4th District Division two discriminates against litigants, fails to protect.

Justice Ramirez issued an order denying a writ citing a restraining order appeal that has been pending for close to two years which documents incidents of abuse from 6/2012 and the years past that date.

The appellate court’s reason is that the incidents of abuse are already in the court of appeal.  The writ dealt with incidence of abuse in 2013 as there is no order in place prohibiting the incidence of abuse against a litigant and the children in this case. As a result the person causing the abuse has escalated out of control as the trial court has provided a free license to continue with the terrorizing abuse with no end in sight.

Justice Ramirez, in error, also stated that the trial court denied the restraining order based on the current pending appeal. That is not the case. The trial court’s denial of the restraining order that led to the writ petition consisted of a blanket denial of the Petitioner’s application without citing the reasons for denial, violating CA family code § 6320.b a holding that is explained in Nakamura v Parker (2007) 156 CA4th 327, 67 CR3d 286. The trial court denied Nakamura’s application for a temporary restraining order without any explanation other than a general rubber-stamped denial. The appellate court found that Nakamura’s factual allegations did show she was “abused” within the meaning of the DVPA, and the trial court’s summary denial, without a hearing, of a facially adequate application for a TRO was an abuse of discretion.

In this case the appellate court denied the writ citing past gross acts of abuse contained in an appeal without considering the ramifications of the out of control current acts of abuse which again include death threats and the impact on children who are witness to and party to the abuse.  The court of appeal in effect is creating a different legal standard for anyone subjected to domestic violence, who has also been classified as vexatious, and prohibits that this person and the children have a means of protecting themselves.

The court of appeal with this denial is suggesting that merely filing an appeal, without the trial court issuing a domestic violence restraining order, actually protects the children and the litigant involved, which is not the case.  An appeal of a domestic violence restraining order does not protect a parent and her children UNTIL the domestic violence restraining order is issued and a litigant may file a request for a domestic violence restraining order at any time citing acts of CURRENT abuse and an act of past abuse, pursuant to CA family code § 6200, § 6300.  The court may issue a restraining order after a noticed hearing if the affidavit provided to the court shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse. Fam C §§6300, 6340. Abuse is bodily injury or threat of injury, stalking, or sexual assault, or behavior that can be enjoined under Fam C §6320. The filing of a restraining order is governed by CA family code § 246 which specifies”  A request for a temporary restraining order described in Section 240, issued without notice, shall be granted or denied on the same day that the petition is submitted to the court, unless the petition is filed too late in the day to permit effective review, in which case the order shall be granted or denied on the next day of judicial business in sufficient time for the order to be filed that day with the clerk of the court”.

Perhaps the court would be less inclined to substantively discriminate against certain litigants if they were on the receiving end of endless years of escalating abuse, with no relief in sight, witnessing the impact on their own children.



2 comments on “4th District Division two discriminates against litigants, fails to protect.

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