Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. 37-2009-00080961- CU-HR-CTL Rafael A. Arreola, Judge.
McCONNELL, P. J.
Defendant John Steel challenges the evidentiary basis for a protective order issued against him under the civil harassment statute (Code Civ. Proc., § 527.6) to prohibit harassment of plaintiff Phil McConkey and his family. Steel also contends the court violated his constitutional due process rights by denying him cross-examination of McConkey, and by limiting his cross-examination of another witness. We affirm the order.
Further undesignated statutory references are also to the Code of Civil Procedure.
BACKGROUND
In January 2009 McConkey petitioned the court for a restraining order against Steel under section 527.6 for himself, his wife and his daughter. The petition stated McConkey and Steel had been friends and business associates for nearly 20 years. McConkey filed an accompanying handwritten declaration by Nathanael Roberti, which stated: "On many different occasions, during the 4 months or so that I was employed by John Steel, I was told that I should, kick Phil McConkey's ass, break his legs, 'kill that mother fucker.' Also one night about 2 months ago, sometime in November 2008 John Steel had told me that he had hired a Mexican 'to kill his ass (Phil McConkey).' Mr. Steel was extremely intoxicated when he said this. Furthermore, Mr. Steel has stressed to myself his hate for Phil McConkey, Steel loves Phil one second, and a minute later he says he wants to kill him. Mr. Steel's obsession with wanting (saying) about hurting Mr. McConkey has gone past the point of casual talks. What I mean in the last sentence is that every single conversation I have had with Steel in the past 3 months has been about how he thinks Phil is responsible for his life being messed up."
The petition stated that based on Steel's threats, "I became extremely worried for my safety and that of my family," and "I am in fear that he has hired someone to harm and or kill me and my family."
The court issued a temporary restraining order (TRO) protecting McConkey and his family, and set a hearing on the matter. McConkey did not achieve service of the TRO on Steel, and the court reissued the TRO and rescheduled the hearing.
Steel filed an answer that denied he made any threats against McConkey. The answer stated the petition "is a cynical and calculated effort to abuse the good offices of this Court by [McConkey] to gain leverage in business litigation that is ongoing in New York," and McConkey "has absolutely nothing to fear from [Steel]. [McConkey] is a former NFL football player for the New York Giants; [Steel] is a type I diabetic with severe medical complications. Any physical altercation would likely result in [Steel's] death."
At the February 11, 2009, hearing, Roberti testified the statements he made in his declaration were true and correct. He testified that in November 2008, when he worked for Steel, Steel asked him to kill McConkey. Roberti said he would not do so, and Steel said "not to worry about it; that he had hired a Mexican to kill his ass." The preceding August, Steel told Roberti he should break McConkey's arms or "kick his ass." Roberti testified that Steel's comments "happened a lot over the summer and when I was employed by him. [¶]... [¶] And, it got to the point to where I was — it was happening all the time, like he, he always talked about how he wanted to beat... McConkey's ass because... he blamed... McConkey for ruining his marriage and blamed him for causing him thousands and thousands of dollars in court costs or lawyer fees in his previous divorce case." Further, Roberti testified that when Steel said these things he appeared irritated. Roberti conveyed all of Steel's comments to McConkey.
The court allowed Steel to ask Roberti "a few questions" on cross-examination. Roberti testified that Steel was "extremely intoxicated" when he made the most recent threat against McConkey in November 2008. When Steel's counsel asked whether Roberti took Steel's threats seriously, Roberti stated, "Absolutely. Are you kidding me?" Counsel responded, "Well, wait a minute, now. Didn't you send an email to Charles DuPont where you described this whole thing as childish BS?" Roberti testified he did not consider a murder threat "childish BS," and rather his e-mail was aimed at Steel's conduct and "to the fact that... this thing couldn't have been resolved before it got to this point." According to Roberti, McConkey "has done nothing to ruin, to, to sabotage [Steel's] life." Roberti conceded he did not report Steel's threats to the police.
The record includes an e-mail Roberti sent Charles DuPont, Jr., the day before the hearing, which stated: "Thanks for the call, I hope you understand where i am coming from with all of this. I hope that one day you and i can go out and have a beer bro. and laugh at all of this childish BS."
After a few questions, the court advised Steel's counsel, "One or two more questions." Counsel asked a few more questions, and the court cut off cross-examination. Steel did not object.
The court then questioned Roberti. He testified there was no one present but him and Steel when Steel made threats of violence against McConkey.
Steel waived his constitutional right not to testify. He denied the allegations of McConkey's petition and Roberti's declaration.
DuPont, who had known Steel for at least 25 years, testified he had spoken with Roberti about the November 2008 incident with Steel, and Roberti agreed with DuPont that what was going on between Steel and McConkey was "a bunch of horse shit." DuPont testified that Roberti told him Steel had not made a "serious" threat against McConkey. After the conversation, Roberti sent DuPont the email about "childish BS."
The court also questioned McConkey. He testified that he took the information Roberti gave him seriously, and he was concerned for his and his family's safety. Steel did not ask to cross-examine McConkey.
The court found a credible threat of violence. It issued an order requiring Steel to stay at least 100 yards away from McConkey, his wife and daughter, and not to have any contact of any type with them. The order's duration is three years, "subject to termination after 1 year."
DISCUSSION
I
General Law
"Section 527.6 'was enacted "to protect the individual's right to pursue safety, happiness and privacy as guaranteed by the California Constitution." ' [Citation.] Its purpose is 'to provide expedited injunctive relief to victims of "harassment." ' " (Kobey v. Morton (1991) 228 Cal.App.3d 1055, 1059.)
Under the statute a "person who has suffered harassment" may seek a temporary restraining order and an injunction prohibiting the harassment. (§ 527.6, subd. (a).) "Harassment" is defined as "unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at [the plaintiff] that seriously alarms, annoys, or harasses the [plaintiff], 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).)
" '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.... Constitutionally protected activity is not included within the meaning of 'course of conduct.' " (§ 527.6, subd. (b)(3).) An order under section 527.6 requires "clear and convincing evidence that unlawful harassment exists." (§ 527.6, subd. (d).)
"The trial court's decision to grant a permanent injunction rests within its sound discretion and will not be disturbed on appeal absent a showing of a clear abuse of discretion." (Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912.) "However, to the extent the trial court had to review the evidence to resolve disputed factual issues, and draw inferences from the disputed facts, an appellate court will review such factual findings under a substantial evidence standard. Our power in this regard 'begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact. [Citations.] [¶] When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.' " (Ibid.)
II
Sufficiency of the Evidence
Steel contends that even accepting Roberti's version of events, the court's order lacks evidentiary support because McConkey was not actually harmed; Steel never threatened any direct harm to McConkey, and instead requested that Roberti harm McConkey, but Roberti refused to cooperate; Roberti "did nothing to alert the proper authorities to the conspiracy to commit murder which he had uncovered," and no reasonable person would suffer emotional distress.
We conclude substantial evidence supports the order. Actual harm to the petitioning party is not a prerequisite to obtaining a restraining order under section 527.6. The court's order was based on a credible threat of violence that would make a reasonable person fear for his or her safety. McConkey testified he feared for his safety and that of his family, and it is not our province to reassess the credibility of the witnesses. (Camarena v. State Personnel Bd. (1997) 54 Cal.App.4th 698, 703.) Further, there is evidence he was sufficiently frightened that he contacted the police. From the cold record, we can see why a person in McConkey's position would fear for his safety. Contrary to Steel's position, whether Roberti believed Steel's threats were serious has no bearing on the reasonableness of McConkey's emotional state.
Steel's reliance on Schild v. Rubin (1991) 232 Cal.App.3d 755 (Schild), is misplaced. In Schild, Rubin obtained an order under section 527.6 restraining his neighbors, the Schilds, and any other person, from playing basketball on the Schilds' property except during specified hours. The Court of Appeal reversed the order for insufficiency of the evidence to show "the basketball playing in the time, place and manner as described" would cause a reasonable person to suffer substantial emotional distress. (Schild, at p. 763.) The court noted that section 527.6, subdivision (b) does not define the phrase "substantial emotional distress," but "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.' " (Schild, at pp. 762-763.)
The facts of Schild are nothing like the facts here. The short-term annoyance of basketball playing next door cannot seriously be compared to knowing the restrained party has asked another person or persons to break your arms or kill you. "A decision is authority only for the point actually passed on by the court and directly involved in the case. General expressions in opinions that go beyond the facts of the case will not necessarily control the outcome in a subsequent suit involving different facts." (Gomes v. County of Mendocino (1995) 37 Cal.App.4th 977, 985.)
Further, Steel cites no authority that suggests a restraining order cannot be based on a party's efforts to enlist a third person to carry out the harm. "[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat appellant's... issue as waived." (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.) On its face, section 527.6 contains no such limitation. Additionally, reporting threatened harm to the police is not a prerequisite to obtaining a restraining order under section 527.6, and Steel cites no authority for the proposition Roberti's not contacting the police has any relevance.
III
Section 527.6's Purpose
Steel also contends the order does not serve the purposes of section 527.6 because Roberti testified Steel's threats ended in August 2008, "so there is no prospect of future harm," and "the hiring of Mexican assassins is not something that can be addressed by" a restraining order under the statute, since the restrained person is ordered not to directly contact the protected party. Steel adds that "[h]iring assassins is simply beyond the ken of... section 527.6 and is an issue for the police. That the police did not find enough reasonable suspicion to pursue an investigation does not justify the issuance of a necessarily superfluous restraining order."
Steel's last threat of violence was actually in November 2008, not the preceding August. Roberti testified that in November 2008 Steel asked him to kill McConkey. The court found a credible threat of future harm, and we will not substitute our judgment for the court's judgment.
As to the Mexican hit men, it cannot reasonably be argued that the restraining order serves no purpose because it would still allow Steel to harass McConkey or his family through third parties. An injunction ordinarily "binds not only the defendant but also servants or agents and those in collusion with the defendant." (Superior Care Facilities v. Workers' Comp. Appeals Bd. (1994) 27 Cal.App.4th 1015, 1029.)
IV
Cross-Examination
Additionally, Steel contends the court violated his constitutional due process rights by curtailing his cross-examination of Roberti and disallowing any cross-examination of McConkey.
Steel has forfeited appellate review of these issues. He did not object to the length of his cross-examination of Roberti or advise the court he had additional relevant questions for Roberti. (See § 527.6, subd. (d) [court "shall receive any testimony that is relevant, and may make an independent inquiry"].) Steel did not request any cross-examination of McConkey. " 'An appellate court will ordinarily not consider procedural defects or erroneous rulings... where an objection could have been made, but was not, presented to the lower court by some appropriate method. [Citations.]' " (In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002.) Steel claims any objection would have been futile, but the record does not support the claim. In our view, the court was liberal in allowing the presentation of evidence.
DISPOSITION
The order is affirmed. McConkey is entitled to costs on appeal.
WE CONCUR: McINTYRE, J., AARON, J.