California Domestic Violence Restraining Order Requests Must be handled very Carefully, Especially when Dueling Restraining Orders are Involved

In the most recent appellate case in California involving domestic violence, it seems the trial court got it all wrong.  In the case of R.M. vs. A.G., the boyfriend (R.M.) sought a domestic violence restraining order against his former girlfriend (A.G.), and A.G. sought a restraining order against R.M.  The judge granted R.M.’s restraining order application but denied A.G.’s.  But in a 3-0 decision, the Court of Appeal reversed both decisions and sent the dueling requests back to the trial judge for a do over.

In R.M.’s petition, R.M. stated that in August 2023, A.G. scratched his face and neck when she yelled at him.  “The petition also provided evidence of repeated and unwanted contact from A.G. following their break-up in December 2023, including that A.G. went to his mother’s home ‘many times’” and attempted to contact him repeatedly through email and social media” .  According to R.M., A.G. falsely accused him of rape .  The application included hundreds of pages of screen shots of text of social media direct messages and missed telephone calls from A.G. to R.M.  A.G. responded that her messages to R.M. after December 2023 were “incessant”, “sometimes hostile” and “wrong”.  But she said she stopped her contacts a month before R.M. filed his request for a restraining order.

In A.G.’s paperwork, A.G. stated that on February 25, 2023, R.M. forced her to kneel on the ground, hit her on her head, screamed at her, pushed his thumbs into her eyes, pulled her hair, choked her by putting his hand and fingers into her mouth, and coerced her into having sex with him.  A.G. also wrote of similar abuse on August 31, 2023.  As summarized by the Court of Appeal, “[o]n other occasions R.M. called A.G. degrading names, spit and urinated on her, restrained or trapped her while he screamed at her, and broke into her home”.  On December 17, 2023, according to the application, “R.G. came to her home, broke in, threw her to the floor and against furniture, screamed at her while he pinned her down, tore her clothing smashed her smartphone against the wall, and strangled her”.

The application also contained three, third party declarations.

According to the application, on social media, R.M. changed his username to phrases directed at A.G., including “A[.] G [.] ispsycho”, “keterminewhore[e}. “pleasekillurself” and “[A.G.’s male friend’s name] nevermadeucum”.  On another occasion, according to the petition, “R.M. changed his Instagram username to be the same as the name of A.G.’s online business but ending with ‘.con” instead of “’.com”.

A hearing on the dueling restraining order requests was held on September 20, 2024.  R.M. had an attorney; A.G. did not.

It appears that the boyfriend, R.M., went first.  He said the last time A.G. tried to contact him was March 29, 2024, via direct messaging on social media.  Apparently, R.M. sent a cease-and-desist letter to A.G. on January 30, 2024.  R.M. testified “she was incessantly reaching out at me . . . and she would make numerous [online] accounts, saying she was going to threaten me; she was going to spread false allegations to people I knew personally”.  R.M. testified that he told A.G. he wanted nothing to do with her and even blocked her, changed phone numbers, changed his social medica accounts and changed emails – but none of this worked.  He testified that between December 18, 2023, and March 2024, A.G. sent him over one thousand text messages or other communications and it was not until he sought a restraining order that she stopped the contacts.

In the appeal, A.G. took issue with the judge’s finding that though the parties had a bad relationship, the relationship ended in 2023.  The judge said since then R.M. “made no attempts to contact her, although she’s made –and she even agrees—a thousand attempts to contact him, along with going over to his mother’s”.  A.G.’s argument on appeal was that the judge was wrong in not considering R.M.’s indirect contact with her in 2024 and not considering evidence of abuse that occurred during the parties’ relationship.  The justices agreed, noting that California’s Domestic Violence Protection Act (DVPA) requires a showing of past abuse but not “a likelihood of future abuse”.  At the trial level, however, when A.G. began her testimony by saying that she wanted to start in December 2023, the judge cut her off and said, “I’m only interested in what’s going on recently, and whether I need to restrain you from him, or him from you, or both”.  Based on prior testimony by R.M., the judge asked A.G. if she had tried to contact R.M. a thousand times.  A.G. said she had and explained one incident in February 2024.  She explained that when “R.M. posted photographs of his scratched face on Instagram in February 2024, it triggered her.  She also explained that R.M. called her mother a week later and told her mother that A.G. had been a stripper”.  A.G. further testified that she filed a request for a DVRO against R.M. because he changed his Instagram profile to impersonate her business.

The judge justified his ruling by saying there was not sufficient evidence to issue a restraining order against the boyfriend.  The judge stated, “[A.G.] described a bad relationship they had, but it was back in late 2023 when it ended.  He’s made no attempts to contact her, although she’s made—and she even agrees–a thousand attempts to contact him, along with going over to his mother’s”.  At the same time, the judge granted the boyfriend’s request, stating “I don’t think that [A.G.] will stop trying to contact him in the different ways she [has]”.

The Court of Appeal said that the trial judge applied the DVPA too narrowly by failing to consider actions, pursuant to Family Code section 6320,  “committed directly or indirectly, including through the use of a third party, and by any method or through any means that include electronic technologies” .  Citing a prior decision, the justices added, “[t]he relevant inquiry is simply whether the person against whom the DVRO is sought engaged in ‘conduct that, based on the totality of the circumstances, destroy[ed] the mental or emotional calm of the other party’”.  The appeal court stated that the judge’s statements about R.M. making no attempt to contact A.G. “are true only if the court excluded indirect contact from its consideration”.  In addition, “[h]ad the court considered A.G.’s evidence of indirect contact from R.M. as relevant, it may well have concluded that his indirect conduct should have been enjoined under the DVPA.  A.G. provided substantial evidence that during roughly the same period she was attempting to contact R.M., R.M. was indirectly communicating with her in ways that disturbed her peace”.

With the order reversing the denial of A.G.’s restraining order request came the order reversing the granting of R.M.’s restraining order request.  As the justices explained, “[t]his additional reversal is necessary because the DVPA requires a court considering mutual restraining order requests to evaluate the totality of the relevant conduct between both parties before issuing any restraining order.  That evaluation cannot occur here unless the court rehears both requests and not just A.G.’s”.  Specifically, Family Code section 6305 states that a court “shall not issue a mutual order enjoining the parties from specific acts of abuse . . . unless . . . the court makes detailed findings of fact indicating that both parties acted as a primary aggressor and that neither party acted primarily in self-defense”.  Under California law, “the dominant aggressor is the person determined to be the most significant, rather than the first aggressor”.  This requires consideration of the intent of the law to protect victims of domestic violence from continuing abuse; the threats creating fear of physical injury; the history of domestic violence between the persons involved; and whether either person involved acted in self-defense.

The A.G. court noted that determination of who was a primary aggressor requires that the acts of the parties be weighed against each other.  “As a result, in deciding whether mutual restraining orders should issue, the trial court must consider the parties’ respective alleged acts of domestic violence in concert and not separately”.  As a result, the restraining order in R.M.’s favor had to be vacated, “(even though when viewed in isolation, substantial evidence supports it)”.  The trial judge was directed in the new evidentiary hearing not to consider just what happened after the parties’ relationship ended in late 2023.  Instead, he was told to consider the totality of the circumstances “and not just conduct in the most recent few months after the parties separated”.

This case shows that the greater prevalence of digital media has provided courts with more things or facts to think about when considering domestic violence restraining orders.  Quite frankly, it also shows that at least in some cases, the lower court does not get it.  The allegations of forced sex and other physical actions, if true, are, by themselves, enough to warrant a restraining order.  And one has to wonder if the outcome would have been different at the trial level if A.G., who did have an attorney at the appellate level, was represented by a lawyer.  On the other hand, A.G. was helped by the fact that at the trial level, there was a court reporter typing down everything that everyone said, allowing for meaningful appellate review.  So, A.G. is the winner now, even though she only filed her restraining order application after R.M. filed his.

This case does not break new ground, although the facts in every domestic violence case are unique.  (The matter would have been even more complicated if the parties were married or had children due to other statutes that I will not address here.)  But as I always say in these blogs, once a case is certified for publication –and this one was—the holding is binding on all state courts in California.