Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. (Super. Ct. No. RIC456328), (Super. Ct. No. RIC456319) James A. Edwards, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Richard F. Lunetta, in propria persona, for defendant and appellant.
No appearance for plaintiffs and respondents.
OPINION
HOLLENHORST J.
I. INTRODUCTION
Defendant and appellant Richard F. Lunetta appeals from civil harassment restraining orders entered against him in two cases which have been consolidated on appeal. Lunetta contends the trial court erred in (1) denying Lunetta the right to cross-examine witnesses (2) proceeding on plaintiffs’ applications for restraining orders after ruling that the identical allegations of 30 or so related applications failed to give Lunetta fair and adequate notice of the claims against him; (3) hearing and deciding, over Lunetta’s objection, supplemental claims and allegations made in plaintiffs’ hearing briefs that had not been served on Lunetta; and (4) enjoining Lunetta from attending meetings of a homeowners’ association because the order is aimed at preventing disruption of the meetings rather than at protecting an individual from personal harassment.
II. FACTS AND PROCEDURAL BACKGROUND
Lunetta is a resident of the Village Grove Mobile Home Estates in Corona, a common-interest development of more than 250 mobile home lots with a jointly owned, common-interest green belt and recreational buildings and facilities. Lot owners pay quarterly assessments to the Village Grove Mobile Homeowners Association (VGMA) to cover the expenses of operating and maintaining the common-area improvements. The VGMA is governed by a five-person board of directors; plaintiffs John Graham and Ruth Petroff are members of the VMGA board of directors.
Respondents did not file a brief in this matter. When a respondent has failed to file a brief on appeal, this court “will decide the appeal on the record, the opening brief, and any oral argument by the appellant.” (Cal. Rules of Ct., rule 8.220(a)(2).) The appellant must affirmatively demonstrate prejudicial error. (County of Lake v. Palla (2001) 94 Cal.App.4th 418, 420.)
Each of the five members of the VGMA board of directors filed for and obtained a temporary harassment restraining order (TRO) against Lunetta on September 1, 2006. In exhibit C, the Petr off and Graham petitions described the incidents of harassment, allegedly committed by Lunetta, on which the requests for injunction were based. Exhibit C stated:
The petitions also sought injunctions against Bonnie Lunetta, Richard Lunetta’s wife. However, the trial court denied the petitions as to Bonnie because she was never personally served with the petitions.
The petition brought in the name of Ruth Petroff listed her husband Roy Petroff as an additional person who needed protection.
The petition brought in the name of John Graham listed his wife Loretta as an additional person who needed protection.
“Threatened person with ball peen hammer, with several witnesses.
“Threatened an 86[-]year[-]old woman saying[,] ‘I’ll get you[.]’
“Pounds on residents[’] home including 86[-]year[-]old woman’s at all hours of the night and early morning.
“Case pending in District Attorney[’s] office for trying to hit a man with his car[.]
“Leaves threatening messages (several at a time) on office and home answering machines.
“Follows us and harasses us, taking pictures, saying[,] ‘got you[.]’
“Walks the community at night shining high beam spotlights in windows, peering in windows, at houses and people with binoculars.
“Chases cars and people down street and walkways with video camera, videotaping everyone and their cars, even people who do not reside in community.
“Puts threatening letters in our mail tubes on our private property. [¶] . . . [¶]
“Someone in the community has stated that he carries a handgun.
“Several of us residents in the community are on medication for stress and a resident in the community has orders from a psychologist to avoid all contact with these people due to stress and heart palpitations[;] however[,] they continue to put threatening letters about this resident in private mail tube.
“Stalks the entire community at all hours of the night.
“Stalks the common areas of community at all hours with video camera, harassing and threatening.”
After obtaining the TRO’s, the board members purportedly canvassed the development door to door, seeking people to sign petitions for harassment restraining orders. About 30 people signed such petitions, and the board filed the petitions in the names of the signatories. Each of the petitions was identical, and each listed the allegations of harassment in terms identical to those of the board members’ petitions.
The trial court dismissed the 30 identical petitions on September 22, 2006, on the ground that the petitions did not give fair and adequate notice to Lunetta of the claims being made against him and did not state a claim of personal harassment as to each individual petitioner.
Trial was held on the petitions of the five board members on October 12, 2006. Following the hearing, the trial court granted the petitions of Petroff and Graham but denied the petitions of the other three board members.
Other facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
A. Denial of Opportunity to Cross-Examine Witnesses
Lunetta contends that trial court erred in denying him the opportunity to cross-examine witnesses at the hearing on the petitions.
1. Background
Trial was held on the petitions of the five board members on October 12, 2006. At the hearing, the trial court called Roy Petroff and questioned him about his allegations. The court then questioned Lunetta about the allegations of the Petroffs The court told Roy Petroff to take his seat and called John Graham forward. Lunetta asked whether he would be allowed to cross-examine the witnesses. The court responded, “If you have some questions, we can let you do that. But let me get — let me start with Mr. Graham here.”
The court questioned John Graham about the particulars of his application. The court then questioned Lunetta about the allegations of the Grahams. When the court finished its inquiries of Roy Petroff and John Graham, Lunetta reminded the court he wished to cross-examine them. The court responded, “If you have a question, let me know what it is.” Lunetta did not pose any questions.
Lunetta states on appeal that he understood the court’s response to mean that Lunetta would be permitted an opportunity to cross-examine the witnesses after the court had heard from all the witnesses. The court then called the three remaining board member petitioners and questioned them about their claims. Lunetta reminded the court he had not been permitted an opportunity to cross-examine the witnesses. The court stated Lunetta’s concern was noted, but then concluded the hearing and took the cases under submission. The trial court granted the petitions of Petroff and Graham, but denied the petitions of the three other VMGA board members.
Lunetta moved for new trial on the grounds, among others, that the trial court had denied him the right to cross-examine witnesses, decided issues raised in hearing briefs that had not been served on Lunetta, and that the order was over broad insofar as it applied to board meetings. The trial court filed a notice of ruling on the motions for new trial. The court stated it had reviewed the court reporter’s notes and had determined it had not prevented Lunetta from cross-examining witnesses. The court denied the motions for new trial.
2. Analysis
In Schraer v. Berkeley Property Owners’ Assn. (1989) 207 Cal.App.3d 719, the court stated, “[T]he procedure for issuance of an injunction prohibiting harassment is self-contained. There is no full trial on the merits to follow the issuance of the injunction after the hearing provided by Code of Civil Procedure section 527.6, subdivision (d). That hearing therefore provides the only forum the defendant in a harassment proceeding will have to present his or her case. To limit a defendant’s right to present evidence and cross-examine as respondents would have us do would run the real risk of denying such a defendant’s due process rights, and would open the entire harassment procedure to the possibility of successful constitutional challenge on such grounds.” (Id. at pp. 732-733.) We conclude Lunetta had a right to cross-examine witnesses.
Here, the trial court explicitly told Lunetta he could submit questions for the witnesses through the trial court. However, the record does not indicate that Lunetta ever submitted any such questions or made any attempt to call witnesses on his own behalf. Moreover, although the record on appeal does not contain the relevant portions of the reporter’s transcript, the trial court stated in its notice of ruling on Lunetta’s motion for a new trial that Lunetta had in fact asked questions of another petitioner whose application was denied. We therefore conclude the trial court did not deprive Lunetta of his right to cross-examine witnesses.
We note that although Lunetta appears in propria persona, he is a former member of the State Bar (although no longer entitled to practice law) and is thus not inexperienced in courtroom protocol and procedure.
B. Sufficiency of Allegations of Petitions and Deciding Supplemental Allegations Made in Hearing Briefs.
Lunetta contends the trial court erred in proceeding on plaintiffs’ applications for restraining orders after ruling that the identical allegations of some 30 related applications failed to give Lunetta fair and adequate notice of the claims against him. We consider this contention in conjunction with Lunetta’s contention that the trial court erred in hearing and deciding, over Lunetta’s objections, supplemental claims and allegations made in plaintiffs’ hearing briefs that had not been served on Lunetta because both contentions go to the sufficiency of notice to Lunetta of the allegations made against him.
1. Background
At the hearing on September 22, 2006, the trial court discussed the allegations of the 30 or so petitions brought by non board members. The court noted that the petitions, among other things, alleged Lunetta had threatened a person with a hammer and had tried to hit a man with his car, and “further reading” indicated that person was Roy Petroff The trial court dismissed the petitions of the non board members on the ground that “there’s no specifics that the [c]ourt can look at when I look at a particular petition to say what did either or both of the Lunettas do to that particular petitioner that would warrant the issuance of restraining orders. And by the same token, Mr. and Mrs. Lunetta have no idea what specifically you are claiming as individuals that they did to you that warrants restraining orders so that they can prepare a defense.”
A hearing was set for October 12 on the petitions of the five board members. On September 28, 2006, the Petroffs and Grahams filed hearing briefs in the court but did not serve them on Lunetta. At the October 12 hearing, the trial court allowed Lunetta a brief recess to review the hearing briefs. Lunetta objected that he could not meet the allegations without proper notice, he had not brought witnesses, he had not had the opportunity to collect evidence to respond to the allegations, and he had not brought any such evidence.
The hearing brief of the Petroffs alleged that Lunetta had chased Roy Petroff with a “ball peen” hammer, had pounded on the Petroffs’ golf cart, and had tried to run Roy Petroff over with Lunetta’s car. The Petroffs’ hearing brief further alleged that Lunetta and his wife had shined a spotlight into the Petroffs’ bedroom window, had pounded on their house; stalked them on morning walks; and followed them with a video camera. After Lunetta objected at the hearing on October 12 that he had not been served with the hearing brief, the trial court stated, “I think in Mr. Petroff’s case, Mr. Lunetta, you certainly have been made aware of the allegation that you attempted to hit him with a car and . . . attempted to assault him with a hammer. I don’t see why we can’t proceed at least in his case today.”
The hearing brief of the Grahams alleged that Lunetta had made threatening telephone calls, pounded on the Grahams’ house walls, shined a spotlight into the Grahams’ windows; looked into the Grahams’ house with binoculars; and put threatening letters into the Grahams’ mail receptacle.
Throughout the hearing, Lunetta objected that he had not had an opportunity to meet the new allegations against him or to procure evidence to contest those allegations.
2. Analysis
The defendant in a civil harassment proceeding is entitled to notice of the allegations against him. Code of Civil Procedure section 527.6, subdivision (g), provides, “Upon the filing of a petition for an injunction under this section, the defendant shall be personally served with a copy of the petition, temporary restraining order, if any, and notice of the hearing of the petition. Service shall be made at least five days before the hearing. The court may for good cause, on motion of the plaintiff or on its own motion, shorten the time for service on the defendant.” In addition, under subdivision (d), the defendant may file a response to the petition “that explains, excuses, justifies, or denies the alleged harassment or may file a cross-complaint under this section.” (Code Civ. Proc., § 527, subd. (d).)
In Kobey v. Morton (1991) 228 Cal.App.3d 1055, 1060, the plaintiff argued that the trial court had lacked jurisdiction to enter a mutual restraining order when the defendant had not filed a cross-complaint against her in a proceeding under Code of Civil Procedure, section 527.6. The court agreed that the trial court had no power “to grant mutual orders absent a pleading and without affording . . . notice and an opportunity to respond to specific charges.” (Kobey v. Morton, supra, at p. 1059.) The same principle applies to the original petition—it must likewise give the defendant “notice and an opportunity to respond to specific charges.”
Here, the trial court found that Lunetta had sufficient notice in the original petitions of the Petroffs’ allegations, repeated in the Petroffs’ hearing brief, that Lunetta had threatened Ray Petroff with a hammer and had attempted to hit him with a car. Those incidents were discussed at the September 22 hearing, even before the hearing briefs were filed. Moreover, those incidents formed the basis for the trial court’s ruling granting the Petroffs’ petition for an injunction; the trial court made clear it would have granted the injunction. Thus, the additional allegations in the Petroffs’ hearing brief that Lunetta and his wife shined a spotlight into the Petroffs’ bedroom window, had pounded on their house; stalked them on morning walks; and followed them with a video camera were merely surplusage, and Lunetta was not prejudiced by those new allegations. We conclude that Lunetta had adequate notice of the Petroffs’ allegations so as to satisfy due process requirements.
We further conclude, however, that the Grahams’ petition was insufficient to give Lunetta notice of the specific allegations against him, and he was not given adequate notice or an opportunity to prepare his defense against the allegations in the Grahams’ hearing brief. The trial court based its issuance of the injunction in favor of the Grahams on its finding that Lunetta had shined a spotlight into the Grahams’ home: “As for the Graham petition, the evidence persuades the court that Mr. Lunetta participated in the incident whereby a bright light was shined through the Graham residence living room window at night. This was not the only time this has occurred. Others have made similar complaints. It goes without saying that such conduct is disruptive and upsetting to the occupants of the affected residences.”
The Grahams’ petition, however, was only one of over 30 containing identical allegations that Lunetta had “walk[ed] [through] the community at night shining high beam spotlight in windows.” The Grahams’ hearing brief more specifically alleged that Lunetta had shined a spotlight into the Grahams’ windows.
We conclude the generic allegation in the Grahams’ petition concerning Lunetta shining a spotlight into windows was insufficient to put Lunetta on notice that the allegation applied specifically to the Grahams. Further, because the hearing brief was not served on Lunetta before the October 12 hearing, he was not provided the opportunity to prepare a defense to the allegation of shining a spotlight into the Grahams’ windows. (Code Civ. Proc., § 527.6, subds. (d) & (g).) For that reason, we conclude the injunction as to the Grahams must be reversed.
D. Applicability of Injunction to Board Meetings
Lunetta contends the trial court erred in enjoining Lunetta from attending meetings of the homeowners’ association because the order is aimed at preventing disruption of the meetings rather than at protecting an individual from personal harassment.
1. Background
In its notice of decision, the trial court stated, “There is an issue as to whether Mr. Lunetta should be prohibited from attending board meetings. The evidence does suggest that his presence at those meetings is disruptive and promotes confrontations between Mr. Lunetta and others in attendance. It is the court’s understanding from the evidence that the only persons legally entitled to attend these meetings are park property owners. The uncontroverted evidence is that Mr. Lunetta’s mother is the owner of the residence in which Mr. Lunetta and his wife reside. It does not appear that Mr. Lunetta has a legal right to attend those meetings. Therefore, the no contact/stay-away orders shall apply to the board meetings.” The restraining orders issued against Lunetta stated, “The no contact/stay-[a]way orders shall apply to the board meetings.”
2. Analysis
Only a person who has suffered harassment may seek a TRO and injunction prohibiting harassment (Code Civ. Proc., § 527.6, subd. (a)), and for purposes of the civil harassment statute, the term “person” is limited to natural persons. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1258 [holding that a corporation could not maintain a cause of action under Code of Civil Procedure section 527.6 against an organization and individuals protesting the corporation’s animal testing activities]; Diamond View Limited v. Herz (1986) 180 Cal.App.3d 612, 618-619 [holding that a limited partnership was not entitled to injunction relief under Code of Civil Procedure section 527.6].)
We therefore conclude the injunction is over broad to the extent it completely prohibits Lunetta from attending meetings of the homeowners association. However, an order that extended to board meetings attended by the protected individuals would be valid and enforceable because such an order would be directed at protecting those specific individuals from harassment. We will therefore remand the matter to the trial court for an appropriate modification of the injunction.
IV. DISPOSITION
The trial court is directed to modify the injunction with respect to the Petroffs consistent with this opinion. As so modified, the injunction with respect to the Petroffs is affirmed. The injunction with respect to the Grahams is reversed.
The parties shall bear their own costs on appeal.
We concur:
RAMIREZ P.J., MCKINSTER J.