Putneyv.Dang

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWODec 13, 2018
E068781 (Cal. Ct. App. Dec. 13, 2018)

E068781

12-13-2018

JULIE ANNA PUTNEY, Plaintiff and Respondent, v. MINH CONG DANG, Defendant and Appellant.

Minh Cong Dang, Defendant and Appellant in pro. per. No appearance for Defendant and 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CIVMS1700078) OPINION APPEAL from the Superior Court of San Bernardino County. Joel S. Agron, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Minh Cong Dang, Defendant and Appellant in pro. per. No appearance for Defendant and Respondent.

Minh Cong Dang appeals from an injunction forbidding him to harass Julie Anna Putney. We will conclude that all of his challenges to the injunction have been forfeited, lack merit, or both. Hence, we will affirm.

I

FACTUAL BACKGROUND

At one time, Putney and Dang were friends. One day, however, when Dang was at Putney's home, her dog bit him. Putney paid Dang's emergency room (ER) bill.

Dang then started sending Putney threatening text messages. She knew they were from him because they showed his name and phone number. They said, among other things, that he wanted all of her dogs shot. Putney showed the trial court screenshots of Dang's text messages. However, they were not formally admitted into evidence, and they were returned to Putney at the end of the hearing.

Dang also telephoned Putney "continuously," "[a] hundred and thirty [times] per day." She answered the calls because they "c[a]me up as private numbers." She knew they were from him because she recognized his voice. The first few times, she asked him to contact her attorney and to leave her alone. After that, he would just say her name, and she would hang up. Eventually, she and her husband had to shut their phones off for a week.

On one occasion, Dang drove on Putney's property. She could see "something metal" in his hand. She called 911 and he was arrested for trespassing.

Dang, for his part, denied that Putney had ever paid his ER bill. He also denied phoning Putney or sending her the text messages that she had shown the trial court. At the same time, however, he appeared to admit phoning and texting her, albeit only to ask her to pay his medical bills:

"MR. DANG: And, no, I do not call her. All I ask for is that my ER bills to be paid." (Italics added.)

"THE COURT: Sir, I have this packet of text messages that contain a lot of requests for medical bills to be paid. So, are these not yours? . . .

"MR. DANG: I did request for the medical bills to be paid . . . ." (Italics added.)

The trial court observed that the text messages "appear to be authentic." It found that "[t]he tone of the text[s] is extremely angry and aggressive, . . . threatening the safety of both people and animals on the property." Moreover, it found that "the sheer number of them rises to a level of harassment." Finally, it found that it "would undoubtedly disturb the p[ea]ce of any person to receive that number of phone calls."

II

DANG HAS NOT SHOWN ERROR

A. General Appellate Principles.

We begin with some general principles of appellate review.

"'"A judgment . . . of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown."' [Citation.]" (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 563.)

"'"It is the duty of an appellant to provide an adequate record to the court establishing error. Failure to provide an adequate record on an issue requires that the issue be resolved against appellant."' [Citation.]" (Mack v. All Counties Trustee Services, Inc. (2018) 26 Cal.App.5th 935, 940.)

"Every appellate brief must 'support each point by argument and, if possible, by citation of authority.' [Citation.] When an appellant asserts an argument but fails to support it with reasoned argument and citations to authority, we may treat the point as waived. [Citation.]" (Petitpas v. Ford Motor Company (2017) 13 Cal.App.5th 261, 271, fn. 4.)

"Appellate briefs must '[s]upport any reference to a matter in the record by a citation to the volume and page number . . . .' [Citation.] 'It is neither practical nor appropriate for us to comb the record on [a party's] behalf.' [Citation.] When a party fails to support a point with record citations, the point may be forfeited. [Citation.]" (Caldera v. Department of Corrections and Rehabilitation (2018) 25 Cal.App.5th 31, 46.)

"'[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court. [Citation.]' [Citation.] We will therefore 'ignore arguments, authority, and facts not presented and litigated in the trial court.' [Citation.] Such arguments raised for the first time on appeal are generally deemed forfeited. [Citation.]" (Perez v. Grajales (2008) 169 Cal.App.4th 580, 591-592.)

"'Where findings of fact are challenged on a civil appeal, we are bound by the "elementary, but often overlooked principle of law, that . . . the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted," to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor . . . .' [Citation.]" (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.)

Finally, "appellants who challenge the decision of the trial court based upon the absence of substantial evidence to support it '"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 waived." [Citations.]' [Citation.]" (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)

B. Discussion.

1. Judicial misconduct.

Dang contends that the trial court committed judicial misconduct: "The Commissioner committed multiple prejudice[d] acts that led to a miscarriage of justice, and conducted a legal proceeding that resembled that of a barbaric medieval trial. The Commissioner even testified for the Plaintiff. The Commissioner interrupted my testimony multiple times, while letting the Plaintiff testify without any interruption. The Commissioner went as far as asking me questions while refusing to let me answer the questions."

Dang has not provided any reasoned argument or citation of authority to support his contention. Also, with one exception, which we discuss next, he has not cited any of these assertions to the record.

During Putney's testimony, Dang said, "I didn't send those text messages." The trial court replied, "I'll give you the opportunity to explain to me why you didn't send those." Dang argues that this was "abusive." Not at all. The trial court merely indicated in a perfectly courteous manner that, when Dang testified, he would have an opportunity to deny sending the text messages and/or to introduce evidence (such as phone records) that he did not send them.

2. Sufficiency of the evidence.

Dang contends that there was insufficient evidence to support the harassment injunction.

He has forfeited his contention by failing to set forth all of the material evidence on this point.

Separately and alternatively, we also reject this contention on the merits.

First, Dang argues that the text messages were never admitted into evidence. Clearly the trial court did consider the text messages. Thus, they were in evidence de facto, if not de jure. (People v. Winslow (1995) 40 Cal.App.4th 680, 686, fn. 4.) Dang forfeited any objection to this procedural irregularity by failing to raise it below.

Second, Dang argues that Putney's uncorroborated testimony regarding his phone calls was insufficient. That is incorrect. "It is well established that '"'[t]he testimony of a [single] witness . . . may be sufficient' [to support a judgment]."' [Citations.]" (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1075.) While Putney did not testify that the calls came from Dang's phone number (and could not, because they came up as from a private number), she tied him to them sufficiently by testifying that she recognized his voice.

Third, Dang argues that Putney contradicted herself by testifying that she answered every call from him and yet also that she turned her phone off for a week. He has forfeited this contention by failing to support it with any citation to the record. Even after examining the record on our own, we have not found any testimony that she answered every call from him; rather, she testified that she answered his calls because they came up as private, so she could not be sure they were from him. Her testimony that the calls were so harassing that she eventually had to shut her phone off entirely does not contradict this.

Fourth, Dang argues that there was no evidence that his phone calls and text messages constituted harassment. For purposes of a harassment injunction, 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 that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner." (Code Civ. Proc., § 527.6, subd. (b)(3).)

Dang claims, "There was no 'credible threat of violence' committed by me towards the Plaintiff." (Bolding omitted.) He has forfeited this contention by failing to provide us with an adequate record — we do not have the text messages. Even though they were returned to Putney at the end of the hearing, Dang could have asked us to augment the record with them. (See Cal. Rules of Court, rule 8.122(a)(3).)

We also note that Putney testified that, in the text messages, Dang said he wanted all of her dogs shot. This was sufficient evidence of credible threats of violence.

In any event, Putney was not necessarily required to show a credible threat of violence. It would be enough if, instead, she showed 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. Dang does not claim that she did not show this.

Dang also claims there was no evidence that Putney suffered substantial emotional distress. From the very outrageousness of his conduct, however, it was reasonably inferable that it caused substantial emotional distress.

3. Clear and convincing evidence.

Dang contends that the evidence supporting the injunction was not clear and convincing.

"'"'The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal.' [Citations.]" Thus, on appeal from a judgment required to be based upon clear and convincing evidence, "the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent's evidence, however slight, and disregarding the appellant's evidence, however strong."' [Citations.]" (Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1227, fn. 11.)

4. Constitutionally protected activity.

Dang contends that asking Putney to pay his medical bills was constitutionally protected activity.

We may assume, without deciding, that he is correct. Even if so, however, on this record, he cannot show that his phone calls and text messages did no more than ask Putney to pay his medical bills. Also, Putney had asked him to contact her attorney, not her; at that point, he could continue to request payment through her attorney, but it was unprotected harassment to phone and text her directly. (See R.D. v. P.M. (2011) 202 Cal.App.4th 181, 191-194.) Finally, the trial court could reasonably find that the sheer number of contacts constituted harassment, without regard to their content. (See generally Perry Ed. Assn. v. Perry Local Educators' Assn. (1983) 460 U.S. 37, 45 ["The state may . . . enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication."].)

5. Privilege.

Dang contends that any discussion of his medical bills was inadmissible, either as "part of settlement discussion" (see Evid. Code, § 1152, subd. (a)) or as "communication between attorneys." (See Evid. Code, § 950 et seq.)

Dang cites Evidence Code section 1119. That section, however, is irrelevant because it pertains exclusively to communications in connection with a mediation. --------

He forfeited this contention by failing to object below. (Evid. Code, § 353, subd. (a).)

Separately and alternatively, there was no evidence that Dang made any offer to compromise. And because neither Dang nor Putney was an attorney, the attorney-client privilege did not apply. In any event, communications between parties or attorneys who are adverse to each other are not privileged.

6. Authentication of the text messages.

Dang contends that the text messages were not adequately authenticated.

Once again, he has not provided us with an adequate record, because we do not have the text messages.

Separately and alternatively, he forfeited this contention by failing to object below.

Finally — and, again separately and alternatively — the text messages were adequately authenticated. Authentication of a writing merely requires sufficient evidence that it is what the proponent of the evidence claims it is. (Evid. Code, § 1400.) Putney testified that she knew the text messages were from Dang because they showed his name and phone number. This was sufficient to authenticate them.

Dang argues that they could have been spoofed. However, "'[a]s long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility.' [Citation.]" (People v. Goldsmith (2014) 59 Cal.4th 258, 267.)

Moreover, the text messages were also authenticated — as the trial court observed — by their contents, i.e., by the fact that they nagged Putney to pay Dang's medical bills. (Evid. Code, § 1421; see People v. Landry (2016) 2 Cal.5th 52, 87.)

III

DISPOSITION

The order appealed from is affirmed. Because Putney has not appeared, costs are not awarded against either party.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J. We concur: CODRINGTON

J. RAPHAEL

J.