Bramlette v. Wilbur

Filed 10/25/06 Bramlette v. Wilbur CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Mono)

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Scott Wilbur appeals from a civil harassment protective order issued against him in favor of William Bramlette and others. Wilbur contends that the trial judge (1) erred in refusing Wilbur’s request to continue the trial, (2) incorrectly denied his “right to offer relevant evidence,” (3) wrongly refused Wilbur’s request to recall a witness, (4) and should have recused himself from conducting the hearing. As we will explain, these contentions lack merit. Thus, we shall affirm the order.

FACTS AND PROCEDURAL BACKGROUND

We summarize the facts in the light most favorable to the judgment. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 787.)

Bramlette owns property in the area of Benton Hot Springs. Bramlette and his wife, Diane Henderson, operate a bed and breakfast facility there. They also own several rental units on the property, one of which (a mobile/manufactured home) they had rented to Wilbur since 2002. Bramlette and Henderson socialized with Wilbur and his girlfriend, who also lived in the rental.

Wilbur told Bramlette that he suffered from bipolar disorder and lived on a disability allowance.

In April 2005, Bramlette and Henderson decided they wanted Wilbur’s rental for the use of their friends and family. Thus, Henderson told Wilbur that he and his girlfriend would have to leave before September 2005.

In or about July 2005, after Wilbur’s girlfriend moved out and served Wilbur with a restraining order, his behavior toward Bramlette and Henderson deteriorated. He began imposing himself on them, demanding their help, threatening them and others, and exhibiting extremely angry and irrational behaviors. For example, when Bramlette declined Wilbur’s demand that Bramlette drive him to another town “right away,” Wilbur inexplicably started yelling “you can tell your grand jury buddies and that fucking Mono County Judge Ed that I’m going to take them down.” On another occasion, Wilbur blamed Bramlette for his girlfriend’s departure, and said he “had ways of taking care of situations and people that crossed him, and he would get even with [the Bramlettes] for all of this.”

Wilbur intruded on Bramlette’s property while Bramlette and Henderson were in the hot tub, even after they asked him not to; he continued to approach Henderson at the bed and breakfast after Bramlette asked him not to; he insulted and cursed at Bramlette; and he waited for Bramlette in the parking lot of his office and yelled insults at him.

When he discussed with Henderson the restraining order his former girlfriend had sought against him, Wilbur looked “fairly scary and very intimidating” and said: “If I want to kill someone I would not use a gun. I have a clean, quick, and quiet method to get rid of someone. . . . Do you understand what I mean[?]” Henderson understood Wilbur to be saying “that he could do this to [her].” Two days later, Henderson declined Wilbur’s invitation to “come out to the car and see what I have to kill people with.”

Finally, Wilbur approached Henderson at the bed and breakfast facility while she was speaking on the telephone with an employee. Henderson remained on the telephone while she asked Wilbur to leave and began to shut the door. But he used his foot to keep it open and told her “[j]ust remember if I wanted you dead, you would be dead.”

The next day, Bramlette sought an injunction to prohibit Wilbur from harassing Bramlette or Henderson. The trial court issued temporary restraining orders pending a hearing on the petition.

In his answer to the petition, Wilbur denied he had done anything other than “point[] out” emphatically to Bramlette that he does not “know how to conduct landlord/tenant business properly and legally.” Wilbur denied posing any threat to Bramlette or Henderson, and denied that they could have suffered any emotional distress from his actions because they “own more firearms than our president, while I own none.”

At the hearing on the petition, Henderson testified about her final confrontation with Wilbur. After she told him several times, “Please leave. You are not to be here,” he said to her, “You need to remember, you need to act better, and just remember, Diane, if I wanted you dead, you would be dead.” Stating she was afraid of Wilbur, Henderson also testified that he had interrupted guests at the bed and breakfast facility and had refused to leave when asked to do so.

A written statement by Henderson’s employee who overheard Wilbur threaten Henderson was admitted into evidence.

Bramlette’s part-time caretaker, Robert Schmidt, testified that soon after Wilbur’s confrontation with Henderson, Wilbur came up to Schmidt and accused him of trespassing too close to Wilbur’s rental. When Schmidt did not leave, Wilbur approached Schmidt with a stun gun, thrust it in the open driver’s window, and said: “When I hold this to your arm long enough you will stop breathing.”

A neighbor and friend of Wilbur’s, Stephen Fritz, testified Wilbur told him that, even after the Bramlettes helped Wilbur move his belongings out of the rental, Wilbur did not intend to leave his rental “easy,” stating: “I am going to make it as hard on the Bramlettes as possible” and “am not going to give the place up.”

Wilbur represented himself at trial, but declined to testify and called no witnesses.

Finding Wilbur “seem[s] to have a habit of intimidating people with veiled threats on their lives,” the trial court announced it “ha[d]n’t seen a case yet that’s more appropriate for the issuance of a restraining order.” It ordered the restraining order to remain in place for three years, and added witnesses Robert Schmidt and Stephen Fritz to the list of protected persons.

DISCUSSION

I

When the matter was called for hearing, Wilbur asked for a continuance in order to conduct “the process of discovery“ by interviewing the individuals on Bramlette’s witness list. The trial court denied his request, stating: “This is a fairly summary proceeding on short time frames, and I don’t think that that’s appropriate.”

Wilbur contends that the trial court “erred in disallowing [his request for a] continuance.”

A trial court had broad discretion whether to grant a motion for a continuance. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1321.) Of course, that discretion must be exercised in conformity with the applicable law. (See People v. Grant (1988) 45 Cal.3d 829, 844.)

Code of Civil Procedure section 527.6 provides in pertinent part:

“(a) 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.

“(b) 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. . . .

“(c) Upon filing a petition for an injunction under this section, the plaintiff may obtain a temporary restraining order in accordance with Section 527, except to the extent this section provides a rule that is inconsistent. A temporary restraining order may be issued with or without notice upon an affidavit that, to the satisfaction of the court, shows reasonable proof of harassment of the plaintiff by the defendant, and that great or irreparable harm would result to the plaintiff. In the discretion of the court, and on a showing of good cause, a temporary restraining order or injunction issued under this section may include other named family or household members who reside with the plaintiff. A temporary restraining order issued under this section shall remain in effect, at the court’s discretion, for a period not to exceed 15 days, or, if the court extends the time for hearing under subdivision (d), not to exceed 22 days, unless otherwise modified or terminated by the court.

“(d) 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. If the judge finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment. An injunction issued pursuant to this section shall have a duration of not more than three years. At any time within the three months before the expiration of the injunction, the plaintiff may apply for a renewal of the injunction by filing a new petition for an injunction under this section.” (Further section references are to the Code of Civil Procedure.)

Thus, section 527.6 establishes a special procedure intended to provide expedited injunctive relief to persons who have suffered civil harassment. (Byers v. Cathcart (1997) 57 Cal.App.4th 805, 811.) The statute is designed to adjudicate claims of harassment in an expedited fashion, normally on a schedule lasting no more than 22 days from start to finish. (§ 527.6; see Thomas v. Quintero (2005) 126 Cal.App.4th 635, 649.)

Section 527.6, subdivision (d) requires the court to “receive any testimony that is relevant” at the hearing; however, “[t]here is no provision under section 527.6 allowing for discovery, and in any case, under the civil harassment scheme there is insufficient time in which to conduct discovery.” (Thomas v. Quintero, supra, 126 Cal.App.4th at p. 650, fn. 11; see generally Byers v. Cathcart, supra, 57 Cal.App.4th at pp. 811-812.)

Having correctly recognized discovery is not contemplated by the “summary proceeding” established by the civil harassment statute, the trial court properly denied Wilbur’s request for a continuance for the purpose of conducting discovery.

II

Wilbur’s brief contains an argument heading asserting that the trial court “erred in denying the right to offer relevant evidence.” The contention fails because Wilbur does not identify any evidence that was disallowed. (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647 [a point asserted without a specific claim of error is deemed without foundation and requires no discussion by the reviewing court].)

III

Wilbur conducted a brief cross-examination of Henderson while she testified at the hearing. When Wilbur announced his cross-examination had ended, and the next witness was called to testify, the trial court noted that Henderson no longer had to be excluded from observing the proceedings. Stating that he “may have further questions” for Henderson, Wilbur then sought to “reserve the right to recross” her. Wilbur explained that he had not addressed a portion of the declaration Henderson had submitted in support of the petition for a restraining order. The court denied the request to “reserve the right to recross” Henderson, and ruled she could remain in the courtroom for the remainder of the proceeding.

Wilbur now insists that he was “making [a] request to recall Ms. Henderson at a later time” (Evid. Code, §§ 778, 774 [a party’s ability to recall a witness is subject to the court’s discretion]) and that the trial court abused its discretion in not allowing Wilbur to do so.

The problem for Wilbur is that he did not ask to “recall” Henderson; he asked to “recross” her. Because there was no redirect examination, no recross-examination would have been appropriate.

In any event, even if Wilbur’s request was to recall Henderson for further examination about (1) Wilbur’s statement to her that “if I wanted you dead, you would be dead,” or (2) the effect the statement had upon Henderson’s emotional state, it was well within the trial court’s discretion to deny the request. This is so because these were the subjects of Henderson’s direct testimony, and Wilbur had ample opportunity to cross-examine her about them.

IV

After the evidentiary portion of the hearing was complete and the trial judge had announced his ruling in favor of Bramlette, the following exchange took place:

“MR. WILBUR: Do you know Mr. Bramlette personally?

“THE COURT: I am not going to answer that question. Of course I know Mr. Bramlette personally.

“MR. WILBUR: How long have you known him?

“THE COURT: I don’t know the length of time, but I am not going to answer any more of your questions.

“MR. WILBUR: Well, I am just, what I am getting, sir, is that if there was the possibility of possible prejudice here, why did you not recuse yourself?

“THE COURT: I don’t feel there was any possibility of prejudice.

“MR. WILBUR: You have that right, sir. . . .”

Wilbur contends the trial judge erred in not recusing himself from deciding the matter. (Citing § 170.1, subd. (a)(6)(A)(iii) [a judge shall be disqualified if “[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial”].)

The contention fails because it is not cognizable on appeal. (§ 170.3, subd. (d) [“The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought within 10 days of notice to the parties of the decision and only by the parties to the proceeding”].) California’s Supreme Court has repeatedly held section 170.3, subdivision (d) provides the exclusive means for seeking review of a ruling on a challenge to a judge, whether it is for cause (under section 170.1) or peremptory (under section 170.6). (E.g., People v. Panah (2005) 35 Cal.4th 395, 444, and cases cited therein.) Even though Wilbur has represented himself in this proceeding, he is not excused from complying with the aforesaid rule. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247 [a party representing himself is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants and attorneys].)

DISPOSITION

The civil harassment protective order is affirmed.

SCOTLAND , P.J.

We concur:

DAVIS , J.

HULL , J.

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