Martinez v. Estrada

Filed 4/5/07 Martinez v. Estrada CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, John L. Flynn, Judge. Affirmed.

Charlston, Revich & Chamberlin LLP, Tim Harris and Jeffery Stockley for Plaintiff and Appellant.

James Toledano for Defendant and Respondent.

Irene Martinez appeals from a judgment denying her petition for an injunction against Aurelia Hortensia Estrada, who had worked for Martinez at a nonprofit organization, prohibiting harassment under Code of Civil Procedure section 527.6.[1] Martinez contends: (1) the trial court improperly expanded the scope of the injunction hearing by admitting irrelevant evidence concerning her personal relationship with Estrada; and (2) the court made improper findings that she coerced Estrada into a having a personal relationship with her and that she had an improper motive in filing her petition for injunction, namely to dissuade Estrada from suing her. We find no merit to her contentions and affirm the judgment.

FACTS

Martinez is the executive director of the Delhi Center, a nonprofit organization in Santa Ana. She hired Estrada around 1995, originally as an outreach worker who was under someone elses supervision. Eventually, Estrada became Martinezs executive assistant and she reported only to Martinez. On June 10, 2005, Martinez fired Estrada. On June 15, Martinez filed an application for a temporary restraining order (TRO) against Estrada prohibiting harassment and petition for an injunction prohibiting harassment. The application cited alleged harassment by Estrada taking place on June 10, 2005, in the form of telephone threats, calling her telephone up to 25 times in an hour, and going to Martinezs residence. Martinez asked for a TRO because Estrada was emotionally unstable and had said she would destroy Martinez. The TRO was issued, and a hearing on the injunction was set.

Martinezs Version

At the hearing on the injunction, Martinez testified she and Estrada began having an affair in May 2003, when Martinez was Estradas supervisor. After their affair began, Estrada became increasingly possessive of Martinez. Estrada had anger problems and would fly into rages being physically and verbally abusive towards Martinez. But Estrada would always cry and beg for forgiveness after her outbursts and Martinez would feel sorry for her. There were numerous times over the years when Estrada would call Martinez incessantly on her cell phone until Martinez would finally answer the calls.

Estrada continually demanded Martinez leave her husband, which Martinez eventually did in August 2004. Estrada constantly tried to control Martinezs work environment, impeding access to Martinez by staff members and clients of the Delhi Center, creating conflict, and interrupting meetings when she was unhappy with Martinez. Additionally, Estrada was jealous of and caused problems for Martinezs sister who was also a Delhi Center employee.

Estrada began to constantly threaten to destroy Martinezs reputation and career by out[ing] her and disclosing their affair to the Delhi Center Board of Directors (the Board) and the community. Martinez was terrified her career would be ended if her secret affair with Estrada was discovered. Anonymous letters were sent to the Board and a media outlet concerning the relationship between Estrada and Martinez; Martinez believed Estrada sent the letters. In March, Estrada rudely disrupted a birthday party being thrown for Martinez, and physically grabbed her trying to get her to leave the party. Two Delhi Center employees testified they had witnessed some of Estradas aggressive behavior.

On June 6, 2005, and again on June 10, Estrada made incessant calls to Martinezs cell phone leaving messages in Spanish that she would kick her ass, destroy her, and make her pay for this. A certified Spanish translator testified regarding the translation of some of Estradas telephone messages. Estrada also went to Martinezs house looking for her. Martinez was very scared by this because she deliberately kept her new address secret from Estrada because she feared her. Martinez fired Estrada that night (June 10), and needed an injunction to keep Estrada away from her and her family.

Estradas Version

Estradas storythe one the trial court believedwas quite different. Estrada testified Martinez, her supervisor, began actively pursuing a sexual relationship with Estrada, who was openly lesbian, beginning in 2000. The two women were very close, but Estrada was not interested in a sexual relationship with Martinez. The women routinely communicated with each other throughout the day by cell phone.

When Martinez was angry with Estrada, particularly if Estrada was not making herself available to Martinez, Martinez would not answer Estradas calls. On those occasions, Estrada would keep calling until Martinez would finally answer.

At some point, Martinez took Estrada to a lawyer to help Estrada with her green card application, and Martinez began paying Estradas legal fees. After that, Martinezs attention increased, and she began showering Estrada with even more unwanted sexual attention at work. Whenever Estrada complained to Martinez her displays of affection towards Estrada were causing problems and jealousy around the Delhi Center, Martinez would get very upset. Estrada frequently went on trips with Martinez, largely because she felt she had to because of her green card application. Occasionally, Martinez had Estrada pick her up at her house to take her to doctors appointments or the airport, including the house Martinez lived at in June 2005.

Martinez had hired her own sister, Anna, to work at the Delhi Center, and Anna often did not abide by the work rules applied to other employees. When Estrada complained to Martinez about this, Martinez would get angry. Martinez repeatedly suggested to Estrada that if Estrada had complaints about her, she should go to the Board with them.

On June 6, Estrada called Martinez to complain about Annas recent conduct at work. Martinez got angry and would not return the calls, so Estrada just kept calling and leaving messages. On June 10, Estrada came to work to go to a meeting she was scheduled to attend with Martinez. The meeting was with city representatives concerning a contract renewal for a program Estrada supervised. Estrada discovered that without informing her, Martinez had left for the meeting taking a different employee instead. Estrada was extremely upset about having been left behind, and repeatedly called Martinez to confront her about it. She went to Martinezs house to find out why she was being treated so badly, but Martinez was not there. Estrada decided she was going to complain to the Board about Martinezs conduct and the constant sexual harassment. In her phone messages to Martinez that day, Estrada did say she was going to complain to the Board about Martinezs treatment of her and the unwanted sexual demands being placed on her. Estrada denied she said she would kick her ass, destroy her, and make her pay for this, and thought the statements she made were being mistranslated by Martinezs translator.[2] Estrada returned to the Delhi Center during the evening of June 10 to get some documents and the addresses of board members. Martinez was there and fired her.

Estrada was admittedly distraught over her firing, and she asked Martinez to at least give her the chance to resign instead. Over the next few days (i.e., after being fired by Martinez and before Martinez filed her TRO application), Martinez called Estrada on the phone to see how she was. The two women spoke several times on the phone. Martinez met with Estrada twice in restaurants, and came to Estradas house once, spending over nine hours total talking to her. At no time did Martinez display any fear of Estrada. A waitress who served the women at one of the restaurants a day or two after Estrada was fired confirmed seeing them together and said there were no displays of emotion and Martinez never seemed fearful of Estrada. Martinez said she would not rehire Estrada, but suggested if Estrada went to a doctor and asked for a medical leave for anger management, then Martinez could not legally fire her and while out on leave, Estrada could then fax in a letter of resignation. Martinez also promised she would sell all her jewelry and give Estrada the money so she could start a business. Since their last meeting (before the TRO was obtained), Estrada has had no contact with Martinez outside of court and she had no intention of contacting her in the future.

Statement of Decision and Other Procedural Facts

On September 12, 2005, the court issued a statement of decision and order denying Martinezs request for an injunction against Estrada. The court specifically found testimony of Martinez and her witnesses lacking in veracity or credibility and found Estradas testimony to be the believable testimony[.] The court found Estrada was dependent on Martinez both for her job and her immigration and Green Card status. Martinez had used her superior position to coerce Estrada into a relationship. There had been no unlawful violence or assault or battery against . . . Martinez[,] and no credible threat of violence. Furthermore, Martinez was not fearful, alarmed[,] annoyed or harassed by Estradas conduct, and she suffered no substantial emotional distress[.] The court found Martinez fired Estrada because of what had by then become widespread and continuing knowledge of the complaints of . . . Estrada about the relationship between the two women was by June 8, 2005[,] perceived by . . . Martinez as detrimental to [her] professional management position and reputation at [the Delhi Center]. Despite her claim she feared Estrada, Martinez continued to meet with Estrada after her firing, and offered her financial assistance to induce Estrada to not take legal action. The court concluded Martinez had filed the application for the injunction as a pre-emptive strike against perceived anticipated legal action by . . . Estrada against  . . . Martinez and [the Delhi Center]. On October 19, the court granted Estradas motion for $23,625 in attorney fees.

Martinez filed her notice of appeal on November 18, 2005, from the September 12 order and statement of decision, and the October 19 order granting attorney fees.[3] On December 15, 2005, Martinez filed objections to the statement of decision.

DISCUSSION

1. Admissibility of evidence about Martinez and Estradas relationship

Martinez contends the trial court improperly admitted evidence about her past relationship with Estrada. She asserts that because section 527.6 only provides for expedited relief from threats of future harassment, its does not allow for inquiries into the nature of either partys past conduct. Accordingly, Martinez argues, the court should have limited itself to evidence concerning the allegedly harassing events from June 6, 2005, through June 10, 2005, and based on that evidence, she was entitled to an injunction against Estrada. We reject her contention.

Preliminarily, to the extent Martinez attacks the sufficiency of the evidence supporting the trial courts decision, her complaints are waived. We review trial court findings on a section 527.6 application 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. [Citations.] (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.) Martinezs opening brief violates a fundamental rule of appellate procedure in its complete failure to fairly recite the facts or to set forth any of the abundant evidence that supports the trial courts ruling. (See Cal. Rules of Court, rule 8.204(a)(2).) [A]n attack on the evidence without a fair statement of the evidence is entitled to no consideration when it is apparent that a substantial amount of evidence was received on behalf of the respondent. [Citation.] (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246; see also Brockey v. Moore (2003) 107 Cal.App.4th 86, 96-97 [where appellant did not faithfully recite facts and skewed the facts in appellants favor, court deemed all of appellants evidentiary arguments waived].)

Martinezs evidentiary complaints are unfounded as well. Section 527.6, subdivision (a), permits [a] person who has suffered harassment to obtain a TRO and an injunction prohibiting that harassment. Harassment is defined 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. ( 527.6, subd. (b).)

The sole purpose of the prohibitory injunction under section 527.6 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. [Citation.] (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1266.)

Section 527.6 allows an applicant to first obtain a TRO against the defendant, as Martinez did here, without notice to the defendant. ( 527.6, subd. (c).) The court must then hold an expedited hearing on the injunction application. ( 527.6, subd. (d).) At that hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry[,] but may only issue the injunction upon find[ing] by clear and convincing evidence that unlawful harassment exists . . . . ( 527.6, subd. (d).)

We reject Martinezs complaints about admission of evidence concerning her relationship with Estrada. We note she does not cite to any specific testimony that she contends was improper, demonstrate she made proper objections to that specific testimony, or engage in any reasoned legal analysis of her evidentiary claims. For that reason alone, her point is forfeited.

Martinez argues the trial court improperly allowed Estrada to expand the scope of what should have been a hearing strictly concerning whether the events between June 6 and June 10 constituted harassment, turning what should have been a quick expedited hearing on that limited issue into a trial. Martinez cannot complain because she is the one who invited such an expansion. (See K. G. v. County of Riverside (2003) 106 Cal.App.4th 1374, 1379 [when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error].)

At the beginning of the hearing, Martinez (at that point proceeding in propria persona) told the court she was having an affair with Estrada, Estrada was threatening to reveal the affair to the Board, and Estrada had been attempting to control her and physically and verbally abusing her for over a year and a half. Martinez indicated she intended to call witnesses to other incidents of past aggressive and improper emotional behavior by Estrada over the years. Estradas counsel objected to expanding the hearing into inquiries about Estradas past conduct, arguing the hearing should be strictly limited to the June 2005 incidents. On two more occasions before the hearing began, Estradas counsel again objected to introduction of evidence outside the events of June 2005 as being outside the scope of the hearing, and sought to exclude any such testimony. Martinezs counsel argued vigorously that Estradas past history with Martinez and others was relevant to whether Martinez was in reasonable fear of Estrada as a result of the June incidents. The court denied Estradas motion to exclude the testimony.

In her direct examination Martinez testified extensively about her love affair with Estrada, and Estradas history of attempting to control and dominate her, being physically and verbally abusive towards her, and most recently threatening to reveal the affair to others. In so doing, Martinez opened the door to inquiries about the nature and origins of their relationship. It was not until her cross-examination by Estrada that Martinez attempted to shut that door. At that point, Martinez objected to questioning about the origins (e.g., who pursued who), and nature of their relationship. But, as Estrada noted, Martinez had been given great leeway in testifying about her relationship with Estrada and Estrada was entitled to respond to it.

Finally, questioning about the origins and nature of Martinezs relationship with Estrada was relevant. Relevant evidence means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code,  210.) The trial court is vested with wide discretion in determining the relevance of evidence. [Citation.] (People v. Babbitt (1988) 45 Cal.3d 660, 681.)

The trial court did not abuse its discretion in allowing testimony concerning Martinezs past conduct towards Estrada. To obtain the requested injunction, Martinez had to prove harassment by clear and convincing evidence. ( 527.6, subds. (b) & (d).) Furthermore, she had to demonstrate not just that the acts constituted harassment, but that an injunction was necessary to prevent future harm to Martinez. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., supra, 129 Cal.App.4th at p. 1266.) Evidence concerning the history of the womens relationship, and Martinezs own mistreatment of Estrada, went directly to Martinezs credibility, to whether she suffered substantial emotional distress as a result of Estradas conduct ( 527.6, subd. (b)), and whether there was any reason to conclude Estrada would continue to have contact with Martinez after she had been terminated from the Delhi Center.

2. Findings on coercion of a relationship and motive for seeking an injunction

Martinez complains the court made unauthorized factual findings concerning Martinezs motive for filing her petition for an injunction, i.e., that Martinez had coerced Estrada into a relationship and filed her application as a preemptive strike in anticipation of legal action by Estrada. We are unclear as to her point. To the extent Martinez is attacking the sufficiency of the evidence to support the findings, as already noted, her complete failure to set forth any of the evidence supporting them waives her complaints.[4] To the extent Martinez is contending the findings concerning the nature of the womens relationship and Martinezs motive for filing her petition are irrelevant, we have discussed that point as well. That evidence went directly to whether Estrada was in fact harassing Martinez, whether Martinez suffered any substantial emotional distress, and whether there was any reasonable fear of future harassment of Martinez by Estrada. And to the extent Martinez is attacking the adequacy of the trial courts statement of decision, her failure to file any timely objections to the statement of decision would certainly constitute a waiver of those complaints. (Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20 Cal.App.4th 1372, 1380 [[appellant] waived any defects in the statement of decision by failing to file timely objections]; Code Civ. Proc.,  634.)

The only law cited in Martinezs argument is a quote from Byers v. Cathcart (1997) 57 Cal.App.4th 805, 812, which she cites for the proposition the courts findings concerning Martinezs pursuit of Estrada and her motive in filing her petition constitute an impermissible final resolution of disputed rights. She has taken the quote out of context. In that passage, the court was merely explaining that because section 527.6 only allows for relief of a limited duration (the injunction cannot last for more than three years), it does not allow for final resolution of disputed rights. The court was not purporting to comment upon what constitutes relevant evidence, or upon what factual findings can be made in deciding if an injunction should issue.

We can assume Martinez is concerned the courts findings in this proceeding about Martinezs conduct towards Estrada might have adverse consequences for Martinez if Estrada later files a wrongful termination proceeding. We will not engage in such speculation. The fact remains Martinez is the one who put the issues in play in this proceeding, and she cannot now complain that the trial court resolved them against her.

3. Findings on fear of future harm

Under a separate argument heading, Martinez complains the trial court misconstrued the evidence about whether Martinez was in fear of Estrada. She suggests the court read far too much into the facts concerning Martinezs several voluntary, lengthy, and apparently uneventful encounters with Estrada after June 10, in concluding Martinez failed to demonstrate she had any reasonable concerns for her safety. Her argument contains no discussion of legal authority and specifies no particular legal error. Rather, it is nothing more than rehashing of evidentiary arguments she made below. An appellant must affirmatively demonstrate error through reasoned argument and discussion of legal authority (see Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979); finding none here, we decline to consider the point further.

DISPOSITION

The judgment is affirmed. The Respondent is awarded her costs on appeal.

OLEARY, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

IKOLA, J.

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[1] All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.

[2] The translator testified certain statements in the phone messages could be translated as Martinez claimed (i.e., kick her ass, destroy her, and make her pay for this). But, the translator conceded the tape quality was poor, she could not hear all the statements (the 25 percent missing could change the whole meaning), and the statements were heavy with unfamiliar Mexican colloquialisms she did not necessarily understand.

[3] The notice of appeal was premature. We have obtained the superior court file and take judicial notice of the actual judgment entered November 28, 2005. In accordance with California Rules of Court, rule 8.104(e)(2), we treat the notice of appeal as being from the judgment.

[4] Under a separate argument heading, Martinez complains any findings concerning her own misconduct towards Estrada had to be made based on clear and convincing evidence. As the applicant for a section 527.6 injunction, Martinez had to prove harassment by clear and convincing evidence ( 527.6, subd. (d)), a burden the trial court found she failed to carry. But, Martinez cites no law for the proposition a defendant in such a proceeding must establish his or her defense by clear and convincing evidence.