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Portuguez v. Espiritu

Portuguez v. Espiritu
17/02/14





Portuguez v




 

 

Portuguez v. Espiritu

 

 

Filed 1/24/14  Portuguez v. Espiritu CA4/1

 

 

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NOT TO BE PUBLISHED IN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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.

 

 

 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

 

DIVISION ONE

 

STATE OF CALIFORNIA

 

 

 
>






MaKENNA PORTUGUEZ,

 

 

            Plaintiff and Respondent,

 

            v.

 

ETHAN
ESPIRITU,

 

            Defendant and Appellant.

 


   D063222

 

 

 

   (Super.
Ct. No. 37-2011-00060568-CU-HR-NC)

 


 

            APPEAL
from an order of the Superior Court of San
Diego County
, Martin W. Staven, Judge. 
Affirmed.

 

            Mara C.
Allard for Defendant and Appellant.

            Daniel M.
Horwick for Plaintiff and Respondent.

            MaKenna
Portuguez obtained a restraining order
to prevent Ethan Espiritu, a former friend and high school classmate, from
harassing her.  Ethan appeals the order, claiming
the evidence was insufficient to support the trial court's finding that he had sent
certain unwanted text messages to MaKenna. 
We affirm.

I.

BACKGROUND

In an application
for restraining orders, MaKenna alleged she and Ethan used to be high school
classmates and friends.  MaKenna alleged
their friendship came to an end in the fall of 2011, when Ethan slapped her and
had her arrested on false charges of "domestic violence."  MaKenna further claimed that over the next
several weeks, Ethan continued to contact her and sent threatening messages via
a free text messaging service; changed the passwords to her e‑mail and other
Internet accounts; wrote and sent a letter to his own mother in MaKenna's name;
grabbed MaKenna's telephone and threw it to the ground; threatened to flatten
her friend Kyle's tires; physically abused and cyberbullied her; frightened her
with a gun; and threatened to kill her. 
Based on these allegations, MaKenna requested orders to stop Ethan from
further harassing her.  (Code Civ. Proc.,
§ 527.6.)

            Ethan
filed an answer to MaKenna's application in which he alleged her claims were "fabricated"
and asserted he "should be the one filing href="http://www.fearnotlaw.com/">harassment charges against her."  Ethan denied slapping MaKenna, and claimed MaKenna
"grabbed [his] right arm [and] pulled very hard" while her friend Kyle
shouted accusations and obscenities at Ethan. 
Ethan further alleged that although he had "no interest" in MaKenna,
she "was always trailing [him] in school."  Ethan denied interfering with MaKenna's e‑mail
and other Internet accounts or sending her text messages.  Ethan claimed he had no access to her
accounts, and MaKenna actually sent him unwanted text and e‑mail
messages.  Ethan also denied MaKenna's
other allegations.

            The
trial court issued a temporary restraining order directing Ethan to stay at
least 100 yards away from MaKenna; forbidding him to contact, cyberbully, or
otherwise harass her; and prohibiting him from possessing a gun.  The court also scheduled a hearing on MaKenna's
request for a restraining order of
longer duration.

            At
the hearing, MaKenna and Ethan testified and also introduced many documents.  We shall present MaKenna's version of events
first and then turn to Ethan's.  As will
appear, the two versions conflict in many respects.

            MaKenna
testified that in January 2010 she gave Ethan her e‑mail address and password
so that he could set up a Skype account for her.  When Ethan was at her home in December of
that year, she gave him the password for her home wireless Internet, and he
connected his telephone to her computer. 
MaKenna testified that whenever she is at home, her telephone
automatically connects to the wireless Internet.

According to
MaKenna, Ethan started compromising her Internet accounts in mid-2011 and
continued to do so for several months.  He
changed her passwords and enabled a password recovery feature that sent her new
passwords to his e‑mail account.

            MaKenna
also testified that in the summer of 2011, various Internet accounts were
created in her name.  Numerous messages concerning
her relationship with Ethan that appeared to be from MaKenna but actually were
not, were posted to or sent from these accounts.  For example:

— Several
messages were posted over the course of a week on a Twitter account that
included MaKenna's name and a photograph from her Facebook page.  Some messages contained abusive and obscene
language that expressed anger over the termination of the relationship, while
others mentioned a "Cinderella story" and expressed sadness the
relationship had ended.

— Comments
posted on a YouTube channel called "kutiekenna11," a combination of a
nickname for MaKenna and the number of Ethan's lacrosse jersey, suggested
MaKenna was lonely and wanted to rekindle a relationship with a former boyfriend.

— The
following message was sent from an e‑mail address containing MaKenna's
name to Ethan's e‑mail address:  "I
love you, Ethan.  Don't ever forget
it.  If this is the end, always remember
that I'll be here for you.  If you found
someone else, I wish you the best, but I thought you promised you'd never
leave."

            MaKenna
further testified that she received numerous unwanted communications from Ethan
in the summer and fall of 2011.  For
example:

— In June, MaKenna
saw a photograph of a bride and groom kissing, which she claimed Ethan had
posted on the Internet.  "Ethan and
MaKenna" appeared at the top of the photograph, and "Forever" appeared
at the bottom.  A few days later, MaKenna
received an instant message from Ethan that said:  "[H]ahaha. . . .  [G]otta love this picture!!!  <3  [I] luv Natalie[.]  ☺  [F]**k you. 
[I] never loved you[.]  I was only
being nice."

— In July, Ethan
sent MaKenna nine text messages between 2:10 and 2:35 a.m. while she was visiting a friend in Texas.  These messages annoyed MaKenna and disturbed
her sleep.

— In
October, Ethan sent MaKenna the following text message:  "You['re] the only thing that picks me
[up] when [I']m down and [I']m addicted to us. 
I[']ll never find anyone like you[.] 
Baby[,] you['re] my number one and if you['re] leaving me[,] [I] don[']t
know what [I']m going to do[.]  [I]f this
is what you want[,] then[] this is my goodbye to you[.]  [I] will always be here for you.  Never forget that."

— In
November, MaKenna received a series of text messages from Ethan while she was
riding home from school with her friend Kyle. 
One of the messages stated:  "I
knew you were a cheat.  You always were.  You lying bitch.  I hope they [f]**k you and get you pregnant
so you can kill another one." 
Another stated:  "Girl[,] [I]
hate you.  I wish[] you would
disappear.  You messed up so don[']t even
come around me."  When MaKenna
received these messages, she "was upset that [Ethan] would talk to [her]
that way."

— Later in
November, Ethan sent MaKenna three instant messages.  One stated: 
"I love you MaKenna Victoria Portuguez/Espiritu."  Another stated:  "I love you so much but you keep hurting
me[.]  [¶]  I don[']t know why you don[']t get that."  And the third stated:  " '[I] don[']t want another
pretty face, [I] don[']t want just anyone to hold, [I] don[']t want my love to
go to waste, [I] want you and your beautiful soul.' "

            From
December 2011 through February 2012, MaKenna testified she received several
text messages through a service called Pinger, which allows subscribers to send
text messages without paying a fee.  The
messages included the following:

— "Keep
talking to Kyle and my revenge will be flattening his tires."

— "I
just played our old song and man it's crazy how things have changed.  This time last year I would have never
imagined things like this.  I miss you
and hope wherever you are and whatever you're doing, you're happy.  Don't worry about me.  I'm surviving one day at a time."

— "You
left [C]atholic school to go to a public school.  Now you left public to go back to a private
[C]atholic school?  If you think you're
escaping the problem, you aren't.  I asked
people and they wouldn't tell me but I have my ways of finding things out."  MaKenna found this message "pretty odd
and scary."

— "I
don't know why you keep changing your number when all I want to do is talk to
you.  [S]eeing you Friday made me realize
what I've lost.  [P]lease answer
back.  I miss you."

Records obtained from Pinger listed an
account username that combined a nickname for MaKenna with Ethan's date of
birth, contained the e‑mail address that was created in MaKenna's name in
the summer of 2011, and showed the messages originated from IP addresses for
MaKenna's telephone and home wireless Internet. 
MaKenna denied sending the messages.

            MaKenna
testified she transferred to a different high school the day after she received
the text message from Ethan about flattening her friend Kyle's tires because
she "was tired of the harassment from Ethan."  She also testified she wanted a restraining
order because she was "afraid of Ethan" based on his creation of
Internet accounts in her name, impersonation of her, sending her messages, and
attempts to find out her mobile telephone number and location.

            In
support of her application for a restraining order, MaKenna called Jeffrey
Tutton, a computer security specialist, to testify as an expert on cyberimpersonation.  Tutton testified that every device
manufactured by Apple Inc. has a unique device identifier (UDID), and every
device connected to the Internet (whether manufactured by Apple Inc. or another
company) has an Internet protocol (IP) address to and from which href="http://www.sandiegohealthdirectory.com/">electronic information is
sent.  According to Tutton, the UDID of another
person's telephone can be obtained by physically accessing the telephone, or by
running readily available UDID detection software on one's own telephone while
it is connected to the same wireless network to which the other person's telephone
is connected or while it is physically connected to a computer on the other
person's network.  Tutton also explained
that the IP address of a device connected to the Internet can be obtained by physically
accessing the device; by obtaining the password for the network to which the
device is connected, accessing the network, and running an Internet connection
speed test on the network; or by sending an e‑mail and getting a response
stating that the e‑mail was opened and identifying the IP address of the
device on which it was opened.  Finally,
Tutton testified that by obtaining the UDID and the IP address for another
person's telephone, entering the UDID into a program on one's own telephone,
and remotely accessing the other person's IP address, one can send from his own
telephone text messages that appear to have been sent from the other person's
telephone.  According to Tutton, to be
able to do this does not require a great deal of sophistication:  "[M]y grandma couldn't do it.  But . . . my teenaged son probably
would be able to do that by watching a few videos on YouTube or something."

            At
the hearing, Ethan's testimony differed substantially from MaKenna's.  In particular, Ethan contradicted MaKenna's
testimony about his access to her home Internet and her Internet accounts.  Ethan denied he ever connected his device to
the wireless Internet at MaKenna's house, but admitted he logged on to her home
computer with her and accessed a Web site. 
Ethan admitted changing some of MaKenna's Internet account passwords because
he was angry, but denied ever compromising her Google e‑mail account.

Ethan's
testimony about his relationship and communications with MaKenna also differed
markedly from hers.  Ethan testified he
broke up with MaKenna in mid-October 2011 and "didn't want to do anything
with her anymore."  He admitted he
sent her the message in November 2011 calling her a "cheat" and a "lying
bitch" because he was angry that she was with Kyle, but he denied ever
threatening to flatten Kyle's tires.  Ethan also denied sending other messages
MaKenna claimed she had received from him after the breakup.  In fact, Ethan testified, he received several
unwanted messages from MaKenna, including the wedding photograph.

Finally, Ethan testified
he never had a Pinger account and never sent MaKenna any text messages through
Pinger.  He testified he received through
Pinger text messages that contained a heart symbol (<3), which nobody but
MaKenna had ever sent him.  Ethan denied cyberimpersonating
MaKenna.  He testified that such
accusations "made [him] very jumpy," and he found it "nerve-racking
that someone [was] using his name and . . . texting other
people . . . .  [I]t's
made [his] life a wreck.  It's ruined
[his] . . . social life at school."

            At
the conclusion of the hearing, the trial court stated the case essentially presented
a credibility contest:  "There is an
overwhelming amount of evidence clearly, in part, people are not telling the
truth.  I don't think MaKenna told the truth
about everything.  I think Ethan probably
told the truth less than she did."  The
court found Ethan had access to MaKenna's UDID and IP address and did not need
ever to possess her telephone to gain that access.  The court further found Ethan harassed MaKenna
by "totally undermining the computer system, phone system, changing
passwords, round and round and round with all of the trouble that would cause."  Based on its view of the evidence, the court
found that Ethan engaged in "a conscious, . . . clear and
convincing campaign of disrupting [MaKenna's] life, messing up the whole
system.  She ended up going to several
different schools."  The court
therefore granted a three-year restraining order on the same terms as the
temporary restraining order.

II.

DISCUSSION

            Ethan
argues the restraining order must be reversed because it "is contrary to
substantial evidence in the record." 
(Capitalization and boldface omitted.) 
We disagree.  The evidence, though
conflicting, was sufficient to support the order.

A.        Standard
of Review


            "The
appropriate test on appeal is whether the findings (express and implied) that
support the trial court's entry of the restraining order are justified by
substantial evidence in the record." 
(R.D. v. P.M. (2011) 202
Cal.App.4th 181, 188.)  Evidence is substantial
if it is reasonable, credible, and of solid value such that a reasonable person
might accept it as adequate to support a conclusion.  (Braewood
Convalescent Hospital v. Workers' Comp. Appeals Bd.
(1983) 34 Cal.3d 159,
164; Schild v. Rubin (1991) 232
Cal.App.3d 755, 762 (Schild).)  In reviewing a record for substantial
evidence, we resolve all factual conflicts and credibility questions in favor
of the prevailing party and draw all reasonable inferences in support of the
trial court's order.  (>USS-Posco Industries v. Edwards (2003)
111 Cal.App.4th 436, 444; Schild, at
p. 762.)  "If appellate
scrutiny reveals that substantial evidence supports the trial court's findings
and conclusions, the judgment must be affirmed."  (Board
of Education v. Jack M.
(1977) 19 Cal.3d 691, 697.)

B.        Legal
Analysis


            A
person who has suffered harassment may seek an injunction prohibiting further
harassment.  (Code Civ. Proc.,
§ 527.6, subd. (a)(1).)  As
pertinent to this appeal, " '[h]arassment' is . . .
a knowing and willful course of conduct directed at a specific person that
seriously alarms, annoys, or harasses the person, and that serves no legitimate
purpose.  The course of conduct must be
such as would cause a reasonable person to suffer substantial emotional
distress, and must actually cause substantial emotional distress to the
petitioner."  (>Id., § 527.6, subd. (b)(3).) 
A " '[c]ourse of conduct' is a pattern of conduct composed of a series
of acts over a period of time, however short, evidencing a continuity of
purpose, including . . . making harassing telephone calls to an
individual, or sending harassing correspondence to an individual by any
means . . . ." 
(Id.,> § 527.6, subd. (b)(1).)  If after a hearing the trial court "finds
by clear and convincing evidence that unlawful harassment exists, an injunction
shall issue prohibiting the harassment." 
(Id.,> § 527.6, subd. (i).)

            Here,
the evidence was sufficient to justify the challenged order.  The trial court heard testimony directly from
Ethan that he disrupted MaKenna's Internet accounts by changing the passwords
and sent her text messages containing angry and obscene language after the
breakup of their relationship.  The court
also heard testimony directly from MaKenna that over the course of several
months, Ethan sent her numerous unwanted electronic communications, some
professing love for her and others hatred.  The court could infer from MaKenna's testimony
that Ethan had created Internet accounts in her name and posted private information
about the status of their relationship and MaKenna's emotional state.  Tutton provided expert testimony from which
the court could infer that Ethan cyberimpersonated MaKenna by using the Pinger
account to send her threatening text messages and make it appear that she had
sent them herself.  Such a "socially
unacceptable course of conduct would have seriously alarmed, annoyed, or
harassed a reasonable person, and would have caused a reasonable person to
suffer substantial emotional distress." 
(Brekke v. Wills (2005) 125
Cal.App.4th 1400, 1414 (Brekke).)  Indeed, MaKenna testified that Ethan's
barrage of unwanted communications disturbed her sleep and made her so upset and
fearful that she had to change schools.  We
therefore conclude substantial evidence supports the trial court's issuance of
the restraining order.  (Code Civ. Proc.,
§ 527.6, subds. (a)(1), (b)(3), (i); Brekke, at p. 1415.)

            Ethan
contends the restraining order must be reversed because the trial court's "essential
factual finding" that he sent the text messages that were delivered to
MaKenna through Pinger "is contrary to the expert testimony."  According to Ethan, Tutton testified that "momentary
possession" of MaKenna's telephone was required to obtain the UDID, but it
was "uncontroverted that [Ethan] never had possession of the device."  Ethan further contends reversal is required
because "all the evidence shows"
that MaKenna "was texting herself out of spite due to being rejected by
[Ethan]."  (Italics added.)  We disagree.

The evidence about
who sent the messages through Pinger presented a factual dispute for the trial
court to resolve.  MaKenna and Ethan both
denied sending them, but the court expressly found MaKenna more credible than
Ethan.  The records obtained from Pinger showed
the messages originated from a UDID and IP address belonging to MaKenna, but Tutton
testified that a person who had physically accessed MaKenna's telephone> or whose device was connected to her
wireless Internet network while her telephone was also connected could
obtain the UDID and IP address and later use that information to send a text
message from some other device and make it appear the message had been sent
from MaKenna's telephone.  Although at
the hearing no evidence was presented that Ethan had physical access to MaKenna's
telephone, based on Tutton's testimony, Ethan could have obtained MaKenna's
UDID by remotely accessing her home wireless Internet network (for which she
testified Ethan had the password) at any time her telephone was connected.  Thus, while some evidence supported Ethan's
theory that MaKenna sent herself the text messages through Pinger, other
evidence supported MaKenna's theory that Ethan sent them and made it look like she
did.  "It is not our task to weigh
conflicts and disputes in the evidence; that is the province of the trier of
fact."  (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630.)  We thus defer to the trial court's resolution
of these factual disputes and credibility questions in favor of MaKenna.  (Cahill
v. San Diego Gas & Elec. Co.
(2011) 194 Cal.App.4th 939, 959; >Schild, supra, 232 Cal.App.3d at p. 762.)

In any event, as
the trial court recognized, who sent the messages through Pinger was "not
the only fact in the case."  Even if
we disregard the evidence in favor of MaKenna on that issue, other evidence established
Ethan's harassment of MaKenna.  For
example, there was evidence that Ethan (1) disrupted MaKenna's Internet
accounts by changing the passwords on multiple occasions; (2) set up false
Internet accounts in her name and posted private information about her;
(3) disturbed her sleep by sending her nine text messages within 25
minutes; and (4) sent her multiple messages that contained obscene or
threatening language and that caused her to switch schools to get away from him.  Based on this evidence, the trial court was
justified in issuing the challenged restraining order.  (See Code Civ. Proc., § 527.6,
subds. (a)(1), (b)(3), (i); Brekke,
supra, 125 Cal.App.4th at
pp. 1414-1415.)

DISPOSITION

            The restraining order is affirmed.  Respondent is awarded costs on appeal. 

 

                                                           

IRION, J.

 

WE CONCUR:

 

 

                                                           

                       HALLER,
Acting P. J.

 

 

                                                           

                                McDONALD, J.







Description In an application for restraining orders, MaKenna alleged she and Ethan used to be high school classmates and friends. MaKenna alleged their friendship came to an end in the fall of 2011, when Ethan slapped her and had her arrested on false charges of "domestic violence." MaKenna further claimed that over the next several weeks, Ethan continued to contact her and sent threatening messages via a free text messaging service; changed the passwords to her e‑mail and other Internet accounts; wrote and sent a letter to his own mother in MaKenna's name; grabbed MaKenna's telephone and threw it to the ground; threatened to flatten her friend Kyle's tires; physically abused and cyberbullied her; frightened her with a gun; and threatened to kill her. Based on these allegations, MaKenna requested orders to stop Ethan from further harassing her. (Code Civ. Proc., § 527.6.)
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