Filed 11/15/18 Hakimian v. Beasley CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Donna L. Connally, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Bijan Hakimian, in pro. per., for Plaintiff and Appellant.

Gresham, Savage, Nolan & Tilden and Jonathan E. Shardlow for Defendants and Respondents.

I. INTRODUCTION

Plaintiff and appellant, Bijan Hakimian, appeals from the May 5, 2016, orders denying his requests for civil harassment restraining orders against his neighbors, defendants and respondents, Rex Beasley and Ellen Miranda Berkowitz. (Code Civ. Proc., § 527.6.)[1] We affirm the orders denying the requests.

As we explain, plaintiff improperly sought to adjudicate a real property dispute between himself and defendants by way of his requests for the civil harassment restraining orders. He claimed he had an historical easement over an old roadway that crossed defendants’ property in order to access his property, and he sought to enjoin defendants from destroying or otherwise interfering with his and others’ use of the old roadway. Defendants had blocked the old roadway and built a new roadway for plaintiff and others to use, but plaintiff was unsatisfied with the new roadway because he believed it was on lower ground and was prone to flooding because it was near a creek.

Regarding civil harassment, plaintiff alleged and later testified that Beasley once threatened to shoot plaintiff if plaintiff unblocked the old roadway and trespassed on defendants’ property. In denying plaintiff’s requests, the court ruled that plaintiff had not shown that Beasley had made a credible threat or had engaged in a course of conduct which had caused plaintiff substantial emotional distress, and also noted there was no evidence that Berkowitz had ever threatened or harassed plaintiff. (§ 527.6.) Thus, the court denied plaintiff’s requests, discharged temporary restraining orders (TRO’s) it had issued against defendants, and awarded attorney fees to each defendant as the prevailing parties on plaintiff’s requests.

In this appeal, plaintiff claims the court erroneously failed to obtain authorization from the court’s superiors at the superior court to adjudicate the real property dispute in the civil harassment proceeding. As we explain, this claim is utterly without merit. The court did not have subject matter jurisdiction to adjudicate plaintiff’s roadway easement claim in the civil harassment proceeding, and could not have obtained subject matter jurisdiction to adjudicate that dispute from anyone at the superior court. (Byers v. Cathcart (1997) 57 Cal.App.4th 805, 810-812.)

In related arguments, plaintiff claims the court’s dissolution of the TRO’s and the attorney fee awards were “premature,” given that his easement claim was inseparable from his “ancillary” harassment claim, and for that reason the court had a duty not to dissolve the TRO’s or award defendants attorney fees before the court acquired jurisdiction to adjudicate the easement claim or transferred the case to a court with jurisdiction to adjudicate the easement claim.

These claims also lack merit. The TRO’s were properly dissolved and attorney fees were properly awarded to defendants as the prevailing parties. Lastly, to the extent plaintiff may argue the court abused its discretion in refusing to issue civil harassment restraining orders against either defendant, we find no abuse of discretion.

II. ADDITIONAL BACKGROUND

On April 11, 2016, plaintiff filed separate but substantially identical requests for civil harassment restraining orders against Beasley in case No. CIVMS1600054 and against Berkowitz in case No. CIVMS1600055. In each request, plaintiff claimed “Berkowitz took our rightful road, with the assistance of her alleged [h]usband [Beasley].”

Plaintiff attached numerous documents to his requests and later filed additional documents—all variously concerning the history of the Morongo Valley area where the parties’ properties are located, plaintiff’s easement claim over the old roadway, the location of the new roadway, defendants’ reasons for replacing the old roadway (it was unsafe and prone to failure in rainstorms), and correspondence concerning plaintiff’s claims and the parties’ efforts to resolve the dispute.

At an ex parte hearing on April 13, 2016, the court issued the TRO’s, restraining defendants from (1) taking further action to remove the old roadway, (2) prohibiting plaintiff from using the old roadway, and (3) ordering defendants to stay away from plaintiff.[2] On April 25, plaintiff filed amended requests for civil harassment restraining orders, substantially identical to his original requests asking the court to adjudicate his

easement claim. Meanwhile, on April 22, each defendant filed a response to plaintiff’s requests.[3]

At an April 28 hearing, the court advised the parties that plaintiff’s easement claim was beyond the scope of the civil harassment proceeding; the court did not believe it had authority to adjudicate the easement claim; and the court had asked the supervising judge of the superior court whether the court could adjudicate the easement claim or the easement claim had to be “moved and a civil lawsuit filed.” The court also told the parties it did not yet have an answer from the presiding judge about what the court should do with plaintiff’s easement claim, and for that reason the court was inclined to keep the TRO’s in place and continue the hearing.[4]

Addressing plaintiff at the April 28 hearing, the court made it clear that, before the May 5 hearing, the court was either going to “get word that this thing entirely needs to go someplace else and if I know that in advance, I will attempt to notify both parties, but we’re going to hear just the evidence on the stay-away order. I’m not making any decisions about roads and walls and property boundaries. Do you understand that?” Plaintiff responded that he did. The court then further advised plaintiff that the court was “not going to decide” whether defendants did or did not “take your road. . . . That’s not an appropriate question for a civil harassment restraining order.” The court also told plaintiff: “[Y]ou have to put on your evidence. You have to [show] why I should continue the orders I made.”

On May 5, the court conducted a full hearing and denied plaintiff’s requests in their entirety without adjudicating plaintiff’s easement claim. At the outset of the May 5 hearing, the court said: “I am here to determine only about harm, threats of harm, that were made or at least that are alleged. And whether or not those [threats] were made and [whether] temporary orders that are still in place, should be made permanent or should be done away with.” When the court asked whether that was clear, plaintiff asked to call his first witness.

Plaintiff asked to call Richard Pierce, a previous owner of plaintiff’s property, and made an offer of proof that Pierce would testify that Beasley threatened to shoot Pierce after Pierce told Beasley that Pierce was going to get a bulldozer and remove a fence that was blocking the old roadway. The court sustained defendants’ relevancy objection to Pierce’s testimony, ruling it would not be relevant unless plaintiff could show plaintiff was also threatened.

Plaintiff then testified. When he began to explain something Pierce had told him, the court sustained defense counsel’s hearsay and relevancy objections. Plaintiff then testified that, during early 2015, Beasley told plaintiff that he, plaintiff, would also “get shot” if plaintiff used the old roadway or came onto defendants’ property. After that incident, plaintiff testified he did not want to talk to Beasley and did not discuss anything with Beasley again. Plaintiff testified that Berkowitz then began “talking” to plaintiff and “e-mailing” him, but plaintiff was not satisfied with Berkowitz’s proposal to resolve his easement claim by his agreement to accept the new roadway in place of the old roadway.

The court directed plaintiff to focus on threats of harm, if any, by defendants. Plaintiff responded, “there is a very strong likelihood of silent threat,” because Beasley had threatened to shoot plaintiff, and because Berkowitz had threatened to sue plaintiff if he did not agree to resolve his easement claim by accepting the new roadway. Regarding Berkowitz, plaintiff argued, “So, her action is infliction of harm on me psychologically, mentally, physically because I can’t go to my property” in the event of a rainstorm which would flood the new roadway.

Plaintiff then explained he wanted the court to issue a “preliminary injunction to get [his] road that was there over a hundred years, to use it. And she [Berkowitz] does not harass me and [Beasley] doesn’t harass me, doesn’t talk to me.” Plaintiff claimed he had proved he had a prescriptive easement or an easement by implication. When asked whether he wanted to add anything or had any other testimony to offer, plaintiff responded that he needed “protection” from defendants.

After plaintiff presented his case, defense counsel told the court he would be happy to cross-examine plaintiff and present affirmative evidence, but argued plaintiff had failed to prove his civil harassment claim. Counsel argued plaintiff did not say “there was a credible threat of violence” and that plaintiff had not alleged any harassment. Counsel also questioned why plaintiff waited an entire year to bring his requests, and also pointed out that plaintiff had presented no evidence that he could not access his property, because there was no such evidence.

At the conclusion of the May 5 hearing, the court ruled plaintiff failed to prove that Beasley made “a credible threat” against plaintiff or had engaged in a course of conduct which had caused plaintiff substantial emotional distress. (§ 527.6.) The court also noted there was no evidence that Berkowitz had ever threatened or harassed plaintiff. Thus, the court denied plaintiff’s requests in their entirety, dissolved the TRO’s, and awarded each defendant $4,608 in attorney fees as the prevailing parties. The court later denied plaintiff’s motion for a new trial and awarded each defendant an additional $1,440 in attorney fees for opposing the new trial motion, bringing the total attorney fee awards to $6,048 for each defendant. Plaintiff appeals all of these orders.

III. DISCUSSION

Plaintiff claims the court in the civil harassment proceeding erroneously denied his requests for civil harassment restraining orders against defendants, prematurely dissolved the TRO’s, and prematurely awarded defendants their attorney fees as prevailing parties because it took these actions without obtaining authority from the presiding judge of the court to either (1) adjudicate his easement claim in the civil harassment proceeding, or (2) transfer the matter to another department of the court with jurisdiction to adjudicate his easement claim. As we have noted, these claims are completely without merit.

“Section 527.6 was enacted to provide an expedited procedure for preventing ‘harassment’ as defined.” (Byers v. Cathcart, supra, 57 Cal.App.4th at p. 811.) “Nothing in the statute indicates that it was intended to supplant normal injunctive procedures applicable to cases concerning issues other than ‘harassment’ . . . .” (Ibid.) The statute’s limitations are self-evident: Any injunction issued pursuant to the statute can be no longer than five years in duration, plus an additional five years upon the renewal application of a party and further court order. (§ 527.6, subd. (j)(1).) Moreover, such injunctions may only enjoin harassment, as defined. (Byers v. Cathcart, supra, at p. 812.)

Thus, a court hearing a request for a civil harassment restraining order, such as plaintiff’s requests, has no subject matter jurisdiction to resolve a real property dispute, such as plaintiff’s easement claim. (Byers v. Cathcart, supra, 57 Cal.App.4th at pp. 810-812; Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288 [subject matter jurisdiction is the “power [of a court] to hear or determine the case[,]”and “[a] court has no jurisdiction to hear or determine a case where the type of proceeding . . . is beyond the jurisdiction defined for that particular court by statute . . . .” (Italics added.)].)

The court in this case thus had no subject matter jurisdiction or power to hear and adjudicate plaintiff’s easement claim. Nor could the court have obtained such authority or jurisdiction from the presiding judge of the superior court, because the scope of the court’s jurisdiction in the civil harassment proceeding was limited by section 527.6, and the presiding judge had no authority to expand that statutory jurisdiction.

Thus, plaintiff’s claims that the court erroneously (1) denied his requests for civil harassment restraining orders, (2) prematurely dissolved the TRO’s, and (3) prematurely awarded defendants their attorney fees, without first obtaining permission from the presiding judge to adjudicate his easement claims, completely lack merit. The court also lacked authority to transfer the matter to another department of the superior court to adjudicate plaintiff’s easement claim. Plaintiff simply sought to adjudicate his easement claim in the wrong court and in the wrong type of proceeding. It was plaintiff’s duty to file a civil action on his easement claim, if he desired to adjudicate that claim.[5]

Plaintiff does not challenge the substance of the court’s orders denying his requests for civil harassment restraining orders, but to the extent he may do so we find no abuse of discretion. A court may not issue a civil harassment restraining order unless (1) it finds by clear and convincing evidence that harassment has already occurred (Schraer v. Berkeley Property Owners’ Assn. (1989) 207 Cal.App.3d 719, 733) and (2) the harassment is likely to recur—that is, unless there is a threat of future harm (Russell v. Douvan (2003) 112 Cal.App.4th 399, 400-401). The clear and convincing evidence standard requires a finding of a “‘high probability.’” (Id. at p. 401.) Thus, it is error to issue a civil harassment restraining order based on a single incident or threat of violence—absent clear and convincing evidence of a threat of future harm. (Ibid.)

Section 527.6 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)(3).) A “credible threat of violence” is “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.” (Id., subd. (b)(2).)

Plaintiff testified that Beasley once threatened to shoot plaintiff if he trespassed on defendants’ property by using the old roadway. He also offered to prove Beasley had once threatened to shoot Pierce under similar circumstances. In any event, the court found “[t]here is nothing that is a credible threat” and also said it was not convinced that plaintiff was in fear for his safety or his family’s safety, or that Beasley would make any future threats. This was not an abuse of the court’s discretion.

The court reasonably determined that neither defendant posed any threat of future harm to plaintiff or his family. Plaintiff admitted he had not spoken to Beasley since Beasley allegedly threatened to shoot plaintiff around one year before the May 5 hearing. In addition, plaintiff did not allege or attempt to show that Berkowitz had ever threatened plaintiff or anyone else with physical harm. To the contrary, plaintiff admitted that Berkowitz had only threatened to sue plaintiff if the easement dispute could not be resolved. Moreover, the record shows, and the court reasonably concluded, that plaintiff was only seeking civil harassment restraining orders against defendants as an incident to, or a means of enforcing, establishing an easement over, or the right to use, the old roadway.

IV. DISPOSITION

The orders denying plaintiff’s requests for civil harassment restraining orders are affirmed. Defendants shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

MILLER

Acting P. J.

CODRINGTON

J.