After a contentious marriage and divorce filings that never actually resulted in a divorce, S.B. (Wife) and K.K. (Husband) continued their relationship while living separately in their $7 million home in Rancho Santa Fe, California. Most of the time, S.B. resided in a 500-square-foot guest house, while K.K. lived in the 4,000-square-foot main dwelling. S.B. sought a domestic violence restraining order (DVRO) in 2022. Among other charges, she claimed that K.K. harassed her, followed her car via software, and got physical after a heated argument. The trial judge found her less credible than her husband and denied the DVRO. S.B. appealed but lost again in the appellate court.

In S.B.’s appeal, the rulings of San Diego Superior Court Judges Sharon L. Kalemkiarian and William Y. Wood (who heard discovery motions) were unanimously affirmed by a three-justice panel of Division One of the Fourth District Court of Appeal on March 26. The unpublished opinion was authored by Associate Justice William Dato with concurrences by Acting Presiding Justice Terry B. O’Rourke and Associate Justice Martin N. Buchanan.

Justice Dato’s opinion began with a brief history of the parties’ relationship. Both S.B. and K.K. are medical doctors. She is a pathologist and he is an anesthesiologist with a pain management practice. They married in 2001 and had twins in 2007. Both provided hours of testimony and witnesses during the various proceedings. For example, their nanny testified that K.K. “would get angry with how Wife handled their small children” and would “use the F-word…” Among a barrage of other complaints and cross-complaints, acquaintances told the court that K.K. would complain that S.B. was “lazy” and “crazy.”

Dato reported that during one difficult period between 2019 and 2021, S.B. said she had between three and five glasses of wine each day and took Xanax, resulting in what K.K. called her “Jekyll and Hyde” behavior. Each party admitted to starting arguments. The opinion then provided details of several “incidents” that occurred between 2021 and 2022 that led S.B. to ask for a DVRO. The first disputed altercation included screaming, banging on the door, a physical struggle over their dog, and multiple fights in front of the children. S.B. claimed K.K. had punched her in the face, but he denied it.

The second incident resulted in S.B. calling the police to report “alleged” physical violence, which she tried to confirm with a photograph of her bruised face. The police officer’s report included the comment that she “appeared to have been drinking a little bit.” He told her she could seek a restraining order, but she said she did not wish to do so.

The next series of arguments took place between 2021 and 2022 while S.B., still living in the guest house instead of the luxury home, was supposedly looking for a new place to live. During this time, Wife accessed Husband’s computer and copied many of his text messages, and she moved into the property’s cabana while the rest of the family was in New York. One night, K.K. locked S.B. out of the main house.

In January, S.B. filed for a DVRO based on her charges of stalking and harassment. The restraining order was granted and both twins quickly moved in with their father. The “multi-day” hearing on the DVRO was held in August 2022. At its conclusion, Judge Kalemkiarian said, “Credibility is an issue in this case.” She concluded that despite the pain and misery, it was many things, but it was not domestic violence.

With the facts established, Dato began his 50-page opinion by providing a California precedent that defined protective orders. He said that courts are authorized to provide these orders “to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved” upon “reasonable proof of a past act or acts of abuse.” A preponderance of evidence by the person seeking the DVRO is required.

In response, S.B. claimed, as she did in the trial court, that she was a victim of abuse. She spoke of a mark K.K. left on her face, but Kalemkiarian was not able to conclude K.K. caused the injury or even if a “physical altercation had occurred.” And even if it had, the trial judge said, any mark was caused by S.B.’s aggression. The appellate court then said it was not their role to “reweigh the evidence and reach a different conclusion.” Dato also found that S.B. had no “reasonable apprehension” of future violence.

Dato then agreed that testimony by Dr. Lori Love, an expert in domestic violence, was not credible because Love had provided a “restricted view of the communications between the parties.“ Another key argument by S.B. was discredited by the trial court with which the Fourth District panel agreed.

S.B. claimed that the trial court erred when it should have acknowledged that “the mere fact that she moved into the guesthouse is “objective evidence that , disturbing her peace, unreasonably isolating her, controlling her movements, daily behavior and access to the home, and compelling her by intimidation to abstain from using the home as was her legal right.”

The appellate court disagreed and found that S.B. had voluntarily moved into the much smaller guest house dwelling. There was also no testimony that K.K. had “forced her out of the house.”

The appellate opinion also sanctioned the trial court’s consideration of “relevant aspects” of S.B.’s behavior. There were multiple reports of her aggression and her alcohol and drug consumption. In addition, Dato agreed that S.B. had done some things to “provoke” others, nor was there a problem in her waiting to file for a DVRO after the police officer told her that she could do so. S.B. claimed that the problems she was having with her children, which resulted in their preference to move in with their father, were the result of his efforts to “turn the kids against her.” The appellate court again disagreed.

There will be no DVRO, and this case, which could easily be the basis of a soap opera, is over. At least for now.