Opinion
B224818
12-15-2011
PATRICIA PEREZ, Cross-complainant and Respondent, v. LEONARD FINEBERG, Cross-defendant and Appellant.
Robert L. Kern and Russell A. Dalton, Jr., for Cross-complainant and Respondent. Shouse Law Group and Al F. Amer for Cross-defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KS014229)
APPEAL from an order of the Superior Court of Los Angeles County, Dan Thomas Oki, Judge. Affirmed.
Robert L. Kern and Russell A. Dalton, Jr., for Cross-complainant and Respondent.
Shouse Law Group and Al F. Amer for Cross-defendant and Appellant.
Leonard Fineberg appeals from the order enjoining him from harassing Patricia L. Perez (Code Civ. Proc., § 527.6). We affirm.
All further statutory references are to the Code of Civil Procedure, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2010, "Leonard Scott Fineberg, JD" filed a harassment restraining order seeking protection from Perez, a 66-year-old woman. Alleging that Perez had made death threats against him and vandalized his SUV, Fineberg sought stay-away orders. He also asked that the court order Perez "to immediately pay to me all sums due for work performed at her request and to be forbidden from concealing, or preventing all assets from being withheld or hidden, changed, until all compensation is paid in full from her . . . property per lien." (Italics added.)
Perez filed a counter petition for a harassment restraining order seeking protection from Fineberg. Perez explained that she retained Fineberg as an "advisor, to assist with legal problems and financial matters." Fineberg required her to execute a power of attorney and a release so he could obtain her medical records. Since then, she averred under penalty of perjury, Fineberg abused his relationship with her and caused her emotional and monetary harm. Perez explained that by trickery, Fineberg had gained access to her financial and medical records, intercepted her mail and her electronic communications, interfered with her bank accounts, attempted to gain access to her pension, and filed a lien against her property. Perez asked the court to order Fineberg "to return all papers mentioning me in any fashion, to cease making statements about me and to cease using the term 'J.D.' in conjunction with his name or conducting business with anyone implying that his attendance at law school gives him the ability to advise individuals."
In a six-page attachment, Perez described the harassment Fineberg had perpetrated. Upon the recommendation of a colleague, Perez, a retired professor of chemistry, consulted with Fineberg about negotiating a home equity loan and about a dispute she had with her homeowners' association, who threatened legal action against her. Fineberg advised Perez to cease making payments on her obligations to the homeowners' association and to her bank, all as "part of his plan to assist [Perez] and to provide a basis for renegotiating payments" to both institutions. Fineberg took all papers relating to Perez's personal affairs, including tax, property, and other financial matters. After the homeowners' association filed a small claims action against Perez, Fineberg divulged that he was not admitted to the California Bar, but, Fineberg explained, not being a bar member was an advantage because he could represent her in small claims court. To enable him to represent her, Fineberg demanded that Perez sign a general durable power of attorney and provide access to her medical records. Perez signed the power of attorney and authorized her physician to provide statements about her health, which Fineberg then attached to his restraining order petition. Fineberg recorded the power of attorney. Perez learned from her bank that Fineberg had gained access to her bank accounts, had been receiving her bank statements, and had used the power of attorney to divert all of Perez's mail, including her pension check, to his address. Perez did not realize or intend that Fineberg should take over all of her business.
Continuing, Perez explained in the attachment to her petition for a restraining order that although she lost in small claims court, Fineberg never provided her copies of any of the documents. Perez soon learned that because she was not paying her mortgage, the bank was planning to foreclose the loan secured by her house. She also learned that Fineberg had circulated her doctor's letter to the bank and to the office handling her pension. Perez demanded Finberg return all of her papers and records. Fineberg refused, telling her the power of attorney was irrevocable, accusing Perez of being "crazy" and "incompetent," and calling her behavior "bizarre."
Perez hired counsel to assist her in revoking the power of attorney. She went to her bank branch in Claremont to assure that Fineberg could no longer have access to her account. While she was there, Fineberg came into the bank. Stymied in his attempt to gain access to her account, Fineberg "created a scene, yelling to everyone present that [Perez] was crazy, incompetent, dangerous and that [the bank] could not do that to him." Thereafter, Fineberg attempted to contact Perez by telephone and email, demanding that she rescind her revocation, making claims, and attempting to coerce Perez into paying him money. On February 11, 2010, Fineberg notified Perez that he would be recording a "contractor's lien" on her property, apparently under Civil Code, section 3084 (mechanic's liens), that sought more than $100,000 for services rendered, based on an hourly rate ranging from $200 to $400 per hour.
Perez disputed who made death threats against whom, and who actually damaged Fineberg's vehicle. "As my health is frail and I am afraid of him," Perez explained, "I have tried to avoid having any contact with him." Perez has two friends staying with her to provide a measure of safety, protection, and moral support.
At the hearing on Fineberg's petition, Fineberg testified he did not witness the vandalism to his car. Perez categorically denied threatening Fineberg's life. The court denied Fineberg's restraining order petition and told Perez to request her fees at the subsequent hearing on her petition.
By the time of the hearing on Perez's petition, Fineberg had retained counsel to represent him. The trial court commenced by relating to Fineberg's attorney its particular concern about "the apparent threat by Mr. Fineberg to attempt to place a $100,000 lien on Ms. Perez' home." Fineberg confirmed that he did in fact place the lien on Perez's property "to recover compensation for work performed at her [Perez's] request." Asked repeatedly to explain the legal basis for the lien, Fineberg could not give one. Fineberg's attorney argued that the validity of the lien should more appropriately be litigated in an action to quiet title. The court responded that Fineberg chose the forum by filing the restraining order petition, and observed, "You know, until this morning[,] I wasn't even aware that Mr. Fineberg had recorded a lien. But I was concerned of [sic] the e-mail demands for money that he was making, the e-mail threats that he was making to Ms. Perez, and then the threat to place a lien on her home for $100,000 rather than just filing a lawsuit against her. And I think that if true, and apparently it is, that that pattern of conduct would constitute civil harassment. Fineberg and his attorney offered to rescind and cancel the lien.
Perez testified that Fineberg falsely purported to be her conservator. She denied agreeing to pay him for the few tasks he did for her. He had offered to help with some financial affairs, as a friend. Fineberg performed a small number of duties only, namely to straighten out her problem with the homeowners' association, and negotiate a refinance with her bank, and obtain a tax refund for her. Perez testified that Fineberg had tried to deal with her pension administrator, her doctor, and her banks, without her permission. She also mentioned harassing emails Fineberg sent her. Perez testified that Fineberg had not returned papers that he had taken from her house one day when she was not home.
Following argument of counsel, the court granted Perez's petition. In particular, the court ordered Fineberg to cease harassing or contacting Perez, to stay at least 100 yards away from Perez's home and vehicle, to return all papers belonging to Perez, to cease communicating any information about the financial, or medical condition or affairs of Perez, and to take all steps necessary to clear Perez's title. Fineberg appeals.
CONTENTIONS
Fineberg contends there is insufficient evidence to justify the restraining order and the harassment proceeding is an improper forum to determine the validity of his lien.
DISCUSSION
1. Fineberg forfeited his sufficiency-of-the-evidence contention by failing to provide an adequate record.
To obtain a restraining order prohibiting harassment under section 527.6, the proponent, Perez in this case, must show by clear and convincing evidence that she has been harassed. (§ 527.6, subd. (d).)
Harassment is defined as "unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff." (§ 527.6, subds. (b) & (d).) " '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 email." (§ 527.6, subd. (b)(3).)
In challenging the sufficiency of the evidence to support the restraining order, Fineberg contends there is no evidence that his actions lacked a "legitimate purpose" and no evidence that Perez "suffer[ed] substantial emotional distress." (§ 527.6, subds. (b) & (d).)
This case comes to us on a woefully inadequate record. As appellant, Fineberg carries the burden to show trial court error. However, he did not provide copies of the petitions for restraining orders or their attachments, forcing Perez to augment the record with these items. More important, Fineberg waived his sufficiency of the evidence contention because his appellate brief did not present a summary of all of the evidence adduced at the hearing below most favorably to the judgment. He only discussed the evidence supporting his contention on appeal, describing discussions the court had with his attorney, and characterizing the questions posed by Perez's counsel. " 'Failure to set forth [all of] the material evidence on an issue waives a claim of insufficiency of the evidence.' [Citation.] When parties assert a challenge to the trial court's decision based on the absence of substantial supporting evidence, they ' " are required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error is deemed to be waived." ' [Citation.]" (Clark v. Superior Court (2011) 196 Cal.App.4th 37, 52-53.) By discussing only evidence tending to support his position, and by omitting material portions of the record, Fineberg has forfeited his right to challenge the sufficiency of the evidence to support the harassment restraining order. (See also Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003-1004 & fn. 2.)
We briefly note, however, based on the restraining order petitions and attachments submitted by Perez in her motion to augment the record, and after reading the entire reporter's transcript, that the evidence amply supports the trial court's order. The evidence shows Fineberg's willful pattern, under the color of authority as an attorney, of invading her privacy by usurping Perez's finances, bank accounts, pension, and medical information, taking things from her house without her permission and when she was not home, sending her threatening emails and messages, slandering her reputation and name, and placing a mechanic's lien (Civ. Code, § 3084) on her property. All of this activity was entirely unrelated to the discrete tasks she asked him to perform, with the result the conduct served no legitimate purpose. Furthermore, this course of extremely intrusive conduct understandably caused Perez, a frail, ill woman of 66, such fear and distress that she has had people stay with her for safety, protection, and support. (§ 527.6, subds. (b) & (d).) The restraining order is supported by the record before us.
2. Fineberg stipulated to the order he clear Perez's title and so he is estopped from challenging it on appeal.
As for his second contention on appeal, Fineberg argues that whether the contractor's lien was valid should not have been determined in the civil harassment proceeding. He relies on Marquez-Luque v. Marquez (1987) 192 Cal.App.3d 1513 (Marquez-Luque) to argue the trial court had no authority, i.e., jurisdiction, to make any orders other than those provided by section 527.6, and so the orders to remove the lien and return property to Perez fell outside of the court's authority under section 527.6. Marquez-Luque is wholly distinguished.
In that case the plaintiffs obtained letters of administration for their late father's will. Their brother, the defendant, had been living with their late father in his house and threatened to burn it down and bring harm to the family if the plaintiffs were to probate the estate. The plaintiffs filed petitions for injunction with an application for a temporary restraining order to enjoin the defendant from harassing family members. (Marquez-Luque, supra, 192 Cal.App.3d at p. 1515.) In reversing the trial court's order removing the defendant and his personal effects from the property (id. at p. 1516), the appellate court explained, while the defendant's threatening conduct justified a personal injunction prohibiting the conduct, that removal from the home was not a remedy authorized by Code of Civil Procedure section 527.6. (Id. at p. 1517.) Nor did the trial court's general equity power justify the removal order. Instead, there are specific legal remedies to take possession of the estate realty, such as an action in ejectment or to quiet title. (Id. at p. 1518.) The appellate court explained that the defendant was a tenant at sufferance and was entitled to proper service of summons and complaint and an opportunity to answer prior to issuance of an eviction order. (Ibid.)
The most salient fact distinguishing Marquez-Luque is that the defendant there had been legitimately living as a tenant in the house and his mere presence there was not part of the harassing conduct. By comparison, the mechanic's lien here was, on its face invalid - Fineberg was unable to justify the legal basis for filing a mechanic's lien under Civil Code, section 3084 -- and was itself part of the overall course of harassing conduct.
In any event, the jurisdictional problem to which Fineberg alludes is not the lack of subject matter or personal jurisdiction, i.e., jurisdiction in the fundamental sense; Fineberg argues that the court took action in excess of its jurisdiction. In Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, our Supreme Court differentiated these two types of jurisdiction: "[t]hough the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no 'jurisdiction' (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites." (Id. at p. 288, italics added.) Continuing, Abelleira explained, "any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction . . . ." (Id. at p. 291, italics added.) In arguing that section 527.6 does not authorize the trial court here to order him to clear Perez's title, Fineberg challenges the restraining order as made in excess of the court's jurisdiction.
But, " '[a] party may, by its conduct, be estopped from contesting an action in excess of jurisdiction' [citation] because conduct that is in excess of jurisdiction by a court that has subject matter jurisdiction is voidable not void. [Citation.] When, as here, ' " 'the court has jurisdiction of the subject, a party who seeks or consents to action [that might be] beyond the court's power as defined by statute or decisional rule may be estopped to complain of the ensuing action in excess of jurisdiction. [Citations.]' " ' [Citation.]" (Schwartz v. Labow (2008) 164 Cal.App.4th 417, 430.)
Fineberg is estopped from appealing from the restraining order directing him to clear Perez's title because his petition for restraining order asked the court to enforce the lien and then he and his attorney stipulated in open court to removing it from Perez's title. Having raised the matter in the trial court and then stipulated to removing the lien, Fineberg is estopped to challenge the ensuing order as taken in excess of the court's jurisdiction. (Schwartz v. Labow, supra, 164 Cal.App.4th at p. 430.)
DISPOSITION
The order is affirmed. Respondent to recover costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
CROSKEY, Acting P. J.
KITCHING, J.