Opinion
F073968
07-19-2018
JOE WAYNE GORMAN, Plaintiff and Appellant, v. WALTER ERNST, Defendant and Respondent.
Joe Wayne Gorman, in pro. per., for Plaintiff and Appellant. No appearance for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BCV-16-100418)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge. Joe Wayne Gorman, in pro. per., for Plaintiff and Appellant. No appearance for Defendant and Respondent.
Before Poochigian, Acting P.J., Franson, J. and Meehan, J.
-ooOoo-
Appellant Joe Wayne Gorman challenges the trial court's April 28, 2016, denial of a request for a civil harassment restraining order to enjoin respondent Walter Ernst from civil harassment of Gorman. Because the trial court's order is supported by substantial evidence, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The parties did not provide the court with a copy of the reporter's transcript, if any, that was created during the hearing on the civil harassment restraining order. Accordingly, the facts recited herein are based on exhibits contained in the clerk's transcript and the factual findings as recited in the trial court's order.
On the afternoon of February 10, 2016, Gorman was distributing notices regarding how the Inyokern Community Service District (ICSD) was failing to properly monitor drinking water quality. He attempted to distribute a notice to Ernst, the owner of High Desert Welding. Unbeknownst to Gorman, Ernst was a director of ICSD. After distributing the notice, Gorman left the business and, a short time later, Ernst approached him near the street. According to Gorman, Ernst "lifted his fists and leaned forward in a[n] aggressive stance and said 'What are you going to do about it! We have no money! I'm a CSD Director!'"
The next day, Gorman attended the ICSD meeting. At the meeting, Gorman spoke regarding his concerns that ICSD was not meeting water quality standards and mentioned Ernst's conduct the day before. After Gorman's comments, Ernst stood up, lifted his crutch in Gorman's direction and said, "'Do you want to take this outside[?]'"
Because of Ernst's behavior, on March 1, 2016, Gorman filed a request for a civil harassment restraining order. The court held a hearing on April 15, 2016, at which Gorman, Ernst and three other witnesses provided testimony. On April 28, 2016, the court issued a written decision denying the petition. It found that Gorman did not carry his burden of proof that Gorman unlawfully harassed him, or that there was a reasonable probability that unlawful violence would occur in the future. The court found that there was no credible evidence to establish that there was ongoing harassment, threats of violence or a willful course of conduct.
The court noted that there was no history of Ernst initiating any threatening communications, nor was there any evidence of a history of stalking by Ernst. The only incidents occurred when Gorman went to Ernst's place of business and the ICSD meeting at which Ernst was present as a director of ICSD. The court acknowledged that during the conversations regarding water issues, Ernst exhibited temperamental behavior when confronted by Gorman and used gestures and language that may have appeared assaultive. However, the court held that Ernst's behavior did not amount to harassment. It noted that that there had been no further harassing conduct by Ernst despite the fact that Gorman had attended at least one subsequent ICSD meeting where Ernst was present. At the subsequent meetings, Ernst ignored Gorman. Accordingly, the court denied the request.
On June 21, 2016, Gorman filed a notice of appeal.
DISCUSSION
I. Standard of Review
An appellate court reviews a trial court's decision to grant or deny a restraining order for substantial evidence. (Harris v. Stampolis (2016) 248 Cal.App.4th 484, 497.) We are required to 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 that is reasonable, credible and of solid value. (Id. at p. 499.)
II. Judicial Notice
With his opening brief, Gorman filed eight separate motions for judicial notice. The motions mostly include argument similar to that contained in his brief. However, he also alleges the following evidence: that Charles Gonzales was present at both occurrences and observed Ernst state "'son of a bitch'" before walking back inside his business, that Gorman was harassed by another director of ICSD about allegedly leaking information to the press, and that the judge made biased comments during the hearing. Appellate courts will not judicially notice evidentiary matters that cannot properly be considered on appeal. (Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal.App.3d 341, 366-367.) Like trial courts, appellate courts will decline to exercise their discretion under Evidence Code section 452, subdivision (h), to take judicial notice of allegedly verifiable facts and propositions where the requesting party has not furnished the court with information sufficient to show the matter is capable of "'immediate and accurate determination by resort to sources of reasonably indisputable accuracy.'" (Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 737; see Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1700 [hearsay reports of conversations with Division of Labor Standards employees and unauthenticated internal documents were not sources of reasonably indisputable accuracy].) Accordingly, the motions for judicial notice are denied. Regardless, even if permitted, as we explain below, the denial of the restraining order is supported by substantial evidence.
It does not matter that some of Gorman's evidence was hearsay. Courts are authorized to admit and consider hearsay evidence during civil harassment hearings under Code of Civil Procedure section 527.6. (Duronslet v. Kamps, supra, 203 Cal.App.4th at pp. 728-729.) --------
II. Denial of the Restraining Order
Code of Civil Procedure section 527.6, subdivision (a)(1), provides, in relevant part, that a person "may seek a temporary restraining order and an order after hearing prohibiting harassment as provided in this section." Subdivision (b)(3) of section 527.6 defines "harassment" as either (1) unlawful violence, (2) a credible threat of violence, or (3) a course of conduct, "directed at a specific person that seriously alarms, annoys or harasses the person, and that serves no legitimate purpose." To constitute harassment, the requisite conduct must also be such as "would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner." (Ibid.; see R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188.)
Gorman does not contest the court's factual findings that there was no history of threatening communications initiated by Ernst such as telephone calls, letters or stalking. Moreover, the only encounters occurred when Gorman went to Ernst's place of business or the ICSD meeting where Ernst was serving as a director. On both occasions, Gorman did not allege that any battery occurred. Gorman also did not contest the court's finding that despite attending at least one more ICSD meeting, Ernst did not take any further harassing actions. Rather, Gorman challenges the court's holding that despite acknowledging that Ernst was "somewhat temperamental" when confronted by Gorman and used gestures or language that may have seemed assaultive, the behaviors did not arise to the level of harassment.
While Gorman's and Ernst's discussion of water quality issues appears to have been heated, Gorman has not met his burden to show that that there was a lack of substantial evidence to support the court's holding. The evidence, when viewed in the light most favorable to Ernst, supports a finding that there was no harassment under Code of Civil Procedure section 527.6. While the conversations regarding water quality issues were heated, there was sufficient evidence to support the court's holding that the harassment was not ongoing nor was future harm reasonably probable to occur. After the exchanges, Ernst exhibited no actions to indicate that he had further interest in interacting with, let alone harassing Gorman. Substantial evidence supports affirming the denial of the request for a restraining order based on a finding that Ernst did not make credible threats of violence or that his harassing conduct caused substantial emotional distress.
DISPOSITION
The order of the trial court is affirmed.