Filed 3/4/20 Grosse v. Grosse CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

JAVIER F. GROSSE,

Petitioner and Appellant,

v.

DOLORES GROSSE,

Respondent.

B295890

(Los Angeles County

Super. Ct. No. BD521389)

APPEAL from an order of the Superior Court of Los Angeles County, Helen Zukin, Judge. Affirmed.

Diamond & Associates and David D. Diamond for Appellant.

Joel S. Seidel for Respondent.

____________________

Father challenges a domestic violence restraining order against him. He argues the trial court abused its discretion by issuing the order and by including Daughters as protected parties. We affirm. Code references are to the Family Code.

I

We summarize pertinent contextual information, events leading to the restraining order, legal proceedings, and the trial court’s findings.

A

We begin with the relevant background.

Mother and Father divorced and shared custody of their twin 13-year-old daughters. An August 13, 2015 order set the custody terms: Daughters lived with Mother but spent alternate weekends and Mondays with Father. The custody order set Daughters’ holiday and vacation schedules.

Father was unhappy with the custody arrangement. Mother claimed Father unsuccessfully attempted to modify the order in court at least seven times. Mother also alleged Father violated the order eight or nine times that year by refusing to bring Daughters to the exchange site—a police station—at the designated time. Each time, Mother texted Father to ask where he and Daughters were, and Father did not respond. Each time, after about 30 minutes, Mother filed a police report.

On one occasion, while Mother waited at the police station, Daughters texted Mother saying Father would not return them that night. Mother asked Daughters to call her. Daughters said they could not, because Father would “get mad.” A police officer called the phone number Daughters used to text Mother, and asked to speak to Father. Father hung up the phone and did not answer when the officer tried to call back multiple times.

On August 5, 2018, Mother sent Father an email recounting the last custody exchange “in which [Father] put the girls into an Uber against their will.” Mother said Daughters were afraid and Father told them, “[W]hat’s the worst that could happen, you could get kidnapped?? [It’s] ok, your mom’s FBI boyfriend can deal with it.” Mother wrote: “The girls are scared you will do that again and even more scared that you act like you simply don’t care about their safety and well being. I am BEGGING you to think twice before doing something like this again. They were pretty traumatized. Please follow court order and bring the girls to the police station when [it’s] time . . .”

Father responded in an email the same day. Father wrote his emails in Spanish. A Court Certified Spanish Interpreter translated the emails and included a certified declaration of translation with each one in the record.

Father wrote, “the girls were never in danger” and “it is not written anywhere that this is not allowed.” He also wrote, “At this point the truth is that I don’t give a fuck and if this fucking schedule works for you, it doesn’t for me.” He said, “But you better never fucking need anything from me because you already know my answer” and called Mother “a bitch and a cunt.”

Father continued: “The girls will be with me on the days I told you, I’m going to take them to school and I’m going to pick them up. I’m advising you to leave me alone and give me my space, unless you want to regret [it] for the rest of your fucking life.” He wrote, “The truth is that it is up to you for things to change, and if you want you could translate this and bring it in front of that dumb judge with your fucking attorney . . .” and ended the email by telling Mother, “go fuck yourself.”

Mother responded: “This is insanity. You’ve lost your mind. These threats are terrible and I’m scared to let the girls go with you. You are not ok.”

On November 12, 2018, Mother sent Father an email apologizing for miscalculating which weekend Daughters would be with her and asking if Father wanted to attend Daughters’ dance recital. Father emailed the following in response: “Did you take a while to realize it or were you really playing dumb? The truth is . . . I’m leaning towards the second option being that nothing gets [past] you with the calendar. And if your intention is to truly co-parent . . . start by fixing the shitty schedule your fucking attorney made, which the shitty judges don’t correct and I have been putting up with your shit for a long time.” Father also wrote, “And please stop contacting me unless you truly want to revert the situation.”

B

We turn to the incidents causing Mother to file a domestic violence restraining order request, which occurred the day after Thanksgiving.

Father and Mother both believed they would spend Thanksgiving weekend with Daughters in 2018. The custody order stated Daughters would spend Thanksgiving Day with Father in the even years and with Mother in the odd years. The order did not specify which parent had custody the remainder of Thanksgiving weekend; the lines were blank under that category. The order stated: “Any three-day weekend not specified above will be spent with the parent who would normally have that weekend.” Daughters spent the previous weekend with Father, so Mother believed they would spend Thanksgiving weekend with her. Based on Father’s recent custody order violation, Mother’s counsel wrote Father a letter asking him to confirm he would follow the court order and return Daughters to Mother the day after Thanksgiving. In his response email, Father argued Mother had Daughters on Thanksgiving Day and Thanksgiving weekend the previous year, and “it is only fair” for him to have the same this year. He stated he intended to spend the weekend with Daughters.

Father also emailed Mother to say Daughters would spend Thanksgiving weekend with him. He wrote: “I hope you take them the backpacks on Monday with the things they need for school and that you don’t interfere in the peace of our family since my mom is visiting from Argentina and she is of old age.”

November 23, 2018 was the day after Thanksgiving. There was an incident we will call the November 23 incident. It is central to this appeal.

On November 23, Daughters went to the mall with Father’s wife, their stepmother. Daughters sent the following text messages to Mother from a friend’s phone:

● “Hi mama it’s [Daughters] we bumped into [Friend] at the mall and we really miss you. Papas not taking us at 10 and he says we’re staying the whole weekend. I don’t want to stay there and I wanna come home.”
●
● “He took our phone away. I want u to pick us up I hate it with him.”
●
Mother asked Daughters to call her. One Daughter was “nervous and teary” on the phone and asked Mother, “Can you come get us? Papa is not bringing us back.” Mother picked Daughters up from the mall. Daughters were upset and afraid Father would come get them. They were happy to see Mother and kept saying, “I don’t want him to take us. Where are we going? I don’t want him to take us.”

Mother then drove to the police station because she “wanted the police to let [Father] know that the girls were with me, and I wanted everything to [be] documented and clear.” She explained what happened to an officer, and showed him the custody order. The officer confirmed it was Mother’s custodial time with Daughters and Father violated the court order.

According to Father and Stepmother, Stepmother panicked when she could not find Daughters and asked mall security officers and police officers for help. Police officers tried to call Mother, but the phone number was disconnected. Daughters’ friend then texted Stepmother saying Daughters left with Mother.

According to Mother, she received a message from a mall officer while she was at the police station. The police station officer spoke with the mall officer and confirmed Mother had custodial time with Daughters over the weekend. Mother also testified the police station officer called Father to tell him Daughters were with her. Father told the officer, “I’m coming.”

Mother took Daughters home. About 30 minutes later, Mother looked out a bedroom window and saw Father walking up the driveway. One Daughter started to cry and screamed, “Mama, I don’t want to go with him.”

Father pounded on Mother’s front door while screaming and cursing, and demanded Mother open the door and send Daughters out. Mother’s husband told Father he was on private property and asked him to leave. Father yelled, “Fuck off this is private property. Give me my daughters you fucking idiot,” and claimed it was his custodial time. Mother’s husband again asked Father to leave. Father continued pounding on the door violently. He broke window glass and a wooden wreath hanging on the door. Father repeatedly called Mother and her husband “mother fuckers” and “fucking idiots” and demanded they “open the fucking door” because it was his custodial time.

Mother called the police. While she was on the phone, Father went to his car and repeatedly honked the horn for a couple minutes. He then returned to the front door, called Mother’s husband a “piece of shit,” and demanded they “open the fucking door.” Mother’s husband again asked Father to leave and told him the police were on their way. Father eventually left.

Mother was terrified. She described Daughters as “visibly terrified and upset” by Father’s actions. “They were sitting inside a closet, huddled on the floor hugging each other. They kept saying words to the effect of ‘Mama, he’s going to come in.’”

The police arrived and issued an investigative report of vandalism and an emergency protective order against Father, protecting Mother, Mother’s husband, and Daughters.

C

Next we summarize the legal proceedings and trial court’s findings.

On November 27, 2018, Mother filed a request for a domestic violence restraining order against Father. She listed Daughters and her husband as protected parties. She filed a declaration and other evidence in support, including the custody order, Father’s emails, text messages from Daughters, and police reports. The trial court issued a temporary restraining order and set the matter for hearing.

Father filed a response to Mother’s domestic violence restraining order request that same day, and again on December 10, 2018. He also filed a declaration and other evidence in support, including a letter from Stepmother and a transcript from the 2015 dependency court hearing setting the custody schedule. Father stated he would agree not to have any direct contact with Mother and Mother’s husband, but needed direct contact with Daughters.

Both Mother’s husband and Father filmed the November 23, 2018 incident on the front porch using their cell phones. The trial court watched the version Mother’s husband filmed at the December 2018 restraining order hearing. Father denied breaking the window but otherwise admitted to the statements and actions shown on video. In his declaration, Father stated he “made a huge mistake” and “[his] mind was stuck in panic mode after thinking something terrible had happened” to Daughters. Father also stated:

“I regret banging on their door, swearing and being completely out of control. My goal was to get an answer and see for my own eyes that my daughters were safe since it was still my time, but I found the negativity and games played on me by [Mother] and [Mother’s husband] were all too much for me. I even video taped it somehow feeling justified, but my actions are NOT justifiable. I want to APOLOGIZE for my behavior. I wish I could take back my rude behavior, especially for my kids. [I’m not] proud of myself at all. I don’t know what I was thinking because I was NOT THINKING.”

Father apologized again at the hearing and reiterated his actions were “not any way justified, and I truly feel shame about my actions on going to their house.”

At the hearing, Mother testified about Father’s other acts of domestic violence towards Daughters. In 2013, Father hit Daughters with a brush and a shoe. Mother stated these acts of “corporal punishment on the girls” were “the first thing that got us into dependency court.” Father denied these allegations.

Mother also testified that in 2013, Father grabbed one Daughter by the back of her hoodie at a doctor’s office and left a scar or red mark on her neck. Father denied pulling Daughter. He testified he held the hoodie to stop Daughter from walking into cars coming towards them. The hoodie zipper “did a little mark over here, but it was not intentional.”

After examining the evidence, the trial court found Mother met her burden of proof and issued a domestic violence restraining order against Father. The court found good cause to issue the order to protect Mother, Mother’s husband, and Daughters.

The court found Father was the aggressor in the November 23, 2018 incident at Mother’s house and was “out of control.” The court found Father pounded on the door, swore, and shouted for everyone to hear, even though he knew his minor children could not help but hear his “angry and abusive behavior.” The court concluded Father’s behavior qualified as domestic violence.

The trial court also found Father’s August 5, 2018 email to Mother “would place a reasonable person in apprehension of serious bodily injury to that person,” as there was “a very explicit threatening comment, and the court heard testimony from [Father] that [Father] acknowledged drafting the email.” In this email, Father wrote, “I’m advising you to leave me alone and give me my space, unless you want to regret [it] for the rest of your fucking life.”

The court found Father’s conduct harassed and disturbed Mother’s peace, and “destroyed the mental or emotional calm” of Mother and Daughters. The court found credible Mother’s testimony that Daughters witnessed previous examples of Father’s angry and abusive behavior.

While the court recognized Father apologized for his behavior “on numerous occasions,” the court “did not find [Father] entirely credible in that the court does not believe [Father] has taken full responsibility for his behavior on November 23rd and certainly the email on August 5th because [Father] tried to explain that there were reasons for why he behaved that way that were prompted by [Mother].” While custody issues caused conflict between Mother and Father, the issues did not warrant behavior that was “threatening, causing one party to be in fear, and disturbing the mental calm of the parties, the children, and [Mother’s] husband.”

The trial court also expressed concern that Father “used the legal system in a way that appears to be vexatious” based on Father’s frequent filings to change valid court orders.

The court noted there was “a presumption against joint custody with the restrained party,” which Father could overcome. But the court was “very concerned about [Father’s] repeated lack of self control and inability to control his emotions” and believed it would be detrimental for Daughters to have unsupervised visits with Father. The court asked Mother what she believed appropriate until the next visitation hearing in January 2019. Mother proposed monitored visits on Christmas and New Year’s Eve, and monitored visits every other Sunday. When the court asked Father if he could keep his anger in check during those visits, Father repeatedly interrupted the court and attempted to argue. Father responded: “I don’t need any more monitored visits. I’ve been through that, and I’m not going back again. This is done. I’m done with this. You just bought into a show, into a Netflix show, and I am done.”

The court advised Father to stop talking, asked the courtroom deputy to stand by Father, and warned Father he would be escorted from the courtroom if he made any more outbursts. Father continued to interrupt and argue with the court. The court gave Father one more chance to accept Mother’s proposal or suspend all visitations. Father stated, “You already made your decision, and you are not giving me any justice, because this is getting away with murder.” Speaking over the court, Father continued: “Kidnapping my children is getting away with murder.” The court suspended visitations, designating Daughters as restrained persons as Father continued to make comments. The court stated, “Let the record reflect that [Father] just very loudly clapped his hands, disrupting the proceedings, further indicating that he cannot control his behavior.”

The record does not include a minute order, the restraining order after hearing (Judicial Council Form DV-130), or state any details about the restraining order such as an expiration date.

Father appealed.

II

The trial court did not abuse its discretion by issuing the restraining order against Father and by including Daughters as protected parties.

A

We summarize the governing law.

Legislators enacted the Domestic Violence Prevention Act (§ 6200 et seq.) to prevent acts of domestic violence and to separate those involved in order to resolve the underlying causes of the violence. (§ 6220.) The act defines domestic violence as abuse perpetrated against certain people, including a spouse or former spouse. (§ 6211, subd. (a).) Upon reasonable proof of past abuse, a court may issue a restraining order to prevent continued domestic violence. (§ 6300.) A court may issue an order prohibiting a person from a range of abusive behaviors including harassing, threatening, contacting, coming within a specified distance of, and disturbing the peace of the protected party and named family or household members. (§§ 6218, subd. (a); 6320, subd. (a).)

The trial court’s discretion in this context is wide. (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.) We review such an order for abuse of discretion, meaning we do not disturb the trial court’s decision unless, considering all relevant circumstances, the court exceeds the bounds of reason or no reasonable judge would make the same order under the same circumstances. (Herriott v. Herriott (2019) 33 Cal.App.5th 212, 223.) So long as the court appropriately exercised its discretion, we do not reverse if substantial evidence supports the trial court’s decision. (Ibid.) We resolve all conflicts in favor of the prevailing party and draw all reasonable inferences in favor of upholding the trial court’s findings. (Ibid.)

B

Applying the governing law, we affirm the trial court’s order.

Father argues Mother did not show reasonable proof of past abuse warranting a restraining order. The evidence, however, was ample.

1

Father’s behavior constituted abuse because it harassed and disturbed the peace of Mother, Mother’s husband, and Daughters.

Under the Domestic Violence Prevention Act, “abuse” includes any behavior that has been or could be enjoined under section 6320. (§ 6203, subd. (a)(4).) Section 6320 authorizes a court to prohibit a person from harassing and disturbing the peace of someone else. (§ 6320, subd. (a).)

Father’s only brief before us omits mention of the November 23 incident. He argues instead his August 5, 2018 email to Mother did not contain a threat and, while his “communications were inappropriate, they are not enough for a permanent order.”

These arrows fly afield of the target.

The trial court primarily based its findings on the November 23 incident. Father aggressively pounded on the door, swore, and shouted when he knew Daughters could hear him. His violent pounding broke a window glass and a wooden wreath hanging on the door. Mother’s husband repeatedly asked Father to leave and Father continued to scream and curse. Father honked his horn for a couple minutes while Mother called the police. He resumed his cursing and yelling at the front door and left only when Mother’s husband told him police were on their way.

Mother was terrified. Daughters were “visibly terrified and upset.” They sat in a closet, “huddled on the floor hugging each other. They kept saying words to the effect of ‘Mama, he’s going to come in.’”

Father’s actions harassed and disturbed the peace.

The plain meaning of the phrase “disturbing the peace of the other party” in section 6320 is conduct destroying the mental or emotional calm of that party. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497.) Behavior that may constitute abuse by destroying someone’s mental or emotional calm includes reading and publicly disclosing confidential emails. (Id. at pp. 1498–1499.) Showing up uninvited to an ex-lover’s house, shouting, refusing to leave, and pacing around the porch for 10 minutes may also constitute abuse for the same reasons. (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1142–1143, 1146–1147.)

The trial court found Father was “out of control” when he went to Mother’s house on November 23. The court aptly described his behavior as “angry and abusive.” The court found Father’s conduct harassed and disturbed Mother’s peace, and “destroyed the mental or emotional calm” of Mother and Daughters. This finding is reasonable, given Father’s violent actions. Mother and Daughters were upset and terrified.

We defer to the trial court’s findings. The court watched the video and heard from Mother and Father. The court noted Mother’s anxiety and discomfort before Father cross-examined her on the stand. The court expressed concern and stated, “Let the record reflect that you are shaking.” The court also found credible Mother’s testimony that Daughters witnessed other examples of Father’s angry behavior.

The trial court reasonably found Father’s behavior harassed and disturbed Mother and Daughters’ peace and was abuse warranting a domestic violence restraining order. There was no abuse of discretion.

When a person is “out of control”, there is no control. At that moment, the next event is hard to predict, and is worrisome to those present.

2

Father’s conduct was abusive because it caused Mother to fear imminent serious bodily injury.

Section 6203 also defines “abuse” as placing someone in reasonable fear of imminent serious bodily injury to that person or someone else. (§ 6203, subd. (a)(3).)

The trial court found Father’s August 5, 2018 email to Mother “would place a reasonable person in apprehension of serious bodily injury to that person,” based on “a very explicit threatening comment” in the email and Father’s testimony about the email. The court found the email exhibited Father’s “anger, disrespect for [Mother], lots of derogatory cursing of her and of others.” Father wrote: “I’m advising you to leave me alone and give me my space, unless you want to regret [it] for the rest of your fucking life.” The court considered this sentence “a very direct, very explicit threat that qualifies as a reason for a domestic violence restraining order.”

Father argues this was not a threat but rather a simple request to “his ex-wife to give him space.” But the court’s finding was eminently reasonable. The wording of the email warned Mother to leave Father alone or else she would “regret [it] for the rest of [her] fucking life.” Father chose those words for effect, and the effect was predictable.

The rest of the email, and Father’s other emails to Mother, called her derogatory names and expressed intense anger towards her. Father testified he “[felt] very bad about it,” but ultimately blamed Mother. He characterized the email as “the product of me being tired of the whole system, how it has been done to me. And the negativity to the Mother to try to resolve any of our matters.” It was reasonable to infer Mother feared imminent serious bodily injury.

The court did not abuse its discretion by finding the threat in the letter constituted abuse. Father’s violent outburst on November 23 further supported this finding.

Father’s other arguments fail. He incorrectly argues abuse must be “the intentional or recklessly causing or attempting to cause bodily injury” under section 6203. Section 6203 expressly defines abuse as “any” of the enumerated definitions, including the two definitions used by the trial court: placing a person in reasonable fear of imminent serious bodily injury and any behavior that could be prohibited by section 6320, including harassing or disturbing the peace of another. (§ 6203, subds. (a)(3), (4).)

Father also argues the trial court should not have issued the restraining order or included Daughters as protected parties because, at an August 2015 dependency court hearing, the court found there were no safety issues with either parent and Daughters were not at risk. This argument is irrelevant. The events giving rise to the restraining order—Father’s emails and violent behavior at Mother’s house—occurred in 2018. Circumstances changed. Father’s behavior escalated. Daughters repeatedly expressed fear Father would come for them. The trial court carefully evaluated the evidence and rightly issued the protective order covering Mother, Mother’s husband, and Daughters.

DISPOSITION

The order is affirmed. We award costs to Mother.

WILEY, J.

We concur:

BIGELOW, P. J.

STRATTON, J.