California court mishandles Domestic Violence case
Would you like to read a blog about something else other than the coronavirus? I thought so.
This blog will address domestic violence. The trend, it seems, for the past six years or so, has been for more and more cases to be issued by California’s Court of Appeal on this subject. And, as the technical rules about domestic violence cases have changed (or maybe for other reasons), the published decisions from the higher court have overwhelmingly supported trial judges who have issued restraining orders and reversing those who have not.
One of the exceptions came to light on Friday, when the Court of Appeal, in a matter called Curcio v. Pels, reversed a three year restraining order because the judge had relied too heavily on what had been said in a private Facebook posting; because he made the defendant prove that the plaintiff’s allegations in her paperwork were not true; and because, after initially ordering a restraining order for just two years, he made it three when the defendant politely tried to find out why a restraining order was being issued at all.
This case involved two women who are both comedians, believe it or not, but there was nothing funny about their relationship, which ended in 2016. In 2018, the plaintiff (“Jennifer”) obtained a temporary restraining order by saying that the other person (“Julia”) had, in October, 2018, made false accusations about sexual abuse to people at the comedy club where Jennifer worked in an attempt to have Jennifer banned from the premises; and that she thereafter posted accusations on social media naming Jennifer. Accordingly, Jennifer asked in her paperwork that Julia be ordered “’to stop posting about me on social media platforms’”.
A temporary restraining order based just on Jennifer’s paperwork was granted on November 2, 2018. There was nothing unusual about that. Almost any application, describing any type of abuse that occurred at any time in the past, is good enough for a temporary restraining order because these orders, called TROs, only last for 21 days – or 25 days in exceptional circumstances.
What comes next is the regular hearing where the judge gets to hear from both sides and take more time to decide what to do. If the plaintiff proves by a preponderance of the evidence that a restraining order is appropriate, the judge may issue a long-term restraining order that can last up to five years. (Again, remember, these blogs generally only address California law.)
In this case, the so-called “regular hearing” took place on November 26, 2018, 24 days after the TRO was entered. The first mistake that the judge, the Hon. James E. Blancarte, made was to tell Julia that “the granting of the TRO created a presumption that some type of abuse has occurred. It’s a rebuttable presumption which means that (Julia) may overcome and dissolve the presumption through her evidence”. In order words, Julia had “the burden of proving by a preponderance of the evidence that these allegations are not true”. Wrong. Wrong. Wrong.
The second problem was that it turned out that the social media post (Facebook) was on Jennifer’s “’private Facebook page that is on lockdown where no one except (her) friends can see it’”.
After hearing this, the judge said “I can and will issue those restraining orders even if you never laid a hand on the petitioner, and what she just put on the record is that you have interfered with her ability or you have attempted to interfere with her ability to earn a living. That would disturb the peace of any reasonable person. If you came into my life telling people that I should not be on the bench for X reasons, it would disturb me greatly. You are disturbing my peace by interfering with my ability to earn a living”. Wrong again. “”Telling somebody don’t book somebody is interfering with their work . . . It’s not something that the law tolerates. It’s a form of abuse’”. Still wrong.
The court made standard stay-away orders that required Julia to stay away from Jennifer and to not disturb her peace. Then the judge said, “[y]ou are expressly ordered to not post anything on the internet or any social media that would suggest to prospective employers that they should not hire her or book her in any way. You are ordered to not contact her directly, indirectly, in any way including but not limited to by telephone, mail, email, text message, Facebook, Instagram, social media or other electronic means”. Then, when an astonished Julia tried to argue with the judge, he took the two-year order and made it three.
Not surprisingly, the Court of Appeal, in a unanimous decision written by Justice Anne H. Egerton, reversed and dissolved the restraining order.
Addressing the Facebook issue first, the justices acknowledged that some social media posts may legally constitute domestic violence, but that Julia’s single, private Facebook post accusing (Jennifer) of abusing her is a far cry from the conduct” in other domestic violence cases involving social media. The appeals court found no basis for issuing a restraining order “based on any act that upsets the petitioning party. The DVPA (Domestic Violence Protection Act) was not enacted to address all disputes between former couples”. As to whether Judge Blancarte’s order constituted an act of “prior restraint” that the First Amendment prohibits, the justices did not answer that question.
As to the issue of forcing the responding party to prove the written allegations were not true, the Court of Appeal said, “the law imposes no such burden on a party opposing a restraining order. As the party seeking the restraining order, (Jennifer) was required to prove past abuse by a preponderance of the evidence”.
Regarding the extension of the restraining order from two to three years, the justices found that this was an abuse of discretion by the judge. The extension occurred after Julia said, “’I have never been arrested or been a violent person. This is a manipulation of the court. I’m disappointed, but I respect you and I will respect your orders. Thank you””. The judge then “engaged” Julia, to use the wording of the appellate court, instead of just letting that last comment go, asking the woman “’[d]id you post that people should not book her? Yes or no?’” Julia answered the question, “[i]t does not say do not book her’”. She added, “I do not need to be restrained. If I’m in a comedy club, she could call the police, and I could be arrested for just being at my space and performing’”. Finishing her response, Julia said, “’it’s very upsetting when people with mental illnesses abuse the court system. I appreciate your time today’”.
The judge, in yet another unwise comment, dismissed the argument, referring to Julia in derogatory fashion as “’young lady’”. The judge added, “’I asked you if that were true to see if you were willing to accept responsibility. Accepting responsibility in these conduct cases carries a lot of weight. You have done the exact opposite. Your order is now for three years for not accepting responsibility for the evidence that I have before me’”.
The domestic violence restraining order statutes are civil regulations; they do not, as sentencing laws in criminal matters sometimes do, place a premium on taking responsibility. And the only way the judge could even think that Julia was not taking responsibility was to continue talking to her in a case in which he had already ruled. And, as the appeals court stated, “’[t]he record does not support the court’s finding” of a lack of responsibility. Indeed, the record shows that Julia was representing herself and showed respect to the Court by advising the judge that she would obey his orders and later, by advising him that she appreciated his time. And, as the Court of Appeal noted, to summarily increase the time of a restraining order is a big deal because it can subject the person to arrest for getting too close to the other party and, among other things, it can adversely affect employment.
One other comment about this matter. If people could not discourage others not to do business with third parties, the whole concept of Yelp reviews would go out the window. And the judge’s comment that what Julia did was akin to someone saying that the judge “should not be on the bench for X reasons” was out of line. It is hard to believe that he said that such criticism “would disturb me greatly. You are disturbing my peace by interfering with my ability to earn a living”. Fortunately, the Court of Appeal did not address this poor attempt at an analogy, but the right to argue that someone is a bad judge, subject to certain exceptions (like doing it on the record in open court), is part of who we are as Californians and Americans. And, to be technical, unlike comedians, whose incomes no doubt vary greatly, judges get paid the same whether people like them or not. And that’s no joke.
But as a post-script, Judge Blancarte was actually just a commissioner acting as a temporary judge back in November 2018 when all of this happened. Commissioners, who are appointed by the judges of the Superior Court of their county, can indeed be fired by those judges for basically any reason, but what Julia did cannot be compared to the act of, say, someone writing a false letter to the presiding judge complaining of harassment by a commissioner.
But all of this has a happy ending for Judge Blancarte. On December 14, 2018, less than a month after completely mishandling the matter, Commissioner Blancarte became Judge Blancarte when he was appointed to the bench by then Gov. Jerry Brown in the waning days of the Brown administration, as a result of the conversion of a commissioner post to a judge’s post.