Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS104739, Richard E. Rico, Judge.
Law Offices of Edward Ovetsky and Edward Ovetsky for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
KRIEGLER, J.
This is an appeal by Anatoly Pinchuk from the trial court’s order granting a civil harassment restraining order pursuant to Code of Civil Procedure section 526.7 in favor of respondent Hazelle Gobert. Pinchuk argues on appeal that the trial court’s denial of cross-examination violated due process and was an abuse of discretion. Pinchuk also contends the trial court improperly precluded his testimony about Gobert’s motive to fabricate.
Gobert has not filed a brief on appeal.
We hold the trial court erred in denying any opportunity for cross-examination and under the circumstances presented, the error was prejudicial within the meaning of article VI, section 13 of the California Constitution. The judgment is therefore reversed.
PROCEDURAL BACKGROUND
Gobert was granted an ex parte temporary restraining order against Pinchuk on September 11, 2006, based upon allegations of harassment. The temporary restraining order was reissued on October 2, 2006. Following a contested trial held on October 25, 2006, the trial court issued a “restraining order after hearing to stop harassment.” The order, effective for three years, prohibited Pinchuk from contacting or harassing Gobert and required that he stay at least 100 yards away from her. Pinchuk filed a timely notice of appeal.
THE HEARING ON THE RESTRAINING ORDER
Gobert’s Testimony
Gobert met Pinchuk while she working as a bank teller. She was friendly with him, as he was a client. Pinchuk began coming to the bank 10 to 12 times a day, for no reason. Because Pinchuk was a customer, Gobert could not tell him not to come to the bank.
Gobert went to work at a different bank, but told no one the location of her new place of employment. Nevertheless, Pinchuk found her at the new bank.
When Gobert had car trouble, Pinchuk said he would take care of it for her as a favor. After Pinchuk helped Gobert with her car problem, Pinchuk became “very, very weird,” calling her 40 to 50 times per day. Gobert had caller ID, so she could recognize his calls. Sometimes he called using operators or a calling card. Pinchuk believed it was his business whether Gobert had a boyfriend. He did research and found her boyfriend’s address and the address of the boyfriend’s parents.
Pinchuk told Gobert he was going to have someone move nearby just to watch her. Gobert believed she knew who Pinchuk was talking about, as someone moved in across the hall, but the person never said anything to Gobert. When the new tenant moved out, he said, “I’m leaving,” but nothing else.
Pinchuk vandalized Gobert’s boyfriend’s car. He admitted to the vandalism before Gobert obtained the temporary restraining order. Pinchuk said he keyed her boyfriend’s car and the boyfriend had seen him do it but did nothing. Pinchuk’s statement was untrue, since Gobert had walked out with her boyfriend and they saw that his car had been keyed. Pinchuk was not around at that time.
After Gobert asked for the emergency restraining order, Pinchuk called her at 4:00 a.m. from the Hot Led Shop. She since has had her phone turned off and told Pinchuk to leave her alone. She has seen him drive by and circle her boyfriend’s apartment.
At the conclusion of Gobert’s testimony, Pinchuk asked the trial court, “Your Honor, will I have a chance to cross-examine Ms. Gobert?” The court replied, “No.”
Pinchuk’s Testimony
Pinchuk testified that every statement made by Gobert was a lie or a lie by omission. Gobert is incapable of telling the truth. Pinchuk denied going to her work 10 to 12 times a day, describing Gobert’s testimony on that point as a blatant lie. The trial court asked Pinchuk if he had any reason to be in contact with Gobert, to which Pinchuk answered “no” and wanted to continue with his testimony. The court replied, “Just answer my question. I’ll decide whether you can keep going or not.”
The trial court again asked Pinchuk if there was any reason for him to have contact with Gobert. Pinchuk said there was a matter that needed to be taken care of through the courts. Gobert had failed to mention in her testimony that over the last two years she received gifts or loans from Pinchuk in the range of $100,000. At this point in his testimony, Pinchuk asked Gobert if she “file[d] that on [her] tax return?” The court directed Pinchuk not to address Gobert, but to address the court.
Pinchuk continued by testifying that he did not call Gobert from the Hot Led—he did not know anything about Hot Led. He denied calling her since being served with the restraining order.
Pinchuk told the trial court, “I was so hoping that I would get her, you know, to be cross-examined so she could perjurize herself.” He described himself as not being “an evil guy, even though she did nothing but evil toward me.” He was extorted by Gobert, but did not go to the police because “I dislike the police more than I like this person.” He paid for her breast augmentation on March 9, 2004, the day before his birthday. The doctor who operated on Gobert had performed the same procedure on two or three of Pinchuk’s previous girlfriends.
Gobert drove Pinchuk’s cars, including Range Rovers he rented for her. She drove his BMW X5 for many months. The trial court asked if Pinchuk had a written proof of the debts; Pinchuk testified the debts were based on verbal understandings and not based upon written agreements. He has witnesses and proof. The court directed Pinchuk to step down from the witness stand. Pinchuk asked the court if he could make another statement. The court responded, “No, I’ve heard enough. Have a seat.”
Final Questioning and the Trial Court’s Ruling
After the conclusion of Pinchuk’s testimony, the trial court asked Gobert if she owed money to Pinchuk. She said she did not. Pinchuk asked the court to ask her if she received gifts from him, but the court ruled the question irrelevant. Pinchuk said it was relevant for purposes of taxation.
Based upon “the character and quality of the evidence,” the trial court issued the restraining order.
DISCUSSION
The right to cross-examination in an action is well settled in California. (Jackson v. Feather River W. Co. (1859) 14 Cal. 18, 24 [“the right of cross-examination is one of the most important privileges pertaining to a trial of an issue of fact”]; Mueller v. J. C. Penney Co. (1985) 173 Cal.App.3d 713, 722, fn. 11 [“We emphasize the court erred in completely denying [the plaintiff’s] right as a party to cross-examine witnesses”]; Evid. Code, § 773, subd. (a) [“A witness examined by one party may be cross-examined upon any matter within the scope of the direct examination by each other party to the action in such order as the court directs”].)
As noted, the right to cross-examination under Evidence Code section 773 applies to an action. “An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” (Code Civ. Proc., § 22.) “A civil action is prosecuted by one party against another for the declaration, enforcement, or protection of a right, or the redress or prevention of a wrong.” (Code Civ. Proc., § 30.) A suit seeking an injunction is an action. (Tide Water Assoc. Oil Co. v. Superior Court (1955) 43 Cal.2d 815, 822-823; Agricultural Labor Relations Bd. v. Tex-Cal Land Management, Inc. (1987) 43 Cal.3d 696, 707-708.) Part 2 of the Code of Civil Procedure, commencing with section 307, is entitled “Of Civil Actions,” and includes injunctions issued pursuant to Code of Civil Procedure section 527.6.
Gobert’s request for an injunction prohibiting harassment by Pinchuk was an action in which the parties had the right to cross-examination. Complete denial of that right to Pinchuk in this action was error.
The remaining issue is prejudice. Both by constitution and statute, Pinchuk is only entitled to reversal if the denial of cross-examination resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13 [“No judgment shall be set aside . . . unless, after 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”]; Evid. Code, § 354 [“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice”].) However, a party is not required to make an offer of proof as to questions that would be asked on cross-examination in order to obtain a reversal on appeal for the erroneous exclusion of evidence. (Evid. Code, § 354, subd. (c); Tossman v. Newman (1951) 37 Cal.2d 522, 525 -526.)
California courts have generally found a complete denial of cross-examination to be prejudicial error. (Jackson v. Feather River W. Co., supra, 14 Cal. at p. 25[“We cannot see clearly that the defendants were not injured by [a denial of cross-examination”]; Estate of Kasson (1900) 127 Cal. 496, 506 [error in denying cross-examination is reversible where the party “was too much restricted in her cross-examination of many of respondent’s witnesses”]; Dole Bakersfield, Inc. v. Workers’ Comp. Appeals Bd. (1998) 64 Cal.App.4th 1273, 1277-1278 [denial of cross-examination of a rating expert was not harmless because it was impossible to say whether the questioning would have had some bearing on the finding]; McCarthy v. Mobile Cranes, Inc. (162) 199 Cal.App.2d 500, 509-510 [complete denial of cross-examination is prejudicial error under the California Constitution].) “The right of cross-examination is fundamental, and its denial or undue restriction is frequently held to be reversible error.” (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation of Evidence at Trial, § 225 [denial or restriction of cross-examination in civil cases].)
A complete denial of cross-examination is harmless error only in unusual circumstances. In Mueller v. J. C. Penney Co., supra, 173 Cal.App.3d at page 722, the trial court erroneously denied a husband the right of cross-examination as to his cause of action for loss of consortium, in an action where his wife alleged injury due to assault and battery. The jury rejected the wife’s tort claims, rendering the husband’s denial of cross-examination nonprejudicial “in the unique circumstances of this case,” since the loss of consortium cause of action was dependent on a finding of tortious conduct against the wife. There is nothing in the trial court’s findings in the instant case that would necessarily undermine Pinchuk’s defense that Gobert’s claims were a fabrication, unlike the situation in Mueller.
Based on a record consisting of conflicting testimony between the parties, with no independent corroboration presented by either side, the complete denial of cross-examination must be deemed prejudicial error. Pinchuk had the right to test Gobert’s credibility. If his questioning proved irrelevant or improper as to form, the trial court could have relied upon its well-settled authority to preclude improper cross-examination. We do not suggest that the injunction was issued based upon less than substantial evidence. But the complete denial of all cross-examination by Pinchuk constitutes prejudicial error within the meaning of article VI, section 13 of the California Constitution, and we are constrained to reverse the injunction issued by the trial court.
DISPOSITION
The judgment is reversed. No costs are awarded on appeal.
We concur: TURNER, P. J., MOSK, J.