Marriage of Bertram and Henry CA1/4 filed
Annotate this Case
Download PDF
Filed 3/29/11 Marriage of Bertram and Henry CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR In re the Marriage of LYNN BERTRAM and DUANE HENRY. LYNN BERTRAM, Appellant, A129204 v. (Contra Costa County Super. Ct. No. FLMSD07-02597) DUANE HENRY, Respondent. The trial court issued a domestic violence temporary restraining order ex parte in a marital dissolution action upon allegations that the wife was harassing the husband by misusing computer data and e-mail she copied from a computer in the family home. The husband, an attorney, claimed that the wife threatened to disclose attorney-client privileged communications that would destroy his business. After a full hearing, the court found the husband s allegations of harassment and misuse of electronic material unfounded, and refused to issue a domestic violence order. The court did issue a family law order that directed the wife to surrender her copy of the computer hard drive because the data stored on the hard drive included attorney-client privileged documents. The wife appeals and challenges both the temporary restraining order and the order issued after the hearing. She wants the domestic violence temporary restraining order vacated to clear her name, and wants to keep her copy of the hard drive. 1 We conclude that the trial court did not abuse its discretion in issuing a domestic violence temporary restraining order given the state of the evidence at the time. Although the allegations were later determined to be unfounded, the allegations sufficiently stated a claim of harassment that supported an initial domestic violence order. The court properly addressed the wife s concern about negative effects of the domestic violence order by clarifying on the record that physical violence was never alleged and that even the allegations of harassment by misuse of electronic data were unfounded. Nor did the trial court abuse its discretion in issuing a family law order directing the wife to surrender her copy of the computer hard drive. The hard drive contained privileged material and the court addressed wife s community interest in the computer hard drive by directing the husband to preserve it for future discovery. We affirm the court s orders. I. FACTS Lynn Bertram (Wife) and Duane Henry (Husband) were married in 1990 and separated in 2007. They are the parents of two teenaged children. Wife filed a petition for marital dissolution in June 2007. The dissolution proceedings are ongoing. Husband is a family law attorney and Wife is a psychiatrist, and they are representing themselves in these proceedings. A. Husband s request for a temporary restraining order On May 21, 2010, in the dissolution action, Husband filed Judicial Council form DV-100 request for a temporary restraining order (TRO) under the Domestic Violence Protection Act upon allegations that Wife was harassing him by misusing computer data and e-mail he created and she copied. (Fam. Code, § 6200 et seq.) The data and e-mail had been created by Husband on a computer in the family home and was copied by Wife near the time of separation in 2007. Wife had a computer technician remove the hard drive from the computer and create an electronic copy of the stored data. Wife also printed paper copies of some of Husband s e-mail. Husband asserted, in a declaration filed with the court, that he used the computer in his home office, that the accessed documents concerned family law clients (as well as 2 other business and personal matters), and that the documents included confidential attorney-client communications. Husband said Wife had disclosed the data and e-mail to her family members, friends, and a limited number of others, and threatened to disclose [the] computer data and e/mails, and attorney-client privileged communications and attorney-work product information, to opposing counsel in cases in which [Husband] represent[s] one of the parties. Husband declared that Wife gave him a copy of a bound volume of his e-mail [a]s a way of taunting, embarrassing, harassing and attempting to blackmail him. Wife allegedly threatened dissemination of the e-mail and computer data with attorney-client privileged communications to opposing counsel an action that would be a disaster to his business and his clients, Husband asserted. Husband claimed Wife made the threat to harass him, to interfere with [his] life, mental calm and happiness and to extort concessions in [the] pending divorce. Husband said that Wife s actions severely damaged [his] mental and emotional calm, and required him to take medication and to consult a therapist to deal with [his] depression, anxiety and stress. Husband declared that Wife refused to return the material and that he sought an order for its return because all attempts at marital reconciliation and voluntary relinquishment of the material had failed. Husband further declared that an ex parte order, without advance notice to Wife, was necessary because there was a substantial risk that [Wife would] take immediate steps to further disclose [Husband s] business and personal data and e/mails, including attorney-client data and e/mails if Wife received notice. (Boldface omitted.) The order sought by Husband was a personal conduct order directing Wife not to harass, threaten, disturb the peace, or destroy personal property, and a property control order awarding Husband possession of the computer data and e-mails. Husband s request noted that [t]his D[omestic] V[iolence] action involves copying and misuse of computer data. The court immediately issued a TRO on Judicial Council form DV-109, and set a hearing for June 9, 2010, to consider a permanent injunction. In the TRO, the court 3 granted the requested personal conduct order against harassment but denied the property control request until the right of possession could be determined at the scheduled hearing. B. Wife s answer Wife filed an answer to the TRO on June 2, 2010. Wife denied harassing or threatening Husband. Wife declared that the computer from which she copied material was in Husband s home office but was freely used by herself and the parties children. Wife said she printed the e-mails and copied the hard drive, after she went to use the computer and discovered open e-mails between Husband and his girlfriend on the computer. The girlfriend was Husband s client, and the attorney-client communications Husband sought to protect from disclosure were his e-mails with his client-girlfriend. Wife asked that she be permitted to retain the e-mails because she obtained them legally, and they show Husband s efforts to hide and divert community assets in preparation for leaving her. Wife denied ever threatening to disseminate the e-mails to Husband s opposing counsel in other cases, and said she confronted Husband with a bound volume of the e-mails only to refute his denials of the affair, not to harass him. Wife said the only people she showed any e-mails to were her sister, niece, therapists, and attorneys she considered hiring. She showed the e-mails to family members and therapists for reassurance that she was not overreacting, as Husband claimed, and showed e-mails to attorneys only to the extent that they showed Husband s efforts at hiding community assets. Wife said Husband was abusing the system to legally bully[] her and to make the dissolution process difficult and expensive. Wife said the accusation of domestic violence for accessing home computer materials was unjust and expressed her concern that the domestic violence order damaged her business reputation as a psychiatrist and expert witness. C. The hearing The parties testified at the hearing. Husband testified that he was living with Wife in March 2007 when she made paper copies of his e-mail and created an electronic copy of the hard drive from a computer in the family home. Husband said that about 98 4 percent of the data on the computer was data he created. His e-mail accounts received both personal and business communications he had three different e-mail accounts but did not make any of them exclusively business. Husband conceded that he exchanged a number of totally inappropriate e-mails with a female client but insisted that he never had an affair with her, only a shared fantasy. Husband told the court he was seeking the return of all of [his] e-mail, both personal, business, attorney-client, anything. Husband also asked that Wife be ordered to give him the hard drive copy. Husband claimed that he was entitled to the materials under the Domestic Violence Protection Act and state and federal criminal law that prohibits taking computer data without permission.1 The court told Husband: I don t think you need to spend a lot of time on whether this fits the DV [Domestic Violence] profile. I issued [the DV order] because I needed to issue something. But whatever comes out of this, if anything comes out of it, isn t going to be a CLETS DV order. 2 The court also stated: I don t see it as a DV hearing. I had to give some thought as to whether I thought you qualified for harassment for purposes of issuing the [TRO]. Frankly, I would rather have issued a non-DV order along the lines that I did. In hindsight, I probably wouldn t have, because this now results, in effect, [in] a phantom and unwarranted CLETS hit on her CLETS which she doesn t deserve even if everything else you are saying is true. I don t think that you are going to get any traction with me trying to address this as a DV matter. Additionally, the court challenged Husband s assertion that it was illegal for Wife to view documents on a shared household 1 Husband also claimed that Wife inappropriately accessed his e-mail more recently, in May 2010, but the court rejected the claim and found that any access was incidental to closing a joint e-mail account. The court s ruling on that matter is not challenged on appeal. 2 CLETS is an acronym for the California Law Enforcement Telecommunication System maintained by the Department of Justice. (Fam. Code, § 6380, subd. (a); Gov. Code § 15151 et seq.) CLETS collects criminal history and domestic violence information. (Fam. Code, § 6380, subd. (a); People v. Martinez (2000) 22 Cal.4th 106, 113, 126-127.) The system is used exclusively for official business of government agencies, primarily law enforcement agencies. (Gov. Code §§ 15151, 15153, 15163.) 5 computer to which everyone in the family had access, at least for those documents not protected by the attorney-client privilege. The hearing turned to Wife s testimony. Wife testified that she sat down at the family computer in March 2007 to play a game when she saw on the screen (open but minimized) an e-mail message revealing Husband s plan to leave her for another woman. Wife clicked through the emails and saw that the girlfriend had given Husband a bank account number for Husband to transfer funds into the girlfriend s account. Wife took the computer to a computer store and had a copy made of the hard drive. Wife told the court that she made a copy because the computer contained financial information and the e-mails referred to transfers of money to Husband s girlfriend. Wife has not accessed the hard drive copy since creating it (it would need to be hooked up to a computer) and Husband took the computer with the original hard drive when the parties separated. As for the e-mails, Wife testified that the parties had mutual access to each other s e-mail accounts and that Husband s password was sitting next to the computer. Wife accessed Husband s e-mails and read his e-mail exchange with the girlfriend. The girlfriend was Husband s client. Wife read only those e-mail messages exchanged between Husband and his girlfriend. Wife printed about 150 pages of those e-mail messages, and bound them in a book. Later, at an effort at reconciliation, Husband gave Wife express permission to access his e-mail account (and gave her his new password). Wife copied some e-mails, including one in which Husband discussed transferring money from one account to another to maximize liquidity for buying a house with the girlfriend. Wife testified that the only e-mails she ever copied were between Husband and his girlfriend. The court asked Husband if that was correct, and he said, I think so. Wife testified that she never threatened Husband with disclosure of attorney-client materials from the hard drive or the e-mail account. Wife said that she showed Husband s e-mail with the girlfriend-client to a couple s counselor and Husband s individual therapist to refute Husband s denial of an affair. Wife said she also showed some of those e-mails, concerning concealment of community assets, to about four attorneys she consulted concerning the dissolution action. One of those attorneys, whom 6 she hired to represent her earlier in the proceedings, told Wife that some of the e-mails are clearly just boyfriend-girlfriend e-mails, some of them are clearly client-privileged emails, and some [] of them have components of both. Wife said she herself did not know what is, or is not, privileged among the e-mails. The couple s counselor appeared as a witness for Wife, and confirmed that Husband told Wife that she could read Husband s e-mail to check on him during efforts at reconciliation around April 2007. As the therapist recalled, Husband said: [H]ey, read my e-mails or whatever. I m clean. I m an open book. Husband denied ever authorizing Wife to access his e-mail account. The court believed Wife and the couple s counselor. The court found that Husband gave Wife express permission to view his e-mail account in April 2007. The court also found that Wife was legally permitted to view Husband s e-mail earlier, in March 2007, when she viewed the e-mail on a shared family computer. The court likened the situation to the old days before computers where one spouse left love letters in his nightstand or her nightstand. Although it is illegal for a third party to break into a house and steal love letters, it is not illegal for a spouse to take the love letters from the nightstand. Similarly, spouses living in the same house and sharing the same computer may look at electronic love letters, the court reasoned. As for disclosure of the e-mail, the court found no convincing evidence that Wife did anything other than reveal the e-mail to a few people as proof of Husband s infidelity. The court believed Wife s testimony that she never viewed or distributed material contained on the electronic copy of the computer hard drive. The court concluded that Husband s allegations of harassment in the form of accessing and misusing electronic files were not well taken, and found no other actionable harassment. But the court found that some very limited relief was in order because the computer data and e-mail included some attorney-client privileged material, and the court wanted to protect the rights of Husband s clients. The court directed Wife to deliver the hard drive copy to Husband, who was directed to preserve it for future discovery of any relevant and non-privileged materials, such as banking records. The court directed the 7 parties to deliver their copies of the e-mail binder to the court, with Husband marking any documents he claimed were privileged. The court would review the documents, remove any documents determined to be privileged, and return all non-privileged e-mail messages to Wife. The court asked Wife to [e]xercise caution in using the returned emails and offered the observation that it is inappropriate to involve the kids in any of this. Husband asked the court to consider something a little stronger than an observation because of the risk of inappropriate future use. The court rejected the request, finding no factual showing that that is warranted. Near the close of the hearing, the court addressed Wife s earlier stated concern about having a CLETS rap sheet. The court told Wife: I m going to make an express finding and this will be in the order after hearing that although I do not believe I committed an error in issuing the T.R.O., I want to clarify . . . I ll clarify that the allegations made in there were of the nature of harassment in the form of accessing and misusing electronic files and that I have found at hearing those were not well taken but that, in any event, there has never been any allegation in the nature of domestic violence in a sense of violence. That may be of help to you in the other forums if there are questions about my rulings. D. Order and Appeal The court filed an order on Judicial Council family law form (FL-340) on July 12, 2010. The court s order was consistent with its directions at the hearing that Wife deliver the hard drive to Husband, and deliver the e-mails to the court for review and redaction of any privileged material. The court also made the following findings: The court issued a temporary restraining order on 5/20/10. That order was in the form of a CLETS DVRO because of allegations that [Wife] was using certain e-mails to harass [Husband]. After full hearing, the Court has found those allegations to be unfounded. In any event, there was no allegation at any time that [Wife] had ever engaged in any actual violence or threats of violence against [Husband]. (Capitalization altered.) Wife filed a timely notice of appeal on July 22, 2010. 8 II. DISCUSSION As noted above, Wife challenges both the TRO and the order issued after the hearing ordering her to give Husband her copy of the computer hard drive. We find no abuse of discretion and affirm the court s orders. A grant or denial of a protective order under the Domestic Violence Prevention Act (Act) is reviewed for abuse of discretion. (Fam. Code, § 6200 et seq.; Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. (Gonzalez, supra, at p. 420.) The court did not abuse its discretion here in granting a TRO. Husband presented evidence that Wife was harassing him by accessing, reading, and disclosing the content of his confidential e-mails, and by threatening him with damaging disclosure of attorneyclient privileged communications. Husband alleged that Wife s actions severely damaged [his] mental and emotional calm, and required him to take medication and to consult a therapist to deal with [his] depression, anxiety and stress. This evidence brought the matter within the scope of the Act, which provides expansive protection against myriad forms of domestic violence, both physical and non-physical. (Fam. Code, §§ 6203, subd. (d), 6211, 6320; In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1498-1499 (Nadkarni).) The Act authorizes issuance of a protective order, with or without notice, to restrain any person for the purpose of preventing a recurrence of domestic violence . . . if an affidavit . . . shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse. (Fam. Code, § 6300.) Abuse means any of the following: (a) Intentionally or recklessly to cause or attempt to cause bodily injury. [¶] (b) Sexual assault. [¶] (c) To place a person in a reasonable apprehension of imminent serious bodily injury to that person or to another. [¶] (d) To engage in any behavior that has been or could be enjoined pursuant to [Family Code] section 6320. (Fam. Code, § 6203.) 9 The referenced section covers a broad range of behavior: molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning . . . , destroying personal property, contacting . . . , or disturbing the peace of the other party . . . . (Fam. Code, § 6320.) Here, Husband accused Wife of threatening, harassing, and disturbing the peace by disclosing confidential computer data and e-mail in a manner that severely damaged his mental and emotional calm and induced depression, anxiety and stress. Husband averred that Wife was threatening to disclose [his] computer data and e/mails, and attorney-client privileged communications and attorney work-product information, to opposing counsel in cases in which [he] represent[s] one of the parties, and that such disclosure would be a disaster to the clients and Husband s business. Husband averred that the TRO must be granted ex parte or its purposes were likely to be thwarted because [e]lectronic data can be disseminated with the touch of a computer button and Husband believed there was a substantial risk that [Wife would] take immediate steps to further disclose [Husband s] business and personal data and e/mails, including attorneyclient data and e/mails, before the Court can act on the TRO. (Boldface omitted.) We cannot say that the trial court abused its discretion in issuing an ex parte TRO given the averments of Husband s declaration. Similar averments have been held sufficient allegations of abuse under the Act. (Nadkarni, supra, 173 Cal.App.4th 1483.) Nadkarni concerned a child custody action in which the husband accessed the wife s email account and obtained copies of her e-mails with third parties, including her family law attorney. (Id. at p. 1487.) The husband attached copies of the e-mails to documents filed in the child custody matter, as evidence that the wife left the teenaged children alone when she traveled to India. (Id. at pp. 1487-1489.) In his court filing, the husband declared that he procured additional evidence from the e-mail account, which could be considered inflammatory and sensitive to certain others, but that he had no intention to share these emails other than as evidence in future legal proceedings. (Id. at p. 1490.) 10 The wife obtained a domestic violence TRO ex parte upon allegations that the husband s access to her confidential e-mail was unauthorized and that his reference to the alleged inflammatory and sensitive nature of her e-mails, was a threat to use them to interfere with her business relationships if she did not succumb to his demands in the family law case. (Nadkarni, supra, 173 Cal.App.4th at pp. 1489-1491.) The wife also alleged that the husband was filing her personal e-mail in court to embarrass her and to injure her relationships with her family members and third parties, including professional clients. (Id. at p. 1490.) Additionally, the wife claimed that her husband learned her social calendar from her e-mail and told others that he knew which social events she was attending, and that his knowledge of her schedule caused her to fear for her safety because he physically abused her when they were married. (Id. at p. 1490.) Although the Nadkarni trial court issued an ex parte TRO, it later denied a permanent injunction and dismissed the case upon concluding that the husband s conduct did not rise to the level of conduct that is amenable to the Domestic Violence Prevention Act. (Nadkarni, supra, 173 Cal.App.4th at p. 1493.) The trial court was reversed on this point. (Id. at pp. 1493-1501.) The Sixth District Court of Appeal held that the Legislature intended that the DVPA be broadly construed in order to accomplish the purpose of the DVPA. Therefore, the plain meaning of the phrase disturbing the peace in [Family Code] section 6320 may include, as abuse within the meaning of the DVPA, a former husband s alleged conduct in destroying the mental or emotional calm of his former wife by accessing, reading and publicly disclosing her confidential emails. (Id. at p. 1498.) It is true, as Wife notes in her brief on appeal, that the restrained spouse in Nadkarni had a history of physical violence and no physical violence was ever alleged in this case. The facts presented on Husband s request for a TRO were thus weaker than the facts presented in Nadkarni. Nevertheless, the facts asserted here were sufficient to support issuance of a TRO. Abuse, within the meaning of the Act, need not involve actual infliction of physical injury or assault. (Conness v. Satram (2004) 122 Cal.App.4th 197, 202.) A protective order may issue for disturbing the peace of 11 the other party, which encompasses conduct that destroys the mental or emotional calm of the other party. (Nadkarni, supra, 173 Cal.App.4th at p. 1497.) Husband alleged that Wife s conduct severely damaged [his] mental and emotional calm and further alleged that he was taking medication and seeing a therapist to help deal with [his] depression, anxiety and stress caused by Wife s actions. The trial court did not abuse its discretion in finding that these allegations supported a domestic violence TRO. Wife argues that the trial court did not positively determine that Husband s allegations stated sufficient grounds for issuance of a TRO, and simply issued the TRO as a means to an end. Wife says [t]he record suggests the trial court did not believe there was evidence enough to sign the order, and points to the judge s comment at the hearing held after issuance of the TRO in which he said. I issued [the TRO] because I needed to issue something. But whatever comes out of this, if anything comes out of it, isn t going to be a CLETS DV order. We cannot conclude from this ambiguous remark that the court issued a domestic violence order without really finding proof of domestic violence. The court s remarks may mean that the court issued the TRO because it needed to issue something to prevent a recurrence of harassment given reasonable although not powerful proof of harassment but that it was not going to extend the injunction because Wife had sufficiently refuted Husband s evidence of harassment in her answer. This interpretation is consistent with the court s later remarks. Soon after making the remark about needing to issue something the court explained that it did, in fact, give some thought as to whether [it] thought [Husband] qualified for harassment for purposes of issuing the [TRO]. The court issued the TRO, thus apparently concluding that Husband s allegations met the standard of harassment necessary for issuance of a TRO. But the court noted that, in hindsight, it would rather have issued a non-DV order along the lines that [it] did to avoid a CLETS hit because subsequently presented evidence showed the allegations of harassment to be unwarranted. Still later in the hearing the judge said, I do not believe I committed an error in issuing the T.R.O. and explained that, after reviewing all of the evidence from both parties, he determined that Husband s 12 allegations that Wife accessed and misused electronic files were not well taken. The court, in fact, did not commit error in issuing the TRO. Husband submitted sufficient evidence of harassment to warrant issuance of the order. It was only after Wife submitted evidence refuting Husband s evidence that the harassment allegations were shown to be unfounded. Nor did the court commit error in ordering Wife to deliver her copy of the computer hard drive to Husband. The court has jurisdiction over community property in a dissolution action and may direct its possession and preservation pending final disposition. It was undisputed that Husband used the computer extensively in his law business, and that the hard drive thus contained attorney-client privileged documents to which Wife should not have access. At the hearing, Wife s only asserted interest in retaining the hard drive copy was to preserve financial information. The court accommodated that interest by directing Husband to preserve the copy in case it had discoverable materials. Wife may demand inspection of the hard drive and, with the exception of privileged materials, obtain access to documents relevant to the dissolution proceeding. (Code Civ. Proc., § 2031.010, subd. (a); Fam. Code, § 210; see Hogoboom et al., Cal. Practice Guide: Family Law (The Rutter Group 1985) ¶ 11:280, at p. 11-68.) The court s order, fairly addressing the interests of the parties and Husband s clients, was not an abuse of its discretion. Finally, we wish to note for the record, as did the trial court, that the initial domestic violence order was issued upon allegations of misuse of electronic data, not physical violence, and even those allegations were determined to be unfounded. We realize that Wife is concerned about possible negative effects from the domestic violence TRO. However, any negative effects are ameliorated by the trial court, and this court s, explanation of the limited nature of the TRO. Wife may confirm that state records accurately record the facts underlying the TRO and, if they do not, demand correction. (Pen. Code, § 11120 et seq.) Wife may also rest assured that record access is strictly limited to state agencies conducting official business. (Gov. Code, §15151 et seq.) Also, no negative effect will occur in the child custody proceedings because the presumption of 13 parental unfitness that generally attends findings of domestic violence is fully rebutted by the nonviolent nature of the conduct alleged, and the court s determination that even the allegations of harassment by misuse of computer data were unfounded. (Fam. Code, § 3044.) We know Wife wants more than these assurances she wants us to reverse, erase and/or expunge the temporary restraining order. But we cannot reverse the trial court without finding that it abused its discretion in issuing the TRO. This we cannot do because Husband s allegations of harassment fall within the broad confines of the Act. III. DISPOSITION The orders are affirmed. Each party shall bear his or her own costs incurred on appeal. _________________________ Sepulveda, J. We concur: _________________________ Ruvolo, P.J. _________________________ Reardon, J. 14
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
