Bertha A. Molinaro v. Michael M. Molinaro

Michael Molinaro appeals from a restraining order issued

under the Domestic Violence Prevention Act (DVPA) (Fam. Code,

§ 6200 et seq.).

1 We conclude the part of the restraining order

prohibiting Michael from posting anything about his divorce case

on Facebook constitutes an overbroad, invalid restraint on his

freedom of speech. We therefore will reverse that provision and

direct the trial court to strike it from the restraining order. We

affirm the restraining order in all other respects.

2

FACTS AND PROCEDURAL BACKGROUND

On July 11, 2016, Bertha Molinaro filed a petition for

dissolution of her marriage to her husband Michael, citing

“irreconcilable differences.” The Molinaros had been married

since June 1997.

On January 6, 2017, Bertha filed an ex parte application

for a domestic violence restraining order using the prescribed

Judicial Council Form DV-100. In a supporting declaration,

Bertha asserted the following: On January 1, 2017, Bertha began

to move out of the family home with the help of her siblings and

other family. After a verbal altercation with Bertha and some of

the family members, Michael moved his car to block the moving

truck from exiting the home’s driveway. Bertha called the police,

who eventually detained Michael. Later that day, she removed

the rest of her belongings from the house. Michael had physically



1 Statutory references are to the Family Code unless

otherwise noted. For clarity, we will refer to the parties by their

first names.

2 In his opening brief, Michael appeared to challenge a

custody and visitation order issued concurrently with the

domestic violence restraining order. However, at oral argument

he acknowledged the interim order is not subject to our appellate

jurisdiction.

3

restricted Bertha from leaving the home on two other occasions―

once by blocking the front door and another time by blocking her

car in the home’s carport. Before filing for divorce, Bertha had

installed locks on her bedroom door “because [Michael] was

acting erratic and [she] was afraid of him.” Michael threatened

to “throw a chair though the bedroom window” if she did not

remove the locks.

Bertha declared she was “afraid of what Michael might do

in retaliation for my moving out.” She continued, “I wanted to

keep my address confidential but he found out where I moved to

and he is now posting on social media derogatory comments

about me and he posted a picture of my new residence and he

included the address. He is angry at me for moving out and I am

afraid for my safety and the safety of my children.”

The application requested a domestic violence restraining

order (and a temporary restraining order in advance of a hearing)

commanding Michael to stay at least 100 yards away from Bertha

and their three children―their 18-year-old daughter and their

two sons, then ages 17 and 13, respectively. She also asked the

court to order Michael to attend a batterer intervention program.

On a separate Form DV-105, Bertha requested legal and physical

custody of the couple’s two minor sons, and no visitation for

Michael until the hearing.

The court denied the request for a temporary restraining

order and set a January 26, 2017 hearing to receive further

evidence on the application. In denying the temporary

restraining order, the court checked a box on Form DV-109

indicating: “The facts as stated in form DV-100 do not show

reasonable proof of a past act or acts of abuse.”

On January 26, 2017, Michael filed a request to continue

the hearing. The parties appeared before Judge Thomas Trent

Lewis the same day. Bertha did not oppose the request, but

4

asked that Michael “please stop posting everything about the

case on Facebook,” and “stop giving the children all of my

pleadings.” Michael responded that he had only given the

children copies of “the domestic violence restraining order, not of

the divorce petition.” When the court asked, “what makes it okay

to give the 13-year-old and the 17-year-old copies of the court

papers,” Michael answered, “My best judgment, Your Honor.”

The court explained to Michael that it intended to “issue an

order against you today that precludes you from discussing the

matter with the 13-year-old and the 17-year-old,” warning him

that courts may “consider parents insinuating children into the

court process” in making custody determinations. Michael

objected to the order, arguing Bertha had “emptied [their] home

equity of $250,000 [sic]” and “relocated [his] children to a mystery

house without informing [him].” The court acknowledged the

objection, but asked Michael to confirm he understood the terms

of the order. Michael responded, “Okay. I understand the what.

I question the sanity.” The court clarified the order did not

preclude Michael from posting on Facebook, except to the extent

those postings “would otherwise violate the no-discussion order.”

On the parties’ stipulation, the court continued the hearing

to February 15, 2017. Judge Lewis’s written order stated,

“Neither party is to discuss any aspect of the case with the minor

children until further order of the court―including Facebook

postings [about the] subject case matter.”

On February 15, 2017, the parties appeared before Judge

Amy M. Pellman. The court clerk swore both Bertha and

Michael. Bertha testified Michael had “showed up uninvited to

the house” where she and the couple’s children were living, had

posted on Facebook “about the divorce, about everything that’s

happening,” and had sent police to the house “to do a wellness

check on the kids” when she was at her teaching job. Bertha said

5

Michael “posted to Facebook that [she] stole $250,000 from [their]

home equity line, that [she] used it all and ran away with it.”

She continued, “He says that I’m crazy and having

hallucinations.” Bertha said Michael had concluded some emails

to her and her attorney with “F.O.A.D.” She looked the acronym

up and it “stands for fuck off and die.” Bertha testified she

“wasn’t sure” if the “F.O.A.D.” comment was directed at her or

her lawyer, but noted that Michael had called her “a bitch a few

times.” Bertha said Michael’s “name calling” was “unsettling”

and “very stressful.” She also testified the couple’s sons were

“both depressed” and their daughter “was particularly upset

because she had to go back to the house to visit her dogs and

[Michael] . . . threatened to euthanize the dogs.”

Bertha testified she “fear[ed] for her safety and [Michael’s]

conduct [was] just getting worse and worse.” She said Michael’s

behavior toward her at the earlier hearing was “threatening.”

She repeated, “I fear for my safety and that of my children.”3



3 Michael objected to several parts of Bertha’s testimony,

including a hearsay objection to their daughter’s statement about

Michael’s threat to euthanize the dog. He also made a lay

opinion objection to the testimony describing his behavior as

“threatening.” The court overruled the objections, and we find no

error in the evidentiary rulings. The court properly admitted the

daughter’s out of court statement as circumstantial evidence of

her state of mind―that is, why she was “upset” when she

returned from visiting her dogs. (Evid. Code, § 1250, subd. (a)(1);

see also People v. Frye (1985) 166 Cal.App.3d 941, 950 [“Evidence

of a declarant’s statement is not hearsay if it relates facts other

than declarant’s state of mind and is offered to circumstantially

prove the declarant’s state of mind.”].) As for Michael’s lay

opinion objection, the court properly received the testimony as

evidence that Bertha felt threatened by Michael’s conduct.

(Evid. Code, § 800; People v. Farnam (2002) 28 Cal.4th 107, 153

[“A lay witness may testify to an opinion if it is rationally based

6

Michael declined the court’s invitation to cross-examine

Bertha, and said he would not testify on his own behalf. The

court asked if Michael planned to call any witnesses. He

responded, “I’d like to call my children.” The court denied the

request, stating, “I don’t need to hear” from the children.

Although Michael suggested that Judge Lewis had made a

“previous court order that [the children] attend,” he made no offer

of proof regarding the relevance of their testimony. When Judge

Pellman responded that she was not bound by the “previous

court,” which had not had the benefit of Bertha’s testimony,

Michael acknowledged the ruling and responded, “Quite sure.

No evidence.”4

The court granted Bertha’s application for a restraining

order, stating the order would be for three years and Michael was

to stay 100 yards away from Bertha and the three children. The

court also ordered Michael not “to post anything on Facebook . . .

in regards to this action” and “not to contact the mother or the

children regarding this action.”



on the witness’s perception and if it is helpful to a clear

understanding of his testimony.”].)

4 Michael argues the trial court erred by barring the

children’s testimony; however, as discussed, the record shows he

made no offer of proof, before the hearing he did not file and serve

a witness list with a brief description of the anticipated testimony

(see § 217, subd. (c)), and, on appeal, he has made no attempt to

show how he was prejudiced by the exclusion of the testimony.

He has forfeited the issue as a basis for appellate relief.

(See Citizens for Open Government v. City of Lodi (2012) 205

Cal.App.4th 296, 308 [“appellant bears the burden to show it is

reasonably probable he or she would have received a more

favorable result at trial had the error not occurred”].)

7

The court asked Michael if he understood the order.

Michael responded, “No, I don’t. I think you’re insane. I don’t

understand a word you are saying. It lacks reason, Your Honor.

There was no evidentiary foundation for your order. And the

prior order of court dated January 6, 2017, that said the facts as

stated do not show reasonable proof of past act or acts of abuse

was the correct order.” The court acknowledged Michael’s

objection, and asked the parties what they requested regarding

custody and visitation of the minor children.

Bertha’s counsel asked to arrange “reasonable visitation

with the kids.” She suggested the parties go down to the

mediation office to “work out the parenting plan for the kids.”

The court suggested mediation might not be productive at the

moment, in view of Michael’s “behavior.” Michael interrupted the

court, demanding to know “[w]hat behavior.” The bailiff asked

Michael not to “scream,” and the court noted Michael had been

“[y]elling in court.”

The court ordered Michael would have monitored visits

with the children in “a neutral setting.” Michael asked that the

visits take place at the children’s residence. The court denied

the request, admonishing Michael that he was to stay 100 yards

away from the residence. The court also ordered that he was to

work with Bertha’s counsel to find a professional monitor.

Michael responded, “No, I’m not.” The court granted legal and

physical custody to Bertha.

At Bertha’s request, the court also ordered Michael to

attend anger management classes. Michael responded, “On what

basis? There’s been no abuse, Your Honor.”5 The court explained



5 The objection prompted another exchange in which the

court and bailiff cautioned Michael against screaming or “raising

[his] voice and yelling.” When the bailiff, for a third time,

8

it was ordering anger management, not a 52-week batterer’s

intervention program. Michael continued to respond indignantly:

He told the judge, “Why don’t you put me behind bars[?]”; asked,

“How fast can I commit contempt of court by going to none of

them, Your Honor?”; and told the court, “I have no respect for the

court, Your Honor.”

On February 15, 2017, the court entered the restraining

order and child custody and visitation order. The order listed

the couple’s three children as “additional protected persons,”

provided for an expiration date in three years, included nocontact

and stay-away orders, and ordered Michael to attend

anger management classes once a week for six months. In an

attachment to the restraining order, the court ordered the parties

“not to post anything about the case on Facebook” and “not to

discuss the case with the children.”

On March 10, 2017, Michael filed a motion for a new trial

“and/or to vacate judgment/order dated February 15, 2017.”

Among other things, Michael argued the court committed

“misconduct” by precluding him from calling his children as

witnesses; there was no evidence of “abuse” to support the

restraining order; the order was the product of unfair “surprise”

because the parties had not conducted a mandatory mediation on

child custody; and the order was “based on written conduct” that

was constitutionally protected free speech. On March 30, 2017,

the court denied Michael’s new trial motion, finding “no legal

basis for granting the motion.”



admonished Michael not to scream, Michael responded by

disparaging the “family law bar.”

9

Michael timely appealed from the February 15, 2017

domestic violence restraining order.

6

DISCUSSION

1. Substantial Evidence Supports the Abuse Finding

Under the DVPA, a court is authorized to 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; Nevarez v. Tonna (2014)

227 Cal.App.4th 774, 782; accord, §§ 6220, 6300.) Abuse includes

“ ‘engag[ing] in any behavior that has been or could be enjoined’ ”

under section 6320. (Davila, at p. 226; § 6203, subd. (a)(4).)

Behavior that may be enjoined under section 6320 includes

stalking, threatening, and harassing. (Nakamura v. Parker

(2007) 156 Cal.App.4th 327, 334 (Nakamura); accord, § 6320,

subd. (a).) “A court may also enjoin ‘disturbing the peace of



6 Bertha contends Michael is “appealing a non-appealable

issue” and he “should have filed a writ” petition. Bertha is

mistaken. The issuance of a restraining order is appealable as

an order granting an injunction under Code of Civil Procedure

section 904.1, subdivision (a)(6).

On December 18, 2017, Michael filed a motion to strike

Bertha’s respondent’s brief and a request for sanctions, arguing

the brief “ ‘unreasonably’ ” violated the California Rules of Court

governing the form and content of appellate briefs. We originally

deferred ruling on the motion until we had had an opportunity to

consider the merits of the appeal. We later vacated the order and

denied the motion to strike. Michael then filed a renewed motion

to strike and for sanctions, which we denied. To the extent there

is any doubt about our ruling on the December 18, 2017 request

for sanctions, that request for sanctions is also denied.

10

[another] party, and, in the discretion of the court, on a showing

of good cause, of other named family or household members.’ ”

(Nakamura, at p. 334.)

The DVPA vests the court with discretion to issue a

restraining order “simply on the basis of an affidavit showing

past abuse.” (Nakamura, supra, 156 Cal.App.4th at p. 334.)

The burden of proof is by a preponderance of the evidence.

(Cooper v. Bettinger (2015) 242 Cal.App.4th 77, 90, fn. 14;

Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137.) The

DVPA “confer[s] a discretion designed to be exercised liberally,

at least more liberally than a trial court’s discretion to restrain

civil harassment generally.” (Nakamura, at p. 334.)

We review the grant of a DVPA restraining order for abuse

of discretion, and, to the extent we are called to review the court’s

factual findings, we apply the substantial evidence standard of

review. (In re Marriage of G. (2017) 11 Cal.App.5th 773, 780;

In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th

1416, 1426-1427.) In reviewing the evidence, we examine the

entire record to determine whether there is any substantial

evidence―contradicted or uncontradicted―to support the trial

court’s findings. (Burquet v. Brumbaugh (2014) 223 Cal.App.4th

1140, 1143 (Burquet).) We must accept as true all evidence

supporting the trial court’s findings, resolving every conflict in

favor of the judgment. (Ibid.) We do not determine credibility

or reweigh the evidence. (Katsura v. City of San Buenaventura

(2007) 155 Cal.App.4th 104, 107.) If substantial evidence

supports the judgment, reversal is not warranted even if facts

exist that would support a contrary finding. (Ibid.)

Michael argues the trial court erred by basing its abuse

finding on a series of Facebook posts he made about the divorce

action. He contends the First Amendment protects his right to

publish information about a pending court proceeding on a public

11

forum like Facebook and, absent a true threat, his right to free

speech precludes the trial court from making an adverse finding

against him based on those statements.

Contrary to Michael’s premise, there is little indication in

the record that the trial court received his Facebook posts into

evidence at the restraining order hearing. During Bertha’s

testimony, her attorney attempted to show Bertha “pictures” of

Michael’s Facebook posts and to question Bertha about the posts’

contents. The court stopped counsel, asking if she had “marked”

the pictures and whether she was prepared to “submit[ ] evidence

or not.” Although Bertha’s attorney eventually asked Bertha

whether Michael had posted information about the divorce on

Facebook, it does not appear that the court received the posts into

evidence or that the court reviewed the posts in making the

abuse finding.

In any event, even if we accept Michael’s premise that the

posts were in evidence, this alone is not grounds to reverse the

restraining order. As we discuss below, although orders

enjoining the dissemination of information outside the immediate

family may impermissibly infringe upon the constitutionally

protected right of free speech, in this case we have no reason to

assume the trial court relied upon Michael’s Facebook posts in

making the abuse finding. On the contrary, because there was

substantial evidence, apart from the posts, to support the finding,

we will presume the court relied on that other evidence in issuing

the domestic violence restraining order. (See, e.g., Lister v.

Bowen (2013) 215 Cal.App.4th 319, 337 [because lower court

judgment is presumed correct, appellate court would not find

restraining order unconstitutionally overbroad absent clear

showing in record that order infringed appellant’s right of

association].)

12

Critically, Bertha was not required to show Michael

physically assaulted or struck her, because section 6320

“provides that ‘the requisite abuse need not be actual infliction of

physical injury or assault.’ ” (In re Marriage of Nadkarni (2009)

173 Cal.App.4th 1483, 1496 (Nadkarni); Conness v. Satram

(2004) 122 Cal.App.4th 197, 202.) “To the contrary, section 6320

lists several types of nonviolent conduct that may constitute

abuse within the meaning of the DVPA,” including “ ‘disturbing

the peace of the other party,’ ” which “may be properly

understood as conduct that destroys [another’s] mental or

emotional calm.” (Nadkarni, at pp. 1496-1497.) This

construction, “comports with the legislative history of the DVPA,”

which “reflect[s] the Legislature’s goal of reducing domestic

violence and its recognition that ‘[i]t is virtually impossible for a

statute to anticipate every circumstance or need of the persons

whom it may be intended to protect.’ ” (Id. at pp. 1497-1498.)

Because “the Legislature intended that the DVPA be broadly

construed in order to accomplish th[is] purpose,” the court in

Nadkarni held “the plain meaning of the phrase ‘disturbing the

peace’ in section 6320 may include, as abuse within the meaning

of the DVPA, a former husband’s alleged conduct in destroying

the mental or emotional calm of his former wife.” (Id. at p. 1498.)

In Burquet, our colleagues in Division 5 applied the

Nadkarni court’s construction of disturbing the peace to hold a

defendant’s “course of conduct of contacting plaintiff by phone,

e-mail, and text, . . . and arriving at her residence unannounced

and uninvited, and then refusing to leave” constituted abuse

under the DVPA. (Burquet, supra, 223 Cal.App.4th at p. 1144.)

There, the plaintiff’s ex-boyfriend appeared outside her residence

despite the plaintiff’s requests that he not contact her. When she

pleaded with him, “ ‘Please leave, I’m scared[,] I will call the

police,’ ” he shouted through a window, “ ‘I want to see you do

13

that,’ ” and paced around her porch for about 10 minutes,

leaving only just before the police arrived. (Id. at pp. 1142-1143.)

The trial court granted the domestic violence restraining order,

observing, “ ‘I see uninvited contact that made the petitioner

afraid because he would not leave and showed up [out] of

nowhere uninvited, and unannounced.’ ” (Id. at p. 1143.)

Rejecting the defendant’s contention that the proper “definition

of disturbing the peace” required evidence of “ ‘acts that are

themselves violent’ ” (id. at pp. 1144-1145), the Burquet court

held “[t]here was substantial evidence presented at trial to

support the trial court’s finding that defendant disturbed the

peace of plaintiff, an act of ‘abuse’ under the DVPA.” (Id. at

p. 1147; see also Nadkarni, supra, 173 Cal.App.4th at pp. 1498-

1499 [ex-husband’s conduct, including accessing, reading, and

publicly disclosing the content of ex-wife’s confidential emails,

caused her to suffer embarrassment and “to fear for her safety”;

this “destruction of her mental or emotional calm” could

constitute “disturbing the peace of” the ex-wife, “a form of abuse

within the meaning of the DVPA”].)

Even without Michael’s Facebook posts, the evidence was

sufficient to show conduct that constituted “disturbing the peace

of the other party” (§ 6320, subd. (a)) and, hence, “abuse” as

defined in the DVPA (§ 6203, subd. (a)(4)). Bertha’s sworn

declaration and testimony established that Michael detained

Bertha against her will by using his car to block her moving

truck from leaving the home; he was belligerent during the

confrontation “and had to be restrained” by police officers who

responded to the scene; on another occasion he “blocked the front

entrance of the family residence so no one could go out the front

door”; on still another occasion he “blocked [Bertha’s] car in the

carport so [she] could not leave the house”; he threatened to

“throw a chair through the bedroom window” when Bertha

14

refused to remove locks from her bedroom door; and he

“showed up uninvited to the house” she had moved to, despite

Bertha’s efforts to keep the address confidential. Bertha testified

that Michael’s conduct was “unsettling” and “very stressful,” and

that she was “afraid of what [he] might do in retaliation for [her]

moving out.” She said she had “lost 20 pounds since the whole

thing started.” This evidence was plainly sufficient to support

a finding that Michael’s conduct “destroy[ed] the mental or

emotional calm of his [estranged] wife.” (Nadkarni, supra,

173 Cal.App.4th at p. 1498; Burquet, supra, 223 Cal.App.4th at

pp. 1146-1147.) Notwithstanding Michael’s objection to the

restriction against posting on Facebook, substantial evidence

supports the trial court’s abuse finding.

2. Michael Forfeited His “Void for Vagueness”

Challenge to the DVPA

On appeal, Michael contends for the first time in these

proceedings that the Nadkarni court’s construction of “abuse”

and “disturbing the peace” renders the DVPA unconstitutionally

vague because it could allow “a mother [to] obtain a restraining

order because her husband contacted her adult daughter.”

He also argues the DVPA is facially vague because the phrase

defining abuse as “any behavior that has been or could be

enjoined pursuant to Section 6320” (§ 6203, subd. (a)(4), italics

added) invites the judiciary to create definitions of “abuse” for

conduct that “was never enjoined, but that ‘could be’ enjoined,

such as ‘contacting’ a daughter, or ‘coming within a distance’ of a

daughter.” Because Michael did not make this argument in the

trial court, he has forfeited this constitutional challenge by

failing to raise it below. (In re Marriage of Minkin (2017)

11 Cal.App.5th 939, 958 (Minkin).) And, the argument lacks

merit in any event.

15

“A party typically forfeits constitutional issues not raised

in earlier civil proceedings.” (Minkin, supra, 11 Cal.App.5th at

p. 958.) This is so because, when a party contends a law is

unconstitutionally vague, the court examines the party’s actual

conduct before analyzing other hypothetical applications of the

law (see Village of Hoffman Est. v. Flipside, Hoffman Est. (1982)

455 U.S. 489, 494-495), and this is an assessment best conducted

first in the trial court. This is true even when the court analyzes

a facial challenge to the law on vagueness grounds. (See ibid.)

Although a court may relax this rule to permit a party to raise

new theories, this is appropriate “[o]nly when the issue presented

involves a purely legal question, on an uncontroverted record and

requires no factual determinations.” (Minkin, 11 Cal.App.5th at

p. 958.) The application of “[t]his forgiving approach” “ ‘is largely

a question of an appellate court’s discretion.’ ” (Id. at pp. 958-

959.)

At one point in his opening brief, Michael states, “This

matter . . . presents predominantly pure question [sic] of law on

undisputed facts.” Yet Michael devotes many pages of his brief

to a “statement of facts,” citing, among other things, his own

declaration filed in support of his motion for a new trial, where he

attempts to explain his conduct and disputes Bertha’s account of

the events that occurred before and after she filed a petition to

dissolve the marriage. In short, this is not a case involving “an

uncontroverted record” requiring “no factual determinations.”

(Minkin, 11 Cal.App.5th at p. 958.)

In any event, even if this were such a case, and we

exercised our discretion to consider Michael’s constitutional

challenge to the DVPA, we would find no constitutional infirmity.

“A party making a facial challenge to a statute’s constitutionality

must meet ‘ “exacting” ’ standards. [Citation.] Under the

strictest test, the challenger must show that the statute

16

inevitably poses a present total and fatal conflict with the

constitution. Under the more lenient standard, we ask whether

the statute is unconstitutional in the generality or great majority

of cases.” (Ivory Education Institute v. Department of Fish &

Wildlife (2018) 28 Cal.App.5th 975, 981.) “There is a strong

presumption that statutes must be upheld unless their

unconstitutionality is clear, positive, and unmistakable. . . .

Only a reasonable degree of certainty is required.” (Ibid.)

As noted, section 6203, subdivision (a)(4) defines “abuse”

for purposes of the DVPA to include “engag[ing] in any behavior

that has been or could be enjoined pursuant to Section 6320.”

Michael argues that language “has left the statute easily used in

derogation of fundamental rights and liberties.” We see no

vagueness problem. The “could be” language conveys a temporal

concept: the statute addresses behavior that already has been

enjoined or that qualifies as enjoinable, even if not yet enjoined,

or never enjoined. Section 6320 defines such “enjoinable”

behavior with a list of conduct that includes “disturbing the

peace of the other party.” (§ 6320, subd. (a).)

Michael also urges us to break with a line of cases dating

back nearly ten years that has interpreted “disturbing the peace”

to include non-violent conduct that “destroys the mental or

emotional calm” of its target. (Nadkarni, supra, 173 Cal.App.4th

at p. 1497; see also Burquet, supra, 223 Cal.App.4th at pp. 1146-

1147.) We decline to do so. Notwithstanding Michael’s

inapposite hypotheticals and disputed characterization of the

evidence, it appears clear from the record before us that the

trial court did not base the abuse finding solely upon Michael’s

Facebook posts, text messages, emails, or anything else as

innocuous as Michael visiting his adult daughter at Starbucks.

17

3. The Restraining Order Is Overbroad to the Extent

It Prohibits Michael from Posting on Facebook

Although we have found the evidence sufficient to support

the court’s issuance of a domestic violence restraining order, we

conclude the part of the order prohibiting Michael from posting

“anything about the case on Facebook” is overbroad and

impermissibly infringes upon his constitutionally protected

right of free speech.

7

“[P]rior restraints on speech . . . are the most serious and

the least tolerable infringement on First Amendment rights.”

(Nebraska Press Ass’n v. Stuart (1976) 427 U.S. 539, 559

(Nebraska Press).) Orders enjoining the right to speak on a

particular topic are disfavored and presumptively invalid.

(Id. at p. 558.) However, courts have recognized a prior restraint

may be permissible under certain limited circumstances.

(Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121,

143 (Aguilar); see Hobbs v. County of Westchester (2d Cir. 2005)

397 F.3d 133, 149 (Hobbs).)

To establish a valid prior restraint under the federal

Constitution, a proponent has the heavy burden to show the

countervailing interest is compelling, the prior restraint is

necessary and would be effective in promoting this interest,

and less extreme measures are unavailable. (See Hobbs, supra,

397 F.3d at p. 149; see also Nebraska Press, supra, 427 U.S.

at pp. 562-568.) A permissible order restraining future speech

“must be couched in the narrowest terms that will accomplish the



7 To the extent Michael purports to appeal a similar part of

the January 26, 2017 order continuing the restraining order

hearing, we conclude his challenge to the speech restriction is

moot, having been superseded by the subsequent order that we

address above.

18

pin-pointed objective permitted by constitutional mandate and

the essential needs of the public order.” (Carroll v. President

& Com’rs of Princess Anne (1968) 393 U.S. 175, 183-184.)

The California Constitution is more protective of free

speech rights than the federal Constitution, and California courts

require “extraordinary circumstances” before a prior restraint

may be imposed. (Wilson v. Superior Court of Los Angeles County

(1975) 13 Cal.3d 652, 658-661; In re Marriage of Candiotti (1995)

34 Cal.App.4th 718, 724 (Candiotti).) Nonetheless, in

determining the validity of a prior restraint, California courts

engage in an analysis of various factors similar to the federal

constitutional analysis (Aguilar, supra, 21 Cal.4th at pp. 145-

146), and injunctive relief restraining speech under the California

Constitution may be permissible where the relief is necessary to

“protect private rights” and further a “sufficiently strong public

policy” (id. at p. 167 (conc. opn. of Werdegar, J.)).

Applying these principles, the court in Candiotti held a

custody order limiting a parent’s right to communicate with

third parties about matters related to the custody proceeding

was an unconstitutional prior restraint. (Candiotti, supra, 34

Cal.App.4th at pp. 724-726.) There, the order prohibited a

mother from disclosing negative information about her former

husband’s new wife to anyone except certain specified

professionals. (Id. at p. 720, fn. 3.) The Candiotti court

recognized that courts “are given broad authority to supervise

and promote the welfare of children” and may constitutionally

order parents to refrain from disparaging their former spouse

in front of their children. (Id. at p. 725.) However, the court

observed the challenged order “went further, actually impinging

on a parent’s right to speak about another adult, outside the

presence of the children.” (Ibid.) The court held the order was

overbroad in this respect and constituted an undue prior

19

restraint of speech under the California Constitution, reasoning

the order “would prevent [the mother] from talking privately to

her family, friends, coworkers, or perfect strangers about her

dissatisfaction with her children’s living situation.” (Ibid.)

Although the trial court “certainly ha[d] the power to prevent

[the mother] from undermining [the father’s] parental

relationship by alienating the children from [the stepmother],”

the Candiotti court found the challenged order to be “much more

far-reaching, aimed at conduct that might cause others, outside

the immediate family, to think ill of [the stepmother].” (Id. at

p. 726.) The court explained: “Such remarks by [the mother]

may be rude or unkind. They may be motivated by hostility.

To the extent they are libelous, they may be actionable. But they

are too attenuated from conduct directly affecting the children to

support a prior restraint on [the mother’s] constitutional right to

utter them.” (Ibid.)

The same reasoning applies to the part of the restraining

order prohibiting Michael from posting information about the

case to Facebook. The record shows Michael’s Facebook posts

were not specifically directed to the minor children, but in many

cases invited comments from Michael’s adult friends and

extended family, some of whom urged him not to dwell on the

divorce, while others suggested he seek legal representation.

Moreover, although the trial court plainly had the power to

prohibit Michael from disparaging Bertha in the children’s

presence (see In re Marriage of Hartmann (2010) 185 Cal.App.4th

1247, 1251), the order here, like the order in Candiotti, was

“much more far-reaching,” proscribing speech only peripherally

related to the case and speech that might, at worst, “cause others,

outside the immediate family, to think ill” of Bertha. (Candiotti,

supra, 34 Cal.App.4th at p. 726.) Indeed, most of Michael’s

earlier posts were of this variety―they expressed his apparent

20

despair about the divorce and his separation from the children,

but did not directly disparage Bertha or openly seek to alienate

her from the children. Posts of this sort are “too attenuated from

conduct directly affecting the children to support a prior restraint

on [Michael’s] constitutional right to utter them.” (Ibid.)

“It is certainly in the best interests of any children of

divorce that the adults in their lives act in a mature and

courteous manner” (Candiotti, supra, 34 Cal.App.4th at p. 726);

however, where a restraint on the freedom of speech is concerned,

the restriction must be necessary and narrowly tailored to

promoting those interests. The part of the restraining order

prohibiting Michael from posting about the case on Facebook does

not meet this test. We conclude it is overbroad, constituting an

invalid prior restraint, and must be stricken from the domestic

violence restraining order. (Id. at pp. 724-726.)

4. The Restraining Order Properly Included the

Molinaro’s Adult Daughter as a Protected Person

Michael contends the trial court lacked jurisdiction to

include his 18-year-old daughter as a protected person under

the domestic violence restraining order. He is mistaken.

Michael cites sections 6500 and 6501, which merely define

“minor” and “adult,” and In re Marriage of Jensen (2003) 114

Cal.App.4th 587, which concerned custody and visitation orders

under a marital settlement agreement. In contrast to the statute

conferring jurisdiction to render a judgment concerning the

“custody of minor children of the marriage” in a dissolution

proceeding (§ 2010, subd. (b), italics added), the DVPA expressly

authorizes the court to include as a “protected person” under the

order “[a]ny other person related by consanguinity or affinity

within the second degree.” (§ 6211, subd. (f), italics added.)

Under this authority, the trial court properly included the

Molinaro’s adult daughter as a protected person under the order.

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5. The Court Properly Ordered Michael to Participate

in an Anger Management Program as a Restrained

Party under the DVPA

Finally, Michael argues the trial court abused its discretion

by “imposing an anger management counseling order, and in

failing to make the findings for counseling required by [section]

3190[, subdivision] (d)(2).” However, section 3190 is not part of

the DVPA, and Michael’s argument omits any mention

whatsoever of section 6343, a provision of the DVPA which states

in pertinent part, “[a]fter notice and a hearing, the court may

issue an order requiring the restrained party to participate in a

batterer’s program approved by the probation department as

provided in Section 1203.097 of the Penal Code.”8 (§ 6343,

subd. (a).) Because substantial evidence supports the court’s

finding that Michael committed abuse under the DVPA―not by

physical violence, but by “disturbing the peace of” his estranged

wife (§§ 6320, subd. (a), 6203, subd. (a)(4))―we conclude the trial

court did not abuse its discretion in ordering Michael, as “the

restrained party” (§ 6343), to undergo counseling addressed to

the apparent cause of the type of abuse he committed.9



8 Michael cites two cases, neither of which discusses

restrained parties under the DVPA. (See Camacho v. Camacho

(1985) 173 Cal.App.3d 214, 221-222 [paternity suit; appellate

court reversed trial court order that appellant “undergo

involuntary psychiatric therapy for an indefinite period of time”];

Stuard v. Stuard (2016) 244 Cal.App.4th 768 [affirming order

granting grandparents visitation with minor child, apparently

discussing section 3190 in unpublished portion of opinion].)

9 Michael makes several other similarly perfunctory

contentions that do not warrant serious consideration, many of

which he directs at the nonappealable order denying his motion

for new trial. (Cf. Code Civ. Proc., § 904.1, subd. (a)(4) [only

The part of the restraining order prohibiting Michael Molinaro from posting “anything about the case on Facebook” is reversed, and the trial court is directed to strike the provision from the order. The restraining order is affirmed in all other respects. Each party will bear his and her own costs on appeal.