Sharp v. Paul CA2/8 ( 2013 )

Filed 3/29/13 Sharp v. Paul CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 EIGHT
PRESTON SHARP, B242280
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GS013993)
v.
DEBORAH PAUL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Dorothy L.
Shubin, Judge. Reversed.
Caldwell Leslie & Proctor, Andrew A. Esbenshade and Jeffrey M. Chemerinsky
for Defendant and Appellant.
Preston Sharp, in pro. per., for Plaintiff and Respondent.
*******
Respondent Preston Sharp lived in a house owned by appellant Deborah Paul. He
lived rent free with the understanding he would oversee substantial repairs to the
residence. When Paul no longer wanted Sharp‟s services, she asked him to move out of
the residence.
As a result of conduct not relevant to the current appeal, Paul successfully sought
a restraining order against Sharp. Sharp simultaneously successfully sought a restraining
order against Paul. On appeal, Paul challenges the sufficiency of the evidence to support
the restraining order entered against her. Because we conclude the restraining order is
not supported by substantial evidence, we reverse and dissolve it.
FACTUAL BACKGROUND
In his request for a civil harassment order, Sharp described Paul‟s harassment as
follows: “She was having me physically removed by her „family‟ since sent harassing
texts till 3-5-12.” (Sic.) “3-1-12 told neighbors.” “On January 23rd she came to the
jobsite/my residence and pointed a 357 magnum directly at my face from appx.
18 [inches]. Her partime [sic] boyfriend . . . was standing behind her. She has made it
clear this individual hates me, has terminated my employment, and harassed me since.”
Sharp described Paul‟s harassment as constant since February 22, 2012.
At a hearing, Sharp attempted to specify the harassment but had some difficulty
describing Paul‟s harassing behavior.1 Sharp explained he was fearful when Paul forgot
things and believed she may have suffered from “disingenuous disremembering.” Sharp
was upset by the reasons Paul gave for terminating his employment, which Sharp
described as incorrect hearsay statements. Sharp believed it was “harassment to cover up
[Paul] fired [him] because her feelings were hurt.” Sharp was concerned Paul hit her
mailbox when driving away from the house and considered that conduct harassing. Sharp
1 The trial court repeatedly asked Sharp to specify the alleged harassment. The
court stated, “Let me stop you for a moment. What is the harassment?” “What are you
saying was the harassment?” “Okay. So she said something negative to the neighbor.”
“I‟m trying to understand what the harassment is.” “I understand you disagree with what
she said. You also filed a petition, and . . . I want to understand the basis for that.” “I‟m
trying to understand what you‟re saying is the harassment.”
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was upset that Paul told a neighbor Sharp was “acting weird,” and her family would need
to “physically remove him.” Sharp was upset because Paul downplayed Sharp‟s
relationship with Paul‟s daughter. Paul‟s statement that Sharp was homeless further
upset Sharp. Paul called Sharp‟s sister, an act Sharp found to be harassing. According to
Sharp, Paul suffered from mental conditions that caused Sharp concern. And, Sharp was
distressed because Paul “showed . . . neglect” when Sharp “was injured.”
With respect to the gun incident described in Sharp‟s petition, Paul explained she
purchased a home with its contents included. Inside the home, she found three handguns.
Paul knew Sharp was familiar with guns and asked him to look at the guns, which Sharp
agreed to do. Paul showed two of the unloaded guns to Sharp, and Sharp handled the
guns expressing an interest in one and advising Paul of their value. Paul testified she did
not point the gun at Sharp. Paul‟s boyfriend, who was present, recounted the incident,
stating that no one pointed a gun at Sharp or threatened Sharp in any manner. Instead,
Sharp agreed to look at the guns, handled them, and was excited by one of them.
Sharp‟s account of the incident was mostly consistent with Paul‟s. Sharp knew
Paul was bringing the guns to show him. The only discrepancy between Sharp‟s and
Paul‟s account was that Sharp stated Paul pointed the unloaded weapon at him. Sharp
testified Paul pointed a gun at him, but he knew “she just didn‟t mean anything by
it . . . .” “She didn‟t point it at me and say I‟m going to shoot you or anything like
that. . . . She pointed it at my face [a]nd every adult knows you never, never point a
weapon at anyone. I [(Sharp)] overreacted then.” Sharp reiterated that Paul did not say
anything threatening. Sharp also acknowledged he handled the guns after Paul pointed
one at him.
On April 18, 2012, the trial court entered a civil harassment restraining order
requiring Paul to stay 100 yards away from Sharp. The order also prohibited Paul from
harassing Sharp or contacting Sharp. This appeal followed.
DISCUSSION
Code of Civil Procedure section 527.6 (section 527.6) permits issuance of a
restraining order if a person suffers harassment. For purposes of this statute, harassment
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is limited to “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.” (Id., subd. (b)(3).)
“Course of conduct” in turn is defined as “a pattern of conduct composed of a series of
acts over a period of time, however short, evidencing a continuity of purpose, including
following or stalking an individual, making harassing telephone calls to an individual, or
sending harassing correspondence to an individual by any means, including, but not
limited to, the use of public or private mails, interoffice mail, facsimile, or computer
email. . . .” (Id., subd. (b)(1).)
The element of emotional distress necessary under section 527.6 is analogous to
the tort of intentional infliction of emotional distress and requires “highly unpleasant
mental suffering or anguish „from socially unacceptable conduct‟ [citation], which entails
such intense, enduring and nontrivial emotional distress that „no reasonable [person] in a
civilized society should be expected to endure it.‟ [Citations.]” (Schild v. Rubin (1991)
232 Cal.App.3d 755, 762-763.) “„Conduct, to be “„outrageous‟” must be so extreme as to
exceed all bounds of that usually tolerated in a civilized society.‟ [Citation.]”
(Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129
Cal.App.4th 1228, 1259 (Huntingdon Life Sciences).)
“Section 527.6 was enacted „to protect the individual‟s right to pursue safety,
happiness and privacy as guaranteed by the California Constitution.‟ [Citations.]”
(Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1412.) “An injunction is authorized only
when it appears that wrongful acts are likely to recur.” (Russell v. Douvan (2003) 112
Cal.App.4th 399, 402 (Russell).) It is not based on redress for past acts. (Id. at p. 403.)
Importantly, a single act of violence is insufficient to support an injunction unless that
single act demonstrates that “future harm is highly probable.” (Id. at p. 404.)
A court must determine by clear and convincing evidence that an injunction is
warranted. (Russell, supra, 112 Cal.App.4th at p. 401.) We review the trial court‟s
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factual findings to determine whether they were supported by substantial evidence. (R.D.
v. P.M. (2011) 202 Cal.App.4th 181, 188.) Whether the facts construed in support of the
injunction are sufficient to constitute civil harassment is a question of law subject to de
novo review. (Ibid.) As we explain, the facts construed in the light most favorable to the
injunction do not support it.
There was no evidence of “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.” (§ 527.6,
subd. (b)(3).) Putting aside for the moment Sharp‟s testimony that Paul pointed a firearm
at him, no other event described by Sharp was sufficient singularly or in combination to
support the restraining order. While the conduct may have been distressing to Sharp, it
did not fall within the definition of harassment in section 527.6. Conduct distressing to
Sharp is not the appropriate standard. (Schild v. Rubin, supra, 232 Cal.App.3d at p. 764
[“„“The question is not whether the plaintiffs have been annoyed or disturbed . . . but
whether there has been an injury to their legal rights.”‟”].) Not only did Sharp fail to
identify harassing conduct, he failed to identify a “course of conduct” that would “cause a
reasonable person to suffer substantial emotional distress.” (§ 527.6, subd. (b)(3).)
Paul‟s memory loss, termination of Sharp, anger at Sharp, as well as the other conduct
described by Sharp was not so outrageous or “„so extreme as to exceed all bounds of that
usually tolerated in a civilized society.‟ [Citation.]” (Huntingdon Life Sciences, supra,
129 Cal.App.4th at p. 1259.)
Turning to the firearm incident, “„[c]ontext is everything in threat jurisprudence.‟
[Citation.]” (Huntingdon Life Sciences, supra, 129 Cal.App.4th at p. 1250.) Here,
although Sharp testified Paul pointed a gun directly at him, the context undisputedly
demonstrated that Paul‟s pointing a gun at Sharp was not a threat. It was undisputed Paul
showed Sharp the firearms to obtain his assistance in valuing them, not to threaten Sharp.
Significantly, Sharp admitted he did not feel threatened. Sharp testified Paul did not
intend to threaten him when she pointed the gun at him. He knew “she didn‟t mean
anything by it.” Instead, according him, she did not know how to handle guns. Under
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such circumstances, the conduct would not cause a reasonable person to suffer substantial
emotional distress, and it did not cause Sharp to suffer substantial emotional distress or to
fear for his safety within the meaning of the statute. In this peculiar context, pointing an
unloaded gun at Sharp did not constitute a credible threat of violence or harassment.2
Because no substantial evidence supports the restraining order, it must be reversed.
DISPOSITION
The order is reversed. The injunction is dissolved. Appellant is entitled to costs
on appeal.
FLIER, Acting P. J.
We concur:
GRIMES, J.
KARLAN, J.*
2 Additionally, there was no evidence that Paul‟s conduct in pointing a firearm at
Sharp was likely to recur. Not only had Paul turned in the weapons prior to the hearing
on the restraining order, but it was undisputed that prior to this incident she “never owned
or even touched a gun,” and there was no evidence she ever threatened Sharp with a
weapon.
* 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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