96 Cal.App.5th 1136
Cal. Ct. App.2023Background
- Son (Hughes) sought a domestic violence restraining order (DVRO) against his mother (Avakian) after repeated unwanted contact (texts, emails, unannounced visits) following his move out and explicit no-contact requests.
- Key incident: Hughes testified Avakian drove her car onto a curb and nearly ran him and his girlfriend over while laughing; video evidence partially corroborated background events though not the full driving incident.
- Avakian sent emails including one referencing that she was shooting and preferred an AR; Hughes immediately sought a DVRO citing fear and intimidation.
- Trial court found Hughes credible, concluded his fear of imminent serious bodily injury was reasonable, and issued a one-year DVRO with a firearms/ammunition prohibition; the court took judicial notice of an out-of-state restraining order involving Avakian and Hughes’s sister.
- On appeal Avakian challenged (1) sufficiency of the evidence/abuse of discretion, (2) evidentiary rulings (judicial notice and admission of videos), (3) constitutionality of the firearms prohibition under Bruen/Second Amendment, and (4) equal protection regarding §6389(h)’s employment exception; the Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument (Hughes) | Defendant's Argument (Avakian) | Held |
|---|---|---|---|
| Whether the DVRO was supported by substantial evidence / trial court abused discretion | Testimony and recordings show repeated unwanted contact and an incident placing Hughes in reasonable apprehension of imminent serious bodily injury | Trial court mischaracterized benign conduct as abuse; Hughes’s testimony was unreliable | Affirmed: Hughes’s testimony (and recordings) provided substantial evidence; credibility determinations deferred to trial court |
| Whether taking judicial notice of an out-of-state restraining order or considering videos not on exhibit list was reversible error | Judicial notice of the existence of the out-of-state order was proper; video evidence was brief, provided to counsel, and not prejudicial if considered | Judicial notice improperly imported hearsay/truth of the order; admission of unlisted exhibits violated due process | No reversible error: §452 permits notice of court records (not truth of underlying facts); any admission issues were not prejudicial |
| Whether the firearms prohibition violated the Second Amendment post-Bruen | Firearm restriction is permissible for persons subject to DVROs and Hughes’s showing justified it | Bruen requires allowing firearms for self-defense in the home; total ban here is unconstitutional as-applied/facially | Rejected: Bruen did not disturb restrictions on those adjudged to pose domestic-violence risk; §6389 constitutional as applied generally; as-applied claim forfeited for failing to raise in trial court |
| Whether §6389(h)’s employment-based exception violates equal protection by excluding a self-protection exception | §6389’s narrow employment exception is rationally related to legitimate interest in reducing domestic violence; different groups are not similarly situated | Denying a self-protection exception but allowing employment exceptions is unequal and arbitrary | Rejected: classifications are not similarly situated for this purpose and survive rational-basis review given compelling interest in reducing domestic violence |
Key Cases Cited
- In re Marriage of Davila & Mejia, 29 Cal.App.5th 220 (Cal. Ct. App.) (DVPA standard and remedy).
- Burquet v. Brumbaugh, 223 Cal.App.4th 1140 (Cal. Ct. App.) (repeated unwanted contact can disturb a person’s peace under DVPA).
- Altafulla v. Ervin, 238 Cal.App.4th 571 (Cal. Ct. App.) (§6389 analogous to felon-weapon prohibition; firearms restriction in DVRO context lawful).
- District of Columbia v. Heller, 554 U.S. 570 (U.S. 2008) (acknowledging individual right to possess arms).
- New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (U.S. 2022) (framework for reviewing firearm regulations; did not invalidate firearm prohibitions for persons subject to restraining orders as applied here).
- United States v. Rahimi, 61 F.4th 443 (5th Cir.) (federal appellate decision holding restraining-order firearm ban unconstitutional; Court of Appeal declined to follow Rahimi).