Opinion
A167187
08-22-2024
Kamila MALINOWSKI, Plaintiff and Appellant, v. Justin MARTIN, Defendant and Respondent.
Kamila Malinowski, in pro. per., for Petitioner and Appellant
Trial Court: San Mateo County Superior Court, Trial Judge: Hon. Rachel Holt (San Mateo County Super. Ct. No. 21-FAM-01531)
Kamila Malinowski, in pro. per., for Petitioner and Appellant
No appearance for Defendant and Respondent
Fujisaki, Acting P. J.
Kamila Malinowski appeals from the trial court’s denial of her request to include her two children as protected parties under an existing domestic violence restraining order (DVRO) under the Domestic Violence Prevention Act (DVPA; Fam. Code, § 6200 et seq.) against the children’s father, Justin Martin. Malinowski claims that Martin abused the children during several visitation exchanges in 2021, and that these events, along with the children’s reports of other alleged abuse, were captured on video by a vehicle "dash cam." Among other things, Malinowski contends the dash cam videos were erroneously excluded at trial because the videos did not, as the trial court found, record "confidential communications" within the meaning of the California Invasion of Privacy Act (Privacy Act; Pen. Code, § 630 et seq.), and because the recordings were otherwise permitted under statutory exceptions to the Privacy Act (Pen. Code, §§ 633.5 and 633.6).
Further unspecified statutory references are to this code.
In the published portion of this opinion, we conclude that although the statutory exceptions of Penal Code sections 633.5 and 633.6 were inapplicable on the record presented below, the trial court erred in ruling that the dash cam videos captured Martin’s confidential communications with the children in violation of the Privacy Act. In the unpublished portion of this opinion, we conclude the trial court’s Privacy Act error was harmless, and we reject Malinowski’s other claims of error. Accordingly, we affirm the judgment.
F actual and P rocedural B ackground
This case has a complicated history in the lower court, as well as a prior appeal in this court (Malinowski v. Martin (2023) 93 Cal.App.5th 681, 311 Cal.Rptr.3d 200 (Malinowski)). We will first provide a general summary of events, adapted in part from our prior decision in Malinowski. Additional background facts relevant to the contentions on appeal will be set forth in the applicable sections of the Discussion, post.
A. Marriage, Dissolution, and First DVPA Case
Malinowski and Martin were married in September 2013. They have two children, I.M. and J.M.
In September 2018, Malinowski filed for dissolution of marriage (case No. 18-FAM-02115). That same day, she obtained a domestic violence temporary restraining order (DVTRO) against Martin protecting herself, I.M. and J.M. (ages 3 and 1 at the time), and her parents (case No. 18-FAM-02115-A).
B. Elder Abuse Restraining Order
In a separate case (case No. 18-PRO-01021), Malinowski’s parents obtained a three-year elder abuse restraining order against Martin. In January 2019, the trial court found by clear and convincing evidence that Martin committed elder abuse against Malinowski’s father (hereafter Grandfather) and ordered Martin to, among other things, stay 100 yards from Malinowski’s parents.
In February 2022, the elder abuse restraining order was renewed for five years.
C. Early Custody and Visitation Orders
In the dissolution matter, the family court appointed Dr. Robin Press to perform a full child custody evaluation. The court also granted Martin supervised visitation with the children. D. First DVPA Trial
Meanwhile, the trial court in the DVPA action held a trial in October 2020. At the conclusion of testimony, the court announced its decision to issue a three-year DVRO protecting Malinowski from Martin, finding "there were incidences of domestic violence in all of the testimony going back to 2015 or somewhere in that nature." However, the court elected not to include Malinowski’s parents or the children as protected parties because the grandparents had "their own restraining order," and the children were adequately protected in the "hands-on family law action currently pending."
The trial court instructed Malinowski's counsel to prepare and file a formal order. For whatever reason, the DVRO was not filed until May 2021. To avoid confusion regarding the chronology of events, we will refer to this DVRO as the "October 2020 DVRO."
Two items of the October 2020 DVRO are noteworthy. First, it contained an exception to the personal conduct and stay-away orders for Martin’s "peaceful contact with children … as required for court- ordered visitation of children." Second, the October 2020 DVRO checked a box permitting Malinowski "to record communications made by [Martin] that violate the judge’s orders."
E. Family Court Hearings Regarding Visitation and Exchanges
Back in the family court proceedings, the Honorable Sean P. Dabel conducted a March 2021 hearing and heard testimony from supervised visitation provider Julie Espinoza. Judge Dabel changed Martin’s visitation status from supervised to unsupervised but ordered that the exchanges of the children be supervised by Espinoza. Judge Dabel instructed Espinoza "to take notes as to what’s going on with these kids and what they are saying," noting that it "is a benefit to the father and a benefit to the Court" to have her document the events in order to understand the basis for the children’s resistance to visitation. Judge Dabel further remarked that supervised exchanges would allow the court to "gain information about how these parents are interacting and how the children, then, are provided to the father."
In July 2021, Judge Dabel held an evidentiary hearing on, among other matters, Martin’s request for increased visitation hours and his claim that Malinowski was interfering with visitation. Espinoza testified that since she had begun supervising exchanges in March 2021, the children had refused to go on approximately one-third to one-half of the visits, claiming Martin had hit them, and that their mother had told them they could not go. Espinoza said she had never observed Martin inappropriately handle the children.
Espinoza’s testimony then turned to several events that would become the subject of Malinowski’s second DVPA action from which this appeal lies. We will briefly mention them now.
Espinoza was examined about an exchange on June 14, 2021, in which Martin allegedly drove away with only J.M. and left I.M. alone in a parking lot. As Espinoza explained, "if I step away and leave the kids alone with Dad, they will go on the visit. So I parked about 20 yards away, and I’m watching the situation happen. [J.M.] gets out of the car. The kids are getting in and out of the car, running around the car, getting back in the car, getting out of the car. [¶] One of the times while [J.M.] is out of the car, Dad scoops him up and puts him into his vehicle. [I.M.] is calling for [J.M.], and [J.M.] is saying that he wants [I.M.] to go. I am close enough so I can hear them. Dad goes back to the car. I can see him talk with [I.M.], and then he walks away, gets in his car, and he drives away. As he’s driving away, I’m getting out of my vehicle, walking towards [I.M.], who is in the vehicle. Grandfather is across the street…. [¶] [I.M.] gets out of the car. She’s not in distress. And Grandpa starts walking over, and I tell Grandpa that [I.M.] has been very naughty today. And Grandpa tells her in a really firm voice ‘You are no good.’ [I.M.] bursts into tears and runs back to the car."
Espinoza further testified that during another supervised exchange, Martin told J.M. that if he did not come on the visit to take care of his pet fish, Martin would flush the fish down the toilet. Espinoza admonished Martin for this remark.
Espinoza was asked by Malinowski’s counsel, Diane Morin, about an incident on June 1, 2021, in which Martin allegedly told I.M. that she could go to jail for six- year-olds for lying. Espinoza testified that she did not recall this remark and that it did not appear in her written report. When Morin attempted to refresh Espinoza’s recollection, Judge Dabel asked Morin what document she would be using. Morin responded, "it’s not a document" and indicated there were video recordings of the children exchanges that Espinoza supervised. Morin continued, "So my question to Ms. Espinoza is simply isn’t it true that on June 1st, 2021, the father gets upset and says to his daughter … that he will call the police on her; she will go to jail; the jail is just next to them; and there are jails for six-year-olds?" Espinoza responded, "I do not know. As she stated, the visits are recorded, and once Dad is with the kids, I may not necessarily be there because that’s his parental time. So conversations may have happened with the kids that I was not privy to because I had stepped away."
We may reasonably assume, based on context, that Espinoza meant to say the exchanges were recorded, as Espinoza was referring to what Morin had just previously told the court.
Espinoza provided further testimony on allegations that the children sometimes waited in the car for hours during exchanges; that she once had J.M. lift up his shirt to show where I.M. had kicked him; that the children sometimes urinated on themselves during the exchanges; and that J.M. was once bitten by a turtle during a visit with Martin.
After the conclusion of testimony, Judge Dabel announced his decision to increase Martin’s visitation hours. Though Judge Dabel admonished Martin for threatening to flush J.M.’s fish down the toilet, he also admonished Malinowski for telling the children that visitation should not go forward and expressed his "deep suspicion" that Malinowski was not encouraging visits and alienating the children from Martin. On July 13, 2021, Judge Dabel issued a written order increasing Martin’s visitation with the children to 15 hours per week, with the exchanges to be supervised by Espinoza.
F. Second DVPA Petition
On September 14, 2021, Malinowski filed a second DVPA petition (case No. 21-FAM-101531) seeking a DVRO to protect herself and the children from Martin. In a supporting declaration, Malinowski alleged that Martin had committed the following nine instances of abuse against the chil- dren in 2021: (1) on April 3, the children returned from a visit reporting that Martin had pulled J.M. by the wrists and locked I.M. in another room; (2) on April 8, upon returning from a visit, I.M. reported that Martin allowed J.M. to leave the residence unattended, and J.M. thereafter fell and sustained a concussion; (3) on May 13, the children returned from a visit reporting that Martin had punched J.M. in the chest at the front gate of Martin’s property; (4) on May 17, upon returning from a visit, J.M. reported that Martin hit him in the shoulder and said " ‘Fuck you, [J.M.]’ "; (5) during an exchange on May 24, Martin threatened to kill J.M.’s fish if he did not agree to a visit; (6) during an exchange on June 1, Martin threatened to send I.M. to "jail for six-year-olds"; (7) on June 3, J.M. reported to school personnel that his father had punched him in the chest while yelling, " ‘Fuck you, [J.M.]’ "; (8) during an exchange on June 14, Martin took a crying J.M. and drove away, abandoning I.M. in the parking lot; and (9) on August 9, after an unsupervised visit, I.M. reported that " ‘Daddy tried to punch my head’ " and " ‘Daddy said he will make me dead.’ " (Italics omitted.)
The trial court immediately issued a DVTRO against Martin that included the children as protected persons and contained no-contact and stay-away orders, with no exceptions. (Malinowski, supra, 93 Cal.App.5th at p. 686, 311 Cal.Rptr.3d 200.) As a result, Martin’s visitation with the children ceased for several months. (Id. at p. 687, 311 Cal.Rptr.3d 200.)
After the DVPA case was assigned for all purposes to Judge Dabel, Malinowski filed a successful peremptory challenge under Code of Civil Procedure section 170.6. (Malinowski, supra, 93 Cal.App.5th at p. 687, 311 Cal.Rptr.3d 200.) The matter was then reassigned several times until both the second DVPA matter and the dissolution case were assigned to one trial court judge. (Id. at pp. 687-688, 311 Cal.Rptr.3d 200.) In March 2022, the court explained that after having become fully acquainted with the case, including Judge Dabel’s prior orders allowing Martin unsupervised visits and increasing his visitation hours, it would modify the DVTRO to contain exceptions for brief and peaceful contact for court-ordered visitation. (Id. at p. 689, 311 Cal.Rptr.3d 200.) In Malinowski, we affirmed the trial court’s order, concluding it was not required to follow the procedures of Code of Civil Procedure section 533 in order to modify the DVTRO to allow for exceptions consistent with child visitation ordered in the parallel dissolution case. (Malinowski, at p. 685, 311 Cal.Rptr.3d 200.)
G. Second DVPA Trial
The second DVPA trial was held in October 2022. In her amended exhibit list submitted before trial, Malinowski identified several exhibits as video clips of the alleged abuse. She also identified several exhibits collectively as "Video transcript of abuse."
The videos are not in the record. The transcript of the videos, which appears to have been prepared by Malinowski, is in the record, and we discuss it in detail in part A.5. of the Discussion, post.
Both parties filed motions in limine. Martin’s motion in limine no. 7 sought to exclude the children from testifying at trial. The trial court granted that motion, and Malinowski does not challenge that ruling on appeal.
Malinowski’s motion in limine no. 2 sought to admit video footage of the super- vised exchanges captured by a vehicle dash cam, while Martin’s motion in limine no. 5 sought to exclude the "secretly-obtained unlawful recordings." The trial court granted Martin’s motion to exclude the dash cam evidence.
Over the course of nine days, the trial court heard testimony from Malinowski; the children’s therapist, Valerie Houghton; the visitation exchange supervisor, Espinoza; Malinowski’s private investigator, Cliff Jorgensen; Grandfather; and Martin. After closing arguments, the court issued its oral ruling denying Malinowski’s request to add the children as protected parties to the DVRO.
Malinowski requested a statement of decision, and in December 2022, the trial court issued a written decision finding that Martin "did not commit the alleged acts of domestic violence or abuse against the minor children." The court noted that Judge Dabel had previously conducted a hearing in "March 2021" addressing many of the same allegations raised here, and, like Judge Dabel, the court found that Espinoza was "an objective observer of the exchanges" and "a credible witness," and that "she represented the voice of sanity amidst all the chaos." The court further found that Espinoza "was met with roadblocks erected by" Malinowski and Grandfather.
The trial court did not "find reliable the opinion testimony of the children’s therapist Valerie Houghton that, based upon what Ms. Houghton described as a ‘convergence of data,’ the children were telling the truth when they reported to her acts of abuse by their father." The court further emphasized that Houghton had never spoken directly to either Martin or Espinoza about the children’s reports.
The trial court also found that Malinowski’s testimony about the children’s reports of abuse and her observed symptoms of alleged abuse was unreliable, as Malinowski "was not a personal witness to any of the alleged abuse perpetrated by [Martin] and thus, had no personal knowledge of any such abuse. The evidence, in toto, does not support any of the allegations of abuse of the children by [Martin]."
Based on these findings, the trial court denied Malinowski’s request to add the children to the existing DVRO and ordered "the immediate implementation of the 120 day recommendation contained in the Child Custody Evaluation."
This appeal followed.
D iscussion
Under the DVPA, the trial court may issue a restraining order "to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence." (§ 6220.) "Abuse" under the DVPA includes intentionally causing or attempting to cause bodily injury, and "plac[ing] a person in reasonable apprehension of imminent serious bodily injury to that person or to another." (§ 6203, subd. (a)(1), (3).) Section 6203 "broadly provides that ‘disturbing the peace of the other party’ constitutes abuse for purposes of the DVPA." (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497, 93 Cal.Rptr.3d 723 (Nadkarni); see §§ 6203, subd. (a)(4), and 6320, subd. (c).) The court must "consider the totality of the circumstances in determining whether to grant or deny a petition for relief." (§ 6301, subd. (c).)
A. Exclusion of Dash Cam Footage
In considering Malinowski’s request to add the children to the existing DVRO, the trial court excluded Malinowski’s dash cam videos on the ground that they recorded Martin’s confidential communications with the children in violation of the Privacy Act (Pen. Code, § 632). Malinowski contends this was a prejudicial evidentiary error, as Martin "could have no objectively reasonable expectation that things he said and did at the supervised exchanges would not be overheard due to both prior court orders and the public nature of the exchange location."
1 . Additional Background Facts
In her motion in limine no. 2, Malinowski argued the dash cam recordings were admissible because (1) the October 2020 DVRO authorized her to record violations of the trial court’s orders; (2) no "confidential communications" were captured given the public nature of the exchange location; and (3) the recordings fell within the exceptions to the Privacy Act under Penal Code sections 633.5 and 633.6.
Martin meanwhile argued the videos should be excluded from evidence because they were unlawfully obtained without his and Espinoza’s express consent, and because Malinowski was not recording the exchanges with a reasonable belief in obtaining evidence of felony child abuse, as there has never been a finding of his domestic violence against the children, and the children were not the subject of any protective order. Martin also complained that Malinowski had refused to produce the videos until the eve of trial "despite multiple requests … going back to April/ May 2021."
During argument on these motions, Martin’s counsel additionally contended that the videos were more prejudicial than probative, as Malinowski had admitted she edited the video clips. Malinowski’s counsel acknowledged that edited versions of the dash cam videos had been sent to Houghton for her review, but he insisted the videos offered as trial exhibits were complete and unedited. Additionally, Malinowski’s counsel reiterated a previous request for a hearing under Evidence Code section 402.
The trial court declined to admit the video evidence, finding that Martin had a reasonable expectation of not being recorded or overheard at the supervised exchanges of the children, and that therefore the recordings were made "in violation of Penal Code [section] 632." The court further remarked that Espinoza "is the best evidence in regards to the nature of the exchange. And so the dashcam footage, which the Court also has concerns about in terms of its completeness, is also an undue use of the Court’s time when we have a witness who will be present to testify about those exchanges."
During the course of the trial, Malinowski provided general testimony on how the exchanges were conducted and the nature of the location in which they were held. As she explained, Grandfather would drive the children to a public parking lot to meet Espinoza. The parking lot was adjacent to various buildings, including a bank, a city council building, and a police station. Once Espinoza removed the children from the car, Grandfather would wait across the street—a step necessitated by the fact that the elder abuse restraining order against Martin was still in place. After confirming that Grandfather was across the street, Espinoza would contact Martin and instruct him to come pick up the children. If the children agreed to go with Martin, Espinoza would inform Grandfather the exchange was successful. If the children refused, Espinoza would call for Grandfather to return to the parking lot and take the children home.
Espinoza testified her role as exchange supervisor was " ‘to observe, monitor, and document,’ " as well as to keep the children safe. According to Espinoza, the children were often loud and unruly during the exchanges, which attracted the attention of bystanders. Once Martin arrived at the exchange location, Espinoza would sometimes drive to another part of the parking lot and supervise the interaction from a distance.
Private investigator Jorgensen testified that Malinowski hired him to surveil an exchange on April 19, 2021. He took photographs and videos showing, among other things, I.M. screaming and climbing on top of an SUV. Espinoza testified she did not know a private investigator was watching, but she often had the feeling of being watched "in addition to the cameras inside Mom’s car." She further testified that Grandfather sometimes hid in the bushes and watched the exchange through binoculars.
We assume that by "Mom's car," Espinoza was referring to the vehicle Grandfather drove to the exchange. We also note that the earliest date on which Espinoza testified noticing cameras in the car was May 17, 2021.
2 . Governing Law
[1] A trial court’s ruling on a motion in limine is generally reviewed for abuse of discretion, but where, as here, the issue is one of law, we exercise de novo review. (Condon-Johnson & Associates, Inc. v. Sacramento Municipal Utility Dist. (2007) 149 Cal.App.4th 1384, 1392, 57 Cal.Rptr.3d 849.)
The Privacy Act bars the recording of a "confidential communication" without the consent of all parties to the communication. (Pen. Code, § 632, subd. (a).) A " ‘confidential communication’ means any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive, or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded." (Id., subd. (c).) Evidence obtained in violation of this statute is not admissible in any judicial, administrative, legislative, or other proceeding. (Id., subd. (d).)
Those who violate Penal Code section 632 face fines, imprisonment, or both. (Pen. Code, § 632, subd. (a).) Additionally, any person who has been injured by a violation of the Privacy Act may bring a civil action against the violator for the greater of treble damages or a statutory penalty, as well as injunctive relief. (Pen. Code, § 637.2.)
[2, 3] "The test of confidentiality is objective." (Coulter v. Bank of America (1994) 28 Cal.App.4th 923, 929, 33 Cal. Rptr.2d 766.) In Flanagan v. Flanagan (2002) 27 Cal.4th 766, 117 Cal.Rptr.2d 574, 41 P.3d 575 (Flanagan), the Supreme Court endorsed the test set forth in Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 250 Cal.Rptr. 819 (Frio) for determining the confidentiality of a communication: " ‘[U]nder section 632 "confidentiality" appears to require nothing more than the existence of a reasonable expectation by one of the parties that no one is "listening in" or overhearing the conversation.’ " (Flanagan, at pp. 772-773, 117 Cal.Rptr.2d 574, 41 P.3d 575, italics omitted.) 3 . Martin’s Communications Were Not Confidential
[4, 5] As set forth above, Penal Code section 632, subdivision (c), defines "confidential communications" in essentially two parts. The first clause generally defines what is confidential, while the second phrase explains what is excluded from the definition. We conclude communications made during visitation exchanges that have been ordered by a family court to be supervised do not meet the definition of "confidential communications" under the first clause of Penal Code section 632, subdivision (c). That is, such communications are not "carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto." This is because a supervised exchange, by its very nature, involves the monitoring and documenting of the statements made by the participants. Espinoza’s role as exchange supervisor was not simply to be present but to carefully observe the events and "take notes as to what’s going on with these kids" so that the court could gain information about the interactions between Martin and the children." Where, as here, the exchanges were subject to formal oversight by Espinoza and ultimately the court, Martin could not reasonably expect that statements made during such exchanges would be confined just to those present.
Our conclusion does not advance the disapproved test of O’Laskey v. Sortino (1990) 224 Cal.App.3d 241, 273 Cal.Rptr. 674 (see Flanagan, supra, 27 Cal.4th at pp. 768, 776, fn. 4, 117 Cal.Rptr.2d 574, 41 P.3d 575), as we are not assessing confidentiality based on the contents of the statements made during the exchanges, but on the external circumstances in which the statements were made.
We also conclude the communications in question fall within the exclusionary language in the second clause of Penal Code section 632, subdivision (c)—that is, "a communication made … in any … circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded." Here, the communications were made during supervised exchanges that took place in a public parking lot during daylight hours, and the parking lot was adjacent to businesses and public buildings. Moreover, the conversations occurred in and around a vehicle that was not Martin’s own, and the commotion during the exchanges often attracted the attention of bystanders. Unlike other cases involving surreptitious recordings of telephone conversations (see, e.g., Flanagan, supra, 27 Cal.4th at p. 770, 117 Cal.Rptr.2d 574, 41 P.3d 575; Frio, supra, 203 Cal.App.3d at pp. 1485-1486, 250 Cal.Rptr. 819), the circumstances were such that the parties to the exchanges could reasonably expect their statements to be overheard at any time by members of the public who happened to be nearby. At this juncture it bears emphasizing that both the statutory and decisional law state the test for confidentiality in the disjunctive—whether a communication may reasonably be expected to be "overheard or recorded." (Pen. Code, § 632, subd. (c), italics added; Flanagan, supra, 27 Cal.4th at pp. 776-777, 117 Cal.Rptr.2d 574, 41 P.3d 575, italics added.)
Additionally, we note there were indications in this case that both Espinoza and Martin were actually aware they were being recorded during the exchanges. At various times during the proceedings below, Espinoza testified she knew of the camera in Malinowski’s vehicle, including during a July 2021 family court hearing in which Martin was present. Likewise, Martin’s motion in limine no. 5 represented he had been requesting production of the videos since "April/May 2021." Taking Martin at his word, it stands to reason he knew the exchanges were being recorded from April 2021 onward. Though we need not decide whether his consent to the recordings may be implied from this circumstance (see Rojas v. HSBC Card Services Inc. (2023) 93 Cal.App.5th 860, 881, 311 Cal.Rptr.3d 393), it is relevant to show that Martin could not reasonably believe the statements he made during the exchanges would be "confined to the parties thereto" and would not be "overheard or recorded." (Pen. Code, § 632, subd. (c).)
In sum, we conclude the trial court erred in finding that Malinowski recorded "confidential communications" in violation of Penal Code section 632.
4 . Penal Code Sections 633 . 5 and 633 . 6
We will also address Malinowski’s alternative contention that the dash cam recordings came within domestic violence exceptions to the Privacy Act’s prohibitions under Penal Code sections 633.5 and 633.6. We do so in order to clarify the scope of these exceptions and discourage any potential abuses of their provisions.
[6] We first address subdivision (a) of Penal Code section 633.6, which provides that a judge issuing a DVRO "may include a provision in the order that permits the victim to record any prohibited communication made to him or her by the perpetrator." Malinowski contends this statutory exception applies because the October 2020 DVRO permitted her to record communications "that violate the judge’s orders." We disagree, as the only "prohibited communication" for purposes of the October 2020 DVRO was Martin’s contact with Malinowski, the sole person protected under that restraining order. Significantly, the trial court intentionally excluded the children as protected persons under the October 2020 DVRO, and Martin was otherwise permitted by the family and domestic violence courts to have contact with the children for purposes of visitation. Because Martin was allowed to have contact with the children, it cannot be said that his communications during the supervised exchanges were "prohibited" within the meaning of Penal Code section 633.6, subdivision (a). True, the October 2020 DVRO mentioned the children in specifying an exception to the no-contact and stay-away orders for Martin’s "peaceful contact with children … as required for court-ordered visitation of children," but the court seemed to indicate its view that enforcement of the "peaceful contact" language was within the ambit of the family court, not the DVPA court. In short, because the October 2020 DVRO did not prohibit Martin’s contacts with the children, it did not grant Malinowski permission to record their confidential communications.
Next, we turn to Penal Code section 633.6, subdivision (b), and section 633.5, both of which pennit, under specified circumstances, the recording of confidential communications for purposes of evidence-gathering. Penal Code section 633.6, subdivision (b), provides that "a victim of domestic violence who is seeking a domestic violence restraining order from a court, and who reasonably believes that a confidential communication made to him or her by the perpetrator may contain evidence germane to that restraining order, may record that communication for the exclusive purpose and use of providing that evidence to the court." And as relevant here, Penal Code section 633.5 states that Penal Code section 632 does "not prohibit one party to a confidential communication from recording the communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of" various enumerated crimes, including "any felony involving violence against the person" such as "domestic violence as defined in [Penal Code] Section 13700."
As indicated, these statutes require a reasonable belief the recordings will result in evidence that is "germane" to an anticipated DVRO (Pen. Code, § 633.6, subd. (b)) or that "relate[s]" to felony domestic violence (Pen. Code, § 633.5). In In re Trever P. (2017) 14 Cal.App.5th 486, 221 Cal.Rptr.3d 871 (Trever P.), the court clarified that in order for a parent to make a surreptitious recording of their child with another for the purpose of gathering evidence of abuse, the parent must have "a good faith, objectively reasonable belief that the recording is in the best interest of the child." (Trever P., at p. 501, 221 Cal. Rptr.3d 871 [addressing Penal Code, § 633.5].)
In Br. C. v. Be. C. (2024) 101 Cal.App.5th 259, 320 Cal.Rptr.3d 145, the court explained that Penal Code section 633.6, subdivision (b)’s phrase "seeking a domestic violence restraining order from a court" does not require an active DVRO request at the time the confidential communications are recorded. Rather, a domestic violence victim may make the recording "so long as he or she intends to request a DVRO and reasonably believes that the communication may contain evidence germane to that request, regardless of whether a petition has yet been filed with a court." (Br. C., at p. 266, 320 Cal.Rptr.3d 145.)
[7] We cannot conclude Malinowski has met Trever P.’s objective test. Malinowski began recording in or around March 2021 when the supervised exchanges first started. Notably, however, she identifies no specific facts from that time period demonstrating a good faith, objectively reasonable belief that recording the supervised exchanges would be in the children’s best interest. Instead, she claims she had reasonable grounds for making the recordings because of Martin’s "long history of being uncontrollably violent," which included death threats against her, the children, Grandfather, and Martin’s own father.
We fully acknowledge that the allegations of Martin’s prior domestic violence against Malinowski were examined and adjudicated in her favor in the first DVPA case, leading to the October 2020 DVRO, and that the allegations of abuse against Grandfather led to the elder abuse restraining order. While we do not intend to minimize or gloss over the gravity of these circumstances, it remains the case that the October 2020 DVRO did not include the children as protected parties, and the family court thereafter monitored the children’s safety and gradually increased and elevated Martin’s visitation status after holding evidentiary hearings that involved extensive examinations of Malinowski’s claims of abuse. Given the children’s exclusion from the original DVRO and the family court’s subsequent determinations that evidence supported the increase of Martin’s visitation status, we cannot conclude that Martin’s violent history toward Malinowski and Grandfather compelled a finding that Malinowski had objectively reasonable grounds under Penal Code sections 633.5 and 633.6, subdivision (b), for recording Martin’s communications with the children. Were we to hold otherwise, there would effectively be no limit on Malinowski’s ability to record Martin’s confidential communications with the children going forward. We decline to read the statutory exceptions so broadly.
As further support for her claim of an objectively reasonable belief, Malinowski highlights the children’s on-camera accusations of abuse, in particular, I.M.’s recorded report in August 2021 that Martin said he would "make [her] dead." But of all the dash cam recordings allegedly reflecting acts or reports of abuse, the recorded August 2021 report occurred last in time and, accordingly, provides no basis—let alone an objectively reasonable one—for recording the supervised exchanges beginning in March 2021. Malinowski cites no authority for such an ends-justifies-the-means interpretation of the reasonable belief requirement of Penal Code sections 633.5 and 633.6, subdivision (b), and we decline to endorse one.
Though we reject Malinowski’s argument that Penal Code sections 633.5 and 633.6, subdivision (b), permitted her to make the dash cam recordings of the supervised exchanges for the purpose of evidence-gathering, we reiterate our holding that the trial court erred in concluding the dash cam videos captured confidential communications in violation of Penal Code section 632 and in excluding the evidence on that basis.
See footnote *, ante.
See footnote *, ante.
D isposition
The judgment is affirmed. Martin is entitled to his costs on appeal.
WE CONCUR:
Petrou, J.
Rodriguez, J.