Filed 11/7/18 Miller v. Davis CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

This appeal is from a civil harassment restraining order (Code Civ. Proc., § 527.6)[1] that Lisa Miller obtained against Dalia Davis. Acting in propria persona, Davis contends that (1) Miller failed to prove she was entitled to a restraining order and (2) the trial court failed to hold a fair hearing. We affirm the order but remand this case for correction of a discrepancy in the record with respect to Miller’s name.[2]

I. STATUTORY OVERVIEW AND STANDARD OF REVIEW

“ ‘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.’ [Citation.]” (Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1227 (Parisi).)

“Section 527.6, subdivision (a), provides that a victim of harassment (as the statute defines it) ‘may seek a temporary restraining order and an injunction prohibiting harassment as provided in this section.’ Subdivision (b) of section 527.6 defines ‘harassment’ to include not just actual violence or threats of violence, but also ‘a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person,’ that serves no legitimate purpose, and that is not constitutionally protected activity. To constitute harassment, 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).)” (R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188 (R.D.).)

Section 527.6 contains several additional subdivisions establishing requirements for obtaining a civil harassment restraining order and the procedure for its issuance, which includes providing notice and a hearing. (§ 527.6, subd. (g).) Section 527.6, subdivision (i) states: “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 order shall issue prohibiting the harassment.”

“We review issuance of a protective order for abuse of discretion, and the factual findings necessary to support the protective order are reviewed for substantial evidence. [Citations.] ‘We resolve all conflicts in the evidence in favor of respondent, the prevailing party, and indulge all legitimate and reasonable inferences in favor of upholding the trial court’s findings. [Citation.] Declarations favoring the prevailing party’s contentions are deemed to establish the facts stated in the declarations, as well as all facts which may reasonably be inferred from the declarations; if there is a substantial conflict in the facts included in the competing declarations, the trial court’s determination of the controverted facts will not be disturbed on appeal.’ [Citation.] Whether the facts are legally sufficient to constitute civil harassment within the meaning of section 527.6 is a question of law reviewed de novo. [Citation.]” (Parisi, supra, 5 Cal.App.5th at p. 1226.)

II. FACTUAL AND PROCEDURAL BACKGROUND

According to the Register of Actions for this case, on January 19, 2017, Miller filed a petition for an injunction prohibiting harassment, which named Davis as the defendant. The content of the petition is unknown to us because Davis did not include it in her designation of the record on appeal.

On January 20, 2017, Miller obtained a temporary restraining order (TRO) requiring Davis to refrain from harassing Miller and directing that all contact with Miller was to be peaceable, reasonable, and directly related to their shared tenancy of a San Francisco dwelling. The TRO also included a stay-away order, which required Davis to stay at least 50 yards away from Miller, with one exception—when they were inside the home where they both lived, Davis was required to stay at least three feet away from Miller.

On February 10, 2017, the superior court held a hearing on Miller’s petition. At the hearing, the court took evidence from three witnesses, Miller, Davis, and Miller’s boyfriend, Jan Safarik. Preliminarily, the court stated that it had reviewed Miller’s application, and then it invited Miller to discuss the “incident” and the “pattern of harassment” that had been alleged.

Miller stated that the entire time she lived in the house with Davis, Davis had been harassing her about everything, keeping a log of everything she did in the house, making false statements through e-mails, and creating lies about her by manipulating their other roommate. However, she pinpointed an incident that occurred on January 8, 2017 (the January 8 incident) as a turning point in her relationship with Davis.

Miller gave the following account of the January 8 incident: Miller went to heat up some food while Davis was in the kitchen cooking. Then, Miller continued, “[Davis] started saying that I don’t respect her space in the kitchen, and she opened up my cabinet, closed it shut, and broke all my dishes. They all fell on the floor.” Miller was concerned that Davis would try to break other things, so she called the police who came and “resolved the matter.” Then Davis “put herself” in an ambulance, even though Miller had not touched her. Later, Davis came home and then called the police as if nothing had happened earlier and made a false report that Miller threw a wine bottle at her, and also made the false claim that Miller had “hit her in some way, and she was afraid for her disability—her mental disability.”

Turning to a different matter, Miller stated that Davis had harassed her over e‑mail, sending her 40 to 50 messages complaining about everything that Miller did in the house and trying to control Miller’s behavior. Miller stated that the e-mails contained lies about her and opined that Davis was trying to create a story to get her evicted. Miller explained that she could not block the e-mails because Davis had threatened that if she did, then (1) Davis would send the e-mails to their landlord, (2) Davis would call the police on her, and (3) “something” could happen and it would be Miller’s own fault for not reading the e-mails.

Finally, Miller complained that Davis did things that Miller just did not understand and made her worry that Davis may become violent. Miller pointed out that Davis broke a window and Miller’s dishes during the January 8 incident. She also told the court about an earlier incident when Davis broke a lamp and left the glass on the floor for three days without cleaning it up. Miller stated that she had been away when the lamp broke, but when she returned it was dark, the door was wide opened and there was glass all over the floor. Miller also told the court that Davis was “creating emails and a story” that Miller had threatened her with a knife and “was going to smack her upside the head.” Miller thought that Davis was putting these types of false accusations in e‑mails so that she could make a “paper trail.”

After Miller completed her presentation, the court stated: “Okay. Ms. Davis, what do you want to tell me?”

Davis stated that she had reviewed the e‑mails that she had sent to Miller, and there were “like three instances where I was hostile, and all of those instances [occurred] after her behavior.” Davis told the court that Miller was “gaslighting” her, and she had created a log that documented her side of the story. The court asked Davis what she said in the three admittedly hostile e-mails. Davis assured the court that her threats were never physical, and then continued with an expansive list of complaints about Miller, calling her an alcoholic, and a pathological liar, and accusing her of storing her belongings in the living room.

The court asked Davis about the January 8 incident. Davis gave her account but digressed several times. She explained that she was not feeling well that day because she had a “brain injury,” and she was tired from traveling over the Christmas holidays. She went into the kitchen and began sautéing food, while she listened to her son discuss his marital problems on the speaker phone. Then Miller came out of the bathroom, gave Davis a look and asked if she was alright, using a manner that Davis found demeaning. Davis shared with the court her frustration about being treated as though she could not use her own kitchen until the court intervened and asked Davis to “please tell me what happened[.]” Davis said she was trying to do that and asked the court to “keep coaching” her because it was not easy for her to discuss such a traumatic experience. Continuing with her account, Davis reported that after Miller asked Davis if she was alright, Miller left the kitchen and went to her room. Davis recalled in detail how she continued to prepare her food until Miller’s boyfriend arrived with pizza. At that point, Miller asked Davis to let her know when she was finished using the kitchen. This remark offended Davis, who explained to the court that there was room for three or four people in the kitchen. Davis began to discuss her prior experience working in restaurants, but the court asked again that Davis just describe what happened.

Returning to her account, Davis recalled that Miller made a comment to her boyfriend about how she had “handled the problem in the kitchen.” At that point, Davis decided she was done talking to Miller and did not want to be friends with a person like that. Then, Miller opened her cabinet above where Davis’s plate of food was sitting, and Davis just “slammed it” shut. Davis emphasized that she did not go in the cabinet, so she did not know there were breakables in there. She also said that the only thing in the cabinet at the time was one pitcher. Davis told the court that Miller over-reacted to the broken pitcher, but she was not able to articulate what Miller actually said or did. Davis did recall that she tried to talk to Miller’s boyfriend because he was “a little more rational” than Miller.

The court asked Davis how many e-mails she had sent to Miller. Davis responded, “not very many.” She went on to explain that there had been issues with the landlord who was unfamiliar with landlord/tenant law, and she sent some e-mails about those type of issues. Reminding Davis that she said she had a log, the court asked again how many e-mails Davis sent to Miller. Davis stated that she did not count the e-mails.

The court asked if there was anything else Davis had to say about Miller’s claims. Davis described the broken lamp as something old that just fell over. Davis stated that she heard it fall, but she was in bed at the time and did not clean it up because her back hurt so much she could not get out of bed. Davis stated that she texted both roommates to warn them about the broken glass, but that did not stop Miller from using the incident against her as part of “the gaslighting that she does.”

Davis attempted to describe incidents when Miller had threatened or mistreated her and stated that she had evidence to prove it. In response, the court stated, “Okay. This is not related to [Miller’s] request. You’ve already gotten a restraining order against her based on this conduct.” Davis tried to interrupt, but the court continued: “Hold on. I’m not going to have you repeat that conduct. I’m just looking at the conduct she’s claiming against you.”

Then the court asked if Miller wanted to provide “some very brief testimony from the witness.” Miller’s boyfriend, Jan Safarik, gave the following account of the January 8 incident: When he arrived at the house that night, Miller was very calm, very nice, and not drunk. Safarik brought food that they were going to put in the oven and Davis “got a little bit upset about [Miller] doing that.” The two “had some exchange of words,” but it did not look like a “major argument.” However, a minute later, Davis walked over to Miller’s cabinet, opened it, and then “smashed it back closed again,” and “[a]ll these things fell out and broke on the floor.” According to Safarik, Davis acted deliberately and with purpose. Then, while Miller remained calm, Davis “stormed out of the house,” saying she was going to call the police, to which Miller responded that she was going to call the police. At that point, Miller locked Davis out of the house and Davis broke the window on the front door so she could get back in. The police came, Davis went to the hospital, and Safarik went home. Safarik offered the opinion that when Davis returned later, she was free to make up whatever story she wanted because he was no longer there to dispute it.

After Safarik presented his account, Davis responded that she broke a $6 pitcher by accident. She emphasized that Miller locked her out of the house when she went outside to call the police, and then she said, “you missed the part where she throws a bottle at me . . . .” Davis stated that after she broke the pitcher, Miller “went off, started going crazy.” According to Davis, Miller’s voice took on a “woolly cadence,” and then she shoved Davis and “[l]ike she went for my head.” Davis continued: “They went at my head. I have suffered a traumatic brain injury. She went for my head. And she’s slammed me aggressively in the head. That is when I went out to call the police. I have the 911 call.”

At that point, the court intervened and made the following ruling:

“Okay. Hold on. [¶] I am ready to rule. Frankly, I think that the conduct between the roommates is abysmal. Both of you have been participating. Each [of] you has been a primary aggressor toward the other. I understand that Ms. Davis has already received an order of protection against Ms. Miller, and I am now going to issue a restraining order against Ms. Davis.

“So, Ms. Davis, this will be a three-year restraining order. You will be ordered as follows. You are not to harass, intimidate, molest, attack, strike, stalk, threaten, assault, sexually or otherwise, hit, abuse, destroy the personal property of, or disturb the peace of Lisa Marie Miller. [¶] All contact must be peaceable, reasonable, and directly related to the tenancy and occur at the address in question. You are to stay at least 50 yards away from her except within the house, at which point you’re to stay three feet away from her inside the [shared residence]. [¶] . . . [¶]

“You cannot own, possess, have, buy, or try to buy, receive, or try to receive, or in any other way get guns, other firearms, or ammunition. You must sell to or store with a licensed gun dealer or turn in to a law enforcement agency any guns or other firearms in your immediate possession or control. This must be done within 24 hours, and you must file a receipt with the Court within 48 hours that would prove your guns or firearms have been turned in, sold, or stored.

“Like I said, this will be a three-year restraining order, and the two parties might want to work out how they are going to peacefully live in this house together.”

While the court was delivering this ruling, Davis attempted to interrupt, but the court told her to “Hold on.” After the ruling was delivered, the following exchange occurred:

“MS. DAVIS: Your Honor, respectfully, where is the evidence that I—

“THE COURT: Ma’am, I heard the evidence. I issued my finding. I found—

“MS. DAVIS: How do I appeal?

“THE COURT: I made my finding, and I can’t give you any legal [advice]. Thank you so much.”

The appellate record contains a copy of the “Mini Minutes” from the February 10, 2017 hearing, which reflects these facts: The court granted the “Petition for Permanent Restraining Orders consistent with the TRO”; the court signed a “Civil Harassment Restraining Order After Hearing” (the 2017 order) in open court; and the 2017 order was filed that same day.

III. DISCUSSION

Before we turn to the merits of this appeal, we briefly address a request by Davis for “special consideration” of her appeal. Davis’ propria persona status does not entitle her to special consideration. We afford propria persona litigants “ ‘the same, but no greater consideration than other litigants and attorneys.’ ” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247; see also Scholes v. Lambirth Trucking Co. (2017) 10 Cal.App.5th 590, 595–596 (Scholes).)

Davis contends that she is entitled to special consideration because she has a disability resulting from her “Traumatic Brain Injury,” which made it difficult for her to prepare an appellate brief free of formatting mistakes and typographical errors. The record before us does not establish that Davis suffers from a disability. But, in any event, her appellate brief does not contain mistakes or anything else that prevented us from understanding or considering her arguments on the merits.

Turning to the merits, Davis presents an extensive critique of Miller and her evidence. We construe these arguments as challenging the sufficiency of the evidence to support the 2017 order. As the appellant, Davis has the burden of overcoming a presumption that the judgment is correct by affirmatively demonstrating prejudicial error. (Denham v. Superior Court (2005) 2 Cal.3d 557, 564–565.) Thus, in this context, Davis has the burden of proving that Miller’s factual allegations against her were either legally insufficient or not supported by substantial evidence in the record. Davis has not carried this burden for two independent reasons.

First, to overcome the presumption of correctness, the appellant has the burden of affirmatively demonstrating error on an adequate record. (Scholes, supra, 10 Cal.App.5th at p. 595.) Here, the appellate record does not contain Miller’s request for a civil harassment restraining order. The Judicial Council form for making this request requires factual allegations under penalty of perjury. Furthermore, on appeal, “[d]eclarations favoring the prevailing party’s contentions are deemed to establish the facts stated in the declarations . . . .” (Parisi, supra, 5 Cal.App.5th at p. 1226.) Thus, Davis’s decision to omit Miller’s request leaves us with an incomplete, inadequate record of the evidence that was before the trial court.

Second, and in any event, the trial court’s findings and the 2017 order are supported by substantial evidence that was presented by Miller and Davis herself at the February 10, 2017 hearing. We emphasize here that the definition of harassment is not limited to actual violence or threats of violence, but also includes a willful course of conduct that seriously alarms, annoys, or harasses a specific person. (§ 527.6, subd. (b); R.D., supra, 202 Cal.App.4th at p. 188.) The hearing evidence supports the trial court’s conclusion that Davis engaged in such conduct.

In another set of arguments, Davis objects to the way the February 10, 2017 hearing was conducted, accusing the trial court of depriving her of a fair opportunity to present her case. As our background summary reflects, the court attempted to focus the witnesses on the issue at hand, which was whether Davis harassed Miller, not whether Miller harassed Davis.[3] We conclude that the court conducted a fair hearing. To the extent Davis contends otherwise, she fails to support her claims.

Finally, Davis points out that the 2017 order refers to the protected person as “Lisa Marie Correa” rather than Lisa Marie Miller. Davis contends this discrepancy “is enough reason to overturn the order.” We reject this argument, which is not supported by sound reasoning or any legal authority. However, as noted in our background summary, the 2017 order extended the restraining orders that were previously made in the TRO. Thus, the protected person’s name should be the same in both orders. Accordingly, we will remand this case so that this name discrepancy can be corrected.

IV. DISPOSITION

The February 10, 2017 order is affirmed, but this case is remanded to the trial court to correct the discrepancy with respect to the name of the protected person.

_________________________

LEE, J.^*

We concur:

_________________________

TUCHER, Acting P. J.

_________________________

REARDON, J.^**

^* Judge of the Superior Court of California, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

^{* *} Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

A151137, Miller v. Davis