Opinion
E069144
12-13-2018
RICHARD A. BEYL, Plaintiff and Respondent, v. PAUL HUPP, Defendant and Appellant.
Paul Hupp, in pro. per., for Defendant and Appellant. Richardson Ober, Kelly G. Richardson, Theodore H. Dokko and Jonathan R. Davis, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIP1701127) OPINION APPEAL from the Superior Court of Riverside County. H. Ronald Domnitz, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Paul Hupp, in pro. per., for Defendant and Appellant. Richardson Ober, Kelly G. Richardson, Theodore H. Dokko and Jonathan R. Davis, for Plaintiff and Respondent.
Defendant and appellant Paul Hupp contends the trial court abused its discretion in issuing a restraining order against him in a civil harassment proceeding under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.; the Elder Abuse Act) brought by plaintiff and respondent Richard A. Beyl. Hupp argues that (1) the evidence is insufficient to establish harassment because his trespass on Beyl's property was de minimis and for the purpose of trimming the hedge as mandated by the homeowner's association; and (2) Beyl may not complain of Hupp's trespass because Beyl implicitly consented to it by failing to object. We conclude that the evidence shows that Hupp's repeated trespass constituted harassment, and Beyl never consented to it. We therefore affirm, finding no abuse of discretion.
All further statutory references are to the Welfare and Institutions Code.
I. PROCEDURAL BACKGROUND AND FACTS
Hupp and Beyl are neighbors whose properties are separated by bushes that form a hedge. For years, Hupp (age 56) would stand on Beyl's "pony wall" to trim the hedge. Also, Hupp would leave debris on Beyl's property and verbally threaten Beyl (age 75) and his wife, Judith L. Beyl (age 71). On June 29, 2017, Beyl filed a petition for a protective order under the Elder Abuse Act to stop Hupp from trespassing on the Beyls' property and harassing or contacting them. The trial court issued a temporary restraining order and scheduled a hearing on the request for restraining order.
"A low wall, not as high as the story of a building, often used as a garden wall or fence." (<https://www.thefreedictionary.com/pony+wall> [as of December 13, 2018].)
At the August 25, 2017, hearing, Beyl testified that Hupp's harassment began in November 2012 with verbal abuse, threats of physical harm, and vandalization of the Beyls' property. He pointed out that on June 4, 2017, he and his wife cleaned up the debris that Hupp left after trimming the hedge on June 3, 2017. Because the pony wall is on the Beyls' property, Beyl marked the property line with two landscape flags "to let Mr. Hupp know where the property line actually was." Shortly thereafter Hupp removed the flags. When confronted about his actions, Hupp "yell[ed] and walk[ed] away." The police were called and the flags were replaced; however, Hupp again removed the flags, "crumbled" them, and threw them on the Beyls' driveway. The police returned and labeled Hupp's actions as malicious mischief; they took the Beyls' report of the incident and attempted to contact Hupp. The Beyls' security camera captured Hupp's actions and the resulting damages.
In his testimony, Hupp admitted that he uses the Beyls' pony wall to trim his bushes three times a year, and that he has done so since he has lived there because that is "what the homeowners' [association] tell[s] [him] to do." When asked if he had Beyl's permission to go on his property, Hupp replied, "He's never — he's never said not to." Hupp claimed that his actions do not "rise to the level of harassment as defined under an elder abuse petition" because they were not "intentional."
The trial court found that Hupp engaged in "a continuous course of conduct" and granted Beyl's petition "based upon the trimming of the trees [sic] on the other person's property without permission." The court added, "I would grant this even if this were not an elder abuse case, if it were just a civil restraining order." The court modified the standard language on the Elder or Dependent Adult Abuse Restraining Order After Hearing (EA-130) form and ordered that Hupp "not intimidate, molest or strike, threaten, assault, hit, harass, destroy personal property of and disturb the peace of the [Beyls]," and not trespass on the Beyls' "property on the side of or on a wall dividing" their properties." The restraining order expired on August 25, 2018.
II. DISCUSSION
A. The Appeal Is Not Moot
Because the restraining order expired on August 25, 2018, the appeal arguably should be dismissed as moot. "'If relief granted by the trial court is temporal, and if the relief granted expires before an appeal can be heard, then an appeal by the adverse party is moot.' [Citation.]" (City of Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1079; City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 479-480 [When events occurring after a notice of appeal is filed render the appeal moot, the court may dismiss it on its own motion.].) "'"[T]here are three discretionary exceptions to the rules regarding mootness: (1) when the case presents an issue of broad public interest that is likely to recur [citation]; (2) when there may be a recurrence of the controversy between the parties [citation]; and (3) when a material question remains for the court's determination [citation]."'" (Harris v. Stampolis (2016) 248 Cal.App.4th 484, 495.)
In a supplemental letter brief, Hupp argues that the appeal is not moot because the expired restraining order is the "underlying basis of a current criminal charge, and if the underlying civil [restraining order] was improper and should not have issued then the current criminal charge likewise is improper and should not have issued." (Original italics.) He adds that the restraining order has "other legal consequences" that he can escape by prevailing on appeal.
Hupp's supplemental letter brief describing currently contested criminal charges based on the restraining order sufficiently persuades us that there may be a recurrence of the controversy between the parties warranting application of the discretionary mootness exception. (Harris v. Stampolis, supra, 248 Cal.App.4th at p. 495 [appeal from expired civil harassment restraining order against school district board member was not moot because a determination of insufficient evidence of harassment had potential to provide board member with effective relief and to undermine basis for renewal of order]; Biosense Webster, Inc. v. Superior Court (2006) 135 Cal.App.4th 827, 835 [although the issue of whether a temporary restraining order was issued without proper notice was moot, the appellate court considered the merits of the challenges to the issuance of the order].) We therefore exercise our discretion to address the merits of Hupp's contentions.
B. The Trial Court Did Not Abuse Its Discretion in Issuing the Restraining Order
Hupp contends the trial court abused its discretion in issuing the restraining order.
1. Standard of Review
"[T]he issuance of a protective order under the Elder Abuse Act is reviewed for abuse of direction . . . ." (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137.) "In reviewing the issuance of a restraining order, we will only find an abuse of discretion when the trial court exceeds the bounds of reason or disregards the uncontradicted evidence. The party challenging the issuance of the order bears the burden of showing an abuse of discretion by the trial court. [Citations.]" (Id. at p. 1140.)
2. Substantial Evidence Supports a Finding of Harassment
Hupp challenges the sufficiency of evidence to support a finding of harassment. We reject his challenge.
Under the Elder Abuse Act, upon reasonable proof of a past act or acts of abuse of the petitioning elder, the trial court may issue a protective order to prevent a recurrence of the abuse. (§ 15657.03, subd. (c).) An elder is identified as a California resident, age 65 years or older. (§ 15610.27.) "Abuse of an elder" includes "treatment with resulting . . . mental suffering." (§ 15610.07, subd. (a).) "Mental suffering" is defined as "fear . . . or other forms of serious emotional distress that is brought about by forms of intimidating behavior, threats, [or] harassment . . . ." (§ 15610.53.) As defined in Code of Civil Procedure section 527.6, subdivision (b)(3), harassment is "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. 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."
In determining whether sufficient evidence supports the restraining order, "[w]e resolve all conflicts in the evidence in favor of respondent, the prevailing party, and indulge all legitimate and reasonable inferences in favor of upholding the trial court's findings. [Citation.] Declarations favoring the prevailing party's contentions are deemed to establish the facts stated in the declarations, as well as all facts which may reasonably be inferred from the declarations; if there is a substantial conflict in the facts included in the competing declarations, the trial court's determination of the controverted facts will not be disturbed on appeal. [Citation.]" (Bookout v. Nielsen, supra, 155 Cal.App.4th at pp. 1137-1138.)
Hupp claims that he did not engage in harassing activity because his trespass on Beyl's property was to trim his hedge, "at the direction of the homeowner's association to comply with homeowner association rules and regulations," and that trimming the hedge "was not 'directed' at any specific person nor was it to alarm, annoy or harass any specific person." Thus, Hupp argues that his trespass does not "rise to the legal definition of 'harassment' under the 'course of conduct' prong [of Code of Civil Procedure section 527.6, subdivision (b)]." We are not persuaded by his argument.
Beyl's verified petition and the testimony at the hearing support a finding that Hupp did more than merely trim a hedge. Hupp admitted to repeatedly trespassing onto the Beyls' property to trim the hedge, and the evidence shows that his trespasses resulted in damage to the Beyls' property. Mr. Beyl complained to the police about Hupp's actions, resulting in the filing of a report describing Hupp's actions as malicious mischief. According to Beyl, he also called the police on two separate occasions when Hupp challenged Beyl to fight. Beyl testified, "[W]e've been harassed. I've been threatened with physical harm on three occasions. He has trespassed. He's vandalized our property." Hupp's actions of repeatedly trespassing on the Beyls' property, damaging the property, and threatening physical violence would cause a reasonable person (in this case, elder persons) to suffer fear or substantial emotional distress. The fact that the Beyls repeatedly called the police shows that they in fact suffered fear or substantial emotional distress.
Although Hupp's testimony at the hearing contradicted some of Beyl's testimony and claimed innocent intentions or explanations for his actions, "[i]t was for the trial court to weigh the evidence and consider the demeanor and credibility of the witnesses. [Citation.]" (Bookout v. Nielsen, supra, 155 Cal.App.4th at p. 1141.)
3. Hupp Has Failed to Establish Consent to Trespass
Hupp contends that because Beyl never objected to Hupp trimming the hedge or trespassing on Beyl's property to do so, Beyl has waived any complaint of, and consented to, the trespass. We conclude that Hupp has failed to establish consent to trespass.
"'Trespass to property is the unlawful interference with its possession.' [Citations.] The interference need not take the form of a personal entry onto the property by the wrongdoer. Instead, it 'may be accomplished by the casting of substances or objects upon the plaintiff's property from without its boundaries.' [Citation.]" (Elton v. Anheuser-Busch Beverage Group (1996) 50 Cal.App.4th 1301, 1306.) Beyl alleged that Hupp's repeated entries (and placement of debris) onto the Beyls' property were unauthorized. When asked whether he had permission to enter onto the Beyls' property for the purpose of trimming the hedge, Hupp replied, "He's never — he's never said not to." According to Hupp, Beyl's silence waives any complaint to the trespass and is the equivalent of consent. We disagree. At best, the issue of consent was disputed, but substantial evidence supports the trial court's conclusion that there was no consent to Hupp's entry onto the Beyls' property.
Having found that Hupp's repeated trespass constituted harassment, and that Beyl never consented to the trespass, we conclude the trial court did not abuse its discretion in issuing the restraining order.
III. DISPOSITION
The order is affirmed. Beyl is awarded costs on appeal.
At oral argument, Beyl requested attorney fees on appeal pursuant to section 15657.03, subdivision (t) ["The prevailing party in an action brought under this section may be awarded court costs and attorney's fees, if any."] We decline to grant the request on the ground that it was untimely raised, denying an opportunity for appellant to respond. Because we do not reach the merits of Beyl's request, our decision has no bearing on his ability to seek appellate attorney fees in the trial court. (See Cal. Rules of Court, rule 8.278(d)(2).) --------
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J. We concur: RAMIREZ
P. J. CODRINGTON
J.