When Violence is Not Abuse

W filed for divorce from H. In her petition, she requested sole custody of their son, spousal support and a domestic violence restraining order (DVRO). She stated that H had been violent toward her numerous times and she had pictures of her injuries to prove it – including a bite mark on her finger!

H responded to W’s petition opposing the DVRO and asking for joint custody of their son. He claimed that he was not a violent person, but that W was very mercurial and abusive toward him.

At the evidentiary hearing for the DVRO, W testified that she and H argued often. She produced photos of her injuries caused by H. H testified that he never hit W and that he did not have an anger management problem.

According to H, the photos W had were about an incident that took place in August of 2015. W took H’s laptop and hid it from him - something she did to him often when he didn’t do what she wanted. To get his laptop, cell phone, or other items returned to him, he would have to give in to her demands or she wouldn’t return them. In this instance, however, he found the laptop in their bedroom. He attempted to leave the room, but W blocked the doorway. He held the laptop behind his back, while she struggled with him to get it away from him. When that didn’t work, W spat on his face and then covered his nose and mouth with her hand. H turned his head trying to get W’s hand away from his face so he could breathe. In the process, he bit down on her finger to make her let go. Their combined struggling caused them to fall and land on their bed where W banged her knee on the bed frame.

In another incident, H testified that W took his cell phone away from him. When she got close enough to him, he snatched it back from her. This made her angry and she began fighting with him to get the cell phone away from him. H told her to stop hitting him because she was hurting him. He finally wriggled free causing W to fall backward and land on her tailbone.

This was the final straw. H backed his bag to move out, and that enraged W. She began hitting him and took his cell phone. This time, though, she put the phone in the sink and ran water over it. H was able to get the phone back and left the house.

W did not dispute H’s testimony, but believed that H was violent because she was the one who was injured. Therefore, she was entitled to a DVRO. The trial court disagreed and W appealed.

The Appellate Court agreed with the trial court:

“…Under California law, a person may use reasonable force to resist a battery even if such force causes bodily injury to the initial aggressor... Moreover, an owner of property may employ reasonable force to protect property from damage … or to retake property from a person who has obtained possession of it by force and is overtaken while carrying it away.”

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