Opinion
H035457
10-24-2011
KAREN B. GOLDBERG, Plaintiff and Respondent, v. KENNETH L. CAMPBELL, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CH002923)
Defendant Kenneth L. Campbell appeals from a restraining order issued against him on a petition by plaintiff Karen B. Goldberg under Code of Civil Procedure section 527.6 (§ 527.6). Defendant fails to demonstrate that the order is marred by reversible error. We will therefore affirm. In a companion appeal, we affirm a post-judgment order denying his motion to stay the restraining order.
BACKGROUND
Plaintiff and defendant became friends after meeting at a church bingo game. Their friendship ceased in mid-December, 2009, when plaintiff accused defendant of cheating at bingo, and demanded that he stop.
On February 10, 2010, defendant unexpectedly appeared at a hearing in a proceeding for dissolution of plaintiff's marriage. He later asserted that he was there to communicate with her husband's attorney in order to convey "information that I had that would put [plaintiff's] credibility into orbit." According to his account, he approached the husband's attorney but was promptly detained by the bailiff based upon a "stalking complaint that [plaintiff] had made . . . to the bailiff in the courtroom." The bailiff released him, whereupon he voluntarily left the courthouse.
On February 22, defendant was "involved in [an] altercation with [a] court clerk and bailiff," apparently after the clerk refused an application defendant presented for filing in the dissolution proceedings. According to his own filings below, defendant was arrested at this time, booked into the county jail, and released on his promise to appear on charges of violating Penal Code sections 602.1 (interference with transaction of business by employees or customers of public agency) and 148, subdivision (a)(1) (obstruction of peace officer).
On March 2, 2010, plaintiff filed a request (petition) under section 527.6 naming defendant as the person from whom she sought protection. The petition asked for an order directing defendant to "stay at least 300 yards away from" plaintiff and from several other locations including "court house, St. Joseph Church, St. Francis Cabrini Church." The court issued a temporary restraining order in the requested terms set a hearing to consider a more permanent order.
Defendant filed an answer on March 8, stating that he did not agree to any order that did not call for plaintiff's arrest or punishment. In the answer he requested a jury trial and appointment of counsel. He attached a purported "answer and plea" to the criminal charges lodged on February 22. In it he alleged that he was not guilty because at the time of his arrest he was engaged in constitutionally protected activity, "to wit, access to the courts for intervention as provided by law in [plaintiff's] divorce action . . . ." Defendant's answer was followed by more unusual filings, which are described in greater detail in the Discussion section below.
There was apparently no court docket in the criminal matter at the time. Defendant left an underlined blank where a docket number would ordinarily go, inserting under it the agency case number and "CEN" from the notice to appear.
Plaintiff's petition came on for hearing on March 23, 2010. Defendant appeared in custody, having apparently been arrested for violating the temporary restraining order. Plaintiff, after being sworn, stated among other things that on the evening of March 15 she was informed by attendees at one of the church bingo halls she frequented that defendant was at that location, "trotting around, maybe waiting for me to come." She phoned the sheriff and defendant was apprehended. Defendant stated that he had gone to the church to visit a friend, in accordance with an intention, which he had announced in court filings, to violate the temporary restraining order.
Defendant was apparently alluding to his petition for writ of habeas corpus, which was apparently refused for filing but which he nonetheless got into the file by attaching it to a document entitled "Declaration Against Judge (C.C.P. Sec. 170.6)." In the petition he stated, "Petitioner intends to disobey and challenge said Temporary Restraining Order as being invalid and unenforceable under the laws and Constitution of United States including the State of California."
Plaintiff stated that she was "afraid for [her] well-being and safety," that she "live[d] in [her] car," and that she did not need, in addition, to "be afraid to walk the streets and go where I'd like to go occasionally." This was followed by an exchange in which defendant apparently sought to question plaintiff, but was prevented from doing so because his questions were apparently intended to show that she possessed more wealth than her comment would suggest. After defendant declined to offer anything further, the court issued a three-year restraining order directing him among other things to stay at least 300 yards away from plaintiff and from the two previously specified churches.
"Mr. Campbell: May I cross-examine for a moment?
"The Court: Mr. Campbell, one last time, then we'll be concluded.
"Mr. Campbell: Yes. [¶] You say that you claim to be homeless and sleeping in your car.
"The Court: You can't talk to her. You have to talk to me.
"Mr. Campbell: She's—
"The Court: She's making that claim, yes.
"Mr. Campbell: I'm saying that but she spends $1,000 a night at bingo, approximately.
"Ms. Goldberg: I object. That has nothing to do with the restraining order.
"The Court: I know that you—
"Mr. Campbell: And see—
"The Court: [—]have that issue.
"Ms. Goldberg: Mr. Campbell, I object.
"The Court: Just a moment, please.
"Mr. Campbell: She had previously gave me the money to buy the flashers for her. This is how I know how much she spends.
"Ms. Goldberg: That has nothing to do—
"The Court: I'm not dealing with the financial issue today.
"Ms. Goldberg: Thank you, Your Honor.
"The Court: So that will be another issue that apparently you want to give information in the Family Law court. That's not an issue before me. I'm dealing with the safety issues.
"Ms. Goldberg: Thank you, Your Honor.
"The Court: Now, I see there's another gentleman here. Did you want him to testify?
"Ms. Goldberg: No.
"The Court: Anything else you want to tell me, Mr. Campbell?
"Mr. Campbell: No."
Defendant filed a notice initiating the instant appeal (No. H035457). The notice was timely, and the order was appealable both as a judgment (Code Civ. Proc., § 904.1, subd. (a)(1)) and as "an order granting . . . an injunction" (id., subd. (a)(6)).
Plaintiff has not filed a respondent's brief as such. However she has submitted a handwritten note, addressed "To Whom It May Concern," asserting that on November 15, 2010, she obtained a criminal protective order against defendant (see Pen. Code, § 136.2), after the civil restraining order at issue here "was broken 3 times." Attached to a similar filing in the companion appeal (No. H036024) is an apparent copy of the later order, which prohibits defendant from contacting plaintiff by any means or through any third person other than an attorney, and from coming within 300 yards of her. Rather than objecting that this document has not been properly brought before us, defendant has discussed it at length in his reply brief, effectively admitting its authenticity.
DISCUSSION
Defendant's briefs are deficient in numerous respects. Prominent among these is the absence of any clear charge of error by the trial court. "An appellate court is not required to examine undeveloped claims, nor to make arguments for parties." (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) We recognize of course that defendant is appearing in propria persona, but that fact cannot shift to us his burden, as appellant, to overcome the presumption that the order appealed from is correct. (See McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523, fn. omitted [self-represented appellant was "not entitled to special treatment" but "required to follow the rules," including requirement that brief " 'contain a legal argument with citation of authorities on the points made' "]; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 355, p. 409 [presumption of correctness; "error must be affirmatively shown"].)
In his opening brief defendant lists a number of "motions and applications" that the trial court "ignored and disregarded." He presents no argument or authority that would obligate the trial court to grant any of the cited applications. This failure alone justifies rejection of any implied claim of error. (See Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3, quoting Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 (" 'When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary.' "].)
Further, it readily appears that all of the cited papers were properly ignored or denied. For instance, an "ex parte application for reasonable accommodation[]" requested that as an accommodation to an unspecified and unsubstantiated disability, the court permit defendant "to file papers and documents at county seat, in a divorce action currently pending in the Sunnyvale Courthouse." The meaning of this request is obscure at best, but whatever the intent it appears to be answered by the fact that defendant had no business filing papers in plaintiff's dissolution proceeding at the "county seat," the Sunnyvale courthouse, or anywhere else. He never suggested any legitimate basis on which he might be entitled, or even properly permitted, to take part in a matter in which his only professed interest was to vindictively disparage one of the litigants. The law frowns upon officious intermeddlers; it certainly offers no accommodation, reasonable or otherwise, to malicious ones.
The nearest thing to a contrary argument in any of defendant's numerous filings is a citation to Elms v. Elms (1935) 4 Cal.2d 681. But the court there first affirmed that as a general rule that "the husband and wife are the only parties to an action for divorce." (Id. at p. 683.) It recognized a narrow exception when third parties claim an interest in property which is alleged to belong to the marital community, and neither spouse chooses to join them in the proceeding; in that situation, "such parties may intervene themselves in the divorce action and establish their rights." (Ibid.) Defendant has never claimed a property interest, or any other legally protectable interest, in plaintiff's dissolution proceeding. To all appearances he merely seeks to utilize the courts to spite an ex-friend. (See Muller v. Muller (1956) 141 Cal.App.2d 722, 732 [that appellant was appearing in propria persona "affords no excuse for permitting him to abuse the legal processes"].)
Nor does defendant identify any arguable error in the trial court's failure to grant his "Request for Jury Trial and Assistance of Counsel." There is no right to jury trial in an action for injunctive relief. (6 Witkin, Cal. Procedure (5th ed. 2008) Provisional Remedies, § 274, p. 217.) An incarcerated civil defendant may have a limited right to appointed counsel where the absence of counsel coupled with the defendant's inability to appear on his own behalf deprives him of access to the courts. (See Payne v. Superior Court (1976) 17 Cal.3d 908, 924 [denial of appointed counsel to indigent incarcerated defendant impermissible "when no other relief will preserve his right of access to the courts"].) But the present record contains no suggestion that defendant's right of access for purposes of defending himself in this proceeding was ever impaired in any respect. He filed numerous papers and appeared at the hearing on his own behalf. If his incarceration in fact impaired his ability to defend himself, it was incumbent upon him to substantiate that fact with evidence, and bring the evidence to the trial court's attention. Having failed to do so, he cannot predicate a successful claim of error on the failure to appoint counsel.
Defendant also alludes to the court's failure to grant a "Notice of Motion for Constructive Filing," a "Request for Clarification of Temporary Restraining Order," and a "Petition for Writ Habeas Corpus attached/filed with Declaration Against Judge." On the face of these descriptions, each of the cited documents sought relief that was nonexistent, unintelligible, or unavailable in a civil action.
Defendant refers to a request for admissions that was, he says, attached to his "Request for Reasonable Accommodations." In fact it was attached to a form entitled "Instructions to Sheriff," which was in turn attached to an "Ex Parte Request for Clarification of Temporary Restraining Order." Defendant asserts that plaintiff failed to respond to the request, as a result of which "the facts and genuineness of documents" there set forth "are deemed admitted by operation of law (CCP Sec. 2033)." No claim of error is predicated on any of these matters; indeed the brief neglects to set forth the tenor of the supposed admissions. The significance of the cited events is left entirely for us to puzzle out. We decline to do so. "We will not develop [an] appellant['s] arguments for [him]." (Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.)
In his brief defendant goes on to state that in promulgating the original request, he made "an error" by "omi[tting] [the] exhibits." This is apparently a reference to the documents whose genuineness the request was intended to establish; at any rate those documents are not attached to the copy of the request in this record. Defendant asserts that he cured the omission by "fil[ing] a request for record correction in [the] trial court of which a copy is contained in [a] motion for augmentation." We are confident, on the contrary, that the request was wholly ineffectual due to this omission as well as the fact that although it was ostensibly directed to plaintiff, it was apparently served as an attachment to documents addressed to the court and sheriff.
Some hints of arguable error may be extracted from defendant's statement of questions presented, which includes suggestions that (1) the challenged injunction "infringes upon constitutionally protected activity," (2) the denial of jury trial and appointment of counsel violated due process; and (3) the trial judge was "clearly biased and prejudiced against the appellant [as] manifested by custody and shackling during hearing." The statement may also be understood to suggest, albeit even more obliquely, that defendant was denied an opportunity to confront plaintiff and challenge her credibility, and that her lack of credibility was established as a matter of law.
We have already rejected the claim that the trial court infringed a right to jury trial and appointed counsel. Nor does defendant make an adequate demonstration that the injunction improperly infringes upon constitutionally protected activity. That suggestion receives some further elaboration later in the brief when defendant asserts that his "appearance & attendance at the bingo parlor for past 15-16 years clearly serves a legitimate purpose and is a constitutionally protected activity that cannot be included within the 'course of conduct' provision of the statute, and upon which the injunction operates wrongfully to prohibit (Gaume v City of Redlands (1937) 23 Cal.App. 464 [sic]). As matter of fact [sic], respondent herself attends the bingo parlor which tends to attest that it serves legitimate function open to general public that includes appellant (Civil Code Sec. 51)."
The case defendant cites (or to be precise, miscites) has no conceivable pertinence beyond its recital of the basic principle that " '[e]quity will not restrain one from doing, in a proper manner, that which the law authorizes him to do.' " (Gaume v. City of Redlands (1937) 23 Cal.App.2d 464, 474.) The implied argument is that since persons are generally entitled to attend bingo games, or locations where they are played, an injunction cannot lie to prevent defendant from doing so. The short answer to this suggestion is that one who engages in harassment as defined by statute thereby forfeits some rights that other persons enjoy, and that they themselves would otherwise continue to enjoy. The citation to the Unruh Civil Rights Act (Civ. Code, § 51) is even farther afield; that act, in essence, forbids discrimination based upon "sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation." (Id., subd. (b).) The act does not forbid discrimination based upon conduct, particularly conduct that is made unlawful, or at least actionable, by statute.
Defendant states it as his "position" that the injunction "infringes upon freedom of speech and association in violation of the First and Fourteenth Amendments to United States Constitution." The point is not further elaborated and we find no further mention of either of the allegedly offended rights in his briefs. The mere assertion of a legal "position," without supporting argument or authority, does not present an issue for a reviewing court to adjudicate. (See Kunec v. Brea Redevelopment Agency (1997) 55 Cal.App.4th 511, 526, fn. 9 [" 'passing reference' " in brief "does not suffice to establish a legal argument"].) On the contrary, "[a] point suggested by appellant's counsel, with no supporting arguments or authority, will be deemed to be without foundation and require no discussion." (Morris v. Associated Securities, Inc. (1965) 232 Cal.App.2d 220, 231.) And "mere suggestions of error without supporting argument or authority" do not afford a ground for appellate relief. (Lowery v. Robinson (1965) 238 Cal.App.2d 36, 39.)
In his reply brief defendant alludes to the "constitutional right of access to courts for all persons." He does not appear to suggest, however, that this right was offended by the injunction at issue in this appeal. Rather he seems to allude to it in the context of the protective order later issued in the context of criminal proceedings. As we have already observed, nothing in this record suggests that his ability to appear and defend himself in this action has been in any degree impaired.
In sum, defendant makes no argument sufficient to tender any issue whether the injunction impermissibly impaired any constitutional right.
Defendant's claim that the trial court manifested bias by suffering him to be in custody and shackled during the hearing is logically incoherent. The record reflects that he was indeed in custody and we will assume for present purposes that he was also shackled. However there is no basis to suppose, and we deem it highly unlikely, that either of these facts was attributable to the court. In the absence of some showing to the contrary we presume they were attributable to law enforcement officials. It might at least be logical to criticize the trial court for not granting some relief from those conditions— might, that is, if defendant raised the issue before that court. His failure to do so triggers another fundamental principle of appellate review: Courts will not generally entertain objections, particularly in derogation of a judgment, that could have been but were not raised in the court below. (In re Marriage of King (2000) 80 Cal.App.4th 92, 117.) If defendant wanted to be unshackled, he should have asked to be unshackled. The trial court's failure to bring about his unshackling on its own motion is neither cognizable error in its own right nor evidence of bias.
Defendant suggests, under the heading "Statutory Construction Issue," that the conduct attributed to him did not amount to "harassment" as defined in Code of Civil Procedure section 527.6, subdivision. (b). He makes a coherent argument as to two of the three forms of harassment addressed by the statute, noting that they require violence or the threat of violence, and that "[n]either the petition [n]or evidence presented indicates any violence or credible threat of violence [by defendant] against [plaintiff] or any other person(s) at any time [or] place." Insofar as the the quoted assertion is true, however, the trial court must be presumed to have found the third statutorily enumerated form of harassment, which consists of "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." (Code Civ. Proc., § 527.6, subd. (b).) This language could open the way to an argument that the evidence before the court was insufficient to establish one or more of the subsidiary elements of this form of harassment. Defendant makes no coherent attempt at such a showing. Instead he heaps in personam denigration upon plaintiff and the trial court, asserting that they "appear equally deaf, dumb and blind in regard to the statutory provisions." Remarkably, he goes on to assert that no "competent and unbiased judge would issue an injunction in [the] absence of [an] alleged unlawful violence or credible threat of violence manifested by [a] statement that would place a reasonable person in fear for safety." Here it is clearly defendant who has turned a blind eye to the statute, which quite explicitly contemplates injunctive relief without any threat to the plaintiff's safety, provided the defendant's conduct amounts to a harassing course of conduct inflicting substantial emotional distress as specified in the statute.
Defendant alludes to the statutory definition of a " '[c]ourse of conduct' " as "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 by any means, including, but not limited to, the use of public or private mails, interoffice mail, fax, or computer e-mail." (Code Civ. Proc., § 527.6, subd. (b)(3).) After quoting this language, defendant asserts, "neither the petition alleges or evidence presented shows any harassing telephone calls, harassing correspondence sent by any means including but not limited to public or private mails, interoffice mail, fax or computer email." The statutory enumeration of actions, however, is explicitly nonexclusive. Harassment may consist of any course of conduct taken under the specified circumstances and producing the specified effects. In order to impeach the trial court's finding that defendant engaged in such a course of conduct, defendant would have to marshal the evidence supporting that finding and show "how and why it is insufficient." (Roemer v. Pappas (1988) 203 Cal.App.3d 201, 208.) He makes no attempt to do so. He has therefore failed to perfect a claim of error predicated on supposed deficiencies in the evidence.
At this point defendant's argument wanders tangentially into a recital concerning his supposed arrest for serving "pleadings and documents in . . . the case" upon plaintiff. He alludes to a criminal prosecution against him and then suggests that this court should grant the "transfer and consolidation" defendant apparently requested in yet another motion apparently filed in the trial court. Since no record citation is provided, we cannot even begin to unravel this badly tangled skein of nebulous allusions. Defendant refers to the statute empowering a court of appeal to transfer to itself a case on appeal to the superior court, i.e., a misdemeanor appeal. (Pen. Code, § 1471, see § 1466.) Such an order is authorized "when the superior court certifies, or the court of appeal determines, that such transfer appears necessary to secure uniformity of decision or to settle important questions of law." (Id., § 1471.) Defendant makes no attempt to show that this condition does or should exist, or otherwise to explain his citation of this statute.
Defendant devotes a page of his brief to the proposition that the "cheating at bingo" of which plaintiff accused him could not constitute a course of conduct sustaining an injunction under section 527.6. Presumably this is true, but it does not suggest any error in the proceeding. Plaintiff's comments to the trial court might be understood as an attempt to treat defendant's alleged cheating, in and of itself, as grounds for a restraining order. However the trial court did not appear to view the comments that way; instead it took them as evidence that plaintiff was reasonably put in fear some two months later when, in apparent retaliation for her accusations, defendant appeared at a hearing in her marital dissolution proceeding.
Many of defendant's arguments conflate the conduct that may trigger a right to relief under section 527.6 and the conduct that may be enjoined once such a right is established. Thus defendant argues, under the heading "Lack of Standing," that his "appearance at [a] bingo parlor including the alleged cheating" could not be found to be "directed at" plaintiff (Code Civ. Proc., § 527.6, subd. (b)) because it was "directed to [the] bingo parlor." Defendant makes no attempt to pursue this proposition to any pertinent conclusion, veering off instead into a series of irrelevant assertions concerning plaintiff's knowledge, or perhaps the reasonableness of any claimed belief, that he was engaged in cheating; the sufficiency of the petition to sustain an injunction; the general requirement of irreparable injury as a predicate to injunctive relief; the nonviolent character of bingo cheating; the absence of any report to the police about any bingo-related perfidy; the inappropriateness of an injunction "as a matter of jurisdiction"; the importance of the requirement that proofs in support of an injunction be made under oath; and the criminality of plaintiff's own conduct "as hereinafter more fully appears." Needless to say, none of these offhand argumentative fragments can justify a reversal of the order under review.
Next defendant states an intention to request oral argument in this matter "if for no other reason tha[n] to present [plaintiff's] Christmas Day recorded telephone message." Had defendant attempted to make such a presentation we would have forbidden him to do so since oral argument is, as the name indicates, for argument, not for the reception of evidence. Further, the telephone message, as quoted by defendant, is supremely irrelevant to any issue on this appeal. As it happens, defendant did not request oral argument when offered an opportunity to do so.
Under the heading "Stalking Issue" defendant appears to contend that there was no evidence that he "stalk[ed]" plaintiff. The only significance intelligibly attributed to this premise is that plaintiff was able to avoid a filing fee by falsely alleging that defendant stalked her. Assuming this to be true, there is no reason to suppose that it could have inflicted any prejudice on defendant; for that reason alone it cannot support a reversal of the judgment. (See Paterno v. State of California, supra, 74 Cal.App.4th 68, 106 [appellant court is obliged to address claim of error "when and only when the appellant has fulfilled his duty to tender a proper prejudice argument"].)
Indeed by virtue of this allegation, defendant too was excused from any filing fee. Section 527.6, subdivision (p), provides in pertinent part, "There is no filing fee for a petition that alleges that a person has . . . stalked the petitioner . . . . No fee shall be paid for filing a response to a petition alleging these acts."
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Under the heading "Other Issues," defendant makes a number of assertions, none suggesting reversible error. The most intriguing is that we should "consider consolidation of the related and separate appeal in the divorce action." Characteristically, defendant neglects to so much as specify the number of the appeal to which he refers. In any event the suggestion is transparently meritless.
DISPOSITION
The order appealed from is affirmed.
RUSHING, P.J. WE CONCUR:
PREMO, J.
ELIA, J.