What Happens When an Abuser Files a Restraining Order?

What Happens When an Abuser Files a Restraining Order?

July 21, 2020

Here is a recently published opinion arising from the Orange County Superior Court regarding restraining orders and an OSC re Contempt. This is a situation that many people have found themselves in.

Per the court record, Keith McCord and Celeste Smith have had a dating relationship and engagement. After ending their relationship, each of them asked the court for domestic violence restraining orders. The court granted Smith’s request and denied McCord’s request for an order to show cause re contempt and restraining order. McCord appealed the court’s order.

The parties began their romantic relationship in 2014. The parties began fighting over text messages and phone in September 2018 because he had gone to Las Vegas without her. After returning to Orange County, McCord went to Smith’s home and they continued to argue. McCord said that Smith backed out of the driveway and tried to run him over which she denied. The record was not clear if there was a police report, but criminal charges were never filed.

Smith’s friend testified that McCord came to Smith’s home several times demanding to speak with Smith and “blew up her phone” with texts and phone calls. McCord said he only called twice. Smith broke it off with McCord on November 2, 2018. She testified that he tried to talk her out of it, hugged her and restrained her on her bed with his hand over her mouth. She ran out of the house but did not call the police.

McCord continued to send emails through November. The testimony from other witness revealed that the breakup was very volatile, and Smith was afraid. McCord came to the house and stated he wanted to throw her a surprise birthday party. At other times, he came over, uninvited demanding to talk. When she asked him to leave, he said “she will know what it is like to be his enemy.” When she tried to record him, he forceful grabbed her wrist leaving a bruise. McCord would show up at Smith’s workplace and church. He would leave flowers at her doorstep. On one occasion, he texts her to “drive safe” as an indication that he was stalking her.

In December, McCord texted her a picture of her nursing license and a nude picture. Clearly, this made Smith very distraught. She told McCord “never contact me again.” McCord apparently sent himself an email allegedly from Smith. McCord had all her computer passwords.

McCord filed a request for a DVTRO, and it was granted. Despite this TRO, he left a stuffed bear on her doorstep. Smith then filed for a TRO and the temporary was denied because a TRO was already issued in the matter. In February 2019, Smith called Huntington Beach police stated that McCord had pulled up in her driveway and blocked her in and approached the driver’s side door. McCord left. Police filed an informational report only because McCord was the protected party.

In April 2019, following an evidentiary hearing, the court issued a restraining order against McCord, dismissed with prejudice his contempt citation and the court denied his request for a restraining order. He appealed.

The Court of Appeal offered an especially useful discussion about the standard of review and applicable laws dealing with domestic violence restraining orders.

  1. The court’s issuance of a request for domestic violence restraining orders is a discretionary matter. The court stated, “We will not disturb a trial court’s exercise of discretion unless, as a matter of law, given all the relevant circumstances, we can say (1) the trial court exceeded the bounds of reason, or (2) no reasonable judge would have made the same order.” Further, the court states “Credibility determinations are the province of the trial court.” The court also notes that acts that disturb the peace of a party have been held to include those that destroy the party’s mental or emotional calm citing In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497. The trial court’s findings that McCord’s statements and actions were a means of exercising control and dominion over Smith and threatening her were amply supported by the evidence.
  2. McCord also states that Smith offered new evidence on the day of the hearing which prejudiced him. He cites the case of Ross v. Figueroa (2006) 139 Cal.App.4th 856 for the proposition that the court should have granted a continuance. The court stated that McCord did not request a continuance and agreed to proceed with the hearing.

Takeaways From This Case

This type of situation happens all too often. Dueling restraining orders. One person is the perpetrator of the domestic violence restraining orders as he wins the race to the courthouse. The victim in this case files a request for a TRO and its denied.

There has been some recent discussion about the Marriage of Nadkarni decision. In this decision, the court held that a single incident could be grounds for domestic violence. More importantly, the court held that a restraining order that disturb the peace of a party include those that destroy a party’s mental or emotional harm. In other words, there may not be physical violence. In this case, the court also held that McCord’s actions were a means of exercising dominion and control. The domestic violence issue of coercive control can lead to a domestic violence restraining order, again physical violence may not be present.

The other important issue in this case is a due process issue. A party files a request for domestic violence restraining order including a declaration from the aggrieved party. Then one of two things may happen: one, that the party then brings new information to the hearing that the Respondent has not seen; or two, the party’s hires an attorney and the attorney files supplemental documents late. The proper remedy in this situation is to grant a continuance under Ross v. Figueroa. However, I believe that this is also discretionary with the court. Another remedy is to proceed with the hearing and the court will not consider the late filed documents.

If you have a restraining order matter, do not try to do it by yourself whether you are the protected party or the restrained party. If you are the protected party and are self-represented and you proceed, any mistakes may be fatal, and the hearing may be denied. You will then be precluded from presenting the same evidence. If you are the restrained party, you must make all proper objections during the hearing. If the court grants a restraining order and there are children, family code section 3044 will apply.

It is imperative that you contact the attorneys at the Law Office of Edgar & Dow if you are involved in a restraining order matter. 


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