Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County Super. Ct. No. 37-2008-00057959- CU-HR-NC, Martin W. Staven, Judge.
BENKE, Acting P. J.
In this case we affirm the trial court's imposition of an injunction under Code of Civil Procedure section 527.6 preventing defendant and appellant William Calderon Jauregui from harassing plaintiff and respondent Kevin Kutina. The record supports the trial court's conclusion Jauregui made serious threats against Kutina and that they caused serious concern on the part of Kutina. We reject Jauregui's contention that the hearing on the injunction should have been continued or that he was denied due process because of any failure by Kutina to respond to his discovery requests before the hearing on the injunction took place.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
SUMMARY
The record discloses that at some point in 2006 or 2007 Jauregui came to the conclusion Kutina was having an affair with Jauregui's wife and Jauregui began making a series of threatening and harassing phone calls to Kutina and Kutina's wife. In particular, he left messages on Kutina's voice mails, stating: "I'm going to kick your ass." "Dead man walking." "Hey I heard you bought a special toy for me. I hope you have it. You're going to need it asshole." According to Kutina, Jauregui had also attempted to contact his commanding officer in the Marine Corps, where Kutina served in the reserves. Kutina testified that the accusations Jauregui made had caused the Marine Corps to commence an informal investigation of Kutina. Kutina testified that Jauregui had also filed labor board complaints and workers' compensation claims against Kutina's business.
Kutina applied for and received a temporary restraining order under Code of Civil Procedure against Jauregui on August 26, 2008. On September 2, 2008, Jauregui served on Kutina a request for admissions and a subpoena duces tecum.
A hearing on Kutina's application for an injunction was conducted on September 12, 2008. Jauregui appeard in propria persona. Although at the hearing on the injunction Jauregui denied making any threatening phone calls, he advised the court that his wife had admitted having an affair with Kutina and then stated: "There's several options that a man out of control will take: kill the guy and go to jail; beat the hell out of the guy, he'll get up and lick his wounds." Jauregui then added, "I chose, your honor, to take the right steps. I chose to take legal, constitutional action complaints for violation of federal and state laws." In addition to denying making any phone calls, in his defense Jauregui called his brother Angel Jauregui (Angel) as a witness. He asked Angel to repeat what Angel had told Kutina in a telephone call Angel had made from Jauregui's telephone: "He's a coward, piece of shit, and what did he do with my brother's wife. We've had several conversations with Mr. Kutina about that."
At the hearing Jauregui apparently had some initial difficulty in not interrupting the court and counsel. This led the court to admonish Jauregui as follows: "My prediction, Mr. Jauregui, is that soon we'll have a hearing and you won't be involved in it because you don't know when to keep your mouth shut." Contrary to Jauregui's suggestion at oral argument, the trial court's exercise of its inherent authority to control proceedings before it was proper.
During the course of the hearing, Jauregui stated that Kutina had not responded to his request for admissions and subpoena duces tecum. He argued that those documents, including in particular requested phone records, would have shown that he did not make the alleged phone calls. However, Jauregui did not ask for a continuance of the hearing.
The trial court granted Kutina's application for an injunction. The court stated: "First of all, notwithstanding the vehement denials, the court finds by clear and convincing evidence that the defendants, the respondents, did make the threats in question, that they are serious threats that would cause serious concern on the part of anybody receiving them, that there was a course of conduct Mr. William Jauregui has certainly shown by his level of animosity and anger and the way he conducts himself that this is a -- and I'm not saying it shouldn't be, but it seems to be, even for this situation, over the top response."
Kutina had also applied for a separate injunction against Angel. The trial court heard both applications at the same hearing.
DISCUSSION
I
The court in Schraer v. Berkeley Property Owners' Assn. (1989) 207 Cal.App.3d 719, 729-731, summarized the substantive and procedural requirements of section 527.6: "Section 527.6 of the Code of Civil Procedure was enacted 'to protect the individual's right to pursue safety, happiness and privacy as guaranteed by the California Constitution.' [Citation.] The purpose of the statute was to provide expedited injunctive relief to victims of 'harassment.' [Citation.] The statute itself defines harassment as 'a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose. 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 plaintiff.' The statute defines '[c]ourse of conduct' as 'a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose'; and it expressly states that '[c]onstitutionally protected activity is not included within the meaning of 'course of conduct." ' [Citation.]
"The statute sets out a special procedure under which a plaintiff may first obtain a temporary restraining order in accordance with Code of Civil Procedure section 527, subdivision (a). Such a temporary restraining order may remain in effect for no more than 15 days, and may be granted "with or without notice upon an affidavit which, to the satisfaction of the court, shows reasonable proof of harassment of the plaintiff by the defendant, and that great or irreparable harm would result to the plaintiff." [Citation.]
"Within 15 days of the filing of a petition, a hearing must be held. The defendant may file a response explaining, justifying or denying the alleged harassment; or he or she may file a cross-complaint for harassment. 'At the hearing, the judge shall receive such testimony as is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment.' [Citation.] Harassment injunctions are limited to durations of not more than three years. The statute provides for an award of court costs and attorney fees to the prevailing party in any action brought under the statute, and states that '[a]ny willful disobedience' of any temporary restraining order or injunction granted under the statute is punishable as a misdemeanor under Penal Code section 273.6. [Citation.]
"Thus, although the procedures set forth in the harassment statute are expedited, they contain certain important due process safeguards. Most notably, a person charged with harassment is given a full opportunity to present his or her case, with the judge required to receive relevant testimony and to find the existence of harassment by 'clear and convincing' proof of a 'course of conduct' that actually and reasonably caused substantial emotional distress, had 'no legitimate purpose,' and was not a 'constitutionally protected activity.' "
II
The trial court's injunction met the requirements of section 527.6, as outlined by the court in Schraer v Berkeley Property Owners' Assn. After issuing a temporary restraining order, the trial court conducted a hearing within 15 days, and on substantial evidence, adduced after providing appellant with an ample opportunity to provide a defense, concluded that a number of serious threats within the meaning of the statute had been made by Jauregui.
Although not a model of clarity, Jauregui's brief appears to argue that in failing to compel a response to his request for admissions and subpoena duces tecum of telephone records or failing to continue the hearing until the discovery was produced, the trial court denied him due process. There are a number of difficulties with this argument. Appellant's discovery was apparently served by mail on September 2, 2008. Thus at the time of the September 12, 2008 hearing, no response to either the request for admissions or the subpoena duces tecum was due. (See §§ 2033.250, 1985.3, subd. (b)(2).) Moreover, as the court in Schraer v. Berkeley Property Owner's Assn. indicated, section 527.6 provides for an expedited process. The relatively short period of time between issuance of a temporary restraining order and the required hearing on the injunction suggests that the Legislature did not contemplate that parties in a section 527.6 proceeding would have access to the whole gamut of civil discovery procedures. We also note that appellant did not ask for a continuance of the hearing or move to compel discovery responses. Having failed to seek that relief at trial, Jauregui cannot assert that the trial court erred in failing to provide it to him. (See Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 286.)
We do agree with Jauregui that the failure of Kutina to produce at the hearing either the requested telephone records or the recorded messages Kutina asserted Jauregui left, was a matter which the trial court should have considered in determining whether the threatening telephone calls were made. (See Evid. Code, §§ 412, 413.) However, while the trial court was required to give the absence of the requested records some weight, in light of Jauregui's own statements at the hearing, the testimony Jauregui elicited from his brother, and the trial court's observation of Jauregui's demeanor at the hearing, the trial court could nonetheless conclude that there was clear and convincing evidence that the threats were in fact made.
We agree with Jauregui that he had the right to contact both Kutina's commanding officer and to file labor board and workers' compensation complaints. We also agree the trial court could certainly not restrain that activity. Nonetheless, the trial court could consider it as evidence of Jauregui's animus toward Kutina.
We also reject Jauregui's contention Kutina failed to meet his burden of proof with respect to showing Jauregui had engaged in a course of harassing conduct. In particular, the testimony from Jauregui's brother that "[w]e've had several conversations with Mr. Kutina about that" was more than sufficient to establish that a series of threatening calls were made.
Finally, we find no abuse of discretion in the trial court's award of $300 in attorney fees to Kutina for preparing documents for the hearing and $400 in attorney fees for actually appearing at the hearing.
Order affirmed.
WE CONCUR: HUFFMAN, J., IRION, J.