Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 567381.
Retired judge of the Superior Court of Marin County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant has taken this appeal from an order issued by the trial court pursuant to Code of Civil Procedure section 527.6 (section 527.6) that prohibited him from contacting, harassing, or coming within 50 yards of plaintiff for a period of three years. He complains that the evidence fails to support the issuance of the restraining order. He also objects to the failure of the court to obtain and consider evidence of a surveillance videotape of the incident that precipitated the action by plaintiff. We conclude that the restraining order is supported by substantial evidence, and defendant was not denied the right to present evidence. We therefore affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On January 25, 2008, plaintiff filed a request for an injunction pursuant section 527.6 to prohibit defendant from personally harassing her. Defendant filed an answer in which he vigorously contested plaintiff’s allegations of harassment. The trial court considered the moving papers submitted by the parties and testimony offered at the hearing on the restraining order held on February 8, 2008.
The evidence shows that plaintiff was the night manager of the Maria Manor residential facility for seniors. Defendant also worked intermittently at the facility through a staffing agency. On the night of October 29, 2007, plaintiff and defendant were both working at the front lobby desk. Plaintiff was in the process of relieving defendant as night manager. Defendant became irritated with plaintiff when she made uncomplimentary remarks about a female resident and her sister. During the course of a conversation between them, they both made derogatory comments about another resident named William and the clothes he was wearing. According to plaintiff’s testimony, defendant made a statement that on another occasion William was “wearing nigger shoes.” Defendant claimed that he was merely repeating a description of the shoes previously offered by “somebody else.” Defendant also testified that plaintiff exclaimed, “Oh, you mean pimp shoes,” before she left the desk.
When plaintiff returned to the front desk she advised defendant that she “did not like him using that term and asked him not to use the term.” Defendant became angry and an argument between them ensued. Plaintiff testified that as the argument escalated defendant threw a “log book” and a pen at her face and called her “a bitch” before he “walked out the door.” Defendant asserted that he “slammed the log book on the counter” as a “move of defiance,” and did not intend to assault plaintiff. The next morning plaintiff made a police report “of an assault.” The report noted that she did not have “visible injuries” as a result of the incident.
Defendant was terminated from his employment at Maria Manor, and on November 7, 2007, was “banned from the building.” Plaintiff testified that thereafter defendant continued to “walk by the building” and look inside. Defendant maintained that he visited Maria Manor on only one occasion after the altercation with plaintiff, to visit a resident on November 11, 2007, and only then was he informed he “had been banned from the building” a few days before. Defendant added that once he became aware he “had been banned from the building” he “stopped going to Maria Manor.”
Defendant admitted that he called Maria Manor on one occasion, but only to obtain the “phone number of a resident” to let her know she had “been slandered” by plaintiff. Plaintiff testified that defendant engaged in a “process” of requesting the “phone numbers” of residents, which is “totally confidential information” the employees “never give out.”
Plaintiff also told the court that on January 15, 2008, defendant sent a letter to a resident of Maria Manor in which he explained his quarrel with plaintiff, his reference to “nigger shoes,” and plaintiff’s police report of an assault. In the letter defendant stated to the resident that he visited Maria Manor a week after the argument to “trash” plaintiff. He also mentioned that he called the manager and property supervisor of Maria Manor when he learned he “was on the 86 list,” but never received an explanation of plaintiff’s complaint of an assault. In the letter defendant asked the resident to advise him if plaintiff “suddenly” appeared with a limp, a black eye or abrasions on her face as part of her portrayal of a “victim role.”
The letter somehow came into plaintiff’s possession and was attached as an exhibit to her request for the restraining order. By prior order and pursuant to defendant’s request we augmented the record to include the letter.
Plaintiff also testified that she suffers from “stress related disability,” and fears for her safety due to defendant’s conduct. She expressed concern that defendant’s behavior was “not going to stop” unless a restraining order was issued.
At the conclusion of the hearing the trial court found “clear and convincing evidence” of unlawful harassment and issued the restraining order. This appeal followed.
DISCUSSION
I. The Evidence to Support the Restraining Order.
Defendant claims that the restraining order is not supported by evidence of unlawful harassment. He submits that several deficiencies in the evidence of harassment exist: first, lack of evidence that he committed an assault, battery, stalking, or any other act of “unlawful violence” upon plaintiff; second, the altercation on October 29, 2007, was a “single act” rather than a “course of conduct” or pattern of behavior; and finally, plaintiff’s “fear for her safety is not reasonable” as required by section 527.6.
“Under section 527.6, a person who has suffered harassment may seek a temporary restraining order and injunction prohibiting it. (§ 527.6, subd. (a).) If the judge finds by clear and convincing evidence that unlawful harassment exists, such an injunction must be issued. (§ 527.6, subd. (d).)” (Leydon v. Alexander (1989) 212 Cal.App.3d 1, 4; see also Nebel v. Sulak (1999) 73 Cal.App.4th 1363, 1369.)
“Subdivision (b) of section 527.6 states: ‘For the purposes of this section, “harassment” is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff.’ ” (Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1412.) “A ‘course of conduct’ that seriously alarms, annoys, or harasses a person and serves no legitimate purpose 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. Constitutionally protected activity is not included within the meaning of “course of conduct.” ’ (§ 527.6, subd. (b)(3).)” (Ibid.) “ ‘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.’ ” (Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1109, quoting § 527.6.)
Our review of the record is quite constrained. A restraining order issued to prohibit civil harassment under section 527.6 is “reviewed to determine whether the necessary factual findings are supported by substantial evidence.” (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137.) “ ‘We resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge all reasonable inferences to support the trial court’s order.’ [Citation.]” (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 872; see also Thompson v. 10,000 RV Sales, Inc. (2005) 130 Cal.App.4th 950, 964; Brekke v. Wills, supra, 125 Cal.App.4th 1400, 1405.) The trial court is the exclusive judge of the credibility of the evidence presented in support of the application for injunctive relief. (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1450.) “ ‘Where the evidence before the trial court was in conflict, we do not reweigh it or determine the credibility of witnesses on appeal....’ [Citations.]” (Alliant Ins. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1300; see also ReadyLink Healthcare v. Cotton (2005) 126 Cal.App.4th 1006, 1016.) “If there is substantial evidence supporting the order, the court’s issuance of the restraining order may not be disturbed.” (In re Cassandra B. (2004) 125 Cal.App.4th 199, 210–211.)
We so review the record to determine if plaintiff adduced adequate evidence to prove either unlawful violence that was likely to recur, or a continuing course of conduct that constituted harassment under the statute. (See Russell v. Douvan (2003) 112 Cal.App.4th 399, 401, 404.) We begin our analysis by rejecting appellant’s claim that the evidence fails to prove an act of “unlawful violence” under section 527.6, which is defined in subdivision (b)(1) as “any assault or battery, or stalking as prohibited in Section 646.9 of the Penal Code, but shall not include lawful acts of self-defense or defense of others.” A review of the evidence in the light most favorable to the judgment, as must be done, reveals that according to plaintiff’s testimony defendant threw a log book and pen at her, striking her in the face. Defendant complains that plaintiff “failed to provide any evidence of an assault except her own testimony,” and even that did not prove he “intended to throw a logbook and pen” at her. Despite defendant’s denials, however, the trial court found plaintiff’s account of the incident credible, and we cannot disturb that finding. (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.) Further, unless the testimony is physically impossible or inherently improbable, the testimony of a single witness is sufficient to provide substantial evidence to support a judgment. (People v. Mejia (2007) 155 Cal.App.4th 86, 93; Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 823.)
While the language of section 527.6, subdivision (b) authorizes issuance of a restraining order for commission of “unlawful violence,” injunctive relief “ ‘is authorized only when it appears that wrongful acts are likely to recur.’ [Citation.]” (Haley v. Casa Del Rey Homeowners Assn., supra, 153 Cal.App.4th 863, 873, italics omitted.)
Giving plaintiff’s testimony the weight to which it is entitled, defendant’s act of throwing a log book and pen at her face constituted at least an assault under Penal Code section 240. “The mental element for the assault charge is that ‘assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, 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.’ [Citation.] ‘The mens rea [for assault] is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery. Although the defendant must intentionally engage in conduct that will likely produce injurious consequences, the prosecution need not prove a specific intent to inflict a particular harm.... The evidence must only demonstrate that the defendant willfully or purposefully attempted a “violent injury” or “the least touching,” i.e., “any wrongful act committed by means of physical force against the person of another.” [Citation.] In other words, “[t]he use of the described force is what counts, not the intent with which same is employed.” [Citation.]...’ [Citation.]” (People v. Golde (2008) 163 Cal.App.4th 101, 108–109, fn. omitted; see also People v. Colantuono (1994) 7 Cal.4th 206, 214–215.) Substantial evidence of an assault was presented.
We also conclude that the evidence proved the requisite course of conduct that commenced with the assault and continued thereafter. According to plaintiff’s account, following the assault defendant “would continue to walk by the building” and look inside. (Italics added.) We interpret this testimony to indicate a repetition of behavior that would serve to alarm, annoy, or harass plaintiff. Defendant also “started this process of calling the building asking for resident’s phone numbers,” which we again construe as multiple acts committed by defendant. Although defendant had been terminated from his employment, he attempted to visit a resident at Maria Manor on November 11, 2007, whereupon he was advised he had been recently banned from the building. Finally, defendant stated in a letter to a resident that he visited Maria Manor a week after the argument with plaintiff for the express purpose of “trash[ing]” her. The letter also called plaintiff a “master of deceit,” and asked the resident to let him know if plaintiff exhibited false injuries from the alleged “criminal assault.”
We acknowledge defendant’s testimony that he was unaware of his status “on the 86 list” when he entered the Maria Manor building on one occasion, and the fact that the letter was not intended to be read by plaintiff. Nevertheless, the letter and the visit to the building to admittedly “trash” plaintiff demonstrates his objective to disturb her and pursue continuation of the conflict between them. We are also persuaded that the totality of defendant’s conduct including and following the assault constitutes a course of conduct that had the required design and effect of alarming, annoying, or harassing plaintiff. Finally, plaintiff offered undisputed testimony that she feared for her welfare, suffered from a stress related disability, and defendant’s conduct caused her additional anxiety. We conclude that the elements necessary to support the trial court’s ruling that granted plaintiff a restraining order pursuant to section 527.6 are established by substantial evidence.
II. The Failure of the Trial Court to Consider Evidence of a Surveillance Videotape.
Defendant further argues that the trial court erred by failing to obtain and consider evidence of a surveillance videotape that may have been taken at Maria Manor on the night of October 29, 2007. He maintains that the videotape could have disproved “the alleged assault.” Defendant points out that he “brought up the existence of the surveillance tape in his answer,” and asked that it be “made available to the court.” He therefore claims that the court violated section 527.6, subdivision (d) and his “due process rights” by failing to produce and consider the videotape as evidence.
We find no violation of section 527.6 or defendant’s due process rights. Subdivision (d) of section 527.6 provides in pertinent part: “Within 15 days, or, if good cause appears to the court, 22 days from the date the temporary restraining order is issued, a hearing shall be held on the petition for the injunction. The defendant may file a response that explains, excuses, justifies, or denies the alleged harassment or may file a cross-complaint under this section. At the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry.” (Italics added.) “Although the purpose of section 527.6 is to provide expedited injunctive relief to victims of harassment, the party to be enjoined has certain important due process safeguards, i.e., ‘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.” ’ [Citation.]” (Adler v. Vaicius (1993) 21 Cal.App.4th 1770, 1775, italics added, original italics omitted.) Defendant was given a full opportunity to present his case, and failed to subpoena or otherwise produce the videotape. While defendant requested that the videotape “be made available to the court,” he did not ask the court to obtain the evidence for him or seek a continuance to do so himself. The trial court is given discretion under section 527.6 to “make an independent inquiry” in the case, and under the circumstances presented here we find no abuse of discretion by the court for failing to investigate the matter and obtain the surveillance videotape – the existence and content of which had not even been established.
Accordingly, the judgment is affirmed. Costs on appeal are awarded to plaintiff.
We concur: Marchiano, P. J., Margulies, J.