Opinion
A119624
7-1-2008
CHARMAYNE SMITH, Plaintiff and Respondent, v. PATRICIA HILLIARD, Defendant and Appellant.
Not to be Published
Patricia Hilliard appeals from an order prohibiting harassment under Code of Civil Procedure section 527.6. She contends the order is not supported by sufficient evidence and her actions could not support the issuance of an anti-harassment restraining order, because they served the legitimate purpose of protecting her family.
We will affirm the order.
I. FACTS AND PROCEDURAL HISTORY
On July 24, 2007, Patricia Hilliard filed a Request for Orders to Stop Harassment against respondent Charmayne Smith in San Francisco Superior Court (case no. CCH-07-566561). The request named her daughter Chloe as an additional protected person and requested a temporary restraining order (TRO) against Smith. Patricia alleged that Smith had thrown a broom at her, taunted and threatened her, alleged that Chloe was kissing Chloes boyfriend, confronted Chloe about mugging Smiths daughter, swore, and called Patricia and Chloe racists. As a result, Patricia allegedly missed meetings and was afraid to leave her apartment until Smith was in her own apartment. Patricia also feared that Smiths behavior was escalating.
Because Patricia and Chloe have the same last name, we refer to them by their first names, for clarity and without disrespect.
The court granted the TRO and set a hearing on Patricias request for an injunction.
On July 26, 2007, the TRO and Patricias Request for Orders to Stop Harassment were served on Smith. On that same day, Smith filed an answer to the request, contending it should be denied because she had tried to be a good neighbor. Smith also filed her own requests for orders to stop harassment against Patricia (San Francisco Superior Court, case no. CCH-07-566578) and Chloe (San Francisco Superior Court, case no. CCH-07-566577).
A. Smiths Requests for Restraining Orders
In her request for a restraining order against Patricia, Smith alleged that she "felt threaten[ed] by Patricia" because of the things Patricia said to Smith and her daughter. Patricia allegedly taunted Smith in the hallways and called her "bitches," "whores" and "sluts" and threw objects at her bathroom wall. Smith was "afraid" Patricia would "make up a story about [Smith] hurting her" and "hurt herself and claim that [Smith] did it." Smith further alleged: "I cant sleep or eat. I also feel distress and hurt. I cant [do] things I normally do. I also feel like I cant go home."
In her request for a restraining order against Chloe, Smith alleged that she felt threatened because Chloe said disrespectful things to Smith and her daughter and called them "bitches, whores, and sluts." She also claimed that Chloe threw objects at Smiths bathroom wall. She feared Chloe would make up a story about Smith hurting her and indicated she could not sleep or eat and felt she could not do what she normally did or go home.
B. Hearing and Evidence
On August 8, 2007, a combined hearing was held on Patricias and Smiths respective requests for restraining orders. Smith appeared in pro per, while Patricia and Chloe were represented by counsel. Smith testified on her own behalf. Patricia and Chloe testified and produced two witnesses, Melanie Enman (Enman), who lived in the apartment below Smith, and David Lincoln (Lincoln), who lived in the apartment above Smith. The testimony included the following.
Patricia and Chloe live together in an apartment in San Francisco. Smith lives on the same floor of the apartment building. The two apartments share a common wall: on one side is Chloes bedroom, and on the other side is Smiths bathroom.
Smith testified that she tried to be a peaceful and helpful neighbor to Patricia. Chloe, however, threw objects at the common wall between the two apartments. In addition, Patricia reported Smith to the police or threatened to report her numerous times, including once when Smith merely opened a window and another occasion when Smith asked Chloe not to engage in "heavy petting and heavy tongue kissing" outside the apartment building door. Smith explained: "So, I got a restraining order as well because I thought in her [Patricias] wrath, she is being so dangerous and so provoking, I fear that she would hurt herself and try to call the police."
Patricia denied ever harassing Smith and testified that Smith had verbally accosted Chloe and followed Chloes boyfriend.
Chloe also denied harassing Smith. In regard to the accusation that she threw things at the wall between the two apartments, she opined that the noises Smith heard could have been caused by objects falling off a bookshelf when she got into her loft bed.
Lincoln testified that Smith called the police to report him four times, complaining that he was dropping objects on the floor, which she could hear in her apartment. On the first occasion, he and his family were not even home. Before the last time Smith called the police, he had moved his sons crib, which is on wheels, from the living room to his sons sleeping area. Lincoln further testified that he heard loud noises coming from Smiths apartment, but hearing sounds from other tenants was not unusual in an apartment building.
By Smiths account, she called the police to report Lincoln because he dropped furniture similar in size to the court reporters desk. Furthermore, she testified, Lincoln stalked her in her house and "goes traveling from room to room whenever he hears us talk. He figures out where I have moved my bed because every time I move it, things drop right over that part . . .."
Enman also testified to an encounter she had with Smith. After passing Smiths daughter on the sidewalk one day, Enman entered the apartment building and proceeded to her apartment. As she was unlocking her apartment door, Enman noticed that Smith was trying to enter the building through the exterior door. When Enman opened the exterior door for her, Smith reprimanded Enman for not saying "excuse me" as she passed Smiths daughter. Enman was "baffled" by Smiths actions and, after further colloquy, eventually called the police. Smith told the police that Enman had stepped on Smiths daughters foot.
Smith had a different recollection of the incident with Enman. According to Smith, she rang Enmans doorbell to ask why Enman had pushed Smiths daughter. When Smith asked Enman why she had not said "excuse me" or "Im sorry," Enman became upset and tried to throw scalding coffee on Smith. Enman denied attempting to throw coffee on Smith.
In response to questions on cross-examination, Smith denied calling Patricia a "racist." When asked if she called Patricia "crazy," she initially testified: "You know, when you eavesdrop, you may hear things you shouldnt." Then she denied calling Patricia crazy. The Hilliards attorney made an offer of proof that Patricia had an audiotape, recorded from inside the Hilliards apartment, on which Smith, in the common area hallway, was yelling loudly enough to be heard through a closed door and referred to Patricia as a "racist" and a "crazy bitch."
According to the requests for TROs, Patricia and Chloe are "Latin" and Smith is African-American.
C. Courts Ruling
The trial court granted Patricias request and Smiths two requests for anti-harassment orders, entering mutual restraining orders.
This appeal by Patricia followed.
In appeal number A119623, Chloe appeals from the restraining order issued against her. We address that appeal in a separate opinion.
II. DISCUSSION
Patricia contends the evidence was insufficient to support the restraining order issued against her, and that her actions served the legitimate purpose of protecting her family.
A. Code of Civil Procedure Section 527.6
Code of Civil Procedure section 527.6 establishes a procedure for expedited injunctive relief to persons suffering harassment. A TRO may be obtained upon an affidavit showing reasonable proof of harassment and great or irreparable harm to the plaintiff. (§ 527.6, subd. (c).) The TRO generally lasts for not more than 15 or 22 days, within which time a hearing is held on the request for a longer injunction. (§ 527.6, subd. (d).) The injunction shall issue, for a term of not more than three years, if the judge finds unlawful harassment by clear and convincing evidence. (Ibid.)
Unless otherwise indicated, all further section references are to the Code of Civil Procedure.
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." (§ 527.6, subd. (b), italics added.) "`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." (§ 527.6, subd. (b)(3).) The course of conduct must by its nature 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).)
We review the courts issuance of an injunction under section 527.6 for an abuse of discretion, provided substantial evidence supports the courts factual findings. (See Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912 [review of permanent injunction] (Shapiro).)
Patricia contends that the court misapplied the law by issuing a restraining order despite Smiths failure to produce sufficient evidence, and that our review should therefore be de novo. Elsewhere she asserts that, "Where the appellant argues the lack of supporting evidence, the standard of review is abuse of discretion." We review for substantial evidence and abuse of discretion in accord with Shapiro, supra, 96 Cal.App.4th 904.
B. Evidence of Substantial Emotional Distress
Patricia argues that Smith, although testifying that she feared that Patricia would hurt herself and call the police (and blame Smith for her injuries), did not testify that Patricia did anything to cause Smith substantial emotional distress. Patricia further urges there was no proof that her alleged conduct would cause a reasonable person substantial emotional distress.
The court, however, need not rely solely on the oral testimony at the hearing. In relevant part, section 527.6, subdivision (d) provides: "At the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry." "Testimony" may be taken by affidavit (or declaration under penalty of perjury, see §§ 2003, 2015.5), by deposition, or by oral testimony. (§ 2002; Schraer v. Berkeley Property Owners Assn. (1989) 207 Cal.App.3d 719, 733, fn. 6 (Schraer).) Nothing in section 527.6 expressly limits "testimony" to oral testimony. (Schraer, supra, at p. 733, fn. 6 ["Both sides may offer evidence by deposition, affidavit, or 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 [section 527.6]."] italics in original; Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1110 [finding "[t]he Schraer court did not hold that the requisite clear and convincing proof of a petitioners substantial emotional distress had to be in the form of the petitioners direct testimony that he or she suffered such distress"].)
Smiths written application for a restraining order, signed under penalty of perjury, was before the court at the time of the hearing. In our review of the courts order, we must presume that the court considered Smiths application, and all its evidentiary weight, in rendering its decision. (See Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 563 ["All intendments and presumptions are indulged to support [the judgment] on matters as to which the record is silent"].)
In her application for the restraining order, Smith stated under penalty of perjury that Patricia taunted her in the hall and called her " `bitches, `whores, and `sluts. " As a result, Smith "felt threaten[ed] by Patricia," was "afraid" Patricia would "make up a story about [Smith] hurting her," could not "sleep or eat," felt "distress and hurt," could not do things she normally did, and felt she could not go home. Although she generally denied the allegations in responding to the application, Patricia did not present specific evidence contrary to the allegations at the hearing. Smith further testified at trial that "Patricia likes to call the police on me a lot," explaining that Patricia called the police once because Smith had asked Chloe to stop kissing her boyfriend in front of the apartment building, did so again because Smith merely opened a hallway window, and threatened to do so after Smith asked Chloes boyfriend not to slam a door.
Smiths distress, to the point that it interfered with her normal activities and made her feel she could not eat, sleep, or go home, supports the conclusion that she suffered substantial emotional distress as a result of Patricias actions. It was also not unreasonable to conclude that Patricias alleged conduct—hurling epithets at her and reporting her to the police on multiple occasions for ostensibly minor incidents—would cause a reasonable person to suffer substantial emotional distress.
C. Legitimate Purpose
A restraining order should not be issued under section 527.6 if the purportedly harassing conduct served a legitimate purpose. (§ 527.6, subd. (b).) Patricia contends that she called the police to report Smith in response to a series of events in which Smith "harassed, annoyed, followed, and/or abusively confronted" Patricia, Chloe, and their friends, which caused them to fear for their safety. She maintains that calling the police under those circumstances served the legitimate purpose of protecting her family and creating a record on which to support a request for a restraining order.
Based on the record in this particular case, however, we must reject Patricias contention. First, calling the police is not a statutory pre-requisite to obtaining an anti-harassment order. Second, although her call to the police after Smith had confronted Chloe outside her apartment door was expressly made to protect her daughter, it was not established that every one of Patricias calls to the police—or threats to call the police—were for this purpose. In fact, the testimony at trial suggested that even the police viewed one of Patricias reports to be unnecessary if not inappropriate. Smith testified: "[Patricia] called the . . . police . . . because I opened the hallway window. Sergeant Ed Hunt arrived at 10:30 a.m. and told her, quote unquote, `Maam, opening the window is not a crime. I have important things to do. Please dont call the officers over for things like this."
We recognize that the evidence at the hearing might be subject to more than one reasonable interpretation. But our role is neither to reweigh the evidence nor to choose among alternative permissible inferences. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.) Substantial evidence supports the conclusion that Patricia engaged in a knowing and willful course of conduct directed specifically at Smith that seriously harmed, annoyed, or harassed Smith and served no legitimate purpose. (See § 527.6, subd. (b).)
Under the circumstances, including the trial courts reasonable belief in the propriety of mutual restraining orders, the court did not abuse its discretion in imposing the restraining order against Patricia.
D. Smiths Credibility
Patricia contends that Smith failed to establish the elements for a restraining order because Smiths testimony was not credible. Patricia notes the testimony of Lincoln and Enman, Smiths refusal to admit that she called Patricia "racist" and "crazy" notwithstanding the offer of proof of an audiotape recording such statements, and the fact that Smith filed her restraining order application on the day she was served with Patricias request for a restraining order. (In addition, Patricia maintains that Smith filed a motion to correct the transcript of the hearing on the ground that the court reporter was biased against her on account of race. The motion is not included in the record on appeal, and Patricias assertion is not supported by citation to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C); Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.))
In our review of the order, we must defer to the credibility determinations of the trial court. (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.) Even if we may view Smiths testimony to be subject to justifiable suspicion, her testimony, particularly on the points material to the matter before the trial court, was not so inherently improbable or incredible as to compel reversal.
III. DISPOSITION
The order is affirmed.
We concur:
JONES, P. J.
REARDON, J.