Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BD453317, Amy Pellman, Judge.
Law Offices of Edward A. Hoffman, Edward A. Hoffman for Appellant.
Sandra Mendlowitz, in pro. per.; and Daniel Rothenberg for Respondent.
ARMSTRONG, Acting P. J.
Respondent Sandra Mendlowitz obtained a restraining order under the Domestic Violence Prevention Act, Family Code section 6200 et seq., against her estranged husband, appellant Paul Mendlowitz. We reverse.
Respondent has filed a Respondent's Appendix which includes documents which were not before the trial court in this proceeding. We disregard those documents. (Bach v. County of Butte (1989) 215 Cal.App.3d 294, 306.)
On May 1, 2009, Sandra petitioned for a Domestic Violence Restraining Order against her husband Paul, from whom she was legally separated. Sandra had left the marriage in September 2006, and the parties had had no contact for over two years.
"While litigation is a formal process in which parties are seldom referred to by their first names, we do so here to bring clarity to the text and avoid confusion that might be occasioned by the fact that these parties share a common surname." (In re Marriage of Candiotti (1995) 34 Cal.App.4th 718, 721, fn. 1.)
The petition was on the standard form. Section 6 allows the applicant to seek an order that the other party "not to do the following things to me, " including "harass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance or block movements, " and not "contact (either directly or indirectly), or telephone, or send messages or email." Sandra made those requests, and also requested stay-away orders, asking that Paul be ordered to stay at least 100 yards from her, her home, and her job or workplace.
Under "other orders" she asked for an order that Paul "stop... slandering me and from contacting my employers or anyone regarding me."
The form asks the applicant to describe the most recent and second most recent abuse, asking, inter alia, "what the person did to make you afraid." In these sections, Sandra wrote that on April 25, 2009, Paul had sent two emails which she characterized as slanderous, that "I'm afraid of not being able to work in my community because of his malicious lies, " and that "I am afraid of the lengths he will go to in order to destroy my reputation. He is engaging in horrible misconduct and is causing me irreparable harm. His only intent is to injure me."
Sandra attached the emails -- actually, one email and one letter. The email is dated April 24, 2009 and is to an organization called Mikva Chana, with the subject line "[Sandra's] Performance May 5, 2009...." Paul wrote that he was Sandra's soon-to-be ex-husband, that "The court will rule this performance... as a marital asset... You will be dragged into costly litigation, " and that Sandra's conversion to Judaism would be reversed because, for instance, she did not keep Shabbos, something which he was going to bring to the attention of a religious body. He gave his phone number, offered to provide additional evidence, and wrote "If I do not hear from you by April 28, 2009, my attorneys will go into court and seek an injunction preventing this performance from taking place."
The reference was to a bais din, a rabbinical court.
The second attachment is a letter dated March 23, 2009, from Paul to an Arnold Mittleman at an address in Florida. It too references the play, and states "Please be advised that this production is presently and in the future is the subject of litigation. Please understand that anyone that is involved will be named as either a co-defendant, and/or subject to intense Discovery efforts."
Sandra also filed a declaration, writing that she had a job in June and was afraid that Paul would contact her future employer "and destroy my reputation, " that Paul had not paid his spousal support, and that "I'm afraid that without a restraining order he will continue to slander me and contact future employers ruining my chances for income as a performer in my community."
The trial court issued a temporary order and set the matter for hearing. (Fam. Code, §§ 6320, 242.)
Both parties were in pro. per. at the hearing. Sandra called a witness, William Gross. He testified that on April 8, 2007, Sandra asked him to accompany her to a home which was apparently owned by both Sandra and Paul -- the record is not quite clear. Paul arrived while Sandra was packing, although he no longer lived there. Paul did not assault Sandra or make any threats. Sandra lived with Gross and his wife for six months in 2007, and in that period, Gross never heard any threats from Paul. In response to questions from the court, Sandra testified that there were no recent incidents of violence, and the court ruled that evidence about events during the marriage, including incidents which resulted in calls to the police, were irrelevant, and that "what we're really talking about today are the potential emails that you're sending to [Sandra's] potential employers."
On questioning by Paul, Sandra testified that he had not called, emailed, or otherwise contacted her over the last two years. She also testified that she had gotten copies of the letter and email not from Paul, but from her rabbi.
The court found that Paul was "contacting and potentially attempting to discredit [Sandra] to organizations, " and that "you are disturbing the peace of the petitioner.... You have, by your own testimony, admitted to the defaming comments that you have made in these emails. And so therefore, the court is going to grant a restraining order for the next five years. You are not to contact [Sandra], [Sandra's] employers, [Sandra's] potential employers in regard to [Sandra]... You are not to contact any third parties in regard to [Sandra], her reputation, her past acts."
As Paul notes, the written order does not include those specific restrictions, but instead commands, pursuant to the printed form, that Paul not "harass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance, or block movements... contact (either directly or indirectly) telephone, or send messages or mail or email... take any action, directly or through others, to get address or locations of any protected person." Paul argues that the written order is the operative order. That is the usual rule in civil cases (In re Jennifer G. (1990) 221 Cal.App.3d 752, 756, fn. 1; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037) but even if it is the operative rule here, it is of little assistance to Paul. This trial judge believed that, for instance, contacting third parties about Sandra would be a violation of the "disturbing the peace" prohibition. If Paul engaged in that conduct, he might well find himself in violation of the restraining order, and thus in violation of the criminal law. The terms of the written order notwithstanding, in all meaningful respects, Paul was restrained from contacting third parties concerning Sandra.
Discussion
Paul challenges the order on a number of grounds, contending, inter alia, that it is overbroad, vague, an unlawful prior restraint on his First Amendment rights, a violation of his Second Amendment right to bear arms, and was not supported by substantial evidence. We agree that there was no substantial evidence for the order, and need not consider his remaining contentions. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420; Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822-823.)
The purpose of the Domestic Violence Prevention Act "to prevent the recurrence of acts of violence and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence." (Fam. Code, § 6220.) To that end, the Act provides that a restraining order may be issued on reasonable proof of a past act of abuse (Fam. Code, §§ 6300, 6211 et seq.), defined to include violence, threats of violence, and "molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party...." (Fam. Code, §§ 6320, 6203.)
The trial court here relied on In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483 to find that Paul's conduct disturbed Sandra's peace, for purposes of the Domestic Violence Prevention Act, and was a sufficient basis for the issuance of a restraining order.
In Nadkarni, a Domestic Violence Prevention Act restraining order was issued on evidence that the restrained party, the former husband, had accessed a private email account which his former wife used to store financial records, communicate with her attorney concerning an on-going child custody dispute, and communicate with clients of her executive search business. He learned her social schedule and communicated the information to third parties, causing her to fear for her safety, given that he had been violent in the past and had once spent 20 days in jail for beating her. The former wife asked for an injunction barring her former husband from accessing the account, and from blackmail, slander, and other acts, including disturbing her peace. The former wife obtained a temporary order, but when she sought to extend the order, the trial court dismissed the application without a hearing.
The Court of Appeal reversed, finding that the former wife had made a facially sufficient showing, so that she was entitled to a hearing, under the "disturbing the peace of the other party" definition of abuse. Relying in large part on dictionary definitions of "disturb" and "peace, " Nadkarni held that "the plain meaning of the phrase 'disturbing the peace of the other party' in section 6320 may be properly understood as conduct that destroys the mental or emotional calm of the other party." (Id. at p. 1497; but see In re Bushman (1970) 1 Cal.3d 767, 773 , overruled in part on other grounds by People v. Lent (1975) 15 Cal.3d 481 ['disturb the peace' has long been understood to mean disruption of public order by acts that are themselves violent or that tend to incite others to violence]; People v. Anderson (1931) 117 Cal.App. Supp. 763, 767 [disturbance of the peace signifies the offense of disturbing the public tranquility by any act or conduct inciting to violence or tending to provoke or excite others to break the peace]; Pen. Code, § 415.)
We do not understand Nadkarni to mean that an injunction may issue based on any act which upsets a former spouse. The Domestic Violence Prevention Act was not intended to address all causes of discord between former spouses or cohabitants, or those who have been in dating relationships, or to create an alternative forum for the resolution of all disputes between such people. For instance, someone might find a former spouse's success in business or romance to be highly upsetting. Or, a former spouse might be very disturbed by something which could be resolved in a family law proceeding, such as a former spouse's chronic tardiness with respect to visits or support payments. Or, as Sandra suggested in the trial court, a dispute concerning interference with contract might arise. Not every upsetting act will support the issuance of a restraining order.
We note in this regard that a domestic violence restraining order is no ordinary injunction, which might carry with it civil penalties. Instead, violation is punishable as a misdemeanor. (Pen. Code, §§ 166, subd. (c); 273.6.) Copies of the order are distributed to law enforcement agencies (Fam. Code, § 6380) and an arrest is mandatory where an officer has probable cause to believe the order has been violated. (Pen. Code, § 836, subd. (c)(1).) Further, "[t]here often will be some social stigma attached while a person is subject to a protective order. Existing employers may frown on an employee who is subject to such an order and prospective employers almost surely will. Thus the restrained party may lose out on a promotion or a job." (Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1291.)
Here, while Paul's otherwise lawful communications concerning community property rights to Sandra's play and Sandra's conversion to Judaism were no doubt upsetting to Sandra, and made her fear for her economic well being, those acts cannot be said to rise to the level of destruction of Sandra's mental or emotional calm, sufficient to support the issuance of a restraining order.
Disposition
The order issuing the restraining order is reversed. Appellant to recover costs on appeal.
We concur: MOSK, J., KRIEGLER, J.