Wash v. Banda-Wash CA5 ( 2020 )

Filed 11/19/20 Wash v. Banda-Wash CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
JOHN WASH,
F075724
Plaintiff and Appellant,
(Super. Ct. No. 17CECG00648)
v.
MARIA S. BANDA-WASH, OPINION
Defendant and Respondent.
THE COURT*
APPEAL from an order of the Superior Court of Fresno County. James Petrucelli,
Judge.
John Wash, in pro. per., for Plaintiff and Appellant.
Law Office of Daniel L. Harralson and Daniel L. Harralson for Defendant and
Respondent.
-ooOoo-
Plaintiff John Wash (John) appeals from an order denying his request for a civil
harassment restraining order against defendant Maria S. Banda-Wash (Maria) under Code
* Before Franson, Acting P.J., Smith, J. and DeSantos, J.
of Civil Procedure section 527.6.1 At the beginning of the hearing, the trial court stated it
had read John’s papers and believed they were true. Near the end of the hearing, after
taking testimony from the parties, the court stated, “I don’t see that you proved any
reason for me to grant a restraining order.”
We interpret the settled statement of the hearing on the restraining order to mean
the trial court changed its view of the factual assertions in John’s declaration by the end
of the hearing and no longer considered those assertions to be completely accurate.
Consequently, for many issues, the trial court’s failure of proof determination is reviewed
under the finding-compelled-as-a-matter-of-law standard rather than the substantial
evidence standard.
As explained below, the evidence presented did not, as a matter of law, compel the
trial court to find John had established all of the elements necessary to obtain a
restraining order under section 527.6.
We therefore affirm the order denying the request for a restraining order.
FACTS AND PROCEEDINGS
The Parties
John and Thomas Wash are the sons of Robert Wash, who died in September
2005. The sons inherited approximately 100 acres of agricultural land located at 3535
and 3473 South Temperance Avenue, Fresno, which is described as the family farm and
the childhood home of John and Thomas.
Thomas Wash was married to Maria and they had two sons. After Thomas died in
November 2011, Maria became a co-owner of the 100 acres with John. John and Maria
live and work on the property. John’s residence is located on the north side of the
driveway that serves both residences. Besides the residences, the property contains
1 All further statutory references are to the Code of Civil Procedure. All references
to section 527.6 are to the version of the statute in effect at the time plaintiff’s application
for a harassment injunction was adjudicated.
2.
approximately 77 acres of citrus orchards and a few acres used for a palm nursery
business operated by Maria.
Other Litigation
Since 2009, John and Maria have been engaged in litigation relating to the
property, an additional 40 acres of agricultural land, and their behavior towards one
another. The litigation includes at least 11 lawsuits, one of which was filed by Thomas
and Maria prior to Thomas’s death. Those lawsuits were brought in Fresno County
Superior Court and assigned case Nos. 09CECG00933, 12CEFL06629, 13CECG00057,
13CECG00774, 13CECG03732, 13CECG03846, 14CECG01236, 15CECG00967,
15CECG01407, 16CECG01668 and 17CECG00648. The five bolded case Nos. have
generated 12 appeals and eight writ petitions in this court.2
Case Nos. 13CECG03846, 16CECG01668 and 17CECG00648 are among those
initiated to obtain a restraining order. These three cases have generated seven matters
before this court, including the present appeal from the denial of John’s 2017 request for
a civil harassment restraining order. So far, the appeals involving restraining order
requests have produced three opinions. (See Maria Banda v. John Wash (Feb. 3, 2016,
F069417) [nonpub. opn. affirming restraining order enjoining John from harassing Maria
and her sons]; John Wash v. Maria S. Banda-Wash (Oct. 10, 2018, F074606) [nonpub.
opn. affirming order denying John’s petition under § 527.8 for restraining order to protect
his employees]; Maria Banda v. John Wash (Feb. 19, 2020, F076666) [nonpub. opn.
vacating order renewing Maria’s restraining order and directing entry of nunc pro tunc
order continuing hearing of renewal request until December 13, 2017].)
2 For example, case No. 09CECG00933 has generated one writ petition and four
appeals. John’s writ petition was denied (case No. F070440), he voluntarily dismissed
one appeal (case No. F070262), and another appeal was resolved by an unpublished
opinion (Maria Wash v. John Wash (Sept. 12, 2017, F071135) [affirming judgment
entered pursuant to settlement agreement]). John’s appeals from an order awarding
attorney fees (case No. F077486) and a partition order (case No. F080399) are pending.
3.
The December 13, 2017, hearing resulted in an order renewing Maria’s restraining
order against John. He appealed, the matter was assigned case No. F076986, and oral
argument in case No. F076986 was heard by this court immediately after oral argument
in the present appeal.
Pleadings
On March 1, 2017, John filed a request for civil harassment restraining order
against Maria on mandatory Judicial Council form CH-100.3 The request sought
personal conduct orders and stay-away orders to protect John, his wife and his sister-in-
law, Peggy Reimer.
On March 2, 2017, the superior court issued a temporary restraining order
protecting John and members of his household. The temporary restraining order
scheduled a hearing for March 20, 2017.
On March 20, 2017, at 3:17 p.m., Maria electronically filed a Judicial Council
form CH-120, “Response to Request for Civil Harassment Restraining Orders.”
(Boldface omitted.) The corresponding Judicial Council form CH-250, “Proof of Service
of Response by Mail,” (boldface omitted) states Maria’s response was placed in the mail
on March 20, 2017. Maria’s response stated she did not agree to the orders requested and
she did not do anything described in item 7 of John’s form CH-100. Item 10 of form CH-
120 was left blank—that is, Maria did not acknowledge she did some of the things John
accused her of or set forth a justification or excuse for such behavior.
Maria’s response was accompanied by a declaration from her son Martin Wash.
Martin’s declaration described instances in February and March 2017 when he observed,
3 Maria’s request to renew the restraining order against John was filed in February
2017.
4.
and sometimes photographed, John working in the orchard using a tractor. Martin’s
declaration was intended to counter John’s assertions about a painful back injury.4
Hearing
On March 21, 2017, the trial court heard John’s request for a restraining order.
John represented himself at the hearing. Maria attended and was represented by an
attorney.
The hearing was not reported by a court reporter and was not recorded on tape.
Consequently, John elected to use a settled statement as the record of the oral
proceedings in the superior court. (Cal. Rules of Court, rule 8.137(b).) That process was
completed in January 2018 when the trial court entered an order certifying a revised
settled statement “as a complete accounting of the statements presented at the March 21,
2017 hearing” and acknowledged the settled statement was to be used in lieu of a
reporter’s transcript in this appeal. The settled statement provides that on appeal John
intends to use the certified version as “a complete narrative of all testimony.”
After hearing from the parties, the trial court denied John’s request for a civil
harassment restraining order with prejudice, dissolved the temporary restraining order,
and reserved Maria’s request for attorney fees. The court stated: “I don’t see that you
proved any reason for me to grant a restraining order.”
Appeal
John timely appealed from the March 21, 2017, order denying his request for a
civil harassment restraining order. His notice of appeal asserted the order was appealable
pursuant to section 904.1, subdivision (a)(6), which authorizes civil appeals from “an
order … refusing to grant … an injunction.”
4 A document filed in case No. F076666 states that John subsequently had back
surgery in July 2017.
5.
DISCUSSION
I. OVERVIEW OF CIVIL HARASSMENT INJUNCTIONS
Section 527.6, subdivision (a)(1) provides that a victim of “harassment … may
seek a temporary restraining order and an order after hearing prohibiting harassment.”
“Section 527.6 is a specialized statute providing an expedited procedure for issuance of
limited-scope and limited-duration injunctions in instances of ‘harassment.’ ” (Byers v.
Cathcart (1997) 57 Cal.App.4th 805, 807 (Byers).) The statute defines “[h]arassment” as
follows:
“[U]nlawful 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 that which would cause a reasonable person to
suffer substantial emotional distress, and must actually cause substantial
emotional distress to the petitioner.” (§ 527.6, subd. (b)(3).)
The three types of behavior listed in the definition of harassment also have
statutory definitions. First, “[u]nlawful violence” refers to “any assault or battery, or
stalking as prohibited in Section 646.9 of the Penal Code, but does not include lawful acts
of self-defense or defense of others.” (§ 527.6, subd. (b)(7).) Second, a “threat of
violence” may be communicated in a statement or by a course of conduct and is
“[c]redible” if it “would place a reasonable person in fear for his or her safety or the
safety of his or her immediate family” and if it serves no legitimate purpose. (§ 527.6,
subd. (b)(2).) Third, “[c]ourse of conduct” means “a pattern of conduct composed of a
series of acts over a period of time, however short, evidencing a continuity of purpose.”
(§ 527.6, subd. (b)(1).) The definition also provides a nonexclusive list of examples of a
course of conduct, “including following or stalking an individual, making harassing
telephone calls to an individual, or sending harassing correspondence to an individual by
any means.” (Ibid.)
6.
A party may seek a temporary order, an order after hearing (which may remain in
effect for up to five years), or both. (§ 527.6, subds. (d), (g), (j)(1).)5 To promote the
flow of litigation for the parties and the courts and to assist law enforcement officers who
may be called upon to address an alleged violation of the order, the Legislature directed
the Judicial Council to “develop forms, instructions, and rules relating to matters
governed by this section. The petition and response forms shall be simple and concise,
and their use by the parties in actions brought pursuant to this section is mandatory.”
(§ 527.6, subd. (x)(1).) Consequently, a party seeking an order under section 527.6 must
use Judicial Council form CH-100, “Request for Civil Harassment Restraining Orders.”
(Boldface omitted.) (See Cal. Rules of Court, rule 1.31(a) [use of mandatory forms].)
The party responding to the petition “may file a response that explains, excuses,
justifies, or denies the alleged harassment or may file a cross-petition under this section.”
(§ 527.6, subd. (h).) The responding party must use mandatory Judicial Council form
CH-120, “Response to Request for Civil Harassment Restraining Orders.” (Boldface
omitted.)
A responding party is “entitled, as a matter of course, to one continuance, for a
reasonable period, to respond to the petition.” (§ 527.6, subd. (o).) Either party may
request and obtain a continuance of the hearing upon a showing of good cause. (§ 527.6,
subd. (p)(1).) The statute establishes deadlines for holding a hearing on the petition,
which are affected by whether a temporary restraining order was granted. (§ 527.6,
subds. (f), (g).)
“At the hearing, the judge shall receive any testimony that is relevant, and may
make an independent inquiry. If the judge finds by clear and convincing evidence that
5 A temporary restraining order must be issued using Judicial Council form CH-110,
“Temporary Restraining Order.” (Boldface omitted.) A court must use Judicial Council
form CH-130, “Civil Harassment Restraining Order After Hearing” (boldface omitted) to
set forth the terms of the longer lasting order.
7.
unlawful harassment exists, an order shall issue prohibiting the harassment.” (§ 527.6,
subd. (i), italics added.) An injunction prohibiting “future conduct is only authorized
when it appears that harassment is likely to recur in the future.” (Harris v. Stampolis
(2016) 248 Cal.App.4th 484, 496 (Harris).)
II. DISPUTES ABOUT THE EVIDENCE AND FINDINGS
A. Standard of Review
The arguments raised by the parties refer to three different standards of appellate
review—substantial evidence, de novo, and the finding-compelled-as-a-matter-of-law
standard. Generally, when an appellate court reviews a superior court’s decision on a
request for civil harassment restraining order, it determines whether the express and
implied findings of fact are supported by substantial evidence in the record. (Harris,
supra, 248 Cal.App.4th at p. 497.)
In comparison, questions of law, such as issues of statutory construction, are
subject to de novo (i.e., independent) review by appellate courts. (Herriott v. Herriott
(2019) 33 Cal.App.5th 212, 224.) Also, “ ‘whether the facts, when construed most
favorably in [the prevailing party’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.’ ” (Harris, supra, 248
Cal.App.4th at p. 497; see R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188.)
A third standard of review may apply when a superior court denies the petition for
a civil harassment restraining order and frames its determination by stating the plaintiff
did not carry his or her burden of proof. Within the past 10 years, the Fifth District has
published three opinions addressing the standard of review applicable to a trial court’s
failure-of-proof determination.
“ ‘In the case where the trier of fact has expressly or implicitly concluded
that the party with the burden of proof did not carry the burden and that
party appeals, it is misleading to characterize the failure-of-proof issue as
8.
whether substantial evidence supports the judgment.... [¶] Thus, where the
issue on appeal turns on a failure of proof at trial, the question for a
reviewing court becomes whether the evidence compels a finding in favor
of the appellant as a matter of law. [Citations.] Specifically, the question
becomes whether the appellant’s evidence was (1) “uncontradicted and
unimpeached” and (2) “of such a character and weight as to leave no room
for a judicial determination that it was insufficient to support a finding.” ’ ”
(Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th
828, 838 (Dreyer’s); see Wells Fargo Bank, N.A. v. 6354 Figarden General
Partnership (2015) 238 Cal.App.4th 370, 390; Valero v. Board of
Retirement of Tulare County Employees’ Assn. (2012) 205 Cal.App.4th
960, 965.)
In this appeal, Maria contends the finding-compelled-as-a-matter-of-law standard
of review set forth in Dreyer’s applies and John’s evidence falls short of compelling a
finding in his favor. We note the parties are familiar with this standard because it was
discussed and applied in one of John’s earlier appeals. (See John Wash v. Maria S.
Banda-Wash (Oct. 10, 2018, F074606) [nonpub. opn. affirming order denying John’s
petition under § 527.8 for restraining order to protect his employees].) Below, we will
select the applicable standard of review after identifying the particular aspect of the trial
court’s ruling under review. (See Haraguchi v. Superior Court (2008) 43 Cal.4th 706,
711.)
B. Existence of Sworn Testimony
1. Parties’ Contentions
A fundamental dispute about the evidence presented at the hearing arises from
Maria’s assertion that “each party only gave ‘statements,’ not ‘testimony’ at the March
21, 2017 hearing.” Maria also asserts, “There is no record that the parties were sworn
under oath prior to providing their statements.” In particular, the settled statement and
the law and motion minute order from the hearing make no reference to the parties being
sworn.
John contends sworn testimony was presented. His interpretation of the settled
statement differs from Maria’s. John refers to the sentence stating he intended to use it
9.
“as a complete narrative of all testimony.” (Italics added.) The settled statement contains
a section labeled “Narrative Statement” and describes it as showing, among other things,
“the only testimony of defendant Maria.” (Italics added.) The narrative statement’s
second numbered paragraph provides: “Appearing as witnesses were plaintiff John Wash
on his own behalf, and defendant Maria S. Banda-Wash.” (Italics added.)
2. Construing the Settled Statement
Here, we consider the rules that govern our interpretation of the settled statement.
The parties have cited no case or other authority setting forth the rules for interpreting a
settled statement. In comparison, it is well established that when an appellate court must
determine the meaning of an order or judgment, it applies the same rules used in
ascertaining the meaning of any other writing. (Mendly v. County of Los Angeles (1994)
23 Cal.App.4th 1193, 1205; Verner v. Verner (1978) 77 Cal.App.3d 718, 724.) We
conclude these same rules usually apply to determining the meaning of the settled
statement. We qualify this statement with the term “usually,” because sometimes an
ambiguity or omission will be resolved by applying a specific principle of appellate
review. For instance, if a settled statement is vague because it does not state whether a
procedure required by law was followed or omitted, the question might be resolved by
applying the presumption that the trial court followed the law. (See Wilson v. Sunshine
Meat & Liquor Co. (1983) 34 Cal.3d 554, 563 [“it is presumed that the court followed the
law”].)
In addition, we conclude the interpretation of a settled statement, like the
interpretation of a judgment or order, presents a question of law and, thus, is subject to
our independent evaluation. (Mendly v. County of Los Angeles, supra, 23 Cal.App.4th at
p. 1205.) The process of interpretation includes the specific question of whether an
ambiguity exists. Accordingly, whether language in a settled statement is ambiguous also
presents a question of law. (See Winet v. Price (1992) 4 Cal.App.4th 1159, 1165
10.
[contractual ambiguity].) If a settled statement contains an ambiguity, we determine the
meaning of the ambiguous language after considering the settled statement as a whole
and examining the entire record to place the settled statement in context. (See Estate of
Careaga (1964) 61 Cal.2d 471, 475–476.)
3. Analysis of the Settled Statement
Our initial inquiry addresses whether the settled statement is ambiguous—that is,
reasonably susceptible to more than one interpretation—as to whether John and Maria
presented testimony at the hearing. We conclude the second numbered paragraph in the
“Narrative Statement” section of the settled statement is not ambiguous. It reads:
“Appearing as witnesses were plaintiff John Wash on his own behalf, and defendant
Maria S. Banda-Wash.” (Italics added.) The definition of “witness” includes: “1. One
who sees, knows, or vouches for something . 2. One
who gives testimony under oath or affirmation (1) in person, (2) by oral or written
deposition, or (3) by affidavit.” (Black’s Law Dict. (8th ed. 2004) p. 1633.) When the
use of the plural “witnesses” is considered in context—the purpose of the settled
statement is to describe what occurred at the hearing—it plainly means that John and
Maria both presented sworn testimony at the hearing.
This interpretation of the settled statement is consistent with the requirements of
subdivision (i) of section 527.6, which states: “At the hearing, the judge shall receive
any testimony that is relevant, and may make an independent inquiry.” The statements
made by John and Maria at the hearing were relevant to the existence of harassment and
its impact on John, if any. Thus, the trial court was compelled by the mandatory
language of the statute to receive the testimony. A failure to do so would have violated
the statute. (See Schraer v. Berkeley Property Owners’ Assn. (1989) 207 Cal.App.3d
719, 729 [trial court erred by refusing to hear live testimony in a proceeding for a civil
harassment injunction].)
11.
In summary, we agree with John’s argument that the parties presented testimony at
the hearing and reject Maria’s argument that they gave only statements, not testimony.
Consequently, we need not reverse and remand with directions for the trial court to
receive testimony from the parties. (See § 527.6, subd. (i) [“judge shall receive any
testimony that is relevant”].)
C. Findings of Historical Fact
1. Parties’ Contentions
A significant question in this appeal involves the parties’ dispute about the trial
court’s findings of historical fact—that is, who did what, where, when, how and why.6
Maria interprets the settled statement to mean that “the trial court found no credibility as
to the evidence presented by [John] in support of his [restraining order] request.”
In contrast, John relies on the trial court’s statement that “ ‘I read your papers. I
believe the[y’re] true.’ ” In addition, as a preamble to the statements of what occurred in
open court, the settled statement provides: “The arguments on appeal will include that
the Narrative Statement shows that 1) [the trial court] read [John’s] papers (petition and
declaration) and considered the allegations as true .…” Under John’s interpretation of the
settled statement, the trial court found all of the factual assertions in his declaration to be
a true and correct account of historical fact.
6 Findings of “historical” or “basic” facts address “questions of who did what, when
or where, how or why.” (U.S. Bank National Assn. ex rel. CWCapital Asset Management
LLC v. Village at Lakeridge, LLC (2018) ___ U.S. ___, 138 S.Ct. 960, 966.) Such
findings can be distinguished from determinations of “ultimate facts,” which are
conclusions reached by applying legal principles to the underlying facts. (See generally,
Dino, Inc. v. Boreta Enterprises, Inc. (1964) 226 Cal.App.2d 336, 340.) For example,
that an act was “negligently” done is regarded as an ultimate fact rather than a historical
fact. (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 155; see Paul v. Patton
(2015) 235 Cal.App.4th 1088, 1095 [“negligence is ordinarily a question of fact”].)
12.
2. Ambiguity
Here we consider whether the settled statement is ambiguous about the trial
court’s findings as to historical fact. The court did not set forth specific findings of fact.
Instead, the settled statement contains two general statements. Near the beginning of the
hearing, the court stated to John, “I read your papers. I believe the[y’re] true.” At the
end of the hearing, after hearing the parties’ testimony, the court stated, “I don’t see that
you proved any reason for me to grant a restraining order. I’m going to deny with
prejudice.”
One reasonable interpretation of the trial court’s statements is that it continued to
believe the description of events in John’s declaration were true but concluded those facts
were insufficient to establish the statutory grounds for issuing a restraining order.
Another reasonable interpretation is that the court changed its mind after hearing the
parties’ testimony and, as a result, no longer believed everything stated in John’s
declaration was true. Based on these two reasonable interpretations of the settled
statement, we conclude it is ambiguous.
3. Resolving the Ambiguity
Our next step is to resolve the ambiguity and determine what the trial court meant
when it stated John had not proven any reason for granting the restraining order. To
resolve this question, we adopt the interpretation that is the most probable. Based on our
reading of the entire settled statement and considering the procedural context in which
the court’s statements were made, we conclude the trial court changed its view of John’s
declaration after it heard and considered the testimony presented.
During his testimony, John stated: “I would like to put this picture as evidence of
her aggressiveness when she came at me and hit me with the wrench.” The trial court
looked at the picture and said, “That wrench is a tiny little wrench on a key chain.” John
responded, “It is still an assault.” This exchange demonstrates the court was not
impressed with the evidence of Maria’s violence towards John and supports the inference
13.
that her use of the wrench would not “seriously alarm[], annoy[], or harass[] the person”
against whom it was directed. (§ 527.6, subd. (b)(3), italics added.) In addition to seeing
the size of the wrench, the trial court also would have seen John, who is listed as six feet
tall and 280 pounds in the restraining order Maria obtained against him.
The foregoing is one example of testimony that could have changed the trial
court’s view of the assertions made in John’s request form and declaration. On balance,
we interpret the settled statement to mean the court had changed its view of the factual
assertions in John’s declaration by the end of the hearing and no longer considered those
assertions to be completely accurate.
4. Consequences
The consequences that flow from our interpretation of the settled statement have a
significant effect on the outcome of this appeal. Specifically, John cannot rely on the
allegations of historical fact set forth in his declaration to be taken as true for purposes of
this appeal. Instead, his version of the facts will be scrutinized to determine “ ‘whether
the evidence compels a finding in favor of the appellant as a matter of law.’ ” (Dreyer’s,
supra, 218 Cal.App.4th at p. 838.) A finding is compelled as a matter of law when the
appellant’s evidence was (1) uncontradicted and unimpeached and (2) of such a character
and weight as to leave no room for a judicial determination that it was insufficient to
support a finding. (Ibid.)
III. HARASSMENT
A. Photographs and Filming
John contends Maria’s use of cameras to photograph him, family members and an
employee constitutes harassment for purposes of section 527.6. Some of the cameras are
remote or wildlife cameras. Other cameras take video or photographs and are used by
Maria to record images of John, his sister-in-law or his worker.
14.
During the hearing, the trial court asked Maria if she had cameras on the property.
Her attorney answered, “Yes, I advised Maria to put cameras out.” The court asked, “Are
they wildlife cameras?” The attorney confirmed they were. The attorney stated that John
was feigning an injury and they had pictures showing him working on his tractor. This
reference to pictures of John working on a tractor appears to relate to photographs taken
by Maria’s son, Martin, on three separate days in February and March 2017. These
photographs are described in Martin’s declaration. The statements of Maria’s attorney
and the declaration of her son constitute judicial admissions of John’s factual allegations
that Maria, either directly or indirectly, was taking pictures of him. (See Barsegian v.
Kessler & Kessler (2013) 215 Cal.App.4th 446, 451–452 [judicial admissions and their
conclusive effect].)
The trial court responded to the attorney’s admissions about the cameras by stating
Maria could take pictures of John “as a right o[r] privilege.” Pursuant to the rules
governing appellate review, we conclude the trial court impliedly found Maria’s use of
cameras served a legitimate purpose. (§ 527.6, subd. (b)(3) [harassment is specified
conduct “that serves no legitimate purpose”].) This implied finding explains why the
court did not enjoin Maria’s admitted use of cameras to record images of John.
On the question of whether Maria was required to prove a legitimate purpose or
whether John was required to prove the absence of a legitimate purpose, we assume for
purposes of this appeal that the existence of a legitimate purpose was an element Maria
was required to prove. Accordingly, we review the implied finding of a legitimate
purpose under the substantial evidence standard rather than the finding-compelled-as-a-
matter-of-law standard. We conclude the record contains substantial evidence supporting
the implied finding of a legitimate purpose. First, Maria had a restraining order against
John and the videos and photographs were a way to document failures to comply with the
restraining order and to deter noncompliance. Second, Maria and John were involved in
ongoing litigation in Fresno County Superior Court case No. 15CECG00967 and the
15.
video and photographs may have been relevant to the issues raised in that case.
Accordingly, the trial court had a sufficient evidentiary basis for finding Maria’s use of
cameras served a “legitimate purpose” as that phrase is used in section 527.6, subdivision
(b)(3).
We recognize repeated picture taking can constitute a course of conduct that
seriously annoys the person at whom it is directed. For instance, the court in Bookout v.
Nielsen (2007) 155 Cal.App.4th 1131 listed the defendant’s use of cameras as part of the
evidence of behavior supporting the finding of harassment under the Elder Abuse Act
(Welf. and Inst. Code, § 15600 et seq.). (Bookout v. Nielsen, supra, at p. 1141.) The
court’s determination that harassment existed in that case does not create a principle of
law that taking pictures can never have a legitimate purpose. Thus, Bookout did not
preclude the trial court from finding Maria had a legitimate purpose for photographing
John and others on the property.
B. Fast Driving
John contends Maria’s reckless driving on the driveway constituted harassment.
His declaration described incidents that occurred on the 11th, 14th, 18th and 25th of
February 2017.
On February 11, 2017, while John was using the shared driveway, he asserts he
“saw Maria racing down the driveway at me, and at a high rate of speed.” John turned
north on Temperance Avenue and stopped at his mailbox. He alleges that Maria stopped
at the end of the driveway, used foul hand gestures while he retrieved his mail, and then
turned south on Temperance Avenue.
On February 14, 2017, John asserts that while he was on the driveway “Maria
came flying at me in her new truck at a high rate of speed and in a reckless manner.” He
asserts she again parked and watched him get his mail. John stated he became alarmed
that Maria might try to hit him with her truck or shoot him while he was stationary,
16.
getting his mail. During the hearing, the trial court asked Maria about what happened on
February 14, 2017. Maria stated, “I come down the driveway. He complains if I go slow
or fast. I don’t know what I suppose to do. I was driving fast because I was late to pick
up my son.” When asked if she stopped on the driveway, Maria answered, “Yes. I was
making a phone call so I stopped.”
On February 18, 2017, John asserts that while he was in his yard, Maria came
down the main driveway and stared at him, causing him to become emotionally distressed
and fearful for his safety. These allegations were not addressed at the hearing.
On February 25, 2017, John asserts that he was in his yard when Maria came
down the main driveway and parked her car near Temperance Avenue within clear view
of him. John asserts he believed this was stalking and harassment and it made him
fearful for his safety. When the trial court asked Maria about that day, Maria stated: “I
come down the driveway. I stopped because I was waiting for a customer.”
We conclude the foregoing evidence did not compel the trial court to find Maria’s
driving and stopping on the driveway constituted harassment. Maria admitted to driving
fast on the driveway once. She also admitted to stopping on the driveway twice, once to
make a phone call and once to wait for a customer. The trial court reasonably could find
one instance of driving fast on the driveway did not constitute a “course of conduct”
directed at John. (§ 527.6, subd. (b)(3) [definition of harassment].) “Course of conduct”
means “a pattern of conduct composed of a series of acts over a period of time, however
short, evidencing a continuity of purpose.” (§ 527.6, subd. (b)(1).) Similarly, the trial
court could reasonably find that stopping twice on the driveway was not a course of
conduct directed at John or that, in both instances, Maria had a legitimate purpose for
stopping. Consequently, we conclude the trial court was not compelled to find Maria’s
operation of her vehicle on the driveway constituted harassment.
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C. Assault or Battery by Maria
John contends Maria “made bodily contact by striking him twice (once with a
small wrench on her keychain, and striking him in the back).” On an unspecified date,
John testified that Maria “came at me and hit me with the wrench” and presented the trial
court with a picture of the wrench. Upon seeing the picture, the court described the
wrench as “ ‘a tiny little wrench on a key chain.’ ” John’s declaration described the other
incident by asserting that he was in his mandarin orchard on November 7, 2015, and
Maria approached him from behind, hit or karate chopped him in the back, and pushed
him.
As stated earlier, the trial court was not persuaded by the evidence of Maria’s
violence towards John. The court’s statement about what John had not proven supports
the inference that the court found someone hit with the wrench would not “seriously
alarm[], annoy[], or harass[] the person.” (§ 527.6, subd. (b)(3), italics added.) Based on
the evidence presented, we conclude the trial court was not compelled to find otherwise.
The evidence about Maria hitting John in the back also does not compel a finding,
as a matter of law, that Maria harassed John. John’s statements about being hit in the
back were not directly contradicted or impeached. Therefore, we consider whether his
evidence was “ ‘of such a character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.’ ” (In re I.W. (2009) 180
Cal.App.4th 1517, 1528.) Ordinarily, a trier of fact is free to disbelieve an
uncontradicted witness if there is any rational ground for doing so. (In re Jessica C.
(2001) 93 Cal.App.4th 1027, 1043.) Rational grounds for disbelieving a witness include
the factors listed in Evidence Code section 780. These factors include the witness’s
interest in the matter. (Evid. Code, § 780, subd. (f); see Pierce v. Wright (1953) 117
Cal.App.2d 718, 723 [court is not bound to believe interested witness].) In light of the
grounds stated in Evidence Code section 780, the trial court was not required to believe
John’s allegation about being hit in the back in November 2015. Thus, the court was not
18.
compelled as a matter of law to find Maria committed unlawful violence that constituted
harassment. (See Dreyer’s, supra, 218 Cal.App.4th at p. 838.)
D. Other Acts by Maria
The other allegations made by John about Maria’s behavior constituting
harassment suffer from the same problem as his allegation about being hit in the back. It
is extremely difficult for an appellant to demonstrate the trial court was required to find
his allegations of historical fact were true and was compelled to find those facts
established harassment that should be enjoined pursuant to section 527.6. We conclude
that John’s appellate briefing has not made the required demonstration and, as a result,
his claim about other acts by Maria do not provide grounds for reversing the denial of his
request for a restraining order.
E. Denial of Constitutional Rights
Section 1 of article I of the California Constitution states that all people have
inalienable rights, including “enjoying and defending life and liberty, acquiring,
possessing, and protecting property, and pursuing and obtaining safety, happiness, and
privacy.” John contends the denial of injunctive relief violated these inalienable rights.
To be entitled to a civil harassment restraining order, the person applying for the order
must prove that unlawful harassment exists and “is likely to recur in the future.” (Harris,
supra, 248 Cal.App.4th at p. 496.) Having failed to carry his burden of proof under the
statute, it follows that John also has failed to prove the denial of his request violated his
constitutional rights.
DISPOSITION
The order denying the request for a civil harassment restraining order under
section 527.6 is affirmed. Defendant shall recover her costs on appeal.
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