Opinion
H036318
12-27-2011
SUSAN AMES COLLEY, Plaintiff and Respondent, v. DAVID LAWRENCE KINGSLEY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Cruz County Super. Ct. No. CV168786)
I. INTRODUCTION
Defendant David Lawrence Kingsley appeals from an order entered under Code of Civil Procedure section 527.6, prohibiting him from harassing his ex-mother-in-law, plaintiff Susan Ames Colley. The order also protects plaintiff's daughter, who is defendant's ex-wife and the mother of his two minor children.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
On appeal, we understand defendant, a self-represented litigant, to contend that 1) the trial court erred by failing to allow additional testimony by him at the hearing on plaintiff's request for the order; 2) there was not substantial evidence that he either posed a threat of future harm to plaintiff, or engaged in a knowing and willful course of conduct, or that plaintiff suffered, or that a reasonable person would suffer, substantial emotional distress; 3) the evidence was insufficient under the clear and convincing evidence standard; 4) the court failed to follow certain procedures set forth in a California judges benchguide; and 5) the court failed to make an independent inquiry as to certain matters.
Foe reasons that we will explain, we will affirm the order.
II. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff's Request for Orders to Stop Harassment
Plaintiff's daughter and defendant were previously married but are now divorced. They have two minor children. On September 13, 2010, plaintiff, who is defendant's ex-mother-in-law and a self-represented litigant, filed a Judicial Council form CH-100 request for orders to stop harassment. Plaintiff sought to protect herself and her daughter from defendant.
The record on appeal does not contain a complete copy of Colley's request. On our own motion, we augment the record on appeal to include Colley's Judicial Council form CH-100 request for orders to stop harassment, including a two-page attachment, which was filed on September 13, 2010. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
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In the request, which plaintiff signed under penalty of perjury, she explained that defendant had "been increasingly verbally abusive" to her, "usually at [her] house and in front of [her] grandchildren," who were ages 11 and 12. Plaintiff believed that "the reason for [defendant's] excessive anger" towards her that year had to do with him previously living on her property. Plaintiff explained that defendant had been homeless since May 2009. In December 2009, plaintiff allowed defendant to stay on her property in a studio apartment for six weeks pursuant to a financial arrangement between them. According to plaintiff, defendant "apparently felt he should be able to stay on . . . indefinitely" for a certain monetary rate. However, plaintiff could rent the studio apartment to someone else for several hundred dollars more than what defendant was paying. Her daughter (and two grandchildren) were currently living in the studio apartment and were paying more than defendant while also "managing [plaintiff's] rental in the front part of the house." Plaintiff further stated that when she "initially left town in late December 2009," she told defendant that she "might be gone a week, perhaps months," to visit her ex-husband who was dying of cancer in another state. According to plaintiff, she "offered [defendant] the place as a favor and he must have clearly understood that this was not an ongoing arrangement as [she] told him that [she] could be returning at any time."
Plaintiff stated that her ex-husband died in early February 2010, and she returned to Santa Cruz the day after his death. According to plaintiff, defendant "was particularly abusive" that day to her and her daughter, "who was grieving over the loss of her dad." Plaintiff believed defendant's conduct was because of his "reluctance to move from [her] studio apartment." Plaintiff's daughter had paid defendant to help her move into the studio apartment that day. While at a "storage locker," defendant "became so verbally abusive" to plaintiff's daughter that she began "walking home across town in the rain." Plaintiff received a call from her daughter and intended to go pick her up. As plaintiff and her grandchildren got into the car, defendant "suddenly appeared, opened a door, and loudly proclaimed that [plaintiff's daughter] was a 'f___king bitch,' etc. [Plaintiff] asked him not to talk that way in front of the children. He then complained of a list of wrongs that [plaintiff's daughter] and [plaintiff], allegedly, had perpetrated against him which had caused him to quit his job, etc. [Plaintiff] told him to stop being such a cry baby. He responded 4 to 5 times 'suck my dick.' The children, who are sensitive, well-behaved 11 and 12 year olds, were crushed and in tears. They are repeatedly traumatized by his behavior."
Plaintiff explained that her daughter "has been increasingly dependent [on defendant] for childcare," because plaintiff had been out-of-state for "much of the year" to visit her ex-husband (through early February) and her ill mother (from March to early August). Plaintiff stated that when defendant "babysit[s]" the children, he uses plaintiff's daughter's studio apartment to "rest, eat, use the internet, etc."
According to plaintiff, she was subsequently subjected to "verbal abuse" by defendant on August 20, 2010. On this occasion, she passed defendant in the front yard of her house as he was exiting his car. He "always parks in [her] driveway when he can." Plaintiff, who had three tenants living in the "front house," stated to defendant "in a calm voice, 'Maybe you could park somewhere else as I like to keep the driveway available for my tenants.' " Defendant yelled in response, " 'Vicious bitch, etc.' " Plaintiff "continued walking to the back of the house, ignoring his outburst. The handyman, who was working on the premises, the neighbors, the tenants, and [plaintiff's] daughter and grandchildren heard this outburst. [Plaintiff's] daughter and the grandchildren came to the front and quieted him down. Reportedly, he was using language like 'f___king bitch,' 'vindictive scum,' etc."
Plaintiff stated that the most recent incident occurred on September 3, 2010, when defendant "erupted at [her] . . . with 'liar, cheat, scum of the earth, etc.' " This occurred with "no provocation" and in front of her two grandchildren while they were in her daughter's studio apartment. Her grandchildren "were in tears." The next day, plaintiff went to her daughter's residence around noon. The children had not told their mother what had happened but, according to plaintiff, her daughter "knew something was very wrong because her . . . son . . . was pale, did not eat breakfast, and had been sitting outside by himself just staring at the ground all that morning." Plaintiff told her daughter about the incident that had occurred the previous day.
Plaintiff stated that her daughter had been subjected to "continual verbal abuse" by defendant during and after their marriage. When plaintiff "witnessed" the conduct, she has "said something to him about it such as 'Please don't talk in such an abusive manner' and he has responded with verbal attacks." Plaintiff explained that "as a rule" she "avoid[s] him and up to this year his abuse was centered on [her] daughter and has included throwing her things" and "temper tantrums." Plaintiff stated, "He is causing my daughter and grandchildren emotional damage. I have found the relatively mild abuse I have endured this year very painful and hard to shake."
Plaintiff indicated that she wanted a restraining order to protect her daughter, her grandchildren, and herself from defendant's "abuse at the house." She also wanted him to stay away from her tenants. She stated that that defendant "has claimed to keep a loaded gun and always keeps a baseball bat . . . in the backseat of his car." She explained that defendant "did not threaten violence but his behavior is threatening." She further stated that he had engaged "in a course of conduct that harassed [her] and caused substantial emotional distress," and that the conduct "seriously alarm[ed], annoy[ed], or harass[ed]" her.
Defendant's Answer
On September 27, 2010, defendant filed a Judicial Council form CH-110 answer to plaintiff's request for orders to stop harassment. In the answer, which was signed under penalty of perjury, defendant denied harassing plaintiff. He also denied threatening her, or telling her that he had a loaded gun and a baseball bat. Further, defendant disputed the details and financial arrangement concerning him living in plaintiff's house, and he attached a copy of what he described as plaintiff's "rental instructions." He felt plaintiff was "sneaky and dishonest" in her dealings with him concerning the arrangement for living in her house.
In his answer, defendant provided his version of the events that were described by plaintiff. Regarding helping plaintiff's daughter move in early February 2010, defendant indicated that he kept telling plaintiff's daughter throughout the afternoon that he needed to leave. He denied being verbally abusive. Eventually defendant told plaintiff's daughter that he was leaving, although he "didn't really mean it." She got angry, refused any further help, and refused a ride home. When defendant arrived at plaintiff's house, he told plaintiff that her daughter was walking home. When plaintiff asked why, defendant stated, " 'because she's f__ing crazy.' " Defendant admitted in his answer to the court that this was "not my finest moment." Plaintiff and defendant thereafter exchanged words, including plaintiff calling defendant a "creep." Defendant told his children that he did not "want to have anything to do with" their grandmother.
Regarding the August 2010 parking incident, defendant stated that he ignored a greeting by plaintiff. Plaintiff thereafter indicated that she did not want him parking in her driveway, and he responded, " 'whatever.' " When he subsequently explained to plaintiff's daughter why he had to move his car, he referred to plaintiff as a " 'vindictive bitch.' " In his answer filed with the court, defendant stated that he "regret[ted]" making the statement but the incident "was not . . . without provocation" as plaintiff claimed, and he "would be happy if [plaintiff] never tried to interact with" him.
Regarding the September 2010 incident inside plaintiff's daughter's residence, defendant stated that plaintiff had greeted him. He "responded" by telling her that he "did not like her and [he] thought she is a liar and a cheat and [he] did not want to talk with her." He also "questioned her authority to tell [him] not to park in the driveway," although she owned the house that her daughter was renting. Plaintiff and defendant continued exchanging words, including plaintiff calling defendant " 'evil.' " Defendant walked to the kitchen and plaintiff followed, "berating" him. Defendant told her that he wanted to be "left alone" and did not want to have "anything to do with" her. Defendant's children were present during the incident.
Defendant stated that plaintiff's daughter, his ex-wife, "has always preferred" that he "watch" the children "whenever possible," and he has been the "primary babysitter" since they separated. Defendant contended that plaintiff's daughter had been "violent" towards him, and that she had recently kicked him repeatedly in front of the children. He called the police and "did not respond physically." Plaintiff's daughter was "cited," but she later "cried" to the police chief and the prosecutor dropped the "charges." Defendant also contended that plaintiff had been physically abusive to her daughter.
Defendant indicated that he had never been violent with plaintiff's daughter and that he had never threatened her or plaintiff. He stated in his answer: "I would like the court to consider that this restraining order is not intended to protect anyone but to punish me for telling [plaintiff] I didn't like her and don't want to talk with her. I admit I don't like her but the only way I had previously shown it was the silent treatment. . . . To show that this action is designed to punish me I submit that [plaintiff] is in Washington state and has been since a day or two after she filed the restraining order. I could not harm her if I wanted to. . . . I am nonviolent and never use force unless physically attacked. I don't have to get revenge for the things [plaintiff] has done to me but I will not pretend they did not happen. If she will stay away from me it would improve my quality of life and I will do my best to stay out of her way. My children live in the house that [plaintiff] owns but [she] does not live there. I will avoid [plaintiff] as I have given every opportunity."
The Hearing on Plaintiff's Request
On September 28, 2010, a hearing was held on plaintiff's request for orders to stop harassment. Plaintiff, her daughter, and defendant were sworn in and each made statements to the court.
Plaintiff testified that, although she had been away from her house "quite a bit," she had recently been staying in a "back unit" for several weeks. Further, she had been, and would be, going back and forth between her residence and an out-of-state location to visit an ill family member. Plaintiff currently had three tenants living in "the front of the house," and her daughter and grandchildren rent a "separate unit from the back." She explained the arrangement that she previously had with defendant to stay at her place. Plaintiff explained that defendant's "verbal abuse" had "escalated" towards her in the last year and was "quite ugly." She indicated that defendant's conduct occurred in front of her grandchildren and was "well laced with obscenities." Plaintiff stated that her grandchildren "are very sensitive, good people, and they get very upset when they hear it . . . ." Plaintiff testified about the incidents involving defendant that were described in her request. Regarding the driveway incident, plaintiff added that defendant was "screaming really crude, rude things, very loudly in front of [her] house for [her] tenants to hear. The workman that was in the back of the house left. He was upset by this. It was very loud." Plaintiff stated, "It has been escalating. [Defendant] seems to lose control when he gets mad. He's livid. . . . And I feel like I'm the target now for whatever reason."
Plaintiff's daughter testified that "the thing that most concern[ed]" her was that "these violent outbursts always happen in front of the kids." She explained that she was "watching the kids with the aftermath of this and it's just not fair to them." Defendant had been "using" her house "more" since he became homeless. She stated, "the outbursts keep happening in front of the kids and now they're starting to get directed at my mom, and it's not fair to the kids and I don't think it's healthy for them." Plaintiff's daughter explained that she did not want defendant to "leave altogether" as he had indicated that he might do. She believed that the children "love their dad and they want him around and he is a good dad in a lot of ways, but this is just getting unhealthy." Plaintiff's daughter further testified, "I've watched the outbursts. They are very violent and he's scary when he does that. And I don't know if he doesn't realize he's scary but he's very scary, very threatening, and he's doing it to my mom . . . ." In response to a question from the court, plaintiff's daughter indicated that defendant's "outbursts in which he makes negative references to" plaintiff also occurred when the children were present but plaintiff was not.
When defendant addressed the trial court, he provided his version of the various incidents involving plaintiff, as well as the circumstances regarding him living at her residence. Regarding the driveway incident, defendant admitted that he referred to plaintiff as "F'ing vindictive" when his children asked why he had to move his car. Defendant testified, "I swear sometimes. I admit that. You know, it's not . . . probably optimal behavior." Defendant denied being physically violent to plaintiff or threatening her. Defendant stated that if plaintiff and her daughter wanted him to stay away, "they don't need a restraining order. I won't go near them. I've never threatened them. I don't feel a restraining order is necessary or justified." He further stated: "I think in general [plaintiff] has instigated all of the interactions between she and myself. I really have tried to just ignore her and I don't want to have anything to do with her and I would be happy if we never spoke to each other again, but I'm not -- on the other hand, I'm not going to pretend that she hasn't wronged me and say hi . . . every time I pass her in the hall. I just want to be left alone. I want to mind my own business. I don't want to hurt anybody. I'm nonviolent. I've never done anything . . . violent towards them." Defendant later stated: "I am not a threatening guy. I'm a big guy but I'm aware of that and I never, ever want to physically intimidate someone. It's not my nature. I want to be able to state with logic and reason and facts my position, and that's all I think I've done. I think I've stated I swore a couple of times, and I do admit that and regret it. . . . I would be happy to stay away. I won't go anywhere near the house. I question her authority to have a restraining order. The police said she can't do that when the police came."
After defendant addressed the trial court, the court asked plaintiff whether she had "[a]ny response." Among other things, plaintiff indicated that the order she sought against defendant had "nothing to do with" him ignoring her. Rather, it was "[h]is violent verbal attacks against [her] and in front of the children, that really bothered" her. Plaintiff also asserted that defendant "does intimidate people. He's big."
After plaintiff finished addressing the trial court, the court asked plaintiff's daughter whether she had "anything else" that she "want[ed] to add." Among other things, plaintiff's daughter stated that defendant had "never actually swung" at her "but this verbal stuff is so awful . . . ." She stated that she had gone to a therapist for a year and talked "to the therapist about ways to deal with [defendant] because [she] just didn't know how to deal with him." Plaintiff indicated to the court that she was "not trying to cut off [defendant's] ability to see the kids," and that she would "be so happy" if he took the kids to a park, for example, rather than coming over to her residence. Plaintiff's daughter later explained that "it's escalated since he's not had a house and it's now going over to my mom and I'm afraid it's going to go maybe to the tenants. It just seems like it just gets directed and it's really scary and could be very scary." Plaintiff's daughter believed that defendant "has a real nice" and "friendly side" to his personality, but he also has "this really violent outburst side and you don't know where it's going to go." She acknowledged that defendant had "never really done anything yet but he's so frightening that you do feel like you need to protect yourself."
After plaintiff's daughter finished addressing the trial court, defendant asked the court, "May I?" The court responded, "No."
The trial court then stated that, based on "everything in the written documents, including [defendant's] own documents and the testimony here," defendant presented himself "as a fairly classic passive-aggressive person." The court told defendant that he "raise[d] a colorable argument that [plaintiff] shouldn't be allowed to kick [him] out of the house because [her daughter] is a tenant there, but the fact is [her daughter] is not objecting to this order and [plaintiff] does have the right to come there and live there whenever she wants." The court further explained that "nobody should have to tolerate" the conduct that defendant "displayed in front of [his] children involving [his] feelings about [his] mother-in-law . . . ." The court stated that it was granting a restraining order for a three-year period requiring defendant to stay away from plaintiff and the property where her daughter and other tenants lived, because the court did not "see any way of avoiding something bad happening in the future."
The Order to Stop Harassment
The order filed by the court on September 28, 2010, generally prohibits defendant from harassing or contacting plaintiff, and requires defendant to be at least 100 yards away from plaintiff, her home, her vehicle, and the property where her tenants live. Plaintiff's daughter is also protected by the order, which expires in September 2013. In the order, defendant is described as being over six feet tall and weighing more than 300 pounds. Defendant filed a timely notice of appeal from the order.
III. DISCUSSION
Before considering defendant's contentions on appeal, we first provide an overview of section 527.6, the statute under which plaintiff sought and obtained an order against defendant prohibiting harassment. Under section 527.6, "[a] person who has suffered harassment . . . may seek a temporary restraining order and an injunction prohibiting harassment as provided in this section." (§ 527.6, subd. (a).) "For the purposes of this section, 'harassment' is 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." (Id., subd. (b).) A " '[c]redible 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." (Id., subd. (b)(2).) 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 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.' " (Id., subd. (b)(3).)
Upon the filing of a petition for an injunction under section 527.6, the plaintiff may obtain a temporary restraining order. (§ 527.6, subd. (c).) A hearing must be held on the petition for an injunction within a specified time thereafter. (Id., subd. (d).) "The defendant may file a response that explains, excuses, justifies, or denies the alleged harassment . . . . At the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment." (Ibid.)
A. Failure to Allow Additional Testimony by Defendant
On appeal, we understand defendant to contend that, based on section 527.6 and Schraer v. Berkeley Property Owners' Assn. (1989) 207 Cal.App.3d 719 (Schraer), the trial court erred in precluding him from offering additional testimony, particularly after plaintiff and her daughter were given the second opportunity to make statements to the court.
" ' "Broadly speaking, an appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion." ' [Citation.] The court's ' "discretion is only abused where there is a clear showing [it] exceeded the bounds of reason, all of the circumstances being considered." ' [Citation.] However, even where a trial court improperly excludes evidence, the error does not require reversal of the judgment unless such error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.) [The appellant] has the burden to demonstrate it is reasonably probable a more favorable result would have been reached absent the error. [Citation.]" (Poniktera v. Seiler (2010) 181 Cal.App.4th 121, 142.)
Section 527.6, which provides for a temporary restraining order and an injunction to protect a person who has suffered harassment, "was passed to supplement the existing common law torts of invasion of privacy and intentional infliction of emotional distress by providing quick relief to harassment victims threatened with great or irreparable injury. [Citation.] It was enacted to protect the individual's right to pursue safety, happiness and privacy as guaranteed by the California Constitution. [Citation.]" (Grant v. Clampitt (1997) 56 Cal.App.4th 586, 591.) "[A]lthough the procedures set forth in the harassment statute are expedited, they contain certain important due process safeguards. Most notably, a person charged with harassment is given a full opportunity to present his or her case, with the judge required to receive relevant testimony . . . ." (Schraer, supra, 207 Cal.App.3d at p. 730.) In this regard, section 527.6 provides that, at the hearing on the petition for an injunction, "the judge shall receive any testimony that is relevant." (§ 527.6, subd. (d).)
In Schraer, the Court of Appeal determined that the trial court erred by refusing to permit the introduction of any oral testimony. (Schraer, supra, 207 Cal.App.3d at p. 731.) The Court of Appeal explained that "a full-fledged evidentiary hearing with oral testimony from all sides may not be necessary in all cases. [Citations.]" (Id. at p. 733, fn. 6.) However, "under the express language of the statute and in accordance with the requirements of due process, . . . the trial court in a harassment proceeding may not arbitrarily limit the evidence presented to written testimony only, when relevant oral testimony is offered. Both sides may offer evidence by . . . oral testimony, and the court shall receive such evidence, subject only to such reasonable limitations as are necessary to conserve the expeditious nature of the harassment procedure set forth by Code of Civil Procedure section 527.6." (Schraer, at p. 733, fn. 6.)
In Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105 (Ensworth), both parties testified at the hearing on the petition for an injunction. (Id. at pp. 1108-1109.) The appellate court determined that, "[b]ecause the trial court in this case heard testimony from both parties before issuing the injunction, the hearing did not violate the dictates of Schraer." (Id. at p. 1110.)
In this case, we determine that defendant fails to establish error warranting reversal based on the trial court's refusal to allow further testimony from him. After plaintiff and her daughter initially addressed the court, defendant provided oral testimony to the court. Defendant's testimony covers several pages of the reporter's transcript. Nothing in the record suggests that defendant was deprived of an opportunity to present his case.
Although defendant was precluded from offering further testimony after plaintiff and her daughter were given a second opportunity to address the trial court, defendant fails to establish that the court abused its discretion in refusing to allow further testimony, or that the court's exclusion of further testimony otherwise warrants reversal of the order. For example, defendant contends that he should have been allowed to further testify about an incident involving plaintiff's daughter. During the hearing, defendant testified that plaintiff's daughter on one occasion "hit" and "kicked" him, that the police cited her, and that the charges against her were eventually "drop[ped]." After defendant testified, plaintiff's daughter testified about the incident, stating that she "pushed [defendant] out of the house." On appeal, defendant argues that if he had been allowed to provide further testimony thereafter, "he could have shown the court through the police report that the [plaintiff's] daughter had in fact admitted to punching and kicking him." To the extent this incident was relevant to whether plaintiff and her daughter should be protected from defendant, defendant's proposed testimony was cumulative. Defendant had already testified about the incident, including that plaintiff's daughter had "hit" and "kicked" him. " '[T]he exclusion of evidence which has only a cumulative effect will not justify reversal on appeal. . . .' [Citations.]" (Horn v. General Motors Corp. (1976) 17 Cal.3d 359, 371.)
Defendant next contends that, if given the opportunity by the court, he "could have asked [plaintiff] if she had ever asked any of her other tenant's guests not to park in the driveway or did she only ask" him. Defendant fails to articulate the relevance of any response by plaintiff to this proposed question.
Lastly, we understand defendant to argue that he should have been allowed to provide testimony regarding the financial arrangement that he had with plaintiff when he temporarily stayed at her house. Plaintiff described the financial arrangement in her request filed with the trial court and in her initial testimony at the hearing on the request. As we have explained, defendant was given a full opportunity to address the court and testify thereafter. Defendant could have offered the proposed testimony regarding the parties' financial arrangement at that time, assuming it was relevant. We find no error in the court's failure to allow further testimony by defendant on this point after plaintiff was given the second opportunity to address the court.
Accordingly, we determine that defendant fails to establish error warranting reversal based on the trial court's refusal to allow further testimony by him.
B. Evidence of Threat of Future Harm
We understand defendant to argue that there was an absence of evidence that he posed a threat of future harm to plaintiff. Defendant contends that he "advised" the trial court that "he had no intention of future contact," plaintiff "no longer resides in California," she acknowledged that he did not threaten violence, she "admits" that she had initiated contact with him, he never "retaliated" when plaintiff's daughter "committed battery" against him, and he has "show[n] . . . respect for the rule of law" by calling the police when plaintiff told him that he could not enter her daughter's residence. Without any citation to the record, he also asserts that he "broke all contact voluntarily as soon as [plaintiff's] daughter . . . requested it."
"In assessing whether substantial evidence supports the requisite elements of willful harassment, as defined in Code of Civil Procedure section 527.6, we review the evidence before the trial court in accordance with the customary rules of appellate review. 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.]" (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762 (Schild).) Thus, "[u]nder the substantial evidence standard of review, our review begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the trial court's factual determinations. [Citations.]" (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 501 (Ermoian).)
A trial court may not issue an injunction under section 527.6 unless there is a threat of future harm by the defendant. (Russell v. Douvan (2003) 112 Cal.App.4th 399, 401.) " '[I]njunctive relief lies only to prevent threatened injury and has no application to wrongs that have been completed. [Citation.]' " (Ibid., italics omitted.) " ' "Thus, to authorize the issuance of an injunction, it must appear with reasonable certainty that the wrongful acts will be continued or repeated." [Citation.]' [Citation.]" (Ibid.; see also id. at p. 402.) The harm proscribed by section 527.6 is "harassment" (§ 527.6, subd. (a)), which includes not only unlawful violence or a credible threat of violence, but also "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" (id., subd. (b)).
In this case, substantial evidence supports the trial court's finding of a threat of future harm or harassment by defendant. Defendant's verbal attacks on plaintiff occurred on or near her property, defendant's children lived on the property, and defendant assisted in watching the children. Under these circumstances, although plaintiff anticipated being out-of-state for one or more periods of time, future contact between plaintiff and defendant appeared inevitable. Further, defendant admitted his dislike of plaintiff. Although he asserted at the court hearing that he had "tried to just ignore her," the evidence reflected that defendant had, on multiple occasions, directed loud verbal attacks at plaintiff, at times with vulgar language and in the presence of the children, and often after only a brief interaction with plaintiff concerning a mundane topic. Given defendant's apparent strong dislike of plaintiff, the circumstances under which defendant's verbal attacks occurred, and the certainty that plaintiff and defendant would continue to cross paths due to the location of the grandchildren's residence, substantial evidence supports the court's conclusion that it was highly likely that defendant's harassment of plaintiff would be repeated in the absence of an order prohibiting him from doing so.
C. Evidence of Knowing and Willful Course of Conduct
In support of her request for orders to stop harassment, plaintiff identified three incidents in particular in which defendant had engaged in verbal abuse—in her car in February 2010, on her driveway in August 2010, and in the residence that her daughter rented from her in September 2010. On appeal, we understand defendant to argue that he did not "initiate" any contact with plaintiff after the first incident in February 2010, and therefore substantial evidence does not support the conclusion that he engaged in a knowing and willful course of conduct as required by section 527.6.
Harassment proscribed by section 527.6 includes "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." (§ 527.6, subd. (b).) 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 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.' " (Id., subd. (b)(3).)
Defendant does not make any contention that his conduct was not knowing or willful. He only asserts that he did not "initiate" contact after the first incident. We question defendant's assertion that he did not "initiate" contact with plaintiff, given that the later incidents, like the February 2010 incident, occurred after defendant appeared on or near plaintiff's property. Further, defendant fails to provide any legal authority supporting the proposition that the "knowing and willful course of conduct" requirement (§ 527.6, subd. (b)) is not met if, on some occasions, the first verbal statement is made by the plaintiff. Moreover, the evidence in the record supports the inference that defendant used the circumstance of his ex-wife and children living on plaintiff's property, which caused him to come in contact with plaintiff, as opportunities to launch verbal attacks on plaintiff. Defendant admitted that he disliked plaintiff and stated that he was "not going to pretend that she hasn't wronged me and say hi . . . every time I pass her in the hall." The repeated attacks on plaintiff due to an apparent dislike of her, and often after only a brief comment by plaintiff concerning a mundane topic, support a finding that defendant engaged in a "pattern of conduct composed of a series of acts over a period of time . . . evidencing a continuity of purpose." (§ 527.6, subd. (b)(3).) We therefore conclude that substantial evidence supports the trial court's implied finding of "a knowing and willful course of conduct" by defendant under section 527.6, subdivision (b).
D. Substantial Emotional Distress
We understand defendant to next contend that there was no evidence plaintiff suffered substantial emotional distress and that his behavior was not sufficient to cause a reasonable person to suffer substantial emotional distress. On the latter point, defendant contends, without any citation to legal authority, that "[y]ou need more than three instances of swearing to cause a reasonable person to suffer substantial emotional distress."
As we have stated, harassment prohibited by section 527.6 includes "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), italics added.) In Schild, the appellate court observed that "in the analogous context of the tort of intentional infliction of emotional distress, the similar phrase '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] in a civilized society should be expected to endure it.' [Citations.]" (Schild, supra, 232 Cal.App.3d at pp. 762-763; see CACI No. 1604 [severe emotional distress includes "suffering, anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, and shame" and "must be so substantial or long lasting that no reasonable person in a civilized society should be expected to bear it"].)
In this case, plaintiff stated that defendant had engaged "in a course of conduct that harassed [her] and caused substantial emotional distress." Plaintiff provided several examples of defendant's conduct and described the effect that it had on her grandchildren and, in turn, on her. In the February 2010 incident in plaintiff's car, defendant told plaintiff four or five times " 'suck my dick' " in front of her grandchildren. Plaintiff explained that her grandchildren "are sensitive, well-behaved 11 and 12 year olds" who "were crushed and in tears. They are repeatedly traumatized by his behavior." In the August 2010 incident in plaintiff's driveway, defendant yelled words to the effect of " '[v]icious bitch' " and other "really crude, rude things, very loudly in front of [her] house for [her] tenants to hear." Even the "workman" who "was in the back of the house left. He was upset by this." Plaintiff's daughter and grandchildren also heard the outburst. In the September 2010 incident in plaintiff's daughter's residence, defendant "erupted" with "no provocation" and in front of plaintiff's grandchildren "with 'liar, cheat, scum of the earth, etc.' " The grandchildren "were in tears." Plaintiff knew her grandson continued to be affected by the incident the next day because he "was pale, did not eat breakfast, and had been sitting outside by himself just staring at the ground all that morning." Regarding the effect defendant's conduct was having on her and her family, plaintiff stated, "He is causing my daughter and grandchildren emotional damage. I have found the relatively mild abuse I have endured this year very painful and hard to shake." At the hearing, she explained that defendant's "verbal abuse" had "escalated" towards her in the last year and was "quite ugly." She indicated that defendant's conduct occurred in front of her grandchildren and was "well laced with obscenities." Plaintiff stated that her grandchildren "are very sensitive, good people, and they get very upset when they hear it . . . ." She explained that she was seeking a restraining order because it was defendant's "violent verbal attacks against [her] and in front of the children, that really bothered" her. In granting the order prohibiting harassment, the trial court explained that "nobody should have to tolerate" the conduct that defendant "displayed in front of [his] children involving [his] feelings about [his] mother-in-law . . . ."
In view of the record, we determine that substantial evidence supports the trial court's implied finding that plaintiff suffered substantial emotional distress as a result of defendant's conduct. The nature of defendant's statements to plaintiff; the circumstances under which they were made, including the presence of plaintiff's minor grandchildren; the visible effect on the grandchildren as witnessed by plaintiff; and plaintiff's own statements concerning the effect defendant's conduct had on her provide ample evidence that she suffered substantial emotional distress.
Defendant fails to cite any legal authority supporting his conclusory argument that there must be "more than three instances of swearing to cause a reasonable person to suffer substantial emotional distress." Therefore, as to the issue of whether defendant's course of conduct would cause a reasonable person to suffer substantial emotional distress, we deem the issue to have been abandoned by defendant. (See Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 (Landry) [an issue that is "unsupported by pertinent or cognizable legal argument . . . may be deemed abandoned and discussion by the reviewing court is unnecessary"]; People ex rel. 20th Century Ins. Co. v. Building Permit Consultants, Inc. (2000) 86 Cal.App.4th 280, 284 (20th Century Ins. Co.) [issue on appeal was abandoned where discussion was "conclusory" and lacked a citation to supporting authority].)
E. Clear and Convincing Evidence
We understand defendant to next argue that plaintiff's evidence was insufficient for the trial court to find by clear and convincing evidence that he had unlawfully harassed her. In making this argument, defendant appears to rely on a "script" from a California judges benchguide that offers a description of the clear and convincing standard. (See Cal. Judges Benchguides, Civil Law and Procedure, Benchguide 20, Injunctions Prohibiting Civil Harassment and Workplace/Postsecondary School Violence (CJER 2010 rev.) § 20.63, p. 20-35 (Cal. Judges Benchguides).) Defendant asserts that "[t]he preponderance of the [plaintiff's] allegations in her testimony are not specific acts and the specific acts that are of alleged harassment are not corroborated by any testimony or other evidence."
We are not persuaded by defendant's argument, because he disregards the standard of appellate review. In order to issue an injunction prohibiting harassment, the trial court must find "by clear and convincing evidence that unlawful harassment exists." (§ 527.6, subd. (d).) The standard of "clear and convincing evidence" specified in section 527.6, subdivision (d), is for the guidance of the trial court and is not a standard for appellate review. (See Crail v. Blakely (1973) 8 Cal.3d 744, 750 (Crail); In re I.W. (2009) 180 Cal.App.4th 1517, 1525.) " 'The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal.' [Citations.]" (Crail, at p. 750.) "Thus, on appeal from a judgment required to be based upon clear and convincing evidence, the clear and convincing test disappears," and we apply the substantial evidence standard of review. (In re I.W., at p. 1526.) In this case, as we have explained, substantial evidence supports the trial court's finding that plaintiff suffered harassment as defined by section 527.6.
F. Failure to Follow Certain Procedures
We understand defendant to argue that, at the hearing on plaintiff's request, the trial court failed to follow certain procedures, including failing to read a particular script set forth in a California judges benchguide. (See Cal. Judges Benchguides, supra, § 20.3, pp. 20-4 to 20-5; id., § 20.63.) For example, defendant contends that the court failed to provide him with information about the matters the court must consider in determining whether to grant an injunction, failed to determine whether defendant was ready to proceed with the hearing or whether he needed a continuance, failed to offer mediation as an option, and failed to advise him that he had a right to present any relevant testimony at the hearing.
Defendant's claims fail because he has not shown prejudice from the asserted procedural irregularities. "Our state Constitution provides that '[n]o judgment shall be set aside, or new trial granted, in any cause, . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.' (Cal. Const., art. VI, § 13.)" (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 (Cassim).) " '[A] "miscarriage of justice" should be declared only when the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citation.]" (Ibid.) Thus, "reversal can generally be predicated thereon only if the appellant can show resulting prejudice, and the probability of a more favorable outcome, at trial." (Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833 (Waller).) "Prejudice is not presumed, and the burden is on the appealing party to demonstrate that a miscarriage of justice has occurred. [Citations.]" (Ibid.) In this case, defendant's arguments on appeal do not include any showing as to how, in the absence of the alleged procedural irregularities, he would have obtained a more favorable result at the hearing on plaintiff's request for an order prohibiting harassment. We therefore determine that defendant fails to establish that the order prohibiting harassment should be reversed due to asserted procedural irregularities in the proceedings below.
G. Failure to Make an Independent Inquiry
Lastly, we understand defendant to contend that the trial court had a duty to make an independent inquiry as to certain matters, but failed to perform that duty. Defendant asserts that the court "could have reviewed the police report that [defendant] referred to in his testimony and found that [plaintiff's] daughter had in fact admitted to battering [him]," "[c]ould have asked the [plaintiff's] daughter if she had ever hit" him, "[c]ould have done the math on rental agreement," "[c]ould have checked and found" that defendant does not have and has never "had another restraining order as alleged" by plaintiff, and "[c]ould have asked [plaintiff's daughter] if she had witnessed any of the particular events of alleged harassment" and "would have learned that she had not."
At the hearing on the petition for an injunction, "the judge shall receive any testimony that is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment." (§ 527.6, subd. (d), italics added.) In this case, the record reflects that, during the hearing, the trial court asked plaintiff and her daughter questions and the court clarified certain matters during defendant's testimony. Defendant does not provide any legal authority to support his apparent contention that the court was required to inquire into, or otherwise investigate, the above-described matters, and we therefore deem the issue abandoned. (Landry, supra, 39 Cal.App.4th at pp. 699-700; 20th Century Ins. Co., supra, 86 Cal.App.4th at p. 284.) Even if we were to consider the substance of defendant's contention, he fails to articulate the relevance of the inquiries he asserts the court should have made, and he fails to demonstrate prejudice. (See Cassim, supra, 33 Cal.4th at p. 800; Waller, supra, 12 Cal.App.4th at p. 833.) We therefore determine that defendant fails to demonstrate error warranting reversal of the order prohibiting harassment.
IV. DISPOSITION
The September 28, 2010 order is affirmed.
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BAMATTRE-MANOUKIAN, J.
WE CONCUR:
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PREMO, ACTING P.J.
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MIHARA, J.