Altafulla v. Ervin

• Decision Date: 09 June 2015
• Docket Number: D065980
• Citation: 238 Cal.App.4th 571,189 Cal.Rptr.3d 316
• Court: California Court of Appeals
• Parties: Carolina ALTAFULLA, Plaintiff and Respondent, v. John ERVIN, Defendant and Appellant.

238 Cal.App.4th 571

189 Cal.Rptr.3d 316

Carolina ALTAFULLA, Plaintiff and Respondent,

v.John ERVIN, Defendant and Appellant.

D065980

Court of Appeal, Fourth District, Division 1, California.

Filed June 9, 2015

As Modified July 7, 2015

John Ervin, in pro. per., for Defendant and Appellant.

Godes & Preis, Robert M. Dato, Joseph M. Preis, Irvine, Oliver B. Dreger ; Moore, Schulman & Moore, Peggy L. Moore and Jeremy S. Boyer, San Diego, for Plaintiff and Respondent.

BENKE, Acting P.J. Defendant and appellant John Ervin challenges a restraining order issued against him under the Domestic Violence Prevention Act ( Fam.Code, § 6200 et seq. ; DVPA).¹ He also argues the trial court erred in failing to issue an order restraining his former domestic partner, plaintiff and respondent Carolina Altafulla.

The trial court's orders arise out of Ervin's discovery that Altafulla had been unfaithful. In response to the discovery of Altafulla's unfaithfulness, Ervin sent e-mails to Altafulla's employer and their mutual friends and attached a surveillance report that he believed established the unfaithfulness. More importantly, at the home he shared with Altafulla, and in fairly graphic terms, Ervin described oral copulation to Altafulla's 17–year–old and nine-year-old daughters, stated his belief Altafulla had engaged in oral copulation with another man, and then warned the girls about what he believed was a risk they could contract sexually transmitted diseases from towels their mother might use. In an apparent further effort to traumatize the children, Ervin began dismantling their bedroom furniture. Altafulla's 17–year–old daughter was in fact so traumatized by Ervin's behavior that she required inpatient care at a mental health facility, which would not release her until Ervin had moved out of the home.

Among other claims, Ervin contends this record is not sufficient to support a DVPA restraining order. We disagree. Ervin's e-mail campaign and emotional abuse of Altafulla's daughters amounted to conduct that was alarming, annoying and harassing, served no legitimate purpose, would cause a reasonable person substantial emotional distress, and actually did cause substantial emotional distress. As such, Ervin's conduct constituted harassment within the meaning of the DVPA and was therefore sufficient to support issuance of a restraining order. As we explain, we reject Ervin's other claims and affirm the trial court's orders.

FACTUAL AND PROCEDURAL BACKGROUND

A. 2011 Restraining Order

In 2011, Ervin was married to Michal Ben–Nun. According to Ben–Nun, in August 2011, Ervin threatened her and their three children by stating: "One day I will take a gun and shoot all four of you." Ben–Nun called the police, Ervin was removed from the family home and Ben–Nun obtained two temporary DVPA orders preventing Ervin from coming near her or their home. Ervin and Ben–Nun's marriage was eventually dissolved.

Ervin has consistently denied threatening Ben–Nun or his children. However, in civil litigation he pursued against Ben–Nun based on her repetition of the alleged threat to others, Ervin conceded he made an "unfortunate and irresponsible statement" to Ben–Nun. (Ervin v. Ben–Nun (Aug. 29, 2014, D064236) [nonpub. opn.].)²

B. Relationship with Altafulla

Shortly after his separation from Ben–Nun, Ervin began a romantic relationship with Altafulla. Eventually, Ervin and Altafulla purchased a home together, where they lived with two of Altafulla's daughters, ages nine and 17.

In February 2014, Ervin received a surveillance report, of unknown origin, which provided photographic and narrative evidence that Altafulla had been engaged in a romantic affair with what the record suggests was someone associated with a client of her employer. In the trial court, Altafulla tacitly acknowledged that the affair took place.

Ervin did not respond well to the information disclosed in the surveillance report. Ervin attributed the report to Ben–Nun, who he asserted hired the investigators to follow him; Ervin stated he believed that during the course of following him, the investigators discovered Altafulla's affair.

Notwithstanding his contention the investigation was originated by Ben–Nun, Ervin created a digital image of the report, including photographs of Altafulla and the man she was having an affair with, and e-mailed the report to a number of Ervin and Altafulla's mutual friends, relatives, and coworkers. Ervin's email stated: "I am deeply hurt, so take this with a grain of salt. But I invested my life savings, and countless hours with this women's [sic ] children to try to make it work. Imagine you are taking care of another person's children—not your own children, but another person's children—only to find out the parent is not travelling for work, as they say, but cheating on you—during the very time you are investing your life savings in a common house. [¶] I'm not asking for sympathy, but here I am stuck, with this woman who cheated on me. I invite you to have read [sic ] of this report. [¶] Please let me know if you have any ideas how to overcome this."

Although immediately following disclosure of the affair both Altafulla and Ervin remained in the home, Altafulla attempted to avoid contact with Ervin. However, on the evening of February 25, 2014, Ervin would not let Altafulla into the master bedroom to retrieve her pajamas and she called the police; the police arrived, and, after speaking with Ervin, Altafulla was able to retrieve belongings from her bedroom. After the police left, Ervin began angrily disassembling the two children's bedroom furniture and insisting that different sleeping arrangements in the home were necessary.

According to Altafulla, while Ervin was disassembling the children's furniture, Ervin disclosed to the children that their mother had been having an affair with another man, explained "blow jobs" to the girls, and warned them that their mother might have a sexually transmitted disease that they could contract if they shared towels with her.

Altafulla's 17–year–old daughter was severely traumatized by Ervin's behavior and fled the home in her car. Altafulla learned that her daughter had gone to a psychiatric facility and had been admitted. The following day, a psychologist at the facility contacted Altafulla and told her that her daughter was afraid of Ervin and that the facility would not release her daughter to Altafulla until Ervin left their home.

C. 2014 Restraining Order

On February 27, 2014, Altafulla obtained a temporary restraining order requiring that Ervin leave the home and preventing him from having any contact with Altafulla or her children. On March 17, 2014, the trial court conducted a hearing on Altafulla's application for a permanent DVPA order against Ervin and Ervin's application for a restraining order against Altafulla.

The trial court granted Altafulla's application and denied Ervin's application. In granting Altafulla's application, the trial court stated: "The court has had the opportunity to review the pleadings in the file and observe the witnesses on the witness stand. The court is satisfied that Ms. Altafulla is legitimately in fear of ongoing harassing behavior from Mr. Ervin. Based upon the testimony that I have heard today and observing the demeanor and content of that testimony, as well as the pleadings, she is afraid for herself and on behalf of her children. An order will be issued for a period of five years protecting her."

In particular, the trial court ordered that Ervin leave the home he shared with Altafulla and stay away from it.

With respect to Ervin's application and the trial court's decision to deny it, the trial court stated: "Mr. Ervin testified he did not believe that Ms. Altafulla was violent. The activity that Mr. Ervin is complaining of—while it is personally upsetting to him and I can understand why it is personally upsetting, it is not harassing, it does not come within the purview of the granting of a restraining order. His request is denied."

Ervin filed a second request for a DVPA restraining order, which the trial court also denied.

Ervin filed a timely notice of appeal from the trial court's orders.

DISCUSSION

I

Initially, Ervin argues Altafulla failed to properly serve him with her petition for a restraining order. We reject this argument because the proof of service shows that in fact Ervin was served with Altafulla's application; Ervin did file an opposition to the application, as well as his own application for a restraining order against Altafulla; Ervin did appear at the hearing on Altafulla's application; and the trial court did offer to continue the hearing if Ervin did not believe he received adequate notice. In short, the record shows that there was no defect in service and that, in any event, Ervin waived any such defect.

In particular, the proof of service in the record states that the sheriff's office received, among other documents, a "DV–100 Request for Domestic Violence Restraining Order." That form sets forth the grounds for Altafulla's application for a restraining order. The proof of service further states that the process the sheriff received was served on Ervin on March 2, 2014. Notwithstanding Ervin's arguments to the contrary, the proof of service was sufficient as prima facie proof that he was timely served with Altafulla's application for a restraining order. ( Evid.Code, § 664 [presumption that official duty has been regularly performed].)

In any event, on the record at the hearing on Altafulla's application, Ervin waived any defect in service. At the commencement of the hearing, the trial court offered to provide Ervin with a copy of Altafulla's application and continue the hearing, and Ervin responded: "I would rather proceed." It is axiomatic that defects in service may be waived by a responding party either expressly or by appearing in an action and contesting the merits of the claims asserted. (See Bank of America Nat'l Trust & Sav. Asso. v. Carr (1956) ...