Opinion
NOT TO BE PUBLISHED
Appeal from an order and judgment of the Superior Court of Orange County No. 06SL02580, Michael McCartin, Judge.
Law Offices of Arthur J. LaCilento and Arthur J. LaCilento for Defendant and Appellant.
Castle & Monarch and Dale A. Castle for Plaintiff and Respondent.
OPINION
SILLS, P. J.
I
INTRODUCTION
On August 16, 2006, the trial court issued an injunction that prohibited Eric Redler from contacting Celeste Schmidt, her teenage daughter, and her younger son. (Code Civ. Proc., § 527.6.) Redler argues the trial court violated his right to due process of law when it allowed Schmidt, who appeared in propria persona, to read from a prepared statement instead of subjecting herself to direct examination and by not providing him a copy of this statement until the day of trial. He also challenges the sufficiency of the evidence to support the court’s order. We find no merit in either contention.
All further statutory references are to the Code of Civil Procedure unless otherwise stated.
First, “[t]he fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” (Mathews v. Eldridge (1976) 424 U.S. 319, 333 (Mathews), citing Armstrong v. Manzo (1965) 380 U.S. 545, 552.) The trial court’s decision to accept Schmidt’s testimony via her recitation of a written statement did not deprive Redler of the opportunity to cross-examine her, to present evidence on his own behalf, or to participate in any other aspect of a “meaningful” hearing. Second, when considering a challenge to the sufficiency of the evidence, the reviewing court “must resolve all explicit conflicts in the evidence in favor of the respondent and presume in favor of the judgment all reasonable inferences. [Citation.]” (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1632-1633, fn. omitted (Kuhn).) After reviewing the record and applying the appropriate standard of review, we conclude the trial court’s order is based on sufficient evidence of harassment. Consequently, the court’s order and its subsequent judgment are affirmed.
II
FACTS
In August 2004, Redler, then 16 years old, started dating Schmidt’s 14-year-old daughter. During the following two years, Schmidt noticed unwelcome changes in her daughter’s behavior that she associated with Redler’s presence and influence. She discovered that her daughter had experimented with methamphetamine and then began to rebel against her parental authority. As a result, the relationship between Schmidt and Redler grew contentious.
In June 2006, Schmidt petitioned for a temporary restraining order and injunction prohibiting harassment. (§ 527.6, subd. (c).) In a declaration submitted with the petition, Schmidt stated Redler called her two home telephone lines and her cell telephone approximately 20 times during the early morning hours of June 9 and 10 and that he used vulgar language during these telephone calls, in emails he sent to her daughter, and when he talked to her. She said she asked him to stop calling her, but Redler disregarded her request and continued to make unwanted telephone calls. He made unwelcome visits to her home late at night, tapped on her daughter’s window, and used his “fist and feet to punch holes in the walls of his own residence and ours.” Although Schmidt’s daughter ended her relationship with Redler, he insisted they should be together and said he loves Schmidt’s daughter “to death.” Schmidt stated she had tried to talk to Redler’s parents about the situation, but felt these attempts had not been successful, perhaps because Redler is over 18 and an adult.
On June 15, 2006, the court issued an order to show cause and a temporary restraining order barring Redler from any further contact with Schmidt and her children. The court set a hearing date in July. Due to Redler’s requests for continuance, the court reissued the temporary restraining order on July 5 and 12. Redler filed an answer to the petition on July 11, 2006. In his supporting declaration, Redler denied Schmidt’s accusations and stated he had never threatened Schmidt or her daughter. He admitted telephoning Schmidt, but stated he made these calls in May not June 2006. Redler asserted that he and Schmidt’s daughter were in a mutually desired relationship, and that it was really her daughter’s desire to continue this relationship that had caused Schmidt’s emotional distress.
On August 16, the court convened a hearing with both parties and Redler’s attorney present. The court asked Schmidt to explain why she wanted an injunction prohibiting harassment. Schmidt asked the court if she could read a prepared statement and told the court she had made a copy for Redler’s attorney. Redler’s attorney objected on grounds that Schmidt was attempting to introduce inadmissible hearsay. (Evid. Code, § 1200.) The trial court overruled the objection, assuring Redler’s attorney that Schmidt would be available for cross examination.
Evidence Code section 1200, subdivision (a) states, “‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.”
Schmidt read from her prepared statement about an “incidence of rage” that occurred when she surprised Redler and her daughter at home one night, and how Redler refused to leave her home and forced her to call the police. She said he had made numerous and harassing late night phone telephone calls to her home telephone numbers and to her cell telephone during the work day. She claimed to have discovered at least ten e-mails addressed to her daughter’s MySpace account, which she believed Redler authored and sent. She produced photocopies of 10 e-mails, each one with Redler’s picture on them, and demonstrated that the e-mails had been sent to her daughter after the court issued the temporary restraining order. In one e-mail, Redler asked Schmidt’s daughter to tell her mother to drop the petition for permanent injunction because it might affect his ability to get a job. In more than one of the e-mails Redler acknowledged he would get in trouble if Schmidt discovered he was contacting her daughter.
In her narrative, Schmidt also claimed Redler’s telephone calls and unwanted visits caused her to fear for her safety, to check and recheck her doors to make sure they were locked, to panic at night when the telephone rang, and to drop everything at work to answer his unwanted telephone calls. She said receiving frequent telephone calls while she was at her job interfered with her ability to get work done, and his late night telephone calls to her home interfered with her sleep. In fact, Schmidt said the emotional strain caused by Redler’s various unwanted contacts forced her to seek the professional help of a psychologist. She asked the court to issue the permanent injunction because she believed Redler would not cease his activities until he faced legal consequences.
Redler’s attorney cross-examined Schmidt, asking approximately one hundred questions, and successfully differentiated between the facts in Schmidt’s written statement that were based on inadmissible hearsay and those based on her personal knowledge. Redler’s attorney did not present an affirmative defense and did not call Redler as a witness, possibly to protect his client’s Fifth Amendment right to remain silent. Instead, counsel moved to dismiss the petition for lack of evidence, arguing Schmidt was using the harassment statute to disrupt a “boyfriend-girlfriend relationship” and that she “fabricated allegations of harassment.” The court denied Redler’s motion to dismiss and issued the injunction. The injunction prohibits Redler from direct or indirect contact with Schmidt, her daughter, or her son, and further orders Redler to stay at least 100 yards away from Schmidt and her children, their home, schools, cars, and Schmidt’s workplace. It expires on April 27, 2008, which is the day Schmidt’s daughter turns 18.
III
DISCUSSION
A. The trial court did not violate Redler’s right to due process
Redler contends the trial court violated his right to due process by admitting “incompetent declarations” over his hearsay objection. We disagree.
Section 527.6 created an expedited procedure to obtain temporary retraining orders and permanent injunctions. The Legislature wanted section 527.6 “‘to protect the individual’s right to pursue safety, happiness and privacy as guaranteed by the California Constitution.’ [Citation.]” (Schraer v. Berkeley Property Owners’ Assn. (1989) 207 Cal.App.3d 719, 729-730.) Further, the procedure used to obtain a temporary restraining order under section 527.6, subdivision (a), which may be granted “with or without notice,” is not the same as that required for the issuance of a permanent restraining order or injunction prohibiting harassment under subdivision (c). When it comes time to issue the permanent injunction, the “person charged with harassment is given a full opportunity to present his or her case, with the judge required to receive relevant testimony and to find the existence of harassment by ‘clear and convincing’ proof of a ‘course of conduct’ that actually and reasonably caused substantial emotional distress, had ‘no legitimate purpose,’ and was not a ‘constitutionally protected activity.’” (Schraer v. Berkeley Property Owners’ Assn., supra, 207 Cal.App.3d at pp. 730-731.) Although section 527.6 created an expedited procedure, “[c]onstitutionally protected activity is not included within the meaning of ‘course of conduct.’” (§ 527.6, subd. (b)(3).)
Redler received all the process due under the statute. It just so happens that the petitioner represented herself at the hearing. Instead of conducting her own direct examination, the court allowed Schmidt to read from a document she had prepared for the hearing. Redler argues the court’s failure to strictly enforce the hearsay rule violated his right to due process, but we are not persuaded. Forcing Schmidt to first rely on her memory before resort to her prepared statement would not have prevented the introduction of any of the admissible evidence contained in that document. For one thing, witnesses may rely on otherwise inadmissible documents to refresh their recollection under Evidence Code section 771. Redler seems to believe that by excluding Schmidt’s prepared statement he would have completely excluded her evidence. But her recall seemed fairly clear on the subject at hand. Redler had repeatedly telephoned late at night and into the early morning hours, called her cell phone number several times during the day, and sent numerous e-mails to her daughter. Each one of these events is unique and memorable, and the incident that precipitated her calling the police is not one that would be easily forgotten. In short, Redler fails to demonstrate the court prejudiced his case by allowing Schmidt to read from a prepared statement.
Moreover, Schmidt’s presence at the hearing meant she was available for cross-examination. Therefore, even her failure to provide Redler’s attorney with a copy of the written statement prior to the hearing resulted in no prejudice. Redler’s attorney had ample opportunity to formulate an effective cross-examination, and counsel did subject Schmidt to a thorough cross-examination. Counsel readily objected to those portions of her statement based on inadmissible hearsay, and some evidence she sought to introduce via her statement, i.e., evidence Redler had a juvenile record and punched holes in walls when frustrated, was properly excluded by the court. Redler presented no affirmative defense to Schmidt’s allegations, except for his declaration denying her accusations, but forcing her to testify to various events from memory or to provide additional documentation of those events, would not have afforded Redler one iota of additional due process. Redler simply fails to establish that what he views as the trial court’s loose application of the rules of evidence caused an “erroneous deprivation” of his right to due process of law. (Mathews, supra, 424 U.S. at p. 335.)
B. Sufficient evidence supports the court’s order
Section 527.6, subdivision (a) provides, “[a] person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an injunction prohibiting harassment as provided in this section.” The section defines harassment as “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.” (§ 527.6, subd. (b).) A “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, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, fax, or computer e-mail.” (§ 527.6, subd. (b)(3).) The statute requires “‘the course of conduct’” to be acts that “would cause a reasonable person to suffer substantial emotional distress, and [those acts] must actually cause substantial emotional distress to the plaintiff.” (§ 527.6, subd. (b); Brekke v. Wills, (2005) 125 Cal.App.4th 1400, 1413.)
Although the trial court must find clear and convincing evidence of harassment to issue the permanent restraining order or injunction (§ 527.6, subd. (d)), an appellate court reviews the trial court’s decision under the substantial evidence rule. (Kuhn, supra, 22 Cal.App.4th at p. 1633; Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.) Here, Schmidt recounted one occasion when Redler was at her home after curfew and refused to leave when asked to do so, which forced her to call the police for help. He also sent several e-mails to her daughter after the court had already issued a temporary restraining order prohibiting him from contact with Schmidt’s daughter, and he made dozens of late night telephone calls to Schmidt’s home and additional harassing telephone calls to her work. Redler complains that Schmidt failed to introduce any telephone records at the hearing. However, a reasonable inference under the circumstances is that Redler made these calls.
As for the element of emotional distress, Schmidt testified that Redler’s actions caused her to fear for her safety and the safety of her daughter and younger son, to panic when the telephone rang late at night, and that fear caused her to lose sleep. She recounted several interruptions at work and lost productivity because she feared Redler would go to her home without her permission. In an effort to cope with her emotional state, Schmidt had been forced her to seek professional help. Redler presented no evidence these events, which stand undisputed in the record, had a legitimate purpose. In fact, after June 2006, any contact with Schmidt’s daughter violated a restraining order.
The court specifically stated it had considered Redler’s declaration denying Schmidt’s charges, the possibility she fabricated some evidence, and her failure to provide additional documentation in reaching its decision. In any event, the court believed Schmidt, and we resolve questions of credibility in favor of the judgment. (Schild v. Rubin, supra, 232 Cal.App.3d t p. 762.) On this record, there is substantial evidence Redler engaged in a course of conduct designed to harass Schmidt and reasonably caused her to suffer severe emotional distress.
C. Miscellaneous complaints
Under separate headings on several pages of his opening brief, appellate counsel repeatedly asserts four interrelated contentions in support of his claim that Schmidt was an unreliable witness and that she otherwise failed to produce sufficient evidence of harassment. As stated, we do not reweigh issues of credibility. (Schild v. Rubin, supra, 232 Cal.App.3d at p. 762.) Nevertheless, counsel boldly asserts, “under penalty of perjury,” that his client “never threatened [Schmidt] or caused violence against her.” Of course, Schmidt never claimed Redler physically threatened or hit her, and section 527.6 does not include a requirement that the petitioner prove violence or a threat of violence.
Counsel also alludes to some type of witness bias on Schmidt’s part. However, a court sitting as the trier of fact is capable of discerning bias and deciding the weight to give to a biased witness’s testimony. (See Evid. Code, § 780, subd. (f), [“the court . . . may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing,” including “the existence or nonexistence of a bias, interest, or other motive.”].) Further, Schmidt is required by law to “exercise reasonable care, supervision, protection, and control over [her] minor child.” (Pen. Code, § 272, subd. (a)(2); Brekke v. Wills, supra, 125 Cal.App.4th p. 1411.) Because Redler refused to submit to her parental authority, Schmidt had no choice but to seek this legal remedy.
We also reject Redler’s reliance on something he labels “the conflicting inference rule.” The particular quote in Kuhn that captured Redler’s eye is this, “[i]nferences that are the result of mere speculation or conjecture cannot support a finding.” (Kuhn, supra, 22 Cal.App.4th at p. 1633.) While it is true that an appellate court will not indulge inferences that are the result of mere speculation and conjecture, Redler fails to demonstrate the trial court relied on such evidence. To the contrary, Schmidt produced evidence that was credible, believable, reasonable, and of “‘ponderable legal significance’” to sustain a judgment. (Id. at p. 1633.)
Counsel repeatedly attacks Schmidt for her failure to provide “objective evidence” in support of her factual allegations, but Schmidt testified and provided photocopies of 10 e-mail messages. The evidence Schmidt presented, although not overwhelming, is sufficient to support the trial court’s decision. Even assuming the court should have forced Schmidt to ask and answer her own questions and refer to her written statement only for refreshing her recollection, the court limited the admissibility of her statement to information based on her personal knowledge. Redler’s various assertions, no matter how many times or ways he frames them, fail to address the facts in the record or otherwise undermine the evidence presented.
IV
DISPOSITION
The judgment is affirmed. Schmidt shall recover her costs on appeal. (Cal. Rules of Court, rule 8.276(a)(2).)
WE CONCUR: BEDSWORTH, J. FYBEL, J.