Phillips v. Campbell , 206 Cal. Rptr. 3d 492 ( 2016 )

Filed 8/23/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
AMY LEE PHILLIPS, 2d Civil No. B263353
(Super. Ct. No. 15FL-0054)
Plaintiff and Respondent, (San Luis Obispo County)
v. OPINION ON REHEARING
JAMES EUGENE CAMPBELL, JR.,
Defendant and Appellant.
Sitting as trier of fact, a trial court may draw its own inferences and
conclusions from the evidence when hearing a matter brought pursuant to the Domestic
Violence Prevention Act (DVPA). (Fam. Code, § 6200 et seq.)1 This includes the power
to factually find a “dating relationship” within the meaning of the DVPA even though the
parties characterize their relationship as a friendship that does not involve “dating” as that
term is commonly understood. (See e.g., Fibreboard Paper Products Corp. v. East Bay
Union of Machinists (1964) 227 Cal. App. 2d 675, 696-697 (Fibreboard).)
James Eugene Campbell, Jr., appearing in propria persona, appeals from a
DVPA restraining order prohibiting him from harassing or contacting respondent and
compelling him to stay at least 500 yards away from her person, residence, and
workplace. In addition to claiming that the parties did not have a dating relationship,
appellant contends that the trial court (1) erroneously denied his motion to dismiss the
case, (2) erroneously granted the restraining order because his conduct was nonviolent,
1
Unless otherwise stated, all statutory references are to the Family Code.
and (3) violated his First Amendment rights of freedom of speech and expression.2 We
affirm.
Factual and Procedural Background
In March 2013 a Tennessee court issued a protective order requiring
appellant to stay away from and have no contact with respondent. The order expired in
March 2014.
In January 2015 in the County of San Luis Obispo, respondent applied for a
domestic violence restraining order against appellant. Respondent, a professional cyclist,
declared that she had “met [appellant] 2 1/2 years ago through cycling.” She had been
friends with him for several months. Appellant “expressed an interest in moving forward
in [the] relationship,” but respondent “informed [him] that [she] was not interested in
moving forward . . . , and [she] wanted to just be friends.” “One night, at 3:30 am,
[appellant] came to [respondent’s] house, banging on the door and windows.”
Thereafter, appellant repeatedly harassed respondent by sending text messages to her,
posting her personal information and photos of her on Facebook, posting videos of her on
YouTube, and sending “private messages to individuals sharing personal information
about [her].” In text messages to respondent, appellant called her a “psycho evil witch”
and “a compulsive liar” who had “lied” about him and “destroyed [his] life.”
The matter was set for a hearing on February 19, 2015. On that date,
respondent’s counsel appeared in court. Respondent was “on a bicycle Tour in New
Zealand.” Appellant, who lived in Florida, appeared in propria persona via the telephone.
At the beginning of the hearing, appellant told the court: “[M]y
understanding is the [respondent] has chosen to be out of the country, knowing that the
court date was today. I would ask that the court dismiss the case.” The court did not rule
2
Appellant also argues that respondent “lied on her [Form] DV-100 [entitled
“Request for Domestic Violence Restraining Order”] and stated she resided in California
. . . .” Appellant asserts that respondent actually resided in Chattanooga, Tennessee. The
argument is forfeited because it is unsupported by citations to the record and meaningful
analysis. (In re S.C. (2006) 138 Cal. App. 4th 396, 406-408.)
2
on the motion. It put the matter over until 3:15 p.m. At that time, the court said, “This
case . . . is going to take a lot longer.” The court continued the hearing to February 26,
2015. Appellant did not object.
On February 26, 2015, appellant again appeared in propria persona via the
telephone. Respondent was personally present with her counsel. After extensive
argument, the trial court found that “there was a relationship [between the parties] that
qualifies as a dating relationship and that the communications and interaction from
[appellant] to [respondent] qualifies for a domestic violence restraining order protecting
[respondent].”
Motion to Dismiss
Appellant contends that, at the hearing on February 19, 2015, the trial court
erroneously denied his motion to dismiss. But the court did not deny the motion. It
never ruled on the motion, and appellant did not press for a ruling. He did not object to
the continuance of the hearing to February 26, 2015. “[H]is failure to press for a ruling
[and to object to a continuance] waives the issue on appeal. [Citation.]” (People v.
Cunningham (2001) 25 Cal. 4th 926, 984; see also In re Richard H. (1991) 234
Cal. App. 3d 1351, 1362 [“Since appellant did not object to any of the continuances, he
has waived his right to claim any harm from the delay”].)
Had the trial court denied the motion to dismiss, we would have upheld its
ruling. Appellant’s motion was based on respondent’s failure to be personally present at
the hearing, even though her counsel was present. Appellant relies on former section
243, subdivision (a). It provided: “When the matter first comes up for hearing, the
petitioner must be ready to proceed.”3 Appellant has failed to show that respondent’s
counsel was not ready to proceed. The statute does not provide that the petitioner must
be personally present.
3
The quoted language was eliminated by a 2015 amendment that became effective
on January 1, 2016. (Stats. 2015, ch. 411, § 5.)
3
Dating Relationship
Respondent sought a restraining order pursuant to the DVPA. Such an
order may be granted where the parties are “having or [have] had a dating . . .
relationship.” (§§ 6211, subd. (c), 6301, subd. (a).)
The DVPA originally did not define “dating relationship.” In Oriola v.
Thaler (2000) 84 Cal. App. 4th 397, 412, the court concluded that “a ‘dating relationship’
refers to serious courtship. It is a social relationship between two individuals who have
or have had a reciprocally amorous and increasingly exclusive interest in one another,
and shared expectation of the growth of that mutual interest, that has endured for such a
length of time and stimulated such frequent interactions that the relationship cannot be
deemed to have been casual.” Based on this definition, the Oriola court determined that
the plaintiff was not entitled to a DVPA restraining order because a dating relationship
between the parties had not existed.
The legislature responded swiftly to Oriola’s definition of “dating
relationship.” In 2001 it passed Assembly Bill 362, enacting section 6210 which gave the
phrase “dating relationship” a technical definition for purposes of the DVPA: “‘Dating
relationship’ means frequent, intimate associations primarily characterized by the
expectation of affection or sexual involvement independent of financial considerations.” 4
(Stats. 2001, ch. 110, § 1.) The Senate Judiciary Committee analysis of Assembly Bill
362 noted: “[T]he Oriola decision ‘resulted in the fact that anyone who was involved in a
dating relationship short of ‘serious courtship’ is excluded from the protections of
California’s excellent Domestic Violence Prevention Act.’ [¶] If enacted, this bill would
nullify the definition crafted by the court in Oriola . . . .” (Sen. Judiciary Com., Analysis
of Assem. Bill No. 362 (2001-2002 Reg. Sess.), July 3, 2001, pp. 5-6.) In determining
legislative intent, we may consider bill analyses prepared by the staff of legislative
committees. (People v. Benson (1998) 18 Cal. 4th 24, 34, fn. 6.)
4
The same definition of “dating relationship” appears in Penal Code section 243,
subdivision (f)(10). Section 243, subdivision (e)(1) applies to a battery committed
against “a person with whom the defendant currently has, or has previously had, a
dating . . . relationship.”
4
Appellant claims that the trial court erroneously found that the parties had a
dating relationship. He characterizes their former relationship as “BEST FRIENDS.”
Appellant says that “. . . [a]ny reference to Appellant’s ‘love’ for [respondent] is . . . a
platonic love of caring and concern for his BEST FRIEND.” “[T]he parties engaged in
social activities just like [appellant] does with all of his friends.”
We review for substantial evidence the trial court’s finding that a dating
relationship existed. (J.J. v. M.F. (2014) 223 Cal. App. 4th 968, 975.) “The ultimate
determination is whether a reasonable trier of fact could have found [the existence of a
dating relationship] based on the whole record. [Citation.]” (Kuhn v. Department of
General Services (1994) 22 Cal. App. 4th 1627, 1633.) “We resolve all factual conflicts
and questions of credibility in favor of the prevailing party and indulge all reasonable
inferences to support the trial court’s order. [Citation.]” (Horsford v. Board of Trustees
of California State Univ. (2005) 132 Cal. App. 4th 359, 390.) “[T]he substantial evidence
standard of review is generally considered the most difficult standard of review to
meet. . . . In deciding whether to raise a substantial evidence claim on appeal, appellate
counsel should keep in mind that the appellate court ‘accept[s] the evidence most
favorable to the order as true and discard[s] the unfavorable evidence as not having
sufficient verity to be accepted by the trier of fact.’ [Citation.]” (In re Michael G. (2012)
203 Cal. App. 4th 580, 595.)
Substantial evidence supports the trial court’s express finding that a dating
relationship existed because a reasonable trier of fact could find that the parties had
“frequent, intimate associations primarily characterized by the expectation of
affection . . . .” (§ 6210.) Respondent declared: “We were friends for several months.
During that time, we spent time together, dined out on occasion, and [appellant] stayed in
my home for several days . . . .” Respondent sent a message to appellant stating that he
had a strong emotional “hold” on her. She complimented him on a kiss that he had given
her. In an email to appellant dated November 22, 2012, respondent said: “[T]hat hug in
the doorway and your hand on my lower back felt good.” “[T]he moments we were close
(either wrestling on the couch, or when you were laying in bed with me), seemed more
5
platonic, versus romantic.” Respondent referred to “[t]he time we’ve both invested to
build our relationship over the past 7 months, . . . strengthening our love and respect for
each other.”
In his communications with respondent after she had rebuffed his advances,
appellant made clear that he considered their relationship to have been more than a mere
friendship. He accused her of “leading [him] on” while she was dating someone else.
Appellant wrote: “What do u call telling me u love me but ur . . . [with] someone else?”
“You can combine all those [other] guys . . . , and [they] still did not do for you what I
did.” “Didn’t you tell me you wld always remember me and what a huge impact I had on
your heart and life?” “At least I wont hv to deal with u ever again. How does tht make u
feel that [the] only guy [i.e., appellant] u fell in love with ever would rather be dead than
hear or see from u again?” “Ppl [people are] probably confused after u lying so much
about me but then seeing how much love you had for me.”
Appellant’s statements to the trial court also showed that his relationship
with respondent was more than just a friendship. At the hearing on February 26, 2015,
appellant told the court that he thought “[respondent] was falling in love with me.”
Appellant acknowledged that he had said to her, “‘You really couldn’t understand why
someone [i.e., appellant] loved you for just you without sex.’” Although there is no
evidence that the parties had sexual relations, appellant admitted that in December 2012
he had sent nude photographs of himself to respondent. The nude photographs are
evidence of “intimate associations” and an “expectation of . . . sexual involvement”
within the meaning of section 6210. Appellant, however, stated to the court that “[t]here
was nothing inappropriate about” the photographs, which had been taken when he “was
nude modeling.”
Respondent denied that her relationship with appellant involved “dating” as
that term is commonly understood. In her application for a restraining order, she noted
that the parties had “discussed [the] possibility of dating.” In her November 22, 2012
email to appellant, respondent said that they were “just remaining friends” and “weren’t
dating, whether casually, socially, or non-committed dating.”
6
The trial court was not required to accept, and did not accept, respondent’s
characterization of the parties’ relationship. Respondent never conceded that the parties
did not have a “dating relationship” within the meaning of section 6210. Whether a
dating relationship existed was a factual question to be decided by the trial court based
upon all of the evidence. The trial court stated: “[A]lthough in one portion [of the email
respondent] says . . . something about, ‘We don’t have a dating relationship,’ you do have
a relationship by this evidence. All of the evidence shows there was an expectation of
affection or desire to have affection . . . . So although you guys may have called it ‘We
are not dating’ or ‘We don’t want to date,’ you certainly have all the attributes, it looks
like, [of a dating relationship] under [section] 6210 of the Family Code.” When appellant
protested that he had never actually gone on a date with respondent, the court replied:
“What I have seen in these papers is that you guys had lots of communication, that you
actually stayed at her residence . . . . So that’s where I’m seeing there was something
more to this than to say, ‘We never went on a date.’”
The trial court drew reasonable inferences from the evidence in concluding
that there was a dating relationship. “[A] finding based upon a reasonable inference
. . . will not be set aside by an appellate court unless it appears that the inference was
wholly irreconcilable with the evidence. [Citations.]” (Fibreboard, supra, 227
Cal.App.2d at p. 697.) “[W]hen the evidence gives rise to conflicting reasonable
inferences, one of which supports the finding of the trial court, the trial court’s finding is
conclusive on appeal. [Citation.]” (Rubin v. Los Angeles Fed. Sav. & Loan Assn. (1984)
159 Cal. App. 3d 292, 298.) Appellant has not demonstrated, as a matter of law, that the
trial court erred in exercising its traditional power to draw reasonable inferences from the
evidence.
Claim of Nonviolent Conduct
In his opening brief appellant states: “A record involving an indication of
‘Domestic Violence’ is a serious charge and has irreparable repercussions to a person’s
reputation. It is alarming that the [trial] court would rule against a male Appellant in this
way when there was never any ‘domestic’ and never an occurrence of any ‘violence’ by
7
Appellant. Domestic violence by definition is violent or aggressive behavior within the
home, typically involving the violent abuse of a spouse or partner. . . . [¶] The DVPA
was created to protect people . . . who have legitimate fears of physical harm from a
domestic partner.”
At oral argument before this court, appellant complained that he is subject
to a domestic violence restraining order even though his conduct was nonviolent.
Appellant stated, “I can’t get a job with a domestic violence restraining order on my
record. If they do a background check, it shows up and everybody thinks I’m a violent
monster . . . . This isn’t domestic violence. It should be a harassment civil suit . . . .”
Except for an incident in Wisconsin, the record contains no evidence of
appellant’s use or threatened use of physical force against respondent. The incident
occurred in June 2013, when appellant was subject to the Tennessee protective order.
Respondent declared that appellant had “approached [her], grabbed [her] arm, and turned
[her] around to talk to him.” Respondent claimed that she has “a documented police
report for this incident in Wisconsin.”
Whether or not respondent is reasonably fearful that appellant will
physically harm her, there is no DVPA requirement of a physical threat. Thus, there is no
basis for appellant’s claim at oral argument, “This isn’t domestic violence.” Nor is there
any basis for the claim in his opening brief, “The DVPA was created to protect people . . .
who have legitimate fears of physical harm from a domestic partner.” “Violence,” as that
word is commonly defined, is not a prerequisite for obtaining a restraining order under
the DVPA. The dictionary definition of “violence” is “the exertion of any physical force
so as to injure or abuse.” (Webster’s 3d New Internat. Dict. (1981) p. 2554.) The
DVPA, however, defines “domestic violence” as “abuse.” (§ 6211.) “Abuse is not
limited to the actual infliction of physical injury or assault.” (§ 6203, subd. (b).) For
purposes of the DVPA, “abuse” means, inter alia, “[t]o engage in any behavior that has
been or could be enjoined pursuant to Section 6320.” (§ 6203, subd. (a)(4).) Section
6320, subdivision (a) permits the court to enjoin a party from “harassing . . . or disturbing
the peace of the other party . . . .”
8
“‘[T]he plain meaning of the phrase “disturbing the peace of the other
party” in section 6320 may be properly understood as conduct that destroys the mental or
emotional calm of the other party. . . . Therefore, the plain meaning of the phrase
“disturbing the peace” in section 6320 may include, as abuse within the meaning of the
DVPA, a former husband’s alleged conduct in destroying the mental or emotional calm
of his former wife . . . .’ [Citation.]” (Burquet v. Brumbaugh (2014) 223 Cal. App. 4th
1140, 1146.) “There was substantial evidence presented at trial to support the trial
court’s finding that [appellant] disturbed the peace of [respondent], an act of ‘abuse’
under the DVPA.” (Id., at p. 1147.)
First Amendment
The trial court ordered appellant to “not post photographs, videos, or
information about [respondent] to any internet site” and to “remove the same from any
internet site over which he has access or control.” Appellant argues that the order
violated his “First Amendment rights of freedom of speech and expression.” He
explains: “Appellant’s pictures and postings are innocuous toward [respondent] . . . .
None of appellant’s postings or photos are derogatory, threatening, . . . or violate any
other item covered under the First Amendment.”
Appellant “did not raise [this] constitutional issue[] below and do[es] not
explain why [it is] being raised for the first time on appeal. [¶] Points not raised in the
trial court will not be considered on appeal. [Citation.] ‘Even a constitutional right must
be raised at the trial level to preserve the issue on appeal [citation].’ [Citation.] In civil
cases, constitutional questions not raised in the trial court are considered waived.
[Citation.]” (Hepner v. Franchise Tax Board (1997) 52 Cal. App. 4th 1475, 1486.)
Moreover, appellant forfeited the issue because he has failed to present
meaningful legal and factual analysis, with supporting citations to pertinent authority and
the record, on why his first amendment rights were violated. “Under well-established
principles of appellate review, ‘[t]o demonstrate error, appellant must present meaningful
legal analysis supported by citations to authority and citations to facts in the record that
support the claim of error. [Citations.] . . .’ [Appellant’s] conclusory assertion[] [that his
9
First Amendment rights were violated] fail[s] to properly tender the issue for appellate
review.” (Saltonstall v. City of Sacramento (2015) 234 Cal. App. 4th 549, 587-588.)
If the issue were properly before us, we would “reject [appellant’s First
Amendment] argument because [his] ability to continue to engage in activity that has
been determined after a hearing to constitute abuse [under the DVPA] is not the type of
‘speech’ afforded constitutional protection.” (In re Marriage of Evilsizor & Sweeney
(2015) 237 Cal. App. 4th 1416, 1429.)
Disposition
The judgment (DVPA restraining order) is affirmed. Respondent is
awarded costs on appeal.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
10
Gayle Peron, Commissioner
Superior Court County of San Luis Obispo
______________________________
James Eugene Campbell, Jr., Propria Persona, for Defendant and Appellant.
Lvovich & Szucsko, Terry A. Szucsko, Hannah R. Salassi, for Plaintiff and
Respondent.