Wednesday, February 5, 2020
Page 1
Court of Appeal:
Burden of Proof Improperly Shifted From Proponent of DVRO to Accused Party
Opinion Reverses Order by Judge James E. Blancarte
By a MetNews Staff Writer
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AMANDA FRANCHINI Actress |
PHUONG ‘FON’ DAVIS Creative director |
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The Court of Appeal for this district has reversed a domestic violence restraining order because the Los Angeles Superior Court bench officer who issued it improperly shifted the burden of proof to the defendant.
Justice Helen Bendix of Div. One wrote the opinion, filed Monday and not certified for publication. It upsets an order by then-Commissioner (now Judge) James E. Blancarte.
The order was sought by actress Amanda Franchini—a “cosplayer” (someone who dresses up in costumes)—against creative director Phuong “Fon” Davis. The two had lived together for three years but ended their relationship in 2017.
On the basis of her declaration, Blancarte was granted a temporary restraining order on Dec. 8 of that year, and set a hearing for Dec. 29 on whether a domestic violence restraining order (“DVRO”) should be issued. At that hearing, Blancarte merely asked Franchini if her declaration was “true, accurate and correct”; she said it was; the bench officer announced:
“The court accepts your written statements as your preliminary testimony in this case.”
Shifts Burden
He said that if Davis were not present, he would proceed to grant a DVRO, but given that he was in attendance, he would afford the defendant (who was in pro per) a chance to present his side. Blancarte observed that it was “clear” that “the burden of proof has shifted” to Davis who “now has the burden of proving by a preponderance of the evidence that I should not grant further restraining orders.”
Davis testified, and the then-commissioner—who received a “deathbed appointment” to a judgeship by outgoing-Gov. Jerry Brown on Dec. 14, 2018—declared that he accepted the defendant’s version of why he had asked Franchini for access to the non-public portion of her Facebook page. He vowed it was to avoid bumping into her, rather than to track her whereabouts, as Franchini alleged.
Blancarte rejected other factual assertions by Franchini, who did not testify. Bendix said that with the spurning of these allegations, what was left was the plaintiff’s statement which “consisted of a series of vague factual assertions and legal conclusions.”
Compounded Error
Franchini’s “conclusory statements, without specific facts in support of the conclusions, are not substantial evidence of abuse,” the jurist wrote, adding that Blancarte “compounded the error of finding this evidence sufficient by declaring the burden of proof had shifted to Davis.” She said:
“The law imposes no such burden on a party opposing a restraining order. It was incumbent on Franchini, as the party seeking the restraining order, to prove past abuse by a preponderance of the evidence.”
The case is Franchini v. Davis, B288976.
Santa Ana attorney Lisa R. McCall represented Davis on appeal. Franchini filed no brief.
Blancarte has suffered other reversals in the Court of Appeal for this district recently, in unpublished decisions, based on errors found to be of constitutional dimension.
Yesterday marked precisely one year since Div. One, in an opinion by Presiding Justice Frances Rothschild, reversed a DVRO issued by Blancarte in 2017. While initially denying the DVRO, he granted the order a few minutes later based on an allegation by the petitioner as to a confrontation that had just occurred in the courthouse hallway—with the respondent not being permitted to tell his side of the story.
The procedure, Rothschild said, defied due process.
Div. Seven, on June 24, 2017 reversed a DVRO because Blancarte refused to allow cross-examination of the accuser.
“Courts have long recognized the importance of cross-examination and its crucial relationship to the ability to defend against accusations, deeming it a due process right that is fundamental to a fair proceeding,” Justice Laurie Zelon of Div. Seven wrote, adding:
“Where, as here, a petitioner seeking a domestic violence restraining order has testified as to the incidents of abuse, the respondent has a due process right to cross-examine the witness with respect to those allegations.”
In a Jan. 30, 2019 opinion affirming in part and reversing in part orders by Blancarte, Rothschild declared that the judge abused his discretion by awarding a father joint legal custody “without applying the mandatory statutory presumption,” though a rebuttable one, against such an award to a party found to have committed domestic violence against the other person seeking custody.
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