Triche-Winston v. Vassar

Filed 11/02/07 Triche-Winston v. Vassar CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(El Dorado)

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Plaintiffs Charel Winston and Alma M. Triche-Winston (collectively plaintiffs),^[1]appearing in pro. per., appeal from the denial of their petition for an injunction prohibiting harassment under Code of Civil Procedure section 527.6.^[2]They contend the trial court erred in (1) denying the petition; (2) failing to rule on all of the motions that were filed in connection with the petition; (3) denying their motion to strike defendants opposition to plaintiffs Response to Order to Show Cause for Civil Harassment Order; (4) failing to take in to [sic] account all of the facts in ruling on the petition; and (5) awarding defendants attorney fees. Plaintiffs also assert that their due process rights were violated because the political bias in the county . . . made it impossible for the [trial] court to be impartial in its final ruling and the trial court was persuaded to deny plaintiffs petition because of the district attorneys malicious prosecution case against them. Mindful of our limited role in reviewing the issues raised by this appeal, we shall affirm the judgment and the award of attorney fees.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Winston and Triche-Winston are same-sex partners. From 2001 until at least April 29, 2005, they, along with Triche-Winstons mother Olga Nogues, lived next door to defendants Janet and William Vassar in rural El Dorado County. For at least a portion of that period, the Vassars son-in-law Bill and foster children Denny and Jeremy, all of whom are also named as defendants, lived with the Vassars.

Plaintiffs, appearing in pro. per., filed a petition for a temporary restraining order and an injunction to preclude defendants from, among other things, harassing, contacting or stalking them and to cease and desist from making defamatory statements about them. Plaintiffs alleged that the Vassars harassed and verbally assaulted them by telling lies and fabricat[ing] stories to various people throughout the community; communicat[ing] third-party lies to the El Dorado County Sheriffs Department and District Attorneys office, resulting in false conspiracy charges being filed against plaintiffs; caus[ing] a dangerous and devastating fire to [plaintiffs] property; allowing their dogs to be aggressive toward plaintiffs and plaintiffs animals; standing by as their dog attack[ed] and maul[ed] Winston; and star[ing] at and stalk[ing] plaintiffs and their ranch personnel. The petition further alleged that the Vassars foster child Jeremy vandalized plaintiffs property and threatened to kill Winston.

After reviewing the documentation submitted by plaintiffs and hearing argument from both parties, the trial court denied plaintiffs petition for a temporary restraining order.

The hearing on the petition for an injunction occurred over three hearing days. Plaintiffs called William and Janet Vassar and plaintiffs private investigator, Bill Sharff, as witnesses, and defendants were permitted to call, out of order, Officer Michael Laughlin, a lieutenant with the Folsom Police Department and court-appointed special advocate for one of the Vassars foster children.

At the end of the second hearing day, the trial court told plaintiffs that it did not have one fact . . . that [it could] rely on that [came] close to a basis for a civil harassment restraining order, and advised them that they had two weeks . . . to provide [the court with] a brief . . . set[ting] forth the facts that [they] intend[ed] to prove with respect to each incident that [they] claim[ed] [wa]s the basis for the request for a . . . civil harassment restraining order. The court directed plaintiffs to designate [each incident], the date that it happened, what testimony is going to be offered in support of it, whos going to testify to it, and . . . to sign it under penalty of perjury. The court observed that plaintiffs were asking the wrong people the questions, and suggested that Winston and Triche-Winston each take the witness stand and question each other about the civil harassment . . . because [they] kn[e]w what it [wa]s. The court warned plaintiffs that if it did not have sufficient evidence, based on [the] offer of proof and the declarations, it was going to dismiss this case, and continued the hearing to another day.

Thereafter, plaintiffs filed a Response to Order to Show Cause for Civil Harassment Protective Order, along with the declarations of Winston, Triche-Winston, Nogues, Sharff, and others. Defendants filed an opposition to plaintiffs response.

Plaintiffs also filed a motion to strike defendants opposition due to offensive personality, as well as a Motion to Seal Court Records Relating to Newly Found Evidence.

When the hearing on plaintiffs petition resumed, the trial court explained that it was still concerned, based on what has been submitted . . . , that [it] really [did not] have any admissible evidence . . . that would support a restraining order and asked plaintiffs if there was anything else that [was] going to be offered other than the testimony taken . . . and what ha[d] been submitted in [plaintiffs] responsive declaration[s] and the statements of the prospective witnesses. Without responding to the courts question, plaintiffs argued the merits of their case, with Winston, Triche-Winston, and Nogues each addressing the court. When they finished, the court took the matter under submission.

The court issued a written ruling denying the petition. The court explained that plaintiffs failed to provide any admissible evidence that [wa]s clear and convincing . . . that there ha[d] been a course of conduct by [d]efendants that would reasonably have caused [p]laintiffs [sic] substantial emotional distress or that defendants conduct was without any legitimate purpose or was not constitutionally protected. The court also denied plaintiffs motion to strike defendants opposition papers, concluded that plaintiffs request to seal new evidence was moot [i]n light of [its] ruling on the underlying motion, and awarded defendants $3,000 in attorney fees.

DISCUSSION

As the appealing party, the burden is on plaintiffs to demonstrate error by adequate argument with supporting authorities and citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(B), (C); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 (Guthrey).) It is the duty of counsel to refer the reviewing court to the portion of the record which supports appellants contentions on appeal. [Citation.] If no citation is furnished on a particular point, the court may treat it as [forfeited]. (Guthrey, supra, at p. 1115.)

Plaintiffs 49-page opening brief does not contain a single citation to the record. This failure alone constitutes a forfeiture of plaintiffs claims on appeal. (Guthrey, supra, 63 Cal.App.4th at pp. 1115-1116.) Plaintiffs attempt to correct the error in their reply brief by citing excerpts of the opening brief with corresponding citation to the record is insufficient and does not cure the defect in the opening brief.

In any event, as we will explain, plaintiffs contentions fail on the merits or were otherwise forfeited.

I

Plaintiffs claim the trial court abused its discretion in denying their request for an injunction because [m]ore than sufficient evidence was provided to the [trial] court to establish good cause to grant the requested protective order, given the five-year history of conduct by the Vassar [f]amily towards the Triche-Winston-Nogues family. Again, we disagree.

Our role in reviewing the trial courts ruling is a limited one. A trial courts decision to grant an injunction rests within its sound discretion and will not be disturbed without a showing of a clear abuse of discretion. (Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912.) In determining whether the trial court abused its discretion when there are disputed factual issues, [o]ur power . . . begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact. (Ibid., quoting Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. (1967) 66 Cal.2d 782, 784-785.) We resolve all factual conflicts and questions of credibility in the respondents favor and draw all legitimate and reasonable inferences to uphold the judgment. (Shapiro v. San Diego City Council, supra, at p. 912; Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.)

Section 527.6 provides for the issuance of a temporary restraining order and an injunction to prohibit harassment. ( 527.6, subd. (a).) [H]arassment [means] 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. ( 527.6, subd. (b).) No injunction shall issue unless the judge finds by clear and convincing evidence that unlawful harassment exists. ( 527.6, subd. (d).) The denial of an injunction is within the sound discretion of the trial court and will be upheld on appeal absent an abuse of discretion. (Cisneros v. U.D. Registry, Inc. (1995) 39 Cal.App.4th 548, 574.)

Here, plaintiffs point to the following countless examples of harassment in support of their assertion that good cause [existed] for the [trial] court to grant the protective order: (1) Janet Vassars actions after her dog bit Winston; (2) other evidence which they assert supports their belief that the Vassars somehow caused the fire at their property; and (3) unspecified comments, defamatory statements, letter writing/e‑mail campaign, etc., which they assert were documented in the numerous declarations and formal documents they submitted.

Much of the evidence relied on by plaintiffs was disputed. For example, plaintiffs version of events following the dog bite incident was disputed by Officer Laughlin and William Vassar. Likewise, plaintiffs description of the altercation between Jeremy and Winston was at odds with the case narrative prepared by the El Dorado County Sheriffs deputies who investigated the matter.

In addition, much of plaintiffs evidence amounted to nothing more than suspicion and innuendo. For example, in support of their assertion that defendants were somehow involved in the fire on their property, plaintiffs note that they were recently informed that defendants foster child Jeremy had Nazi swastikas on the walls [of his room] with the letter [sic] L and F below them, which, according to plaintiffs, clearly suggest[s] that he was writhing [sic] about lesbians and fagots. Plaintiffs also state that they were informed that defendants had several pictures of [plaintiffs] dogs on their refrigerator in a ritual-like fashion and note that a ritualized animal was discovered on their property after the fire.

Finally, plaintiffs fail to identify the particular statements they contend provided good cause for an injunction. Rather, they simply state that they provided numerous declarations and formal documents that show that this type of conduct did exist. As previously explained, [i]t is the duty of counsel to refer the reviewing court to the portion of the record which supports appellants contentions on appeal. (Guthrey, supra, 63 Cal.App.4th at p. 1115.)

Having thoroughly reviewed the record on appeal, we have no trouble concluding that the trial court did not abuse its discretion in denying the petition for an injunction.

II

Plaintiffs claim that the trial court erred in failing to rule on all of the motions that were filed . . . that proved that [an injunction] was necessary. Plaintiffs are incorrect.

While plaintiffs fail to identify which motions they contend the court failed to rule upon, the record reveals that only two motions were filed in connection with the petition for an injunction‑‑the motion to strike and the motion to seal court records. As detailed above, the trial court denied the motion to strike and found the motion to seal had been mooted by virtue of its ruling on the petition for an injunction.

In any event, to the extent the court failed to rule on a motion, no appeal lies. [T]he absence of an adverse ruling precludes any appellate challenge. [Citation.] In other words, when . . . the defendant does not secure a ruling, he does not preserve the point. That is the rule. No exception is available. (People v. Rowland (1992) 4 Cal.4th 238, 259 (Rowland).)

III

Plaintiffs contend the trial court erred in denying their motion to strike defendants opposition to plaintiffs Response to Order to Show Cause for Civil Harassment Order for offensive personality. There was no error.

Plaintiffs requested that the trial court strike defendants opposition due to the defamatory and offensive language used, the gross misstatement of facts not in evidence, and the inflammatory allegations. Pursuant to section 436, a court may, in its discretion, [s]trike out any irrelevant, false, or improper matter inserted in any pleading and all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. ( 436, subds. (a), (b).) We agree that defendants opposition contains some very offensive language‑‑i.e., referring to plaintiffs as fruitcakes and neurotic ladies‑‑that is completely inappropriate, and we caution defense counsel that such name-calling serves no useful purpose, particularly in an emotionally charged case such as this. The majority of defendants opposition, however, is comprised of evidentiary objections to the declarations submitted by plaintiffs. Having reviewed defendants opposition papers in their entirety, we conclude the trial court acted within its discretion in denying the motion to strike.

IV

Plaintiffs assert the trial court erred in failing to take in to [sic] account all of the facts including the sealed records that clearly showed that arson was involved in the fire on their property. We disagree.

First, to the extent plaintiffs contend they were not afforded sufficient time to present their case, they are mistaken. The trial court held two hearings during which plaintiffs were allowed to call witnesses and invited them to submit additional evidence in the form of declarations, which they did. In addition, at the August 29, 2005 hearing, Winston advised the court that plaintiffs had provided the court with declarations from every single witness that was going to testify. When the court asked plaintiffs if they had any additional evidence, plaintiffs failed to respond to the courts inquiry and proceeded instead, as we have previously stated, to argue the merits of their case. Thus, plaintiffs had ample opportunity to present their case.

Second, the information contained in the sealed records, even if credited, in no way connects the Vassars to the fire on plaintiffs property, as plaintiffs contend. Plaintiffs suspicions and beliefs are not evidence.

Third, plaintiffs incorrectly assert that the trial court told them that they would have an opportunity to examine Jeremy, Denny and/or Bill and then failed to afford them that opportunity. Rather, the court stated: If [Jeremy] was served and he doesnt show up, Ill issue a bench warrant for his arrest. Plaintiffs fail to direct this court to any evidence in the record that establishes these defendants were properly served. Even assuming that they were, plaintiffs forfeited this issue on appeal by failing to secure a ruling from the trial court. (Rowland, supra, 4 Cal.4th at p. 259.)

V

In their reply brief, plaintiffs argue that the trial court erred in awarding defendants attorney fees. The argument is forfeited by plaintiffs failure to raise this issue in their opening brief on appeal. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)

Even if plaintiffs did not forfeit the argument, it fails on the merits. ( 527.6, subd. (i) [authorizing award of attorney fees to prevailing party in an action seeking injunction to prohibit harassment].)

VI

Plaintiffs also assert, in a conclusory fashion, that their due process rights were violated because the political bias in the county . . . made it impossible for the [trial] court to be impartial in its final ruling and that the trial court was persuaded to deny plaintiffs request for an injunction because of the district attorneys malicious prosecution case against them. Plaintiffs do not point to any evidence in the record to support their assertions. Accordingly, we reject them. (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2 [a reviewing court need not discuss claims that are asserted perfunctorily and insufficiently developed]; People v. Galambos (2002) 104 Cal.App.4th 1147, 1159 [contentions on appeal must be supported by argument with citations and analysis].)

VII

Finally, plaintiffs seek costs and defendants seek attorney fees and costs on appeal. Section 527.6, subdivision (i) allows for the award of attorney fees to the prevailing party where an injunction is sought prohibiting harassment. The broad statutory authorization extends discretion to appellate tribunals to make an award of attorney fees on appeal. (Byers v. Cathcart (1997) 57 Cal.App.4th 805, 812-813; see Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927.) As defendants are the prevailing parties on appeal, we shall exercise our discretion to award attorney fees on appeal. (Byers v. Cathcart, supra, 57 Cal.App.4th at pp. 812-813.) Upon remand, the trial court shall determine the amount of such fees. (Milman v. Shukhat (1994) 22 Cal.App.4th 538, 546.)

DISPOSITION

The judgment is affirmed. Defendants are awarded their costs and attorney fees on appeal. The case is remanded to the trial court to determine the amount of attorney fees.