Lewis v. Dack
Filed 5/21/13 Lewis v. Dack CA1/1
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opinion has not been certified for publication or ordered published for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
ONE
SARAH LEWIS,
Plaintiff and Respondent,
v.
JAMES RAY
DACK,
Defendant and Appellant.
A134744
(San
Francisco City
& County
Super. Ct.
No. FDV-11-808657)
Plaintiff Sarah
Lewis, aka “Amy Heart,†was a $500 an hour “escort†in her early twenties. She met defendant James Ray Dack, a man
approximately twice her age, who was going through a divorce. They spent some time together socially for
approximately one month. A considerable
portion of this social interaction involved defendant giving plaintiff money
for her time and physical attentions.
Then defendant allegedly lured plaintiff to a hotel room and assaulted
her. Plaintiff invoked the
Act) (Fam. Code, § 6200 et seq.)
and obtained a five-year domestic violence “stay-away†restraining order
against defendant. On appeal, defendant
contends the family court did not have jurisdiction to issue the restraining
order because plaintiff did not belong to one of the categories of protected
persons under the Act. Defendant argues
the two were not in a “dating relationship,†as defined by section 6210. We agree and reverse.
FACTS
When
her application for a restraining order came on for hearing, December 8, 2011, plaintiff was 24
years old. She testified she worked as
an escort for a living and also did photo shoots for a bikini company.
Plaintiff met
defendant in a hotel bar toward the end of April 2011. He bought her a drink and gave her his
business card.
Plaintiff
texted defendant the next day or “soon after,†and defendant invited plaintiff
to dinner at a sushi restaurant. After
dinner, they went to a nightclub and danced.
Defendant wanted to go to a motel room, but plaintiff was not interested
and told him so. She also told defendant
she “was [an] escort for a living.â€
Defendant dropped plaintiff off at her apartment.
Defendant
texted her the next day and asked her to meet him for lunch. His interest seemed to her to be
romantic. Plaintiff again told defendant
she was an escort. Defendant invited her
to a Giants game on May 6, 2011
at AT&T Park. They attended the game and walked back to
plaintiff’s apartment, which was near the ballpark. They “ma[de] out,†but did not have sex.
Defendant
texted plaintiff about meeting him to watch a boxing match on pay-per-view at
“The Parlor.†She responded, her “timeâ€
was “valuable,†and her “work is [her] priority.†Defendant offered plaintiff $1,000 to meet
him at The Parlor and give him a big kiss.
She did, but defendant was not satisfied with the kiss. They then went to The Gold Club, a strip
club, but they did not have sex that night.
On
“if he wanted [her] undivided attention,†and for her to “make him a priority,â€
“there would . . . have to be some kind of financial
arrangement.†She also told him she
“didn’t do boyfriends†because she did not have time and was “putting all [her]
energy into [her] regulars.†At some
point, she referred to her charges as $500 an hour or $3,000 a day.
In response to
this, or some other message referring to her “regulars,†defendant responded,
“fuck boyfriend action. We are on the
same page.†Plaintiff understood that to
mean defendant “wanted to have a no strings attached relationship beyond just
the transactional meet at a hotel room.
But . . . not a traditional boyfriend/girlfriend
relationship.†But confusingly,
plaintiff also testified defendant was not to be paying her for sex, but to be
spending time with him as “[h]is arm candy.â€
A
week later, defendant offered plaintiff another $1,000 and a promissory note
for some stock in exchange for another kiss.
She met him in The Gold Club and kissed him. Defendant gave her $1,000 in an envelope, and
a card that said “Congratulations. You
are a stockholder,†and three wool scarves.
The two then went to plaintiff’s apartment where they had brief,
protected sexual intercourse. They
stopped because defendant did not want to use a condom, but plaintiff did.
The
next day, plaintiff told defendant to stop calling her. Defendant reinitiated contact. Plaintiff told him she “didn’t want anything
to do with him.†Defendant delivered
flowers, lingerie and cards to her apartment building. Plaintiff asked defendant to stop texting her.
On
May 13, 2011, defendant gave plaintiff $1,000 for a kiss. She discontinued communication with him.
On
May 24, 2011, plaintiff received a text from “Milo,†who wanted an
appointment. She agreed to go to the
Westin St. Francis Hotel, where “Milo†would leave the room key in the
door. Plaintiff walked into the room and
saw no one. Then she saw defendant
hiding behind the door. She started to
scream. Defendant put a towel over her
mouth, told her to “shut up,†and threw her on the bed. He broke off three of her fingernails. She tried to call 911, but defendant threw
her phone on the floor. The room phones
were unplugged. Plaintiff feared for her
life. She finally managed to call 911
and report she was being held against her will.
Defendant told her to “get the fuck out.†She left.
Plaintiff
called defendant as a witness. He
testified plaintiff “ripped [him] off.â€
He claimed in the Westin St. Francis Hotel bedroom he was only trying to
get his money back. He denied striking
plaintiff’s phone from her hand and denied she tried to use the room
phones. He admitted paying $1,000 for a
kiss was his idea. When he offered
plaintiff money for kisses, he did so with “sexual expectations,†that is to
say, “intercourse.†He described himself
as a “client†of plaintiff’s.
The
trial court, noting it was entering “uncharted territory,†issued the
restraining order. The court noted the
physical risks faced by women working as escorts. The court also noted that “most relationships
. . . have a lot of economics in the background.†The court found the relationship was at first
a “casual undertaking†on defendant’s part, with “probably some sincere
interest of kind of him finding some pleasure . . . .†The court found the relationship to have been
very intense and complex over a relatively short period of time, with plaintiff
being “sincerely scared early on.â€
Noting
there wasn’t much law to guide it, the trial court concluded the relationship
fell under the Act. The court granted
the order because “this is a relationship that needs protection for
[plaintiff], and I would not be doing my job if I wouldn’t be granting
it.â€
II. DISCUSSION
The
Act authorizes the issuance of protective
orders restraining domestic violence on several categories of persons,
including present and former spouses or cohabitants and “[a] person with whom
the respondent is having or has had a dating or engagement relationship.†(§ 6211, subds. (a), (b) &
(c).) The only protected category of
persons listed in section 6211 that could possibly trigger the applicability of
the Act in the present case is a person in a present or former “dating
relationship.†Section 6210 defines
“dating relationship†as “frequent, intimate associations primarily
characterized by the expectation of affection or sexual involvement independent
of financial considerations.â€
The
question before us is simple: on the
facts in the record, was the relationship between plaintiff and defendant a
“dating relationship� We conclude it
was not.
For
context, we begin with Oriola v. Thaler (2000)
84 Cal.App.4th 397 (Oriola), a case
which developed a judicial definition of “dating relationship†before the Act
itself defined that phrase in section 6210, enacted in 2001. (Stats. 2001, ch. 110, § 1, pp.
1145–1146.) After reviewing the history
of dating and statutory definitions of “dating relationship†from other states
(Oriola, supra, at pp. 407–411), the
court derived this definition: “[F]or
purposes of the Act, a ‘dating relationship’ refers to serious courtship. It is a social relationship between two
individuals who have or have had a reciprocally amorous and increasingly
exclusive interest in one another, and shared expectation of the growth of that
mutual interest, that has endured for such a length of time and stimulated such
frequent interactions that the relationship cannot be deemed to have been
casual.†(Id. at p. 412.)
1107 (Rucker) was decided after
section 6210 was enacted. The defendant
argued that a prior incident of domestic violence was improperly admitted
against her, because she was not in a “dating relationship†with her attempted
murder victim. (Rucker, supra, at p. 1114; see id.
at p. 1110.) The court noted
since it predated section 6210, whose definition of “dating relationshipâ€
appeared in the battery statute at subdivision (f)(10) of Penal Code section
243. (Rucker, supra, at p. 1116.)
The
Rucker court interpreted the
legislative definition of “dating relationship†as not requiring serious
courtship, increasingly exclusive interest, shared expectation of growth, or an
enduring relationship over a length of time.
(Rucker, supra, 126
Cal.App.4th at p. 1116.) “The statutory
definition requires ‘frequent, intimate associations,’ a definition that does
not preclude a relatively new dating relationship. The Legislature was entitled to conclude the
domestic violence statutes should apply to a range of dating relationships. The Legislature could reasonably conclude
dating relationships, even when new, have unique emotional and privacy aspects
that do not exist in other social or business relationships and those aspects
may lead to domestic violence early in a relationship.†(Ibid.)
The
present case involves a brief relationship, but the length of the relationship
is not controlling. Likewise, we need
not discuss the various factors advanced by the parties that would typify a
dating relationship, such as expectations, holding oneself out as “boyfriendâ€
or “girlfriend,†etc. What controls here
is the dependency of this relationship on financial considerations, which
removes it from the purview of the domestic violence statutes. Nothing in the somewhat ambiguous findings of
the trial court changes the fact that the relationship between plaintiff and
defendant, despite the latter’s original but short-lived personal interest in
the former, was predominantly dependent upon financial considerations.
Plaintiff disputes
this point by referring to several text messages that purportedly show personal
affection between the parties. But only
two such messages were even identified as exhibits at the hearing, and it
appears that none of the texts between the parties were ever admitted into
evidence. The two exhibits apparently
refer to defendant’s proposed shopping trips to Miami. Plaintiff argues that Rucker applied the domestic violence statutes to a relationship
“where, as here, a man attempted to ply a woman with gifts and offers of trips
to Hawaii.†Apart from the geographic
confusion, this is a misreading of the facts in Rucker. The man in that case
did propose a weekend trip to Hawaii, but otherwise the facts showed a lengthy,
committed personal relationship with the contemplation of marriage. (Rucker,
supra, 126 Cal.App.4th at pp. 1110, 1117.)
In contrast, the
present case involves a relationship dependent upon financial
considerations: the payment of thousands
of dollars for kisses, and the explicit understanding that defendant would be a
client of plaintiff’s and pay her for her time and her attention, whether as
“arm candy†or a sexual partner.
Plaintiff is an escort and defendant was her client. We do not imply that women in the escort
business do not engage in “dating relationshipsâ€â€•we simply find such a
relationship is absent in the present case.
We also do not imply that women in the escort business are not at some
risk and are not entitled to protection from
like. But unless they are in a dating
relationship with someone, they are limited to the harassment injunctions
available under Code of Civil Procedure section 527.6.
In
short, there was no “dating relationship†between plaintiff and defendant
because their relationship was not “independent of financial considerationsâ€
within the meaning of section 6210.
Thus, the trial court lacked authority to issue a domestic violence
III. DISPOSITION
The
domestic violence restraining order is reversed and the matter is remanded to
the trial court with instructions to vacate the order. This decision is without prejudice to any
application by plaintiff for a harassment injunction under Code of Civil
Procedure section 527.6.
______________________
Sepulveda, J.*
We concur:
______________________
Margulies, Acting P.J.
______________________
Banke, J.
* Retired Associate Justice of
the Court of Appeal, First Appellate District, Division Four, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
Subsequent statutory references are to the Family Code unless otherwise
indicated.
responsive declaration to plaintiff’s application for a restraining order,
defendant stated he did not know plaintiff was an escort until after the Giants
game.
