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C.A. Declines to Answer if ‘Sugar Baby’ Deal Counts as Dating
Opinion Avoids Question by Affirming Restraining Order Under Alternative Basis of Civil Harassment Statute, Even Though Relief Was Requested Under Domestic Violence Prevention Act; Due Process Argument Rejected
By Kimber Cooley, associate editor
Div. Five of this district’s Court of Appeal has upheld a five-year restraining order imposed on a man under the civil harassment statute contained in the Code of Civil Procedure, declining to address whether the so-called “sugar baby” arrangement between the parties qualified as a “dating relationship” under the Family Code.
In affirming the order, the court rejected the defendant’s due process challenge to Los Angeles Superior Court Judge David W. Swift having sua sponte granted relief under Code of Civil Procedure §527.6, when it was only requested by the victim under the Domestic Violence Prevention Act (“DVPA”), codified at Family Code §6200 et seq.
Family Code §6210 defines a “dating relationship” to mean “frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations.” A so-called “sugar-baby” association is described in the opinion as one in which an older, wealthier individual offers money or gifts in exchange for the companionship of a younger person.
Justice Lamar Baker authored the unpublished opinion, filed Tuesday, and joined in by Presiding Justice Brian M. Hoffstadt and Justice Carl H. Moor. Baker wrote:
“Novel questions abound concerning the definition of ‘dating relationship’ in Family Code section 6210: whether the ‘independent of financial considerations’ proviso modifies the ‘expectation of affection’ element or just the ‘sexual involvement’ element, what precisely ‘financial considerations’ means, and just how independent must sexual involvement (or expectation of affection) be from such considerations. But these are questions for another day; we need not answer them to resolve this appeal.”
Domestic Violence Order
The question arose after petitioner Sierra Fino requested a Domestic Violence Restraining Order against James Hunter. She was 22 years old in April 2022 when she called the police to report that Hunter, who was 44 at the time, was stalking her and threatening to share sexually explicit images of her on social media if she contacted law enforcement.
At a hearing, Fino testified that her relationship with Hunter began while she was in her last year in high school and that the “amicabl[e]” phase of their courtship lasted for about two years. She said Hunter contacted her on social media asking if she were interested in a “sugar baby” relationship, leading to exchanges on Instagram and Snapchat.
Fino said she engaged in sexual encounters with Hunter only a handful of times, and each time in exchange for money, with payments ranging from $300 to $4,000. She ended the relationship in 2019 because “she was feeling disgusted by the relationship” and “couldn’t handle it anymore.”
Swift found that the parties were in a “dating relationship” and ruled that the restraining order should issue on two alternative bases—the DVPA, as requested, and as a civil harassment decree under §527.6.
The Code of Civil Procedure section provides that “[a] person who has suffered harassment…may seek…an order…prohibiting harassment,” defining the term as “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose” which reasonably causes substantial emotional distress.
Hunter argued in his appellate brief that the substantial evidence does not support the trial court’s finding that the parties were previously in a “dating relationship” as required by the DVPA and that his due process rights were infringed “because Fino never requested and the Court similarly did not indicate before taking evidence that it would contemplate issuing an order restraining different conduct and based upon different concerns from the DVRO.”
Due Process
Baker said that Hunter forfeited the due process argument due to his failure to object in the trial court to the alternative grounds for the order. However, the jurist remarked that “[e]ven putting aside the forfeiture…, defendant’s due process argument still fails” as “[e]stablished authority permits a trial court to amend a pleading to conform to proof” if such an action is in the furtherance of justice.
He noted that no abuse of discretion will be found unless the amendment raises substantially different issues or prejudices the objecting party’s rights.
In the present case, he concluded that “[t]here is no such showing on this record” and opined:
“At most, the trial court’s decision to conform the restraining order application to Section 527.6 proof removed an issue from the case (whether the parties were in a dating relationship) rather than injected a new issue that the parties could not have anticipated a need to address through the presentation of evidence. In addition, defendant’s rights were not otherwise prejudiced by the court’s decision to make an alternative Section 527.6 finding.”
Continuing, he commented:
“Generally speaking, Section 527.6 in many respects is the more defendant-favorable statute: it imposes a higher burden of proof (clear and convincing evidence) and requires a factual predicate that is just as stringent as the DVPA, if not more so. To be sure, Section 527.6 does not require the existence of a dating relationship, and the absence of that element did close off one avenue of the defense strategy for prevailing in this case. But…prejudice…is not merely a lower chance of prevailing; that would necessarily exist any time there is an amendment to conform to proof. Rather, the prejudice must be some other hindrance in the presentation of evidence….There was no such hindrance here.”
The case is S.F. v. Hunter, B324129.
Fino was represented on appeal by Studio City attorney Chad M. Lewin. Hunter’s appellate lawyer was West Los Angeles practitioner A. George Glasco.
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