Akilov v. Rosenblum
Filed 8/8/12 Akilov v. Rosenblum CA1/3
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
THREE
OLGA
AKILOV,
Plaintiff and Appellant,
v.
VLADIMIR
LEO ROSENBLUM,
Defendant and Respondent.
A134628
(City & County of San
Francisco
Super. Ct.
No. FDV-11-808927)
Olga
Akilov, who has been protected by a series of
husband, Vladimir Leo Rosenblum, appeals the entry of an order directing her to
stay away from him. We find in the record no justification for such an order
against her. Moreover, the order purports to be “a non-CLETS Stay-Away Order”
for which there is no authority. We shall therefore reverse the order.
Akilov
and Rosenblum were married in July 2006. Akilov filed a petition to dissolve
the marriage in 2008 and their divorce became final in April 2011. Based on
physical beatings and other acts of abuse, in October 2007 Akilov obtained in
the Sonoma County Superior Court a five-year restraining order against
Rosenblum, pursuant to the Domestic Violence Prevention Act, Family Code section
6200 et seq. The record before us on the present appeal does not contain a
clear record of other proceedings, but it appears that in November 2008
Rosenblum was convicted of a criminal
offense in connection with his treatment of Akilov, was jailed at some
point for failure to have appeared when ordered to do so, and was placed on
probation conditioned on compliance with an additional stay-away order. For
sending threatening emails to Akilov’s daughter that were directed to Akilov in
violation of the outstanding protective orders, the Sonoma County court on
January 28, 2011, issued a “Criminal Protective Order—Domestic Violence”
against Rosenblum, pursuant to Penal Code sections 136.2 and 1203.97. This
order directed Rosenblum to stay away from Akilov for an additional three
years. On July 29, 2011,
the San Francisco Superior Court issued another criminal protective order
against Rosenblum based on additional communications from him in violation of
the outstanding protective orders.
On
September 27, 2011, Akilov
filed an application for a renewed protective order in the Superior Court in San
Francisco, where she then resided. Rosenblum filed an
answer accusing Akilov of repeatedly lying about his conduct and asserting that
“in reality I am the one who needs a protection from Olga Akilov.” On October
19, however, the San Francisco Superior Court issued a permanent renewal of the
restraining order against Rosenblum. Rosenblum filed a notice of appeal from
this order, but the appeal was subsequently dismissed for Rosenblum’s failure
to prosecute the appeal (No. A133664, April
25, 2012).
Rosenblum
filed his application for the order that is the subject of the present appeal
on November 2, 2011. This
application, filed under the Domestic Violence Prevention Act, alleges that
Akilov had acted inconsistently with the protective orders she had obtained
against him by having contacted him about returning certain “belong[ings] and
money,” and that her false accusations had caused his prior arrest and jailing.
Akilov filed an answer, detailing her responses to Rosenblum’s allegations and
reciting her version of events over the past five years. At the hearing on the
application, the court did no more than have the parties confirm under oath the
truth of the statements contained in their papers, and indicate that they had
no corrections to make to their papers. The court then stated, “I am going to
make a finding today, it is not a domestic violence incident. There will be a
no harassment order that’s made and stay away 25 yards. So no communication
with Mr. Rosenblum.” When Akilov’s counsel objected, the court reiterated,
“It’s a one year no harassment stay-away order from him. That’s the order.”
“Make sure it [is] clear that this is not a domestic violence finding. It’s no
harassment only.” The written order, dated December 7, 2011, states: “The court
ordered a non-CLETS Stay-Away Order protecting Vladimir Leo Rosenblum from Olga
Akilov” and provides that for one year Akilov “must not harass, attack, strike,
threaten, assault (sexually or otherwise), hit, follow, stalk, molest, destroy
personal property, disturb the peace, keep under surveillance, or block
movements of Vladimir Leo Rosenblum,” “must not contact (either directly or indirectly),
telephone, or send messages or mail or e-mail, or take any action, directly or
through others, to get the addresses or locations of any protected persons or
of their family members, caretakers, or guardians,” and “must stay at least 25
yards away from Vladimir Leo Rosenblum, . . . his home, workplace and
vehicle.”
Akilov
has timely appealed from the December
7, 2011 order, and has properly perfected her appeal. Rosenblum has
failed to file a respondent’s brief.
Although
Rosenblum’s application was made under the Domestic Violence Prevention Act,
Family Code section 6200 et seq., the trial court correctly recognized that
Rosenblum’s showing was insufficient to justify an order against Akilov under
that act. Even assuming the truth of Rosenblum’s assertions, Akilov did not
engage in abuse as defined in Family Code section 6203, nor in behavior that
can be enjoined pursuant to Family Code section 6320. (See, e.g.,
1249, 1266.) The trial court made clear that it did not find a “domestic
violence incident.” Instead, the trial court apparently considered its order to
be issued pursuant to Code of Civil Procedure section 527.6, subdivision
(b)(3), which authorizes temporary restraining orders and injunctions
prohibiting harassment, defined as “unlawful violence, a credible threat of
violence, or a knowing and willful course of conduct directed at a specific
person that seriously alarms, annoys, or harasses the person, and that serves
no legitimate purpose. The course of conduct must be such as would cause a
reasonable person to suffer substantial emotional distress, and must actually
cause substantial emotional distress to the petitioner.”
The
court’s order cannot stand for several reasons. Rosenblum’s evidence no more
showed harassment as defined in Code of Civil Procedure section 527.6 than
it showed abuse as defined in Family Code section 6203. Moreover, while the
court found no domestic violence, the language of its order largely tracks the
language of Family Code section 6320, which authorizes an injunction against
“molesting, attacking, striking, stalking, threatening, sexually assaulting,
battering, harassing, telephoning, including, but not limited to, annoying
telephone calls as described in Section 653m of the Penal Code, destroying
personal property, contacting, either directly or indirectly, by mail or
otherwise, coming within a specified distance of, or disturbing the peace of
the other party.” Having found no abuse within the meaning of the Family Code
provisions, there was no basis for the injunction that the court entered.
Since
Akilov’s attorney represented to the court that Akilov in all events intended
to stay away from Rosenblum, the court may well have believed that no harm
would result from an order compelling her to do so – in effect placing the two
parties under mutual protective orders. But mutual protective orders are not
justified unless there is evidence and a finding of abuse by both parties.
(Fam. Code, § 6305 [“The court may not issue a mutual order enjoining the
parties from specific acts of abuse described in Section 6320 (a) unless
. . . each party presents written evidence of abuse or domestic
violence and (b) the court makes detailed findings of fact indicating both
parties acted primarily as aggressors and that neither party acted primarily in
self-defense”]; Monterroso v. Moran (2006)
135 Cal.App.4th 732, 736 [“A trial court has no statutory power to issue a
mutual order enjoining parties from specific acts of abuse described in section
6320 without the required findings of fact.”].)
There is growing recognition that entering a protective order against an
innocent party who has been the victim of abuse can, indeed, be harmful. (See,
e.g., id. at p. 738; Judicial Council
of Cal., Advisory Com. on Gender Bias in the Courts, Achieving Equal Justice
for Women and Men in the California
Courts, Final Report (July 1996) [the committee “received convincing testimony
that victims of domestic violence who have not engaged in an act of violence
are confused, humiliated, and degraded by orders restraining them from such
conduct”]
Topliffe, Why Civil Protection Orders Are
Effective Remedies for Domestic Violence But Mutual Protective Orders Are Not
(1992) 67 Ind. L.J. 1039, 1060-1061 [“The issuance of a mutual order can
reinforce the batterer’s belief that the problem is not his but is the result
of external factors. He could easily understand a mutual protection order to
mean that the court blames the victim as much as the batterer. [¶] Furthermore, the victim herself can
recognize this implicit message.”].)
There
is a further reason the court’s order is improper. The court designated its
order as a “non-CLETS Stay-Away Order,” apparently under the impression that a
protective order issued pursuant to Code of Civil Procedure section 527.6
need not be reported to the Department of Justice through the California Law
Enforcement Telecommunications System (CLETS), as Family Code section 6380
requires the court to do when entering a protective order under the Family
Code. However, that is not so. Section 6380, subdivision (b) requires the court
to report to the Department of Justice protective orders issued pursuant to
numerous provisions other than those in the Family Code, including Code of Civil
Procedure section 527.6. There is thus no authority for the issuance of a
“non-CLETS” stay-away order and the order which purports to be such must be set
aside.
Disposition
The
December 7, 2011 order is
reversed.
_________________________
Pollak,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.
CLETS stands for the California Law Enforcement Telecommunications System.
Rosenblum did file a request for oral argument, which was denied because of his
failure to have filed a brief in compliance with California Rules of Court,
rule 8.200(a)(2). Akilov waived oral argument.
