Filed 6/24/20 Emmalyn H. v. Book CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

EMMALYN H.,

Respondent,

v.

JOSEPH BOOK,

Appellant.

2d Civ. No. B299095

(Super. Ct. No. D392845)

(Ventura County)

A former husband appeals a domestic violence restraining order granted to his former wife. (Fam. Code, § 6200 et seq.) We affirm.

FACTS

Emmalyn H. and Joseph Book had been married. During the marriage Emmalyn H. was the victim of Book’s physical and emotional abuse. Emmalyn H. produced pictures of herself showing bruises and other signs of battering. The trial court took judicial notice of a prior domestic violence restraining order Emmalyn H. obtained against Book.

Emmalyn H. testified that Book used their son’s cell phone to keep track of her. She said she and Book were the only persons who had access to their son’s cell phone. Book admitted that during their marriage he had placed a similar program on the family’s computer because he suspected Emmalyn H. was committing adultery.

Emmalyn H. produced screenshots of a Google “timeline” showing that her son’s cell phone had been accessed numerous times. The trial court admitted the evidence over Book’s hearsay objection.

The trial court granted the restraining order based on Book’s prior acts of physical violence during the marriage and the present act of tracking Emmalyn H. through her son’s cell phone. The restraining order is to last for three years.

DISCUSSION

The Domestic Violence Prevention Act permits the trial court to issue a restraining order solely on the basis of past abuse. (§ 6300; Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.) Here the trial court found Emmalyn H. was subjected to domestic violence at the hands of Book prior to the parties’ divorce in 2009. That alone is a sufficient ground to affirm the order.

In addition, the trial court found that Book was using their son’s cell phone to track Emmalyn H.’s movements. That finding is supported by Emmalyn H.’s testimony, Book’s admission that he had used such a program in the past to track Emmalyn H., and screenshots from their son’s cell phone showing the tracking.

Book argues the screenshots were admitted into evidence without a proper foundation. But he points to no such objection at trial. Instead, Book objected on the ground of hearsay. The trial court overruled the objection on the ground that the evidence was admissible as an admission of a party opponent. (Evid. Code, § 1220.) Book does not challenge that ruling. Book has waived a challenge to the admission of the evidence on the ground of lack of foundation. (Evid. Code, § 353.)

In any event, there is no particular evidence necessary for a foundation. (Evid. Code, § 1410; Sachs v. Sachs (2020) 44 Cal.App.5th 59, 63.) The trial court’s finding of a sufficient foundation is reviewed for an abuse of discretion. (Sachs v. Sachs, supra, 44 Cal.App.5th at p. 63.) Here, Emmalyn H.’s testimony that Book was tracking her through their son’s cell phone, and that Book had access to the phone, as well as Book’s admission that he had previously used a similar program to track Emmalyn H., is an adequate foundation.

DISPOSITION

The judgment (order) is affirmed. Costs are awarded to respondent.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

PERREN, J. TANGEMAN, J.
Michele M. Castillo, Judge

Superior Court County of Ventura

______________________________

Law Office of Laura M. Boyd and Laura M. Boyd for Appellant.

Emmalyn H., in pro. per., for Respondent.