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Bedford-Potter v. Tater-Alexander

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Apr 22, 2014
F065796 (Cal. Ct. App. Apr. 22, 2014)

Opinion

F065796

04-22-2014

JILL BEDFORD-POTTER, Respondent, v. MICHAEL TATER-ALEXANDER, Appellant.

Michael Tater-Alexander, in pro. per., for Appellant. Myers Law Office and Dorinda J. Myers, for Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 12CEFL03857)


OPINION


THE COURT

Before Gomes, Acting P.J., Detjen, J., and Peña, J.

APPEAL from orders of the Superior Court of Fresno County. Ronda Duncan, Commissioner.

Michael Tater-Alexander, in pro. per., for Appellant.

Myers Law Office and Dorinda J. Myers, for Respondent.

Michael Tater-Alexander, in propria persona, appeals from the trial court's orders imposing temporary and permanent domestic violence restraining orders against him. He contends the evidence was insufficient to justify the orders because it was stale and did not constitute harassment or abuse within the meaning of the applicable statutes. We conclude that substantial evidence supports the orders and affirm.

FACTS AND PROCEDURAL HISTORY

Jill Bedford-Potter (Potter) began dating Tater-Alexander in 2001. In 2002, he moved into the house she owned and shared with her two daughters. Potter paid all expenses associated with the house. In 2009, Potter's relationship with Tater-Alexander ended, but he continued to live at the house as a roommate. About that time, Tater-Alexander became disabled and used and abused pain medication, which caused him to behave erratically. He had a handgun. Potter did not feel safe in her house and moved her daughter out of the house because she feared for her well-being. Eventually, Potter asked Tater-Alexander to move out but he refused. On June 8, 2012, Tater-Alexander locked Potter out of the house and threatened her with arrest if she attempted to enter her own house.

On June 28, 2012, Potter filed a request for a domestic violence restraining order against Tater-Alexander. In the declaration filed in support of her request, Potter set forth the facts surrounding the June 8 lockout. She was staying with friends because being around Tater-Alexander caused her great physical and emotional pain and distress. She had recently been diagnosed with hypertension and was now on medication to control her blood pressure. Tater-Alexander had not contributed to the upkeep or paid for anything related to the house for the last two years. There was no agreement permitting him to stay. Tater-Alexander had a handgun and Potter no longer felt safe in the house she owned. When she attempted to talk with him, his only response was "fuck you."

Potter attached several emails Tater-Alexander and she had exchanged between June and September 30, 2011. Tater-Alexander stated he needed six to seven months to save in order to move or she could pay him $5,000. The final email is profanity laced and includes, "You are a fucking cunt, that's all you are. If I catch you touching, destroying, throwing away any of my shit again you will never know what you will lose." "I know how to get even and beyond, you wanna fuck with me you fucking cunt, bring it on. Now pretend that you have done nothing and then I'll fly your fucking lies in you cunt-head face."

The trial court granted a temporary restraining order (TRO) on June 28, 2012.

Tater-Alexander opposed the TRO and request for a permanent restraining order. He claimed the residence was his home. He had lived there for 10 years and Potter had not lived there since November 2011. He and Potter had a contract allowing him to live at the house and Potter was using the restraining order process to breach the contract. He had spent thousands of dollars on house repairs, maintenance and upkeep. He had a limited income and no place to move to. He denied harassing, threatening or assaulting Potter or her daughters. He has never been arrested for "DUI, drugs, alcohol or physical violence." His email statements to Potter were his attempts to tell her he would file a breach of contract lawsuit and subpoena witnesses and documents to prove the existence of the contract. Further, Potter had harassed him. She had yelled and kicked his bedroom door, removed the plates, cups, silverware—half of which belonged to him—and taken his property. When Potter threatened to "trash" his remaining property, he installed a deadbolt lock on the front door. He owns a firearm but it has not been fired in three years. Tater-Alexander requested $500 in sanctions and that Potter be investigated for perjury, conspiracy and fraud.

In support of his opposition, Tater-Alexander attached an email he sent to Potter with a date of "June 8," in which he calmly and without profanity sets forth his position regarding the house. He also included a declaration from his daughter, dated March 7, 2012, that Tater-Alexander had asked her to house-sit while he was out of town in order to keep up the house and feed Potter's cat. Potter never came by the house after November 2011.

At the hearing on the request for the restraining order, Tater-Alexander attempted to disqualify the judge for cause. The court read the document, which was mislabeled as a challenge under "CRC 107.6(A)(6)(C)," as a peremptory challenge and denied it as untimely and because Tater-Alexander had already made a Code of Civil Procedure section 170.6 challenge to another judge. Tater-Alexander objected that the challenge was for cause but the court did not rule further at the time. The court then granted Potter's motion to quash Tater-Alexander's discovery subpoenas to Yahoo, J.P. Morgan Chase and Washington Mutual. Tater-Alexander refused to participate further and left the courtroom. Subsequently, the court amended its ruling on the disqualification motion. It construed the motion to be a challenge for cause under Code of Civil Procedure section 170.3, which it then denied on procedural grounds.

At the hearing, in support of her request, Potter testified the house was hers. She had purchased it and the deed was in her name. In 2002, Tater-Alexander had moved in with her and her two daughters. In 2009, he became ill and began to use painkillers "in excess." They agreed that Tater-Alexander would be a roommate and Potter moved out of the master bedroom and slept on the couch. Tater-Alexander stopped contributing to the family. He would not pay bills or pick up the girls from school. Potter eventually asked him to move out in April 2011. Tater-Alexander put her off by promising to move in a few months. When she pressured him for a date certain, he threatened to take her to court, run up her legal bills, put her daughters on the stand and make them cry, bring her parents into it, and make her life a living hell.

In October 2011, Potter moved her 16-year-old daughter from her house to the girl's father's house. Tater-Alexander was making it too uncomfortable by yelling, snorting his painkiller, talking to his girlfriends on the phone and writing profane remarks about Potter and her daughter on the kitchen window. During the day while her daughter was at school, Tater-Alexander would enter the daughter's bedroom, lie on her bed and watch the television in her room. When the toilet in the master bathroom began leaking into the hallway, Tater-Alexander refused to permit a plumber to assess the problem and estimate the cost of repairs. He told Potter that any attempt to enter his room would be met with whatever force was necessary to protect himself and his property. Tater-Alexander kept a gun in the bedroom and threatened to shoot anyone who threatened his property.

Potter felt Tater-Alexander was going downhill mentally and feared his irrational behavior if she moved forward with evicting him. She stayed away from the house for six months while she cared for her dying fiancé and initiated legal proceedings to get him out of the house. When her fiancé passed away, she returned to her house. Tater-Alexander had changed the locks on the house and would not let her in. Potter did not force her way into the house because she knew Tater-Alexander had a gun. She was afraid of him and what he might do. She contacted the Clovis Police Department, but they would not help her because Tater-Alexander had been living at the house and she had not.

Potter read a number of emails on the stand that Tater-Alexander had sent, which contained verbal deprecation, vulgar language, threats and profanity.

Potter's neighbor of 20 years testified in support of the restraining order. She found Tater-Alexander's behavior to be erratic. She heard him yell profanely at Potter and feared he might hurt Potter. One day, he posted an email outside the house in which he called Potter and her daughters vulgar names.

Potter's counsel argued that Tater-Alexander had engaged in a long-term pattern of psychological and emotional abuse of Potter, who needed the protection of a restraining order. At the conclusion of the hearing, the court found there had been a pattern of harassment since the latter part of 2011 through and including June 8, 2012, when Tater-Alexander changed the locks on the house and posted a profanity-laced statement about Potter on the walls of the house. The court granted the restraining order for three years. Tater-Alexander appealed from the orders imposing both the temporary and permanent restraining orders.

DISCUSSION

The purposes of the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.) are to prevent a recurrence of domestic violence and to provide for separation of the persons involved. (§§ 6220, 6300.) A restraining order may be issued if the information provided shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse. (§ 6300.) In pertinent part, the DVPA defines domestic violence as "abuse" perpetrated against a cohabitant. (§ 6211, subd. (a).) Among other things, "abuse" means placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another or engaging in behavior that could be enjoined pursuant to section 6320. (§ 6203.) Behaviors included in section 6320 include attacking, threatening, harassing, destroying personal property, contacting by mail or otherwise, or disturbing the peace of the other party. (§ 6320, subd. (a).)

Further statutory references are to the Family Code.
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The decision whether to impose a domestic violence restraining order rests in the discretion of the trial court after consideration of the particular circumstances of each case. On appeal, we review the order for abuse of discretion. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495.)

Temporary Restraining Order

Section 6320 authorizes the court to issue an ex parte order enjoining a party from specific acts including threatening, harassing, contacting by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party. (§ 6320, subd. (a).) The court may issue an ex parte order excluding a party from the dwelling of the party or both parties to be protected from domestic violence. The order may continue for the period and on the conditions determined by the court, and may be issued regardless of which party holds title to the dwelling. (§ 6321, subd. (a).) However, the order may not be issued without a showing of all the following: (a) the party who will remain in the dwelling has a right to possess the premises; (b) the party to be excluded has assaulted or threatened to assault the other party; and (c) physical or emotional harm would otherwise result to the other party. (§ 6321, subd. (b).)

To the extent Tater-Alexander is challenging the TRO, his challenge is meritless. In support of her request, Potter declared that Tater-Alexander asserted she no longer lived in her own house. He changed the locks and threatened her with arrest if she attempted to enter. He demanded $5,000 from her to move out. Tater-Alexander owned a handgun and stated he would use it to protect his property. He used and abused pain medications. Because of his drug use, declining mental state, and his hatred of Potter because she had asked him to move out of her house, she was afraid for her life and for that of her daughter if he continued to stay at the house. Potter attached to her declaration vulgarity-laced emails, albeit dated nine to twelve months earlier, from Tater-Alexander that denigrated and threatened Potter. This evidence was sufficient to show that Tater-Alexander had disturbed Potter's peace, that he had threatened to assault her and that physical or emotional harm would result to her absent the restraining order.

Domestic Violence Restraining Order

Tater-Alexander challenges the sufficiency of the evidence to support the order. The issue before us is whether there is substantial evidence, contradicted or not, supporting the court's finding. (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822.) We accept as true all evidence tending to establish the correctness of the trial court's findings, resolving every conflict in favor of the judgment. (Id. at p. 823.)

Tater-Alexander contends that this matter is a contract dispute. He made that assertion—without supporting evidence—in his opposition papers. However, he left the hearing without presenting any evidence to contradict Potter's testimony, which detailed her right to the house and his history and pattern of verbal and emotional abuse.

The court evidently found Potter's testimony credible. As such, substantial evidence supported the court's finding that Tater-Alexander committed domestic violence and his attempts to reargue the evidence on appeal are unavailing.

Tater-Alexander also contends the 2011 emails are too old to constitute evidence of an on-going threat. His argument ignores Potter's testimony that supported findings that the abuse continued until Potter filed this matter.

Tater-Alexander next contends that to the extent he threatened anything, it was simply to initiate legal action, which is not harassment. The trial court disagreed and its findings are supported by substantial evidence. The court noted that while yelling and calling someone names in and of itself may not be harassment, the continual use of that conduct along with locking someone out of their home and posting vulgar statements on the house about Potter and her daughter constituted a pattern of harassment. The court also noted that Tater-Alexander's statements in response to Potter's attempts to have a repairman in the house that he would use whatever force was necessary to protect himself, coupled with his possession of a gun, was consistent with what witnesses had described as his irrational behavior. Accordingly, the trial court's findings that Tater-Alexander's conduct constituted abuse within the meaning of the DVPA were not based on his threats to initiate civil litigation.

Finally, Tater-Alexander contends the court misapplied Code of Civil Procedure section 527.6, subdivision (c). Not so. That section generally provides injunctive relief, on a showing of good cause, to one who has suffered harassment. Here, Potter sought, and the court granted, restraining orders pursuant to the Family Code—not the Code of Civil Procedure. Thus, those code sections do not apply to this proceeding. Tater-Alexander's contentions regarding related sections of the Code of Civil Procedure are equally irrelevant.

Because substantial evidence supports the trial court's findings that Tater-Alexander engaged in domestic abuse, which supported imposition of the DVPA orders against him, he has failed to meet his burden to show reversible error.

DISPOSITION

The orders are affirmed. Respondent is awarded costs.


Summaries of

Bedford-Potter v. Tater-Alexander

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Apr 22, 2014
F065796 (Cal. Ct. App. Apr. 22, 2014)
Case details for

Bedford-Potter v. Tater-Alexander

Case Details

Full title:JILL BEDFORD-POTTER, Respondent, v. MICHAEL TATER-ALEXANDER, Appellant.

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Apr 22, 2014

Citations

F065796 (Cal. Ct. App. Apr. 22, 2014)