Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. YS020893, Douglas G. Carnahan, Judge.
James Parker, in pro. per., for Defendant and Appellant.
Dykema Gossett and Andrea F. Ventura for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant James Parker (defendant), in propria persona, appeals a restraining order after a hearing to stop civil harassment (Code Civ. Proc., § 527.6), obtained by plaintiff and respondent Susan Marie Kunoth (plaintiff).
An order granting an injunction is specifically appealable. (Code Civ. Proc., § 904.1, subd. (a)(6).)
We perceive no error in the trial court’s rulings and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
1. Overview.
Plaintiff’s property is located on the other side of the street from Palos Verdes Intermediate School (the school). Plaintiff has lived at that address for over 22 years. At the end of the school day, children have been congregating on plaintiff’s side of the street, in front of plaintiff’s home, while waiting to be picked up by their parents (the disputed waiting area). Plaintiff contends the disputed waiting area is part of her front yard and she has been escorting children back to the other side of the street, to wait for their rides on school grounds. Defendant contends the disputed waiting area is actually owned by the city of Palos Verdes Estates, and that the city owns the 35 feet between the street and plaintiff’s property.
Defendant’s son attends the school. Plaintiff asked defendant to wait away from plaintiff’s property to meet his son after school. The conflict has led to verbal altercations and culminated in the issuance of the instant restraining order.
2. Proceedings.
On March 19, 2010, plaintiff filed an application for a restraining order against defendant, with a supporting declaration describing the harassment. Plaintiff asserted defendant had been “aggressive, threatening and intimidating. He yells at me, turns red in the face, clenches his hands, and stands too close to me as he yells. On March 17, 2010, he employed 3 boys to taunt and annoy me.” His remarks included: “ ‘Your husband was stupid to have bought a house across the street from a school, ’ ” and calling her “crazy” in front of other parents and students.
On March 19, 2010, the trial court issued a temporary restraining order directing defendant to stay at least 10 yards away from plaintiff and her home, and set the matter for hearing.
3. Summary of the hearing.
On May 26, 2010, the matter came on for an expedited evidentiary hearing. At the hearing, defendant appeared in propria persona. The same five witnesses were subpoenaed by both parties.
a. Plaintiff’s case.
The trial court questioned plaintiff whether the facts set forth in her application were true. Plaintiff responded in the affirmative.
Plaintiff testified that defendant had tossed a dozen eggs at her house one Friday night back in March. Plaintiff believed the culprit was defendant, because her husband saw a man pacing in the school parking lot across the street. This was the first incident of vandalism in the 23 years plaintiff had lived there. Plaintiff also testified to another incident in which where there was a confrontation with defendant, requiring the intervention of a motorcycle officer to mediate it.
Plaintiff further testified her property extends all the way to the curb, there being no public sidewalk.
Susan Van Every, manager of the Palos Verdes Homes Association, testified that “every private property has a city street right of way in front of it.” The easement varies with each property, and may be five feet or more.
With respect to the real property boundaries, the trial court then observed: “I must say this is interesting, although I’m not overly concerned about it. [¶] I mean, because the civil harassment aspect of the case is, in some respects, even more important than where the property line is. [¶] Even if a harasser is on public property, it doesn’t give them the right to be a harasser.”
Plaintiff testified she had recently retired and thus became aware of the hazard to schoolchildren, who were sitting or standing on rocks in the disputed waiting area. She stated “I would be so sick if somebody got hurt or killed there in the street or on my property.”
Plaintiff’s husband testified, with respect to the egging incident, that he saw a man of defendant’s stature running across the street on the night in question, it was 38 yards away and the area was well lit, so he was able to identify the perpetrator as the defendant.
Irrespective of whether defendant was the individual who tossed the eggs at plaintiff’s house, ample grounds existed for the issuance of the restraining order, based on the entire course of conduct by defendant.
b. Defense case.
Defendant did not cross-examine any of the witnesses. The defense case consisted solely of defendant’s own testimony. Defendant denied ever harassing plaintiff. “I was sitting on a rock with two other children waiting for my son, and she got in my face, and I talked to her, but I never harassed her or anything.” Defendant denied that he got red in the face. He asserted he simply reached for his phone to ask the city “if it’s okay to wait on the corner.”
The trial court stated: “[G]iven a case, I’m only empowered to do certain things. And this case is not about a decision on my part of who gets to sit where on the rocks.... My job here is to determine whether, by clear and convincing evidence, it’s proven that [defendant] has harassed [plaintiff].”
The trial court gave defendant ample opportunity to present a defense. After reviewing various documents presented by defendant, the trial court asked defendant: “Is there anything particular in there, Mr. Parker, that you wanted to point out to me?” (Italics added.) Defendant responded that unlike other area residents, “these people like to chase kids off the corner.”
The trial court further inquired: “But let me move on through your paperwork here, Mr. Parker, and see if there’s anything else I wanted to ask you about. [¶] You pretty much covered it, both in writing and in your verbal comments.”
The trial court then stated: “Okay. The methodology or the thing that we would do at this point is, I’ll ask a series of general questions now to [defendant], and then we will go around again as we have the final presentations. [¶] Typically, what I would do in this case is just go down the line, taking the five individuals in order, see if there’s anything they want to add that we haven’t heard. [¶] But before we do that, we’re still on your part of the case Mr. Parker. [¶] Is there anything else you wanted to tell me?” (Italics added.)
Defendant responded: “Yes. I firmly believe that this is just a harassment by [plaintiff] because I initiated a petition for a crosswalk there.”
The court stated, “I’ll come back to you on that. [¶] Here, as we go around the table, I’m interested in your knowledge about the incidents involving [plaintiff] and [defendant], if you have any.”
After plaintiff’s rebuttal, the trial court addressed the defendant as follows: “Mr. Parker, we finish up with you. [¶] I don’t think I have any specific questions for you. But if you wanted to respond, either in terms of testimony or by documents or any other way that you had, then now would be the time. Then we will have a ruling.” (Italics added.)
Defendant then presented surrebutal, again denying he harassed plaintiff. He stated, “I’m one of the good guys, your honor. It just happens that I crossed paths with her in getting into this crosswalk thing.”
c. Trial court’s ruling.
The trial court stated: “It becomes my sad duty sometimes to have to tell one side of the case or the other what my views are about it and how that impacts them. [¶] And of course, in a case like this, ... I do make a practice of trying to point out... what I think is important and what isn’t. [¶] Mr. Parker, I think I have to tell you candidly I think you have a problem there. [¶] I’m not concerned about... what appears to be a bona fide community dispute relating to the traffic and the kids and whatnot.... But I have to say, Mr. Parker, even if I accepted your theory... that these kids have a right to be where they are, ... I think the clear and convincing evidence is that I need to restrain you from having any contact with this lady. [¶] That’s the impression that I have, I should say, ... from listening to the... witnesses, from reviewing the documents, from looking at the written presentations.” (Italics added.) The trial court granted plaintiff’s request for a restraining order, requiring defendant to stay at least 10 yards away from plaintiff and her home for a period of three years.
4. Subsequent proceedings.
On July 22, 2010, the trial court denied defendant’s motion for a new trial.
On August 10, 2010, defendant filed a timely notice of appeal from the May 26, 2010 restraining order after hearing. (Cal. Rules of Court, rule 8.108(b).)
CONTENTIONS
Defendant contends: at the trial on the request for a permanent restraining order, he was denied almost any right to properly defend against the restraining order; a restraining order cannot be granted under section 527.6 where the conduct serves a legitimate purpose as here, where he sought a safe pickup place after school for his child and other children on city property; a restraining order cannot be granted in the absence of substantial emotional distress which was not shown here; he was denied a full opportunity to present his case; a restraining order cannot be granted in the absence of a finding of future harm constituting great or irreparable harm which was absent here and it must appear with reasonable certainty that the wrongful acts will persist; and the trial court erred in inviting and allowing hearsay evidence.
DISCUSSION
1. The pertinent statute.
Section 527.6, which authorizes the issuance of an injunction against harassment, states in pertinent part: “(b) For the purposes of this section, ‘harassment’ is unlawful violence, a credible threat of violence, or 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. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff.”
At the hearing on the matter, “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. An injunction issued pursuant to this section shall have a duration of not more than three years.” (§ 527.6, subd. (d).)
2. Standard of appellate review.
“ ‘The law is well settled that the decision to grant [a restraining order] rests in the sound discretion of the trial court.’ [Citation.] ‘A trial court will be found to have abused its discretion only when it has “ ‘exceeded the bounds of reason or contravened the uncontradicted evidence.’ ” ’ [Citation.] ‘Further, the burden rests with the party challenging the [trial court’s order] to make a clear showing of an abuse of discretion.’ [Citation.]” (Church of Christ in Hollywood v. Superior Court (2002) 99 Cal.App.4th 1244, 1251.)
3. No abuse of discretion in trial court’s ruling.
Defendant contends at the hearing he was denied almost any right to defend against the restraining order, he was not allowed to testify, he was not allowed to question or cross-examine witnesses, and he was not allowed to participate in the trial, in that the bailiff approached and intimidated him whenever he tried to speak.
This court has reviewed the reporter’s transcript in its entirety. Contrary to defendant’s characterization of what transpired, the record reflects the trial court repeatedly invited defendant to put on his case and gave defendant ample opportunity to present his defense. (See section 3(b) of Factual and Procedural Background, ante.)
Further, the trial court never precluded defendant from calling his witnesses or from cross-examining the plaintiff’s witnesses. Defendant represented himself at the hearing. The trial court’s role was not to act as his backup counsel. Defendant’s failure to call his witnesses, or to cross-examine the plaintiff’s witnesses, is not attributable to the trial court.
Plaintiff contends the trial court was under “a mostly self imposed misunderstanding” that the area on which the events occurred is owned by plaintiff. However, it is plaintiff who has confused the issues on appeal. The critical inquiry is not whether the disputed waiting area is owned by plaintiff or is located on a public right of way. To reiterate, with respect to the location of the property boundaries, the trial court properly recognized: “I must say this is interesting, although I’m not overly concerned about it. [¶] I mean, because the civil harassment aspect of the case is, in some respects, even more important than where the property line is. [¶] Even if a harasser is on public property, it doesn’t give them the right to be a harasser.” (Italics added.)
Defendant further contends the trial court committed evidentiary error and asked questions of witnesses that sought hearsay or double hearsay. However, by failing to assert his evidentiary objections below, defendant failed to preserve the issue for appeal. (Evid. Code, § 353.)
Defendant contends the trial court erred in granting plaintiff a restraining order because his conduct served a legitimate purpose in providing his child and other children a safe pickup place after school. However, our role is not to reweigh the evidence. The issue at this juncture is whether there is substantial evidence to support the trial court’s finding by clear and convincing evidence that unlawful harassment existed. The evidence, set forth ante, supports the trial court’s determination in that regard.
Lastly, defendant contends a restraining order cannot be granted in the absence of substantial emotional distress. Section 527.6, subdivision (b) states “The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff.” Here, plaintiff asserted defendant’s course of conduct caused her substantial emotional distress, and the trial court credited her testimony. The trial court’s determination is entitled to deference by this court.
DISPOSITION
The May 26, 2010 restraining order after hearing is affirmed. Plaintiff shall recover her costs on appeal.
We concur: CROSKEY, J.KITCHING, J.
All further statutory references are to the Code of Civil Procedure, unless otherwise specified.