Filed 11/30/18 Alexander v. Lefton CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Renee E. Wilson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Jennifer Lefton, in pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *

Denny Alexander and Jennifer Lefton dated for several years but broke up amidst allegations that Denny cheated on Jennifer. The acrimonious breakup culminated in both parties filing applications for domestic violence restraining orders (DVRO) against the other based on harassing conduct (there were no physical altercations, so far as the record reveals). When the parties appeared in court, the judge encouraged them to settle, which they did, agreeing to dismiss their dueling applications with prejudice. The ensuing minute order erroneously entered dismissals without prejudice.

Less than a day later, Jennifer e-mailed Denny a picture of her derriere freshly tattooed with the letter “D,” Denny’s first initial, along with the note, “this is the last piece of my ass you’ll get.” A few days later she e-mailed Denny’s girlfriend, saying “at least [I] didn’t have to pay [Denny] to be [my] boyfriend” (alluding to the fact that Denny received a small wage to care for his girlfriend’s severely handicapped son), and “if [Denny] truly loved [you], [he would] have married [you].” A few days later Jennifer texted Denny’s younger sister comparing Denny to the infamous killer Ted Bundy and accusing the younger sister of being the lowest form of humanity for helping Denny. A few days later Jennifer texted Denny suggesting she had had a sexual liaison with another person, stating she had “plenty to learn in that area” and sarcastically thanking Denny for giving her “a beginner’s course.” Around that same time Jennifer sent a copy of the prior domestic violence retraining orders papers to Denny’s girlfriend’s ex-husband, prompting an angry message from the ex-husband to Denny’s girlfriend. The ex-husband was a deputy sheriff of Orange County who, according to Denny, has a history of threats, intimidation, and harassing behavior towards Denny’s girlfriend. Neither Denny nor his girlfriend responded to any of this post-dismissal conduct.

In response, Denny filed another application for a DVRO. The court issued a temporary restraining order and set a hearing date.

Jennifer responded to the application by arguing she is an attorney and that the DVRO application was filed to harass and besmirch her. She accused Denny of “revenge porn” for filing a copy of the picture of her derriere with the court, and alleged Denny is dangerous, not her. However, she did not deny Denny’s allegations.

At the hearing, Jennifer informed the court the prior applications had been dismissed with prejudice. The court, seeing the minute order, disagreed. But upon Jennifer’s insistence, the court pulled up the reporter’s transcript of the prior hearing and confirmed that, in fact, the prior applications were dismissed with prejudice and that the prior minute order was incorrect. Thereafter, the court refused to consider anything that occurred prior to the dismissal of the prior applications.

After questioning both parties about the allegations in Denny’s application for a DVRO, the court issued a restraining order. The court reasoned that, after the prior applications were dismissed, Jennifer could have just walked away and that, as an attorney, she knew better than to send the harassing communications. Jennifer appealed.

DISCUSSION

“The Domestic Violence Prevention Act (DVPA) [citation] permits the trial court to issue a protective order ‘to restrain any person for the purpose’ of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved; the petitioner must present ‘reasonable proof of a past act or acts of abuse.’ [Citation.] The abuse that provides a basis for the findings includes bodily injury [citation]; reasonable apprehension of serious bodily injury [citation]; and ‘behavior that has been or could be enjoined pursuant to [Family Code] Section 6320.’ [Citation]. [Family Code] Section 6320 in turn permits enjoining ‘molesting, . . . harassing, telephoning, . . . contacting, either directly or indirectly, by mail or otherwise . . . disturbing the peace of the other party.’ As a result, abuse under the DVPA includes physical abuse or injury, as well as acts that ‘destroy[] the mental or emotional calm of the other party.’” (Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 820, fn. omitted.)

The issues Jennifer raises on appeal are, frankly, a bit difficult to follow. She recognizes that the usual standard of review of a restraining order issued under the Domestic Violence Prevention Act is abuse of discretion. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495.) She spends the bulk of her brief, however, attempting to shoehorn her appeal into a de novo review on the ground that the minute order in the prior DVROs erroneously listed the dismissal as without prejudice.

She contends this was a legal error that led the court to be biased, though what exactly that bias was, she does not say.

She further contends it is “likely” the court based its order here on the allegations in Denny’s prior application for a DVRO. That claim, however, flies in the face of the court’s repeated assurances that it was not considering events alleged in the prior applications. And, in any event, the prior applications are not part of our record, so it is impossible for us to determine what impact those applications may have had.

Next, she contends the “legal error” led the court to issue the temporary restraining order, of which she was never given notice. But it is unclear what relevance that has, since the temporary restraining order is no longer in effect.

Jennifer’s second claim of legal error is that the short hearing below was unfair because it “consisted of answering Commissioner Wilson’s specific questions,” and “Jennifer was prevented from interjecting, addressing the purported evidence of either party nor cross examin[ing] Denny.” However, she does not explain what it is she was prevented from saying or doing. While she did not cross-examine Denny, she does not point to anywhere in the record where she requested to do so. At no point did Jennifer attempt to make a record below of whatever it is she thinks the court erroneously excluded.

Finally, Jennifer also challenges the sufficiency of the evidence, but her argument mostly consists of minimizing her own behavior. For example, she claims the e-mail and text she sent to Denny “simply consisted of communications of thoughts.” We should not have to explain to an attorney that sending naked pictures, sexually demeaning texts, and insulting communications to family members are more than mere thoughts. This was clearly harassment.

Jennifer concludes her brief with an impassioned argument that she has been the victim in her relationship with Denny, not him. That is not the issue before us. We are not called on to determine whether Denny is a “good guy” or “bad guy.” The narrow issue we decide is whether the court abused its discretion in determining Jennifer’s post-dismissal conduct constituted harassment. We find no such abuse.

DISPOSITION

The order is affirmed.

IKOLA, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.