Parties Who Do Not Regularly Reside in the Same Household Cannot be Considered “Cohabitants” Within the Meaning of the Domestic Violence Prevention Act

Kerri O’Kane and Mark Irvine individually sublet units from lessee Kristie Schimmelman. O’Kane, Irvine, and Schimmelman had access to some of the same common areas in the house. Prior to their individual sublease agreements with Schimmelman, O’Kane and Irvine were not acquainted with each other, and no romantic or friendly relationship ever ensued between the parties. After the parties had been residing together for a few weeks, an altercation occurred between Irvine and O’Kane. In her Orange County family law attorney’s application to the Superior Court for a temporary restraining order (“TRO”) under the Domestic Violence Prevention Act, O’Kane claimed Irvine assaulted her. Section 3(a) of the TRO application sets various descriptions of the domestic setting under which a person may be granted relief under the Domestic Violence Prevention Act (“DVPA”). Section 3(a)(4) provides the description that the applicant and the person to be restrained “live together or cohabit.” O’Kane’s Orange County family law lawyer marked on her application that she and Irvine “lived together” in the same house. Irvine opposed the TRO, denying the assault allegation. The family law court granted the TRO. Irvine’s motion for a new trial and motion to set aside and vacate the judgment were denied by the Orange County Superior Court. Irvine appealed to the Court of Appeal, challenging both the Domestic Violence Prevention Act TRO and the restraining order.

California Family Code section 6211 states that domestic violence is abuse perpetrated against various classifications of persons, including a “cohabitant or former cohabitant.” California Family Code section 6209 defines “cohabitant” as “a person who regularly resides in the household.” California Family Code section 6220 explains that the “purposes of this division are to prevent the recurrence of acts of violence and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence.” Irvine’s Orange County family law lawyer submitted to Court of Appeal that the facts do not show that O’Kane was a “person who regularly resides in the household.” He contended that the Legislature did not intend to include their type of living arrangement in its definition of “cohabitants” when considering principles of statutory construction, such as the ordinary meaning of unambiguous statutory language. The Legislature’s prescribed definition for the term “cohabitant” in section 6209 included the word “household,” which has been ordinarily interpreted as meaning “a collection of persons, whether related or not, who live together as a group or unit of permanent or domestic character, with one head, under one roof or within a common curtilage, who direct their attention toward a common goal consisting of their mutual interests.”

The Court of Appeal disagreed with O’Kane’s Orange County divorce lawyer and reasoned that the parties could not be considered “cohabitants” within the meaning of sections 6209 and 6211, as they did not regularly reside in the same “household.” Furthermore, the statutory definition of “cohabitant” as someone who “regularly resides” in the “household” implies that the Legislature intended the Domestic Violence Prevention Act to protect abuse victims who had some permanency in their living arrangements. In this Orange County case, O’Kane and Irvine did not have a permanent living arrangement. Their connection was wholly by happenstance, as they were never acquainted with each other beforehand. Thus, because there was nothing in the Domestic Violence Prevention Act to indicate a legislative intent to cover the type of residential arrangement between Irvine and O’Kane, the Court of Appeal agreed with Irvine’s Orange County divorce lawyer and held that the family law court acted without jurisdiction in granting the restraining order. Therefore, the family law court order granted the restraining order was reversed by the Court of Appeal in Orange County.

O’Kane v. Irvine (1996) 47 Cal. App. 4th 207