Tuesday, July 14, 2020
Court of Appeal:
Anti-SLAPP Motion Does Not Lie to Request for Domestic Violence Restraining Order
By a MetNews Staff Writer
An anti-SLAPP motion does not lie to challenge a request under the Domestic Violence Restraining Act to extend a temporary restraining order, the Court of Appeal for this district held yesterday.
Justice Kenneth Yegan of Div. Six wrote the unpublished opinion, which affirms an order by Santa Barbara Superior Court Judge James F. Rigali denying an anti-SLAPP motion sought by Codie Davis in response to efforts by her husband, Richard Davis, to bar alleged harassment by her.
On appeal, the wife acknowledged that a special motion to strike, under Code of Civil Procedure §425.16, does not lie in response to the temporary restraining order (“TRO”) obtained against her ex parte, but is an appropriate response, she insisted, to the request for a domestic violence restraining order (“DVRO”).
Yegan responded that the request for a DVRO is “simply an ‘application,’” not amounting to a “ ‘cause of action’ under the anti-SLAPP statute as it is not a ‘claim’…, ‘action’…, ‘cross-complaint’ or ‘petition’…”
He clarified in a footnote:
“Codie’s anti-SLAPP motion was premature and could not be filed until the trial court set an order to show cause hearing to determine whether a preliminary injunction should issue. At that point in time, it becomes a ‘cause of action’ for purposes of section 426.16.”
Richard Davis contended the appeal was frivolous and sought sanctions. Yegan responded:
“Because this is a matter of first impression, we cannot say the appeal is frivolous. Codie has been provided a fair trial and appeal, and it has been contentious and costly for both sides.”
Quoting his own 1992 opinion in In re Marriage of Crook, Yegan said:
“Somewhere along the line, litigation must cease.”
The case is Davis v. Davis, B301564.
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