Monday, March 2, 2020
Court of Appeal:
Judge Was Reversed Earlier in Year for Same Error in Handling Request for Order Under Domestic Violence Prevention Act; Was a Court Commissioner at Time of Rulings
By a MetNews Staff Writer
Los Angeles Superior Court Judge James E. Blancarte has again been reversed by the Court of Appeal for this district in a family law matter for improperly placing the burden of proof on the defendant—the same error that caused the invalidation of an order by him in a case decided a few weeks earlier.
The latest reversal came Thursday in an unpublished opinion by Justice Anne H. Egerton of Div. Three. It capsizes a Nov. 26, 2018 domestic violence restraining order which Blancarte—at a time when he was still a court commissioner—granted to one stand-up comic against another.
Egerton wrote that Blancarte improperly shifted the burden of proof from Jennifer Curcio, the party seeking an order under the Domestic Violence Prevention Act (“DVPA”), to her former girlfriend, Julia Pels. Curcio alleged that Pels hit her in the head once in 2015, and placed the burden on Pels to show that it did not happen.
Blancarte also erred, Egerton said, in finding that a posting by Pels on her Facebook page, which could be seen only by persons to whom she had granted access, was a sufficient basis for the restraining order, and found that he had abused his discretion in lengthening the duration of the order by a year because he didn’t like an answer Pels gave.
Blow to Head
There was only one factual dispute. Curcio contended that in November of 2015, “I fell asleep, and I felt a blow to my head.”
Blancarte had granted a temporary restraining order against Pels on Nov. 2, 2018. At a hearing on Nov. 26 of that year, at which both parties were self-represented, the then-commissioner advised that “the granting of the TRO created a presumption that some type of abuse has occurred,” adding:
“It’s a rebuttable presumption which means that Ms. Pels may overcome and dissolve the presumption through her evidence.”
He announced that Pels had “the burden of proving by a preponderance of the evidence” that Curcio’s version of events is not accurate.
“But the law imposes no such burden on a party opposing a restraining order,” Egerton said. “As the party seeking the restraining order, Curcio was required to prove past abuse by a preponderance of the evidence.”
Pels asserted on her private Facebook page:
“JEN CURCIO (yes, i just outted my abuser) was SEVERELY AND DISTURBINGLY ABUSIVE TO ME in the six months we dated. she still abused ME EVEN AFTER i broke up with her.”
She went on to say:
“WHEN YOU BOOK HER ON YOUR SHOWS, BEFRIEND HER, PLAY ON IMPROV TEAMS WITH HER YOU, ARE ENABLING AN ABUSER. IT IS LIKE SUPPORTING A RAPIST, would you book a male comic rapist or abuser of any sort? LET US ALL STOP BEING HYPOCRITICAL AND BELIEVE ALL WOMEN, including me.”
Egerton said that “Courts of Appeal have found conduct involving communications such as text messages, email, and social media constitutes abuse under the DVPA for disturbing the petitioner’s peace,” but added that “Pels’s single, private Facebook post accusing Curcio of abusing her is a far cry from the conduct” described in those cases.
The jurist declared:
“The DVPA was not enacted to address all disputes between former couples, or to create an alternative forum for resolution of every dispute between such individuals. If Pels’s Facebook post is libelous, for example, Curcio may seek recourse through a defamation suit.
“Curcio understandably was upset by the social media post and it may have made her fear for her career, but we conclude it cannot be said to rise to the level of destruction of Curcio’s mental and emotional calm, sufficient to support the issuance of a domestic violence restraining order.”
Blancarte initially granted a two-year restraining order. After hearing comments by Pels, he added a year.
Pels told him:
“I have never been arrested or been a violent person. This is a manipulation of the court. I’m disappointed, but I respect you and I will respect your orders. Thank you.”
The bench officer engaged in a further dialogue with the defendant, then asked:
“Did you post that people should not book her? Yes or no?”
“No, it says when you book her. It does not say do not book her….
“There’s been no contact, no police reports, no restraining orders. She has no proof of any contact, your honor. I do not need to be restrained….”
Blancarte told Pels:
“You are running through rain drops, young lady. You want me to feel good about saying that you have nothing against me except allowing myself to be manipulated. I do not allow myself to be manipulated. When on the record you talk about people not booking her and not employing her, I asked you if that were true to see if you were willing to accept responsibility. Accepting responsibility in these conduct cases carries a lot of weight. You have done the exact opposite.
“Your order is now for three years for not accepting responsibility for the evidence that I have before me.”
“The record does not support the court’s finding. Pels admitted she had made the Facebook post. Her response to the court that she did not “post that people should not book her,” but posted, “when you book her,” is factually accurate. She also told the court, ‘1 respect your order.’ The court articulated no legal basis to add another year to the restraining order and abused its discretion by doing so.”
The case is Curcio v. Pels, B295293.
North Hollywood attorney Susan L. Ferguson represented Pels and Curcio was in pro per.
Here are summaries of other cases in which Blancarte was reversed this year and last year. All involved decisions he made as a commissioner, before becoming a deathbed appointee to the Superior Court by then-Gov. Jerry Brown on Dec. 14, 2018.
•Feb. 3, 2020: Div. One of this district’s Court of Appeal, in a case similar to the one decided on Thursday, reversed a domestic violence restraining order because Blancarte improperly shifted the burden of proof to the defendant. Justice Helen Bendix wrote:
“The law imposes no such burden on a party opposing a restraining order. It was incumbent on…the party seeking the restraining order, to prove past abuse by a preponderance of the evidence.”
•June 24, 2019: Div. Seven reversed an order Blancarte made under the DVPA based on a violation of the defendant’s right to due process, as well as a statutory violation. The defendant wanted to cross examine his accuser; Blancarte did not permit it.
As another witness was testifying, Blancarte “abruptly terminated the proceedings,” Justice Laurie Zelon recited; he declared he “had ‘heard enough,’ and was taking the matter under submission.”
Zelon said that because it is unknown what the plaintiff “would have said on cross-examination, or the effect such testimony might have had on the trial court’s decision, the error requires reversal.”
•Feb. 2, 2019: A restraining was reversed by Div. One because Blancarte, after first denying it, later heard a ruckus outside the courtroom; ordered that the parties be ushered in; heard the plaintiff’s unsworn version of what had just occurred and, refusing to hear from the defendant, imposed a restraining order.
Rothschild said the defendant “was denied a meaningful opportunity to be heard and, therefore, deprived of his right to due process.”
•Jan. 30, 2019: Div. Two, in a opinion by Justice Victoria Chavez, reversed a joint custody order. Blancarte found that the father had committed acts of domestic violence against the mother but, Chavez observed, there “is no indication in the record that the trial court applied the rebuttable presumption provided in [Family Code] section 3044 before issuing its custody order.” She said Blancarte abused his discretion in awarding joint custody “without applying the mandatory statutory presumption.” (The opinion affirmed a domestic violence restraining order against the father, finding that Blancarte did not err in not including one of the unmarried couple’s two children as a person protected by the order.)
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