Opinion
E078628
04-06-2023
DENISE LOUISE MAZURKIEWICZ, Plaintiff and Respondent, v. SARA CARTER SHEPARDSON, Defendant and Appellant.
Sara Carter Shepardson, in pro per., and for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. CVPS2200510 James F. Hodgkins, Temporary Judge. (Pursuant to Cal. Const., art VI, § 21.) Affirmed.
Sara Carter Shepardson, in pro per., and for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
SLOUGH ACTING P. J.
The trial judge, Temporary Judge James Hodgkins, entered a civil harassment restraining order under Code of Civil Procedure section 527.6 enjoining Sara Carter Shepardson from contact with Denise Louise Mazurkiewicz, the wife of her former boyfriend. (Code Civ. Proc., § 527.6; unlabeled statutory citations refer to this code.)
Mazurkiewicz sought protection on the grounds Shepardson was following her and engaging in unusual behavior like sending food to her husband through a delivery service. Shepardson denied the allegations, and posited innocent explanations for some of the encounters. The trial judge held a hearing at which both women testified and presented their versions of the events. Shepardson presented documents to the judge consisting mainly of written statements about Mazurkiewicz's conduct unrelated to these events, which the judge said he would consider. Shepardson also told the judge she had a witness to support her version of events. However, the judge ended the hearing without hearing the witness's testimony and imposed a permanent restraining order in favor of Mazurkiewicz effective for three years.
Shepardson argues the trial court denied her a fair hearing by reaching a decision without considering her documentary evidence and without hearing testimony from her witness. Mazurkiewicz has not filed a responsive brief.
We affirm the judgment. The documentary evidence, even if not considered, was irrelevant to the question whether to issue a restraining order as well as to the question of Mazurkiewicz's credibility, so excluding it was not an abuse of discretion and, in any event, was harmless. The record establishes Shepardson had the opportunity to put on a witness but chose not to do so.
I FACTS
There's no doubt that Mazurkiewicz and Shepardson were at odds with each other. Shepardson is Mazurkiewicz's husband's former girlfriend. The husband and Shepardson lived together in the home he and Mazurkiewicz now share, and after the separation, Shepardson lived in the house alone. After a dispute, the husband regained possession as well as a judgment for $21,000.
Both women have long lists of grievances against each other. Relevant to this case, Mazurkiewicz claims Shepardson has been following her and sending things to her home unsolicited. She testified that Shepardson was following her in a truck while driving under the influence. She also reported Shepardson drove past her when she was walking her dogs on one occasion and was hiding in her vehicle near Mazurkiewicz when she was walking downtown at 7:00 o'clock in the morning a week later. She also testified Shepardson sent food to her home using a food delivery service and sent a package to herself at the Mazurkiewicz's address. According to Mazurkiewicz, she knows Shepardson was in possession of a firearm before it was confiscated by police, and she fears that Shepardson is "on a spiral, and she thinks I'm responsible for what's happening." She brought the petition because she's "terrified to go outside, to go for a walk."
Shepardson denied following Mazurkiewicz. She didn't address the first two incidents but denied following her generally and claimed she was simply at a restaurant when Mazurkiewicz saw her vehicle parked downtown. She denied she was hiding in the vehicle. She testified the food was misdelivered because she failed to update her address in her online account and the package was sent by a family member. In other words, the deliveries were mistakes, not incidents of harassment.
Shepardson also presented documents and testimony making separate accusations against Mazurkiewicz, suggesting she had harassed Shepardson and others in separate incidents dating back several years.
After hearing testimony from both parties, the trial judge issued a protective order for three years. He ordered Shepardson "not to harass, intimidate, molest, attack, strike, stalk, threaten, assault . . . hit, abuse, destroy personal property, disturb the peace of the Petitioner. You are not to contact her either directly or indirectly in any way . . . [and] [y]ou must stay at least 100 yards away from her, her home, her job or workplace, and her vehicle. You are not allowed to have a firearm during the three years this is in effect. And you are not to refer to her on social media or post any images of her on social media of any kind."
Shepardson filed a timely notice of appeal.
II ANALYSIS
Shepardson argues the trial judge denied her a fair hearing by failing to take into consideration the evidence she was prepared to present at the hearing. She points out that she provided documents to the judge and said, "I'd like to present my evidence to you." The judge took the documents and said he would review the documents in chambers, but he ruled after hearing testimony from Mazurkiewicz and Shepardson and without leaving the bench.
Shepardson concludes the judge did not consider her documentary evidence. We can confirm he didn't refer to the documents in his ruling. We note the documents in question, which Shepardson has included in the record on appeal, consist of only seven pages. Four of those pages are written witness statements, one is a map, one depicts envelopes Mazurkiewicz sent to Shepardson, and one is a court document showing an Arizona court dismissed a protective order Mazurkiewicz sought against Shepardson. It would not have taken the judge long to take in the information contained in the documents. However, for purposes of this appeal only, we assume (without deciding) that the judge did not consider the documentary evidence, in effect excluding it. We conclude the failure to do so was not an abuse of discretion and in any event was harmless. (People v. Dworak (2021) 11 Cal.5th 881, 895; People v. Jones (1984) 155 Cal.App.3d 153, 179.)
Most of the documentary evidence was irrelevant to the question before the judge-whether there was clear and convincing evidence of Shepardson harassing Mazurkiewicz. Absent a threat of violence, which is not alleged in this case, that means proof of "(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).)
Mazurkiewicz testified that Shepardson was her husband's ex-girlfriend and due to a dispute over the property was in debt to him for $26,000, the subject of a civil suit. She said Shepardson had followed them on a few occasions. In one instance she drove by them near their house while intoxicated. A second time, she drove by Mazurkiewicz when she was out walking her dogs. On a third occasion, she was parked near where Mazurkiewicz was walking early in the morning and Shepardson was hiding by ducking down in her vehicle. Mazurkiewicz also testified that Shepardson had sent food and a package to the home she shared with her husband unsolicited, in violation of another protective order in effect at the time.
The documents Shepardson submitted had little to do with these grounds for seeking a protective order. One document is a written statement by Shepardson, which alleges a variety of grievances against Mazurkiewicz. A second is a written statement by Shannon Maciborski about her own incidents with Mazurkiewicz three years earlier. A third is a statement by Daniel Maciborski, Mazurkiewicz's husband for 16 years. He also describes a variety of his own problems with Mazurkiewicz and concludes he is "concerned for Sara Shepardson's safety." These statements purported to show Mazurkiewicz engaging in harassment against others and having psychological difficulties.
Setting aside hearsay problems with these statements, they are completely irrelevant to the question whether Shepardson had engaged in a course of harassing conduct against Mazurkiewicz. Nor are the statements admissible as evidence of Mazurkiewicz's credibility. (People v. Jones, supra, 155 Cal.App.3d at p. 182 ["[E]vidence of character traits to affect the credibility of a witness is limited to the traits of honesty, veracity, or their opposites . . . [and] evidence of specific instances of bad or good conduct [is inadmissible], with the exception of a felony conviction, to prove a witness' character trait to attack or support the credibility of the witness."]; see also Evid. Code §§ 786, 787.)
The remaining three documents are similarly unrelated to the issue at the hearing. Shepardson submitted an order from an Arizona court dismissing a protective order Mazurkiewicz sought against Shepardson, a map showing her vehicle was half a mile from Mazurkiewicz's house when she was hiding in her parked vehicle, and a photocopy of envelopes which appear to show Mazurkiewicz knew where Shepardson lived at the time of these events.
As the trial judge commented immediately after receiving these documents at the hearing, "You['re] telling me, 'Well, she did this stuff to me' doesn't really have any effect on what she-what we're here to talk about is what she says you have done. So just because you said she did things to you too is of no moment to me, really. Other than the fact that it sounds like the two of you should stay away from each other." We note that comment may indicate the judge did in fact review the documents Shepardson submitted, which is supported by the fact that the judge returned them to her at the end of the hearing. In any event, the comment demonstrates why failing to consider those documents, if that's what happened, was not an abuse of discretion and, even if it were error, was harmless. They had no bearing on the issues the judge was asked to decide. Establishing Mazurkiewicz had engaged in harassing conduct toward others does not tend to show Shepardson did not engage in harassing conduct toward Mazurkiewicz.
After the judge refocused her, Shepardson denied she had harassed Mazurkiewicz. She said she wasn't in the vehicle when Mazurkiewicz said she was parked near her early in the morning, crouching down to hide. She said, "I don't even pay attention to-I don't look for her car. I don't go down their street. I don't do anything. I keep to my own business." She said she had a witness who would support her testimony, but she never attempted to present the witness at the hearing. After hearing the testimony of both parties, the judge asked repeatedly whether either had anything else to present. Both added testimony, but ultimately rested their cases voluntarily without seeking to have others testify. Thus, Shepardson's contention that the trial judge refused her the opportunity to present a witness is not supported. She had the opportunity to present additional witness testimony and chose not to do so. We therefore conclude there was no error on that point.
III DISPOSITION
We affirm the judgment. Appellant shall bear her costs on appeal.
We concur: RAPHAEL J. MENETREZ J.