Conduct that “Destroys the Mental or Emotional Calm of the Other Party” Constitutes “Disturbing the Peace of the Other Party,” and is thus “Abuse,” Under the Domestic Violence Prevention Act

The marriage between Darshana Nadkarni (“Darshana”) and Dattaprasanna Nadkarni (“Dattaprasanna”) ended in May 2005. Since then, the parties have been involved in a child custody dispute regarding their two teenage children. In April 2007, Dattaprasanna accessed an email account used by Darshana and obtained copies of emails between his former wife and third persons, including her divorce attorney. According to Dattaprasanna, the parties used the email account to communicate about their children, and he accessed the account after discovering that Darshana had left the children alone while she traveled to India. Dattaprasanna’s divorce attorney attached copies of the emails to documents that he filed with the divorce court in their child custody matter. Darshana’s divorce attorney asserted that the email account belonged to her and that it was used for her personal and professional business. Her divorce lawyer applied for and received a temporary restraining order under the Domestic Violence Prevention Act (“DVPA”). Darshana sought to extend the restraining order, but her application was later dismissed by the divorce court.

On appeal, Darshana’s divorce attorney contended that the divorce court erred in dismissing her application for a restraining order on the ground that Dattaprasanna’s alleged conduct was insufficient to constitute “abuse” under the DVPA. Darshana’s divorce attorney asserted that the requisite “abuse” did not need to involve physical injury or assault, and that the DVPA must be broadly construed to authorize a restraining order where the application shows fear for the applicant’s safety, due to the applicant’s former spouse using information gained from accessing the applicant’s private email account, and in light of the former spouse’s previous physical violence.

To be facially sufficient under the DVPA, an application for a restraining order must allege “abuse” within the meaning of the DVPA. California Family Code section 6320 provides that the requisite “abuse” need not be actual infliction of physical injury or assault. Section 6320 broadly provides that “disturbing the peace of the other party” constitutes “abuse” for purposes of the DVPA. The plain meaning of this phrase may be properly understood as conduct that “destroys the mental or emotional calm of the other party.”

Accordingly, the Court of Appeal determined that the allegations in Darshana’s application and declaration were facially sufficient for a showing of “abuse” within the meaning of the DVPA. The Court of Appeal noted that the plain meaning of the phrase “disturbing the peace” may include a former husband’s alleged conduct in destroying the mental or emotional calm of his former wife by accessing, reading, and publicly disclosing her confidential emails. The Court of Appeal reasoned that Dattaprasanna’s conduct caused Darshana to suffer “shock” and “embarrassment,” to fear the destruction of her “business relationships,” and to fear for her safety, which allegedly caused the destruction of her mental or emotional calm and could, if found to be true, constitute “disturbing the peace of the other party.” Thus, the Court of Appeal agreed with the position of Darshana’s divorce attorney and reversed the divorce court’s order dismissing the application and remanded the matter for a hearing on the merits.

In re Marriage of Nadkarni (2009) 173 Cal. App. 4th 1483