Opinion
G045978
10-15-2012
ROBERT DAVID GREEN, Plaintiff and Respondent, v. CARL VINI BERGEMAN, Defendant and Appellant.
Carl Vini Bergeman, in pro. per., for Defendant and Appellant. Robert David Green, in pro. per., for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2011-00449430)
OPINION
Appeal from an order of the Superior Court of Orange County, Derek W. Hunt, Judge. Affirmed.
Carl Vini Bergeman, in pro. per., for Defendant and Appellant.
Robert David Green, in pro. per., for Plaintiff and Respondent.
Carl "Vini" Bergeman appeals from an order denying his motion to terminate a restraining order issued against him. He contends the trial court at the original hearing improperly denied him the right to defend himself with the assistance of counsel on respondent Robert David Green's application for the restraining order, and it was consequently "duty bound" to terminate the restraining order upon his subsequent request.
We disagree. A motion to terminate a restraining order can be based on a showing of either new facts, a change in the law, or that the ends of justice would be served by termination. In effect, Bergeman relied on the last of these justifications in arguing the trial court should have terminated the order because the court issued it without giving him a brief continuance so his counsel could be present to defend him. Bergeman fails to show the trial court abused its discretion in denying his request to postpone the hearing. Moreover, the court allowed him to present additional evidence attacking the restraining order, with the aid of his counsel, at the termination hearing. The court then found Bergeman's evidence insufficient to terminate the restraining order. We cannot say the court erred in reaching that conclusion, and thus we affirm its order.
I
FACTS
Bergeman and Green were partners in an "automotive customization" business. They had a falling out, and according to Bergeman, Green locked him out of the business premises without justification. Bergeman reacted to that lockout by making a series of telephone calls to Green in January and February 2011, leaving messages which were angry and threatening — although none of the threats was violent in nature. Instead, what Bergeman threatened, in the most crude and profane terms, fell into two categories. First, he threatened to file theft charges stemming from Green's retention of equipment belonging to Bergeman on the business premises, and by "sue[ing] you so fuckin [sic]bad you wont [sic]be able to breathe."
Bergeman did not stop there. He made various threats regarding to Green's wife Natalie (who was also involved in the business) and Green's 12-year-old daughter. Without going into specifics, the general theme of these threats asserted Natalie was a "prostitute" who had been captured on film engaged in various sex acts. Bergeman threatened to post compromising pictures of her "everywhere," including near Green's daughter's school in Yorba Linda, if Green did not return his equipment. Bergeman reminded Green he had earlier posted pictures of "Jen, shower" "in [N]ordstroms all over."
Bergeman also asserted Green's wife had engaged in sex acts in front of their daughter, and that Green himself had molested his daughter, and then insinuated he (Bergeman) possessed photographs to prove it. He warned that if his equipment was not returned "by [T]uesday," he would share those photographs with the police.
Bergeman had previously sent e-mails to several men (including Green), either attaching photographs of a woman referred to as "Luscious Linda," or which he depicted as coming from her. The e-mail purporting to be sent from "Linda" to another man included a graphic depiction of her supposed physical and sexual attributes, followed by a detailed offer to engage in sexual acts with the recipient. Although the significance of these "Linda" e-mails is not explained, we infer they were intended to demonstrate Bergeman's willingness to fabricate e-mails of a sexual nature to humiliate women.
Based upon all these communications, Green filed a request for a civil restraining order on February 14, 2011, to stop Bergeman from further harassing him, his wife, or his daughter. The court issued a temporary restraining order against Bergeman that same day, and set a hearing for February 25, 2011, to consider whether a permanent order should issue.
Bergeman personally appeared at the hearing on February 25, 2011. He complained he had not been given sufficient time to arrange for his attorney, James Cesena, to be present at the hearing, and explained Cesena advised him to request a continuance. The court refused, stating "there's not going to be a continuance today. You're entitled to have an attorney, but without one, you will probably be obliged to represent yourself."
After Green swore to the accuracy of the phone message transcriptions and e-mail evidence attached to his request for the restraining order, the court gave Bergeman an opportunity to explain his version of events. Bergeman characterized the parties' business dispute as "a pretty complicated case," and explained that "I was upset because of what's going on. I have to foreclose on him and he was my partner on the house, and he bounced a check for 50 thousand. [¶] . . . And I — I said that whatever is in that statement, I probably said it. Because I was upset."
Bergeman argued the court should not issue a restraining order based upon his messages to Green because they were true — specifically, because Green's wife was "a whore." He informed the court he had brought with him the tapes and photographs to prove his claim. The court declined to look at any tapes, explaining, "I'm not here to look at pornography, Mr. Bergeman." Bergeman admitted he lost his temper, but emphasized he had never threatened nor intended any violence against Green. He acknowledged the possibility that "the way I verbally say [these] things is what got me." The court agreed, "It might have been."
The court informed Bergeman it would issue the restraining order as requested, and reviewed its terms with him. The court then suggested Bergeman "get yourself a lawyer. And if the lawyer and you confer and you don't like what I've just done — [¶] . . . [¶] Then come back with the lawyer — [¶] . . . [¶] — and we can talk about it. It will be — [¶] . . . [¶] — good for you."
Approximately five weeks later, on April 1, 2011, Bergeman filed a motion to terminate the restraining order, arguing "[t]he original order was granted without any response/answer from me; I was denied the right to a short continuance to allow my attorney to be present." A memorandum of points and authorities prepared by Cesena accompanied the motion arguing that relief was proper under Code of Civil Procedure section 473, on the ground of "mistake, inadvertence, surprise or excusable neglect," because Bergeman had "inadvertently failed to answer the Notice of Hearing and Temporary Restraining Orders based on Counsel, James H. Cesena's request to seek a continuance until [he] could appear on behalf of [Bergeman.]" Cesena also provided a brief declaration, stating that while Bergeman was present in court for the hearing on Green's request for a restraining order, he had "failed to file an Answer based on the understanding that his attorney would file one on his behalf." Cesena opined that the court "should have" continued the hearing to allow Bergeman to be represented by counsel.
All further statutory references are to the Code of Civil Procedure.
After several continuances, the motion to terminate came on for hearing in August 2011. Cesena represented Bergeman and explained to the court that Bergeman was seeking either an order terminating the restraining order or a new evidentiary hearing on the matter. After discussing the timing of the motion, the court agreed to hear "additional evidence . . . relating back to last February which would suggest that I should terminate the injunction now, in late August . . . ."
Bergeman testified about his business dispute with Green. He acknowledged he had called Green "more than once or twice in any day" and that the phone calls included "foul language," which was customary for him, but not threats. He emphasized he never sought to harass Green, but only to goad him concerning the dissolution of their business relationship.
The court also allowed Cesena to make an offer of proof regarding the proposed testimony of an additional witness, identified by Cesena as Scott Lucero. Cesena explained Lucero would testify Green had also sought a restraining order against him based on false charges, and that Green had told Lucero "he'll do anything to stop" Bergeman from dissolving the business, including filing harassment charges. Cesena characterized this evidence as demonstrating Green's "propensity . . . to lie and use his lies to his advantage in the courtroom." The court, however, declined to hear Lucero's testimony, noting "it doesn't sound like he has anything to say on this particular case."
The court then allowed Green to offer additional testimony, and Green reminded the court of Bergeman's earlier e-mail, which Green believed included a threat to harm his wife. The court responded, "I remember that," and after a brief additional colloquy, denied the motion to terminate the restraining order.
II
DISCUSSION
A. Civil Harassment Restraining Order
Section 527.6 empowers trial courts to issue orders restraining "harassment" of others. Harassment is not limited to violence or threats of violence, but includes "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)(3).) Section 527.6 allows the court to issue a temporary order, for a period not to exceed 25 days, without notice to respondent (§ 527.6, subds. (c) & (f)), but requires the court to hold a noticed hearing before issuing an order imposing a restraining order for any period in excess of 25 days. (§ 527.6, subd. (f).) Following the noticed hearing, the court may issue a restraining order covering a period of up to three years. (§ 527.6, subd. (j)(1).)
In conjunction with the hearing, "the [defendant] may file a response that explains, excuses, justifies, or denies the alleged harassment or may file a cross-petition . . . . [¶] At the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment." (§ 527.6, subds. (h) & (i).)
A restraining order is a species of injunction, and like other injunctions, it may be terminated before its specified term upon a showing of good cause. (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1503-1504.) Good cause is defined as "a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order." (§ 533.) B. The Court Did Not Err in Refusing to Terminate the Restraining Order Issued Against Bergeman
Bergeman contends the court was "duty-bound" to terminate the restraining order because of Cesena's admitted "mistake, inadvertence, surprise or excusable neglect" in failing to file an answer on his behalf or appear at the hearing. Bergeman suggests Cesena's alleged mistake effectively placed him in default concerning Green's application for a restraining order, and thus relief from the order was mandated by section 473, subdivision (b). In the context of a motion for termination of a restraining order, this argument amounts to a claim that "the ends of justice would be served by the modification or dissolution of the injunction." (§ 533.)
Section 473, subdivision (b), states in pertinent part "the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect."
--------
Two significant flaws undermine Bergeman's reliance on section 473 as a basis for relief from the restraining order. First, contrary to Bergeman's contention, his attorney, Cesena, did not admit to any "fault." Instead, the key claim in Cesena's brief declaration supporting the motion to terminate was his conclusory assertion that the court "should have" continued the hearing "to allow [Bergeman] the right to Counsel." That amounts to an assertion of trial court error, not attorney fault.
Moreover, as an indictment of the trial court, Cesena's assertion was weak, at best. While the defendant is entitled to representation at the noticed hearing on a request for a civil restraining order (§ 527.6, subd.(e)), "there is no mandatory right to a continuance under section 527.6," merely because respondent's chosen counsel is unavailable to appear. (Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 527.) Because the trial court had discretionary authority to grant or deny his requested continuance, it was incumbent on Bergeman to explain why, in the circumstances of this case, the court's denial was an abuse of that discretion. He failed to do so.
The second significant flaw in Bergeman's theory is that the restraining order here did not issue as a result of any default. While section 527.6, subd. (h), provides that "the [defendant] may file a response that explains, excuses, justifies, or denies the alleged harassment or may file a cross-petition" (italics added), it does not require a defendant to do so. What it does require is that "[a]t the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry." (§ 527.6, subd. (i).) The trial court in this case complied with that requirement when it allowed Bergeman to testify in opposition to the restraining order despite his failure to file any written response. By contrast, when a defendant is in default, the court hears evidence only from the party seeking relief. (§ 585, subd. (b) ["The court shall hear the evidence offered by the plaintiff, and shall render judgment in the plaintiff's favor for that relief . . . as appears by the evidence to be just"].)
Because this case involved neither an admission of attorney fault, nor the entry of Bergeman's default, the mandatory relief provision in section 473 was inapplicable and therefore did not establish the ends of justice would be served by terminating the restraining order.
But even if the trial court had denied Bergeman a fair chance to defend himself at the original hearing, or the court erred in denying him a brief continuance of that hearing to allow his counsel to represent him (issues we do not reach), we would still conclude the court acted appropriately in refusing to terminate the restraining order. As we have already noted, Cesena requested at the termination hearing that the court either terminate the restraining order or give Bergeman a new hearing on its merits. The court did the latter, allowing Bergeman another opportunity to present evidence in his defense at the termination hearing, with Cesena's assistance. By doing that, the court effectively "cured" the effect of its prior refusal to continue the initial hearing.
Having done that, the court was not obligated to be persuaded by Bergeman's new evidence. It would have been a tall order to persuade the trial court that the restraining order issued against Bergeman was unjust in the circumstances of this case. Bergeman admitted at the first hearing that he made the statements Green attributed to him. At the termination hearing, he acknowledged telephoning Green "more than once or twice in any day" before the restraining order issued. Bergeman's own testimony suggests he believed his righteous position in his business dispute with Green allowed him to say whatever he wanted to Green, and to threaten anything short of violence against Green and his family, without running afoul of the law. That is incorrect. As we have already explained, a civil restraining order is not limited to protection against violence or threats of violence. (§ 527.6.)
Bergeman's repeated telephone calls to Green, which included threats, foul language and insulting assertions wholly unrelated to their business dispute, qualified as a "course of conduct . . . that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose." (§ 527.6, subd. (b)(3).) There were legally appropriate avenues for resolution of the business dispute, and none of those included Bergeman's threat to post sexually revealing pictures of Green's wife around the school attended by their 12-year-old daughter. As long as the trial court had a justified belief that Bergeman had threatened to do that very thing (which Bergeman never denied), it could reasonably conclude the ends of justice did not require termination of the restraining order issued against him.
Bergeman's additional assertions of injustice fare no better. Bergeman claims the trial court had a "custom [and] practice of issuing restraining orders when defendants appear without counsel," which is "prejudice per se." This claim is based on a statement made by the court to Cesena at the termination hearing: "if he [Bergeman] asked for a lawyer [at the initial hearing] and he didn't have one, I probably went ahead and granted the restraining order anyway — just as Commissioner Myers would have done." That statement, however, did not reflect that the court had a "custom [and] practice" of granting restraining orders against all unrepresented defendants as Bergeman infers — it referred only to what the court "probably" did in this case. More important, it proved nothing about what the court actually did in this case, which the record alone establishes. The record establishes the court did not simply grant the restraining order merely because Bergeman appeared at the hearing without counsel; instead, it took evidence from both sides and considered the matter on the merits of that evidence.
Bergeman's final contention is the trial court sustained Cesena's objection to all of Green's documentary evidence submitted in support of the restraining order, and was thus required to terminate that order. Specifically, Bergeman relies on the following exchange at the hearing on the motion to terminate: "Mr. Cesena: I would object to anything with respect to lack of foundation on documentation that [Green] sought to introduce." [¶] The court: Okay." But Bergeman's interpretation of the trial court's "okay" as an indication it was sustaining the objection is an unreasonable one. That "okay" was immediately followed by Cesena's motion to strike the evidence, and the court's prompt denial of that request. In context, it is clear the court's "okay" was nothing more than an acknowledgment of Cesena's objection. The evidence was not stricken, however, and as we have already explained, it was sufficient to support issuing the restraining order.
III
DISPOSITION
The order is affirmed and Green is to recover his costs on appeal.
ARONSON, J. WE CONCUR: RYLAARSDAM, ACTING P. J. BEDSWORTH, J.