Burchmore v. Linares
Filed 12/9/11 Burchmore v. Linares CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
Plaintiff and Respondent,
Defendant and Appellant.
(San Francisco County
Super. Ct. No. CCH-10-571039)
Plaintiff and Respondent,
Defendant and Appellant.
(San Francisco County
Super. Ct. No. CCH-10-571040)
Plaintiff and Respondent,
Defendant and Appellant.
(San Francisco County
Super. Ct. No. CCH-10-571041)
Plaintiff and Respondent,
Defendant and Appellant.
(San Francisco County
Super. Ct. No. CCH-10-571042)
Mark and Maryline Linares (together, appellants) appeal from restraining orders issued against them in actions filed by their neighbors Brian Burchmore and Michael Weaver (together, respondents). Appellants contend: (1) there was no substantial evidence supporting the finding that they harassed any of the protected parties; (2) the trial court abused its discretion by denying them the opportunity to testify or present witness testimony; and (3) the trial court abused its discretion by relying on a video that was not admitted into evidence and was not part of the record. We reject the contentions and affirm the orders.
Factual and Procedural Background
On July 16, 2010, Brian Burchmore (Burchmore) filed requests for restraining orders against appellants. He declared that Mark brandished a weapon on July 14, 2010. Mark had also thrown “an object with liquid” at Burchmore, hitting Burchmore’s car, had tried to run Burchmore down with a car, and had ordered his dogs to attack Burchmore, resulting in Burchmore being bitten. He declared, “For nearly [three] years, me, my family, and my neighbors have all been subject to [Mark’s] threats,” and Mark has threatened him and his family “in almost every encounter . . . .” Burchmore declared as to Maryline that she had tried to run him down with her car, had ordered her dogs to attack him, and screamed at his family. He declared, “[Maryline] lays in wait for me and threatens violence against me, my family, and my property.”
Under the category “Describe Harassment,” Burchmore attached a one-page police “narrative” that described an incident in which Burchmore claimed Maryline harassed his three-year-old daughter and made her cry by yelling at her. A witness said Maryline did not yell but spoke to Burchmore and his daughter “in a sarcastic man[ner].” Mark told the police officer who responded to the scene that “all the neighbors on his block hate[d] him and his wife because they [we]re remodeling the house.” Mark raised his voice at the officer as he continued to talk and his face turned red, and when the officer told him to relax, Mark yelled, “I am relaxed!” Mark continued to raise his voice and pointed his right index finger in the officer’s face. Mark said he was not interested in free city services that helped mediate people’s problems and was “just going to sue everyone” instead.
Burchmore also attached to his requests for restraining orders under the category “Describe Harassment” a 15-page document in which neighbors described appellants’ acts of harassment in 2009 and 2010. The incidents involving Mark included, among other things, him yelling at neighbors and making “black racial comments,” repeatedly banging on neighbors’ foundations, “flipp[ing] . . . off” neighbors, yelling obscenities at Burchmore and scaring Burchmore’s daughter by shouting her name through the wall, hiding behind a neighbor’s gate and suddenly opening it and yelling and screaming in an attempt to startle the neighbor, and blocking a neighbor’s exit by standing in front of her gate, then getting in her face and yelling “FUCK YOU!” as she maneuvered around him to exit. The incidents involving Maryline included, among other things, her accelerating her car as Burchmore was riding his bike on the road, forcing him off the road, yelling obscenities and insults and cursing at Burchmore and his daughter as they played in the yard, calling Burchmore’s wife a “loser” and using obscenities and foul language in front of Burchmore’s children.
On July 16, 2010, Michael Weaver (Weaver) filed requests for restraining orders against appellants. He declared Mark had been intimidating and harassing him and making threats against him since at least September 2009. Most recently, on July 4, 2010, Mark yelled at him and “gave [him] the middle finger” while screaming, “wait until July 16th, wait until July 16th,” causing Weaver substantial emotional distress. Weaver declared he had also suffered an “ongoing pattern of intimidation, harassment and threats” from Maryline, who “constantly” harassed Weaver and his domestic partner, John Schaaf (Schaaf), and most recently made a “homophobic slur” by calling out to Weaver, an openly gay man, “Hey girlfriend.”
Weaver attached to his requests for restraining orders 19-pages documenting neighbors’ descriptions of appellants’ acts of harassment in 2009 and 2010. The documentation contained essentially the same information contained in Burchmore’s attachment, as well as several additional incidents of harassment described by Weaver and Schaaf. For example, Schaaf described an incident in which Mark “g[a]ve [him] the middle finger several times,” falsely accused him of being a drug addict, and mocked him, asking him if he was “born again” and whether he was “going to get down on [his] knees to pray.” Weaver reported that Mark harassed him by scaring his dogs, “snapp[ing] [his] photo or film[ing] [him],” yelling and cursing at him for no apparent reason, and screaming at him to “wait until July 16th,” a comment Weaver did not understand but caused him concern. Weaver also attached a signed statement by Schaaf describing several incidents of harassment.
Appellants filed Answers to the requests for restraining orders on July 27, 2010. In his Answer to Burchmore’s request, Mark declared “[t]here has been no act of violence or threat to commit any acts of violence against [Burchmore] or his family.” Burchmore and his wife made “derogatory, insulting and hurtful comments” to appellants on a regular basis and had “caused irremediable damage” to Mark’s family, pets and business. Mark intended to file a lawsuit against Burchmore because Burchmore and his wife were “active contributors of a defamatory blog” that was “based upon incomplete and/or erroneous information that was illegally obtained.” Burchmore and his wife had also made false child abuse allegations against appellants, unnecessarily involving Child Supportive Services, which deemed the allegations unfounded. Burchmore and his wife were “habitual liars” who told the police that Mark swore at him, brandished or waived a gun at him, and threw beer bottles at him. Mark denied that his dogs had ever bitten Burchmore and declared that an Animal Care Control hearing resulted in a finding that his dogs did not have to be registered as “vicious and dangerous.” He described an incident that occurred on December 14, 2008, and attached a police report describing the incident in which Burchmore hit the side of appellants’ house with a bat in an attempt to “arouse the dogs and to get them barking.” Burchmore told appellants at the time that he was protecting himself against the dogs. Mark also attached a two-page document dated August 3, 2009, in which Maryline described “Ongoing harassment” by Burchmore and his wife, including disposing of garbage and glass bottles after 10 p.m. while “making as much noise as [they] can,” and antagonizing the dogs. He attached letters and a petition in which individuals stated his dog was not vicious. He also attached a letter from an individual who stated she had known appellants for seven years and believed the allegations against them were “not in line with the Linares family that [she had] come to know very well.” Finally, he attached a five-page document that listed various incidents involving Burchmore, his wife, Weaver, Schaaf, and three other neighbors. The incidents included calls to the police and to Animal Care Control, graffiti, tampering with appellants’ vehicles, and a child abuse referral.
In her Answer to Burchmore’s request, Maryline declared she and her family had been subjected to “harassment, threats, following, stalking, blockage of movement, etc.” by Burchmore and his family. She declared that Burchmore’s allegations were false and that she had never tried to run him down with her car and had not ordered her dogs to attack him. She had witnessed Burchmore antagonizing her dogs on multiple occasions, “always with a video camera in one of his hands.” She denied screaming at Burchmore’s wife and their children.
In his Answer to Weaver’s request, Mark described incidents of harassment by Weaver and Schaaf. He declared that Schaaf made “unexpected sexual, explicit comments” about appellants’ then 15-year-old daughter on October 9, 2009, causing Maryline to call 911. Weaver and Schaaf installed a video surveillance system on July 10, 2010, aimed at appellants’ house, depriving them of their privacy. The video surveillance system was “argu[ably]” “only aiming at the street” but Mark believed this was “quite unlikely, considering the ongoing harassment perpetuated by” Weaver and Schaaf. Mark declared that he witnessed Schaaf “keying the driver side of our jeep” and that Weaver had screamed at Mark’s family, ruining their evening. Weaver and/or Schaaf also posted a “defamatory blog” that was “aim[ed] at hurting” Mark and his family. The blog was “based upon incomplete and/or erroneous information that was illegally obtained.” Mark denied Weaver’s allegations and said he had never been in contact with Weaver or Schaaf’s dogs. Mark attached statements from his children that Weaver insulted the family by cursing at them on July 4, 2010.
In her Answer to Weaver’s request, Maryline declared Weaver and Schaaf harassed her family by installing a video surveillance system. She denied ever being in contact with Weaver or Schaaf’s dogs.
At a July 30, 2010, hearing on the requests for restraining orders, the trial court heard all four cases together, without objection. The court asked what Burchmore had with him “in the way of . . . evidence,” and Burchmore replied that he had brought three notarized affidavits from witnesses who would be able to testify regarding the harassment, as well as two videos, one in which dogs were attacking him in the yard, and another in which Mark was harassing and attacking Burchmore and another neighbor. Burchmore added that he had “taken [appellants] to dog court four times.”
The trial court viewed the video of the dogs “attacking” Burchmore. Burchmore stated, “This [is] my yard, I was walking out of my downstairs basement, there on the house to the right, as you can see their dogs can jump in and out of my yard. I [am being] pinned by them, they viciously attack me.” Burchmore described the second video, stating, “And the next one to set up the scene, they’ve got a construction fence surrounding their property and what Mr. Linares does is lie in wait for us to walk by and shoves the gate out at us.” The court asked, “What was that What was the yell” and Burchmore responded that he had “warned [his] neighbor [about Mark and] that Mark . . . jumped out so my neighbor just went ouh, ouh . . . [¶] . . . Mark just came out and, you know, started yelling at both of us. And this is ongoing. This happens almost every time we walk in and out of our house.” The trial court asked Burchmore what could be the “genesis to all this.” Burchmore responded that the “[o]nly thing [he] c[ould] figure” was “just insanity on their part. They constantly attack everybody around them. It’s just we live next door to them, they’re always on us. [¶] It’s like they can hear when we open our doors then [Mark] come[s] rushing out, it’s just horrible and it is [e]specially for my three-year-old daughter. [Maryline] yell[s] at her and it causes her to cry. I’m so upset myself.”
Burchmore stated as to Maryline, “Specifically, she’s ordered her dogs to attack me an[d] as you see in their response they continue to deny that their dogs are a problem. [¶] Also the running down or attempting to run me down [on May 26] . . . I ride a bicycle, she came firing down the road, she saw me, [acce]lerated and I had to dive into [the] street.”
Schaaf testified that Mark approached him one day and said, “Hey, John, you know someone called Child Protective Services on us, did you do it” Schaaf responded that he had not, to which Mark said, “Well then it must have been Brian [Burchmore]. Tell Brian that I’m going to kick his as[s].” Schaaf testified that at least 40 percent of the incidents described in an intranet group that Weaver had been keeping to document appellants’ acts involved Maryline. Maryline also “affirmatively and additionally engage[d] in the harassment” in which Mark engaged.
Burchmore’s wife described harassment “without provocation” that had been occurring for the last two and a half or three years. She and her children were afraid of the violence and the threats and the “terrible violent anger” that was occurring for “no apparent reason.” Mark would call her and her family members “fucking ass holes” “in a very mean way” even though they had not said a word to him and were simply walking by. She was afraid appellants “can’t control themselves because they don’t seem to stop and there is no reason why they’re doing it. We haven’t done anything. They just . . . lack . . . control and I’m afraid it’s going to go to[o] far, really going to hurt us, I don’t know what to do.”
Weaver testified that since approximately August 2009, he and Schaaf had been subjected to “threatening comments, verbal harassment, and obscene [g]estures by both . . . .” He was dealing with a lot of emotional stress and had suffered anxiety attacks. Mark would “always start the incident typically by saying ass hole, kick your ass, fuck you. Always middle finger. And/or some other affirmative action like that, it’s usually very aggressive, it’s for no reason.” He stated the “energy . . . on that street” had changed since appellants had moved in less than three years before, and appellants had “basically attacked five different homes in different ways.” When asked what evidence he had against Maryline, Weaver responded it was “the same thing.” He added that the “straw that broke the camel’s back” was a recent comment she made to him, calling him “girlfriend” and other comments she made that he did not remember because he tried to ignore her. He would close his garage door and remove himself from the situation when Maryline would scream obscenities at him. He said that Maryline “always” went along with what Mark “and whatever he did,” including threats he made. The two of them went “hand-in-hand” because Maryline did not discourage Mark from making threats and instead “participate[d] in a lot of these.” Weaver presented a letter from his therapist describing the therapist’s concerns and how the harassment had affected Weaver. He also presented a signed declaration of a witness who saw Maryline call him “girlfriend,” as well as a letter from another neighbor describing “all of our cases and experiences they had been having with [appellants].”
The trial court stated, “from what I’m hearing and . . . specifically what I [saw] on the tape that’s enough to ring the bell.” The court told appellants that they needed to “push [the court] off that point” to rebut what respondents had presented. Mark responded by describing his neighbors as a “lynch mob” that had given him “nothing but harassment” during the three years since he had moved into the neighborhood. He explained the video did not accurately describe what had occurred because it did not record what one of the neighbors was saying to him. He believed his neighbors “set this stuff up” as they did “all the time.” Mark testified that not everyone in the neighborhood was “against” him and that there were several neighbors who supported him. He testified that the neighbors who were against him were unhappy with construction that was going on at his house. He testified that Burchmore yelled at him the first time he met him.
Maryline testified that the neighbors who were against them wanted them to leave the neighborhood. “And they have tried—what you don’t see is what they do to antagonize. The dogs – the incident and this is reported in our response . . . . [¶] . . . [¶] We have witnesses with him with a baseball bat in his hand . . . .” She said there was also a witness who would attest to some “sexual comments” Schaaf made. She stated, “this is a situation where you have four neighbors that take turns against us. On a regular basis.”
The trial court granted respondents’ requests for restraining orders and ordered appellants to stay 50 yards away from the protected parties and five yards away from them while on the one-block street on which appellants live. The court ordered that the protected parties were Burchmore and his wife and two minor children, Weaver and Schaaf and their roommate Christopher Alvarado. The court further ordered that the restraining orders would be in effect for three years.
Appellants contend there was no substantial evidence supporting the finding that they harassed any of the protected parties. We disagree.
“A person who has suffered harassment . . . may seek a temporary restraining order and an injunction prohibiting harassment . . . .” (Code Civ. Proc., § 527.6, subd. (a).) “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).) “ ‘Unlawful violence’ is any assault or battery, or stalking” unless done in “self-defense or defense of others.” (§ 527.6, subd. (b)(1).) “ ‘Credible threat of violence’ is a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose.” (§ 527.6, subd. (b)(2).) “ ‘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 . . . .” (§ 527.6, subd. (b)(3).) Before issuing a restraining order against a person under this section, the trial court is required to find the harassment by clear and convincing evidence. (Schraer v. Berkeley Property Owners’ Assn. (1989) 207 Cal.App.3d 719, 730.)
“In assessing whether substantial evidence supports the requisite elements of 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 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.)
Here, there was substantial evidence supporting the trial court’s finding of harassment under the clear and convincing evidence standard. Burchmore declared and testified regarding the numerous acts of harassment in which appellants had engaged and also presented documents as well as witnesses (his wife and Schaaf) to testify regarding the harassment. The evidence of harassment included Mark brandishing a weapon, throwing “an object with liquid” at Burchmore, hitting his car, threatening to “kick [Burchmore’s] ass,” rushing out as soon as Burchmore or his family prepares to leave their home, “l[ying] in wait for [Burchmore and others] to walk by and shov[ing] the gate out at [them], both appellants trying to run Burchmore down with their cars and ordering their dogs to attack him, resulting in Burchmore being bitten, and constant unprovoked cursing and name-calling by Mark and screaming by Maryline directed at Burchmore and his family. Burchmore testified regarding the significant stress he and his family were suffering as a result of appellants’ acts, and Burchmore’s wife testified she was afraid of the “terrible violent anger” and “lack of control” that was likely to “go to[o] far.”
Weaver also presented ample evidence of harassment by appellants. He declared that Mark had been intimidating and harassing him and Schaaf and making threats against them since at least September 2009. The incidents “always start[ed] . . . [with Mark] typically by saying ass hole, kick your ass, fuck you,” and “[a]lways” giving him the “middle finger,” followed by some “very aggressive” behavior and obscene gestures by both appellants. Mark falsely accused Schaaf of being a drug addict, mocked him, and purposefully scared his and Weaver’s dogs. Maryline screamed obscenities at Weaver and actively participated in the harassment in which Mark engaged. Most recently, Mark yelled at Weaver and “gave [him] the middle finger” while screaming, “wait until July 16th, wait until July 16th,” and Maryline made a “homophobic slur” by calling out to him, “hey, girlfriend.” Weaver testified that the “energy on the street” had changed since appellants moved in, and that although he tried to ignore Maryline and remove himself from the situation by, among other things, closing his garage door when she screamed obscenities at him, her and Mark’s acts had caused him to suffer severe emotional distress and anxiety attacks for which he was seeing a therapist.
Appellants assert the trial court “lumped all the allegations from each Respondent and each different case as if they had all been directed at one individual.” The record shows, however, that the court specifically asked Burchmore and Weaver to present evidence of harassment by each individual appellant and reviewed Burchmore and Weaver’s cases separately. Appellants also cite to Russell v. Douvan (2003) 112 Cal.App.4th 399, 401, in which the Court of Appeal concluded the trial court erred in issuing a restraining order “based on a single incident of battery without finding a threat of future harm.” The case, however, is inapposite where, as here, the restraining orders were based on numerous and continuous acts of harassment that were not likely to cease.
Appellants contend the trial court abused its discretion by denying them the opportunity to testify or present witness testimony. We reject the contention.
“When a party seeks such an injunction, the court must hold a hearing, receive relevant testimony, and issue the injunction if it finds, by clear and convincing evidence, that harassment exists. [Citation.] . . . [¶] ‘[A]lthough the procedures set forth in the harassment statute are expedited, they contain certain important due process standards. Most notably, a person charged with harassment is given a full opportunity to present his or her case, with the judge required to receive relevant testimony and to find the existence of harassment by “clear and convincing” proof . . . .’ [Citations.]” (Nora v. Kaddo (2004) 116 Cal.App.4th 1026, 1028.) Thus, in Nora v. Kaddo, supra, the Court of Appeal held it was error for the trial court to issue mutual restraining orders against the parties after refusing to allow the parties to present any testimony at the hearing after stating it was “prepared to rule on the papers presented by the parties.” (Id. at pp. 1028, 1029; see also Schraer v. Berkeley Property Owners’ Assn., supra, 207 Cal.App.3d at p. 720 [trial court in harassment proceeding may not arbitrarily limit evidence presented to written testimony only; both sides may offer evidence by deposition, affidavit, or oral testimony, and the court shall receive such evidence, subject to such reasonable limitations as are necessary to conserve the expeditious nature of the harassment procedure].)
Here, in contrast, the trial court allowed all parties to present their cases and defenses. Burchmore and Weaver testified regarding their allegations and Burchmore’s wife and Schaaf testified regarding the harassment they had witnessed. Appellants then testified, denying the allegations and stating their position that the neighbors were a “lynch mob” upset at them due to construction that was going on at appellants’ home. They explained that respondents were the ones who were harassing them and antagonizing their family and their dogs, and they provided examples of harassing behavior by the neighbors, e.g., Burchmore waving a bat at their dogs and yelling at Mark, Schaaf making “sexual comments” at appellants’ daughter.
Appellants complain that the court did not allow them to present their witnesses. However, the record shows that when the court asked them whether there were any witnesses whose testimony they wished to present, appellants responded only that their daughter was in court. They did not state that their daughter had witnessed any of the events on which appellants’ allegations of harassment were based, and they do not assert on appeal that she had any information that would have tended to prove or disprove any fact that was in dispute in the case. Appellants’ contention fails because they have not shown the court prevented them from presenting any relevant testimony. (See Nora v. Kaddo, supra, 116 Cal.App.4th at p. 1028 [trial court is required only to “receive relevant testimony,” emphasis added].)
Appellants contend the trial court abused its discretion by relying on a video that was not admitted into evidence and was not part of the record. As noted, the court viewed videos that Burchmore presented and stated that what it “[saw] on the tape [was] . . . enough to ring the bell.” Appellants did not object to the introduction of the videos on any grounds and were provided the opportunity to present their position that what was depicted on them did not accurately reflect what actually occurred. On appeal, Weaver provided this Court with a copy of one of the videos, and appellants do not dispute the authenticity of the video and do not dispute it was one of the videos that was shown at the hearing. Nevertheless, we need not, and will not, review the video or decide whether it was error for the court to rely on it when it was not admitted into evidence, because we have concluded above that there was substantial evidence—aside from the video—supporting the issuance of restraining orders against appellants.
The orders are affirmed. Respondents shall recover their costs on appeal.
 On our motion, we augment the record to include the requests for restraining orders that appellants filed in this case.
 Because Mark and Maryline Linares share the same last name, we will refer to them by their first names for clarity and ease of reference. (See In re Marriage of Green (1992) 6 Cal.App.4th 584, 588, fn. 1.)
 The reporter’s transcript does not affirmatively show that the parties and witnesses were sworn to testify. However, there is an indication that they were sworn, as the trial court asked one of the witnesses before he testified, “You already had been sworn, right” and the witness responded, “Yes, Sir.” The parties do not dispute that the statements they and other witnesses gave at the hearing were sworn testimony.
 All further statutory references are to the Code of Civil Procedure unless otherwise stated.
 Weaver filed a motion to augment the record with a copy of one of the videos as well as other documents purporting to show additional acts of harassment by Mark. He also requested that we augment the record with a letter from his therapist and a declaration from Schaaf setting forth an off-the-record conversation between Burchmore and the trial court regarding whether the videos should be admitted into evidence. We deny Weaver’s motion on the ground the documents are not necessary to the determination of this appeal, were not presented to the trial court, or are not appropriate for augmentation.