Acosta v. Acosta

by Andrew G. Watters, Esq.

A case study of injustice enabled by bureaucratic inefficiency and lack of caring.

This is a domestic violence case with a companion divorce venued in San Mateo County Superior Court. My intention was to castigate the local court for delaying the trial of this case for over a year, and depriving my client of contact with his kids for that whole time. This web page was originally going to be solely about the domestic violence case, but it has lately turned into an issue of freedom of speech.

To summarize, I took a video of Ms. Acosta's deposition, which I had intended to post on this web page with annotations and editorial commentary. Ms. Acosta filed an ex parte application to enjoin me from distributing the video of her deposition online. The Court, shockingly, granted this application and enjoined my freedom of speech. I have filed an action in the U.S. District Court to declare the state court order void under the Federal constitution and otherwise, and to enjoin the enforcement of the order. You can't make this stuff up.

The case is 3:21-cv-05601 in the U.S. District Court for the Northern District of California. Feel free to take a look at my complaint, my application for a TRO/OSC, and the declaration I filed. Here is the underlying motion and opposition that resulted in the unlawful order.

July 23, 2021 - Judge White denied my application for a temporary restraining order to prevent the state court order from being enforced. I was surprised to see him refer to the 11th Amendment as potentially barring this case, which is strange considering that a Federal court can enjoin state officials from enforcing an order that violates the Federal constitution, and because the 11th Amendment does not (at least by its own text) apply here. I specifically filed this case as a request for an injunction preventing the enforcement of the underlying order. Was I supposed to sue the Sheriff instead? Lol. So this is what it feels like to be a litigant in a one actually cares about a person's rights being violated. I have to admit, in fifteen years of being a lawyer I have not really felt this way, which is unfortunate considering that I've had many clients who have won or lost.

Concerning the Eleventh Amendment, this summary is a primer for regular people. I need to read up on the latest cases and consult with a more keen legal mind before my next move here. I don't think Judge White is right on this.

July 29, 2021 - I've retained counsel to handle this one. Meanwhile, read Judge White's order and my letter to my Congressional representative. I was also referred to the case of Seattle Times Co. v. Rhinehart, but I don't think it applies because that case was about private donor information and financial documents, not deposition video. Why shouldn't I be able to post video of what someone is going to say at trial?

August 24, 2021 - Several developments. First, the Honorable Jackie Speier wrote me a letter back and declined to help. Second, Jennifer Acosta filed a State Bar complaint with a bunch of frivolous claims, resulting in an inquiry letter. Third, I filed an opposition to Ms. Acosta's motion for a protective order. What a joke! I can't believe I am the bad guy for wanting to criticize the local court system and Ms. Acosta with actual evidence. This is sad.

September 21, 2021 - The tentative decision, following six half-days of trial, was to grant the restraining order. So we lost. Obviously, we're very disappointed with the decision. I especially hate losing to Viola Law, although I am the first to admit that Ms. Valim did a great job advocating for her client. In the District Court case concerning the deposition video, we filed an amended complaint to resolve the 11th Amendment issue raised by the judge, and will be proceeding with that.

October 15, 2021 - Ms. Acosta's State Bar complaint was closed out with a "resource letter" on the issue of use of minor children's names/initials in court papers, without even mentioning the other claims. The irony is that Ms. Acosta's counsel were also using the kids' full names in some filings, so this is a case of hypocrisy as well. I hope the closing letter gives her closure, as I don't want to deal with frivolous administrative complaints on top of everything else that's required to make it in this field.

October 21, 2021 - We are appealing the decisions on the deposition video and the DV restraining order. The District Court case is proceeding, with an amended complaint naming the Honorable Leland Davis, III in his official capacity. There will be a motion to dismiss on 11th Amendment grounds and other claims from the defendant, which my counsel will be ably handling. Judge Davis is represented by the state attorney general's office.

Where to begin...this is a contentious Domestic Violence case filed by Jennifer Acosta with a companion divorce proceeding filed by my client, Eric Acosta. Eric filed the divorce first, which Jennifer claims she was unaware of when she filed the DV case a week or two later (lol).

The DV petition recounts a purportedly lengthy history of domestic abuse stretching back years. Jennifer described several claimed incidents during her deposition, and she said there had been "dozens" of incidents during the marriage. Why she finally put her foot down was not explained. Anyway, this all started in July 2020 with the filing of the two court cases.

Despite having no evidence or even a claim in the petition that Eric harmed the two minor children in any way, the local court (Judge Franchi) granted a Temporary Restraining Order against Eric kicking him out of his home and cutting off all contact with the family. At a subsequent proceeding, the court (Commissioner Mazzei) granted an order for limited visitation that said that if the kids refuse visitation three times, there is to be no further visitation. That was in September 2020, and according to Jennifer, the kids have refused visitation three times (how convenient). There was an order for reconnection therapy, which Jennifer obstructed by interfering with the process to the point where the therapist wrote a detailed letter complaining about her behavior and withdrawing her services. We haven't been able to find, much less have Jennifer agree on, a new reconnection therapist. Thus, for the last thirteen months, Eric has not seen his kids and has been living at a friend's house. Efforts to obtain visitation voluntarily have been met with cease-and-desist text messages from Jennifer to the visitation supervisors complaining that they are harassing her, which is not true.

The matter kept getting continued. It was initially set for February 2021, but then it got moved to April 2021. In April 2021, it got moved to September 2021. This is more than a year after the petition was filed!

It is undisputed that the parties had a roller coaster of a marriage marked by various negative incidents. For example, there have been two videos produced that will be exhibits at the upcoming trial on September 7-10, 2021. In the first video, from 2018, Jennifer attacks Eric in a bedroom in their home. In the second video, which was later, Jennifer records herself going into Eric's shop, falling down, and fake-screaming as if she is afraid of him. We have a photo of Eric showing what appears to be a bruise on his face from Jennifer punching him. She claims the bruise was from a respirator Eric was wearing on a job site.

I took Jennifer's deposition in June 2021. She refused to take off her mask, thereby preventing me from analyzing her facial expressions and micro expressions, which she concedes frequently cross her face. The deposition video is the subject of a temporary restraining order until September 7, 2021, when the subject of posting the video will be decided at a hearing. I should note that the video is a hot-button issue for Jennifer that upsets her greatly. Initially, the video was mainly taken for Eric to be able to see the deposition since there is a Temporary Restraining Order in place and he couldn't attend. Once I was in the deposition, though, it became apparent that this would make a nice multimedia presentation with video annotations and motion graphics. The purpose of posting it on here is to provide evidence that Jennifer's claims are ridiculous and to show the magnitude of the injustice that is occurring in this case by depriving a father of contact with his children for over a year. This would dovetail nicely with Jennifer's social media campaign against Eric, in which she has taken to Facebook to demolish his reputation with defamatory posts about all manner of perceived slights. Of course, because I have had my freedom of speech unlawfully restrained by the local court, I can't post the video. If the video is permanently enjoined from being posted, then it will be a couple of years before we are potentially vindicated in the Court of Appeal, but by then, it won't matter anymore. That's why it's so unfair and why I challenged the order in U.S. District Court pursuant to certain case law in this area that allows the restraint of state officers who act beyond the Constitution.

Perhaps unsurprisingly, Jennifer has now directed her sights on me. Following through on her attorneys' unlawful threat to complain to the State Bar, she filed a complaint, claiming that I am doing something illegal by intending to post the deposition video, among other claimed misdeeds. Her complaint is frivolous and appears to be an effort to distract me from preparing for the upcoming trial in this case. The interesting thing is that the inquiry letter from the Bar mentions the rule on Trial Publicity (Rule 3.6). Rule 3.6 primarily applies in criminal cases, but in any event, there are multiple sections of the rule that permit a lawyer to publish a web page about a civil case. For one, this is going to be a court trial, not a jury trial; thus, there is no chance of prejudicing the adjudication of the cause, nor is this page intended to do so. I am posting a web page on my personal website, not leafleting potential jurors in front of the courthouse. Ridiculous. I also am responding to Jennifer's campaign of defamation of my client on social media, which is expressly allowed by Rule 3.6(c). Finally, this is all clearly my opinion and my thoughts and impressions about the case, both of which are privileged under the law.

In any case, the trial of this matter is set for September 7-10, 2021. I anticipate being exonerated on the free speech issue at some point, but that may be well beyond the end of the DV case.

The Acosta matter represents a failure of justice and shows numerous problems with the San Mateo County Superior Court's handling of DV cases. Commissioner Mazzei in particular is insensitive to the rights of the respondent in DV cases, which is problematic because she handles most of the pretrial DV proceedings. At one point, she basically threatened my client with imposing $12,000 per month in support because she didn't believe his Income and Expense Declaration. So under duress, we stipulated to $7,000 per month in family support, which has not been possible for my client to pay. This is a case that demonstrates that changes are needed to the law and/or the processing/handling of DV cases to ensure that DV is no longer a cudgel for purported victims to gain strategic advantage in a divorce, which is what is happening here.

To be continued.

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© 2022 Andrew G. Watters

Last updated: May 28, 2022 08:37:33