Coercive and controlling behavior are domestic violence under California’s restraining order laws and the totality of the circumstances needs to be considered when determining whether to issue a restraining order:
Note: although these cases have been published, they are subject to change if a later case decides that the former case or cases are either no longer good law, or that they are subject to dispute in a different way; thus, most attorneys update the cases cited for any changes (usually called Shepardizing, because the updates would be published by Shepards; Westlaw uses Key Cite. Shepard's was purchased in late 1990's and in 1998 LexisNexis obtained full ownership. see https://en.wikipedia.org/wiki/Shepard%27s_Citations#:~:text=The%20verb%20Shepardizing%20refers%20to,or%20cited%20by%20later%20cases.
McCord v. Smith (2020) ___ Cal.App.5th ____. In this case, Ms. Smith proved that Mr. McCord had disturbed her peace, which is one definition of abuse in California’s restraining order laws, by repeatedly visiting her uninvited, texting her, emailing her, and sending her harassing and threatening photos. The trial court issued a restraining order protecting Ms.Smith and Mr. McCord appealed. The Court of Appeal upheld the restraining order explaining that courts should consider the totality of the circumstances when deciding whether to issue a restraining order. In this case seemingly isolated events — like texting a picture of Ms. McCord’s professional license — were part of an overall series of actions that were used as a means of exercising control and dominion over Ms. Smith which threatened her peace of mind and sufficiently justified a restraining order. (FVAP obtained publication.)
When a court should order an abuser to move out of the home as part of a restraining order:
Nicole G. v. Braithwaite (2020) 49 Cal.App.5th 990. In this decision, a survivor of domestic violence requested that her abuser move out of the home as part of her domestic violence restraining order, but her abuser claimed that because the survivor had already moved out of their shared residence, he should not have to move out. The Court used the abuser’s past acts of abuse and stalking to determine that further harm would have come to the survivor if a move-out order was not made, and a survivor should not have to permanently vacate their residence because they previously moved in order to flee abuse. (FVAP obtained publication.)
Definition of “good cause” for adding family or household members to a restraining order:
Tanguilig v. Valdez, (2019) 36 Cal.App.5th 514. In this case, the appellant argued that it was inappropriate that the restraining order against him also protected additional family and household members of the person who asked for the restraining order. The Court of Appeal held that there was “good cause” to include the additional members on the restraining order because the repeated abuse occurred outside of the home. The Court of Appeal also defined “good cause” for adding family or household members to a protective order stating “As a general rule, “good cause” includes reasons that are fair, honest, in good faith, not trivial, arbitrary, capricious, or pretextual, and reasonably related to legitimate needs, goals, and purposes.” (FVAP obtained publication.)
Temporary Restraining Order Violations:
N.T. v. H.T. (2019) 34 Cal.App.5th 595. In this case, the Court of Appeal overturned the trial court’s denial of the domestic violence restraining order request. In doing so, the Court of Appeal ruled that a violation of a temporary restraining order constitutes abuse under Family Code section 6203(a)(4). The Court of Appeal also held that the conduct underlying the violations constituted abuse under Family Code section 6320. (FVAP represented the survivor and obtained publication.) Pro bono co-counsel: Jones Day, UCI Domestic Violence Law Clinic
