Haro v. Rimes

Filed 4/18/07 Haro v. Rimes CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Kenneth G. Ziebarth, Judge. (Retired judge of the San Bernardino Superior Court assigned by the Chief Justice pursuant to art. VI, 6, of the Cal. Const.) Affirmed.

Cathy A. Rimes and Margaret K. McFadden, in pro. per., for Defendants and Appellants.

No appearance for Respondent.

1. Introduction

Appellants Cathy A. Rimes and Margaret K. McFadden appeal from a restraining order entered on March 17, 2006, after the trial court granted Rick Haro and Rosemary Marquez a three-year restraining order to stop appellants from harassing them. Appellants also challenge the trial courts order denying their motion to quash Haros records subpoenas seeking documents reflecting Rimess history of harassing others.

All parties to this action have been in propria persona throughout the proceedings in this matter. Although Haro and Marquez (plaintiffs) participated in the lower court proceedings, they have not responded to appellants appeal. Because no respondents brief has been filed, under rule 8.220(a)(2) of the California Rules of Court (formerly rule 17(a)(2)), . . . the court will decide the appeal on the record, the opening brief, and any oral argument by the appellant. In applying this rule, we examine the record on the basis of appellants brief and . . . reverse only if prejudicial error is found. (Votaw Precision Tool Co. v. Air Canada (1976) 60 Cal.App.3d 52, 55; accord, Carboni v. Arrospide (1991) 2 Cal.App.4th 76, 80, fn. 2.)

Our review is further hampered because appellants, acting in propria persona, have not followed the rules and conventions of appellate procedure. Appellants have failed to provide any citations to the record and the clerks transcript and the record, as designated by appellants, is incomplete. (Cal. Rules of Court, rule 8.204(a)(1)(C) (formerly rule 14(a)(1)(C)).) For instance, the record does not contain Haros underlying harassment petition. The burden of providing a record adequate to support an appeal is upon appellants. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.)

Nevertheless, to the extent we comprehend appellants contentions, we hold the trial court did not abuse its discretion in denying appellants motion to quash and granting plaintiffs a restraining order against appellants. The restraining order is affirmed.

2. Factual and Procedural Background

On February 3, 2006, Rick Haro filed a civil petition against Cathy Rimes and Margaret McFadden. Rosemary Marquez was later added as a petitioner. Since the petition is not included in the clerks transcript, the nature of the petition and relief sought is unclear although it appears from the record that Haro filed a harassment petition seeking a restraining order and injunctive relief against appellants.

At the time Haro filed his harassment petition, Haro, Marquez, Rimes and McFadden lived at the Yucca Trails Apartments, a federally subsidized, single-story housing project. Haros apartment was located across from appellants apartment, which was next to the apartment complex mailboxes. A driveway ran between Haros and appellants apartment units.

On February 7, 2006, the trial court held an ex parte hearing on Haros ex parte request for a temporary restraining order (TRO) against appellants.^[1] The ex parte application is also not contained in the clerks transcript on appeal. During the hearing, Haro complained that Rimes was violating his privacy by peering in his apartment window and continually videotaping Haro.

Haro explained to the court that he and Rimes are neighbors. Rimes had previously told Haro she was not videotaping Haro. Rather, she was videotaping the Hammersleys, who lived in an apartment unit next door to Haro. The Hammersleys later moved away because of Rimes. Haro complained that Rimes was videotaping everyone.

Rimes responded that she did not peer into Haros apartment. She and her daughter, McFadden, walked by his apartment to go to the mailbox. They went late at night to avoid Haro. Rimes believed Haro filed the instant request for a restraining order because she had complained about Haros loud parties. Rimes also said that Haro had neighbors over who called Rimes and her daughter Black ass bitches and said, Youre going to get your [B]lack ass out of here. Rimes claimed she and her daughter could not ride their bicycles around there, could not pay the rent at the office anymore, and could not take a walk. She had a video camera filming from her apartment because of a recent paintball incident and because her car, which she parked in front of her home, was covered in coffee.

Rimes mentioned that there was in effect a restraining order against her and McFadden, prohibiting them from coming within 100 yards of the Hammersleys. The Hammersleys frequently visited Haro, which meant appellants could not use the driveway to go to or from their home because it is within 100 yards of Haros apartment. About six times the police had to accompany Rimes home because of this situation.

Haro complained that he and his wife could not go outside without being videotaped by Rimes. The camera was placed at Rimess front bedroom window. When the court noted it did not have proof of this, Haro stated he had videotaped Rimess camera to prove that Rimes was videotaping him. Rimes acknowledged that she had a video camera in her bedroom, and it was directed at her car in front of her home. She was filming her car to protect it because she feared her car would be damaged. Rimes denied filming Haro.

After listening to Rimes, McFadden, and Haro, the trial court granted Haro a TRO against appellants. The court suggested to Rimes that, at the future hearing on the permanent restraining order, Rimes provide the court with her videotapes showing what she was videotaping in order to refute Haros claims.

Rimes told the court that because her camera was old, it was not Y2K compliant and therefore did not show the filming date. Rimes also told the court that, because of the stress from the ongoing conflict and the subpoenas seeking her records, she was having difficulty sleeping, had high blood pressure, and had to take various medications. Rimes also complained that she was being discriminated against because she was Black.

The trial court stated that it was granting Haro a TRO and advised Rimes that she could not annoy, harass, molest, strike, batter, in any way disturb their [Haro and his familys] peace. You are not allowed to videotape them. The trial court further stated that Rimes was permitted to direct her camera at her car to protect it but could not videotape anyone else. The order was in effect until February 16, 2006, the date of the hearing on the harassment petition (OSC re harassment).

On February 14, 2006, appellants filed an answer to Haros harassment petition.

In February 2006, Hyder & Company and Catrina Sandoval produced various documents in response to Haros subpoenas. Sandoval was the resident manager at Yucca Trails Apartments and custodian of records for WNC Management, Inc. Hyder & Company was the management company for Noble Creek Apartments. Rimes was evicted from Noble Creek Apartments in July 2001 due to harassing other tenants. In the subpoenas, Haro requested Resident Complaint Forms in Cathy Rimes File[] and Court paper work, and documents showing Rimess history of harassment.

On February 16, 2006, the trial court held a hearing on the Haros harassment petition. During the hearing, the trial court received the subpoenaed documents. All the parties appeared at the hearing in propria persona.

Rimes informed the court she was not aware of the subpoenas and stated she was entitled to 10 days notice of the subpoenas for purposes of filing a motion to quash the subpoenas. The court permitted Rimes to review the records and offered to give her a continuance, if needed. Rimes also noted that there was a related federal civil rights matter that had been pending for the last two years.

After reviewing the documents during a recess in the hearing, Rimes objected to not receiving notice of the subpoenas and stated that she would be making a motion to quash due to not receiving proper notice and due to Haro serving the proof of service himself. Rimes also objected to production of the housing complaint because it was a confidential document and therefore the court could not compel it to be produced or used as evidence. Rimes requested a three-week continuance to file her motion to quash the subpoenas.

The court granted the requested continuance, noting that the TRO would remain in effect during the continuance. The court also modified the TRO by eliminating the distance restriction, to enable Rimes to go to and from her apartment. The hearing on Haros harassment petition was continued to March 9, 2006.

On March 1, 2006, appellants filed an ex parte motion to quash the subpoenas and dismiss Haros petition on the grounds the petition was baseless and the summonses were defective. Appellants argued that the court did not have jurisdiction over appellants. Appellants also complained that they were not provided with a copy of the summonses; the supporting affidavit, if any, was defective; proper notice was not provided; and the requested documents were unlawfully produced without notice or consent.

The trial court continued Rimess ex parte motion to quash the subpoenas and dismiss the case, to March 9, 2006, to be heard with the harassment petition. The court noted that appellants motions should not have been brought ex parte.

On March 9, 2006, the trial court denied appellants motion to quash. The court then heard Haros harassment petition. Haro testified that Rimes had a video camera in her front bedroom window and the camera had been there filming for almost two years. Haro provided the court with photos of Rimess camera at the front window. There was also a picture of the carport. Haro stated that Rimes claimed she was filming her car in order to protect it but the camera was facing his apartment rather than the carport area.

Haro further testified that, at a hearing the year before on Hammersleys request for a restraining order against Rimes, Rimes showed the court a video she had taken and testified she was filming Hammersley. The videotape actually showed Haro. Rimess car was not there. Hammersley moved away because of Rimes, as did other tenants. Haro claimed Rimes was still videotaping his apartment. As proof, he recently videotaped Rimes filming his apartment, as opposed to the carport. Haro testified he had also seen videotapes showing that she was videotaping his apartment. Haro requested the court to order the video camera removed because he could not do anything without being filmed.

Frank Hammersley testified on Haros behalf. He stated that when he was living at the apartment complex, he believed Rimes was videotaping his apartment based on the videotape Rimes previously showed to the court. The videotape showed his and Haros apartments, along with the carport. On many occasions, Rimess car was gone when she videotaped their apartments.

Lisa Watson testified that she also lived at the apartment complex, across from Rimess apartment and next to where Hammersley used to live. She could see Rimess camera from where she lived. Watson said she wanted the camera removed.

Bernadette Stevenson testified that she lived where Hammersley used to live. She also had seen Rimess video camera in Rimess window. When Stevenson was invited into Rimess home, she was permitted to look through the camera. Stevenson noticed the camera was pointed toward Stevensons and Haros apartments, as well as at Rimess car. The camera was now located higher up, even though Rimess car is low. Lowering the camera would avoid filming Stevensons and Haros apartments.

Rosemary Marquez, who lived with Haro, stated her testimony would be the same as Haros. She added that, because she feared Rimes, she had to be with Haro all the time. Marquez said the camera should be removed but agreed the problem would be solved if it was pointed down at the car and removed when the car was not there.

Rimes testified that the camera was needed to film her when she left her apartment because her neighbors had been taking her to court and accusing her of yelling at them and calling them names. She had to film whenever she left her apartment in the event her neighbors made false accusations against her in court. The camera also protected her car. Rimes noted she had physical disabilities and suffered from thyroid cancer.

McFadden testified she and her mother, Rimes, had problems with the neighbors since moving in. The neighbors threatened to slash their tires and called them names. Because of Hammersleys restraining order, Rimes and McFadden had to call the police to avoid violating the order. The police suggested Rimes and McFadden use a camera to document what had been occurring.

Rimes submitted as supporting exhibits a declaration and subpoena from Hammersleys domestic violence case and a copy of Rimess restraining order against Hammersley. Rimes claimed the documents were relevant to show racism. Rimes also submitted a map of the apartment complex, a judgment against Hammersley for failing to pay child support, and a warrant for Hammersleys arrest for workmans compensation fraud. In addition, Rimes offered to provide the court with a tape.

After listening to testimony and considering the evidence presented, the trial court stated that it concluded there was no reason for Rimess camera other than to protect her car while parked in the carport. Therefore the court continued the existing restraining order, with the exception of reducing to 10 yards the distance restriction. The court ordered Rimes and McFadden to stay at least 10 yards away from Haros residence and car, other than when going out to pick up the mail. Also, the court ordered Rimes to remove her camera when her car was not in the carport. The restraining order was entered on March 17, 2006.

Appellants appeal the restraining order entered on March 17, 2006.

3. Motion to Quash Subpoenas

Appellants contend the trial court erred in denying their motion to quash. Appellants argue that the evidence produced in response to Haros subpoenas was unlawfully obtained. Although appellants objections to the ruling on their motion to quash and dismiss are difficult to follow, if not incomprehensible, appellants seem to be arguing that the subpoenas should have been quashed and the requested documents suppressed because appellants did not receive proper notice of the subpoenas; the subpoenas were not properly served; the hearing on their motion to quash was unfair; the court was racially biased against them; and the documents generally should not have been produced because they contained confidential and false information.

Appellants claims are unsubstantiated by the record on appeal. In response to Rimess objection that she did not receive proper notice of the subpoenas and wished to file a motion to quash them, the trial court permitted Rimes to review the subpoenas and documents produced. In addition, the court continued the harassment petition hearing three weeks, to March 9, 2006, to allow Rimes to bring a motion to quash. Appellants thus ultimately received sufficient notice of the subpoenas and were given an opportunity to bring a motion to quash, which was heard on March 9, 2006.

There is no evidence in the record that the hearing on the motion to quash was unfair or that the trial court was biased against appellants in any way. The trial court listened to appellants initial arguments, considered appellants motion to quash, and denied it. Thereafter, the court permitted appellants to present evidence and call witnesses during the harassment petition hearing.

Appellants failed to establish in the trial court and have not established on appeal any valid basis for granting their motion to quash the subpoenas or suppress the documents produced. Appellants also have not provided any legal basis for dismissing Haros harassment petition. Accordingly, we conclude the trial court did not abuse its discretion in denying Rimess motion to quash and dismiss.

4. Harassment Restraining Order

Appellants challenge the trial courts March 17, 2006, restraining order, in which the court ordered that, when Rimess car is not parked at her residence, appellants must take down their video camera. As best as this court can discern, appellants are arguing on appeal that this order violates their Fifth Amendment, constitutional property rights, in that the order constitutes a taking of property without just compensation.

Appellants have not shown any deprivation significant enough to satisfy the heavy burden placed on them to establish a taking. (Keystone Bituminous Coal Assn v. DeBenedictis (1987) 480 U.S. 470, 491-492 (Keystone).) The property in question consists of appellants video camera,^[2]which arguably the trial courts order regulates by limiting appellants use of it. The trial court ordered appellants to remove it from the window whenever Rimess car is not parked at the apartment. As we concluded above after thoroughly reviewing the record, the trial court followed appropriate procedures for conducting the harassment petition hearing. Appellants were given every opportunity to present their defense and received a fair hearing.

As to Haro filming appellants, there is no evidence that he did so on an ongoing basis, over a lengthy period of time, as did appellants. In addition, Haro established that his filming was for the legitimate purpose of establishing his harassment claim against appellants. There also is no evidence that Haro intended to continue filming appellants in the future. Furthermore, the trial court did not enter any order concerning Haros filming appellants because that issue was not before the court. The harassment petition hearing was brought by Haro for the purpose of enjoining appellants from harassing Haro and his family.

Appellants also complain that appellants were unlawfully arrested for not complying with the courts restraining order, but the arrest occurred in April 2006, after the March order from which appellants filed a notice of appeal. Therefore, any issues or evidence concerning the arrest cannot be considered in the instant appeal. (In re Francisco W. (2006) 139 Cal.App.4th 695, 706.)

We conclude all the elements of harassment were supported by substantial evidence and therefore the trial court did not abuse its discretion in entering the March 17, 2006, restraining order. (See Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1412-1415.)

5. Motion for Change of Venue

Appellants complain that the trial court denied their motion for change of venue without a hearing. Appellants claim the trial judge was racially biased against appellants and created the appearance of partiality by asking petitioners, but not appellants, if they rested their case. Appellants also complain that the court did not take into consideration Rimess disability, McFaddens employment circumstances, and the impact of the restraining order on appellants.

Code of Civil Procedure section 397 provides in relevant part: The court may, on motion, change the place of trial in the following cases: [] . . . [] (b) When there is reason to believe that an impartial trial cannot be had therein. [] (c) When the convenience of witnesses and the ends of justice would be promoted by the change.

We reject appellants venue challenge first and foremost because it was never raised in the lower court. The record on appeal, including the register of actions and reporters transcript, indicates appellants did not make a motion for change of venue.

Even if appellants made a motion for change of venue in the trial court, appellants have failed to establish that there was reason to believe that an impartial trial could not be had or that, in fact, appellants did not receive a fair hearing. A defendant challenging the denial of a motion for change of venue must show that at the time of the motion it was reasonably likely that a fair trial could not be had, and that the error was prejudicial, i.e., that it was reasonably likely that a fair trial was not in fact had. [Citation.] (People v. Webb (1993) 6 Cal.4th 494, 514.)

In evaluating whether a fair trial could be had, the court must consider the gravity and nature of the crime, the extent and nature of the publicity, the size and nature of the community, the status of the victim, and the status of the accused. [Citation.] (People v. Cummings (1993) 4 Cal.4th 1233, 1275.) On appeal, the court must also consider whether the defendant in fact had a fair trial before an impartial jury. (Ibid.) There is no evidence establishing any of these elements.

There is also no evidence in the record that the court was prejudiced against appellants because of their race or that the court was, or appeared to be, impartial. Asking petitioners, and not appellants, if they rested their case was merely an insignificant oversight and not a sign of impartiality or bias, and in no way prejudiced appellants defense. If appellants did not wish to rest their case, they simply could have stated this to the court and requested to provide additional evidence or argument.

As to the trial court considering Rimess disability, McFaddens employment, and the impact of the restraining order on appellants, the record reflects that the court gave appellants every opportunity to present their case. The court listened to testimony and argument, and made a reasonable ruling based on the evidence before the court. Appellants were afforded a fair hearing on Haros harassment complaint and the court entered a reasonably tailored restraining order addressing the issues raised during the harassment proceeding.

The trial court did not abuse its discretion in denying appellants motion for change of venue without a hearing because appellants never made such a motion, and even if they did, there was no valid basis for granting it.

6. Disposition

The restraining order entered on March 17, 2006, is affirmed. Appellants shall pay Haro and Marquezs costs, if any, on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Hollenhorst

Acting P.J.

We concur:

s/King

J.

s/Miller

J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^[1] The Honorable Bert L. Swift presided over the ex parte hearing.

^[2] Appellants also seem to argue there was a taking of their car. They claim they could not move it unless they removed the video camera from the window. This argument has no merit whatsoever. The court order does not restrain or regulate the use of Rimess car in any way.