Filed 12/28/17 D.M. v. Bross CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)
----

D.M.,

Plaintiff and Respondent,
v.

JASON BROSS,

Defendant and Appellant. C082831

(Super. Ct. No. PC20150395)






D.M.,

Plaintiff and Respondent,
v.

SANDRA BROSS,

Defendant and Appellant.
C082848

(Super. Ct. No. PC20150375)



In re the Marriage of J.S. and SANDRA BROSS.
C082850

J.S.,

Plaintiff and Respondent,
v.

SANDRA BROSS,

Defendant and Appellant.
(Super. Ct. No. PFL20010389)
In consolidated appeals from restraining orders granted against appellants Jason and Sandra Bross, we find sufficient evidence to support the restraining orders and affirm the orders in all three cases.
I. BACKGROUND
Sandra Bross and J.S. were previously married. Their marriage was dissolved in or about June 2002, but litigation continued for years thereafter, resulting in a file in the El Dorado County Superior Court that, at the time of trial here, extended to seven volumes.
Sandra is currently married to Jason Bross and J.S. is engaged to D.M. J.S. and D.M. have a minor child together.
A. Petitions
On June 8, 2015, J.S. filed a request for a domestic violence restraining order (DVRO) against Sandra pursuant to Family Code section 6200 et seq. J.S. sought protection for himself as well as D.M. and their son. In support of his request, J.S. alleged numerous acts of harassing behavior. Among the allegations, J.S. alleged that a drone flew over his family’s home in October 2014 and again in April 2015. He further alleged that on May 30, 2015, Sandra and Jason flew a drone over his family’s home. J.S. also alleged that on August 26, 2014, someone threw golf balls at the roof of his family’s home. J.S. stated that “nobody is off limits when [Sandra] wants to terrorize and intimidate, including my family.”
The trial court did not issue any temporary orders, but set the matter for hearing on July 10, 2015.
On July 22, 2015, D.M. filed a request for a civil restraining order against Sandra pursuant to Code of Civil Procedure sections 527.6 and 527.9. D.M. sought protection for herself as well as J.S. and their son. In support of her request, D.M. alleged Sandra and Jason used a video drone to stalk D.M. and her family. She claimed that on “several occasions” the drone appeared over her family’s home, including four occasions in April 2015 and on May 30, 2015. When the drone appeared on May 30, 2015, D.M. and her friends followed the drone to a nearby campground where it landed and was retrieved by Sandra and Jason.
D.M. further alleged that on a separate occasion, Sandra followed her through a Home Depot. Then, as Sandra drove away, she honked her horn and gestured at D.M. “with her hand crossing her throat and then pointing at [D.M.].” The court issued a temporary restraining order against Sandra and set the matter for hearing on October 27, 2015.
On August 5, 2015, D.M. filed a request for a civil restraining order against Jason pursuant to sections 527.6 and 527.9. D.M. sought protection for herself, as well as J.S. and their son. In support of her request, D.M. repeated the allegations of drone activity around her family’s home and the allegation that Sandra made a threatening gesture at her in the Home Depot parking lot. The trial court issued a temporary restraining order against Jason and set the matter for hearing on February 3, 2016.
B. Hearing Testimony
A single evidentiary hearing on all three petitions took place on June 23, 2016. D.M., Sandra, and Jason each were represented by counsel. J.S. represented himself.
1. Sherry - RV Campground Manager
Sherry, manager for the Coloma Resort RV campground (RV campground) testified that at 3:44 p.m. on Saturday, May 30, 2015, a reservation was made for Jason and Sandra for that same night. She saw Jason and Sandra at the campground on Sunday, May 31, 2015, and they checked out at 12:49 p.m. on that same day. She received a report from a staff member that Jason and Sandra operated a drone that weekend but the staff member did not specify which day. Sandra approached Sherry on Sunday, May 31, and advised her that she and Jason did “aerial photography.”
2. David - D.M.’s Tenant
David rents a cottage from D.M. His cottage is across the river from the RV campground and about 100 yards away from D.M. and J.S.’s home.
David testified that he noticed drone activity around his cottage three or four times in April or May of 2015. He had not seen a drone before that time, nor has he seen one since. He could not identify the drone as the same on each occasion. He did note the drone was “a pretty big one,” that it had four propellers and blinking lights. He said the drone hovered, stationary, “over the property quite a bit,” and he could see the drone’s blinking lights from inside his cottage, through the windows.
3. Chris
Chris testified that on May 30, 2015, he was at J.S. and D.M.’s home and saw a drone hovering over their property. He, along with the others, got into D.M.’s car and followed the path of the drone across the river to the RV campground where they found Sandra and Jason with a drone in their campsite. He acknowledged that he did not see the drone at all times while they were following it, nor did he see Sandra or Jason actually operating the drone.
4. Laura
Laura was also at J.S. and D.M.’s home on May 30, 2015. She was on the back patio with D.M.; it was later afternoon but still light out, when she saw a drone with blinking lights come across the property and remain stationary, hovering over the property. She and D.M. went inside to tell Chris and J.S. The drone left the property by traveling across the river. The two couples got into the car and drove to the RV campground where they saw Sandra and Jason. She saw Jason “squatting down” and looking at a drone. Laura acknowledged that she did not see the drone land and she did not see either Sandra or Jason operating the drone.
5. D.M.
D.M. testified that she saw the drone hovering over her property in the late afternoon on May 30, 2015. After seeing the drone, she and Laura went inside, told Chris and J.S., and from inside the house they watched the drone hover over the property. The drone hovered over the property for about 15 minutes. D.M. had never seen drone activity on her property before that day. She thought Sandra and Jason might be controlling that drone because the relationship with Sandra was not “civil.” She and the others drove to the RV campground where she saw Sandra and Jason with a drone. The drone was on the ground and Jason was doing “something” with it, though she could not determine what he was doing.
D.M. thought the drone at the campsite appeared to be the same drone that had been hovering over her property. D.M. also thought it might be the same drone that Jason used to record a family member’s graduation the year prior. She knew that Jason had a YouTube channel where he would post drone videos. D.M. watched the channel and saw video of her property that was uploaded on June 4, 2015.
According to D.M., this was not the first time Sandra conducted surveillance of her and J.S. There were “transcripts” in which Sandra talked about pictures and video tape she had of J.S. and D.M. D.M. said she was afraid of Sandra.
D.M. described another incident where she believed Sandra was harassing her. On June 8, 2015, D.M. and J.S. went to The Home Depot. They were walking out of the store; Sandra was near the returns counter. Sandra, looking at D.M., “took her finger and put it across her throat.” D.M. described the gesture as “very quick.” D.M. turned, “basically ran” to the back of the store, and waited for Sandra to leave. When she saw Sandra driving away in her car, D.M. moved to the garden section and hid behind a plant to watch her leave. Sandra saw D.M., honked her horn, and “did the same gesture.” D.M. was “nervous and scared.” She did not see anyone else in the car with Sandra.
On a different occasion, after leaving the courthouse on the restraining order litigation, D.M. went to Walmart and Sandra was there. D.M. did not believe that was a coincidence. She asked someone from the store to walk her out.
There was no further confrontation and no further drone activity since the temporary restraining orders were issued.
6. J.S.
J.S. also testified about the drone hovering over his family’s home on May 30, 2015. He described being inside the house with Chris when D.M. and Laura came inside “in a bit of a nervous wake.” The two women said there was a drone hovering over the property. They all looked out the kitchen window and he saw the drone. They got in the car and drove “a few short minutes” to the RV campground where he saw Sandra and Jason in a campsite. Jason was “over the drone” and it appeared to J.S. to be the same drone that was hovering over his home: white, x-shaped, with blinking lights. There did not appear to be anyone else in the campsite with them. He had not seen drone activity at his home prior to May 30, 2015, and had not seen any since.
According to J.S., the adult children he shares with Sandra know where he and D.M. live; they have known since J.S. and D.M. moved there. At the time of trial, J.S.’s adult son was living in a cottage on the property.
J.S. also testified that, while he was with D.M. at The Home Depot on June 8, 2015, he did not see Sandra make any of the gestures D.M. described.
7. Jason
Jason has been flying drones as a hobby since 2007. His drone is white, x-shaped, with blinking lights. He has a YouTube channel where he posts video from drones. He would sometimes post video of “certain historic natures,” like Sutter’s Mill.
Sometime around June 5, 2015, Jason posted a video of the RV campground to his YouTube channel. J.S. and D.M.’s property was included in the “field of view” in that video but, according to Jason, that video could have been recorded months earlier. He remembered this video was shot in a single day. He edited the video and added music, which could have taken a “couple weeks to a month.” He thought he may have flown his drone over that area, within 500 yards of the Coloma Bridge, “just a couple of times” in the past few years.
Jason acknowledged being at the RV campground on May 30, 2015, but he did not go there to “capture . . . video footage.” According to Jason, he and Sandra were not alone at the campsite, Jason’s son and his son’s friend were there as well. He remembered that Sandra made the reservation for the campsite at the “spur of the moment” and he was excited to go. They arrived at 7:00 p.m., set up camp, had a fire, and probably roasted marshmallows. They left the following afternoon. He testified, unequivocally, that he did not take the drone to the RV campground that weekend.
According to Jason, none of J.S. and Sandra’s adult children knew where J.S. and D.M. lived. He said they would meet in other locations, that J.S. and D.M. kept their location a secret. He denied the relationship between J.S. and Sandra was hostile, describing it as “casual,” though he also said, “[i]f you were to tell me that [J.S.] and [Sandra] were going to court for something, it would be not a surprise. It’s a normal thing. This is normal to me.”
8. The Home Depot Asset Protection Manager
A district asset protection manager for The Home Depot, testified about security tapes of the relevant store on June 8, 2015. He reviewed the tapes and was able to identify Sandra, watch her drive up in a white car, go into the store, and stand at the returns desk. He did not see her run a finger across her throat or make any threatening gestures while she was in the store. Watching the video again in the courtroom, he thought Sandra lifted her fingers to scratch her neck, but nothing more.
The asset protection manager did observe D.M. speaking to a man, look toward Sandra, then walk away. Sandra’s back was to D.M. and D.M. did not get within 25 feet of Sandra. There was no video of D.M. in the parking lot.
9. J.S. and Sandra’s Daughter
J.S. and Sandra’s daughter, T., testified that she was with her mom, at The Home Depot on June 8, 2015. She waited in the car while Sandra went inside. She did not see Sandra make any threatening gestures toward D.M. that day. T. described her parents’ relationship as “not good.”
10. Sandra
Sandra testified that she did not make any threatening gestures at D.M. in The Home Depot on June 8, 2015. She did not see D.M. in the store or the parking lot that day. She went to The Home Depot to return some things, she returned them, and she left.
She also testified that she does not own a drone and does not know how to operate a drone. On May 30, 2015, she went to the RV campground with her husband, their son, and their son’s friend. They went to the campground solely to “get away and hang out together as a family.” They did not have a drone with them. According to Sandra, she did not know J.S. and D.M. lived nearby.
In the few years prior, Sandra and J.S. had been fighting in court over child support. According to Sandra, at the time of trial, there was a criminal action for contempt pending against J.S. as a result of his failure to pay child support. Trial on the contempt charge was pending when the restraining orders were obtained. Sandra nevertheless testified that she had no animosity toward either J.S. or D.M. and the relationship was not hostile. Sandra admitted to obtaining four hours of videotape of J.S. from a private investigator.
The court admitted into evidence two prior applications for restraining orders against Sandra, filed in 2001, each for the protection of different people. The court also admitted into evidence a reporter’s transcript in which Sandra’s mom called her a “chronic liar.” These documents all were admitted for impeachment purposes.
C. Ruling and Appeal
Following argument, the trial court issued its decision. First, the court found Sandra did not threaten D.M. with a gesture at the The Home Depot on June 8, 2015. “If there was a gesture, it was so subtle that even I missed it in two watchings, so I do not think that occurred.” The court opined that D.M. may be “hyper vigilant” given the parties’ history.
Second, the court found by clear and convincing evidence that the drone incident did occur and that Jason was “the one that was in control of” the drone. Thus, the court found “substantial evidence to issue the restraining order as to [Jason].”
The court offered further explanation with regard to Sandra: “Becomes a little more, I’ll say, difficult, for lack of a better term, as to [Sandra]. I heard no testimony that she even knows how to operate a drone. I have played around with one and I’ll say they are not easy to fly and so I’ve heard no evidence that she has the ability or the opportunity, et cetera, to fly one of these things, and then that brings into question you know what’s going on here. Basically why is what’s the genesis of this. And that’s where this other testimony concerning her voracity [sic] and things come into play. I think no one could argue that this situation, this dynamic has been anything other than hostile. And while I know people try to always put themselves in their best light, in the best light possible, to call this [anything] other than an acrimonious situation is stretching credibility.”
The court noted the length of the family court file in this matter, which extends to volume “G.” The court also noted that in the 10 months since the temporary restraining orders were put in place, that “things have been peaceful.” The court considered this to be “another consideration . . . in issuing orders here.” And the court admonished the parties for putting their children in the middle of their dispute, finding fault on both sides.
The court ruled as follows: “based on the testimony, and the Court taking a look at this file and all of the evidence that’s been presented here. I’m going to find there’s substantial evidence to warrant issuing the civil harassment restraining order as to [Sandra] and I’m also going to issue the family law restraining order in favor of [J.S.].”
II. DISCUSSION
A. Standards of Appellate Review
“The most fundamental rule of appellate review is that an appealed judgment or order is presumed to be correct. ‘All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’ (Denham v. [Superior Court of Los Angeles County] (1970) 2 Cal.3d 557, 564 [additional citations omitted].)” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2017) ¶8:15, p. 8-5.)
If, however, the judgment arises from the trial of a question of fact by the court, a party may request a statement of decision in the trial court to facilitate appellate review. (§ 632; see also In re Marriage of Fong (2011) 193 Cal.App.4th 278, 293 [“A statement of decision facilitates appellate review by revealing the bases for the trial court's decision”].) “A court trying a question of fact must issue a statement of decision explaining the factual and legal bases for its decision on the principal controverted issues at trial, upon a timely request by any party appearing at trial. [Citation.]” (In re Marriage of Fong, supra, 193 Cal.App.4th at p. 293, italics added.) In this case, we need not decide whether the trial court proceedings constituted “the trial of a question of fact” such that a statement of decision could have been requested—because neither party made such a request. Where neither party requests a statement of decision, or a trial court is not required to prepare a statement of decision, the trial court’s order is presumed correct. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2017) ¶8:15, p. 8-5.) On appeal, “ ‘[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’ ” (Denham v. Superior Court of Los Angeles County, supra, 2 Cal.3d at p. 564.)
B. Civil Restraining Orders
The trial court issued a civil restraining order pursuant to section 527.6 against Jason and another one against Sandra. D.M., as well as J.S. and the minor child, are protected by both orders. Appellants contend there is insufficient evidence to support either order. We disagree.
1. Standard of Review
In reviewing an injunction issued under section 527.6, we determine whether the trial court’s findings are supported by substantial evidence. (R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188.) Moreover, “[w]e 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.” (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.)
Whether the facts “are legally sufficient to constitute civil harassment” presents a question of law. (R.D. v. P.M., supra, 202 Cal.App.4th at p. 188.)
2. Legal Principles
Section 527.6 provides in relevant part: “(a)(1) A person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an order after hearing prohibiting harassment as provided in this section.
“[¶] . . . [¶]
“(b) For purposes of this section:
“(1) ‘Course of conduct’ is 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, facsimile, or computer email. Constitutionally protected activity is not included within the meaning of ‘course of conduct.’
“[¶] . . . [¶]
“(3) ‘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 that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.” (Italics added.)
A “course of conduct” requires more than one act, evidencing a continuity of purpose. (See Leydon v. Alexander (1989) 212 Cal.App.3d 1, 4.)
3. Analysis
David observed a drone flying over J.S. and D.M.’s property on three or four different occasions in April or May 2015. David’s description of the drone matches the drone owned and operated by Jason. Jason admitted to flying his drone in the area of J.S. and D.M.’s property at least twice in the preceding year. And the court expressly found that Jason flew his drone over J.S. and D.M.’s property on May 30, 2015. All drone activity over their property stopped after May 2015.
Reviewing this evidence in favor of the court’s ruling, as we must, we conclude it is sufficient to support a finding that Jason flew his drone over J.S. and D.M.’s property several times during the months of April and May 2015. And, while the trial court determined that Sandra did not pilot the drone herself, it is reasonable to infer that Sandra was actively involved in Jason’s actions. Sandra was with Jason when he was seen in the campground with a drone on May 30, 2015. This evidence supports a reasonable inference that Sandra participated in the drone activity over J.S. and D.M.’s property.
In addition, in issuing the restraining orders, the trial court necessarily found Jason and Sandra directed their conduct at specific people, J.S. and D.M., with no evidence of a legitimate purpose, and these fly-overs were conduct that would cause a reasonable person to suffer “substantial emotional distress.” (§ 527.6, subd. (b)(3); Ensworth v. Mullivan (1990) 224 Cal.App.3d 1105, 1112.) Jason and Sandra have not identified any evidence in the record to contradict those findings. Further, both J.S. and D.M. stated in their declarations in support of their petitions for the restraining order that Jason and Sandra’s conduct caused them to be “emotionally drained and distressed.” This evidence is sufficient to support the trial court’s decision.
C. Domestic Violence Restraining Order
The trial court also issued a DVRO against Sandra, identifying J.S. as the protected person, as well as D.M. and the minor child. Sandra contends the trial court abused its discretion in issuing the order because, among other things, there was no evidence that Sandra participated in the drone incident. We find no abuse of discretion and affirm the order.
1. Standard of Review
We review the trial court’s issuance of a DVRO under the abuse of discretion standard of review. (Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 782.) “ ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ ” (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.) “To the extent that we are called upon to review the trial court's factual findings, we apply a substantial evidence standard of review.” (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1505.)
2. Legal Principles
A trial court may issue a DVRO when there is “reasonable proof of a past act or acts of abuse.” (Fam. Code, § 6300.) The statute “defines ‘abuse’ as either an intentional or reckless act that causes or attempts to cause bodily injury; an act of sexual assault; an act that places a person in reasonable apprehension of imminent serious bodily injury to himself or herself or to another; and an act that involves any behavior that has been or may be enjoined under [Family Code] section 6320.” (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334; see Fam. Code, § 6203.) Family Code section 6320 includes behaviors such as stalking, harassing, making threats and “disturbing the peace of the other party.” (Fam. Code, § 6320, subd. (a).)
3. Analysis
The trial court issued the DVRO against Sandra based on: (1) the parties’ acrimonious relationship, as demonstrated by the voluminous court file and (2) the evidence adduced at the hearing.
The evidence adduced at the hearing, as discussed above, includes evidence that Sandra acted in concert with Jason to fly a drone with an onboard video camera and blinking lights over J.S. and D.M.’s home repeatedly. By issuing the restraining order, the trial court necessarily found this conduct would, at a minimum, disturb J.S.’s peace, and we agree. (Fam. Code, § 6320, subd. (a).) We find the trial court did not abuse its discretion in issuing the DVRO against Sandra.










III. DISPOSITION
The restraining orders are affirmed. Costs are awarded to respondents. (Cal. Rules of Court, rule 8.278(a)(1), (2).)


/S/

RENNER, J.



We concur:


/S/

NICHOLSON, Acting P. J.


/S/

HOCH, J.