California Family Law Report

Case of the Month Archive

Trial court may permit oral testimony at hearing on the merits . . .

In reversal, Sixth District holds that trial court erred by denying application for long-term restraining order in which wife alleged that husband had improperly accessed her e-mail account, used information he found there to keep track of her, and publicly disclosed confidential content; wife’s allegations are sufficient to show abuse under DVPA and require hearing on the merits

On June 21, 2002, Darshana Nadkarni filed for divorce from her husband, Dattaprasanna (called Datta). Their status-only disso judgment was issued in May 2005, after which they continued to battle over custody of their two kids. The following May, the trial court awarded the parents joint legal and physical custody of the children. On July 17, 2007, Datta filed a supporting declaration for a previously filed motion in which he sought an affirmation of the joint custody order, a modification of child support, and other relief. He filed a supplemental declaration a month later, claiming that Darshana had been grossly negligent in leaving the kids (then 16 and 14) alone without telling him while she went to India for two months earlier in the year. Datta attached copies of several e-mails in which Darshana corresponded with her family law attorney and the children while she was gone. He contended that fear for his children’s safety compelled him to access the e-mails in order to learn about Darshana’s travel plans, and that the e-mail account he’d accessed was one that he had set up for Darshana and the kids. The e-mails revealed, Datta claimed, that when Child Protective Services contacted Darshana at his request, she lied about having her brother supervise the children while she was gone, and that she’d told the kids to lie to their father about where she was. Datta also said that he had obtained other information from the e-mails that “ ‘could be considered inflammatory and sensitive,’ ” but added that he intended to use that information only as evidence in future litigation.

On October 17, 2007, Darshana filed a request for a TRO under the Domestic Violence Prevention Act (DVPA; Fam C §6200 et seq.). She asserted that she first learned that Datta had accessed her e-mail account when she saw the attachments to his child-custody pleadings, and that he was not authorized to access the account. Darshana stated that she had set up the account to use for “several confidential matters,” including communicating with her family law attorney, her clients, and third parties involved in her business, and dealing with her mother’s financial affairs. Darshana explained that she interpreted Datta’s references to inflammatory and sensitive material as a threat that he would use the material to detrimentally affect her business relationships; she also feared that he would use them to embarrass her in court. Darshana further claimed that Datta had used information from the e-mail account to monitor her social calendar, and said that this knowledge of her activities, coupled with Datta’s history of spousal abuse (including one conviction), made her fear for her safety. She asked the court to issue an ex parte TRO to preclude Datta from (1) engaging in blackmail, stalking, threatening, harassing, or disturbing her peace or that of third parties by using the information that he gleaned from the e-mails; (2) using, disclosing, or delivering her e-mail messages or content to others; and (3) attempting to access her Internet provider accounts. Darshana also requested that the court order Datta to deliver to her attorney anything he had accessed from her e-mail account, including hard copies, and to provide the names of any third parties to whom he had sent information about her. After granting the TRO, the court scheduled an OSC to consider extending it for five years. In opposition, Datta again contended that he had set up Darshana’s e-mail account, that she had agreed to his accessing the account, and that he had accessed it only to find out her whereabouts and to obtain information relevant to the custody proceeding. He also contended that Darshana failed to state any facts to support extending the TRO.

After the parties agreed to a continuance, Darshana filed a trial brief in which she asserted that an extended TRO would be proper under Fam C §6320, CCP §527(b) [civil harassment statute], and CC §1708.7 [civil stalking statute] because Datta’s conduct “ ‘harasses or disturbs’ ” her peace. She stated that extending the TRO was necessary to keep him from attempting to “ ‘control, harass, and abuse’ ” her by using the “ ‘private and privileged’ ” information he’d obtained from the e-mails. She asked the court to extend the TRO for 10 years and order sealed the e-mails that Datta had attached to his pleadings. Datta subsequently filed a motion for judgment on the pleadings, which Darshana opposed.

At the hearing on Darshana’s application, the trial court asked whether a DVPA matter was entitled to calendar preference, decided it was not, and heard other matters first. After a lunch break, the court told the parties it had reviewed the file and determined that Datta’s conduct did not rise to the level necessary for a DVPA restraining order; thus, the case should be dismissed without prejudice to Darshana’s filing an action in civil court. On April 15, 2008, the court issued an order dismissing Darshana’s application.

Darshana appealed, and the Sixth District reversed and remanded with directions.

No can do . . .
Darshana argued that she had alleged conduct by Datta that was sufficient to support the issuance of a permanent restraining order. The justices noted that under Fam C §6218, a trial court may issue a DVPA restraining order that enjoins specific acts, excludes an offending party from a dwelling, or enjoins other specified behavior; under Fam C §6203, that includes behavior that could be enjoined under Fam C §6320. Fam C §6320, the panel continued, authorizes issuance of an ex parte restraining order to prevent someone from, among other things, stalking, threatening, harassing, making annoying phone calls, or disturbing the peace of the petitioning party or other family or household members. Moreover, if a spouse has been a victim of domestic abuse, the trial court must take into account any prior criminal conviction of the offending party before issuing a DVPA restraining order. Such orders, the justices noted, may be extended for up to five years, but they may be renewed for an additional five years without a showing of further abuse. Here, Darshana’s pleadings asserted that Datta’s unauthorized accessing of her confidential e-mail account and history of physical violence caused her to fear for her safety. If she had been allowed a hearing, Darshana said, she could have testified that Datta’s conduct “ ‘harassed her, disturbed her peace, invaded her privacy, frightened her and intimidated her.’ ”

Define disturbance . . .
The justices reasoned that Fam C §6320 does not require that the victim has to actually be assaulted or physically harmed to constitute abuse sufficient to warrant a restraining order; the statute includes several types of behavior that do not include violent conduct. Here, the panel said, the allegations by Darshana that Datta learned her social schedule and told others, who then reported that to her, could qualify, if proven true, as indirect and threatening contact constituting restrainable abuse. Moreover, the justices said, disturbing the peace of the victim qualifies as abuse under §6320. When they consulted the Oxford English Dictionary Online, the justices discovered that the definition of “disturb” includes agitating and destroying one’s peace and quiet and stirring up trouble; “peace” is defined as a condition free from anxiety or inner conflict. Thus, the justices determined, “the plain meaning of the phrase ‘disturbing the peace of the other party,’ ” as used in §6320, means “conduct that destroys the mental or emotional calm of the other party.” That definition, the panel reasoned, is in line with the legislative history of the statute, which states that it was intended to protect a broad class of persons. When they applied that definition to these facts, the justices were convinced that Datta may well have disturbed Darshana’s mental and emotional calm by accessing her e-mails, reading them, and publicly disclosing their contents. Thus, the panel concluded, Darshana’s application and supporting declaration were facially sufficient under the DVPA because they alleged conduct that could be directly or indirectly threatening to her and injurious to her mental and emotional well-being. The trial court erred by finding otherwise and refusing to grant a hearing on the merits.

It all depends . . .
Having determined that Darshana was entitled to a hearing on the merits of her application, the justices considered whether she was also entitled to present oral testimony at that hearing. They advised Darshana that Nakamura v. Parker (2007) 156 Cal.App.4th 327, 67 Cal.Rptr.3d 286, 2007 CFLR 10787, 2007 FA 1315, on which she had relied, didn’t help because it did not address the question of whether oral testimony is required at a DVPA hearing for a restraining order. The panel noted, however, that a trial court has discretion to permit oral testimony in an appropriate case. And per Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 67 Cal.Rptr.3d 317, 2007 CFLR 10784, 2007 FA 1315, a trial court in a DVPA matter must bear in mind the generally vulnerable condition of the applicants for restraining orders, and it must be proactive in ensuring that all the pertinent facts come to light before issuing or declining to issue such orders. In addition, the panel stated, applications such as Darshana’s are entitled to calendar preference under Fam C §244. Summing up, the justices reversed the order dismissing Darshana’s application, and they remanded the matter to the trial court for a hearing on the merits, at which the court has discretion to permit oral testimony and the presentation of additional evidence.