Court: Woman can get restraining order against ex-spouse in another state

SACRAMENTO — The 3rd District Court of Appeal has ruled a woman can get a restraining order against her ex-husband even though he lives thousands of miles away.

Attorneys for Marla Hogue hailed what they say is a first-of-its-kind decision that will give victims a new tool to use to fight back against cyber abuse. Hogue v. Hogue, 2017 DJDAR 10398.

Hogue’s case was argued pro bono by Kelly M. Dermody, a partner with Lieff Cabraser Heimann & Bernstein LLP in San Francisco who manages the firm’s employment law group.

She said her firm has a long relationship with Family Violence Appellate Project in Oakland, which helped Marla Hogue file her appeal. While the court did not rule on the merits of the restraining order itself, the published decision creates a precedent for courts in California to issue such orders in the future.

The case was remanded to Sacramento County Superior Court.

“It’s really important for people in the domestic violence community to have some bright lines that they can hold onto,” Dermody said. “You don’t want to have survivors of domestic violence going through a long period of unprotected jurisdictional battles.”

Dermody said her arguments focused on the increasing ease abusers have in inflicting emotional distress through social media, and added that it is “inevitable” that courts in other states will look at the issue.

Marla Hogue married her now-former husband, Jerry Hogue, in California. The couple later moved to Georgia. In late 2015, Marla Hogue traveled back to California seeking to escape what she said was a cycle of violence, threats and rape, according to the opinion.

She alleged that in December 2015, Jerry Hogue sent her a video message on social media in which he faked his own suicide with a shotgun. In February 2016, she sought a restraining order in Sacramento County Superior Court to force him to cease contact.

The defendant’s attorney in the lower court case, Patrick D. Kubasek with Bartholomew & Wasznicky LLP in Sacramento, was able to quash the order on jurisdictional grounds.

Reached Tuesday, Kubasek said he believes the lower court and the 3rd District reached the proper rulings given the available precedents. Kubasek said he attended the oral arguments as a spectator. The defendant did not appear and was not represented by counsel.

“I’m glad they decided to publish this opinion to add some clarity to the issue of personal jurisdiction and domestic violence matters,” Kubasek said. “When I was researching this for the motion to quash, there weren’t really any published opinions that provided a lot of guidance.”

The three-judge panel led by Justice M. Kathleen Butz ruled unanimously that the defendant “comes within the ‘special regulation’ basis for specific jurisdiction.”

“The very existence of the Domestic Violence Protection Act bespeaks California’s concern with an exceptional type of conduct that it subjects to special regulation,” Butz wrote.

She added that the defendant’s behavior was “sufficient to exercise jurisdiction over the defendant because it was not any different ‘than shooting a gun into the state,’” citing Kearney v. Salomon Smith Barney, Inc. (2006) 39 Cal.4th 95, 120.

Butz also rejected the notion the defendant lacked recourse to defend himself, noting he “did not have any apparent difficulty in engaging the services of counsel” in the lower court case.

Dermody was assisted by Yaman Salahi, who recently left Lieff Cabraser to take a law clerk position, and Shuray S. Ghorishi, a staff attorney with the Family Violence Appellate Project.

Ghorishi said her client could not afford the travel and attorneys necessary to get an order from outside California.

The defendant “has since moved to South Carolina, but the abuse occurred in Georgia,” Ghorishi said. “There was an issue there as to whether or not she would ever be able to obtain protection.”

The case ties up a loose end that was created through a 2015 3rd District case also brought by Ghorishi’s organization, Sabato v. Brooks, C075028 (Cal. App. 3rd Dist., filed Aug. 28, 2013). That case involved a defendant in Texas also seeking to block a restraining order in California.

The court allowed that order to go through as well, but did so on procedural grounds when the pro per defendant repeatedly violated the rules of court. This caught the attention of defense attorneys in similar cases, Ghorishi said.

“Because the court did not address the underlying issue of whether there was jurisdiction, what we were seeing here was an increase in motions to quash when survivors of domestic abuse are requesting restraining orders,” Ghorishi said. “That case left a huge question mark as to whether California would issue these orders.”