Wuerfel v. Quinn CA1/2 ( 2013 )

Filed 7/22/13 Wuerfel v. Quinn CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
NANCY KAY WUERFEL,
Plaintiff and Appellant,
A136077
v.
DAMIEN JOSEPH QUINN, (San Francisco County
Super. Ct. Nos. CCH-12-573391 &
Defendant and Respondent. CCH-12-573393
MARY GALVIN,
Plaintiff and Respondent,
v.
NANCY WUERFEL,
Defendant and Appellant.
Nancy Wuerfel filed a request for a civil harassment restraining order seeking
protection against her next door neighbor, Damian Quinn. Quinn‟s wife, Mary Galvin,
filed a similar request against Wuerfel, seeking protection on behalf of Galvin herself, her
husband, and their three children. The requests came on for hearing before an
experienced judge who heard from all three participants and from witnesses on their
behalf. Following that hearing, the judge denied Wuerfel‟s request for a restraining order
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against Quinn, and granted a restraining order against Wuerfel in favor of Galvin and her
family. Wuerfel appeals both orders. We affirm both orders.
BACKGROUND
The Requests
On May 3, 2012, acting in propria persona, Wuerfel filed a request for civil
harassment restraining order, seeking protection against Quinn, her “next door neighbor”
(request) on 23rd Avenue, in the Sunset district of San Francisco. Wuerfel‟s request
described the last act of harassment as occurring on April 20, 2012, as follows: “Quinn
was driving West on Ulloa Street and I was walking East on the southside of the street.
When he noticed me on the sidewalk near 21st Avenue, he leaned towards me while
staring at me out his driver‟s side window. About a minute later, after making a U-turn,
he drove East on Ulloa and slowed down to yell at me through the open passenger side
window „Gonna getcha, gonna getcha.‟ Then he sped up and made a right turn onto 20th
Avenue.” Wuerfel checked the box that she was “harmed or injured” because of the
incident, describing that “This clear threat was leveled at me the day after Quinn stalked
me for ten minutes outside my home and ripped wood shingles off my house. This
incident was the third intimidation attack on me 29 [sic] hours. He has uncontrolled rage
against me. I am terrified of what he will do next.” Wuerfel also checked that the police
came and gave her an emergency protective order. The request was signed under penalty
of perjury
Wuerfel‟s request had various attachments, including the referenced emergency
protective order. Another attachment, described as “Attachment 7B—Previous
Harassment,” was a two-page memorandum from Wuerfel to Lieutenant Rich Quesada,
described as Quinn‟s “recent vandalism, harassment, stalking of me.” The two pages
went on to describe what Wuerfel asserted was “Evidence of Ongoing Recent
Harassment,” with descriptions of incidents claimed to have occurred on April 15, 23, 25,
29, and 30. Also attached was an index of DVD images and a two-page letter from
Wuerfel to Captain Curtis Lum, Commanding Officer, Taraval Police Station, with
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enclosures that Wuerfel described as “photographs of written threats and vandalism” and
“emails to Captain Paul Chignell and Supervisor Carmen Chu.”
On May 3, Wuerfel was granted a temporary restraining order against Quinn,
issued by the Honorable Donald Sullivan, who that same day set Wuerfel‟s request for
hearing on May 23.
On May 3, another request for civil harassment restraining order was filed, this by
Galvin. It sought protection against Wuerfel, not only for Galvin herself, but for four
others: her husband Quinn and their three minor children, aged 15, age 12, and 8.
Galvin‟s request described how Wuerfel “our next-door neighbor has engaged in a
relentless campaign of harassment against our family . . . .” Handwritten attachment 3b,
entitled “Why Others Need Protection,” then went on to describe Wuerfel “entering our
home without permission and taking photographs, reported to police case # 120 347
912.” Galvin‟s hand-written statement then continued on in detail, as follows: Wuerfel
“stalked my children, reported to police, case number not available at this time.
[Wuerfel] [¶] (3) has appealed each and every permit we have applied for to maintain our
home, our business and an investment property 4.6 miles away from our neighborhood.
This has led to my financial loss, emotional strain, and my children sleeping in bedrooms
with a leaking roof, while we waited for an appeal to be heard—3 mo. This appeal was
fruitless, and was designated to cause us harassment as, obviously no city agency is going
to prevent a home owner putting a roof on their home. [¶] (4) She has reported our home
vacant and abandoned while we were living there, again requiring us to prove to city
agencies this was not true or incur a heavy fine. [¶] (5) She has reported our childrens
[sic] pets abandoned to the SPCA. Our dogs have been picked up causing our children
untold distress when they have returned from school. This has happened 2/3 times each
time the SPCA have returned our pets immediately. [¶] (6) She has contacted our
mortgage lender, again saying our house was abandoned, again causing us great distress.
[¶] (7) As bad as the above harassment is, witnessing my children‟s emotional distress
and fear is painful. Wuerfel intimidates my children as they enter an [sic] leave the
house. She does not speak, but will stand and stare at them. She will stand in our
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driveway and stare up at the house. My 8 yr old will not walk out the front door of his
home on his own. My 12 year old daughter will not sleep in her bedroom on her own.
Our children‟s friends are also subjected to this intimidation, including the use of
binoculars to stare into cars outside our home, while children are sitting in them.”
In item number 6 on the request, “Other Court Cases,” Galvin checked that
Wuerfel had been involved with „multiple SF City Agencies, Board of Appeals, Board of
Supervisors, BIC.” Galvin described the harassment as “on-going,” as described further
in Attachment 7a(3) (apparently identical in content to attachment 3b). Galvin‟s request
was signed under penalty of perjury, by both her and her husband.
Judge Sullivan issued a temporary restraining order against Wuerfel, and also set
Galvin‟s request for hearing on May 23.
Wuerfel filed her response to Galvin‟s request on May 10, signed under penalty of
perjury. Attached to it was a three-page, single-spaced document entitled “Form CH-20
. . . Justification or Excuse,” disputing all Galvin‟s claims. That attachment also had six
exhibits, including copies of: a photograph, two Department of Building Inspection
forms, a quit claim deed, a grant deed, and a listing for the sale of Galvin‟s property.
Quinn filed his response to Wuerfel‟s request on May 21, signed under penalty of
perjury. Attached to it, as “Form CH-120 „Attachment 9—Justification or Excuse,‟ ” was
a six-page typed statement that read as follows:
“Response to request for Civil Harassment Restraining Orders by defendant
Damien Quinn.
“The plaintiff Nancy Wuerfel has in effect filed this TRO and previous EPO as a
continuation of the harassment which she has subjected me and my family to for many
years. Now that she has exhausted every appeal process concerning my home at [on]
23rd Ave, my business at. . . Taraval Street (Four blocks from Wuerfel‟s home) and . . .
Jersey Street (4.5 miles from Wuerfel‟s home), she has turned her attention to the police
department and this court. I deny all allegations documented in her brief and have not
been charged with any offense. In fact following several conversations with the local
police department regarding her behavior, such as stalking our children (police report
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100837206 included in report) and trespassing and taking photos without our permission
(police report 120347912 included in report), we were advised to file a TRO against
Wuerfel. I would like to outlay the bigger picture behind the motives of Wuerfel to seek
this order.
“I am Wuerfel‟s next door neighbor; we purchased our home in 2002. Since
occupying the property we have been subjected to a relentless campaign of intense hatred
and intimidation leveled at us by Wuerfel. Wuerfel‟s ongoing campaign consists of a
number of different acts, some of which trigger analysis under code of civil
procedure 425.16 and some that do not. I include all to show Wuerfel‟s continuing
obsession with my family and our home. Wuerfel to date has filed 24 complaints on our
home at 23rd Ave. The complaints include various housekeeping issues (see
attachment 3). In response to these complaints we have filed 7 building permit
applications. Wuerfel has appealed each and every one to a litany of boards in
San Francisco. Although this may appear privileged on the surface, she has registered the
same appeal numerous times, sometimes to the same board, or the same appeal to a
different board having not prevailed elsewhere. These complaints constitute malicious
administrative prosecution and are designed solely to inflict emotional and physical stress
on myself and my family.
“We had to move out of our home because of mold contamination. Not satisfied
to see a family moved out Wuerfel immediately reported our property abandoned and
vacant. Not happy with just reporting to the city she contacted our lender directly by
mail enclosing copies of her complaints and photographs. Our lender instructed us to
make repairs which Wuerfel then objected to and appealed and so the cycle began again.
Wuerfel‟s only motive for contacting our lender was to ratchet up already extreme
emotional and financial pressure and see us lose our home. Wuerfel knew we were
renting nearby and were desperately attempting to repair our home because she was in
fact sabotaging our efforts for years. Wuerfel IS NOT APARTY TO OUR MORTGAGE
AND HAS NO PECUNIARY INTEREST IN OUR RELATIONSHIP WITH OUR
LENDER. In effect she was using our lender as a tool to inflict stress to satisfy some
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kind of warped desire to see our lender take action against us that would ostensibly force
an NOD.
“It should be noted that while we were out of our home Wuerfel began stalking
our children at our rental property. What civilized human being would take pleasure in
scaring young children? Despite 2 years in a rental home under immense financial
pressure paying rent and mortgage we were forced to move back to our home without any
repairs being done. When we did move back we applied for a simple roofing permit and
a mold remediation permit which Wuerfel immediately appealed. These appeals were
purely malicious as it was obvious we would prevail after the 3 month waiting period.
Wuerfel‟s campaign is solely designed to satisfy her desire to control and harm us. She
routinely watches the house and we have had witnesses report her looking through
windows with binoculars, watch our children on a daily basis, and photograph the car
registrations of the workers working on the house. Our children become frightened when
they are outside the house and they look around and see Wuerfel staring at them. We
have two young children growing up in a safe neighborhood and they shouldn‟t have to
be exposed to this hostility on a daily basis. We love our home and love our
neighborhood. My children go to school in this neighborhood, play in this neighborhood,
attend church in this neighborhood, and our lives are in this neighborhood. The only
reason we want to leave it is because of Wuerfel. Her constant obsession with first our
home and then our family are overwhelming and affect every aspect of our lives.
“Wuerfel has trespassed on my property and when questioned about this by the
police department she justified it by saying she was asked to „keep an eye on the house‟
and on further occasions she brought building inspectors onto our property without our
permission. In 2011 she took photos inside our basement and described them vividly at a
commission hearing. Wuerfel states that she took these photos outside, through a
window that happens to be 12 inches from the ground. Our basement does not have
adequate lighting and it is impossible to have the view shown on the pictures taken from
the outside. She has photographed the inside of my property and taken measurements of
my son‟s room, and then used these measurements to contest the legality of the bedroom
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at the Board of Appeals. (A bedroom that was added to the house long before we
purchased the home). She has actually admitted building inspectors to my property as if
it was in fact hers.
“In every one of her appeals she has been publicly rebuffed and described by one
commissioner as „overzealous‟ and by another board member as a „moving target‟ with
regards to our property as she appears to have a different reason for appeal each time. On
top of this she has reported my children‟s pets as abandoned to the SPCA. This only adds
to their intimidation and fear of Wuerfel. Each time our pets have been returned to us
immediately and we were informed that our next door neighbor had initiated the pick-up
of our animals. What kind of human being takes any sort of satisfaction in terrorizing
kids? Is her campaign so vicious that she involves my children and their pets?
“At this point a reasonable person may ask „Why haven‟t we moved?‟ In January
2011 we purchased a property in Noe Valley 4.5 miles from Wuerfel. Considering
Wuerfel‟s recent allegations one would assume she would have been delighted that we
were moving. However, as soon as she learned of our interest in this property she
transferred her campaign of harassment to . . . Jersey Street. She has filed 4 complaints
which ultimately stalled the project for 7 months. At this point it became obvious to me
and my family that the issue wasn‟t about the house at 23rd Ave, it was with us. A
potential home was contaminated by her harassment once again. What relief from this
harassment can we hope for if she can just follow us to any location? When we
attempted to sell the property Wuerfel‟s campaign scared the buyers. Our buyers had
contacted both the planning and building department as part of their due diligence only to
be told that with Wuerfel involved and the department‟s previous experience at 23rd Ave
„it could take years to resolve.‟ We lost the sale.
“We should keep in mind Wuerfel‟s argument is that she is terrified of me and
avoids me at all costs. At one of the appeals for . . . Jersey St. the commissioner
commented that he was interested in the fact that she was the sole petitioner of the appeal
and lived 4.5 miles from the subject property.
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“In 2007 we secured a property at . . . Taraval Street cross street 21st Ave
(4 blocks from Wuerfel) to date we have spent over 1 million dollars and had hoped to
employ 22 people in a new family restaurant. Wuerfel has appealed each and every
permit and license application even to the point that even after we secured the support of
the Taraval Merchants Association, she formed her own Lower Taraval Merchants
Association. She is not a merchant. In fact it is at this address that Wuerfel claims I
followed her, apparently I cannot stand outside my own business. Again this is a person
who would have you believe she is terrified of me and avoids contact with me.
“Her complaints are repetitive, frivolous, and malicious and are designed to inflict
emotional pain and financial tort. There exists a law in CA which guarantees one, free
peaceful and quiet enjoyment of their home and property. Wuerfel has wreaked havoc on
our property, our financial security, and our emotional well-being. I am including in my
exhibits an appraisal date in 2007 which shows our home valued at 1,150,000 and a
multiple listing from 2011 as a short sale for 4.99,000 [sic] because of deterioration.
“I do feel angry, frustrated, and disgusted with Wuerfel. Since Wuerfel has
exhausted every appeal under the sun does she now turn to this court as a new avenue for
her contempt and harassment? Even with the mutual TROS in place the respect she
shows this court is as follows. She was ordered to remain 3.5 yards away from my
property while she is at home or 50 yards otherwise. The day she was served with the
TRO from my family, and while her own EPO against me was still in effect she stood on
my driveway looking into my garage while painters were working. The following day
she stood having a 45 minute conversation within 10 yards of me. I notified the police
and was told it was a matter for this court. She also filed another spurious complaint
about my home that evening. Are these really the actions of a terrified woman?
“I lay this out to you to not only show Wuerfel‟s frame of mind but also my own.
In this situation what would a reasonable person feel? I am also including a letter from
our realtor showing we are actively seeking to purchase a home elsewhere. This is really
disheartening considering that this is where my children have spent their childhood. I
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plead with this court that if we are successful in finding a new home that Wuerfel will not
be allowed to continue to inflict any further harm and suffering to my family.
“Finally, with regards to Wuerfel‟s allegations I have never threatened her,
vandalized her house or property, and pose absolulutely [sic] no threat to her person.
Wuerfel has opined in her brief that some of her reasons for eminent danger stem from
my past association with Jimmy Jen (a former city employee) and a DUI issued in 2007.
Both of these statements are true, but they have no bearing on this proceeding other than
to tarnish my reputation. The plaintiff has in effect filed this TRO as a continuation of
this relentless campaign of hatred and harassment which would allow her to continue to
terrorize our business and follow us to a new abode, rented or otherwise. I implore the
court to see this TRO not as a stand-alone but in the overall context, and deny the
plaintiff.
“Some years ago, in an attempt to reach out to Wuerfel I requested mediation
through Supervisor Chiu‟s office, Wuerfel declined. Please see attached
correspondence.”
Quinn‟s response also included 11 exhibits, including two police incident reports,
and correspondence sent by Wuerfel to the Galvin-Quinn‟s lenders.
All the above was in the court file when the matter came on for hearing on May
23, 2012 before the Honorable Kay Tsenin. Before turning to a discussion of what
occurred at the hearing, we digress briefly to set out the governing law, all set forth in
Code of Civil Procedure 527.6 (section 527.6).
The Applicable Law
Section 527.6 begins as follows:
“(a)(1) A person who has suffered harassment as defined in subdivision (b) may
seek a temporary restraining order and an injunction prohibiting harassment as provided
in this section. [¶] . . . [¶]
“(b) For the purposes of this section:
“(1) „Course of conduct‟ is a pattern of conduct composed of a series of acts over a
period of time, however short, evidencing a continuity of purpose . . . .
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“(2) „Credible threat of violence‟ is a knowing and willful statement or course of
conduct that would place a reasonable person in fear for his or her safety, or the safety of
his or her immediate family, and that serves no legitimate purpose.
“(3) „Harassment‟ is 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.
[¶] . . . [¶] “(7) Unlawful violence‟ is any assault or battery, or stalking as prohibited in
Section 646.9 of the Penal Code, but shall not include lawful acts of self-defense or
defense of others.”
These, then, were the statutory provisions to be applied by Judge Tsenin in making
her ruling, which ruling may be based on affidavits or declarations, as well as oral
testimony. (Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 728; Schraer v. Berkeley
Property Owners’ Assn. (1989) 207 Cal.App.3d 719, 733, fn. 6; see generally 6 Witkin,
Cal. Procedure (5th ed. 2008) Provisional Remedies, § 322, p. 262.)
The Hearing
The hearing began with identification of the parties and their possible witnesses,
Meredith Monteith and Linda Yacobucci on behalf of Wuerfel, and Patrick Spiers and
Ken O‟Sullivan on behalf of Galvin and Quinn. Galvin said she had declarations from
“witnesses who couldn‟t be here,” to which Judge Tsenin responded, “Let‟s see where we
go with this.”
The substance of the hearing then began with Wuerfel‟s testimony, as follows:
“THE COURT: All right. Starting with Ms. Wuerfel, if you would tell me in a
few words what's going on here.
“MS. WUERFEL: Your Honor, I am requesting a permanent restraining order
against my next door neighbor Damien Quinn. There has been an escalation of
harassment of me over the last three years. The first time that I reported incidents to the
police were in June 2009 where Mr. Quinn wrote a message on some 8 by—plywood—
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on plywood that was surrounding his house, and he spray painted the following message,
„If you are the big tree, I am a small axe. I am sharp, and I will cut you down.‟ There
were other messages that he put on those plywood boards around that time, but that was
the most intimidating.
“Then a year later I wrote a letter to Captain Lum at the Potrero Police Station; the
first message I wrote to Captain Chignell. And I also then recorded, for the record, that
Damien Quinn threatened me with, „You are a horrible, horrible bastard. Your time is
coming soon.‟
“Then most recently on the 30th of April, Mr. Quinn threatened me while I was
walking on Ulloa, and he drove by his car, made a U-turn to make sure that he could
come back and yell at me out his window, „Gonna getcha, gonna getcha.‟ With this, I
was then prompted to add a request to the Taraval Police Station for an emergency
protective order which was granted to me. And that was also in relationship to the other
five police reports that I had made over vandalism to my property and to having shingles
ripped off my house by Damien Quinn and as a result of several years worth of other
physical attacks on my house.
“There‟s a lot of history here. There‟s a lot of years. But this is escalating to the
point that I am in fear of my personal safety as well as that of my house.
“THE COURT: All right. Mr. Quinn, your turn.
“MR. QUINN: Your Honor, to believe Ms. Wuerfel‟s story of me and that she‟s
in fear for her safety, let‟s look at what she does. When the emergency protective order
was issued, the day it expired, prior to it expiring, she comes and she stands in my
driveway staring into our house. This is a woman, again, who is terrified of us.
“We moved out of the house because of Ms. Wuerfel back in 2008. And, again,
she leads you to believe that she‟s terrified of me, but what does she do? She comes to
our rental property and stalks my children, where we have to get the police involved and
have her stopped. We then had to—”
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At that point, Judge Tsenin interrupted, as she would do in the course of the
hearing, to ask Wuefel, the charged party, “Did you do that?” Wuerfel denied it, and
Quinn‟s testimony resumed:
“MR. QUINN: We have a police report. And we also—I mean, what do we need
to do? Bring in our children as testimony? They‟re damaged enough by this lady.
“THE COURT: Okay. Go ahead.
“MR. QUINN: Afterwards, we have—I mean, we‟re paying $5,500 a month
mortgage and 4,000 in rent. We‟re forced to move back into the house without any
repairs because of Ms. Wuerfel‟s repetitive, frivolous appeals to the Building
Department.
“She escalates her—escalates her constant complaining to the Building
Department, Board of Supervisors, et cetera, et cetera, so that we eventually in 2011,
January 2011, we buy another house [on] Jersey Street, which is four and a half miles
from Wuerfel‟s house. Again, she‟s so terrified of me, the next thing she does is she
arrives at that house, enters the house, takes photographs inside the house, takes
measurements inside the house, which she then uses to—
“THE COURT: Your house on Jersey Street?
“MS. GALVIN: Yes.
“MR. QUINN: Correct, four and a half miles away.
“THE COURT: Did you do that?”
Wuerfel again denied this charge, and this ensued:
“THE COURT: How do you know she took photographs?
„MR. QUINN: We were standing outside when she came. . . . She come—we‟re
trying to get away from this lady. She‟s so terrified of me she follows me all over. She
begins the exact same campaign of harassment on Jersey Street that she had done on 23rd
Avenue. So, so far to date she‟s filed 31 complaints on our properties. Again, I—we‟re
building a—
“THE COURT: Is that true? You filed 31 complaints?
“MS. WUERFEL: That is not true.
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“THE COURT: How many complaints have you filed?
“MS. WUERFEL: Probably about seven or eight, because the house next door to
me was vacant, and he would leave the windows open. I have documentation of leaving
windows open, eventually to the point that one of the windows blew off and crashed into
my house. And the people in the Building Department would not come out and make Mr.
Quinn board up his house. He even allowed people to come in over the summer of 2010.
Seven people lived there for three months and trashed the house every day at 3:00 a.m.
“THE COURT: It wasn‟t your house, was it?
“MS. WUERFEL: No, it was right next door. So the house next door is vacant
for, basically, two years, and he then proceeded to have a variety of ways to destroy the
house. And—
“THE COURT: Why would he want to destroy his own property?
“MS. WUERFEL: I would let him answer that. But it was clear. I have
photographs so that you can see what—
“THE COURT: You have photographs of his Jersey house?
“MS. WUERFEL: No, I have photographs of the house next door, which is why I
am asking for a restraining order. I don‟t know what he‟s talking about on Jersey Street.”
Judge Tsenin then turned her attention to the “building complaints,” that is,
Wuerfel‟s complaints to the various city agencies, which, as Galvin confirmed, were
described in Quinn‟s response. The following then ensued:
“THE COURT: Let‟s count them.
“MS. GALVIN: There‟s a lot.
“ MR. QUINN: Your Honor, one thing. I mean, under section—code section
425.16, Ms. Wuerfel is, to some extent, privileged to file complaints. But, again, you
would expect the woman that called, that she has—or a rational, sane person has some
possibility of prevailing. Ms. Wuerfel would file a notice of violation. We would file a
permit. She would appeal the permit. We would then go to whatever agency we‟re sent;
the Board of Permit Appeals, we will prevail. We‟ve never lost. We will prevail. She
would then appeal that to the Planning Department, Building Inspection Commission,
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and then possibly go back to the Board of Permit Appeals again to the point that we
haven‟t been able to put a roof on our house. . . .
“THE COURT: 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24. A lot more than 7.
“MS. WUERFEL: Except I didn‟t call in all of those complaints. Two of them
were made by the Building Department themselves by a default because of—
“THE COURT: Oh.
“MS. WUERFEL: —the vacant building.
“THE COURT: 8, 9, 10, 11, 12—what number was I at before?
“MR. QUINN: Your Honor, we should look at all of the addresses. . . . . Taraval
Street is a restaurant we‟ve been trying to build since 2007. Wuerfel has opposed every
single permit.
“And if I could, I‟d like to ask Patrick Spiers to read a letter which he witnessed
Wuerfel distributing on Taraval Street, which, I mean, if it‟s not hate mail, I don‟t know
what is.
“THE COURT: Okay. Let‟s hear from Ms. Wuerfel‟s witnesses.
“MS. WUERFEL: The witness that I have is particular to the threat.
“On February 23rd, Officer De Jesus came and responded to my call because I
was being stalked. And he talked to me, and he also talked to Mr. Quinn. And he
instructed both of us to stay away from each other and to not have any contact.
“The reason that I have a witness here is to testify to the fact that on April the
15th, Mr. Quinn not only once again ran his car into my driveway and destroyed plants in
intimidation activities, he then walked up to my house and banged on the door. I was on
the telephone with my friend here who heard this, and I wanted to make sure that it
wasn‟t just my word against Mr. Quinn.
“Also, you‟ll see that there are other activities, through the videos, that create
interaction that were to be prevented. I have a video with me, if you want to see it. I
have stills of the video. I have documentation of years worth of destroying my property.
And I‟m prepared to provide the Court with whatever information that you want.
“THE COURT: Well, what does the video show?
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“MS. WUERFEL: The video will show—the first video shows Mr. Quinn in
broad daylight stomping down a small fence that I have in front just to keep people from
walking onto the garden. He does it with his feet, and it‟s rather violent to see him kick
down the fence. Then I have a video that‟s about a week later where at 1:34 in the
morning he drives his car up over my curb and my plants, then parks his—
“THE COURT: Stop right there. Did you do those things, Mr. Quinn?
“MR. QUINN: Your Honor, if you look at what she calls her garden, it‟s actually
street parking where—I have three children which have to exit roadside because she‟s
erected fences—
“THE COURT: Did you stomp on her little fence?
“MR. QUINN: I stomped on the fence, yes.
“THE COURT: Okay. Now, is the fence on her property?
“MR. QUINN: No, it is not.
“MS. GALVIN: No, it is not. It‟s on the street.
“THE REPORTER: Wait, wait.
“THE COURT: One at a time. I know this is very hard.
“MR. QUINN: Sorry. We‟ve had DPW out numerous times to have her remove
one of the plants because it‟s toxic to the children. She grows these cactuses that will cut
you to the bone, which are not recognized city plants. Secondly, she erects a fence so
that you can‟t exit curbside on the city street, not on her property. So yes, I did remove
the fence so that my children coming home from school could exit curbside.
“THE COURT: All right. I have another question, Ms. Wuerfel. There are two
complaints here—at least two that I have found so far—a reporting animals abandoned.
Did you file these complaints?
“MS. WUERFEL: No, I did not. And I checked with Animal Care and Control,
and they indicate that there was a man that reported the abandonment of the animals that
were barking all night long. I did not make those complaints.
“MR. QUINN: Your Honor, when the SPCA came out, I was at the house, and
they told me straight out that it was my next door that had—there‟s actually four reports
15
to—the last being the night of my son‟s graduation party. Wuerfel watched us leave the
house, go to the—go to the party. When we returned, the animals had been taken from
our rear yard. She had reported to the SPCA that the house was vacant and abandoned.
“THE COURT: All right. What do your witnesses have to say?
“MS. MONTEITH: One Sunday night last month Ms. Wuerfel and I were having
a telephone conversation. And in the background, I heard loud, very loud banging on her
front door. And it wasn‟t a simple knocking. It was very forceful. Ms. Wuerfel said,
„Wait a minute.‟ And there was a pause, and she came back to the phone and said, „It‟s
him.‟ And I was very concerned for her safety because it was a very aggressive act, and
Mr. Quinn had been ordered to stay away from her. And I asked her if she was in any
danger. She said, „No, he‟s—he‟s leaving.”
“THE COURT: Okay. Mr. Quinn, did you go bang on her front door?
“MR. QUINN: No, your Honor. It never happened.
“THE COURT: Did you ever go to her front door?
“MR. QUINN: No, your Honor. I have never had any interaction with her
whatsoever.
“THE COURT: Did you paint the stuff on the plywood?
“MR. QUINN: Your Honor, the one with the big tree, small axe is actually
Marcus Garvey, one of the greatest freedom fighters ever. And the rest, I think, comes
out of the Bible. If Ms. Wuerfel is vain enough to think that it was a threat against her,
she should go back to school.
“THE COURT: Please don‟t. I mean, obviously, you did it because of her. I
mean, I‟m not—
“MS. GALVIN: But it was an act of frustration.
“THE COURT: That I understand; I understand that.
“MS. GALVIN: It wasn‟t a personal threat.
“MR. QUINN: And, your Honor, you got to remember. The only reason why the
plywood was up, because Wuerfel had made us put up the plywood.
“MS. GALVIN: After contacting our bank, our lender.
16
“THE COURT: I‟m not—I can understand where the frustration is.
“All right, Ms. Wuerfel, how about your other witness?
“MS. YACOBUCCI: I attended all the hearings of the appeals boards with Nancy
[Wuerfel]. All of her appeals were based on legal building and planning code violations.
“THE COURT: Has she won any of the appeals?
“MS. YACOBUCCI: I don‟t believe—have you? No.
“THE COURT: Seems like a lot of harassment to me.
“MS. WUERFEL: Can I comment on that, your Honor?
“THE COURT: Yes.
“MS. WUERFEL: There was a withdrawal of one permit and a cancellation of
another permit. And two other permits were then awarded. So it‟s a 50/50 result of my
going to the Board of Appeals.
“MR. QUINN: Your Honor, can I just interject for one second?
“THE COURT: Go ahead.
“MR. QUINN: And, again, under 425.16 she has the right to appeal. But, again,
one of the things she used the overall appeals for was to run down the condition of our
house at which point then she notified our lender, who then ordered us to make repairs
within 90 days. We applied for permits to make the repairs instigated by our lender,
which she then appealed. The lender then filed a Notice of Default. She has no
pecuniary interest in our mortgage or our lender, period.”
At the conclusion of the hearing Judge Tsenin ruled against Wuerfel, granting
Galvin and her family protection against Wuerfel, and denying Wuerfel‟s request.
A formal order in favor of Galvin (and her family) was entered on May 23,
ordering Wuerfel to stay 150 yards away “except 10 feet away while in or about . . . 23rd
Avenue.” No formal order is in the record denying Wuerfel‟s request.
On July 20 Wuerfel, represented by counsel, appealed from the “Civil Harassment
Restraining Order . . . entered on or about May 23, 2012.”
17
DISCUSSION
Wuerfel, represented by the same counsel on appeal, makes two arguments
attacking Judge Tsenin‟s orders, that she erred in (1) denying Wuerfel‟s request for a
civil harassment restraining order and (2) granting Galvin‟s request. We conclude that
neither argument has merit. Before turning to a discussion of why, we set forth some
observations about the principles governing here, beginning with comments about
Wuerfel‟s briefs, which completely ignore the rules of appellate procedure.
The way Wuerfel sets out the facts in her brief is to tell the story based on her
version of the facts. Reading Wuerfel‟s recitation of facts, not to mention the arguments
premised on those facts, a reader would not even know that there was another side to the
story—let alone the side believed by Judge Tsenin. This is most improper.
California Rules of Court, rule 8.204(a)(2)(C) provides that an appellant‟s opening
brief shall “[p]rovide a summary of the significant facts. . . .” The leading California
appellate practice guide instructs about this: “Before addressing the legal issues, your
brief should accurately and fairly state the critical facts (including the evidence), free of
bias; and likewise as to the applicable law. [Citation.] [¶] Misstatements,
misrepresentations and/or material omissions of the relevant facts or law can instantly
„undo‟ an otherwise effective brief, waiving issues and arguments; it will certainly cast
doubt on your credibility, may draw sanctions [citation], and may well cause you to lose
the case!” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter
Group 2012) ¶ 9:27, p. 9-8, italics omitted.) Wuerfel‟s brief ignores such instruction.
And more.
“ „It is well established that a reviewing court starts with the presumption that the
record contains evidence to sustain every finding of fact.‟ [Citations.] Defendants‟
contention herein „requires defendants to demonstrate that there is no substantial
evidence to support the challenged findings.‟ [Citations.] A recitation of only
defendants‟ evidence is not the „demonstration‟ contemplated under the above rule.
[Citation.] Accordingly, if, as defendants here contend, „some particular issue of fact is
not sustained, they are required to set forth in their brief all the material evidence on the
18
point and not merely their own evidence. Unless this is done the error is deemed to be
waived.‟ [Citations.]” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881;
accord, In re Marriage of Fink (1979) 25 Cal.3d 877, 887.)
What Wuerfel attempts here is merely to reargue the “facts” as she would have
them, an argumentative presentation that not only violates the rules noted above, but also
disregards the admonition that she is not to “merely reassert [her] position at . . . trial.”
(Conderback, Inc. v. Standard Oil Co. (1966) 239 Cal.App.2d 664, 687; accord,
Albaugh v. Mt. Shasta Power Corp. (1937) 9 Cal.2d 751, 773.) In sum, Wuerfel brief
manifests a treatment of the record that disregards the most fundamental rules of
appellate review. (See 9 Witkin, Cal. Procedure, supra, Appeal § 365, pp. 421-423, and
§ 368, pp. 425-426.) As Justice Mosk well put it, such “factual presentation is but an
attempt to reargue on appeal those factual issues decided adversely to it at the trial level,
contrary to established precepts of appellate review. As such, it is doomed to fail.”
(Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 398-399.) And fail it does, as there is
substantial evidence supporting Judge Tsenin‟s ruling here.
The Standard of Review
“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. (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137-1138 [injunctions
under § 527.6 are reviewed to determine whether factual findings are supported by
substantial evidence; trial court's determination of controverted facts will not be disturbed
on appeal.)]” (R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188.)
The substantial evidence rule applies without regard to the standard of proof
required at trial. Put otherwise, the standard of review remains substantial evidence even
if the standard below is “clear and convincing” evidence. (See Crail v. Blakely (1973)
8 Cal.3d 744, 750; In re Marriage of Ruelas (2007) 154 Cal.App.4th 339, 345.) As one
Court of Appeal put it: “ „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
19
evidence, however slight, and disregarding the appellant‟s evidence, however
strong.” . . .‟ „We have no power to judge the effect or value of the evidence, to weigh
the evidence [or] to consider the credibility of witnesses‟ . . . .” (In re Mark L. (2001)
94 Cal.App.4th 573, 580-581.)
Schild v. Rubin (1991) 232 Cal.App.3d 755, 762 described the principle in a
section 527.6 case: “In assessing whether substantial evidence supports the requisite
elements . . ., as defined in Code of Civil Procedure 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. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925;
[citations].”
Denial of Wuerfel’s Request For a Civil Restraining Order Was Proper
Wuerfel‟s first argument is that Judge Tsenin erred in denying Wuerfel‟s request
for a civil restraining order, an argument that asserts Judge Tsenin “improperly refused to
receive or consider [Wuerfel‟s] evidence including photographs and videotape.” In
Wuerfel‟s words, she “proffered a variety of evidence of such harassment in the form of
personal testimony, witness statements, photographs, and even video of many of the
destructive and harassing incidents. (RT0008, Ln.16-21.) For unknown reasons, the
Court did not review the offered evidence. The evidence satisfies the requirements of
section 527.6; the Superior Court erred by denying the request for a Restraining Order.”
As indicated above, the record contains no order denying Wuerfel‟s request, so it
might be that there is nothing from which Wuerfel can appeal on this point. But passing
over such procedural problem, Wuerfel‟s argument fails on the merits. The cited
transcript passage—RT 8:16-21—reads in its entirety as follows:
“MS. WUERFEL: Also, you‟ll see that there are other activities, through the
videos, that create interaction that were to be prevented. I have a video with me, if you
want to see it. I have stills of the video. I have documentation of years worth of
20
destroying my property. And I am prepared to provide the Court with whatever
information that you want.”
We see nothing there, or any place else in the record, supporting the claim that
Judge Tsenin “did not review the offered evidence.” Perhaps she did not believe it.
Perhaps she thought it did not measure up. But there is nothing supporting the claim that
Judge Tsenin did not consider it.
To the contrary, Judge Tsenin asked, “Well, what does the video show,” and the
follow-up revealed that the contention has to do with the obstruction of curbside city
property. Moreover, Wuerfel‟s application had attached to it a two-page narrative of her
claims of prior harassment, an index with descriptions of what purports to be
22 photographs or videos of various claims, a two-page letter to a police captain with
another set of various claims, and four pages of photographs of various claims. All of
this, of course, was before Judge Tsenin.
The two cases cited by Wuerfel—Adler v. Vaicius (1994) 21 Cal.App.4th 1770and Schraer v. Berkeley Property Owners Assn., supra, 207 Cal.App.3d 719—are not to
the contrary. Adler does not even involve the issue, but rather a trial court‟s failure to
have a hearing where the “business of the court prevented a hearing when set due to
unavailability of a judge.” (Adler v. Vaicius, supra, 21 Cal.App.4th at p. 1776.)
Schraer is equally inapplicable. As described by our colleagues in Division
Three: “[c]ontrary to the express requirements of the statute, the trial court expressly
refused to permit the introduction of oral testimony, and based its decision entirely on
written declarations, newspaper articles, and the arguments of counsel. The trial court
repeatedly stated that it was not required to make a factual determination of „what has
occurred in the past,‟ but was only supposed to „keep the peace‟ by preventing possible
future violations of the law. The court went on to base its conclusion that future
harassment might occur by relying on concededly hearsay press accounts of what the
appellants had said or were represented to have said; it then explicitly shifted to
appellants the burden of proving that the statements were not made or were not
authorized. In so doing, the trial court manifested a fundamental misunderstanding of its
21
role under the procedural statute in question.” (Schraer v. Berkeley Property Owners
Assn., supra, 207 Cal.App.3d at p. 731.)
Finally, even assuming that Wuerfel demonstrated that Judge Tsenin refused to
consider evidence—which Wuerfel has not shown—Wuerfel‟s argument is defeated by
Malatka v. Helm (2010) 188 Cal.App.4th 1074, 10876, where the Court of Appeal
rejected a similar argument by a losing defendant in a section 527.6 case: “In order to
obtain appellate review of a ruling excluding evidence, its proponent must have made
known to the court „[t]he substance, purpose, and relevance of the excluded evidence . . .
by the questions asked, an offer of proof, or by any other means.‟ (Evid. Code, § 354,
subd. (a).) In this case, defendant neither objected at the hearing . . . to the court‟s
exclusion of this evidence or offered to prove the contents of the declarations at that
hearing. . . . We conclude that defendant, by failing to make a timely objection or offer
of proof, has forfeited her claim that the trial court erred by failing to consider
declarations attached to her opposition.” (Fn. omitted.) Like the appellant in Malatka,
Wuerfel made no offer of proof.
The Restraining Order Against Wuerfel Was Proper
Wuerfel‟s second argument is that Judge Tsenin erred in granting the civil
harassment restraining order in favor of Galvin and her family. The argument has two
subparts: (1) Judge Tsenin improperly considered Wuerfel‟s constitutionally protected
actions; and (2) there is no substantial evidence to support the order.
As to the claim of “protected activity,” we have several observations. First, the
law is that “Speech that constitutes harassment within the meaning of C.C.P. 527.6 is not
constitutionally protected, and the victim of the harassment may obtain injunctive relief.
However, an injunction burdening protected speech will be upheld only to the extent that
its provisions burden no more speech than required to serve a significant government
interest.” (6 Witkin, Cal. Procedure, supra, Provisional Remedies, § 318, p. 254, citing
Huntingdon Life Sciences v. Stop Huntingdon Animal Cruelty USA (2005)
129 Cal.App.4th 1228, 1250, 1265.)
22
The record reflects that Wuerfel has filed numerous complaints, perhaps as many
as 31, many of which are related to the residential property next door, causing Galvin and
Quinn to file seven building permit applications. Wuerfel has appealed each of these
applications to various boards and agencies. Indeed, Wuerfel has registered the same
appeal numerous times, sometimes to the same board, or the same appeal to a different
board having not prevailed elsewhere. At every one of her appeals, Wuerfel has been
publicly rebuffed. As her own witness, Linda Yacobucci, admitted at the hearing—
apparently having glanced over to Wuerfel—she has not won one appeal. She has been
described by one commissioner as “overzealous” and by another board member as a
“moving target,” as she appears to have a different reason for appeal each time.
Second, as Galvin and Quinn point out, they are not contending that Wuerfel‟s
constitutionally protected activities should be interfered with—indeed, the order does not
even address them. As discussed at length above, the conduct about which Galvin
complained—and which supported Judge Tsenin‟s ruling—included conduct well beyond
Wuerfel‟s communications with public agencies. It included trespassing on their
property, going to their property five miles away, and, perhaps as importantly as
anything, intimidating their children. Beyond that, Wuerfel contacted Galvin and
Quinn‟s commercial lender, which is not a regulatory agency.
Wuerfel‟s second subargument, that there is no substantial evidence, is fatuous, as
shown by the submissions by Galvin and Quinn discussed at length above, and testified
to at the hearing before Judge Tsenin.
Wuerfel has filed a request to augment the record, requesting we add page 13 of
the reporter‟s transcript and copies of videos offered in evidence to the trial court. Galvin
and Quinn have filed a request for judicial notice, requesting we take notice of what is
claimed to be documentary evidence of posthearing conduct by Wuerfel. We deny both
requests.
DISPOSITION
The orders are affirmed.
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_________________________
Richman, J.
We concur:
_________________________
Haerle, Acting P.J.
_________________________
Lambden, J.
24