Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from an order of the Superior Court of Orange County, Super. Ct. Nos. 07WL06139, 07WL06140. Steven D. Bromberg, Judge. Affirmed.
Law Offices of Alan Goldberg, Alan M. Goldberg; and Law Offices of Randy Kravis, Randy Kravis, for Defendants and Appellants Suzanne Kawahara and Dean Kawahara.
No appearance for Plaintiff and Respondent.
OPINION
Before Sills, P.J., Rylaarsdam, J., and Ikola, J.
Pursuant to section 527.6 of the Code of Civil Procedure, the court enjoined defendants Suzanne Kawahara and her husband, Dean Kawahara from harassing plaintiff, Jacque Pepper, and her family, for a period of three years.
The Kawaharas both appealed the court’s order granting the injunction pursuant to section 527.6. Their cases, 07WL016139 (Dean Kawahara) and 07WL06140 (Suzanne Kawahara) have been consolidated for the purpose of the instant appeal.
The order provided that the Kawaharas were to stay five feet away from the Peppers while inside their property; 25 feet away while off their property and on the street of Ross Circle; and 25 yards away when off Ross Circle. Dean Kawahara’s order mirrored Suzanne’s except for the section relating to guns. Dean’s order permitted him to own and possess firearms, as long as they were used for the purpose of hunting, and were stored off of his property, person, vehicle, or place of employment.
The Kawaharas appeal the order, asserting: (1) the order is not supported by substantial evidence and the court abused its discretion in so issuing it. (2) The section of the order which places a restriction on Dean’s ownership of guns, should be stricken on the basis it is not supported by substantial evidence, and the restriction is overbroad; (3) the order should not have been granted due to laches, and the doctrine of “unclean hands,” and, (4) the court abused its discretion by admitting or excluding certain evidence during the trial.
We disagree with all their arguments and, finding no grounds for reversal, we affirm the order.
I
FACTUAL AND PROCEDURAL BACKGROUND
After living side-by-side for over 11 years as next-door-neighbors in a Westminster, California cul de sac, the relationship between Jacque and Zino Pepper (Jacque and Zino) and Suzanne and Dean Kawahara (Suzanne and Dean) reached its nadir on the evening of June 6, 2007, when the parties viciously fought one another in front of the Kawahara residence.
For whatever reasons, the parties could not get along as neighbors. Numerous disputes had erupted to the point where on various occasions, Zino had called Dean Kawahara a “fucking fat Jap,” and Dean called Zino a “Nigger.” However, it was Dean’s alleged speeding in the cul de sac that finally brought their hatred of one another to a head. The resulting altercation sent 60 year-old-Suzanne, and 38 year-old Jacque to the hospital for treatment, and caused the trial court to remark: “I think you folks do hate each other. I’ve never seen anything like this. I mean, I’ve been a lawyer for 37 years. Never seen anything like this before.”
Events Prior to June 7, 2007
Prior to the June 2007 fight, the Pepper and Kawahara households had clashed over numerous property-related issues. According to Jacque, there was a running dispute between the two homes regarding the Peppers’ use of their barbeque because it caused smoke to enter onto the Kawaharas’ property. The Kawaharas’ lawyer sent the Peppers a letter telling them they shouldn’t use the barbeque. Zino Pepper said they had never used the built-in barbeque that he built, because he wanted all the complaints resolved before it was ever fired up.
Meanwhile, Jacque admitted she had called the City of Westminster Code Enforcement Division to complain about the Kawaharas’ dog which frequently got itself stuck in the fence, particularly when the Kawaharas were out of town. There were also prior incidents where Zino had called Dean a “fat fucking Jap,” and Dean called Zino a “Nigger,” and yet even other occasions, where the police had been called to remove the Peppers from the Kawaharas’ property after they refused to leave. Zino also told the court there were long-standing issues related to a fence built on the property line.
The court made a finding that the parties had made racial epithets to one another. The parties stipulated that a police officer had told the Peppers not to go on to the Karahawa property, and that to do so would be a trespass.
Suzanne told the court Zino had elbowed her in the back on a prior occasion when the Peppers had refused to leave her property; called her six-year old mentally and physically challenged granddaughter, an “f’in retard;” and ordered his Rottweiler to bite her.
The Fight on the Evening of June 6, 2007
Sometime during the evening of June 6, 2007, Shelby Pepper came inside from playing in the street to tell her mother that her brother, Zino, Jr., was almost struck by Dean’s car as it was pulling into the cul de sac. Jacque said when she asked her 14 year-old neighbor, Jaylin McCandless about the event, Jaylin said, “He didn’t even slow down.” Jacque then told Zino, I’m going to ask Dean to slow down, to which Zino replied, “You talk to him. I’m not saying anything.” Jacque went next door to the Kawahara residence. The front door was open, but the screen door was locked. When she knocked on the screen door, Dean came to the door and “just looked at [her.]” She said, “You know, Dean, I know you don’t like us, but when the kids are in the street, could you please slow down?”
Jaylin McCandless testified that she and her brother Andrew, and the Pepper children were playing in the middle of the street in front of the Kawaharas’ house when Dean drove up. She said Dean was driving at a normal rate of speed, or the way that he usually drove. According to Jaylin, after Dean arrived home, all of the children remained playing in the street, except for Shelby who had gone inside to change her shirt. After Shelby went inside, Jacque and Zino came out of their house and went over to the the Kawaharas’ house. Jaylin observed the screen door fly open and then she heard Mrs. Kawahara yell “Get the hell off my property.” The next thing she recalled was someone “punching” so she ran home to get her mother. She did not see who threw the first punch.
Immediately, Suzanne came out yelling, “Get the ‘F’ off my property. You’re trespassing.” Suzanne pushed the screen door against Jacque, pinning Jacque between the wall and the screen door. Suzanne then pushed her entire body against Jacque, pinning her even more tightly. At that point, Zino came over from the Pepper residence to assist his wife. According to Zino, Jacque was pinned by Suzanne between the screen door and the house, and he had to pull the screen door from Jacque’s body to free her.
Jacque said Dean started to attack Zino. During the fray, Dean hit Jacque once with his right fist, and when he tried to hit her again, he missed. Suzanne pushed Jacque, shoved her body into Jacque’s chest, and then pulled Jacque’s hair. As a result of the fight, Jacque said she suffered a swollen black eye, a broken nose, a broken right ring finger, and suffered cuts and scrapes on her hand, as well as bruises on both of her arms. Her medical expenses totaled about $5,000.
Jacque admitted pulling Suzanne’s necklace off in order to prevent Suzanne from biting Zino. She also admitted grabbing Suzanne’s hair. Jacque said Zino was barefoot during the fight, and was not wearing any boots. Jacque said Dean was wearing boots during the fight, and that any boot prints observed on Suzanne’s body must have resulted from Dean kicking his wife by accident. Moreover, Jacque said Zino did not hit Suzanne – he was too busy holding on to Dean, to prevent Dean from hitting her.
After the fight, Jacque said her family went on a vacation just to get away because they didn’t feel comfortable living next door to the Kawaharas. She told the court she was afraid the Kawaharas would continue their harassment of her family and herself. She was afraid she would never have the opportunity to use her barbeque because she heard “they [the Kawaharas] have guns, and we’re afraid of what will happen if we use it [the barbeque.]” Zino said he was afraid that without a restraining order, the Kawaharas would endanger his family because of the June 6, 2007, fight, and because of the prior disputes regarding the barbeque and the fence.
After the June 2007 fight, the Kawaharas obtained restraining orders against Zino and Jacque on June 11, 2007. According to Zino, since the orders have been issued, there have no other incidents of violence, and none of the parties have gone on to each other’s property.
The Kawaharas’ version of the events differed substantially from the Peppers’ version. Dean testified that as he was approaching his home after driving at a normal rate of speed, he saw Shelby run into her house. Shortly after he entered his house, he heard screaming outside. He heard Jacque telling his wife from outside the closed screen door, “You don’t like us. I know it.”
He then told Jacque to “Get the hell out of here.” His wife also said, “Get out of here. You’ve been warned.” When Jacque refused to leave, Suzanne tried to lock the screen door. Zino, who was with Jacque, pulled on the screen door, and tried to tear it off. The door then hit Jacque. Zino then hit Suzanne by throwing a punch through the screen door. At that point, Dean went flying out of the house and hit Zino. Zino grabbed Dean and held him in a bear hug or headlock, while Jacque tried to scratch Dean’s eyes.
Zino kicked Suzanne while Dean was in the headlock, because Suzanne had punched Jacque while trying to get her away from Dean. Dean’s face was bloodied from being scratched by Jacque, and he could not see well because he had lost his contacts. Dean said he never touched Jacque Pepper.
Suzanne testified Jacque and Zino came on to her porch while Jacque was yelling, “You know, we don’t like you.” Jacque started yelling that Dean tried to run over her son. Suzanne told Jacque to get off of her front porch. She screamed to call the police. While Suzanne was holding the screen door shut, Zino started pulling on it. When Suzanne let go of the door, it hit Jacque in the face. After Jacque was hit with the door, Zino punched Suzanne through the screen door.
Dean hit Zino. Then, Zino held down Dean’s arms while Jacque was scratching and gouging at Dean’s eyes. Suzanne then punched Jacque in the face twice. Suzanne said she was trying to protect Dean who she felt was particularly vulnerable, because he had just had a colostomy bag reversed. Zino then kicked Suzanne in the chest twice. Jacque grabbed Suzanne’s necklace, and when Suzanne tried to grab Jacque around the neck, Jacque threw Suzanne on the grass and jumped on her chest. Suzanne suffered broken ribs, and severely lacerated arms. Her medical bills totaled around $70,000.
II
DISCUSSION
SUBSTANTIAL EVIDENCE ESTABLISHED THE COURT’S ORDER
Standard of Review
A trial court’s decision to grant a permanent injunction rests within its sound discretion, and will not be disturbed without a showing of a clear abuse of discretion. (Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912.) In determining whether the trial court abused its discretion when disputed factual issues exist, we review the trial court’s findings under the substantial evidence standard.
“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.)
Moreover, “When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination. . . .” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) We apply these standards to the elements of section 527.6, and the evidence.
Code of Civil Procedure Section 527.6Section 527.6 permits an individual to obtain an injunction against harassment. It was designed to provide expedited injunctive relief to victims of “harassment.” (Schraer v. Berkeley Property Owners’ Assn. (1989) 207 Cal.App.3d 719, 729-730.) Three types of “harassment” are defined within the statute: (1) ‘“[u]nlawful violence’”; (2) ‘“a [c]redible 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).) The person who “has suffered harassment,” as defined in the statute, has standing to seek the injunction. (§527.6, subd. (a).)
“Unlawful violence” is further defined in the statute as “any assault or battery, or stalking as prohibited in Section 646.9 of the Penal Code.” (§ 527.6, subd. (1).) A “[c]redible threat of violence” is defined in the statute as “a knowing and willful statement or course of conduct that would place a reasonable person in for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose.” (§ 527.6, subd. (2).) “Course of conduct,” is defined as “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. (3).)
And, 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.” (§ 527.6, subd. (b).) If the court finds by “clear and convincing evidence that unlawful harassment exists, an injunction shall issue.” (§527.6, subd. (d).)
The Order was Supported by Substantial Evidence
When issuing its orders as to Suzanne and Dean, the court found that there was a credible threat of violence and unlawful violence, but it did not find there was a knowing and willful course and pattern of harassment. While the court was “very reluctant” to grant the restraining orders, it did so, because, “. . . I am just so concerned that if I don’t, there’s going to be problems. There’s going to be real, real problems down the road. And I’m going to read about you folks in the paper.”
The evidence before the court clearly established both a credible threat of violence, and unlawful violence. The June 6, 2007, altercation was the culmination of a series of awful acts over the years perpetrated against each other by both sides, which fortunately, left none of the participants either more seriously injured or even killed. The record was rife with evidence supporting the court’s decision.
Thus, we have no difficulty concluding that the acts committed on June 6, 2007, constitute substantial evidence supporting the court’s finding by clear and convincing evidence that there was a credible threat of violence and unlawful violence. While not entirely blameless for the acts resulting in the debacle of June 6, 2007, Jacque Pepper and her family deserved the protection of the section 527.6 injunction.
The Limitation on Dean’s Gun Ownership
Dean Kawahara, an avid hunter who according to his wife, “hunts for months at a time . . . and [who] travels all over the United States hunting,” complains about that section of the order which places restrictions on his gun ownership.
Once section 527.6 relief is granted, the person subject to the protective order “shall not own, possess, purchase, receive, or attempt to purchase or receive a firearm while the protective order is in effect.” (§ 527.6, subd. (k)(1).) Furthermore, the person shall “relinquish any firearms he or she owns or possesses pursuant to Section 527.9.” (§ 527.6, subd. (k)(2).)
After reviewing Dean’s list of guns, and noting that he possessed some “pretty formidable weapons,” and after further considering the possibility that Dean could get so upset one time that he might try to open up his gun safe, the court weighed Dean’s love of hunting against the Peppers’ fear that he might get so upset one night that “he’s going to come out and shoot somebody.”
The court thus issued a modified restraint regarding Dean’s weapons. In so modifying the language of the temporary order, which was an outright prohibition of Dean’s possession and use of guns, the court in the final order permitted the following: “Defendant can own, possess, firearms, however they must be stored off Defendant’s property and cannot be on Defendant’s property, person, vehicle, or place of employment.”
Recognizing Dean’s long-standing passion of hunting, and the fact that he went hunting “every year,” the court said when imposing the order, “Now, does that mean that Mr. Kawahara’s not going to be able to hunt? No. I’m not going to take that away from him. . . . If you want to go hunting, the order will state that you can go hunting . . . If you’re able to get your other guns back, I’ll let you own them with the same restrictions.” Under any standard of review, we conclude the court’s order restricting Dean’s use and storage of his weapons was supported by substantial evidence.
We also disagree with Dean’s claim that the restriction so imposed within the order was overbroad. While reviewing the trial court’s findings pursuant to section 527.6, we review that finding under the doctrine of substantial evidence. However, we review de novo questions of law, which would include Dean’s contention that the restriction on his use of weapons is overbroad. (See People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2004) 116 Cal.App.4th 1253, 1267 [“In any event, in exercising de novo review of the language of the permanent injunction entered by the trial court, we are not persuaded by Reynold’s contention that on its face the injunction is impermissibly vague, incomplete, indeterminate, imprecise or overbroad.”].)
Dean’s contention that the order as modified was overbroad is without merit. The court tailored the order to reflect the needs and concerns of both sides. Moreover, our review of the facts leads us to conclude the restriction issued in the order regarding Dean’s use and storage of his weapons, was a much less onerous restriction than might normally be expected. Dean should hardly be heard to complain.
The Court’s Order is not Barred by Laches
‘“Laches is an equitable defense. It consists of a failure on the part of a plaintiff to assert his rights in a timely fashion accompanied by a period of delay with consequent results prejudicial to the defendant.’ [Citation.] ‘Delay is not a bar unless it works to the disadvantage or prejudice of other parties.’ [Citation.]” (Cedars-Sinai Medical Center v. Shewry (2006) 137 Cal.App.4th 964, 985.)
Here, the Kawaharas did not raise this defense below in the trial court. However, even if the Kawaharas had raised this defense below, we conclude they have not met their burden. Jacque Pepper testified she first began preparing the restraining orders against the Kawaharas in August of 2007. The orders were finally completed in September after she received assistance from her attorney, and the papers were filed in the court in September 2007. There was no unreasonable delay. The argument fails.
The Court’s Order is not barred by the Doctrine of Unclean Hands
The doctrine of unclean hands arises from the maxim, “He who comes into Equity must come with clean hands.” (Blain v. Doctor’s Co. (1990) 222 Cal.App.3d 1048, 1059.) The defense is available in legal as well as equitable actions. The misconduct that brings the clean hands doctrine into play must relate directly to the cause at issue. (Fiberboard Paper Products Corp. v. East Bay Union of Machinists (1964) 227 Cal.App.2d 675, 728-729.) And, whether the doctrine applies is a question of fact. (CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 639.) “Not every wrongful act constitutes unclean hands. But, the misconduct need not be crime or an actionable tort. Any conduct that violates conscience, or good faith, or other equitable standards of conduct is sufficient cause to invoke the doctrine. [Citations.]” (Kendall-Jackson Winery, Ltd., v. Superior Court (1999) 76 Cal.App.4th 970, 978-979.)
The Kawaharas’ claim the Peppers’ exhibited “unclean hands” by their acts of September 6, 2007, or as the Kawaharas’ contend in their opening brief, “It was the behavior of the Peppers’ which led to the rumble.” The Kawaharas’ claim the Peppers’ intended to start the fight; the Peppers’ trespassed on to the Kawaharas’ property to effectuate the fight; and the Peppers’ refused to leave the Kawaharas’ property when requested to do so.
As we have already concluded, there was substantial evidence supporting the court’s finding by clear and convincing evidence that an injunction under 527.6 was justified. But it was the court’s advice to the Kawaharas regarding how they should have handled things differently, that is the most compelling reason to reject their argument.
The court told the Kawaharas that even if someone entered on to their property after having been told by the police not do so, and even if the so-called trespasser continued to bang on the front door, the most appropriate response would have been to call the police, and not to go outside and “pop one” to the other person, and then for good measure, give the person an extra “push” to effectuate the removal. Thus, the argument fails.
The Court did not Commit Evidentiary Error
The Kawaharas’ claim the court committed prejudicial, evidentiary error by refusing to either allow into evidence, or excluding from evidence, the following testimony. They complain the court allowed Jacque Pepper to testify over objection, that she was afraid the Kawaharas would “continue” their harassment. The Kawaharas’ contend the use of the word “continue” was argumentative, and also assumed facts not in evidence. They also complain the court wrongfully deprived them of the opportunity to establish motive by sustaining an objection to a question asked of Jacque Pepper regarding whether her husband ever told her that he hated the Kawaharas.
The Kawaharas’ further complain the court wrongfully deprived them of the opportunity to expose Jacque’s “inconsistencies and lies” on cross-examination by refusing to allow her to testify, on the basis it was “asked and answered,” to her version of the events. They additionally complain for the same reason that the court restricted Zino’s testimony, when it refused to allow him to answer a question regarding who answered the door at the Kawaharas’ home, and also for refusing to allow him to respond to a question regarding whether he knew he was “unwelcome” on the Karahawas’ property.
The Kawaharas’ additionally complain the court improperly prohibited them from establishing motive, or from establishing that the Peppers’ planned the confrontation, by refusing to allow Dean to respond to a question regarding whether Shelby Pepper sometimes acted as an “informant” for her parents. And lastly, they complain the court refused to allow Dean Kawahara to respond to a question regarding whether a claim made by the Peppers’ that the Kawaharas’ threw debris over to the Peppers’ side of the property when building a new fence, was a “fabrication” made by Zino Pepper. The Kawaharas’ claim of evidentiary error is meritless. “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or misleading the jury.” (Evid. Code, § 352.) A trial court’s determination under Evidence Code section 352 will not be disturbed on appeal absent a clear showing of abuse of discretion. (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1610.) Here, there was no abuse of discretion. The court had already heard most, if not all of the information that would have been provided by the additional questions, and the evidence sought was cumulative in nature. The argument fails.
III
DISPOSITION
The order entered under section 527.6 is affirmed. No costs are awarded.
Jaylin’s mother, Jane Yruretagoyena, testified that she heard Suzanne yell repeatedly to Zino and Jacque “Get off my property.” By the time Mrs. Yruretagoyena reached the Kawahara residence, she observed Jacque straddled over Suzanne’s body. Jacque was sitting on Suzanne’s chest, while banging Suzanne’s head into the ground. Jacque told Mrs. Yruretagoyena “Jane, look what her F’in husband did to my face.” Mrs. Yruretagoyena said she had no personal knowledge of any aggressive behavior from Jacque and Zino Pepper towards others, and she had never observed any aggressive behavior by Suzanne and Dean Kawahara towards others.