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Simpson v. Williams

California Court of Appeals, Fourth District, Second Division
Mar 6, 2008
No. E043207 (Cal. Ct. App. Mar. 6, 2008)

Opinion


CARLA SIMPSON, Plaintiff and Respondent, v. LENNIE WILLIAMS, Defendant and Appellant. E043207 California Court of Appeal, Fourth District, Second Division March 6, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie, Judge. Super.Ct.No. VCVVS045623. Reversed.

Lennie Williams, in pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

OPINION

Gaut J.

Lennie Williams (Williams) appeals from an order granting a civil harassment injunction at the request of Carla Simpson (Simpson), the “significant other” of Williams’s son. Williams asserts she was not properly served with the temporary restraining order (TRO) or notice of the hearing, the judgment was based on false testimony by Simpson at the hearing, that the trial court was biased and had prejudged the matter, and that the court refused to hear defense evidence or witnesses. Simpson did not file a respondent’s brief. Therefore, we decide the appeal on the record, the opening brief, and any oral argument by appellant. (Cal. Rules of Court, rule 8.220(a)(2).) We reverse.

1. Background

On March 23, 2007, Simpson filed a request for orders to stop harassment (Code Civ. Proc., § 527.6), alleging that Williams had struck her son Eric, age 9, twice in his face, stepped on his foot, and threatened to shoot him in his head. Lennie Williams is the grandmother of Simpson’s two-year-old son by Justin Hills, the son of Williams.

On March 27, 2007, a hearing was held respecting issuance of an ex parte TRO pending a hearing on the petition. The court heard testimony from both parties. Simpson related the incident involving Eric although she was not present when it happened. Williams denied striking or threatening Eric. Although the court stated, “It doesn’t sound like there are threats of violence ongoing . . .,” it issued mutual TRO’s against both parties pending the formal hearing. The court directed Simpson to serve Williams with the restraining order.

The register of actions shows that on April 11, 2007, a proof of service of the TRO, showing personal service on Williams, was filed. However the superior court file reflects no documents bearing that date of filing. Instead, there is a document reflecting that service was not accomplished; the sheriff’s proof of service, filed on April 10, 2007, actually states that after numerous attempts, the sheriff’s authorized agent was unable to make personal delivery of the process on Williams.

On its own motion, this court examined the superior court file in this case and by separate order has augmented the record with two documents filed in the superior court on April 10, 2007.

Simpson subsequently filed an application to reissue the TRO due to the sheriff’s inability to serve Williams on April 10, 2007. The court issued a TRO and set the matter for hearing on May 15, 2007. There is no proof of service of this restraining order or notice of hearing in either the appellate record or in the superior court file.

On May 11, 2007, Williams filed an ex parte motion to set aside the civil harassment temporary order. Among other matters, Williams asserted Simpson sought the restraining orders out of retaliation for Williams’s disapproval of Simpson’s relationship with Williams’s son and the fact Williams had obtained a restraining order against Simpson. She also asserted that Simpson sought the orders because she knew it would adversely affect Williams’s employment with the Department of Public Social Services in Los Angeles, and that Williams was not properly served with the petition or notice of hearing regarding the action, impairing her ability to respond to the allegations. She asked the superior court to set aside the TRO and set it for hearing after proper service.

On May 15, 2007, the hearing on the order to show cause for issuance of the civil harassment injunction was conducted. Both parties were sworn as witnesses. Although these allegations were not made in the request for injunction, Simpson testified that within the past two weeks prior to the hearing there was an incident at a Valero gas station in which Williams pushed her and then followed Simpson in her car, forcing her to drive on dirt roads. She also accused Williams of using her position as a social services employee to access Simpson’s personal files at some point in time in order to obtain her address, and accused Williams of throwing a rock at the house of Simpson’s cousin.

Williams denied being involved in any incident at the gas station, explaining that she leaves for work at 3:30 or 4:00 a.m. and returns home late at night. She also testified she used service stations in the Los Angeles area, where she worked, or at the Wal-Mart station on Palmdale, but not the Valero station where Simpson alleged the incident occurred. Williams denied calling Simpson by telephone or knowing Simpson’s address.

Williams also testified she was not served with papers informing her of the court date. She learned of the hearing date after Simpson appeared at her home on May 5, 2007, and told her about the restraining order. Williams then contacted the court, learned Simpson had filed a proof of service, and learned of the hearing date at that time. Williams explained Simpson’s assertions were false. The court noted Simpson did not appear to be a liar. The court did not determine that there was a course of conduct directed at Simpson which annoyed, alarmed or harassed her and that the conduct served no legitimate purpose. However, the court issued a restraining order for one year. The court did not make any findings.

Williams appeals. Her opening brief asserts the court made its judgment based on false evidence, that the judge was biased, and refused to consider her evidence or witnesses. She also asserts the court erred in not vacating the ex parte restraining order because she was not properly served with court papers.

2. Discussion

A. Williams’s Due Process Rights Were Violated By Lack of Notice

Williams argues she was not properly served with the petition, TRO, and notice of hearing. We agree.

A party in a civil harassment proceeding is entitled to be personally served with a copy of the petition, TRO, and notice of hearing of the petition. (Code Civ. Proc., § 527.6, subd. (g).) Although the procedures set forth in the civil harassment statute are expedited, they nevertheless include important due process safeguards, designed to insure a person charged with harassment is given a full opportunity to present his or her case. (Nora v. Kaddo (2004) 116 Cal.App.4th 1026, 1028.)

Prior to the trial, Williams filed a motion to vacate the TRO along with her response to the application, denying the occurrence set out in the application and asserting she was not properly served. At the hearing, she complained she did not receive proper notice of the hearing; she found out about the hearing date only when she called the court, after Simpson had informed her there was still a pending action.

The court acknowledged that at the April 2007 hearing there was a service issue. We reviewed the court file and learned that the document described in the register of actions as a “proof of service” was in actuality the sheriff’s return showing non-service of the TRO, the notice of hearing and request for orders to stop harassment. Williams was not personally served with the TRO issued on April 10, 2007, nor with notice of the May 15, 2007 hearing date, although she was subjected to the potential criminal consequences of the temporary order. (See Nora v. Kaddo, supra, 116 Cal.App.4th at p. 1029.)

We note that the civil harassment statute provides that a temporary restraining order, issued ex parte, shall only remain in effect for a period not to exceed 15 days, or, if good cause appears to the court, 22 days from the date the TRO was issued. (Code Civ. Proc., § 527.6, subd. (c).) In issuing the TRO in the present case, the court set a hearing date for the injunction that was 34 days past the date of issuance. We have found no indication in the record that the court found good cause to extend the TRO beyond 15 days.

Williams had no notice of matters against which she would have to defend herself because none of the petitions for restraining order mention the gas station incident, any improper attempts to contact Simpson or access her welfare file, or any incidents about rocks being thrown at the house of Simpson’s cousin. In her testimony, Williams referred to the fact she had gas card statements that would prove she did not get gas at the filling station where the pushing incident was to have occurred. She was prevented from presenting any evidence due to lack of notice of the allegations to her prejudice because, as she pointed out in her declaration under penalty of perjury, she had not seen the allegations of the subsequent application. Her due process rights were violated.

Although Williams did not formally object or request a continuance at the hearing, she did complain of the lack of opportunity to defend in her motion and response, requesting additional time. Additionally, the court was aware of the problem with the proof of service and yet proceeded with the hearing without affording Williams an opportunity to prepare. Particularly considering the serious consequences flowing to an employee of the Department of Public Social Services from the issuance of a prohibitory injunction, including transmittal of the information to the Department of Justice (Code Civ. Proc., § 527.6, subd. (o)), mandatory relinquishment of firearms (Code Civ. Proc., § 527.9, subd. (a)), and entry of the order into CLETS (California Law Enforcement Telecommunications System), notice of the TRO, the specific allegations, and the date and time of the hearing, was essential, and lack of notice was prejudicial.

The due process violation warrants reversal of the judgment.

B. Sufficiency of the Evidence

Williams asserts the judgment granting the injunction was based on false evidence. We construe this as a challenge to the sufficiency of the evidence. Although we reverse the judgment for the reasons explained in the previous section, we will address this issue for the superior court’s guidance.

In determining whether substantial evidence supports the elements of willful harassment, we review the evidence before the court in accordance with established 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.) In reviewing the record, we cannot reconsider the trial court’s determination of Simpson’s credibility, or reweigh the evidence. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766.) For this reason, we cannot decide whether the order granting the civil harassment injunction was based on false evidence. However, our inquiry does not end here.

“Civil harassment” involves a “course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person and that serves no legitimate purpose.” (Code Civ. Proc., § 527.6, subd. (b).) A “course of conduct” is defined as “a series of acts over a period of time, however short, evidencing a continuity of purpose.” (Code Civ. Proc., § 527.6, subd. (b)(3) .) A “series” is “a number of things or events of the same class.” (Leydon v. Alexander (1989) 212 Cal.App.3d 1, 4.) A single incident cannot support the issuance of an injunction. (Ibid.) We interpret the statutory language to require proof of a series—more than one—of acts, directed at a particular person, evidencing a continuity of purpose.

At the hearing, Simpson testified about several acts involving Williams. Two of the incidents involved third parties (Simpson’s son and cousin) who did not testify, so the acts were not directed at “a specific person” (Code Civ. Proc., § 527.6, subd. (b)) and the testimony about these incidents was not of Simpson’s personal knowledge and therefore was inadmissible. (Evid. Code, § 702.) The incidents involving Simpson’s son or cousin, considered cumulatively, even if true, do not support an injunction in favor of Simpson, and do not establish a “course of conduct” directed at other members of Simpson’s household. We simply do not know enough about the facts of those incidents to draw the inference that they were part of a “course of conduct.” The only incident for which the court heard testimony from Simpson’s personal knowledge was the Valero gas station incident, and this evidence does not establish a “course of conduct.”

The allegation relating to Simpson’s claim that Williams had access to Simpson’s confidential address through her job with the Department of Public Social Services was not supported by any evidence. Simpson assumed that when the father of her youngest child (Williams’s son) filed for change of custody, he must have gotten her address from “somewhere,” and implied Williams had the information and disclosed it. There was no evidence Williams had seen Simpson’s file, and Williams denied knowing Simpson’s address. This allegation was based on Simpson’s speculation, rather than personal knowledge. Speculation is not evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 864.)

The only actual incident directly involving Simpson related to the confrontation at the gas station. However, this single act, even if true, cannot be described as a “series” of acts. A single incident does not establish a course of conduct. (Leydon v. Alexander, supra, 212 Cal.App.3d at p. 4.) Even if we were to consider the other acts, an injunction would be improper because they were not of the same class, with all committed against a specific person. Furthermore, while the court stated it did not think Simpson was lying, it also stated to Williams, “I am not saying you’re a liar.” The court stated it was imposing the injunction merely “to keep the peace.” That is not a ground for a prohibitory injunction which can have serious ramifications for the restrained party.

Therefore, we conclude the judgment granting the injunction is not supported by substantial evidence.

C. Judicial Bias Claim

Because we are reversing the judgment for other reasons, we do not need to address this claim.

3. Disposition

The judgment is reversed. The court is directed to vacate the restraining order issued May 15, 2007. Costs are awarded to appellant.

We concur: Ramirez, P. J., Richli, J.


Summaries of

Simpson v. Williams

California Court of Appeals, Fourth District, Second Division
Mar 6, 2008
No. E043207 (Cal. Ct. App. Mar. 6, 2008)
Case details for

Simpson v. Williams

Case Details

Full title:CARLA SIMPSON, Plaintiff and Respondent, v. LENNIE WILLIAMS, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Mar 6, 2008

Citations

No. E043207 (Cal. Ct. App. Mar. 6, 2008)