Reasonable Proof of a Past Act or Acts of Abuse Warrants a Restraining Order Under the Domestic Violence Prevention Act

Luis M. Ovalle Fregoso and Adriana Hernandez were married for five years and had one child together. On October 16, 2015 Fregoso’s divorce lawyer filed for divorce. He also sought an order seeking legal and physical child custody of their child. In his declaration, Fregoso stated that Hernandez was an aggressive person who hit him in the past and who recently attempted to throw boiling water on him while he was holding their daughter. Four days later, Hernandez’s divorce attorney filed a request for a domestic violence restraining order against Fregoso. In her declaration, Hernandez claimed that Fregoso grabbed her, pushed her, and held her against a mattress until she could not breathe. She also stated that he hit their daughter with a belt almost ten times. She asserted that she was afraid for her and her daughter’s safety. The divorce court issued a temporary restraining order (“TRO”) against Fregoso under the Domestic Violence Prevention Act, and set the matter for a hearing.

Before the hearing, Fregoso’s divorce lawyer filed a response in which he denied threatening or hitting Hernandez, and denied abusing their daughter. Fregoso claimed that Hernandez abused him, and in one instance threw a wooden box at him. During the hearing, Hernandez testified that Fregoso grabbed her and pulled her against his chest so hard that she was unable to breathe. After Hernandez fled for safety to her daughter’s bedroom, Fregoso followed and pushed her onto her daughter’s bed with such force that the bed collapsed. Furthermore, Hernandez testified that Fregoso started to press her head against the bed until she could not breathe. Hernandez denied throwing a wooden box or boiling water at Fregoso. On cross-examination by Fregoso’s divorce lawyer, Hernandez explained that she did not call the police because she was afraid of Fregoso. She conceded to having sex with Fregoso after the divorce court had issued the TRO. She explained that there was a pattern of behavior where Fregoso would be violent, seek forgiveness, bring gifts, and then they would have sex. Fregoso contradicted and denied almost all of Hernandez’s assertions about domestic violence. Fregoso claimed that after the divorce court issued the TRO, Hernandez sent him text messages asking for sex. Fregoso believed Hernandez was seeking a restraining order out of spite, to retaliate against him for seeking a dissolution of their marriage, and to prevent him from receiving child custody of their child. After the hearing, the divorce court granted the restraining order.

The Domestic Violence Prevention Act (“DVPA”) provides for the issuance of restraining orders that enjoin specific acts of abuse. “Abuse” is statutorily defined “to intentionally or recklessly cause or attempt to cause bodily injury” and “to place a person in reasonable apprehension of imminent serious bodily injury to that person or another.” The DVPA permits a divorce court, upon a showing of “reasonable proof of a past act or acts of abuse,” to issue a protective order restraining any person from contact, for the purpose of preventing a recurrence of domestic violence. In reviewing whether the divorce court abused its discretion in granting the restraining order, the Court of Appeal must determine whether substantial evidence supports the divorce court’s finding.

On appeal, Fregoso’s divorce lawyer contended that the divorce court abused its discretion because the evidence showed that Hernandez was not afraid of Fregoso. He noted that she filed for the restraining order after he filed for dissolution of the marriage, showing bad faith. Furthermore, his divorce attorney emphasized that there were no police reports of the alleged domestic violence. He also asserted that the sex he and Hernandez had after the TRO was issued was consensual, which proved that Hernandez did not fear Fregoso or need protection from him.

The Court of Appeal found that Fregoso’s divorce lawyer’s argument was unavailing because it was inconsistent with the standard of review. Even though Fregoso’s divorce lawyer’s assertions were supported by the record, and his inferences from the facts were not unreasonable, the divorce court put more weight in other, contrary evidence, and drew on other reasonable inferences, contrary to the ones Fregoso advocates. The Court of Appeal found that Hernandez’s testimony satisfied the burden of proof. Under the substantial evidence standard, the issue is not whether there is evidence to support a different finding, but whether there is “some” evidence that, if believed, would support the finding of the trier or fact. The Court of Appeal noted that the testimony of one witness, even that of a party, may constitute substantial evidence. Hernandez’s testimony proved that there was substantial evidence to support the divorce court’s finding that there was “reasonable proof of a past act or acts of abuse” warranting the domestic violence restraining order. Thus, the Court of Appeal agreed with Hernandez’s divorce lawyer and ruled that the divorce court did not abuse its discretion, and the order granting the restraining order was affirmed.

In re Marriage of Fregoso and Hernandez (2016) 5 Cal. App. 5th 698