Opinion
F072835
08-30-2017
MICHELE A. MINNIEAR, Plaintiff and Respondent, v. DANIEL SOHN, Defendant and Appellant.
Law Offices of James H. Watkins and James H. Watkins for Defendant and Appellant. Berliner Cohen and Kimberly G. Flores 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10644)
OPINION
APPEAL from a judgment of the Superior Court of Mariposa County. H. N. Papadakis, Judge. (Retired Judge of the Fresno Sup. Ct. assigned by the Chief Justice pursuant to article VI, § 6 of the Cal. Const.) Law Offices of James H. Watkins and James H. Watkins for Defendant and Appellant. Berliner Cohen and Kimberly G. Flores for Plaintiff and Respondent.
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This appeal is part of a dispute among neighbors about the location and maintenance of an easement that serves their residences. Appellant Daniel Sohn contends a civil harassment restraining order issued pursuant to Code of Civil Procedure section 527.6 in favor of a neighboring couple was based on factual and legal error constituting an abuse of discretion. We disagree.
All unlabeled statutory references are to the Code of Civil Procedure.
First, we conclude the trial court's findings as to the credibility of the testimony presented withstand scrutiny under the deferential standards applied by appellate courts to express and implied credibility findings of the trier of fact. Second, we conclude the testimony of the neighbor provides substantial evidence to support the finding that Sohn's mobility scooter made physical contact with the neighbor's foot. This unwanted touching provides a basis for concluding Sohn committed a simple battery (see Pen. Code, § 242) and, thus, engaged in unlawful violence for purposes of section 527.6. Third, the record contains substantial evidence supporting the finding of a course of conduct of harassment for purposes of section 527.6, subdivision (b)(1). The findings under the statute of (1) "unlawful violence" and (2) a "course of conduct" causing "substantial emotional distress" provide an adequate basis for the issuance of the restraining order.
Sohn's challenges to the provision in the restraining order requiring him to move his many trail cameras 50 feet inside his fence line are rejected. We conclude this requirement was appropriate in the circumstances of this case, which included Sohn's use of the cameras to annoy the neighbors.
We therefore affirm the restraining order.
FACTS
Sohn and his wife own and reside at real property located on a short roadway in Mariposa. They acquired the property in 1999. The roadway is curved, has only one inlet-outlet and ends with a circular area for turning. Sohn's property is adjacent to the road for nearly the entire length of the inside of its curve. The roadway occupies a nonexclusive 60-foot wide easement that serves six parcels of real property, including the litigants' parcels. The center of the easement is located on the property line between the parcels. The roadway is graveled and has traditionally been privately maintained by the owners of the affected parcels.
Respondent Michele Minniear and her wife, Dana Hall, own and reside on one of the parcels located on the side of the roadway opposite of Sohn. The use and maintenance of the roadway has been the source of disagreement between Sohn and Minniear. Sohn states that the County of Mariposa declined to accept responsibility for the maintenance of the roadway pursuant to an attempted dedication of an easement. Sohn believes the County's rejection resulted in the attempted dedication becoming a private, nonexclusive easement for the benefit of the six holders of parcels under the parcel maps. Sohn asserts that in 2004-2005, he and his wife, along with other residents on the roadway, made some improvements, including spreading gravel. He contends that for the next 10 years there were no disputes concerning the easement or the roadway.
Sohn contends that in late 2014, Minniear approached him claiming the roadway needed improvements and asked for contributions towards the cost of gravel and road base. Sohn did not agree, saying he wanted more information and did not want Minniear doing any road grading on the portion of his property that was the servient tenancy under the easement. On December 30, 2014, Sohn states he saw Minniear using her tractor on the roadway and "she had totally scraped away and removed the crown on the roadway." He claims she had graded the roadway in such a fashion as to cause erosion of the roadway and the shoulder on his property. Sohn also claims that on January 28, 2015, Minniear was again grading on his side of the roadway and cutting into its shoulder. He claims he urged her not to cut into the shoulder, but she refused and continued scraping.
Since December 2014, relations between the neighbors continued to deteriorate. Minniear's request for restraining orders alleged harassment occurred on March 2, 2015, when Minniear "had gone over to the bank of the road in the easement looking at piles of dirt that I had been accused of putting there." Minniear alleged "Sohn started yelling at me to get off his property. I informed him I was not on his property but on the easement. He continued yelling to get off his property and I again told him I was not on his property. He said I was trespassing and continued yelling that. I said I was not. He said that he was going to call the Sheriff and have me arrested. [He] told [his wife] to call the Sheriff." This exchange illustrates the parties' disagreement about the location of the easement. Minniear thought she was within the easement and Sohn thought she was outside the easement and on his property. Other evidence of the dispute as to the easement's location is provided by photographs of reflectors and a no-trespassing sign Sohn erected on the roadway. The reflectors apparently mark the line where Sohn believes the easement ends and his unencumbered property begins. April 4 , 2015, Incident
On April 4, 2015, when Hall was driving home, she saw Sohn on his tractor scraping rock away from the road that had been put there when Minniear and Hall had gravel laid down in December. Hall began photographing Sohn. Hall testified that "Sohn started screaming at me to get off his property." Sohn's wife told Hall she was trespassing and Hall replied, "I am not, I'm in the road." When Hall continued taking pictures, "he turned his tractor at me and started coming at me with his bucket up," which is shown in a photograph admitted into evidence. Hall testified that Sohn "stopped with the bucket down right in front of me and glared at me." April 8 , 2015, Incident
On April 8, 2015, another incident occurred and led to Minniear requesting a restraining order the following day. At the time of the incident, Sohn, Minniear and Hall were all 65 years old. It started when a neighbor told Minniear that Sohn and his wife had started a burn pile in the turn-around area at the end of the roadway. Minniear went to see what was happening because of the ongoing issues with Sohn regarding the easement. Minniear described the burn pile as being "in the middle of the cul de sac at the end of [the roadway]," a placement that seemed odd to her. Minniear returned home to get her camera, returned to the area and began taking pictures. Sohn then came into the area on his scooter. Minniear alleged Sohn "headed straight toward me and made no attempt to slow down as he approached. He stopped his scooter within 6 inches of me and just glared at me. I moved away from him and he again headed straight at me and stopped just short of striking me. He then told me to get off his property." Minniear alleged she moved away from him again and said that she was in the easement, not on his property. Minniear alleged, "I moved several feet away again and took more pictures. Mr. Sohn then appeared to become very agitated and t that point he came at me again while on the scooter and ran over my left foot. He was grinning and began to laugh and again told me to get off of his property." Minniear told him that she had had it. She returned home and called the sheriff. Deputies arrived, Minniear filled out an arrest request, and Sohn was arrested and taken into custody.
Sohn testified he uses the motorized scooter because he cannot walk far due to a titanium donor bone in his lumbar and sacral area.
Sohn described the incident differently. He testified he did not cause his scooter to run over Minniear's foot. Sohn stated that he never came within six inches of Minniear.
During cross-examination about the April 8, 2015, incident, Minniear was asked, "Didn't [Sohn] tell you that you really needed to learn what a nonexclusive easement was?" Minniear responded, "He's mentioned that many, many times in the past." This testimony illustrates another aspect of the parties' dispute about the easement. The easement dispute is the subject of a pending lawsuit filed by Minniear, Hall, Fred and Muriel Temps, Roger and Laurel Siebecker, and Tom and Carol Schmidt against Sohn and his wife in Mariposa County Superior Court as case No. 10647. Firearms
Sohn testified that he was armed during the incidents that occurred on April 4, 2015, and April 8, 2015, and was disarmed by the deputies when he was arrested. Sohn testified about his training with firearms by stating he had been employed by the National Park Service in the Alaska Region and, between 1986 and 1995, was a noncommissioned federal firearms instructor. As a collateral duty, he assisted the Anchorage Police Department transition from pistols to semiautomatics. It appears that Minniear and Hall were not aware that Sohn was armed during the incidents as Minniear checked the box for "I don't know" in response to the question in the request form about whether the person to be restrained owned or possessed any guns or other firearms.
The trial court stated it was "impressed that [Sohn] did not display a firearm in these instances" and "that neither of the witnesses actually saw the firearm." The subject of firearms is not discussed in more detail here because the issues raised by Sohn in this appeal do not involve guns or the provisions of the restraining order addressing guns.
PROCEEDINGS
On April 9, 2015, Minniear sought protection from Sohn by filing a request for civil harassment restraining orders using mandatory Judicial Council form CH-100 (rev. July 1, 2014). Attachment 7a(3) to the form described the harassment by recounting the April 8, 2015, incident. The form's question about whether the person to be restrained used a weapon was answered "yes," with the explanation that Sohn hit Minniear with his scooter. The injury received was described as "sore left toes." Attachment 7b to the form described previous harassment by Sohn.
The temporary restraining order was issued the same day Minniear's request was filed. The order named Sohn as the restrained person and Minniear and Hall as the protected persons. The hearing on the requested restraining order was initially scheduled for May 4, 2015, and was rescheduled for May 11, 2015.
At the May 11, 2015, hearing, Minniear, Hall and Sohn testified. After the matter was submitted, the trial court announced its decision, stating its belief that decisions should be given at the earliest date and parties should be informed of the reasons for the ruling. The court stated it was not making any rulings regarding the easement, which was the subject of another lawsuit. However, the court noted that a party may not use bodily force, or the threat of bodily force, to enforce an assumed legal right. The court stated, "That's why we have lawsuits like the one you have coming up. That's where those issues are decided." The court stated it would issue the restraining order and explained its reasons for the order.
On May 19, 2015, the trial court filed a civil harassment restraining order after hearing using mandatory Judicial Council form CH-130 (rev. July 1, 2014). The court checked boxes on the form for (1) personal conduct orders directing Sohn not to harass, intimidate or otherwise disturb the peace of the protected persons and (2) stay-away order directing Sohn to stay at least 50 yards away from the protected persons and the vehicle of Minniear. In the section of the form labeled "Other Orders," the court wrote, "Cameras to be kept 50 feet within fence line—not center of easement. Court made no orders re: firearms—[Sohn] has to comply with state law." The expiration date of the order was set at midnight on May 11, 2018.
On July 13, 2015, Sohn filed a notice of intention to move to set aside and vacate judgment and enter another and different judgment that cited sections 663 and 663a. Sohn argued for the deletion of paragraphs 7, 8 and 10 from the order after hearing. Paragraph 7 contained the terms of the stay-away orders. Paragraph 8 prohibited him for owning or possessing guns. Paragraph 10 contained provisions addressing the location of cameras. Initially, the hearing on the motion was scheduled for early August, but it was rescheduled to August 31, 2015.
On August 6, 2015, Minniear filed an application for an order to show cause regarding contempt of the restraining order. The application stated Sohn violated the restraining order by failing to move the cameras to a location at least 50 feet inside the fence line of his property. The hearing on the order to show cause was scheduled for August 31, 2015.
At the August 31, 2015, hearing, the trial court addressed the content of its stay-away orders by stating its "intent was to impose a 50-yard distance with the exception of traveling to and from their homes over this road, and where they would obviously be next to each other. Another exception would be for the properties that are immediately adjacent - a person ought to be able to go the edge of their property without worrying that it's within the 50 yards from the protected person." The court did not change the provision of the restraining order addressing camera placement, but did explain the rationale underlying the provision. The court stated it found the way the cameras had been used "to be harassing and annoying," but allowed placement 50 feet inside the fence so the cameras would still protect the property by recording evidence of a trespasser.
During the contempt portion of the hearing, Minniear, Hall and Sohn testified. Hall authenticated a series of 15 photographs that were received into evidence. The purpose of the photographs was to document the existence of cameras on Sohn's property that were not positioned at least 50 feet away from the fence line. Minniear testified the first photograph showed a camera positioned on the exterior of Sohn's fence—that is, on the easement side of the fence. She testified the second photograph showed another camera was mounted on a post attached to the Sohn fence. Minniear testified all of the photographs were taken from roadway, all showed Sohn's fence, and showed the position of the cameras relative to the fence. Minniear testified that she estimated there were 14 cameras less than 50 feet inside the fence line and used a rolling wheel and a range finder to estimate the location of all of the cameras that she could see. When asked whether some or all of the cameras were fake, Minniear responded that she had no idea and stated it was disconcerting regardless of whether they were real or not.
Sohn testified that after May 11, 2015, he removed all the cameras from their prior locations and moved them to "only locations where they were focused at our known surveyed property line, and more than 50 feet from that." As to a location that Minniear testified was 21 feet from the fence line, Sohn stated there was no camera at that location, only a camera safe that contained a photograph of a camera. Sohn described a camera safe as "a device that the cameras are secured in to protect them from vandalism." Sohn stated his purpose in having phony cameras was to "dissuade further vandalism and destruction of our private property, and protect the fence work that we're undertaking to move our fence closer to the easement edge." When asked how many of the 11 cameras located on his property were less than 50 feet inside the fence line, Sohn stated there was one, which was opposite Mr. Siebecker's driveway and was 62 feet back from the property line (or 32 feet inside the fence line).
After hearing the testimony, the court stated the obvious purpose behind placing false cameras was to harass the people protected by the restraining order. Also, Sohn admitted an actual camera was too close to the fence line. The court found Sohn had violated the restraining order, had continued to harass Minniear and Hall, and found Sohn in contempt of court.
On October 14, 2015, the trial court filed an amended civil harassment restraining order after hearing on Judicial Council form CH-130. Paragraph 7, stay-away orders, still required Sohn to stay at least 50 yards away from Minniear, Hall and Minniear's vehicle. The stay-away provision was modified to contain exceptions for "when (1) traveling on [the roadway] and (2) when you are situated within the boundary lines of your own real property." Paragraph 8 of the form order was not crossed out or otherwise shown to be inoperative. Its terms stated that the restrained party cannot own or possess guns, other firearms or ammunition. Paragraph 10 was restated as follows: "Camera to be kept 50 feet within fenceline - not center of easement." In November 2015, Sohn filed a notice of appeal from the amended restraining order entered on October 14, 2015.
On October 19, 2015, a hearing was held for the purpose of sentencing Sohn for contempt and addressing Minniear's request for attorney fees and costs. At the hearing, the trial court stated, "the factor that really sits hard with the Court was the fake camera. That's harassment. ... [T]he fake camera, that was simple out and out harassment. That's the one that sticks in my mind." After the matter was submitted, the court announced its decision to impose a sentence of five days in jail and a fine of $1,000, with a stay of the sentence. The court stated that part of its reason for staying the sentence was the amount of attorney fees Sohn would be directed to pay.
On November 12, 2015, the trial court filed a judgment of contempt that sentenced Sohn to five days in jail, imposed a $1,000 fine, and stayed the sentence "until further order of this Court." The judgment also directed Sohn to pay $6,422 as reasonable attorney fees and costs. Other Matters Presented to This Court
On January 11, 2016, Sohn filed a notice of appeal from the judgment of contempt entered in November 2015. The appeal was designated case No. F073130 by this court. In May 2016, Minniear filed a motion to dismiss the appeal on the ground that a judgment of contempt was nonappealable. In June 2016, this court granted the motion to dismiss.
On June 2, 2016, Sohn filed a petition for writ of certiorari or review seeking to annul the order finding Sohn in contempt. The petition alleged the main element of contempt, willful disobedience, was not present and had not been proven. The writ proceeding was designated case No. F073822 by this court. On August 5, 2016, we entered an order denying the petition.
DISCUSSION
I. APPELLATE REVIEW
A. Timeliness of Appeal
Minniear contends Sohn's November 3, 2015, notice of appeal is untimely as it relates to the civil harassment restraining order filed in May 2015. Minniear cites Malatka v. Helm (2010) 188 Cal.App.4th 1074 (Malatka), to support its untimeliness argument.
We reject Minniear's untimeliness argument. The amended restraining order modified the stay-away provisions to include two exceptions for when the 50-yard requirement did not apply. The inclusion of these exceptions substantially modified the restraining order in a manner that materially affected the rights of the parties. In particular, the modified stay-away order provided that Sohn, once on his own property, would not be required to retreat if Minniear or Hall came within 50 yards of him. The modified order also allowed Sohn to pass by Minniear or Hall while traveling on the roadway to and from his home. Under the rule that a substantial modification to a judgment or an order restarts the appeal period, we conclude that the timeliness of Sohn's appeal is measured from the amended restraining order. (See Sanchez v. Strickland (2011) 200 Cal.App.4th 758, 765 [substantial modification test determines whether amendment restarts the period for filing a notice of appeal]; CC-California Plaza Associates v. Paller & Goldstein (1996) 51 Cal.App.4th 1042, 1048 [substantial modification to a judgment starts a new appeal period that runs from the amended judgment].)
This conclusion does not contradict the reasoning employed in Malatka, where the trial court filed a May 18, 2007, restraining order and a first amended restraining order on June 12, 2007. (Malatka, supra, 188 Cal.App.4th at p. 1086.) The court stated: "We note that the December 18, 2007 appeal was filed over 180 days from the filing of the June 12 amended order, the outside time limit for filing an appeal from that order. (Cal. Rules of Court, rule 8.104(a)(3).)" (Ibid., italics added.) The court's mention of the amended restraining order and its use of that order in defining the outside limit of the appeal period is consistent with (1) our recognition of the principle that a substantial modification to a restraining order restarts the appeal period and (2) our application of that principle to this case.
B. Standard of Review
A claim that factual findings (express or implied) made to support the issuance of a civil harassment restraining order under section 527.6 lack sufficient evidentiary support is reviewed by an appellate court under the substantial evidence standard. (R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188.) The existence or nonexistence of substantial evidence is a question of law. (Ibid.)
Once the facts are determined by construing the evidence most favorably in support of the order, whether those facts are legally sufficient to constitute civil harassment under section 527.6 is a question of law subject to independent appellate review. (R.D. v. P.M., supra, 202 Cal.App.4th at p. 188.) II. HARASSMENT
A. Overview of Statutory Provisions
Section 527.6, subdivision (a) provides that a victim of "harassment ... may seek a temporary restraining order and an order after hearing prohibiting harassment." (§ 527.6, subd. (a)(1).) For purposes of the statute, harassment is defined as follows:
"[U]nlawful 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 that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner." (§ 527.6, subd. (b)(3).)
The three actions listed in the definition of harassment also have statutory definitions. "Unlawful violence" refers to "any assault or battery, or stalking as prohibited in Section 646.9 of the Penal Code, but does not include lawful acts of self-defense or defense of others." (§ 527.6, subd. (b)(7).) A "threat of violence" may be communicated in a statement or by a course of conduct and is "credible" if it "would place a reasonable person in fear for his or her safety or the safety of his or her immediate family" and if it serves no legitimate purpose. (§ 527.6, subd. (b)(2).) "Course of conduct" means "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose." (§ 527.6, subd. (b)(1).) The definition provides a nonexclusive list of examples, "including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means." (Ibid.)
A party may seek a temporary order and an order after hearing by filing a petition requesting that relief. (See § 527.6, subds. (d), (g).) The party responding to the petition "may file a response that explains, excuses, justifies, or denies the alleged harassment or may file a cross-petition under this section." (§ 527.6, subd. (h).) The statute establishes deadlines for holding a hearing on the petition, which are affected by whether a temporary restraining order was granted. (§ 527.6, subds. (f), (g).) "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 order shall issue prohibiting the harassment." (§ 527.6, subd. (i).) The order "may have a duration of no more than five years." (§ 527.6, subd. (j)(1).)
B. Sohn's Claims of Error
Sohn contends the evidence presented was not sufficient to support the trial court's finding of harassment. Sohn addresses the three activities listed in the statutory definition of harassment by contending there was (1) no unlawful violence, (2) no threat of violence and (3) no evidence of a course of conduct satisfying the statutory criteria for harassment. He specifically argues the confrontation at a burn pile on April 8, 2015, while he was seated in his scooter does not provide a basis for the restraining order. Sohn also contends Minniear failed to allege and prove actual and substantial emotional distress.
Minniear concedes she did not claim or attempt to prove harassment in the form of a "credible threat of violence" as that phrase is defined in section 527.6, subdivision (b)(2). Instead, she contends harassment was proven by evidence of "at least one act of unlawful violence, as well as a course of harassing conduct that would cause any reasonable person—not just Minniear or Hall—to suffer from substantial emotional distress."
C. Evidence of Unlawful Violence
1. Elements of Battery and Assault
Unlawful violence is defined as any assault, battery or stalking that meets certain statutory criteria. (§ 527.6, subd. (b)(7).) Penal Code section 240 defines an assault as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." The meaning of this statutory text was discussed in People v. Williams (2001) 26 Cal.4th 779 at pages 785 through 791. The court concluded that "assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (Id. at p. 790.) Thus, an assault does not require contact with the victim—that is, the application of physical force to another. The absence of contact distinguishes an assault from a battery.
Penal Code section 242 defines a battery as "any willful and unlawful use of force or violence upon the person of another." California courts have recognized that a slight touching may constitute a battery, if the touching is done in a rude or angry way. (People v. Hernandez (2011) 200 Cal.App.4th 1000, 1006.) Stated another way, "[t]he force at issue need not be violent or severe, and it need not cause bodily harm or pain." (Ibid.) These principles about the nature of the contact or touching that completes a simple battery are relevant to determining whether a battery (and thus unlawful violence) occurred in this case.
2. Contentions and Trial Court's Findings
Sohn contends Minniear's own statement and admission establish there was no assault or battery against her. Sohn quotes her testimony that stated, "He came right up to me and stopped ... kind of smirking and laughing." He contends such action was hardly unlawful violence. In response, Minniear contends Sohn committed an assault and battery upon her by repeatedly charging at her while riding his motorized scooter, and ultimately striking her foot with the tire of the scooter.
The trial court stated some of its finding on the record at the May 11, 2015, hearing. The court stated, "it's clear to the Court that you did use force, you did use the threat of force. Whether it was on the scooter, whether it was a foot, whether it was the tractor, this Court is satisfied that you charged at this person[, Minniear]." The court's statement that Sohn charged Minniear implies the court found Sohn's action constituted an assault.
Earlier, the court found that a scooter or a tractor is or can be a deadly weapon because it could bring about great bodily injury. The court also found the fact the person using a scooter has a disability is not an excuse.
Sohn acknowledges the trial court's express findings and argues: "The Court cited the testimony of [Minniear] and her wife and the photographs; however, the Court completely ignored the testimony of [Sohn] and made no indication of how the photographs proved or showed that [Sohn] charged [Minniear]." Sohn also contends the allegation that he ran over Minniear's foot is in dispute, arguing Minniear "first represented to the Mariposa Sheriff's Office that [Sohn] had run over her foot, but later recanted and said he had not." As explained below, Sohn's contentions do not demonstrate reversible error.
3. Evidence of Assaults and a Battery
First, we consider the evidence relating to physical contact between Sohn's scooter and Minniear's foot. At the May 11, 2015, hearing, Minniear testified:
"And the fourth time [Sohn] came up to me, and he actually hit my foot, and he did not completely run over my left foot, but got close enough to me that my boot was stuck underneath the wheel and I could not remove it. Now, in his statement, he says he felt a jerk of the wheel, and that was probably me trying to get my foot out from underneath his scooter."
Sohn also testified about his scooter's contact with Minniear. Sohn was asked if he caused his scooter, intentionally or inadvertently, to run over Minniear's foot. "Absolutely not" was Sohn's answer. During cross-examination of Sohn, Minniear asked, "Why did you come within six inches of me on three different occasions?" Sohn answered, "I never came within six inches of you." This answer effectively denies the claim that Sohn's scooter ran into, unto, or over Minniear's boot.
We conclude Minniear's testimony is sufficient to support the trial court's finding that Sohn caused his scooter to hit Minniear's foot. Sohn disagrees, arguing the evidence—conflicting as it is—does not meet the requirement for clear and convincing evidence of harassment set forth in section 527.6, subdivision (i). This argument misunderstands the relationship between (1) a trial court's application of a burden of proof that requires clear and convincing evidence and (2) an appellate court's application of the substantial evidence standard to review of the findings made by the trial court pursuant to that burden of proof.
It is true that section 527.6, subdivision (i) requires "clear and convincing evidence that unlawful harassment exists." However, this heightened burden of proof does not lead to the application of a heightened level of scrutiny on appeal. A trial court's findings under the clear and convincing burden of proof are reviewed by appellate courts under the substantial evidence standard. (See City of San Jose v. Garbett (2010) 190 Cal.App.4th 526, 538 [findings under clear and convincing burden of proof reviewed for substantial evidence].) This court has described the substantial evidence standard countless times. Our power as a court of review is limited to whether substantial evidence supports the finding; we have no power to judge the effect or value of the evidence, to weigh the evidence, to resolve conflicts in the evidence, or to choose among the reasonable inferences that may be drawn from the evidence. (Montebello Rose Co. v. Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1, 21 (Montebello Rose).) In short, we are required to resolve all factual conflicts and most questions of credibility in favor of the prevailing party and to draw all reasonable inferences in support of the trial court's findings. (Garbett, supra, at p. 538.)
The testimony of a single witness, even a party to the litigation, constitutes substantial evidence on the point in dispute. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) Here, Minniear's testimony that Sohn's scooter made contact with her foot constitutes substantial evidence supporting the finding that such contact occurred.
As to the conflicting testimony and the conflicting inferences that could be drawn from the evidence (such as the sequential photographs of the April 8, 2015, incident), the trial court resolved those conflicts by impliedly finding Minniear's testimony was credible. Witness credibility is regarded as a matter particularly committed to the trier of fact. (Montebello Rose, supra, 119 Cal.App.3d at p. 20.) Consequently, it is extremely difficult to overturn a credibility finding on appeal. Appellate courts accept the trial court's express or implied findings that a witness is credible, unless the testimony is incredible or inherently improbable. (Ibid.) Similarly, when a trial court finds all or part of a witness's testimony is not credible, appellate courts apply the rule that a trier of fact is free to disbelieve a witness, even one uncontradicted, if there is any rational ground for doing so. (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1043.)
Here, the trial court impliedly found Minniear's testimony was credible and the conflicting testimony of Sohn was not credible. These implied credibility findings have not been directly addressed by Sohn. In particular, Sohn has not identified the rules of law that appellate courts apply to witness credibility findings. Moreover, our independent application of those rules leads us to conclude the trial court's credibility findings must be upheld. Minniear's testimony was not incredible or inherently improbable. (See Montebello Rose, supra, 119 Cal.App.3d at p. 20.) Also, the court had rational grounds for disbelieving Sohn's testimony. (See Evid. Code, § 780 [list of factors that tend to prove or disprove the truthfulness of testimony].)
Therefore, we conclude Minniear's testimony that Sohn's scooter made contact with her foot is sufficient to establish the contact necessary for a battery. (People v. Hernandez, supra, 200 Cal.App.4th at p. 1006 [slight touching may constitute battery].) Furthermore, from the testimony presented, the court could infer that Sohn intended to commit the touching and that touching was unwanted. (People v. Campbell (1994) 23 Cal.App.4th 1488, 1495 [simple battery merely requires the intent to commit an unwanted touching].) Similarly, we conclude the testimony that Sohn "charged" Minniear with the scooter is sufficient to uphold the trial court's finding of an assault.
Sohn's claim of an erroneous evaluation of the evidence extends to the photographs presented at the hearing. The record contains 35 photographs that are time stamped from 1:05 p.m. through 1:07 p.m. on April 8, 2015. Most of the photographs show the burn pile and also show Sohn in his scooter. The photographs show Sohn and Minniear facing one another at a couple of different locations. The first location was on the far side of the burn pile relative to the camera. The photographs show Sohn driving his scooter past the burn pile and reaching Minniear. Later photographs show Minniear walking away from Sohn and the burn pile, Sohn following her, and them facing each other on the near side of the burn pile relative to the camera.
The trial court mentioned these photographs in connection with its finding that Sohn had charged at Minniear and stated the photographs made attitude and intent clear. In reviewing the trial court's interpretation of the photographic evidence, we conclude conflicting inferences could reasonably be drawn from those photographs. For instance, there is no photograph showing a wheel of the scooter in contact with Minniear's foot. Applying the rules of appellate review to evidence that is subject to conflicting inferences, we conclude the trial court's evaluation of the photographic evidence contains no error.
In summary, the evidence is sufficient under the substantial evidence standard of appellate review to uphold the trial court's findings that the scooter's wheel hit Minniear's foot and that Sohn charged at Minniear in his scooter to assault Minniear. These findings are sufficient to establish unlawful violence in the form of a battery and an assault, respectively.
D. Evidence of a Course of Harassing Conduct
Sohn argues that the only claim of a course of conduct set forth by Minniear was an allusion to Hall and their guests feeling "creeped out" about Sohn's trail cameras. We disagree with this limited reading of the request for a restraining order and the evidence presented.
Minniear's request for restraining orders included the general statement, "I do not have actual dates of previous harassment as it has been ongoing since the end of December." Immediately before this statement, Minniear described an incident that occurred on March 2, 2015, where Sohn had yelled at her to get off of his property while Minniear was on the easement. Minniear described another incident where Sohn abruptly turned his car in front of her tractor while she was moving forward on the shoulder of the roadway. Minniear stated she was able to stop the tractor before hitting his vehicle, but the incident made her uncomfortable. Minniear's request for a restraining order also referred to no-trespassing signs, reflectors and marking in the roadway and to requests that Sohn "remove things from the actual road so as not to cause harm to any person or vehicle." Minniear's request also referred to Sohn's use of cameras and his harassment of a neighbor's dog.
In addition to the contents of the request for a restraining order, Hall testified at the May 11, 2015, hearing about an April 4, 2015, incident in which Sohn drove his tractor at her and yelled at her to get off his property while she was on the easement. Hall also testified that she believed Sohn violated the stay-away provisions of the temporary restraining order by getting too close to her when she went to get her mail.
Based on the foregoing, we conclude the course of harassing conduct alleged by Minniear plainly extended beyond the April 8, 2015, incident and Sohn's use of trail cameras. Furthermore, the testimony presented at the May 11, 2015, hearing was sufficient to establish a course of conduct that included (1) the April 4, 2015, exchange with Hall; (2) the April 8, 2015, assaults and eventual battery of Minniear; (3) Sohn's placement of signs and reflectors in the roadway; (4) Sohn's posting of many trail cameras to record the activity of Minniear and Hall on the roadway and entering and leaving their property; and (5) the incident where Sohn, not the trail cameras, photographed Hall while she was returning from picking up her mail. This combination constitutes "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose." (§ 527.6, subd. (b)(1) [definition of course of conduct].) Therefore, we conclude a "course of conduct" existed for purposes of section 527.6.
E. Allegations and Evidence Relating to Substantial Emotional Distress
1. Allegations of Emotional Distress
Sohn contends "substantial emotional distress was never alleged or claimed by [Minniear]." Minniear did not use the phrase "emotional distress" in completing her request for civil harassment restraining orders. However, one of her attachments alleged her wife "is frightened for me because [Sohn] has made comments about me that implied I was a bad person. She is very worried about my safety." Another attachment stated: "The neighborhood has always been a friendly place but now we are all on edge because we don't know what is going to happen next."
The procedural requirements set forth in section 527.6 do not state that a party seeking a restraining order must plead substantial emotional distress with specificity or even generally. Therefore, we conclude the allegations contained in the attachment were sufficient to cover elements of substantial emotional distress from a course of conduct that constituted harassment. (See § 527.6, subd. (b)(3).)
2. Defining Emotional Distress
The terms "emotional distress" and the modifier "substantial" are not defined in the statute. (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762; cf. Welf. & Inst. Code, § 15610.53 [elder abuse act uses term "serious emotional distress" in definition of "mental suffering"].) In the analogous context of the tort of intentional infliction of emotional distress, the similar (yet stronger phrase) "severe emotional distress" means highly unpleasant mental suffering or anguish from socially unacceptable conduct, which entail such intense, enduring and nontrivial emotional distress that no reasonable person in a civilized society should be expected to endure it. (Schild v. Rubin, supra, at pp. 762-763; see BAJI No. 12.72 [emotional distress defined]; cf. People v. Ewing (1999) 76 Cal.App.4th 199, 210 [meaning of phrase "substantial emotional distress" in Pen. Code, § 646.9, subd. (e)].) In Schild v. Rubin, supra, 232 Cal.App.3d 755, the court of appeal concluded "the Schilds' basketball playing was not so outrageous, extreme, intense or enduring as to come within the scope of injunctive relief for willful harassment pursuant to section 527.6." (Id. at p. 763.)
3. Proving Emotional Distress
Proving substantial emotional distress was addressed by the court in Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105 (Ensworth). In Ensworth, the person subject to the restraining order contended the evidence did not establish that her former psychologist suffered any actual emotional trauma and, therefore, it was error to grant the restraining order. (Id. at p. 1109.) The appellate court concluded that direct testimony by the psychologist about the emotional distress she suffered was not required and that circumstantial evidence from which emotional distress could reasonably be inferred might constitute substantial evidence. (Id. at p. 1110.) The appellate court also stated the trial court was allowed to draw inferences based on the demeanor of the witnesses and their manner of testifying. (Ibid.)
In Ensworth, supra, 224 Cal.App.3d 1105, the appellate court concluded the record contained sufficient evidence to allow the trial court to find the psychologist suffered substantial emotional distress. (Id. at pp. 1110-1111.) The evidence showed that the restrained party had followed the psychologist, "circled around her office building, kept her house under surveillance, ma[d]e numerous phone calls and sent threatening letters." (Id. at p. 1112.) The court went so far as to "find, as a matter of law, that it is reasonably probable that such harassment would cause anyone emotional distress." (Ibid.)
4. Evidence Relating to Hall
In her testimony at the May 11, 2015, hearing, Hall testified about her feelings—that is, her emotional state. Hall stated, "I feel like I'm being stalked every time I leave or return to my property." She also described her feelings in combination with the feelings of other residents in the neighborhood. We regard this testimony as accurately describing her personal feelings, and need not go so far as to consider whether there was a proper foundation for her to testify as to the feelings of others whose homes are located on the roadway. Hall described Sohn's actions relating to the easement dispute as being so out of character with the neighborhood's history "that we're all afraid of him.... We're all older people that want to just be happy in our neighborhood and not be afraid to go on the road for fear of him." We conclude this testimony, considered in light of the course of harassing conduct, provided a sufficient evidentiary foundation for the trial court to find that Hall actually suffered substantial emotional distress.
5. Evidence Relating to Minniear
Minniear testified during cross-examination that she "was astounded" when her boot was stuck under the wheel of Sohn's scooter, which explained why she did not ask him to get off her foot. Minniear described her reaction by stating, "I was taken - I was speechless, to be honest with you. And I was afraid at that point because I didn't know what was going to happen next." Minniear did not present additional testimony directly describing the feelings Sohn's conduct caused her to experience, but after her foot was freed from the scooter, she testified that she looked and Sohn and said, "Dan, I just had it with this." Her comment provides a basis for inferring the cumulative impact of Sohn's behavior on her mental state had become substantial.
We conclude Minniear's testimony about her feelings and the testimony presented at the May 11, 2015, hearing about Sohn's behavior provides an adequate basis for the trial court to find Minniear suffered substantial emotional distress. The trial court expressly or implicitly found Sohn repeatedly charged Minniear with the scooter and eventually ran into her foot. These assaults culminated in a battery, a course of conduct from which the court reasonably could infer that Minniear actually experienced substantial emotional distress. III. SCOPE OF THE RESTRAINING ORDER
A. Provisions Addressing Trail Cameras
The May 19, 2015, written restraining order directed Sohn to keep his cameras 50 feet within the fence line, not the center of the easement. The amended restraining order filed October 14, 2015, retained the requirement that cameras be kept 50 feet within the fence line.
The distinction between the fence line and the center line of the easement had a practical impact because of the easement's width and the range of the cameras' sensors that trigger it to take pictures. Testimony at the May 11, 2015, hearing gave the distance between Sohn's fence and the fence across the roadway at 60 feet. Sohn testified that the type of camera he used was triggered by a combination of heat differential and motion within 50 to 65 feet.
The trial court appears to have chosen the distance of 50 feet after balancing the privacy interests of neighbors using the easement or engaging in activity inside their fence lines against Sohn's interest in protecting his property. Cameras placed 50 feet from Sohn's fence line would be within range of activity at the fence, but activity occurring at the center of the easement (an additional 30 feet from Sohn's fence line) and beyond would not be photographed. The court stated that it was trying to avoid people taking pictures of each other to make each other miserable, something the court characterized as happening "all the time in these cases." The court noted that cameras located at a property line end up taking pictures of the neighbors' activity and not of people trying to get onto the property. As to the placement directed by the restraining order, the court stated cameras posted there would take pictures of anyone crossing his property and, in comparison, cameras put at the fence line would not take pictures of anyone trespassing, but would take pictures of people driving or walking by Sohn's property.
B. Sohn's Claim of Error
Sohn contends there was no basis for requiring him to remove the trail cameras he had mounted on his property. First, he contends there was no claim in Minniear's request for restraining orders that his trail cameras were the reason for the request. Second, he notes the trial court acknowledged his right to put cameras up on his property. Minniear contends the trial court properly found Sohn's cameras to be harassment and did not abuse its discretion in ordering him to move the cameras back from his fence.
C. Analysis of the Claim of Error
1. Procedural Due Process
Sohn has not explicitly argued the trial court's restrictions on his cameras violated his right to procedural due process or any other specific legal principle. However, it is easily inferred that Sohn's argument is related to his right to adequate notice. Consequently, we start by observing the basic principles of procedural due process entitled Sohn to notice of the claims made against him and an opportunity to be heard on those claims. (See U.S. Const., 14th Amend., § 1 [due process clause]; Cal. Const., art. I, § 7, subd. (a) [state due process clause].)
Our next step is to review the record and identify the information provided to Sohn and his attorney about Minniear's allegations of harassment. We focus on Minniear's request for a restraining order and the attachments to that request. Item 7b of Judicial Council form CH-100 asks: "Has the person [to be restrained] harassed you at other times?" Directions in the form state that if there is not enough space on the form, the applicant's complete answer should be put on a separate sheet of paper with "Attachment 7b—Previous Harassment" as its title. Here, Minniear's Attachment 7b included the statement: "We have cameras that are directed at our driveway that record our comings and goings." Later, the attachment mentioned the cameras again, stating: "He is constantly checking the cameras to make sure they are pointed just right at us and our neighbors."
Item 7a(3) of Judicial Council form CH-100 asks, "How did the person [to be restrained] harass you?" If the form does not provide enough space for the answer, the applicant is directed put the complete answer on an attachment.
We conclude the attachment's references to the cameras were sufficient to place Sohn on notice that his use and positioning of cameras was part of the harassment alleged by Minniear. Furthermore, Sohn was given an opportunity to file a written response to Minniear's request and did so, using mandatory Judicial Council form CH-120. In accordance with section 527.6, subdivisions (f) and (g), a hearing was held on Minniear's request for a restraining order. Based on these facts, we conclude the requirements of procedural due process were satisfied in this case.
2. Additional Procedural Requirements
Sohn's argument that Minniear's request for a restraining order contained no claim that his trail cameras were the reason for her request is not supported by citations to any statutory or case law authority explicitly requiring a claim or statement of "the reason" for the request. Moreover, a reasonable interpretation of the Judicial Council form CH-100, "Request for Civil Harassment Restraining Orders," and any attachments to the form is the reason for the request is the harassment described in the form and attachments. Thus, we conclude Sohn has not established that a procedural requirement involving the reasons for the requested orders was violated in this case.
3. Cameras Can Be Seriously Annoying
Sohn's reply brief contends the evidence is insufficient to establish the cameras were placed in a manner designed to alarm, annoy or harass Minniear and Hall. Sohn also contends there is no evidence from which to infer substantial emotional distress was caused by the cameras.
We conclude that the trial court did not err when it found that Sohn's use of the cameras to take pictures of Minniear and Hall was a type of harassment. In Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, the appellate court stated substantial evidence supported the finding of harassment under the Elder Abuse Act (Welf. and Inst. Code, § 15600 et seq.) and listed the defendant's use of cameras as part of the evidence of harassing behavior. (Bookout v. Nielsen, supra, at p. 1141.) Thus, case law recognizes that repeated picture taking can constitute part of a course of conduct that seriously annoys the person at whom it was directed. (§ 527.6, subd. (b)(3) [harassment includes a course of conduct directed at a specific person that seriously annoys the person].)
Furthermore, the testimony presented in this case provided a sufficient basis for the trial court to reasonably infer that Sohn's use of cameras was seriously annoying to Minniear and Hall. For instance, Hall testified: "Every time we turn around, there's more cameras." Hall stated she felt like she was "being followed, tracked." Hall also stated that many of their friends would not come and see them anymore because they feel creeped out by the cameras. Part of Hall's rationale for feeling tracked was that "nobody has ever been robbed in our neighborhood in 20 some odd years we've been there" and the lack of trespassing. The trial court, experienced in cases involving neighbors taking pictures of each other, had an adequate evidentiary basis for concluding (1) Sohn's use of cameras was part of a course of conduct directed at Minniear and Hall and (2) that course of conduct seriously annoyed or harassed them without serving a legitimate purpose. (§ 527.6, subd. (b)(3).)
Sohn's argument that his use of cameras did not cause substantial emotional distress misconstrues that statutory requirement. Section 527.6 does not require a separate examination of each specific type of annoying or harassing conduct that is part of the course of conduct to determine whether that specific type of conduct is a separate cause of substantial emotional distress. The statute does not permit defendants to engage in a variety of conduct that, in total, is harassing and annoying and escape being restrained simply because each type of conduct, standing alone, is not sufficient to cause substantial emotional distress. The specific statutory provision in question states: "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." (§ 527.6, subd. (b)(3).) This text, which uses a definitive article ("the") before "course of conduct" plainly requires courts to evaluate the conduct as a whole and does not authorize a piecemeal analysis of that conduct when determining the existence of substantial emotional distress. (See Hudec v. Superior Court (2015) 60 Cal.4th 815, 826 [when used as a definite article, "the" has a specifying or particularizing function].) Therefore, we reject Sohn's argument that his use of cameras did not cause substantial emotional distress.
In summary, we conclude the restraining order's provisions restricting the placement of Sohn's cameras did not constitute an abuse of discretion. Sohn's use of cameras as a means of harassment was raised in Minniear's request for a restraining order. The findings for fact underlying the restriction on camera placement were supported by substantial evidence.
DISPOSITION
The restraining order is affirmed. Respondent shall recover her costs on appeal.
/s/_________
FRANSON, J. WE CONCUR: /s/_________
GOMES, ACTING P.J. /s/_________
MEEHAN, J.