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self-study / Constitutional Law

Self-incrimination and restraining orders in California

Stanley Mosk Courthouse

Dean Hansell

Judge, Los Angeles Court Superior Court

Northwestern University Pritzker School of Law, 1977

Pomona Courthouse South

Bryant Y. Yang

Judge , Los Angeles County Superior Court

UC Berkeley School of Law

Bryant is vice-chair of the Criminal Justice Section of the Los Angeles County Bar Association.

As explained in part one of this two-part series, California law permits a person to obtain a restraining order to prohibit unlawful conduct under certain circumstances. A person can seek protection from violence, threats of violence, and harassment under several civil statutes, including the Civil Harassment Restraining Order (CHRO) law, the Domestic Violence Prevention Act (DVPA), the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA), the Gun Violence Restraining Order (GVRO) law, and the Workplace Violence Safety Act (WVSA). A restraining order proceeding often occurs simultaneously with a criminal investigation or criminal case, presenting a dilemma for the retrained party because any statements by the restrained party in the civil case could be used against him or her in the criminal case.

To protect against criminal liability, the restrained party can invoke his or her privilege against self-incrimination under the Fifth Amendment. Part one of this article discussed case law examining whether the Fifth Amendment requires a stay of civil proceedings and specifically explored how the privilege affects proceedings under the CHRO law. Here in part two we will examine how the privilege against self-incrimination affects proceedings under the DVPA, the EADACPA, the GVRO law and the WVSA.

Domestic Violence Restraining Order Proceedings

There does not appear to be a published opinion on the use of the privilege against self-incrimination in a DVPA proceeding. In unpublished opinions, the 4th and 5th District Courts of Appeals have held that a civil defendant's assertion of his Fifth Amendment privilege against self-incrimination did not compel the trial court to delay the hearing for the domestic violence restraining order. Manzula v. Kelly, F067196 (Cal. App. 4th Dist., Apr. 22, 2014); Tanya K. v. Christopher M., G054625 (Cal. App. 6th Dist., Oct. 17, 2018).

For example, in Manzula, the plaintiff requested a domestic violence restraining order against her ex-fiancé defendant. The court entered a temporary restraining order and set the matter for hearing, which was then continued. Before the continued hearing date, the defendant filed a motion to continue until the related criminal proceedings were resolved in order for him to preserve his Fifth Amendment privileges. The trial court denied the motion and granted a five-year restraining order after the defendant presented no evidence at the continued hearing.

On appeal, the 5th District concluded that the trial court did not abuse its discretion in denying the additional continuance. It concluded that, because defense counsel was able to cross-examine the plaintiff and her witnesses, the record did not show substantial injustice. It further determined that the DVPA required the hearing on the petition to occur promptly within 21 days or, if good cause appeared, within 25 days; as such, the plaintiff had "an interest in expediting the restraining order process and obtaining resolution both to avoid further contact with [the defendant] necessitated by additional court appearances and to put the matter behind her." The Court of Appeal then distinguished Pacers, Inc., v. Superior Court, 162 Cal. App. 3d 686 (1984) (discussed more in-depth in part one of this article), concluding that a proceeding under the DVPA "is different than a civil tort action" because "the hearing on the restraining order did not put [the defendant]'s worldly goods at risk ... [and the purpose] of the DVPA proceedings was not to punish [the defendant], but to prevent future domestic abuse and to put separation between the parties." Lastly, it noted that additional continuances to a date uncertain would not have been an efficient use of judicial resources. See also Tanya K. (affirming trial court's decision to deny a continuance based on the privilege against self-incrimination because the respondent's interest in an open-ended continuance was outweighed by the petitioner's interest in protecting the safety of her child and concluding that the respondent was not unavailable witness).

Elder Abuse and Dependent Adult Restraining Order Proceedings

No court of appeal has addressed in a published opinion the effects of asserting the Fifth Amendment privilege against self-incrimination in EADACPA proceedings. In an unpublished opinion in La Baw v. Campbell, E043366 (Cal. App. 4th Dist., Feb. 11, 2009), the 4th District Court of Appeal affirmed the trial court's denial of a request to stay although the defendant was facing a parallel, federal criminal case. In La Baw, a 79-year-old woman sold her and her husband's farm to a buyer and agreed to have money deposited into a trust account managed by the defendant. Rather than a lump sum, the sellers were to receive monthly payments. When those payments stopped, the seller sued the buyer and manager alleging a number of causes of action, including financial elder abuse and elder abuse. Prior to trial, the defendant manager filed a motion to stay, informing the trial court that he was facing a federal indictment for conspiracy and wire fraud. Although the seller was not part of the criminal proceedings, the defendant alleged that the civil and criminal cases overlapped as to material facts and defenses. The trial court denied the motion, requiring the defendant to exercise his privilege against self-incrimination at trial.

On appeal, the 4th District held that the trial court did not err by refusing to stay the civil trial until resolution of the federal criminal case. It concluded that the defendant failed to show that the criminal and civil proceedings were related because the plaintiff was not named in the criminal action and the transactions were different. Moreover, the Court of Appeal determined that the delay could have been for years because the indictment had only recently been filed. The appellate court also found persuasive the fact that the defendant had already testified at a deposition, that the trial court properly considered the efficient management of its dockets, and the plaintiff's advance age weighed against a stay of the civil proceedings.

Gun Violence and Work Violence Restraining Order Proceedings

There does not appear to be any decision by the courts of appeal considering the exercise of the Fifth Amendment privilege against self-incrimination in GVRO or WVSA proceedings. Based on the above case law for CHRO law, DVPA and EADACPA proceedings, a trial court likely would not abuse its discretion if it declined to stay the GVRO and WVSA proceedings and required the civil defendant to decide whether to assert the privilege, even if doing so may limit the defendant's ability to put on a defense. Like the CHRO law, the DVPA, and the EADACPA, the GVRO and WVSA statute expressly requires that a hearing on the petition be held within 21 days after the date on the temporary restraining order and that the hearing on the petition may be continued only upon a showing of good cause. CCP Sections 527.8(h), 18170, 18195. Therefore, a petitioner has a statutorily recognized interest in expediting the restraining order process and obtaining a speedy resolution. Moreover, like an action under the DVPA and unlike a civil tort action, the GVRO petitioner is not seeking a substantial amount of property through the judicial process or to punish the defendant. Rather, the petitioner seeks to prevent future violence or threats of violence through a restraining order after a hearing. See id. Sections 527.8(w), 18108. It would also likely be an inefficient use of limited judicial resources to continue the GVRO or WVSA proceeding until the criminal action concluded or the statute of limitations ran.

Depending on the circumstances, however, a trial court likely would not abuse its discretion if -- after a particularized inquiry into the claim of Fifth Amendment privilege and the competing interests involved in the case -- it granted a stay of the proceedings or a continuance. A trial court has substantial discretion in balancing the tension between constitutional rights, which may require a stay or a continuance. Moreover, in practical terms, a stay or continuance of the GVRO or WVSA hearing would keep in place the temporary restraining order.

Conclusion

In CHRO, DVPA, EADACPA, GVRO and WVSA proceedings, a trial court would likely not abuse its discretion if, after conducting a particularized inquiry into the claim of Fifth Amendment privilege and the competing interests involved in the case, it denied a request for a stay or continuance of the proceedings and required the civil defendant to decide whether to assert the privilege and incur civil sanctions. Factors that the trial court may want to consider in the particularized inquiry include:

1. The extent to which the defendant's rights are implicated (e.g., do the civil and criminal cases actually overlap, what are the questions, would the questions elicit answers that support a conviction or furnish a link in the chain of evidence needed to prosecute?);

2. The plaintiff's interest in proceeding expeditiously and the potential for prejudice to the plaintiff if a delay was granted (e.g., re-victimization, lost records, age of the plaintiff, potential impact on children, and memory loss);

3. The burden on the defendant;

4. The efficient use of judicial resources;

5. The interest of the public in the pending civil and criminal litigation (including whether the civil statute contains an expressed or implied interest in a speedy trial);

6. How many other continuances have been previously granted and the length of the delay; and

7. Whether the temporary restraining order, if any, has been effective;

After the trial court makes this particularized inquiry, it could accommodate the competing interests through various options, such as staying the civil proceeding, continuing the restraining order hearing for a reasonable period, allowing the civil defendant to invoke the privilege and proceeding with the restraining order, conferring immunity on the defendant, or prohibiting the defendant from using the privilege during discovery and subsequently waiving the privilege at a later proceeding. 

#892

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