Opinion
D072332
03-20-2018
EUGENIA THEODORAKIS, Plaintiff and Respondent, v. DARREN KELLY, Defendant and Appellant.
Darren Kelly, in pro. per., and Keith H. Rutman for Defendant and Appellant. No appearance for Plaintiff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DV043917) APPEAL from an order of the Superior Court of San Diego County, Gerald C. Jessop, Judge. Affirmed. Darren Kelly, in pro. per., and Keith H. Rutman for Defendant and Appellant. No appearance for Plaintiff and Respondent.
After Eugenia Theodorakis broke off her dating relationship with Darren Kelly, he began sending her threatening e-mails and texts, such as: "I'm going to make you pay for the rest of your life," and "[Y]ou have it coming to you, you cunt, you whore, you a-hole." Later, Kelly reported Theodorakis to Child Protective Services (CPS), and then a physical altercation ensued in which both parties were injured.
Kelly appeals from a domestic violence restraining order (DVRO) issued in favor of Theodorakis and her children. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Except as otherwise indicated, we recite the facts in the light most favorable to the order. (In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 702 (Marriage of Fregoso).)
Kelly and Theodorakis dated each other for about two months. When Theodorakis ended the relationship, Kelly called her a "whore" and a "slut" and began sending her harassing and threatening e-mails and text messages such as: "U better know and understand that it is waaaaay better for u to have me as a friend than it is to make me an enemy like ur doing now," "I'm going to make you pay for the rest of your life." "[Y]ou have it coming to you, you cunt, you whore, you a-hole," and "You really, really fucked me up. I truly hate you now. Good job. You stupid lying cunt."
The parties stipulated to the admissibility of declarations filed in support of and opposing the DVRO. The facts recited are based on those declarations and testimony at the hearing.
About two months after their relationship ended, CPS contacted Theodorakis, stating it received a report that she uses illegal drugs, walks around the house naked, has sex with underage boys, and abuses her children. Theodorakis suspected Kelly made the report because of how "absurd" the allegations were and his threats to ruin her life. When CPS told Theodorakis that the reporting party referred to her ex-husband as "Mark," she knew Kelly had made the report because although her ex-husband's name is John, Kelly always referred to him as Mark. Later that day, Kelly sent Theodorakis an e-mail stating, "Enjoy cunt—you've got it coming to you and you can tell the rest of your little friends that they do as well. Cheers!"
After interviewing Theodorakis, her ex-husband John, and their two children, CPS told Theodorakis it would take no action on the referral.
Apparently referring to the CPS report, Theodorakis sent Kelly an e-mail stating, "You are bitter evil what you did you just started a fire." She e-mailed Kelly stating her "x" is a "jitsu [sic] fighter" who would turn him into "a pret[z]el." Kelly replied, "Get your little monkey boy over here—I dare you! You're the one making threats here, stupid antagonistic bitch."
On September 20, 2017, Theodorakis and John went to Kelly's apartment to confront him about the harassing e-mails, texts, and CPS report.
What occurred at Kelly's apartment is disputed. Theodorakis and John testified they knocked on the door and rang the bell, but no one answered. They walked to the back patio and looked through the sliding glass door. They saw Kelly run upstairs, and then back down the stairs with a large hunting knife. Kelly opened the patio door and waving the knife at John stated, "I'll kill you. You better leave. I'll kill you." Theodorakis screamed for help. Kelly slashed her hand with the knife, nearly cutting off her thumb and said, "I'm going to cut you some more." As Theodorakis ran away, Kelly chased after her. John pulled Kelly away from Theodorakis and subdued him until police arrived.
Kelly's version of the altercation was entirely different. He admitted calling CPS, but stated he did so because Theodorakis had told him she walked naked in front of her children, abused cocaine, and had neglected her children. Asked, "Did you call CPS to get her in trouble?" Kelly answered, "Yeah," but added he was also concerned for the children's welfare. Asked why he waited two months to report the alleged abuse, Kelly stated that while dating Theodorakis he was "in love" and did not consider the acts of abuse "as atrocious as they actually were, until after we had been broken up for a little while and she responded with some threatening emails to me."
Kelly testified that when Theodorakis and John knocked on his door, he saw that his back porch door was open and he had no time to shut it. He got a kitchen knife and hid. Kelly testified that Theodorakis and John entered his apartment. Kelly responded by displaying the knife and stating, "You better get out of here." Theodorakis left, but John remained and punched Kelly repeatedly in the face, giving him a broken lip and facial cuts and bruises. Kelly denied cutting or stabbing Theodorakis, instead testifying her knife wound was self-inflicted.
Police arrested Kelly at the scene; however, the district attorney declined to prosecute him.
Two days later, Theodorakis filed a request for a DVRO. The court issued a temporary restraining order and set the matter for hearing. Kelly filed a response, denying the allegations but indicating he would not oppose mutual no contact orders.
After hearing the parties' testimony and considering other evidence, the court stated that even without the "horrific events of September 20," there was ample evidence to issue a DVRO. The court found that Kelly called CPS "for a vengeful reason", noting that Kelly "sat on" information about the alleged child abuse "for three months and decided well, she's going to get her comeuppance." Stating, "I think it's a close call," the court concluded, "I do think that there was harassment. And I'm issuing this order based on the totality of the circumstances, not just the cutting. If I threw that out, I think I would still have a sufficient basis to see that there was violence." (Italics added.)
DISCUSSION
I. THE COURT CORRECTLY ISSUED THE DVRO
A. Governing Principles and the Standard of Review
The purpose of the Domestic Violence Protection Act (DVPA) (Fam. Code, § 6200 et seq.) is "to prevent acts of domestic violence, abuse . . . and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence." (§ 6220.) "To this end, the DVPA provides for the issuance of restraining orders that enjoin specific acts of abuse." (Marriage of Fregoso, supra, 5 Cal.App.5th at p. 702.)
Undesignated statutory references are to the Family Code.
Under the DVPA, abuse is "not limited to the actual infliction of physical injury or assault." (§ 6203, subd. (b).) Instead, abuse is defined as either: an intentional or reckless act that causes or attempts to cause bodily injury, an act of sexual assault, an act that places a person in reasonable apprehension of imminent serious bodily injury to himself or herself or to another, and an act that involves any behavior that has been or may be enjoined under section 6320. (§ 6203, subd. (a).) The behavior that may be enjoined under section 6320 includes "threatening, . . . harassing, . . . making annoying telephone calls . . . , contacting, either directly or indirectly, by mail or otherwise . . . [or] disturbing the peace of the other party." (§ 6320.) Accordingly, under the DVPA "[a]nnoying and harassing an individual is protected in the same way as physical abuse." (Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 398.) So too is disturbing the peace of the protected party. "[T]he plain meaning of the phrase 'disturbing the peace of the other party' in section 6320 may be properly understood as conduct that destroys the mental or emotional calm of the other party." (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497.)
"On review of an order granting or denying a protective order under the DVPA, we consider whether the trial court abused its discretion." (Marriage of Fregoso, supra, 5 Cal.App.5th at p. 702.) "'"The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court."'" (Ibid.) "We accept as true all evidence tending to establish the correctness of the trial court's findings, resolving every conflict in the evidence in favor of the judgment." (Ibid.) "Under the substantial evidence test, the pertinent inquiry is whether substantial evidence supports the court's finding—not whether a contrary finding might have been made." (Ibid.)
Although Theodorakis did not file a respondent's brief in this appeal, her failure to do so does not affect Kelly's burden, as appellant, to show the court abused its discretion in issuing the DVRO. (Marriage of Fregoso, supra, 5 Cal.App.5th at p. 702.)
B. The Court Properly Issued the DVRO
Kelly asserts the court's sole basis for issuing the DVRO was his reporting Theodorakis to CPS. From that premise, he contends the order must be reversed, asserting he has a privileged First Amendment right to report suspected child abuse to CPS. Although Kelly does not cite any case that directly supports his contention, he notes that Code of Civil Procedure section 527.6, subdivision (b)(1), which authorizes restraining orders similar to a DVRO where there is no dating or family relationship, provides that constitutionally protected activity is not actionable. He contends, therefore, the same limitation should apply under the DVPA. He also cites cases holding that Penal Code section 11172 provides immunity to certain individuals reporting child abuse to the proper authority.
Penal Code section 11172, subdivision (a) provides in part: "No mandated reporter shall be civilly or criminally liable for any report required or authorized by this article, and this immunity shall apply even if the mandated reporter acquired the knowledge or reasonable suspicion of child abuse or neglect outside of his or her professional capacity or outside the scope of his or her employment. Any other person reporting a known or suspected instance of child abuse or neglect shall not incur civil or criminal liability as a result of any report authorized by this article unless it can be proven that a false report was made and the person knew that the report was false or was made with reckless disregard of the truth or falsity of the report, and any person who makes a report of child abuse or neglect known to be false or with reckless disregard of the truth or falsity of the report is liable for any damages caused."
Kelly's argument fails for several reasons. First, the record does not support his assertion that the court issued the DVRO solely because of his CPS report. While it is true the court at one point said it was issuing the order because of Kelly's vengeful and harassing CPS report, elsewhere the court also stated it was issuing the order "based on the totality of the circumstances." The court added that even excluding the knife incident, there was sufficient "violence" to support issuing the DVRO. We infer the court's reference to "violence" includes Kelly's threatening e-mails and texts.
Kelly contends the court declined to issue the DVRO based on his threatening texts and e-mails. We have read the portions of the reporter's transcript that Kelly cites to support his assertion, and we disagree with his interpretation of the court's remarks from the bench. It is true the court expressed displeasure at both parties' "tit-for-tat back and forth" and criticized Theodorakis for "threatening him with fighters and things like that." However, contrary to Kelly's assertion, the court did not state that as a result, it was disregarding Kelly's threatening texts and e-mails or that somehow they were justified or appropriate, which they clearly were not.
Moreover, Kelly did not ask the court to issue a statement of decision and, therefore, unless the record clearly shows the basis for the trial court's decision, the order will be affirmed on appeal if supported by any theory supported by the evidence. (See Border Business Park v. City of San Diego (2006) 142 Cal.App.4th 1538, 1550.) This is because a party's failure to request a statement of decision when one is available triggers the doctrine of implied findings. Under the doctrine of implied findings, "when parties waive a statement of decision expressly or by not requesting one in a timely manner, appellate courts reviewing the appealed judgment must presume the trial court made all factual findings necessary to support the judgment for which there is substantial evidence." (In re Marriage of Condon (1998) 62 Cal.App.4th 533, 549, fn. 11.) "In other words, the necessary findings of ultimate facts will be implied and the only issue on appeal is whether the implied findings are supported by substantial evidence." (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 267.)
The record does not clearly show the basis for the court's decision because at one point the court stated it was issuing the DVRO "based on the totality of the circumstances, not just the cutting."
"There are instances where a court's comments [from the bench] may be 'valuable in illustrating the trial judge's theory but . . . they may never be used to impeach the order or judgment." (In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 646, italics omitted.) In other words, we look only to the judgment to determine error. (Id. at pp. 647-648.) Accordingly, although in addressing the parties from the bench the court focused on Kelly's CPS report, the order's correctness is not so limited and instead rests on any legal ground supported by the evidence.
Kelly's brief correctly concedes that absent a request for a statement of decision, "this [c]ourt will assume the trial court made the factual findings necessary to sustain its order." --------
Finally, even assuming for the sake of argument that the court's sole basis for issuing the DVRO is Kelly's report to CPS, his argument is untenable. Any protection from civil liability in such circumstances is intended to preclude the recovery of money damages for making such a report. (See Krikorian v. Barry (1987) 196 Cal.App.3d 1211, 1223.) Thus, assuming without deciding that Kelly's report to CPS was privileged, he cites no authority suggesting that the immunity from civil liability for damages precludes an injunction against harassment against one who has submitted such a report. The DVRO does not require Kelly to pay damages for making the CPS report. It orders him to keep away from Theodorakis and her children.
Moreover, Kelly admitted he made the report to get Theodorakis "in trouble." The court disbelieved his later testimony about concern for the children's welfare. Accordingly, Kelly had no constitutionally protected interest in harassing Theodorakis by reporting her to CPS. The right to free speech "does not include the right to repeatedly invade another person's constitutional rights of privacy and the pursuit of happiness through the use of acts and threats that evidence a pattern of harassment designed to inflict substantial emotional distress." (People v. Borrelli (2000) 77 Cal.App.4th 703, 716.)
Last, Kelly contends the order should be reversed because he "acted in self-defense to protect his own home." However, Theodorakis testified that without provocation, Kelly attacked her—nearly slicing off her thumb. Under the applicable standard of review, we are required to resolve evidentiary conflicts in favor of the order's validity, and thus credit Theodorakis's version of the incident. (Marriage of Fregoso, supra, 5 Cal.App.5th at p. 702.)
In any event, the court stated that even disregarding the September 20, 2017 incident at Kelly's apartment, there was a sufficient basis for issuing the DVRO, stating, "If I threw that out, I think I would still have a sufficient basis to see that there was violence." Kelly's threatening and vulgar texts and e-mails support that determination. (See Sabato v. Brooks (2015) 242 Cal.App.4th 715, 725 [unwanted and harassing e-mail, text messages support DVRO].)
DISPOSITION
The order is affirmed. Because Theodorakis did not file a brief in this court, there are no costs on appeal to award. (Marriage of Fregoso, supra, 5 Cal.App.5th at p. 704.)
NARES, J. WE CONCUR: HUFFMAN, Acting P. J. DATO, J.