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Doebler v. Douglas

California Court of Appeals, Second District, Fourth Division
Apr 21, 2009
No. B206778 (Cal. Ct. App. Apr. 21, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. KS012315, Charles Horan, Judge.

Kosnett & Durchfort and David E. Durchfort for Defendant and Appellant.

Christine D. Thielo for Plaintiff and Respondent.


WILLHITE, Acting P. J.

Kendra Douglas appeals from the superior court’s order granting the application of Robert Doebler II under Code of Civil Procedure section 527.6 for an injunction prohibiting harassment. The injunction prohibits Douglas, a college professor living in Washington State, from harassing and contacting Doebler for a period of three years. During that time, it also prohibits her from going on the campuses of the Claremont Colleges, where Doebler works, except for the purpose of giving a lecture, and requires her to leave immediately after the lecture. Douglas appeals from the injunction, contending: (1) that the court did not have jurisdiction over her because a proof of service regarding the injunction hearing was not filed; (2) that the trial court erred in not granting her attorney’s request for a continuance of the injunction hearing; and (3) that the prohibition on her presence on the Claremont College campuses other than to lecture is overbroad. We affirm.

All subsequent undesignated statutory references are to the Code of Civil Procedure.

FACTUAL AND PROCEDURAL BACKGROUND

Doebler is the Director of the Bioengineering Laboratory of the Keck Graduate Institute at the Claremont Colleges, and his wife works at the main campus, Claremont McKenna. Douglas is a language professor at Western Washington University in Bellingham, Washington. Prior to the instant case, she would come to the Claremont Campuses on occasion to lecture or attend lectures.

Doebler and Douglas dated in high school in 1983. Twenty years later, at a high school reunion, Douglas reintroduced herself to Doebler and met his wife. In April through August 2005, Doebler and Douglas reestablished a romantic interest, and communicated by e-mail for about a year. They had two intimate occasions that did not result in intercourse.

Doebler tried to distance himself from Douglas, and stopped regularly responding to her e-mails and telephone calls. Beginning in June 2007, Douglas began sending an increasing number of disturbing e-mails and leaving phone messages. On July 27, 2007, Doebler received 14 e-mails from Douglas complaining that he was ignoring her. Doebler responded that he was busy at work, and began using a spam filer to screen Douglas’ e-mails. On August 2, 2007, Doebler e-mailed Douglas that he no longer wanted to be considered a close friend and suggested communicating only twice a year. The next day at work, he received 14 e-mails from Douglas using multiple e-mail accounts in an attempt to circumvent his spam filter. Douglas demanded a “resolution,” and in one e-mail ordered Doebler to answer the phone and “pacify [her] anger.” She wrote that “[y]ou reap what you sow. Do you want to reap catastrophic destruction? Because that is how I’m feeling.”

Douglas’ pattern of obsessive, repetitive e-mails continued through September 2007, including an e-mail to Doebler’s wife at her work asking why she had not contacted Douglas to get “better insight” into the situation. In early September 2007, the Claremont Colleges Department of Campus Safety reported that Douglas was observed sitting in a car in the parking lot in front of Doebler’s car. Douglas told the reporting officer that she was waiting for Doebler. At the end of September, Doebler and his wife filed a complaint with the Department of Campus Safety. The Department referred the report to the Claremont Police Department. A Claremont Police Officer interviewed Doebler and his wife, and later telephoned Douglas and told her that if she did not cease contact with Doebler and his wife she might be subject to criminal prosecution.

In the months thereafter, Douglas began a pattern of e-mailing Doebler’s best friend at work – more than 300 e-mails in all -- complaining about Doebler’s treatment of her. She continued to try to contact Doebler. On occasion he responded to placate her and tell her to stop. Douglas also contacted the Department of Campus Safety to complain about the report Doebler had filed. According to Sergeant John Teuber of the Department of Campus Safety, he received at least two telephone calls from Douglas, a dozen e-mails, and met with her at the Campus Safety Office. She appeared at the Safety Office several other times when Sergeant Teuber was not available to talk to her. Sergeant Teuber told Douglas “that there were no charges pending against her and... that she was demonstrating a pattern of persistent contact with [him]” similar to her pattern with Doebler. Douglas “recognized that, but was determined to ‘clear the record.’”

On January 25, 2008, the Chief Administrative Officer of the Claremont University Consortium sent Douglas a letter telling her that she was no longer permitted to enter upon any of the Claremont College campuses for the purpose of contacting Doebler or his wife. On January 31, 2008, Douglas sent Doebler’s best friend more than 100 short, angry e-mails. Douglas wrote that “D-Day” would occur unless Doebler talked to her.

On February 13, 2008, Doebler filed an ex parte application for a temporary restraining order against Douglas and a petition for an injunction under section 527.6. Doebler had provided telephonic notice of the ex parte proceeding to Douglas in Washington State two days earlier, on February 11, 2008. The ex parte application and petition for an injunction were supported by Doebler’s own declaration and other exhibits, including more than 200 pages of e-mails. The superior court issued a temporary restraining order, and set a date of February 29, 2008 for hearing on an injunction. Notice of the hearing, as well as the petition and the temporary restraining order, were personally served on Douglas in Bellingham, Washington, on February 19, 2008, and proof of service was filed in the superior court on February 22, 2008.

At the February 29 hearing on the injunction, Douglas was not present, but was represented by counsel. Her attorney, who had been retained approximately two weeks earlier, requested a continuance. He stated that he had received Doebler’s documents the prior week. Although he was familiar with the facts, he had had not filed a response or gone over Douglas’ evidence, and requested time to do so. Later, he stated that Doebler had sent many e-mails to Douglas, which might show that he wanted to communicate with her.

Doebler’s attorney objected to any continuance. She had not been informed until the previous day that a continuance would be requested. Douglas’ attorney had been present in court when the restraining order was issued on February 13. Doebler’s counsel had tried to provide the documents to Douglas’ attorney after the restraining order was issued, but he would not accept them and would not accept service on Douglas’ behalf. Therefore, Doebler was forced to serve Douglas in Washington State.

Douglas’ attorney argued that Douglas was entitled to a reasonable continuance under section 527, subdivision (d)(4). That provision states, in relevant part, that if a temporary restraining order is issued without notice, the opposing party is entitled to one continuance for a reasonable period of at least 15 days before the hearing on an order to show case whether a preliminary injunction should issue. The trial court disagreed with Douglas’ counsel, and denied the request for a continuance.

At the hearing, Doebler and Sergeant Teuber testified briefly. Douglas’ attorney cross-examined Doebler, who testified that Douglas had not attempted to contact him directly since November 2007. Following argument, the court issued an injunction that prohibits Douglas from, among other things, harassing or contacting Douglas and other family members, and that allows her to enter the Claremont Colleges campuses for the purpose of lecturing, but requires her to depart immediately after her lecture.

DISCUSSION

Notice of Hearing on the Injunction

Section 527.6, subdivision (a), provides that “[a] person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an injunction prohibiting harassment as provided in this section.” On application, the court may issue a temporary restraining order with or without notice. (§ 527.6, subd. (c).) Thereafter, the court must hold a hearing on the injunction request within 15 days or, if good cause appears, 22 days. (§ 527.6, subd. (d).) Section 527.6, subdivision (g), provides that at least five days before that hearing, the defendant must be personally served with a copy of the petition for an injunction, the temporary restraining order, and notice of hearing on the petition. (§ 527.6, subd. (g).)

The statute defines harassment, in relevant part, as “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 such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff.” (§ 527.6, subd. (b).)

In her opening brief on appeal, Douglas does not contend that she was not served as required by section 527.6, subdivision (g). She contends, rather, that the record does not show whether she was served. According to Douglas, despite her request, no proof of service was included in the clerk’s transcript on appeal. Therefore, she argues, the court lacked jurisdiction to issue the injunction.

Following the filing of Douglas’ opening brief, at Doebler’s request, the record on appeal was augmented to include a proof of service showing that on February 19, 2008, Douglas was personally served in Washington State as required by section 527.6, subdivision (g), and that the proof of service was filed in the superior court on February 22, 2008. In her reply brief, Douglas states that “[m]ysteriously, a return of service has now been located,” and that “[c]uriously, the docket was never updated to show service was accomplished.” She concedes that the proof of service “probably trumps [her] argument that jurisdiction has not been acquired.”

There is, of course, no mystery and nothing curious. Douglas was served as required by section 527.6, subdivision (g). Following the filing of Douglas’ opening brief, Doebler’s counsel informed the Superior Court Clerk by letter that the record was incomplete. The Superior Court Clerk later filed with this court a Supplemental Clerk’s transcript containing the proof of service, and certified the document as a true and correct copy of the original in its file. To the extent Douglas originally meant to suggest that she was not served, the suggestion was disingenuous. To the extent she suggests in her reply brief that something nefarious occurred in the augmentation of the record, the suggestion is reckless. Finally, there is no “probability” about it -- the proof of service refutes her claim that the court lacked personal jurisdiction.

Denial of a Continuance

Douglas has abandoned her argument, made in the trial court, that she was entitled to a continuance as a matter or right under section 527, subdivision (d)(4). She contends, rather, that the court had discretion to grant a continuance and abused its discretion in denying one. We disagree.

She states in her opening brief: “Since telephonic notice of the ex parte application was given..., it appears appellant was not entitled to an automatic 15-day continuance under... section 527(d)(4).”

“‘A trial court’s exercise of discretion will be upheld if it is based on a “reasoned judgment” and complies with the “... legal principles and policies appropriate to the particular matter at issue.”’ [Citation.]” (Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1603.) In the trial court, Douglas’ counsel conceded that he knew the facts underlying Doebler’s petition, but stated that he wanted a continuance to review Douglas’ evidence and prepare a response. However, other than stating that Doebler had sent Douglas many e-mails, which might show that Doebler wanted communication from Douglas, he made no specific showing of what Douglas’ evidence might be and how it would constitute a valid defense to the claim of harassment, i.e., how it would demonstrate a legitimate purpose for Douglas’ course of conduct. As the trial court aptly observed in finding Douglas’ counsel’s offer of proof irrelevant: “Her e-mails are ridiculously over the top. They show just an obsessive state of mind with this gentleman who she refers to in the most unflattering terms and won’t let it go.” Because Douglas’ counsel failed to make a showing that a continuance was necessary to obtain evidence essential to show that her conduct served a legitimate purpose (cf. Cal. Rules of Court, rule 3.1332(c)(1)), we find no abuse of discretion in the trial court’s denial of a continuance.

On appeal, Douglas contends that Doebler would have suffered no prejudice from a brief continuance, because the temporary restraining order could have been extended until the continued date of the hearing. Perhaps so, but because there was no showing of good cause for the continuance in the first place, the question whether Doebler would have been prejudiced is immaterial. A continuance was not required to give Douglas a fair hearing. Her attorney understood the factual basis of Doebler’s petition, and made no showing that Douglas’ evidence would have been relevant to show that her clearly obsessive course of conduct served a legitimate purpose. Requiring a continuance absent a showing of good cause by Douglas would defeat the purpose of section 527.6 – to provide expedited injunctive relief to harassment victims (see 6 Witkin, Cal. Procedure (5th ed. 2008) Provisional Remedies, p. 252, § 316).

Overbreadth

Douglas contends that the prohibition against her entering upon the Claremont College campuses except to lecture is overbroad. We disagree.

The decision whether to issue an injunction enjoining particular activity rests within the sound discretion of the trial court. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 390.) In reviewing the evidence to determine whether it supports the trial court’s exercise of discretion, we employ the substantial evidence standard. “We resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge in all legitimate and reasonable inferences to uphold the finding of the trial court if it is supported by substantial evidence which is reasonable, credible and of solid value.” (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762 [applying standard to § 527.6].)

Here, at the conclusion of argument by counsel, the court stated that it intended to issue an injunction. Douglas’ attorney stated that although Douglas lived in Washington, she attended lectures at the Claremont campuses and sometimes lectured herself, and could lose her job if she did not attend those lectures. He requested that she be allowed to attend the lectures. Doebler interjected that he worked at a satellite campus and his wife worked at the main campus. He had no objection if Douglas came to the Claremont campuses, but not to contact him or his wife. The court inquired which campus Douglas went to when she attended the lectures. Her attorney did not know.

The court then ruled as follows: “I’m going to grant the order. Without question the order is appropriate in my mind given the length of time this nonsense has occurred and the number of harassing e-mails. They can only be called harassing e-mails. There’s a course of conduct that must come to an end. It will, hopefully, with this order. [¶] In terms of your client’s abilities to go to the Claremont campuses, I will do the following only. I will allow her to go on the Claremont campus[es] for the sole purpose of lecturing. Upon the end of her lecture, she’s to leave. She is in no event to go on any of the campuses for any other reason at any other time.” The court added that because she lived in Washington State, this condition was not an undue burden.

We find no abuse of discretion. The evidence showed that for months Douglas had engaged in an obsessive, irrational campaign of harassment toward Doebler. Some of her e-mails suggested potential harm to Doebler. In August 2007, she wrote to Doebler that “[y]ou reap what you sow. Do you want to reap catastrophic destruction? Because that is how I’m feeling.” In January 2008 she wrote Doebler’s best friend more than 100 short, angry e-mails, in which she stated that “D-Day” would occur unless Doebler talked to her. On one occasion, in early September 2007, she was observed waiting for Doebler by his car in the parking lot where he worked. The court was legitimately concerned, as it commented during argument, that “[t]hese things end very violently and badly sometimes, which is the reason why the court thinks it’s probably appropriate to grant the order.” Hence, it was not unreasonable for the court to attempt to minimize Douglas’ ability to be on the Claremont campuses, where she could easily have access to Doebler and his wife, while at the same time allowing her to be present on a particular campus for the purpose of giving a lecture. That Doebler himself did not request the particulars of such a prohibition is not determinative. The court had an independent obligation to determine the scope of the injunctive relief to be imposed. On this record, the court’s exercise of that independent judgment was not an abuse of discretion.

DISPOSITION

The order is affirmed. Doebler shall recover his costs on appeal.

We concur: MANELLA, J., SUZUKAWA, J.


Summaries of

Doebler v. Douglas

California Court of Appeals, Second District, Fourth Division
Apr 21, 2009
No. B206778 (Cal. Ct. App. Apr. 21, 2009)
Case details for

Doebler v. Douglas

Case Details

Full title:ROBERT DOEBLER II, Plaintiff and Respondent, v. KENDRA DOUGLAS, Defendant…

Court:California Court of Appeals, Second District, Fourth Division

Date published: Apr 21, 2009

Citations

No. B206778 (Cal. Ct. App. Apr. 21, 2009)