In a case certified for publication, San Diego’s Fourth District Court of Appeal has affirmed the decision of a now retired family law judge to grant a restraining order against a man who basically lost it after he found out that his former domestic partner had been unfaithful.
According to the case, Altafulla v. Ervin, Mr. Ervin “sent emails 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”.
It was so bad that Ervin began dismantling the children’s bedroom furniture, and the 17-year-old daughter was institutionalized and would not be released until Ervin had moved out of the home.
Compounding the problem was that Ervin had been the subject of two temporary domestic restraining orders in a marriage he was involved in before the subject relationship began. In that earlier relationship, he told his family, “[o]ne day I will take a gun and shoot all four of you”, referring to his wife and their three children. Although Ervin argued to the judge in the case against Altafulla that the emails and the statements to her children were true, the trial judge, the Hon. Christine K. Goldsmith, issued a five year restraining order, which is the maximum allowed under California’s Family Code, and ordered that Ervin leave the home he shared with Altafulla and stay away from it.
The Court of Appeal affirmed in a 3-0 decision, rejecting Ervin’s argument, which he made without a lawyer, that there was not enough evidence to support issuance of the domestic violence restraining order. Writing for the court, Justice Patricia Benke noted that the Domestic violence Protection Act (DVPA) “was enacted to protect domestic partners from abusive conduct, which, as the record here amply demonstrates, may involve the use of arguably accurate information in a manner that causes severe emotional distress”. This is because the DVPA covers actions that involve disturbing the peace of the other party.
Altafula requested sanctions against Ervin for bringing the appeal, but here, she ended up losing.
Justice Benke was joined in her opinion by Justices Gilbert Nares and Terry O’Rourke. Although the case originated in San Diego, because it was certified for publication, it may be cited as precedent by judges and attorneys throughout California.
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