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Court of Appeal:

DVRO Improper Without Finding of Future-Harm Likelihood

By a MetNews Staff Writer

An order requiring that one former cohabitant stay clear of the other was fatally infirm because it was based only on the restrained person’s past conduct with no reference to the likelihood of any repetition of abusive acts, Div. Two of the First District Court of Appeal has declared.

Justice James Richman authored the unpublished opinion, filed Monday. It reverses a mutual one-year domestic violence restraining order (“DVRO”) imposed by Marin Superior Court Judge Mark Talamantes both on the appellant, Ron Storn, and his former fiancée, respondent Debra Wade Carney.

Explaining why the appeal by Storn is being decided notwithstanding the order having expired on Dec. 7, Richman said:

“One recognized principle is that an appeal from an expired restraining order is not moot if it could have collateral consequences in the future….

“As to what these consequences could be, they could include being prohibited from possessing firearms….”

Requisite Findings Missing

The mutual DVRO must be reversed, Richman said, because Talamantes failed to make the “detailed” factual findings that Family Code §6205 requires—and, in particular, did not make reference to the prospect of future domestic violence. He wrote:

“As we read the statutory scheme, there are two explicit statutory purposes enshrined directly in the Act, both referencing the future. Put otherwise, while past acts of abuse ‘may’ form an adequate evidentiary basis on which to issue a domestic violence restraining order, the purpose of such an order is still entirely prospective….”

He made note of Family Code §5220 which states that “[t]he purpose… is to prevent acts of domestic violence” and “abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence.”

Richman continued:

“One can read the trial court’s three-page decision and not find anything that talks about the future. This is perhaps not surprising for, as best we surmise, except for the time(s) that Carney and Storn must be in each other s presence in connection with the ongoing civil case, we see no other factor that would cause there to be any future interaction between them—no children issues, no neighbor issues, no continuing relationship, no nothing—not to mention they live in different cities. In light of all this, we wonder if the restraining orders should have issued at all. In any event, they were error.”

Two Cases

The mutual DVRO was in response both to the case brought by Carney and one initiated by Storn. The two cases were tried together.

In each case, the judge ordered that Carney return the artwork she took from the house that she and Storn had jointly occupied during their romantic, although often stormy, relationship, and that Storn pay her $200,000 for her interest in the property, which was in both their names. The judge also imposed a “property restraint” in both cases which forbade the respective defendant to “transfer, borrow against, sell, hide, get rid of or destroy any property, including animals, except in the usual course of business or for necessities of life” pending resolution of ownership.

Storn appealed from the order in both cases, and both orders were reversed in full.

Storn’s Contention

Storn argued in his opening brief on appeal, with respect to the order that he pay Carney $200,000:

“While the Domestic Violence Protection Act confers on the Court broad powers to address domestic violence, there is simply no statutory authority that vests the Court with jurisdiction to make such an order.”

He went on to say:

“Given that an order requiring Storn to pay Carney $200,000 for temporary possession, use and control of the artwork was not authorized by statutory authority and therefore exceeded the jurisdiction of the Court, it was an abuse of discretion for the trial Court to grant such relief.

Richman did not address that assertion, but did he remark in a footnote, as to the property restraint:

“Storn argues that the ‘Property Restraint’ was error. While we need not reach the argument in light of our disposition here, we note that such restraint was manifestly wrong.

“To begin with, Storn did not even request a property restraint. Carney did, but it was in obvious disregard of the instructions in section 20 of the request, which states that such section is to be checked ‘only if you are married or a registered domestic partner.’ She was neither.”

He continued:

“Indeed, the statutory basis for such a property restraint is [Family Code] section 6325, which states, ‘The court may issue an ex parte order restraining a married person from specified acts in relation to community, quasi-community, and separate property….’ In short, section 6325 allows property restraint orders to be issued only against individuals who are married or registered domestic partners.”

Talamantes’s Conduct

Among the matters testified to by Storn was that Carney on one occasion slapped him across the face with the back of her hand, with a large engagement ring protruding from one finger. In a footnote, Richman quoted Talamantes—who, in law practice, primarily represented low-income workers—as interjecting:

“”Oh, this case makes me so uncomfortable. This is just privilege and entitlement. Driving a Mercedes with a three-carat ring. Bought $400,000 worth of jewelry. She took $35,000 of furniture. What are we doing here?”

A few moments later, he queried of Storn:

“Did she scar you with her big ring in your bucket seats?”

He added:

“I don’t mean to be demeaning, but I’m very frustrated with this case. Next question, please.”

Signaling that Talamantes might draw the attention of the Commission on Judicial Performance, Richman said:

“These comments, and various others, indicate that this particular trial court Judge is well advised to review the Code of Judicial Ethics, particularly Canon 3B(5), which provides as follows: “A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, engage in speech, gestures, or other conduct that would reasonably be perceived as (a) bias, prejudice, or harassment, including but not limited to bias, prejudice, or harassment based upon…marital status, socioeconomic status...or sexual harassment.”

The case is Storn v. Carney, A169723.