Opinion
D072788
09-20-2018
ALAN J. HUNTOSH, Plaintiff, Cross-defendant and Respondent, v. PARKER J. LANEY-HERDT, Defendant, Cross-complainant and Appellant.
Parker J. Laney-Herdt, in pro. per., for Defendant, Cross-complainant and Appellant. Alan J. Huntosh, in pro. per., for Plaintiff, Cross-defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2017-00024887-CU-HR-CTL) APPEAL from an order of the Superior Court of San Diego County, Frederick Anthony Mandabach, Judge. (Retired Judge of the San Bernardino Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Parker J. Laney-Herdt, in pro. per., for Defendant, Cross-complainant and Appellant. Alan J. Huntosh, in pro. per., for Plaintiff, Cross-defendant and Respondent.
Alan Huntosh obtained a civil harassment restraining order (Code Civ. Proc., § 527.6) against Parker Laney-Herdt after an altercation between the men occurred at Huntosh's home. Laney-Herdt appeals, challenging the sufficiency of the evidence in support of the restraining order. Finding no error, we affirm the order.
All statutory references are to the Code of Civil Procedure unless otherwise specified.
BACKGROUND
1. Huntosh's Section 527 .6 Petition
On July 10, 2017, Alan Huntosh filed a request for a civil harassment restraining order against Parker Laney-Herdt. In support of his request, Huntosh attached a declaration made under penalty of perjury explaining that he had known Laney-Herdt for approximately five years. On June 21, Laney-Herdt approached him in front of his house and asked him to hold a sign that Laney-Herdt had made; Huntosh refused.
Laney-Herdt later returned to Huntosh's house. Huntosh told him to "get off [his] property," at which point Laney-Herdt "put [him] in a headlock and dragged [him] inside. [Laney-Herdt] threw [him] from the headlock into a table, which broke the table. [Huntosh] stood up and asked [Laney-Herdt] to stop. [Laney-Herdt] then pushed [Huntosh] into a wall and caused multiple items to break." Laney-Herdt kept yelling "hit me" in an attempt to incite Huntosh; Huntosh repeatedly told Laney-Herdt to leave. Laney-Herdt then threw a phone at Huntosh and called his girlfriend a "prostitute" and a "whore." Huntosh's 87-year-old mother, Ellen S., came up the stairs in response to the noise and witnessed part of the altercation. Laney-Herdt then left Huntosh's home.
Huntosh's declaration further stated that the altercation had aggravated a preexisting spine injury and had caused him to experience migraines. Huntosh declared he "fear[s] for [his] physical safety and well-being due to [Laney-Herdt's] violent action."
Huntosh attached to his petition a copy of a police report he had initiated on July 6, when he reported the incident to police. Huntosh told police that, on the afternoon of June 21, Laney-Herdt came to Huntosh's home which was located in an apartment complex where Laney-Herdt does not live. Laney-Herdt made statements about owning the apartment complex, which is owned by Huntosh's mother. Laney-Herdt told Huntosh to hold a cardboard advertising sign and stand in front of the house. When Huntosh refused to do so, Laney-Herdt became upset and left but returned to the apartment later. Huntosh came out of his apartment and yelled, "Get off my property." Laney-Herdt placed Huntosh in a headlock and pushed him into a nearby table. The men wrestled to the ground. Laney-Herdt yelled, "I am your best friend," "this is an intervention," and "we are shipping you out of state" several times. He also stated, "Lisa is a prostitute." Laney-Herdt threw a phone into a lamp, causing damage.
Huntosh told police his mother came to the apartment when the men were on the ground. Huntosh was able to get off the ground, but then Laney-Herdt pushed him into a wall, causing numerous items to break. Huntosh then left the apartment complex. As he left, he saw Laney-Herdt kick a white bucket toward him. When he returned, neighbors told Huntosh the police had come by.
The police report reflects that Huntosh showed the investigating officer some items he claimed had been damaged in the altercation, including a table, lamps, and the phone. The police report further reflects that Huntosh had no visible injuries from the altercation. The responding officer telephoned Huntosh's mother for her statement; he was unable to reach her but left her a message. Huntosh told police he did not initially report the incident because he was afraid.
On July 7, Huntosh's mother, Ellen, telephoned police to make a statement, which was subsequently appended to the police report. She told police she came up the stairs at her son's home and recognized Laney-Herdt, whom she knew from prior contacts. Laney-Herdt yelled, "This is an intervention," and grabbed and threw Huntosh toward a futon. Huntosh's head hit the wall and a lamp, breaking the lamp. Huntosh did not attack Laney-Herdt. Huntosh left the apartment, after which Laney-Herdt called the police. Ellen stated that, when police responded, Laney-Herdt told officers he did not want Huntosh arrested because he was his "best friend." She stated that she did not agree with this statement and that Laney-Herdt is "known to be a liar."
Ellen told police that Laney-Herdt had been trying to buy the apartment complex, which she owns, and had asked to help run the apartment complex. She knew him from him volunteering to fix things, including her cable wires and telephone answering machine. She told police that Huntosh is cognitively impaired and, since the incident, complained of headaches. Ellen reported that Huntosh had back surgery years before the altercation, and she believed the altercation had exacerbated his back injuries.
The court scheduled a hearing on Huntosh's petition for July 31 and issued a temporary restraining order pending the hearing, forbidding Laney-Herdt from coming within 100 yards of Huntosh, his home, workplace, or vehicle and forbidding him from possessing firearms.
2. Laney-Herdt's Response to Huntosh's Request
On July 17, Laney-Herdt filed a response to Huntosh's request for a restraining order and a cross-petition for a restraining order against Huntosh. In his response, he did not deny the allegations against him. Rather, he attached a statement of "[j]ustification or [e]xcuse," stating that he had known Huntosh and Ellen for approximately five years and he performed odd jobs at Ellen's properties. On the day of the altercation, he had been spending time with Huntosh in Huntosh's apartment when Huntosh "proceeded to begin smoking meth." Laney-Herdt stated that he "[had] dealt with [Huntosh's] drug abuse for years and [had asked] him over and over . . . to please not use the illicit drugs he used regularly." Laney-Herdt became sick from the smoke and left.
Ellen had contacted Laney-Herdt earlier regarding setting up her phones; he went to her house "to discuss the situation." "With the approval and urging of [Huntosh's] mother Ellen, I looked up and called a rehab facility and was guided through the process by [J.L.] [telephone number]. He gave us some numbers to call when [Huntosh] says yes he wants help and that would accept his insurance which Ellen provided me to provide to [J.L.] (Alan Huntosh: [insurance identification number])."
Laney-Herdt stated that he and Ellen then went to Huntosh's apartment, where Ellen used her keys to let Laney-Herdt into the apartment. "At this point, [they] told [Huntosh] that [they] were doing an intervention and that he was going to have to go to a rehab specialist." Huntosh "began getting violent and loud, cursing at his mother and me, telling us that he would never forgive us and thrashing around the apartment." Huntosh then attacked Laney-Herdt from behind. Laney-Herdt wrestled Huntosh until he was able to leave the apartment. Huntosh also left the premises. Ellen then let Laney-Herdt use her phone to call the police. Ellen asked Laney-Herdt to change the locks "so that [Huntosh] would not be able to return to the apartment without contacting her and the hopes [sic] thereafter being that he would submit to treatment." Police arrived while Laney-Herdt was changing the locks. Laney-Herdt spoke with police and told them he did not want to press charges because Huntosh was his friend; he just wanted him to "get help for the drug use."
Laney-Herdt further stated that, a few days later, he started receiving harassing phone calls from a friend of Huntosh's. Another of Huntosh's friends came to Laney-Herdt's home asking for Huntosh's keys, which Laney-Herdt said he did not have. Laney-Herdt asked the man to leave his property and called the police when he would not. When police responded, they questioned the man, who said his friend in the car had given him directions to Laney-Herdt's home; the friend in the car was Huntosh. Laney-Herdt also stated that he received "harassing messages from [Huntosh] via [F]acebook . . . ."
Laney-Herdt concluded, "[m]y wife is concerned about the safety of us and our small children. [Huntosh] . . . lives near our daughter's school and makes the whole situation that much more stressful."
3. Laney-Herdt's Cross-petition
Laney-Herdt filed a cross-petition for a restraining order against Huntosh, stating that he "fear[s] for [his] family's immediate safety." He requested protection for himself, his fiancee, and his four- and six-year-old children. In a supporting declaration executed under penalty of perjury, he stated that on June 21, he was attacked by Huntosh "after attempting to aid [his] drug addiction through an intervention." He further stated that Huntosh's friend came to his home demanding Huntosh's keys on June 23. On July 10, Huntosh left him a message stating, "I'm gonna get you to the full extent of the law." Laney-Herdt stated that Huntosh "knows where my daughter goes to school and has stalked her school before." He stated that he is so afraid for his and his family's safety that he has "experienced severe emotional distress and high blood pressure."
Laney-Herdt requested a temporary restraining order pending the hearing on the cross-petitions, but his request was denied. A note from the judicial officer indicated that a temporary restraining order was already in place and that "both parties must stop communicating with each other until the next hearing date."
4. Restraining Order
The parties appeared at a hearing on the cross-petitions for restraining orders. No transcript from the hearing appears in the record. However, several documents that appear to have been offered as exhibits at the hearing were included in the transcript or lodged with the court. One of these documents, marked Exhibit 1, reflects a negative drug test taken by Huntosh on July 26 at a local medical center. The other purported exhibits reflect incident history reports generated by the San Diego Police Department in response to various calls to the police. One incident history report marked Exhibit B and dated June 23 contains an entry that states, "SUBJ TRYING TO BREAK IN//HC" and reflects Laney-Herdt's home address. The report further states "RP calling to say male broke into house/ and head butted RP . . . . " Portions of other text appear to be redacted.
In his notice designating the record on appeal, Laney-Herdt elected to proceed without a record of oral proceedings in the superior court. There is no indication Laney-Herdt attempted to procure an agreed or settled statement. (Cal. Rules of Court, rules 8.134, 8.137, 8.120(b).) It is unclear from the record whether the proceedings were transcribed. Neither Laney-Herdt nor Huntosh requested a fee waiver in connection with the proceedings below.
We grant Laney-Herdt's unopposed motion to lodge Exhibit 1, drug test results, but note that on this limited record, we cannot discern whether this or any of the purported exhibits were admitted as evidence.
Another incident history report marked Exhibit C and dated July 9 contains an entry that states, "RP's frnd [sic] has been calling RP and having friends call RP to harass RP, now harassing RP on Facebook, PD responded to RP's addr[ess] on 062317, no report taken. . . ." The incident history report reflects Laney-Herdt's home address.
Finally, an incident history report marked Exhibit D and dated July 12 contains an entry that states, "RP recv'ing harassing calls from friend. Just served TRO against RP, then called RP twice today // RP did not ans calls, upset subj calling RP knowing that could get RP in trouble/RP will call det D/W [sic]." Again, the incident history report reflects Laney-Herdt's home address.
No police report from June 21, the day of the initial altercation, appears in the record.
After the hearing, the court entered a five-year restraining order prohibiting Laney-Herdt from contacting or harassing Huntosh and forbidding him from coming within 100 yards of Huntosh, his home, workplace, or vehicle. (§ 527.6, subds. (b)(6), (i).) The restraining order also prohibited Laney-Herdt from possessing firearms or ammunition. (§ 527.6, subd. (u).)
5. Appeal
Laney-Herdt timely appealed, contending the restraining order against him should be vacated because he was the one who was assaulted. He contends that Huntosh's account of events is "likely fabricated" and that Huntosh went to his home "with a cohort and attempted to break in," demonstrating that Huntosh was not afraid of Laney-Herdt and did not feel threatened by him. He claims that the negative drug test is "incomplete and falsified."
In response, Huntosh argues that the trial court determined that clear and convincing evidence justified imposing the restraining order and this determination should not be overturned on appeal. He describes the evidence he claims was offered at the hearing:
"Huntosh had his mother Ellen, [neighbor] Rick G[.] and [H.R.], all witnesses to the events, testify on [his] behalf. [H.R.] testified that [Laney-Herdt] threw her phone and broke the mini blinds and a lamp. [Huntosh's] mother testified that she saw [Laney-Herdt] grab [Huntosh] and lift him up over his head and throw him onto a futon, causing [Huntosh's] head to hit the wall. [Huntosh] is twice the age and half of the size of [Laney-Herdt]. [¶] [Huntosh] brought letters from doctors, friends of the family whom [sic] could not attend to prove that [he] was never abusive to his mom or have [sic] a drug problem."
The referenced letters from Huntosh's doctors and friends also fail to appear in the record.
Huntosh accuses Laney-Herdt of dishonesty and further argues that the "restraining order is important because [Laney-Herdt] physically assaulted and threatened [Huntosh], still has guns in his house, and is a danger and threat to Alan Huntosh."
Laney-Herdt denies that he owns or controls any firearms.
DISCUSSION
"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." (Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1412.) If the requisite elements of unlawful harassment are established "by clear and convincing evidence," then "an order shall issue prohibiting the harassment." (§ 527.6, subd. (i).) "Harassment" is defined 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." (§ 527.6, subd. (b)(3), italics added.)
"Unlawful violence" is further defined under the statute as "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).) A "[c]redible threat of violence" is defined as "a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety or the safety of his or her immediate family, and that serves no legitimate purpose." (§ 527.6, subd. (b)(2).) "Course of conduct," is defined as "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 "course of conduct" must be such as "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).)
If the court finds by "clear and convincing evidence that unlawful harassment exists, an order shall issue prohibiting the harassment." (§ 527.6, subd. (i).) The granting of the injunction itself necessarily implies that the trial court found all the necessary elements of unlawful harassment. (Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1112.)
"We review issuance of a protective order for abuse of discretion, and the factual findings necessary to support the protective order are reviewed for substantial evidence." (Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1226.) "We resolve all conflicts in the evidence in favor of . . . the prevailing party, and indulge all legitimate and reasonable inferences in favor of upholding the trial court's findings. [Citation.] Declarations favoring the prevailing party's contentions are deemed to establish the facts stated in the declarations, as well as all facts which may reasonably be inferred from the declarations; if there is a substantial conflict in the facts included in the competing declarations, the trial court's determination of the controverted facts will not be disturbed on appeal." (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137-1138.) Whether the facts are legally sufficient to constitute civil harassment within the meaning of section 527.6 is a question of law reviewed de novo. (R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188.)
Having reviewed the record on appeal, we conclude Laney-Herdt has not established he is entitled to relief. We reject Laney-Herdt's challenges to the veracity of Huntosh's statements and the reliability of the drug test results. We also reject his claims that Huntosh failed to meet his burden of proof and that "[a]ll of the evidence supports a finding that Huntosh . . . assaulted Mr. Laney and continues to harass and stalk Mr. Laney to this day."
The trial court took testimony and evidence at the hearing and thereafter imposed a restraining order against Laney-Herdt, in favor of Huntosh. We can infer from this order that the trial court, weighing the evidence presented at the hearing, determined that Huntosh's account of the events was more credible than Laney-Herdt's. We must defer to the trial court's determinations of credibility. (Santa Clara County Correctional Peace Officers' Assn., Inc. v. County of Santa Clara (2014) 224 Cal.App.4th 1016, 1027.)
The record on appeal—albeit limited—supports the trial court's determination. Huntosh's account of events was largely consistent with the statement his mother made to the police. In contrast, Laney-Herdt's various accounts demonstrate inconsistencies. For example, Laney-Herdt variously described the purported June 23 incident, when Huntosh and a friend went to Laney-Herdt's home seeking Huntosh's keys, as an attempted "break in," "banging and threatening," and "banging on my front door . . . [and] inform[ing] [him] that . . . he wanted [Huntosh's] keys."
"[Appellant] had a duty to provide this court with an adequate record on appeal." (In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 498.) Failure to do so is an independent basis to dismiss an appeal. (Ibid.; see also Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [" 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.' "].)
We find that substantial evidence supports the trial court's implied finding that Laney-Herdt unlawfully harassed Huntosh. According to Huntosh's testimony, which we must credit on appeal, Laney-Herdt went to his home and refused to leave. Laney-Herdt placed Huntosh in a headlock, dragged him inside, and threw him from the headlock into a table, which broke the table. After Huntosh stood up and asked Laney-Herdt to stop, Laney-Herdt pushed him into a wall. Penal Code section 242 defines a battery as "any willful and unlawful use of force or violence upon the person of another." California courts have recognized that a slight touching may constitute a battery, if the touching is done in a rude or angry way. (People v. Hernandez (2011) 200 Cal.App.4th 1000, 1006.) "The force at issue . . . need not be violent or severe, and it need not cause bodily harm or pain." (Ibid.) Applying these principles here, Huntosh's testimony that Laney-Herdt attacked him in this manner without any sufficient provocation or justification was sufficient to support the trial court's finding of harassment. (See § 527.6, subd. (b) [harassment includes "unlawful violence," which includes "any assault or battery"].)
Because there was substantial evidence to support a finding that Laney-Herdt engaged in "unlawful violence," we need not address whether he also made credible threats of violence or engaged in a course of harassing conduct within the meaning of section 527.6, subdivisions (b)(2) and (b)(3).
We similarly find that the evidence supports the trial court's implied finding that the harassment is likely to recur in the future, justifying imposition of the restraining order. (Harris v. Stampolis (2016) 248 Cal.App.4th 484, 499 (Harris) ["An injunction restraining future conduct is only authorized when it appears that harassment is likely to recur in the future."].) "Absent indication to the contrary, we must presume that the trial court followed the applicable law and understood that it was required to find that future harm was reasonably probable. [Citations.] Given that it issued an injunction, we may infer that the trial court impliedly found that it was reasonably probable that future harassment would occur." (Id. at pp. 500-501.) The court here could properly determine that the circumstances surrounding Laney-Herdt's unprovoked attack of Huntosh in his own home support a conclusion that future harm is probable. (See Russell v. Douvan (2003) 112 Cal.App.4th 399, 404 ["There may well be cases in which the circumstances surrounding a single act of violence may support a conclusion that future harm is highly probable."].) That Laney-Herdt performs odd jobs for Huntosh's mother in the apartment complex where Huntosh lives and that Huntosh lives near Laney-Herdt's child's school are additional facts that indicate Huntosh and Laney-Herdt may have future interactions and support the implied finding regarding the likelihood of future harm absent a restraining order. (See Harris, supra, 248 Cal.App.4th at p. 501 [likelihood that respondent would be on campus where petitioner worked supported trial court's implied finding that future harassment was reasonably probable].)
DISPOSITION
The civil harassment restraining order is affirmed. Huntosh is entitled to costs on appeal.
GUERRERO, J. WE CONCUR: HALLER, Acting P. J. IRION, J.