Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RF08397129
Sepulveda, J.
The trial court issued a protective order restraining appellant Edwin Larrieu from contacting his former girlfriend, Regina Maria Harkness. (Fam. Code, § 6200 et seq.) Larrieu appeals upon contentions that the order is procedurally improper and unsupported by evidence of prior domestic violence warranting a protective order. Larrieu represents himself on appeal. Harkness did not file a respondent’s brief. We conclude that the trial court did not abuse its discretion in issuing the protective order, and we find no procedural errors. We affirm the order.
I. FACTS
On July 8, 2008, Regina Maria Harkness filed a request for a protective order against Edwin Larrieu, a young man she had been dating. (Fam. Code, § 6200 et seq.) Harkness said Larrieu made harassing telephone calls and that she was “worried for [her] physical safety” because Larrieu “has proven himself out of touch with reality.” Larrieu filed an answer denying the allegations. The answer attached two declarations: one from Larrieu and one from his mother. The declarations, in addition to setting forth facts about the dating relationship, also asked the court to continue the hearing to allow time to retain an attorney and to quash service of Harkness’s pleading because it was served on a minor.
Larrieu was 21 years old when the protective order was requested in 2008.
A hearing on the requested protective order was held on August 1, 2008. Harkness was represented by an attorney with the Family Violence Law Center. Larrieu represented himself. He was accompanied by his mother, an attorney. Larrieu’s mother said she was not acting as an attorney for her son in the matter because she was “too close to the case” and emotionally invested.
Near the start of the hearing, Larrieu verbally moved to quash Harkness’s pleading, to continue the hearing, and to change venue. The court denied the motions, noting that his filing of an answer and general appearance at the hearing foreclosed his motion to quash. The court heard testimony from Harkness and her mother, and from Larrieu and his mother.
Harkness testified that she broke up with Larrieu a year earlier, and that he would not stop “harassing” her. She said: “He comes to my mother’s house, and he’s come to my work, and he’s called my new place of work, and I fear for my safety.” Harkness and her attorney referred to supplemental declarations from witnesses attesting to the harassment. Harkness’s attorney represented that Larrieu follows Harkness and sends Harkness electronic mail and text messages. The attorney reported that Larrieu telephoned Harkness’s cousin and badgered the cousin into revealing Harkness’s personal telephone numbers by saying that Harkness died in a car accident. The attorney said that Harkness transferred from a Sonoma college to another college in San Francisco’s East Bay “to get away” from Larrieu who “does not understand that the relationship is over.” Harkness’s mother testified that Larrieu showed up at her house “uninvited” and “unannounced” “maybe twice, maybe three times” after the couple stopped dating and her daughter did not “want anything to do with him.” Harkness’s mother said she “was concerned for [her daughter’s] safety.”
Appellant Larrieu failed to designate these materials for inclusion in the clerk’s transcript on appeal. (Cal. Rules of Court, rule 8.121.)
Larrieu testified that Harkness gave him mixed signals about her interest in continuing to date him over the previous few months. In his declaration, Larrieu admitted writing an electronic message to Harkness calling her a “Mind Fuck Cunt,” which he dismissed in his declaration as “my generation’s lingo for a woman who leads a man on just to toy with his emotions in order to hurt him.” Larrieu declared that he did not “think [he] was out of line for saying such a thing.” At the hearing, Larrieu said that he now understands that Harkness does not want a relationship with him, and “the feeling is mutual.” Larrieu explained that he recently telephoned Harkness’s cousin, and then Harkness, only because Harkness and her friend played a “sick joke” on him by pretending that Harkness was dead. Larrieu said it was Harkness’s friend who initiated the story of Harkness’s death when the friend telephoned Larrieu on July 4, 2008 and told him that Harkness died in a car accident. Larrieu then saw that an Internet social networking web site said “ ‘rest in peace’ ” on Harkness’s web page, and he telephoned the cousin out of concern for Harkness.
Larrieu’s mother testified that Harkness willingly communicated with Larrieu in June 2008. His mother said there was a telephone call, and electronic mail. His mother also corroborated Larrieu’s claim that he saw a death announcement on Harkness’s web page. The mother said she was “woken up in the middle of the night” by her distraught son, who showed her a computer screen showing “RIP” on Harkness’s web site. Larrieu’s mother further testified that she helped her son search the Internet for information on Harkness and car accidents, and found where Harkness worked so he could call to see if Harkness was alive.
Harkness’s attorney argued that the testimony showed that Larrieu was accessing Harkness’s web site in the middle of the night, despite Harkness’s repeated efforts to block his access. The attorney explained that social networking web sites allow friends to communicate, but one can block unwanted individuals from accessing one’s personal web page. The attorney said Harkness blocked Larrieu seven different times, but “he creates a new profile, a new identity” so he can bypass the blocks.
Larrieu, through his mother, said he would voluntarily terminate all future communications and contact with Harkness, but said he did not want a protective order issued because the order would ruin Larrieu’s prospects for a career in law enforcement. Larrieu insisted that he is not violent, did not want to contact Harkness, and was not a threat to her.
The court found good cause to grant the requested protective order. The court issued a five-year restraining order prohibiting Larrieu from harassing, stalking, following, contacting. and attempting to contact Harkness. The court also ordered Larrieu to stay away from Harkness and Harkness’s mother and the mother’s partner. Larrieu was also ordered not to possess firearms.
On August 18, 2008, Larrieu filed a motion for reconsideration, with his mother acting as his attorney. Larrieu offered documents showing friendly communications between him and Harkness in May and June 2008, which he claimed showed that Harkness perjured herself in saying that the couple broke up in 2007. Harkness, representing herself, filed an opposition to the motion. Harkness explained that she did break up with Larrieu but had limited friendly communications with him after the break-up to protect his feelings. Harkness said she sought a protective order against Larrieu when she saw it was impossible to let “ ‘him down gently’ ” and his “stalking behaviors and incidents of unwanted communication escalated.” Harkness argued that the motion for reconsideration should be denied because the motion presented no new facts, the offered documentary evidence was always available to Larrieu who could have presented it at the hearing, the perjury claim was false, and the motion was procedurally defective. Harkness also noted that Larrieu’s mother had been a witness at the hearing, and argued that the mother should be precluded from acting as an attorney in the matter.
On September 26, 2008, the court struck the motion for reconsideration upon concluding that Larrieu’s mother was “not in a position to represent him, having already appeared as a witness.” The court found that the mother had a conflict of interest that precluded her from representing Larrieu in the case. (Rules Prof. Conduct, rule 5-210.) Larrieu was not present when the rehearing motion was considered and stricken.
Larrieu filed a notice of appeal challenging the August 1, 2008 restraining order. His opening brief was filed with this court on February 27, 2009. He represents himself on appeal. Harkness did not file a respondent’s brief.
II. DISCUSSION
A grant or denial of a protective order under the Domestic Violence Prevention Act (Act) is reviewed for abuse of discretion. (Fam. Code, § 6200 et seq.; Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.) “ ‘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.’ ” (Gonzalez, supra, at p. 420.) Nor will we substitute our opinion as to the credibility of the witnesses for that of the trial court. (Romero v. Eustace (1950) 101 Cal.App.2d 253, 254.)
The court did not abuse its discretion here in granting a protective order. Harkness presented evidence that she had dated Larrieu, and that he was harassing her after the break-up. The evidence brought the matter within the scope of the Act, which provides expansive protection against domestic violence.
Domestic violence is broadly defined to include abuse perpetrated against a spouse, cohabitant, or “[a] person with whom the respondent is having or has had a dating or engagement relationship.” (Fam. Code, § 6211.) The word “abuse” is also broadly defined to include molesting, stalking, harassing, telephoning, contacting, or disturbing the peace of the other party. (Fam. Code, §§ 6203, subd. (d), 6320, subd. (a).)
On appeal, Larrieu advocates a definition of domestic violence limited to physical assault, and notes that Harkness did not allege physical harm. But the Legislature adopted a much broader definition of domestic violence under the Act. (Fam. Code, §§ 6203, 6320.) The law is clear: “the requisite abuse need not be actual infliction of physical injury or assault.” (Conness v. Satram (2004) 122 Cal.App.4th 197, 202.)
Larrieu also makes a general claim of insufficiency of the evidence but that claim is forfeited by his failure to provide an adequate record for review. At the hearing, Harkness provided supplemental declarations from witnesses attesting to the harassment and the court relied upon those declarations in deciding to grant the request for a protective order. The trial court docket shows that “Declaration re Restraining Order” was filed on the date of the hearing. But appellant Larrieu failed to include these declarations in his designation of the record on appeal, leaving us without them for our review of the trial court’s decision. (Cal. Rules of Court, rule 8.121.) We cannot fairly evaluate a trial court’s decision without having before us the materials the trial court used in making its decision. “It is the appellant’s affirmative duty to show error by an adequate record. [Citation.] ‘A necessary corollary to this rule [is] that a record is inadequate, and appellant defaults, if the appellant predicates error only on the part of the record he provides the trial court, but ignores or does not present to the appellate court portions of the proceedings below which may provide grounds upon which the decision of the trial court could be affirmed.’ ” (Osgood v. Landon (2005) 127 Cal.App.4th 425, 435.)
Larrieu’s substantial evidence argument is also fundamentally flawed in focusing upon the evidence favorable to him, such as his testimony claiming that Harkness’s friend initiated the story of Harkness’s death, and that he telephoned Harkness only to check on her welfare. Focus is properly directed to the evidence favorable to Harkness, and whether that evidence is sufficient to support the trial court’s order. “When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics omitted.)
Even on the incomplete record before us, there is sufficient evidence to support the order. The Act confers a broad discretion upon trial courts to prevent domestic violence, and that discretion is “designed to be exercised liberally.” (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.) A protective order may issue for “disturbing the peace of the other party,” which is broadly construed to encompass “conduct that destroys the mental or emotional calm of the other party.” (Fam. Code, §§ 6203, subd. (d), 6320, subd. (a); In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497) Larrieu’s conduct, at the least, disturbed the peace of Harkness by making unwelcome telephone calls to her, arriving uninvited at her Mother’s house, visiting at her work place, and writing an offensive electronic mail message. We cannot say that the trial court abused its discretion and exceeded the bounds of reason in issuing a protective order in this case.
Nor did the trial court abuse its discretion in denying Larrieu a continuance of the hearing. The request for a protective order was served well in advance of the hearing, which gave Larrieu every opportunity to retain counsel. A request for a protective order is time sensitive, and the court acted reasonably in denying a continuance and acting without delay.
The court also properly denied Larrieu’s motion to quash service of the pleading. Larrieu filed an answer in which he said: “I request that this improper service be quashed.” He then appeared at the hearing and addressed the merits before making a verbal motion to quash service of the pleading. Larrieu forfeited his claim of improper service and lack of personal jurisdiction by failing to file a notice of motion to quash with his answer, or before the answer was filed. (Code Civ. Proc., § 418.10, subds. (a)(1), (e).) While one may separately file a notice of motion to quash and an answer at the same time, Larrieu did not do that here. He filed only an answer. The answer did request that service be quashed, but the request was mixed in with statements addressing the merits of the case. An answer with imbedded text requesting that a pleading be quashed is not sufficient notice of a motion to quash. (See Roy v. Superior Court (2005) 127 Cal.App.4th 337, 345 [answer asserting lack of jurisdiction is not a substitute for motion to quash].) By filing an answer, and then appearing at the hearing and arguing the merits, Larrieu lost the opportunity to contest personal jurisdiction. (Factor Health Management v. Superior Court (2005) 132 Cal.App.4th 246, 250.) The verbal motion to quash made at the hearing was properly denied.
Finally, we reach appellant Larrieu’s claim that the trial court erred in barring his mother from providing legal representation. The trial court concluded that Larrieu’s mother was “not in a position to represent him, having already appeared as a witness.” The court found that the mother had a conflict of interest that precluded her from representing Larrieu in the case. (Rules Prof. Conduct, rule 5-210.) We need not determine if the trial court properly precluded Larrieu’s mother from representing him on that basis, as a far more fundamental basis for preclusion has come to our attention. Larrieu’s mother, Ellie Gump Larrieu, was not authorized to practice law in this state at the time of the hearing. We learned this fact by consulting the State Bar records on the Internet. The State Bar reports that Larrieu’s mother was ineligible to practice law from 1994 to 2009, for failure to comply with continuing education requirements, and is now on inactive status. We have taken judicial notice of the State Bar records. (Evid. Code, § 452, subd. (h).) Larrieu’s mother could not act as anyone’s attorney in 2008, and Larrieu therefore has no ground for challenging the trial court’s ruling precluding his mother from providing legal representation to him in this case.
The State Bar of California provides information on member status at www.calbar.ca.gov.
III. DISPOSITION
The order is affirmed.
We concur: Reardon, Acting P.J., Rivera, J.