Hennessey v. Rasmussen CA2/3

Filed 8/5/21 Hennessey v. Rasmussen CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
MAUREEN HENNESSEY, B304904
Plaintiff and Respondent, (Los Angeles County
Super. Ct.
v. No. 19STRO08172)
JACOB RASMUSSEN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Joshua D. Wayser, Judge. Affirmed.
Jacob Rasmussen, in pro. per., for Defendant and
Appellant.
Shebby • Hirashima, David P. Shebby and Kristen
Hirashima for Plaintiff and Respondent.
——————————
Maureen Hennessey obtained a five-year protective order
under the Domestic Violence Prevention Act (DVPA) (Fam.
Code,1 § 6200 et seq.) against Jacob Rasmussen because he
stalked her and became threatening after she repeatedly told him
that she did not want to continue their brief dating relationship.
Rasmussen appeals from the issuance of the protective order. We
affirm.
BACKGROUND
Viewing the record according to the applicable rules of
appellate review (Burquet v. Brumbaugh (2014) 223 Cal.App.4th
1140, 1143),2 the following facts emerge: Hennessey and
Rasmussen work in different departments at the University of
California, Los Angeles (UCLA). Rasmussen lives in Westwood;
Hennessey lives in central Santa Monica. The two dated in
January and February 2019. They were sexually intimate in
February 2019. Hennessey then realized she was not
romantically interested in Rasmussen.
In mid-February, Hennessey went hiking with Rasmussen
so she could tell him she was not interested in dating him.
Rasmussen appeared not to comprehend her and made advances
1 Allfurther statutory references are to the Family Code
unless otherwise indicated.
2 Rasmussen’s briefs improperly cite to many facts that are
not part of the record on appeal. (Cal. Rules of Court, rule
8.204(a)(1)(C) [appellant’s briefs must support any statement of
fact with citation to the record]; id., rule 8.204(a)(2)(C)
[appellant’s briefs must limit statements “to matters in the
record” on appeal].) We cannot consider such facts and therefore
decline to mention or address them. (Dhawan v. Biring (2015)
241 Cal.App.4th 963, 967, fn. 7.)
2
by holding her hand, and hugging and squeezing her. Feeling
very uncomfortable, Hennessey tried to keep her distance. She
agreed to have lunch with Rasmussen twice in late February
2019 to reiterate that she did not want to date him.
In May 2019, as Hennessey was walking to her parking lot
after work, Rasmussen ran up behind her. As he walked her to
her car, he interrogated her about why she would not date him.
His questions came faster and faster, and “appeared to be getting
more frantic.” Hennessey made it clear she had no romantic
interest in him and would not date him. Upon arrival at the car,
Rasmussen stood “very close” to Hennessey and to her car,
repeating his questions. She felt uncomfortable. He continued to
question her. She told him to calm down and that she was
leaving.
In April and May 2019, Hennessey encountered Rasmussen
in the hallway to her office. Rasmussen had a new job in which
he periodically conducted meetings in the room next door. On
several occasions, Rasmussen tried to stop Hennessey as she
walked to the restroom, but she refused to engage with him. One
morning, Rasmussen and two others were walking toward
Hennessey as she returned to her office. Rasmussen veered in
her direction forcing her to hop to the side, turn sideways, and hit
the wall to avoid colliding with him. Later, she encountered him
again chatting with several people. He blocked her access to her
office and in a loud voice said, “we should probably get lunch
soon.” Embarrassed, and to get him to stop and move out of her
way, she responded, “yeah maybe,” and darted into her office.
The following day, Hennessey told Rasmussen that he had
been unprofessional and had embarrassed her. Rasmussen
insisted his behavior was justified because she had “ghosted”
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him. He repeatedly asserted that she could not treat him
disrespectfully and that she owed him more. She begged him to
leave her alone. He stood up, looked down at her, and yelled,
“bipolar, anorexic, bitch!” Hennessey came to dread Mondays
and to avoid using the restroom for fear she would encounter
Rasmussen loitering in the hallway.
Hennessey believed the two additional times she ran into
Rasmussen between May and September 2019 were coincidences.
However, on September 25, 2019, at 6:15 p.m., she noticed
Rasmussen jogging in front of her home and in front of her
Pilates studio, which surprised her because he lived and worked
seven miles away in Westwood. She met with an attorney.
On October 8, 2019, Hennessey’s ex-boyfriend Sammy Shon
saw Rasmussen jogging up and down the street four times in
front of Hennessey’s Pilates studio. Shon watched Rasmussen
stop jogging and walk past Hennessey’s apartment building.
Shon followed Rasmussen as he went to his car, and observed
him as he drove back past the Pilates studio three more times.
The next day, Shon watched Rasmussen drive past the Pilates
studio. A week later, Shon saw Rasmussen walk by Hennessey’s
apartment building and stare into the lobby.
Hennessey hired a private investigation company whose
employees followed Rasmussen, at approximately 5:00 p.m. on
October 14, 15, and 28, 2019, as he drove 25 to 35 minutes from
his Westwood home, along Sunset Boulevard, to Hennessey’s
Santa Monica neighborhood. Each time, the employees
photographed as Rasmussen jogged around Hennessey’s
neighborhood and slowed to a walk in front of her Pilates class,
and then drove 35 to 40 minutes back home. Out of fear for her
safety, Hennessey began carrying pepper spray.
4
On November 19, 2019, Hennessey’s attorney served
Rasmussen with a cease-and-desist letter. Around midnight that
night, Rasmussen sent an email to his boss, with copies to
Hennessey and her boss, in which he emphasized he’d had a
“private encounter” with Hennessey.
On November 26, 2019, Hennessey applied for a domestic
violence restraining order against Rasmussen because her dating
relationship with him had become threatening. Manny Tau, a
clinical and forensic psychologist and “Certified Threat
Manager,” declared in connection with Hennessey’s application
that Rasmussen posed a “high threat potential for harassing,
threatening[,] and unwanted-pursuit/stalking behaviors” towards
Hennessey.
The trial court issued a temporary order that same day,
restraining Rasmussen from coming within 100 yards of
Hennessey’s home, workplace, car, and the Pilates studio where
Hennessey exercises. Rasmussen filed his own request for a
restraining order two weeks later.
In December 2019, while the temporary restraining order
protecting Hennessey was in effect, Shon saw Rasmussen within
100 yards of the building in which Hennessey works and again
within 100 yards of her Pilates studio.
At the close of the trial on Hennessey’s request for a
permanent restraining order, the trial court stated, “[W]hat
you’re saying to me is, no, it wasn’t stalking. It was just
engaging in his usual pattern of behavior, and that’s really the
heart of the matter, and it’s just a credibility call. I think that’s
largely it. Am I missing something?” Rasmussen’s counsel
replied, “No, Your Honor.” Declaring the “credibility call” to be
“an easy one,” the court believed Hennessey and disbelieved
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Rasmussen’s story that he was simply exercising in Hennessey’s
neighborhood, finding that Rasmussen’s case “just doesn’t add
up.” The court also found that the testimony of a UCLA police
officer, not included in the record on appeal, “set[ ] off lethality
factor worries.” Finding Rasmussen to be stalking Hennessey,
the trial court issued a permanent order restraining him from
contacting, harassing, stalking, disturbing the peace of, or
surveilling Hennessey, and ordering him to stay at least
100 yards from her home, work, vehicle, and Pilates studio for
five years. Rasmussen timely appealed.
DISCUSSION
I. Rasmussen fails to demonstrate error.
A. Inadequate record and improper briefing
Rasmussen did not designate a complete record. He
omitted his own testimony, that of Hennessey, and that of the
UCLA Police Officer; and he included only part of the reporter’s
transcript of the statement of decision. Rasmussen’s failure to
carry his burden to provide an adequate record on a particular
issue “ ‘requires that the issue be resolved against’ ” him.
(Jameson v. Desta (2018) 5 Cal.5th 594, 609.) Rasmussen moved
to augment the record with numerous documents that were not
before the trial court. (See Cal. Rules of Court, rule 8.122(a)(1),
(b)(3)(A).) Augmentation cannot be used to supplement the
record with materials not before the trial court. (Vons
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Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444,
fn. 3.)3
B. Invited error and forfeiture
The DVPA defines domestic violence as “abuse perpetrated
against,” among others, a “person with whom the respondent is
having or has had a dating or engagement relationship.” (§ 6211,
subd. (c).) The DVPA defines abuse to include placing “a person
in reasonable apprehension of imminent serious bodily injury to
that person or to another,” and stalking. (§§ 6203, subd. (a)(3) &
6320, subd. (a).)
Rasmussen contends that the trial court erred in finding
that he was in a dating relationship with Hennessey. But in his
own application for a domestic violence restraining order,
Rasmussen checked off the box characterizing their relationship
as follows: “We are dating or used to date, or we are or used to be
engaged to be married.” (Italics added.) Having claimed in the
trial court that he was in a dating relationship with Hennessey,
Rasmussen cannot be heard to argue to the contrary on appeal.
(Cf. Tri-Counties Assn. for the Developmentally Disabled, Inc. v.
3 We grant Rasmussen’s January 6, 2021 motion to
augment the record with the exhibits from volumes two through
four of the motion, but as noted, we deny the motion to augment
with the exhibits from volumes five and six because there is no
indication these exhibits were filed or lodged with the trial court.
(Vons Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal.4th at
p. 444, fn. 3.) Rasmussen’s second request for judicial notice filed
on May 3, 2021, is denied in its entirety. (Ibid. [appellate courts
do not take judicial notice of evidence not presented to trial
court].) Hennessey’s motion dated April 13, 2021, to take judicial
notice of exhibits one through three is granted, but is denied as to
exhibit four. (Evid. Code, § 452, subd. (d).)
7
Ventura County Public Guardian (2021) 63 Cal.App.5th 1129,
1140–1141 [party estopped under invited error doctrine from
challenging trial court’s finding made based on party’s
assertion].)
Rasmussen next argues that the trial court erred in
admitting the testimony of Hennessey’s private investigators
because they were not licensed. At no time during trial, however,
did Rasmussen object to the investigators’ testimony. Rather,
Rasmussen’s attorney cross-examined each of those witnesses
and elicited that the private investigators, who were not licensed,
worked under a licensed investigator. Rasmussen’s counsel did
not then move to strike the witnesses’ testimony. Rasmussen
may not therefore claim now that the admission of the evidence
was error (People v. Abel (2012) 53 Cal.4th 891, 924), and has
forfeited the argument on appeal (People v. Dowl (2013)
57 Cal.4th 1079, 1082).
C. We may not reassess the trial court’s credibility
findings.
Many of Rasmussen’s contentions on appeal challenge the
trial court’s evaluation of the evidence and of the witnesses’
credibility. Although the grant or denial of a protective order
under the DVPA falls within the trial court’s discretion (Burquet
v. Brumbaugh, supra, 223 Cal.App.4th at p. 1143), we review the
court’s factual findings for sufficiency of the evidence (ibid.).
Under that standard, we do not “weigh conflicts and disputes in
the evidence; that is the province of the trier of fact.” (Howard v.
Owens Corning (1999) 72 Cal.App.4th 621, 630.) Our review
“ ‘ “ ‘begins and ends with the determination as to whether there
is any substantial evidence contradicted or uncontradicted which
will support the finding of fact.’ [Citations.]”
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[Citation.] . . . [Citation.]’ [Citation.] The test ‘is simply whether
there is substantial evidence in favor of the [prevailing party]. If
this “substantial” evidence is present, no matter how slight it
may appear in comparison with the contradictory evidence, the
judgment must be upheld. As a general rule, therefore, we will
look only at the evidence and reasonable inferences supporting
the successful party, and disregard the contrary showing.’ ”
(People v. Overstock.com, Inc. (2017) 12 Cal.App.5th 1064, 1079.)
Rasmussen appears to argue that Hennessey produced no
evidence that he stalked her, whereas he had an innocent reason
for his increasingly frequent presence in Hennessey’s
neighborhood in the evenings, namely exercise. We cannot
consider the myriad allegations in Rasmussen’s briefs, which are
designed to support his defense below but which are unsupported
by the record. Rather, the inadequate record Rasmussen has
provided on appeal means we must resolve this issue against
him.
The evidence that the record does contain, moreover, amply
supports the trial court’s finding that Rasmussen stalked
Hennessey and disturbed her peace of mind. She declared that
Rasmussen became aggressive and angry at her, and scared her
when she reiterated that she did not want to see him.
Rasmussen then became vicious and insulting and sought to
embarrass her. Numerous witnesses described how Rasmussen
frequently and repeatedly drove approximately 35 minutes from
his home, in 5:00 p.m. traffic, to jog in a radius around
Hennessey’s neighborhood, and how he slowed to a walk in front
of her home and her Pilates studio. Shon related how Rasmussen
violated the temporary restraining order in December 2019. In
issuing the permanent restraining order, the trial court credited
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evidence introduced by Hennessey, and disbelieved Rasmussen’s
explanation for his conduct. As Rasmussen’s attorney
acknowledged to the court, at its core, the case called for a
credibility assessment. We can neither reassess the trial court’s
credibility finding nor reweigh the evidence.
Rasmussen contends that the trial court improperly used
“folklore, anecdote and invented facts[,] rather than law and
evidence” in issuing the protective order, which violated his
“constitutional right to Freedom of Movement.” Rasmussen cites
to the portion of the reporter’s transcript in which the court
explained, based on personal experience, that Rasmussen’s
explanation for being in Hennessey’s neighborhood—namely that
he traveled out of his way in some of the worst traffic in Los
Angeles simply to exercise—was nonsensical. The portions of the
record Rasmussen cites demonstrate that the court did exactly as
it is required to do: it used its common sense and experience—
not folklore and invented facts—when deciding whether to
believe Rasmussen’s explanation for his behavior. (See In re
H.M. (2008) 167 Cal.App.4th 136, 144 [courts view evidence
objectively and “through the lens of common sense and
experience” in determining factual questions].)
The contentions in the section of Rasmussen’s brief entitled
the “STALKING VERDICT ISSUE” are unclear. It appears
Rasmussen is arguing that the trial court engaged in favoritism
because it based its finding on speculation about the “amount of
money” Hennessey spent to obtain the protective order, and
about whether she is mentally ill. Rasmussen recites the court’s
statement that “Ms. Hennessey is either lulu, or she’s just been
through the ringer about times ten, and she just spent a lot of
time and money to protect herself, and I understand why she did.
10
She was exactly right to.” The quoted statement is simply
another explanation for why the court believed Hennessey’s view
of the events over Rasmussen’s. When the trial court’s
assessment of credibility and the evidence is based upon actual
observation of the witnesses and the evidence introduced during
trial, that assessment does not amount to improper bias or and
prejudice merely because it appears to be adverse to the
appellant. (Moulton Niguel Water Dist. v. Colombo (2003) 111
Cal.App.4th 1210, 1219.) That Rasmussen disagrees with the
court’s conclusion does not make the order reversible.
Finally, Rasmussen contends that the trial court
mischaracterized exhibit 12, the midnight email entitled
“Harassment claim against Maureen Hennessey” that
Rasmussen sent to his employer, Hennessey, and her boss,
several hours after he was served with Hennessey’s cease-and-
desist letter. In the email, Rasmussen wrote in very large font
that he was involved in “a private encounter” with Hennessey.
The court rejected Rasmussen’s attorney’s argument that
Rasmussen sent that email to be a “responsible professional,”
stating, “one does not send an e-mail at twelve o’clock at night to
one’s employer unless you want to communicate you’re under
stress and then copying her boss . . . referring to an intimate
relationship, using all caps, I believe.” Although Rasmussen’s
email did not use the words “intimate relationship,” and did not
use all capital letters, the court clearly disbelieved the letter was
sent in a responsible and professional manner because of the
hour at which it was sent, the very large font size, the recipients,
and the gratuitous reference to a private encounter.
More important, however, even assuming the trial court
improperly mischaracterized the capitalization and the phrase
11
“private encounter”—which, on the record presented, we do not
conclude that it did—Rasmussen makes no effort to demonstrate
prejudice. (Cal. Const., art. VI, § 13.) “Reversal is justified ‘only
when the [appellate] court, “after an examination of the entire
cause, including the evidence,” is of the “opinion” that it is
reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of the error.’ ” (In
re Cristian I. (2014) 224 Cal.App.4th 1088, 1098–1099.) Given
the ample evidence supporting the restraining order, any
mischaracterization of the capitalization and of the phrase
“private encounter” in Rasmussen’s email is of no moment. It is
simply not reasonably probable Rasmussen would obtain a
different result absent the mischaracterization. On the contrary,
the court’s lengthy explanation for its ruling—in the part of the
transcript Rasmussen did include in the record on appeal—shows
that the trial court acted well within its discretion in issuing the
protective order.
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DISPOSITION
The order is affirmed. Maureen Hennessey is awarded her
costs on appeal.
NOT TO BE PUBLISHED.
THOMAS, J.*
We concur:
EDMON, P. J.
LAVIN, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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