After MaKenna Portuguez obtained a restraining order to
prevent Ethan Espiritu, a former friend and high school classmate, from
harassing her”, Ethan appealed, claiming “the evidence was insufficient to
support the trial court's finding that he had sent certain unwanted text
messages to MaKenna.” Portuguez v. Espiritu, 2014 WL 261327
(California Court of Appeals 2014). As
Wikipedia explains, a restraining order is a
court order that requires a party to do, or to refrain from doing, certain acts. These orders flow from the court's injunction power to grant equitable remedies. A party that refuses to comply with an order faces criminal or civil penalties. . . .
In this case, Portuguez asked the court to issue a
restraining order under California Code of Civil Procedure § 527.6 to prevent
further incidents of conduct she described at the hearing on her request. Portuguez
v. Espiritu, supra. According to the opinion, at the hearing the
judge held on her motion for the order, Portuguez testified that in 2010
she gave Ethan her e-mail address and
password so 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. . . .
Portuguez v. Espiritu,
supra. Portuguez also said she “received numerous
unwanted communications” from Espiritu “in the summer and fall of 2001”, including
these:
— In November, MaKenna received a
series of text messages from Ethan while she was riding home from school with
her friend Kyle. One . . . 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.’ . . . MaKenna . . . `was upset that [Ethan] would talk to [her]
that way.’. . .
Portuguez v. Espiritu,
supra.
Portuguez also testified that 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.” Portuguez v. Espiritu, supra.
They included the following:
— `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.’
Portuguez v. Espiritu,
supra.
The opinion explains that 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.
Portuguez v. Espiritu,
supra.
To support her application, Portuguez called Jeffrey Tutton,
a computer security
specialist, to testify . . . 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 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 phone 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. . . .
Portuguez v. Espiritu,
supra.
Espiritu’s testimony at the hearing “differed substantially”
from Portuguez’s:
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 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 she was with Kyle, but 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. . . .
Finally, Ethan testified he never had a
Pinger account and never sent MaKenna any text messages through Pinger. . . .
He testified 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.’
Portuguez v. Espiritu,
supra.
In his appeal, Espiritu argued that the restraining order “must
be reversed because it `is contrary to substantial evidence in the record.’” Portuguez v. Espiritu, supra.
The Court of Appeals began its analysis of his argument by noting that
the standard 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. (California Court of Appeals 2011) 202 Cal.App.4th 181). 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. (California Supreme Court 1983)
34 Cal.3d 15. . . .). 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, (California Court of Appeals 2003) 111
Cal.App.4th 436). . . `If . . . substantial evidence supports the trial
court's findings and conclusions, the judgment must be affirmed.’ (Board of
Education v. Jack M. (California Supreme Court 1977) 19 Cal.3d 691).
Portuguez v. Espiritu,
supra.
The court then explained that, under California law,
harassment is
`[a] knowing and willful course of
conduct directed at a specific person that seriously alarms, annoys, or
harasses the person, and 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.’ (California Code of Civil Procedure § 527.6(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
. . . by any means. . . .’ ’ (California Code of Civil Procedure § 527.6(b)). If
. . . the trial court `finds by clear and convincing evidence that unlawful
harassment exists, an injunction shall issue prohibiting the harassment.’ ’ (California Code of Civil Procedure § 527.6(i)).
Portuguez v. Espiritu,
supra.
The Court of Appeals found the evidence Portuguez presented
was sufficient to justify
the challenged order. The trial court
heard testimony 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 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 [her] 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 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 (California Supreme Court 2005) 125 Cal.App.4th 1400.) 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.
Portuguez v. Espiritu,
supra.
Espiritu claimed the order should 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’
MaKenna `was texting herself out of spite due to being rejected by [Ethan].’
Portuguez v. Espiritu,
supra (emphasis in the original).
The Court of Appeals did not agree, noting that Portuguez
and Espiritu 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 . . . 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.
Portuguez v. Espiritu,
supra (emphasis in the original).
The Court of Appeals also pointed out that, as the trial
judge 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. . . . 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.
Portuguez v. Espiritu,
supra. It therefore affirmed the trial judge’s
granting the restraining order. Portuguez
v. Espiritu, supra.
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