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Fighting Wife Loses Request for Restraining Order


“She started it”! That’s something we might hear one sibling say about another one, but it’s also the argument that appears to have worked for a man in a California divorce case.

In the case of Marriage of G., the wife (“Valerie”) filed for divorce in San Diego and at the same time requested a domestic violence restraining order against her husband (“Louis”). Valerie had argued that Louis had inflicted physical injuries on her. In fact, the evidence was that Valerie had suffered many injuries over the year apparently because of Louis, including bruising to her arms, as well as a bruise of her thumb caused when Louis bit her. Valerie claimed that Louis “was the person who initiated the physical aggression” each time she was injured.

The events culminated in November, 2015. Around 1 a.m. in November 24, Louis was in the garage at his desk on the computer. Valerie approached and renewed an earlier argument and snatched his cell phone and walked away. When she got closer to her husband again, he grabbed the cell phone back. Valerie, in turn, tried to retake possession of the cell phone, which prompted Louis to hell her that he was hurting him, but she continued the struggle by grabbing at his arms, wrists, shoulders, and forearms.

Louis tried to get away and found himself standing against the hood of the car. When Louis pulled away, Valerie pulled and lost her grip and balance and fell on her tailbone and may have also hurt her head.

Louis retreated to the bedroom, but Valerie went in there and resumed the argument. Then, the next day, Louis started to pack his bags in anticipation that the marriage was over. Valerie was enraged by the sight of Louis packing, so she reached into Louis’ pocket and grabbed his cell phone. The parties continued fighting until Louis suffered a pinched nerve.

The trial court denied Valerie’s subsequent request for a domestic violence restraining order, ruling that Valerie’s own testimony showed her injuries were triggered by her own aggression. On appeal, Valerie argued that “as long as the evidence showed Louis either intentionally or recklessly caused the requisite bodily injury”, the court had to grant the restraining order.

But in a 3-0 ruling, Division One of the Fourth District Court of Appeal in San Diego affirmed the trial judge, saying that if Valerie was right, there would be no doctrine of self-defense available to Louis. But, the Court said, the California Legislature –in enacting the various provisions of the Domestic Violence Prevention Act– had made it clear “that reasonable self-defense is a defense to a claim of abuse”. Because the trial court rejected Valerie’s claim that Louis’ force was excessive, Valerie was not entitled to reversal on appeal.

Justice William Dato, who is the newest justice on the Court of Appeal’s San Diego branch, wrote the opinion and was joined by acting Presiding Justice Judith Haller and Justice Cynthia Aaron. Because the decision was certified for publication, it may be cited as precedent by parties, attorneys and judges throughout California.

By the way, had the restraining order been granted, it could have been authorized for up to five years.

The post Fighting Wife Loses Request for Restraining Order appeared first on Andy Cook Law.

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