Opinion
E077701
11-03-2022
F. BARRON GUNTER, Plaintiff and Respondent, v. JEFFREY CHARLES MURRELL, Defendant and Appellant.
Alpert Law Group, Jeffrey Alpert, and Dean Asher for Defendant and Appellant. F. Barron Gunter, in pro. per., for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. CIVMB2100087, John W. Burdick, Temporary Judge. (Pursuant to Cal. Const., art VI, § 21.) Reversed.
Alpert Law Group, Jeffrey Alpert, and Dean Asher for Defendant and Appellant.
F. Barron Gunter, in pro. per., for Plaintiff and Respondent.
OPINION
SLOUGH, J.
In 2020, appellant Jeffrey Murrell, a DJ and sound engineer, moved onto a property in the desert and began consistently playing extremely loud music which disturbed the neighbor on an abutting property, respondent Barron Gunter. Murrell's disruptive conduct continued for months and included three raucous parties during which music played into the early morning. Initially, Gunter attempted to address the problem amicably, but Murrell refused to accommodate him. Instead, the relationship became tense and Murrell stopped taking Gunter's requests seriously, saying things like "You had it really good before, but that's over now" and asking what he wanted to hear when Gunter complained about the volume by text message.
Months later, Murrell was arrested after resisting sheriff's deputies who arrived when another neighbor complained about the music. Murrell blamed Gunter for reporting him and his arrest and Gunter said he heard Murrell made some vaguely threatening comments to a third party who didn't testify. The two later got into a dispute over Gunter placing scrap metal near Murrell's property for a recycling pickup, and Murrell reported Gunter for illegal dumping.
Gunter sought a civil restraining order against Murrell. After a hearing, the commissioner found Murrell had engaged in a course of knowing and willful conduct that seriously annoyed and harassed Gunter, his conduct would have caused any reasonable person to suffer substantial emotional distress, and Gunter did suffer substantial emotional distress. The commissioner issued the restraining order and awarded Gunter attorney fees.
Murrell appeals arguing, among other things, there was no substantial evidence his harassing conduct was directed specifically at Gunter, as the civil restraining order statute requires, as opposed to the community at large. We agree and therefore reverse the restraining order.
I FACTS
In the summer of 2020, appellant Jeffrey Murrell bought a house on Drexel Road, which he said he intended to use as a vacation rental. The property is in a residential neighborhood with a few nearby neighbors, one of them respondent Barron Gunter, whose property abutted Murrell's property, though their houses were about a quarter mile apart.
Murrell is a sound engineer and DJ who liked to play music on speakers outside his new house with great frequency and at high volume. Gunter could hear the music in his house and found it "really invasive." He would ask Murrell to turn the music down, but after initially complying, Murrell would start playing the loud music again the next day. As Gunter repeatedly approached Murrell about his music, the tension between them increased.
In mid-October, Murrell had a very disruptive party. Gunter testified that Murrell played music "for a bunch of days" straight. He said, "It was really loud. I mean, all the cups in my cupboard were jiggling." He again went to ask Murrell to turn the music down, but this time things "came to a head." Gunter reported the two had "cross words" and Murrell refused to turn down the volume, saying, "You had it really good before, but that's over now." Gunter said he took the remark to mean he was "not going to have any peace anymore, basically."
Gunter went home after this confrontation, but was almost immediately seized with remorse, so he went back to smooth things out. He told Murrell, "I can't believe we can't get along" given all they had in common, and the two "hugged it out." Gunter said he thought they had "mended the issue," but the next day the music was loud again, making Gunter's bedroom floor vibrate. After that, he said, "It got progressively worse" with the music playing "all day every day, but at a really high level."
On October 23, a few days later, Gunter texted him in the evening. "It's been really loud all day now &I'm not sure you realize it." Murrell replied, "What would you like to hear and we can turn it up." Gunter said he felt like this was a personal, targeted reminder that he no longer "had it really good," and that things could get worse if he antagonized Murrell. Gunter said he felt like it was Murrell's "intention to directly harass [him] with playing music," and that it was "personal, that all this music playing is personal." In Gunter's view, Murrell was openly using loud music as a way of controlling and intimidating him. He said it took him two hours to come up with a response to the text message, during which period he had to talk himself into not triggering an escalation. In the end he responded, "Have fun."
The following weekend Murrell threw himself a three-day birthday party featuring "a bunch of grating sounds and a really throbbing, pulsing drumbeat that is mechanical. Like, boom, boom, boom, boom, boom," which played all day and "most of the night." Gunter said he felt like he was the target of "like psychological warfare." Once the party was over, Gunter said he didn't want to see Murrell, let alone "go near [the] driveway on that side of the property," because he felt menaced.
The music could be heard for six to 10 miles. Susan Burnett, a neighbor who estimated she lived about five to seven miles away from Murrell, reported she heard Murrell's music at her home. She said the music lasted for a few days, starting October 30, 2020, continuing through the night, and then breaking around 6:00 a.m. before resuming the next evening. She said she didn't know where it was coming from at first, but called neighbors, including Gunter, and eventually discovered the party was occurring at Murrell's house. Burnett called the sheriff's department who said they would send someone to the property. Later, Burnett investigated and found about 20 vehicles and 50 to 75 people who appeared to be camping on property near Murrell's which belonged to the town of Yucca Valley. Burnett called Clint Stoker, a member of the Yucca Valley planning committee, to find out if they had permits. Stoker reported they did not.
Stoker submitted a declaration about his interaction with Murrell that weekend, however, he didn't testify. His declaration said he called Murrell after being alerted to the problems by Burnett and asked if Murrell had a permit. Murrell said he did, and when Stoker-knowing this to be false-questioned him, Murrell threatened to beat him up, demanded to know "who turned him in," and then called the sheriff to file a report against Stoker for harassment. According to Stoker, he "drove out and verified the party was in fact extremely loud, violated county health directives relating to gatherings during COVID, and was trespassing on neighboring parcels. There was trash, fires, and people passed out all over the otherwise pristine desert. There were numerous piles of native vegetation including downed Western Joshua Trees that were recently scraped to make room for these campers . . . [which is] a violation of State Fish and Wildlife regulations." At the hearing, Murrell said the town of Yucca Valley code enforcement came out but didn't cite him or ask people to leave. He also said sheriff's deputies arrived due to complaints, but he wasn't cited or ordered to turn the music down.
Murrell appeared to blame Gunter for reporting him to the town of Yucca Valley and to law enforcement. In mid-November 2020 Gunter reported he told another neighbor, Gunter's friend Reed Price, "he thought [Barron] was a chihuahua, but now he thinks [Barron] might be a pit bull." He told Price he had been "Black Ops" and knew how to "neutralize" threats. Gunter said he understood these comments to be veiled threats and found them alarming and avoided contact with Murrell. Though Price entered a declaration about these comments, he did not testify, and the trial judge considered the evidence only for the purpose of establishing Gunter's state of mind.
Afterward, in November, Gunter said Murrell "played his music during the day . . . at a level that just offended me constantly." There was "a grating drumbeat you can hear in every room of your house all day, every day, it [was] a complete interference with [our] li[ves]. It [was] total harassment." He also said Murrell misled the fire department into coming to his property when he was (legally) burning a fire in his wood stove and made numerous "petty complaints that were false against me in order to harass me, I believe."
In February, Murrell held another party which someone reported to the authorities. The deputy sheriff who responded testified at the hearing. He said they received a complaint about excessive noise at a property on Churchill Road, and they responded at 3:00 in the morning and found 10 to 15 people onsite. "[I]t was an obvious party scene. There were multiple people there, loud music being played, and Jeff Murrell was in the back of the DJ booth. He was the one playing the music." The deputy said he asked Murrell to turn the music down, but "[h]e refused to. He became uncooperative, and I advised him he could be going to jail. He told me he's the wrong person to talk about that to and became aggressive towards the deputies." The deputy reported someone turned the music down during the encounter, but that Murrell said he was "still going to continue playing music after I left." He said Murrell then "started telling me to get off his property because I was trespassing, I had no right to be on his property, got toward my face, started pointing toward-putting his hands toward my face. I grabbed one of his hands to place him under arrest or at least detain him with handcuffs so he wouldn't get physical, at that point, he pushed me away." At that point, Murrell "kind of pushed" and "grabbed him and took him down to the ground." Murrell continued to resist even after being handcuffed, arrested, and placed in the sheriff's vehicle.
Though Gunter hadn't been the one who reported Murrell in February, he said he was told Murrell blamed him. According to Gunter, Murrell reported him in April for what he claimed was illegal dumping, and the deputy who responded said Murrell blamed him for the fact that he was jailed in February. Gunter said Murrell continued playing music outside during the day loud enough to annoy him. He estimated that occurred about five dozen times after the first party, but Gunter chose to avoid interaction rather than complain.
The report of purported illegal dumping occurred after Murrell found Gunter placing a pile of scrap metal recycling on Reed Price's land, which is located across from Murrell's property. Murrell started yelling at Gunter about leaving the metal. Gunter tried to explain the materials would be picked up in three days, but Murrell had started berating him for "Call[ing] the racist cops" on him. Gunter denied calling the sheriff and suggested Murrell was responsible since he had resisted law enforcement. Gunter said he had left the scrap metal on Reed Price's property with his permission, but Murrell threatened to report him for illegally dumping trash and later did so.
Gunter said he continued to view Murrell as a threat. He said other neighbors told him Murrell had "made remarks about being able to monitor my text messages and find out who put him in jail and see if I was going-he was going to hire an agency because he had some-he was a sniper in Afghanistan, and he had some ability to spy on my text[s]." Again, these neighbors didn't testify, so the evidence serves only to establish Gunter believed Murrell was issuing vague threats.
Shortly after he was told of these remarks, Gunter sought a civil restraining order against Murrell. The trial court, Commissioner John W. Burdick, issued a temporary restraining order and set a hearing for June 29, 2021. Both parties appeared on that date and presented testimony and other evidence. At the close of evidence, the commissioner took the matter under advisement and set a date to provide an oral ruling on July 15, 2021.
The commissioner ruled in favor of Gunter. "I find that, Mr. Murrell, that you engaged in a course of knowing and willful conduct that seriously annoyed and harassed Mr. Gunter and that served no legitimate purpose, and that conduct would have caused any reasonable person to suffer substantial emotional distress, and Mr. Gunter did suffer substantial emotional distress. [¶] I find that, Mr. Murrell, that you had at least three, and likely more, festivals, or music events, whatever you want to call it, playing loud music which could be heard for miles away, and they went all night and into the early morning hours and then into the next day. I find that restraining orders should issue as a result."
The commissioner's order directed Murrell "not to harass, intimidate, molest, attack, strike, stalk, threaten, assault, hit, abuse, destroy property of . . . disturb the peace of Mr. Gunter. You are not to contact him in any way directly or indirectly. You may not take any action to determine his whereabouts." He also ordered Murrell to stay 100 yards away from Gunter, his household members, their home, vehicles, and two dogs. The commissioner set the order to expire on July 15, 2024, giving Gunter the chance to apply for an extension. The commissioner also awarded Gunter attorney fees in the amount of $2,500.
Murrell filed a timely notice of appeal.
II ANALYSIS
California Code of Civil Procedure section 527.6 establishes the right to obtain a civil protective order. "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." (Code Civ. Proc., § 527.6, subd. (a), unlabeled statutory citations refer to this code.) The statute defines harassment as "unlawful 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), italics added.)
This case involves allegations and evidence of a harassing course of conduct directed at a specific person, not violence or threats of violence. In such cases, "'Section 527.6 was enacted "to protect the individual's right to pursue safety, happiness and privacy as guaranteed by the California Constitution." [Citations.] It does so by providing expedited injunctive relief to victims of harassment.' [Citation.] 'The elements of unlawful harassment, as defined by the language in section 527.6, are as follows: (1) "a knowing and willful course of conduct" entailing a "pattern" of "a series of acts over a period of time, however short, evidencing a continuity of purpose"; (2) "directed at a specific person"; (3) "[that] seriously alarms, annoys, or harasses the person"; (4) "[that] serves no legitimate purpose"; (5) [that] "would cause a reasonable person to suffer substantial emotional distress" and "actually cause[s] substantial emotional distress to the [person to be protected by the order]"; and (6) which is not a "[c]onstitutionally protected activity."' [Citation.] Section 527.6, subdivision (i), requires 'clear and convincing evidence that unlawful harassment exists.'" (Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1227, disapproved on other grounds in Conservatorship of O.B. (2020) 9 Cal.5th 989; see also § 527.6, subd. (b)(1).)
Murrell argues the commissioner erred by entering the civil restraining order because there was no evidence Murrell's conduct was directed at Gunther as opposed to anyone in the vicinity. We review the commissioner's determination for substantial evidence. We agree Murrell has identified a deficiency in the evidence and therefore in the ruling.
The commissioner's own statement of decision omits any reference to the element that the harassing conduct was directed specifically at Gunter. As we noted, the commissioner found Murrell "engaged in a course of knowing and willful conduct that seriously annoyed and harassed Mr. Gunter and that served no legitimate purpose, and that conduct would have caused any reasonable person to suffer substantial emotional distress, and Mr. Gunter did suffer substantial emotional distress." (Italics added.) While the commissioner found the conduct did in fact annoy Gunter-and that finding is fully supported-he did not find that Gunter was in any sense targeted. On the contrary, the commissioner found Murrell "had at least three, and likely more, festivals, or music events, whatever you want to call it, playing loud music which could be heard for miles away."
The problem with Murrell's conduct was that he was annoying to everyone-that, as the commissioner elsewhere emphasized, "I'm basically hearing you are a horrible neighbor, and that is what you need to address." Moreover, the annoyance was the result of Murrell's decision to hold raucous parties for multiple partygoers, including, in one instance, Gunter. As Murrell testified, "One [event] was my birthday party, one was my girlfriend's party, and one was my housewarming which Barron Gunter and Reed Price were at for several hours." Murrell argues his testimony shows the parties had a "legitimate purpose," which bars a civil restraining order. We don't agree (and don't decide) that the evidence establishes a legitimate purpose, but we do agree it shows the parties had a purpose other than annoying Gunter. Thus the evidence doesn't support a finding that Murrell acted with the purpose of annoying a specific person, but rather that he entertained an in-group (partygoers) but annoyed an out-group (neighbors).
As Murrell concedes in his briefs, his conduct may expose him to a variety of legal repercussions. For example, Gunter could have brought a nuisance cause of action against him and may yet do so if Murrell resumes his antisocial conduct. "Anything which is injurious to health . . . or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . is a nuisance." (Civ. Code, § 3479.) Anyone "whose property is injuriously affected, or whose personal enjoyment is lessened by a nuisance, as defined in Section 3479 of the Civil Code" may bring a cause of action against the perpetrator "and by the judgment in that action the nuisance may be enjoined or abated as well as damages recovered." (Code Civ. Proc., § 731.) To prevail in such a lawsuit, Gunter would not have to show Murrell's conduct was directed at him, only that he was injured.
Murrell could also face consequences in an action brought by public authorities. The district attorney, county counsel, or city attorney are permitted to bring a civil action in the name of the people to abate a public nuisance as defined in section 3480 of the Civil Code. (Code Civ. Proc., § 731; see also Civil Code, § 3480 ["A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal"].) In addition, Murrell could face prosecution for maintaining a public nuisance. (Pen. Code, § 370 [setting out the conduct described in section 3479 as being a "public nuisance"]; see also Pen. Code, §§ 372, 373a.) Or Murrell could be prosecuted for disturbing the peace. (Pen. Code, § 415 ["Any person who maliciously and willfully disturbs another person by loud and unreasonable noise" "shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both"].) And indeed, a sheriff's deputy arrested Murrell for disturbing the peace, and Murrell represented at the hearing in this case that he had been charged with that offense and was still facing charges. None of these remedies requires clear and convincing evidence that Murrell targeted Gunter specifically.
Gunter attempts to defend the civil restraining order by pointing to certain conduct of Murrell's beyond his loud music. He argues Murrell targeted him by falsely reporting him for violations related to burning fires and dumping trash. However, the commissioner did not base his decision on that evidence, and even stopped Murrell from trying to address those allegations on the ground they were irrelevant. When Murrell sought to bring his girlfriend in as a witness to rebut these allegations, the commissioner wouldn't allow the testimony. "From my point of view, this is not about trash, recycling, although trash from the party may be an issue, but it seems to be minor. What I'm concerned about is it sounds like you regularly play blasting loud music disturbing his peace." We can't salvage the commissioner's decision as supported by substantial evidence of harassment when the commissioner barred Murrell from defending on the ground the evidence was irrelevant. In any event, the evidence that did come in concerning Murrell's complaints to the authorities showed they were sporadic.
Gunter also points to the fact that Murrell played loud music consistently, outside of the parties, and made derisive comments about his objections as supporting a finding that Murrell's conduct was directed at him specifically. However, the testimony Gunther points to actually shows the offensive conduct occurred before tensions had arisen. He said they met in July 2020, after Murrell moved in, and "[h]e said that he was a DJ, and he produced sound for concerts for off-grid venues like Burning Man." Asked when the noise began, Gunter said, "Well, it was pretty much constant, but at a lower level that only I can hear because the next neighbors are probably about a mile away, and I'm only a quarter-mile away. I'm the only person around. So he was playing music . . . on outdoor speakers all the time, all day, every day." Gunter didn't object at the time and later attended the first party in August when Murrell played even louder music without complaining. Murrell then warned him he would be "having a 'Builds Day,' (phonetic) which went on for about 20 days, and it was just all day, every day....He even came down to do a sound check" and "said, 'Oh, yeah, it is too loud,' . . . but he didn't do anything about it." Far from showing Murrell was targeting Gunter, this testimony shows he wasn't willing to adjust his plans even when he discovered how it would impact Gunter-that he was, as the commissioner remarked, a "horrible neighbor."
Gunter also points to what he characterizes as "harassment . . . in the form of text messages directly to [Gunter] or fact-to-face conversations with [Gunter] intended to bully him into compliance." These interactions occurred after Gunter had begun requesting that Murrell reduce the noise. At one point, in response to a request Gunter made to lower the music, Murrell said, "[Y]ou know, you had it really good before, but that's over now." At another point, Gunter texted "It's been really loud all day now &I'm not sure you realize it," and Murrell replied, "What would you like to hear and we can turn it up." Gunter said he felt like these statements showed Murrell was targeting him by playing the music. However, these comments were isolated and, in any event, show nothing but that Murrell was extremely inconsiderate. Gunter's testimony that he felt targeted is not sufficient to support a finding that he was targeted, particularly not where the statute requires clear and convincing evidence. As for the later vaguely threatening text messages Gunter said his friends told him about, the messages weren't in evidence, the people who reported them didn't testify, and the commissioner limited Gunter's testimony about what people told him to establishing his state of mind. The evidence, taken all together and construed in support of the commissioner's finding, shows only that Murrell was an inconsiderate and unpleasant neighbor who didn't care that his passion for playing inappropriately loud music had extremely deleterious effects on neighbors. And while, it may show Gunter felt targeted, it does not show that Murrell in fact targeted Gunter for harassment.
We therefore conclude the commissioner's civil restraining order must be reversed because it was not supported by substantial evidence the misconduct was directed at a specific person. That doesn't mean Murrell won't face consequences for his antisocial behavior, nor that Gunter has no remedy, only that a civil restraining order was not the remedy to pursue. Murrell should be aware that repeating his conduct could put him at risk of civil damages, fines, and imprisonment, as well as issuance of an injunction under Civil Code section 3479 and Code of Civil Procedure section 731.
III DISPOSITION
We reverse the civil restraining order. The parties shall bear their own costs on appeal.
We concur: McKINSTER Acting P. J., FIELDS J.