.
D. Post-appeal Litigation
We sua sponte take judicial notice of the following post-
appeal activities. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
On June 2, 2022, Mother filed another request for a DVRO,
which she based, in part, on Father’s alleged use of OFW
messages to harass her. On July 18, 19, and 22, 2022, the family
court (Judge Joshua D. Wayser) conducted a hearing on Mother’s
request for a restraining order as well as a custody trial. The
court’s July 22, 2022 minute order indicates Mother “has not met
her burden of establishing a right to a [restraining order] under
the DVPA and her request for such relief is denied.”
The court’s final custody judgment granted sole legal and
physical custody of the children to Mother; Mother’s move away
request to relocate to Florida with the children; and unmonitored,
overnight visitation for Father with the children every first,
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third, and if applicable, fifth weekend of each month in Florida,
as well as for several hours each Wednesday. The court awarded
Mother one video call with the children per day during Father’s
custodial time. However, the court’s orders do not provide for
Father to have any video calls with the children.
DISCUSSION
A. Legal Framework and Standard of Review
“The DVPA . . . authorizes the trial court to issue a
restraining order ‘for the purpose of preventing a recurrence of
domestic violence and ensuring a period of separation of the
persons involved, if an affidavit . . . shows, to the satisfaction of
the court, reasonable proof of a past act or acts of abuse.’
[Citations.]” (In re Marriage of Nadkarni (2009) 173 Cal.App.4th
1483, 1494; see § 6300.) “Abuse is not limited to the actual
infliction of physical injury or assault.” (§ 6203, subd. (b).) For
purposes of the DVPA, “ ‘abuse’ means any of the following: [¶]
(1) To intentionally or recklessly cause or attempt to cause bodily
injury. [¶] (2) Sexual assault. [¶] (3) To place a person in
reasonable apprehension of imminent serious bodily injury to
that person or to another. [¶] (4) To engage in any behavior that
has been or could be enjoined pursuant to [s]ection 6320.”
(§ 6203, subd. (a).) We broadly construe the DVPA to accomplish
its purposes. (In re Marriage of Nadkarni, supra, at p. 1498.)
Section 6320 provides in relevant part that “The court may
issue an ex parte order enjoining a party from molesting,
attacking, striking, stalking, threatening, sexually assaulting,
battering, . . . harassing, telephoning, including, but not limited
to, making annoying telephone calls as described in [s]ection
653m of the Penal Code, destroying personal property,
contacting, either directly or indirectly, by mail or otherwise,
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coming within a specified distance of, or disturbing the peace of
the other party, and, in the discretion of the court, on a showing
of good cause, of other named family or household members.”
(§ 6320, subd. (a).) “ ‘[D]isturbing the peace of the other party’
refers to conduct that, based on the totality of the circumstances,
destroys the mental or emotional calm of the other party.”
(§ 6320, subd. (c).)
Generally, we review a trial court’s decision to grant or
deny a restraining order under the DVPA for an abuse of
discretion. (In re Marriage of Davila & Mejia (2018) 29
Cal.App.5th 220, 226.) However, “ ‘[a]ll exercises of discretion
must be guided by applicable legal principles . . . which are
derived from the statute under which discretion is conferred. . . .
[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].’
[Citation.]” (Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816,
820-821.)
The party seeking a restraining order bears the burden of
establishing the circumstances justifying the order. (Curcio v.
Pels (2020) 47 Cal.App.5th 1, 14; see § 6300 [petitioner bears the
burden of producing “reasonable proof” “to the satisfaction of the
court”].) “ ‘In the case where the trier of fact has expressly or
implicitly concluded that the party with the burden of proof did
not carry the burden and that party appeals, it is misleading to
characterize the failure-of-proof issue as whether substantial
evidence supports the judgment. . . . [Instead] the question for a
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reviewing court becomes whether the evidence compels a finding
in favor of the appellant as a matter of law. . . .’ [Citation.]”
(Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013) 218
Cal.App.4th 828, 838.)
B. The Family Court Erred in Denying Mother’s
Request for DVRO Based on the Limited Evidence
Before It
The family court ruled on Mother’s DVRO request without
conducting an evidentiary hearing. It accepted Mother’s
evidentiary presentation in her restraining order application and
made no adverse credibility findings about the facts set forth in
her declaration. It did not obtain any evidence or testimony from
Father, and in fact specifically advised him it did not need to
know the reasons that he called the police. Thus, the trial court
impliedly found that even if it took all of Mother’s statements and
evidence as true, Mother did not carry her burden to demonstrate
abuse by a preponderance of the evidence.
That was error. If one accepts Mother’s evidence at face
value, and does not consider any potential countervailing
evidence, her evidence would compel a finding in her favor.
Without needing to reach the import of the OFW and other
communications, Mother presented evidence that Father called
the SMPD and provided false information to have them conduct
unnecessary and intrusive welfare checks seven times in a three-
week period. She contended these calls were made to harass her
and to attempt to obtain her address. Mother feared for her
safety if Father was able to obtain her address. Further, she
believed (and the evidence facially supports) that Father was
using the SMPD to attempt to exercise control over her.
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Because the court did not hear from Father, the record
discloses no evidence that would suggest Father had a legitimate
reason to contact SMPD to request a welfare check in at least
four instances: December 9, 15, 23, and 30, 2021. Nor did the
family court actually find Father had legitimate reasons for
calling the police. It stated, “there are consequences, including
possible criminal consequences of involving police departments or
a law enforcement when there isn’t a legitimate reason to do that
if that’s what’s going on.” (Italics added.) Indeed, the frequency
of Father’s calls to police in a short period of time, that they were
often made mere minutes after a purported missed call, and that
Father often contacted the police for a welfare check rather than
contact Mother through OFW first indicates Father seized upon
opportunities to harass Mother by making baseless claims to the
SMPD that she had left California with the children and
fomenting unnecessary welfare checks. Thus, Mother
demonstrated abuse within the meaning of the DVPA.5
Mother argues the family court erroneously denied her
request for a DVRO because of First Amendment concerns,
namely that the restraining order would interfere with Father’s
right to petition the government. We question this framing of
what occurred before the trial court.6 The family court’s
5 Because we conclude the family court erred in connection
with the showing made concerning the welfare checks, we need
not consider Mother’s argument that the OFW and other
communications also constituted abuse under the DVPA.
6 Mother also argues the family court declined to grant her
request for a DVRO because her concerns could instead be
addressed in the custody proceedings. We do not read the court’s
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statement that, “I’m not saying it’s never something that could be
used as a form of harassment” seems to indicate it found that
there was no abuse and Father had a First Amendment right to
petition the government, not that there was no abuse because
Father had a First Amendment right to petition the government.
For purposes of completeness, we observe “the First Amendment
does not guarantee the right to harassment of another.” (Doe v.
McLaughlin (2022) 83 Cal.App.5th 640, 656.) Nor does
restricting speech that is abusive under the DVPA “amount to a
prohibited restraint of protected speech.” (In re Marriage of
Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1428; see also
Altafulla v. Ervin (2015) 238 Cal.App.4th 571, 581 [holding
§ 6320 is not unconstitutional because “ ‘[t]he “protection of
innocent individuals from fear, abuse or annoyance at the hands
of persons who employ the telephone, not to communicate, but for
other unjustifiable motives,” is . . . a compelling interest’ ” for
which the First Amendment must “ ‘ “give way” ’ ”].) Thus, to the
extent Father called the police to conduct welfare checks without
a legitimate basis for the purpose of harassing Mother, he had no
First Amendment right to do so.
Mother asserts the remedy for the family court’s error is to
remand with instructions to enter the requested restraining
order. What Mother overlooks is that the family court did not
comments as improperly stating modification to custody orders
was a proper substitute for a DVRO even if abuse was shown.
Instead, the court determined Father’s acts did not constitute
domestic violence and then attempted to console Mother that her
request to have the video calls monitored or suspended was
within the purview of the custody proceedings and could still be
addressed.
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provide Father with an opportunity to present countervailing
evidence or testimony; when Father attempted to do so, the court
noted it had already ruled in Father’s favor and it was not
necessary. Nor do we know if Mother would have evidence or
testimony that would contradict whatever Father presents, or
what credibility findings the court might make after hearing from
Mother, Father, and any other relevant witness(es). Thus, the
proper remedy is to remand for an evidentiary hearing. We note
that while this appeal has been pending, Mother brought another
DVRO request that resulted in a multi-day hearing, and we
express no opinion on the possible preclusive effect (if any) of that
or any other subsequent litigation on the factual assertions made
in connection with the restraining order request at issue in this
appeal.
DISPOSITION
The family court’s January 25, 2022 order denying Mother’s
DVPA restraining order is reversed. The matter is remanded to
the family court with instructions to conduct an evidentiary
hearing pursuant to the DVPA following issuance of this court’s
remittitur.
Each party shall bear their own costs on appeal.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
CHANEY, J. BENDIX, Acting P.J.
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