In re B.S.

I know the title of this post implies that you’re about to read some complaint about an illogical decision.  After all, I doubt there’s a litigator alive who hasn’t received an adverse ruling or verdict and thought, “What a load of B.S.!”  (By the way, if you ever do feel that way, it’s time to call me.)  And that’s the way I was going to write this post, until I looked at the substance of the decision and got hooked, as I usually do, by a jurisdictional question.

In re B.S., case no. E045748 (4th Dist. Mar. 17, 2009) is a case of alleged jurisdictional conflict between two divisions of a superior court — the criminal court and juvenile court — both of which (and in that order) issued restraining orders against the appellant father of the infant B.S.  The criminal court order issued on Judicial Council form CR-160, and ordered that petitioner “must not harass, strike, threaten, assault (sexually or otherwise), follow, stalk, molest, destroy or damage personal or real property, disturb the peace, keep under surveillance, or block movements of” B.S. and B.S.’s mother.  At the juvenile court hearing, appellant insisted this restraining order was enough, and that it would be improper for the juvenile court to order anything more restrictive, but that is just what the juvenile court did.  On Judicial Council form JV-250, the juvenile court entered a more restrictive restraining order that also prevented the father from contacting (with extremely limited exceptions) the mother, B.S., and the maternal grandmother and required that he keep a minimum distance between himself and any of them.

The father contended on appeal that the juvenile court lacked jurisdiction to enter the restraining order because of the pre-existing restraining order issued by the criminal court.  That was an awfully tough sell in light of the statutory scheme:

Here, the Legislature has provided that a restraining order issued by a criminal court against a defendant charged with domestic violence “has precedence in enforcement over any civil court order against the defendant . . . .”  (Pen. Code, § 136.2, subd. (e)(2).)  Thus, it evidently contemplates the issuance of a criminal restraining order, despite a preexisting civil restraining order, or vice versa. 

This precedence was not undercut by the father’s resort to the policy behind the rule of exclusive concurrent jurisdiction:

The father, invoking the policy behind the rule of exclusive concurrent jurisdiction, argues that he has been saddled with “the burden of having to deal with multiple courts and potentially conflicting orders.”  However, he has not pointed out any actual conflict between the two orders.  The criminal order does not require him to do anything that the juvenile order prohibits, or vice versa.  Admittedly, the juvenile order is more restrictive than the criminal order.  Nevertheless, it is possible for him to comply with both.  In any event, the juvenile order provided that any apparent conflict must be resolved in favor of the criminal order, thus making any actual conflict impossible. 

The father argues that the two orders are “confusing” with regard to which order takes precedence.  But not so.  The criminal order provided, “[T]his order takes precedence over any conflicting protective order . . . if the protected person is a victim of domestic violence . . . .”  The juvenile order then similarly provided, “If a criminal restraining order . . . conflicts with a juvenile restraining order . . . , a law enforcement agency must enforce the criminal order.  . . . Any nonconflicting terms of the juvenile custody or visitation order remain in full force.”  Thus, both orders consistently provided that, in the event of an actual conflict, the criminal order would take precedence.

It’s difficult to see where the father’s lawyer saw any opening here.  This rule of precedence is not merely buried in the statutes; it is part of the standard language on forms CR-160 and JV-250. Perhaps the benefit of 20/20 hindsight is to blame, but I think this had to look unpromising from the beginning.


  • Jack of All Arguments

    I agree, but the making of the argument is perhaps explained by the fact that the father’s counsel was appointed. That is, appointed counsel was trying to make whatever argument he could (maybe to avoid a wende situation??) and that was the best he had. No inside knowledge — that is just what it looks like to me.

  • Anonymous

    As I see it, the client had some possible defenses. First, was he served orrectly per the statutes of personal service? Did he try to vacate the order(s) ? Also, was a court commissioner involved, if so did the court accuire subject matter jurisdiction by way of Cal VI< art 21 obtain written stips from both parties as required? Lacking the required stips ( Bernie v Stevens Cal 1)(Settlemire v Settlemire 2nd app div 6, SLO County) state sno commissioner may issue a restraining order without a stip from the parties.