Opinion
D072383
09-24-2018
CHRISTOPHER LEAHY, Plaintiff and Respondent, v. JEFFREY ROGER PETERSON, Defendant and Appellant.
Jeffrey Roger Peterson, in pro. per., for Defendant and Appellant. Mara E. Elliott, City Attorney, Sanna Singer, Assistant City Attorney, and William Gersten, Deputy City Attorney, for Plaintiff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2014-00009193-CU-HR-CTL) APPEAL from an order of the Superior Court of San Diego County, Tamila Ipema, Judge. Affirmed. Jeffrey Roger Peterson, in pro. per., for Defendant and Appellant. Mara E. Elliott, City Attorney, Sanna Singer, Assistant City Attorney, and William Gersten, Deputy City Attorney, for Plaintiff and Respondent.
After being convicted of stalking a woman, P.D., and serving a jail sentence for that crime, Jeffrey Roger Peterson began stalking and harassing Christopher Leahy, the San Diego police officer who arrested him. In 2014 the superior court granted Leahy's request for a civil harassment restraining order against Peterson, which would expire in April 2017.
This appeal is from an order renewing that restraining order for another five years. Peterson contends the renewed restraining order should be reversed because (1) the trial court impermissibly restricted his cross-examination of Leahy, (2) the court improperly "automatically renewed" the injunction, and (3) the court was biased. We reject these assertions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The 2014 Restraining Order and Appeal
In 2010 Leahy investigated a report that Peterson had been stalking P.D. Peterson and P.D. were never romantically involved; however, Peterson traveled thousands of miles over three and a half years in hopes of having a relationship with her. P.D. was a professional basketball player, and Leahy's investigation showed that Peterson stayed at the same hotels as her team. P.D. received over 100 unwanted e-mails from Peterson.
P.D. made it "unmistakably clear she ha[d] no desire to have any kind of relationship with Peterson." When P.D. lived in North Carolina, she obtained court orders prohibiting Peterson from contacting her.
In February 2010 Peterson traveled from his home in Illinois to San Diego after he discovered that P.D. had moved to San Diego. Peterson attended a woman's basketball game at a university in San Diego. When P.D. saw Peterson in the stands, she notified police, who asked Peterson to leave the campus. Peterson admitted he has no connections to San Diego and traveled 1,500 miles to see P.D. Subsequently, Leahy arrested Peterson, who was later convicted of stalking P.D. The court ordered Peterson to stay away from San Diego because he had no reason to be in San Diego other than to "annoy, stalk, and harass" P.D., who was in sustained fear for her safety.
Peterson believes that Leahy withheld, fabricated, and altered evidence in Peterson's criminal trial. After his conviction, Peterson filed complaints against Leahy with the San Diego Police Department. Peterson also sent Leahy taunting e-mails with his flight itinerary to San Diego, daring Leahy to arrest him for violating the stay-away order. In October 2013 police arrested Peterson for violating that order when he arrived at the San Diego airport. Peterson spent 25 days in jail.
In 2014 Peterson sent Leahy e-mails stating that Leahy's "unethical misconduct" ruined his life and that Peterson was on a mission to prove his innocence. In March 2014, while Leahy and his wife were shopping in San Diego, they encountered Peterson outside a store. Leahy recognized Peterson, but initially could not place a name to his face. When Leahy said, "Hey, you look familiar," Peterson replied, "Come on Chris, you remember me." Leahy called police, fearing Peterson had been stalking his family. Police discovered recent photographs of Leahy and his wife on Peterson's computer.
Since that encounter with Peterson, Leahy and his wife "live in sustained fear" that Peterson, who Leahy describes as "the most unsettled and obsessive person I have ever met in my career," intends to harm him or his family. As a result of Peterson's harassment, Leahy moved from his home, enhanced security at his new residence, and now carries a gun even when off duty.
In April 2014 Leahy filed a request for a civil harassment restraining order against Peterson. After a hearing in which Leahy and Peterson testified, the court granted a three-year restraining order.
Peterson filed a motion for reconsideration, which the court denied in June 2014. In August 2014 Peterson filed a "motion to set aside default and default judgment." The court denied that motion, stating "the Court has already ruled on two previous motions requesting the same relief."
In September 2014 Peterson filed a notice of appeal from the order denying his motion for reconsideration. However, this court dismissed Peterson's appeal after he failed to file an opening brief. After the remittitur issued, Peterson filed what was deemed to be a motion to recall the remittitur and reinstate the appeal, which this court denied.
B. Renewal of Restraining Order
In February 2017 Leahy filed a request to renew the 2014 restraining order for an additional five years, supported by a declaration recounting the events leading to the first restraining order. Leahy's declaration states that Peterson has "filed a litany of grievances" with the court "so he can claim to have a legitimate reason for continuing to travel to San Diego, trips which are financed by his enabling parents." Leahy's declaration states, "Peterson blames me for all of his life's problems and I fear his frustration and obsession could culminate into a plan to hurt or harm me and my wife."
William Gersten, a deputy city attorney, filed a declaration in support of Leahy's petition. Among other things, Gersten's declaration states that after Peterson's criminal conviction for stalking, Peterson "continued his barrage of filing motions" in that criminal case, including two motions to compel release of discovery and a motion to "Cease Unauthorized Access to E-mail Accounts." Gersten states, "Peterson continues to fixate and obsess on this matter and is unable to move on with his life." Gersten's declaration states that Peterson resides in Illinois and, therefore, "there physically is no issue with Mr. Peterson staying more than 100 yards away from" Leahy and his wife.
Peterson filed a 50-page response. Peterson states his "new life's work" is to expose abuse of power between "the Police Department, the City Attorney and the court in the City of San Diego." Peterson asserts that the "main issue is credibility," and he is "far more credible" than Leahy. He states that Leahy filed the renewal application "in retaliation" against Peterson, who was falsely arrested. Peterson asserts that Leahy is "the harasser" who "made false statements to the court, falsified reports, sensationalized the history between [Peterson] and [P.D.] and manipulated [P.D.] as a witness." Peterson states that he "filed a request for an expungement related to the [P.D.] case which was recently granted" and that Leahy's assertions about his relationship with P.D. are false. Further, Peterson contends that his encounter with Leahy in March 2014 was merely a "coincidence," and Leahy "sat down next to me on purpose with the intent to accuse me of stalking him." Peterson states that granting the restraining order "would be prejudicial against me as it will again validate the San Diego Police Department's continual harassment of me . . . ."
In February 2017 the court granted Peterson's request for a 30-day continuance to retain an attorney. However, remaining self-represented, Peterson filed 35 questions for the court to ask Leahy at the hearing. Twenty-eight of these questions pertained to Peterson's conviction for stalking P.D., as follows:
"1. Where did you get the information that [Peterson's] trips to San Diego were financed by his enabling parents?
"2. How did you learn that [Peterson] stayed at the same hotels as [P.D.'s] teams in Europe?
"3. Was it from [P.D.] herself?
"4. Can you verify that [P.D.] said this?
"5. Did you coach [P.D.] to testify that [Peterson] followed her from country to country?
"6. Can you now acknowledge it would have been impossible for [Peterson] to have stayed at the same hotels as [P.D.'s] teams as he was never in the country where she played?
"7. Can you now acknowledge that the evidence clearly shows that [Peterson] and [P.D.'s] travels in Europe were a mutual agreement?
"8. Is it fair to even say that [P.D.] invited [Peterson] to travel with her?
"9. You stated that '[Peterson] filed false internal complaints,' what part of [Peterson's] complaint, dated November 21, 2011, is false?
"10. Did you make false statements in your report dated February 19, 2010?
"11. Did you give your opinion in the report instead of just reporting the facts?
"12. Did you testify during the trial in the [P.D.] case that [Peterson] came to San Diego with 'no permanent residence lined up'?
"13. Did [Peterson] give you an address in your interview with him on February 17, 2010?
"14. Did you include that address in your report?
"15. Have you seen the e-mail on February 13, 2010 (the day [Peterson] came to San Diego) to Jeff Peterson from [S.G.] about showing the house on . . . Street—the same address that [Peterson] verbally gave you in his interview on February 17, 2010?
"16. Why did you report that [Peterson] moved to San Diego with no permanent residence lined up when he gave you the address where he planned on residing?
"17. Is there an exaggerated stalking narrative attached to [Peterson]?
"18. Why was it necessary to falsify a report and testify falsely that [Peterson] traveled to San Diego with no permanent residence lined up?
"19. Did you testify (see page 463) that [P.D.'s] interview and Jeff Peterson's interview were both recorded?
"20. When would you typically turn these recordings over to the City Attorney?
"21. Why was [Peterson's] interview not turned over until the middle of the trial which was over [eight] months after you conducted the interview?
"22. How many times as [sic] this happened in your career?
"23. Why did you not record [P.D.'s] interview?
"24. Why did you contact [R.J.]?
"25. Are you aware of the significance and relevance of [R.J.] as a witness?
"26. Did you interview all parties in the [P.D.] case as you told the court on April 18, 2014?
"27. Did you list Lisa as a witness in your report dated February 18, 2010?
"28. Did you report that 'no witnesses were contacted'?"
The remaining questions involved the March 2014 incident where Leahy encountered Peterson outside a store:
"29. How was [Peterson's] statement that the March 29, 2014 encounter was a coincidence proven to be a lie?
"30. Where did you get the information that [Peterson] currently has no family or friends in San Diego?
"31. Are you aware that [Peterson] has family in San Diego?
"32. Have you ever experienced a 'coincidence' (i.e. run into someone you know somewhere without previous coordination)?
"33. Have you taken the time to consider the possibility that [Peterson] did not know where you lived and the encounter on March 29th was indeed a coincidence?
"34. You stated in your declaration that initially you could not place the face to the name when you were seated next to [Peterson], is that correct?
"35. If you did not recognize [Peterson] before sitting down, is it not a 'coincidence' that you would sit on the same bench right next to [Peterson] without knowing it was him?"
Peterson also prepared 16 questions (labeled "interrogatories") for Leahy's wife, each of which also pertains to the March 2014 incident.
After an unreported hearing in which Leahy and Peterson testified, the court renewed the restraining order. Subsequently, Peterson filed a motion for reconsideration, asserting the court deprived him of his right to cross-examine Leahy about whether Peterson stayed at the same hotels as did P.D. when she played basketball overseas. Additionally, asserting that the court had exaggerated the nature of his stalking conviction, Peterson argued he was convicted "for attending a basketball game." After the court denied Peterson's motion for reconsideration, he appealed.
C. Settled Statement Proceedings
Both parties have filed a motion to augment the record. The court grants Leahy's motion to include (1) the order granting Peterson's motion to proceed by settled statement, (2) Peterson's proposed settled statement, (3) the court's settled statement, and (4) the order denying Peterson's motion for reconsideration of settled statement. The court also grants Peterson's motion to augment the record to include (1) Leahy's response to Peterson's proposed settled statement, (2) Leahy's amended response to Peterson's settled statement, (3) Peterson's motion for continuance, and (4) Peterson's motion for reconsideration or petition for rehearing. However, the court denies Peterson's motion with respect to the document entitled: "Motion to Augment Record on Appeal." This court previously denied Peterson's request to augment the record with that document, and he has not shown why that ruling should be reconsidered.
After Peterson appealed, the trial court granted his tardy request to proceed with a settled statement and ordered him to file "a condensed narrative of the oral proceedings that [Peterson] believes necessary for the appeal." However, Peterson's proposed settled statement did not contain a condensed narrative. Instead, Peterson's proposed settled statement stated:
Peterson does not contend on appeal that the trial court erred in failing to provide a court reporter at no charge.
"On March 15, 2017, [Peterson] submitted 'interrogatories' for . . . Leahy and [his wife]. . . . On April 5, 2017, [Peterson] filed a 'Motion for Reconsideration' which again documents that his right to cross-examine the [Leahys] was improperly denied. . . . [¶] On March 27, 2017, the date that the restraining order was 'renewed', [Peterson] specifically asked the [c]ourt to ask [a] question to [the Leahys]. The [c]ourt responded that the issues have already been litigated. This is the appellate issue that will be raised—the denial of [Peterson's] request to cross-examine the witnesses against him. The interrogatories that were submitted included questions related to
[Leahy's] declaration that was dated February 3, 2017 which included a statement that [Peterson] had never seen or heard."
Six days before the hearing on the settled statement, Peterson requested a continuance. Two days later, Peterson stated he no longer needed a continuance and would appear by telephone. However, Peterson did not appear by telephone. After waiting "a significant amount of time," the court conducted the hearing in his absence. The court stated that Peterson's proposed settled statement "does not accurately reflect what transpired at the March 27, 2017, hearing." The court further explained that at the hearing "[Peterson] was argumentative and was trying to re-litigate the original request for a restraining order. [Peterson] requested to examine [Leahy] on the witness stand, which the [c]ourt allowed. However, during [Peterson's] cross-examination of [Leahy], [Peterson], over the [c]ourt's instructions, continued to ask [Leahy] questions regarding the original restraining order. The [c]ourt again informed [Peterson] that she was not hearing the matter again and that she was only making a decision as to the [r]equest for [r]enewal of the restraining order. [Peterson] failed to question [Leahy] within the appropriate scope of the hearing and the [c]ourt concluded the examination portion of the hearing. The [c]ourt then found that [Leahy] had met his burden of proof . . . ."
A week later, Peterson sought reconsideration of the order rejecting his proposed settled statement. Peterson explained he failed to appear by telephone because he was told that morning there was an $86 fee, and when he tried to call the trial department directly, the phone lines "were closed." The court denied Peterson's motion, stating he presented no new or different facts or change in law. Additionally, the court stated, "The court did not agree with [Peterson's] rendition of what occurred during the hearing on the request to renew the restraining order filed by [Leahy]. The court's recollection as well as [Leahy's] counsel's recollection of what occurred are very different than [Peterson's]."
DISCUSSION
I. THE COURT DID NOT ABUSE ITS DISCRETION IN RENEWING
THE RESTRAINING ORDER
A. Applicable Legal Principles
1. Initial civil harassment injunction
Code of Civil Procedure section 527.6 provides for expedited injunctive relief to victims of harassment. "The statute enables a person who has suffered harassment—defined by the statute 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'—to 'seek . . . an injunction prohibiting harassment . . . .'" (Cooper v. Bettinger (2015) 242 Cal.App.4th 77, 88 (Cooper).) The statute further provides, "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).)
Undesignated statutory references are to the Code of Civil Procedure.
If the trial court finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment. (§ 527.6, subd. (i).) The granting of the injunction implies that the trial court found "'[the respondent] knowingly and willfully engaged in a course of conduct that seriously alarmed, annoyed or harassed [the petitioner], and that [the petitioner] actually suffered substantial emotional distress.'" (Cooper, supra, 242 Cal.App.4th at pp. 88-89.)
2. Renewal of harassment injunction
An order issued under section 527.6 may have a duration of not more than five years. (§ 527.6, subd. (j)(1).) However, upon a party's request, the order may be renewed for up to another five years. (Ibid.) Renewal is not automatic; "instead the trial court has discretion whether to renew the restraining order and the duration of the restraining order." (Cooper, supra, 242 Cal.App.4th at p. 89.)
The court may renew a restraining order under section 527.6 where there is "a reasonable probability that the defendant's wrongful acts would be repeated in the future." (Cooper, supra, 242 Cal.App.4th at p. 90.) "In deciding to renew a restraining order under section 527.6, the trial court may rely solely on the record in the original case." (Ibid.) This is because section 527.6, subdivision (j)(1) states that the order may be renewed "without a showing of any further harassment since the issuance of the original order." (Cooper, supra, 242 Cal.App.4th at pp. 90-91.)
Peterson, self-represented on appeal, relies on a Missouri case for the proposition that the injunction may be renewed only if the circumstances upon which the initial order is based continue to exist. We reject that argument because this case is governed by section 527.6.
To obtain renewal of an injunction against harassment under section 527.6, it is not necessary to show that further harassment has occurred. "Indeed, it would be 'anomalous to require the protected party to prove further [harassment] occurred in order to justify renewal of [the] original order. If this were the standard, the protected party would have to demonstrate the initial order had proved ineffectual . . . just to obtain an extension of that ineffectual order.'" (Cooper, supra, 242 Cal.App.4th at p. 91.) "[T]he fact a protective order has proved effective is 'a good reason for seeking its renewal.'" (Ibid.)
B. The Standard of Review
"We review issuance of a protective order for abuse of discretion." (Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1226.)
C. The Court Did Not Abuse Its Discretion in Limiting Cross-Examination
Peterson contends that Leahy's renewal application "opened the door" to reexamining the basis for the initial injunction against harassment." Peterson further contends that the trial court should have permitted him "to show that the original order should never have been granted in the first place." Peterson asserts, therefore, that the court prejudicially erred in not requiring Leahy to answer the 35 questions (interrogatories) because the answers would have either provided evidence showing there was no basis for issuing the initial injunction, or would have impeached Leahy's credibility.
The court did not abuse its discretion in precluding Peterson from asking the 35 questions he submitted. The first 28 questions dealt with Leahy's investigation of Peterson's stalking of P.D. The remaining seven questions involved the incident in March 2014 when Peterson confronted Leahy outside a store. The trial court's decision granting the initial restraining order "'necessarily implies" that the court found that Peterson knowingly and willfully engaged in a course of conduct that seriously alarmed, annoyed or harassed Leahy, and that Leahy actually suffered substantial emotional distress. (See Cooper, supra, 242 Cal.App.4th at p. 92.) Similarly, the initial decision "necessarily implies" that the trial court found that Leahy met the clear and convincing standard and that a reasonable person in Leahy's situation would have suffered substantial emotional distress. (Ibid.) Where a protected party seeks a renewal of a restraining order and the restrained party has either failed to appeal—as happened here when Peterson's appeal was dismissed—or has lost on appeal, "the restrained party cannot challenge the findings and evidence underlying that original order nor the validity of that order." (Cooper, supra, 242 Cal.App.4th at p. 92, italics added.) Accordingly, the trial court correctly concluded that Peterson could not "re-litigate the original request for a restraining order" nor cross-examine Leahy "regarding the original restraining order."
Leahy cited Cooper, supra, 242 Cal.App.4th 77 in his respondent's brief. The table of authorities in Peterson's reply brief includes Cooper, but the reply brief itself does not cite or discuss that case.
Disagreeing with this conclusion, Peterson contends the court should have compelled Leahy to answer "[w]here did you get the information that [Peterson's] trips to San Diego were financed by his enabling parents" and "[h]ow did you learn that [Peterson] stayed at the same hotels as [P.D.'s] teams in Europe?" because these questions (and many others) "were specifically derived from . . . Leahy's declaration" in support of renewal of the injunction. Peterson also contends he has already "proven" that he did not follow P.D. to Europe and their travels together were "mutually arranged." He further contends it is "irrefutably false" that he stayed in the same hotels as P.D.'s team. Peterson contends a flight itinerary "proves" he was never in the same country as was P.D. when she played basketball overseas. He asserts this "proves" Leahy's declaration to the contrary is "irrefutably false." However, the record refutes any assertion that the court "automatically" renewed the order prohibiting harassment. The order granting renewal notes that both parties testified. The court expressly considered Peterson's testimony that his misdemeanor stalking conviction has been ordered expunged, although that ruling is apparently on appeal. Moreover, the order states that "[a]fter careful review of the entire record" the court "finds that [Leahy] has met the high burden of proof that is required to renew the restraining order" under section 527.6. In sum, contrary to Peterson's contention, the court heard evidence, considered arguments, applied the appropriate standard of proof, and renewed the restraining order under applicable law.
Leahy's attorney advised the court that the expungement order is on appeal.
E. Judicial Bias
Asserting that Leahy's evidence "has been proven false from the beginning" and that the court unfairly precluded him from offering evidence to corroborate his version of events, Peterson contends the rulings in this case can only be explained as being the result of "clear prejudice" against him. In his reply, Peterson also contends his "so-called 'absence'" at the hearing on the settled statement "shows the massive amount of prejudice against him . . . ." He further contends that the trial court erroneously believed his stalking conviction was a felony, a mistake he contends additionally shows judicial bias.
In the order granting the renewal injunction, the trial court correctly stated that Peterson's conviction was a misdemeanor. --------
However, we decline to reach the merits of this issue because accusations of judicial bias cannot be made for the first time on appeal. (Moulton Niguel Water Dist. v. Columbo (2003) 111 Cal.App.4th 1210, 1218.) Moreover, Peterson has not provided meaningful analysis or argument supporting his claim of judicial bias, including case law holding a claim of judicial bias may be raised for the first time on appeal. This deficiency is an additional ground for finding a forfeiture of his appellate contention. (See Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2.)
In any event, even if the issue was not forfeited, we would reject it on the merits. Peterson cannot demonstrate judicial bias merely by pointing to adverse rulings. (People v. Avila (2009) 46 Cal.4th 680, 696 [trial court's numerous rulings against a party, even when erroneous, do not establish judicial bias].)
DISPOSITION
The order is affirmed. Leahy is awarded costs on appeal.
NARES, Acting P. J. WE CONCUR: IRION, J. DATO, J.