Monroy v. Corson CA2/8 ( 2014 )

Filed 10/6/14 Monroy v. Corson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
ALBA L. MONROY, B253370
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PS015174)
v.
JAY CORSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County. Jeffrey M.
Harkavy, Temporary Judge. (See Cal. Const., art. VI, § 21.) Affirmed.
Law Office of Jack T. Humes and Jack T. Humes for Defendant and Appellant.
Myers, Widders, Gibson, Jones & Feingold and Kelton Lee Gibson for Plaintiff
and Respondent.
**********
Plaintiff Alba L. Monroy sought a civil harassment restraining order against
defendant Jay Corson, protecting herself and her adult daughter, who resided with her.
Plaintiff was the property manager for the community where defendant lived, and
claimed that defendant harassed her for months at the community’s homeowners
association meetings. Finding clear and convincing evidence in support of the requested
order, the trial court issued a permanent restraining order, protecting plaintiff and her
daughter.
On appeal, defendant contends the trial court’s stated reasons for granting the
order are insufficient as a matter of law. He also contends the trial court made a number
of procedural and evidentiary errors that denied him due process. There is no reporter’s
transcript of the hearing on the petition, and defendant did not provide this court with
either a settled statement or agreed statement. The trial court’s statement of decision
appears on its face to be thorough and well reasoned. On the inadequate appellate record,
we have no basis to find error and therefore affirm the order.
FACTS
The petition filed on April 2, 2013, alleged plaintiff is the “managing agent of
Porter Ranch Estates” and defendant attends meetings of the community’s homeowners
association. Defendant had most recently harassed plaintiff on March 14, 2013, by
“yelling at” her; he also “cornered [her]” and was “abusive.” He was “secretly taking
pictures” of her, and said “he was going to make sure and get rid of [her].” Plaintiff
claimed to be “[e]motionally injured” and disturbed. Defendant had been verbally
abusing her for at least four months. He “scares [her] to death.” Plaintiff was worried
defendant might “snap” and cause her harm in the future.
An incident report was appended to the petition, detailing defendant’s activity at
the March 14, 2013 meeting. According to the report, defendant used his iPhone’s
camera to take a picture of the area “between [plaintiff’s] knees” while she was seated.
Defendant deleted the photo when he was confronted by security. Also appended to the
petition was a letter from the homeowners association’s counsel to defendant, asking him
to cease his inappropriate behavior at future board meetings, and that he refrain from
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“screaming at Board members during Board meetings; . . . invading the personal space of
Board members while screaming at them . . . ; and . . . taking photographs under the
clothing, i.e., skirts, of unsuspecting female attendees of Board meetings . . . .” Finally,
the petition included an email thread discussing an incident where defendant called
plaintiff a “little bitch.”
A temporary restraining order issued on April 2, 2013.
In his response filed May 7, 2013, defendant alleged he never threatened or
harassed plaintiff. Defendant was unhappy with plaintiff’s management of the
community, and the Board of Directors of the homeowners association had held votes in
the past to replace plaintiff as the property manager, but the Board was split on whether
to remove her. Defendant decided to run for the Board, and intended to vote for
plaintiff’s removal if elected. He argued plaintiff was seeking a restraining order merely
to “smear [defendant] in the community in order to maintain the status quo.” He denied
yelling at plaintiff at the March 14, 2013 public board meeting, but admitted he took a
photograph of her to “demonstrate the inappropriateness of [plaintiff’s] business
conduct. . . .”
The hearing on the petition was held on May 17, August 16 and 19, and October 9,
2013. The trial court took the matter under submission, and issued a statement of
decision on November 1, 2013, as follows:
“Over a period of approximately 5 months, the Court heard testimony from each
of the parties, as well as from Mr. Tashaka Starwell, Mr. Thomas Edmond, Ms. Brenda
[Karczag], Mr. Tom Putnam, Mr. Roy Sanchez, Mr. Thomas Stramat and Mr. John Paul
Walker. The Court received physical evidence from both sides. These exhibits included
a security report from Tashaka Starwell, photographs, diagrams, minutes of the meetings
of the Northridge Community Association, emails, website information for Porter Ranch
Estates and a declaration of Albin Becica. . . . [¶] . . . [¶]
“At all times relevant to this case, Petitioner, Alba Monroy (Monroy), was the
property manager at Porter Ranch Estates (PRE). Monroy is employed by ABM Property
Management (ABM), a [company] under contract to provide property management
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services to PRE. PRE is a gate guarded community consisting of over 1,100 single
family homes, recreational facilities and common areas. . . . Jay Corson (Corson), is a
resident of this community. The Northridge Country Community Association (HOA), is
the homeowners association for PRE and responsible for, among other duties: security,
repairs, landscaping and maintenance of the recreational facilities and common areas.
“From all of the evidence presented, it is quite evident to the Court that segments
of the Community are deeply divided over the management of the property and the
actions of the HOA. Monroy has her supporters and detractors as does Corson. Corson
has made it very clear by his words and actions that he has serious objections to
Monroy’s job performance and wants to see ABM and Monroy replaced. During the
pendency of this action, Corson ran for an open seat on the Board of the HOA. He
openly stated that if elected he would join with the other members of the Board in voting
to terminate the contract with Monroy and ABM. He was unsuccessful in that election.
“As the Court stated repeatedly during the course of this hearing, Corson has every
right to voice his objections to the actions of Monroy, ABM, and the HOA. He also has
the right to attend open meetings of the HOA and address his fellow residents and
members of the Board about his concerns and complaints. The Court did not permit
testimony as to the validity of Corson’s complaints. The Court ruled that such evidence
was irrelevant for the purpose of deciding this case. Whether deemed valid or frivolous,
it is not for this Court to determine the merits of Corson’s issues. The only relevant issue
before this Court is the alleged conduct of Corson in the presence of and directed at
Monroy, whether it took place, and if so, whether it was unlawful.
“Monroy contends that on several occasions, that Corson has yelled at her,
approached her in a hostile and threatening manner, has pointed or wagged his finger in
her face, has called her a ‘bitch’, has used phrases such as ‘I’m going to take care of you’,
‘you have no business here’, and ‘I will take care of you’. Monroy and several witnesses
testified to these incidences and described Corson’s actions and demeanor as hostile and
aggressive. Monroy and her witnesses testified that she was profoundly affected by these
encounters with Corson and that she has suffered severe emotional distress as a result.
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Significantly, in order to further distance herself from Corson, Monroy testified that she
has moved her residence as a result of Corson’s conduct. Corson admitted that he made
some statements that expressed his desire that Monroy be removed as the property
manager for PRE. Generally, Corson denied making any threats to Monroy or to anyone
else. He generally denied yelling or raising his voice at Monroy.
“Evidence was also presented that during a meeting of the Board of Directors of
the HOA (the date of which was disputed)[,] Corson yelled at a member of the Board,
Brenda Karczag. Corson admitted to raising his voice at Karczag but testified that he did
so due to Ms. Karczag appearing at the meeting by phone connected to a speaker box and
that the connection was poor. Other witnesses described Corson’s tone was angry and
hostile.
“After listening to and evaluating the testimony of each of the witnesses for each
party, the Court finds that the overall credibility of Monroy and her witnesses as
significantly stronger than that of Corson and his witnesses. In particular, Corson both in
his testimony and during the testimony of others, exhibited signs of mocking and
disrespectful behavior. It is apparent to this Court that Corson has significant issues with
and negative opinions about Monroy and some of the employees from ABM that work
directly with Monroy in the performance of her duties at PRE. The depth of this criticism
has manifested itself as obsessive negative behavior by Corson directed at ABM in
general and Monroy in particular. This Court does not purport to fully understan[d] the
genesis of these opinions and feelings. Nor does this Court make any findings as to their
objective validity. However, in viewing the evidence as a whole including observations
of defendant’s attitude and demeanor in Court during hearing, the Court finds that Corson
displayed inappropriate and disproportionate animosity toward Monroy; and that this
attitude manifested itself in hostile and abusive behavior. Perhaps the best single
example of this was the picture taking incident of March 14, 2013.
“It is undisputed that during an open meeting of the Board of Directors of the
HOA, that among others, Corson and Monroy were present. Monroy was seated at the
end of a long table at the front of a school auditorium. The members of the Board were
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also seated at this table. Corson was seated in the audience. Defense exhibits A, C and
D, respectively, demonstrate the layout of the room and the approximate positions of the
parties during the course of the meeting. It is also undisputed that while the meeting was
in progress, Corson used his cell phone to take a picture of Monroy. Corson testified that
he believed Monroy was dressed inappropriately for a board meeting. Specifically,
Corson believed that Monroy’s dress [skirt] was too short. He took a picture that would
show the lower half of Monroy’s body. Corson testified that it was his intention to attach
the picture to an email and sen[d] it to certain residents in the community.
“There was much testimony and debate over whether Corson’s intent was to take a
picture showing the area between Monroy’s legs. Corson denies that was his intent and
argues that based upon the angle and distance of the parties, that such a picture would not
have been possible. The photograph was deleted shortly after it was taken (at the
insistence of the security guard who saw Corson take the picture). Therefore, the Court
was not able to see the picture. It should be noted that neither Monroy nor any member
of the Board saw the picture prior to its being deleted from the phone. In the final
analysis, what the picture showed is of little relevance as it pertains to this case.
“Unquestionably, Mr. Corson was taking the picture of the lower portion of
Monroy’s body while she was seated and wearing a skirt. The Court does not find that
the taking of the picture was to satisfy or appeal to any prurient interest. Rather, it was
the latest act in a relentless campaign to oust Monroy from her position as property
manager. Corson never considered the potential impact taking such a photograph would
have on any woman. The Court finds that Corson’s actions were motivated by his
attempt to further his political ambitions to be elected to a seat on the board. And if
successful, in a better position to have Monroy removed from her position as property
manager.
“After careful consideration of all the evidence presented by both sides and the
arguments of each counsel, and resolving all issues of weight and credibility, the Court
makes the following findings: The Court finds by clear and convincing evidence that . . .
Jay Corson, has engaged in a course of conduct that constitutes Civil Harassment as
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defined in C.C.P. Section 527.6(b)(3), in that he engaged in a knowing and willful course
of conduct that seriously alarmed, annoyed and harassed Alba Monroy and that these
actions did not serve a legitimate purpose.
“In watching and listening to the testimony of Monroy, the Court finds by clear
and convincing evidence that she sustained substantial emotional distress as a result of
Corson’s actions and conduct. And that any reasonable person under the same or similar
circumstances would have suffered such distress.
“There does not appear to the Court that Corson has altered his opinions [or]
perceptions of the job performance of Monroy or ABM. Nor, is there any requirement
that he do so. But given his continued objections, and the fact that Monroy is still the
property manager for the community where Corson resides, the Court finds by clear and
convincing evidence that unless a permanent restraining order is issued, that Corson will
continue his verbal and physical harassment of Monroy.
“Therefore, the Court orders that the temporary restraining order issued in this
case be reissued as a permanent order good for three (3) years from the date of this
Minute Order.
“In issuing this order, the Court is mindful that Corson may have reasons to
contact ABM employees with regard to issues in his community. Therefore, the Court
orders that Corson confine all his [communications] with ABM and their employees
and/or agents to writing. The Court also recognizes that Corson has the right as a
homeowner in the PRE community to attend open meetings of the Board of Directors of
the HOA. If he chooses to exercise that right, he must stay at least 10 yards away from
and have no contact with Monroy before, during and following these meetings.”
This timely appeal followed.
DISCUSSION
Defendant contends the reasons cited by the trial court in its statement of decision
are insufficient to support the restraining order as a matter of law. He also contends there
was no evidence supporting the inclusion of plaintiff’s adult daughter as a protected
person in the permanent restraining order. Additionally, he argues the trial court made a
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number of procedural and evidentiary errors which denied him due process. He claims
the trial court applied the wrong standard of proof, adopting a preponderance of the
evidence standard, and that the trial court erred when it excluded evidence concerning the
validity of defendant’s grievances with plaintiff. He also contends the trial court erred
when it issued the restraining order based on conduct not alleged in the petition.
Plaintiff points out that defendant has provided an inadequate record to support his
claims on appeal. We agree, and therefore affirm.
Code of Civil Procedure section 527.6 “ ‘authorizes a “person who has suffered
harassment” to obtain a [TRO] and injunction against the harassing conduct and provides
an expedited procedure to obtain such an injunction . . . .’ ” (Schild v. Rubin (1991) 232
Cal.App.3d 755, 762, citations omitted.) The clear and convincing evidence standard
found in section 527.6 is not incorporated into the standard of review on appeal. (See
Crail v. Blakely (1973) 8 Cal.3d 744, 750; In re Marriage of Ruelas (2007) 154
Cal.App.4th 339, 345.) Instead, “[t]he 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.] [W]hether the facts, when
construed most favorably in [plaintiff’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. [Citations.]” (R.D. v. P.M.
(2011) 202 Cal.App.4th 181, 188, fn. omitted.)
Absent an oral transcript of the proceedings or its equivalent, an appellant cannot
challenge the sufficiency of the evidence supporting a judgment. (Aguilar v. Avis Rent
A Car System, Inc. (1999) 21 Cal.4th 121, 132; see also Foust v. San Jose Construction
Co., Inc. (2011) 198 Cal.App.4th 181, 186-188.) There was no court reporter present to
record the hearing on the petition. The California Rules of Court provide that where
there is no reporter’s transcript, an appellant may proffer a settled statement or agreed
statement, when the “appellant intends to raise any issue that requires consideration of the
oral proceedings.” (Cal. Rules of Court, rules 8.120(b), 8.134, 8.137.)
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Defendant did not provide either an agreed statement or a settled statement.
Instead, he rested his appeal entirely on the trial court’s statement of decision and other
documents in the record. Defendant asserts this is adequate for appellate review, arguing
he is not challenging the sufficiency of the evidence, but the legal sufficiency of the trial
court’s findings, as stated in its statement of decision. In short, defendant tries to make
an end run around the substantial evidence standard of review.
A judgment is presumed correct, and an appellate court will infer factual findings
in support of that judgment, even if they are not included in a trial court’s statement of
decision. (City of Chino v. Jackson (2002) 97 Cal.App.4th 377, 385; see also In re
Marriage of Schmir (2005) 134 Cal.App.4th 43, 49-50 [appellate review for sufficiency
of the evidence extends to the entire record, and is not limited to facts mentioned in a trial
court’s statement of decision].) The trial court’s statement of decision appears to be
thorough and well reasoned. On the inadequate record provided, we have no idea what
evidence does or does not support the trial court’s order.
We also cannot discern the merit of the evidentiary and procedural claims. We
have no reason to believe the trial court abused its discretion, or to find any claimed error
prejudiced defendant. (Miyamoto v. Department of Motor Vehicles (2009) 176
Cal.App.4th 1210, 1217 [evidentiary rulings are reviewed for an abuse of discretion]; see
also Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259 [absence of record precludes
determination that trial court abused its discretion]; Cal. Const., art. VI, § 13 [a judgment
will not be reversed absent a showing of prejudicial error].)
It was defendant’s duty to “present a complete record for appellate review . . . .”
(Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032, 1039; see also Foust v. San Jose
Construction Co., Inc., supra, 198 Cal.App.4th at pp. 186-187.) Because he did not do
so, the order must be affirmed.
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DISPOSITION
The order is affirmed. Plaintiff shall recover her costs on appeal.
GRIMES, J.
We concur:
BIGELOW, P. J.
RUBIN, J.
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