Opinion
A130306 A130308
01-12-2012
ANDREA LLOYD, Plaintiff and Respondent, v. NINA HARDESTY aka NINA WAX, Plaintiff and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County
Super. Ct. No. RG-10-524933 &
RG-10-529590)
These consolidated appeals arise out of an acrimonious neighbor dispute between Nina Hardesty aka Nina Wax (Wax) and Andrea Lloyd (Lloyd). Lloyd petitioned the trial court for a restraining order under Code of Civil Procedure section 527.6, claiming, among other things, that Wax harassed her and her teenage daughter due to their race. Wax opposed the petition and cross-complained for a restraining order against Lloyd. In ruling in favor of Lloyd and against Wax, the trial court purported to enter a non-CLETS restraining order. Although Wax raises numerous claims of error, we do not reach them, as we conclude the trial court acted in excess of its jurisdiction when it purported to enter an order that was beyond the scope of the power conferred by section 527.6. Thus, we reverse and remand for compliance with the statutory precepts set forth in section 527.6.
All further undesignated statutory references are to Code of Civil Procedure.
CLETS is an acronym for the California Law Enforcement Telecommunications System maintained by the Department of Justice. (Fam. Code, § 6380, subd. (a); Gov. Code, § 15151 et seq.) CLETS collects criminal history and domestic violence information. (Fam. Code, § 6380, subd. (a); People v. Martinez (2000) 22 Cal.4th 106, 113, 126-127.) The system is used exclusively for official business of government agencies, primarily law enforcement agencies. (Gov. Code, §§ 15151, 15153, 15163.)
I. BACKGROUND
The parties live in adjacent residences on a street in Oakland. Tensions between them have arisen, in part, from Wax's claim that Lloyd permits her teenage daughter and her daughter's friends to play in the backyard in a manner that infringes on the quiet enjoyment of her property.
A. Initial Proceedings
In July 2010, Lloyd petitioned for a civil restraining order (§ 527.6), prohibiting Wax from harassing her or her daughter. In support of this petition, Lloyd averred Wax verbally abused her and her daughter on a "daily basis," and that "since July 4, 2010 we have been called racial slurs and physically abuse[d] by [Wax] using [a] water hose wetting us and taking photos of us." Elsewhere in the petition, Lloyd averred that Wax threatened "to have [the] KKK get me."
The court granted a temporary restraining order and set the matter for a hearing. Wax opposed the petition and also sought her own restraining order against Lloyd. At the hearing, the court considered the respective requests of Lloyd, who appeared in propria persona, and Wax, who was represented by counsel.
Wax fails to include her petition requesting a restraining order in the record.
B. Evidence at Hearing
At the hearing, Lloyd testified that a week after she had moved into her apartment, Wax threw trash in front of Lloyd's building and said, " 'Tired of niggers in a neighborhood throwing trash in the street. I'm going to report it.' " When Lloyd asked Wax to pick up the trash, Wax picked it up and put it back in her own yard. According to Lloyd, Wax then followed Lloyd and her daughter to the bus stop, which was six blocks away.
Lloyd testified that after the trash incident, Wax complained about Lloyd and her daughter using an inflatable swimming pool. Lloyd stated that Wax had complained to the owner of Lloyd's building for the "whole two weeks the pool was up . . . ." Wax complained that Lloyd and her daughter were making too much noise and that they should quiet down, move the pool, or go in the house.
After the pool was surreptitiously popped, Lloyd's brother brought over a trampoline. Lloyd testified that when her daughter played on the trampoline, Wax used a hose to spray water on her daughter through the fence. When Lloyd asked Wax to stop, Wax told her to "shut up" and that she had called the police. According to Lloyd, Wax falsely told the police that Lloyd had come into her yard and "jumped on her," and that Lloyd had caused the children to vandalize her fence and pull up her flowerbed. Lloyd explained that "[w]hen the police came, they found nothing of the sort."
Lloyd further testified that Wax: "[T]hreatened to have me killed, saying the KKK would come and kill me, that they owned the neighborhood and the block . . . . [¶] She continued to turn the water hose on my daughter. She's also called me fat, ugly, and nigger[]; and [] told me that black people have no business coming out, and that I need to stay in my house." Also, on several occasions, Wax had been seen taking pictures of Lloyd and her daughter.
Wax testified that she had been a civil rights worker in Mississippi for three months in 1965, where she helped African Americans register to vote. Although Wax was no longer in that line of work, she had been involved in "progressive movements[,] such as changing the rent laws in Oakland to freeze the rents at 3 percent."
Wax did not recall having any type of altercation with Lloyd in front of Lloyd's residence approximately a week after Lloyd had moved in. Wax denied that the trash incident ever occurred, adding: "I strongly deny that I threw trash in front of her residence. And I strongly deny that I followed her. And I strongly deny that I made racist statements."
Wax testified that the first time she had any communication with Lloyd it was about the trampoline. Wax explained that she could not see what the noise was or who was making it due to the height of the fence, so she asked whoever it was to keep the noise down. Wax recalled that on July 3, 2010, she heard children screaming on the trampoline. When she asked Lloyd to have the children quiet down, Lloyd "became rather belligerent." According to Wax, Lloyd pushed her way through the gate that separates the properties, came into Wax's yard, and attempted to physically assault her. Wax reported the incident to the police.
Wax recalled another incident where a female, teenage guest of Lloyd tried to break Wax's fence by throwing her more than 200-pound body weight at the fence. Wax believed that Lloyd was present during this incident.
Wax had been living at her residence for more than 13 years. She was a home alert captain for the Neighborhood Crime Prevention Council. As part of her duties, she helps her neighbors file reports with the police department. At times, Wax has had to report some of her neighbors to the police department regarding various criminal activities. Wax explained that her role on the council has caused problems with some of her neighbors, including Lloyd. For example, on July 15, 2010, Lloyd called the police when Wax's partner, Michael Hardesty, was doing some yard work on their property.
Wax testified that it was possible for water to seep through the fence when she waters her rose bushes. However, she was positive that she never sprayed any water over the fence.
In her opening brief, Wax refers to several more incidents in which she was the victim of harassment. However, as indicated, her restraining order petition is not in the record. Rather, Wax appears to recite the facts from her answer to Lloyd's petition. In any event, these incidents appear to have been perpetrated by another family in the neighborhood, who Wax claims have an axe to grind with her and who have befriended Lloyd.
C. Order After Hearing
In its October 20, 2010, "Order After Hearing," the trial court found that Lloyd was entitled to "an order, but not one [] under the [CLETS] provision of the law." In this order, the trial court found that: "Wax has inappropriately harassed []Lloyd regarding her use and her daughter's use of their residential property. Such harassment must stop and it is ordered to stop immediately." In so ruling, the trial court issued the following restraints: (1) Wax "shall not make direct contact with [] Lloyd under any circumstances or conditions regarding [] Lloyd's daughter and the use of the property at [] Lloyd's residence unless done by written instrument"; (2) Wax "may not water her plants so as to cause any water to spill over on to the property where [] Lloyd resides"; (3) Wax "may not follow [] Lloyd or her daughter to any location"; (4) Wax "may not use terms such as 'nigger,' while in earshot of [] Lloyd"; and (5) Wax "shall not refer to the 'KKK,' under any circumstances, whether she is speaking directly to [] Lloyd or musing to herself, when within earshot of [] Lloyd or her daughter." The court found that the "use of such terms under these circumstances is not protected under the First Amendment or any other provision of the law."
The court denied Wax's petition, finding it to be without merit. Yet, the court further ruled as follows: "As to the restriction of the use of [] any toy or contraption that may be supplied to the daughter of [] Lloyd, such toy or contraption must be used appropriately, taking into consideration the noise attendant to such use."
II. DISCUSSION
Section 527.6 permits a person who has suffered harassment to seek injunctive relief. (Nora v. Kaddo (2004) 116 Cal.App.4th 1026, 1028; Russell v. Douvan (2003) 112 Cal.App.4th 399, 401.) " 'If the judge finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment. An injunction issued pursuant to this section shall have a duration of not more than three years.' " (§ 527.6, subd. (j)(1) & (2).) Any willful disobedience of such an injunction is punishable as a misdemeanor. (§ 527.6, subd. (s); Pen. Code, § 273.6.)
Section 527.6 was revised effective January 1, 2012. The substance remains the same as the section which was in effect as of 2010.
Section 527.6, subdivision (v)(1), provides that the Judicial Council "shall develop forms, instructions, and rules relating to matters governed by this section." Subdivision (v)(2) of section 527.6 further provides that harassment orders "shall be issued on forms adopted by the Judicial Council of California and that have been approved by the Department of Justice . . . . However, the fact that an order issued by a court pursuant to this section was not issued on forms adopted by the Judicial Council and approved by the Department of Justice shall not, in and of itself, make the order unenforceable."
Here, the trial court's order was not issued on the mandatory Judicial Council form. (See § 527.6, subd. (v)(1); Cal. Rules of Court, rule 1.51(a); West's Cal. Judicial Council Forms, Vol. 1, Civil Harassment Restraining Order After Hearing (CLETS-CHO), No. CH-130 (rev. Jan.1, 2012).) However, as recognized in section 527.6, subdivision (v)(2), this failure, in and of itself, will not make the order unenforceable provided it is otherwise legally sufficient. As we shall explain, the trial court's order cannot stand as it is not legally sufficient.
This form replaced form CH-140 which contained similar language which was in effect 2010.
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In the context of civil harassment, the need for immediate protection of an individual's right to pursue safety, happiness, and privacy as guaranteed by the California Constitution is of paramount importance. (See Grant v. Clampitt (1997) 56 Cal.App.4th 586, 591.) Accordingly, section 527.6 was enacted to provide an expedited procedure for preventing harassment (see Byers v. Cathcart (1997) 57 Cal.App.4th 805, 811), which 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)). Implicit in preventing such conduct is the need for law enforcement involvement.
The importance of law enforcement participation is reflected in the mandatory Judicial Council form for civil harassment, which is entitled "Civil Harassment Restraining Order After Hearing" (CLETS-CHO). (See West's Cal. Judicial Council Forms, Vol. 1, Civil Harassment Restraining Order After Hearing (CLETS-CHO), No. CH-130 (rev. Jan. 1, 2012).) Not only does the form reference "CLETS" in its title, it contains a separate section entitled, "Instructions for Law Enforcement," which provides in relevant part as follows: "This Order is enforceable by any law enforcement agency that has received the Order, is shown a copy of the Order, or has verified its existence on the California Restraining and Protective Order System (CARPOS). If the law enforcement agency has not received proof of service on the restrained person, and the restrained person was not present at the court hearing, the agency must advise the restrained person of the terms of the Order and then must enforce it. Violations of this Order are subject to criminal penalties." (Id. at p. 4.) Elsewhere in the Judicial Council form, the protected person is advised that "you or your lawyer should deliver a copy of the Order" to the applicable law enforcement agencies listed therein. (Id. at p. 3.)
California Rules of Court, rule 1.51(a), regarding CLETS, further provides, in relevant part: " (a) A person requesting protective orders under . . . section 527.6 . . . must submit to the court with the request a completed Confidential CLETS Information form. [¶] . . . [¶] (e)(1) When a Confidential CLETS Information form is submitted to court, the court, if a temporary restraining order or order after hearing is entered, may: [¶] (A) Transmit the form to a law enforcement agency for entry into CLETS and not retain any copy; or [¶] (B) Enter the information on the form into CLETS itself and promptly destroy the form or delete it from its records."
The inescapable conclusion from the Judicial Council form and the rules of court is that law enforcement involvement is a crucial component of a civil harassment order issued under section 527.6. However, the trial court's order in the instant case provides for no such enforcement. Our review is made especially difficult by the trial court's failure to provide any explanation or authority for its conclusion that Lloyd was entitled to a purported non-CLETS order.
"Where, as here, a trial court is not explicitly required by law to state reasons for the decision rendered, the integrity of adjudication does not necessarily require an explanation; but that certainly does not mean a court should decline to provide any reasons for a ruling. 'By and large it seems clear that the fairness and effectiveness of adjudication are promoted by reasoned opinions. Without such opinions the parties have to take it on faith that their participation in the decision has been real, that the arbiter has in fact understood and taken into account their proofs and arguments. A less obvious point is that, where a decision enters into some continuing relationship, if no reasons are given the parties will almost inevitably guess at reasons and act accordingly.' (Fuller, The Forms and Limits of Adjudication (1978) 92 Harv. L.Rev. 353, 388.)" (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 335.)
It is possible the trial court may have ruled as it did for some other reason, but the conclusion the parties and other interested persons will most likely draw from the non-CLETS order is that the order is not enforceable by the police. Further, the order leaves unanswered whether its violation is a misdemeanor (§ 527.6, subd. (s); Pen. Code, § 273.6) or—because it is a non-CLETS order—it is enforceable only in a civil proceeding. The order also appears to be inconsistent. It limits the use of "any toy or contraption" supplied to Lloyd's daughter, requiring that any such item be "used appropriately, taking into consideration the noise attendant to such use." Elsewhere in the order, however, the trial court expressly refuses to issue any restraints against Lloyd, and denies Wax's petition for lacking merit. The inference is that the trial court decided that something akin to a mutual restraining order was an expedient way to protect Lloyd and mollify Wax without getting the police involved.
We write with an eye toward the role of the courts in our community. While we cannot know what actually transpired between Wax and Lloyd, we do know that mutual restraining orders are disfavored as they " 'create difficult enforcement problems' because the police often do not know whom to arrest if there is a subsequent altercation and may end up arresting both parties or neither party." (Monterroso v. Moran (2006) 135 Cal.App.4th 732, 738 [finding court acts in excess of jurisdiction by issuing a mutual restraining order under Family Code section 6305 in absence of requisite detailed findings].) Here, the trial court's order is especially problematic in that it is unclear how it would ever be enforced, let alone against whom it could be enforced.
The trial court's order also creates various compliance problems as it is both vague and overbroad regarding the prohibited acts. For example, prohibiting Wax from watering her plants so as to not "cause any water to spill over on to" Lloyd's property is so generic that Wax would likely have to guess at the prohibited conduct and act accordingly. (See Evans v. Evans (2008) 162 Cal.App.4th 1157, 1167 [injunction vague for failing to define persons protected and conduct prohibited].) Similarly, the provision that Wax "not follow [] Lloyd or her daughter to any location" is categorically overbroad, as there is no delineation with respect to place or distance. (See Madsen v. Women's Health Center, Inc. (1994) 512 U.S. 753, 775-776 [300-foot no-approach zone swept more broadly than necessary].) For example, it could prohibit Wax from walking to a bus stop if Lloyd is already there or en route. Moreover, the restraint on Wax's speech is also too vague insofar as it limits Wax's ability to utter certain phrases within "earshot" of Lloyd and her daughter. (See Evans v. Evans, supra, 162 Cal.App.4th at p. 1167.)
In sum, we conclude that the trial court's inherent power does not encompass an order that is beyond the scope of section 527.6. Under the circumstances, it is appropriate to remand this case so that the trial court can utilize the proper Judicial Council form and thereby make a clear record of the source and scope of the relief that has been granted in this case.
In doing so, we remind the trial court it must find by clear and convincing evidence—that is finding a high probability (In re Angelia P. (1981) 28 Cal.3d 908, 919)—that unlawful harassment exists.
III. DISPOSITION
The trial court's October 20, 2010, "Order After Hearing" is reversed, and the matter is remanded for proceedings consistent with this opinion. Wax shall bear her own costs on appeal.
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RIVERA, J.
We concur:
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RUVOLO, P. J.
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SEPULVEDA, J.