Opinion
B223636
08-18-2011
CHARLINE MILLER, Plaintiff and Respondent, v. SARA LIMA, Defendant and Appellant.
Sara Lima, in pro. per.; and Susan L. Ferguson for Defendant and Appellant. Diamond & Associates and David D. Diamond for Plaintiff 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. ES013677)
APPEAL from an order of the Superior Court of Los Angeles County, Robert Applegate, Judge. Affirmed.
Sara Lima, in pro. per.; and Susan L. Ferguson for Defendant and Appellant.
Diamond & Associates and David D. Diamond for Plaintiff and Respondent.
INTRODUCTION
Appellant Sara Lima appeals from an order granting an injunction prohibiting harassment issued pursuant to Code of Civil Procedure section 527.6, which enjoins her from coming within two yards of her next-door neighbors Charline Miller and Miller's husband Robert Cooper, contacting them, and harassing them by using profanity directed to or intended to be overheard by them. We affirm.
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
Lima lives next door to Miller and Cooper and they share a common driveway that is about 15 feet wide. Installed under the driveway is a drainage system with drains on Miller's and Cooper's property. Lima's use of the driveway led to the deterioration of their relationship because she used the driveway to do domestic chores that directed water to Miller's property. On December 30, 2009, Miller filed a petition alleging she and her husband had suffered harassment and sought a temporary restraining order or an injunction to prohibit further harassment. Miller filed the petition three days after she overheard Lima tell a friend that " 'I should break their "f-in" windows.' " About an hour after Miller overheard the comment, she observed Lima washing off the sidewalk, the driveway, and her truck. Miller told Lima that there was a city ordinance that prohibited her from hosing down the driveway. Lima responded, " 'F-you'; 'why don't you report me you f-in B[.]' " Lima called the police. This was the latest in a series of incidents between these neighbors.
In Miller's petition, signed under penalty of perjury, she detailed additional incidents over a three-month period and described Lima's conduct as unstable, abusive, and threatening. Miller and Cooper asked Lima to refrain from using the driveway to wash carpets, sheets, and towels filled with dirt, dog hair, and feces, because the dirty water drained to Miller's and Cooper's property. Lima became agitated at the request. On October 8, 2009, Lima was outside washing her carpets. Miller asked Lima again to stop directing the water to their property. Lima began screaming at Miller, calling the request "petty," and used profanity. As Miller returned to her house, Lima sprayed Miller with water from the garden hose. Miller threatened Lima, stating she "would punch her in the face" if Lima ever did that again. Lima called the police.
About a month later, Miller and Cooper sent a letter via certified mail asking Lima to remain on her property. The letter also stated they intended to construct a wall dividing their properties. Lima responded by letter, which included personal attacks, calling Miller and Cooper "pompous, selfish, heartless, arrogant beings."
Lima's letter demanded that Miller's gardener refrain from blowing debris on her property. In early December 2009, when Miller's gardener blew debris toward Lima's property, Lima screamed at the gardener and later called Miller's cell phone and left "a nasty voicemail" message. The following week, Lima videotaped the gardener and left a handwritten note in Miller's mailbox.
Miller also stated in her petition that on several occasions Lima screamed at her with the window open, "that she is going to make [their] lives miserable[.]"
On the date Miller's petition was filed, the trial court scheduled a hearing on an order to show cause for the permanent injunction and made no temporary orders pending a full hearing. Miller and Lima appeared for the hearing. During the hearing, Miller reiterated that "[t]here will be weeks that go by and she'll be standing at her back door screaming 'you fing B,' - - with my kitchen window open usually - - 'you fing B, I'm going to make your fing life miserable.' " Miller also called Tara Randall as a witness who testified that she was present and saw two of these incidents between Miller and Lima. Lima denied the accusations. By the time of trial, Miller and Cooper had erected a wall between the properties, but Miller testified that she thought the harassment would continue without the court's intervention.
The trial court granted Miller's petition and entered an order enjoining Lima from harassing Miller and Cooper, but stated the injunction was "limited in its scope" and tailored based upon the evidence presented at the hearing. The trial court found by clear and convincing evidence a pattern of harassment by Lima directed toward Miller and Cooper. Accordingly, the trial court stated Lima "must not harass either of them." The trial court clarified this order: "I have defined harassment to include, but is not limited to, the use of any profanity directed to or intended to be overheard" by Miller or Cooper. In addition, Lima was ordered not to contact Miller or Cooper by telephone or to send messages by mail or e-mail (with the exception of common property area maintenance issues), and to stay at least two yards away from each of them.
DISCUSSION
On appeal, Lima contends that there is insufficient evidence of a course of conduct to support the trial court's order, and the injunction is overbroad because it prohibits her from using profanity, which is a prior restraint on her freedom of speech. We find no merit in either of these contentions.
1. Sufficient Evidence Supports the Section 527.6 Injunction
"In assessing whether substantial evidence supports the requisite elements of willful harassment, as defined in Code of Civil Procedure section 527.6, we review the evidence before the trial court in accordance with the customary rules of appellate review. We 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 which is reasonable, credible and of solid value." (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.)
If we were to review the grant of injunctive relief under the abuse of discretion standard, we would reach the same result. (See Salazar v. Eastin (1995) 9 Cal.4th 836, 849-850.)
A person who has suffered harassment may seek injunctive relief under section 527.6. There are three types of actionable harassment under this statute: (1) "unlawful violence," (2) "a credible threat of violence," or (3) "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).) There must be clear and convincing evidence that harassment exists to issue an injunction. (Id., subd. (i).) " 'Clear and convincing' evidence requires a finding of high probability," so clear as to leave no substantial doubt. (In re Angelia P. (1981) 28 Cal.3d 908, 919, superseded by statute on other grounds as stated in In re Cody W. (1994) 31 Cal.App.4th 221, 229.)
"Harassment," as defined in section 527.6, subdivision (b)(3) 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 petitioner."
Miller's petition alleges harassment arising from a course of conduct. A 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 following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual . . . ." (§ 527.6, subd. (b)(1).) Constitutionally protected activity is not included within the meaning of course of conduct. (Ibid.)The conduct "must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress . . . ." (§ 527.6, subd. (b)(3).)
Lima contends that her threat to break Miller's windows was not sufficient evidence to establish a course of conduct. Our review of the record finds sufficient evidence that in addition to that violent threat, Lima engaged in a series of acts intending to harass Miller and her husband. Miller attempted to work with Lima to share the use of their common driveway. Rather than compromising, Lima antagonized Miller and her husband, used profanity, and acted in an unpredictable manner in response to Miller's requests. The threat to resort to violence escalated Lima's unpredictable behavior, which would cause a reasonable person to be distressed. The conduct Miller described was significantly greater than the usual "inconveniences and annoyances from the reasonable use of property by neighbors[.]" (Schild v. Rubin, supra, 232 Cal.App.3d at p. 763.) In addition, it is apparent from the transcript of the hearing that once Miller asked the court to intervene, Lima refrained from any further threatening or antagonistic conduct toward Miller and her husband. Without issuing the injunction, it is highly probable that Lima's conduct would have continued in this manner. (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 332-333.) The trial court also was not convinced that the erection of a wall would end the harassment, thus Lima posed a threat of future harm to Miller and her husband.
We reject Lima's contention that there was no clear and convincing evidence before the trial court because Miller's testimony lacked credibility. The testimony of a single witness is enough to support a judgment. (Fariba v. Dealer Services Corp. (2009) 178 Cal.App.4th 156, 171.) It was within the court's discretion to believe Miller and disbelieve Lima. The trial court may reject witness testimony as part of a credibility assessment. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204-1205.) It is the exclusive province of the trial court to determine witness credibility, and we have no power on appeal to consider the credibility of the witness, weigh the evidence, or resolve conflicts in the evidence. (Navarro v. Perron (2004) 122 Cal.App.4th 797, 803.)
In sum, as described by Miller, there was clear and convincing evidence from which the trial court concluded that Lima had engaged in a course of harassing conduct specifically directed at Miller and her husband with no legitimate purpose. From Miller's testimony, it could also be inferred that a reasonable person would suffer substantial emotional distress because of Lima's aggressive and offensive conduct. The trial court's decision was supported by substantial evidence.
2. The Scope of the Injunction is Not Overbroad
Lima contends the injunction impermissibly prohibits her constitutionally protected right to free speech because the prohibition on her use of profanity is a prior restraint. We disagree.
"[A] judicial remedy must be tailored to the harm at issue. [Citations.] A court should always strive for the least disruptive remedy adequate to its legitimate task." (Butt v. State of California (1992) 4 Cal.4th 668, 695-696.) The court's order adequately balances both parties' rights and is sufficiently tailored to the harm at issue.
Section 527.6 was enacted " 'to protect the individual's right to pursue safety, happiness and privacy as guaranteed by the California Constitution.' " (Schraer v. Berkeley Property Owners' Assn. (1989) 207 Cal.App.3d 719, 729-730.) The injunction does not preclude Lima from using profanity, but rather protects Miller and Cooper from constant threats and harsh language that constitute harassment under section 527.6. We disagree with Lima that the order could be interpreted broadly enough to preclude a protected activity such as the use of profanity in a casual conversation within Miller's earshot. The court's order is narrowly drawn and specifically addresses harassment, which includes profanity directed at or intended to be overheard by Miller or Cooper. Thus, Lima is free to use profanity, but she violates the injunction if she uses profanity to harass Miller and Cooper.
The remaining arguments Lima presents in her briefs filed in propria persona and in the supplemental letter to the court filed by her counsel are without merit and any discussion of them is unnecessary to resolve this appeal.
DISPOSITION
The order granting an injunction is affirmed. Each party is to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J. We concur:
CROSKEY, Acting P. J.
KITCHING, J.