Curcio v. Pels

• Decision Date: 27 February 2020
• Docket Number: B295293
• Citation: 47 Cal.App.5th 1,259 Cal.Rptr.3d 912
• Court: California Court of Appeals Court of Appeals
• Parties: Jennifer CURCIO, Plaintiff and Respondent, v. Julia PELS, Defendant and Appellant.

47 Cal.App.5th 1

259 Cal.Rptr.3d 912

Jennifer CURCIO, Plaintiff and Respondent,

v.Julia PELS, Defendant and Appellant.

B295293

Court of Appeal, Second District, Division 3, California.

Filed February 27, 2020

Susan L. Ferguson, North Hollywood, for Defendant and Appellant.

Jennifer Curcio, in pro. per., for Plaintiff and Respondent.

EGERTON, J.

Julia Pels appeals from a restraining order issued under the Domestic Violence Prevention Act (DVPA) ( Fam. Code, § 6200 et seq. )¹ at the request of her former girlfriend Jennifer Curcio. We agree with Pels that the trial court’s finding she disturbed the peace is not supported by substantial evidence and the trial court improperly shifted the burden of proof of past abuse to her. We reverse.

FACTS AND PROCEDURAL BACKGROUND

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."

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 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 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."

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," 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 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...