Opinion
A149659
07-17-2018
MIGUEL S., Plaintiff and Appellant, v. CURTIS D., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. FDV-16-812457)
Appellant Miguel S. appeals from the denial of a domestic violence restraining order against respondent Curtis D., challenging the trial court's determination that Miguel S. had not met the burden of proof to demonstrate abuse sufficient to warrant a restraining order. We affirm.
BACKGROUND
In May 2016, Miguel S. requested a restraining order under the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq. (DVPA)) against Curtis D., a former romantic partner. Miguel S. asked that the protective order include restraining Curtis D. from impersonating Miguel S. online or providing his name, address, phone number, or other personal information to third parties, detailing recent harassment that he claimed Curtis D. was behind.
All further statutory references are to the Family Code. --------
Miguel S. and Curtis D's on-and-off relationship had ended two months earlier in March 2016, when Miguel S. learned Curtis D. had secretly recorded them having sex and the videos were shared privately on Curtis D.'s Facebook account. A month later, in April, Miguel S. discovered fake profiles created in his name on several sex Web sites, using his photo, address, and phone number. These fake profiles led to multiple phone calls, strangers showing up at his home expecting sex, and "stalking," which made him "extremely scared." Miguel S. was also contacted by the Jesus Christ Church of Latter Day Saints, who had received a "request for a missionary visit" from someone using Miguel S.'s personal information, as well as by a mesothelioma claims law firm.
In his restraining order request, Miguel S. claimed Curtis D. posted the sex videos online at xtube.com, given Curtis D's acknowledgement of the videos' existence and the use of the word " 'jock' " or "jck" in the xtube.com pages, a word Curtis D. had used in past profiles and e-mails. Miguel S. claimed Curtis D. was behind the fake profiles and unsolicited home visits, as the fake profiles appeared and the solicitations began shortly after their relationship ended. Miguel S. also claimed that a representative for one of the sex Web sites said a man named " 'Curtis' " had created the fake profile.
The court issued a temporary restraining order against Curtis D. and set a hearing on the application for a domestic violence restraining order, after several unsuccessful attempts to serve Curtis D. with the temporary restraining order and hearing notice. Both parties testified.
At the hearing, Miguel S. reiterated the incidents detailed in his restraining order request of unsolicited visits from companies who had his personal information. He also described another recent unsolicited call from a "walk-in tub company" which fit the "pattern" of harassment that began shortly after his relationship with Curtis D. ended. Miguel S. testified that there was "a break in the harassment" when the sheriff made the first unsuccessful attempt to serve Curtis D. with the temporary restraining order and hearing notice, and introduced documents in order to show the dates aligned. In closing, Miguel S.'s counsel asked for a five-year restraining order based on Curtis D's "cyber harassment" and pattern of incidents in which sex was the "consistent," unifying theme.
Curtis D., for his part, testified that he had "absolutely nothing to do" with the harassing incidents, explaining that he "never knew [Miguel S.'s] real name" because Miguel S. had used a fake name during the course of their relationship. While Miguel S. admitted to using a fake name, Miguel S. explained he had texted Curtis D. from an e-mail address that included his real name. Curtis D. admitted to making the sex videos without Miguel S.'s permission and to privately sharing them with someone he did not know on Facebook, describing it as a "stupid thing to do." Curtis D. apologized, testifying that he had deleted the videos off of his computer and "took care of it" by asking that the videos be taken down "immediately" after Miguel S. contacted him.
In denying the restraining order, the trial court found that Miguel S. had not met his burden of proof: the evidence before the court was not "what [the court] would need to have to find by a preponderance that [Curtis D.] . . . is . . .the individual whose [sic] perpetrated these acts." The court described the harassment as "regrettable" but stated that it did "not know that [Miguel S. and counsel] know who has done this."
DISCUSSION
Legal Standard
Miguel S. first contends the trial court applied an incorrect legal standard in evaluating the evidence. Determination of the correct legal standard is a question of law, which is reviewed de novo. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420-421.) The appropriate legal standard for the issuance of a DVPA protective order is proof by a preponderance of the evidence. (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137.)
When denying Miguel S.'s request, the trial court found he had not met his burden of proof, stating the evidence was not enough for the court to "find by a preponderance that [Curtis D.] . . . perpetrated these acts." It is thus apparent the trial court brought to bear the correct legal standard in determining whether or not to grant a DVPA restraining order.
Sufficiency of the Evidence
Miguel S. next contends the trial court erred in finding that he failed to meet his burden of proof. He makes two claims. First, he maintains that he proved that Curtis D. was behind the fake profiles and unsolicited visits and calls from different individuals and organizations. Secondly, he contends that the "undisputed evidence" that Curtis D. shared the sex videos with a third party was "sufficient on its own" to warrant a restraining order.
Under the Family Code, an "order may be issued" for the purpose of preventing domestic violence, abuse, or sexual abuse if the evidence shows "to the satisfaction of the court, reasonable proof of a past act or acts of abuse." (§§ 6300, 6220.)
Abuse means any of the following four categories: "(1) To intentionally or recklessly cause or attempt to cause bodily injury. [¶] (2) Sexual assault. [¶] (3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. [¶] (4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320." (§ 6203, subd. (a)(1)-(4).) Section 6320, in turn, includes "disturbing the peace of the other party." (§ 6320, subd. (a).) Thus, a party seeking a restraining order can show abuse by demonstrating "conduct that destroys the mental or emotional calm of the other party." (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497 (Nadkarni).)
We review the trial court's decision to grant or deny a protective order under the DVPA for abuse of discretion. (Nadkarni, supra, 173 Cal.App.4th at p. 1495.) We review the trial court's underlying factual findings for substantial evidence. (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822.)
Fake Profiles and Unsolicited Visits
When considering the sufficiency of the evidence, " ' " '[w]e must accept as true all evidence . . . tending to establish the correctness of the trial court's findings . . . , resolving every conflict in favor of the judgement.' " ' " (In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1424 (Evilsizor).) Here, the trial court found the evidence was insufficient to support a conclusion that Curtis D. was the person who "perpetrated these acts" of online harassment. And, indeed, none of the evidence Miguel S. presented directly tied Curtis D. to the online harassment about which Miguel S. complained. Ultimately, the trial court made a credibility call as to the veracity of Curtis D.'s testimony. Credibility is a matter for the trial court, and not a matter that we can revisit on appeal. Accordingly, we must uphold the trial court's finding that the evidence did not prove Curtis D. was behind the posting of the videos or creating the fake profiles.
Sharing the Videos
Miguel S. also claims that, in any event, the trial court should have granted a restraining order "[b]ased only on respondent's admission that he disseminated the sex recordings without appellant's consent." (Italics added.) Because this assertion focuses on the trial court's denial of a restraining order, rather than the sufficiency of the evidence to support the court's factual findings, our review is limited to whether the trial court abused its discretion, and we must "affirm unless ' " 'the trial court exceeded the bounds of reason.' " ' " (Fischer v. Fischer (2018) 22 Cal.App.5th 612, 622-623 (Fischer).)
Curtis D. admitted to making the sex videos without Miguel S.'s permission and privately sending them to a third party over Facebook. Citing Nadkarni, Evilsizor, and Phillips v. Campbell (2016) 2 Cal.App.5th 844 (Phillips), Miguel S. maintains the dissemination of these videos was "sufficient" to grant the restraining order. Curtis D.'s conduct, he contends, is "worse than that deemed sufficient" in those cases. However, none of these cases holds that the dissemination of a sex video, without more, requires the issuance of a restraining order.
In Nadkarni, the Court of Appeal reversed a dismissal of a request for a restraining order, holding that if true, a former husband's "alleged conduct in destroying the mental or emotional calm of his former wife by accessing, reading and publicly disclosing her confidential e-mails" could be abuse sufficient for a restraining order. (Nadkarni, supra, 173 Cal.App.4th at p. 1498.) While Nadkarni holds public disclosure of confidential material can be considered abuse and is facially sufficient to warrant a hearing on the merits, the appellate court did not evaluate the evidence, but rather, remanded the matter to the trial court for further proceedings. (Id. at pp. 1498-1500.) In short, Nadkarni dealt with purely a legal question, and just because such conduct "could . . . constitute 'disturbing the peace of the other party,' (§ 6320)" does not mean that it must regardless of all the other circumstances. (Id. at p. 1499.)
In Evilsizor, the Court of Appeal affirmed a DVPA restraining order against an estranged husband who, convinced his wife's child was not his, used software to download "tens of thousands" of text messages and his wife's diary from her phones, and hacked into her Facebook account, changing the password and connecting it to his e-mail address. (Evilsizor, supra, 237 Cal.App.4th at pp. 1419-1421.) He then disclosed intimate details to his wife's father and their custody evaluator, attached some of the stolen text messages to publicly-available court filings to bolster his case in divorce proceedings, and threatened to disclose more. (Id. at pp. 1420-1422.) The Court of Appeal agreed with the trial court's determination that this conduct was "sufficiently egregious" to warrant the restraining order. (Id. at p. 1426.) That the appellate court affirmed the court's exercise of its discretion on that record, does not compel reversal in this case. On the contrary, the conduct in Evilsizor was far more egregious than the private Facebook sharing that occurred here.
In Phillips, the Court of Appeal affirmed a restraining order against a spurned suitor, whose abusive conduct included banging on the doors and windows of the respondent's house during the night, sending harassing text messages, and posting the respondent's personal information, photographs, and videos on social media. (Phillips, supra, 2 Cal.App.5th at p. 847.) There was also a previous restraining order against the appellant in a different state, and a documented police report of violence. (Id. at p. 852.) The appellate court rejected the appellant's assertion that a domestic violence restraining order was unwarranted because his conduct was nonviolent. (Ibid.) The court first explained there was no "requirement of a physical threat" for a restraining order. (Ibid.) It then concluded the trial court did not abuse its discretion in concluding his conduct constituted "abuse" under the statute and warranted the issuance of a restraining order. (Id. at pp. 852-853.) Again, the conduct in Phillips was more egregious than the conduct Curtis D. was found to have engaged in here.
In sum, on this record, the trial court did not abuse its discretion in declining to issue a restraining order. (See In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 702.) While we agree with the trial court that the posting of the sex tapes was "regrettable" and the fallout has been distressing, the trial court found Curtis D. was not behind the latter. Accordingly, the denial of a restraining order, given all of the evidence, did not " 'exceed[] the bounds of reason.' " (Fischer, supra, 22 Cal.App.5th at p. 622.)
DISPOSITION
The denial of the DVPA restraining order is affirmed. Curtis D. to recover costs on appeal.
/s/_________
Banke, J. We concur: /s/_________
Margulies, Acting P.J. /s/_________
Dondero, J.