Villarreal v. Gimbel
Filed 4/27/07 Villarreal v. Gimbel CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FIVE
FRANK VILLARREAL,
Plaintiff and Respondent, A115201
v. (Del Norte County
Super. Ct. No. CVHS061221)
JOHN GIMBEL,
Defendant and Appellant.
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John Gimbel appeals from a civil injunction prohibiting him from harassing respondent Frank Villarreal. Appellant contends (1) the injunction was not supported by adequate evidence, (2) the injunction violated his free speech rights, and (3) the court erred when it declined to consider certain evidence. We reject these arguments and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Respondent Villarreal works as a deputy for the Del Norte County Sheriffs Department. On May 16, 2006, respondent issued a ticket to appellant because his car had a broken tail light, and because appellant lacked adequate proof of insurance.
Appellant believed the latter violation was unwarranted. He decided to give respondent a real fine chew out. Appellant called respondent at work and left about 25 messages on his answering machine that in total, lasted about 90 minutes. Many of the messages were profane and included passages in which appellant told respondent he had fucked up and called him a bastard, shit mouth, mother fucker shit mouth, and pig.
A few days later, appellant left a more ominous message on respondents answering machine. He suggested that respondent kill himself.
Respondent knew that appellant previously had threatened another public official, and he felt threatened by appellants repeated calls. On June 5, 2006, respondent filed a petition under Code of Civil Procedure section 527.6[1]to stop appellant from harassing him.
Appellant opposed the petition. He freely admitted that he had called respondent repeatedly to chew [him] out. He claimed he had the right to do so because the insurance ticket was not justified. Appellant also continued his profane taunts. In one of his pleadings, he told the court: I gave that fag both barrels on his answering machine later, you bet! He should be so fuckin lucky thats all I do.
At the hearing, respondent testified that he felt threatened by appellants repeated calls and that they had caused him severe emotional distress. A witness coordinator who helped victims of harassment prepare paperwork for restraining orders also testified. She said the calls were of such a nature that they would cause a normal person to suffer severe emotional distress.
Based on this evidence, the court issued a restraining order that prohibited appellant from contacting respondent for a period of one year. The court was careful to note that the order did not preclude appellant from contacting the sheriffs office generally, or from contacting any other officer.
II. DISCUSSION
A. Sufficiency of the Evidence
Appellant contends the injunction must be reversed because it is not supported by sufficient evidence.
Section 527.6 sets forth a procedure under which a person may seek an injunction prohibiting harassment. The term harassment is defined by section 527.6, subdivision (b) to include 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. A course of conduct is defined by the statute to mean a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including . . . making harassing telephone calls to an individual
. . . . ( 527.6, subd. (b)(3).)
In assessing whether substantial evidence supports the requisite elements of willful harassment, as defined in Code of Civil Procedure section 527.6, we review the evidence before the trial court in accordance with the customary rules of appellate review. We resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge in all legitimate and reasonable inferences to uphold the finding of the trial court if it is supported by substantial evidence which is reasonable, credible and of solid value. [Citations.] (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.)
Appellant contends the evidence in this case was insufficient in two respects. His first argument is based on the fact that respondent admitted at trial that he did not listen to all the messages that appellant had left. Instead, respondent said he listened to several of the messages and then turned the answering machine off. Appellant argues that in light of this fact, the evidence was insufficient to support a statutory violation. While respondent did state that he had not listened to every message appellant left, he also testified that the messages he did listen to had caused him significant emotional distress. While respondent might have suffered a greater degree of distress if he had listened to every message, substantial evidence supports the conclusion that the messages respondent did listen to caused him significant emotional distress.
Alternately, appellant contends the evidence was insufficient because a tape that contained all the messages appellant left was not admitted into evidence. Again, while this is true, it does not make a difference. Respondent and the witness coordinator both testified and they described the contents of the tape. The parties actually played one of the messages in open court and respondent testified that message was less abusive than others that appellant had left. The court as factfinder could reasonably conclude appellant had harassed respondent based on the evidence that was admitted.
B. Free Speech
Appellant contends the injunction is invalid because it violated his free speech rights.
The First Amendment to the United States Constitution and article I, section 2, subdivision (a) of the California Constitution both guarantee the right to speak freely. The right to free speech, however, is not absolute. (Near v. Minnesota (1931) 283 U.S. 697, 708; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 134.) [T]he state may penalize threats, even those consisting of pure speech, provided the relevant statute singles out for punishment threats falling outside the scope of First Amendment protection. . . . A statute that is otherwise valid, and is not aimed at protected expression, does not conflict with the First Amendment simply because the statute can be violated by the use of spoken words . . . . (21 Cal.4th at p. 134, internal citations & punctuation omitted.)
Section 527.6 clearly is valid under this standard. The section makes it illegal to engage in a course of conduct that seriously alarms, annoys or harasses another person. ( 527.6, subd. (b).) The evidence here shows appellant engaged in such a course of conduct by repeatedly leaving abusive messages on respondents answering machine. That finding is not invalid simply because appellant violated the statute by using spoken words. (Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal.4th at p. 134.)
C. Failure to Consider Evidence
Appellant contends the harassment order must be reversed because the trial court declined to listen to a tape of a telephone call he made to the Del Norte Sheriff complaining about respondents activities.
We reject this argument for two reasons. First, appellant has not cited any authority that would indicate the trial court erred on this ground. A reviewing court is not required to make an independent, unassisted study of the record in search of . . . grounds to support the judgment. It is entitled to the assistance of counsel. Accordingly every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050, internal citation & punctuation omitted.)
Second, the record indicates that the trial court declined to listen to the tape because it was not directly relevant to the issues being tried. As the court explained, This doesnt have anything to do with Mr. Wilson. This has to do with Mr. Villarreal as a person. A trial court is granted broad discretion to reject evidence if its admission would necessitate undue consumption of time. (Evid. Code, 352.) The court here did not abuse its discretion when it declined to consider evidence that was, at best, marginally relevant to the issues being tried. (People v. Minifie (1996) 13 Cal.4th 1055, 1070.)
III. DISPOSITION
The order prohibiting harassment is affirmed.
_________________________
Jones, P.J.
We concur:
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Simons, J.
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Gemello, J.
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[1] Unless otherwise indicated, all further section references will be to the Code of Civil Procedure.
