Hall v. Davis CA5 ( 2021 )

Filed 5/7/21 Hall v. Davis CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
GUY HALL,
F078302
Plaintiff and Respondent,
(Super. Ct. No. 10794)
v.
KEITH DAVIS, OPINION
Defendant and Appellant.
APPEAL from an order of the Superior Court of Mariposa County. Michael A.
Fagalde, Judge.
Law Office of James H. Watkins, James H. Watkins and James W. Lee for
Defendant and Appellant.
Jamison Chappel & Beaumont, Nanette M. Beaumont and J. Brent Richardson for
Defendant and Respondent.
-ooOoo-
This appeal involves a dispute between neighboring property owners and
defendant’s challenge to a civil harassment restraining order and a judgment enforcing
the parties’ settlement agreement. (See Code Civ. Proc., §§ 526.7, 664.6.)1 We conclude
substantial evidence supports the trial court’s findings that defendant displayed his
middle finger at his neighbors and played music louder than 80 decibels at the property
line. These findings are sufficient to establish that defendant violated the terms of the
settlement agreement. Furthermore, these findings and the trial court’s other express and
implied findings provide an adequate basis for the court’s determination that defendant
engaged in a willful course of conduct directed at his neighbors that seriously annoyed
and harassed them and caused them emotional distress. (§ 527.6, subd. (b)(3) [definition
of harassment].) Therefore, the court properly issued a civil harassment restraining order
against defendant. (§ 527.6, subd. (a)(1).)
We therefore affirm the judgment and the restraining order.
FACTS AND PROCEEDINGS
In 2008, respondent Guy Hall and his wife purchased a 40-acre lot and residence
on Leaning Pine Way in Mariposa County. The Hall property is adjacent to real property
owned by defendant Keith Davis. Both properties are served by a common access road
approximately a quarter mile long. The access road is located on land subject to an
easement.2 The Halls’ house is on a bluff overlooking the access road. Davis has a gate
where the access road enters his property. The gate is located across from and below the
Halls’ house. Based on the testimony presented, we infer there was a cul-de-sac or
turning area in front of Davis’s gate.
2012-2016
On February 16, 2012, the Halls returned home from the Bay Area and heard
extremely loud music. The music could still be heard after they entered their house. Hall
attempted to contact Davis, thinking that Davis did not realize they had returned home.
1 Unlabeled statutory references are to the Code of Civil Procedure.
2 The access road serves four properties, three of which contain residences.
2.
Hall tried yelling onto Davis’s property and tried telephoning him, but got no response.
Hall then went onto the Davis property to ask Davis to turn down his music. When Davis
saw Hall, he told Hall to “get the fuck off this property.” Hall thought Davis did not
realize who he was. Hall told Davis he was Davis’s neighbor from next door. Davis
said, “I don’t give a fuck. Get the fuck off my property.” Hall testified that Davis
appeared to have been drinking because Davis was slurring his speech, his gait was
abnormal, and he had a drink of some sort in his hand. Hall gave a heated response and
began to leave the property. Davis said, “You do that again, and you’re gone.” Hall
stated that he was going to call the sheriff’s department. Hall did, and the sheriff’s
department responded to the call.
On January 1, 2013, Davis was working on his property with a wheelbarrow and
playing loud music. Hall went over and asked Davis to turn his music down. Again, they
exchanged heated words and Davis told Hall he hoped Hall’s children would get a
disease and die a slow death. Mrs. Hall heard the remark, became upset and contacted
the sheriff’s department, which responded.
On April 18, 2013, Davis played loud music and Hall called the sheriff’s
department. The music stopped before the deputies arrived. Hall called them to say it
had stopped and he would call again if it resumed.
On June 30, 2015, Hall asked Davis to stop flipping the bird towards Hall’s house
when Davis got out of his car to open or close his gate. The window in Hall’s daughter’s
room overlooks the area where the gate is located. Davis ignored Hall and left.
On November 5, 2015, from 11 to around 2 o’clock, Davis played a Billy Idol
song, “Eyes Without a Face,” over and over. Hall did not confront Davis, but went inside
and played music to cover the sound. Hall also wrote down a description of the event.
Other incidents involving Davis’ playing loud music, operating sirens, setting off loud
horns, and flipping off Hall occurred in November 2015 and March, April and May 2016
and were catalogued by Hall.
3.
On June 7, 2016, while Hall was getting his mail at the mailboxes and Davis drove
his Corvette past Hall, coming with two or three feet of him and then fishtailing. Hall
testified he “was pretty scared about the whole thing” and “[t]hat was it for me.”
The Lawsuit
On June 20, 2016, Hall filed a request for civil harassment restraining orders
against Davis. The court issued a temporary restraining order and set a hearing. On July
11, 2016, the evidentiary hearing started. Hall was represented by a lawyer and Davis
represented himself. Hall was the only witness, testifying on direct and cross
examination. Exhibits A through N, mostly photographs of Davis and two diagrams,
were admitted in evidence. The hearing was scheduled to reconvene two days later.
On July 13, 2016, the lawyer Davis retained filed a substitution of attorney and the
matter was continued to August 17, 2016. The continued hearing was never held because
the parties reached a settlement. The five-page written settlement agreement stated it
became effective as of August 17, 2016, and was signed by Davis, Hall, Mrs. Hall, and
their respective counsel.
Terms of Settlement
Under the agreement, Davis agreed to stay 100 yards away from Hall, Mrs. Hall
and their children and Hall agreed to stay 100 yards away from Davis, except when on
their properties or on the access road. Davis agreed not to sound off sirens, horns or
music loud enough to reach 80 decibels at the property line of Hall’s property or 250 feet
from his residence, whichever was greater. Davis also agreed “not to flip off (displaying
his middle finger at)” Hall, Mrs. Hall or their children, and Hall agreed not to flip off
Davis. Davis agreed “not to harass, disturb the peace, or make malicious comments to”
Hall, his wife or his children, “including but not limited to shining a spotlight into the
Hall residence.” Hall agreed “not to harass, disturb the peace, or make malicious
comments to” Davis. The settlement terms also addressed speeding on the access road,
4.
videotaping or photographing the yards of the other party, which included the gate to the
Davis property.
The settlement agreement provided it was enforceable under section 664.6; a
dismissal would be filed in the court action once the agreement was fully executed; the
parties waived any confidentiality consistent with Evidence Code section 1123; and the
prevailing party in any legal proceeding to enforce the agreement would be entitled to
recover reasonable attorney fees and costs. The agreement required any modification to
be in writing and included an integration clause, stating it contained the parties’ entire
agreement. The agreement stated each party cooperated in the drafting and preparation
and, thus, the agreement would not be construed against any party.
In September 2016, Hall’s attorney filed a request for dismissal. After the deputy
clerk entered the dismissal, Hall’s attorney filed a notice of entry of dismissal and proof
of service.
Motion to Enforce Settlement
On April 17, 2018, Hall filed a motion to enforce the settlement agreement
supported by declarations from Hall, Mrs. Hall, and their attorney. Mrs. Hall’s
declaration stated that (1) on the afternoon of March 8, 2018, Davis drove a tractor on the
access road with a large poster board displaying the middle finger and attached a
photograph of the vehicle and sign; (2) Davis mounted a large poster board sign of a
middle finger on a trailer and positioned it to face the Halls’ house; and (3) on June 23
and 24, 2017, September 12, 2017, and December 29, 2017, Davis displayed his middle
finger at their house while opening or closing the gate. Hall’s declaration included
additional photographs of the tractor and poster board, a photograph from a neighbor’s
game camera showing Hall and his children walking on the access road, and a
photograph of Hall taken 15 minutes later by the same camera and headed in the same
direction. Hall’s declaration described the photograph as showing Davis “with what
appears to be a gun on his right hip and a knife on his left hip.”
5.
Davis opposed the motion to enforce the settlement agreement. His supporting
declaration stated: “I categorically deny having displayed my middle finger in the
direction of [Hall’s] house and/or family.” It also stated Davis owned several cloth flags
showing a hand displaying the middle finger, which he normally mounted on his tractor
and trailer. The declaration stated the tractor and trailer moved around his property and
could face any direction. It described the flags as “simply a humorous piece of art and
not directed an any particular person or location.” Davis addressed the music issue by
stating he had been working that spring to clear brush and mow weeds and sometimes
played music loud enough to hear over the tractor mower, but not loud enough to violate
the settlement agreement. Davis asserted he had not created sound using sirens, horns or
music loud enough to reach 80 decibels at the Halls’ property line and argued Hall was
trying to read additional, unexpressed terms into the settlement agreement.
Hearing
On June 11, 2018, the evidentiary hearing on the motion to enforce the settlement
agreement began. Hall testified on direct and cross-examination. Hall also called Mark
Avory, another person who lives on Leaning Pine Way, as a witness. Avory testified his
residence was about a quarter of a mile from Davis’s house and his 25-acre lot shares a
400-foot boundary with the Davis property.
Avory testified that around the middle of April 2018, he saw Davis sitting on a
tractor parked near Avory’s gate when he returned home. Avory drove onto his property
and stopped so his wife could leave the vehicle and close the gate. Avory testified loud
music was playing on Davis’s property and he “could hear it very well, really blasting.”
Avory estimated the distance at a quarter of a mile. Davis approached Avory’s wife and
requested that Avory come to the gate to talk with him. At the time, Davis had a handgun
holstered at his waist and a large hunting knife on the other side. Davis asked Avory to
remove a motion-activated gaming and security camera on Avory’s property that was
directed at the access road.
6.
During his testimony, Avory authenticated two photographs the camera took of
Davis on his tractor with the flag displayed. Avory also authenticated his camera’s June
5, 2018 photograph of Davis showing his middle finger to the camera.
On June 13, 2018, the evidentiary hearing continued, and Mrs. Hall and Davis
testified. As described below, Mrs. Hall testified to Davis playing loud music, displaying
flags depicting a raised middle finger, and displaying his own middle finger while
opening and closing his gate.
During direct examination, Davis was asked if he used his middle finger to open
and close his gate. Davis stated he did not recall and then described the actions he takes
to open and close his gate, which swings onto his property. Then Davis stated: “So I
don’t think — I don’t recall ever using my middle finger or fingers. I just — I use my
hand.” Davis also testified he was not aware of Mrs. Hall watching him as he went in
and out of his gate.
Davis testified that someone, thinking it funny after Davis signed the settlement
agreement, gave him the first flag depicting a raised middle finger. Davis ordered three
or four other flags, stating they suited his purpose of providing shade and protection.
Davis described his job as a front-line supervisor of telecommunication and
electro-mechanical technicians for Bay Area Rapid Transit in Oakland. Davis testified he
was familiar with decibel ratings from his work as a technician setting the level of the
public address systems in BART stations. Davis stated he had a sound level meter and
described how he used the meter on multiple occasions to test the sound level of music
played on his stereo. Davis stated he turned his stereo to the maximum, lowered the
sound to a level that was not distorting, and then walked away from the speakers. He
stated the level dropped below 80 decibels when he was 35 feet down his driveway and
was around 50 decibels when he reached the property line.
7.
Trial Court’s Ruling
Near the end of the hearing, counsel agreed to accept a ruling from the bench
rather than a written decision. The ruling was scheduled for June 28, 2018. On that date,
Hall’s attorney was present but neither Davis nor his attorney appeared.
Before issuing its ruling, the trial court identified the evidence and papers it had
considered, which included the original request for a restraining order filed in June 2016,
the transcript and exhibits from the July 11, 2016 hearing, and the declarations and
supplemental declarations submitted by the parties. The court found four ways in which
Davis violated the settlement agreement provision stating he would not harass or disturb
the peace of Hall, Mrs. Hall or their children. First, Davis played loud music in excess of
80 decibels. Second, Davis displayed his middle finger at the Hall residence numerous
times while opening or closing his gate on the access road. Third, Davis attached a
flag—approximately three feet by five feet—clearly depicting a raised middle finger to
the rear of a utility trailer and positioned it to face the Hall residence. Fourth, Davis
drove a tractor with a similar flag on the access road and it was visible from the Hall
residence.
Based on these findings of fact, the court determined Davis harassed and disturbed
the peace of the Halls in violation of the settlement agreement. The court also issued the
civil harassment restraining order and set it to expire on June 27, 2019. The court
determined Hall was the prevailing party for purposes of section 664.6 and ordered Davis
to pay attorney fees in the amount of $9,079.50. The court also set a hearing in July to
address whether Davis had presented proof of turning in his firearms.
On June 28, 2018, the court signed and filed (1) a civil harassment restraining
order after hearing on mandatory Judicial Council form CH-130 and (2) a judgment
addressing Hall’s motion to enforce the settlement agreement, including his request for
attorney fees. On July 5, 2018, the court filed a second amended civil harassment
restraining order after hearing. In September 2018, Hall filed a notice of entry of
8.
judgment or order with a copy of the second amended civil harassment restraining order
attached. Davis filed a timely appeal.
DISCUSSION
I. FINDINGS OF FACT
Before considering the trial court’s interpretation of section 527.6 and the
settlement agreement and the application of those interpretations to the facts of this case,
we address the trial court’s express and implied findings of fact.
A. Standard of Review
As a general rule, a trial court’s findings of fact are subject to the substantial
evidence standard of appellate review. For purposes of this standard of review, evidence
is “substantial” if it is of ponderable legal significance, reasonable in nature, credible, and
of solid value. (Brewer v. Murphy (2008) 161 Cal.App.4th 928, 935–936.) As described
below, the substantial evidence standard applies to factual findings made by the trial
court in this procedural setting—that is, ruling on (1) a request for a restraining order
under section 527.6 and (2) a motion to enforce a settlement agreement under section
664.6.
1. Restraining Orders
“We review the trial court’s decision to grant the restraining order for substantial
evidence.” (Harris v. Stampolis (2016) 248 Cal.App.4th 484, 497 (Harris).) “ ‘The
appropriate test on appeal is whether the findings (express and implied) that support the
trial court’s entry of the restraining order are justified by substantial evidence in the
record. [Citation.] But whether the facts, when construed most favorably in
[petitioner’s] favor, are legally sufficient to constitute civil harassment under section
527.6, and whether the restraining order passes constitutional muster, are questions of
law subject to de novo review.’ ” (Ibid.; see R.D. v. P.M. (2011) 202 Cal.App.4th 181,
188 [existence or nonexistence of substantial evidence is a question of law].)
9.
When “assessing whether substantial evidence supports the requisite elements of
willful harassment, as defined in ... section 527.6, we review the evidence before the trial
court in accordance with the customary rules of appellate review. We resolve all factual
conflicts and questions of credibility in favor of the prevailing party and indulge in all
legitimate and reasonable inferences to uphold the finding of the trial court if it is
supported by substantial evidence which is reasonable, credible and of solid value.”
(Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.)
2. Orders Enforcing a Settlement Agreement
A trial court’s “ ‘factual findings on a motion to enforce a settlement pursuant to
section 664.6 “are subject to limited appellate review and will not be disturbed if
supported by substantial evidence.” ’ ” (J.B.B. Investment Partners, Ltd. v. Fair (2014)
232 Cal.App.4th 974, 984; Critzer v. Enos (2010) 187 Cal.App.4th 1242, 1253 [findings
of fact on a motion to enforce a settlement are reviewed under the substantial evidence
standard].) “Consistent with the venerable substantial evidence standard of review, and
with our policy favoring settlements, we resolve all evidentiary conflicts and draw all
reasonable inferences to support the trial court’s finding that these parties entered into an
enforceable settlement agreement and its order enforcing that agreement.” (Osumi v.
Sutton (2007) 151 Cal.App.4th 1355, 1360 (Osumi).)
3. Credibility Findings
We separately address credibility findings because of their significance to the
outcome of this appeal. Many appellate decisions state the reviewing court is “ ‘bound
by the trial court’s credibility determinations.’ ” (In re Marriage of Ciprari (2019) 32
Cal.App.5th 83, 94.) This is a slight overstatement, but not much of one because
expressed or implied credibility findings are given great deference and, as a result, are
difficult to successfully challenge.
10.
First, if the trial court finds certain testimony of a witness is credible, an appellate
court must accept that credibility finding unless the testimony is incredible on its face,
inherently improbable or wholly unacceptable to reasonable minds. (Nevarez v. Tonna
(2014) 227 Cal.App.4th 774, 786; see Consolidated Irrigation Dist. v. City of Selma
(2012) 204 Cal.App.4th 187, 201 [trial court’s credibility findings cannot be reversed on
appeal unless the testimony is incredible on its face or inherently improbable].)
Second, when a trial court finds all or part of a witness’s testimony is not credible,
appellate courts apply the following rule: “A trier of fact is free to disbelieve a witness,
even one uncontradicted, if there is any rational ground for doing so. [Citations.]” (In re
Jessica C. (2001) 93 Cal.App.4th 1027, 1043.) Rational grounds for disbelieving a
witness include the factors listed in Evidence Code section 780, which includes the
witness’s interest in the matter. (Evid. Code, § 780, subd. (f); see Pierce v. Wright (1953)
117 Cal.App.2d 718, 723.)
B. Express Findings of Fact
The trial court made four express findings of fact when it determined Davis
violated the settlement agreement.
1. Flags
The trial court found Davis displayed flags depicting a hand with a raised middle
finger on both his utility trailer and his tractor. Davis does not dispute these findings.
Indeed, Davis’s declaration stated he has several flags showing a hand displaying the
middle finger and the “flags are normally mounted on my tractor and trailer.” Davis
described the flags as humorous pieces of art. He asserted the flags are moved around his
property and are “not directed at any particular person or location.” In contrast, Mrs. Hall
testified the trailer with the flag was approximately 75 to 100 feet from her daughter’s
room and had not moved in six months. Based on the parties’ declarations, testimony
and photographs, we conclude substantial evidence supports the trial court’s findings that
11.
Davis displayed flags on his trailer and tractor and those flags depicted a hand with a
raised middle finger.
2. Displays of Middle Finger
The trial court also found “Davis displayed the middle finger at the Hall residence
[] numerous times while opening and closing his gate on the easement road.” Part of the
evidence supporting this finding is the declaration of Hall’s wife, which stated:
“On at least four other occasions in the past year, Mr. Davis displayed his
middle finger at our house and family and/or displayed his middle finger
while opening or closing the gate. The dates of these occurrences were:
6/23/17, 6/24/17, 9/12/17, and 12/29/17.”
In addition, Mrs. Hall testified during the June 13, 2018 hearing about Davis
displaying his middle finger to her or her family. During direct examination, Mrs. Hall
stated she personally had seen him do so about four times while he opened or closed the
gate to his property. When asked if Davis was facing her house when it occurred, Mrs.
Hall said: “Yes, because of the position—where the window looks down, or at least that
my daughter’s room looks down into the cul-de-sac, we can see his gate. And as he’s
closing and opening the gate[,] he’s pushing it with his middle fingers.”
During cross-examination, Mrs. Hall testified that Davis did not raise his arm
toward her, “but pushed the gate with his middle finger.” After this answer, the exchange
continued:
“Q. Now, you’ve described a kind of horizontal motion with your hands.
“A. Raise. Push. This way. Shall I?
“Q. So that’s —
“A. That’s how I saw it.
“Q. Right. If the record would reflect that you were using both hands in
a pushing motion, more or less horizontal and parallel to the floor. Is that
correct?
12.
“A. Hands were like this with the middle finger displayed pushing the
gate. Not like this.”
After confirming the gate was a standard metal lane-wide cattle-type gate, the trial
court asked: “You are indicating what you saw was Mr. Davis pushing the gate with the
middle finger in each hand?” Mrs. Hall answered, “Yes. The top part has the lock or the
chain, and he pushes it ever so slowly and slowly opens the gate and slowly closes the
gate. He doesn’t — [¶] … [¶] … speed it up.”
We conclude the declaration and testimony of Mrs. Hall constitutes substantial
evidence supporting the trial court’s explicit finding that Davis displayed his middle
finger at the Hall residence on numerous occasions when he was opening and closing the
gate to his property. Furthermore, the declaration and testimony support the implied
finding that Mrs. Hall was in the residence during these displays and, thus, the displays
were made in the direction of, or at, Mrs. Hall.
3. Loud Music
The trial court found Davis “played loud music, which was in excess of 80
decibels that — at least as measured at the Hall’s residence — and the Court would note
the testimony, which was uncontroverted, that the music was strong enough to shake the
floorboards at the Hall residence.” Davis contends this statement is simply not true
because he did contest the allegation and, furthermore, Mrs. Hall never testified his music
shook the floor or floorboards.
Davis notes he testified (1) his music was never over 80 decibels; (2) he had a
sound level meter that measured decibels; (3) he had measured the sound level at his
property line; and (4) the sound level was only at 50 decibels. In Davis’s view, it was a
mistake for the trial court to state the testimony the floors shook was uncontroverted. He
contends “the evidence contradicts the Court’s finding.” In short, Davis asserts the trial
court erred in finding he played music in excess of 80 decibels.
13.
The first part of our analysis of Davis’s attempt to demonstrate reversible error
addresses his reliance on his own testimony to establish what actually happened. His
reliance implies that the trial court found, or was required to find, his testimony about the
volume of his music was credible and accurate. The applicable rules of appellate review
prohibited us from concluding the court found his testimony was credible or,
alternatively, the court was required to find his testimony credible. Absent an express
credibility finding, we must infer the trial court resolved questions of credibility in a
manner that supports the trial court’s findings and order. (See Schild v. Rubin, supra, 232
Cal.App.3d at p. 762.) Thus, we must conclude the trial court impliedly found Davis’s
testimony about the volume of his music was not credible. Next, we must accept the
implied credibility finding if there was any rational ground for disbelieving Davis. (See
In re Jessica C., supra, 93 Cal.App.4th at p. 1043.)3 The obvious, rational ground for
disbelieving his testimony is his interest in the matter being litigated. (See Evid. Code,
§ 780, subd. (f); Pierce v. Wright, supra, 117 Cal.App.2d 718, 723 [court is not bound to
believe interested witness].) Therefore, Davis has not demonstrated the trial court erred
when it disbelieved his testimony that his music did not exceed 80 decibels at the
property line.
The second part of our analysis of Davis’s argument about the decibel level of his
music addresses whether the trial court could reasonably infer from the testimony of Mrs.
Hall that Davis’s music exceeded 80 decibels at the property line. Mrs. Hall testified
during direct examination that in May 2014 Davis had played music “where my windows
vibrate. I’m sitting at our kitchen table and things vibrate on the table.” Mrs. Hall also
was asked: “Was there another event of that music being played at a level which shook
your floor, on June 11, 2018?” Mrs. Hall answered: “Yes. When he’s playing his music
3 We note Davis’s appellate briefs did not address this legal standard and, thus, did
not demonstrate there was no rational ground for disbelieving him.
14.
loud it vibrates things in the house, objects in our house.” Davis’s view of this testimony
is stated in his opening brief: “While she answered affirmatively, she never testified the
floors shook.”
Whether Mrs. Hall’s affirmative answer to the question was a statement that the
floor vibrated was a matter of interpretation. Based on the trial court’s explicit finding, it
is clear the trial court interpreted her affirmative answer as testimony that the music
vibrated the floor. Mrs. Hall’s elaboration of her answer stating the loud music vibrates
things in the house does not contradict the trial court’s interpretation because the floor is
a thing in the house. Therefore, we conclude the trial court did not err when it accepted
Mrs. Hall testimony as accurate and found the “music was strong enough to shake the
floorboards at the Hall residence.” Furthermore, when the court stated Mrs. Hall’s
testimony “was uncontroverted,” it is reasonable to infer the court meant the evidence
was not directly contradicted by testimony of someone else who was there and perceived
the effect of the music inside her house. (See Evid. Code, § 410 [definition of direct
evidence].)
The trial court’s explicit finding about vibration in the residence necessarily
implies the court found Mrs. Hall’s testimony about the vibration credible. This implied
finding of credibility withstands appellate review because such a finding is rejected only
if the testimony in question is incredible on its face, inherently improbable or wholly
unacceptable to reasonable minds. (Nevarez v. Tonna, supra, 227 Cal.App.4th at p. 786.)
Here, the testimony that the music caused the floor and other things to vibrate is not,
under the circumstances presented, incredible on its face, inherently improbable, or
wholly unacceptable to reasonable minds.
To summarize, we conclude the trial court did not commit factual error when it
found Davis’s music caused the floor in the Hall residence to vibrate. Under California
law, the testimony of a single witness, even a party, may alone constitute substantial
evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) Furthermore, Mrs. Hall’s
15.
testimony about vibration reasonably supports the inference that Davis’s music exceeded
80 decibels at the Hall residence. Accordingly, the court’s explicit finding about the
decibel level of the music is supported by substantial, albeit circumstantial, evidence.
II. ENFORCING THE SETTLEMENT AGREEMENT
A. Legal Principles
Section 664.6 promotes California’s policy of encouraging voluntary settlements
by providing an expedited procedure for enforcing a settlement agreed upon by the
parties. (Osumi, supra, 151 Cal.App.4th at p. 1360.) This procedure permits the entry of
a judgment on the settlement without the filing of a new lawsuit. Section 664.6 provides
in full:
“If parties to pending litigation stipulate, in a writing signed by the parties
outside the presence of the court or orally before the court, for settlement of
the case, or part thereof, the court, upon motion, may enter judgment
pursuant to the terms of the settlement. If requested by the parties, the
court may retain jurisdiction over the parties to enforce the settlement until
performance in full of the terms of the settlement.” (§ 664.6, subd. (a).)
An often-litigated, threshold issue is whether an enforceable settlement agreement
was formed by the parties. (E.g., Osumi, supra, 151 Cal.App.4th at p. 1360; Kohn v.
Jaymar-Ruby, Inc. (1994) 23 Cal.App.4th 1530, 1533 (Kohn).) Here, the parties agree
they entered into a written settlement agreement. Davis’s arguments address the
interpretation of the agreement and the application of that interpretation to the facts
presented.
A settlement agreement is a contract; it is governed by the legal principles that
apply to contracts generally, including the principles that govern the interpretation of
contractual terms. (J.B.B. Investment Partners Ltd. v. Fair (2019) 37 Cal.App.5th 1, 9.)
For instance, “courts generally are responsible for protecting the parties’ objectively
reasonable expectations under a contract by determining the objective meaning of the
contract’s language.” (Scheenstra v. California Dairies, Inc. (2013) 213 Cal.App.4th
16.
370, 393, fn. 16; see Civ. Code, § 1649].) Under California’s objective approach to
contract interpretation, a parties’ undisclosed subjective intent or understanding is
irrelevant. (Iqbal v. Ziadeh (2017) 10 Cal.App.5th 1, 8.)
B. Davis Violated the Settlement Agreement
The question of whether Davis violated the settlement agreement is easily resolved
by the findings of fact that Davis (1) played music that exceeded 80 decibels and (2)
displayed his middle finger at the Hall residence when Mrs. Hall was inside. These
actions are expressly prohibited by the settlement agreement.
1. Loud Music
Paragraph A.2 of the settlement agreement contains Davis’s agreement not to play
music “at a sound loud enough to reach 80 decibels at the property of the Hall property.”
Paragraph A.5 stated Davis agreed not to disturb the peace of the Halls. Applying these
provisions to the trial court’s finding that Davis “played loud music, which was in excess
of 80 decibels” leads to the conclusion that Davis violated both paragraphs of the
settlement agreement.
2. Displays of Middle Finger
Paragraph A.3 of the settlement agreement stated Davis agreed “not to flip off
(displaying his middle finger at)” Hall, Mrs. Hall or their children. The trial court found
that “Davis displayed the middle finger at the Hall residence [] numerous times while
opening and closing his gate on the easement road.”
Davis’s arguments suggest that he interprets the contractual phrase “displaying his
middle finger at” to mean the back of his hand must face the Halls and the middle finger
must be upright (rather than horizontal to the ground) before a violation occurs. Such an
interpretation is not objectively reasonable because the phrase “displaying his middle
finger at” which makes no reference to the positioning of the back of the hand or the
orientation of the middle finger being displayed.
17.
Davis’s arguments also suggest his actions did not violate the settlement
agreement because using his middle finger to open or close the gate was not a “display”
and, if it was a display, it was not directed “at” Mrs. Hall or her children. We reject the
interpretation that treats intent or awareness as a requirement inherent in the terms
“displaying” and “at.” The agreement does not state Davis will not “knowingly” or
“intentionally” display his middle finger at the Halls. In addition, Davis points to no
extrinsic evidence that makes it reasonable to infer such a limitation was intended by the
parties. Rather, the terms of the agreement show the Halls were indifferent to Davis’s
state of mind, a fact they could not directly perceive, and were concerned with his
physical actions. The bargain struck encompassed the physical act described, regardless
of whether Davis knew, or should have known, that a member of the Hall family would
see the act. In other words, when Davis displayed his middle finger at the Hall residence
while opening and closing his gate, he took the risk that a member of the Hall family
would see him and his violation of the agreement.
3. Summary
The foregoing violations of the settlement agreement provide an adequate basis for
concluding the trial court correctly entered a judgment enforcing the settlement
agreement pursuant to section 664.6. Consequently, this opinion need not address
whether Davis’s displays of his flags constituted additional violations of the settlement
agreement. We simply note the language relevant to the flag displays is found in
paragraph A.5 of the agreement, which stated “Davis agrees not to harass [or] disturb the
peace” of Hall, Mrs. Hall or their children.
18.
III. CIVIL HARASSMENT RESTRAINING ORDER
A. Applicable Legal Principles
1. Grounds for Restraining Order
Section 527.6, subdivision (a)(1) provides that a victim of “harassment … may
seek a temporary restraining order and an order after hearing prohibiting harassment.”
The statute defines “harassment” as follows:
“[U]nlawful 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.” (§ 527.6, subd. (b)(3).)
“Course of conduct” means “a pattern of conduct composed of a series of acts over
a period of time, however short, evidencing a continuity of purpose.” (§ 527.6, subd.
(b)(1).) The definition provides a nonexclusive list of examples of a course of conduct,
“including following or stalking an individual, making harassing telephone calls to an
individual, or sending harassing correspondence to an individual by any means.” (Ibid.)
2. Procedures and Evidence
A party may seek a temporary order and an order after hearing by filing a petition
requesting that relief. (See § 527.6, subds. (d), (g).) The party responding to the petition
“may file a response that explains, excuses, justifies, or denies the alleged harassment or
may file a cross-petition under this section.” (§ 527.6, subd. (h).) The statute provides
for continuances and establishes deadlines for holding a hearing on the petition, which
are affected by whether a temporary restraining order was granted. (§ 527.6, subds. (f),
(g), (o), (p)(1).)
“At the hearing, the judge shall receive any testimony that is relevant, and may
make an independent inquiry. If the judge finds by clear and convincing evidence that
unlawful harassment exists, an order shall issue prohibiting the harassment.” (§ 527.6,
subd. (i).) An injunction prohibiting “future conduct is only authorized when it appears
19.
that harassment is likely to recur in the future.” (Harris, supra, 248 Cal.App.4th at p.
496.) The order “may have a duration of no more than five years.” (§ 527.6, subd.
(j)(1).)
When ruling on a request for a civil harassment restraining order, the trial court is
not required to make express findings. (Cooper v. Bettinger (2015) 242 Cal.App.4th 77,
88.) Instead, the granting of the restraining order itself necessarily implies that the trial
court found (1) the defendant knowingly and willfully engaged in a course of conduct
that seriously alarmed, annoyed or harassed the plaintiff and (2) the plaintiff actually and
reasonably suffered substantial emotional distress. (Id. at pp. 88–89.)
3. Standard of Appellate Review
“We review the trial court’s decision to grant the restraining order for substantial
evidence.” (Harris, supra, 248 Cal.App.4th at p. 497.) “‘The appropriate test on appeal
is whether the findings (express and implied) that support the trial court’s entry of the
restraining order are justified by substantial evidence in the record. [Citation.] But
whether the facts, when construed most favorably in [petitioner’s] favor, are legally
sufficient to constitute civil harassment under section 527.6, and whether the restraining
order passes constitutional muster, are questions of law subject to de novo review.’”
(Harris, supra, at p. 497; see R.D. v. P.M., supra, 202 Cal.App.4th at p. 188 [existence or
nonexistence of substantial evidence is a question of law].)
When “assessing whether substantial evidence supports the requisite elements of
willful harassment, as defined in ... section 527.6, we review the evidence before the trial
court in accordance with the customary rules of appellate review. We resolve all factual
conflicts and questions of credibility in favor of the prevailing party and indulge in all
legitimate and reasonable inferences to uphold the finding of the trial court if it is
supported by substantial evidence which is reasonable, credible and of solid value.”
(Schild v. Rubin, supra, 232 Cal.App.3d at p. 762.) Appealed orders are presumed
20.
correct, and the burden is on an appellant to affirmatively demonstrate the trial court
committed an error that justifies reversal of the order. (Jameson v. Desta (2018) 5
Cal.5th 594, 609; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
Because the clear and convincing standard of proof is set forth in the statute, we
consider how that affects our review of the sufficiency of the evidence supporting the
trial court’s express and implied findings of fact. As background, we note that in
criminal cases, “[t]he substantial evidence test asks only ‘whether substantial evidence
supports the conclusion of the trier of fact, not whether the evidence proves essential facts
beyond a reasonable doubt, or by clear and convincing evidence.’ ” (People v. Clements
(2021) 60 Cal.App.5th 597, 615.) Similarly, in the context of civil cases, “an appellate
court reviewing a finding made pursuant to the clear and convincing standard does not
reweigh the evidence itself.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1008.)
“[A]n appellate court reviewing such a finding is to view the record in the light most
favorable to the judgment below; it must include reasonable inferences that the trier of
fact might have drawn from the evidence; it must accept the fact finder’s resolution of
conflicting evidence; and it may not insert its own views regarding the credibility of
witnesses in place of the assessments conveyed by the judgment.” (Ibid.) Thus, “the
question before a court reviewing a finding that a fact has been proved by clear and
convincing evidence is not whether the appellate court itself regards the evidence as clear
and convincing; it is whether a reasonable trier of fact could have regarded the evidence
as satisfying this standard of proof.” (Id. at p. 1009.)
B. Davis’s Course of Conduct
The trial court’s issuance of the restraining order implies the court found, by clear
and convincing evidence, that Davis knowingly and willfully engaged in a course of
conduct directed at the Halls that (1) seriously alarmed, annoyed, or harassed them, (2)
served no legitimate purpose, (3) actually caused them substantial emotional distress, and
21.
(4) would have caused an objectively reasonable person to suffer substantial emotional
distress. (§ 527.6, subd. (b)(3); see Cooper v. Bettinger, supra, 242 Cal.App.4th at pp.
88–89.)
1. Explicit Findings
Initially, we consider whether the explicit findings of fact made to support the
judgment enforcing the settlement agreement survive the substantial evidence standard of
review when applied to facts that must be proven by clear and convincing evidence. In
the circumstances of this case, we conclude the four explicit findings are supported by
sufficient evidence even considering the heightened standard of proof.
2. Implicit Findings
Before identifying specific implied findings of fact, we consider whether the
relevant “course of conduct” for purposes of section 527.6 is limited to Davis’s acts after
the settlement agreement was signed. We conclude the statute does not limit the relevant
course of conduct to acts occurring after a settlement agreement. Similarly, nothing in
the settlement agreement alters the meaning of the statutory phrase “course of conduct.”
We infer the trial court considered pre-agreement conduct based on its statement that it
had reviewed and considered the testimony and exhibits presented at the July 11, 2016
hearing. Therefore, we conclude the trial court properly interpreted and applied
subdivision (i) of section 527.6, which states “the judge shall receive any testimony that
is relevant, and may make an independent inquiry.”4 (See generally, Evid. Code, § 210
[relevant evidence defined].)
4 We have joined other courts interpreting this provision “to mean hearsay evidence,
such as a declaration or police report, is admissible during hearings conducted pursuant to
section 527.6.” (Yost v. Forestiere (2020) 51 Cal.App.5th 509, 521.) Thus, the trial court
committed harmless evidentiary error when it excluded reports of the sheriff’s
department on hearsay grounds.
22.
First, Davis contends this case does not involve any unlawful violence or any
threat of unlawful violence. (See § 527.6, subd. (b)(3) [definition of harassment included
unlawful violence and credible threats of violence].) This self-serving view of the
evidence overlooks the June 2016 incident at the mailbox where Davis drove his Corvette
within two or three feet of Hall. At a minimum, driving a car that close to someone else
conveys a credible threat of injury through physical contact (i.e., violence). It also
overlooks Davis’s statement to Hall in February 2012 when Davis said, “You do that
again, and you’re gone.” In context, “do[ing] that again” is reasonably interpreted to
mean coming onto Davis’s property to complain about noise and “you’re gone” is
reasonably interpreted as “I will kill you.” Davis’s threat was credible because of the
weapons he possessed and the isolation of the property (i.e., the lack of witnesses that
might deter his acting on the threat).
Davis’s reply brief states he flatly denies ever driving recklessly in Hall’s direction
and nearly hitting him. His brief does not support this statement with a citation to
evidence in the record. Under applicable principles of appellate review, we must infer
the trial court found Hall’s testimony at the July 2016 hearing provided clear and
convincing evidence that Davis did drive his car close to Hall and this did cause Hall to
immediately experience shock and fear. We further infer the court found that Davis
experienced emotional distress once the initial effect subsided. We conclude Hall’s
longer-term distress was objectively reasonable because Davis’s conduct was escalating.
When the totality of Davis’s actions are considered—going back to the February 2012
incident of loud music and the threat to Hall’s life—Hall saw that Davis’s misconduct
was escalating and it was reasonable for Hall to worry about what Davis would do in the
future. Thus, Davis’s threat in February 2012 and his giving Hall a scare with his
Corvette in June 2016 are correctly viewed as a part of his course of conduct and
provides context for the court’s evaluating the emotional impact of Davis’s later actions.
23.
Davis refers to the statutory definition of “harassment” and argues Hall did not
allege or prove there was any emotional distress. (§ 527.6, subd. (b)(3).) In Davis’s view
of the evidence, the Halls’ “conduct was not that of people in distress, but rather of lying
in wait, of seeking to watch [Davis] while he was engaged in lawful activity on his
property and then further to imagine some sort of distressful behavior.” Davis contends
his actions “certainly would not cause a reasonable person to suffer any substantial
emotional distress, nor did [Hall] allege any emotional distress in his pleading or
testimony.”
Here, the trial court rejected Davis’s view and impliedly found the statutorily
required emotional distress existed and was reasonable under the circumstances.5 Our
review of the sufficiency of the evidence to support the implied finding of substantial
emotional distress includes the testimony of Mrs. Hall. When asked if she was frightened
of Davis, Mrs. Hall answered:
“Yes. He makes me nervous. I think he’s just — I don’t know why he’s so
angry, and he seems to always want to do something to annoy us, scare us.
I’m nervous for my children. Like I said, my daughter’s in a wheelchair.
She’s only seven years old.… I will not go outside without my husband
present or let my children play outside. I think he’s a time bomb. I think
he’s just — he’s just so angry for whatever reason.”
It was reasonable for the trial court to infer from this testimony that Mrs. Hall
experienced substantial emotional distress. The Halls attempted to obtain peace of mind
by entering into a settlement agreement with Davis. Davis violated that agreement by
displaying his middle finger towards the Halls’ residence when Mrs. Hall and the
children were inside and by playing loud music. Furthermore, Davis made his hostility
toward the Halls and their children plain by parking his trailer with a flag showing a
5 One reason the trial court properly rejected Davis’s argument about emotional
distress is that it is tainted by Davis’s erroneous belief that he complied with the
settlement agreement.
24.
raised middle finger, so the flag faced the daughter’s bedroom window. The unremitting
nature of his hostility was demonstrated by the fact Davis left the trailer in that position
for six months. When these actions and the surrounding circumstances, including the
written agreement not to “flip off” Hall, Mrs. Hall or their children, they are reasonably
interpreted as Davis’s attempts to evade the literal terms of his agreement and seriously
annoy or harass Mrs. Hall and the children. (See § 527.6, subd. (b)(3).) Davis succeeded
in these attempts and caused Mrs. Hall substantial emotional distress.
Next, we consider the sufficiency of the evidence to support the implied finding
that Davis’s course of conduct caused Hall to experienced substantial emotional distress.
As described earlier, Hall testified about how he reacted emotionally to the July 2016
incident at the mailboxes, stating he was shocked someone would do that and he “was
pretty scared about the whole thing.” On the question of whether the record needed to
contain explicit testimony from Hall about the emotions he experienced as a result of
Davis’s post-agreement conduct, we conclude it is not necessary because the
circumstantial evidence strongly supports a finding that Hall—a husband and father who
was aware of the effect Davis’s conduct was having on his family—reasonably
experienced the required distress.
Accordingly, we conclude the trial court did not err in finding that Davis
knowingly and willfully engaged in a course of conduct directed at the Halls that (1)
seriously alarmed, annoyed, or harassed them, (2) served no legitimate purpose, (3)
actually caused them substantial emotional distress, and (4) would have caused an
objectively reasonable person to suffer substantial emotional distress. (§ 527.6, subd.
(b)(3).) Thus, the trial court did not err in issuing the civil harassment restraining order.
25.
DISPOSITION
The judgment and the civil harassment restraining order are affirmed. Hall shall
recover his costs on appeal.
FRANSON, Acting P.J.
WE CONCUR:
SMITH, J.
SNAUFFER, J.
26.