Filed 8/24/16 Castaneda v. Ramirez CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


EDITH CASTANEDA,
         Plaintiff and Respondent,
                                                                     A143653
v.
RYAN RAMIREZ,                                                        (Contra Costa County
                                                                     Super. Ct. No. MSD1401238)
         Defendant and Appellant.

         Plaintiff Ryan Ramirez appeals from a three-year domestic violence restraining
order that his mother-in-law, Edith Castaneda, obtained against him after Ramirez
unsuccessfully sought a restraining order against her.1
         Ramirez, in his application for a restraining order, alleged he was seeking a
divorce from his wife (Castaneda’s daughter) and Castaneda had twice threatened him
with death if he did anything that would “hurt” his wife or her family members. Ramirez
claimed that in preparing for the divorce proceedings he had discovered “possible
frauds,” involving the purchase of a residential property, perpetrated by his wife and
Castaneda. He sought and was granted a temporary restraining order. Ramirez was
unable to serve Castaneda, and the matter was eventually dropped from the calendar.
         A month later, Castaneda sought a restraining order. She claimed Ramirez was
“stalking” her, had waived a gun at her, and had accused her of committing and fraud and
stealing from a client.

         1
         This appeal is properly decided by way of memorandum opinion in accordance
with California Standards of Judicial Administration, standard 8.1(1), (3).
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       Ramirez filed written opposition, denying Castaneda’s accusations and claiming
she was stealing from her husband and giving his earnings to a “lover” for the purchase
of a “million dollar” home. He asserted Castaneda was harassing him and trying to
prevent him from divulging information about the alleged fraud to her husband. Ramirez
attached a number of e-mails and letters that reflected a serious conflict with his wife and
mother-in-law and in which he accused them of stealing his and his father-in-law’s
money and threatening him in order to dissuade him from serving subpoenas for financial
records he believed would substantiate the alleged marital and economic transgressions.
       A hearing was held on September 25, 2014, at which Castaneda and Ramirez
appeared in propria persona and testified. After considering all the documentation the
parties had submitted and their testimony, the court ruled in favor of Castaneda and
issued a three-year restraining order in favor of both Castaneda and her husband against
Ramirez.
       Ramirez filed a notice of appeal on November 24, 2014. As the record on appeal
he designated a clerk’s transcript under California Rule of Court, rule 8.122 and a settled
statement under rule 8.137. The court provided a settled statement on August 31, 2015.
       In the settled statement, the court recounted Castaneda’s testimony. She testified
she and her husband had received numerous communications from Ramirez accusing her
of an affair and stealing money to support her purported lover, and Ramirez had
repeatedly call her employer and made false accusations in an attempt to get her fired.
She also claimed to have found a surveillance camera near her residence and one of the
photos downloaded from the chip was of Ramirez. Castaneda said she feared for her life,
Ramirez was showing signs of “mental instability,” and he was obsessed with the notion
she had committed marital fraud and had a lover—which she denied. The court also
recounted Ramirez’s testimony. Ramirez maintained Castaneda had, indeed, committed
marital fraud and had a lover who resided in a house and lived a lifestyle he could not
possibly afford. He said his many communications were intended for Castaneda’s
husband’s benefit and denied placing the camera. He also denied waving a gun around,


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presenting the court with a consignment slip for two guns dated the same day as the
alleged incident.
          The court made a series of findings. It concluded Castaneda had not proven by
“clear and convincing evidence” that Ramirez had brandished a weapon at her. It also
concluded she had not proven by “clear and convincing evidence” that Ramirez had set
out the surveillance camera. However, it did find by “clear and convincing evidence”
that Ramirez had bombarded Castaneda with communications and said he would not stop
except by a court order. The court further found Castaneda was anxious and stressed by
this conduct. Thus, it “found by clear and convincing evidence that the level, nature and
tone of the contacts constituted harassment fueled by Ramirez’s obsession with the notion
that Ms. Castaneda has a lover whom she supports with funds stolen from her husband.”
          On appeal, Ramirez first attacks the settled statement as not being sufficiently
specific. Although Ramirez was represented by counsel in connection with the settled
statement, the record contains no objections to the court’s statement or request that it be
amended or augmented in any way. (See Committee to Defend Reproductive Rights v. A
Free Pregnancy Center (1991) 229 Cal.App.3d 633, 637–639 [appellant’s burden to
obtain adequate settled statement pertaining to issues raised on appeal]; Agnew v.
Contractors Safety Assn. (1963) 216 Cal.App.2d 154, 161–163.) In any case, the
statement adequately identifies the evidence that was before the court and on which it
relied.
          Ramirez next maintains the court improperly relied on “hearsay, speculation,
rumor and incompetent evidence.” However, the record contains no request in
connection with the settled statement that the court identify and discuss evidentiary issues
the parties may have raised at the hearing. Accordingly, there is no record of any
objection by either party to any of the evidence that was presented. Absent objection,
otherwise inadmissible evidence is properly considered. (See In re Tracy Z. (1987)
195 Cal.App.3d 107, 113 [judgment based on incompetent evidence may be affirmed if
no objection was lodged in trial court]; Flood v. Simpson (1975) 45 Cal.App.3d 644, 649
[“It is well settled that hearsay or other incompetent evidence . . . if received without

                                                3
proper objection or motion to strike is to be regarded as competent evidence in support of
an order or judgment.”].) And just as otherwise objectionable evidence can serve as
“substantial evidence” to support a finding, it can also serve as “clear and convincing”
evidence to support a finding.
       Ramirez argues the evidence cannot support a finding of “harassment,” in any
case, because it showed he had a “legitimate purpose” in communicating with Castaneda
and her husband, namely to apprise her husband of the asserted affair and theft of his
earnings. But Castaneda denied these accusations, and the court could reasonably find
the unrelenting accusations were unsubstantiated and alarming.
       Ramirez also contends his “reports” to “a social worker” of alleged malfeasance
by Castaneda were absolutely privileged under Civil Code section 47, as communications
intended to precipitate “official” investigatory action. Other than the words just quoted
which appear in the heading of his argument, Ramirez does not correlate his somewhat
lengthy discussion of section 47 to any evidence in the settled statement or elsewhere in
the record. The record, moreover, is far from clear; as best we can determine, Castaneda
may have been employed by some social services agency and, according to Castaneda,
Ramirez repeatedly called her employer and made false accusations in an attempt to get
her fired. In short, the appellate briefing is so unclear, we consider the issue waived.
(See Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 [failure to
support argument with relevant citations to record waives issue on appeal].)
Furthermore, Ramirez never made any claim of privilege in the trial court or objected to
Castaneda’s testimony about his communications with her employer. Thus, the issue has
been waived for that reason, as well. (See Cruey v. Gannett Co. (1998) 64 Cal.App.4th
356, 367 [section 47 litigation privilege is an affirmative defense that generally must be
pled in answer; and if not, must be raised in a manner that gives plaintiff notice and an
opportunity to respond].)
       Ramirez additionally argues no substantial evidence and no evidence of “clear and
convincing” character supports the restraining order. The testimony of Castaneda, alone,
is sufficient to support the order. (See Wise v. DLA Piper LLP (US) (2013)

                                              4
220 Cal.App.4th 1180, 1191; Conservatorship of Johnson (1991) 235 Cal.App.3d 693,
696–697 [testimony of one witness can meet “beyond reasonable doubt” standard].)
While Ramirez complains no evidence of the communications the trial court found
harassing were “attached to” Castaneda’s application for a restraining order, the trial
court stated in its settled statement that it considered all the written materials submitted
by both parties. These included all the exhibits Ramirez attached to his own opposition
which amply supported, along with Castaneda’s testimony, the court’s finding of a
barrage of communications reflecting obsessive accusations that Castaneda was stealing
from her husband and supporting a lover and herself in a luxury lifestyle. These
documents also reflected that Ramirez has long been at odds with Castaneda and her son
(since at least 2008), when her son allegedly beat him up and Ramirez moved out of a
house he had been sharing with them. Again, the record contains no evidentiary
objections to any of these materials and thus were properly considered by the court.
       The restraining order is affirmed.




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                                    _________________________
                                    Banke, J.


We concur:


_________________________
Humes, P. J.


_________________________
Dondero, J.




A143653, Castaneda v. Ramirez



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