The Issuance of a Mutual Restraining Order Under the Domestic Violence Prevention Act Requires that a Party Acted Primarily as an Aggressor, and Not in Self-Defense

In September 2011, J.J. first applied for a domestic violence restraining order against M.F. J.J. sought protection for herself and the parties’ son. In support of her application, J.J. asserted that she and M.F. started dating in December 2007, and began cohabiting in April 2009. J.J. claimed M.F. would often push and choke J.J. In June 2010, she moved out of their home after he slapped and kicked her and threw here against a glass door. In August 2011, M.F. began sending threatening text messages to J.J. In September 2011, M.F. repeatedly came to J.J.’s apartment and demanded that she hand over their son. About two days after she filed the restraining order application, J.J. and her son moved to a confidential location. The family law court entered a temporary restraining order. A three-year restraining order was ultimately granted.

In January 2012, M.F. filed a motion to set aside the restraining order. In September 2012, J.J. applied ex parte to vacate the order setting aside the restraining order. The family court did not grant J.J. ex parte relief but set the matter for hearing in October 2012. In the meantime, J.J. filed a second ex parte application for a restraining order, with notice to M.F., because of a recent incident that occurred on October 7, 2012. According to J.J., M.F. forgot to bring their son’s jacket when he dropped off their son. This led to an incident in which M.F. allegedly attempted to take their son from her arms. M.F. then grabbed J.J. by the neck while his wife got out of their car and started punching her in the face. M.F. continued choking J.J. until J.J.’s grandparents and neighbors intervened and called the police. 

In November 2012, M.F. filed a response to J.J. application, stating his own theory of the incident. In his supporting declaration, he explained that J.J. called him and his mother and was “cursing and yelling” at them about the jacket, so he finally decided to take it to J.J. that night. M.F. denied having any physical contact with J.J., and claimed that J.J. attacked his wife. He stated that he only served as a physical barrier between the two women at one or two points. M.F. asserted that when he tried to give his son a kiss goodbye, J.J. yelled at him and snatched their son away from him. J.J. then went to his car and attacked his wife. J.J.’s grandparents had to pull her away from his wife. M.F.’s wife also filed a declaration stating J.J. had attacked her on October 7. M.F.’s response to the application for a Domestic Violence Prevention Act restraining order did not request a restraining order against J.J.

The family law court characterized the October incident as “mutual combat” or a “mutual altercation,” and thereafter entered a mutual restraining order against the parties. J.J. then filed a timely notice of appeal. On appeal, J.J. contended that the family law court erred in issuing a Domestic Violence Prevention Act restraining order against her as part of the mutual restraining order. She argued that the family law court abused its discretion because the statutory requirements for the issuance of a mutual restraining order were not met. The Court of Appeal found that the substantial evidence did not support the issuance of the restraining order against J.J. Under the Domestic Violence Prevention Act, a family law court may issue an 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, if an affidavit or, if necessary, an affidavit and any additional information … shows…reasonable proof of a past act or acts of abuse.” California law “regulates the issuance of mutual restraining orders under the Domestic Violence Prevention Act by subjecting them to additional procedural requirements. Family Code section 6305 provides that a “court may not issue a mutual order enjoining the parties from specific acts of abuse described in Section 6320(a) unless both parties personally appear and each party presents written evidence of abuse or domestic violence and (b) the court makes detailed findings of fact indicating that both parties acted primarily as aggressors and that neither party acted primarily in self-defense.”

The Court of Appeal determined that, given the dispute, M.F,’s history of physical abuse, and his threats to harm her, J.J. reasonably believed he might do her harm when he came at her and yelled at her to hand over their son. The force she used to push him away was not excessive, as neither he nor she said he was harmed. Substantial evidence did not support a finding that J.J. acted primarily as an aggressor and not in self-defense when she pushed M.F. Nor did J.J.’s phone calls about the jacket support a finding that she was acting primarily as an aggressor. These calls were not the type of conduct that may be enjoined under the Domestic Violence Prevention Act, since the evidence showed J.J. made the phone calls in good faith as a mother concerned about her child’s health. The Court of Appeal held that the statutory requisites for a mutual restraining order under the Domestic Violence Prevention Act, that J.J. acted primarily as an aggressor and not in self-defense, were not met. Thus, the Court of Appeal reversed the portion of the mutual restraining order granting an injunction against J.J.

J.J. v. M.F. (2014) 223 Cal. App. 4th 968