Evilsizor v. Sweeney CA1/1
237 Cal. App. 4th 1416
Cal. Ct. App.2015Background
- During marriage Evilsizor used two cell phones; Sweeney (husband) had claimed routine access and later downloaded large amounts of data from her phones (texts, notes) around the time their child was born.
- Sweeney reviewed the downloaded material and in dissolution proceedings filed some text-message printouts as exhibits and later provided other messages to a custody evaluator and third parties; Evilsizor alleges embarrassment, fear, and threats to disclose more information.
- Evilsizor sought a restraining order under the Domestic Violence Prevention Act (DVPA) seeking to bar further dissemination of the downloaded material and require return of copies; trial court held a contested hearing and found Sweeney’s conduct amounted to DVPA “abuse.”
- The trial court issued a permanent (five-year) DVPA order prohibiting Sweeney from using, delivering, copying, printing or disclosing messages or other content downloaded from Evilsizor’s phone or family computer, except with court permission; Sweeney appealed.
- On appeal the court reviewed for abuse of discretion and substantial-evidence support for the DVPA finding and evaluated First Amendment/free-speech and procedural challenges.
Issues
| Issue | Plaintiff's Argument (Evilsizor) | Defendant's Argument (Sweeney) | Held |
|---|---|---|---|
| Whether Sweeney’s downloading/disclosure of Evilsizor’s phone data qualifies as “abuse” under the DVPA (disturbing the peace) | The downloads and disclosures of intimate, private communications destroyed her mental/emotional peace and constitute DVPA abuse | His conduct was not the sort of nonphysical behavior covered by DVPA or otherwise insufficient to support an order | Court: Sufficient evidence and legal basis — disclosure/threats to disclose private communications falls within DVPA “disturbing the peace” and supports restraint |
| Whether the restraining order is an unconstitutional prior restraint on free speech | Order protects her privacy and peace; dissemination of material already determined to be abusive may be enjoined | Order is an improper prior restraint on speech (First Amendment and California free-speech protections) | Court: Not an invalid prior restraint — injunction issued after contested hearing determining conduct amounted to unprotected abusive conduct; narrowly tailored to downloaded material |
| Applicability of Bartnicki (protected publication of unlawfully intercepted communications of public concern) | N/A (Evilsizor: messages are private, not public concern) | Relies on Bartnicki to argue First Amendment protects dissemination even if obtained unlawfully | Court: Bartnicki limited to matters of public concern; here messages are private and Sweeney has not shown public concern that outweighs privacy interest |
| Procedural/fairness claims (scheduling, cross-examination, overbreadth) | Order was necessary and court proceedings were proper; order allows court authorization for use | Claims trial date advanced denied chance to retain counsel; cross-examination cut off; order overbroad | Court: No abuse of discretion in scheduling (Sweeney agreed to date); no prejudicial denial of cross-exam; order construed as directed at data downloaded from Evilsizor and sufficiently tailored; affirmed |
Key Cases Cited
- In re Marriage of Nadkarni, 173 Cal.App.4th 1483 (Cal. Ct. App. 2009) (DVPA covers nonphysical acts that disturb a former spouse’s peace, including disclosure of private electronic communications)
- Bartnicki v. Vopper, 532 U.S. 514 (U.S. 2001) (First Amendment may protect publication of unlawfully intercepted communications when they concern a matter of public importance)
- Balboa Island Village Inn, Inc. v. Lemen, 40 Cal.4th 1141 (Cal. 2007) (injunction entered after trial prohibiting repetition of speech judicially determined to be unlawful is not a prohibited prior restraint)
- Aguilar v. Avis Rent A Car System, Inc., 21 Cal.4th 121 (Cal. 1999) (state and federal free-speech limits and categories of unprotected speech; scope of First Amendment and workplace discrimination context)
- Burquet v. Brumbaugh, 223 Cal.App.4th 1140 (Cal. Ct. App. 2014) (substantial-evidence standard for DVPA restraining orders addressing electronic communications disturbing the peace)
- Evans v. Evans, 162 Cal.App.4th 1157 (Cal. Ct. App. 2008) (preliminary injunctions that broadly restrain speech before trial may be invalid, but speech adjudicated unlawful at trial can be enjoined)
- In re Marriage of Candiotti, 34 Cal.App.4th 718 (Cal. Ct. App. 1995) (orders restraining dissemination of material obtained independently may implicate free speech; distinction between discovery material and independently sourced information)