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Evidence Showing that a Party Intentionally or Recklessly Caused, or Attempted to Cause, Serious Bodily Injury, or Reasonable Apprehension of Imminent Serious Bodily Injury, Constitutes Abuse Under the Domestic Violence Prevention Act

Yuka Nakamura filed for dissolution of her marriage from John Marshall Parker. Assisted by her divorce lawyer, she filed an ex parte request and requested temporary restraining order (“TRO”). In her attached declaration, Nakamura described a claim of recent harassment and stalking by Parker. She also related several instances of physical abuse. The divorce court ultimately denied her request, providing no explanation other than that the facts alleged in her application did “not provide a legal basis to issue the order requested.” Nakamura’s divorce lawyer then appealed the divorce court’s order denying her application for a TRO under the Domestic Violence Prevention Act (“Domestic Violence Prevention Act”).

The Domestic Violence Prevention Act defines domestic violence as “abuse” perpetrated against enumerated individuals, including a former spouse or cohabitant. Its purpose is to prevent the recurrence of acts of such abuse and to provide for a separation of those involved in order to resolve its underlying causes. To this end, the Domestic Violence Prevention Act provides for the issuance of restraining or “protective” orders, either ex parte or after hearing, that enjoin specific acts of abuse. The Domestic Violence Prevention Act defines “abuse” as either: an intentional or reckless act that causes or attempts to cause bodily injury; an act of sexual assault; an act that places a person in reasonable apprehension of imminent serious bodily injury to himself or herself or to another; and an act that involves any behavior that has been or may be enjoined under Family Code section 6320. The behavior that may be enjoined under Family Code section 6320 includes “molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, [and making] annoying telephone calls.” A divorce court may also enjoin “disturbing the peace of [another] party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.” A divorce court is vested with discretion to issue a protective order under the Domestic Violence Prevention Act simply on the basis of an affidavit showing past abuse. Specifically, it “may” issue an order “with or without notice, to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit…shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” The foregoing provisions of the Domestic Violence Prevention Act confer a discretion designed to be exercised liberally by the divorce court.

On appeal, Nakamura’s divorce lawyer argued that the denial of her application for a TRO, summarily and without a hearing, constituted an abuse of discretion. The Court of Appeal recognized that judicial discretion given to the divorce court to grant or deny an application for a protective order is not unfettered. The scope of this discretion always resides in the particular law being applied by the divorce court. The Court of Appeal reasoned that, because Nakamura’s divorce lawyer’s application was not jurisdictionally defective, it could have been summarily denied only if the facts she alleged failed to constitute “abuse” under the Domestic Violence Prevention Act. The Court of Appeal determined that Nakamura’s divorce attorney provided numerous specific and admissible facts based on personal knowledge showing past acts and more recent and recurring acts showing that Parker intentionally or recklessly caused or attempted to cause her bodily injury and placed her in reasonable apprehension of imminent serious bodily injury under Family Code section 6203, in ways that may be described as “striking,” “stalking,” “threatening,” “sexually assaulting,” “harassing,” “annoying telephone calls,” and “destroying personal property” under Family Code section 6320. Collectively, this demonstrated a substantial risk that “great or irreparable injury” would result to her before the matter could be heard on notice.

Based on the foregoing, the Court of Appeal held that the facial adequacy of Nakamura’s factual allegations showed that she was “abused” within the meaning of the Domestic Violence Prevention Act. The Court of Appeal agreed with Nakamura’s divorce attorney and stated that because the peremptory denial of relief without a hearing exceeded the discretion vested in the divorce court by the Domestic Violence Prevention Act, the divorce court’s ruling was an abuse of discretion.

Nakamura v. Parker (2007) 156 Cal. App. 4th 327