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Ginsky v. Dold

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Sep 6, 2012
D059059 (Cal. Ct. App. Sep. 6, 2012)

Opinion

D059059

09-06-2012

BEVERLY GINSKY, Plaintiff and Respondent, v. DAVID DOLD, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DV032068)

APPEAL from a judgment of the Superior Court of San Diego County, Edward P. Allard III, Judge. Affirmed.

After an evidentiary hearing, the trial court issued a protective order under California's Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) (Elder Abuse Act), prohibiting David Dold from contacting, striking, or otherwise abusing his 82-year-old neighbor, Beverly Ginsky, and ordering him to stay at least 10 feet from Ginsky, her home and her vehicle. Dold also was prohibited from owning a gun.

Dold contends: (1) he was denied a fair hearing; (2) he should not be held liable for the actions of his live-in partner, Joseph Larson, who was not a named party in this action; (3) the trial court relied on impermissible character evidence; and (4) there was insufficient evidence Ginsky experienced mental suffering because of Dold's conduct. We affirm.

BACKGROUND

In October 2010, Ginsky sought a protective order against Dold under the Elder Abuse Act. Ginsky stated in a declaration that approximately six months earlier she was on the street and Dold got close to her, yelling, "Go to hell and get fucked!" She added, "[W]hat causes me the most concern is the way that [Dold] travels on his motorbike up and down my street. He is always exceeds [sic]the speed limit and has no concern for safety. Whenever [he] sees me walking around the neighborhood, he intentionally swerves in my direction in order to try and act like he is going to hit me. I am terrified that one day he will actually end up seriously injuring me. I am 82 years old and it is very difficult for me to move swiftly. . . ."

Ginsky further declared that on September 13, 2010, as she was walking in the neighborhood, Dold yelled at her when she stopped to speak to Dold's dog walker. Dold pointed his finger at her and made a sign like he was shooting her with his pointed finger and thumb. Ginsky became upset and scared by Dold's aggressive actions. The court granted Ginsky a temporary restraining order, and set a hearing for November 3, 2010. At that hearing, the court continued the proceedings to November 17, and stated it would not hear oral testimony from any witnesses except Dold and Ginsky. The court noted it had seen both parties' declarations, but considered them biased.

Dold was self-represented at the November 17, 2010 hearing. Ginsky's attorney referenced a long-running neighborhood dispute involving Dold and others and stated that, "During that case, there were . . . a lot of people from the same neighborhood that were set up to testify as witnesses on behalf of [one of the parties]. But, again, [Ginsky] was not a party to that case, and nor was she a protected party. However, she was a witness in that case." The trial court repeatedly reminded the parties that the sole issue before it was the protective order petition, and not the larger neighborhood dispute.

We grant Dold's August 15, 2011 request to take judicial notice of the filings in that separate case (Larson v. Archbold (Super. Ct. San Diego County, 2008, No. 37-2008-0076364-CU-HR-CTL)). Nonetheless, we note that "a court may not take judicial notice of the truth of factual assertions made in the documents of a previous case." (Western Mutual Ins. Co. v. Yamamoto (1994) 29 Cal.App.4th 1474, 1485; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1567.)

Ginsky testified at the hearing in accord with her declaration: "Mr. Dold, because of his unprovoked and intimidating actions, such as screaming in my face, calling me vulgar names, using profanity, intentionally swerving his motorcycle in my direction as if he'll run me over, pointed his finger like this at me (indicating), as if it were a gun. And he was going—allowing his partner to place signs on his van, intimidating me and putting my name and address on it, with all kinds of descriptions of my 'awful behavior,' my 'hatred of gays,' so on and so forth, which is not true. I feel threatened and harassed. I feel vulnerable and frightened in my own neighborhood, and . . . my mood and my appetite and my sleep patterns have suffered greatly." In one incident, Dold told Ginsky she was a "devil," and was going to "hell." Ginsky said that during the September 13, 2010 incident, she merely was saying "hi" to Dold's dog walker when Dold told her she had no business doing that. She claimed that approximately four times in the previous two months Dold had driven his motorcycle toward her in an intimidating manner; she believed he did it intentionally.

Ginsky was asked at the hearing, "Can you tell me a little bit about your health concerns? Are you in good health, and has this harassment, or this alleged harassment, changed—[?]" She replied, "My mood, appetite, and sleep patterns have suffered because I—I just—I dream about being thrown over the canyon by Mr. Dold, and it's very frightening for me. My quality of life is diminished sharply. I can no longer enjoy my lawn, my sociable neighborhood walks, because of fear of Mr. Dold's rage." Ginsky also testified that Dold's actions made her feel "threatened and harassed," and she spent most of her time in her house. Ginsky claimed one of her children had to accompany her when she left her house because she feared Dold.

Dold testified regarding photographic exhibits showing Larson's van covered with handwritten placards that referred to Ginsky. Dold stated, "There's one [placard] that I wrote," which said, "Stop the madness." That placard referenced three unsuccessful attempts by Dold and his partner to mediate with their neighbors, the Archbolds. Dold admitted he was present when Larson prepared the placards, and Dold did not tell Larson to remove the placards from the van. Dold acknowledged that one of the placards referred to him as Larson's partner. That placard stated, "Your Neighbors have begun the Next phase of their campaign to drive My Partner and I . . . from our Home! ! ! The Archbolds' second Attempt to acquire a Restraining Order was unsuccessful Again. As of Monday. The next Day Beverly Ginsky . . . filed for a third TRO claiming Elder Abuse. She claims to be shaken, worried, & deeply disturbed by a conversation in the street that occurred 40 days ago. Until Tuesday, she had not called police or raised this issue to anyone. Not fellow neighbor, police, or the city elder Abuse Hotline! Is she a victim or Bully. You deciede [sic]." Another placard stated in part, "This filing by Ms. Ginsky is more Dirty Tricks. Come hear first hand what is Really Happening." Dold testified he supported Larson's right to put up the posters, which Dold believed were factual and not harassing.

After Dold explained to the court the effect the years-long neighborhood dispute had had on him and Larson, this exchange took place regarding Dold's witnesses whose testimony was excluded:

"[Dold]: I was trying to be supportive of my partner. This has been extremely emotional for us. We feel like we're being driven out of our home. And most people are getting disinformation about what's going on, that there's restraining orders out against us or that we're drug dealers or that—all these things that have been said, these salacious lies that have been going on just for years about us. The predominance of comments were positive, that they were supportive, that they're sorry this was happening to us again. And most all comments were sympathetic. [¶] I interviewed every person on that [neighborhood] map to talk to them. Had they seen anything? They had not. Had they witnessed me yelling at Ms. Ginsky like she stated? They had not. So like I said, this is a very tight-knit neighborhood. I can't have my family come over. I can't even have a guest go walk my dogs without Ms. Ginsky accosting them."

"The Court: Accosting the dogs?

"[Dold]: No, the person walking the dog. She recognizes the dog. I've got—my alumni live in the neighborhood. I'm getting calls from them about things she

"The Court: Are they here today to testify on your behalf?

"[Dold]: They were here last time.

"The Court: Well, today is the day for the hearing.

"[Dold]: Well, you said no more witnesses at all.

"The Court: All right. Go ahead.

"[Dold]: Mr. Parker wrote a statement. He was perfectly willing to testify. But your last order was, no witnesses.

"The Court: All right. Go ahead."

The proceedings continued, and Dold denied trying to hit Ginsky with his motorcycle. Dold testified, "The only conversations that I've had that have been negative with Ms. Ginsky, she has perpetrated. It's her provocative behavior." Dold claimed, "I have great respect for Ms. Ginsky. She's just a neighbor to me. I don't have any angst or ill will toward her. I wish her no ill will."

The court countered, "I have a difficult time understanding—giving any credibility to your comment about having no angst or ill will towards . . . Ms. Ginsky when you and your partner put . . . the signs that you did. Frankly, Mr. Dold, that is not rational." The court explained, "[T]hat's the reason why, frankly, those placards and posters, I view as, in a sense, in this case, it is maybe the straw that breaks the camel's back. Because it does evidence to this Court that—actions that you are willing to take, actions that are very public in nature." The court continued, "And what you and your partner did is, you publicly attacked Ms. Ginsky and others. And I view that as harassment. Because it is not conduct of an objective or rational person. And it evidences to me, Mr. Dold, it gives me some insight in terms of who you are, what actions you will take. So when you tell me that, as an example, you harbor no ill will towards her, those placards and posters say otherwise."

The court pointed out to Dold, "[Y]our testimony is very clear. You were fully supportive of those placards and posters being put out there for the public. There is no doubt about it. You knew what [Larson] said, who it was directed to. You knew your name was being used in those, and you were [fully] supportive [of your partner]. And that's basically—it's as if you were—for all intents and purposes, you were a co-conspirator. You are now held accountable for that."

The court found Ginsky's testimony was credible: "I have heard [Ginsky's] testimony. That is evidence. Her testimony, if you will, standing alone, if believed, constitutes evidence of harassment and elder abuse by you. . . . I understand your position[, which] is, 'Didn't happen.' Her position is, 'Did happen.' [She] testified to it. Coupled with . . . the posters and the placards. Okay? So I've watched her testimony. I've listened to her. I find her to be credible."

Dold told the court, "I apologize for the signs. It was an error in judgment. I should not have allowed this to happen. You're right. I deeply apologize for that." Dold also explained he was under emotional duress, and did not intentionally harass Ginsky. The court rebutted that argument, "Mr. Dold, when you take time to make . . . six placards at least, put them up, there is an abundant time for reflection. Abundant time for reflection. This is not heat of the moment. It took time to prepare those. It took time to word those. It took time to put them up. It was not an instantaneous act. It was not heat of the moment. It was done with reflection in terms of what was going to be said, who it was going to be said about, where it was going to be put, who would see it."

The court ruled, "I find, as a result of all the evidence that has been presented in this case, that elder abuse has been perpetrated against [Ginsky]. I find there's a continuing need for [a] restraining order, and I grant her request."

DISCUSSION


I.

"We review the issuance of a protective order under the Elder Abuse Act for abuse of discretion, and we review the factual findings necessary to support the protective order for substantial evidence." (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 135.) "We 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.] [¶] . . . [Welfare and Institutions Code,] [s]ection 15657.03 does not require findings to be made by clear and convincing evidence; therefore, a preponderance of the evidence is sufficient." (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137-1138, fn. omitted.)

Dold contends the trial court denied him a fair hearing and due process under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution by excluding three witnesses from testifying. Ginsky argues in supplemental briefing that Dold failed to object in the trial court, thus forfeiting this issue on appeal. We disagree with Ginsky.

At the final hearing, Dold twice reminded the trial court that it previously had prohibited other witnesses from testifying. That was sufficient to preserve his right to raise this issue on appeal. Further, at that hearing, the court repeatedly admonished the parties to limit their testimony to the issue of the protective order and to exclude references to the larger neighborhood dispute. In those circumstances, we conclude any further objection by Dold likely would have been futile. (Accord, Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212-213 [" ' "[A party] who submits to the authority of an . . . adverse ruling after making appropriate objections or motions, does not waive the error in the ruling by proceeding in accordance therewith." ' "].)

Nonetheless, we conclude the trial court's decision to exclude other witnesses was not erroneous. Having read their declarations and determined they would testify regarding the larger neighborhood dispute, the trial court exercised its discretion to exclude the witnesses' testimony because it was not germane to the operative issue of whether Ginsky had made a claim for elder abuse entitling her to a protective order. At the final hearing, the court apparently forgot its previous order and asked Dold if his witnesses were available. But the trial court had inherent authority to exclude Dold's witnesses on grounds their testimony would consume excessive time or focus on irrelevant matters relating to the larger neighborhood dispute.

On appeal Dold fails to show specifically how the three excluded witnesses' testimony was relevant to his defense and what prejudice he suffered from the exclusion. Instead, in his opening brief he limits himself to two conclusory statements regarding the importance of the excluded testimony: "The court barred testimony from [Dold's] witnesses[:] Larson, Haskell and Parker. The court never heard their testimony. The court was never able to weight [sic] their credibility." And, "[Dold] had witnesses in court at the November 3, 2010 hearing to establish that [he] had no culpability. The court excluded them for no apparent reason, and then held the lack of witnesses against him." In his reply brief, Dold acknowledges he did not make an offer of proof regarding the witnesses' proposed testimony, but claims the court did not seek such a proffer. He also claims, "Larson was the only witness who could testify as to Dold's assertions that he had nothing to do with the only signs that involved Ginsky,[] and that Dold had no control over Larson's actions."

We may treat this latter claim as forfeited. " '[T]he rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before. [Citations.]' [Citation.]" (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26.) At any rate, the claim regarding the excluded witnesses fails on the merits because reversible error requires showing of miscarriage of justice, which occurs " ' "only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." ' " (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.)

We assume for the sake of argument that the excluded witnesses would have testified that they did not see Dold yelling at Ginsky or driving his motorcycle recklessly in her direction, and that Ginsky accosted Dold's dog walker. As a factual matter, such testimony does not prove that Dold did not harass Ginsky; rather, it only proves those witnesses did not see Dold engage in such conduct. As a legal matter, Ginsky's own testimony, which the trial court repeatedly stated it found credible, was substantial and supported the grant of the protective order. "The testimony of one witness, if believed, may be sufficient to prove any fact. (Evid. Code, § 411.)" (People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1508.)

Assuming further that Larson would have testified regarding his and Dold's roles in making the placards, such testimony would not change the fact Dold admitted making one of the placards, and he knew another one referred to him as Larson's partner. The court found the placards were used to harass Ginsky. Dold apologized to the court for permitting the placards to be posted. Therefore, any error in excluding testimony from Dold's witnesses was harmless, and does not justify reversal of the judgment.

Dold claims Elkins v. Superior Court (2007) 41 Cal.4th 1337 applies here and the trial court erroneously excluded his witnesses in light of the court's challenge to his credibility. We disagree. Elkins involved a challenge to a Contra Costa Superior Court local rule and trial scheduling order in family court that "provided that in dissolution trials, parties must present their cases by means of written declarations. The testimony of witnesses under direct examination was not allowed except in 'unusual circumstances,' although upon request parties were permitted to cross-examine declarants." (Elkins, supra, at p. 1344.) The California Supreme Court disapproved of the local rule and the court's order: "In applying the local rule and order mechanically to exclude nearly all of petitioner's evidence—and proceeding, in the words of the trial court, 'quasi by default'—the trial court improperly impaired petitioner's ability to present his case, thereby prejudicing him and requiring reversal of the judgment." (Elkins, supra, at p. 1365, fn. omitted.)

Here, by contrast, the trial court permitted both Ginsky and Dold to testify regarding the basis for the protective order request, and allowed cross-examination. The court also admitted photographic exhibits into evidence. Further, the basis of the court's credibility challenge was limited to Dold's claim he had no ill will toward Ginsky. Dold conceded he exercised poor judgment regarding the posting of the placards and apologized.

Finally, we reject defendant's contention that the exclusion of the witnesses' testimony violated the federal Constitution. Application of the ordinary rules of evidence generally does not impermissibly infringe on a defendant's constitutional rights. (See People v. Cudjo (1993) 6 Cal.4th 585, 611.) Dold fails to persuade us this case constitutes an exception to that general rule.

II.

Dold contends the trial court issued the protective order by improperly relying on Larson's conduct. Dold further claims, "The conspiracy theory put forth by the court attempted to create a civil conspiracy where none exists" because the essential elements of a conspiracy as defined in CACI No. 3600 are not met in this case.

Dold misconstrues the court's statement to Dold: "For all intents and purposes, you were a co-conspirator." In context, that one-time, passing comparison of Dold to a coconspirator was not dispositive. The court did not purport to require proof of the elements of a conspiracy, which is a separate cause of action not needed to make out a claim under the Elder Abuse Act. More importantly, the court did not hold Dold responsible for Larson's actions; rather, it ascertained Dold's precise role in posting the placards on Larson's vehicle. As noted, Dold admitted he had written one of the placards; was aware the placards referred to him as Larson's "partner"; and generally supported Larson's public protest. We conclude the court held Dold accountable for his own conduct. Therefore, this claim fails. We note that notwithstanding the trial court's statement that the placards on Larson's van were "maybe the straw that breaks the camel's back," the court did not rely exclusively on that evidence. Rather, the court also relied on other substantial evidence, including Ginsky's testimony regarding the different ways Dold had harassed her.

III.

Dold contends that in granting the restraining order, the court relied on inadmissible character evidence. Specifically, he points to the court's statement that Dold's actions regarding the placards gave it "some insight in terms of who you are, what actions you will take."

Dold misapprehends the court's comment, which merely noted that notwithstanding Dold's claim he had no ill will toward Ginsky, Dold's actions and involvement in posting the placards led the court to reach a contrary conclusion. As noted, the court's ruling makes plain it relied on actions Dold took against Ginsky, not Dold's words or his character. The court did not err.

IV.

Dold contends there was insufficient evidence Ginsky suffered mental suffering as defined by CACI No. 1600, which sets forth essential factual elements of an intentional infliction of emotional distress claim. He further argues that for purposes of issuing protective orders, the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.) and the Elderly Abuse Act use identical language. He contends the trial court's own comment disproved the conclusion Dold intended to cause Ginsky emotional distress, because the court had commented, "Mr. Dold, here is what you do not understand. When you and your partner permitted those posters and placards to be put up in public display that were directed at Ms. Ginsky, you didn't think for a second how that was going to affect her emotionally." (Italics added.)

To make out a claim under the Elder Abuse Act, the victim must prove that he or she suffered "[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting harm or pain or mental suffering; or [¶] []The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering." (Welf. & Inst. Code, § 15610.07.) The Elder Abuse Act defines "mental suffering" as "fear, agitation, confusion, severe depression or other forms of serious emotional distress that is brought about by forms of intimidating behavior, threats, harassment, or by deceptive acts performed or false or misleading statements made with malicious intent to agitate, confuse, frighten, or cause severe depression or serious emotional distress of the elder or dependent adult." (Welf. & Inst. Code, § 15610.53.) As noted, Ginsky testified that Dold's harassment caused her mood, appetite and sleep patterns to suffer greatly. She was always accompanied by another person when she left her house because she was afraid of what Dold might do. She spoke of nightmares about the harm Dold might inflict on her. This evidence was sufficient to prove Ginsky's mental suffering. CACI No. 1600 simply is not applicable to a claim made under the Elder Abuse Act, and Ginsky does not claim Dold committed the tort of intentional infliction of emotional distress. Finally, whatever similarities the Domestic Violence Prevention Act has with the Elder Abuse Act are immaterial on the issue of Ginsky's mental suffering because she did not make a claim under the Domestic Violence Prevention Act.

For the first time during oral argument Dold argued that under the Elder Abuse Act he lacked the intent to cause Ginsky mental suffering because he did not act with malicious intent. "An appellate court is not required to consider any point made for the first time at oral argument, and it will be deemed waived." (Kinney v. Vaccari (1980) 27 Cal.3d 348, 356-357, fn. 6.) At any rate, we regard Dold's action of driving his motorcycle toward Ginsky and pointing his fingers at her in the form of a gun as "intimidating behavior" that caused her severe emotional distress.

DISPOSITION

The judgment is affirmed. Beverly Ginsky is awarded costs on appeal.

O'ROURKE, J. WE CONCUR:

HALLER, Acting P. J.

IRION, J.


Summaries of

Ginsky v. Dold

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Sep 6, 2012
D059059 (Cal. Ct. App. Sep. 6, 2012)
Case details for

Ginsky v. Dold

Case Details

Full title:BEVERLY GINSKY, Plaintiff and Respondent, v. DAVID DOLD, Defendant and…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Sep 6, 2012

Citations

D059059 (Cal. Ct. App. Sep. 6, 2012)