Montgomery v. D'Ottavio CA3

Filed 5/7/14 Montgomery v. D’Ottavio CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sutter) ----

SANDRA GAY MONTGOMERY, C073411

Plaintiff and Respondent, (Super. Ct. No. CVDV122584) v.

MARK D’OTTAVIO,

Defendant and Appellant.

Sandra Gay Montgomery obtained a domestic violence restraining order against her brother, Mark D’Ottavio, enjoining him from contacting her or her two adult children. (Fam. Code, § 6300 et seq.)1 In this judgment roll appeal, Mark2 asks us to reverse the restraining order because the facts contained in Sandra’s petition do not constitute

1 Undesignated statutory references are to the Family Code. 2 Because the facts involve individuals with the same surname, we refer to the parties and others by their first names.

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“abuse” within the meaning of the Domestic Violence Prevention Act. (§ 6200 et seq.) But because Sandra also testified at the unreported hearing on her petition, we cannot conclude the evidence does not support the trial court’s decision to issue the order. We shall affirm. BACKGROUND Mark has elected to proceed on a clerk’s transcript. (Cal. Rules of Court, rule 8.122.) As a result, the appellate record does not include a reporter’s transcript of the hearing that gave rise to the restraining order challenged in this appeal. This is referred to as a “judgment roll” appeal. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083 (Allen); Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.)3 In December 2012 Sandra filed a petition requesting a domestic violence restraining order. According to the request, the most recent abuse had occurred on December 13, 2012, when Mark (who lives in Colorado) sent e-mails consisting of “[l]ife threats, mental battering, verbal ass[a]ults on me & my daughter [and] st[al]king” over the Internet. According to Sandra, the “2nd most recent abuse” occurred two days later, when her son and husband read the e-mail “threats, harming me, retribution, for what I do not know. [Mark] is delusional and because I am bipolar and have a panic/disorder he uses this against me.” Attached to the petition were (1) three e-mails sent by Mark to Sandra in February 2009, March 2011, and on December 12, 2012, respectively, each of which was shared by Sandra with others; (2) an e-mail exchange in June 2009 between Mark and Sharon Lynch, another of Mark’s sisters, apparently initiated by Mark and then forwarded by