Bradburn v. Busch

Filed 4/3/07 Bradburn v. Busch CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Patricia K. Cookson and Eddie C. Sturgeon, Judges. Affirmed.

Karen Busch appeals the entry of an injunction under Code of Civil Procedure section 527.6,^[1]enjoining her from harassing Lori Bradburn (Bradburn) and members of Bradburn's immediate family. She also appeals from the trial court's denial of a motion for a new trial and a motion to set aside and vacate the judgment. Busch argues (1) that the trial court improperly limited the evidence that she could present at trial and (2) that substantial evidence does not support the trial court's decision. We conclude that Busch's arguments lack merit. Accordingly, we affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

Bradburn filed a petition for an injunction prohibiting harassment under section 527.6 against Busch. Among other things, the petition stated: (1) Busch previously had a "personal relationship" Bradburn's husband, Loren; and (2) Busch had applied for and been granted a restraining order against Bradburn. Bradburn requested that an injunction be issued in her favor and in favor of Loren and their teenage daughters, Breanna and Katlin.

In a declaration supporting the petition, Bradburn described several events that had happened within two weeks of filing the petition.^[2] First, Bradburn and Loren encountered Busch in her vehicle while they were driving through a shopping center parking lot, and Busch "flipped [them] off" as they passed; while they were at the shopping center Busch tried to have Bradburn arrested for violating her restraining order; and the Bradburns' car was vandalized while they were doing business at the shopping center. Second, Busch, in her vehicle, tailed Loren in his vehicle for two miles on his way to a gas station. Third, Busch confronted a friend of one of the Bradburn girls and accused the friend of stalking. Fourth, on two occasions Busch drove down the Bradburns' private road and driveway with her lights off. Bradburn also stated that she was receiving "phone calls all hours of the day and night  people calling me names."

Bradburn's daughter Breanna submitted a declaration stating that as she was driving into the high school parking lot in the morning with a friend, she spotted Busch in an adjacent school parking lot. Breanna's friend made a "loser" sign to Busch with her hand as they drove by. According to Breanna, Busch pulled her car up behind Breanna's car, walked up to Breanna's window and stated, " 'You, your family, and your little friends better stop stalking me, cuz I know a lot of people, and your guys' time will come, dearie.' " Breanna was scared that Busch had planned for someone to hurt her at school. She called Bradburn and started crying. Breanna went home instead of attending school that day.

The trial court held a trial on the petition. At the outset of the trial, the court asked if the parties wished to present any evidence besides the declarations, explaining that "[i]t is going to have to be pretty brief because I was given this calendar and I have my own calendar to deal with. So I'm going to have to be very brief with everyone this morning."

Bradburn's attorney called Breanna to testify about the incident in the high school parking lot, and she was then cross-examined by counsel for Busch. Among other things, Breanna explained that she had to leave school for the day because she was "freaked out and really upset" by the incident.

Busch's attorney called Bradburn to testify. He extensively questioned Bradburn about the incident at the shopping center. In the course of the examination, it became clear that Bradburn's statement in her declaration that Busch tried to have her arrested for violating the restraining order while at the shopping center was not based on Bradburn's personal knowledge. The trial court accordingly granted a motion to strike the statement from Bradburn's declaration.^[3]

During Bradburn's testimony it also became apparent that Bradburn knew about Busch following Loren to the gas station based only upon Loren's statements.

The trial court struck the corresponding statement from Bradburn's declaration. The trial court on its own initiative asked that Loren testify about the incident at the gas station. Loren was sworn, and the trial court questioned him. Busch's attorney then conducted an examination of Loren about the incident, during which Loren stated that Busch followed him to the gas station, parked at a nearby auto parts store while he was fueling his car and then "flipped [him] off" as he exited the gas station.

Busch's attorney then called his client to testify. Busch (1) denied confronting Breanna at the high school, (2) stated that the Bradburns made offensive gestures to her in the shopping center parking lot, (3) explained that she was headed to the auto parts store to get a locking gas cap to protect her gas tank from vandalism by the Bradburns rather than tailing Loren to the gas station, and (4) denied making an offensive gesture to Loren while he was at the gas station.

After Busch had started to narrate what happened in the shopping center parking lot, the trial court interrupted and stated that although "we could spend all day on this case," it was prepared to make its ruling. Busch's attorney did not object to cutting short his questioning of Busch and did not state that he wanted to call an additional witness. The trial court then indicated it would enter the restraining order requested by Bradburn, requiring that Busch keep 100 yards away from the Bradburn family for three years.

Busch subsequently filed a motion for a new trial pursuant to section 657 and a motion to set aside and vacate the judgment and enter a different judgment pursuant to section 663. In her posttrial motions Busch presented the same arguments that she makes on appeal: (1) she was denied a fair trial and due process because the trial court refused to hear all of the evidence; and (2) the trial court's decision was not supported by substantial evidence.

In support of the posttrial motions, Busch's attorney filed a declaration summarizing an unreported sidebar discussion between the trial court and counsel during trial. As described in the declaration, the trial court called counsel to sidebar after Breanna testified and before Bradburn had rested her case or Busch had presented any evidence. According to the declaration, the trial court explained that it "believes that mutual restraining orders should be issued," and it "expressed an intent to enter a mutual order in the instant case."^[4]Busch's attorney also declared that when the trial court cut short Busch's testimony, he had planned to further question Busch and he had intended to call another witness who could offer testimony about what happened during the gas station incident.

The trial court denied the posttrial motions.

II

DISCUSSION

A. Reversal Is Not Warranted Due to the Trial Court's Curtailment of the Trial Testimony

Busch argues that the injunction should be reversed because the trial court abridged her right to due process by not permitting her to present her entire case at trial. As we will explain, we determine that the argument is without merit.

Section 527.6, subdivision (d) provides that at the hearing for a permanent injunction, "the judge shall receive any testimony that is relevant, and may make an independent inquiry." Thus, section 527.6 sets forth a procedure "for what is in effect a highly expedited lawsuit on the issue of harassment." (Schraer v. Berkeley Property Owners' Assn. (1989) 207 Cal.App.3d 719, 732 (Schraer).) Although the statute provides that an initial temporary restraining order may be obtained ex parte based on an affidavit ( 527.6, subd. (c)), "the statute requires a more formal procedure for obtaining what approximates a permanent injunction." (Schraer, at p. 732.) In light of the statute's requirement that a trial court "shall receive any testimony that is relevant" ( 527.6, subd. (d)), under most circumstances a trial court must allow the parties to present live testimony before entering a permanent injunction under section 527.6. (See Schraer, at p. 733 & fn. 6 [holding that the trial court erred in refusing to allow parties to present any live testimony, although "a full-fledged evidentiary hearing with oral testimony from all sides may not be necessary in all cases"]; Nora v. Kaddo (2004) 116 Cal.App.4th 1026, 1029 (Nora) [the trial court erred in not allowing parties to present any live testimony].)

Here, the trial court complied with the requirements of section 527.6 because it did allow the parties to present live testimony. In fact, not only did the trial court allow live testimony, it decided on its own initiative to call an additional witness to testify  Loren Bradburn  to elicit the information it needed to make its decision. Thus, this case is not at all similar to Schraer, supra, 207 Cal.App.3d 719, and Nora, supra,116 Cal.App.4th 1026, which held that the trial court erred by disallowing any live testimony. The trial court here permitted a substantial amount of live testimony and, by calling and questioning a witness on its at own initiative, showed that it was relying on that live testimony to reach its decision.

In arguing that the trial court denied her a fair trial, Busch points out that the trial court exhibited some impatience and indicated that it wanted to conduct the proceedings as expeditiously as possible due to its busy calendar. We find no error in the trial court's attempts to make the testimony proceed as efficiently as possible. "A trial court has inherent as well as statutory discretion to control the proceedings to ensure the efficacious administration of justice." (People v. Cox (1991) 53 Cal.3d 618, 700.) In particular, Evidence Code section 765, subdivision (a) provides: "The court shall exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of truth, as may be, and to protect the witness from undue harassment or embarrassment." Further, specifically in the context of the statute at issue here, case law establishes that a trial court may impose "such reasonable limitations as are necessary to conserve the expeditious nature of the harassment procedure set forth by . . . section 527.6." (Schraer, supra, 207 Cal.App.3d at p. 733, fn. 6.)

In this case, the trial court acted well within its discretion to control the proceedings in the interests of efficiency. The trial court did not cut off Busch's testimony until after Busch had offered some testimony about all of the central incidents at issue: the incident at the high school, the incident at the shopping center, and the incident at the gas station. In addition, when the trial court indicated that it wanted to cut off Busch's testimony, Busch's attorney did not object and did not indicate that he had other relevant information that he wished to elicit from Busch or any other witness. Although Busch claims on appeal that her attorney was planning to call an additional witness after she testified, no such objection was made to the trial court. Under these circumstances, the trial court acted reasonably and within its discretion to terminate Busch's testimony and deliver its ruling based on the evidence before it.

Further, because Busch failed to make an offer of proof to the trial court concerning what other evidence she would have presented had the trial court allowed it, Busch cannot argue that the trial court prejudicially erred by preventing her from offering additional evidence. (Evid. Code,  354.) "In general, a judgment may not be reversed for the erroneous exclusion of evidence unless 'the substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means.' " (People v. Anderson (2001) 25 Cal.4th 543, 580 [quoting Evid. Code,  354, subd. (a)].) "This rule is necessary because, among other things, the reviewing court must know the substance of the excluded evidence in order to assess prejudice." (Anderson, at p. 580.) Because the record contains no information about what other evidence the trial court might have heard if it did not cut short Busch's testimony, Busch cannot establish that any prejudice resulted from any alleged trial court error, and thus cannot obtain a reversal on that basis.^[5](See People v. Espinoza (2002) 95 Cal.App.4th 1287, 1304 [rejecting contention that the trial court improperly prevented a witness from testifying because the record neither disclosed that trial counsel sought to introduce the witness's testimony nor that the trial court excluded the witness's testimony].)

B. Substantial Evidence Supports the Trial Court's Ruling

We next consider Busch's argument that the record does not support a finding of the elements necessary to issue an injunction under section 527.6.

In assessing Busch's argument, we apply a substantial evidence standard of review. (See Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.) "In assessing whether substantial evidence supports the requisite elements of willful harassment, as defined in . . . 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, at p. 762.)

Under section 527.6, subdivision (d), an injunction prohibiting harassment may issue if "the judge finds by clear and convincing evidence that unlawful harassment exists."^[6]The statute 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).)

" 'Credible threat of violence' " means "a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose." ( 527.6, subd. (b)(2).)

"Course of conduct" means "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).) Further, "[t]he 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).)

Busch first argues that "[t]here was no evidence presented that [Bradburn] was the victim of unlawful violence. Equally, no evidence of a '[c]redible threat of violence' against [Bradburn] was introduced." We disagree. Indeed, Busch acknowledges that "[t]he only evidence within that ballpark was [Breanna's] testimony . . . ." As we have explained, Breanna stated in her declaration that Busch blocked her car in the high school parking lot and stated, " 'You, your family, and your little friends better stop stalking me, cuz I know a lot of people, and your guys' time will come, dearie.' " This statement provides substantial evidence of a credible threat of violence because it can reasonably be interpreted as "a knowing and willful statement . . . that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose." ( 527.6, subd. (b)(2).) Indeed, Breanna interpreted it as such, as she was afraid that Busch had arranged for someone to hurt her at school. Thus, we conclude that the trial court's finding of harassment was supported by substantial evidence in the record that Busch made a credible threat of violence.

Busch argues that because she was merely trying to stop the Bradburns from harassing her, the threats she made at the high school served a "legitimate purpose" under the terms of section 527.6, subdivision (b)(2) and thus did not constitute harassment. We reject this argument. Substantial evidence supports a finding that Busch's threat was made out of anger and animosity toward the Bradburn family rather than merely to cause them to cease what Busch perceived as harassing conduct. Further, interpreting section 527.6 to allow a party to resort to threats and intimidation to stop what it perceives to be harassing conduct conflicts with the evident purpose of the statute, which is to give parties a peaceful and legal means to address harassing conduct through an application for an injunction. Busch had already applied for and received an injunction in her favor against Bradburn. The legitimate course for Busch to take was to apply to the authorities to effectuate that injunction, rather than to resort to self-help by making implicitly violent threats.

Busch also argues that the record contains no evidence that Bradburn suffered substantial emotional distress as required by section 527.6, subdivision (b). We reject this argument for two reasons.

First, as we have explained, substantial evidence supports the issuance of the injunction based on Busch's "credible threat of violence" during the incident at the high school. This is an independent basis for a finding of harassment, which is different from a finding of harassment based on a harassing course of conduct. ( 527.6, subd. (b).)

Thus, there is no requirement that the evidence support a finding that Busch engaged in a "course of conduct" that "would cause a reasonable person to suffer substantial emotional distress" and which "actually cause[d] substantial emotional distress to the plaintiff." ( 527.6, subd. (b).)

Second, even if the trial court was required to find that Bradburn suffered substantial emotional distress, the record contains substantial evidence to support such a finding. Importantly, the evidence of substantial emotional distress may be circumstantial, and need not be established through the direct testimony of the plaintiff. (Ensworth, supra, 224 Cal.App.3d at pp. 1110-1111.) Here, the circumstantial evidence was sufficient to support a conclusion that Bradburn suffered substantial emotional distress (1) when her daughter telephoned her while crying as a result of being threatened and terrified during the incident in the parking lot, and (2) when she heard about Busch's threat to the entire Bradburn family, which included Bradburn herself. Any reasonable person would suffer substantial emotional distress under those circumstances, and the incident immediately led Bradburn to take action by filing a petition for an injunction against Busch the day the threat was made, creating an inference that she was substantially affected by the threat.

In sum, we conclude that substantial evidence supports a finding that Busch made a credible threat of violence to Bradburn and her immediate family within the meaning of section 527.6, and thus the trial court properly issued an injunction.

C. The Trial Court Did Not Abuse Its Discretion in Making Its Evidentiary Ruling

During the course of the trial, Busch's attorney moved to strike the statement in Bradburn's declaration that the Bradburns' vehicle was vandalized while they were doing business at the shopping center on the same evening that they encountered Busch there. Busch's attorney argued that the statement should be stricken because there was no evidence that the vandalism was caused by Busch. The trial court denied the motion to strike.

Busch challenges the trial court's evidentiary ruling. We review "for abuse of discretion a decision on admissibility that turns on the relevance of the evidence in question. . . . That is because it so examines the underlying determination as to relevance itself." (See People v. Waidla (2000) 22 Cal.4th 690, 717-718, citations omitted.)
Evidence Code section 210 states: " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." "The test of relevance is whether the evidence tends 'logically, naturally, and by reasonable inference' to establish material facts such as identity, intent, or motive." (People v. Garceau (1993) 6 Cal.4th 140, 177.) "Evidence is relevant when no matter how weak it is it tends to prove a disputed issue." (In re Romeo C. (1995) 33 Cal.App.4th 1838, 1843.) " '[T]he trial court is vested with wide discretion in determining relevance.' " (People v. Sanders (1995) 11 Cal.4th 475, 512.)

Applying those rules here, we conclude that the trial court was well within its discretion to conclude that the existence of vandalism to the Bradburns' vehicle after they encountered Busch at the shopping center was relevant to prove the disputed fact of whether Busch was harassing the Bradburns. Although no direct proof was offered that Busch caused the vandalism, such proof is not necessary to make the fact of the vandalism relevant under the rules of evidence because a trier of fact might reasonably infer such a fact based on the totality of the evidence.^[7]

D. Busch Has Not Established Any Basis to Reverse the Trial Court's Ruling Denying the Motion for a New Trial and the Motion to Set Aside and Vacate the Judgment

Busch also appeals from the trial court's ruling denying her motion for a new trial and her motion to set aside and vacate the judgment and enter a different judgment.

Busch does not offer any additional substantive argument in support of her challenge to these rulings. Instead, without any citation to authority, she briefly asserts that "[t]he legal basis for the decision in this proceeding was incorrect or erroneous, and not consistent with or not supported by the facts . . . ."

We reject this argument on the basis that Busch has not submitted any specific argument or citation to authority in support of her challenge to the trial court's ruling on the posttrial motions. (See People v. Stanley (1995) 10 Cal.4th 764, 793 [appellate court may reject an argument made without citation to authorities].)

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McDONALD, J.

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^[1] Unless otherwise indicated, all statutory references are to the Code of Civil Procedure.

^[2] Busch and the Bradburns are residents of Ramona.

^[3] During the trial, counsel for Busch also moved to strike the portion of Bradburn's declaration describing Busch confronting a friend of one of the Bradburn girls because it was based on a statement made to Bradburn by someone else. The trial court granted the motion.

^[4] Immediately before Busch testified, the trial court made a reference to the sidebar conference, describing its statement at the sidebar conference as a "tentative" ruling: "All right counsel, are you going to call your client or not? My tentative remains, its going to be granted, and it should be mutual." When delivering its ruling, the trial court also referred to the content of the sidebar conference: "I told you at sidebar, the problem with restraining orders is very often if they are not mutual they are used as a shield and a sword, at the same time."

^[5] As part of her challenge to the trial court's handling of the trial testimony, Busch argues that the trial court cut short the testimony because it had prejudged the case. Based on our review of the record, we reject Busch's argument. As we have explained, the trial court heard testimony from both sides, subject to its discretion to control the efficiency of the proceedings. Further, as we will explain, substantial evidence in the record supports the trial court's issuance of the injunction. Under these circumstances, Busch has failed to establish that the trial court's decision was impermissibly based on any prejudgment as to the proper outcome of the case.

^[6] Although Busch's appellate briefing emphasizes that the trial court was required to find harassment by clear and convincing evidence, we note that the standard of proof at trial does not influence our review on appeal. "Where the trial court has determined that a party has met the 'clear and convincing' burden, that heavy evidentiary standard then disappears. 'On appeal, the usual rule of conflicting evidence is applied, giving full effect to the respondent's evidence, however slight, and disregarding appellant's evidence, however strong.' " (Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1111, fn. 2 (Ensworth).)

^[7] Busch also takes issue with the statement in Bradburn's declaration that "I receive phone calls all hours of the day and night  people calling me names." Busch argues that there is no proof that she was the person who made the telephone calls. We reject this argument to the extent it attempts to challenge the admissibility of evidence, because Busch did not object to the evidence at trial. (Evid. Code,  353.) Further, to the extent that Busch is not making an evidentiary objection but is instead arguing that the fact of the phone calls does not support the trial court's ruling, we note that there is no indication that the trial court relied on this fact in making its ruling. Further, as we have explained, substantial evidence supports the trial court's ruling based on other evidence in the record.