Page 1
Court of Appeal:
Due Process Denied by Barring Rebuttal Evidence on DVRO
Judge Powell Faulted for Declaring He Had Heard Enough, Declining to Allow Party, an Attorney With Kirkland & Ellis, to Take the Stand to Refute Factual Assertions by Husband; Her Appeal Is Decided Despite Death of Protected Party
By a MetNews Staff Writer
|
|
|
SIERRA ELIZABETH lawyer
|
The Court of Appeal for this district has held that a no-contact protection order imposed on a Los Angeles attorney who was involved in a physical altercation with her husband must be lifted because the trial judge declared that he had heard enough testimony and declined to allow the presentation of rebuttal evidence.
That, Presiding Justice Frances Rothschild of Div. One said in an unpublished opinion filed Monday, constituted an affront to due process that is reversible error per se.
Div. One opted to decide the matter—rather than dismissing an appeal from the granting of a domestic violence restraining order (“DVRO”) as moot in light of the protected party’s death—citing the appellant’s persisting reputational interests.
The opinion reverses an order by Los Angeles Superior Court Judge Michael R. Powell because he had declined to allow the cross-defendant, Sierra Elizabeth, a trial lawyer in the Los Angeles office of Kirkland & Ellis, the opportunity to present rebuttal testimony.
Both Elizabeth and her now-deceased husband, actor/producer Warren Braithwaite, sought a DVRO, each supplying a widely varying account of a July 2, 2023 violent quarrel between them.
Lawyer Protests
After three days of testimony, Powell, on Dec. 6. 2023, started to announce his decision; one of Elizabeth’s lawyers— Wallace Fingerett of the West Los Angeles firm of Feinberg Mindel Brandt & Klein LLP—interrupted, protesting that his client had rebuttal evidence to present; the judge responded:
“You have rebuttal? I think I’ve heard enough evidence.”
The lawyer elaborated that he wanted to put Elizabeth on the stand. Powell relented, saying:
“You know what? I’ll let you put your client up.”
After a brief recess, however, Powell again changed his mind, proceeding to declare that a three-year DVRO in favor of Braithwaite would be issued, but not the one sought by Elizabeth.
After setting forth his reasons, Powell again rebuffed the complaint that Elizabeth had not been allowed to present a rebuttal, telling her lawyers, Fingerett and Tin T. Le:
“I’m not going to hear it anymore. You put your best shot up. Okay? This is not going to change.”
Powell on Jan. 22, 2024, denied a motion for reconsideration.
Rothschild’s Opinion
Rothschild said that Elizabeth’s appeal from the denial of the DVRO she requested against Braithwaite must be dismissed as moot but, acting on her appeal of the order against her, wrote that the barring of rebuttal testimony was incommensurate with due process. She explained:
“[T]he court’s role as an evidentiary gatekeeper cannot justify the court’s actions in this case….Even assuming the court was entitled to exclude parts of Elizabeth’s testimony or parts of the transcript for various reasons, the court’s blanket refusal to allow her to offer any testimony or any other rebuttal evidence exceeded the bounds of that evidentiary gatekeeping role.…
“Nor can the court’s refusal to allow any rebuttal evidence be explained by the fact that the parties’ cross-requests were primarily based on the same alleged instance of domestic violence. The court was not required to grant the restraining order to one or the other party; the court could have found each party failed to meet their respective individual burdens of proof. Therefore, the court’s conclusion that it would deny Elizabeth’s DVRO request could not dictate the outcome of Braithwaite’s request….”
Decision Despite Mootness
Elizabeth, in her opening brief on appeal, urged Div. One not to jettison her appeal based on mootness. Cynthia Tobisman and John Metzidis-Drennan of the West Los Angeles appellate firm of Greines, Martin, Stein & Richland LLP argued:
“Sierra has practical and professional reputational interests in clearing her name, as she was adjudged to have committed violent, criminal conduct….Tarnishing Sierra’s professional reputation was one of Warren’s stated goals….His death shouldn’t enable him to get away with it.”
The lawyers pointed out that Powell’s orders “already have been—and may continue to be—used against her in future litigation involving Warren’s estate,” the listing in law enforcement databases of the DVRO imposed on her “can harm her ability to seek domestic violence protection from future partners, her custody rights of any future children, and her ability to adopt privately” and “jeopardizes potentially every interaction Sierra may have with law enforcement.”
In a Nov. 15, 2024 declaration filed in the Court of Appeal, Elizabeth told of her need to travel each week on business and having been “stopped by U.S. Customs & Border Protection,” detached from those accompanying her, “detained in a separate room, interviewed, and then finally released” after “approximately 30-45 minutes.” On one of these occasions, she reported, she was with business associate and suffered embarrassment.
Rothschild wrote:
“We consider the merits because the existence of that DVRO in the past still could have serious negative legal and practical consequences for Elizabeth in the future.”
She pointed also to “the importance and nature of the due process rights implicated by her arguments, we exercise our discretion to address the merits of her due process challenge.”
Powell’s Perception
A point raised in Elizabeth’s opening brief that was not included in Rothschild’s discussion is that Powell had expressed the view, in explaining his rulings, that the wife lacked credibility in light of the lack of testimony by her as to having put up strong resistance to the alleged physical attack on her or attempting to flee. The introductory section of the brief says:
“Court: ‘I think I have a situation in which...she, you know, sat there and let all of this happen.’…
“Court: ‘[I]t’s almost like you were acquiescing and letting this wave of violence happen to you.’…
“For women seeking protection from domestic abuse, perhaps the only thing scarier than their abuser is the prospect of hearing words like these from a judge. But this is what the trial court said to Sierra Elizabeth to justify rejecting her story and crediting her then-husband’s.”
Powell is also quoted as saying that not fighting back would be “very unlike human behavior” and that “it’s almost like” Elizabeth was “acquiescing and letting this wave of violence happen” to her.
The brief notes that Elizabeth weighed 130 pounds—also recited in the DVRO—and Braithwaite was exactly 100 pounds heavier.
The case is Elizabeth v. Braithwaite, B336284.
Earlier Case
On May 12, 2020, Div. Eight of this district’s Court of Appeal, in an opinion by then-Justice (now Presiding Justice) Maria Stratton, affirmed a DVRO imposed on Braithwaite in favor of a woman who was termed his “long-term girlfriend.” They began dating while Braithwaite was married—to a woman other than Elizabeth, whom he wed in 2022.
The opinion, certified for publication on June 3, 2020, says that Los Angeles Superior Court Judge Lynn H. Scaduto properly issued the DVRO and ordered Braithwaite to vacate a condominium he shared with his girlfriend, Nichole Guest.
There were purportedly three similar restraining orders that had been issued against Braithwaite in connection with various relationships. He was arrested on June 14, 2011, as part of a five-state Drug Enforcement Agency sting operation, and charged with, then convicted of, having masterminded a multimillion-dollar international drug cartel, spending time in federal prison.
Copyright 2025, Metropolitan News Company