Domestic Violence Restraining Orders are getting easier to obtain in California

Contrary to what many readers might think, the Domestic Violence Protection Act (hereinafter “DVPA”) definition of “abuse” is not confined to physical abuse but describes a veritable plethora of behaviors which do not involve any physical injury or assaultive conduct 1. And while the Court may consider the lack of past physical abuse in deciding whether or not to grant a protective order, there have been a number of cases where the court has found substantial evidence supporting DV PA restraining orders where there was no evidence of physical abuse. Conduct as simple as emailing an ex-love interest, sending them text messages, sending candy or flowers and showing up at their homes unannounced, while all seemingly or intended to be pleasant, have been held by our courts to be grounds for the issuance of DVPA restraining orders. 2

The laws relating to domestic violence and what conduct amounts to “abuse” for the purposes of Family Code Section 6203, is constantly changing and/or being defined. Most recently, our California Appellate Courts have been grappling with the issue of Family Code Section 6320 and its definition of “abuse” as being conduct that “disturbs the peace” of the other party.

Two recent cases directly addressing that specific issue have been the Second District Court of Appeals in Burquet v. Brumbaugh, (2014), 223 Cal.App.4th 1140;167 Cal.Rptr.3d 664 where the Court held that “disturbing the peace of the other party ” was defined as “conduct that destroys the mental or emotional calm of the other party,” (at Page 1146) and Sixth District Court of Appeals in Nadkarni v. Nardkarni, 2009, 173 Cal.App.4th 1483 where the Court held that “disturbing the peace of the other party in section 6320 may be properly understood as conduct that destroys the mental or emotional calm of the other party,” (Id at Page 1497) (Emphasis Added)

Most recently, (June 9, 2015) our appellate courts have held that “disturbing the peace of the other party” was sufficient for the issuance of a DVPA restraining order. Those courts went on to define “disturbing the peace of the other party” as “conduct that destroys the mental or emotional calm of the other party.” 3

In Altafulla v Ervin (2015) 060915 CAAPP4-1, D065980

Ervin sent emails to Altafulla’s employer and their mutual friends and attached a surveillance report that he believed established her unfaithfulness. Ervin then described oral copulation to Altafulla’s 17-year-old and nine-year-old daughters and told them that he believed that Altafulla had engaged in oral copulation with another man. Ervin then warned the girls that they could contract sexually transmitted diseases from towels their mother might use. Ervin also destroyed their bedroom furniture with the children present in the home. Altafulla’s 17-year-old daughter was in fact so traumatized by Ervin’s behavior that she required inpatient care at a mental health facility, which would not release her until Ervin had moved out of the home.

The Court in Altafulla said:

“The DVPA was enacted to protect domestic partners from abusive conduct, which, as the record here amply demonstrates, may involve the use of arguably accurate information in a manner that causes severe emotional distress. In this regard, the holding and reasoning in In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495-1499 (Nadkarni)are persuasive and controlling. In Nadkarni, the DVPA applicant’s former husband had gained unauthorized access to her email account and had both sent information gathered from the account to others and relied on information obtained from the account in the parties’ ongoing child custody dispute. After she discovered her former husband’s intrusion, the victim applied for a DVPA restraining order preventing him from further intrusion into the account, further distribution of information he found in the account, and delivery to her counsel of all information he had downloaded from the account. The trial court dismissed the victim’s application on the grounds that the former husband’s conduct was not subject to the DVPA. In reversing the dismissal, the Court of Appeal noted that “section 6320 broadly provides that ‘disturbing the peace of the other party’ constitutes abuse for purposes of the DVPA. (Nadkarni, at p. 1497.)”

The court then went on to broadly interpret the phrase as including the mental peace of DVPA applicants: “To determine the plain meaning of statutory language, we may resort to the dictionary. ‘When attempting to ascertain the ordinary, usual meaning of a word [in a statute], courts appropriately refer to the dictionary definition of that word.’ [Citation.] The ordinary meaning of ‘disturb’ is ‘[t]o agitate and destroy (quiet, peace, rest); to break up the quiet, tranquility, or rest (of a person, a country, etc.); to stir up, trouble, disquiet.’ [Citation.] ‘Peace, ‘ as a condition of the individual, is ordinarily defined as ‘freedom from anxiety, disturbance (emotional, mental or spiritual), or inner conflict; calm, tranquillity.’ [Citation.] Thus, the plain meaning of the phrase ‘disturbing the peace of the other party’ in section 6320 may be properly understood as conduct that destroys the mental or emotional calm of the other party.” Altafulla Ibid

The Altafulla Court cited that their interpretation of the phrase “disturbing the peace of the other party” in section 6320 also comports with the legislative history of the DVPA. As enacted in 1993 (Stats. 1993, ch. 219, § 154, p. 1654), the DVPA collected earlier provisions for the issuance of domestic violence restraining orders from the former Family Law Act (Civ. Code, former § 4359), the former Domestic Violence Prevention Act (Code Civ. Proc., former § 540 et seq.) and the Uniform Parentage Act (Civ. Code, former § 7020). [Citation.] These provisions all expressly authorized a domestic violence restraining order that enjoined ‘disturbing the peace’ of the other party.

“The 1979 Domestic Violence Prevention Act (Code Civ. Proc., former § 540 et seq.), like the current DVPA (Fam. Code, § 6200), had a ‘protective purpose’ that was ‘broad both in its stated intent and its breadth of persons protected.’ [Citation.] The 1979 act was intended to ‘provide more protective orders to a broader class of victims of domestic violence, ‘ and ‘specifically sets forth the orders which may be issued by the court. These orders will enable the court to provide greater relief to victims in more areas of need.’ [Citation.] Thus, as originally enacted, the DVPA reflected the Legislature’s goal of reducing domestic violence and its recognition that ‘[i]t is virtually impossible for a statute to anticipate every circumstance or need of the persons whom it may be intended to protect. Therefore, the courts must be entrusted with authority to issue necessary orders suited to individual circumstances, with adequate assurances that both sides of the dispute will have an opportunity to be heard before the court.’ [Citation.]

“Accordingly, we believe that the Legislature intended that the DVPA be broadly construed in order to accomplish the purpose of the DVPA. Therefore, the plain meaning of the phrase ‘disturbing the peace’ in section 6320 may include, as abuse within the meaning of the DVPA, a former husband’s alleged conduct in destroying the mental or emotional calm of his former wife by accessing, reading and publicly disclosing her confidential emails. (Nadkarni, supra, 173 Cal.App.4th at pp. 1497-1498.)” Altafulla Ibid



The current trend among Appellate Courts in California appears to be siding with the disturbing the peace standard identified above, with the First, Second, Fourth and Sixth District Court of Appeals rendering recent decisions supporting the standard.

Only the Third and Fifth Appellate District Courts in California have not yet chimed in on the issue of the “disturbing the peace standard,” The Fifth District Court of Appeals serves the courts of Fresno County and the surrounding areas. That being said, some judges within Fresno County appear to be requiring that there be some evidentiary showing of physical injury, assaultive conduct, violence, threat of violence, fear or a pattern of ongoing disruptive conduct before they will issue a DVPA restraining order. Other judges within Fresno County appear to be following the “disturbing the peace standard” described above and are issuing DVPA restraining orders on a simple showing that the perpetrators conduct destroyed the mental and emotional calm of the victim.

It should be noted that during the last week of November 2015, I was involved in a case where one party admitted that he had forcibly taken a cell phone from the other party so that he could review her text messages and phone calls (without her permission). When the owner of the phone was able to retrieve it and stuffed it into her pants, the otherparty admitted to having picked her up off the ground by her belt loops and shaking her in order to dislodge the phone from inside her clothing. In that case, the Court found the victim to be a credible witness, but refused to issue a DVPA restraining order, holding that this was a one-time incident, that there was mutual combat when the owner of the phone attempted to retrieve it from the other party and that the one time incident did not establish a pattern of disruptive or threatening conduct such that a Restraining Order was necessary. Obviously, this Court was not applying the “disturbing the peace standard.”

A uniform standard throughout the State of California for what conduct constitutes domestic violence will likely not be settled until the California Supreme Court gets involved and decides the issue for all jurisdictions within California. Alternatively, the third and fifth district court of appeals could soon render rulings supporting the disturbing the peace standard. Until then, (and depending on where you live within this state) be cautious not to upset the quiet and calm of your current or past love interest, lest you face the issuance of a Domestic Violence Restraining Order that has the potential to affect your job, custody and Constitutional Rights.

Glenn R. Wilson, Attorney

By Connor Douglas Johnson

1 Eneaji v. Ubboe (2014) 229 Cal.App.4th 1457, 1464; see also Burquet v. Brumbaugh, supra, 223 Cal.App.4th at pp. 1142-1143, 1146-1147 [substantial evidence supporting DVPA restraining order where there was no evidence of physical abuse, but restrained party disturbed peace of ex-girlfriend by e-mailing her, sending her text messages, and showing up unannounced at her home]

2 Conness v. Satram (2004) 122 Cal.App.4th 197, 201-202 [no evidence of physical injury needed under DVPA].)” Evilsizor v. Sweeney (2015) 237 Cal.App.4th 1416, 1425, A142396.

3 Altafulla v Ervin (2015) 060915 CAAPP4-1, D065980


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