>Gamboa v.
Molina

 

 

 

 

 

 

 

 

 

 

 

 

 

Filed 9/3/13  Gamboa v.
Molina CA2/8

 

 

 

 

 

 

NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND
APPELLATE DISTRICT

 

DIVISION
EIGHT

 

 
>

RAUL GAMBOA,               Plaintiff and Appellant,               v.   PEDRO ANASTACIO MOLINA,               Defendant and Respondent.

B244650         (Los Angeles County       Super. Ct. No. BS 139426)

 

            APPEAL from
orders of the Superior Court for the County
of Los
Angeles.  Mark Luevano,
Temporary Judge, and Carol Boas Goodson, Judge. 
Affirmed.

 

            Raul
Gamboa, in pro. per., for Plaintiff and Appellant.

 

            Pedro
Anastacio Molina, in pro. per., for Defendant and Respondent.

 

 

 

____________________________________

>SUMMARY

            Plaintiff Raul Gamboa appeals from orders denying his
request for a civil harassment restraining
order against defendant Pedro Anastacio Molina, plaintiff’s brother-in-law,
and denying his motion for reconsideration. 
We affirm the orders. 

FACTS

            On September 19, 2012, plaintiff filed a
request for a civil harassment restraining order against defendant.  Plaintiff alleged a three-year “pattern &
practice of harassment & intimidation,” with the most recent harassment
being defendant’s July 2, 2012 request for a temporary restraining order (TRO)
against plaintiff, a request that was denied. 
The alleged harassment began in late 2008, after plaintiff began the
process of evicting defendant and his wife, plaintiff’s sister, from the
premises where they resided, near plaintiff’s home. 

Plaintiff sought, in addition to
stay-away orders, an order that defendant “[m]ay not file any[] [c]laim
accusing [plaintiff and family members] of wrong doing with any public or
private entity including:  employers;
social medium without notifying the Court within the next business [day] of
your actions & providing a copy of this Order to the entity/agency.”  Plaintiff sought an immediate order “that the
office of L.A. District Attorney, Child Protective Services & Law
Enforcement be notified of this order.”

Plaintiff’s description of the
alleged harassment recited events occurring from September 2008 through July 2012.  These included:  (1) a report of child abuse and neglect by
plaintiff and his wife in September 2008, by an anonymous caller (allegedly
defendant), concluded as unfounded; (2) an office hearing before the district
attorney on September 30, 2008, based on charges by defendant’s wife that
plaintiff committed a battery (dismissed by the district attorney); (3) a
criminal misdemeanor proceeding that began in December 2008, in which defendant
complained that plaintiff brandished a weapon and made criminal threats;
plaintiff was found not guilty in August 2010, and his petition to seal and
destroy the arrest records under Penal Code section 851.8 was granted in August
2011; (4) a notification from the Department of Fair Employment and Housing in
June 2009 of the closure of a discrimination complaint defendant and his wife
made against plaintiff and his wife after plaintiff evicted defendant; and (5)
the closure in October 2010 by the Department of Children and Family Services
of another allegation of abuse and neglect of plaintiff’s children, with a
finding that the allegation was false. 

A criminal protective order
restraining plaintiff during the criminal trial was issued in January 2009 and
terminated on August 26, 2010.  Also
during the criminal proceeding, more claims were made by defendant of criminal
threats made by plaintiff, prompting the district attorney to seek to take
plaintiff into custody in October 2009; these claims were not proved.  In March 2009, plaintiff’s son reported a
death threat against him made by an unknown person.  Plaintiff asserted (in this proceeding) the
lug nuts on his tire were loosened in November 2009 (and again in July
2011).  Plaintiff submitted a letter
dated April 8, 2011, from Foothill Family Service, stating his daughter was
being treated for various behavioral and mental health symptoms, which “should
have a lot to do with her experiences at home when there were a lot of dramas
going on due to [defendant] making complaints about her father and calling the
police causing police to come frequently to her house and stressing her
out.”  On January 30, 2012, plaintiff
reported to police a phone call from a person whose voice he did not recognize,
telling him “we know how to get you in problems,” and “we know you have
guns.”   

Finally, on July 2, 2012, defendant
requested a domestic violence
restraining order against plaintiff, saying that on June 30, 2012, plaintiff
drove by his house and pointed something at him “as if he was going to shoot
me,” but defendant could not see what it was. 
Defendant asserted that plaintiff had threatened numerous times to kill
him, and defendant was afraid plaintiff would carry out his threats.  After a contested hearing on July 19, 2012,
with testimony from plaintiff, defendant and defendant’s wife, the court denied
the request for restraining orders, finding defendant failed to carry his
burden of proof that plaintiff had committed or threatened domestic violence or
equivalent conduct.

Two months later, plaintiff filed
the request for civil harassment restraining orders against defendant, as we
have just described.  (Plaintiff tried to
file his civil harassment petition in Pomona in mid-August, but the filing clerk
informed him he had to file in Pasadena, where plaintiff resided.  When he tried to file in Pasadena, a clerk
informed him he could not file the action against a relative and would be
required to file for a domestic violence restraining order.  He did so, but sought further advice, and
then filed the current action at the Stanley Mosk courthouse.)

On October 11, 2012, after a
contested hearing before Temporary Judge Mark Luevano, the court denied
plaintiff’s request.

There is no transcript of the
contested hearing at which the court denied plaintiff’s request for a civil
harassment restraining order.  In a
motion for reconsideration plaintiff filed on October 23, 2012, plaintiff
states the court informed plaintiff that the acts he described “did not rise to
a basis for harm to Plaintiff by which he could seek relief though granting of
a restraining order”; that the filing of court actions against plaintiff by
defendant “did not constitute a basis for action by Plaintiff”; and that “any
acts . . . by [defendant] resulting in [plaintiff’s] daughter[’s] harm while
unfortunate did not meet the requirements for issuance of a Restraining
Order.” 

Plaintiff filed a notice of appeal
on October 17, 2012.  His motion for
reconsideration was argued and denied on November 28, 2012, the court (Judge
Carol Boas Goodson) finding plaintiff had not presented any new facts.

DISCUSSION

Code of Civil Procedure section 527.6 (section 527.6) authorizes a person
who has suffered harassment to seek an injunction prohibiting harassment.  (§ 527.6, subd. (a)(1).)  “Section 527.6 was enacted ‘to protect
the individual’s right to pursue safety, happiness and privacy as guaranteed by
the California Constitution.’ 
[Citations.]  It does so by providing
expedited injunctive relief to victims of harassment.”  (Brekke
v. Wills (2005) 125 Cal.App.4th 1400, 1412.)

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 petitioner.” 
(§ 527.6, subd. (b)(3).)  An
injunction “shall issue prohibiting the harassment” if the court finds “by
clear and convincing evidence that unlawful harassment exists . . . .”  (§ 527.6, subd. (i).)

Section 527.6 defines a “course of
conduct” 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,
facsimile, or computer email.”  (§ 527.6,
subd. (b)(1).)  However,
“[c]onstitutionally protected activity is not included within the meaning of
‘course of conduct.’”  (>Ibid.) 


Generally, the standard of review
for an order denying injunctive relief is abuse of discretion.  (See Bookout
v. Nielsen (2007) 155 Cal.App.4th 1131, 1137 [citing authority concluding
that “issuance or failure to issue a protective order under the DVPA [(Domestic
Violence Prevention Act, Fam. Code, § 6200 et seq.)] is reviewed for abuse of
discretion”; “injunctions issued under Code of Civil Procedure section[] 527.6
. . . , which prohibit[s] civil harassment, are reviewed to determine whether
the necessary factual findings are supported by substantial evidence”].)

Plaintiff makes several arguments.

First, plaintiff contends the trial
court abused its discretion by applying a standard applicable to domestic
violence matters (ongoing acts of violence) rather than the standard for
section 527.6 civil harassment “resulting in intentional infliction of
emotional harm and economic loss.” 
Plaintiff says the hearing was “short and abbreviated”; the court
informed him “it had reviewed the record submitted and that there were no
current acts of violence that would allow the Court to issue a TRO to prevent
any acts of violence”; and the court “failed to take into account” that
plaintiff was asking the court “to restrain defendant from continuing to drag
him into court costing him money and lost wages and aggravating causing [>sic] a relapse in his daughter[’s]
depression for which she was back on medication as a direct result of
Defendant’s request for TRO on July 19, 2012.” 
Plaintiff also asserts defendant was “a vexatious litigant” and
“harassed [plaintiff] by means of abuse of process,” and so plaintiff should
have been allowed to proceed with his claim.

But plaintiff’s brief itself shows
the court reviewed the record and was fully cognizant of the nature of
plaintiff’s claims.  Plaintiff’s brief
and motion for reconsideration indicate the court told plaintiff the conduct he
described “did not rise to a basis for harm to Plaintiff by which he could seek
relief through granting of a Restraining Order”; the filing of court actions
against plaintiff “did not constitute a basis for action by Plaintiff”; and
“any acts . . . by [defendant] resulting in [plaintiff’s] daughter[’s] harm
while unfortunate did not meet the requirements for issuance of a Restraining
Order.”

We cannot say the trial court
abused its discretion.  Most of the
conduct plaintiff alleged involves “constitutionally protected activity,”
namely, defendant’s right to petition government authorities for redress of
grievances.  Section 527.6 excludes
constitutionally protected activity from the definition of a course of conduct
constituting harassment: 
“Constitutionally protected activity is not included within the meaning
of ‘course of conduct.’”  (§ 527.6, subd.
(b)(1).)  As for the other conduct
plaintiff alleged, the most recent was plaintiff’s report to the police of the
telephone threat on January 30, 2012, from a person whose voice plaintiff did
not recognize, so the court correctly concluded there were no current acts of
violence to justify a restraining order. 
And, while there may be other modes of redress for the vexatious filing
of baseless claims and misuse of the courts (see, e.g., Code Civ. Proc., § 391
et seq.), the civil harassment statute does not provide such redress. 

Second, plaintiff challenges the denial
of his motion for reconsideration.  But,
as the trial court concluded, plaintiff bases his claim on the same facts he
presented to the trial court in the first instance, and a motion for
reconsideration must be “based upon new or different facts, circumstances, or
law . . . .”  (Code Civ. Proc., § 1008,
subd. (a); see New York Times Co. v.
Superior Court (2005) 135 Cal.App.4th 206, 208.) 

Third, in the “conclusion” part of
his brief, plaintiff contends his due process rights were violated when he was
denied his right to file his request for civil harassment restraining orders in
Pomona, and when the Pasadena clerk refused to accept his filing.  (Plaintiff wanted to file at the Pomona
courthouse because a hearing officer there had heard and ruled on defendant’s
July 2, 2012 petition against plaintiff and was familiar with the parties, the
history and the records.)  The only legal
authority plaintiff cites is the Los Angeles County Superior Court form, under
Local Rules, rule 2.0, that indicates a civil harassment petition may properly
be filed where the cause of action arose or where one or more of the parties
reside.  (LACIV 109 (rev. 03/11).)  But a civil harassment petition may also be
filed “in central”; the presiding judge is authorized to apportion the business
of the court (Cal. Rules of Court, rule 10.603(b)(1)(B)); and in any event the
fact that a matter is heard in a courtroom other than the one preferred by a
litigant does not violate the litigant’s right to href="http://www.mcmillanlaw.com/">due process of law.

DISPOSITION

            The orders
are affirmed.

 

                                                                                                GRIMES,
J.

 

            We concur:

 

                                    BIGELOW,
P. J.                                           

 

 

RUBIN, J.