Opinion
B322187
02-20-2024
JENNIFER LYNN HAMILTON, Plaintiff and Respondent, v. TANIA M. BARONE, Defendant and Appellant.
Esfandi Law Group and Leonard Sawyer for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. 22LBRO00330, Michael J. Convey, Judge.
Esfandi Law Group and Leonard Sawyer for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
EGERTON, J.
Tania M. Barone appeals an order granting Jennifer Lynn Hamilton a civil harassment restraining order under Code of Civil Procedure section 527.6. She contends the trial court misled her regarding the clear and convincing evidence burden of proof; the evidence was insufficient to support the court's findings; and the court's order violates her right to free speech. We affirm.
Statutory references are to the Code of Civil Procedure.
BACKGROUND
We draw the facts from the limited record designated on appeal, summarizing the facts in the light most favorable to the court's order. (See Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1405 (Brekke).)
Barone failed to designate for inclusion in the clerk's transcript Hamilton's petition for an injunction prohibiting harassment; the supporting declarations and exhibits attached to the petition; and the exhibits Hamilton presented at the hearing that the trial court considered. These omissions have necessarily hindered our ability to summarize the facts and, as we will explain, the omissions have decisive implications for our review of Barone's appellate arguments.
Barone is the ex-wife of Hamilton's brother. Before the communications that precipitated the restraining order petition, Hamilton's most recent contact with Barone was in 2014- around the same year Barone and Hamilton's brother finalized their divorce. During that conversation, Barone told Hamilton she was dying and they would never speak again.
In 2022, Barone resumed contacting Hamilton, members of her family, and Hamilton's employer. According to Hamilton, the most disturbing communications were directed to her employer, who Barone called more than 30 times over a two-day period. After Hamilton filed a police report and asked Barone to stop contacting her office, Barone sent an email to the employer that accused Hamilton of suffering from mental illness due to drug and alcohol addiction. The email also claimed Hamilton had harassed Barone for years, going so far as to enlist a third party to physically harm Barone. Hamilton learned of the email from her boss and a human resources officer, who warned Hamilton the accusations could be grounds for termination.
Hamilton speculated that Barone turned to harassing her after Hamilton's mother passed away and stopped responding to Barone's emails and text messages. She suspected Barone "decided to look for other outlets in order to harass someone in [Hamilton's] family close to [her] brother."
Barone also left a message for Hamilton on her work voicemail, in which Barone "yelled" Hamilton's name, called her the "b-word," and then "proceeded to play a voicemail from 2008" that Hamilton had left for Barone. Hamilton had no idea why Barone felt compelled to contact her 14 years later about a 2008 voicemail.
Hamilton testified her "anxiety was off the charts" after the meeting with her boss and the barrage of text messages, emails, and voicemails from Barone. She said she was "now suffering from depression" and "taking antidepressants" because Barone had "threatened [her] well-being by accusing [her] of crimes to [her] employer." She feared for her safety because Barone's behavior was so irrational that there was no telling what Barone might do next.
Barone acknowledged she called Hamilton's office, but claimed she only ever spoke to a receptionist before being transferred to voicemail. She said she made multiple calls to the office because she had been "disconnected" and "had called back." She testified she made the calls because she wanted Hamilton to stop contacting her younger brother, who Hamilton had been calling "for over 15 years." She did not "recall" sending messages accusing Hamilton of being a" 'mentally ill alcoholic[ ].' "
The trial court found Hamilton satisfied her burden to prove by clear and convincing evidence that Barone's repeated contacts and disparaging accusations had no legitimate purpose and constituted a harassing course of conduct that would cause a reasonable person to suffer severe emotional distress. The court also found the harassment had in fact caused Hamilton to suffer severe emotional distress, citing Hamilton's testimony that she was suffering panic attacks and taking medication in the wake of Barone's harassment. Based on these findings, the court entered an order restraining Barone from coming within 100 yards of Hamilton or contacting Hamilton in any way for a period of five years.
Barone filed a timely notice of appeal.
DISCUSSION
1. The Trial Court Did Not Error in Articulating the Clear and Convincing Evidence Burden of Proof
Section 527.6 authorizes a court to grant injunctive relief to victims of harassment. Harassment is defined in part as "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).) A harassing 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 . . . making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means." (Id., subd. (b)(1).) To constitute harassment, the "course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner." (Id., subd. (b)(3).) If the court finds "by clear and convincing evidence that unlawful harassment exists, an order shall issue prohibiting the harassment." (Id., subd. (i).)
At the outset of the evidentiary hearing, the trial court instructed Hamilton that she had "the burden of proof to show that [unlawful harassment] occurred by clear and convincing evidence." The court explained, "That is a higher standard of proof than . . . preponderance of the evidence which is just one iota over the middle ground.... It's not the most burdensome proof which is in a criminal case beyond a reasonable doubt. So it's not that much, but it's not like the other one in the middle. It's a little bit higher." Later, the court reminded Hamilton that she "must prove [harassment occurred] by clear and convincing evidence," adding, "[s]o that's a high standard under the law." Barone contends the court's statements constitute prejudicial error. She maintains due process requires the trial court to instruct the parties on the applicable standard of proof, and she argues the court's "generalization" that "the burden is a very high standard" "might have misguided [sic]" her about how she should "respon[d] to questions" to counter the evidence Hamilton presented. Had the court articulated the standard more precisely, Barone says it "might have enabled [her] and her [a]ttorney to present a better case or defense."
There are at least two problems with Barone's contention. First, when the court sits as the trier of fact-as the trial court did here-there is no affirmative duty to instruct the parties (let alone their attorneys) on the applicable burden of proof. (Cf. Evid. Code, § 502 ["The court on all proper occasions shall instruct the jury as to which party bears the burden of proof on each issue and as to whether that burden requires that a party . . . establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt." (Italics added.)].) Indeed, even when a case is tried to a jury, a court's purported misstatements to the parties regarding the applicable burden of proof cannot be asserted as grounds for reversal unless the party claiming error objected at trial. (See, e.g., Bank of Santa Ana v. Molina (1969) 1 Cal.App.3d 607, 623 [appellant forfeited claim that trial court misstated the burden of proof by failing to object].) Contrary to Barone's contention, the duty rested squarely with her and her counsel to familiarize themselves with the clear and convincing evidence standard in preparing to oppose Hamilton's petition at the evidentiary hearing.
Second, the trial court's statements did not substantively mischaracterize the clear and convincing standard. As our Supreme Court recently explained, "[t]he standard of proof known as clear and convincing evidence demands a degree of certainty greater than that involved with the preponderance standard, but less than what is required by the standard of proof beyond a reasonable doubt. This intermediate standard 'requires a finding of high probability.'" (Conservatorship of O.B. (2020) 9 Cal.5th 989, 998.) Consistent with our high court's articulation, the trial court correctly stated clear and convincing evidence is a "high standard under the law" that represents a "middle ground" between preponderance of the evidence and proof beyond a reasonable doubt. Barone quibbles with the generality of this statement but does not (and cannot) plausibly claim the court misunderstood the standard that governed its assessment of the evidence as the trier of fact. (See ibid. [" 'The precise meaning of "clear and convincing proof" does not lend itself readily to definition. It is, in reality, a question of how strongly the minds of the trier or triers of fact must be convinced that the facts are as contended by the proponent.' "].) We find no error.
We also cannot overlook the trial court's express finding that Barone's testimony was "not credible or believable," specifically with respect to her denials concerning the harassing text messages she sent to Hamilton. Even if Barone was genuinely confused about Hamilton's burden of proof, she has not shown prejudice, as she fails to identify what evidence she would have otherwise presented to overcome this fatal credibility finding. (See Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069 ["instructional error alone is insufficient" to overturn a judgment; the appellant "must also show that the error was prejudicial [citation] and resulted in a 'miscarriage of justice' "]; see also Handley v. Handley (1960) 179 Cal.App.2d 742, 749 ["The trier of fact is the exclusive judge of the credibility of the witnesses" and "is free to disbelieve and reject the testimony of witnesses even though they are uncontradicted and unimpeached."].)
2. Barone Has Not Presented an Adequate Record to Challenge the Sufficiency of the Evidence
Barone contends the evidence was insufficient to support the court's findings that her conduct served no legitimate purpose and that Hamilton suffered severe emotional distress. (See § 527.6, subd. (b)(3).) We cannot entertain either challenge because Barone has failed to designate an adequate record to review her claims of error.
As the party challenging the restraining order, Barone has an affirmative duty to provide an adequate record so we may determine whether the evidence was sufficient to support the trial court's findings. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.) We cannot presume the court erred. On the contrary," '[a]ll intendments and presumptions are indulged to support [the trial court's findings] on matters as to which the record is silent, and error must be affirmatively shown.'" (Denham v. Superior Court of Los Angeles County (1970) 2 Cal.3d 557, 564; see also In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) If an appellant fails to support her claims of error with an adequate record, we must follow the presumption of correctness and, on that basis, affirm the appealed judgment or order. (Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1 (Estrada) [failure to provide an accurate record demonstrating error "precludes an adequate review and results in affirmance of the trial court's determination"].) A record is inadequate when it "appears to show any need for speculation or inference in determining whether error occurred." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2023) ¶ 4:43, italics omitted.)
Barone failed to designate critical documents for inclusion in the clerk's transcript, including Hamilton's petition for a restraining order prohibiting harassment, the declarations and exhibits Hamilton offered in support of the petition, and the documents Hamilton brought to the hearing that were considered by the trial court. Without this evidence, we do not have a complete record of Hamilton's account of the circumstances warranting the restraining order. As the trial court expressly relied upon Hamilton's petition, her supporting declarations, and "all [her] documentary evidence," we cannot determine whether the evidence was sufficient to support the court's findings without speculating as to the contents of this evidence. We are therefore compelled to follow the presumption of correctness and affirm the restraining order, notwithstanding Barone's contentions about what evidence may or may not have been before the trial court.
Barone claims her course of conduct was justified because she had "acquired a claim of right from agreeing to pay off [an] auto loan assumed by [Hamilton], and [a] student loan assumed by [Hamilton's ex-husband]." To support the assertion she cites pages from an apparent document labeled "ROE." We suspect this refers to "restraining order exhibits," although Barone does not define the acronym in her brief. Whatever ROE refers to, the document is not part of the record that Barone designated for this appeal. Suffice it to say, we cannot determine whether this purported "claim of right" exists or whether it justified Barone's course of conduct without this document.
Barone did not mention this purported justification in her testimony at the evidentiary hearing.
Barone also says she was motivated by a legitimate concern for her brother, who she learned Hamilton had been contacting "for over 15 years." Again she cites the ROE, arguing the document proves she repeatedly called Hamilton's office to provide notice of "a possible cease and desist remedy" to end the contacts with her brother. Because the ROE is not part of the record, we cannot assess the credibility of this claim. In any event, Hamilton's testimony about the abusive nature of the communications amply supports the trial court's finding that Barone's course of conduct served no legitimate purpose. (Cf. Byers v. Cathcart (1997) 57 Cal.App.4th 805, 812 [where "there was no evidence in the record" to support finding that plaintiff parked on driveway easement for a purpose "other than . . . legitimate need" to park, there was no support for "necessary conclusion that the car parking constituted harassment"].)
As for Barone's contention that Hamilton failed to present expert evidence to substantiate her percipient testimony about the severe emotional distress she experienced, we plainly cannot assess this claim without Hamilton's petition and the supporting documentation that Barone failed to designate for inclusion in the record. It is notable that Hamilton testified she was currently "taking antidepressants"-medication that she presumably could have received only after a medical professional's examination and prescription. Regardless, because Barone has failed to present an adequate record, we can only speculate about whether Hamilton included expert evidence with her petition. We must therefore follow the presumption of correctness and affirm the restraining order. (Estrada, supra, 71 Cal.App.4th at p. 620, fn. 1.)
Our conclusion that Barone failed to present an adequate record is not an endorsement of her claim that expert evidence was necessary to support the court's emotional distress finding. Barone cites no authority for this proposition, and the authority we have found is uniformly to the contrary. (See, e.g., Knutson v. Foster (2018) 25 Cal.App.5th 1075, 1096 ["The law in this state is that the testimony of a single person, including the plaintiff, may be sufficient to support an award of emotional distress damages."]; accord Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1097; Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 812, 821.)
3. The Restraining Order Does Not Unduly Burden Barone's Right to Free Speech
Finally, Barone contends the terms of the civil harassment restraining order place an unconstitutional restraint on her right to free speech. As with her legitimate purpose argument, Barone contends the First Amendment protects her right to contact Hamilton's office about Barone's "intent" to "seek legal action" concerning her brother and the purported loan obligations. Contrary to Barone's premise, the restraining order is content neutral, and we conclude it does not unduly burden her right to free speech.
"[T]he right to free speech, '[a]lthough stated in broad terms, . . . is not absolute' . . . ', and the State may punish its abuse.'" (Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, 1147.) Thus, while"' "there is no categorical 'harassment exception' . . ."' [citation], the First Amendment does not guarantee the right to harassment of another, even where the harassment is accomplished through speech that might otherwise be protected." (Doe v. McLaughlin (2022) 83 Cal.App.5th 640, 656; Brekke, supra, 125 Cal.App.4th at pp. 1409-1410.)
The restraining order is content neutral, prohibiting Barone from coming within 100 yards of Hamilton or contacting Hamilton in any way for a period of five years. (See R.D. v. P.M. (2011) 202 Cal.App.4th 181, 191 (R.D.) [a civil harassment restraining order is content neutral if it does not "mention or explicitly prohibit . . . any particular form of speech with respect to [the protected person]"].) When evaluating a content-neutral injunction, we must review the injunction's terms to ascertain "whether it imposes no more burden than is necessary to serve its legitimate governmental interests and whether it is thus a reasonable 'time, place, and manner' restriction in light of the importance of those interests." (Id. at p. 192; Madsen v. Women's Health Center (1994) 512 U.S. 753, 765.)
Having independently reviewed the restraining order's terms, we conclude it does not unduly burden Barone's right to free speech. The order "serves an important governmental and public purpose-the prevention of violence and harassment, and the protection of [Hamilton's] right to safety and privacy- that section 527.6 was enacted to serve." (R.D., supra, 202 Cal.App.4th at p. 192.) The record-limited as it is-shows Barone invaded these rights by, among other things, sending a slanderous email and making more than 30 phone calls to Hamilton's workplace. Barone gave no indication that she intended to stop this conduct. In view of this evidence, we are satisfied the order places no more burden on Barone's speech than is necessary to accomplish its legitimate objective. (Cf. Smith v. Silvey (1983) 149 Cal.App.3d 400, 406-407 [order prohibiting restrained party from" 'contacting' any of the residents of the mobilehome [p]ark" was unconstitutionally overbroad as it could be interpreted to enjoin" 'house-to-house distribution of ideas'" before "caller has been warned by the householder that the latter does not want to be disturbed"].)
DISPOSITION
The order is affirmed. As Hamilton did not participate in this appeal, no costs are awarded.
We concur: EDMON, P. J., ADAMS, J.