Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County. Carlos P. Baker, Jr., Judge. (Los Angeles County Super. Ct. No. MS005692).
Law Offices of Susan D. Salisbury and Susan D. Salisbury for Plaintiff and Respondent.
Law Offices of Ulric E. J. Usher and Ulric E. J. Usher for Defendant and Appellant.
DOI TODD, J.
Donald B. Newton appeals from the trial court’s permanent restraining order issued pursuant to Code of Civil Procedure section 527.6, prohibiting him from harassing respondent Randall Blackburn. Appellant contends the restraining order was improperly granted because there was insufficient evidence that respondent suffered substantial emotional distress. He also contends his right to due process was violated because he did not receive the proposed statement of decision signed by the court. We affirm.
Unless otherwise noted, all statutory references shall be to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
Respondent was an owner of Commercial Fuel Recycling, LLC, which acquired the assets of another company, Butler Management, Inc., including a used oil transfer facility in Lancaster, California (the facility). Appellant was employed by Butler Management and became an employee of Butler Energy Group, LLC, which was formed to operate the facility. On May 11, 2007, appellant and several other employees resigned from their employment. Upon receiving the resignations, respondent traveled to California from his home in Nampa, Idaho. At 4:30 a.m. on May 16, 2007, respondent went to the facility with John Carlton and his son Leslie Carlton, who were members of Butler Energy Group, and his other son James Carlton. Upon discovering that the locks and chains to the facility had been changed, respondent called the sheriff, who reviewed respondent’s ownership documents and cut the chains. Respondent replaced the cut chains and locks with new ones he had brought with him.
Around 9:30 a.m. that same day, appellant arrived at the facility. Appellant’s height is listed as six feet, seven inches and his weight as 330 pounds. When he got out of his vehicle, appellant started yelling at respondent and repeatedly threatened to “get” him and to “kick [his] ass, give [him] an ass whopping.” Appellant then scaled the fence and began chasing respondent, swinging his arms violently, and calling him “a pussy, a wussy, a wimp, a coward” and other degrading names and kept challenging him to a physical confrontation. At one point appellant took a swing at respondent and narrowly missed hitting him. Appellant would chase after respondent for awhile, stop to rest, then start up again. Early on in the confrontation, respondent called out to James Carlton to call the sheriffs, but James had trouble reaching the sheriffs. When the sheriffs finally arrived approximately 45 minutes after appellant’s arrival, they handcuffed appellant and placed him in the back of a patrol car for a couple hours, then told him to leave the facility and not return.
John Carlton testified that during this confrontation appellant “was running around out of control . . . . As big as the man is, I was concerned that somebody would have to hurt him, and there would be a death or whatever. I knew if he ever got a chance to hit one of us, one lick was all it would take to incapacitate any of us.”
Respondent testified that it “was a very emotional time,” and that he was “very much” afraid that he was going to be physically injured. In response to the question, “Were you put in apprehension or fear of your physical safety by [appellant’s] acts?” respondent stated, “Yes, and I still am.” He also testified that he suffered emotional distress.
A couple hours after leaving the facility, appellant returned with Dennis Butler, who claimed to be the owner of the facility. They blocked the front gate with their vehicle and turned away at least one customer. Appellant again challenged respondent to engage in a physical confrontation and called him degrading names. The sheriffs were called back and after reviewing the parties’ documents told appellant to leave and not return, and suggested that respondent obtain a restraining order.
The following day, May 17, 2007, appellant returned to the facility to discuss business disputes with respondent. John and James Carlton were also present and the discussion lasted between five minutes and 30 minutes. Appellant was apologetic, and respondent admitted that he was not afraid of appellant during this meeting. But James Carlton testified that he was still afraid of appellant during this meeting, and he related that several months earlier he had participated in a three-way telephone conference with appellant and respondent in which appellant went into “a screaming fit of rage over the phone.”
Respondent applied for a temporary restraining order, which was issued May 23, 2007 and amended May 25, 2007, ordering appellant to stay 100 yards away from respondent and the facility. In his declaration in support of his petition respondent stated: “Because [appellant] has a pattern of violent outbursts and making threats I remain concerned about not only my welfare but that of my employees and customers. I am also concerned about possible sabotage which might cause serious environmental harm because we store hazardous waste at the facility.”
On or around May 24, 2007, appellant called respondent’s attorney and stated that a temporary restraining order was no good in Nampa, Idaho, that he intended to go to Nampa and there was nothing that could be done about it. Respondent’s attorney notified the Nampa police.
On May 28, 2007, apparently in violation of the temporary restraining order, appellant went back to the facility to feed his dogs and told John Carlton to tell respondent “that things were going to get ugly.”
An evidentiary hearing was held on June 13, 2007 and continued to June 19, 2007. The court heard testimony from both parties, respondent’s attorney, John and James Carlton, Dennis Butler, and two other employees. At the conclusion of the evidence and the arguments of counsel, the court granted the petition for a permanent restraining order. On July 23, 2007, the court issued a “Restraining Order After Hearing to Stop Harassment (CLETS)” on Judicial Council of California form CH-140, ordering that appellant not harass, attack, strike, threaten or assault respondent and stay 100 yards away from respondent and the facility until June 19, 2010. Also on July 23, 2007, the court issued a statement of decision, prepared by respondent’s counsel, finding that the requisite elements of civil harassment under section 527.6 had been met, including that on May 16, 2007 and thereafter appellant had made credible threats of violence and had engaged in a knowing and willful course of conduct. On August 9, 2007, the court granted respondent’s unopposed motion for attorney fees, awarding fees of approximately $9,000.
Appellant filed a notice of appeal on August 17, 2007. A month later, on September 17, 2007, appellant, claiming his counsel had never been served with the proposed statement of decision, filed objections to the statement. The court gave appellant 20 days to file his own proposed statement of decision and to set the matter for hearing with notice to respondent. Following a hearing on November 14, 2007, the court signed appellant’s proposed statement of decision, inexplicably reaching the opposite factual findings and legal conclusions of its earlier statement. On November 26, 2007, respondent filed a motion to withdraw the statement of decision prepared by appellant on the grounds that respondent’s attorney had no notice of the hearing, the court lacked jurisdiction to modify its findings of fact and conclusions of law after the notice of appeal was filed, and the court’s original findings were supported by the evidence. Following a hearing on January 17, 2008, the court granted the motion to withdraw the November 14, 2007 statement of decision.
The notice of appeal states that appellant is appealing from the orders entered on June 19, 2007 and August 9, 2007. The date of June 19, 2007 is the second day of the hearing and the minutes of that date direct respondent’s counsel to prepare the permanent restraining order. As noted, the permanent restraining order was signed and filed by the court on July 23, 2007. When a minute order expressly directs that a written order be prepared, an appeal does not lie from the minute order, but only from the later order. (Herrscher v. Herrscher (1953) 41 Cal.2d 300, 304; Cal. Rules of Court, rule 8.1042(d)(2).) Because we must liberally construe the notice of appeal in favor of its sufficiency (see Cal. Rules of Court, rule 8.100 (a)(2)), we construe the notice of appeal to appeal from the July 23, 2007 permanent restraining order. We also note that a restraining order, like any other order granting an injunction, is a separately appealable order. (McLellan v. McLellan (1972) 23 Cal.App.3d 343, 357; § 904.1, subd. (a)(6).)
DISCUSSION
I. Section 527.6 and Standard of Review.
Section 527.6 establishes a procedure for expedited injunctive relief to persons suffering harassment. (Schraer v. Berkeley Property Owners’ Assn. (1989) 207 Cal.App.3d 719, 730.) A temporary restraining order may be obtained, with or without notice, upon an affidavit showing reasonable proof of harassment and that great or irreparable harm would result to the plaintiff. (§ 527.6, subd. (c).) The temporary restraining order generally lasts for not more than 15 or 22 days, within which time a hearing must be held on the petition for a permanent injunction. (§ 527.6, subd. (d).) The injunction shall issue, for a term of not more than three years, if the judge finds unlawful harassment by clear and convincing evidence. (§ 527.6, subd. (d).)
“Harassment” is defined as “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that 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 plaintiff.” (§ 527.6, subd. (b).) “‘Unlawful violence’ is any assault or battery, or stalking as prohibited in Section 646.9 of the Penal Code, but shall not include lawful acts of self-defense or defense of others.” (§ 527.6, subd. (b)(1).) “‘Credible threat of violence’ is a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose.” (§ 527.6, subd. (b)(2).) “‘Course 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 following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, fax, or computer e-mail. Constitutionally protected activity is not included within the meaning of ‘course of conduct.’” (§ 527.6, subd. (b)(3).)
We review the issuance of an injunction under section 527.6 for substantial evidence. (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.) “We resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge in all legitimate and reasonable inferences to uphold the finding of the trial court if it is supported by substantial evidence which is reasonable, credible and of solid value. [Citations.]” (Ibid.)
II. The Restraining Order was Properly Granted.
Appellant contends the restraining order was improperly granted because there was insufficient evidence of the statutory requirement that respondent actually suffered “substantial emotional distress.” Section 527.6 requires that a person actually suffer substantial emotional distress where the harassment sought to be enjoined consists of a “knowing and willful course of conduct.” Appellant does not dispute that he otherwise engaged in a harassing course of conduct.
Appellant relies on Schild v. Rubin, supra, 232 Cal.App.3d 755, in which the court noted that section 527.6 does not define the phrase “substantial emotional distress.” (Schild v. Rubin, supra, at p. 762.) The court analogized to the tort of intentional infliction of emotional distress, in which “‘severe emotional distress’ means highly unpleasant mental suffering or anguish ‘from socially unacceptable conduct’ [citation], which entails such intense, enduring and nontrivial emotional distress that ‘no reasonable [person] . . . should be expected to endure it.’” (Id. at pp. 762–763.) In Schild, the court, not surprisingly, found there was insufficient evidence of substantial emotional distress where neighbors sought an injunction against adjacent neighbors who played recreational basketball in a residential backyard at reasonable times of the day for less than 30 minutes at a time. (Id. at p. 765.) The court found there was “no medical, psychological or other evidence in the record that the sounds of basketball playing, however offensive and annoying,” caused substantial emotional distress. (Id. at p. 763.)
But the facts in Schild were substantially different than those here. Appellant was not engaging in the innocuous sport of basketball. Rather, on May 16, 2007, appellant, who is identified as being six feet, seven inches tall and weighing 330 pounds, repeatedly yelled at respondent that he was going to “get” him, scaled a fence and then proceeded to chase after appellant for approximately 45 minutes, continually yelling and shouting at respondent and repeatedly threatening to harm him, waving his arms violently and even took a swing at respondent, causing respondent to seek help from the sheriffs. Respondent testified that it was a “very emotional time” for him, that he was afraid for his safety, that he was still afraid for his safety at the time of his testimony and that he suffered “emotional distress.”
“The role of the court in a section 527.6 hearing does not differ from its role in other trial settings where the court is the trier of fact. It is the function of the trial court to draw inferences from the evidence and to base its findings thereon. [Citations.] Inferences may be drawn not only from the evidence but from the demeanor of witnesses and their manner of testifying.” (Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1110 [court can draw the conclusion that the plaintiff suffered substantial emotional distress based on the evidence of harassment, without any direct testimony from the plaintiff].) See also Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1415, where the reviewing court found substantial evidence that the plaintiff actually suffered substantial emotional distress as a result of the defendant’s conduct, including three vile and vitriolic letters he had written to the plaintiff’s daughter, based on the plaintiff’s “statements and demeanor in court.” The plaintiff had testified that she found the defendant’s conduct “disturbing,” that she took “very seriously” his threat to kill and that she felt “harassed and annoyed by [his] conduct.” (Id. at p. 1407.)
Moreover, we note that Schild was decided prior to the 1998 legislative amendment to section 527.6, which expanded the definition of harassment to include a “credible threat of violence” and “unlawful violence.” (Stats. 1998, ch. 581, § 2, p. 3159; Russell v. Douvan (2003) 112 Cal.App.4th 399, 402.) Prior to the amendment, the statute included only a “course of conduct” in the definition of harassment. Both prior and subsequent to the amendment, the statute has provided that to constitute harassment, a 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 plaintiff.” (§ 527.6, subd. (b).) The current version defines “credible threat of violence” as “a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose.” (§ 527.6, subd. (b)(2).) (Italics added.) Thus, even if respondent had not actually suffered substantial emotional distress, the restraining order would still have been properly granted based on appellant’s credible threats of violence.
Not only did appellant repeatedly threaten respondent with physical harm on May 16, 2007, but thereafter he told respondent’s attorney that a restraining order was no good in Nampa, Idaho, where respondent lived, and that there was nothing that could be done to prevent him from going to Nampa. Appellant also told John Carlton to tell respondent that things were going to get ugly. In the context of appellant’s prior behavior, such threats would place a reasonable person in fear for his safety and served no legitimate purpose. In light of this evidence, we find no merit to appellant’s additional argument that there were no threats of future harm to respondent. Appellant points to respondent’s testimony that he was not afraid of appellant during the meeting on May 17, 2007. But respondent was not alone with appellant during this meeting, appellant was apologetic during the meeting, and the meeting was of short duration. And following the meeting, appellant continued to threaten respondent. “If [] ‘substantial’ evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment will be affirmed. In brief, the appellate court ordinarily looks only at the evidence supporting the successful party, and disregards the contrary showing.” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 370, p. 427 (italics added).)
Accordingly, we find no merit to appellant’s contention that the restraining order was improperly granted.
III. Statement of Decision.
Appellant next complains that the trial court failed to make findings of fact at the hearing and that it signed a statement of decision prepared by respondent’s attorney without notice to him, which he contends violated his right to due process.
Section 527.6 does not require a statement of the court’s findings of fact, “nor does it require specific findings of the statutory elements of harassment . . . .” (Ensworth v. Mullvain, supra, 224 Cal.App.3d at p. 1112.) The granting of the injunction itself necessarily implies that the trial court found the requisite elements of harassment. (Ibid.)
Also, the copy of the proposed statement of decision prepared by respondent’s attorney contained in the appellate record includes a proof of service showing that it was mailed to appellant’s attorney. But even assuming, for the sake of argument, that appellant did not timely receive the proposed statement of decision, in light of our conclusion that the restraining order was properly granted, any error in notice was harmless.
IV. Attorney Fees.
The trial court awarded respondent attorney fees of approximately $9,000. Appellant did not oppose an award of attorney fees below, but contends on appeal that if we dissolve the injunction, the award of attorney fees should likewise be reversed. Section 527.6, subdivision (i) provides that the prevailing party may be awarded attorney fees and costs. Because we are not dissolving the injunction, there is no basis for reversing the award of attorney fees.
DISPOSITION
The restraining order is affirmed. Respondent is entitled to his costs on appeal.
We concur: BOREN, P. J., CHAVEZ, J.