“Friends with Benefits” & Restraining Orders

Just in time for Valentine’s Day, California’s Court of Appeal has issued a new opinion that addresses whether a “friends with benefits” relationship constitutes a “dating relationship” within the meaning of Family Code section 6210 for purposes of a domestic violence claim. The short answer: maybe.

In this case, the plaintiff (“GF”) appealed a ruling by the trial court that GF did not prove the elements to show her relationship with defendant (“BF”) established a “dating relationship” for purposes of a domestic violence claim. In other words, the trial court ruled that GF’s and BF’s “friends with benefits” situation was not consistent with the Family Code definition of “dating relationship” enumerated in section 6210, which is “frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations”.

Here, the “friends with benefits” timeline is as follows:

• GF and BF are introduced by a mutual friend at the university gym in spring 2015.
• GF and BF do not see each other again until early October 2015, where they do yoga together, kiss “a lot”, exchange numbers, and begin communicating via text and Snapchat.
• In late October 2015, GF and BF work out at the gym together and go back to BF’s home where they kiss and have oral sex. The parties do not continue to spend time with each other after oral sex. However, they continue to talk and text.
• In mid-November 2015, BF invites GF to his home where they watch TV, cuddle, kiss, and again engage in oral sex. The parties do not continue to spend time with each other after this episode of oral sex. However, these “friends with benefits” still continue to talk and text.
• At some point before February 2016, GF invites BF to her birthday party. However, BF declines to attend.
• Three months later in February 2016, GF and BF meet up and make out in a hot tub. The talking and texting continues.
• In March 2016, GF and BF meet at the gym to work out and similarly “a lot” of kissing ensues. Again, the talking and texting continues.
• Five months later in August 2016, GF goes with her mother to BF’s boxing match where GF meets BF’s mother and takes a picture with her. However, no kissing this time. Nor does GF hang out with BF afterward to celebrate his victory.
• Although GF is unable to attend BF’s future boxing matches, she does make him a special sign that says, “Flaunt it . . . Sting like a bee”.
• Over the next eleven months, GF tries to make plans with BF and even invites him to a Rihanna concert. BF declines all such invites. However, the talking and texting continues.
• Also, during this eleven-month time period, GF engages in sexual intercourse with another person she considers “just a friend”, but GF does not consider this to be cheating. However, she never tells BF about this.
• In July 2017, BF messages and invites GF to meet up after his boxing match. So, they meet up and go to GF’s mother’s apartment where they have sex in the complex’s private movie theater. They do not spend time together after sexual intercourse.
• Five days later, BF messages GF again wanting to meet up. GF understands this to include having sex because BF includes a winkie face in the message and BF suggests GF’s mother’s apartment complex to hang out (wink wink).
• BF picks GF up, and on the drive to the apartment complex, they kiss a couple of times at red lights during the ride. At one point, BF asks GF “[d]o you like it if I pull your hair?”, and before GF can respond, BF grabs GF on the back of her head and neck, whips her around, and snaps her back. Although GF hears the sound of her bones cracking, she is not in pain and proceeds to the apartment complex. While there, the parties make out in the stairwell, and begin engaging in sexual intercourse in the shower in the men’s locker room, before being interrupted when someone else enters the locker room. The parties exit the locker room, and BF drives GF back to campus.

Later that night GF’s neck pain intensifies, and she messages BF that her neck “really hurts from getting whipped around today”. BF’s response: “Battle scars.”

GF seeks medical attention the next day and is diagnosed with a concussion.

Ultimately, GF reports the incident to a criminal prosecutor about the incident and describes BF as her “special friend” and that she “just wanted to be his friend”. The prosecutor ultimately does not file charges against BF.

Other evidence of the parties’ relationship includes GF’s testimony that the parties “weren’t dating, we were friends with benefits”. Moreover, on cross-examination, GF admits the following:

• They had never gone on a social outing together.
• BF never bought her a gift.
• They never had lunch or dinner together.
• BF did not attend her birthday party or take her out for a birthday dinner.
• GF never had a Thanksgiving or Christmas meal with BF.
• They never went out on Valentine’s Day.
• BF never cooked dinner for GF at his home or joined her for dinner at her mother’s home.
• They never went to a movie, sporting event, or club together.

Additionally, GF’s psychologist testifies that GF “was very clear” that BF was not her boyfriend, but a “friend with benefits”.

In rendering its decision, the trial court noted that it was GF’s burden to show the parties relationship was a “dating relationship”—i.e., a relationship consisting of “frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations”, which GF failed to prove.

On appeal, the issue was whether the trial court could have reasonably inferred that the parties were not in a “dating relationship”.

The appellate court found that different inferences could be drawn from the uncontested facts, but there was no basis to reverse the trial court.

The justices looked to the Webster dictionary for the definition of “frequent” (common, usual, happening at short intervals, or often repeated or occurring) and “intimate” (marked by (i) very close physical, mental, or social association, connection or contact, (ii) a warmly personal attitude, especially one developing though a long or close association or by friendliness, unreserved communication, mutual appreciation and interest, or (iii) very close personal relationships, befitting a relationship of love, warm or ardent liking, deep friendship, or mutual cherishing), and determined that substantial evidence supported the trial court’s ruling that the parties’ interactions were not “frequent, intimate associations” within the meaning of the statute.

The appellate court explained it was reasonable for the trial court to conclude that GF’s and BF’s eight in-person interactions over 19 months were not “frequent associations”. Moreover, while the parties were always communicating via text and social media during the 19 months, it was reasonable for the trial court to conclude that this communication did not amount to “frequent, intimate associations” when GF mostly initiated the communications and BF’s responses were not amorous, were dismissive towards GF’s initial expression of concern regarding her injured neck, and some of his responses consisted of only a single word.

However, the appellate court makes very clear that although in this case the “friends with benefits” relationship was not a “dating relationship” for purposes of a domestic violence claim, it does not mean that other “friends with benefits” relationships similarly do not constitute a “dating relationship” because it is a determination for the judge or jury.

Here, the judge determined that there was no “dating relationship”. Thus, the appellate court could reverse the underlying ruling only if “the appellate record establishes the evidence cannot, on any hypothesis, support the trier of fact’s finding that a dating relationship does (or does not) exist”, and in this case, the appellate court found that substantial evidence did support the trial court’s ruling.

Interesting enough, the appellate court did suggest that if the trier of fact were only looking at the first three in-person interactions between GF and BF, which occurred within six to seven weeks and involved kissing and sexual activity, it might suggest “at least during that time span, [the parties] were in a dating relationship”. However, the appellate court dismissed this rationale because GF’s theory of the case was that they were in a continuous dating relationship as opposed to a previous dating relationship (which is another protected category under California law).

Authored by Kevin A. Alexander II, Esq. on February 7, 2024.

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