Why this case is important:
This case creates a process judges must use if a DVRO respondent requests a continuance based on 5th Amendment concerns. First, the court must decide if there actually is a concern that the respondent will be forced to incriminate themselves. For many DVRO requests, the abuse is not also a crime, so the 5th Amendment doesn’t apply.
If there is a legitimate 5th Amendment concern, then the court must weigh 5 factors to decide if a continuance is appropriate:
- The respondent’s 5th Amendment right against self-incrimination and how the respondent would be burdened if the hearing was not continued;
- The petitioner’s interest in proceeding and whether delaying the hearing would be unfair to the petitioner – for example, the petitioner’s witnesses are already at court and the witnesses may not be able to come back on another day;
- The court’s interest in efficiently managing court resources;
- The interests of nonparties – such as additional protected parties who need protection or children who need custody and support orders; and,
- The Domestic Violence Prevention Act’s (DVPA’s) purpose of quickly resolving DVRO proceedings.
If these factors do not weigh in favor of the request to continue then the hearing must go forward that day. The Court of Appeal explained, the fact someone is charged with a crime “cannot give him a blank check to block” non-criminal cases about the same facts, justice may require allowing the restraining order case to go forward.
Summary of the case:
Eric requested a domestic violence restraining order (DVRO) against his ex-spouse Tiare, who sent hundreds of texts and emails over a short period of time to Eric and the person he was
dating. Eric received a temporary restraining order (TRO) that protected both him and the person he was dating. Tiare then broke into Eric’s yard and physically attacked Eric. Tiare was arrested and a Criminal Protective Order (CPO) was issued to protect Eric. Despite the CPO and TRO, Tiare went to Eric’s home and continued to contact him.
At the first hearing on the DVRO Tiare received a continuance under Family Code section 245(a), which gives a continuance to anyone who hasn’t filed a response yet. Two more hearings were scheduled. At each hearing Tiare requested and received a continuance. The matter was re-scheduled for a fourth time, approximately 4 months after the initial hearing date. At the 4th hearing Tiare requested another continuance raising 5th Amendment concerns because of a pending criminal case based on her TRO and CPO violations. The request was denied. The hearing went forward, Tiare did not testify, and the DVRO was granted.
Tiare appealed, claiming the trial court abused its discretion when it failed to continue the DVRO hearing because she had an open criminal case involving some of the same facts as the DVRO. The Court of Appeal upheld the trial court’s ruling explaining that the 5th Amendment does not mean all civil (non-criminal) litigation must be continued because the civil case alleges all or some of the same facts as in a criminal case. Instead, courts must decide whether the 5th Amendment concern is legitimate and, if so, use the test described above to decide whether to continue the case.
View the full Case Alert for practice tips. | View the Published Opinion.
