Opinion
B327283
07-01-2024
TINA BURCHARD, Plaintiff and Appellant, v. ERIN VALENTE, Defendant and Respondent.
Susan L. Ferguson for Plaintiff and Appellant. Sperber Nazif Law Group and Stephanie A. Sperber for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 22STRO07111 Rolf M. Treu, Judge. Affirmed.
Susan L. Ferguson for Plaintiff and Appellant.
Sperber Nazif Law Group and Stephanie A. Sperber for Defendant and Respondent.
HOFFSTADT J.
Tina Burchard (Burchard) filed a petition to obtain a civil harassment restraining order against Erin Valente (Valente). The trial court denied the petition. Burchard argues that the trial court made evidentiary errors. Because any error was not prejudicial, we affirm the order denying the petition.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Burchard's and Valente's sons attend the same school, and are friends. Burchard's 11-year-old son is a "semi-professional skateboarder." Valente's son is more of a novice skateboarder.
Burchard's and Valente's sons were planning to attend an out-of-town skateboarding competition on the weekend of October 29 and 30, 2022. Through a volley of text messages, Valente told Burchard that she could not attend the event, so Burchard offered to take Valente's son along and have him stay with her and her son in a hotel room. Valente's plans changed, so she told Burchard she would attend. This news upset Burchard, who "did not want to hang out with [Valente]" because Burchard is "uncomfortable with hanging out with adults." When Burchard communicated her reluctance to Valente, Valente "blew up" and threatened her.
II. Procedural Background
On October 28, 2022, Burchard filed a petition for a civil harassment restraining order under Code of Civil Procedure section 527.6 to enjoin Valente from contacting her, her daughter, her son, and her ex-husband and to stay away from all of them, including to stay away from the school the sons attended. She also sought $12,000 in attorney fees for filling in a form petition and drafting a declaration.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
The trial court issued a temporary restraining order, and subsequently renewed it a few times.
Valente filed a response, and sought $11,000 in attorney fees.
The court convened an evidentiary hearing on whether to issue an injunction on February 16, 2023.
Burchard testified. During her direct testimony, Burchard testified that (1) she and Valente had a telephone conversation on October 26, 2022; (2) Valente "blew up" and started "screaming" during that conversation after Burchard explained that she did not want to stay in the same hotel as Valente and her son; (3) Valente called her a "pedophile" because Burchard preferred the company of children to adults she did not know; (4) Valente warned that she will report this to the sons' school; (5) Valente told Burchard, "I'm going to kill you"; and (6) Valente threatened Burchard's son.
Burchard was substantially impeached on crossexamination. In a text message exchange between Burchard and Valente's ex-husband, on October 18, 2022, Burchard recounted the telephone conversation that she had just testified occurred eight days later on October 26, 2022. In those text messages, Burchard purported to relay what Valente said, but the messages make no mention of Valente threatening to kill her or Valente calling her a pedophile. When questioned about these omissions, Burchard changed her testimony to acknowledge that Valente had only implied she was a pedophile because she preferred the company of children, not that Valente ever "expressly stated" she was a pedophile. In those text messages, Burchard also conveyed her intent to have Valente "get[] on her knees and apologize[] for the heinous things that she said."
Burchard and Valente first communicated by text message on October 10, 2022, and at no point before or after the alleged threats during the telephone call did they ever see each other in person. At no point in December 2022, January 2023, or February 2023 did Valente ever attempt to interact with Burchard.
Burchard's daughter also testified that she overheard the critical, last two minutes of the telephone conversation in which the alleged threats were made (because Burchard takes all of her calls on speakerphone). She testified (contrary to the date of Burchard's text to Valente's ex-husband) that the conversation occurred just "a few days before" the competition, and that Valente in that conversation threatened to kill Burchard.
Valente moved for judgment under section 631.8. The court "weigh[ed] the evidence" and found "that [Burchard] ha[d] not met her burden under the civil harassment statute by clear and convincing evidence," granted the motion, denied Burchard's petition, and dissolved the temporary restraining order.
Burchard filed this timely appeal.
DISCUSSION
Burchard argues that the trial court erred in denying her petition because the court erroneously excluded two items of evidence as inadmissible hearsay-namely, (1) Burchard's testimony about what the principal of the sons' school told her about what Valente had told the principal; and (2) the declaration of the skateboarding coach of Burchard's son (a) recounting Burchard's recollection of her call with Valente, and (b) recounting conversations the coach had with Valente, in which she said that Burchard was a "crazy bitch" and that she would ensure that Burchard's son "could not compete" in skateboarding competitions.
We review evidentiary rulings for an abuse of discretion. (People v. Flores (2020) 9 Cal.5th 371, 409.) Although both items of evidence Burchard challenges do appear to be hearsay, we need not engage in a detailed analysis of this issue because case law appears to indicate that hearsay is admissible in civil harassment restraining order proceedings under section 527.6. (See, e.g., Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 721, 728-729; Yost v. Forestiere (2020) 51 Cal.App.5th 509, 521.) We will therefore assume there was evidentiary error.
However, an appellant is entitled to relief on appeal only if she proves that the evidentiary error was prejudicial-that is, if it is reasonably probable that the result of the proceeding would have been different absent the error. (People ex rel. City of Santa Monica v. Gabriel (2010) 186 Cal.App.4th 882, 887; see generally Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574; People v. Watson (1956) 46 Cal.2d 818, 835-836; Evid. Code, § 353, subd. (b).) To obtain a civil harassment order, a petitioner must establish, by clear and convincing evidence, that she was "harass[ed]," which requires a finding of (1) "unlawful violence"; (2) "a credible threat of violence"; or (3) "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, subds. (a)(1), (b)(3) & (i).)
Burchard has not shown a reasonable probability that admitting the two pieces of evidence she identifies on appeal would have led to the issuance of a civil harassment restraining order. The trial court explicitly noted that it was weighing the evidence, and found that evidence to be insufficient to meet the exacting burden of proof for the issuance of a civil harassment restraining order. Although the court did not explicitly spell out why it found the evidence insufficient, we can reasonably infer that the trial court found that (1) Burchard's testimony about the timing and content of the alleged threats was not credible, and (2) Burchard faced neither a "credible threat of violence" nor a "knowing and willful course of conduct" because Valente made no effort to contact her after the confrontational call. (People v. Giordano (2007) 42 Cal.4th 644, 666 ["we presume that a[n] order of the trial court is correct"]; Denham v. Superior Court (1970) 2 Cal.3d 557, 564 ["'[a]ll intendments and presumptions are indulged to support [the trial court] on matters as to which the record is silent'"]; McLear-Gary v. Scott (2018) 25 Cal.App.5th 145, 159 [appellate court may reasonably infer trial court's reasoning from the record].) Neither piece of excluded evidence- either (1) the testimony about what Valente told the school principal; or (2) the skateboarding coach's declaration recounting Burchard's recollection of the critical call, Valente's opinion that she was a "crazy bitch," and Valente's promise that Burchard's son would not compete in future competitions-rehabilitates in any meaningful way Burchard's testimony about what was said on the call or negates the total absence of any contact between them in the months after that conversation and the absence of any interference with her son's ability to compete. In short, it is not reasonably probable that admitting this evidence would have mattered.
Indeed, Burchard herself makes no effort whatsoever to explain on appeal why she was prejudiced by the exclusion of this evidence.
DISPOSITION
The order is affirmed. Valente is entitled to her costs on appeal.
We concur: LUI, P. J., CHAVEZ, J.