Brown v. Evpak

 

 

 

 

 

 

 

 

 

 

Filed 12/3/13  Brown v. Evpak 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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

(Sacramento)

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>

ADAM BROWN,                           Plaintiff and Respondent,               v.   JOHN EVPAK,                           Defendant and Appellant.	C069590   (Super. Ct. No. 11CP00737)
DENNIS CASTRILLO,                           Plaintiff and Respondent,               v.   JOHN EVPAK,                           Defendant and Appellant.	C069590   (Super. Ct. No. 11CP00743)

 

 

            Plaintiffs
Adam Brown and Dennis Castrillo each obtained a href="http://www.fearnotlaw.com/">civil harassment restraining order
against their neighbor, defendant John Evpak. 
(Code. Civ. Proc., § 527.6.)  In
this pro se judgment roll appeal from the restraining orders, defendant claims
he did not consent to a temporary judge hearing the matter; his conduct did not
violate the statutory prohibitions on harassment; and substantial evidence does
not support the trial court’s issuance of the orders.  Defendant also contends the restraining
orders infringe on his constitutionally protected conduct, effectively “take”
his private property, and are constitutionally overbroad because they restrain
his conduct as to plaintiffs’ guests. 

            By separate
motion, plaintiffs ask that we dismiss the appeal as frivolous, and impose
sanctions on defendant for bringing a frivolous appeal. 

            We decline
to dismiss the appeal.  We affirm the
restraining orders, because defendant has not produced a record sufficient to
enable appellate review of his evidentiary assertions, and his remaining
challenges lack merit.  We award
plaintiffs their costs on appeal, and recognize they may seek attorney fees in
the trial court. 

BACKGROUND

            Defendant has
elected to proceed on a clerk’s transcript. 
(Cal. Rules of Court, rule 8.120.) 
As a result, the appellate record does not include a reporter’s
transcript of the hearing that gave rise to the orders challenged in this
appeal.  This is referred to as a “judgment
roll” appeal.  (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; >Krueger v. Bank of America (1983) 145
Cal.App.3d 204, 207.) 

            Plaintiffs and defendant are
neighbors and all are also members of the Kings Court Lane Homeowners
Association.  A private lane and
cul-de-sac maintained by the homeowners association, Kings Court Lane, provides
access for plaintiffs to their homes; there is a dedicated easement over the
lane for all owners and their guests. 
The lane passes through a portion of defendant’s property. 

            In September 2011, plaintiffs
filed separate petitions for temporary restraining orders and injunctions to
prevent defendant from harassing them, their families, and guests. 

            Plaintiff
Brown and his wife submitted declarations in support of Brown’s petition (case
No. 11CP00737).  In them it was averred
that, since approximately 2006, defendant has engaged in a pattern of violent,
confrontational behavior against them and their families and guests, and has
committed verbal and physical assaults against other homeowners association
members and their guests.  They describe
incidents in which defendant engaged in stalking, blocking the lane, calling
their children and children’s friends “pussy,” “little fat fuck,” “little
bitch,” “fucking nigger,” and “fucking fat-ass,” and shouting “wetbacks” at
their landscape maintenance workers. 
Efforts by the homeowners association to intervene or otherwise resolve
conflicts with defendant have not worked. 
The most recent event recounted by Brown occurred in late August 2011,
when defendant cursed and directed racial slurs at their 10-year-old daughter’s
guests and the sheriff responded. 

            Both Brown
and his wife averred that defendant’s conduct caused them to fear for their
physical safety and that of their family and guests. 

            Plaintiff
Castrillo likewise submitted a declaration in support of his petition (case No.
11CP00743), in which he averred defendant has blocked the easement lane with
his truck, assaulted Castrillo, yelled profanity at Castrillo’s stepsons and
their friends, and threatened workers at his house. 

            The court
issued temporary restraining orders that defendant not harass plaintiffs or
their families or interfere with anyone’s use of the common lane, and set the
matters for hearing. 

            In his
answer to the requests for restraining orders and in his supporting
declaration, defendant denied the specific acts of wrongdoing alleged by
plaintiffs.  He also denied his actions
were illegal and asked that any restraining orders be mutual.  Defendant disputed that the homeowners
association can regulate the use of the Kings Court Lane, because it “goes
through my private property” and, in his view, plaintiffs may neither park on
the road nor invite their guests to use it. 
Moreover, defendant averred, plaintiffs, their families and guests have
“continuously harassed, threatened, assaulted and battered” him and his
family.  Plaintiffs, their families and
guests have verbally assaulted him, called his wife names, driven their cars at
unsafe speeds near his property, and vandalized or stolen his property. 

            The hearing
on plaintiffs’ petitions spanned two days. 
The minute orders of the hearing indicate that all parties appeared with
their respective counsel and 16 witnesses testified, but the proceedings were
not reported. 

            Following
the presentation of evidence and argument, the trial court (by Judge Michael S.
Ullman) announced that it “found clear and convincing evidence” to warrant
issuing restraining orders in both plaintiffs’ petitions, and it issued a
three-year injunction in each case.  The
personal conduct orders prohibit defendant from, inter alia, harassing,
threatening, or blocking plaintiffs and their families.  They also order that defendant stay five
yards away from plaintiffs and their families, vehicles, homes and driveways
(except when defendant is on his property at the easement’s edge), and that he
“not impede guests of homes on Kings Court Lane from utilizing [the] street for
ingress [and] egress.” 

DISCUSSION

I

Defendant’s Appeal

            On appeal,
we must presume the trial court’s judgment or order is correct.  (Boyle
v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649-650.)  Error is never presumed; rather, we adopt all
inferences in favor of the judgment or order appealed from, unless the record
expressly contradicts them.  (>Brewer v. Simpson (1960) 53 Cal.2d 567,
583; Rossiter v. Benoit (1979) 88
Cal.App.3d 706, 712.)

            It is the
burden of the party challenging an order on appeal to provide an adequate
record to assess error.  (>Ketchum v. Moses (2001) 24 Cal.4th 1122,
1140-1141.)  An appellant must present an
analysis of the facts and legal authority
on each point made, and also must support the arguments with appropriate
citations to the material facts in the record. 
If he fails to do so, the argument is forfeited.  (County
of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274;
Duarte v. Chino Community Hospital
(1999) 72 Cal.App.4th 849, 856.)

            Although
defendant is representing himself on appeal, he is held to the same standards
as an attorney.  (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; >In re Marriage of Falcone & Fyke
(2008) 164 Cal.App.4th 814, 830 [“self-represented parties are entitled to no
greater consideration than other litigants and attorneys”]; >Gamet v. Blanchard (2001) 91 Cal.App.4th
1276, 1284 [pro se litigants are not entitled to special exemptions from rules
of court].)

            Because
defendant has chosen to appeal “on the judgment roll” (Allen v. Toten, supra, 172 Cal.App.3d at pp. 1082-1083), we “ ‘must
conclusively presume that the evidence is ample to sustain the [trial court’s]
findings.’ ”  (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.)  Our review is limited to determining whether
any error “appears on the face of the record.” 
(National Secretarial Service,
Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; Cal. Rules of Court, rule
8.163.)

            Defendant
devotes much of his brief on appeal to arguing that the evidence does not
support the issuance of the injunctions, or that his conduct did not violate
the statute governing civil harassment restraining orders. 

            Code of
Civil Procedure section 527.6, subdivision (a)(1), provides:  “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.”  Subdivision (b)(3) of the statute defines “
‘[h]arassment’ ” 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 petitioner.”  (Code Civ. Proc., § 527.6, subd.
(b)(3).)  Code of Civil Procedure
“[s]ection 527.6 is intended ‘to protect the individual’s right to pursue
safety, happiness and privacy as guaranteed by the California Constitution.’  [Citations.]” 
(Russell v. Douvan (2003) 112
Cal.App.4th 399, 403; Cal. Const., art. I, § 1.)

            A trial
court’s decision to grant a permanent injunction rests within its sound
discretion and will not be disturbed without a showing of a clear abuse of discretion.  (Shapiro
v. San Diego City Council (2002) 96 Cal.App.4th 904, 912.)  To determine whether the trial court abused
its discretion in issuing an injunction, appellate courts generally review the
trial court’s findings under the substantial evidence standard, resolving all
factual conflicts and questions of credibility in the respondent’s favor and
drawing all legitimate and reasonable inferences to uphold the order, so long
as it is supported by evidence that is reasonable, credible and of solid value.
 (USS-Posco
Industries v. Edwards (2003) 111 Cal.App.4th 436, 444; Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.)

            We cannot
engage in the required analysis, however, absent a reporter’s transcript of the
hearing at which the challenged orders were entered.  Instead, as we have explained, we must under
these circumstances conclusively presume that the evidence adduced at the
hearing warranted the issuance of the orders. 
(Ehrler v. Ehrler, supra, 126
Cal.App.3d at p. 154.)  The sufficiency
of the evidence is not open to review in a judgment roll appeal, and we do not
substitute an analysis of the declarations submitted in support of the issuance
of the original temporary restraining order, as defendant does in his appellate
brief. 

            We further
note that, in a bench trial, the
trial judge is the ultimate arbiter of fact, as he was privy to the testimony
of all parties and witnesses.  Given the
court’s findings that clear and convincing evidence supports issuing permanent
restraining orders in plaintiffs’ favor, we presume it found plaintiffs’ evidence
supporting their claims more credible than defendant’s denials, and we must
defer on appeal to the trial court’s implicit determinations of credibility.  (Lenk v.
Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.)

            Without a
reporter’s transcript of the hearing at which the challenged order was entered,
we must also presume that official duties have been regularly performed (Evid.
Code, § 664), and this presumption extends to the actions of trial judges (>Olivia v. Suglio (1956) 139 Cal.App.2d
7, 9 [“If the invalidity does not appear on the face of the record, it will be
presumed that what ought to have been done was not only done but rightly done.”]).  This means we assume -- contrary to defendant’s
arguments on appeal -- that the trial court properly applied the statutory
requirements of Code of Civil Procedure section 527.6 when it found grounds for
issuance of the restraining orders in plaintiffs’ favor, and found no grounds
for issuance of mutual restraining orders. 


            The trial
court’s orders are not erroneous on their face. 
(Cf. Cal. Rules of Court, rule 8.163; see National Secretarial Service, Inc. v. Froehlich, supra, 210
Cal.App.3d at p. 521.)  Nothing in the
record demonstrates that defendant has any private property or other interest
infringed by the orders that he “not impede” plaintiffs, their families, or
their guests from using the dedicated lane easement for ingress and egress, and
the stay-away order expressly does not apply while defendant is on his property
to the edge of the easement.  The orders
do not, as defendant argues, give plaintiffs, their families, or their guests
“unrestrained access to about one-third of [his] private property” in violation
of the principles of inverse condemnation. 


            Nor has
defendant shown that the prohibition of his interference with plaintiffs’
“guests’ ” use of Kings Court Lane is unconstitutionally overbroad.  Under California law, use of such a road
easement typically extends to the guests of the easement holders (see> Le Deit v. Ehlert (1962) 205 Cal.App.2d
154, 165-167) and defendant cites no authority for application of a different
rule here.  (See County of Solano v. Vallejo Redevelopment Agency, supra, 75 Cal.App.4th
at p. 1274.) 

            In
addition, not all speech or conduct is constitutionally protected, and
defendant has not shown he has a constitutionally protected interest in any
speech or conduct that may otherwise be the subject of an injunction against
harassing or threatening plaintiffs and their families.  (R.D.
v. P.M. (2011) 202 Cal.App.4th 181, 191-193; cf. Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1409.) 

            Finally, we
reject defendant’s argument that he was denied due process of law because he
did not agree to have Judge Ullman, a temporary assigned judge, decide the
petitions.  Absent a reporter’s
transcript, we presume that the assignment was properly made and all
prerequisites met.  (Olivia v. Suglio, supra, 139 Cal.App.2d at p. 9; >In re Horton (1991) 54 Cal.3d 82,
96-97.) 

II

Plaintiffs’ Motion for Sanctions

            By separate
motion, plaintiffs have moved for dismissal of the appeal and for sanctions
against defendant for filing a frivolous appeal, arguing that the “misconduct
of [defendant] determined to be true by the trial court, as well as [his]
actions in filing this bad faith appeal provide conclusive evidence of
[defendant’s] malicious character and continued harassment of [plaintiffs]
through the abuse of the court system.” 

            As we note
above, absent a reporter’s transcript of the hearing, we cannot say what the
court expressly “found” to be defendant’s misconduct, except to the extent we
presume defendant’s conduct warranted issuance of the restraining orders. 

            Moreover,
although defendant’s claims would appear utterly without merit to any
reasonable attorney (In re Marriage of
Flaherty (1982) 31 Cal.3d 637, 650), we do not believe they warrant the
imposition of sanctions against him.  While
it is proper to sanction a self-represented party for pursuing a frivolous
appeal (Bistawros v. Greenberg (1987)
189 Cal.App.3d 189, 193), there should be some indication that the party is
aware of the groundless nature of the appeal (e.g., ibid. [party possessed “sophistication” in appellate practice far
beyond that of an ordinary layperson]; Leslie
v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121 [both
hearing officer and trial court had informed litigant that grounds for his
challenge to discipline were baseless, yet he pursued appeal]) or is seeking
only to harass the other party, the alternate basis for an award of sanctions
under In re Marriage of Flaherty, supra,
31 Cal.3d at page 650 (e.g., Banks v.
Dominican College (1995) 35 Cal.App.4th 1545, 1558-1559 [not only did the
appellant graduate from a “legal studies program,” she had pursued baseless
claims “for years” after a battery of retained counsel withdrew on ethical
grounds, and litigated in “unbalanced and bizarre” way]).  As we do not find those circumstances
present, we decline plaintiffs’ request for dismissal and sanctions. 

            We,
however, grant plaintiffs’ request for costs. 
In so doing, we do not consider here their request for an award of
attorney fees because, although there is a statutory basis for awarding
attorney fees to the party prevailing in a petition for a civil harassment
restraining order (Code Civ. Proc., § 527.6, subd. (r)), the better practice is
for the trial court to determine in the first instance whether attorney fees
should be awarded and in what amount.  (>Security Pacific National Bank v. Adamo
(1983) 142 Cal.App.3d 492, 498; Cal. Rules of Court, rule 8.278(d)(2).) 

DISPOSITION

            The orders
are affirmed.  Plaintiffs shall recover
their costs.  (Cal. Rules of Court, rule
8.278(a)(1).) 

 

                                                                                              NICHOLSON              , Acting P. J.

 

We concur:

 

          BUTZ                            ,
J.

 

 

          MURRAY                    , J.