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1. Curcio’s petition

Curcio and Pels used to date. Their relationship ended in

early 2016. They both are comedic performers. On November 2,

2018, Curcio filed a Judicial Council form DV-100 request for

a domestic violence restraining order against Pels. The form

asks the applicant to describe the most recent abuse and any past

abuse. Curcio stated the most recent abuse occurred October 16,

2018, and Pels had abused her from November 2015 through

the present.2 Curcio attached a declaration to describe the abuse:

On October 16, 2018, “Pels reached out to people” at the theater

where Curcio performed “in an attempt to have [Curcio] banned

by falsely accusing [her] of physical [and] sexual assault.” Curcio

stated that when she was not banned from the theater, Pels

“publicly posted on social media with [her] name [and] the

accusations.” Curcio declared “multiple friends” sent her “screen

shots from [Pels’s] social media accounts vaguely accusing [her]

of abuse [and] urging people not to book [her] on comedy shows.”



1 Statutory references are to the Family Code unless

otherwise noted.

2 Curcio wrote “N/A” in the space to “[d]escribe any injuries”

for the most recent abuse, and “[a] blow to the head” for the past

abuse.

3

Curcio accused Pels of threatening, in December 2015,

“to ruin [her] reputation with false accusations of abuse,

if [she] ever crossed her.” She also asserted that during their

relationship in November 2015, she awoke to a “blow to [her]

head” after falling asleep during an intimate encounter with Pels.

Curcio stated that after they broke up in early 2016, Pels tried

to get into comedy shows where Curcio was performing and

“behaved aggressively” when she was not let in. When Pels

“made an aggressive attempt to get into” one of Curcio’s shows

in March 2016, the host banned Pels from the show. Curcio also

declared Pels waited outside the front door of her apartment in

March 2016 and would not leave until Curcio had two friends

come over.

Curcio described Pels as coming to one of her comedy

shows in January 2018 and trying to get “physically close” to her,

despite Curcio’s “attempts to get away from her.” She stated Pels

“has also tried to be booked on the same shows as me [and] has

occasionally heckled me.” She said she wanted the restraining

order because she “talked” to Pels’s “ex.” Curcio described her

conversation with the woman. She attached a text message the

woman sent to her as an exhibit to her petition. In it the woman

described Pels as “unstable, dangerous, and [a] pathologically

lying person.” After describing the woman’s account of her

relationship with Pels, Curcio asserted, “This is the repeated

pattern of explosive, volatile behavior that makes me feel scared

of Julia Pels. Her obsession [and] fixation on me for the last

3 years since our breakup also makes me feel threatened [and]

like this will escalate to physical abuse again.”

Curcio attached several exhibits to her petition, including

what she described as Pels’s “public[ ] social media post, accusing

me of physical/sexual assault [and] likening booking me on

comedy shows to supporting a rapist.” Because it is the primary

4

basis for the restraining order, we reproduce Pels’s Facebook post

as it originally appears in the record:

“I HAVE WAITED THREE YEARS to say this.

with all the talk of equality and ‘believing

women,’ I thought it was time to share my

story. as much as i’ve wanted to write this

post, i’ve also dreaded it. like most abuse

victims, we are afraid we won’t be believed or

we will be shamed for telling the truth. but i’m

NOT a victim, i’m a survivor and i’m NOT

afraid to tell the truth anymore.

“JEN CURCIO (yes, i just outted my abuser)

was SEVERELY AND DISTURBINGLY

ABUSIVE TO ME in the six months we dated.

she still abused ME EVEN AFTER i broke up

with her. she gave me ptsd among other

things.

“NOW, i’m here to say this to all of the

‘FEMINISTS’ out there. if you are going to

believe ALL WOMEN, that goes for QUEER

women as well. men are not the only predators

in this world, unfortunately. women, YES

WOMEN, can be just as bad.

“AND, FOR THE RECORD it’s not a ‘she said/

she said.’ i have proof. wanna see the death

threats from her friends, pictures of bruises or

recordings of her verbally accosting me? i’m

tired of keeping my mouth shut. she doesn’t

even deserve this post, but other women

5

deserve to be SAFE. that’s the ONLY reason

why i’m telling this story.

“WHEN YOU BOOK HER ON YOUR SHOWS,

BEFRIEND HER, PLAY ON IMPROV TEAMS

WITH HER YOU, ARE ENABLING AN

ABUSER. IT IS LIKE SUPPORTING A

RAPIST, would you book a male comic rapist

or abuser of any sort? LET US ALL STOP

BEING HYPOCRITICAL AND BELIEVE ALL

WOMEN, including me.

“AND TO ALL OF MY FRIENDS THAT HAVE

AND DO BELIEVE AND SUPPORT ME, i love

you infinitely. TO THOSE that don’t believe

me, unfollow me now!

“p.s. she has abused other women and even

improv members so please be careful. she is

currently under investigation by multiple

theatres.”

Curcio also attached screen shots of messages from her

friends commenting about Pels and a “cease and desist” letter

she sent to Pels in October 2018 after the Facebook post.

Curcio checked the boxes on the form to request personal

conduct orders, including that Pels be restrained from harassing

or disturbing Curcio’s peace, a stay-away order requiring Pels

to stay 100 yards away from Curcio, and the right to record

any communication that violated the court’s orders. Curcio also

asked the court “to order [Pels] to stop posting about me on social

media platforms.”

6

The hearing on Curcio’s petition and restraining order

The court held a hearing on whether to grant the

restraining orders on November 26, 2018. Both Curcio and Pels

appeared at the hearing in pro. per. and were placed under oath.

The court acknowledged it had a proof of service, and Curcio’s

requested restraining orders against Pels had been granted

on November 2, 2018, “on a temporary basis” (TRO).3

The court explained to the parties, “My job today is to

review the evidence from both sides for the first time because

on the day that Ms. Curcio filed her petition, Ms. Pels was not

present. She did not know what she was being accused of, and

she had not had an opportunity to contest or oppose the request

for further restraining orders. [¶] Today is the day that Ms. Pels

gets to exercise her constitutional right for a full and fair

hearing.” The court “noted . . . the granting of the TRO created

a presumption that some type of abuse has occurred. It’s

a rebuttable presumption which means that Ms. Pels may

overcome and dissolve the presumption through her evidence.”

The court explained Pels could cross-examine Curcio about

the allegations, present her own witnesses if they had personal

knowledge the alleged conduct did not happen, and testify herself

under oath. The evidence she presented could lead the court

to find Curcio has not sustained her burden of proof.

The court then said Curcio had sustained her burden of

proof “on a preliminary basis” as a result of the TRO. It shifted

the burden to Pels, stating she had “the burden of proving by

a preponderance of the evidence that these allegations are not

true.” The court asked Curcio if her statements in the petition

were “true, accurate and correct.” After she answered, “[y]es,”



3 The TRO, notice of hearing, and proof of service of the TRO

are not included in the appellate record.

7

the court accepted Curcio’s written statements as her preliminary

testimony, finding it supported the earlier granting of the TRO.

The court then shifted the burden to Pels.

The court asked Pels if she had “any questions for Ms.

Curcio about these allegations,” and if she had any witnesses

she would like to call. Pels said, “[n]o.” The court then allowed

Pels to testify on her own behalf.

Pels testified she made the October 16, 2018 social media

post stating Curcio had abused her “on my private Facebook page

that is on lockdown where no one except my friends can see it.”

Pels said she had proof of Curcio’s verbal and psychological abuse

of her, and also asserted Curcio had manhandled her. She told

the court she had photographs and audio recordings. The court

explained it could hear evidence of Curcio’s abuse only if Pels

had filed a petition against Curcio that was before the court.

After explaining she did not file her own petition because

most of Curcio’s behavior “was not physical,” Pels seems to have

attempted to address Curcio’s allegation that Pels hit her in the

head in late 2015. Pels told the court she had email messages

and Facebook messages from Curcio expressing her love for Pels

and wanting Pels “to come home for dinner” from the same time

period when Curcio alleged Pels gave the blow to the head. Pels

testified that since they broke up in 2016, “[t]here has been no

contact from me.”

She asserted, “Ms. Curcio has no evidentiary support of

any of this. She did this as an act of malice and revenge because

I told the truth of her verbal, psychological and mental abuse

that I had to endure, your honor, for three years.” Pels

mentioned “someone else” told her Curcio had done the same

thing to her.

The court responded that it had “listened carefully” to what

Pels had said, “but at this point everything you told me even if

8

it were soaking wet true would not help me because it’s not

admissible evidence as a defense to the allegations that Ms.

Curcio is making. [¶] . . . If you had a petition on file, I would

hear both of you and in the wors[t] case scenario . . . I would

grant mutual restraining orders, but I do not have that. [¶] So

everything you told me cannot be a defense to a zero tolerance

act of domestic violence.”

The court then asked Curcio if she claimed Pels had

been physically abusive and when the abuse happened. Curcio

responded, “November 2015 . . . , I fell asleep, and I felt a blow

to my head.” The court then asked, “If that happened in 2015,

why am I hearing about it now?” Curcio answered,

“Because on November4 the 16th Ms. Pels did

post . . . I believe it was not public but we both

are in comedy and I have had no contact with

her, but she posted using my name accusing

me of sexual and physical assault and mental

and verbal assault, and those are not true

allegations, and to a lot of people she

specifically said when you book her [meaning

Curcio] for shows, befriend her, play on

improv[ ] teams with her, you are enabling

an abuser. It’s like supporting a rapist. [¶] . . .

I have my job at CollegeHumor because of

my comedy, and people at my work were

questioning me about this post, and I had

to go to my immediate supervisor and explain

everything that has happened, and there’s

just always been kind of rumblings from her



4 The record demonstrates the Facebook post was in October

2018.

9

about these false accusations of abuse,

and it’s starting to hurt my career.”

After hearing from Curcio, the court explained to Pels

that “disturbing someone’s peace to a degree that no reasonable

person should have to endure,” is a ground for issuing a

restraining order. The court continued, “I can and will issue

those restraining orders even if you never laid a hand on the

petitioner, and what she just put on the record is that you have

interfered with her ability or you have attempted to interfere

with her ability to earn a living. That would disturb the peace

of any reasonable person. If you came into my life telling people

that I should not be on the bench for X reasons, it would disturb

me greatly. You are disturbing my peace by interfering with

my ability to earn a living. [¶] Why is it any different if you are

posting on social media that no one should book her?”

The court reasoned, “Telling somebody don’t book somebody

is interfering with their work. . . . [¶] It’s not something that

the law tolerates. It’s a form of abuse.” Directing its comments

toward Curcio, the court qualified that it was “not too worried

about . . . 2[0]15. . . . If it happened, it’s inappropriate, and if it

happened, it’s a violation of the domestic violence prevention act,

but what happened in 2015 does not carry the same weight as

if it happened last month or even last year. [¶] But now you

add to that an allegation that she has gone into your life telling

prospective employers not to book you. You have my attention.

Is there anything else I need to know?” Curcio then described

Pels’s friend posting photos on Instagram after Pels was served,

but the court found that was not evidence of domestic abuse

by Pels.

Pels then asked the court how Curcio “can get a restraining

order against me aside from the Facebook post with zero

evidentiary support to support her other allegations.” She said

10

she would take the Facebook post down, “if that means that

I never have to see her again. I want nothing to do with Ms.

Curcio. You don’t have to restrain me. I don’t even think of her.”

The court responded, “The issue for me is that if you don’t

want to be in her life . . . [¶] then don’t post anything anywhere,

at anytime about her. I’m going to issue a restraining order that

orders you to do that because that is inappropriate and harmful.”

The court ordered, “For two years only you are ordered

to not harass Ms. Curcio. You may not strike or hit her. Even

though it’s remote in time, it’s not going to happen in the future.

You may not assault her sexually or otherwise. You may not

molest her or disturb her peace in any way, shape or form. [¶]

You may not disturb her peace by posting anything on any

social media that includes her name, face and likeness. You

are expressly ordered to not post anything on the internet or

any social media that would suggest to prospective employers

that they should not hire her or book her in any way. [¶] You

are ordered to not contact her directly, indirectly, in any way

including but not limited to by telephone, mail, email, text

message, Facebook, Instagram, social media or other electronic

means.”

The court ordered Curcio to stay 100 yards away from Pels,

except in comedy clubs. It ordered Pels to stay five yards from

Curcio in comedy clubs and not interrupt Curcio’s set or talk to

her while at the club. The court incorporated the orders it read

into the record by reference “as though set forth in full” in the

written restraining order.

After an exchange with Pels, described in more detail

below, the court concluded she had not “accept[ed] responsibility

for the evidence” concerning the Facebook post and extended

the restraining order an additional year.

11

The court then entered the Judicial Council form DV-130

restraining order after hearing in favor of Curcio against Pels

with a November 26, 2021 expiration date. In addition to the

form personal conduct and stay-away orders, the order states

Pels “is to remove [Curcio’s] name and image from any and

all social media and post nothing to social media of or about

[Curcio].”

2. Pels’s motion for reconsideration

After the hearing, Pels retained counsel who filed a motion

for reconsideration on her behalf on December 5, 2018. Pels,

through her attorney, argued she was not provided the required

forms DV-120 and DV-120 Information when she was served

with the restraining order hearing documents, which provide

instruction on how to file a response. Counsel argued that

because Pels was not served with the required forms, “she did

not know how to prepare for the . . . hearing” and did not bring

any witnesses. She requested the court reconsider its order and

“allow Ms. Pels an opportunity to present her case properly with

the assistance of counsel.” Pels’s counsel represented Pels would

“put forth witness(es), declarations, and other testimony properly

challenging and responding to the unfounded accusations made

by Ms. Curcio,” providing new facts not available at the

November 2018 hearing.

Counsel also argued the court had improperly shifted the

burden of proof to Pels. She contended the court “could have

provided Ms. Pels with an opportunity to continue the hearing”

when Pels told the court she would have brought witnesses if

she had known she needed to do so.5



5 During the November 2018 hearing, after the court issued

the restraining order, Pels told the court, “I moved, your honor,

and I was unaware of any of this. I would have brought

12

Finally, counsel argued new circumstances existed in that

since the entry of the restraining order on November 26, 2018,

Pels had been banned from a comedy venue where she had

worked. Pels submitted a declaration in support of the motion

for reconsideration. She declared she “never abused [Curcio]

physically, psychologically, sexually or in any manner during

[their] relationship back in 2015 until now.” She stated she

was not served with documents about how to respond to the

restraining order, she did not know she had the burden of proof

until the court told her she did at the November 2018 hearing,

she would have brought witnesses and evidence to the hearing

had she known, and she was unaware she could request a

continuance to prepare for the hearing or hire an attorney.

Pels also declared she has been banned from the venue where

she performed her comedy show, which “interferes with my

livelihood.” Pels’s agent submitted a declaration averring

“[u]pon information and belief, if this domestic violence

restraining order is not lifted, it will be very difficult for me to

book Ms. Pels for any paid jobs in major film and television.”

The court heard Pels’s motion for reconsideration on

January 4, 2019. It heard testimony from Pels concerning

the new facts she contended supported her motion for

reconsideration, including allegations of Curcio’s abuse. In

response to questions by her attorney, Pels denied hitting Curcio

in the head. She again testified she had not had any contact with

Curcio since 2016. She also confirmed she made one post on her

private Facebook page about Curcio’s abuse on October 16, 2018.

“Nowhere public.” Pels said she made the October 2018 Facebook

post “[b]ecause over five women came forward telling me Ms.



witnesses today. I would have brought witnesses. There’s been

no contact . . . . She has no proof of any contact, Your Honor.”

13

Curcio had done the same thing to . . .[¶] . . .them.” She agreed

she “felt the need to speak out even though [she] had not

contacted [Curcio] or talked to her for that long.”

The court explained Pels had the right to file her own

petition, but “it does not prove that I was wrong in issuing my

restraining order.” The court concluded the new facts Pels

presented were “in support of a petition not before” it. It

concluded no new facts supported reconsideration of its

issuance of the restraining order and denied the motion.

DISCUSSION

Pels challenges the restraining order on a number of

grounds. She contends the court improperly shifted the burden

of proof to her, her private Facebook post does not constitute

disturbing the peace under the DVPA, the order constitutes

a prior restraint on Pels’s speech, and the court abused its

discretion when it extended the expiration date of the order

from two to three years.

1. Applicable law and standard of review

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 (Davila & Mejia); Nevarez v.

Tonna (2014) 227 Cal.App.4th 774, 782; accord, §§ 6220, 6300.)

Abuse includes “intentionally or recklessly caus[ing] or

attempt[ing] to cause bodily injury”; “[s]exual assault”; “plac[ing]

a person in reasonable apprehension of imminent serious bodily

injury to that person or to another”; and “engag[ing] in any

behavior that has been or could be enjoined” under section 6320.

(§ 6203, subd. (a).) Behavior that may be enjoined under section

6320 relevant to this appeal includes “disturbing the peace of

14

the other party” (§ 6320, subd. (a)), which “may be properly

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

emotional calm.” (In re Marriage of Nadkarni (2009) 173

Cal.App.4th 1483, 1496-1497 (Nadkarni).) “Thus, section 6320

provides that ‘the requisite abuse need not be actual infliction

of physical injury or assault.’ ” (Id. at p. 1496.)

The DVPA vests the court with discretion to issue a

restraining order “simply on the basis of an affidavit showing

past abuse.” (Nakamura v. Parker (2007) 156 Cal.App.4th 327,

334, 337-338 [reversing summary denial of TRO].) 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 upon to review

the court’s factual findings, we apply the substantial evidence

standard of review. (Davila & Mejia, supra, 29 Cal.App.5th at

p. 226.) 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.)

15

2. The private Facebook post was insufficient to support

the issuance of a domestic violence restraining order

The trial court made clear it was issuing the restraining

order on the ground Pels had disturbed Curcio’s peace through

the October 2018 Facebook post. We thus first consider whether

the post is sufficient evidence of abuse. As the court told Pels,

the DVPA does not require Pels to have “laid a hand on” Curcio

for a restraining order to issue. Pels could be enjoined under

the DVPA for disturbing Curcio’s peace through conduct causing

“destruction of her mental or emotional calm.” (Nadkarni, supra,

173 Cal.App.4th at pp. 1497, 1499.)

Courts of Appeal have found conduct involving

communications such as text messages, email, and social media

constitutes abuse under the DVPA for disturbing the petitioner’s

peace. In defining “disturbing the peace” under the DVPA as

“conduct that destroys [another’s] mental or emotional calm,”

the Sixth District Court of Appeal in Nadkarni concluded the

petitioner’s application for a restraining order was facially

sufficient where she alleged her ex-husband accessed, read, and

publicly disclosed the content of her confidential emails, which

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

(Nadkarni, supra, 173 Cal.App.4th at pp. 1497-1499 [reversing

dismissal of application for restraining order].) The court

concluded the ex-husband’s conduct with respect to the e-mail

account allegedly caused the “destruction of [petitioner’s] mental

or emotional calm and could, if found to be true, constitute

‘disturbing the peace of’ ” the ex-wife “sufficient for a showing

of abuse under the DVPA.” (Id. at pp. 1498-1499.)

Similarly, in In re Marriage of Evilsizor & Sweeney (2015)

237 Cal.App.4th 1416, 1419, the First District Court of Appeal

affirmed the trial court’s finding of abuse and issuance of a

restraining order under the DVPA where a husband downloaded

16

“tens of thousands of text messages” from his wife’s cell phones

and information from the “ ‘notes’ section of [her] iPhone, which

[she] used as a diary,” and filed copies of some of the downloaded

messages with the court during the couple’s dissolution

proceedings. (Id. at p. 1420.) The wife alleged the husband also

transmitted private text communications to third parties, had

“hacked into her Facebook account, changed her password,

and rerouted the e-mail associated with her Facebook account

to his own account,” and “threatened to reveal publicly more

text messages and e-mails for leverage in the dissolution

proceedings.” (Id. at p. 1421.) And, this District concluded

substantial evidence supported the trial court’s finding a

defendant “disturbed the peace of plaintiff” through a “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.” (Burquet, supra, 223 Cal.App.4th

at pp. 1142-1144, 1146-1147.)

Pels’s single, private Facebook post accusing Curcio of

abusing her is a far cry from the conduct described above. Pels

expressed political views and posted her opinion of Curcio to her

own private social media account. Curcio herself told the court

she believed the post “was not public.” Curcio also presented

no evidence Pels sent her harassing, threatening, or unwanted

texts or e-mails, as in Burquet, or social media posts, for example.

Indeed, Curcio told the court she had not been in contact with

Pels. Nor is there evidence Pels published or distributed to third

parties Curcio’s private information or messages, as was the case

in both Nadkarni and In re Marriage of Evilsizor & Sweeney.

Curcio certainly never claimed the Facebook post included her

confidential information.

We do not interpret Nadkarni and its progeny to hold

a restraining order may issue based on any act that upsets

17

the petitioning party. The DVPA was not enacted to address

all disputes between former couples, or to create an alternative

forum for resolution of every dispute between such individuals.

If Pels’s Facebook post is libelous, for example, Curcio may seek

recourse through a defamation suit.

Curcio understandably was upset by the social media post

and it may have made her fear for her career, but we conclude

it cannot be said to rise to the level of destruction of Curcio’s

mental and emotional calm, sufficient to support the issuance

of a domestic violence restraining order.6

Because we find the

Facebook post does not constitute abuse under the DVPA we

need not address Pels’s contention the order is a prior restraint

on her speech.

3. The remaining allegations do not support issuance

of the restraining order because the court improperly

shifted the burden of proof to Pels

Besides the Facebook post, the other allegation the court

discussed7 when issuing the restraining order was Pels’s alleged



6 We note a domestic violence restraining order is

no ordinary injunction. Its violation is punishable as a

misdemeanor. (Pen. Code, §§ 166, subd. (c)(3)(A); 273.6.) Arrest

is mandatory where an officer has probable cause to believe

the order has been violated. (Pen. Code, § 836, subd. (c)(1).)

Moreover, “[t]here often will be some social stigma attached while

a person is subject to a protective order. Existing employers

may frown on an employee who is subject to such an order and

prospective employers almost surely will. Thus[,] the restrained

party may lose out on a promotion or a job.” (Ritchie v. Konrad

(2004) 115 Cal.App.4th 1275, 1291.)

7 To the extent the court considered Curcio’s other

allegations—for example that Pels came to one of her comedy

shows—they too cannot support the restraining order because

18

“blow” to Curcio’s head in 2015. The only definition of abuse

under the DVPA to which the blow to the head falls is “[t]o

intentionally or recklessly cause or attempt to cause bodily

injury.” (§ 6203, subd. (a)(1).) The court never found Curcio

proved by a preponderance of the evidence that Pels hit her

intentionally or recklessly, however. The court merely found

Curcio’s written statements supported the granting of the TRO;

they raised “a presumption that something happened.”

Instead, the court shifted the burden to Pels to prove “by a

preponderance of the evidence that [Curcio’s] allegations are not

true.” But the law imposes no such burden on a party opposing

a restraining order. As the party seeking the restraining order,

Curcio was required to prove past abuse by a preponderance of

the evidence. (Davila & Mejia, supra, 29 Cal.App.5th at p. 226

[“The DVPA requires a showing of past abuse by a preponderance

of the evidence.”].) In her written statement Curcio said she

“was awakened by a blow to [her] head” and when she asked

Pels “why she did this[,] [Pels] laughed.” Pels seems to have

attempted to prove Curcio’s statement false—as the court told

her she was required to do—by telling the court she had evidence

Curcio told her she loved her and wanted her to come home

during that same time.8 She also argued Curcio had “no

evidentiary support.”

The court’s comments on the record about the 2015

incident make clear the court did not find Curcio proved by a



the court presumed them to be true and shifted the burden to

Pels to prove them false.

8 Pels denied the accusation at the subsequent hearing

on her motion for reconsideration and in her declaration filed

in support of that motion.

19

preponderance of the evidence that (1) the blow to the head

occurred, or (2) Pels intentionally or recklessly caused or

attempted to cause Curcio bodily injury with the alleged blow

to the head. The court said, “If it happened, it’s not right. If it

happened, it’s inappropriate, and if it happened, it’s a violation of

the [DVPA].” (Italics added.) Moreover, the court acknowledged

it wasn’t “too worried” about the alleged incident, and found

“what happened in 2015 does not carry the same weight” as

if it happened more recently. The court made clear it was the

Facebook post “telling prospective employers not to book [Curcio]”

that it found warranted the restraining order. That is what got

the court’s “attention.”

Because the record does not demonstrate Curcio proved

by a preponderance of the evidence an act of past abuse, and

the court improperly shifted the burden to Pels to prove Curcio’s

allegations false, we reverse.9



9 We note that during an exchange with Pels’s counsel at

the hearing on Pels’s motion for reconsideration, the court noted

the restraining order “was granted in part because there was

an allegation that [Pels] caused a blow to the head of Ms. Curcio,”

and that while it could give “less weight the further remote in

time that the evidence is. [¶] A blow to the head in 2016 [sic] is

not so remote that I would not consider it.” Responding to Pels’s

counsel’s comment, the court also mentioned a police report was

not required “in order to believe [Curcio’s] testimony under oath”

about the incident.

Toward the end of the reconsideration hearing, the court

also stated it found Curcio “sustained her burden of proof by a

51 percent or more margin.” The court made the comment after

it had rejected Pels’s counsel’s argument that the burden shifted

to Pels, and after she argued the court’s stated main reason for

granting the restraining order—Pels’s private Facebook post—

was insufficient to constitute disturbing the peace. It is unclear,

therefore, whether the court was referring to Curcio meeting her

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4. The court abused its discretion when it extended

the restraining order for an additional year

In the event of further proceedings in this matter, we

address Pels’s contention the court abused its discretion when

it extended the expiration date of the restraining order from

November 2020 to November 2021. After the court read the

terms of the restraining order, Pels responded, “I have never been

arrested or been a violent person. This is a manipulation of the

court. I’m disappointed, but I respect you and I will respect your

orders. Thank you.” The court engaged Pels, ultimately asking

her, “Did you post that people should not book her? Yes or no?”

The following colloquy/dialogue ensued:

Pels: “No, it says when you book her. It

does not say do not book her, and also I have

evidence in my phone, and if I knew I needed

witnesses today, there would [be] 120 people

here saying the same thing. [¶] I moved,

your honor, and I was unaware of any of this.

I would have brought witnesses. There’s been

no contact, no police reports, no restraining

orders. She has no proof of any contact, your

honor. I do not need to be restrained. If I’m

in a comedy club, she could call the police, and

I could be arrested for just being at my space

and performing. [¶] Ms. Curcio does not get

paid to perform, your honor. So I’m not



burden of proof on the disturbing the peace allegation or the blow

to the head. In any event, the court’s earlier statements we have

described, combined with its shifting of the burden of proof to

Pels, demonstrate the court had not found the blow to the head

allegation true by a preponderance of the evidence at the time

it issued the restraining order.

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interrupting her job. She has a day job.

And it’s very upsetting when people with

mental illnesses abuse the court system. [¶]

I appreciate your time today.”

Court: “You are running through rain drops,

young lady. You want me to feel good about

saying that you have nothing against me except

allowing myself to be manipulated. I do not

allow myself to be manipulated. When on the

record you talk about people not booking her

and not employing her, I asked you if that

were true to see if you were willing to accept

responsibility. Accepting responsibility in

these conduct cases carries a lot of weight.

You have done the exact opposite. [¶] Your

order is now for three years for not accepting

responsibility for the evidence that I have

before me.”

The record does not support the court’s finding. Pels

admitted she had made the Facebook post. Her response to the

court that she did not “post that people should not book her,” but

posted, “when you book her,” is factually accurate. She also told

the court, “I respect your order.” The court articulated no legal

basis to add another year to the restraining order and abused

its discretion by doing so.

The November 26, 2018 order restraining Julia Pels is reversed. The parties are to bear their own costs on appeal.