Opinion
B313775
03-30-2023
In re Marriage of MEREDITH BLAKE and JEREMIAH MICHAEL LANGER. v. JEREMIAH MICHAEL LANGER, Appellant. MEREDITH BLAKE, Appellant,
Horvitz & Levy, Emily V. Cuatto and Rebecca G. Powell for Appellant Meredith Blake. Stephen Temko for Appellant Jeremiah Michael Langer. Family Violence Appellate Project, Jodi Lewis, Jennafer Wagner, and Erin Smith; Gibson, Dunn & Crutcher, Lauren M. Blas, Courtney M. Johnson, Virginia P. Baldwin and Theane Evangelis for the Family Violence Appellate Project et al. as Amici Curiae on behalf of Appellant Meredith Blake. Perkins Coie, Heather L. Shook and Kaela M. Shiigi for the National Association of Social Workers as Amicus Curiae on behalf of Appellant Meredith Blake.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 17STFL04444 Lawrence P. Riff, Judge. Affirmed.
Horvitz & Levy, Emily V. Cuatto and Rebecca G. Powell for Appellant Meredith Blake.
Stephen Temko for Appellant Jeremiah Michael Langer.
Family Violence Appellate Project, Jodi Lewis, Jennafer Wagner, and Erin Smith; Gibson, Dunn & Crutcher, Lauren M. Blas, Courtney M. Johnson, Virginia P. Baldwin and Theane Evangelis for the Family Violence Appellate Project et al. as Amici Curiae on behalf of Appellant Meredith Blake.
Perkins Coie, Heather L. Shook and Kaela M. Shiigi for the National Association of Social Workers as Amicus Curiae on behalf of Appellant Meredith Blake.
STONE, J. [*]
Petitioner Meredith Blake and respondent Jeremiah Michael Langer married in 2004 and physically separated in 2017. Following ongoing conflict after their physical separation, Blake and Langer filed applications for a domestic violence restraining order (DVRO) against one another in 2019 and 2020. The court held a lengthy evidentiary hearing before issuing an order denying both applications.
In her appeal, Blake contends that the trial court applied an incorrect legal standard to find Langer's conduct did not disturb her peace under the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.; DVPA). In her view, the court denied her application not because Langer's conduct did not disturb her peace, but because the abusive conduct occurred inside a therapist's office.
Subsequent unspecified references to statutes are to the Family Code.
In his cross-appeal, Langer challenges the sufficiency of the evidence supporting the court's finding that Blake did not disturb his peace by exerting coercive control over him through such conduct as conspiring with Langer's individual therapist and forcing Langer to agree to an onerous Separation Agreement that restricted Langer's personal conduct and relationships, finances, and work and living arrangements. Langer further contends that because Blake is a lawyer who gained an advantage over him through the Separation Agreement, the court was required to shift the burden to Blake to rebut the presumption of undue influence when determining whether Blake exerted coercive control over Langer under the DVPA.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We limit our recitation of facts to those relevant to the issues as framed by the parties on the appeal and cross-appeal. The appellate record in this case consists of two volumes of reporter's transcripts (each 4,000 pages), a clerk's transcript (3,000 pages), an appellant's appendix (1,700 pages), and a notice of lodging (600 pages). When discussing the factual background in their appellate briefs, the parties reference trial exhibits without any citation to the appellate record, or without indicating whether the exhibits were marked for identification or entered into evidence. (See Cal. Rules of Court, rule 8.204(a)(1)(C) [briefs must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears"].) "'Because "[t]here is no duty on this court to search the record for evidence" [citation], [we] may disregard any factual contention not supported by a proper citation to the record.' [Citations.]" (Rybolt v. Riley (2018) 20 Cal.App.5th 864, 868.) Despite our independent efforts that went well beyond what is required, in the absence of proper citations to the record, in some instances we have been unable to find the evidence on which the parties purport to rely.
A. Separation and Filing of Dissolution Proceedings
Blake and Langer married in September 2004 and have two children, Max and Henry (born May 2006 and Jan. 2009). The couple physically separated in June 2017 after Blake discovered that Langer was having an affair. Several months later, on September 8, 2017, Blake filed a petition for dissolution of marriage. Over the next several years, the parties engaged in extremely contentious litigation in the dissolution action, resulting in two prior appeals. (See In re Marriage of Blake &Langer (2022) 85 Cal.App.5th 300; In re Marriage of Blake &Langer (B298280, Oct. 27, 2020) [nonpub. opn.].)
B. Blake's Application for a DVRO
On July 9, 2019, two years after their separation, Blake filed an application for a DVRO protecting herself from Langer. Blake attached a declaration in which she addressed "many incidents [during their marriage and after their separation] when [Langer's] rage and verbal and emotional abuse of me cause[d] me to fear for my safety." One instance of alleged abuse occurred during a joint therapy session in July 2017 shortly after the revelation of Langer's infidelity. The therapy session, with Blake's former therapist, Kellee White, was planned "to address [Langer's] disclosures to me of infidelity and abuse, including his anger towards me." During the session, Langer became angry and aggressive, and stood "very closely to me, in a threatening manner." Blake felt distress from the incident and feared for her safety.
Langer denied these allegations in his written response to Blake's application for DVRO.
On July 9, 2019, the trial court granted Blake's application and issued a temporary restraining order (TRO) prohibiting Langer from coming within 100 yards of Blake except during exchanges with their children. The court set a hearing on the requested DVRO.
C. Langer's Application for a DVRO
On August 24, 2020, more than three years after the couple separated, Langer filed his own application for a DVRO. In his attached declaration, Langer alleged that after he and Blake separated, Blake disturbed his peace under the DVPA by engaging in a pattern of coercive control. Blake had threatened Langer with public humiliation; provided Langer's medical information to "unauthorized third parties"; used Langer's own therapist, Dr. Omar Minwalla, to place severe restrictions on his behavior through a written stipulation and court order; required Langer to disclose his bank, email, and social media accounts; and subjected Langer to polygraph testing involving "detailed and hurtful questions" on Langer's infidelity and sexuality.
Blake filed a response and argued that Langer's application was "merely retaliation for my seeking a DVRO against him last year and his attempt to dilute my DVRO request." Blake requested that the court deny Langer's application.
On August 25, 2020, the trial court partially granted Langer's application and issued a TRO that prohibited harassment or the destruction of Langer's personal calm, and required Blake to stay at least 100 yards away from Langer. The court set a hearing on Langer's requested DVRO.
D. The Evidentiary Hearing on Both DVRO Applications
The trial court consolidated the evidentiary hearings on both applications for a DVRO into a single, two-week evidentiary hearing. We recite the evidence introduced at the hearing as relevant to each application.
A significant portion of Blake's recitation of facts in her appellate briefs is from her declaration filed in support of her application for DVRO. However, Blake did not offer her declaration as evidence at the hearing and thus we do not consider it for evidentiary proof in her appeal. (R.B. v. D.R. (2018) 28 Cal.App.5th 108, 111 ["We also do not consider the parties' supporting and responsive declarations, as these were not introduced at the evidentiary hearing"], citing In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1271.)
1. Blake's Application: The June 2017 Joint Therapy Session
Blake testified about a number of incidents of alleged abuse, but her contentions on appeal focus solely on one incident that occurred in her therapist's office on June 30, 2017; she does not press claims that the court erred in its adverse findings as to the other incidents. Rather, her sole argument on appeal is that the court erred in determining the event in the therapy office did not justify issuing a DVRO against Langer.
For the sake of context, we briefly summarize these other alleged incidents and the court's related findings here. Several of the incidents took place shortly after Blake and Langer's children were born in 2006 and 2009. Around that time, Langer appeared to be "very angry"; he yelled a lot, threw things, and during one incident, hit the wall in Blake and the children's presence. With respect to his angry behavior, for which Langer had sought anger management help, the trial court "acknowledge[d] that there are a lot of exhibits where [Langer] . . . characterizes his behavior in the past as harsh and abusive," but the court concluded that Langer's behavior did not "cross[] the line into the DVPA." Another incident relied upon by Blake was a January 2017 argument over the amount of food to feed the family dog, during which Blake alleged Langer pushed himself into Blake and "spit in [her] face." After the argument, Langer left the house, and at Blake's request, reentered an anger management program in which he had previously participated in the spring of 2016. Langer denied spitting on Blake. The court found that Langer had not "spat intentionally in [Blake's] face" during the January 2017 argument over dog food. Blake also asserted that during a June 2019 walkthrough of the family house with their attorneys, Langer removed a large knife from a butcher block and ran his finger over the blade while staring at Blake. Langer denied menacing Blake or brandishing the knife. The court credited Langer's "version of those events" and stated it did not find that Langer "was brandishing a knife in the kitchen in a threatening way." On appeal, Blake chose not to challenge the court's explicit findings on any of these incidents given the deferential standard of review afforded to credibility determinations by the trial court. Blake also testified that when Henry was around two years old, Langer pinned "him down using his full body weight." Langer denied physically abusing or using corporal punishment to discipline his children. Blake further contended that between September 2019 and early 2020, Langer showed up at the children's sporting events and came within five to 25 feet of Blake's personal space in violation of the TRO. The court did not specifically address Blake's allegations that Langer pinned Henry down when he was a toddler or that he violated the TRO's stay-away terms. As Blake recognizes in her briefing on appeal, in the absence of specific findings on these incidents in favor of Blake, we presume the court found that the evidence she proffered lacked sufficient weight and credibility to carry the burden of proof. (Jennifer K. v. Shane K. (2020) 47 Cal.App.5th 558, 579 (Jennifer K.) [where the trial court did not make specific factual findings in favor of the losing party, the appellate court must presume the trial court found that party's evidence "'"lacks sufficient weight and credibility to carry the burden of proof"'"].)
The incident in question took place on June 30, 2017, in the office of psychotherapist Kellee White, who began conducting therapy sessions with Blake shortly after she separated from Langer. Between June and August 2017, Blake attended a total of 10 therapy sessions with White.
White testified that the incident occurred during a "meeting" with Blake, her client, and Langer, whom White identified as "not my client." White testified that the purpose of the session was for Langer to "talk about the relationship" and "to disclose his infidelity to [Blake]."
During her testimony, Blake was shown a chain of text messages between herself and Langer from earlier that day. Blake told Langer to bring to White's office "a 100 percent truthful, complete and accurate written list of ALL of the names of the people you cheated on me with over the years." Blake expected Langer "not to leave out any of the details about his lies, deceiving and [the] things [Langer had] stolen" from the marriage. She indicated that "this meeting today . . . is safe for me and gives me what I need so I can break down all weekend by myself while the kids are with my parents." She wrote, "[T]here will be pain and tears and anger and guts ripped open. And you need to have the morals to give me what I need to try and heal." Langer responded he would attend with "a written account of my attempts to seek sexual companionship."
White testified that when the session began that afternoon, Langer "seemed pissed off that he was there." He stated that he "'didn't know if he could control his rage and his anger towards [Blake].'" Langer cried during the session and paced "up and down in [White's] office room." When White asked Langer to stop and sit down, he refused. At some point Langer "was sitting so close to [Blake] that [White] was scared for [Blake]." Langer got close to Blake, standing "[m]aybe within two inches, an inch" from Blake, who had been sitting on a couch. Blake was crying and shaking during the session. Although White had scheduled the joint therapy session to last an hour, she terminated it after 15 minutes because Langer "started getting belligerent." When the session ended, White sat alone with Blake "to get her calmed" and to develop a plan for Blake's safety. White viewed Langer's behavior as "[e]xtremely" unusual, and the incident scared her.
Blake testified that Langer's statements and behavior inside White's office "terrified" her and "impacted" her emotional calm and peace. Langer's behavior was "extremely aggressive and scary. He appeared unhinged. There were times when he was yelling so unintelligibly I couldn't understand what he was saying. He was extremely angry at me and pacing back and forth in the room." Langer "got so angry at one point he pushed into where I was sitting on the couch and backed me up so far I was . . . scared he was going to attack me." Blake was concerned for her safety following the session, and "was certainly not going to reconcile with him. I was scared." Langer's emotional abuse caused her significant anxiety, flashbacks, and insomnia.
In his testimony, Langer stated that he attended the therapy session with White for the sole purpose of disclosing his infidelity to Blake. Langer was "profoundly sad" during the session, but he denied yelling at Blake, using an "angry tone of voice," getting in Blake's personal space, or threatening her in any way. Langer agreed that it was possible that he approached Blake while grabbing tissues from a table inside White's office. However, Langer did not say that he could not control his rage, and he did not frantically pace around White's office. Langer left the therapy session without incident after two or three hours.
Evidence was introduced that hours after the joint therapy session, at around 9:30 p.m., Blake messaged Langer about coordinating visitation with the children. She wrote that she would spend July 4th with the children, and in exchange, Langer could visit the children for two days the following week. Blake offered that Langer could use the family minivan to transport the children. Langer responded and thanked Blake for the offer.
Langer testified that he and Blake attended other therapy sessions following the June 30, 2017 incident in White's office. At Blake's request, Langer met with Blake and another therapist named Marnie Breecker in July 2017. Blake and Langer attended joint sessions with yet another therapist (Jaclyn Schwartz) in the fall of 2017, and in November 2017 they were planning another joint session with their therapists.
2. Langer's Application: Coercive Control
In support of his own application for a DVRO, Langer asserted Blake exerted coercive control over his personal behavior, child custody, financial support, and living arrangements.
i. Therapy
At Blake's request in July 2017, Langer met with Blake and her therapist, Marnie Breecker. During the session, Breecker recommended that Langer submit to a polygraph test consisting of questions written by Blake and Breecker on Langer's infidelity. Langer agreed to take the test. According to Blake, Langer agreed to take the test because he "complained [that she] did not believe him."
Around August 2017, Blake put Langer in touch with Dr. Omar Minwalla and his program on sexual health. Before Langer began an intensive therapy program with Dr. Minwalla the same month, Blake sent Dr. Minwalla background information on her and Langer's personal history, including Langer's struggles with anger and infidelity. Blake maintained contact with Dr. Minwalla throughout Langer's therapy and attended meetings with Langer and Dr. Minwalla. In one email to Dr. Minwalla, Blake listed things she believed Langer could do to rebuild trust and take accountability for their separation, including terminating his social media accounts, disclosing his email usernames and passwords, and maintaining regular attendance in anger management classes. Langer did not know that Blake had disclosed this information to Dr. Minwalla. Langer testified that he believed Blake used these secret communications with Dr. Minwalla as a way to coerce Langer into giving her documents and personal information, which Blake then threatened to publicly disclose if he did not follow her orders.
During a meeting with Blake and Dr. Minwalla at the end of August 2017, as part of his treatment plan Langer agreed to provide Blake a "daily log" of "every interaction, every thought that passed through [his] head of any person that was involved in [Blake's] life." Langer also agreed to curtail his "reckless behavior" around other women. In part, he agreed to abstain from any sexual activity for at least six months, and agreed not to make eye contact or start up conversations with women, or to watch media with suggestive sexual themes. Langer agreed to "do another Disclosure and take another polygraph test if you want. I am willing to allow you access to my email, texts and significantly limit my use of social media as you need to maintain a path toward healing. I will keep and forward a running log of all the interactions I have . . . and I will tell you when I violate boundaries of the agreement we put in place. I want you to know that I'm taking a fundamental approach to . . . prevent[ing] myself from connecting with women in any way that allows this compulsive behavior to continue, but also to re-establish my integrity in all facets of life."
Langer testified that it was "really hard to say that [Blake] demanded this of me at first.... It was part and parcel of this larger transparency about everything about my psyche." Langer testified, "I thought being honest and being truthful and transparent was what she wanted.... [A]nd I felt that, . . . maybe it would ultimately help my kids because their parents could talk to each other in a productive way." Langer agreed to these things despite knowing Blake's intentions to end their marriage.
When asked at trial whether he believed he was victim of a crime, Langer replied: "Damn right I was. [¶] . . . [¶] Blackmail, deceit, coercion, violation of my basic human rights that she [(Blake)] had conspired with [Dr.] Minwalla to take my children from me, to paint a portrait of me as this atrocious parent, . . . all in an effort to gain an advantage over me."
Blake testified that it was Langer who decided to attend therapy with Dr. Minwalla. Langer talked with Blake about his treatment with Dr. Minwalla "on a regular basis," and Langer gave Dr. Minwalla authorization to speak with Blake so she could "participate in a postintensive series of meetings to discuss . . . ways [Blake] could support his treatment." Langer conceded that he had signed "an authorization giving permission to Dr. Minwalla to discuss [his] treatment with [Blake]."
ii. Letter to the Children
Langer testified that while he was in therapy with Dr. Minwalla, Blake "demanded" that he "take responsibility for the separation and . . . express to the children that [Blake] wasn't to have any blame." Given Blake's demands and her mental coercion effected through Dr. Minwalla, Langer drafted a letter to the children and sent it to Blake. The draft letter was short, "about one paragraph." After reviewing it, Blake "wrote at least a page and a half worth of comments condemning, correcting and reworking what I was going to say." Langer read the edited letter to the children.
Blake testified that she did not demand that Langer write a letter to the children. Instead, Blake wanted Langer to "follow [his] therapist's advice" by writing to the children. Blake reviewed the letter and sent Langer "suggested changes." iii. Job Searches, Finances, and the Daily Log
Langer stopped working as a television executive around February 2017. After he stopped working at the television channel, Langer was employed part-time as a coach with 12 clients, and he coached Max's and Henry's soccer teams. At the time of separation, Langer earned between $800 and $1,200 in income per month.
In an August 19, 2017 email to Langer, Blake wrote that she "noticed . . . that all your job conversations are in the sports arena. I would strongly recommend that you do a wholesale reconsideration of the industry you want to find a job in.... [T]his industry seems to pose too much validation, risky environment and reinforcement of your objectification of women and infidelity. Something perhaps you can explore with Dr. Minwalla related to . . . issues he explained to me." In response, Langer admitted fault and agreed to "fill out a boundary violations worksheet to remind myself of this boundary." Langer then asked if Blake would reconsider this boundary "at least until I get clarity on this job opportunity." In reply, Blake asked Langer "why you aren't also applying for non sports jobs and even applying for jobs that you think are beneath you like working at a men's clothing store."
In a September 16, 2017 email, Blake requested that Langer "provide the details I asked for regarding your job search. [¶] For you to sit here for 9 months having done what you did . . . and not have a job is beyond selfish. You should be putting applications in for jobs all over town and not just for the handful of executive sports jobs and one or two others you deem worthy of your time. You have a responsibility to your children to be contributing to their care and to supporting yourself and not be a deadbeat dad."
Langer testified that he had agreed to provide Blake his bank statements, and if he did not do so, Blake "would accuse me of lying or trying to hide something." Langer only had $1,500 to $3,000 in his checking account. Meanwhile, Blake testified that two of her bank accounts contained $368,180.50 and $200,112.86, respectively. After separation, Blake and Langer both remained as signatories on a joint bank account that held approximately $15,000.
iv. The Separation Agreement
During a meeting in August 2017 with Blake and Dr. Minwalla, Langer was asked if he would agree to certain conditions, and he "wrote some notes down about what I said I would agree to, and many of the things that [Blake] marked . . . appear to be consistent with my notes of what I think I said at that meeting." Langer had experience negotiating contracts in his profession as a television executive.
The following month, Blake asked Langer to enter into "an agreement that would . . . be submitted to the court as a way to push pause on the divorce proceedings." Blake told Langer that "we would both be in pro per . . . and that she would be hiring a neutral lawyer to draft up the terms of [the] agreement." Langer received a written Separation Agreement for his review. He also received an email from a lawyer, Lori Loo, who explained "how this process would work, . . . how this would be temporary, and . . . essentially how she was going to submit this document to the court on both our behalf." Loo's email "never referred [to the Separation Agreement] as a stipulation." Langer did not believe he had any choice in negotiating the Separation Agreement.
Blake is an attorney who started a nonprofit organization for victims of abuse.
Loo testified that Blake paid for her legal services "[a]s consulting counsel" between July and December 2017.
Blake and Langer signed the "Separation Agreement and Stipulation and Order" (Separation Agreement) on September 7, 2017, and it was filed on September 22, 2017. The Separation Agreement provided that Langer had requested, and Blake agreed, to defer the disclosure, discovery, and settlement phase of the dissolution proceeding. The Separation Agreement also set forth various provisions regarding: "(1) custody; (2) child support; (3) control of funds for [Langer]; (4) expenditures from [Langer's] funds; [and] (5) occupancy of the family residence." Per these terms, Blake held sole legal and physical custody of the children and sole possession of the family home, and she agreed to pay Langer's rent provided that she approved of his living arrangement. The parties agreed to divert funds from a community savings account "for equal advance distributions to the parties of community property" into separate spousal accounts. Blake was to control both accounts, and would deduct from Langer's spousal account expenses for his rent, unpaid credit card expenditures, child support, and the family's therapy expenses. In addition, subject to limited exceptions, Langer would provide complete financial visibility by showing Blake his bank statements and receipts, and provide Blake access to all data and social media accounts on his cell phone and computer. Langer also agreed to limit interactions with his children's teachers to "brief greetings" and to entirely cut off communications with parents of other children at school.
Blake testified that she and Langer negotiated the draft agreement and mutually agreed upon its terms. Many of the conditions placed on Langer in the Separation Agreement were "negotiated and discussed in [Langer's] therapy" and outside therapy through oral and written requests by Langer. In response to Langer's requests, Blake "would redraft language and ask for his approval."
v. Subsequent Conduct
After the Separation Agreement was filed, Blake deducted a substantial amount of money from Langer's spousal account. Blake also accessed his email and social media accounts, cellular phone, and computer.
Blake also threatened to humiliate Langer if he did not comply with her demands and turned to litigation in court. According to Langer, Blake "said things like . . . 'if you hire a lawyer, I'll destroy you. This is all going to come out in court, and your kids are going to read about it. Your employers are going to read about it. It's not going to be good for you.'" It appears Langer retained his own counsel by early January 2018.
On January 6, 2018, Langer attended a meeting with Blake and Dr. Minwalla. In the meeting, Langer was informed of various "violations of [his] treatment protocol." Langer felt "worthless," "ashamed," and "violated." Two days later, Langer sent an email to Blake and Dr. Minwalla indicating that he would be "step[ping] aside" from treatment, as he had been "led to believe that I didn't deserve to be my children's father anymore, that I didn't deserve to have basic human rights, [and] that . . . any transparency that I made was just going to be weaponized against me."
Langer testified that between January to June 2018, he "had really not seen" his children outside of sporting events. In contrast, Blake testified that Langer maintained visitation (monitored and/or unmonitored) with the children throughout their separation. Langer admitted that he was able to discuss his personal issues with his aunt Adele, with whom he had a good relationship, and his father, with whom he had lived between June and September 2017.
Langer filed several requests to set aside or modify the terms of the Separation Agreement. For example, on December 12, 2018, the family court issued an order denying Langer's request to set aside the Separation Agreement based on duress, mistake, and/or extrinsic fraud. In its written ruling, the court reasoned that Langer "knew what he was signing and various drafts were exchanged, including incorporating comments and concerns he had." "That having been said, both the negotiations . . and the terms of the [Separation Agreement] itself clearly envision that it is temporary in nature and subject to modification. This Court is not bound by it (as the parties recognize) and this Court has the ability, . . . to modify it. Indeed, this Court has already done so on several occasions." The court reaffirmed a prior order of October 2018 awarding joint legal custody of the children to Blake and Langer, and afforded Langer more parenting time with one of his children.
In its December 12, 2018 order, the court noted it was "aware that there is evidence of potential parental alienation by Ms. Blake, but the reality remains that Mr. Langer's relationship with Henry is now prospering." As to Max, the court stated that it was aware of a rift between the child and Langer. "Regardless of the cause, the process of reunification has begun and the parties (and the Court) have to meet the minors where they are."
E. Trial Court Ruling and Order
At the conclusion of the evidentiary hearing, the court denied both applications for DVROs. The court stated: "Now I'm going to make a collection of findings at the end of which I'll ask each side if there are additional findings you want the court to make." Proceeding to Langer's application, the court found that when Blake discovered Langer's infidelity, Langer "was racked with guilt and remorse and [Blake] racked with hurt and anger, and everything that happened thereafter proceeded from those collection of emotions."
The court continued: "I don't know when it occurred that [Blake] concluded the marriage was not salvageable, but I do think it happened, that rubicon, that emotional rubicon was crossed, and I think it was before [Langer] later crossed that same rubicon. And I think [Langer] was willing by choice to undertake virtually everything that [Blake] might [seek] upon him to try to make it right and try to cause a reconciliation.
"[Blake] for her part imposed-'sought,' I should say, is a better word- sought very strict conditions with high barriers, as it were, to a path to reconciliation. And because she is a trained communicator, skilled in the law, she was able to communicate those things in a lawyerly way. "[Langer], the court finds, acquiesced grudgingly, painfully in some circumstances, to what it was that [Blake] sought, but, in doing so, the court finds, it was not an overbearing of his will."
The court found that "the degree of financial control that [Blake] appeared to have" was not "sufficient to constitute coercive control." Further, the court rejected Langer's contention that Blake was using contact with the children "as a threat over [Langer] to get him to prostrate himself in a degraded fashion before her." The court found "there came a day when [Langer] said, 'enough, I'm not going along with this anymore. I'm out,' and that was the end of that, by which I mean he crossed that emotional rubicon that his marriage is over, and he does not need to submit to these conditions that [Blake] is seeking to impose upon him, and, for better or worse, a judge is going to sort out what the custody and support arrangements are going to be, not [Blake] and [Langer]." In sum, the court found that Langer failed to establish domestic violence based on disturbance of the peace through coercive control.
Proceeding to Blake's application for A DVRO, the court stated as follows: "I think the events at Kellee White's office were very highly emotional. I believe [Langer] when he tells me how distraught he was. I believe Ms. White when she tells me how distraught he was. I believe he was shaking and . . . an emotional wreck at that time because these things in his life were as emotionally upsetting as it gets. His marriage, his kids, his financial future, financial condition for his family, his extended family all of which is now in terrible jeopardy, and he knows, at least he thinks, that a principal proximate cause is his infidelity and his violation of a fundamental promise he had made to his wife at their wedding. So, yeah, I believe he was very upset.
"I believe . . . White that she thought it was a good idea to terminate the session given how upset [Langer] was. I do not believe testimony that [Langer] was violent with [Blake] or threatening to be violent with [her] on that occasion.... It is not inconsistent to credit . . . White's version of these events by and large and for the court likewise to conclude that [Langer's] behavior did not cross the line of abuse under the DVPA. Let me say that this is pretty context specific. Had this same behavior occurred at the Ralph's supermarket it would be a different ball game. It was in a different context, and if his behavior at that time, [was] not in an office like of a professional like . . . White, I think I would have a different view."
After issuing these findings, the parties informed the court they were not seeking any additional factual findings from the court. The court ordered the TROs dissolved and concluded the hearing. By subsequent minute order, the court denied the applications for DVROs, as neither party had "sustain[ed] the applicable burden of proof."
Blake timely appealed, and Langer timely cross-appealed. (Cal. Rules of Court, rules 8.104(a)(1), 8.108(g)(1).)
DISCUSSION
A. Governing Law and Standard of Review
Under the DVPA, a court may issue a protective order "'"to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved" upon "reasonable proof of a past act or acts of abuse.'" (In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220, 225, 228 (Davila), quoting Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 782; accord, §§ 6220, 6300.) The DVPA is to be "broadly construed" in order to accomplish its purpose. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1498 (Nadkarni).) "The purpose of a domestic violence restraining order is not to punish past conduct, but to 'prevent acts of domestic violence [and] abuse' from occurring in the future. (§ 6220.)" (In re Marriage of F.M. &M.M. (2021) 65 Cal.App.5th 106, 117.)
The DVPA defines domestic violence, as relevant here, to include abuse perpetrated against a spouse or former spouse. (§ 6211, subd. (a).) "The DVPA requires a showing of past abuse by a preponderance of the evidence." (Davila, supra, 29 Cal.App.5th at p. 226.) "Abuse is not limited to the actual infliction of physical injury or assault" (§ 6203, subd. (b)), and "includes 'plac[ing] a person in reasonable apprehension of imminent serious bodily injury to that person or to another' or 'engag[ing] in any behavior that has been or could be enjoined pursuant to Section 6320.' (§ 6203, subd. (a)(3), (4).)" (Davila, at p. 226.) In turn, section 6320 provides in part that the trial court may enjoin a party from "disturbing the peace of the other party." (§ 6320, subd. (a).) The applications sought by both Blake and Langer allege abuse by the other in the form of disturbances of their peace.
Trial courts have broad discretion to determine whether to grant applications for DVROs, and we review their decisions for abuse of that broad discretion. (In re Marriage of Ankola (2020) 53 Cal.App.5th 369, 379 (Ankola).) With respect to the court's application of the law to the facts, the appellate court examines whether the trial court exceeded the bounds of reason. (Salmon v. Salmon (2022) 85 Cal.App.5th 1047, 1054 (Salmon); Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 396 (Perez).) "'"All exercises of discretion must be guided by applicable legal principles, however, which are derived from the statute under which discretion is conferred."'" (Perez, at p. 396; see Horsford v. Board of Trustees of Cal. State Univ. (2005) 132 Cal.App.4th 359, 393 ["judicial discretion must be measured against the general rules of law and, in the case of a statutory grant of discretion, against the specific law that grants the discretion"].) Whether a trial court applied the correct legal standard to an issue in exercising its discretion is a question of law requiring de novo review. (Perez, at p. 397; Salmon, at p. 1054.)
When reviewing a trial court's factual findings, we generally apply a substantial evidence test, accepting as true all evidence tending to establish the correctness of the trial court's findings, and resolving every conflict in the evidence in favor of the judgment. (Ankola, supra, 53 Cal.App.5th at p. 380; Curcio v. Pels (2020) 47 Cal.App.5th 1, 12 (Curcio).) "However, when the trier of fact has expressly or implicitly concluded the party with the burden of proof did not carry the burden and that party appeals, '"it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment . . . . [¶] Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding."'" (Patricia A. Murray Dental Corp. v. Dentsply Internat., Inc. (2018) 19 Cal.App.5th 258, 270 (Murray Dental), quoting Dreyers Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838.) "We do not determine credibility or reweigh the evidence" on appeal. (Curcio, at p. 12.)
B. Blake's Application for a DVRO
Blake contends the trial court created a "baseless location-specific standard for abuse" in finding Langer's conduct inside White's office did not disturb Blake's peace. In her view, the trial court erred by denying her application "not because [Langer's] behavior did not disturb her peace, but because it occurred in the therapist's office." Blake further contends the trial court treated the incident in White's office as an isolated event, instead of considering it in the context of past abuse by Langer. We disagree that the court applied an erroneous legal standard. Further, because the trial court did not find any past abuse had occurred, and because Blake does not challenge the court's factual findings on these past events, we cannot conclude that the court erred in failing to consider an alleged history of abuse when considering the incident in White's office.
1. Principles on "Disturbing the Peace of the Other Party"
Because former section 6320 did not define the phrase "disturbing the peace of the other party," courts derived their own meaning of the phrase through statutory construction "as conduct that destroys the mental or emotional calm of the other party." (Nadkarni, supra, 173 Cal.App.4th at p. 1497; see Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1146-1147 (Burquet) [adopting the definition set forth in Nadkarni]; N.T. v. H.T. (2019) 34 Cal.App.5th 595, 602 [same]; former § 6320, subd. (a), added by Stats. 1993, ch. 219, § 154.) In 2020, the Legislature codified this definition of disturbing the peace. Current section 6320 now provides that "'disturbing the peace of the other party' refers to conduct that, based on the totality of the circumstances, destroys the mental or emotional calm of the other party." (Current § 6320, subd. (c), as amended Stats. 2020, ch. 248, § 2; Sen. Bill No. 1141 (2019-2020 Reg. Sess.) (S.B. 1141); Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1141 (2019-2020 Reg. Sess.) as amended Aug. 6, 2020, p. 1 ["This bill . . . codifies] language from case law on destroying the other party's mental or emotional calm"].)
We grant Langer's request to take judicial notice of the legislative materials and history of S.B. 1141. (See In re J.W. (2002) 29 Cal.4th 200, 211 [court may judicially notice legislative history].) Through S.B. 1141, the Legislature also added "coercive control" as conduct that disturbs the peace of the other party. (Stats. 2020, ch. 248, § 2; S.B. 1141 (2019-2020 Reg. Sess.); see Sen. Com. on Judiciary, Analysis of S.B. 1141 (2019-2020 Reg. Sess.) as amended May 6, 2020, p. 1 ["This bill would elaborate on the scope of this scheme by including in the definition of abuse 'coercive control,' a long-recognized form of psychological abuse"].) We discuss this portion of current section 6320 below.
"What disturbs the peace of a person differs in each case." (K.L. v. R.H. (2021) 70 Cal.App.5th 965, 981 (K.L.); see Burquet, supra, 223 Cal.App.4th at p. 1144 [defendant disturbed plaintiffs peace by his "course of conduct of contacting plaintiff by phone, e-mail, and text," and arriving at her residence uninvited and refusing to leave]; Nadkarni, supra, 173 Cal.App.4th at pp. 1497-1499 [husband destroyed wife's emotional calm when he surreptitiously accessed and disclosed her confidential information causing her "to suffer 'shock' and 'embarrassment,' to fear the destruction of her 'business relationships,' and to fear for her safety"]; Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 822 ["significant acts of emotional abuse," including "acts of isolation, control, and threats" were sufficient to demonstrate the destruction of Rodriguez's mental and emotional calm]; In re Marriage of Evilsizor &Sweeney (2015) 237 Cal.App.4th 1416, 14201421, 1426 [husband disturbed wife's peace when he disclosed her private text communications, hacked into her social media account and threatened to reveal additional private information about her, causing her to suffer sleepless nights, shock and embarrassment]; but see K.L., at p. 981 [calling former boyfriend a derogatory name on "TalkingParents" app and failing to show up for child custody exchanges "is not sufficient to disturb anyone's peace"]; Curcio, supra, 47 Cal.App.5th at p. 13 [private Facebook post accusing ex-girlfriend of abusing her and urging employers not to hire her did not rise to the level of "disturbing the peace," even if the post upset ex-girlfriend and made her fear for her career]; S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1266 [badgering and making negative comments during arguments does not constitute "abuse" for purposes of the DVPA ].)
2. Blake Has Not Demonstrated the Trial Court Employed an Incorrect Legal Standard
Here, we review do novo whether the trial court employed improper criteria or an incorrect legal standard in denying Blake's request for a DVRO based on the incident in the therapist's office. (See Perez, supra, 1 Cal.App.5th at p. 397; Salmon, supra, 85 Cal.App.5th at p. 1054.) It is Blake's burden to affirmatively demonstrate error. (Ashby v. Ashby (2021) 68 Cal.App.5th 491, 509.) Blake has not met that burden.
Blake contends the trial court denied Blake's DVRO request "not because [Langer's] behavior did not disturb her peace, but because it occurred in the therapist's office. That was an error: abuse is abuse, wherever it occurs." Blake focuses on a portion of the trial court's ruling where the court stated the following: "Let me say that this is pretty context specific. Had this behavior occurred at the Ralph's supermarket it would be a different ball game. It was in a different context, and if his behavior at that time, [was] not in an office like of a professional like . . . White, I think I would have a different view." Blake argues, "[n]othing in the statutory text, purpose, or interpreting case law supports the trial court's arbitrary conclusion that [Langer's] abusive behavior would have been domestic violence in a grocery store, but was not in a therapist's office."
We absolutely agree with Blake that domestic violence can be perpetrated anywhere-including in a therapist's office. (See Rybolt v. Riley (2018) 20 Cal.App.5th 864, 870 (Rybolt) [noting DVRO had issued in part based on restrained party having "threatened [the protected party] in and outside of coparenting counseling sessions"].) It would indeed constitute legal error were a court to find categorically that abusive conduct that takes place in a therapist's office or in a therapy session cannot constitute domestic violence justifying a DVRO. But Blake's argument too narrowly construes the trial court's findings, and in doing so creates a straw man.
"'The true measure of an order . . . is not an isolated phrase appearing therein, but its effect when considered as a whole. [Citations.] In construing orders they must always be considered in their entirety . . . . If the language of the order be in any degree uncertain, then reference may be had to the circumstances surrounding, and the court's intention in the making of the same.' [Citations.]" (In re Ins. Installment Fee Cases (2012) 211 Cal.App.4th 1395, 1429-1430.)
Considering the trial court's findings in their entirety, we conclude they cannot be boiled down to a ruling that the event in White's office would have constituted abuse under the DVPA had the physical setting not been a therapist's office. The trial court's full findings bear repeating:
"I think the events at Kellee White's office were very highly emotional. I believe [Langer] when he tells me how distraught he was. I believe Ms. White when she tells me how distraught he was. I believe he was shaking and . . . an emotional wreck at that time because these things in his life were as emotionally upsetting as it gets. His marriage, his kids, his financial future, financial condition for his family, his extended family all of which is now in terrible jeopardy, and he knows, at least he thinks, that a principal proximate cause is his infidelity and his violation of a fundamental promise he had made to his wife at their wedding. So, yeah, I believe he was very upset.
"I believe . . . White that she thought it was a good idea to terminate the session given how upset [Langer] was. I do not believe testimony that [Langer] was violent with [Blake] or threatening to be violent with [her] on that occasion.... It is not inconsistent to credit . . . White's version of these events by and large and for the court likewise to conclude that [Langer's] behavior did not cross the line of abuse under the DVPA. Let me say that this is pretty context specific. Had this same behavior occurred at the Ralph's supermarket it would be a different ball game. It was in a different context, and if his behavior at that time, not in an office like of a professional like . . . White, I think I would have a different view."
The court explained that its findings that Langer did not disturb Blake's peace were "context specific," not location specific. There is a material difference between the two. The trial court was required to consider the "totality of the circumstances" to determine whether Langer's statements and conduct disturbed the peace of Blake, and whether such conduct warranted issuing a permanent restraining order. (§ 6320, subd. (c); see § 6301, subd. (c) ["The court shall consider the totality of the circumstances in determining whether to grant or deny a petition for relief"]; McCord v. Smith (2020) 51 Cal.App.5th 358, 366 (McCord) ["the trial court considers whether the totality of the circumstances supports the issuance of the DVRO"].) This analysis necessarily encompasses an assessment of not only the behaviors at issue, but also the context in which those behaviors were manifested. The trial court appropriately examined the full context of the interaction between Langer and Blake in White's office.
This context included Blake's and Langer's expectations and purpose in attending this joint therapy session. Blake had summoned Langer to attend the session at her own therapist's office to spill the full details for the first time about what the trial court described as "his infidelity and his violation of a fundamental promise he had made to his wife at their wedding." Blake intended that the couple would vent their pain and anger in a setting that Blake expressed was emotionally "safe for [her]." Langer's expectation for the session was that he was going to be forced to confront the terrible effects of his transgressions on his "marriage, his kids, his financial future, [and the] financial condition for his family."
The court referenced the heightened emotions that Blake and Langer both understandably were experiencing as a result of the recent revelation about Langer's infidelity and their expectations for the confessional-style therapy session. The court had already observed Blake was "racked with hurt and anger" as a result of the revelation of Langer's infidelity; indeed, the morning of the session Blake had warned Langer that "there will be pain and tears and anger and guts ripped open." The court further found that during the session, Langer was "distraught," "very upset," and an "emotional wreck."
The trial court then compared the unique situation of this preplanned confessional session in White's office on issues "as emotionally upsetting as [they] get[]" with a hypothetical encounter and random outburst by Langer in a public grocery store. Unpacking the court's statements, the implication was that an encounter in a supermarket would not have the same buildup or purpose as that fraught therapy session; that in a grocery store there would not have been a therapist present whose purpose was to facilitate and referee the joint session (or who could terminate it if it got too heated); and that although similarly agitated, belligerent behavior by Langer that came out of nowhere in a different setting might be deemed to disturb the peace of Blake, it did not do so here given the setting that Blake had engineered where emotions were expected to run high amidst the recent revelations and the issues to be aired. The court's reference to the setting of the therapist office thus encompassed findings about the extraordinary nature of this incident that went far beyond its physical location.
Notably, the court found Langer was not "violent with [Blake] or threatening to be violent with [her] on that occasion" in White's office. Despite this explicit finding, Blake contends that because the court accepted "White's testimony about the events" in her office, we must ignore any "arguments that [Langer's] behavior was unthreatening." Blake's argument misconstrues the court's findings. The court credited White's version of the events "by and large," meaning it did not necessarily accept every part of her account. Given the court's findings that Langer was not violent or threatening towards Blake and that Langer's behavior "did not cross the line of abuse under the DVPA" in White's office, it plainly did not credit White's testimony to the extent she suggested otherwise.
This court's task on this appeal is not to decide whether we believe the evidence at trial showed Langer's behavior in White's office disturbed Blake's peace such that a DVRO should have issued. As Blake recognizes, the pertinent standards of review would prevent us from reweighing the evidence or second-guessing the trial court's credibility determinations. (See Curcio, 47 Cal.App.5th at p. 12.) Rather, Blake has asked us to address the narrow issue whether the trial court applied an erroneous legal standard by finding that Langer's conduct was not abuse because it occurred in a therapist's office. Because we conclude the trial court did not apply an erroneous standard, but rather reached a decision based on a consideration of the totality of the circumstances, we affirm the decision of the trial court denying the DVRO.
3. The Trial Court Did Not Abuse its Discretion in Failing to Consider the Alleged History of Abuse by Langer
Blake contends the trial court abused its discretion by failing to consider the incident in White's office "in the larger context of [Langer's] history of abusive conduct" and instead treating the incident as an isolated event. However, the trial court did not find that Langer engaged in any other conduct that constituted abuse under the DVPA. As discussed in footnote 4, ante, Blake expressly disclaims any challenge to the court's findings that Langer's prior alleged misconduct did not constitute abuse. Further, Blake acknowledges that for those incidents as to which the court did not make an explicit finding, it must be presumed on appeal that the court did not find Blake carried her burden to prove that the acts supported issuance of a DVRO. Accordingly, the supposed "history of abusive conduct" by Langer is unsupported by the record, and the trial court did not err in failing to consider the incident in White's office within the context of that supposed history.
4. Arguments Raised by Amici in Support of Blake
Two amicus curiae briefs have been filed in support of Blake's position on the appeal and cross-appeal. "The general rule is '"that an amicus curiae accepts the case as he finds it and may not 'launch out upon a juridical expedition of its own unrelated to the actual appellate record.'"' [Citations.] Under this rule, 'California courts will not consider issues raised for the first time by an amicus curiae.' [Citation.]" (California Building Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1048-1049, fn. 12.)
The first amicus curiae brief in this matter filed by the Family Violence Appellate Project (FVAP) addresses "(1) how restraining orders are strategically used by individuals who are abusive to divert the court's attention away from their misconduct and undercut survivors' requests for restraining orders; (2) the detrimental impact of gender stereotypes and misconceptions about survivors; and (3) the need for courts to consider how seemingly innocuous conduct may be abusive." Blake has not raised any of these arguments in her appeal and thus we decline to consider them.
Amicus curiae discuss the incident between Blake and Langer involving Blake's alleged brandishing of a knife in the kitchen of their home in June 2019. However, as the trial court determined Langer did not brandish the knife "in a threatening way," and Blake has not challenged that factual finding on appeal, it is irrelevant to the issues raised in Blake's appeal.
The second amicus curiae brief filed by the National Association of Social Workers (NASW) echoes Blake's argument that "abuse in a therapeutic setting is still abuse." Relatedly, NASW also argues that the trial court minimized the significance of violence occurring in a therapist's office. All of these arguments appear to characterize the trial court's rationale as "creat[ing] an unlawful exception for acts of domestic violence that occur in a therapeutic setting."
As previously discussed, had the trial court created a carveout for abuse that occurs in a therapist's office, we would find that it erred. However, for the reasons discussed above, we conclude that it did not create any such exception. Rather, the trial court properly considered the "totality of the circumstances" to determine Langer's conduct did not destroy Blake's mental or emotional calm.
C. Langer's Application for a DVRO
Langer raises two contentions in his cross-appeal from the denial of his DVRO request based on allegations that Blake subjected him to a pattern of coercive control in violation of section 6320, subdivision (c). First, he contends the trial court failed to apply contract principles of undue influence when considering whether Blake exerted coercive control over him through conditions set forth in the Separation Agreement. Second, he contends the evidence "proves as a matter of law" that Blake disturbed his peace by engaging in a pattern of coercive control.
1. Relevant Principles on "Coercive Control"
In addition to codifying the definition of "disturbing the peace of the other party" as conduct that under the totality of the circumstances destroys the mental or emotional calm of the other party, S.B. 1141 added to section 6320, subdivision (c), the term "coercive control" as one example of conduct that destroys another's mental or emotional calm. (§ 6320, subd. (c); Stats. 2020, ch. 248, § 2.) Section 6320, as amended, defines "coercive control" as "a pattern of behavior that in purpose or effect unreasonably interferes with a person's free will and personal liberty." (Ibid.) The legislative history for the amendment to section 6320 reflects the recognition that "the existing scheme governing domestic violence restraining orders already encompasses mental abuse, and judicial precedents have held that this includes conduct that amounts to coercive control," and confirms the Legislature's intent was to "affirm and build upon these precedents by setting forth criteria for identifying coercive control." (Sen. Jud. Com., Analysis on S.B. 1141 (20192020 Reg. Sess.) as amended May 6, 2020, p. 6.)
Section 6320, as amended, provides several examples of coercive control. They include, in part, "(1) Isolating the other party from friends, relatives, or other sources of support. [¶] (2) Depriving the other party of basic necessities. [¶] (3) Controlling, regulating, or monitoring the other party's movements, communications, daily behavior, finances, economic resources, or access to services. [¶ and] (4) Compelling the other party by force, threat of force, or intimidation . . . to engage in conduct from which the other party has a right to abstain or to abstain from conduct in which the other party has a right to engage." (§ 6320, subd. (c)(1)-(4).) These examples were intended to "help courts recognize coercive control when hearing these cases, but should in no way limit what a court may consider coercive control to just these instances." (Assem. Com. on Judiciary, Synopsis of S.B. 1141 (2019-2020 Reg. Sess.), as amended Aug. 6, 2020, p. 6; see § 6320, subd. (c) [stating examples of coercive control include "but not limited to" those set forth in subd. (c)(1)-(5)].)
The Legislature supplemented section 6320 with the concept of "coercive control" based on its recognition that coercive acts "combine to reduce a victim's autonomy, resulting in severe emotional abuse." (Sen. Rules Com., Off. of Sen. Floor Analyses, Third Reading S.B. 1141 (2019-2020 Reg. Sess.), as amended May 29, 2020, p. 7.) While finding "it is essential to constrain the full spectrum of abusive conduct," the Senate Judiciary Committee explained that "any expansion of the scope of these provisions must be done cautiously to limit the potential for unintended consequences," particularly given that "[a] protective order implicates fundamental liberty rights, as a violation of its provisions is a crime (Penal Code § 273.6), and it is a factor that is weighed in child custody and visitation determinations (see §§ 3011, 3030, 3044.)." (Sen. Jud. Com., Analysis on S.B. 1141 (2019-2020 Reg. Sess.) as amended May 6, 2020, p. 7.) To "limit the application of its provisions to clearly abusive behaviors," S.B. 1141 required that the conduct be objectively unreasonable in order to justify enjoining it. (Ibid.; accord, Sen. Rules Com., Off. of Sen. Floor Analyses, Third Reading S.B. 1141, supra, at p. 5; see § 6320 [behavior must have "unreasonably interfere[d] with a person's free will and personal liberty"].)
The legislative history for S.B. 1141 cites the case Rodriguez v. Menjivar, supra, 243 Cal.App.4th 816 (Rodriguez), as presenting "a stark example of the type of harmful conduct" intended to be covered by the additional provision on coercive control. (Sen. Judiciary Com., Analysis of Sen. Bill 1141, May 6, 2020, p. 6.) In Rodriguez, the victim's boyfriend not only physically abused the victim but also isolated, controlled, and threatened her. He enrolled in most of her college courses in order to monitor her interactions, and he required her to keep him on an open phone line while she attended her remaining class or otherwise was not with him. The victim explained she had complied with her boyfriend's demand because she was afraid that otherwise he would hit her. (Rodriguez, supra, 243 Cal.App.4th at pp. 818-819.) He also "practiced martial arts in close proximity to [her], despite her requests to stop"; "played with a knife close to her face, and threatened to beat her with a studded belt"; terrified her by driving erratically when she was a passenger and "took her telephone away when she called her mother for help, threatened to send her to jail, and finally threatened to drive into the path of an oncoming train." (Id. at p. 819.) In addition, he threatened her over social media, causing her to shut down her social media accounts and withdraw from her college classes. (Ibid.) On appeal, the court reversed the trial court's denial of a DVRO, in part based on its finding that "[t]he acts of isolation, control, and threats were sufficient to demonstrate the destruction of [the victim's] mental and emotional calm." (Id. at p. 822.)
2. The Contract Principles Identified by Langer Do Not Bear on Determinations Whether a DVRO Should Issue Under the DVPA
Langer first asserts that because Blake was not only his spouse but also was a lawyer who obtained advantages over him through a contract (the Separation Agreement), the court was required to place on Blake "the burden of rebutting the presumption of undue influence" on the issue of Langer's consent to the terms of the onerous Separation Agreement. He contends that "[o]nce the burden is placed on [Blake] . . . on this ground alone the court should reverse the denial of [his] request for a DVRO." He also contends that the trial court erred by applying the legal standard for "duress" when it found Langer had "acquiesced grudgingly, painfully in some circumstances" to the conditions set forth in the Separation Agreement.
Civil Code section 1575 defines "undue influence" in part as "the use, by one in whom a confidence is reposed by another . . . of such confidence or authority for the purpose of obtaining an unfair advantage over him." Section 721, subdivision (b) provides that "spouses are subject to the general rules governing fiduciary relationships that control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other" in any inter-spousal transaction. "When a presumption of undue influence applies to a transaction, the spouse who was advantaged by the transaction must establish that the disadvantaged spouse's action 'was freely and voluntarily made, with full knowledge of all the facts, and with a complete understanding of the effect of' the transaction.'" (In re Marriage of Burkle (2006) 139 Cal.App.4th 712, 738-739.)
We agree with Blake that Langer has forfeited these issues by failing to raise them in the trial court. (In re Marriage of Nassimi (2016) 3 Cal.App.5th 667, 695; Fuller v. Department of Transportation (2019) 38 Cal.App.5th 1034, 1041 ["Where the parties try the case on the assumption that certain issues are raised by the pleadings, or that a particular issue is controlling, neither party can change this theory for purposes of review on appeal"].)
Even on the merits, we reject both arguments. As the moving party seeking a protective order under the DVPA, Langer had the burden to prove past abuse by a preponderance of the evidence. (Curcio, supra, 47 Cal.App.5th at pp. 11, 14; see § 6300, subd. (a) [order under the DVPA may be issued "if an affidavit or testimony . . . shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse"].) We decline to judicially graft a burden-shifting rule when the DVPA incorporates no such provision. (Code Civ. Proc., § 1858 [when construing a statute, courts shall not "insert what has been omitted, or . . . omit what has been inserted"]; cf. Curcio, supra, 47 Cal.App.5th at p. 14 [holding it was reversible error to find uncorroborated allegations of physical assault in application for DVRO "raised 'a presumption that something happened,'" requiring party opposing application "to prove 'by a preponderance of the evidence that [the moving party's] allegations are not true'"]; In re Marriage of Schwartz (1980) 104 Cal.App.3d 92, 96 [reversible error to shift burden of proof to nonmoving party for purposes of custody request].)
In prior proceedings before the family court, Langer unsuccessfully requested that the court set aside the Separation Agreement based on duress, mistake, and/or extrinsic fraud. Obviously, Langer did not, and could not, seek to rescind or invalidate the Separation Agreement by applying for a DVRO. The contract principles he identifies simply have no bearing on the court's analysis of whether Blake exercised coercive control over him under section 6320, subdivision (c).
We also reject Langer's contention that the court inappropriately required his application for a DVRO to meet the legal standard for duress instead of coercive control. The full statement Langer identifies reflects the court's finding of fact that Langer had "acquiesced grudgingly, painfully in some circumstances, to what it was that [Blake] sought, but, in doing so, the court finds, it was not an overbearing of his will." This finding conforms with the statutory definition of "coercive control," which required a finding that Blake's conduct "unreasonably interfere[d] with [Langer's] free will and personal liberty." (§ 6320, subd. (c); see Sen. Rules Com., Office of Sen. Floor Analyses, supra, at p. 7.)
3. The Evidence Did Not Compel Issuance of a DVRO Protecting Langer as a Matter of Law
Langer also contends the evidence of Blake's pattern of coercive control supported issuance of the DVRO he requested. Given that the trial court ruled he did not meet his burden of proof, on appeal Langer must demonstrate that the evidence he presented was (1) "'uncontradicted and unimpeached,'" and (2) "'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.'" (Murray Dental, supra, 19 Cal.App.5th at p. 270.) As Langer recognizes, "[i]t is an onerous standard." (Ajaxo, Inc. v. E*Trade Financial Corp. (2020) 48 Cal.App.5th 129, 164.) We conclude Langer cannot meet his "almost impossible" burden on appeal to show the evidence "compels a judgment in his favor." (Jennifer K., supra, 47 Cal.App.5th at p. 579.)
To be sure, some of the conditions placed on his behavior following the couple's separation ostensibly fall within the nonexhaustive list of examples of coercive control set forth in section 6320, subdivision (c), such as control and monitoring of his movement, behavior, communications, and finances.
Indeed, immediately following their separation Blake assumed oversight and/or control for some time over Langer's living arrangements and his finances, and Langer remained much more financially insecure than Blake given his lack of independent financial resources. Blake insisted on being heavily involved in Langer's job search, attempting to dictate the fields he should avoid and those he should explore.
Langer followed a strict treatment plan suggested by his sexual health therapist, who, unbeknownst to Langer, was receiving information and suggestions from Blake as to limits to propose to Langer for this behavior. Langer submitted to a polygraph test that included questions posed by Blake; he promised to give Blake a daily log of his interactions and thoughts; and he even agreed to abstain from engaging in sexual activity, starting conversations with women, and watching media with sexual themes.
Further, the Separation Agreement, which became a binding stipulation and order, provided that Langer would show Blake his bank statements and receipts and give Blake complete access to his social media, texts, and emails-access to which Blake availed herself. Under that agreement, Langer's communications with other parents and teachers at the children's schools were significantly curtailed. Langer's freedom was plainly restricted by all these conditions.
When these restrictions on Langer are viewed in the context of all the particular circumstances at play, however, substantial evidence supports the trial court's finding that they were the result of his own free will and cooperation and did not amount to "coercive control" pursuant to the DVPA. (§ 6320, subd. (c); see § 6301, subd. (c) ["The court shall consider the totality of the circumstances in determining whether to grant or deny a petition for relief"]; McCord, supra, 51 Cal.App.5th at p. 366 ["the trial court considers whether the totality of the circumstances supports the issuance of the DVRO"].) Langer was "in the doghouse," so to speak, after revelations that he had been cheating on Blake. The court found he was "racked with guilt and remorse." The trial court concluded it was Langer's decision to hand Blake control of his financial and personal life in that initial period after the affair was revealed-control that many others not in his shoes would find unreasonable, onerous, and oppressive. But sufficient evidence emerged at trial to support the court's determination that Langer freely chose, as a result of the situation in which he found himself, to give Blake the reins so that he could try to salvage his relationship with his children and his soon-to-be exwife and regain his integrity.
Specifically, evidence was presented that Langer agreed to attend therapy and authorized his therapist Dr. Minwalla to speak with Blake. Following ongoing discussions with his therapist and Blake, Langer agreed to restrict his own conduct and provide Blake total access to his personal communications and financial transactions in ways that were incorporated into the Separation Agreement. That Blake hired a lawyer to assist her in drafting the Separation Agreement is of no moment. Evidence was presented that Langer was fully aware of the conditions and agreed to them so he could "rebuild trust and take accountability" with his family, "reestablish [his] integrity," make "everything about [his] psyche" transparent, and show his children he could speak with Blake "in a productive way."
In further pursuit of these objectives, Langer worked with Blake to draft a letter to his children, and he allowed Blake to control his spousal account under clear terms and conditions. Langer remained free to challenge the conditions in the Separation Agreement, which the family court confirmed were subject to modification, and in fact Langer did so several times throughout the dissolution proceedings. Further, as the trial court found, at some point Langer balked at the conditions, informed Blake and his therapist of as much, and stopped cooperating and giving in to Blake's conditions. As the trial court found, Langer decided that "a judge is going to sort out what the custody and support arrangements are going to be, not [Blake] and [Langer]."
The trial court did not make specific findings with respect to Langer's claim that Blake suggested to him that going the litigation route would "not going to be good" for him, as she would "destroy" him and unfavorable facts about him would be publicly aired. We thus presume the court found Langer did not meet his burden to prove that this took place and/or that it amounted to coercive control. (See Jennifer K., supra, 47 Cal.App.5th at p. 579.) We note that Langer did procure an attorney in January 2018 and obviously did not abstain from litigation in family court.
It is not our role to assess whether the facts could have supported issuance of a DVRO protecting Langer from Blake's controlling behaviors. That is because "[w]hen supported by substantial evidence, we must defer to the trial court's findings." (Niko v. Foreman (2006) 144 Cal.App.4th 344, 364.) As we have discussed, substantial evidence was presented at trial that Langer made considered choices that it was in his and his family's best interest for him to submit to Blake's conditions for a limited time period. Langer has thus failed to meet his burden to show the evidence compelled the conclusion that Blake subjected Langer to a pattern of coercive control that unreasonably interfered with his free will and personal liberty.
DISPOSITION
The trial court's orders denying Blake's and Langer's applications for DVRO are affirmed. The parties shall bear their own costs on appeal.
We concur: CURREY, Acting P. J. COLLINS, J.
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.