Opinion
A163893
12-21-2022
CARLTON BAKER, Plaintiff and Respondent, v. GUILLERMO BARAGANO, Defendant and Appellant.
NOT TO BE PUBLISHED
(Alameda County Superior Court No. RG21098471)
WISEMAN, J. [*]
Guillermo Baragano appeals from an order imposing a civil harassment restraining order against him pursuant to Code of Civil Procedure section 527.6. He contends the court erred because, among other things, the evidence was insufficient. Having carefully considered each of his arguments in light of the appellate record, we will affirm the order.
I. FACTS AND PROCEDURAL HISTORY
Appellant Baragano and respondent Carlton Baker live in townhouses in the same residential complex in Oakland. Baragano believes that Baker's chihuahua barks too much and that Baker has levied false accusations. Baker and his wife and friends believe Baragano harasses and intimidates them. Baker and Baragano filed requests for restraining orders against each other, and the court ultimately issued a restraining order against Baragano.
A. The Parties' Requests for Restraining Orders
On May 10, 2021, Baker filed a Request for Civil Harassment Restraining Order against Baragano pursuant to Code of Civil Procedure section 527.6 (Alameda Superior Court case number RG21098471). Baker claimed that Baragano had a long history of harassing behavior, including calling the police and recording Baker's ten-year-old daughter on a cell phone through Baker's front window. The court granted a temporary restraining order (TRO) protecting Baker, his wife, and his daughter. A hearing on the application for a permanent restraining order was set for June 24, 2021.
Except where otherwise indicated, all statutory references are to the Code of Civil Procedure.
Baragano then filed a request for a restraining order against Baker (Alameda Superior Court case number RG21099195), which Baragano calls his "counter-claim." The court declined to issue a TRO but set a hearing on his application for a permanent restraining order.
On June 24, 2021, the TRO against Baragano was reissued and a new hearing date was set for August 24, 2021. In July 2021, the court referred the matter to mediation, reissued the TRO, and set a hearing for September 7, 2021 if mediation was unsuccessful.
On August 31, 2021, Baragano filed documents in response to Baker's request for a restraining order. Amassing over 180 pages, the filing included the following: documentation from the Oakland Police Department about an April 2020 report (from Baragano) that 4-7 people were gathered in a common courtyard; a June 2020 letter from Baragano to the property management company stating that Baker should control his dog from barking, a gardener violated a noise ordinance by using a leaf blower, another neighbor had yelled obscenities at him, tenants were having improper gatherings in a courtyard, and a neighbor put plants a foot from his garage door; a February 19, 2021 police report in which Baragano accused Baker of disturbing the peace; letters dated February 2, 2021 and May 16, 2021 to Baker from Oakland Animal Services reporting complaints made (by Baragano) about Baker's dog barking; and an April 21, 2021 letter from "Edward L. Monroe, J.D.," which demanded on Baragano's behalf that Baker "cease and desist all harassment activities" towards Baragano and asserted that Baker had ridden a bicycle toward Baragano, allowed his two chihuahuas to bark, and walked the dogs in front of his residence.
According to online State Bar records, "Edward L. Monroe" does not appear to have ever been licensed to practice law in California.
B. The Hearing
The court heard both restraining order matters on September 7, 2021, starting with Baker's request.
In response to the court's questions, Baker testified that Baragano had not perpetrated violence, made threats of violence, or harassed him personally (except calling the police), although Baragano had harassed Baker's family and witnesses. Based on that testimony, the trial court denied Baker's request for a restraining order on the ground that Baker alone was the moving party and a call to the police is not harassment if made for a legitimate reason.
The court then turned to Baragano's request for a restraining order against Baker. Baragano testified that in June 2021, Baker recruited a prior tenant (Paula Johnson) to write a letter to Baker, saying that Baragano used profanities with children present, harassed a tenant, and raised his voice. Baragano further testified that, when Baker walked his dog, the dog barked off-and-on for two to four minutes. On February 19, 2021, Baragano filed a police report because Baker had allowed his chihuahua to lunge at him, "gave [Baragano] the finger," and yelled, "you're next, you're next." On July 21, 2021, Baragano convinced the Oakland Police Department to respond to the residential complex because Baker had allegedly filed a false police report against him.
Baker's chihuahua weighs seven pounds. Baragano is estimated to stand 6 feet, four inches tall.
As for Baker's side of things, Baker explained the barking of his chihuahua puppy and acknowledged that Baragano had reported him to "Animal Control;" Baker's witnesses then described Baragano's sensitivity to noise and his harassment of tenants including the Bakers.
Kathy Richardson, for example, testified that Baragano complains about the sanitation workers and the gardeners making too much noise, noting that leaf blowers "set Mr. Baragano off a lot." Baragano even sprayed the gardener with water from a hose. He also called the police when the residents had a small gathering three townhouses away from him, he records his neighbors with his phone, and he reports them to the residential management company.
Sandi Ruther confirmed that Baragano routinely walked around the housing complex, appearing to be recording or photographing people with his cell phone, which was annoying. She also confirmed that Baragano used profanity.
Jacqui Baker (respondent's wife) added that the happy hours and plants of which Baragano complained had been approved by the property management company. She confirmed that Baragano's "constant recording" and "constant police calls" were intimidating.
Moreover, Jacqui Baker explained the fear that respondent Baker experienced when Baragano was able to convince the police to descend upon the residential complex in multiple police vehicles. She testified: "I-unfortunately I know that this is behind us now but I wish that Mr. Baker had gotten into it a little deeper. Unfortunately he didn't have specific dates [of Baragano's harassment] because for us, these are just incidents. Just let them go, roll off your back to the point - you live in city, you live around people. [¶] But the constant calls to police and, you know, I live with him so he's told me things like, I fear because when he [Baragano] calls the police, he must be saying . . . something is happening to him that makes him feel threatened because they will send out two, sometimes three police cars for happy hour. [¶] My husband is black and if he - whatever [Baragano is] saying must be strong enough to get the police to come out. [¶] . . . [¶] . . . To think there is some kind of threat. He's telling them he has a weapon or he might have a weapon or - I'm not sure what he's calling them, you know, provoking them to come out. After being called multiple times, they still continue to come." Kathy Richardson interjected that the police had come out five times in 2020. Jacqui continued: "Almost every time the cops come more than one car. And so he [Baker] feels threatened because he's, like what they are hearing and what is really going on are two different stories, and I don't feel comfortable when they show up thinking that I don't have a target on my back simply because of the color of my skin." The court asked whether that was what Jacqui was saying or her husband was saying, to which Jacqui testified: "That's what he [Baker] says. It actually hadn't even occurred to me until he brought it up one day like look, I'm black, you know? And I guess that's white privilege not even thinking that he had that extra layer of threat that maybe other people out there don't have, you know, just because of the climate in the world right now." (Italics added.)
Toward the end of the hearing, the court asked Baragano if he could see how his behavior, even if unintentional, was affecting others. Baragano stated he had no insight into how his behavior appeared to others; he wanted instead to debate what the witnesses had said, and the court allowed him to do so.
The trial court denied Baragano's request for a restraining order on the ground that Baker had not been violent, made threats of violence, or harassed Baragano. The court attributed Baragano's concern about Baker's barking chihuahua to be part of his "hypersensitivity" to "noises and people and things and laughter and smiles and leaf blowing."
The court then returned to case RG21098471 and, based on the evidence, granted Baker's request for a restraining order against Baragano. The court explained: "As to line number five, RG21098471, Baker versus Baragano. I am going to reopen that matter. I am going to vacate my order denying the restraining order because now I have a fuller picture from the witnesses and particularly his wife that testified about conduct that not only is harassing, annoying, distressing, has no legitimate purposes, but is instigative and [on] another level, Mr. Baragano, heinously dangerous in terms of inciting the possibility of police violence towards Mr. Baker.
[¶] That day might come -- Oakland police and the comments about Oakland police response time is accurate, that they don't have the space and time to come out to someone walking a dog and a dog barking or whatever allegation you could have made to make two or three officers come out only means that as has been historically demonstrated by persons who utilize their own intentional systematic racism to characterize a complaint to the police in a manner that would generate the appearance of multiple police officers within a neighborhood is highly dangerous, and that you have indicated to the Court you lack insight at this moment. [¶] Further, it indicates to this Court you are in a purposeful, intentional patterned activity of aggressive hostility toward Mr. Baker and his family and so for that reason, the Court is going to order the restraining order."
The restraining order prohibits Baragano from engaging in harassing behavior and requires him to stay a specified distance from Baker and his house, car, wife, and dog for five years.
C. Motion for New Trial and Disqualification of Judge
Baragano filed a Notice of Intent to Move for a New Trial. A few days later, he re-filed the notice, indicating an October 5, 2021 hearing date. The next day, he filed a declaration and memorandum of points and authorities. On October 4, 2021, Baragano filed a motion to disqualify the trial judge pursuant to section 170.1.
At a hearing on October 5, 2021, the court struck Baragano's disqualification motion and denied his motion for a new trial. This appeal followed.
II. DISCUSSION
"The elements of unlawful harassment, as defined by the language in section 527.6, are as follows: (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) 'which seriously alarms, annoys, or harasses the person'; (4) 'which serves no legitimate purpose'; (5) which 'would cause a reasonable person to suffer substantial emotional distress' and 'actually cause[s] substantial emotional distress to the plaintiff'; and (6) which is not a '[c]onstitutionally protected activity.'" (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.) The elements of section 527.6 must be proven by clear and convincing evidence. (§ 527.6, subd. (i).)
A. Sufficiency of the Evidence
In reviewing the issuance of a civil harassment restraining order, we determine if there was substantial evidence from which a reasonable trier of fact could have made the required findings by clear and convincing evidence. (See Conservatorship of O.B. (2020) 9 Cal.5th 989,1005-1012.) We defer to the trial court's resolution of credibility issues, accept as true all evidence and reasonable inferences favorable to the respondent, and disregard the evidence submitted by the appellant. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925.)
To obtain appellate review of the sufficiency of the evidence, however, the appellant must set forth in his opening brief all material evidence, both favorable and unfavorable. (Foreman &Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1273.) Otherwise, the challenge to the evidence may be deemed waived. (Doe v. Roman Catholic Archbishop of Cashel &Emly (2009) 177 Cal.App.4th 209, 218.)
Here, Baragano did not set forth in his statement of facts the primary evidence unfavorable to him, including the testimony of Jacqui Baker on which the trial court obviously based its decision. Although Baragano later mentions Baker's fear of the police in passing references, he dismisses it as "unreasonable" without addressing Jacqui Baker's testimony directly or in substance. Baragano therefore waived his challenge to the sufficiency of the evidence.
In any event, Baragano's arguments as to the sufficiency of the evidence are meritless. He asserts that the court's reason for granting the restraining order - that his actions were "dangerous in terms of inciting the possibility of police violence towards Mr. Baker"-was not a proper ground for a civil harassment restraining order. He provides no legal authority for this proposition, however, and there is no reason to believe that the incitement of possible violence towards a person could not constitute a course of conduct that "seriously alarms, annoys, or harasses the person" (§ 527.6, subd. (b)).
Baragano also argues that the court's finding was not supported by the evidence because the police did not contact Baker personally and Baragano had asked them not to contact Baker after reporting him for disturbing the peace. However, Baragano's repeated calling of the police was directed at Baker (as well as others); and even if the police had not yet confronted Baker directly, there was ample evidence from Baker's wife that the magnitude of the police response was alarming, annoying, and harassing to Baker.
Baker testified that he was present some of the times the police were called, he just could not ascertain the dates.
Baragano next contends the court's finding that he used "his own intentional systematic racism to characterize a complaint to police" is unfounded, "extra-judicial," and contradicted by the evidence. We disagree. To clarify, the trial court was not calling Baragano a racist, but explaining that he had engaged in behavior posing a great risk of harm. In the court's view, it was very dangerous for Baragano to tell police whatever he told them to prompt a multi-officer response, noting it had been "historically demonstrated by persons who utilize their own intentional systematic racism to characterize a complaint to the police in a manner that would generate the appearance of multiple police officers within a neighborhood." The evidence supported the court's inference, since there was no other explanation for the Oakland Police Department dispatching multiple police vehicles in response to Baragano being threatened with a 7-pound chihuahua or overhearing a few people having an approved party in a courtyard.
Baragano insists that Baker's allegations of harassment were disproven by Baker's own testimony, because Baker testified that Baragano was not physically violent with him and had not made threats or harassed him personally. Further, Baragano asserts, the court had initially found Baker's allegations lacking because he did not specify dates the police were called, he was not present when they arrived, and what Baragano had done to others was not germane to whether Baragano had harassed Baker. None of that, however, suggests the restraining order was not supported by the additional evidence provided subsequently by other witnesses.
Baragano additionally contends the evidence did not show a "course of conduct" that was "directed at a specific person" as required by section 527.6, subdivision (b), because the evidence only described Baragano's harassment of persons other than Baker. Not so. The evidence reasonably gave rise to the inference that Baragano called the police on Baker individually to report disorderly conduct, again to claim a false police report, and multiple times regarding the parties that he attributed in part to Baker. Those actions are directed at Baker. (§ 527.6, subd. (b)(3).) Furthermore, a restraining order may be issued based on a "course of conduct that would place a reasonable person in fear of his or her safety or the safety of his or her immediate family." (§ 527.6, subd. (b)(2), italics added.)
Baragano argues that his alleged conduct would not cause a reasonable person to suffer substantial emotional distress and did not actually cause Baker substantial emotional distress. Jacqui Baker's testimony indicated otherwise, however, and it is not our role to reweigh the evidence.
B. Admission of Evidence
Baragano contends the court erred by admitting evidence reflecting his harassment of persons other than Baker, on the ground such evidence was irrelevant, constituted improper character evidence (Evid. Code, § 1101, subd. (a)), and was "a violation of the 'Me-Too' doctrine of California law," which, he claims, does not allow a party to present evidence of alleged harassment of others to show harassment against the party. (Citing Pinter-Brown v. Regents of the University of California (2020) 48 Cal.App.5th 55, 96.)
Baragano's arguments have no merit. The civil harassment statute mandates that the court "shall" receive relevant testimony. (§ 527.6, subd. (d).) To the extent he believes the evidence was irrelevant, he did not object at the hearing and his objection has been waived. Moreover, he does not establish that any error in the admission of the evidence was prejudicial, particularly since the court relied on other evidence that showed harassment of Baker himself.
Baragano further complains that the court asked Richardson a question based on an allegation contained in an unverified email of Paula Johnson that he characterizes as irrelevant hearsay. It was Baragano, however, who first mentioned the email as a basis for his restraining order against Baker. He fails to establish prejudicial error.
C. Protected Activity and First Amendment Rights
Baragano argues that his reports of Baker's chihuahuas to Animal Services constituted activity with a legitimate purpose and thus cannot be considered harassment. He further contends that issues of disputed housing rights cannot be the subject of a civil harassment restraining order. (Citing Byers v. Cathcart (1998) 57 Cal.App.4th 805.) The argument is misplaced, however, because the court did not base its decision on Baragano's reports to Animal Services or his housing rights.
Baragano claims he was engaging in constitutionally protected activity when he called the police, including when he called them to report Baker giving him the finger and yelling at him, "Fuck you. You're next. You're next." Such conduct, he claims, cannot be the basis for an anti-harassment restraining order. (See § 527.6, subd. (b)(1) ["Constitutionally protected activity is not included within the meaning of 'course of conduct.' "].)
The trial court suggested that the gesture, epithet, and equivocal "you're next" comment could not reasonably be construed as a threat. Assuming the call to report the matter was nonetheless constitutionally protected, it was not the only call Baragano made to the police. The inference from the evidence was that Baragano on more than one occasion was able to persuade the police to dispatch multiple units to the complex by telling them that something more was afoot than a barking chihuahua-an assertion Baragano never denied to the trial court. Baragano provides no legal authority that such action is constitutionally protected.
D. Court's Change of Ruling on Baker's Request
Baragano contends the court erred by ignoring its initial finding that there was no basis for a restraining order and then, upon hearing additional evidence, granting Baker's request for the restraining order against him. Baker does not cite to any legal authority suggesting that a trial court cannot reconsider an initial ruling under the circumstances here.
In the first place, the parties' requests for restraining orders were heard not so much as distinct cases but as two sides of the same coin: Baker
(and his witnesses) accused Baragano of harassment, and Baragano considered his harassing actions to be reflections of bad conduct by Baker (and others). The court conducted a single hearing at which both requests were considered. All the potential witnesses as to both requests were placed under oath at the beginning of the hearing. Indeed, Baragano refers to his request for a restraining order as a "counter-claim" to Baker's request. (See § 527.6, subd. (d) [providing for cross-complaint].)
Moreover, we certainly cannot fault the trial court for changing its ruling on Baker's request so that its decision on the parties' cross-requests was consistent with the totality of the evidence. After all, the court had not allowed Baker's witnesses to testify when it first considered Baker's request for a restraining order; after the court did hear from Baker's witnesses, it became clear to the court that justice would be served by amending the ruling on Baker's request before the parties left the courtroom.
Indeed, Baragano ultimately concedes that "Courts can re-open cases based on new evidence, but re-opening case RG21098471 based on inadmissible and irrelevant evidence is an incorrect legal standard." As discussed ante, the evidence was sufficient to uphold the ruling.
E. Witness Bias
Baragano contends the witnesses against him "participated in loud drinking parties which [Baragano] complained of." He asserts that Jacqui Baker, as Baker's wife, was biased. He claims Richardson was not credible because he refused her sexual advances, she has a history of harassing other tenants, and she filed unfounded complaints with the police. And he claims he filed two police reports against Ruther because of the obscenities and racial epithets she directed at him.
Trial judges are well attuned to potential witness biases and are fully equipped to evaluate the credibility of the witnesses, so much so that this court is required under the law to defer to the trial judge's credibility determinations. (Nestle v. City of Santa Monica, supra, 6 Cal.3d at p. 925.) Baragano fails to establish error.
F. Retaliation
Baragano contends Baker sought a restraining order in May 2021 (and confronted Baragano on the street and filed a police report in February 2021) in retaliation for Baragano's complaining to Animal Services on February 1, 2021. Even if this were true, Baker's motivation for seeking a restraining order is not the point. The point is whether the issuance of the order was supported by sufficient evidence. As discussed ante, it was.
G. Judicial Comments, Courtroom Management, and Due Process
A section 527.6 request for a restraining order is not heard by a jury, and the trial court regulates the order of proof in its discretion. (Evid. Code, § 320.) Of course, every trial must be fair and should appear to be fair to the litigants. (Pinter-Brown v. Regents of the University of California, supra, 48 Cal.App.5th at p. 87 [jury trial]; see Cal. Code Jud. Ethics, canon 3B(5) [judges shall "perform judicial duties without bias or prejudice" and refrain from speech that would reasonably be perceived as bias or prejudice].) Here, the record in this case demonstrates that Baragano unquestionably received a fair trial; we nonetheless take the time to address his concerns.
1. Comment About Moving to the Country
Baragano states that the trial court "mocked" him by asking why he did not move to the country where there would be no noise after dark. The court was merely observing, however, that a person who lives in an urban environment should reasonably expect more noise than what might be experienced by someone living in a sparsely-populated rural area. While we cannot tell from the record what tone the judge used in making the statement, the court's observation was legally sound.
The court explained: "Mr. Baragano, that's not my question. Why don't you live in the country? Because for anyone to live in a city and expect there's not going to be a noise is not really a reasonable position. So why don't you move to the country, Mr. Baragano? And then you can-then you really can expect to hear no noise after dark."
2. Prejudging
Baragano contends the trial court prejudged him, pointing to the court's reference in its decision to "systematic racism." Because the court did not make that observation until after all the evidence had been submitted, however, there is no indication the court prejudged him.
Baragano also points to the fact that the court interrupted his testimony and said, "Well, you know, you know what they say when there's a lot of people? You know who the common denominator is?..You know what happens." But this statement - observing that there can be some truth to allegations about someone when the same views are shared by multiple witnesses - was made by the court in response to Baragano's testimony concerning the comments Paula Johnson and others had made about him. Since by that point the court had ruled in Baragano's favor on Baker's request for a restraining order, the court's remark certainly was not a prejudgment of Baragano, but an insight into how the court was perceiving the evidence that was being submitted.
3. Lower Evidentiary Standard
Baragano contends the court applied a lower evidentiary standard for Baker's witnesses because it allowed them to testify to incidents without stating the date of their occurrence, while requiring Baragano (and Baker) to provide dates. We note, however, that Jacqui Baker said Baragano's harassment occurred mostly since his report to Animal Services, thus providing temporal parameters for the evidence. In any event, we find no prejudicial error.
4. Court's Leading Questions
Baragano contends the trial court improperly asked witnesses leading questions. By statute, however, the court "may make an independent inquiry." (§ 527.6, subd. (i).) Baragano does not cite to legal authority forbidding the court from asking leading questions, and he did not object to any questions at the hearing. We find no prejudicial error.
5. Baker's Witnesses in the Courtroom
During the court's inquiry into Baker's request for a restraining order, the court allowed Baker's three witnesses to sit in the courtroom and observe the proceedings. Baragano claims this was "highly prejudicial" because the witnesses were able to tailor their testimony to match each other's testimony, thus compromising the fairness of the trial.
Baragano did not ask for the witnesses to be removed from the courtroom, however. (See Evid. Code, § 777.) Nor did he complain about their presence in the courtroom during the trial. He fails to establish error.
6. Opportunity to Say He Was Not a Racist
Baragano complains he had no chance to contest the idea that he was a "systematic racist" before the judgment was entered. As explained ante, however, the court did not label him a racist. He had ample opportunity to rebut the witnesses' testimony against him and deny that he had overstated things to persuade the police to send multiple units.
7. Opportunity to Examine Witnesses
Baragano argues that the trial court gave him only five minutes to rebut the testimony of Baker's witnesses and continually interrupted him. By his count, the testimony of Baker's witnesses comprised 21 pages of the reporter's transcript, while his attempt to rebut the witnesses comprised just five pages. Of those five pages, Baragano spoke 64 lines, while the court spoke 90 lines. In addition, the court told Baragano he was not being "credible in court," had to take "ownership" and "responsibility" for his behavior, and would not let him respond to the witnesses' testimony until he answered a question from the court (as to whether he could see how his conduct, even if unintentional, affected others).
We have reviewed the cited pages of the reporter's transcript and, in fact, the entire transcript of the hearing. We know of no rule that requires the trial court to speak fewer words than a witness or party. In giving Baragano five minutes to rebut Baker's witnesses-in addition to the 15 pages of testimony he gave before Baker's witnesses testified - the court imposed reasonable limitations appropriate to preserve the expeditious nature of the section 527.6 procedure. Moreover, Baragano does not set forth anything he would have said, that he was not allowed to say, that would have made any difference in the outcome.
In sum, the court gave Baragano a fair and meaningful opportunity to present his case. Baragano has not demonstrated prejudicial error.
Baragano claims that, when reopening Baker's request for a restraining order and granting it, the judge "rose from her seat, shook her forearm and pointed her index finger" at Baragano and yelled. The transcript does not reflect this.
III. DISPOSITION
The order is affirmed.
We concur. SIMONS, Acting P. J. BURNS, J.
[*] Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.