FVAP successfully requested publication of this matter. Thank you to the team at Gibson Dunn & Crutcher who review unpublished opinions daily to help FVAP identify cases that, if published, could advance survivor safety in the courts! We are also grateful to the 11 domestic violence, public interest, and legal aid organizations, who joined our request.
Robert requested a Domestic Violence Restraining Order (DVRO) against his spouse Susan towards the end of their divorce. Susan tried to dismiss Robert’s request early using the anti-SLAPP law, claiming the emails she sent were related to a potential lawsuit and not evidence of abuse for a DVRO. The trial court allowed Robert’s DVRO request to proceed. Susan appealed, but the Court of Appeal upheld the trial court’s decision, stating that the anti-SLAPP law and litigation privilege could not prevent the DVRO request. The Court found that Robert’s request presented enough evidence of abuse for a DVRO, including unwanted contact, harassment, and disturbing Robert’s peace.
This case has a few holdings that are quite important:
- Survivors don’t have to ask the person who is being abusive to stop the abuse before they can get a DVRO
- Behavior that seems like a “mere annoyance” when it is considered in isolation may actually be abuse when the parties’ history is considered
- Any type of abuse –such as unwanted contacts, harassment, or disturbing the peace–can be enough for a DVRO, even if only one form of abuse was used against the survivor
- Abuse is abuse, even without threats or violence
- Curcio v. Pels discussed in Section I(B)in, should be used in a very limited way, when trying to say conduct isn’t abuse
- The anti-SLAPP law couldn’t prevent the DVRO request here because the few messages that involved litigation were sufficiently abusive, as a prima facie matter, so they were not covered by the law; and
- The litigation privilege couldn’t be used to prevent the DVRO request here because many of the emails were not lawsuit-related and were sufficiently abusive, as a prima facie matter.
