Opinion
D058726
12-02-2011
JEFFREY H. FREEDMAN, Plaintiff and Respondent, v. PAUL HOWARD HUPP, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2010-00102264-CU-HR-CTL)
APPEAL from an order of the Superior Court of San Diego County, Margo L. Lewis, Judge. Affirmed.
Defendant Paul Howard Hupp, a self-represented litigant, appeals from an order granting an injunction against harassment issued under Code of Civil Procedure section 527.6 in favor of plaintiff Jeffrey Freedman. The order enjoins Hupp from coming within 100 feet of Freedman and his wife, their home, vehicles and workplaces; owning or possessing firearms; and harassing or otherwise contacting Freedman. Hupp contends insufficient evidence supports the order. We affirm.
All statutory references are to the Code of Civil Procedure unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
We state the background facts in Freedman's favor from the limited appellate record before us, primarily from Freedman's October 8, 2010 declaration in support of his request for an order to stop harassment.
In October 2010, Freedman filed a request that the court issue a restraining order against Hupp. In a supporting declaration, Freedman averred that in June 1998, while employed as a pro tem Administrative Law Judge, he presided over Hupp's administrative appeal of a credentialing commission's decision to deny Hupp an emergency teaching permit. In July 1998, Freedman issued an opinion upholding the commission's denial of the permit. Hupp filed a petition for writ of mandamus in the superior court and obtained a reversal. In 2000, Hupp sent a letter to Freedman's home, addressed in an envelope to " 'Jeffrey "Dickhead" Freedman,' " enclosing a copy of the superior court's order and a note that said " 'pull your head from your ass.' " After that, Freedman heard nothing from Hupp for approximately six years.
Freedman averred that in early 2006, he received two obscene telephone calls in which he was called profane names. Then, in June 2006, Hupp sent Freedman a letter to his home address, attaching a copy of Freedman's 1998 decision marked up with obscene comments. Based on the comments contained in the letter, Freedman applied for and obtained a restraining order against Hupp for a three-year period. That restraining order expired on July 7, 2009.
In part, the letter stated it was a "miracle" that nothing had happened to Freedman "[b]ased on the lies and damages [he] caused . . . ." It referred to Freedman as a "cock sucking piece of shit" and a "bitch." It ended with the remark: "You have a beautiful home!"
In his declaration, Freedman summarized letters he had received in 2009 and 2010, and his attempt to obtain another restraining order against Hupp. Specifically, Freedman stated that in October 2009, he received an obscene letter at his home and office. The letter read: "Hey you little cock sucking mother-fucker have you lied under oath recently you little fucking bitch????? Why don't you do the world a favor and get cancer and DIE. Because the world will be a much better place without a perjuring piece of shit like you in it."
In March 2010, Freedman received another letter at both his home and office. This letter read: "Your PERJURING days are OVER you little cock sucking piece of shit. You can run but you can't hide. Remember that you little bitch. 3712 ALBATROSS." The Albatross address was Freedman's home address.
Freedman averred that he thereafter obtained a temporary restraining order, and a hearing was set for April 29, 2010. When service attempts on Hupp did not succeed, the superior court reissued the temporary restraining order and reset the hearing to May 20, 2010. After numerous other unsuccessful service attempts on Hupp, the matter was taken off calendar.
On September 18, 2010, Freedman received a third letter at both his home and office, stating: "WHAT DID I TELL YOU BITCH. YOUR PERJURING DAYS ARE OVER YOU COCK SUCKING MOTHER FUCKER. REMEMBER THAT THE NEXT
TIME YOU THINK ABOUT COMMITTING PERJURY YOU LITTLE FUCKING COCK SUCKER."
Freedman stated: "In light of Mr. Hupp's willingness to harass me after being ordered to stop in 2006, and the escalation of the language in recent letters, I have become very concerned. The resumption of threat letters after the 2006 restraining order expired has caused me and my wife to feel even more threatened, harassed and in fear of our safety than we did when the first restraining order was granted in 2006. This relentless barrage of obscene threats truly terrorizes me and my wife, and is hurting our peace of mind and security."
Hupp opposed Freedman's request. He submitted his own declaration in which he denied making any of the referenced phone calls or letters, and asserted that Freedman had not made any claim that he (Hupp) had sent the letters. Hupp characterized Freedman's claims as unsupported by any evidence. Hupp also filed, among other things, a "Motion to Strike and Opposition" to Freedman's declaration, objecting to portions of the declaration on various grounds.
Freedman states in his brief that the declaration is unsigned, but the appendix before us contains what appears to be an original signature next to the typewritten notation, "/s/ Paul Hupp."
Hupp's November 10, 2010 motion to strike was submitted to this court in a "Reply Appendix" with five additional documents, redundantly labeled Appendix A through F. With the exception of Appendix F, which is a copy of the trial court's November 15, 2010 minute order, all of the documents are filed-stamped copies of pleadings filed in the case. On our own motion, we will judicially notice the court records in Hupp's reply appendix under Evidence Code sections 452, subdivision (d) and 459.
On November 15, 2010, the trial court issued a 100-yard stay-away order in favor of Freedman and Mary Linn Freedman as the protected persons, to expire at midnight on November 14, 2013. The order forbids Hupp from owning or possessing firearms, and contains contact prohibitions. The trial court's minute order begins with the following statement: "The Court notes for the record that it is 11:10 [a.m.] and there is no appearance by the respondent. After further review of the file, the Court notes that an ex-parte request to appear telephonically was filed by the respondent on Friday, November [12, 2010]. There has been no phone call from the respondent."
Hupp filed the present appeal.
DISCUSSION
I. Hupp's Motion to Strike Portions of Freedman's Brief
Hupp has moved to strike portions of Freedman's brief on appeal. Pointing to the written objections and motion to strike Freedman's declaration he had filed in the trial court, Hupp reasserts those objections and request to strike, arguing Freedman should not have included certain statements in his respondent's brief without submitting evidentiary support for them on appeal. In footnotes, Hupp asserts additional objections to Freedman's factual statements and various references in Freedman's brief to the phone calls, letters, and other documents, including on grounds they are irrelevant, lack foundation, cite to evidence not in the record, or are hearsay. Hupp also argues we should disregard Freedman's references to the absence of a reporter's transcript on appeal, because "[r]espondent Freedman had the legal right to ask for the 'oral record' and introduce into evidence anything he wanted to that was missing from the record. He himself chose not to. See CRC rules 8.124(a), 8.124(b)(5)."
We deny Hupp's motion to strike. While it is proper to strike references in appellate briefs to evidence that is not in the record (see, e.g., C.J.A. Corp. v. Trans-Action Financial Corp. (2001) 86 Cal.App.4th 664, 673), Freedman did not cite to matters outside the record in his respondent's brief. Rather, as Freedman points out, he cites to his own October 8, 2010 declaration in support of his request for a restraining order. It is of no moment that the declaration's supporting exhibits are not included in the appendix; those exhibits are referenced in the declaration, and on appeal, we indulge all presumptions in favor of the order (Denham v. Superior Court (1970) 2 Cal.3d 557, 564) that the court had those referenced exhibits before it and that they support the statements made in that declaration. In any event, Freedman recited the contents of the letters in his declaration, and Hupp has not shown that to be an inappropriate method of bringing such matters before the court.
To the extent by his motion to strike Hupp seeks to renew the evidentiary objections he made below to the statements contained in Freedman's brief, those objections are forfeited. In his opening brief on appeal, Hupp does not discuss his objections, examine Freedman's evidence in any detail, or provide relevant authority or legal argument demonstrating why we should hold Freedman's declaration, or portions of it, inadmissible. (See Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 ["An appellate court is not required to examine undeveloped claims, nor to make arguments for parties"]; People v. Stanley (1995) 10 Cal.4th 764, 793 [appellate court's role is to evaluate legal argument with citation of authorities on the points made].) Thus, we presume the trial court overruled Hupp's objections; we have no basis to hold otherwise. An appellate motion to strike, which is used to attack a brief that does not comply with the California Rules of Court (see Cal. Rules of Court, rule 8.204(e)(2)), is not the proper avenue for such evidentiary challenges.
Further, Hupp's motion to strike reveals a fundamental misunderstanding of the appellant's role on appeal. It is Hupp who carries the burden of presenting an adequate record so as to affirmatively demonstrate trial court error. (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 494; Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794; see Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) " 'A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.' " ( Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) It was not for Freedman to submit documents for the appellate record, as Hupp repeatedly maintains. If Hupp's point is that Freedman's declaration is somehow inadequate by itself to support the court's restraining order, it is Hupp's burden in his appellant's opening brief to explain how the evidence did not meet the legal standards for such an order. We will proceed to assess whether Hupp has adequately done so.
II. Legal Principles and Appellate Review Standards Applicable to a Section 527.6
Restraining Order
Section 527.6 provides that a temporary restraining order and an injunction prohibiting harassment may be sought when there is harassment; that is, "unlawful violence, a credible threat of violence, or 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).)
A trial court must find clear and convincing evidence that unlawful harassment exists. (§ 527.6, subd. (d).) If the court determines that a party has met the "clear and convincing" burden, its determination will not be disturbed on appeal without a showing of a clear abuse of discretion. (Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912; Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1111, fn. 2.)
On appeal, we review the trial court's evidentiary findings under the substantial evidence standard, resolving all factual conflicts and questions of credibility in the respondent's favor and drawing all legitimate and reasonable inferences to uphold the judgment. (Shapiro v. San Diego City Council, supra, 96 Cal.App.4th at p. 912; Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.) Where the record is silent, we presume the trial court made the factual findings necessary to support its order. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564; Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409 [citing cases; appellate court starts with presumption that the record contains evidence to sustain every finding of fact].) "It is the appellant's burden, not the court's, to identify and establish deficiencies in the evidence." (Huong, at p. 409.) Even if the evidence is subject to more than one reasonable interpretation, we may not reweigh it or choose among alternative permissible inferences. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.) In that case, we are without power to substitute our deductions for those of the trial court. (Shapiro, at p. 912.)
III. Claim of Insufficiency of the Evidence
Hupp contends the trial court's restraining order is not supported by the evidence. He begins by purporting to state the elements of such an order, but presents no supporting authority for the proposition. He next argues that "the letters Freedman claims he has received hardly constitute a credible threat of violence." Hupp reasons, however, that the point is "moot" because Freedman did not "allege the letters came from Mr. Hupp, and more importantly . . . failed to prove that Mr. Hupp has any connection to the so called letters at all." According to Hupp, "[t]he burden of proof is always on the moving party — Freedman, not Mr. Hupp — [and] under the standard the hearing court used anyone could go into court and make up virtually any wild, crazy story, claim they feel threatened and then make a claim against virtually anyone without regard to proving their case up." Hupp concludes by asserting that Freedman "makes no allegation" that he (Hupp) was responsible for these letters. This is the entirety of Hupp's legal argument.
In fact, Hupp's recitation is incorrect. There are three types of actionable harassment under section 527.6: (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, subd. (b).) A course of conduct is "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual . . . ." (§ 527.6, subd. (b)(3).) Hupp cites no case authority at all in his appellate opening and reply briefs on this point.
As with Hupp's motion to strike, the foregoing arguments entirely misunderstand the appellate review standards recited above. Rather, his arguments are akin to those made by the appellant in Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116: Instead of a fair and sincere effort to show that the trial court was wrong, appellant's brief is a mere challenge to respondents to prove that the court was right.' " ' " Given such an argument, the Guthrey Court of Appeal held the contention was waived. (Id. at p. 1116.) We so hold here.
Hupp's sufficiency of the evidence challenges fails for another reason, namely, Hupp's failure to fairly summarize and analyze the evidence before the trial court. "Where the appellant challenges the sufficiency of the evidence, the reviewing court must start with the presumption that the record contains evidence sufficient to support the judgment; it is the appellant's burden to demonstrate otherwise. [Citation.] The appellant's brief must set forth all of the material evidence bearing on the issue, not merely the evidence favorable to the appellant, and it also must show how the evidence does not sustain the challenged finding. [Citations.] And the appellant must support all of its factual assertions with citations to evidence in the appellate record. [Citations.] If the appellant fails to set forth all of the material evidence, its claim of insufficiency of the evidence is waived." (Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 368.)
In short, Hupp did not tailor his arguments according to the applicable standard of appellate review, as he must. (Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1388.) Here, Hupp was required to show the trial court abused its discretion in entering the restraining orders in Freedman's favor; he must explain how the court exceeded the bounds of reason and caused a miscarriage of justice in finding, expressly or impliedly, that Hupp engaged in acts constituting unlawful harassment. (Denham v. Superior Court, supra, 2 Cal.3d at p. 566; Fassberg Const. Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 762-763.) He has not made that showing here. We presume the record contains evidence to support every express or implied finding of fact, and absent a fair summary of the evidence and explanation as to why it is insufficient, we shall not disturb the trial court's factual findings. (Huong Que, Inc. v. Luu, supra, 150 Cal.App.4th at p. 409.)
Setting aside Hupp's procedural failures, we conclude in any event that even without a reporter's transcript of the hearing, the record contains sufficient evidence that Hupp engaged in a knowing and willful course of conduct directed at Freedman that seriously alarmed, annoyed, or harassed Freedman, without any legitimate purpose. The testimony of a single witness — even a party like Freedman is here — is enough to support a factual finding. (Fariba v. Dealer Services Corp. (2009) 178 Cal.App.4th 156, 171.) In assessing the parties' respective declarations, it was within the court's discretion to believe Freedman and disbelieve Hupp and, based on the content and style of the letters, conclude that Hupp sent them. The trial court may reject witness testimony as part of a credibility assessment. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204-1205.) It is the exclusive province of the trial court to determine witness credibility, and we have no power on appeal to consider the credibility of the witness, weigh the evidence, or resolve conflicts in the evidence. (Navarro v. Perron (2004) 122 Cal.App.4th 797, 803.) We therefore affirm the trial court's section 527.6 order.
On November 1, 2011, Hupp filed a request that this court take judicial notice of (1) an October 18, 2011 order entered in the United States District Court case of Hupp v. Freeman (S.D.Cal., No. 11-CV-2337), permitting Hupp to proceed in propria persona and ordering the United States Marshall to serve a copy of his civil rights complaint on defendants; (2) a copy of Hupp's first amended complaint in that federal action; and (3) the first page of Freedman's October 14, 2010 declaration in this matter. Hupp mischaracterizes the order as including a "sua sponte review" of the sufficiency of his federal court complaint, and he argues all of these items "relate directly to the veracity, credibility, and bias of Freedman . . . ." We deny Hupp's request for judicial notice of the order and his first amended complaint, as none of these items were before the trial court when it considered Freeman's request. (See Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 [appellate court will consider only matters which were part of the record at the time the judgment was entered].) We alternatively deny Hupp's request for judicial notice in its entirety on grounds he has not meaningfully demonstrated the relevance of any of these documents to Freeman's request for an order under section 527.6. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.)
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In reaching our conclusion, we are mindful that Hupp represents himself on appeal. However, his status as a party appearing in propria persona does not provide a basis for preferential consideration. "A party proceeding in propria persona 'is to be treated like any other party and is entitled to the same, but no greater[,] consideration than other litigants and attorneys.' [Citation.] Indeed, ' "the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.(First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1.)
DISPOSITION
The order is affirmed.
O'ROURKE, J. WE CONCUR:
BENKE, Acting P. J.
McDONALD, J.