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self-study / Family Law

Feb. 15, 2022

DVRO hearings vs. Fifth Amendment

Stanley Mosk Courthouse

Scott J. Nord

Judge, Los Angeles County Superior Court

Whittier College School of Law

All litigants must have their day in court through a full and fair hearing. To ensure justice is done, each party should be afforded the right to present all evidence in both the prosecution of their case and defense of any allegations made against them with equal zealousness. But what happens in a Domestic Violence Restraining Order proceeding if a pending or potential parallel criminal investigation or case arising from the same incident causes a party to choose not to testify? Did the respondent truly have their day in court? Is the hearing full and fair? What about the victim's day in court and the effect that continuances have on their physical and mental wellbeing?


Consider this hypothetical: X and Y have been dating for four years and have one minor child, age 3. Before the birth of their child, X and Y were both known by friends and family members to drink alcohol excessively. However, after the birth of their child, X and Y both pledged to stop drinking. Unfortunately, X recently began drinking excessively again, causing problems in their relationship. Two weeks ago, X came home highly intoxicated and demanded to take the minor child to the park. Y refused to allow X to take the child as it required X to drive the child in an intoxicated condition. X began slamming doors, throwing objects around their apartment, and yelling and screaming that nobody would prevent X from being with their child. Y tried to leave with the minor child, but X blocked the door. When Y attempted to call the police, X grabbed the phone and smashed it on the floor. Y was scratched across the face, arm and hands in the scramble over the phone. Because of the yelling and screaming, a neighbor came over to investigate. X fled out the door. Y called the police, and X was arrested a few blocks away for domestic violence and DUI.

Y applied for and was granted a temporary DVRO. At the initial hearing, 21 days after the temporary DVRO issued, X asked for and was granted a continuance as a matter of right to respond to the petition and obtain counsel. At the next hearing, X asks for another continuance because he states the police have contacted him about the incident. Y objects. Over Y's objection, the court grants an additional continuance. At the next hearing, X's counsel asks for a six-month delay of the proceedings because of a pending criminal case arising out of the same domestic violence incident. X's counsel states going forward would require X to waive his Fifth Amendment rights, which could harm him in the criminal matter. Y again objects. Y states that each continuance requires her to keep taking time off from work, and she cannot financially afford to do so. She also has to arrange a ride to the courthouse because she does not drive.

Should the court grant X's second request for a continuance?

A right to a continuance

Family Code Section 245(a) provides that "(a) [t]he respondent shall be entitled, as a matter of course, to one continuance for a reasonable period, to respond to the petition." As these matters are set on a short notice of 21 days (Family Code Section 242(a)), a full and fair hearing may not result if a responding party is not allowed time to prepare.

In our hypothetical, however, X had already been provided his statutory continuance. X's second request was based on a pending criminal investigation, and X's third request is based on an active criminal case.

Section 245(b) provides that, "[e]ither party may request a continuance of the hearing, which the court shall grant on a showing of good cause. A The request may be made in writing before or at the hearing or orally at the hearing. The court may also grant a continuance on its own motion." California Rules of Court, Rule 3.1332(a) states: "[t]o ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain."

Rule 3.1332(d) states, "[i]n ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination. Valid grounds for a continuance under Rule 3.1332(c) include: "(2) Whether there was any previous continuance, extension of time ... ; (3) The length of the continuance requested; (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) Any other fact or circumstance relevant to the fair determination of the motion or application."

The decision of whether to grant or deny a continuance is committed to the trial court's sound discretion and is reviewed for abuse of discretion. Lazarus v. Titmus, 64 Cal. App. 4th 1242, 1249 (1998).

Does the invocation of the Fifth Amendment in the family law case with a pending criminal case arising out of the same facts demonstrate "good cause"?

A brief history of the Fifth Amendment

The Fifth Amendment to the U.S. Constitution states: "No person ... shall be compelled in any criminal case to be a witness against himself." The source of the self-incrimination clause was the maxim nemo tenetur seipsum accusare, that no man has to accuse himself. The maxim is but one aspect of two different systems of law enforcement that competed in England for acceptance: the accusatorial and the inquisitorial. In the accusatorial system, our current form of criminal justice, the alleged wrongdoers examined others to determine the facts. The inquisitorial system, which developed in the ecclesiastical courts, compelled the alleged wrongdoer to affirm his culpability by using the oath ex officio (in-law). The abuses by ecclesiastical courts using oath ex officio led to the general acceptance of the principle that a person could not be required to accuse himself under oath.

Is silence the Golden Rule?

Where a defendant's silence is constitutionally guaranteed, how should the family court weigh the parties' competing interests to accommodate the interests of both parties, if possible? The Fifth Amendment protects a person from being forced to be a witness against themselves in a criminal action. Thus, a person can invoke the Fifth Amendment to prevent the disclosure of information they "reasonably believe could tend to incriminate them or subject them to criminal prosecution." A&M Records, Inc. v. Heilman, 75 Cal. App. 3d 554, 566 (1977); see also Warford v. Medeiros, 160 Cal. App. 3d 1035, 1045 (1984).

A self-incriminating response is one that "would elicit answers that 'support a conviction' or that 'furnish a link in the chain of evidence needed to prosecute the witness' [Citation omitted] and which may thus be subject to constitutional protection." Fuller v. Superior Court, 87 Cal. App. 4th 299, 308 (2001) (quoting Blackburn v. Superior Court, 21 Cal. App. 4th 414, 428 (1993)). If it is "not evident from the circumstances that the questions call for incriminating information, the court must require an explanation as to why and how the answers might be incriminating." Blackburn, 21 Cal.App.4th at 429. If the court finds the answers might be incriminating, then the privilege applies.

In People v. Coleman, 13 Cal. 3d 867, 884-85 (1975), the court stated that "it seems fairly clear that one liable to criminal prosecution who undertakes himself to litigate related issues as a plaintiff in a civil suit, is entitled to no relief from the peril of self-incrimination. More troublesome is the plight of a defendant in a criminal prosecution who must also defend against civil proceedings involving the same facts. The defendant may well be required to make incriminating admissions if he is to have a meaningful chance of avoiding the loss through the judicial process of a substantial amount of property. Some courts have been sympathetic to such a situation and have stayed the civil proceedings until disposition of the related criminal prosecution. Other courts have refused to go beyond allowing civil defendants to refuse to answer particular questions propounded in the course of discovery by expressly invoking their privilege against self-incrimination."

The Coleman court continued that, "[t]here may be cases where the requirement that a criminal defendant participate in a civil action, at peril of being denied some portion of his worldly goods, violates concepts of elementary fairness in view of the defendant's position in an inter-related criminal prosecution. On the other hand, the fact that a man is indicted cannot give him a blank check to block all civil litigation on the same or related underlying subject matter. Justice is meted out in both civil and criminal litigation. The overall interest of the courts that justice be done may very well require that the compensation and remedy due a civil plaintiff should not be delayed (and possibly denied). The court, in its sound discretion, must assess and balance the nature and substantiality of the injustices claimed on either side." Id. at 884-85; see also Avant! Corp. v. Superior Court, 79 Cal. App. 4th 876, 882 (2000).

In Pacers, Inc. v. Superior Court, 162 Cal. App. 3d 686, 690 (1984), the court stated that the federal practice has "consistently held that when both civil and criminal proceedings arise out of the same or related transactions, an objecting party is generally entitled to a stay of discovery in the civil action until disposition of the criminal matter." The court continued that "the rationale of the federal cases is based on Fifth Amendment principles as well as the inherent unfairness of compelling disclosure of a criminal defendant's evidence and defenses before trial. Under these circumstances, the prosecution should not be able to obtain, through the medium of the civil proceedings, information to which it was not entitled under the criminal discovery rules. Here, although petitioners are not criminal defendants, they are nevertheless threatened with criminal prosecution. To allow the prosecutors to monitor the civil proceedings hoping to obtain incriminating testimony from petitioners through civil discovery would not only undermine the Fifth Amendment privilege but would also violate concepts of fundamental fairness."

In Coleman, the issue before the court was a criminal defendant's ability to testify at a probation revocation hearing on the same facts being used to prosecute a probation violation. The court ruled that the testimony in one proceeding could not be used against the probationer in another proceeding except under certain circumstances, thus allowing the probationer to testify in one hearing without fear his testimony would be harmful in a subsequent proceeding. Coleman, 13 Cal. 3d at 889. In Pacers and Avant!, the issues revolved around civil litigation discovery and discovery responses which the civil defendants were concerned would be used against them in possible criminal prosecution. The courts stayed the civil proceedings finding that the defendants' constitutional rights outweighed the need for discovery responses.

However, DVRO proceedings are different in many respects. Section 242(a) provides a short hearing date "within 21 days, or, if good cause appears to the court, 25 days from the date that a temporary restraining order is granted or denied." Further, Section 244(a) provides that the hearing is to be given "precedence over all other matters on calendar." And Section 244(b) states, "the hearing shall be set for trial at the earliest possible date and shall take precedence over all other matters."

This court calendar preference recognizes that immediate resolution of these matters is necessary for the victim, the abuser, and all involved parties. A DVRO is not punitive but instead exists to ensure the victim's protection and ensure that the ongoing conduct is immediately stopped and prevented from occurring in the future. Additionally, there is generally no discovery undertaken in these cases (except for an informal exchange of information before the hearing). The court can issue a protective order based solely on an affidavit, with or without testimony Family Code Section 6300(a). A temporary DVRO may be issued without notice to the other party. Section 6300(b). In these expedited proceedings, the court has the authority to make custody and visitation orders (Section 6323), support orders (Section 6341), residence exclusions (Section 6321), order the abuser to attend batterer's program (Section 6343), award attorney fees and costs (Section 6344), and enjoining any other specified behavior (Section 6322).

Do multiple continuances harm the victim?

It is well understood that domestic violence abusers often use the legal proceedings as a means to continue to abuse, harass, intimidate and threaten the victim. The weaponization of court proceedings provides a "legal" means for an abuser to continue to exercise control over a victim even after the relationship has ended. Vindictive actions taken by domestic violence abusers include seeking multiple delays or continuances of proceedings; switching attorneys; filing, serving and then dismissing pleadings (or in the alternative filing documents without legal basis); giving ex parte notice of hearings but then not appearing; or intentionally, and repeatedly, failing to follow court orders for custody, visitation and child/spousal support obligations as a means to continue to show dominance in the relationship. At court, the abuser will sit near the victim; sit in locations the victim must pass to enter or exit the courtroom; or follow a victim after they leave the proceedings.

It could be argued that the victim may be better served by the court granting one long continuance rather than multiple short continuances to avoid both the above issues and those raised by Y, to wit: loss of income/worktime and transportation-related problems. Further, Family Code Section 245(c) states, "[i]f the court grants a continuance, any temporary restraining order that has been issued shall remain in effect until the end of the continued hearing, unless otherwise ordered by the court. In granting a continuance, the court may modify or terminate a temporary restraining order." As such, the victim remains protected for a more extended period without fear or the need to come to court as often.

The countervailing argument is that both the victim and the abuser are entitled to finality. So long as the issue remains open, neither the victim nor the abuser can definitively move forward with their personal, emotional, or mental wellbeing.

Should X be entitled to another continuance?

The best analogy for the competing interests in these situations is a square -- all equal in their angles. There are four competing interests in cases of this type: constitutional, finality, protection and fairness. Any change to any of the four corners and the angles are no longer equal, the square becomes more like a parallelogram. Each angle being stretched to accommodate the needs of the other angles with no clear winner easily discernable.

In People ex rel. Harris v. Rizzo, 214 Cal. App. 4th 921, 952 (2013), the court stated that "the determination whether to stay an action pending resolution of criminal proceedings should be made in light of the particular circumstances and competing interests involved. [Citation.] The decisionmaker should consider the extent to which Fifth Amendment rights are implicated. In addition, factors to be considered include: (1) the interest of the party opposing the stay in proceeding expeditiously with the action, and the potential prejudice to the party opposing the stay of a delay; (2) the burden which any particular aspect of the proceedings may impose on the party seeking the stay; (3) the convenience to the court in management of its cases and the efficient use of judicial resources; (4) the interests of persons not parties to the civil litigation; and (5) the interest of the public in the pending cases."

In weighing these factors, is X entitled to a continuance? It depends. 

Author's note: Thanks to my friend and colleague Judge Wendy Chang for sharing her research on this topic and for editing all of my articles. You will be missed in the AV.


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