Filed 1/22/18 Ewing v. Greenlee CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

The trial court issued a civil harassment restraining order (Code Civ. Proc., § 527.6)[1] in a dispute between a landlord and tenant over the landlord’s right to use part of a rented house for storage and occasional occupancy. The court ordered the landlord to remove his personal property and to stay away from the house. The landlord appeals, contending that this landlord-tenant dispute was mistakenly treated as harassment. The contention has merit, requiring reversal of the restraining order.

Statement of Facts

Travis Greenlee rented his Oakland house to Terry Ewing under a written lease for month-to-month occupancy. Tenancy began in March 2015.

Two years later, in March 2017, Ewing petitioned for a civil harassment restraining order. Ewing alleged that in December 2016 he discovered that Greenlee was storing property in the basement and sometimes stayed there overnight in contravention of the terms of the lease, which give Ewing and his daughter exclusive right of occupancy. Ewing said he told Greenlee not to “return to the property for reasons other than required maintenance” but Greenlee “asserts he is only renting a portion of the home to me and insists he has rights to come and go as he pleases with no notification.” Ewing alleges Greenlee “continues to send me harassing emails and texts telling me he has rights to come into the residence at any time.”

Ewing twice called the police to remove Greenlee from the premises but the police “were unwilling to involve themselves in the matter” and told Ewing “to seek resolution via a court order.” Ewing says Greenlee continued to enter the premises, sometimes accompanied by “a large dog,” which “made me uncomfortable challenging Mr. Greenlee further.” Ewing alleges: “Greenlee’s behavior is threatening to myself and my young daughter. His belief in his right to enter our home with no notification nor justified purpose is in violation of our reasonable expectation of privacy within our home. His behavior is threatening, harassing and makes me feel unsafe in the home I rent. I worry he may come at any time and I’m fearful the police have been unable to keep him away.”

Greenlee filed a written response denying Ewing’s claim of harassment and countering that Ewing harassed him by denying him access to the house and reporting him to the police as a trespasser. Greenlee asserts a right to use the attic and basement and says he used those portions of the house throughout the many months of Ewing’s tenancy without objection until December 2016. Greenlee asserts: “I have communicated with [Ewing] in only a civil manner during this dispute” and Ewing’s “claims are landlord/tenant issues, not issues of harassment”

A hearing was held in April 2017 at which both Ewing and Greenlee testified. Ewing testified he was entitled to occupy the entire house. Ewing acknowledged a February 2015 oral agreement with Greenlee permitting storage of Greenlee’s personal property in the attic and basement but Ewing insisted that storage was to be for a “very short-term” “to facilitate moving his stuff out and my stuff in.” He denied any agreement for long term storage or overnight stays. Greenlee testified that Ewing agreed that the attic and basement were for Greenlee’s use throughout the tenancy. Greenlee said that he alone had keys to the attic and basement doors and that Ewing “never complained” about Greenlee’s use of those separate areas until the parties’ “relationship fell apart” in late 2016.

The court ruled that Greenlee must give Ewing occupancy of the entire house “as the lease contemplates.” The court issued a three-year restraining order against Greenlee directing him to remove his personal property from the house and to stay away from the house except for “landlord duties with 24 hours notice.” Greenlee was ordered not to “harass, intimidate, molest, attack, strike, stalk, threaten, assault . . . or disturb the peace” of Ewing or his daughter and to stay at least 100 yards from their persons, Ewing’s workplace, and the child’s school. Greenlee was prohibited from possessing firearms or ammunition and the restraining order was registered with law enforcement agencies.

Following an unsuccessful motion for reconsideration, Greenlee timely filed a notice of appeal. Greenlee is self-represented on appeal. Ewing did not file a responsive brief.

Discussion

“Section 527.6 is a specialized statute providing an expedited procedure for issuance of limited-scope and limited-duration injunctions in instances of ‘harassment.’ ” (Byers v. Cathcart (1997) 57 Cal.App.4th 805, 807.) The term “harassment” is narrowly 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 that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.” (§ 527.6, subd. (b)(3).) A “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)(1).)

There is insufficient evidence of “harassment” as statutorily defined. There is no evidence whatsoever of violence, a threat of violence, stalking, abusive communications or other conduct that are core concerns of anti-harassment restraining orders. The only conduct at issue is Greenlee’s continued use of portions of a house he owns and rents to Ewing, which is a landlord-tenant dispute, not harassment.

In his petition, Ewing alleged that Greenlee “has repeatedly entered my home without permission.” However, apart from a single occasion to effect a repair, there was no evidence that Greenlee entered the main floor of the house where Ewing resides. The evidence established only that Greenlee entered the attic and basement portions of the house that are physically separated by locked doors from Ewing’s living quarters. Ewing alleged Greenlee sent “harassing emails and texts telling me he has rights to come into the residence at any time” but no emails or texts were included with the petition and there is no evidence to support Ewing’s use of the conclusory term “harassing” to describe the emails. Greenlee claims his communications with Ewing were always “civil” and there is no evidence to the contrary. Ewing’s testimony made no mention of “harassing” communications and focused exclusively on Greenlee’s disputed use of portions of the house. Ewing testified: “I’m pleading harassment here, and I think, clearly, . . . Mr. Greenlee’s occupancy with, no notice, of my home, coming and going, is clearly harassment.”

The term “harassment” has a specialized meaning under section 527.6 that does not encompass a landlord-tenant dispute such as the controversy at issue here. An anti-harassment injunction is intended to provide an “expedited procedure for enjoining acts of ‘harassment’ ” as narrowly defined. (Smith v. Silvey (1983) 149 Cal.App.3d 400, 405.) As revealed in the statute’s legislative history, section 527.6 is meant to provide immediate relief to a “victim of harassment” “threatened with great or irreparable injury” who would otherwise be relegated to “a tort action based either on invasion of privacy or on intentional infliction of emotional distress.” (Ibid.) “An example of the type of activity” covered by the statute, set out in the legislative history, is “the plight of a Sacramento student”: “ ‘ “He followed her day after day, she remembers. He pressed his face against the windows of her classrooms and peered at her around bookstacks in the library. He swathed her car in red and white camellia blossoms. He called her 40 times a weekend and sent her gifts such as his sterling-silver baby cup . . . . When she fled to her parents’ home 150 miles away, he would park nearby for hours . . . . (He) bombarded her, she says, with clippings on parapsychology, letters he had written to President Ford and gifts, including a rock shaped like a phallus.” ’ ” (Ibid.) The anti-harassment statute “was designed to provide a quick and simple procedure by which this type of wholly unjustifiable conduct, having no proper purpose, could be enjoined. The statute is limited to protecting only those who have suffered “substantial emotional distress” caused by conduct “that serves no legitimate purpose.” (§ 527.6, subd. (b) [defining “harassment”].) Nothing in the statute indicates that it was intended to supplant normal injunctive procedures applicable to cases concerning issues other than ‘harassment’ as statutorily defined.” (Byers v. Cathcart, supra, 57 Cal.App.4th at p. 811.)

The anti-harassment statute was “never intended to provide an expedited procedure for resolving real property disputes.” (Byers v. Cathcart, supra, 57 Cal.App.4th at p. 810.) In Byers, residential neighbors filed competing anti-harassment petitions over the use of a driveway easement. (Id. at pp. 808-809.) The court held: “Although improper use of an easement can be enjoined, potentially complex issues of real estate law such as rights and duties pursuant to an easement cannot properly be resolved pursuant to the summary procedures of section 527.6. That portion of the section 527.6 injunction which bars plaintiff from parking along the side of the driveway must therefore be reversed, without prejudice to review of that issue according to normal injunctive procedures.” (Id. at p. 808.) In so holding, the court noted that “[n]ormal injunctive procedures allow time for research and investigation, pleading and other motions if necessary, discovery and preparation, etc., followed by opportunity for a full trial.” (Id. at p. 811.) Section 527.6, “by contrast, provides a quick and truncated procedure. Offsetting the truncated nature of this procedure is the limited scope of the antiharassment orders which can legitimately follow. Section 527.6 provides for temporary restraining orders to handle immediate problems, followed quickly by a court hearing on a limited-scope antiharassment injunction - normally within 15 days, but in no case more than 22 days even if time is extended for good cause. [Citation.] This expedited and summary proceeding is subject to several limitations designed to confine it to its proper scope. One such limitation is that any injunction which results cannot exceed three years in duration. Section 527.6 hence does not allow for final resolution of disputed rights.” (Byers, at pp. 811-812; accord Marquez-Luque v. Marquez (1987) 192 Cal.App.3d 1513, 1519 [“the special proceeding under . . . section 527.6 to enjoin harassment did not invest the court with authority to evict defendant from his dwelling”].)

Final resolution of disputed property rights—like the disputed right to use of the basement and attic in the house Greenlee rents to Ewing—is not a matter for section 527.6. The trial court stated, in its order denying reconsideration, that its restraining order “concerns civil harassment” and does not “address or decide disputed property rights.” This statement is irreconcilable with the nature of Ewing’s claim, which was wholly premised on Greenlee’s alleged unpermitted use of the rental premises, and the terms of the order itself, which command Greenlee to remove his personal property from the premises. When stating its ruling from the bench, the court said Greenlee must give Ewing occupancy of the entire house “as the lease contemplates,” which is plainly a determination of disputed property rights and, as such, a misuse of section 527.6 proceedings.

The proper forum for the parties’ dispute is a civil action where competing claims of unlawful detainer and breach of the covenant of quiet enjoyment may be resolved. Greenlee did file an unlawful detainer action sometime after the restraining order was issued. We have been advised of a settlement agreement filed in that action resolving tenancy issues and agreeing that Ewing would vacate the premises in October 2017. The restraining order, however, remains in effect, which necessitates resolution of this appeal.

Disposition

The order is reversed. The trial court is directed to vacate the injunction prohibiting harassment and to cause the injunction order to be removed from the California Restraining and Protective Order System.

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Pollak, J.

We concur:

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McGuiness, Acting P.J.*

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Siggins, J.