Louen v. Twedt

Filed 10/4/06 Louen v. Twedt CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEALS from orders of the Superior Court of Fresno County. R. L. Putnam, Judge.

Farmer, Murphy, Smith & Alliston, George E. Murphy and Elizabeth A. Nunez for Defendant and Appellant.

Magill, Guzman Magill, Charles F. Magill and Laura Guzman Magill for Plaintiff and Respondent.

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Respondent Holly Louen sued appellant Brian Twedt under section 527.6 of the Code of Civil Procedure^[1] seeking an injunction against behavior she alleged was annoying and harassing. After a show cause hearing, the trial court found Mrs. Louen had proven the essential elements necessary for an injunction and entered judgment in her favor. Mr. Twedt appeals claiming that the trial court abused its discretion and denied him due process by denying his request for a continuance so that he could retain counsel to represent him at the show cause hearing. He also claims that his conduct, even as found by the trial court, as a matter of law does not provide a basis for injunctive relief under section 527.6. Finally, he contends an attorney fee award must be reversed.

We will affirm the judgment in full.

FACTS AND PROCEEDINGS

The Twedt family and the Louen family live directly across the street from one another in a gated community located northwest of Clovis in Fresno County. They have not gotten along. A detailed account of all the allegations of bad behavior that each family says the other has committed since April 2000 is not necessary for purposes of deciding the legal issues presented in this appeal.

The long-running animosity has resulted in two lawsuits seeking to enjoin harassment. Appellant and his wife Vickie Twedt brought the first lawsuit in 2002, seeking injunctive relief against respondent, her husband Mike Louen, and respondent’s mother Diane Meikle. Among other things, the petition alleged that the Louens had filed numerous frivolous complaints against appellant with his employer, the Fresno Police Department, in an effort to discredit him and get him fired. In the 2002 action, the superior court ultimately ruled that the evidence was insufficient to establish each of the elements of unlawful harassment as defined by section 527.6. Consequently, the superior court denied the Twedts’ request for injunctive relief and directed the parties to bear their own costs and attorney fees.

Respondent filed the second lawsuit, which is the subject of this appeal, on May 6, 2004. She sought an injunction pursuant to section 527.6 against appellant based on allegations of a course of harassing conduct. On May 10, 2004, a temporary restraining order (TRO) was issued against appellant.

On May 21, 2004, a hearing was held regarding appellant’s continued possession of the firearm he uses while employed as a police officer. Appellant was represented by attorney Joseph Arnold at this hearing. An agreement was reached by the parties allowing appellant to possess a firearm for use during his employment. The TRO was limited accordingly.

On May 27, 2004, appellant appeared without counsel at the hearing to show cause regarding the harassment and requested the matter be continued so he could retain counsel. The lawyer who had represented appellant at the May 21, 2004, hearing had been provided by the police officer association “solely for the purpose of hearing the issue of the relinquishment of the firearms.” Counsel for respondent agreed to the continuance. The show cause hearing was rescheduled for Thursday, June 10, 2004.

According to a posttrial declaration appellant filed in connection with a motion for new trial, he attempted to obtain an attorney for the hearing on June 10, 2004. He believed he had obtained an attorney but, on June 7, 2004, he was advised by the attorney that he could not represent appellant after all. Because the hearing in the 2002 action had been handled by the court in an informal way--basically, the parties had submitted declarations and other paperwork and the judge had taken the matter under submission--appellant was not concerned and thought he could do what was required.

When the show cause hearing began on June 10, 2004, appellant was representing himself. Respondent was represented by counsel. The hearing began with addressing preliminary matters, including time estimates. Counsel for respondent estimated four hours; the trial court expressed skepticism and estimated “a couple of days.” Appellant expressed anxiety about the TRO, which included the limit on his possession of a firearm, and urged that the matter be heard that day or dropped. The court inquired about counsel for appellant, and appellant explained that the attorney who had represented him in connection with the TRO had been provided by a police officer association solely for that purpose. In his opening statement, appellant told the court that he “would like to defend” himself “because nobody knows better than I what has gone on between myself and the Louens.” He also explained that he had children in college and did not want to bear the cost of hiring an attorney. After opening statements, two witnesses--respondent and a police officer--testified.

The second day of the show cause hearing, on June 11, 2004, began with a request for a settlement conference from appellant. The trial court recessed for that purpose but the effort proved unsuccessful. When the court reconvened, the following exchange took place regarding appellant’s request for a continuance so he could retain counsel.

“[Appellant]: Yes, your Honor [, I do not object to respondent calling witnesses out of order]. I’d like to request a continuance in this case as of today. I found--I discovered this last night when I went home that this is not like the TRO hearing I had last time. I came to this hearing with documentation for evidence, and last time we just submitted it to Judge Oliver, he read it, and we spoke briefly, and we waited for the conclusion. This is a different setting that I was not prepared for, cross, direct, admitting evidence, I’m not prepared to do that. I found that out yesterday, and I’m asking for a two-week continuance to obtain counsel. I cannot continue in this type of setting as pro per because of this kind of setting. I’m not used to this. I wasn’t even ready for this kind of setting, as you can tell yesterday, I was not prepared to admit evidence, I did not cross, direct, I need counsel if this is going to continue.

“The Court: Well, Mr. Magill, do you wish to be heard on that issue?

“Mr. Magill: Would you agree to that? My clients are willing to agree to continue the matter for two weeks in order for him to retain counsel, that is assuming he pays all costs “¦ [including] expert costs, we would agree. Also, the temporary restraining order that is in effect, having the gun exclusion, remains in effect until we have such hearing. Again, that’s the only way we would agree to a continuance.”¦

“The Court: I’m not willing to do that, Mr. Twedt. There’s other factors once you get into the process. The Court’s just not available in two weeks. This is a trial department, we hear all kinds of things, and this is not just something we interrupt and be prepared to go two weeks from now. It just doesn’t work that way.

“[Appellant]: Okay. Your Honor.

“The Court: I think you’re--I disagree with you. I feel you handled yourself well yesterday. And I certainly feel if you want to bring in counsel at any time, you can do so.

“[Appellant]: What, your Honor? I didn’t understand.

“The Court: As far as getting an attorney, you can bring him in any day.”

The show cause hearing proceeded that day and two more, ending on June 15, 2004. Appellant made no further mention of a continuance or the employment of an attorney.

On June 30, 2004, the trial court announced its findings and ruling from the bench. The court found six alleged incidents of harassing behavior by appellant to be true. The incidents included (1) interfering with the movement of respondent’s vehicle, (2) following her and passing her in a one-lane area on a police motorcycle, (3) shining his motorcycle light in her direction at approximately 11:00 p.m. for several minutes, (4) impeding her husband’s travel through an intersection by sitting through the entire green light before moving through on the yellow signal, thereby preventing Mr. Louen from proceeding, (5) impeding respondent’s entry into their neighborhood, and (6) an incident on April 30, 2004, in which appellant prevented respondent from entering an intersection on a green signal and, minutes later, confronted her at the entrance to the gated community by exiting his vehicle, and then aggressively walked toward her vehicle and yelled foul language including something to the effect, “You bitch. Get a life.” Next, the trial court determined that appellant’s behavior was a course of conduct of annoying and harassing behavior, that it served no legitimate purpose, and that it met the other requirements of section 527.6 for the issuance of an injunction.

The court delayed entering the injunctive order until appellant could obtain a psychological evaluation in connection with his possession of a firearm. At a September 24, 2004, hearing, the court stated that it had reviewed the psychological evaluation submitted and found by a preponderance of the evidence that appellant did not currently pose a threat of harm and consequently determined that he could continue to carry a firearm while on or off duty.

On September 29, 2004, the court filed a written order granting a three-year injunction that required appellant to stay at least 100 yards away from respondent, her husband and two sons, and the Louen family’s vehicles, but reduced the distance to 10 yards within their neighborhood and at the school their children jointly attend. With respect to firearm relinquishment, the order states appellant may carry a firearm, either on duty or off duty, based on the finding “that [appellant] needs his weapon to maintain employment and does not pose a threat of harm.” The order also requires appellant to participate in counseling.

On October 5, 2004, represented by counsel, appellant filed a motion for new trial, which was denied. Respondent filed a notice of motion for attorney fees, which was granted. Appellant filed a notice of appeal.^[2]

DISCUSSION

I. Continuance of the Show Cause Hearing

A. Due Process Right to Retained Counsel

Appellant argues the denial of his request for a continuance effectively denied his due process right to be represented by counsel. The California Supreme Court has recognized that the constitutionally guaranteed right to due process in civil litigation includes the right to be represented by retained counsel. (Roa v. Lodi Medical Group, Inc. (1985) 37 Cal.3d 920, 925.) Appellant cites, and we are aware of, no authority, however, that supports the proposition that the otherwise proper exercise of discretion to deny a continuance, which has an incidental effect on a litigant’s choice of counsel, infringes the litigant’s due process rights. The trial court here did not deny appellant the right to be represented. The court allowed appellant to choose to represent himself and then denied him a continuance when he said he had changed his mind. The real question presented is whether the trial court abused its discretion in denying the requested continuance.

B. Discretionary Continuances

“A motion for continuance is addressed to the sound discretion of the trial court.” (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395 (Oliveros).) “The denial of a continuance which has the practical effect of denying the applicant a fair hearing is often held reversible error.” (Cohen v. Herbert (1960) 186 Cal.App.2d 488, 494.) “‘[D]ecisions [whether to grant requested continuances] must be made in an atmosphere of substantial justice.’” (Oliveros, supra, at p. 1395.) In the proper exercise of the court’s discretion, there must be a balancing of the competing interests, bearing in mind that judicial efficiency is not an end in itself. (Id. at p. 1396.) The goal is to promote the just resolution of cases on their merits, and a request for a continuance supported by a showing of good cause usually should be granted. (Ibid.)

However, the denial of a request for a continuance of trial may not be reversed on appeal absent a clear showing of an abuse of discretion. (Foster v. Civil Service Com. (1983) 142 Cal.App.3d 444, 448.) The burden rests on the complaining party to demonstrate from the record that such an abuse has occurred. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)

Appellant compares this case to Oliveros, a medical malpractice case in which the trial court denied an unopposed request for a continuance where the request was made because, unexpectedly and through no fault of his own, the attorney for the county was engaged in another trial. The trial court had granted two continuances previously--the first so that the parties could complete discovery, and the second because the county’s attorney had a scheduling conflict. In denying the request for a third continuance, the lower court made comments about court congestion and judicial timeliness guidelines. (Oliveros, supra, 120 Cal.App.4th at pp. 1395-1396.) The cause went to trial on schedule, without either the county or its attorney present. The county then appealed.

In concluding the trial court had abused its discretion, the Court of Appeal explained that “‘efficiency is not an end in itself. Delay reduction and calendar management are required for a purpose: to promote the just resolution of cases on their merits.’” (Oliveros, supra, 120 Cal.App.4th at p. 1396.) Referring to Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242 and Lerma v. County of Orange (2004) 120 Cal.App.4th 709, both concerning requests for continuances so that the party could be represented by physically able counsel, the Oliveros court noted those cases were similar to the situation before it in that the trial court’s refusal to grant a continuance had the same effect: “[a]n utter lack of legal representation in court.” (Oliveros, supra, at p. 1398.)

We do not, however, view this case as comparable to Oliveros. This was not a complex medical malpractice matter; it was a simple matter in which the statute itself contemplates in pro. per. litigants. (§ 527.6, subd. (d) [“(a)t the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry”]; see Schraer v. Berkeley Property Owners’ Assn. (1989) 207 Cal.App.3d 719 [superior court could not limit hearing to argument and presentation of declarations and documents but was required to take relevant oral testimony offered by available witnesses].) This case does not involve a continuance requested before or even on an anticipated trial date; it involves a request made after trial had begun, witnesses had testified, and rulings on preliminary and evidentiary matters had been made. The denial of a continuance in this case did not result in a Hobson’s choice of either being represented by an individual not familiar with all of the case’s aspects or forgoing a defense; in fact, appellant himself had informed the court that no one was more familiar with the facts of the case than he was. (Cf. Oliveros, supra, 120 Cal.App.4th at pp. 1396-1397 [county’s attorney had spent 250 hours to prepare for trial].)

Appellant argues this case is like Oliveros because the request for a continuance was unopposed. But this overstates the record, which shows only that respondent and her attorney would not have opposed a continuance provided that appellant pay all costs, including attorney fees and expert witness fees,^[3] arising from the continuance and that the TRO, which included the limitation on appellant’s possession of a firearm, remain in effect. Nothing in the record demonstrates that appellant, either while he remained in pro. per. or later when he was represented by counsel, ever said he accepted those conditions. All we know from the record is that appellant had already expressed reluctance to pay for an attorney and had already expressed anxiety that the TRO end as quickly as possible. Thus, we cannot say whether the opposing side in this case did or did not agree to the requested continuance.

A similar failing in the record exists with regard to the trial court’s invitation to appellant to employ counsel and bring him or her into the case at any time, but without a continuance. Appellant cites nothing to show that he made any effort during the remaining days of the trial to employ counsel. He only notes that it would have been difficult for him to do so while representing himself at trial.^[4]

Appellant compares this case to Oliveros on the basis that the trial courts in both cases made comments about court calendars and congestion in denying the requested continuance. We note that there is an important distinction between Oliveros and the present case--the fact that trial in Oliveros had not commenced when the request for a continuance was made. We believe that scheduling concerns--such as the availability of the particular judge hearing the matter--can be magnified by the timing of a midtrial request for continuance. In any event, we note that appellant cites no authority for the proposition that the trial court was required to itemize the “other factors once you get into the process” on which it relied. Further, such other factors were present. Appellant had already been granted one 2-week continuance to obtain an attorney, had been unsuccessful in that endeavor, had expressed confidence that he had made a studied and correct choice in deciding to go forward in pro. per., and had expressed reluctance to incur the expense of being represented by an attorney.

In fact, the only factor that weighed in favor of a continuance was that appellant had, or at least said he had, changed his mind because representing himself had turned out to be much more difficult than he had expected. While we can certainly understand that the different ways in which the trial court judges in this case and in the previous section 527.6 matter between appellant and respondent conducted the proceedings could have proved disconcerting to appellant, and might even have caused him to make a different decision about hiring an attorney had he known of them in advance, we cannot and do not conclude from this single factor that the trial court abused its discretion in denying the continuance.

Finally, appellant contends that an abuse of discretion is shown because “prejudice was apparent at the time the court denied the requested continuance” in that it is well-recognized that one who attempts to “‘be both advocate and witness impairs his credibility as a witness and diminishes his effectiveness as an advocate.’” (People v. Goldstein (1982) 130 Cal.App.3d 1024, 1031.) But, that appellant had made or may have made a bad decision in deciding to represent himself is not, even in combination with the fact that he may have made that decision based on faulty assumptions about how this case would proceed, sufficient to convince us that the trial court abused its discretion.

We conclude that no error occurred.

II. “Course of Conduct” Harassment Is Not Limited to Stalking

Appellant argues he is entitled to a judgment in his favor because the harassing conduct in this case does not constitute the kind of stalking behavior specified in section 527.6, subdivision (b)(3). Under his statutory interpretation, the course of conduct of harassing behavior must be one of the types listed in the statutory phrase “including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual .”¦” (Ibid.)^[5] Because this list of behavior is introduced by the word “including” and not by the phrase “including, but not limited to,” appellant contends the Legislature intended to exclude behavior not specifically described.^[6]

Over half a century ago, the California Supreme Court stated that “[t]he statutory definition of a thing as ‘including’ certain things does not necessarily place thereon a meaning limited to the inclusions.” (People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 639.) Stated otherwise, “including” is ordinarily used in a statute as a word of enlargement and not of limitation. (In re Marriage of Angoco & San Nicolas (1994) 27 Cal.App.4th 1527, 1534.) We conclude that the Legislature used the word “including” in its ordinary sense and not to imply that behavior not mentioned was excluded from the type of harassing conduct that could be enjoined under the statute.

One reason for our view of legislative intent is that if one were to place stalking, annoying phone calls, and annoying correspondence on a continuum of recurring, harassing behavior that actually causes substantial emotional distress, there would be many types of behavior more annoying than harassing phone calls or correspondence but less distressing than stalking. To illustrate, one could escape annoying phone calls and get a decent night’s sleep by unplugging one’s phone for the night, but one cannot so easily escape a loud radio or other noise that continues all night. Because stalking behavior is quite different when compared to the other two types of harassment listed in the statute, one cannot characterize the three listed types of behavior as forming a naturally cohesive set. (2A Singer, Sutherland Statutes and Statutory Construction (6th ed. 2000 rev. & 2006 supp.) § 47:23 [inference that omissions from statutory grouping or listing were meant as exclusions has force “when the items expressed are members of an associated group or series”].) Thus, we infer the Legislature used the word “including” in its ordinary sense. The list of behavior is not exclusive, but provides examples of the types of harassing behavior sufficient to justify an injunction.

Thus, we are in agreement with the Second Appellate District’s decision in Grant v. Clampitt (1997) 56 Cal.App.4th 586 to uphold an injunction under section 527.6 that prevented a neighbor from further harassing the victim by playing a radio loudly.

III. Attorney Fees

Section 527.6 subdivision (i) provides the “prevailing party in any action brought under this section may be awarded court costs and attorney’s fees, if any.” The trial court here granted respondent attorney fees in the amount of $33,267.50. Appellant’s only attack on that portion of the order is dependent on his prevailing on the other aspects of his appeal. The order for attorney fees is therefore affirmed.

Respondent requests that we order attorney fees on appeal, but gives no reason why we should consider this appeal frivolous. We decline to find it so.

DISPOSITION

The orders are affirmed in full. Respondent is awarded costs on appeal.

DAWSON, J.

WE CONCUR:

_______________________________

LEVY, Acting P.J.

_______________________________

KANE, J.

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^[1]All further statutory references are to the Code of Civil Procedure.

^[2]Appellant filed separate appeals from the order entered on September 29, 2004, and the order entered on February 25, 2005, awarding reasonable costs and attorney fees. The parties stipulated to consolidating the appeals, and we granted the stipulation on April 21, 2005.

^[3]A psychologist was on the witness list for that day of trial.

^[4]On the first day of trial, appellant’s wife was present.

^[5]Subdivision (b)(3) of section 527.6 defines “course of conduct” as “a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, fax, or computer e-mail. Constitutionally protected activity is not included within the meaning of ‘course of conduct.’”

^[6]Appellant’s December 21, 2005, motion for judicial notice of legislative history documents is granted. The documents do not expressly state that the Legislature intended stalking and harassing calls and correspondence to be an exclusive list of the types of “course of conduct” harassment. The inferences that can be drawn from the documents are conflicting.