Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. DN 140837 Earl H. Maas III, Judge.
HALLER, Acting P. J.
During ongoing family law and custody proceedings, the court issued a three-year protective order, restraining 'Isileli Mataele (Isileli) from having contact with his former spouse, Ashley Brittain (Ashley), except for contacts relating to child custody and visitation issues. (Fam. Code, § 6200 et seq.) Isileli contends the court abused its discretion, and the court was unfairly biased against him. We reject these contentions and affirm the order.
All statutory references are to the Family Code unless otherwise specified.
FACTUAL SUMMARY
Ashley and Isileli married in April 2005. Ten months later, the couple separated when Isileli filed for an annulment. At the time, Ashley was pregnant with the couple's child. The child, Charlotte, was born in September 2006.
During the next year, the couple engaged in highly contentious and protracted disputes over custody, visitation, and other related issues. Ashley was temporarily awarded sole legal and physical custody of Charlotte, and Isileli was permitted supervised visitation.
Because the parties are well aware of the nature of these disputes and the issue here concerns only the propriety of a protective order, we do not detail these disputes in this opinion.
In early November 2007, the court held a two-day evidentiary hearing on custody and visitation issues. At the hearing, Isileli called several mental health professionals who opined that he did not present a danger to his daughter and should be permitted unsupervised visitation. However, the evidence also showed there was substantial continued hostility between the two parties, and that the couple could not cooperate in child care decisions. Additionally, during the hearing, the court discovered that Isileli had been tape-recording the proceedings, despite the court's express prohibition from bringing recording devices into the courtroom.
Before Ashley had the opportunity to present her evidence, the court continued the hearing for two months until January 4, 2008. Pending the continued hearing, the court issued an expanded visitation and holiday child care schedule for Isileli.
On the day before the January 4 hearing, Ashley filed a request for a protective order under the Domestic Violence Prevention Act (DVPA), alleging that Isileli presented a danger to herself and her daughter. (§ 6200 et seq.) In support, she claimed that Isileli engaged in several acts of misconduct during the prior month.
First, Ashley said that when Isileli returned Charlotte after a visitation on December 22, 15-month-old Charlotte had marks on her face, which Isileli said were caused by Charlotte's toddler cousin hitting her. Ashley claimed Isileli's statements appeared inconsistent and suspicious. Ashley also said she noticed scratches and a small bruise on Charlotte's right cheek on December 20, which Isileli said were caused accidentally when he removed the child from her car seat.
Second, Ashley alleged that on December 5, Isileli asked for a "face to face meeting" with her, but then acted inappropriately when he returned Charlotte after a visit. In this regard, Ashley stated: "When he returned our daughter... to my home after his visit..., [Isileli] put his leg inside the door, preventing me from closing the door. Although I repeatedly requested him to remove his leg from my door and leave, [Isileli] refused. [¶] I was holding [Charlotte] in my arms and had to push and shove the door to get it closed. I was very afraid of what [Isileli] might do next as he was extremely emotional."
Third, Ashley described Isileli's behavior during a custody exchange at a 7-11 store on December 8. She said that after she gave Charlotte to Isileli, he "started to follow me around inside of the 7-11 store. [Isileli] was very emotional repeatedly stating that he still loves me. I exited the 7-11 store, quickly got into my car and locked the doors. [Isileli] followed me to my car with Charlotte in his arms and started to bang on my car window. As I was leaving the parking lot, [Isileli] was still attempting to get into my car while holding Charlotte in his arms."
Fourth, Ashley described "multiple" e-mails she received from Isileli regarding "what my Christmas plans are and who Charlotte and I will be spending Christmas with." She said that she asked Isileli to limit his conversations with her to visitation and custody issues, but Isileli was not complying with that request.
In opposition, Isileli filed a lengthy declaration denying each of Ashley's allegations, and explaining his version of the events. For example, he described the circumstances under which Charlotte's toddler cousin had hit Charlotte, and that Charlotte had cried only for one minute and was happy after that. He also described his December 5 contact with Ashley at her home, explaining that she had agreed to talk to him to obtain some "closure," but then Ashley shut the door when he attempted to talk to her.
On January 4, the court held a hearing on Ashley's request for a protective order. At the end of the hearing, the court ordered the parties not to contact each other, but continued the hearing one week, to January 11.
After the January 11 hearing, the court issued a temporary restraining order, based primarily on Ashley's allegations of Isileli's improper conduct during the December 8 custody exchange at the 7-11 store. The court ordered the parties to have no contact except for limited communication for purposes of caring for the child, and specified the circumstances under which Ashley was required to contact Isileli pertaining to health care visits. The court included only Ashley (and not Charlotte) as the protected party. The court scheduled a January 30 hearing to determine whether a three-year protective order under the DVPA was warranted.
Several days before this hearing, Ashley filed a supplemental declaration claiming Isileli had engaged in additional misconduct. Specifically, Ashley said that Isileli created a false profile on a social networking Web site used by members of the Church of Latter-day Saints (LDS), a religion to which both Ashley and Isileli belong. In late December, she responded to the profile, not knowing that it was Isileli, and that the two "communicated over a short period of time...." After about one week, Ashley became suspicious, and on January 14 she discovered that the person with whom she had been communicating was Isileli. Ashley claimed Isileli created the false profile to "learn about [her] activities and personal life," and Isileli's actions constituted "a total disregard" for her "rights to privacy and peace."
In response to this declaration, Isileli submitted his own declaration stating in part: "The [LDS] website is mainly used for dating which is how [Ashley] uses it.... The message board... [requires users] to post a profile.... Since it is the most popular message board for LDS people I wanted to join it. I wanted the anonymity [so I] posted [an invented] profile.... [¶]... [Ashley] initiated contact with that profile on December 26.... [Ashley] provided her phone number and kept asking [me] to call and text her [and] only on one occasion [I] sent her a text. Only once did I ever initiate contact between the profiles. I always just responded. [¶] It was not until later that I began responding to some emails." He also stated that Ashley's complaints to the Web site administrators resulted in Isileli's invented profile being deleted.
At the January 30 hearing, Isileli submitted a copy of a 7-11 surveillance video to counter Ashley's claims that he acted inappropriately during the December 8 custody exchange. After viewing the video, the court concluded the video did not fully support Ashley's version of the events described in her declaration, particularly because the video showed that Ashley continued to hold Charlotte while she was in the 7-11 store. But the court found that Ashley did not intentionally misrepresent the facts, and instead the inconsistencies arose from Ashley's inadvertent failure to accurately recall the relevant details. The court also stated it was unable to determine with certainty whether Isileli acted appropriately during the exchange because the video did not show portions of the exchange near Ashley's car and because the video did not have an audio portion. But the court noted that Isileli's prior actions have made Ashley "uncomfortable and threatened." The court said that even if Isileli was not intentionally attempting to threaten Ashley, "I don't think he's acting appropriately." But the court ultimately concluded it would not issue a three-year protective order based solely on the 7-11 event.
The court then turned to the December/January e-mails, noting that the case "keeps morphing into different issues...." Copies of the e-mails showed the following: On December 26, Ashley sent an e-mail to the profile on the LDS social Web site that had been created by Isileli. Ashley did not know the person (who called himself "801 Rider" or "Josaiah") was Isileli, but Isileli knew the responding person was Ashley. The two then exchanged numerous e-mails that day and three other days: December 27 and 28, and January 2. The e-mails from both parties are flirtatious in tone, but Isileli also asked Ashley questions about her daughter and whether she is dating and where she will be for New Year's Eve. For the next several days there were no e-mails. Then, on January 7, "Josaiah" sent an e-mail to Ashley, stating "Hey haven't heard from you in a while. How is everything going? Are you ignoring my texts? I might be coming down there February for work, but don't know yet." At that point, Ashley began to be suspicious that Josaiah was actually Isileli. She then asked him for his phone number and, on January 14, traced the number to Isileli's sister. Ashley then continued to initiate e-mails and correspond with "Josaiah" for several more days, even though she knew it was Isileli. The e-mails then stopped.
At the hearing, the court noted that the parties have an "extremely... convoluted relationship" and that if the court did not issue a restraining order "and something happens, the downsides are enormous." The court also stated: "I told [Isileli], as I told him last time, leave her alone. It's over. You're not going to get back with her. You're not going to have a relationship with her. If you push it, you are going to have that disastrous event.... [¶] But the question becomes, do I enforce that with a restraining order? [T]he reality is, this case is in that area where it's a really hard call."
After reviewing the December/January e-mail exchange and considering the entire history of the parties' relationship, the court issued a protective order under the DVPA, ordering Isileli to have no contact with Ashley for three years, except for approved communications relating to child custody issues ("January 30 order"). The court explained the basis for the order as follows:
"There is no question but that this has been a very contentious annulment/dissolution action. [Ashley] has repeatedly brought claims before the court regarding [Isileli's] judgment, boundary issues, lack of focus, disregard and/or disdain for others' rules or desires, and, most recently, disrespect and disregard of the law. [Isileli] has defended/deflected those concerns, suggesting that [Ashley] was over-protective, controlling, and subject to her family's desires and dislike of [Isileli].
"[Ashley] has, without question, been frustrated by the court's hesitancy to recognize her complaints, instead proceeding cautiously with attempts to control the conflict through specific and focused child-sharing orders. Unfortunately for [Isileli], his failure to recognize and respect the court's orders and rulings, has finally led to the current grant of [Ashley's] request.
"While the [7-11] video evidence... did not fully conform to [Ashley's] sworn declaration, and would not in and of itself warrant the granting of the restraining order, [Isileli's] actions with respect to his on-line contact with [Ashley], both before and after this court granted [Ashley's] temporary restraining order, establish an absolute disregard for [Ashley's] wishes, a disregard of the court's orders and admonitions, and for anything else that is inconsistent with [Isileli's] desires.
"On January 4, 2007, this court heard [Ashley's] request for a temporary order. The court continued the hearing until January 11.... At that hearing, the court [issued an order prohibiting any contact.]
[¶]... [¶]
"Unbeknownst to anyone except [Isileli], he had been communicating with [Ashley] through a fake personality on line. While the court acknowledges that [Isileli] did not make first contact with [Ashley] on line, her identity was plainly evident to him when she contacted him. This is most egregious beginning with his January 7, 2008 message 'Hey, haven't heard from you for a while....' While this contact was not illegal (the TRO had been requested but not granted yet), it was clearly harassing within the meaning of both Civil and Criminal statutes, and borders on stalking.
"On January 14th, 2008, three days after the TRO had been granted, [Ashley] contacted the fake persona (Josaiah) and sought contact information. Despite knowing he could not have contact with [Ashley], [Isileli] could not resist, and responded. It is clear that [Ashley]... realized whom she was communicating with, but [Isileli] did not know this and did not just respond, but continued his inquiry asking 'I know you have a daughter and divorced just over a year. How's dating been? Any luck on this site meeting guys?'
"With this foray into the cyber world and post-TRO communication and contact, [Isileli] has finally tipped the evidentiary balance in favor of [Ashley]. These acts are consistent with his surreptitious recordings of child exchanges, mediation sessions and court proceedings. When taken as a whole, the imposition of a Domestic Violence Restraining Order is now warranted."
Isileli moved for reconsideration, and the court denied the motion.
Isileli appeals from the January 30 order. In ruling on the appeal, we have before us: (1) the designated appellate record; (2) the documents included with a petition for writ of supersedeas that had been filed earlier in this case (in June 2008); and (3) documents lodged by Isileli on April 7, 2009 (the computer disk and the documents conditionally filed under seal).
In his appellate brief, Isileli also challenges the January 11 temporary restraining order. However, because Isileli did not identify the January 11 order in his notice of appeal, it is not reviewable on appeal. (DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43.) Moreover, an appeal from the January 11 order would be moot because the order was necessarily dissolved when the court issued the three-year protective order.
DISCUSSION
A family court has broad discretion to issue a protective order under the DVPA. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.) A reviewing court must affirm unless " 'the trial court exceeded the bounds of reason.' " (Ibid.) " '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.) But the trial court's discretion is not unlimited. The court must act within the authority of the statutory mandate, and the court's findings must be supported by substantial evidence. (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137; Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822-823.)
The DVPA permits a court to issue an order restraining a person "for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit... shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse." (§ 6300.) For purposes of the DVPA, "domestic violence" means "abuse" perpetrated against certain persons, including a "spouse or former spouse." (§ 6211, subd. (a).) The DVPA defines "abuse" as "any of the following": "(a) Intentionally or recklessly to cause or attempt to cause bodily injury. [¶] (b) Sexual assault. [¶] (c) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. [or](d) To engage in any behavior that has been or could be enjoined pursuant to Section 6320 ." (§ 6203, italics added.) Section 6320 provides: "The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party...." Section 6203, subdivision (d), which broadens the definition of abuse under the DVPA, was added by amendment in 1998.
Under these statutory definitions, "the requisite abuse need not be actual infliction of physical injury or assault." (Conness v. Satram (2004) 122 Cal.App.4th 197, 202.) The definition of "abuse" includes nonviolent conduct, such as unwanted telephone or mail communications. (§§ 6203, 6320; see Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1299.) The type of conduct that can be restrained is "much broader than that which is defined as civil harassment" under the civil harassment statute (Code Civ. Proc., § 527.6, subd. (b)), and the proof standard is preponderance of the evidence, rather than clear and convincing evidence applicable in the civil harassment statute (Code Civ. Proc., § 527.6, subd. (d)). (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.)
In this case, Ashley alleged that Isileli committed several acts of abuse against her and/or her daughter on several occasions (the scratches and marks on Charlotte, Isileli placing his foot inside her front door, and the 7-11 incident when Isileli allegedly banged on Ashley's car window). The court apparently found Ashley did not prove the allegations pertaining to Charlotte, and that the 7-11 incident, standing alone, would not justify issuance of the protective order. Instead, the court relied primarily on Isileli's conduct during the December/January e-mail exchange to conclude that a protective order was now warranted. The court also made clear that it based its determination on all of the evidence in the record. On reviewing the entire record, we determine the court's reliance on the e-mail communications was appropriate and, viewed in context with Isileli's conduct throughout the proceedings, supported the court's issuance of the protective order.
First, we agree with the trial court that the e-mail communications constitute "abuse" within the meaning of section 6203. "[A]buse" includes "contacting, either directly or indirectly, by mail or otherwise..." the party seeking protection. (§ 6320.) The evidence supports that when Isileli first created the "Josaiah" name on the social networking board, he knew it was likely that Ashley would see the message and respond to it. Then, when Ashley sent an e-mail to "Josaiah," Isileli was aware the e-mail was from Ashley and that Ashley was unaware of his true identity. Isileli nonetheless responded to Ashley's e-mail without telling her these true facts. This deception allowed him to "flirt" with Ashley and also ask seemingly innocuous questions that allowed him to learn information about her private life (including facts about her holiday plans, dating options, and activities with Charlotte), that he knew from prior conversations Ashley would not have answered if she knew he was the person asking the questions.
These contacts occurred at a highly sensitive time when the parties were awaiting the completion of their hearing to determine their daughter's proper custody placement and an appropriate visitation schedule. Although the court had not yet issued the no-contact order when the e-mail communications began in late December, the court had previously admonished Isileli to disengage himself from Ashley's life and to terminate his unwanted contacts. Despite this, Isileli pursued the e-mail communications, knowing they would be unwanted by Ashley if she knew the true facts. Isileli then continued the communications even after the court issued the January 4 no-contact order and the January 11 temporary restraining order.
In addition, the court made clear that it considered the entire history of the case, and not merely the e-mail communications, when it decided to issue the protective order. The trial court had presided over these highly contentious custody proceedings for more than one year, and was very familiar with the parties and their conduct. The court was aware Isileli had previously engaged in unwanted communications with Ashley, and that Isileli knew these contacts were likely to cause Ashley substantial emotional distress. The court specifically recognized the need to determine whether Isileli's conduct could be controlled through visitation and custody orders, or whether the more stringent DVPA order was needed to protect Ashley. On the record before us, there was sufficient evidence supporting the court's conclusion that a protective order under the DVPA was justified and necessary. As an appellate court reviewing the written record, we are not in a position to second-guess the court's decision.
As his primary appellate contention, Isileli contends the court abused its discretion because there was no evidence he had, or would, commit a physically violent act against Ashley. He argues that a "non-violent" action can be "enjoined [only] if it is likely to result in violent behavior."
The argument is legally unsupported. The statute does not require a court to find there has been prior domestic violence, or that there is a likelihood of physical abuse in the future, to impose a protective order. (See Ritchie v. Konrad, supra, 115 Cal.App.4th at pp. 1290-1291, 1299.) Instead, section 6203 specifically provides that any of the acts stated in section 6320 are sufficient to justify an order. Those acts include "contacting" the other person "by mail or otherwise," "telephoning," or "disturbing the peace of the other party." (§ 6320.) Under the statutory language, a court may impose a protective order based solely on a party's "annoying telephone calls or sending unwanted e-mails" even if there is "no indication he or she poses a reasonable threat of physical violence...." (Ritchie, supra, at p. 1299.)
Section 6220 states the purpose of the DVPA is to "prevent the recurrence of acts of violence and sexual 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." This statutory purpose is not necessarily inconsistent with the DVPA's operative provisions that permit a court to issue a protective order without evidence of violence or the likelihood of violence. The Legislature could have reasonably determined that given the highly emotional nature of a domestic relationship, there is always an inherent danger to a former spouse (or other statutorily protected party) whenever the other party has committed the type of abuse identified in the statute. An important purpose of the DVPA is to prevent physical harm before it occurs. Indeed, since the statute's inception, the Legislature has elected to broaden, not narrow, the definition of "abuse" and the type of conduct the statute proscribes. (§ 6203, subd. (d), added by amendment in 1998.)
In this regard, Isileli's reliance on Nakamura v. Parker, supra, 156 Cal.App.4th 327 is misplaced. In Nakamura, the court held a trial court abused its discretion in failing to hold a hearing before summarily denying an application for a temporary restraining order that was supported by "numerous" alleged incidents of physical and emotional abuse. (Id. at p. 337.) In reaching this conclusion, the court did not state or suggest that physical injury or abuse was necessary for the issuance of a protective order under the DVPA.
Isileli additionally argues the court was unaware of the proper standard and/or disregarded the statutory definitions of abuse. Absent an indication to the contrary, we are required to presume the trial court understood and properly applied the law. (People v. Coddington (2000) 23 Cal.4th 529, 644.) In this case, the court's oral and written comments affirmatively reflect that it understood the applicable law and the scope of its discretion. The court made express findings that: (1) Isileli's behavior pertaining to the e-mails was "clearly harassing" and "borders on stalking"; (2) Isileli had engaged in prior "surreptitious recordings of child exchanges, mediation sessions and court proceedings"; and (3) Isileli continued to communicate with Ashley despite the court's January 11 temporary restraining order prohibiting any further contacts. The court further stated that it considered the entire record in determining whether the protective order was justified. The court's statements demonstrate that the court understood the governing standards and its proper role in ruling on Ashley's application.
We also reject Isileli's arguments that the court issued the January 30 order merely to punish him. In support of this contention, Isileli cites to several of the court's comments pertaining to Isileli's failure to abide by the court's orders. Viewed in context, these comments do not show the court acted with the intent to punish Isileli. Instead, they reflect the court's finding that because Isileli had a pattern of violating court orders, he would not be capable of controlling his behavior toward Ashley without potential sanctions for continued improper conduct. Isileli's reliance on Oriola v. Thaler (2000) 84 Cal.App.4th 397 is misplaced because the issue in that case was whether the court had jurisdiction to impose a protective order if the parties had only a "dating" relationship.
We additionally reject Isileli's argument that the protective order was improper because Isileli's conduct was not ongoing and was not likely to recur. The statute does not specifically require a court to find that the improper conduct will be repeated before it can issue a protective order. In any event, the court's order reflects its factual finding that Isileli will continue to engage in improper conduct toward Ashley unless a protective order is issued.
Isileli also contends the court erred when it found that Ashley did not intentionally misrepresent the facts when she described the 7-11 incident in her declaration because the "entire record shows that [Ashley] is not credible...." However, as an appellate court, we do not reweigh the evidence or substitute our determination of witness credibility for that of a trial court. (In re Marriage of Dick (1993) 15 Cal.App.4th 144, 160.) The trial court explained its reasoning supporting its credibility findings pertaining to the 7-11 incident, emphasizing that it is common for witnesses to fail to accurately recall a stressful event. The explanation is reasonable, and the court acted within its authority to evaluate the facts and the credibility of the witnesses. Moreover, the court did recognize the uncertainties surrounding the 7-11 event, and therefore found that Ashley's allegations pertaining to the event were insufficient, on their own, to support the issuance of a protective order.
Isileli also argues the court erred in not finding that Ashley was estopped from seeking the protective order because she "illegally" hacked into Isileli's e-mail account and continued to communicate with him even though she knew "Josaiah" was Isileli. The court was not required to conclude that Ashley's actions precluded her from establishing she was entitled to protection under the statute. Estoppel is generally a question of fact for the trier of fact. (Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023, 1043.) The record does not support that Ashley should be barred by the estoppel doctrine as a matter of law.
Finally, Isileli contends the judge was unfairly biased against him. In support, Isileli focuses on his disagreements with the court's rulings. For example, he objects to the court's "willingness to make findings for [Ashley]" and the court's "unwillingness to accept" Isileli's own evidence.
These arguments are not a proper basis for disqualification. "An opinion formed by a judge as the result of a judicial hearing, even though it is adverse to a party, does not amount to bias." (Guardianship of L.V. (2006) 136 Cal.App.4th 481, 500; see Kreling v. Superior Court (1944) 25 Cal.2d 305, 312.) "[R]ulings against a litigant, even when numerous and continuous, do not [support] a charge of bias and prejudice." (Dietrich v. Litton Industries, Inc. (1970) 12 Cal.App.3d 704, 719.) The record shows the court understood the legal standards, considered the relevant evidence, and reached a reasonable conclusion. There is nothing in the record showing the court was biased against Isileli based on irrelevant or improper factors.
In affirming the court's order, we acknowledge that this is a close case and had the court declined to issue the protective order, that too, would have been an appropriate exercise of the court's discretion. Although the court issued the three-year order, the court recognized it has the discretion to modify or terminate the order if circumstances change. Under the particular circumstances of this case, an early modification or termination of the order may be appropriate if the facts no longer warrant the protective order. Further, nothing in this decision should be interpreted as reflecting an opinion on the merits of the child custody issues, which are not before us on this appeal.
DISPOSITION
Order affirmed. Appellant to bear respondent's costs on appeal.
WE CONCUR: O'ROURKE, J., IRION, J.