Hogan v. Waikem CA2/3 ( 2015 )

Filed 11/6/15 Hogan v. Waikem CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION THREE
ERIN MARIE HOGAN, B257873
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS148640)
v.
JORDAN KENSLEY WAIKEM,
Defendant and Respondent.
APPEAL from judgment of the Superior Court of Los Angeles County,
Carol Boas Goodson, Judge. Reversed with directions.
Erin Marie Hogan, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
_____________________
INTRODUCTION
Plaintiff and Appellant Erin Marie Hogan appeals the trial court’s judgment
denying her request for additional time to serve Defendant Jordan Waikem with a Code
of Civil Procedure1 section 527.6 petition for a civil harassment restraining order. The
trial court denied Hogan’s request and dissolved Hogan’s temporary restraining order
against Defendant based on its determination that the petition, on its face, failed to state
conduct constituting civil harassment. We conclude that the court erred in finding that
Hogan failed to state a claim as Hogan’s petition states a prima facie case for civil
harassment, and the court abused its discretion in refusing to allow Hogan additional time
to serve Defendant, who appears to have intentionally evaded service. To clarify, we are
not holding that Hogan has proved her case for a permanent injunction. Rather, we are
merely holding that Hogan has alleged sufficient facts to state a claim for civil
harassment and should have been allotted additional time to serve Defendant prior to a
hearing where the parties would present evidence and argument regarding whether a
permanent injunction should be issued.
As this case was brought before us as an appeal rather than on petition for a writ of
mandate, the allegations within Hogan’s petition are now more than a year old. We are
thus reluctant to order the trial court to reissue the temporary restraining order per section
527.6, subdivision (o)(1), without new information showing that Defendant poses a
present threat of harassment to Hogan. We therefore order the trial court, 10 days
following our issuance of remittitur, to issue an order to show cause as to whether Hogan
still seeks a civil harassment restraining order. In support of her new request, Hogan
must provide the court with an amended petition setting forth current facts showing that
the threat of harassment posed by Defendant in 2014 continues to exist.
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All subsequent statutory references are to the Code of Civil Procedure.
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FACTS AND PROCEDURAL BACKGROUND
Hogan filed a petition for a civil harassment restraining order on May 16, 2014,
alleging that Defendant Jordan Waikem had harassed her by repeatedly making jokes and
remarks about Hogan at their workplace, by making false allegations to their employer
that Hogan had broken into an employee’s home and physically assaulted the employee’s
boyfriend, by falsely informing coworkers that Hogan had physically assaulted
Defendant, and by distributing an audio recording of Hogan having a mental break down
to Hogan’s second employer, resulting in Hogan’s termination. In addition to attesting to
these events in her petition, Hogan also declared that the harassment caused her severe
emotional distress and resulted in her hospitalization at a mental healthcare facility.
Despite the professional process server’s efforts to serve Defendant within the
statutory time period, Defendant evaded service. Prior to the hearing, Hogan provided
the court with a declaration from the process server explaining her efforts to serve
Defendant at Defendant’s place of employment, Jumbo’s Clown Room, and detailing
how Jumbo’s staff helped Defendant evade service. At the hearing, Hogan orally moved
for additional time to effectuate service of the petition for a civil harassment restraining
order. The trial court denied this motion, stating that it found that “the petition, on its
face, does not rise to the level of an Injunction.” The court held that “[t]he application is
denied and the case is dismissed” and that “[t]he Temporary Restraining Orders are
dissolved.”
DISCUSSION
Section 527.6 authorizes persons who have suffered harassment to obtain a
temporary restraining order and an injunction prohibiting harassment. At issue is
whether the facts attested to by Hogan are sufficient to establish a claim for civil
harassment under the statute, such that Hogan should be given the opportunity to serve
Defendant and have a hearing on her claim. “[W]hether the facts, when construed most
favorably [to the petitioner], are legally sufficient to constitute civil harassment under
section 527.6 [is a] question[] of law subject to de novo review.” (R.D. v. P.M. (2011)
202 Cal. App. 4th 181, 188 (R.D.).)
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Section 527.6, subdivision (b)(3) defines “ ‘[h]arassment’ ” as “unlawful violence,
a credible threat of violence, or a knowing and willful course of conduct directed at a
specific person that seriously alarms, annoys, or harasses the person, and that serves no
legitimate purpose. The course of conduct must be such as would cause a reasonable
person to suffer substantial emotional distress, and must actually cause substantial
emotional distress to the petitioner.” The statute states that “ ‘[c]ourse 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.’ ” (Id., subd. (b)(1).) In addition, an injunction is
only proper where the harassment is likely to recur in the future. (Russell v. Douvan
(2003) 112 Cal. App. 4th 399, 402 [“An injunction is authorized only when it appears that
wrongful acts are likely to recur.”].)
Here, Hogan attested that she had confided in Defendant regarding her mental
disorder, which caused her to have a warped body image. Hogan stated that after her
friendship with Defendant ended, Defendant repeatedly made jokes and remarks about
her weight at their shared workplace, Jumbo’s Clown Room. At one point in time,
Defendant lied to Hogan’s coworkers at Jumbo’s, stating that Hogan had physically
assaulted Defendant. Hogan also attested that Defendant lied to Hogan’s supervisor at
Jumbo’s, telling the supervisor that Hogan had broken into another employee’s home and
had assaulted that employee’s boyfriend. Hogan stated that the fictitious report resulted
in Hogan’s temporary suspension from her job at Jumbo’s.
Subsequently, Hogan suffered a mental breakdown in her dressing room at
Jumbo’s following a night of verbal harassment and taunting. Hogan attested that the
taunting made her suicidal and resulted in her being held for 72 hours at the BHC
Alhambra Mental Institution. In addition, a coworker, who was working with Defendant
to harass Hogan, illegally recorded Hogan’s mental breakdown in the dressing room
without her knowledge or consent.
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Defendant sent a copy of this recording to Hogan. Hogan attested that Defendant
also forwarded the recording of her mental breakdown to her supervisor at The
Choreography House (Hogan’s second employer). The Choreography House summarily
dismissed Hogan from her position. To corroborate her account of these facts, Hogan
provided the declaration of a third party witness who attested to seeing an email sent by
Defendant to Hogan containing the recording, with an audio file attachment titled
“Psycho Erin.mp3.” This third party stated that he witnessed the Choreography House
supervisor state that Defendant had sought out the supervisor and had told the supervisor
that Hogan was “ ‘crazy and psychotic’ and unfit for employment.”
The foregoing establishes sufficient facts to state a claim for civil harassment
under section 527.6. The declarations detailed how Defendant engaged in a knowing and
willful course of conduct directed at Hogan that successfully and seriously alarmed,
annoyed, and tormented Hogan. Specifically, the declarations established that Defendant
verbally taunted and made jokes about Hogan, knowing that such behavior would cause
her mental harm. The evidence also indicated that Defendant spread lies about Hogan to
coworkers and to her employers, followed by her suspension and termination. Defendant
appears to have gone so far as to provide Hogan’s employer with an illegal recording of
her mental breakdown, asserting that Hogan was unfit to work there. This series of acts
appears to have no apparent legitimate purpose other than to harass Hogan. Furthermore,
this course of conduct would likely cause a reasonable person to suffer substantial
emotional distress, and it evidently caused Hogan substantial emotional distress as
evidenced by her hospitalization.
We conclude that Hogan alleged sufficient facts to state a claim for her civil
harassment restraining order petition. The trial court’s denial of Hogan’s request for
additional time to serve Defendant, which was supported by the process server’s
declaration evidencing Defendant’s evasion of service, was thus an abuse of discretion.
(§ 527.6, subd. (o)(1) [“The court may, upon the filing of a declaration by the petitioner
that the respondent could not be served within the time required by statute, reissue an
order previously issued and dissolved by the court for failure to serve the respondent.
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The reissued order shall remain in effect until the date set for the hearing.”]; Smith v.
Adventist Health System/West (2010) 182 Cal. App. 4th 729, 749 [“An abuse of discretion
occurs when the superior court exceeds the bounds of reason or contravenes the
uncontradicted evidence.”].) We therefore reverse the court’s judgment erroneously
denying the petition on its face.
DISPOSITION
We reverse the judgment. Unfortunately, over a year has passed since Hogan
sought the civil harassment restraining order and the allegations before us do not indicate
whether the threat of harassment posed by Defendant a year ago exists today. We are
thus reluctant to order the trial court to reissue the temporary restraining order per section
527.6, subdivision (o)(1), without new information showing that Defendant has continued
to harass Hogan.
We therefore order the trial court, 10 days following our issuance of remittitur, to
issue an order to show cause as to whether Plaintiff still seeks a civil harassment
restraining order. At the order to show cause proceeding, Hogan must provide the court
with an amended petition attesting to current facts that show that Defendant’s harassment
has continued and would likely continue in the future. If the court finds that Hogan’s
amended petition states sufficient grounds for a restraining order, the court shall issue a
temporary restraining order and set the matter for a hearing on the petition for the
permanent injunction pursuant to section 527.6, subdivision (g). Hogan must then serve
Defendant with the amended petition at least five days before the hearing on the petition
for the permanent injunction in accordance with section 527.6, subdivision (m).
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Lastly, as Defendant Jordan Waikem has yet to appear in this matter and as this
Court has waived Plaintiff Erin Marie Hogan’s costs, we award no costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
JONES, J. *
We concur:
ALDRICH, Acting P. J.
LAVIN, J.
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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