Friday, April 12, 2019
Court of Appeal:
By a MetNews Staff Writer
The Fourth District Court of Appeal has affirmed the extension of a domestic violence restraining order obtained by an ex-wife for a third five-year period, spurning the protest of the father of her child that he’s “done nothing wrong” recently that would justify the court’s action.
As the father, contractor Frank G. Ray, portrays it in his appellate brief, San Diego Superior Court Judge Harry L. Powazek extended the DVRO based on a single email in which he let off steam, conveying “his belief that the North San Diego County Family Law Court is corrupt” and that “he believes there is a conspiracy” against him.
Ray insists he has demonstrated no recent “abuse” toward senior loan officer Lisa Giacomini, and that Powazek erred in ascribing to him “restrainable conduct.”
Justice Terry B. O’Rourke of Div. One said in an unpublished opinion on Wednesday:
“It appears Father is suggesting that his current actions do not rise to the level of “abuse” sufficient to renew the restraining order. But Mother did not allege any current domestic violence or ‘restrainable conduct,’ which is not required to renew the order.”
He noted that Family Code §6345(a) authorizes extension of a DVRO “without a showing of any further abuse since the issuance of the original order.” What is required, under case law, is simply “reasonable apprehension” on the part of the person requesting the extension of abuse if the order is not kept in place, the jurist said.
O’Rourke speculated that Powazek “was simply reiterating that the initial restraining order was premised on a finding of abuse.” If so, Ray may not, now, challenge the evidence underlying the initial order, made in 2008 in connection with Giacomini’s paternity action.
“The existence of this initial order is certainly relevant to the analysis of whether to renew the order,” he remarked.
The case is L.G. v. F.R., D074413.
Oceanside attorney Jeffrey Bledsoe Lacy, of Greenman Lacy Klein Hinds Weiser, represented Giacomini and Ray was self-represented.
Ray on Nov. 24, 2017 filed an action against Giacomini in the U.S. District Court for the Southern District of California alleging that she acted in collusion with debt collector Andrew Musaelian, also a defendant, in harassing him.
The “most egregious” of the misdeeds, the pleading declares, occurred when Musaelian “acted in collusion with Defendant GIOCOMINI, Plaintiff[’]s former wife, in the Family Law Court and demanded that Plaintiff relinquish forever all visitation rights with his minor child to erase his debt or else ‘face severe consequences.’ ”
Suing under the Fair Debt Collections Practices Act (“FDCPA”) and the Federal Trade Commissions Act (“FTCA”), Ray sought “monetary civil penalties, a permanent injunction, restitution, disgorgement, and other equitable relief.”
On Dec. 7, 2017, District Judge Dana M. Sabraw of the Southern District of California granted Ray’s motion to proceed in forma pauperis, relieving him of the need to pay the $400 filing fee. However, acting on his own motion, he then dismissed the action under the FDCPA, without prejudice, based on Ray’s failure to state a claim upon which relief could be granted, and dismissed the action under the FTCA, saying that “there is no private right of action under the FTCA.”
Ray did not file an amended complaint.
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