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Evidence of Mental Abuse May be the Basis for an Order for Protection Under the Domestic Violence Prevention Act

Beverly Ann Rodriguez and Randy 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. In November 2013, Rodriguez sought psychological help, and eventually ended her relationship with Menjivar in December 2013. In January 2014, Rodriguez discovered she was pregnant, and she resumed the relationship. Menjivar proceeded to exhibit controlling behavior, as he made Rodriguez keep a telephone call open during her college classes so that he could monitor whether she was socializing with others. He also made her keep a telephone line open when she was at home so that he could monitor her activities. Rodriguez told her mother that she believed Menjivar would hit her if she did not comply. After Rodriguez was diagnosed with a subchorionic hemorrhage and a cyst, and advised to limit strenuous activity and stress, Menjivar played with a knife close to Rodriguez’s face, threatened to beat her with a studded belt, and practiced martial arts in front of her. During her pregnancy, Menjivar pulled her hair, kicked her, and punched her. He even pushed her head into a seat belt holder. 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 drove erratically and threatened to crash the car. At the hospital, Rodriguez told the hospital staff, who called the police. After her hospitalization, Rodriguez again stopped seeing Menjivar, but he continued his actions by threatening her over social media. In July, she sought counseling, and after she thought she saw Menjivar in her vicinity, Rodriguez’s family law attorney filed for a restraining order. At the hearing, she testified that she feared Menjivar might hurt her, or her child, in the future. The family law court granted a Domestic Violence Prevention Act temporary restraining order in July 2014. The family law court began the hearing on the permanent order on September 2014, after Rodriguez gave birth to her son. However, the family law court ultimately denied Rodriguez’s family law lawyer’s request, and dissolved the temporary order. Rodriguez’s family law attorney then filed a notice of appeal.

The Domestic Violence Prevention Act (“Domestic Violence Prevention Act”) permits the family law court to issue a protective order to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved. The petitioner’s family law attorney must present “reasonable proof of a past act or acts of abuse.” “Abuse” includes bodily injury, reasonable apprehension of serious bodily injury, and “behavior that has been or could be enjoined” pursuant to Family Code section 6320,” which permits enjoining, “molesting, attacking, striking, stalking, threatening, sexually assaulting, battering…, harassing, telephoning,…contacting, either directly or indirectly, by mail or otherwise…disturbing the peace of the other party.” “Abuse” under the Domestic Violence Prevention Act includes physical abuse or injury, as well as acts that “destroy the mental or emotional calm of the other party.”

On appeal, Rodriguez’s family law attorney asserted that the court erred in two ways. First, the family law court ruled that the evidence of mental abuse and controlling behavior testified to by Rodriguez and her mother were not relevant. Second, the 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. The Court of Appeal ultimately concluded that the family law court erred on both grounds. First, the Court of Appeal recognized that mental abuse is relevant evidence in a Domestic Violence Prevention Act proceeding. Acts of isolation, control, and threats were sufficient to demonstrate the destruction of Rodriguez’s mental and emotional “peace.” Thus, the family law court erred in failing to consider this testimony as the basis for a Domestic Violence Prevention Act order, as the evidence demonstrated “abuse” within the meaning of section 6320. Second, Court of Appeal noted that the past acts of abuse were not remote, as Menjivar remained in geographical proximity to Rodriguez. In addition, the Court of Appeal determined that the family law court’s reasoning rested on an error of law. A showing of the probability of future abuse is not required to issue a Domestic Violence Prevention Act restraining order. The fact that there had been a six-month hiatus in violence did not support the family law court’s erroneous imposition of a requirement of a showing of likelihood of future abuse, as the Domestic Violence Prevention Act expressly allows renewal of a protective order without a showing of any further abuse beyond that on which the original order was based. In consideration of this, the Court of Appeal agreed with Rodriguez’s family law attorney and reversed the family law court’s order and remanded the case back to the family law court.

Rodriguez v. Menjivar (2015) 243 Cal. App. 4th 816