Domestic Violence

• Author: Kevin R. Culhane
• Pages: 893-930

32-893

Chapter 32

Domestic Violence

§3200 Introduction

§3210 Elements of Plaintiff’s Domestic Violence Cause of Action

§3220 Information Regarding the Parties

§3230 Acts Constituting Domestic Violence – Plaintiff to Defendant

§3240 Acts Constituting Domestic Violence – Defendant to Plaintiff

§3250 Relationship Between the Parties – Plaintiff to Defendant

§3260 Relationship Between the Parties – Defendant to Plaintiff

§3270 Defenses in Domestic Violence Cases – Plaintiff to Defendant

§3280 Defenses in Domestic Violence Cases – Defendant to Plaintiff

§3290 Damages in Domestic Violence Cases – Plaintiff to Defendant

§32100 Damages in Domestic Violence Cases – Plaintiff to Defendant

§32110 Investigatory Interrogatories

§3200 Introduction

§3210 Elements of Plaintiff’s Domestic Violence Cause of Action

§3211 Affirmative Defenses to Plaintiff’s Domestic Violence Cause of Action

§3212 Definitions

§3220 Information Regarding the Parties

§3221 Information Regarding Defendant

§3221.1 Identification of Defendant

§3221.2 Personal Data Regarding Defendant

§3221.3 Similar Claims and Legal Proceedings

§3222 Information Regarding the Plaintiff

§3222.1 Personal Information Regarding the Plaintiff

§3222.2 Similar Claims and Legal Proceedings

§3230 Acts Constituting Domestic Violence – Plaintiff to Defendant

§3231 Conduct Causing Bodily Injury

§3232 Sexual Assault

§3233 Conduct Placing Plaintiff In Reasonable Apprehension Of Imminent Serious Bodily Injury to

Himself/Herself

§3234 Conduct Placing Plaintiff In Reasonable Apprehension Of Imminent Serious Bodily Injury to Another

§3240 Acts Constituting Domestic Violence – Defendant to Plaintiff

§3241 Conduct Causing Bodily Injury

§3242 Sexual Assault

§3243 Conduct Placing Plaintiff In Reasonable Apprehension Of Imminent Serious Bodily Injury to

Himself/Herself

§3244 Conduct Placing Plaintiff In Reasonable Apprehension Of Imminent Serious Bodily Injury to Another

Model InterrogatorIes 32-894

§3250 Relationship Between the Parties – Plaintiff to Defendant

§3251 Spouse or Former Spouse

§3252 Cohabitant or Former Cohabitant

§3253 Person With Whom Defendant Has Had A Child

§3254 Present Or Former Dating Relationship

§3255 Present Or Former Engagement Relationship

§3260 Relationship Between the Parties – Defendant to Plaintiff

§3261 Spouse or Former Spouse

§3262 Cohabitant or Former Cohabitant

§3263 Person With Whom Defendant Has Had A Child

§3264 Present Or Former Dating Relationship

§3265 Present Or Former Engagement Relationship

§3270 Defenses in Domestic Violence Cases – Plaintiff to Defendant

§3271 Consent by Plaintiff

§3272 Self-Defense

§3273 Defense of Third Person

§3274 Defense of Property

§3275 Recapture of Property

§3280 Defenses in Domestic Violence Cases – Defendant to Plaintiff

§3281 Consent by Plaintiff

§3282 Self-Defense

§3283 Defense of Third Person

§3284 Defense of Property

§3285 Recapture of Property

§3290 Damages in Domestic Violence Cases -- Plaintiff to Defendant

§3291 Special Damages (Economic Losses)

§3292 General Damages (Non-Economic Losses)

§3293 Plaintiff’s Failure to Mitigate

§3294 Punitive Damages

§3294.1 Malice

§3294.2 Oppression

§32100 Damages in Domestic Violence Cases-Defendant to Plaintiff

§32101 Special Damages (Economic Losses)

§32102 General Damages (Non-Economic Losses)

§32103 Plaintiff’s Failure to Mitigate

§32104 Punitive Damages

§32104.1 Malice

§32104.2 Oppression

§32110 Investigatory Interrogatories

§32111 Witnesses

§32112 Opposing Party’s Surveillance

§32113 Insurance

§32114 Due Diligence in Preparation of Response

32-895 doMestIc VIolence §3200

§3200 Introduction

As most practitioners are aware, the last decade has witnessed a growing recognition of societal harm caused by

domestic violence in America. Domestic violence has been generally defined as the physical, sexual, psychological

and/or emotional abuse of a victim by his or her intimate partner, with the goal of asserting and maintaining power

and control over the victim. (See Note, Mandatory State Intervention for Domestic Abuse Cases: An Examination

of the Effects on Victim Safety and Autonomy (2004) 52 Drake L. Rev 295, 300). Many psychological and external

factors may contribute to the prevalence of domestic violence; it has been observed that abusers feel a need to control

their partner because of low self-esteem, extreme jealousy, difficulties in regulating anger and other strong emotions,

or feelings of inferiority to the other partner in education and/or socioeconomic background. (See Goldsmith, “What

Causes Domestic Violence?” Psych Central (2006).)

In all events, that domestic violence exacts an enormous social cost is no longer open to dispute. Indeed, domes-

tic violence is now the leading cause of injury to women between the ages of 15 and 44 in the United States. (See

“Violence Against Women, A Majority Staff Report,” Committee on the Judiciary, United States Senate, 102nd

Congress, October 1992.) The statistics are staggering even when viewed from a purely economic perspective; it has

been reported that victims of intimate partner violence lost almost 8 million days of paid work because of violence

perpetrated against them. This loss is the equivalent of more than 32,000 full-time jobs and almost 5.6 million days

of household productivity as a result of such violence. (See “Costs of Intimate Partner Violence Against Women in

the United States,” (2003) Centers for Disease Control and Prevention, National Centers for Injury Prevention and

Control, Atlanta, GA.)

In response to this pervasive social problem, Congress enacted the Violence Against Women Act of 1994

(“VAWA”), which provided a federal civil remedy for victims of gender-motivated violence. However, the United

States Supreme Court subsequently invalidated that statute, holding that federal power to legislate in this area could

not be found in either the Commerce Clause or the Fourteenth Amendment. (United States v. Morrison (2000) 529 U.

S. 598, 627.) As a result of Morrison, the question of how the civil justice system should respond to injuries caused

by domestic violence was left to determination by the several states.

Against this background, it should be noted that in many cases injuries occasioned by domestic violence might

be addressed by claims for assault, battery, intentional infliction of emotional distress, etc. At the same time, certain

limitations that apply generally to such garden variety torts may render them unsuitable in domestic violence situa-

tions. For example, the statutes of limitations that apply to such torts run from the date of the wrongful act, whereas

domestic violence often consists of an ongoing strategy involving intimidation and isolation such that pursuing a civil

remedy may expose the victim to an enhanced risk of violence. (See Corsilles, No‑Drop Policies in the Prosecution

of Domestic Violence Cases: Guarantee to Action or Dangerous Solution? (1994) 63 Fordham L. Rev. 853.)

Accordingly, a number of states have enacted statutes that provide civil remedies specifically tailored for domestic

violence cases. California Civil Code section 1708.6 (Tort of Domestic Violence) is one such statute, and litigation

of tort cases under statutes providing for such recovery is the subject of this chapter.

Under statutes such as California’s, the tort of Domestic Violence involves (1) specifically defined abusive conduct

that is (2) directed against persons with whom the defendant has or had a specifically defined relationship that causes

(3) damages that are recoverable under the statutory framework. (See Cal. Civ. Code section 1708.6.) Significantly,

related statutes provide that the court may order that a judgment obtained under the Domestic Violence statute may

be enforced against the abusive spouse’s share of community property. (See Cal. Family Code section 2603.5.) The

elements necessary to prevail under the Domestic Violence statute are the subject of the sections that follow.

Editor’s Note: While the California Domestic Violence Statute is the template for the analysis that follows, the

applicable law in other states may vary. Accordingly, this chapter provides a starting point for the practitioner’s

research regarding the elements required under a given states statutory equivalent.