Because domestic violence can take many forms, California’s courts are often called upon to clarify the definitions and parameters of “abuse” within the meaning of the State’s Domestic Violence Prevention Act (DVPA). A new ruling by a State Court of Appeal adds one additional factor: Repeated false reports to the police that charge the custodial party with abuse could constitute sufficient harassment to trigger a restraining order.

Natalie F. (Mother) and Jan F. (Father) are the parents of a six-year-old girl and a three-year-old boy. After their separation and numerous court hearings, Mother was awarded custody of both children. Father was not happy and, according to Natalie F., he began making false reports about her to the Santa Monica Police Department (SMPD) and asked them to make “welfare checks” on his son and daughter. He made six such requests in 2021. Father also allegedly sent Natalie F. over 130 “harassing” email messages. She asked the court for a restraining order based on the DVPA.

A footnote explains that all parties are referred to by abbreviations in order to protect the personal privacy of parties in proceedings based on California’s Family Code.

In relevant part, the DVPA’s §6203 of the California Family Code defines “abuse” as something that “intentionally or recklessly cause(s) or attempt(s) to cause bodily injury.” It includes sexual assault, or placing a person in “reasonable apprehension of imminent bodily injury.” It also states that “abuse is not limited to the actual infliction of physical injury or assault.”

Using this definition, Los Angeles Superior Court Judge Elizabeth Scully denied Mother’s request for a restraining order because Father’s conduct “did not constitute abuse under the DVPA.” She told Mother that she understood that Father’s alleged activities were “annoying” and may have “other consequences that may be disadvantageous, but they’re not domestic violence.”

Scully ruled that Jan F.’s conduct and reports to the police about “litigation matters” were not abuse under the language of the DVPA and were protected by the First Amendment’s guarantees of freedom of speech. Mother appealed, and in an opinion certified for publication on October 18, a unanimous three-justice panel of Division One of California’s Second District Court of Appeal disagreed with the trial court, reversed Scully’s ruling, and remanded the case back to the lower court for an evidentiary hearing. The opinion was originally filed on September 20.

Justice Gregory Weingard, who authored the opinion, ruled that the mother’s report, “if fully credited” in the new evidentiary hearing would be “sufficient to demonstrate domestic abuse under the DVPA” and would thus warrant a restraining order. At trial, Scully had initially ruled that Father did not need to provide relevant evidence because she had already ruled in his favor when she determined that his conduct was not domestic violence under the law. Now, both parties will have an opportunity to produce such evidence.

The opinion provides lengthy descriptions of court battles over custody and visitation rights that went on between Mother and Father since 2020. These included an order that all visits between Jan F. and his children had to be supervised because of allegations he might abduct the children. There were also disputes about Mother’s right to out-of-state travel, her right to move out of state, required co-parenting counseling, Father’s right to weekly calls with his son and daughter, and what should happen if he failed to telephone them at the court-ordered time.

After Mother’s first request for a restraining order was denied, her appeal was heard by Judge Joshua D. Wayser who agreed with Scully in 2022.

Weingard’s opinion begins with the explanation that the trial court’s ruling on whether restraining orders can be denied under the DVPA is to be based on findings of abuse of discretion, where the party seeking the injunction has the burden of proving the order is justified. Because the trial court did not require Father to provide any evidence, the appellate court incorrectly ruled that Mother “did not carry her burden to demonstrate abuse by a preponderance of the evidence.”

Weingard said, “Because the court did not hear from Father, the record discloses no evidence that would suggest Father had a legitimate reason to contact SMPD to request a welfare check in at least four instances…Nor did the family court actually find Father had legitimate reasons for calling the police.” He noted that “there are consequences, including possible criminal consequences of involving police departments or law enforcement when there isn’t a legitimate reason to do that…” He also wrote that the numerous calls were “opportunities to harass Mother by making baseless claims to SMPD” and concluded that Mother “demonstrated abuse within the meaning of DVPA.”

Although clearly siding with Mother about her right to an injunction for abuse, the opinion failed to grant immediate relief. Rather, the appeals court remanded the case to give both parties an opportunity to provide evidence and to counter evidence put forth by the other party. He concluded that “the proper remedy is to remand for an evidentiary hearing” that would determine whether either party could persuade the court about whether abuse was properly demonstrated under the DVPA.