Contursi v. McKinley

Filed 7/20/07 Contursi v. McKinley CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Timothy W. Tower, Judge. Affirmed.

Plaintiff Corwin Anthony Contursi appeals an order denying his petition for a permanent injunction prohibiting defendants David Sean McKinley and his son Joshua (Josh) from harassing him.^[1] On appeal, Contursi appears to contend the trial court erred by: (1) excluding third party declarations and other evidence; and (2) not continuing the evidentiary hearing. He also argues that documents he obtained after the hearing show McKinley made material misrepresentations to the court.

FACTUAL AND PROCEDURAL BACKGROUND

On or about January 8, 2006, McKinley and Contursi signed a rental agreement pursuant to which McKinley agreed to rent a room in a three-bedroom condominium from Contursi. Contursi was the lessee of, and also lived in, the three-bedroom condominium.

On June 25, McKinley entered the condominium with Josh, who was using crutches. Contursi asked McKinley how Josh hurt his leg. McKinley and Josh ignored Contursi and entered McKinley's room, shutting the door behind them. Contursi loudly knocked, or "banged," on McKinley's door, demanding that McKinley open it. When McKinley opened the door, Contursi pushed his way into the room, yelling that it was his business to know how Josh hurt his leg. Contursi charged toward McKinley, pushing him backwards with his chest. McKinley pushed Contursi out of his room. Contursi grabbed McKinley around the neck and pulled him down onto the floor. McKinley fell on top of Contursi. Contursi unsuccessfully tried to strangle McKinley. McKinley freed himself, stood up, got his telephone, and began walking down the hallway toward the living room to call police. Contursi ran toward McKinley and, using a closed fist, struck him above his eye, causing a laceration about one and one-half inches long (that required five sutures to close). Police arrived shortly thereafter, but apparently did not arrest either McKinley or Contursi after concluding the physical altercation was mutual combat.

On July 3, Contursi filed a petition (or request) for a permanent injunction to stop harassment by McKinley and Josh, using Judicial Council of California Form CH-100 and attaching his declaration that generally referred to the June 25 incident. He also sought an immediate temporary restraining order (TRO) pending a hearing on his injunction petition. On July 3, the trial court issued a TRO against McKinley and Josh, ordering them to stay at least one yard away from Contursi. The TRO also stated that a hearing had been scheduled for July 13 on Contursi's petition for a permanent injunction to stop harassment by McKinley and Josh.

On July 13, the trial court held a hearing on Contursi's petition for a permanent injunction.^[2] It considered the parties' declarations, heard the testimonies of Josh, the landlord, and the parties, and heard the parties' arguments. The court denied Contursi's petition for a permanent injunction and dissolved the TRO.

Contursi, in propria persona, timely filed an appeal of that order.^[3]

DISCUSSION

I

Exclusion of Evidence

Contursi contends the trial court erred by excluding certain evidence at the hearing on his petition for a permanent injunction.

A

Because a trial court's decision is presumed to be correct, it is the appellant's burden on appeal to show the court erred. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631-632.) To succeed on appeal, an appellant not only must show the trial court erred, but also that the purported error was prejudicial (i.e., requires reversal of the judgment or order). (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) "Where any error is relied on for a reversal it is not sufficient for appellant to point to the error and rest there." (Santina v. General Petroleum Corp. (1940) 41 Cal.App.2d 74, 77.) To require reversal of a judgment or order, an appellant generally must show "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.)

Regarding the admissibility of evidence, we apply "the abuse of discretion standard of review to any ruling by a trial court . . . ." (People v. Waidla (2000) 22 Cal.4th 690, 717.) Although evidence generally is admissible as relevant if it has any tendency in reason to prove a disputed material fact (Evid. Code,  210), a trial court may exercise its discretion to exclude relevant evidence if it finds that evidence will require undue consumption of time or confuse the issues (Evid. Code,  352).^[4]

B

Code of Civil Procedure section 527.6^[5] provides procedures for a person to petition for a temporary restraining order and permanent injunction against harassment. Of relevance in this case, section 527.6, subdivision (d) provides:

"Within 15 days, or, if good cause appears to the court, 22 days from the date the temporary restraining order is issued, a hearing shall be held on the petition for the injunction. The defendant may file a response that explains, excuses, justifies, or denies the alleged harassment or may file a cross-complaint under this section. 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 injunction shall issue prohibiting the harassment. . . ." (Italics added.)

A defendant's response "must be filed and delivered to plaintiff or plaintiff's attorney no later than 48 hours before the hearing." (Cal. Rules of Court, rule 3.1152(d).)^[6]

C

Contursi argues the trial court erred by excluding from evidence the declarations of nonparties he proffered. At the beginning of the July 13, 2006 hearing, the trial court stated:

"I have read the paperwork in the two cases. I have not read the declarations of the witnesses other than the parties themselves. I've not read the declarations of the witnesses for two reasons: First of all, it's not proper evidence. There's a way to provide proper evidence by declarations. It requires that you submit the declarations to the other side several days -- 30 days, something like that, in advance. And then the other side has an opportunity to submit counterdeclarations or require that the witnesses appear. So that procedure, pretty clearly, to me, has not been followed."

Subsequently, the court confirmed that Contursi was required to serve his proffered nonparty declarations on McKinley "a substantial period of time before the hearing." When the court inquired whether Contursi had served any declarations on McKinley "prior to today," Contursi replied that he had done so "[y]esterday." The court then stated that the service of Contursi's declarations on McKinley "ha[d] to be more than one day."

Contursi only summarily argues: "The court's exclusion of evidence is a denial of due process. Normally, parties are required to present their evidence without testimony or cross-examination. Evidence is received in the form of verified pleadings, affidavits, declarations, deposition transcripts, etc., or requests for judicial notice." In support of his argument, he cites only former rule 323 (now rule 3.1306).

Rule 3.1306 provides: "Evidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown." However, that rule does not support Contursi's argument that the trial court was required to consider his proffered declarations of nonparties. First, that rule applies only to law and motion hearings and not to trials or evidentiary hearings held on section 527.6 petitions for permanent injunctions. Section 527.6, subdivision (d) expressly provides: "At the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry." Therefore, unlike a law and motion hearing under rule 3.1306, a trial court in a section 527.6 evidentiary hearing is not generally restricted to consideration of declarations and other written documents, but rather must receive the testimonies of those witnesses properly offered by the parties.^[7] Accordingly, Contursi has not carried his burden on appeal to show the trial court erred by applying a rule requiring Contursi to have served McKinley with his proffered declarations a substantial period of time before the hearing.^[8] In any event, Contursi has not argued, or carried his burden on appeal to show, that the purported error was prejudicial (i.e., it is reasonably probable he would have obtained a more favorable result had the court not erred). (People v. Watson, supra, 46 Cal.2d at p. 836; In re Marriage of McLaughlin, supra, 82 Cal.App.4th 327, 336-337.)^[9]

II

Hearing Continuance

Contursi contends the trial court erred by not continuing the evidentiary hearing on his petition for a permanent injunction. He apparently argues the court should have continued the July 13, 2006 hearing based on his motion to strike McKinley's answer to his (Contursi's) petition in another case (which, as we discuss below, had been previously dismissed). He apparently argues the court was required to decide that motion to strike and should have continued the hearing to (presumably) obtain jurisdiction over the other case and address that motion before proceeding with the hearing in this case.

A

On or about June 26, 2006, Contursi filed a petition for a TRO and permanent injunction to stop harassment by McKinley and Josh in case No. GIC868064.^[10] On that date, a judge in the Central Division of the San Diego County Superior Court granted a TRO and set a hearing for July 10 in that case. However, on July 3, Contursi filed the instant petition for a TRO and permanent injunction (in case No. GIE03314) in the Eastern Division of the San Diego County Superior Court (the same division in which McKinley had filed his petition in case No. GIE032883). On that date, a judge in the Eastern Division of the San Diego County Superior Court granted a TRO and set a hearing for July 13 on Contursi's petition in the instant case. Also on July 3, McKinley filed an answer to Contursi's first petition in case No. GIC868064.

On July 5, Contursi filed a request to dismiss his petition in case No. GIC868064. On July 7, the court clerk entered a dismissal of that case. Nevertheless, on July 10, a judge of the Central Division entered an order purporting to consolidate Contursi's first petition in case No. GIC868064 with McKinley's petition in case No. GIE032883 and transfer it to the Eastern Division.

Apparently on July 13, in response to McKinley's petition, Contursi filed, or at least submitted, a motion to strike McKinley's answer to Contursi's first petition (previously dismissed on July 7 per Contursi's request).^[11] At the July 13 hearing, referring to that motion, the trial court stated: "[T]here is a motion here that, frankly, isn't in front of the court. I don't know why it was submitted to me. . . . It's in reference to case [No.] GIC868064. . . . In any event, I do not have that case in front of me. . . . I'm not going to deal with it, because it doesn't pertain to anything I have going on here." Subsequently, the court noted: "If the court [in case No. GIC868064] dismissed the case it cannot be consolidated . . . ." The court stated that it did not have an answer filed by McKinley to Contursi's instant petition (in case No. GIE032883) before it.

B

Contursi argues the trial court erred by not continuing the July 13, 2006 hearing based on his motion to strike McKinley's answer to his (Contursi's) petition in case No. GIC868064, presumably so the court could have sufficient time to obtain jurisdiction and address that motion. However, Contursi never requested, either expressly or implicitly, a continuance of the hearing. He even admits in his brief: "Although Contursi never formally asked for a continuance, he did argue the court was required to hear his motion to strike McKinley's answer in [case No.] GIC868064." That is insufficient to show he requested a continuance of the hearing. Furthermore, he does not contend, or show, the court had a duty to sua sponte (i.e., on its own motion) grant a continuance. Therefore, Contursi has waived any purported error by the court in not continuing the hearing. In any event, because case No. GIC868064 had been dismissed on July 7, 2006, any answer by McKinley to Contursi's petition in that case became moot and could not be (and was not) considered by the trial court in the instant case. Accordingly, Contursi cannot, and has not attempted to, show that the court's not continuing the hearing to consider that motion (from a dismissed case) was prejudicial to him. (People v. Watson, supra, 46 Cal.2d at p. 836; In re Marriage of McLaughlin, supra, 82 Cal.App.4th 327, 336-337.)

Contursi also argues the court should have continued the July 13 hearing to consider the evidence he filed within two days of the hearing (e.g., declarations of nonparties, etc.). However, Contursi waived any purported error by not requesting, either expressly or implicitly, a continuance. Furthermore, he does not show the court's not continuing the hearing was prejudicial to him. (People v. Watson, supra, 46 Cal.2d at p. 836; In re Marriage of McLaughlin, supra, 82 Cal.App.4th 327, 336-337.)

III

McKinley's Purported Material Misrepresentations

Contursi contends documents he obtained after the July 13, 2006 hearing show McKinley made material misrepresentations to the court. Referring to documents he apparently obtained after that hearing (not a part of the appellate record in this case), he argues McKinley and Josh lied that "Kevin," and not Josh, had shot a neighbor's bird on a day prior to the June 25 incident. Presumably in support of his argument, on February 16, 2007, Contursi filed a request that we take judicial notice of those documents. However, he does not cite any authority requiring us to take judicial notice of those documents. Because none of the proffered documents fall within the categories requiring judicial notice under Evidence Code section 451, we need not take judicial notice of them. (Evid. Code,  451, 459, subd. (a).) Furthermore, although some of the documents may fall within the categories allowing us to, in our discretion, take judicial notice under Evidence Code section 452 (e.g., court records), we decline to exercise our discretion to take judicial notice of any of the documents proffered by Contursi. (Evid. Code,  452, 459, subd. (a); Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 ["Reviewing courts generally do not take judicial notice of evidence not presented to the trial court. . . . No exceptional circumstances exist that would justify deviating from that rule . . . ."].)

We cannot consider documents not included in the record on appeal (as properly augmented) or otherwise judicially noticed. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1.) Therefore, based on the record on appeal in this case, Contursi has not carried his appellate burden to show the trial court erred by presumably relying on those purported misrepresentations by McKinley and/or Josh. Furthermore, he has not shown any such erroneous reliance was prejudicial to him. (People v. Watson, supra, 46 Cal.2d at p. 836; In re Marriage of McLaughlin, supra, 82 Cal.App.4th 327, 336-337.)^[12]

DISPOSITION

The order is affirmed. McKinley is entitled to costs on appeal.

McDONALD, J.

WE CONCUR:

NARES, Acting P. J.

O'ROURKE, J.

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^[1] We have considered this case together with Contursi's appeal (in Case No. D049081) of the trial court's order granting McKinley's petition for a permanent injunction prohibiting Contursi from harassing him (McKinley) and Josh.

^[2] During the same hearing, the trial court also considered and decided McKinley's petition for a permanent injunction to stop harassment by Contursi (in case No. GIE032883). As noted above, we have considered Contursi's appeal of the court's order granting that petition together with his appeal of the court's order in the instant case denying Contursi's petition for a permanent injunction.

^[3] An order denying an injunction is appealable. (Code Civ. Proc.,  904.1, subd. (a)(6).)

^[4] Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."

^[5] All further statutory references are to the Code of Civil Procedure unless otherwise specified.

^[6] All references to rules are to the California Rules of Court.

^[7] In Schraer v. Berkeley Property Owners' Assn. (1989) 207 Cal.App.3d 719, at page 733, footnote 6, the court stated: "[U]nder the express language of [section 527.6] and in accordance with the requirements of due process, . . . the trial court in a harassment proceeding may not arbitrarily limit the evidence presented to written testimony only, when relevant oral testimony is offered. Both sides may offer evidence by deposition, affidavit, or oral testimony, and the court shall receive such evidence, subject only to such reasonable limitations as are necessary to conserve the expeditious nature of the harassment procedure set forth by . . . section 527.6."

^[8] Although it is unclear under which rule the trial court excluded Contursi's proffered declarations of nonparties, it may have been referring to the 30-day limit that generally applies to discovery by parties. ( 2024.020, subd. (a).) In any event, rule 3.1152(d), as quoted above, required McKinley, as the defendant, to file and then deliver his response to Contursi at least 48 hours before the section 527.6 hearing on Contursi's petition. Although McKinley did not file an answer to Contursi's petition, we presume rule 3.1152 required Contursi to file and serve on McKinley the proffered declarations at least 48 hours (and presumably an even longer period) before the hearing. At the hearing, by stating he had served McKinley with his declarations of nonparties only "[y]esterday," Contursi effectively admitted he had not complied with that time requirement. Therefore, it appears the trial court properly excluded those declarations.

^[9] To the extent Contursi argues the trial court erred in excluding other evidence proffered by him at the hearing, he does not carry his appellate burden to identify that evidence and show how the court erred by excluding it.

^[10] Although the record on appeal in this case does not contain supporting documents regarding case No. GIC868064, the appellate record in Case No. D049081 contains those documents. Because there does not appear to be any factual or procedural dispute regarding case No. GIC868064, we shall assume the facts regarding that case are as stated in this opinion.

^[11] The copy of Contursi's motion to strike contained in the record on appeal in Case No. D049081 is not date-stamped as filed with the court.

^[12] We note Contursi does not contend on appeal that there was insufficient evidence to support the trial court's order in this case.