Smith v. Scheu CA2/4 ( 2021 )

Filed 7/6/21 Smith v. Scheu CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
NICOLETA SMITH, B301189
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No.
19PDRO01189)
v.
DEAN JILL SCHEU
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, William D. Dodson, Commissioner. Affirmed.
Dean Scheu, in Pro. Per., for Defendant and Appellant.
Law Offices of Charles O. Agege for Plaintiff and
Respondent.
INTRODUCTION
Nicoleta C. Smith filed a request for a civil harassment
restraining order under Code of Civil Procedure section 527.6,1
alleging that her next-door neighbor, Dean Gill Scheu,2 engaged
in a pattern of conduct that constituted harassment of Smith and
her family members. Smith alleged that Scheu and his wife
accused Smith’s dog of killing Scheu’s dog; constructed a shrine to
the dead dog that accused Smith of being a dog killer; mocked
and filmed Smith and her teenage daughter after the Smiths’ dog
was let out of their yard (possibly by the Scheus); made a
threatening move toward Smith’s daughter with a truck, as if to
run her over; called child protective services to falsely report drug
use in the Smith home; and called animal control on the Smiths
multiple times. The court issued a three-year civil harassment
restraining order, and Scheu appealed.
We affirm. Substantial evidence supports the court’s
finding that Scheu’s course of conduct constituted harassment.
FACTUAL AND PROCEDURAL BACKGROUND
On September 3, 2019, Smith filed a request for a civil
harassment restraining order against Scheu, requesting
protection for herself; her 13-year-old daughter, Tia S.; her adult
son, Christopher S.; and her son’s girlfriend, Stella W. Smith
noted that she and Scheu had been next-door neighbors for 10
years. In the section on the form asking why protection was
needed, Smith wrote, “Neighbor has been harassing my family
1All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
2 In some places in the record, appellant’s name is spelled
Dean Jill Scheu.
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over smoking in our back yard, over his dog attacking our dog
and now he tried to run my daughter over and our dog over with
his truck!” Smith stated that the latter incident occurred on
August 22, 2019, and no one was injured because Tia was able to
move out of the way of the truck.
In additional descriptions of the harassment, Smith stated,
“(1) He has been calling the police regarding smoking in our back
yard [¶] (2) He has been calling the police regarding cameras
installed on my own house! [¶] (3) He tried to run my daughter
over on 8/22/19 [¶] His wife erected a shrine with my address on
it because her dog died after her dog attacked my dog. Her dog
was loose in violation of Burbank Municipal Code 5-1-1001A.
The shrine was moved from front yard to side of the house for me
to see!” Smith noted that there had been “[c]onstant harassment
since 06/27/2019 over one issue or another.” She asked that the
civil harassment restraining order include an instruction that
Scheu stay away from Smith’s dogs and vehicles. The court
issued a temporary restraining order on September 3, 2019, and
set a hearing for September 24, 2019.
At the hearing on September 24, 2019, Smith testified that
on August 22, she arrived home to find that the gate to her yard
had been opened and Tia’s dog was loose. Smith noted that the
iron gate could only be opened by a person. Smith went inside to
ask Tia and Stella to help her find the dog. She testified that as
they “went outside in the front yard, Mr. Scheu and his wife were
there taking pictures, laughing at us, mocking us, saying ‘A ha,
ha, ha, your dog is on the loose.’”3 Tia also testified that Scheu
and his wife were laughing about the dog being loose. Tia
3Scheu’s wife’s name is not in the record on appeal.
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testified that she approached Scheu and his wife to see if they
had seen her dog.
Smith testified that she saw Tia approach Scheu and his
wife to ask about the dog, and “he and his wife get into his truck,
and my daughter [Tia] was asking questions, and his wife was
flipping my daughter off. [¶] And he proceeded to start his car
and stop abruptly while my daughter was in front of his truck.
And that was very scary to me.” The court asked questions, and
Smith clarified that Tia was on the sidewalk, the truck was
facing the street, and the truck stopped about five feet away from
Tia. Smith said that Tia moved out of the way, and Scheu and
his wife left.
Tia testified that Scheu and his wife got into the truck,
“[a]nd then he like jerked his car forward at me, which really
scared me. And then I heard my brother’s girlfriend pointing
across the street to where my dog was. So I ran over to my dog.
And then he like got out of the driveway really quick, and he
tried – I mean, I don’t know if he was trying to hit my dog, but it
seemed like he was really close to almost hitting my dog, which
scared me over even [sic] more. And, of course, I was already
crying and shaking and super scared at that point.” In response
to questioning from the court, Tia clarified that the dog was in
the street, returning to the house, when Scheu’s truck came close
to it.
Smith also testified that Scheu’s “family has been
harassing my family” by contacting animal control to complain
about their dogs, having police come to the home, and telling the
Los Angeles County Department of Children and Family Services
(DCFS) that there were drugs in the home. Smith showed the
court a document from DCFS stating that as of September 12,
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2019 “your referral has been closed” because “the allegation of
child abuse and/or neglect” was deemed unfounded. Smith
further testified that she found Scheu’s trash in her trash cans,
including his mail that was visible through the trash bag, which
violated a Burbank ordinance.
Smith said that at the “end of June,” Scheu’s dogs were
loose and “[t]he dogs came and attacked on my property. My dog
turned around. One dog bit. The other dog bit. His wife claims
that their dog passed away four days later.” After that, Scheu
and his wife “erected a shrine in front of their house” that said,
“Next-door neighbor killer dog,” and had Smith’s address on it.
Smith testified that after a hearing for a restraining order
against Scheu’s wife, which was denied, Scheu and/or his wife
moved the shrine “[s]o when I go outside my house on the
balcony, it’s there every day for me to see their dead dog.” Smith
submitted a copy of an email chain showing that she agreed to a
mediation through the Burbank Animal Shelter, but Scheu
refused to meet.
Scheu also testified at the hearing. He stated that he had
lived in his home in Burbank for 30 years, but he had a second
residence in New York. He said that on July 21 or 22, a Burbank
police officer called him while he was in New York and told him
that the neighbor was accusing Scheu’s wife of putting nails in
her car’s tires. Scheu said the nails could not have been caused
by him or his wife, because they were in New York at the time.
Scheu also said that Smith’s dog “killed my service dog, and I
sent a demand letter on July 25th.” The July 25, 2019 letter,
which Scheu submitted as evidence, stated that Smith’s two dogs
“maliciously & intentionally attacked our small dog Karma on my
property,” and she later died from infections from the wounds.
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The letter demanded $2,476.06 in medical bills, and $7,000 for
“Jack Russell Terrier replacement & service dog training.” Scheu
stated that he “never heard anything back from the demand
letter,” so “we hit her with a small claims suit.”
Scheu asserted that despite Smith’s claim that he was
“basically trying to murder” Tia, the Burbank Police
Department’s record from August 22, 2019 showed only a
complaint that the neighbors purposely let the dog out of the
yard. He submitted a printout displaying the heading, “Detailed
History for Police Event #BP19234021,” which notes an “entry”
stating, “RP WAS DENIED RESTR ORDER AGAINST
NEIGHBOR TODAY AND BELIEVES SHE PURPOSELY
OPENED HER GATE TO LET HER DOG OUT.” Scheu argued
that if someone tried to run over his daughter, “I would be down
at the police department raising holy heck.”
Scheu also stated that on September 1, ten days after the
incident with the dog being let out, there was a car parked in
front of Smith’s residence with a placard reading “Legal Angels.”
Scheu submitted photographs of the car. He asserted that an
internet search showed that Legal Angels “is a monitoring service
for children,” and “[t]hey know legal laws in [sic] minors.” Scheu
stated that the dog incident occurred on August 22, Smith “meets
with Legal Angels” on September 1, then Smith filed the request
for a restraining order on September 3 “after meeting with this
woman.”
Scheu testified that Smith’s complaints were “all
fabricated,” and the incident with the truck “did not happen,
plain and simple.” He further stated, “I don’t know where they’re
– they’re trying to fabricate something for the court case that’s
coming up in October, on 8:30 [sic]. They were unsuccessful on
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getting a T.R.O. on my wife. [¶] Now, they’re fabricating – or
what I feel is that they’re trying to commit a conspiracy to really
– for where we’re at today.”
The court asked Smith if she had a response, and Smith
testified that they had lived next to each other peacefully for ten
years before Scheu married his current wife. Trouble began
because Scheu’s wife kept letting her dogs out off-leash. Smith
also stated that when she attempted to get a restraining order
against the wife, the court admonished the wife that no further
incidents should occur. Regarding the nails in the car tires,
Smith stated that three of her family members’ cars suddenly
had nails in the tires, and there was no construction in the area
that could explain it. Tia explained that Legal Angels was a
court-ordered monitoring service that assisted with visitation
with her father.
The court took a brief recess to review the evidence
submitted by the parties. The court then granted Smith’s request
for a restraining order, including protection for Smith, Tia,
Christopher, Stella, and an order not to bother or harass the
Smiths’ dogs. The three-year restraining order barred Scheu
from contacting, harassing, or intimidating the protected persons,
and to stay away from the protected persons except while home
“or going to and from your home.” The court stated, “So the
request is to simply be peaceable. Be civil.”
Scheu filed a notice of appeal the same day.
DISCUSSION
Scheu, appearing in propria persona, asserts three
arguments as to why the restraining order should be reversed:
“lack of clear and convincing evidence,” “documentary evidence
suppressed by court,” and “abuse of process.” Smith asserts that
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it is “crystal clear that the trial court did not abuse its
discretion,” and the court’s finding was supported by substantial
evidence. We find no error.
We review a trial court’s decision to issue a restraining
order for substantial evidence. (Harris v. Stampolis (2016) 248
Cal.App.4th 484, 497.) “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.” (R.D. v. P.M. (2011) 202 Cal.App.4th
181, 188.) “[W]hether the facts, when construed most favorably
in [the petitioner’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.” (Ibid.)
Civil harassment restraining orders are governed by
section 527.6, which states in part, “A person who has suffered
harassment as defined in subdivision (b) may seek a temporary
restraining order and an order after hearing prohibiting
harassment as provided in this section.” (§ 527.6, subd. (a)(1).)
As defined in the statute, “harassment” includes “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 that which
would cause a reasonable person to suffer substantial emotional
distress, and must actually cause substantial emotional distress
to the petitioner.” (Id., subd. (b)(3).) A “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.” (Id.,
subd. (b)(1).) If, after a hearing, “the judge finds by clear and
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convincing evidence that unlawful harassment exists, an order
shall issue prohibiting the harassment.” (Id., subd. (i).)
Scheu asserts there was a lack of clear and convincing
evidence to support the restraining order because “during the cool
off period (September 3 – 24, 2019) of the TRO [Scheu] showed no
involvement of any physical harassment.” He also asserts that
he “never engaged in unlawful violence or harassment that is in
the record after September 3, 2019.”
Scheu’s briefing does not articulate the basis for his
contention that the court’s consideration should have been
limited to events after September 3, 2019—the date the court
issued the temporary restraining order. We have found no
authority supporting this assertion. To the contrary, section
527.6 provides that a restraining order is appropriate when the
respondent engages in a “course of conduct” over an undefined
“period of time, however short” it may be. (§ 527.6, subd. (b)(1).)
Nothing in the statute limits that period to the time post-dating
the filing of a request for a restraining order, or only while a
temporary restraining order is in place.
Moreover, the Court of Appeal rejected a similar argument
in R.D. v. P.M., supra, 202 Cal.App.4th 181. In that case, a
therapist who was being stalked by a former patient obtained a
one-year civil harassment restraining order under section 527.6.
After the restraining order’s term expired, the harassment
resumed. (Id. at p. 183.) The trial court entered a three-year
restraining order, and the former patient appealed. She argued
in part that her actions following the expiration of the first
restraining order, standing alone, did not constitute harassment.
The court rejected this contention, stating, “[I]n evaluating the
likelihood that the harassment will continue the court was not
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limited to events that occurred after the first restraining order
was entered. The lapse of the first harassment restraining order
did not erase the facts on which the order was based, and did not
preclude the court from considering the existence of those facts in
evaluating the need for a new order. Nor was the court restricted
as to the nature of the evidence from which it could draw an
inference of a likelihood that the harassment would resume; the
court could consider any evidence showing a likelihood of future
harassment . . . .” (Id., at p. 189.) Here, similarly, the court was
not limited to considering only the time period during which the
temporary restraining order was in place when assessing the
need for a restraining order addressing future conduct.
Scheu also argues that his actions “never rose to the
conduct of harassing” Smith, and therefore “[t]here is a lack of
convincing evidence to support the order after hearing.” We
disagree. Smith and Tia both testified that Scheu and his wife
mocked them when they discovered their dog had been let out of
their yard. Smith and Tia also testified that Scheu moved toward
Tia in his truck in a manner that frightened them. Smith further
testified that Scheu and his wife harassed her and her family
members by calling them dog killers, erecting a shrine accusing
them of killing a dog, contacting DCFS to falsely report drugs in
the Smith home, and calling animal control multiple times.
Notably, Scheu himself testified that he and his wife monitored,
photographed, and conducted internet research on what he
perceived to be a visitor to the Smith home, convinced that Smith
and the visitor were engaged in some sort of conspiracy against
him. The evidence amply supports the court’s finding that Scheu
harassed Smith as defined in section 527.6.
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In his reply brief, Scheu contends that Smith’s evidence
was not credible. He argues that although Smith and Tia
initially said Scheu was in a truck when he drove toward Tia, Tia
later “changed her testimony to a car. [Record citation.] There is
a big difference between a truck and a car.” He also asserts, “The
truck/car incident never happened per the Burbank Police”
summary printout he submitted as evidence, which states only
that Smith complained about the dog being let out of the yard.
He asserts that his “police evidence proves that [Scheu] never
tried to run down [Smith’s] daughter.” He also argues that the
DCFS letter to Smith finding the allegations unfounded cannot
be linked to him, because “the first observation to be noticed is
that the Appellant’s name ‘Dean Scheu’ is not mentioned
anywhere on the document.”
Scheu’s attacks on Smith’s and Tia’s credibility do not
demonstrate error. In assessing whether substantial evidence
supports a trial court’s order under section 527.6, “[w]e resolve all
factual conflicts and questions of credibility in favor of the
prevailing party.” (Schild v. Rubin (1991) 232 Cal.App.3d 755,
762.) Scheu’s disagreement with the evidence Smith presented
does not suggest that the evidence was insufficient to support the
court’s ruling.
Scheu next asserts that the “documentary evidence [was]
suppressed by the court.” He argues that the printout from the
Burbank Police Department does not mention anything about his
truck, so it “proves that [Scheu] never tried to run over [Smith’s]
daughter or dog in [Smith’s] own words.” However, he contends
that “the Court refused to enter the Documentary Evidence into
the record. In the Minute Order dated September 24, 2019 there
is no mention of the Burbank Police Event Report.” He argues,
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“Documentary Evidence should have been allowed under the
Summary of the Rules Evidence. (Evid. Code § 1400; Fed. Rules.
Evid. 901).” (Sic.)
Scheu’s claim of suppression of evidence is not supported by
the record. Although the court did not assign an exhibit number
or letter to the police department printout, the reporter’s
transcript makes clear that the court received and considered the
document:
“A: [by Scheu]: That’s it. And this is the police report.
Q: [by the court]: Is that the same –
A: Well, they call it an ‘incident report,’ police event
number P.D. 192340201.
Q: The same document I have?
A: Yes, sir.”
Before ruling, the court took a recess to “go read the
exhibits.” Nothing in the record suggests that the court did not
accept or read the police department printout.
Finally, Scheu contends that on August 22, 2019 he filed a
small claims action against Smith. He asserts, “Abuse of Process
by [Smith] was committed because [Scheu] filed a small claims
lawsuit on [Smith] before the TRO was filed by [Smith]. [Smith]
brought forth the TRO on [Scheu] looking to gain an advantage in
the upcoming small claims action.” Scheu cites authorities
discussing causes of action for malicious prosecution, including
CACI No. 1501 (“Wrongful use of civil proceedings”) and Babb v.
Superior Court (1971) 3 Cal.3d 841, 845 (“It is hornbook law that
the plaintiff in a malicious prosecution action must plead and
prove that the prior judicial proceeding of which he complains
terminated in his favor”).
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Scheu’s contention does not demonstrate error. There was
no dispute that the small claims case was pending at the time
Smith requested a restraining order; Smith noted the case in her
request for a restraining order. No evidence submitted by either
party suggests that Smith intended the restraining order to affect
the small claims case, or that it actually affected the small claims
case. Moreover, as discussed above, there was ample evidence to
support the court’s finding that Scheu’s course of conduct
constituted harassment, and that a restraining order was
warranted. We therefore reject Scheu’s contention that there was
an abuse of process here.
DISPOSITION
The civil harassment restraining order is affirmed. Smith
is entitled to costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
CURREY, J.
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