A recently published case from the California Court of Appeal clarifies precisely what conduct can justify a restraining order. It also clarifies that significant past acts of physical abuse alone can justify a restraining order.
In Rodriguez v. Menjivar , there was significant testimony regarding domestic violence. The petitioner (“Rodriguez”) testified that, in 2013 and 2014, her boyfriend (“Menjivar”) inflicted and attempted to inflict physical injury on her. She also testified that Menjivar exhibited controlling behavior, called multiple times a day, accused her of cheating and took actions isolating her from contact with others. Menjivar enrolled in three of her four college classes and, during the one in which he was not enrolled, caused Rodriguez to keep a telephone call open during the class, so that he could monitor her. He also kept a line open when she was at home so he could monitor her activities.
Menjivar also told Rodriguez that he had sliced open the neck of her teddy bear because he wanted to do the same to her. He practiced martial arts in close proximity to her and threatened to beat her with a studded belt. During Rodriguez’s pregnancy, he pulled her hair, kicked her, and slapped her. Rodriguez testified that she became terrified of Menjivar. In February of 2014, after experiencing abdominal pain, Rodriguez asked Menjivar to take her to the hospital. During the ride, he drove erratically, took her telephone from her when she tried to call her mother for help, and threatened to drive into an oncoming train.
At the conclusion of the hearing, the Trial Court denied the request for an ongoing restraining order. Ms. Rodriguez appealed and the Court of Appeals found fault with the Trial Court’s conclusion. The Court of Appeals stated these two mistakes:
- The trial court made was taking the position that mental abuse could justify a restraining order. The Court of Appeals held that “mental abuse is relevant evidence in a DVPA proceeding” and cited the Nadkarni case where the Court of Appeals held that publication and threatened publication of personal e-mails disturbed the petitioner’s peace as set forth in Family Code section 6320. The Court also referred to the recent amendment to Family Code section 6203 that provides that abuse “is not limited to the actual infliction of physical injury or assault.”
- The trial court erred in finding that the “significant violence through February of 2014” did not justify a restraining order. Although there was not actual violence in the six month period leading up to the hearing, the Court of Appeals cited the Nakamura case which held that a trial court may issue a restraining order “simply on the basis of an affidavit showing past abuse.” The Court also cited Nevarez v. Tonna, which held that the statute does not require any showing of the likelihood of future abuse.
This case does not seem to be groundbreaking. It has long been understood that mental abuse constitutes domestic violence and that past acts of abuse can justify a restraining order. This case, however, does serve as an important reminder of how broad the Domestic Violence Prevention Act truly is.
The full opinion can be viewed here: http://www.courts.ca.gov/opinions/documents/B263062.PDF
Please contact us if you are experiencing mental or physical abuse while considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.