Christensen v. Goodwin

Filed 3/11/10 Christensen v. Goodwin CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County, Michael P. Vicencia, Judge. Affirmed in part and reversed in part.

Michael M. Bergfeld for Defendant and Appellant.

Christensen Ehret, Edward E. Sipes and Scott J. Sterling for Plaintiff and Respondent.

______________________________

The trial court granted a petition by Mark E. Christensen for a civil harassment restraining order on behalf of himself and his daughter, Sara Christensen, against appellant Eddie Goodwin. Goodwin contends the restraining order must be reversed because the record contains no evidence that Christensen suffered substantial emotional distress, and he was denied the right to cross-examine Christensen at the hearing on the petition. We hold the evidence is sufficient to establish emotional distress, but that Goodwin was denied his right to cross-examination in one limited respect. We therefore reverse the restraining order in favor of Sara Christensen, but affirm as to Mark Christensen.

Christensens Petition for the Restraining Order

Christensen filed a declaration in support of the restraining order, setting forth the following. Goodwin began making repeated harassing phone calls to him on January 18, 2009, at 4:30 a.m. Goodwin made at least 16 calls, the last being at 6:55 p.m. on January 19, 2009. Goodwin told Christensen to leave his wife, Shalondon, alone. Goodwin mentioned there had been a protective order entered against him in divorce proceedings when he assaulted and stalked his ex-wife. Goodwin made the following statements during the calls:

He had Christensens picture and he would come to his office in Torrance, Sacramento or Chicago and take him out. He knows what Christensen looks like, and Christensen cannot hide or run from me, White boy.

He will make sure it is the worst day of Christensens life.

Christensen will suffer and wish he had never spoken to Shalondon.

Goodwin will come to his offices and will yell and intimidate his employees to let them know who Christensen really is.

Goodwin will destroy Christensen professionally.

Christensen is a sexual predator who should be punished.

Goodwin will guarantee Christensen will wish he never met Shalondon.

Christensen considered Goodwins statements as threats of acts of violence against his person. When Goodwin was told to quit his unlawful and harassing phone calls, he raised his voice, spewed profanity and repeated his threats. Goodwin has disparaged the ethnic heritage of Christensens 18-year-old daughter to others.

On January 19, 2009, Goodwin placed two phone calls to Shawna Kashack at Christensens Sacramento law office, advising her that Christensen was a sexual predator, making slanderous statements regarding Christensens professional reputation, and stating he was coming to the office to get Christensen. Kashack was in fear as a result of the call. She locked the office doors and has filed a complaint with the Sacramento Police Department.

Goodwin appeared at Christensens Torrance law office on January 20, 2009. He stood in front of the office for five hours, yelling at employees as they entered and exited the premises. He shouted at passing cars and yelled at potential clients and vendors. Goodwin limited the movement of employees by harassing them with words, his physical presence, and following them. Goodwins conduct created fear and apprehension in the employees and required police protection. Christensen was not present at the office that day.

Goodwins Answer to the Petition

Goodwin filed an answer to the petition supported by his own declaration. In his declaration, Goodwin denied the allegations of the petition, describing them as totally false. Christensen was doing all he could to stop Goodwin from exercising his First Amendment rights and would do whatever it takes to stop him, including committing perjury. Goodwin described Christensen as an evil man. Goodwin never harassed him, as he is too smart to do something that stupid.

Goodwin does not know Christensens family situation. He did not know Christensen had a daughter until he received the petition.

Goodwin had not heard of Christensen until the morning of April 18, 2008, when he saw a message from Christensen on his wifes cell phone. The message mentioned an earthquake in Chicago that morning, but ended by stating, I want you. Goodwin interpreted the message to mean Christensen wanted to have sex with his wife. Goodwins wife would not tell him anything except that she did not know why Christensen would send that type of message. Goodwin called Christensen, but he would not talk to him. Goodwin advised Christensen to stay away from his wife.

Goodwin tried to convince his wife to file a complaint against Christensen. He could not understand why she was so afraid of Christensen, and they frequently argued over the issue. The text message could not have come at a worse time, because although Goodwins wife had filed for divorce, they had decided to stay together and her lawyer had been called to stop the process.

Christensen used to work as a lawyer in the same office where Goodwins wife worked. Christensens firm now works with insurance companies, such as the one his wife works for, so he is an important person in her industry and within her office. He now understands why his wife is so afraid of Christensen.

Goodwin found out on January 18 that Christensen was still calling his wife. Goodwin called Christensen and told him he was going to hold a nonviolent protest in front of his business, and he was going to file a sexual harassment complaint on his wifes behalf with the bar associations in California and Illinois.

Before starting his protest, Goodwin spoke to the Torrance Police Department and the Torrance City Attorney, who advised him of what he could or could not do to protest in front of a business. He did as told, staying on the sidewalk and never blocking the entrance. Christensen called the police, who talked to Goodwin and then left. Christensen did not file for a restraining order until after Goodwins lawful protest at his office.

Hearing on the Petition

Christensen and Goodwin appeared at the hearing. Christensen was represented by counsel, but Goodwin represented himself. Daisy Martinez was present as a witness for Christensen. The witnesses were placed under oath by the court clerk. The trial court indicated it had read the declarations submitted by Christensen and Goodwin.

Martinez testified she works for the Christensen Ehret law firm in Torrance, where Christensen is employed. She first saw Goodwin on the Tuesday after Presidents Day at 10:00 a.m. The receptionist called her to her desk. She heard Goodwin saying Christensen was a scumbag and a low life who had texted his wife. She described Goodwin as intimidating and disruptive. Goodwin followed Martinez when she left the building at noon, trying to get her attention and getting as close to one foot from her. Goodwin said, How does it feel to work for a scumbag? Goodwin raised his voice, scaring Martinez, who was nervous and thought there was a possibility he was going to hurt her.

On cross-examination by Goodwin, Martinez testified that the police responded but she did not speak with them. They left without making an arrest. Goodwin followed her as she walked out of the building for a few seconds. He was not yelling at her. On redirect examination, Martinez testified Goodwin was outside the building from 10:00 a.m. to 1:30 p.m.

Counsel for Christensen then asked to examine Christensen as a witness. The trial court indicated it had read Christensens declaration and asked if he was going to testify to anything not in the declaration. The court said it would stop questioning if he covered the same material as the declaration. At this point, counsel said Christensens testimony would essentially be a regurgitation of the declaration.

The trial court asked Christensen one questionwhether he knew Goodwins wife or ex-wife. Christensen testified he knew her as a business associate and a friend. Counsel said he reserved the right to rebuttal after the cross-examination. Goodwin did not ask to cross-examine Christensen, but instead testified on his own behalf.

Goodwin testified that Christensens version of events consisted of many lies. Goodwin had only called Christensen twice, not 16 timesonce after seeing the text message and then recently. He is not stupid enough to threaten anybody over the phone. He did tell Christensen he was going to protest in front of his office and file complaints with the California and Illinois Bar Associations. He was going to protest at the office because Christensen is a sexual predator and a sexual harasser. Although the text message was sent from Chicago and made reference to an earthquake that occurred there, Goodwin believed that by texting I want you, Christensen indicated he wanted to have sex with Goodwins wife. There could be no other reason for a man to text a message like that to a woman at 6:00 in the morning.

According to Goodwin, Christensen is a big person in the insurance industry, and if his wife testified against Christensen, she would not have a career. Christensen takes advantage of someone like Goodwins wife because she could not get another job if she complained about him.

Goodwin believed Christensen was trying to stop him from exercising his First Amendment rights, as he did not seek a restraining order until after the protest.. Goodwin checked with the city attorney before going to Christensens office to make sure his conduct was lawful.

Counsel for Christensen advised the trial court he wanted to play a voicemail message left by Goodwin, over Goodwins objection that the tape was inadmissible. Christensen testified that the voicemail message was from a call made by Goodwin on January 19. The recorded message followed an earlier threatening phone call in which Christensen spoke directly with Goodwin. The following is the contents of the voicemail message:

Hey you goofy looking geek, you know, I saw your picture, listen, you are one goofy looking son of a gun. You actually think somebody would be interested in you? I know why she may be interested, okay, she says you got some money and that you harassed her. And she know she cant do nothing without somebody like you supporting her. But I tell you what, Im going to the Illinois Bar, the California Bar, any other bar I can think of, and . . . believe me, after they contact you, youre gonna wish you never met my wife, I guarantee that. You are a sexual predator. What kind of person would send a text message out and what kind of guy your age doing text messaging. What kind of, you geek, at your age text messaging? You going to text message while I am in bed with my wife, telling her you want to have sex with her? You got some audacity to do something like that. But I tell you what, I guarantee you, Im going to the California Bar, Im going to the Illinois Bar, and if you threaten me, youre going, youre going to be in big trouble buddy, I guarantee that. Im making sure you lose your, your license to practice law, and everything else. And then like I said, Im going to be protesting at your offices, you got that buddy, and you cant stop. I have a right to do that. You cant stop me from doing that. And believe me, youre going to wish you never met Shalondon, Im going to Old Republic, Im going to anybody that bitch ever worked for. You are a sexual predator, you are a geek, you are a sick individual, and I guarantee you, in about a month or two, you are going to wish you never met Shalondon, I guarantee you that. You geek.

The trial court asked for substantiation that Goodwin had called Christensen 16 times. Christensen, emphasizing that he was testifying under oath, said the first call on his cell phone was on January 18 at 4:30 a.m., and in total there were 16 calls. He talked to Goodwin on the 15th call, and then Goodwin left the voicemail on the 16th call. Christensen wrote down the time of each call.

The trial court commented that Goodwins sexual predator accusation was just an opinion, but it had not heard that Goodwin threatened or committed violence. The court observed that Goodwin believed his wife was being harassed, and he cannot be stopped from a peaceful protest. Threatening to destroy someone professionally is not the basis for a restraining order. The allegation that Goodwin said, I will take you out was not in the recorded voicemail. Christensen testified that, in his opinion, Goodwin left the voicemail after making the oral threat in the earlier call because he was concerned about having made the threat. When Goodwin interrupted, the court said, Im tempted to grant this restraining order just because of your loud, obnoxious demeanor here. The court expressed the opinion Goodwin was irrational and his response to the text was amazingly overblown.

Counsel for Christensen asked permission to question Christensen further. The trial court asked for an offer of proof. Counsel, who was not sworn, told the court Christensen spoke with Goodwin prior to the protest and felt fear for his life and safety. Christensen filed a police report. The next day, Goodwin showed up outside of his office. Counsel told the court that Goodwin screamed and yelled at the top of his lungs to everybody who came in and out of the office, saying that Christensen was a sexual predator and scumbag, over a period of five hours. Every employee entering or exiting the office was yelled at with, You work for a scumbag. How do you work for a scumbag?

The trial court pointed out that what counsel described was not violence or the threat of violence. Christensen then testified that he was not at the office that day, but wondered what would have happened had he been there, one day after threats were made over the phone. Christensen noted that Goodwin hold him he had his picture from a website.

Christensens counsel told the trial court Goodwins presence and yelling about Christensen being a scumbag and sexual predator served no purpose. This conduct would cause a reasonable person to suffer substantial emotional distress and in fact, Goodwin caused distress. Allowing Goodwin to continue to show up at the office puts the employees in fear for their safety. Two employees tried to walk away, but Goodwin walked toward them and yelled. A witness testified she was nervous and in fear for her safety. The court said that is not harassment of Christensen. Counsel said they want an order to keep Goodwin away from the office.

The trial court said there was one day of protest, one in-person phone conversation, and the message the court heard. Counsel added there were 15 other calls, but the court noted they were not answered. Counsel also said there was a threatening call to the Sacramento office.

The trial court asked Goodwin if there was anything else he wanted to say. Goodwin said he wanted to have the policeman who was at the scene testify, but the court observed the witness was not present. Goodwin said he made a peaceful protest, but the court said it did not sound peaceful and he had impeded peoples ability to walk. Goodwin said he did not scream at anyone and the police came twice and left.

As Goodwin repeated his earlier testimony, including that Christensen had lied, the trial court gave him a final opportunity to provide the court with additional facts. Goodwin testified he did not threaten Christensens daughter, as he did not know he had a daughter until receiving the restraining order. He did not know who the others were that Christensen said had heard things. Goodwin said he wanted to ask Christensen who the others were, but the court refused to allow him to ask the question. Goodwin said he had nothing else to tell the court.

Martinez was recalled and testified that when she came to the reception area of the office at 10:00 a.m., she saw Goodwin pacing back and forth on the sidewalk, saying things about Christensen. When she went out at noon for lunch, Goodwin tried to get her attention by saying Hey. Hey. She kept walking, but Goodwin got within one foot of her and said, How does it feel to work for a scumbag? She had to move because she thought Goodwin was going to come closer to her than she wanted him to be. She saw him act in a similar fashion toward the receptionist, but did not hear what he said to her.

The trial court said it had heard enough and was going to issue the restraining order in favor of Christensen and his daughter. Goodwin responded by telling the court he did not get a fair trial because the court did not let him speak. According to Goodwin, Christensen went on and talked for a long time about me confronting him, but I didnt ask him any more questions. They lied about what the police did, and he never found out who the others were who said he mentioned Christensens daughter. Goodwin asked why he could not ask those questions. All he did was hold a peaceful protest. The court favored Christensen because he is an attorney, and the hearing was not fair. The court had said it was going to rule for Goodwin, but changed the ruling after Goodwins interruptions.

The trial court disputed that it ruled against Goodwin because of his interruptions. Instead, the court explained that it ruled against Goodwin because of a course of conduct involving three eventsthe phone call testified to by Christensen, the voicemail the court heard, and the interruption of the business with respect to Martinez and the receptionist. Describing Goodwins conduct as clearly outrageous, the court said the message left was threatening, and it assumed similar things were said to Martinez. Specifically, calling someone a sexual predator based on three words in a phone message, then yelling at everyone who will listen, is outrageous conduct. On that basis, the court found by clear and convincing evidence that Christensen and his daughter were entitled to a restraining order.

DISCUSSION

I

EVIDENCE OF EMOTIONAL DISTRESS

Goodwins first contention is that the restraining order was issued in error because no evidence was presented that Christensen suffered substantial emotional distress as a result of Goodwins conduct. We disagree.

Standard of Review

The determination that a restraining order should be granted rests in the sound discretion of the trial court. (Biosense Webster, Inc. v. Superior Court (2006) 135 Cal.App.4th 827, 834.) 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. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925; Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873; Skyway Aviation, Inc. v. Troyer (1983) 147 Cal.App.3d 604, 609.) (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.) 

Restraining Orders under Code of Civil Procedure Section 527.6

Under section 527.6, (a) 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. [] (b) For the purposes of this section, harassment is 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.

We have held that for purposes of section 527.6, emotional distress means highly unpleasant mental suffering or anguish from socially unacceptable conduct (Thing v. La Chusa (1989) 48 Cal.3d 644, 648), which entails such intense, enduring and nontrivial emotional distress that no reasonable [person] in a civilized society should be expected to endure it. (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397; see BAJI No. 12.73.) (Schild v. Rubin, supra, 232 Cal.App.3d at pp. 762-763; see Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1414.)

The emotional distress element of section 527.6 may be established through circumstantial evidence. (Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1110.)

The Evidence is Sufficient to Establish Emotional Distress

We reject Goodwins argument that the record contains no evidence that Christensen suffered the required substantial emotional distress. A restraining order issued under Code of Civil Procedure section 527.6 may be based on a combination of written and oral testimony. The court is required to receive relevant testimony at the hearing, whether oral or written. (Schraer v. Berkeley Property Owners' Assn. [(1989)] 207 Cal.App.3d [719], 730-733; [Code Civ. Proc.,] 527.6, subd. (d).) (Adler v. Vaicius (1993) 21 Cal.App.4th 1770, 1776.) Thus, the trial court properly relied upon the contents of Christensens declaration, in addition to all the evidence presented at the hearing, in issuing the restraining order.

In his petition for the restraining order, Christensen indicated the harassing conduct caused substantial emotional distress, as reflected in his declaration. In the attached declaration, Christensen detailed a series of phone calls from Goodwin on January 18-19, 2009. Among the statements Goodwin made was a threat to take [Christensen] out, coupled with an indication that Goodwin knew the location of Christensens three offices and what Christensen looked like, and that he could not run or hide from Goodwin, referring to him as White boy. Christensen took these statements as threats of violence against his person. Christensen further described Goodwins conduct at his Torrance office, including yelling at employees and clients, harassing their movements, and creating fear and apprehension.

At the hearing, the trial court listened to the voicemail left by Goodwin. In addition, Christensen testified he was not at the office the day of Goodwins protest, which was one day after the threats were made in the phone call, but he wondered what would have happened had he been there, noting that Goodwin told him he got his picture from an Internet site.

Viewing this evidence in the light most favorable to Christensen, we hold the trial court did not abuse its discretion in impliedly finding that Christensen suffered the necessary degree of emotional distress. The court could have reasonably concluded that Goodwins threatening, outlandish conduct would have caused a reasonable person, and did cause Christensen, to suffer an intense, enduring, and nontrivial emotional distress that satisfies the requirements of Code of Civil Procedure section 527.6.

II

DENIAL OF CROSS-EXAMINATION

Goodwin also argues the trial courts denial of cross-examination of Christensen requires reversal. We agree that denial of cross-examination in the one area in which Goodwin requested to ask a question requires reversal of that portion of the restraining order pertaining to Christensens daughter.

The Right to Cross-examine

Parties at a hearing on a petition for a restraining order, in general, have the right to cross-examine witnesses. [T]he procedure for issuance of an injunction prohibiting harassment is self-contained. There is no full trial on the merits to follow the issuance of the injunction after the hearing provided by Code of Civil Procedure section 527.6, subdivision (d). That hearing therefore provides the only forum the defendant in a harassment proceeding will have to present his or her case. To limit a defendants right to present evidence and cross-examine as respondents would have us do would run the real risk of denying such a defendants due process rights . . . . (Schraer, supra, at pp. 732-733.) (Nora v. Kaddo (2004) 116 Cal.App.4th 1026, 1029.)

Goodwins Request for Cross-examination of Christensen

As discussed above, Christensens case was presented primarily through his declaration attached to the petition for the restraining order, although he did provide brief and limited testimony. Goodwin requested to question Christensen on only one pointthe identity of the others referred to in Christensens declaration who said Goodwin had made statements about Christensens daughter. Goodwin testified he did not even know Christensen had a daughter, and he would like him to answer that one question. The trial court replied, No.

In so ruling, the trial court erred. Goodwin was entitled to cross-examine Christensen at the hearing. While there is no doubt that a trial court has discretion in determining the scope of cross-examination (Evid. Code, 352 [power to limit questioning on subjects substantially more prejudicial than probative], 765, subd. (a) [court controls mode of interrogation of witnesses]), the court had no apparent basis for excluding questioning on this topic. In fact, an attempt to identify who had attributed statements being made by Goodwin regarding Christensens daughter, and the content of those statements, is an entirely proper ground of inquiry. Christensen does not assert that he personally heard Goodwin make statements regarding his daughter, and as noted, Goodwin denied knowing of the daughters existence, so it was not unreasonable for Goodwin to ask questions to determine the source and content of the information.

Christensen points out that the limited testimony he gave at the hearing did not refer to his daughter, and thus cross-examination on statements relating to his daughter was beyond the scope of his testimony. (Evid. Code, 773, subd. (a).) This is a far too restrictive view of the scope of cross-examination at a hearing under Code of Civil Procedure section 526.7. A party may rely on declarations in support of a petition for a restraining order, but the opposing party has the right to cross-examine the declarant regarding disputed material portions of the declaration. This is particularly so where, as here, the declarant has no personal knowledge of the statements, the person or person who reported the statements is not identified, and the content of the statements is vague and unclear. Cross-examination on this limited portion of Christensens declaration was not outside the scope of his overall testimony, because the bulk of his evidentiary presentation was by declaration. Even if Christensens restrictive reading of the scope of cross-examination were correct, Goodwin could have called Christensen as his own witness to question him regarding the identity of the others referred to in Christensens declaration.

Christensen also argues he was not a witness at the hearing because he was not formally called as a witness, the trial court precluded Christensen from testifying when counsel sought to question him, he was never questioned by his attorney, and the reporters transcript does not list him as a witness. The argument is frivolous. Christensen was in the process of describing the calls he received from Goodwin to the court when he reminded the court he was answering under oath and testifying as to when the calls came in. Christensen was a witness at the hearing.

Remedy

As indicated, Goodwin only requested to cross-examine Christensen regarding the others who had said Goodwin made statements regarding Christensens daughter. Goodwin denied knowing of the daughters existence. Denial of cross-examination in this one area constitutes prejudicial error, requiring reversal of that portion of the restraining order prohibiting contact with Christensens daughter. Upon issuance of the remittitur, if Christensen desires to pursue a restraining order that protects his daughter, a hearing must be held in which Goodwin is afforded the right of cross-examination on this one subject.

However, there is no basis to reverse the balance of the restraining order. Goodwin did not ask to cross-examine Christensen on any other topic other than the statements regarding his daughter. As the error in issuing the restraining order only pertains to that portion protecting Christensens daughter, we conclude the limited denial of cross-examination provides no basis for reversal of the order in its entirety.

Motions to Augment and to Take Additional Evidence

Goodwins motion to augment the record and motion to take additional evidence are denied. This court will not consider evidence not before the trial court or facts pertaining to events occurring subsequent to the hearing.

Christensens motion to augment the record with the declarations of two witnesses that were tendered, but not received by the trial court, is granted. However, assuming the court erred by denying admission of the declarations as evidence, the error would have no impact on our resolution of the appeal, as we have upheld the bulk of the restraining order and the portion reversed is not the subject of either declaration.

DISPOSITION

The portion of the restraining order protecting Sara Christensen is reversed. In all other respects, the order is affirmed. Parties shall bear their own costs on appeal.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J.

WEISMAN, J.^*

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