Polte v. Denzien
Filed 2/28/07 Polte v. Denzien CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
BRIAN POLTE, Plaintiff and Respondent, v. ANDREW DENZIEN, Defendant and Appellant. | D048878 (Super. Ct. No. GIS24502) |
APPEAL from an order of the Superior Court of San Diego County, Yvonne E. Campos, Judge. Affirmed as modified.
Andrew Denzien appeals an injunction issued under Code of Civil Procedure section 527.6[1]prohibiting him from harassing Brian Polte and Polte's minor child, Nicholas. He contends Polte provided insufficient evidence Denzien made threats that would support the issuance of an injunction.
FACTUAL AND PROCEDURAL HISTORY
Polte's wife, Deane Huntress, petitioned for dissolution of marriage. Soon after, an Arizona court enjoined Polte from harassing Denzien, Huntress's boyfriend. Then Polte petitioned under section 527.6 for a temporary restraining order (TRO) against Denzien, declaring Denzien had threatened to harm and kill him, and Polte "fear[ed] for [his] life and the life of [his] minor son." The court granted the TRO, ordering Denzien to stay at least 100 yards from Polte and Nicholas, and set a hearing date for consideration of issuance of an injunction.
At the hearing, Polte testified that on two occasions Denzien threatened to "kick [his] ass" and "kill [him]." Polte also testified that he feared Denzien and Huntress would kill Nicholas, primary custody of whom had been temporarily awarded to Polte, because "[Huntress] has made mention that she has wanted to kill herself on numerous occasions, and she has said . . . that Andrew and her would end up in the same place with Nicholas." Denzien and Huntress both testified Denzien never threatened Polte. The court issued the injunction prohibiting Denzien from being closer than 100 yards to Polte and Nicholas.
DISCUSSION
The court's decision to grant an injunction "rests within its sound discretion and will not be disturbed on appeal absent a showing of a clear abuse of discretion." (Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912.) When there are disputed factual issues, we review the court's findings under the substantial evidence standard to determine whether the court abused its discretion, 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. (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.) We do not evaluate the credibility of the witnesses (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968), and the testimony of a single witness may provide substantial evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)
Under section 527.6, subdivision (d), a court shall issue an injunction prohibiting harassment if it "finds by clear and convincing evidence that unlawful harassment exists." Harassment is defined as "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." ( 527.6, subd. (b).) On a showing of good cause, the injunction may include other family members who reside with the plaintiff. ( 527.6, subd. (c).)
Because Denzien contends no evidence supports the court's finding of harassment, we review the order for substantial evidence.
As the court noted, this is a case of "he said/he said/she said." Although Denzien and Huntress contradicted him, Polte testified Denzien had threatened him over the telephone on two occasions, saying he would "kick [Polte's] ass" and "kill [him]." Polte's testimony, which the court found to be credible and of solid value, is substantial evidence of a threat of violence. Polte also testified he is scared, which is evidence of emotional distress. Polte's testimony is substantial evidence to support the order insofar as it relates to him.
No evidence supports including Nicholas in the order. The petition for injunctive relief does not allege Denzien threatened or subjected Nicholas to violence or any other harassing conduct. Polte's testimony regarding Huntress's suicidal statements was hearsay, irrelevant to Denzien, and did not specify any alleged threat Denzien posed to Nicholas.
Moreover, the court relied on Polte's current role as the primary custodial parent, a fact that may change in the marital dissolution hearing. Although section 527.6 allows the court to include in the injunction family members residing in the plaintiff's household, there was no showing of good cause to order Denzien to stay away from Nicholas when the child is not in Polte's custody. When Nicholas is in Polte's physical custody, the order protecting only Polte sufficiently prohibits any harassment of Nicholas.
DISPOSITION
The order issuing the injunction is modified by striking Nicholas from "Other Protected Persons" and, as so modified, affirmed. The parties shall bear their own costs on appeal.
McDONALD, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
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[1] All statutory references are to the Code of Civil Procedure.
