Brown v. Hunley

Filed 7/13/09 Brown v. Hunley CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County, Coleman A. Swart, Judge. Affirmed.

James Hunley, in pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________

James Hunley appeals from an order granting an injunction prohibiting harassment in favor of Theron Brown. (Code Civ. Proc., 527.6.)[1] Hunley contends the order amounted to an abuse of discretion because no evidence supported the finding he posed a credible threat of violence, and the manner in which the trial court conducted the hearing violated his due process rights. We reject these contentions and affirm the order.

BACKGROUND

Brown filed a petition in August of 2008 requesting a restraining order against Hunley and an injunction prohibiting harassment. Browns petition alleged that on August 14, 2008, Hunley, Browns neighbor, accused Brown of breaking a branch from Hunleys tree. Brown asserted Hunley began to scream I am going to kick your ass! Brown went inside, leaving his spouse in the yard with Hunley who began to yell and curse at her. Brown asserted Hunley told Browns spouse, Get out of my face before I kick your ass back to where you come from! Brown declared he was afraid of Hunley and expressed his belief Hunley may follow through with his threats.

Hunley filed an answer in which he asserted he returned home on the date in question to find Brown had deliberately broken a large branch from Hunleys tree. An argument ensued as to Browns right to remove the branch. Hunley told Brown to stay off of his property and advised Brown to ask Hunley before removing more branches. Hunley denied threatening Brown or Browns spouse.

The temporary restraining order issued ex parte based on Browns affidavit.

( 527.6, subd. (c).)

The hearing on the injunction prohibiting harassment occurred on September 10, 2008. After a two-hour mediation, Brown and Hunley entered into a Stipulation re Settlement.[2] However, the mediation ultimately failed and the mediator assigned to the case filed a Statement of Non-Agreement. Also, the handwritten word cancelled appears across the first page of the Stipulation re Settlement. The matter then proceeded to a hearing. The trial court granted Browns petition and waived the service fee, finding Hunley posed a credible threat of violence under section 527.6.

The record does not contain a reporters transcript of the trial courts hearing on the petition.

CONTENTIONS

Hunley contends issuance of the injunction was an abuse of discretion because no evidence supported the finding he posed a credible threat of violence. He also alleges violation of his due process rights in the conduct of the hearing on the injunction.

DISCUSSION

1. Legal principles.

Section 527.6 governs issuance of restraining orders and injunctions prohibiting 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. ( 527.6, subd. (b).)

Under section 527.6, subdivision (d), Within 15 days, or, if good cause appears to the court, 22 days from the date the temporary restraining order is issued, a hearing shall be held on the petition for the injunction. . . . At the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment. ( 527.6, subd. (d).)

Cases interpreting this provision have held the trial court, generally, must allow the parties to present live testimony before issuing an injunction. (Schraer v. Berkeley Property Owners Assn. (1989) 207 Cal.App.3d 719, 733, fn. 6 [trial court erred in refusing to allow parties to present any live testimony, although a full-fledged evidentiary hearing with oral testimony from all sides may not be necessary in all cases]; Nora v. Kaddo (2004) 116 Cal.App.4th 1026, 1029 [trial court erred in not allowing parties to present any live testimony].)

A trial courts decision to grant or deny a restraining order is evaluated under the substantial evidence standard. In assessing whether substantial evidence supports the requisite elements of willful harassment, as defined in Code of Civil Procedure section 527.6, we review the evidence before the trial court 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.)

We now turn to the merits of Hunleys claims.

2. No merit to Hunleys contention issuance of the injunction was an abuse of discretion.

Hunley contends the trial court erred in granting the injunction because the court ignored the plain statutory language which requires an act of violence or a credible threat of violence before a restraining order may be issued. Hunley argues his actions toward Brown are not harassment within the meaning of the statute. Specifically, Hunley asserts, There was no credible threat of violence.

Hunley also attacks the trial courts ruling as internally inconsistent. Hunley questions how the trial court could find he posed a threat to Brown alone when Brown alleged Hunley had threatened both Brown and Browns spouse. He concludes that, if the evidence supported issuance of a restraining order protecting Brown, it also was sufficient to support issuance of an order protecting Browns spouse.

Hunleys claims are without merit.

The trial court conducted a hearing as required by the statute. As a result of that hearing, the trial court determined Hunley posed a credible threat of violence under section 527.6 and waived Browns payment of a service fee.

Against this procedural backdrop, Hunley contends the evidence did not support the trial courts finding of a credible threat of violence and the trial courts ruling was internally inconsistent. However, absent a reporters transcript of the proceedings we are unable to address the merits of Hunleys contentions. (Estate of Fain (1999) 75 Cal.App.4th 973, 992 [Where no reporters transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters].) An appellant who challenges a trial courts factual determination must affirmatively demonstrate insufficiency of the evidence. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 557.) Application of these principles results in adverse resolution of Hunleys claims.

We therefore sustain the trial courts factual finding and affirm the restraining order.

3. No merit to Hunleys contention the proceedings in the trial court violated due process.

Hunley contends that, when he and Brown entered into the mediated settlement, Hunleys three eye witnesses to the underlying incident were present in court. After the mediated settlement was reduced to writing, Hunley told his witnesses they could leave the courthouse. However, when the case was called to confirm the mediated settlement in open court, Brown told the clerk of the court he changed his mind and wanted to proceed with the hearing. The clerk then wrote cancelled across the Stipulation re Settlement, and the trial court conducted a hearing on the merits of Browns petition. Hunley, unable to reach his witnesses by phone to have them return to the courtroom, participated in the hearing without the witnesses.

Hunley concludes he was deprived of a fair hearing.

Hunleys claim fails because he has not provided a reporters transcript or any other admissible evidence of what occurred at the hearing. The absence of a reporters transcript of the hearing precludes us from addressing the merits of Hunleys due process claim. (See Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259 [request for relief from dismissal forfeited for failure to provide record concerning what actually occurred at the hearing].)

Furthermore, Hunley does not allege he told the trial court that Brown reneged on the settlement or that Hunley was unable to call the witnesses back into court to testify. Similarly, Hunley does not argue he requested a continuance or told the trial court its decision to hear the case without witness testimony was improper. The clerks cancellation of the settlement agreement appears to have been appropriate, given that Hunley concedes Brown changed his mind before the hearing on the matter.

In sum, because we cannot address Hunleys due process challenge to the proceedings in the trial court, we deem the claim forfeited. (Ehman v. Moore (1963) 221 Cal.App.2d 460, 463 [claim trial court erred in ruling before appellants had a chance to complete their defense forfeited when appellants provided reviewing court with a record which is wholly inadequate to enable it to review the error complained of].)

4. No merit to Hunleys contention Brown came to court with unclean hands.

Hunley argues Brown came to the trial court with unclean hands because Browns acts of trespass and vandalism caused the dispute. Hunley insists the evidence in this case clearly shows I am the victim.

Under the unclean hands doctrine, a court has discretion to deny a litigant equitable relief if the court concludes he or she acted unfairly or fraudulently as to the controversy in issue. (Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co. (1945) 324 U.S. 806, 814-815.)

The record does not show Brown acted unfairly or fraudulently as to the controversy in issue. Further, by granting Browns petition, the trial court impliedly found no basis upon which to exercise its discretion to withhold equitable relief. Accordingly, we reject Browns attempt to invoke the unclean hands doctrine.

DISPOSITION

The order is affirmed. Hunley shall bear his own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

KITCHING, J.

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[1] Subsequent unspecified statutory references are to the Code of Civil Procedure.

[2] Hunley has augmented the record on appeal to include the Stipulation re Settlement.