Metropolitan News-Enterprise


Friday, September 28, 2018


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Court of Appeal:

Restraining Order Improperly Imposed on Ex-Wife of Abuser


By a MetNews Staff Writer


The Fifth District Court of Appeal has lifted a domestic violence restraining order against a woman who, while married, had been battered several times by her then-husband, including an occasion when she lost consciousness, and where the order stemmed not from an attack by her on her former spouse but from an incident where she bashed a lamp on the car owned by his girlfriend.

Justice Jennifer R.S. Detjen wrote the opinion, filed Wednesday, and not certified for publication. It reverses the restraining order against the ex-wife, Maria Guadalupe Contreras, and also reverses a joint custody order because Tulare Superior Court Judge Nathan D. Ide appears not to have observed the statutory presumption against such orders.

Ide’s order against Maria Contreras, drew considerable interest within the legal community, sparking amicus curiae briefs in support of her position by Bay Area Legal Aid, the ACLU of Northern California, The LGBTQ Center Long Beach, the ACLU Foundation of Southern California, and Lambda Legal Defense and Education Fund.

“He Said-She Said’

The restraining order stemmed from an incident on April 14 of last year. Maria Contreras’s version of what happened differed substantially from that of her ex-husband, Luis Eduardo Contreras—with Ide describing the conflict as  a “ ‘he said-she said’ situation.”

“He” said that there was an agreement between them that the children would be staying at his house overnight and she showed up unexpectedly and was enraged that his girlfriend was present; “she” said the agreement was that the children would be returned to her earlier that evening.

The principal conflict was over the matter of whether she barged into the house or he pulled her in. Ide did not make a finding as to which rendition was true.

It was agreed that Maria Contreras came to Luis Contreras’s house to pick up their two minor children; an argument ensued; he grabbed her by the neck; she bit him; she was released, fled, and, upon exiting, hit the car in the driveway with a lamp she had picked up inside the house.

Mutual Restraining Orders

Ide granted a restraining order against both parties. Under Family Law Code §6305, mutual restraining orders may be issued only where it is determined that “both parties acted as a primary aggressor and that neither party acted primarily in self-defense.”

In his order against Maria Contreras, Ide recited that she “came to the home of a person where she claims she’s afraid of and entered into an argument with that person over custody and visitation,” and “broke the window of a car” she knew was not that of her former spouse. He found that both parties “acted primarily as aggressor.”

Explaining the reversal, Detjen said:

 The factual findings made by the court provide two potential arguments for finding Maria committed an act of abuse as a primary aggressor, not in self-defense. In the first, Maria approached Luis’s home to discuss custody issues without calling the police for help. In the second, Maria fled Luis’s abuse and, in anger, damaged a car not belonging to Luis. As the court failed to resolve any factual disputes regarding how Maria entered Luis’s home, and found Luis’s responsive conduct was inappropriate and thus not in self-defense, we note that a restraining order cannot be predicted on Maria’s entry into Luis’s home under the facts found by the trial court.”

Posed No Danger

Detjen pointed out that Maria Contreras violated no order in going to her ex-husband’s home, there was no finding that she placed him in fear or otherwise harassed him, and that whatever damage she caused to the girlfriend’s car was not a basis of apprehension by him of possible future danger to himself.

The jurist wrote:

“[T]he court specifically found, on testimony that Luis attacked Maria once she was inside his home, that Luis was the one that acted inappropriately at that time. Further, the court specifically found that Maria had proven a history of domestic abuse at the hands of Luis. Given these findings, we see no evidence that could support the trial court’s conclusion Maria was a primary aggressor when she threw a lamp into a car after she fled the proven abuse from Luis inside of his home. The facts demonstrate Maria’s conduct was a direct response to abuse at the hands of Luis and occurred not because she was continuing the confrontation but rather occurred while fleeing the location where that abuse occurred.”

Custody Order

With respect to the joint custody order, Detjen said it “is apparent from this record that the trial court did not consider the presumption” in Family Code §3044 against such an order.

“The court’s failure to apply the presumption set forth in section 3044 is further compounded in this instance by our conclusion that the finding Maria committed an act of abuse was unsupported by the evidence,” she wrote. “Even if we presume the trial court considered the mutual findings of domestic violence and adjusted the custody and visitation order to account for those findings, that balancing would no longer stand given our findings the evidence did not support a finding Maria committed an act of abuse.”

The case, F076195, is denominated by the Court of Appeal as “Marriage of C,” with the parties designated by their first names and initial letter of their surname. It was tried in the Tulare Superior Court  as Contreras v. Contreras and appellate briefs were filed using the full names of the parties.

Maria Contreras was represented by Kirsten H. Spira, AnnaMarie A. Van Hoesen, and Elizabeth H. Capel of the downtown Los Angeles firm of Jenner & Block; Anya Emerson, Jennafer Dorfman Wagner, Cory D. Hernandez, and Erin C. Smith of Oakland’s Family Violence Appellate Project, and Jeneé Barnes  of Fresno’s Central California Legal Services. Luis Contreras filed no brief.


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