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47 USC 605 & 553 – Internet Apps May Not Violate TV Signal Piracy Statutes

Boxing, Soccer, & Sports Piracy (Copyright Infringement) Laws May Not Apply to Internet Apps Like DAZN Used to Show Paid Sporting Events in Businesses There May be No Merit to Lawsuits Filed by Thomas P. Riley on Behalf of G & G Closed Circuit Events, LLC, Innovative Sports Management, Inc. DBA Integrated Sports Media, and ... Read...

Boxing, Soccer, & Sports Piracy (Copyright Infringement) Laws May Not Apply to Internet Apps Like DAZN Used to Show Paid Sporting Events in Businesses

There May be No Merit to Lawsuits Filed by Thomas P. Riley on Behalf of G & G Closed Circuit Events, LLC, Innovative Sports Management, Inc. DBA Integrated Sports Media, and J & J Sports Productions, Inc.

Attorneys like Thomas P. Riley have made a career out of suing small business owners by alleging that they (accidentally) showed a pay-per-view style boxing or soccer match at their establishment (restaurant, barber shop, or other retail outlet) without paying the licensing fee to the boxing promoter. However, the new generation of cases often arises from showing the fights as they appear on streaming apps like DAZN. Some courts have rejected the main legal theories advanced by these attorneys based on the use of the Internet, rather than old fashioned cable or satellite signals.

47 USC Section 605 and 47 USC Section 553 May Not Apply to Alleged Internet Piracy

Considerable authority indicates that 47 U.S.C. section 605 applies to satellite signals and 47 U.S.C. section 553 applies to cable signals. There are literally hundreds of cases that state that rule of law. A few cases include J & J Sports Productions, Inc. v. Man Thi Doan (N.D. Cal. 2008) WL 4911223, and J & J Sports Productions, Inc. v. Steve Sang Ro (2010) U.S. Dist. LEXIS 21425, citing J & J Sports Productions, Inc. v. Manzano (2008) U.S. Dist. LEXIS 84931, which states that “a signal pirate violates section 553 if he intercepts a cable signal, he violates section 605 if he intercepts a satellite broadcast. But he cannot violate both by a single act of interception.”

If a signal is received via the internet (which is neither a satellite TV transmission or a cable TV transmission), it falls outside the coverage of the alleged TV signal piracy statutes. Joe Hand Promotions, Inc. vs. Michael Cusi, et al. 2014 U.S. Dist. LEXIS 66474 at 6-7; see Ark Promotions, Inc. v. Justin.tv, Inc., 904 F.Supp.2d 541, 549. That case addressed that issue head-on and the court granted summary judgment in favor of the defendants for exactly this reason. The court noted that the discovery phase of the case was complete and plaintiff could not produce any evidence to support its claims under 47 USC section 605 or 47 USC section 552. Id. Furthermore, the court went on to state that it had “no confidence” in the assumption that the type of internet service could result in liability under sections 605 and 553, and it was “skeptical that feeds received over the internet from a third party violate sections 553 or 605.” Id. at FN4; see Joe Hand Promotions, Inc. vs. Shelley L. Spain, et al., Case No. 2:15-cv-00152-SMM, Document 39 filed on 8/5/2016. The case of Zuffa, LLC v. Justin.tv, Inc., 838 F.Supp.2d 1102 (D. Nev. 2012) also stands for the proposition that claims for TV signal piracy under 47 U.S.C. section 605 and 47 U.S.C. section 553 do not include circumstances where the defendant acquired the signal via the internet, as does Ark Promotions, Inc. v. Justin.tv, Inc., 904 F.Supp.2d 541, 549 (cited by the court in the Cusi case). This issue was also mentioned in the summary judgment decision in the case of Joe Hand Promotions, Inc. vs. Jacob Evans Albright d/b/a Miners Ranch Saloon, 2013 U.S. Dist. LEXIS 79268 (June 4, 2013 decided in the Eastern Dist. of CA) where the court stated that evidence that the program was received over the internet would be a defense. Id. at *15.

To further bolster the notion that neither 47 U.S.C. section 605 nor 47 U.S.C. section 553 apply to a signal received through the internet is the fact that §605 was drafted in 1934, and §553 was drafted in 1984, at a time when this technology did not even exist. It is inconceivable that the statutory intent would be to cover signals on the internet.

Courts in the Central District of California have repeatedly found that TV signal piracy statutes do not apply to internet signals. For example, see the case of G & G Closed Circuit Events, LLC vs. Catherine Samusick, Case No. 2:18-cv-01796-WDK-JC, Document 29, Filed 5/4/2020, granting defendants’ motion for summary judgment for this same reason. Yet another similar case in which this exact Court granted summary judgment for this same exact reason is the case of J & J Sports Productions, Inc. vs. Jade Thompson, Case No. 5:16-cv-01939-WDK-PLA, Document 59, Filed 9/20/2019.

Many cases involve an allegation that the signal for the fight program in question was received over the internet, meaning there was no cable or satellite signal that was intercepted, received, or exhibited. These apps allowing Internet sports streaming include DAZN, Fubu, ESPN+, and others. In such cases, there should be no case for TV signal piracy.

Contact a Sports and Boxing Piracy Attorney to Understand Your Rights

If you’ve received a letter or lawsuit from Thomas P. Riley or any attorney representing G & G Closed Circuit Events, LLC, Innovative Sports Management, Inc. DBA Integrated Sports Media, or J & J Sports Productions, Inc., contact an experienced business attorney to advise you of your rights. The attorneys at Talkov Law can be reached at (844) 4-TALKOV (825568) or online.

Talkov Law provides business attorneys in Los Angeles, Orange County, San Diego, San Bernardino, Riverside, Palm Springs, Palo Alto, San Jose, Sacramento, Santa Barbara, Redding, Oakland, Long Beach, and surrounding areas.

The skilled business attorneys at Talkov Law practice in the areas of:


Nondischargeability for Fraud “Other Than a Statement Respecting the Debtor’s Financial Condition” in Bankruptcy [11 USC 523(a)(2)(A) & 523(a)(2)(B)]

Bankruptcy Code Section 523(a)(2)(A) Dischargeability Cannot be Based on Oral Fraudulent Misrepresentation “Respecting the Debtor’s Financial Condition” The Supreme Court has held that nondischargeability under Section 523(a)(2)(A) of the Bankruptcy Code for fraudulent misrepresentations “other than a statement respecting the debtor’s or an insider’s financial condition” means that creditors in bankruptcy are barred from claiming ... Read...

Bankruptcy Code Section 523(a)(2)(A) Dischargeability Cannot be Based on Oral Fraudulent Misrepresentation “Respecting the Debtor’s Financial Condition”

The Supreme Court has held that nondischargeability under Section 523(a)(2)(A) of the Bankruptcy Code for fraudulent misrepresentations “other than a statement respecting the debtor’s or an insider’s financial condition” means that creditors in bankruptcy are barred from claiming oral misrepresentations that have “a direct relation to or impact on the debtor’s overall financial status.” Lamar, Archer & Cofrin, LLP v. Appling, 138 S.Ct. 1752, 1755 (2018). This article provides the analysis of our bankruptcy attorneys in California to apply this law to various factual scenarios.

False Statements Respecting the Debtor’s Financial Condition Must be in Writing in Order for the Debt to be Nondischargeable

A discharge in bankruptcy releases a debtor from liability of certain debts. However, some debts, such as fraud, willful and malicious injury, and intentional fraudulent transfers may be exempted from discharge.

Specifically, Section 523(a)(2)(A) of the Bankruptcy Code provides nondischargeability “for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition.”

Indeed, if the fraud relates to a “statement respecting the debtor’s or an insider’s financial condition,” the creditor in bankruptcy must proceed under Section 523(a)(2)(B) of the Bankruptcy Code, which provides an exception to discharge for “use of a statement in writing— (i) that is materially false; (ii) respecting the debtor’s or an insider’s financial condition; (iii) on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and (iv) that the debtor caused to be made or published with intent to deceive.”

What this means is “that a debtor may not discharge debts for money obtained by false pretenses, false representations, or fraud, except that false statements ‘respecting the debtor’s … financial condition’ must be in writing in order for the debt to be nondischargeable. 11 U.S.C. §§ 523(a)(2)(A), 523(a)(2)(B).” Engler v. Van Steinburg, 744 F.2d 1060 (4th Cir. 1984) (debtor’s oral misrepresentations that he owned the property free and unencumbered related to his financial condition).

Said another way: “It is well-established that subsections 523(a)(2)(A) and (a)(2)(B) are mutually exclusive, and that if a ‘statement respecting the debtor’s or an insider’s financial condition’ is communicated orally, the creditor’s claim will fail and the underlying debt will be discharged.” In re Ransford, 202 B.R. 1, 3 (Bankr. D. Mass. 1996).

What is “a Statement Respecting the Debtor’s or an Insider’s Financial Condition” Under Section 523(a)(2)(A) of the Bankruptcy Code?

Many times, the creditor’s allegation of fraud border on a claim of an oral misrepresentation about the debtor’s financial condition. For example, the debtor may tell a creditor that they are “rich” and will have “no problem paying back a loan.” Of course, that turned out not to be true, since the debtor is in bankruptcy seeking to discharge their debts. So, is that sufficient in bankruptcy court to allege fraud without being excluded as a statement respecting the debtor’s or an insider’s financial condition?

“Where an individual debtor is involved, the definition of ‘insider’ includes a ‘corporation of which the debtor is a director, officer, or person in control.” Blackwell v. Dabney, 702 F.2d 490, 492 (4th Cir. 1983). In Blackwell, statements by a debtor that “convinced [plaintiffs] the business ‘was growing’, that ‘he was very successful’ [and]… [insider] was a ‘top-notch company’ and that ‘they were just blooming’ … that ‘business was going great,’ that the corporation was a ‘very successful company of some young black men and they were doing very, very good.’ And that it was a ‘striving business that was doing well’” were found to be statements “concerning the financial condition of [insider]. Further, all of [debtor’s] statements were oral. [Thus] [t]he representations are therefore outside the scope of 11 U.S.C. § 523(a)(2) and can not be the basis for preventing discharge of the bankrupt.”

As the Ninth Circuit Bankruptcy Appellate Panel (BAP) explained, “the phrase ‘statement respecting the debtor’s … financial condition’” should be interpreted as analogous to those statements “that purport to present a picture of the debtor’s overall financial health.” In re Belice, 461 B.R. 564, 577–578 (B.A.P. 9th Cir. 2011). The BAP went on to provide that: Statements that present a picture of a debtor’s overall financial health include those analogous to balance sheets, income statements, statements of changes in overall financial position, or income and debt statements that present the debtor or insider’s net worth, overall financial health, or equation of assets and liabilities…. What is important is not the formality of the statement, but the information contained within it—information as to the debtor’s or insider’s overall net worth or overall income flow.”

Supreme Court in Lamar, Archer & Cofrin, LLP v. Appling, 138 S.Ct. 1752, 1761 (2018) found that an Oral Misrepresentation is Not Actionable Under Section 523(a)(2)(A) if it “Has a Direct Relation to or Impact on the Debtor’s Overall Financial Status”

In 2018, the United States Supreme Court weighed in on the issue in Lamar, Archer & Cofrin, LLP v. Appling, 138 S.Ct. 1752, 1761 (2018),  finding that “a statement is ‘respecting’ a debtor’s financial condition if it has a direct relation to or impact on the debtor’s overall financial status. A single asset has a direct relation to an impact on aggregate financial condition, so a statement about a single asset bears on a debtor’s overall financial condition and can help indicate whether a debtor is solvent or insolvent, able to repay a given debt or not. Naturally, then, a statement about a single asset can be a “statement respecting the debtor’s financial condition.” Lamar found that: “Had Congress intended § 523(a)(2)(B) to encompass only statements expressing the balance of a debtor’s assets and liabilities, it could have so specified—e.g., ‘statement of the debtor’s financial condition.'”

Oral Statements Respecting an Insider’s Financial Condition Are Also Barred as Fraud Under Section 523(a)(2)(A) of the Bankruptcy Code

Sometimes, the claim of fraud is that the debtor orally misrepresented the financial condition of their company, corporation, limited liability company, other business entity, or business partner. It is important to remember that, under Section 523(a)(2)(A) of the Bankruptcy Code, the exception to discharge is only for “for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition.”

“Where an individual debtor is involved, the definition of ‘insider’ includes a ‘corporation of which the debtor is a director, officer, or person in control.” Blackwell v. Dabney, 702 F.2d 490, 492 (4th Cir. 1983). However, the definition of insider is even more broad. Under 11 U.S.C. Section 101(31):

The term “insider” includes—
(A) if the debtor is an individual—
(i) relative of the debtor or of a general partner of the debtor;
(ii) partnership in which the debtor is a general partner;
(iii) general partner of the debtor; or
(iv) corporation of which the debtor is a director, officer, or person in control;
(B) if the debtor is a corporation—
(i) director of the debtor;
(ii) officer of the debtor;
(iii) person in control of the debtor;
(iv) partnership in which the debtor is a general partner;
(v) general partner of the debtor; or
(vi) relative of a general partner, director, officer, or person in control of the debtor;
(C) if the debtor is a partnership—
(i) general partner in the debtor;
(ii) relative of a general partner in, general partner of, or person in control of the debtor;
(iii) partnership in which the debtor is a general partner;
(iv) general partner of the debtor; or
(v) person in control of the debtor;
(D) if the debtor is a municipality, elected official of the debtor or relative of an elected official of the debtor;
(E) affiliate, or insider of an affiliate as if such affiliate were the debtor; and
(F) managing agent of the debtor.

Even if the creditor meets this hurdle, they will need to allege fraud with particularity by alleging the “who, what, when, where, and how” of the alleged misconduct. Indeed, even negligent misrepresentation can form the basis of fraud, which can become a nondischargeable judgment. Note that bankruptcy lien avoidance on exempt property is permissible even for nondischargeable debts [11 USC 522(f)(1) & 523(a)].

Contact a Bankruptcy Nondischargeability Attorney in California Serving Los Angeles, Orange County, San Diego, Riverside, Palm Springs, San Bernardino, Palo Alto, San Jose, Santa Barbara, Redding, Oakland, and Long Beach

Nondischargeability in bankruptcy is a complex and difficult area of law where skilled a knowledgeable bankruptcy attorney with experience in adversary proceedings can guide you through the bankruptcy process from start to finish. If you have a question, contact Talkov Law at (844) 4-TALKOV (825568) or contact us online.

Talkov Law provides bankruptcy attorneys in Los Angeles, Orange County, San Diego, San Bernardino, Riverside, Palm Springs, Palo Alto, San Jose, Sacramento, Santa Barbara, Redding, Oakland, Long Beach, and surrounding areas.

The bankruptcy attorneys at Talkov Law are skilled in the areas of:


Virtual Domestic Violence Court Hearings – Dangerous for Victims of Abuse in California?

What Are The Pros and Cons of Virtual Domestic Violence Court Hearings? Are They Dangerous for Abuse Victims or Beneficial for California Family Courts?

New Dangers of Virtual Domestic Violence Court Hearings Exposed When Astute Prosecutor Calls out Alleged Abuser for Tuning into Zoom Hearing from Victim’s Apartment

Whether it is a criminal proceeding for a defendant charged with a crime involving domestic abuse or a hearing in family law court for a domestic violence restraining order, alleged victims and abusers are now testifying remotely, from the “comfort” of their own home.

These proceedings are not confidential and the public has a First Amendment right to attend all stages of criminal trials and all non-confidential family law proceedings. (See Cal. Fam. Code § 214; Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555, 580.)

California courts, along with most others in the nation, have opted to live-stream these hearings in order to provide the public with access to the virtual proceedings. However, pre-pandemic access to the public generally meant that the 10 or 20 people in the audience of the courtroom, likely people waiting for their own case to be called, would bear witness to the proceedings. The reality of live-streaming virtual proceedings means that videos of these hearings are routinely posted by the court, and can amass thousands, perhaps even millions of views.

This is what happened when a recent Zoom hearing for a domestic violence case in Michigan went viral, exposing the new realities for domestic violence victims.

The virtual court hearing was cut short after the defendant was found at the same home as the alleged victim while the hearing took place on March 2, 2021. The YouTube video was viewed more than 1.4 million times before it was taken down, according to an in-depth March 12, 2021 article in the Washington Post by Hannah Knowles.

Coby Harris was charged with assault in connection to a February 9, 2021 incident with his girlfriend, Mary Lindsey. Harris was out on bond, a release which included the condition that he was not to contact Lindsey.

Lindsey appeared frightened during the virtual hearing as she spoke from her apartment, Assistant Prosecuting Attorney Deborah Davis first said, KIRO 7 reported. She appeared reluctant to answer any questions and unable to explain why she called the police on Defendant Harris, according to Attorney Davis.

“Your Honor,” Attorney Davis said during the hearing, which was streamed on the judge’s YouTube channel. “I have reason to believe that the defendant is in the same apartment as the complaining witness right now, and I am extremely scared for her safety. The fact that she’s looking off to the side and he’s moving around, I want some confirmation that she is safe before we continue.”

St. Joseph County District Judge Jeffrey Middleton ordered Defendant Harris to walk outside and show him the number on the home from which he was Zooming.

Defendant Harris refused to show the court the number on his door, saying his phone battery was about to run out.

Lindsey got up to answer. “Take your phone with you, so that I know you’re okay,” Attorney Davis said.

Moments later, Defendant Harris appears at Lindsey’s screen attempting to apologize for lying and asks that the no-contact order be dropped.

Judge Middleton interrupted Defendant Harris, “Mr. Harris, I advise, don’t say anything else. Take the cigarette out of your mouth. The hearing is adjourned. Your bond is canceled.”

“This is an issue we didn’t have when we were at live court,” Judge Middleton said. “It’s the first time I ever had anybody sitting in the next room potentially intimidating a witness,” Judge Middleton continued.

Defendant Coby Harris, who was charged as a habitual offender, faces a charge of assault with the intent to create great bodily harm, a felony that carries up to 10 years in prison with an enhanced sentence of up to 15 years in prison.

The video has struck a nerve with domestic violence survivors for how it exposes the complexities of abuse, but it also shines a spotlight on problems arising in this post-pandemic virtual access to justice.

Are Virtual Domestic Violence Court Hearings Unfair for Alleged Abusers Too?

Another sad reality is that baseless requests for domestic violence restraining orders are filed all the time in California family court. Pro per litigants often file a request for a domestic violence restraining order (DVRO) in an attempt to win a custody battle or obtain exclusive possession of a residence based on allegations of conduct which do not amount to abuse under California family law.

It is also not uncommon for a couple to have a fight and break-up, only to reconcile get back together. If a DVRO was filed during that fight/break-up, it could very well be that the hearing occurs after the parties have reconciled. In such a circumstance, the parties may indeed appear at the virtual domestic violence court hearing from the same location.

If we start assuming that any time this occurs the responding party is engaging in intimidation to influence the petitioning party, we are essentially saying that you can never reconcile with your significant other if they have filed a DVRO against you because that will be per se evidence that you are abusive because you are engaging in witness intimidation. We would in effect be shifting the burden of proof from the petitioning party in a DVRO to the responding party.

Virtual Domestic Violence Court Hearings California Restraining Order Lawyer Attorney Family Law

Are There Benefits to Virtual Domestic Violence Court Hearings?

Having gone through many of the potential downsides of holding domestic violence hearings virtually, the question seems to be whether there are any benefits to holding virtual domestic violence court hearings.

A federal judge in the Northern District of California recently announced he plans to continue holding status conferences virtually, even after the pandemic has ended. U.S. District Court Judge James Donato indicated he was interested in continuing virtual conferences, “regardless of what a post-vaccination world looks like.” Though the full return to in-person proceedings remains on hold, Judge Donato’s comments are a clear signal that the court system is embracing the benefits that virtual conferencing technology can offer.

In a pre-pandemic world, witnesses (including alleged victims of domestic violence) had to take a day off from work, drive (sometimes long distances) to the courthouse, and wait (sometimes hours) for their turn to testify. Hearings are regularly continued by the court for a litany of reasons, so parties and witnesses often had to return to the courthouse numerous times just to get their testimony on the record. Testifying meant sitting on the witness stand in the front of the courtroom, across from the alleged abuser, staring out at the audience, which varied in size, as they all listened to you testify and get cross examined.

The benefits of holding these hearings virtually in this regard are very clear. It is more convenient for witnesses to log in to the hearing from home or work and go about their day until it is their turn to testify. A post-it note over the alleged abuser’s face can even make testifying easier.

Holding hearings remotely can also be highly beneficial for California restraining order attorneys involved. Family law attorneys no longer have to waste hours in the car driving from courthouse to courthouse to attend hearings. Because family law attorneys bill by the hour, so this benefits litigants and attorneys alike. During the virtual hearings, attorneys can have the entire electronic file open on their screen, allowing them to quickly access documents, facts, and information without having to flip through boxes of files in the courtroom.

Whether virtual hearings are here to stay is yet to be determined, but it is clear that while there are bugs to work out, there are also many benefits to a more tech-forward family court system.

California’s domestic violence procedures are complex and trying to navigate them without help of a California family lawyer can be frustrating. If you have questions about restraining orders, contact our accomplished and dedicated lawyers by calling (844) 4-TALKOV (825568) or contact us online for a free consultation with our experienced family law attorney, Colleen Sparks, who can guide you through the court process in a prompt and clear manner.

Our family law attorneys serve Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Palm Springs, Palo Alto, San Jose, Sacramento, Santa Barbara, Redding, Oakland, Long Beach, and surrounding areas in California.

Our knowledgeable attorneys can also help if you have questions about any of the following:


Family Code 3044 – No One Will Tell You About This Devastating Consequence of Agreeing to a Restraining Order in California

Only Agree to a Restraining Order if You Want to Lose Custody of Your Children - Family Code Section 3044.

Why You Should Never Agree to a Restraining Order in California if You Have Kids (Family Code 3044)

When you are served with a Request for Domestic Violence Restraining Order (DVRO), a million thoughts go through your head. Depending on the circumstances, you may have suspected this was coming or you may be completely caught off-guard. You may feel angry, betrayed, confused, or even scared.

After the shock wears off and you start considering what you should do next, you may decide to file a response, hire a restraining order attorney, or just show up at the hearing.

There is no one right answer about how to proceed when you have been served with a DVRO, but there is one thing you should never do: agree to a restraining order.

Family law attorneys are almost universally in favor of parties reaching agreements and settlements. So why would one of us make a blanket statement that you should never agree to something filed against you? Keep reading.

Family Code Section 3044 – Only Agree to a Restraining Order if You Want to Lose Custody of Your Children in California

What would be so bad about a restraining order? I don’t want to see her anyway!

No matter what the outcome of the restraining order is, you probably aren’t going to be best friends with the protected party after the hearing. The prospect of being restrained from seeing or talking to him or her may sound like a relief after all of this! Oftentimes, the protected party does not even request orders relating to child custody in the DVRO, so this has nothing to do with the kids, right? Wrong. If you agree to a restraining order, you are voluntarily triggering the domestic violence finding and presumption of Family Code 3044.

Family Code § 3044(a) provides:

Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child… there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Sections 3011 and 3020. This presumption may only be rebutted by a preponderance of the evidence.

A “finding” of domestic violence is made when the restrained party chooses not to oppose the DVRO and agrees to the restraining order.

Under Section 3044, a finding of domestic violence against the other parent carries with it a rebuttable presumption that an award of sole or joint physical or legal custody of a child to the abuser (i.e. the parent who agreed to the restraining order) is detrimental to the best interest of the child.

This is because when it comes to child custody, the public policy of the State of California is to ensure the health, safety, and welfare of children. According to the legislature, it is detrimental to a child if domestic violence is perpetrated in the child’s home.

Family law judges are required to grant reasonable visitation rights to parents unless visitation would not be in the child’s best interests. It is not in a child’s best interests to be exposed to domestic violence, so the court can protect the child by, for example, ordering supervised visitation (meaning a third party must supervise all visits between the child and the restrained parent) or banning overnight visits.

Consequence of Agreeing to Restraining Order Domestic Violence Family Code 3044 Presumption Attorney California

I Would Not Have Agreed to a Restraining Order if I Had Known About the Family Code 3044 Presumption

Essentially, this argument boils down to this: I entered into this agreement based on a mistake of law. Specifically, I did not know about the 3044 presumption, and if I had known about it, I would not have agreed to have a restraining order placed against me.

In fact, the argument that a party responding to a domestic violence restraining order should be entitled to notice of the 3044 presumption at the time of the restraining order hearing is such a great argument that it has made its way up to the California Court of Appeal.

In Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, Ramadan Sabbah challenged the trial court’s denial of both his new trial motion and his application under Code of Civil Procedure § 473(b) for relief from a restraining order against him. He contended, among other things, that the trial court erred by failing to give him notice under Family Code section 3044 that a domestic violence finding against him would adversely affect him in custody determinations.

Ramadan Sabbah argued that Section 3044(f) mandates that parties be informed of the presumption, providing: “In any custody or restraining order proceeding in which a party has alleged that the other party has perpetrated domestic violence in accordance with the terms of this section, the court shall inform the parties of the existence of this section and shall give them a copy of this section prior to any custody mediation in the case.”

Is the California Family Court Required to Inform Parties of the Existence of Section 3044 at the Restraining Order Hearing?

Finding that Section 3044(f) is ambiguous on the issue of the timing of the mandate on the court to inform the parties of existence of Section 3044, the Sabbah court turned to the history of Section 3044(f) and the legislative intent in its enaction.

When Section 3044(f) was discussed by The Senate Judicial Committee on April 21, 2003, the Committee made the following remarks about its purpose: “[C]ustody mediators generally do not tell their clients about the statutory presumption against custody for perpetrators of domestic violence. Since mediation often involves encouraging divorcing parents to agree to joint parenting, the author asserts that ‘many battered victims and their children are not benefiting from the policy behind [the law].’ [¶] Accordingly, this bill would require the court, in any custody or restraining order proceeding in which one parent has alleged that the other has committed domestic violence, to inform the parties about the rebuttable presumption against granting custody to perpetrators of domestic violence, and to provide them with a copy of the applicable statutes before any custody mediation occurs.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 265 (2003–2004 Reg. Sess.) as amended April 21, 2003, pp. 6–7.)

Accordingly, the court made the following finding:

[S]ection 3044(f) requires a court in ‘any custody or restraining order proceeding’ involving domestic violence accusations to provide the statutory notice to the parties before they enter into custody mediation. (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 825.)

It logically follows that under the California Family Code, the court is NOT required to provide statutory notice of the 3044 presumption to the parties at the time of the hearing on the restraining order, such notice is only required prior to child custody mediation.

So what does the Sabbah case mean for a respondent in a California domestic violence restraining order case thinking about stipulating to the requested orders? Do not agree to have a restraining order placed against you, there are very serious ramifications and no one is required to tell you about them.

California’s domestic violence laws are complex, but they play an integral role in custody matters. Whether you are the victim of domestic violence, or you have been falsely accused of it, you need a law firm that understands the impact it will have in your case. To talk to a child custody lawyer, call Talkov Law at (844) 4-TALKOV (825568) or contact us online for a free consultation about your case.

Our family law attorneys serve Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Palm Springs, Palo Alto, San Jose, Sacramento, Santa Barbara, Redding, Oakland, Long Beach, and surrounding areas in California.

Our knowledgeable attorneys can also help if you have questions about any of the following:


Complete List of Important Child Custody Laws in California [Must Know California Family Code Sections]

Complete List of the Most Important Child Custody Laws in California Truth be told, not every California law having to do with child custody regularly comes up in family court. Like any other body of law, California child custody law consists of a handful of highly litigated sections nestled between a whole slew of oft ... Read...

Complete List of the Most Important Child Custody Laws in California

Truth be told, not every California law having to do with child custody regularly comes up in family court. Like any other body of law, California child custody law consists of a handful of highly litigated sections nestled between a whole slew of oft forgotten, rarely disputed rules and codes.

Going through all of California child custody jurisprudence to learn what you need to know isn’t feasible for most litigants in a custody battle, but it is important to know which rules and code sections regularly come up in family court if you are engaged in a custody battle or think you may be soon. Here is a complete list of the most important child custody laws in California.

Checklist of California Family Code Sections and Rules You Need to Know About Before Your Custody Hearing in Family Court

  • Joint Custody Defined – Family Code § 3002

The general term “joint custody” means both legal and physical custody.

  • Joint Legal Custody Defined – Family Code § 3003

Joint legal custody means that both parents have an equal right to make important parental decisions.

  • Joint Physical Custody Defined – Family Code § 3004

Joint physical custody means that both parents have significant periods of physical custody. This section also mandates orders for joint physical custody to provide a child with frequent and continuing contact with both parents.

  • Sole Legal Custody Defined – Family Code § 3006

Sole legal custody means that one parent has the right to make decisions concerning the child’s health, education, and welfare without consulting the other parent or obtaining their prior agreement.

  • Sole Physical Custody Defined – Family Code § 3007

Sole physical custody means that the child resides with one parent, and visits the other parent.

  • Parents are Equally Entitled to Child Custody – Family Code § 3010

Without court orders saying otherwise, both legal parents are equally entitled to custody of their child. See Family Code § 7611 for information regarding father’s rights and presumed fathers.

This section is the starting analysis for any custody dispute.

Important Child Custody Laws in California Family Attorney Lawyer

  • Children Have the Right to be Safe and Free From Abuse – Family Code § 3020

Another highly litigated custody statute, Section 3020 states the fundamental policy of the law to ensure that children have frequent and continuing contact with both parents after the parents have ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing.

  • Statement of Reasons for Custody Decision – Family Code § 3022.3

An often ignored provision by child custody lawyers and self-represented parties, following a trial to determine the custody of a child, either parent can request the court issue a statement of decision explaining the factual and legal basis for its decision.

  • Notice to Other Parent of Relocation of Child – Family Code § 3024

This a standard provision in most custody mediation recommendations, and should be included in any child custody stipulation.

  • Parental Access to Medical and School Records – Family Code § 3025

Parents cannot be denied access to a child’s medical, dental, and school records because they do not have custody of their child.

  • Allegations of Child Abuse – Family Code § 3027

Section 3027 empowers courts to make orders to protect children where abuse is alleged, and to cause an investigation to be undertaken by welfare service (not evaluator).

If a court determines, based on the investigation described in Section 3027 or other evidence presented to it, that an accusation of child abuse or neglect made during a child custody proceeding is false and the person making the accusation knew it to be false at the time it was made, the court may impose reasonable money sanctions.

  • Order of Preference for Child Custody – Family Code § 3040

Section 3040 provides the order of preference for custody of children: first to parents, and second to qualified third-parties.

  • Custody of Children to Non-Parents – Family Code § 3041

Section 3041 provides that before making an order granting custody to a nonparent, over the objection of a parent, the court must make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child, by clear and convincing evidence. Section 3041 is most commonly invoked by adult siblings and grandparents, but it could include any unrelated person.

  • Orders for Drug Testing – Family Code § 3041.5

Family Code section 3041.5 sets forth when a family court can order drug testing.

This is a critical statute that provides a child has a right to speak to the court under certain circumstances and authorizes courts to hear directly from a child in certain situations.

  • Rules for Child Testimony Regarding Parental Preference – California Rules of Court, Rule 5.250

This rule sets forth the procedures and restrictions on how the court can hear and admit the testimony of a child in a custody case.

  • Presumptions Against Custody for Domestic Violence Perpetrator – Family Code § 3044

Family Code section 3044 creates a presumption that a parent who has committed domestic violence within the last 5 years should not have joint or sole legal or physical custody of a child, and that such custody would be detrimental to child.

  • Temporary Custody and Right to Hearing Within 20 Days – Family Code § 3062

This section empowers courts to issue and/or extend emergency or ex parte, temporary custody orders in limited situations.

  • Limits on Ex Parte Change of Custody Orders – Family Code § 3064

Courts are not supposed to make ex parte orders modifying custody except when there is evidence of immediate harm to a child, or that the child will be removed from the State.

  • Presumption When Parents Agree to Joint Custody Orders – Family Code § 3080

There is a presumption that joint custody is in the best interests of a child where the parents have agreed to joint custody in open court.

  • Stepparent Visitation – Family Code § 3101

This section provides that the court may grant reasonable visitation to a stepparent, if visitation by the stepparent is in the best interest of the child.

  • Grandparent Visitation Orders – Family Code § 3103

This section provides that the court may grant reasonable visitation to a grandparent of a child of a party to the proceeding if visitation by the grandparent is in the best interest of the child.

  • Child Custody Evaluation Reports – Family Code § 3111

Family Code section 3111 empowers courts to appoint a person to conduct a limited or general child custody evaluation which is then reported back to the court, and to the parties.

Important Child Custody Laws in California Lawyer Attorney Family

  • Appointment of Minor’s Counsel – Family Code § 3150

Section 3150 authorizes courts to appoint private counsel to represent the interests of the child in a custody.

  • Separate Custody Counseling Where History of DV or Abuse – Family Code § 3192

A parent who has been the victim of domestic violence by the other parent may meet separately with the child custody mediator.

  • California UCCJEA – Family Code § 3402

The UCCJEA is the Uniform Child Custody Jurisdiction Enforcement Act. It is intended to prevent inconsistent orders in different states and to resolve the question of which state should have jurisdiction over the parents and children.

  • California Temporary Emergency Jurisdiction under UCCJEA – Family Code § 3424

California courts can assert emergency jurisdiction over parents and children prior to the ultimate UCCJEA issues being resolved.

  • Right of Parent to Change Residence of Child (Move-Away) – Family Code § 7501

This is the basic rule that came out of the case In re Marriage of Burgess (1996) 13 Cal.4th 25. This section creates a presumption that parents are entitled to change the residence of a child where such relocation will not prejudice the rights of the other parent or the welfare of the child.

  • No Ex Parte Communication with Child Custody Evaluators – California Rules of Court, Rule 5.235

This rule prohibits ex parte communication between lawyers, or parties, with custody evaluators.

An experienced family law attorney at Talkov Law has the knowledge to help you reach a resolution of your custody and visitation legal issues. Whether reaching a child custody agreement is your goal, or you want a knowledgeable child custody lawyer to fight for you, contact the attorneys at Talkov Law for help.

Our family law attorneys serve Los AngelesOrange CountySan DiegoRiversideSan BernardinoPalm SpringsPalo AltoSan Jose, and surrounding areas in California.


Family Code 1100(b) – Spouses Can Gift No More than Half of the Community Property

Community Property Laws Allow Spouses to Give Away No More than Half of the Community Estate, During Life or Upon Death in a Will or Trust While many spouses have tried, the law does not allow a living or deceased spouse to give away more than half of the community property marital estate, including in ... Read...

Community Property Laws Allow Spouses to Give Away No More than Half of the Community Estate, During Life or Upon Death in a Will or Trust

While many spouses have tried, the law does not allow a living or deceased spouse to give away more than half of the community property marital estate, including in their will or trust, absent the consent of the other spouse. This intersection of family law and trust and estate litigation presents an interesting cross-section of laws.

The analysis begins with California Family Code section 760, which provides that: “Except as otherwise provided by statute, all property, real or personal, wherever situated acquired by a married person during the marriage while domiciled in this state is community property.”

Under California Family Code section 1100(b): “A spouse may not make a gift of community personal property…without the written consent of the other spouse.”

As to a “gift made by one spouse in violation of this section” where “action is taken after the donor spouse’s death…., it is voidable only to the extent of one-half.” In re Marriage of Stephenson (1984) 162 Cal.App.3d 1057.

As to the probate element of this issue, another court explained that, “upon the death of a married person, one-half of the community property belongs to the surviving spouse.” Estate of Scott (1987) 197 Cal.App.3d 913, 919–920.

To recover the community assets left by a marital partner under a will or trust, a party might allege conversion. “Conversion is generally described as the wrongful exercise of dominion over the personal property of another.  The basic elements of the tort are (1) the plaintiff’s ownership or right to possession of personal property; (2) the defendant’s disposition of the property in a manner that is inconsistent with the plaintiff’s property rights; and (3) resulting damages.” Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal. App. 4th 97, 119.

Contact a Trust & Estate Litigation Attorney in California

Omitted spouses and children should promptly contact a trust litigator or will contest attorney to recover the one-half of the community property. Call Talkov Law today to learn about your rights by calling (844) 4-TALKOV (825568) or contact us online.

Our trust, probate, and estate attorneys serve clients throughout Los Angeles, Orange County, San Diego, Riverside, Palm Springs, San Bernardino, Palo Alto, San Jose, Sacramento, Santa Barbara, Redding, Oakland, Long Beach, and surrounding areas.

The Trusts, Estate, & Probate Litigation Attorneys at Talkov Law practice in the areas of:

Our family law attorneys serve Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Palm Springs, Palo Alto, San Jose, Sacramento, Santa Barbara, Redding, Oakland, Long Beach, and surrounding areas in California.

Our knowledgeable attorneys can also help if you have questions about any of the following:


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