Opinion
H031429
4-18-2008
SIMONE SPRAGUE, Plaintiff and Respondent, v. CHRISTY LENS, Defendant and Appellant.
NOT TO BE PUBLISHED
Christy Lens appeals from an order entered under Code of Civil Procedure section 527.6, prohibiting harassment against respondent Simone Sprague and her family. Lens seeks reversal or modification of the order on the ground that the scope of the injunction exceeded the courts statutory authority. We find no error and affirm the order.
All further statutory references are to the Code of Civil Procedure.
Background
Lens lives uphill from the Sprague family on adjoining properties. Dan Poljak is a "good friend" of Lens who occasionally works for her on her property. Over a period of several years the Spragues, consisting of Simone and Stillman Sprague and their two young daughters, experienced increasing manifestations of hostility from Lens. In 2004 Lens accused Stillman Sprague of cutting down trees on her property. The sheriff determined that she had accused the wrong person, but the antagonism escalated. Shortly after that, two teenagers and Lenss Great Dane entered the Spragues yard and frightened their two daughters, who were then three and five years old.
Stillman Sprague discussed the situation with Lens and explained that he had not cut her trees down; Lens assured him that she understood and described other instances of vandalism she had experienced. She admitted that her eyes were bad and that she had confused him with someone else. Nevertheless, on more than one occasion the Spragues returned to their home to find Lens and Poljak on the Spragues property.
The Spragues had observed Lens and Poljak taking photographs of them and their property. Stillman Sprague had seen Poljak on the Spragues property taking photographs with his cell phone, and Lens had taken pictures of the Spragues as they drove up the driveway.
Lens had told Stillman Sprague and other neighbors that she owned a gun for protection and knew how to use it. Her intent, she said, was to let people know that they should stay away from her house unless invited. Lenss demeanor toward Stillman Sprague did not feel threatening to him at the time she mentioned her gun. Subsequently, however, Lens told another neighbor that the Spragues were trouble and had cut down trees on her property, and that she "owned a gun and was not afraid to use it, and she was a crack shot."
In the summer of 2006 Poljak and Lens blocked the road so that Sprague and her daughters could not leave in their car. Poljak was taking pictures of a spray-painted tree that apparently had been cut down on the Lens property but which now lay on the Spragues property. When Sprague approached them to ask them to clear the roadway, Poljak, who was six feet, seven inches tall and weighed about 340 pounds, got out of the car, walked to within a few feet of her, and yelled at her in a loud and belligerent voice.
In December 2006, Poljak was again blocking Spragues access. He was leaning out the window of his truck taking pictures with his cell phone. Then Poljak rapidly backed up, nearly hitting Spragues car; Sprague avoided the collision only by backing her car into a turnaround.
Also in December 2006, Lens had Poljak install cameras and floodlights on her property. The lights lit up the Spragues yard, which was normally very dark at night, and penetrated their bedroom. The Spragues contacted their attorney because the lights were too bright and intrusive; after that, some were redirected or moved, and one of the lights was turned off. By the time of the hearing in February 2007 there were still floodlights disturbing the Spragues on some nights.
On January 6, 2007, while her husband was away on business, Sprague awoke at 2:30 a.m. to a flashlight shining in her bedroom window and someone walking around outside. Their home had been broken into in 2005, and this time Sprague called 911. Her daughters, then six and eight years old, who awoke when the sheriff rang the doorbell, were frightened and crying and thereafter refused to sleep in their bedrooms. The source of the intrusion turned out to be Poljak installing surveillance equipment, which monitored audio and video activity and had a night-vision capacity.
On January 10, 2007, Sprague obtained a temporary restraining order against Lens and Poljak and filed requests for orders to stop harassment, pursuant to section 527.6. In the declaration accompanying her request Sprague cited the January 6 incident as well as the intrusion of floodlights, intimidation of her and her children, and surveillance of her activities at home by still and (recently) video photography. She alleged that Lens and Poljak often trespassed when she and her husband were not at home. Lens and Poljak filed responsive declarations in which they denied Spragues accusations and related a different version of events in an attempt to justify their actions. Lens turned in her guns, but she continued to take photographs that captured the Sprague home, in violation of the temporary restraining order. A video camera, also in violation of the order, was still attached to a pole at the time of the hearing.
Lens testified that she had a .22 handgun and a new .38, which she had recently bought because it had "more hitting power."
The superior court received documentary evidence and oral testimony at a five-hour hearing over three days in February 2007. At the conclusion of the hearing, the court determined that the Spragues had "proved their case by clear and convincing evidence. I believe that theyve proved it on many points." It specifically found that Lens and Poljak had been harassing the Spragues by installing "invasive and obtrusive" floodlights and surveillance photography, and by verbally and physically intimidating them. The court recognized that Lens was not a violent person and Poljak was a "faithful agent" trying to protect her; nonetheless, he was a "hot head." The court accordingly ordered both defendants not to "harass, attack, strike, threaten, assault, hit, follow, stalk, destroy, personally destroy the personal property of, keep under surveillance or block the movements of. . . Mr. and Mrs. Sprague and their two children." Lens and Poljak were to stay 30 yards away from the Spragues except for passing them by happenstance or accessing the Lens property. The court further prohibited Lens and Poljak from owning or possessing any firearms and ordered Lens to remove fallen trees or loose stumps that might roll down the hill to the Sprague house.
Discussion
Lens contends that the restrictions imposed on her in the courts order were excessive and prevented her from exercising her legal rights. She specifically challenges the requirements that she remove all fallen trees from her property, refrain from shining lights on the Spragues property, stay 30 yards away from the Spragues and their home, stop photographing the Spragues or their property, and turn in her firearms. We find no error.
Section 527.6 was enacted "to supplement the existing common law torts of invasion of privacy and intentional infliction of emotional distress by providing quick relief to harassment victims threatened with great or irreparable injury. [Citation.] It was enacted to protect the individuals right to pursue safety, happiness and privacy as guaranteed by the California Constitution. [Citation.]" (Grant v. Clampitt (1997) 56 Cal.App.4th 586, 591.)
A plaintiff seeking an injunction under the expedited procedures outlined in section 527.6 must present clear and convincing evidence that he or she has been harassed. Harassment is defined 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. 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).) The term "course of conduct" is further 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).)
Here the trial court found clear and convincing evidence that the Spragues had been harassed, as required by section 527.6. Lens asserts that portions of the ruling were unsupported by clear and convincing evidence, but she disregards the standard of appellate review. " The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal. [Citations.]" (Crail v. Blakely (1973) 8 Cal.3d 744, 750.) "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.)
Measured by these long-established principles, the trial courts rulings were not error. Lenss conduct was directed specifically at the Spragues, which seriously alarmed, annoyed, or harassed them and served no legitimate purpose. Lens does not dispute the implied finding that her conduct would have caused a reasonable person to experience substantial emotional distress and that Sprague did experience such distress. Instead, she contends that the injunction was overbroad and impeded her from exercising her legal rights— for example, the right to have lights on her property. According to Lens, because the injunction forbids her to shine any lights on any portion of the Sprague property, "the prudent and risk adverse [sic] action would be for Lens to disconnect all lighting on her property." In Lenss view, this represents a "Hobsons choice," as she is forced to disconnect all the lights or risk "being hauled before the judge on an Order to Show Cause." Lens does not point to any evidence in the record that supports this assertion, however. Her "fear of being accused of violating the courts order" is based on nothing more than hypothetical speculation.
Lens concedes that she has no right to harass the Spragues by "flooding their property with light." She nonetheless requests modification of the orders to allow her to "illuminate her own property, but not to shine any lights directly onto the Sprague property or maintain any lighting that is unreasonably bright." We cannot grant this request, as Lens did not propose any modification or clarification of the courts order. Moreover, she cites no evidence that she is completely prevented from illuminating her own property. She also offers no basis for concluding that her proposed modification would be any clearer to the parties than the existing order. The order states that she may not "direct or shine any cameras or lights on any portion of the Sprague property or any member of the Sprague family." The courts oral ruling clearly indicated that Lens was permitted to light her own property as long as she did not disturb her neighbors down the hill; that meant "no shining lights on the Sprague[s] property. No shining lights on the Sprague[s] windows. No shining lights on the Sprague[s] buildings, their garage, their home." This prohibition was, in the courts view, a reasonable accommodation to the parties: Lens may illuminate her own property as long as the lights do not impinge on the Spragues or their home.
Lens further protests the order that she remove all fallen trees from her property, on the ground that this order resolved an issue that was unrelated to harassment. She specifically asserts that the presence of those trees did not constitute harassment because there was no evidence that the trees caused any concern, alarm, or annoyance or that it would have caused distress to a reasonable person. Sprague, however, was concerned that the fallen trees could roll down the hill and damage the house. Lens herself believed that one tree could have rolled down the hill and hurt someone. On these facts the trial court was entitled to find that Lenss refusal to remove the fallen trees constituted harassment. In any event, Lens did not object that keeping the trees in place was not harassment; her attorney argued only that he had not had the opportunity to bring in experts on the subject of the fallen trees, and he represented that he had received a report from a forester who had said that their removal would "cause erosion."[]
Counsel then requested and was granted an extension of time for the tree removal.
Lens next contends that the stay-away order is unduly burdensome, thereby interfering with "her constitutional rights to use and enjoy her property." Because the order already enjoins her from harassing, contacting, following, or stalking the Spragues, the additional requirement that she stay 30 yards from any Sprague family member "unnecessarily restrict[s] Lens from her constitutional rights to use and enjoy her property." Lens expresses concern that she could violate the injunction simply by standing on her own property without realizing that Sprague was standing near the property line. She requests modification of the order so that it does not apply when she is on her property.
Lens fails to demonstrate error. The 30-yard restriction does not appear to be unduly burdensome. Evidently the court believed that to prevent Lens from harassing the Spragues she needed to stay 30 yards away no matter where she was. There is no evidence that Lens is unable to use and enjoy her property simply because she must stay out of the court-ordered range. The possibility that she could unknowingly be within 30 yards of a Sprague family member is weak and speculative at best. As respondent points out, both defendants testified that they were physically unable to walk down the slope of the Lens property to bring themselves within 30 yards of the Spragues home. Lens testified that she was not "sure footed" and used a cane or two to walk the steep hillside between her house and the Spragues, and Poljak stated that neither he nor Lens was "in that good a shape to go down the hill, and especially in the dark." In any event, the record contains no indication that Lens objected to this restriction on the ground that it was an unnecessary infringement on her right to enjoy her property.
Lens also complains that she is not permitted to take any photograph of Sprague family members or of their property. Lens believes that she would violate the courts order by taking a picture of her property if one of the Spragues or their property were included in the frame. That may be true, but Lens fails to show how the prohibition is overbroad or unduly burdensome. Nor did she ask the trial court to narrow the order to prohibit her from "directly photographing Sprague family members of [sic] the Sprague property." Also incomprehensible is Lenss fear that "Sprague may conclude that Lens is intentionally violating the injunction if Lens photographs her property, but Sprague believes she is taking pictures of her or her property." This premature and speculative argument amounts to no more than anticipation of a "shes looking at me" whine by Sprague and merits no analysis.
Finally, Lens challenges the part of the order prohibiting her from possessing or acquiring a firearm for the three-year period of the injunction. The court, she points out, did not find her to be a violent person, and she had never been arrested. Lens maintains that she needs a handgun because she is a 61-year-old retired teacher who "lives by herself and has been burglarized numerous times." The firearm prohibition is unfair, she argues, because she "has never threatened anyone with a gun."
Her argument cannot succeed, however. Although Lens testified that she had never threatened anyone with harm from a gun, she admitted that she had told people in the neighborhood that she had guns and knew how to use them. And Lens had told another neighbor that the Spragues were trouble, and that she "owned a gun and was not afraid to use it, and she was a crack shot." The court appears to have resolved any factual discrepancy on this point in the Spragues favor, in recognition of their concern about Lenss possession of a gun, her lack of inhibition about using it, and her hostility toward the Spragues. More importantly, the courts ruling followed the mandate of section 527.6, subdivision (k), which forbids a person subject to a protective order under the statute to "own, possess, purchase, receive, or attempt to purchase or receive a firearm while the protective order is in effect," and to turn in any firearms he or she owns or possesses. (527.6, subds. (k)(1), (k)(2).)
We thus conclude that substantial evidence and the provisions of section 527.6 support not only the courts harassment finding, but its remedy. Neither reversal nor modification is required in these circumstances.
Disposition
The order is affirmed.
We concur:
RUSHING, P. J.
PREMO, J.