Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and order of the Superior Court of San Diego County, No. 37-2008-00052529-CU-HR-NC, Martin W. Staven, Judge.
AARON, J.
I.
INTRODUCTION
On April 10, 2008, the trial court granted an injunction pursuant to Code of Civil Procedure section 527.6, prohibiting Victoria Bradshaw from harassing her next door neighbor, Judith Gilliland, and members of Gilliland's family. Bradshaw filed a motion for reconsideration. On June 24, the trial court denied Bradshaw's motion for reconsideration.
Unless otherwise specified, all subsequent statutory references are to the Code of Civil Procedure.
Bradshaw appeals the trial court's April 10 judgment and the court's June 24 order denying her motion for reconsideration. On appeal, Bradshaw claims that there is no substantial evidence to support the trial court's issuance of the injunction. Bradshaw also raises various claims premised on her motion for reconsideration, including that the injunction was no longer necessary because the real property boundary dispute that allegedly gave rise to disagreements between the parties has been resolved in Bradshaw's favor.
We affirm the trial court's April 10 judgment, and dismiss Bradshaw's appeal from the June 24 order.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On March 19, 2008, Gilliland filed a form petition requesting that the court issue an injunction pursuant to section 527.6 against Bradshaw. Gilliland identified Bradshaw as her next door neighbor, and requested that the court order Bradshaw not to harass Gilliland, Gilliland's husband, or Gilliland's mother. Gilliland also requested that the court order Bradshaw to stay 100 yards away from Gilliland and her family members. In support of her requests, Gilliland stated: "[Bradshaw] entered my property and threatened me and my contractors. Police were called.... Yesterday she came over, broke into my shed, and struck my contractor. She was off her meds." Gilliland further stated, "I'm fearful that she will harm me, my husband, and my 86-year-old mother. I have difficulty sleeping, always on alert, and worried what she will do next." Gilliland also requested that the court issue a temporary restraining order, noting that Bradshaw "apparently has a mental disorder." Gilliland stated that Bradshaw "is on psychotropic medication to control this behavior but has stopped using the medication and is becoming combative." In addition, Gilliland stated, "[Bradshaw] has a long history before this Court of harassing and annoying her neighbors and the community of Del Mar in general. See Case No. 1195, Judge Ryan presiding."
Gilliland indicated that both her husband and her mother live with her.
Gilliland attached to her petition a superior court order from April 2001, signed by Judge Ryan, directing Bradshaw to "remove and dispose of all pests, junk debris, personal property, including but not limited to, paper, furniture, pots, plants, appliances, remnants, plastic and other miscellaneous items, stagnant water, etc.," or face abatement of "said nuisance" by the City of Del Mar.
The trial court issued a temporary restraining order precluding Bradshaw from harassing Gilliland and her family members and ordering Bradshaw to stay at least 100 yards away from them.
On April 9, Bradshaw filed an answer to Gilliland's petition. In her answer, Bradshaw maintained that the trial court should not grant Gilliland's request:
"I did not threaten or strike anyone. I verbally confronted my neighbor because she and/or her contractor/employees trespassed onto my property on multiple occasions and (1) cut down bamboo growing on my property that was inside my fenced yard (I have photographic evidence), (2) removed and destroyed some redwood railing I was storing (I will have physical evidence in court), (3) broke a glass partition that is part of my fence (photographic evidence), and (4) are encroaching on my property by several feet and clearing brush, cutting foliage, and cutting back my trees in order to install a fence (photographic evidence.) [¶] The entire incident complained of by my neighbor was instigated by her and/or her contractor."
That same day, the trial court held a hearing on Gilliland's petition. At the hearing, Gilliland testified that Bradshaw had trespassed on her property on at least a half dozen occasions in the month of March 2008. Gilliland explained that Bradshaw had been involved in "numerous disputes" with contractors who were performing work for Gilliland, and that Bradshaw had been "yelling at the contractors." Gilliland also testified that Bradshaw had complained to the city "about an air conditioner" which, according to Gilliland, "ha[d] never been on yet this year." Gilliland stated that Bradshaw had claimed that Gilliland's contractors were not licensed, when in fact the contractors were licensed. In addition, Gilliland testified that Bradshaw had taken photographs over a fence separating their properties.
Gilliland testified that Bradshaw had falsely accused her of stealing wood from Bradshaw's yard. Bradshaw came onto Gilliland's property and refused to leave after being asked to do so. Gilliland stated that Bradshaw claimed that the stolen wood was under Gilliland's deck. Gilliland testified that Bradshaw broke a door to Gilliland's deck while looking for the wood.
Gilliland also testified that on March 5, 2008, Bradshaw came onto Gilliland's property "to scream and yell at [Gilliland.]" Gilliland explained that Bradshaw was yelling about Gilliland's removal of a tree from Gilliland's property. Bradshaw came within inches of Gilliland's face and held out a pen that read "God alone" on it.
Gilliland testified that the tree had been removed several months before the confrontation.
Gilliland also described an incident in which Bradshaw had threatened her:
"She was yelling and screaming... and saying that I would be sorry and that God alone could take trees and that she would see that I paid.... That's basically ─ yelling and screaming and saying that we would have to pay, we had no right to take trees, and God alone could take trees."
Gilliland explained that these incidents had caused her "a great deal of stress." She further explained, "I have some difficulty sleeping now. I'm concerned when I leave the house if she's going to be over there yelling, or as in the case of my contractor, trying to strike someone."
Richard Kissel, a contractor who was doing work for Gilliland, testified regarding an incident involving Bradshaw that occurred in early March 2008. Kissel stated that Bradshaw came onto Gilliland's property and accused him, or men working with him, of stealing wood from Bradshaw. Kissel testified that Gilliland asked Bradshaw to leave several times, but that Bradshaw refused to do so. Kissel stated that Bradshaw damaged a door to a storage area under Gilliland's deck in attempting to locate the wood. Kissel stated that Bradshaw tried to strike him with her hand, and that he had to block her hand with his.
On cross-examination, Kissel testified that Bradshaw had remained on Gilliland's property while Kissel called the police. Kissel estimated that Bradshaw remained on the property "the better part of 15 minutes."
Bradshaw testified that her disagreements with Gilliland began on or about March 5, 2008 when Bradshaw discovered that a clump of bamboo that had served as a demarcation of the boundary between Bradshaw's property and Gilliland's property had been cut down. Bradshaw believed that one of Gilliland's landscapers had removed the bamboo. Bradshaw stated that she went to speak with "whoever had instigated that," and that she was "met with ridicule."
According to Bradshaw, the following day, a piece of unattached redwood railing was missing from her property. Bradshaw explained that she went next door to Gilliland's property to see if Gilliland's workers "had seen it or if they might have accidently removed it." According to Bradshaw, upon entering Gilliland's property, a man told her, "Get off of our property." Bradshaw denied that she attempted to strike the man, explaining, "I held out my hand... to shake his hand to say, 'I go in peace.'" Bradshaw admitted to having looked for the railing on Gilliland's property, but denied having opened any doors to do so. Bradshaw estimated that she was on Gilliland's property for approximately two minutes. When Bradshaw's counsel asked her, "[H]ave you ever verbally or physically threatened the Gillilands or anyone who lives on their property?" Bradshaw responded in the negative.
On cross-examination, Bradshaw stated that she had gone onto Gilliland's property without permission on only two occasions. Bradshaw denied ever having attempted to strike Kissel.
At the conclusion of the hearing, the court indicated that it would grant the request for an injunction, stating:
"The court does not accept Mrs. Bradshaw's testimony as being truthful. I think what was said... happened. [¶] The law requires a course of conduct. It doesn't have to be over any considerable period of time... as long as it shows a continuity of purpose, which is what we have here. And the way things are going, there's no real faith by the court that it's going to stop without the intervention of the court. I don't take [issuing] a restraining order... lightly, but in this case I believe one is required. And on credibility issues and on the law, I find that the petitioner has sustained her burden of proof."
The trial court entered a judgment granting Gilliland's request for an injunction. The injunction ordered Bradshaw not to harass Gilliland or her family, and to stay at least 100 yards away from them. The judgment contained an exception that provided that Bradshaw could "peacefully come up to 5 [feet] of [a] protected person when restrained person is on her real property and when the parties attend court or administrative proceedings concerning their real property disputes." The judgment stated that it was issued "based on a credible threat of violence." The judgment required that Bradshaw pay Gilliland $1,500 in attorney fees. The judgment will expire on April 8, 2011.
Bradshaw filed a motion for reconsideration pursuant to section 1008, subdivision (a), which the trial court denied.
Bradshaw filed a notice of appeal from the trial court's order denying her motion for reconsideration, and later filed an amended notice of appeal. In her amended notice of appeal, Bradshaw stated that she is appealing from the trial court's April 10 injunction and from the court's June 24 order.
III.
DISCUSSION
A. Appellate jurisdiction
We consider as a preliminary matter whether this court has jurisdiction to consider Bradshaw's appeal.
1. This court has jurisdiction to consider Bradshaw's appeal from the April 10 judgment
We consider first whether Bradshaw has timely appealed from the April 10 judgment.
a. Governing law
California Rules of Court, rule 8.104 (Rule 8.104) provides:
"(a) Normal time
"Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of:
"(1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled 'Notice of Entry' of judgment or a file-stamped copy of the judgment, showing the date either was mailed;
"(2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled 'Notice of Entry' of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or
"(3) 180 days after entry of judgment."
California Rules of Court, rule 8.108(e) (Rule 8.108(e)) provides:
"If any party serves and files a valid motion to reconsider an appealable order under Code of Civil Procedure section 1008, subdivision (a), the time to appeal from that order is extended for all parties until the earliest of:
"(1) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order;
"(2) 90 days after the first motion to reconsider is filed; or
"(3) 180 days after entry of the appealable order."
b. Analysis
Bradshaw filed her amended notice of appeal on July 23 ─ 134 days after entry of the April 10 judgment. However, neither the record on appeal nor the superior court file indicates that Gilliland ever received notice of entry of the April 10 judgment, as defined Rule 8.104(a)(1),(2). Thus, pursuant to Rule 8.104(a)(3), Gilliland had 180 days from the date of the April 10 judgment to file a notice of appeal.
We assume for purposes of this decision that July 23 ─ the date on which Bradshaw filed her amended notice of appeal ─ is the date from which we must determine whether Bradshaw's appeal of the April 10 injunction is timely, because that is the date on which Bradshaw first indicated that she was appealing the April 10 injunction. However, the 12 day difference between Bradshaw's filing of her initial notice of appeal on July 11, and her filing of the amended notice of appeal on July 23, is immaterial to our analysis.
On our own motion, we order the record on appeal augmented with the superior court file. (California Rules of Court, rule 8.155(a)(1)(A).)
Accordingly, we conclude that Bradshaw's July 23 amended notice of appeal is timely, and that this court has jurisdiction to consider her appeal of the April 10 judgment.
In light of our conclusion, we need not consider Bradshaw's contention that her motion for reconsideration extended the time for filing her notice of appeal, pursuant to Rule 8.108(e). However, a motion for reconsideration that is filed after entry of a judgment, rather than after an interim appealable order, is invalid and does not extend the time for filing a notice of appeal. (Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1606-1608 (Passavanti).) In Morton v. Wagner (2007) 156 Cal.App.4th 963, 967, the Court of Appeal stated that an injunction issued pursuant to section 527.6 constitutes a judgment. (Accord Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1107-1108 [referring to restraining order issued pursuant to section 527.6 as a judgment].)
2. This court does not have jurisdiction to consider Bradshaw's appeal from the trial court's June 24 order denying her motion for reconsideration
In her July 23 amended notice of appeal, Bradshaw states that she is appealing from the trial court's April 10 injunction and from the court's June 24 order denying her motion for reconsideration.
The June 24 order is not itself appealable. (Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) 166 Cal.App.4th 1625, 1633 ["the prevailing view among our appellate courts has been that an order denying a motion for reconsideration is not an appealable order under any circumstances"]; Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1458 ["[W]e are persuaded by the reasoning of the majority of recent cases that have concluded orders denying motions for reconsideration are not appealable"].)
Nor may we review the trial court's denial of Bradshaw's motion for reconsideration based on her appeal from the April 10 judgment under an extension of Walker v. Los Angeles County Metropolitan Transp. Authority (2005) 35 Cal.4th 15, 18 [noting that although an order denying a motion for new trial is not appealable, such an order may be reviewed on appeal from the underlying judgment].) A trial court has jurisdiction to rule on the motion at issue in Walker ─ a motion for new trial ─ after entry of judgment. (§ 660; see also Walker, supra, 35 Cal.4th at p. 19 [noting that the trial court hadentered its order denying appellant's motion for new trial after entry of the judgment].) However, once judgment has been entered, a trial court lacks jurisdiction to grant a motion for reconsideration. (APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 182 ["Once the trial court has entered judgment, it is without power to grant reconsideration"].) Thus, it would not be proper for this court to provide review of such an order on appeal from the judgment.
Even assuming that the trial court's issuance of a restraining order pursuant to section 527.6 constituted an interim appealable order rather than a final judgment, and that Bradshaw's motion for reconsideration was therefore valid, Bradshaw still would not be entitled to review of the denial of her motion for reconsideration. (See Association for Los Angeles Deputy Sheriffs v. County of Los Angeles, supra, 166 Cal.App.4th at pp. 1632-1633, Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, 1242 [considering appeal from appealable order, but dismissing that portion of appeal seeking review of order denying motion for reconsideration].)
Finally, we reject Bradshaw's suggestion in her amended notice of appeal and in her brief, that this court may review the trial court's June 24 order pursuant to section 904.1, subdivision (a)(6) as an order "refusing to... dissolve an injunction," under the theory that her motion for reconsideration was "also cognizable under... section 533." Bradshaw did not move pursuant to section 533 in the trial court. She did not cite that provision in either her motion for reconsideration or her memorandum in support of that motion. Rather, she expressly stated, "The motion is made pursuant to Code of Civil Procedure, section 1008[, subdivision] (a)." Having moved the trial court under section 1008, Bradshaw may not now ask this court to review the motion pursuant to an entirely different statute. (Passavanti, supra, 225 Cal.App.3d at p. 1608 ["generally, appellate courts should not construe a motion expressly identified as being a particular motion to be an entirely different motion in the appellate court"].)
Section 533 provides: "In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order."
Accordingly, we dismiss Bradshaw's appeal insofar as she seeks review of the court's June 24 order denying her motion for reconsideration, and disregard any arguments pertaining to her motion for reconsideration that she raises in her appellate brief.
Specifically, we disregard the arguments in part IV.C. of Bradshaw's brief. In addition, we disregard references in the remaining portions of Bradshaw's brief to facts that are presented in her motion for reconsideration.
B. There is substantial evidence to support the trial court's issuance of the April 10 injunction
Bradshaw claims that there is not substantial evidence in the record to support the trial court's issuance of the April 10 injunction.
1. Standard of review
"[I]njunctions issued under... section[] 527.6... which prohibit civil harassment, are reviewed to determine whether the necessary factual findings are supported by substantial evidence. [Citations.]" (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137.) "In assessing whether substantial evidence supports the requisite elements of willful harassment, as defined in 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.)
2. Governing law
Section 527.6 provides in relevant part:
"(a) A person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an injunction prohibiting harassment as provided in this section.
"(b) 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.
"As used in this subdivision:
"(1) '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.
"(2) '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.
"(3) '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.'"
Section 527.6, subdivision (d) provides that the trial court shall hold a hearing on the petition for the injunction and that, "If the judge finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment."
In Byers v. Cathcart (1997) 57 Cal.App.4th 805, 807 (Byers), the court explained that in order to constitute harassment under section 527.6, subdivision (b), "the complained-of conduct must have 'no legitimate purpose'...." The Byers court concluded that the trial court in that case had erred in issuing an injunction pursuant to 527.6 because one could not say that the conduct at issue ─ parking along the side of a driveway ─ served no legitimate purpose. The court reasoned:
"The complained-of conduct which generated this appeal was parking a car along the side of a driveway.... We therefore focus on whether, under the facts of this case, plaintiff could properly be enjoined pursuant to section 527.6 from parking along the side of the driveway.
"Plaintiff has an easement to use the driveway. The scope of the use authorized by the easement is in dispute. It can hardly be disputed, however, that parking a car is a legitimate necessity. Parking generally is not conduct having 'no legitimate purpose.' There is no evidence here that the parking was done for the purpose of annoying defendants as opposed to the purpose of storing a vehicle between periods of use. The no-parking provision of the injunction was therefore beyond the scope of section 527.6." (Byers, supra, 57 Cal.App.4th at pp. 807-808.)
3. Analysis
Relying on Byers, supra, 57 Cal.App.4th 805, Bradshaw contends that her conduct "was intended for the legitimate purpose of reasonably defending her lawful property rights against a hostile and illegal takeover attempt." Thus, Bradshaw claims, "The trial court's implied finding that appellant's conduct did not serve a legitimate purpose is not supported by substantial evidence." (Emphasis omitted.) We are not persuaded.
The only conduct at issue in Byers was the plaintiff's parking a car. In this case, Gilliland presented evidence that Bradshaw repeatedly trespassed on Gilliland's property, angrily threatened Gilliland, struck one of Gilliland's contractors, took photographs over a fence separating their properties, and damaged a door on Gilliland's storage shed. (See pt. II., ante.) The conduct at issue in this case is thus plainly distinguishable from that at issue in Byers. Further, although Bradshaw contends that she took the actions at issue only in an attempt to "defend and to assert her property rights against a hostile and unlawful takeover," many of her actions were unrelated to any such real property boundary dispute. For example, Gilliland presented evidence that Bradshaw told Gilliland that Gilliland would "pay" for her action in removing a tree on Gilliland's property. Gilliland also presented evidence that Bradshaw damaged Gilliland's property and physically assaulted one of Gilliland's employees after accusing Gilliland and the employee of taking Bradshaw's wood. In any event, even assuming Bradshaw's actions were motivated by an attempt to defend her property rights, neither Byers, nor any other case of which we are aware, stands for the proposition that a party may threaten or otherwise harass people if the party is motivated by a legitimate public purpose.
We also reject Bradshaw's argument that there is not substantial evidence to support the trial court's finding that Gilliland was credible. Bradshaw claims that Gilliland lacked credibility because Gilliland failed to present credible evidence to support her allegations that Bradshaw was a "crazy person off her medications" who had "a history of harassing her neighbors." Bradshaw cites no authority, and we are aware of none, that holds that a court may not consider a party to be credible if that party makes allegations in a pleading that are not supported by admissible evidence at a hearing on the pleading. Further, Gilliland attempted to offer evidence of Bradshaw's mental illness at the hearing on her petition, but the court sustained Bradshaw's hearsay objections to the evidence. There is nothing in the record indicating that Gilliland lacked a good faith basis for alleging that Bradshaw suffered from a mental illness. In addition, it is clear that Gilliland had a good faith basis for alleging that Bradshaw had a history of annoying her neighbors, in view of the court order that Gilliland attached to her petition for an injunction.
In addition to the hearsay evidence referred to above, at the hearing, Gilliland's counsel asked Bradshaw, "Do you have a mental illness?" Bradshaw, responded, "Do I? I don't think that's relevant?" After the court sustained Bradshaw's counsel's foundation objection, Bradshaw responded, "No. I do not." Gilliland's counsel subsequently posed the following question to Bradshaw, "You've never had a mental illness?" Bradshaw responded, "I do not have a mental illness, no."
C. On remand, the trial court shall award Gilliland attorney fees incurred on appeal, in an amount to be determined by the trial court
Gilliland requests that this court award her attorney fees incurred on appeal, pursuant to section 527.6.
Section 527.6, subdivision (i) provides: "The prevailing party in any action brought under this section may be awarded court costs and attorney's fees, if any." "Authorization for the recovery of attorney fees includes authorization for recovery of attorney fees incurred on appeal." (Byers, supra, 57 Cal.App.4th at p. 813.)
Gilliland is the prevailing party on appeal. "'Although we have the power to appraise and fix attorney fees on appeal, we deem it the better practice to remand the cause to the trial court to determine the appropriate amount of such fees. [Citation.]' [Citation.]" (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1399.) Accordingly, on remand, the trial court shall award Gilliland attorney fees incurred on appeal in an amount to be determined by that court.
IV.
DISPOSITION
The trial court's April 10, 2008 judgment is affirmed. Bradshaw's appeal from the trial court's June 24, 2008 order is dismissed. Bradshaw is to bear costs on appeal. The matter is remanded to the trial court with directions to award Gilliland attorney fees incurred on appeal in an amount to be determined by the trial court.
WE CONCUR: McCONNELL, P. J., McDONALD, J.