T.J. v. Kearns

Filed 9/6/07 T.J. v. Kearns CA3

Reposted 9/7/07 as clerically corrected

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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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Defendant William Kearns appeals the trial courts order prohibiting him (pursuant to Code of Civil Procedure section 527.6) from contacting or harassing plaintiff T.J. and her daughter C. and ordering him to stay at least 100 yards away from T.J., her car and residence. Kearns contends the order was error because his conduct did not constitute harassment as a matter of law, and the imposition of a restraining order constitutes a disproportionate response to the harm allegedly suffered.

We find neither contention to have merit and shall affirm the judgment (order).

BACKGROUND

We summarize the facts in the light most favorable to the judgment. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 787.)

Kearns and T.J. were neighbors. Kearnss wife was T.J.s best friend, and the parties respective families had been friends for more than 20 years. At the time of these events, both marriages were ending, and the relationship between Kearns and T.J. had deteriorated.

According to T.J., the events giving rise to the restraining order were these.

On April 20, 2006 (all events occurred in 2006), Kearns went to T.J.s house very upset. He called her names and swore at her. She told him to leave and he did.

Two months later, on June 22, Kearns again went to T.J.s house and walked around the property, including near the garage. Kearns told her he had every right to be there because T.J.s husband (who no longer lived there) had asked him to check up on the property[.] Kearns called her names. He left after T.J. told him to get off the property and to leave her alone.

On June 23, Kearns went to the house; T.J. was not at home and Kearns did not speak to anyone.

On June 29, Kearns went to T.J.s home; while on the property, he went into a rage and said totally inappropriate things to T.J.s 21-year-old daughter.

The following day, T.J. petitioned for an injunction (Code Civ. Proc., 527.6) prohibiting Kearns from harassing her or Cassidy, based on her declaration that on June 29 Kearns swore at [her], called [her] names, insulted [her] daughter, [and] said he could come on my property any time he wanted. The court issued a temporary restraining order pending a hearing.

In his answer to the petition, Kearns responded that his actions were legal and justified because T.J.s husband (Mark) had said it was ok to go over to his house. No order should issue against him, Kearns argued, because he did not intend to cause this problem and because he is a good citizen and want[s] no trouble and will have no further contact with [T.J.]. I am very sorry for this whole problem.

At the hearing, Kearns admitted going to T.J.s house on the four occasions she described, and did not deny swearing at T.J. or calling her names. He also admitted exchanging what he described as demeaning barnyard talk -- including four- and five-letter bad words -- with [T.J.s] daughter on June 29, after she seemed to get in [his] face a little bit[.]

In his defense, however, Kearns testified that his violation was minimal because on each of the four occasions T.J. complained about, he never approached her house and was only present on T.J.s property or in her driveway a minute and a half to three minutes each time.

Kearns also emphasized that, on two of the four occasions, he had a specific justification to be on T.J.s property. According to Kearns, he went to her house on June 22 because some of his stuff -- including parts for boats -- was commingled with T.J.s husbands things in her barn and he was looking for a part. Kearns testified he asked T.J. to call her husband to verify that Kearns had permission to be there, and that he stayed scarcely more than a few minutes after T.J. asked him to leave.

On the day of his exchange with T.J.s daughter, Kearns explained, he went to T.J.s house to retrieve a checkbook from his wife, who had collected the couples mail (in which the checkbook had arrived), and who was then visiting T.J.s home. He left as soon as his wife brought it out to him.

In Kearnss mind, he felt [he] was doing right in getting [his] property, right in getting [his] mail, and his actions were justified because T.J.s husband had told him to keep an eye on his jet skis and different equipment. No restraining order is necessary because he has gotten the message[,] and wont go anywhere near T.J.s home again.

In rebuttal, T.J. emphasized that she just wanted peace and did not want to be hassled or harassed and called names in [her] own home.

The court found by clear and convincing evidence, there was a course of conduct that resulted in harassment and substantial emotional distress, and that Kearnss conduct seriously alarmed, annoyed, and harassed T.J. It noted that [g]oing on [T.J.s] property several times even after shes told you each time not to be there, . . . causes problems and thats why were here today. If wed only had it once and you walked away and said Okay. Fine, we wouldnt be here today.

DISCUSSION

A trial courts decision to grant a permanent 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, we review the trial courts findings under the substantial evidence standard, resolving all factual conflicts and questions of credibility in the respondents favor and drawing all legitimate and reasonable inferences to uphold the judgment, so long as it is supported by evidence that is reasonable, credible and of solid value. (Ibid; Schild v. Rubin (1991) 232 Cal.App.3d 755, 762 [determined whether substantial evidence supports the requisite elements of willful harassment, as defined in Code of Civil Procedure section 527.6].)

In granting T.J.s petition for an injunction, the trial court found that Kearnss conduct constituted harassment as defined in Code of Civil Procedure section 527.6.^[1]We review that finding under the substantial evidence test; we do not, as Kearns suggests, evaluate the evidence to determine if the trial court properly weigh[ed] it. Questions of law we review de novo. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.)

Code of Civil Procedure section 527.6, subdivision (a) provides in relevant part: A person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an injunction prohibiting harassment as provided in this section. Subdivision (b) of the statute defines harassment as 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. (Code Civ. Proc., 527.6, subd. (b).) Section 527.6 is intended to protect the individuals right to pursue safety, happiness and privacy as guaranteed by the California Constitution. (Russell v. Douvan (2003) 112 Cal.App.4th 399, 403; Cal. Const., art. I, 1.)

Kearns first contends the court could not have properly found he engaged in harassment (as that term is defined in Code of Civil Procedure section 527.6) because no reasonable person would have suffered substantial emotional distress from his conduct. When evaluating whether an injunction against harassment should issue, courts interpret the phrase severe emotional distress to mean the same thing it does in the context of the tort of intentional infliction of emotional distress, i.e., highly unpleasant mental suffering or anguish from socially unacceptable conduct [citation], which entails such intense, enduring and nontrivial emotional distress that no reasonable [person] in a civilized society should be expected to endure it. [Citations.] (Schild v. Rubin, supra, 232 Cal.App.3d at pp. 762-763.)

In Kearnss view, T.J. merely overreacted to living in a world in which people occasionally yell at each other, . . . and even stop by neighbors houses looking for their mail, their property, or their spouses.

But the evidence did not suggest Kearns occasionally yelled at T.J., or that he merely stopped by her house on legitimate errands. Rather, T.J. testified -- and Kearns either expressly admitted or failed to deny -- he yelled at her, swore at her, called her names, and said horrible things to her and her daughter, including telling T.J.s daughter that maybe she should sleep with him to gain a monetary settlement.^[2] The court did not err in impliedly concluding that such socially unacceptable conduct could cause a reasonable person highly unpleasant suffering, involving nontrivial emotional distress. (Cf. Schild v. Rubin, supra, 232 Cal.App.3d at pp. 762-763.) As finder of fact, the trial court could assess T.J.s demeanor, evaluate the effect of Kearnss behavior on her, and determine that a reasonable person would be likewise affected. Whether another judge would necessarily have reached the same conclusion is immaterial. Kearns has not shown error.

Kearns next argues his conduct toward T.J. cannot constitute harassment because -- given the parties respective families longstanding and ongoing relationship -- it can hardly be said that Kearns had no legitimate purpose for ever going to the [T.J.] property because he testified he had particular, and legitimate, purposes for visiting T.J.s property on June 22 and June 29. Even assuming Kearns had a legitimate purpose for his presence on T.J.s property on two of the three days on which T.J. alleged Kearns swore at her and called her names, it was not his mere presence in her yard but his admitted name-calling and swearing at T.J. and her daughter on their property on those occasions that the court could properly find constituted substantial evidence of harassment.

He also argues an injunction against harassment was improper because the court had no basis for concluding there existed the possibility of future harm. The purpose of a prohibitory injunction is to prevent future harm to the applicant by ordering the defendant to refrain from doing a particular act. [Citations.] Consequently, injunctive relief lies only to prevent threatened injury and has no application to wrongs that have been completed. [Citation.] It should neither serve as punishment for past acts, nor be exercised in the absence of any evidence establishing the reasonable probability the acts will be repeated in the future. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1266, quoting Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 332, italics added.)

According to Kearns, there can have been no evidence of future harm to T.J., given his testimony he has gotten the message and wont go anywhere near the house. The court apparently did not credit Kearnss promises of good behavior in the future, in part because Kearns admitted he did not keep away from T.J.s property after she first indicated he was not welcome there. However, we presume the courts implicit conclusion that Kearns could not be trusted to keep away from T.J. absent a court order was also based in part on its evaluation of Kearnss demeanor at trial and its judgment of his credibility. In a court trial, the court is the sole judge of credibility, and we do not upset its findings on appeal.

Finally, Kearns complains a restraining order is disproportionate to the harm inflicted on T.J., particularly in light of her indicated willingness to accept a simple stay-away order. He also suggests his status as a good citizen, a retired firefighter, and a veteran should have mitigated against the imposition of the injunction sought by T.J.s petition. Because Kearns did not advance this argument at trial by asking the trial court to fashion a less restrictive remedy, he has forfeited it. But even if it were not waived, there was no error: the Legislature has determined that an injunction may issue to protect the petitioner if he or she demonstrates that the statutory definition of harassment has been satisfied, and the trial court here so found.^[3] It was not required to explore potentially less burdensome options not authorized by Civil Code of Procedure section 527.6.

DISPOSITION

The judgment (order) is affirmed.

MORRISON , Acting P.J.

We concur:

ROBIE , J.

BUTZ , J.

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^[1] Even if the finding is not express, we infer that the trial court impliedly made all necessary findings. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)

^[2] This situation is not, as Kearns suggests, analogous to a case in which one familys basketball playing was held not to constitute harassment of its neighbors. (See Schild v. Rubin, supra, 232 Cal.App.3d at p. 763.)

^[3] Kearns advances no authority for the suggestion that he should not have been required to give up his guns because his harassment did not take the form of overt threats.