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self-study / Evidence

The use of hearsay during restraining order hearings

0901 ldj dean hansell by arin august 2017   copy

Stanley Mosk Courthouse

Dean Hansell

Judge, Los Angeles Court Superior Court

Northwestern University Pritzker School of Law, 1977

Yang bryant

Bryant Y. Yang

UC Berkeley School of Law

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

California has enacted a number of laws to curb violence at home, in the workplace, schools and elsewhere. These laws provide different procedures and standards. This article analyzes whether hearsay evidence is admissible under the Civil Harassment Restraining Order (CHRO) law, the Domestic Violence Prevention Act (DVPA), the Gun Violence Restraining Order (GVRO) law, and the Workplace Violence Safety Act (WVSA).

The CHRO law permits the admission of hearsay evidence. It expressly provides that, “at the hearing, the [trial] judge shall receive any testimony that is relevant, and may make an independent inquiry.” See Duronslet v. Kamps, 203 Cal. App. 4th 717, 722-23 (2012); Code Civ. Proc. Section 527.6(i). The DVPA lacks a similar provision and, as such, courts of appeal have held in unpublished opinions that hearsay evidence is inadmissible in DVPA proceedings. Mendez v. Salcido, B293669 (Cal.Ct.App. Oct. 10, 2019); Zaki v. Zaki, F060945 (Cal.Ct.App. June 19, 2012). No appellate decision has yet interpreted the applicability of the hearsay rule to GVRO proceedings. However, like the CHRO law, the GVRO statute allows the trial court to consider “any other evidence of an increased risk for violence” when deciding whether to issue an ex parte restraining order or a one-year noticed restraining order. Accordingly, based on the statutory language, hearsay evidence is likely admissible in GVRO proceedings. Similarly, the WVPA requires the trial court to consider “any testimony that is relevant and may make an independent inquiry.” See Code Civ. Proc. Section 527.8, subd. (j); Kaiser Foundation Hospitals v. Wilson, 201 Cal. App. 4th 550, 556 (2011) (citing prior version of the statute).

The Civil Harassment Restraining Order Law Permits Admission of Hearsay Evidence

Under Code of Civil Procedure Section 527.6(a)(1), “[a] person who has suffered harassment ... may seek a temporary restraining order and an order after hearing prohibiting harassment....” Code Civ. Proc., Section 527.6(a)(1). CCP Section 527.6(i) expressly provides that, “[a]t the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry.” Id. Section 527.6(i). “If the judge finds by clear and convincing evidence that unlawful harassment exists, an order shall issue prohibiting the harassment.” Ibid.

The 1st District Court of Appeal has held that hearsay evidence is admissible in a hearing for a permanent injunction under CCP Section 527.6. In Duronslet v. Kamps, 203 Cal. App. 4th 717 (2012), the San Francisco Police Department obtained an emergency protective order restraining the defendant from contacting the plaintiff or her family, after the office manager of a medical center reported to a police officer that the defendant had told a nurse about her plans to kill the plaintiff and then commit suicide. When the plaintiff applied for a CHRO, her attorney’s supporting declaration attached a copy of the police report. The defendant objected to the police report at the hearing, arguing it was hearsay. The trial court “‘noted’ the hearsay objection,” but nonetheless “issued a three-year injunction.” On appeal, the court of appeal affirmed the restraining order. It held that the CHRO statute “appears to be a statutory exception to the general rule” that hearsay is inadmissible because it allows for an application for a temporary restraining order to be issued based on a declaration that shows reasonable proof of harassment of the petitioner by the respondent, and that great or irreparable harm would result to the petitioner. It further held that the statute authorizes the trial court to admit hearsay during the hearing on the injunction because it requires the trial court to “receive any testimony that is relevant and authorize[d] the court to make an independent inquiry.” (Internal quotation marks omitted).

Other courts of appeal similarly hold that the CHRO statute permits the trial court to consider hearsay evidence. See Malatka v. Helm, 188 Cal. App. 4th 1074, 1085 n.5 (2010) (finding CCP Section 527.6 is statutory exception to general hearsay rule); Gorman v. Erns, F073968 (Cal.Ct.App. July 19, 2018) (“Courts are authorized to admit and consider hearsay evidence during civil harassment hearings....”); Lo v. Chen, B245627 (Cal.Ct.App. Dec. 4, 2013); Ansari v. Khan, B241519 (Cal.Ct.App. Oct. 8, 2013) (“The language of section 527.6, subdivision (i), allows a trial court to receive any testimony that is relevant. This provision authorizes a trial court to consider hearsay evidence.”).

The Domestic Violence Prevention Act Does Not Permit the Admission of Hearsay Unless an Exception Applies

Under the DVPA, a party may seek an order restraining domestic violence in a marriage dissolution proceeding, an action under the Uniform Parentage Act, or in a stand-alone proceeding. Fam. Code Section 6360. The DVPA requires a party seeking a restraining order to provide “an affidavit or testimony and any additional information” to show “reasonable proof of a past act or acts of abuse.” Id. Section 6300. “The court may issue an order ... based solely on the affidavit or testimony of the person requesting the restraining order.” Ibid.

Unlike the CHRO statute, the DVPA requires “an affidavit or testimony” — not just a declaration — and does not mandate the trial court to “receive any testimony that is relevant” and to make “an independent inquiry.” As such, the DVPA likely does not authorize the admission and consideration of hearsay absent an applicable exception. The courts of appeal have not resolved this evidentiary issue in a published opinion. However, in a number of unpublished opinions, several courts of appeal have determined that “the rules of hearsay ostensibly apply to [a DVPA] proceeding.” Mendez v. Salcido, B293669 (Cal.Ct.App. Oct. 10, 2019). In Mendez, the trial court denied a petition for a DVPA restraining order based on the declarations submitted by the parties. On appeal, the petitioner argued “that the court violated the hearsay rule and denied itself evidence of demeanor that comes from in-court testimony by treating the parties’ declarations as evidence.” The 2nd District Court of Appeal held that hearsay contained in the declarations “converted ... into [the parties’] direct testimony” when the parties under oath “reaffirmed the truth of their prior declarations.” In so holding, the court of appeal essentially held that hearsay evidence was inadmissible in DVPA proceedings. Similarly, in Zaki, the 5th District Court of Appeal implicitly held that the rules of hearsay apply in DVPA proceedings. In Zaki, the trial court issued a DVPA restraining order for three years against the respondent. On appeal, the respondent argued that the trial court abused its discretion when it excluded a psychological evaluation that he had attached to his answer. The court of appeal held that the psychological evaluation was “an out-of-court statement offered to prove the truth of the matter stated,” and therefore, was “hearsay and ... inadmissible unless it [fell] within an exception to the hearsay rule.” See also Anguiano v. Anguiano, F071826 (Cal.Ct.App. Nov. 4, 2016) (“The trial court admonished the parties not to relate hearsay statements others had made to them .... No error has been demonstrated.”).

The Gun Violence Restraining Order Law Likely Authorizes the Admission of Hearsay

The GVRO law permits “[a]n immediate family member of a person or a law enforcement officer [to] file a petition requesting ... an ex parte gun violence restraining order enjoining the subject of the petition from having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition.” Pen. Code Section 18150(a). The petitioner may obtain an ex parte restraining order after showing a substantial likelihood that: (1) the subject of the petition poses a significant danger, in the near future, of causing personal injury to him or herself, or another by possessing, owning, or having custody or control of a firearm; and (2) the restraining order is necessary “to prevent personal injury to the subject of the petition or another because less restrictive alternatives either have been tried and found to be ineffective, or are inadequate or inappropriate.” Id. Section 18150(b). Within 21 days after the issuance of the ex parte restraining order, the trial court is required to hold a noticed hearing to determine whether to enjoin the subject of the petition for a whole year. The trial court must issue the gun violence restraining order if the petitioner establishes the need for such an order by clear and convincing evidence.

In deciding whether to issue the ex parte restraining order, the trial court may consider “an affidavit made in writing and signed by the petitioner under oath, or an oral statement ... [made under oath by the petitioner and any witness the petitioner may produce,] and any additional information provided to the court.” Pen. Code Sections 18150(b), 18155(a). When deciding whether to issue the ex parte restraining order and the one-year noticed restraining order, the GVRO law provides that the trial court “shall consider all evidence of” a recent threat of violence by the subject of the petition directed toward another or him or herself; a pattern of violent acts or violent threats within the past 12 months, including those by the subject of the petition directed against him or herself; violations of certain protective orders; and convictions of any offenses listed in Penal Code Section 29805, including crimes that involve threats or intimidation, stalking, and domestic violence. Id. Sections 18155(b)(1), 18175(a). The GVRO law also permits, but does not mandate, the trial court to “consider any other evidence of an increased risk for violence,” including the unlawful and reckless use, display, or brandishing of a firearm; history of the use, attempted use, or threatened use of physical force; prior arrests for a felony offense; history of violating certain protective orders; “[d]ocumentary evidence ... [like] police reports and records of convictions ... that involve controlled substances or alcohol”; and evidence of recent acquisition of firearms, ammunition, or other deadly weapons. Id. Sections 18155(b)(2), 18175(a) (using the term “may”).

No court of appeal has analyzed the applicability of hearsay rules to GVRO proceedings. Like the DVPA, the GVRO requires the petition be supported by an affidavit or sworn testimony. However, the statutory language makes clear that the trial court may admit and consider hearsay evidence in GVRO proceedings. Under Penal Code Sections 18155(b)(2), 18175(a), the trial court is permitted to “consider any other evidence of an increased risk of violence” — including, but not limited to, “[a] prior arrest ... for a felony offense” and “[d]ocumentary evidence” like police reports, which are hearsay evidence. People v. McVey, 24 Cal. App. 5th 405, 415 (2018) (police report were inadmissible hearsay); People v. Villar, H043028 (Cal.Ct.App. Apr. 3, 2018.) 2018) (evidence of prior arrests was hearsay); see also In re Corey A., 227 Cal. App. 3d 339, 347 (1991) (holding that “[w]here statutory language is clear, there is no room for interpretation,” and that Welfare and Institutions Code section 358 required the admission of “any relevant evidence including hearsay”). Thus, the GVRO law likely allows the admission of hearsay evidence.

The Workplace Violence Safety Act Permits Admission of Hearsay Evidence

The WVSA allows “any employer, whose employee has suffered unlawful violence or a credible threat of violence from any individual” to obtain “a temporary restraining order and an order after hearing on behalf of the employee and ... any number of other employees at the workplace.” Code Civ. Proc. Section 527.8(a). The WVSA requires a party seeking a temporary restraining order to file a declaration that “show[s] reasonable proof that an employee has suffered unlawful violence or a credible threat of violence by the respondent, and that great or irreparable harm would result to an employee.” Id. Section 527.8(e). The WVSA mandates that the trial court grant or deny the petition on the same day it is submitted to the court, unless the petition was filed too late in the day, and requires the temporary restraining order remain in effect for a period not to exceed 21 days. Id. Section 527.8(f), (g). Moreover, the WVSA expressly states that, “[a]t the hearing, the judge shall receive any testimony that is relevant and may make an independent inquiry.” Id. Section 527.8(j).) “If the judge finds by clear and convincing evidence [that the petitioner has met his or her burden], an order shall issue prohibiting further unlawful violence or threats of violence.” Ibid.

The 4th District Court of Appeal has held that hearsay evidence is admissible in a hearing for a permanent restraining order under the WVSA. In Kaiser Foundation Hospitals v. Wilson, 201 Cal. App. 4th 550, 552-55 (2011), after the trial court issued a restraining order against him, the defendant appealed and argued that the trial court had improperly considered hearsay evidence, namely, his prior threats of violence. After the defendant’s wife had been terminated, the defendant made a number of threats to former colleagues of his wife, including that he would put them “down” or “do something he would regret.” At the hearing, the employer had two employee witnesses testify about those threats, but the employees did not personally hear the defendant’s statements. The court of appeal “consider[ed] the fact that the purpose of the statute is to prevent violence in the workplace, the expedited nature of the proceeding contemplated by the statute, and the Legislature’s directive that the trial court shall receive all relevant testimony without qualification.” It held that “the testimony that a trial court may consider in making a ruling on a petition pursuant to Section 527.8 is not limited to nonhearsay testimony.”

Conclusion

California’s “Red Flag” laws — the CHRO law, the DVPA, the GVRO and the WVSA — were enacted to address violence through restraining orders. As illustrated above, these laws differ in a number of ways, including through the permissible or impermissible use of hearsay evidence. The CHRO and the WVSA require the trial court to receive any relevant testimony, including relevant hearsay evidence. The GVRO also likely permits the trial court to consider hearsay evidence. The DVPA, however, precludes the trial court from using hearsay evidence absent an exception. 

Dean Hansell is a judge of the Los Angeles County Superior Court.

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

#642

Ben Armistead


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