Opinion
D057764
11-02-2011
LAKESIDE UNION SCHOOL DISTRICT, Plaintiff and Respondent, v. GREG DOSSEY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 37-2010-00068337-CU-HR-EC)
APPEAL from an order of the Superior Court of San Diego County, Frederick A. Mandabach, Judge. Affirmed.
Greg Dossey appeals the issuance of a permanent injunction after a hearing based on the petition of Lakeside Union School District (District) "Prohibiting Violence or Threats of Violence Against Employee" (petition). The petition was brought under Code of Civil Procedure section 527.8, subdivision (a) and names Olympia Kyriakidis, the principal of Riverview Elementary School (Riverview), as the "employee" protected under the injunction. Dossey is a parent of a student at Riverview, which is operated by the District.
Subdivision (a) of Code of Civil Procedure section 527.8 provides: "Any employer, whose employee has suffered unlawful violence or a credible threat of violence from any individual, that can reasonably be construed to be carried out or to have been carried out at the workplace, may seek a temporary restraining order and an injunction on behalf of the employee and, at the discretion of the court, any number of other employees at the workplace, and, if appropriate, other employees at other workplaces of the employer."
Dossey does not attack the restraining order on the merits. Instead, Dossey claims on appeal the trial court violated his Sixth Amendment right to confront his accusers when it admitted sworn affidavits in support of the District's petition, after Dossey stated on the record during the evidentiary hearing he had no objection to the admission of such evidence. As we explain, we affirm the order granting the petition.
DISCUSSION
A. Standards of Review
"Broadly speaking, an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence." (People v. Waidla (2000) 22 Cal.4th 690, 717; see also San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1414 [" 'The trial court retains broad discretion in determining the relevance of evidence.' "].)
" '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.)
B. Admission of Affidavits
1. Factual Background
In early June 2010, the District filed the petition against Dossey after what it described as an escalation of his "unpredictable actions." In particular, the District noted several parents of students who attended Riverview expressed concern over Dossey's actions and behavior at the school, including his taking without authorization pictures of cars, students and teachers at Riverview both before and after school and posting such photographs on his Facebook page, yelling at individuals, including Riverview staff members in front of school children, and disrupting pick up and drop off procedures at the school.
The District also noted Dossey had two altercations with a custodian in April 2010 over a campus recycling program Dossey implemented, including squirting the custodian with a drink and making the following "joke" in connection with that custodian: "What do you tell a woman with two black eyes? Nothing, you already told her twice."; complaining the custodian was "whining" when the custodian failed to follow Dossey's directives regarding the recycling program; and yelling at the custodian and suggesting the custodian find work at a new school so that he would not have to deal with the custodian for the next five years.
Also in April 2010, the District alleged that during an open house Dossey threatened to lock the gate to the back of the school to force cars to park across the street, ostensibly because he was advocating for a crosswalk or traffic light near the school.
At Dossey's request, Kyriakidis and Scott Goergens, the principal of Lakeside Farms Elementary School (also operated by the District), met with Dossey in late April 2010 to discuss the April 23, 2010 letter Kyriakidis wrote Dossey in connection with these and other incidents (including an incident where Dossey told Kyriakidis he was going to run for the PTA board because "those witches" on the board needed to be removed and approaching several PTA members and threatening to sue for discrimination).
During this meeting, Dossey made "disturbing comments" including angrily referring to a certain Riverview teacher as the "root of all his problems" while at the same time displaying a drawing consisting of sunshine on one side of the drawing, a smoking volcano on the other side with the teacher's name at the tree roots. Dossey also stated with regard to the custodian he could have his "home-girls take care of the custodian" away from campus and behaved in an agitated and anxious manner that made Goergens concerned Dossey "was going to physically do something inappropriate."
The District in early June 2010 filed its petition and the trial court granted a temporary restraining order prohibiting Dossey from being within at least 100 yards of Riverview property, staff vehicles and staff, including Kyriakidis.
Dossey opposed the petition for injunction, which came on for evidentiary hearing on June 17, 2010. In his opposition, Dossey denied making a credible threat of violence against Kyriakidis and staff that would place a reasonable person in fear for his or her safety. Dossey also claimed the acts of which he was accused were, in any event, constitutionally protected by the First Amendment and the "Whistleblower Act 1989" and requested an award of $150,000 for pain and suffering and as punitive damages.
2. Procedural Background
At the evidentiary hearing on June 17, 2010, the record shows the trial court asked each party to identify the witnesses they intended to call to testify. Dossey, in propria persona, identified one witness, while the District stated no witnesses would be testifying on its behalf and indicated it intended to rely on the sworn affidavits in support of its petition. The following colloquy then occurred between the trial court and the parties regarding the affidavits:
"[Trial court:] I can't receive [the affidavits], if there's an objection. So you're [the District] entitled to continue [the hearing]. Are you sure that isn't what you want to do?
"[Counsel for the District:] If that's the case . . . .
"[Trial court:] Well, let me ask Mr. Dossey, did I get the name right?
"[Dossey:] Dossey.
"[Trial court:] Do you have any objection to [the District] admitting the declarations, the written statements of witnesses?
"[Dossey:] No. I have no problem with her admitting those. [Italics added.]
"[Trial court:] Then there is no problem.
"[Counsel for the District:] Okay. [¶] . . . [¶]
"[Trial court:] [Y]ou've [the District] presented your evidence by way of declaration. You're offering those into evidence, correct?
"[Counsel for the District:] I am.
"[Trial court:] And Mr. Dossey does not object, so the court will receive those." (Italics added.)
After listening to the evidence and reviewing during a recess the affidavits, the trial court granted the petition and issued the restraining order for one year as sought by the District. Under the restraining order, Dossey was entitled to pick up and drop off his daughter at Riverview.
The following day, Dossey filed a motion for "reconsideration," contending he did not receive a fair hearing because, among other complaints, he was not allowed to cross-examine the witnesses who submitted sworn affidavits in support of the petition. At the hearing on the motion, the trial court explained to Dossey the difference between a motion for reconsideration, which it described as giving a court a "second chance" to correct an error, and an appeal. In response, Dossey said, "I don't think you [the court] made errors. I think I made errors in the thing." The court then denied the motion.
The trial court's order denying Dossey's motion for reconsideration is not the subject of the instant appeal.
Dossey on appeal claims the trial court erred when it failed to admonish him that if he consented to the admission of the affidavits at the evidentiary hearing, he would be waiving his Sixth Amendment right to confront and cross-examine his accusers. We disagree, for the reasons we discuss.
3. Analysis
In California, a party who represents him- or herself is held to the same standard as an attorney. (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.) "When a litigant is appearing in propria persona, he [or she] is entitled to the same, but no greater, consideration that other litigants and attorneys [citations]. Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney [citation]." (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639, fn. omitted, disapproved on another ground as stated in Douglas v. Ostermeier (1991) 1 Cal.App.4th 729, 745.) A contrary rule, where courts are required or permitted exceptional treatment to a self-represented party, "would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation." (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985.)
Thus, under California law the trial court was not required to advise Dossey he had the right to object to the admission of the affidavits in support of the District's petition. Nonetheless, the record shows the trial court in fact advised Dossey of that right when it specifically asked him if he had any objection to the admission of the written declarations, to which Dossey replied, "No. I have no problem with [the District] admitting those."
For purposes of our discussion, we assume that had Dossey objected to the admission of the affidavits, the trial court would have sustained the objection and at a later hearing he would have had the right to cross-examine the District's witnesses.
"While it is the duty of a trial judge presiding over the trial of a case being conducted by a layman or a laywoman in propria persona to see that a miscarriage of justice does not occur through inadvertence, [the trial judge] is not required to act as counsel for that party in the presentation of evidence." (Taylor v. Bell (1971) 21 Cal.App.3d 1002, 1008 [trial court's refusal to advise self-represented party of the right to take a deposition was not error].) Here, the record shows Dossey's failure to insist on his alleged right to cross-examine the District's witnesses is not attributable to the trial court.
Moreover, because Dossey did not object to the admission of the affidavits at the evidentiary hearing, he has forfeited that issue on appeal. (Taylor v. Bell, supra, 21 Cal.App.3d at p. 1008; see also Evid. Code § 353 ["A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion . . . ."]; People v. Lewis (2001) 25 Cal.4th 610, 664 [a party who does not object to evidence at trial fails to preserve the point for appeal].)
In any event, even if there was error it was "only procedural in nature" (see Taylor v. Bell, supra, 21 Cal.App.3d at p. 1008), and thus assuming arguendo the admission of the affidavits was erroneous, on this record there was no miscarriage of justice that would warrant a reversal. (See Cal. Const., art. VI, § 13 ["No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice."].)
Indeed, the record shows Dossey presented exhibits, photographs and his version of events to the trial court, which in turn extensively questioned the various incidents at Riverview. Dossey also called a witness to testify on his behalf. At the conclusion of testimony, the trial court took a recess after it noted an "extraordinary amount of time" had been spent on the hearing, reviewed the evidence and only then granted the restraining order.
We thus conclude that even if the trial court erred, Dossey received a fair hearing and no "miscarriage of justice" occurred to warrant reversal. (See Brown v. Newby (1940) 39 Cal.App.2d 615, 618 ["To be entitled to relief on appeal from the result of an alleged abuse of discretion it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice."].)
Finally, although as we noted ante Dossey did not challenge the restraining order on the merits, we note from our review of the record there is substantial evidence from the sworn affidavits supporting the finding of the trial court that Dossey made a credible threat of violence against Kyriakidis and staff that placed her and her staff in fear for their safety within the meaning of subdivision (a) of Code of Civil Procedure section 527.8. (See Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822 [substantial evidence standard of review applies to a trial court's factual findings in support of an order]; In re Cassandra B. (2004) 125 Cal.App.4th 199, 210-211 ["If there is substantial evidence supporting the order, the court's issuance of the restraining order may not be disturbed."].)
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DISPOSITION
The June 17, 2010 restraining order is affirmed. The District shall recover its costs of appeal.
BENKE, J. WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.