Yes, A Victim Of Domestic Violence May Sue For Civil Damages In Addition To Restraining Orders

This week's question:

My husband can be a real jerk.  We are now separated in an effort to try to work things out.  Most of the time he is ok, but sometimes he becomes very violent and even strikes and hits me.  I have heard about getting a restraining order against him, but maybe the only thing he will wake up to is a civil suit for damages.  Is this possible?  Can I get more justice than just a restraining order?

/s/Victoria V.

Almaden Valley

Dear Victoria:

I may have some good news for you, Victoria.  Yes, you may be able to file a suit for money damages against your husband for the domestic violence occurring during your marriage.

California Civil Code §1708.6 is entitled "Domestic Violence-Damages."  It provides that (a) a person is liable for the tort of domestic violence if the plaintiff proves both of the following elements:

(1) The infliction of injury upon the plaintiff resulting from abuse, as defined in the Penal Code;

(2) The abuse was committed by the defendant, a person having a relationship with the plaintiff as defined in the Penal Code.

That law goes on to state that (b) A person who commits an act of domestic violence upon another is liable to that person for damages, including, but not limited to, general damages (i.e., pain and suffering), special damages (such as medical bills and loss of wages), and punitive damages under the Civil Code.

And Civil Code §1708.6 goes on to provide that the court may also grant to a prevailing plaintiff equitable relief, such as injunction (like a restraining order), court costs, and any other relief that the court deems proper, including reasonable attorney's fees.

Also, the rights and remedies are in addition to any other rights and remedies provided by law, presumably such as a suit for infliction of emotional distress, assault and battery, and similar causes of action.

This topic was discussed at length in a recent case decided by the Court of Appeal of the State of California, Second Appellate District, Division Two, in Los Angeles.  The case is entitled Michelle Pugliese v. Dante Pugliese.  It was decided January 23, 2007.

In the Pugliese case, Michelle, who had been married to Dante for 13 years, filed suit and alleged that for several years, Dante "shoved, pushed, kicked, hit, slapped, shook, choked and sexually abused her." 

She also alleged that Dante "pulled her hair, pinched and twisted her flesh, threatened to kill her, threatened her with bodily harm, confined her in the family car while driving erratically and drunkenly and infected her with sexually transmitted diseases."  (Nice guy, huh.)

The Court of Appeal had no difficulty in concluding that Michele had established a proper claim for domestic violence.  The Court of Appeal also had no difficulty in holding that the plain language of Code of Civil Procedure §340.15 entitles Michele to seek damages (i.e. money) for acts of domestic abuse occurring prior to April, 2001, when the physical acts of domestic violence stopped.

The California Court in the Pugliese case relied on an Illinois case in reaching its conclusions concerning a "continuing tort" approach.  A "continuing tort" theory allows domestic violence victims to recover damages (i.e., money) for all acts of domestic violence occurring during the marriage, provided the victim proves a continuing course of abusive conduct and files suit within three years of the "last act of domestic violence."

The Court of Appeal also stated in part that "Domestic violence is 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."

Also, "Most domestic violence victims are subjected to 'an ongoing strategy of intimidation, isolation, and control that extends to all areas of a woman's life, including sexuality, material necessities, relations with family, children, friends, and work.'"

You can read the Michele Pugliese v. Dante Pugliese case for yourself by heading for www.google.com <http://www.google.com>. In the search box enter Pugliese v. Pugliese and hit "go".  It should be on your screen in a second, without the annoying advertising that often accompanies web searches.

So, Victoria, this may come as good news for you and others who are in your situation.  If you have in mind to pursue this further, you may want to see your own attorney for a consultation and take it from there.  I hope it all works out for you.  Domestic violence is all too common in our society.

/s/Donald J. DeVries

Almaden Valley

Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com <mailto:don@almadenvalleylawyers.com> (with "Almaden Times Article" in the subject line), fax at (408) 268-6502, telephone at (408) 268-9500, or mail at 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation.

Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.