Rodriguez v. MenjivarRodriguez v. Menjivar
Gibson, Dunn & Crutcher LLP, Michael Holecek and Scott A. Edelman; Family Violence Appellate Project, Jennafer Dorfman Wagner; Los Angeles Center for Law & Justice, Carmen McDonald, for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
FACTUAL AND PROCEDURAL SUMMARY
Rodriguez and Menjivar began dating in June, 2013; they stopped dating in February, 2014. According to Rodriguez, Menjivar inflicted, and attempted to inflict, physical injury on her during that period. Rodriguez testified that during their relationship, Menjivar exhibited controlling behavior, calling multiple times in a day, accusing Rodriguez of cheating, and taking actions to isolate Rodriguez from contact with others. In November 2013, Rodriguez sought psychological help related to the resulting stress and anxiety. Rodriguez broke off the relationship in December.
In January, 2014, Rodriguez determined she was pregnant, and she resumed the relationship. 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 whether she was socializing with others; he also kept a line open with her when she was at home, monitoring her activities. Rodriguez‘s mother, who testified that she had witnessed Menjivar inflict physical injury on her daughter, discovered this open line at 3 a.m. on one occasion; Rodriguez told her mother she did this because she was afraid that Menjivar would hit her if she did not comply.
In January, Menjivar told Rodriguez he had sliced open the neck of her teddy bear because that was what he wanted to do to her. In that same month, Rodriguez was diagnosed with subchorionic hemorrhage and a cyst, and advised to limit strenuous activity and stress. Despite being aware of this diagnosis, Menivar practiced martial arts in close proximity to Rodriguez, despite her requests to stop, played with a knife close to her face, and threatened to beat her with a studded belt. During the pregnancy, he pulled
The testimony revealed further incidents of pushing, punching, and erratic driving, causing Rodriguez to be terrified. Menjivar threatened that, if Rodriguez called the police, he would assert that she had abused him. This behavior continued until late February, 2014 when, after experiencing abdominal pain, Rodriguez asked Menjivar to take her to the hospital. During the ride, he again drove erratically, took her telephone away when she called her mother for help, threatened to send her to jail, and finally threatened to drive into the path of an oncoming train. At the hospital, Rodriguez described the events to hospital staff, who called the police.
Rodriguez again stopped seeing Menjivar after her hospitalization, but he continued his actions, threatening her over social media, directly in March, and, she believed, indirectly in April. His friends also posted threats on social media. Rodriguez changed her telephone number and shut down her social media; she ultimately discontinued her college classes. In July, she sought counseling, and after she believed she saw Menjivar in her vicinity sought a restraining order two days later. She testified at the hearing that she was in fear that he might hurt her, or her child, in the future.
The court granted a temporary restraining order on July 24, 2014; the court began the hearing on the permanent order on September 3, 2014, after Rodriguez gave birth to her son. The court conducted additional days of hearing on September 17, and October 8, 2014; the temporary order remained in effect during this time. Rodriguez, her mother, and Menjivar were the sole witnesses.1 At the conclusion of the hearing, the court denied the request and dissolved the temporary order. Rodriguez appealed.
The Domestic Violence Prevention Act (DVPA) (
Rodriguez asserts in this appeal that the trial court erred in two aspects of its decision. First, the trial court ruled that the evidence of mental abuse and controlling behavior testified to by Rodriguez, and her mother, were not relevant to its determination. Second, the trial court determined that the significant past acts of physical abuse that it found to be true were too remote in time, and not sufficiently likely to be repeated, to warrant the issuance of a protective order. We agree that the trial court erred on both grounds, and reverse the denial of the order.
A. Standard of Review
In general, as with any order granting, or denying, injunctive relief, we review the trial court‘s order for abuse of discretion. (Nadkarni, supra, 173 Cal.App.4th at p. 1495.) However, “the exercise of discretion is not unfettered in such cases. (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 337 [67 Cal. Rptr. 3d 286].) All exercises of
B. Acts That Disturb The Petitioner‘s Peace Support The Issuance of a DVPA Order
From the first day of the hearing, the trial court took the position that mental abuse, to which Rodriguez sought to testify, was not subject to the statute: “There‘s a whole movement who believes mental abuse ought to be considered domestic violence. For whatever reason, the state has not adopted that in its domestic violence statute. So being unpleasant, generally not saying nice things, excluding you from friends and stuff, probably not, under all facts and circumstances, generally is not domestic violence. Similarly, the court indicated it would not consider controlling behavior as a basis for an order: “If you happen to be controlling, I don‘t think that‘s a good thing to do. It‘s unpleasant. But it‘s not something that this court is going to sanction.”
The court sustained Menjivar‘s objection to evidence of controlling behavior on the second day of the proceedings, and, in stating its reasons for denying the order, discussed only evidence with respect to physical violence. The court erred.
Mental abuse is relevant evidence in a DVPA proceeding. In Nadkarni, the trial court dismissed the petitioner‘s application for a temporary DVPA order, finding that the
Nadkarni is not limited to the application for a temporary order, but has been applied to the issuance of a permanent order after hearing. For example, in Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, petitioner, after her relationship with respondent ended, was subjected to ongoing contact, electronically and in person, by respondent, despite her requests that he stop. Adopting Nadkarni, the court affirmed the issuance of a DVPA order, because the acts constituted a disturbance of petitioner‘s peace, and was thus abuse under the statute. (Id. at pp. 1146-1147.)
In In re Marriage of Evilsizor and Sweeney (2015) 237 Cal.App.4th 1416, the Court of Appeal also affirmed the issuance of a DVPA order based on Sweeney‘s downloading and dissemination of text messages. Even in the absence of any allegations of physical abuse, the challenged behavior was held sufficient.3
In this case, the testimony that the trial court did permit revealed significant acts of emotional abuse, well beyond accessing and disseminating texts and email. The acts of isolation, control, and threats were sufficient to demonstrate the destruction of Rodriguez‘s mental and emotional calm. Indeed, that disturbance continued despite
C. The Court‘s Finding of Physical Abuse Supported the Issuance of the Order
At the conclusion of the testimony, and after hearing the arguments of counsel, the trial court dissolved the temporary order and declined to issue a permanent order. The court found “there was significant violence through February of 2014. The court is unmoved by any reference to violence or threats of violence since that date. It‘s a tough one. But the court also recognizes that respondent moved out of Los Angeles County—moved out of the area, apparently, according to his own testimony to be away from the petitioner.”4 Counsel then asked: “You‘re making a determination that there was domestic violence in the past and that that is not sufficient to order a restraining order going forward?” The court replied, “That‘s right.”5
The trial court‘s express findings, as well as the response to counsel‘s question, indicate that the court found the testimony of physical abuse credible, and the level of abuse substantial. The court, however, appeared to believe that the absence of actual violence in the six month period leading up to the hearing, as well as the conclusion that respondent had left the area, was an appropriate basis to deny the protective order. The court erred.
Second, and of critical importance, the court‘s reasoning rests on an error of law. No showing of the probability of future abuse is required to issue a DVPA restraining order: “A trial court is vested with discretion to issue a protective order under the DVPA simply on the basis of an affidavit showing past abuse.” (Nakamura, supra, 156 Cal.App.4th at p. 334.) A challenge to the issuance of an order where respondent testified under oath that he would never contact the petitioner again, and where, as in this case, the respondent complied with the temporary restraining order while it was in place, failed because the statute does not require any showing of the likelihood of future abuse. (Nevarez v. Tonna (2014) 227 Cal.App.4th 774.)
The fact that there had been a six month hiatus in violence in this case does not support the court‘s erroneous imposition of a requirement of a showing of likelihood of future abuse. The DVPA expressly allows renewal of a protective order without a showing of any further abuse beyond that on which the original order was based. (
Here, too, the fact that six months had passed, during almost half of which respondent was subject to a protective order, does not justify dissolving that order and failing to issue a new order. While the trial court believed that there had been significant physical violence, it found that showing of past abuse insufficient as a matter of law. Because the law is otherwise, the order denying the issuance of a DVPA protective order must be reversed, and the matter remanded for the trial court to issue the restraining order in accordance with the law.
The order denying the issuance of the protective order is reversed and the matter remanded for the trial court to issue the protective order in accordance with this opinion. Rodriguez is to recover her costs on appeal.
ZELON, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
ORDER CERTIFYING OPINION FOR PUBLICATION; NO CHANGE IN JUDGMENT
THE COURT:
The opinion in the above-entitled matter filed on December 16, 2015 was not certified for publication in the Official Reports. For good cause it now appears that the opinion should be published in the Official Reports and it is so ordered.
This order does not change the judgment.
PERLUSS, P. J., ZELON, J., SEGAL, J.