2 Cal. App. 5th 844
Cal. Ct. App.2016Background
- In January 2015 the respondent sought a Domestic Violence Prevention Act (DVPA) restraining order in San Luis Obispo County alleging repeated harassment (texts, online posting of photos/info, late-night banging) after she refused to “move forward” from friendship to a romantic relationship. A prior Tennessee protective order had existed in 2013–2014.
- Appellant Campbell, appearing pro per by phone from Florida, moved to dismiss at the February 19, 2015 hearing because respondent was abroad; the trial court continued the matter to February 26 without ruling on the motion and Campbell did not object.
- At the February 26 hearing the trial court found the parties had a “dating relationship” under Family Code § 6210 and that appellant’s communications and online postings constituted abuse/disturbing the peace, and issued a DVPA restraining order (500 yard distance, online removal/no posting).
- Appellant appealed, arguing (1) the motion to dismiss was wrongly denied, (2) his conduct was nonviolent and therefore not domestic violence, (3) the court erred in finding a “dating relationship,” and (4) the online-removal order violated his First Amendment rights.
- The Court of Appeal affirmed: the failure to obtain a ruling on the dismissal motion and failure to object to the continuance waived the claim; substantial evidence supported a dating-relationship finding under the statutory definition; DVPA protection may be based on nonphysical abuse/disturbing the peace; and the First Amendment challenge was forfeited and, on the merits, would fail.
Issues
| Issue | Plaintiff's Argument (Phillips) | Defendant's Argument (Campbell) | Held |
|---|---|---|---|
| Motion to dismiss for absence of petitioner | Counsel’s presence sufficed; hearing could proceed | Respondent was not personally present so case must be dismissed | Denial not ruled on but claim waived for failing to press/rule; court would have upheld proceeding—statute did not require petitioner’s personal presence (issue waived) |
| Existence of a "dating relationship" under §6210 | Parties had frequent, intimate associations with expectation of affection/sexual involvement | Relationship was platonic friendship, not "dating" | Substantial evidence supported finding of a dating relationship (texts, emails, shared time, nude photos, mutual statements) |
| Claim that conduct was nonviolent so DVPA inapplicable | DVPA protects fears of physical harm only; restraining order stigmatizes nonviolent conduct | Respondent suffered harassment/disturbance of peace constituting abuse under DVPA | DVPA covers nonphysical abuse (disturbing the peace); evidence supported restraining order despite little/no physical force alleged |
| First Amendment challenge to online-posting prohibition | Online posts/photographs are innocuous speech; removal order infringes free speech | Order was imposed after hearing determining conduct constituted abuse; constitutional challenge not raised below and lacks analysis | Issue forfeited for failure to raise at trial and to brief adequately; on merits speech involved conduct adjudged abusive and is not protected in this context |
Key Cases Cited
- Fibreboard Paper Prods. Corp. v. East Bay Union of Machinists, 227 Cal.App.2d 675 (1964) (trial court may draw reasonable inferences from evidence)
- Oriola v. Thaler, 84 Cal.App.4th 397 (2000) (defined "dating relationship" as serious courtship; prompted statutory revision)
- Burquet v. Brumbaugh, 223 Cal.App.4th 1140 (2014) (disturbing the peace may constitute "abuse" under the DVPA)
- In re Marriage of Evilsizor & Sweeney, 237 Cal.App.4th 1416 (2015) (activity adjudged to constitute abuse under DVPA is not necessarily protected speech)
- People v. Cunningham, 25 Cal.4th 926 (2001) (failure to press for a ruling or object to continuances can waive appellate claims)