Green v. Bergeman



























Filed 10/15/12 Green v. Bergeman 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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




>

ROBERT DAVID GREEN, Plaintiff and Respondent, v. CARL VINI BERGEMAN, Defendant and Appellant.

G045978 (Super. Ct. No. 30-2011-00449430) O P I N I O N

Appeal from an order of
the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Derek W. Hunt, Judge.
Affirmed.

Carl Vini Bergeman, in
pro. per., for Defendant and Appellant.

Robert David Green, in
pro. per., for Plaintiff and Respondent.

* * *

Carl “Vini” Bergeman
appeals from an order denying his motion to terminate a href="http://www.mcmillanlaw.com/">restraining order issued against
him. He contends the trial court at the
original hearing improperly denied him the right to defend himself with the
assistance of counsel on respondent Robert David Green’s application for the
restraining order, and it was consequently “duty bound” to terminate the
restraining order upon his subsequent request.

We disagree. A motion to terminate a restraining order can
be based on a showing of either new facts, a change in the law, or that the
ends of justice would be served by termination.
In effect, Bergeman relied on the last of these justifications in
arguing the trial court should have terminated the order because the court
issued it without giving him a brief continuance so his counsel could be
present to defend him. Bergeman fails to
show the trial court abused its discretion in denying his request to postpone
the hearing. Moreover, the court allowed
him to present additional evidence attacking the restraining order, with the
aid of his counsel, at the termination hearing.
The court then found Bergeman’s evidence insufficient to terminate the
restraining order. We cannot say the
court erred in reaching that conclusion, and thus we affirm its order.

I

Facts

Bergeman and Green were
partners in an “automotive customization” business. They had a falling out, and according to
Bergeman, Green locked him out of the business premises without justification. Bergeman reacted to that lockout by making a
series of telephone calls to Green in January and February 2011, leaving
messages which were angry and threatening — although none of the threats was
violent in nature. Instead, what
Bergeman threatened, in the most crude and profane terms, fell into two
categories. First, he threatened to file
theft charges stemming from Green’s retention of equipment belonging to
Bergeman on the business premises, and by “sue[ing] you so fuckin [>sic] bad you wont [sic] be able to breathe.”

Bergeman did not stop
there. He made various threats regarding
to Green’s wife Natalie (who was also involved in the business) and Green’s
12-year-old daughter. Without going into
specifics, the general theme of these threats asserted Natalie was a
“prostitute” who had been captured on film engaged in various sex acts. Bergeman threatened to post compromising
pictures of her “everywhere,” including near Green’s daughter’s school in Yorba
Linda, if Green did not return his equipment. Bergeman reminded Green he had earlier posted
pictures of “Jen, shower” “in [N]ordstroms all over.”

Bergeman also asserted
Green’s wife had engaged in sex acts in front of their daughter, and that Green
himself had molested his daughter, and then insinuated he (Bergeman) possessed
photographs to prove it. He warned that
if his equipment was not returned “by [T]uesday,” he would share those
photographs with the police.

Bergeman had previously
sent e-mails to several men (including Green), either attaching photographs of
a woman referred to as “Luscious Linda,” or which he depicted as coming >from her. The e-mail purporting to be sent from “Linda”
to another man included a graphic depiction of her supposed physical and sexual
attributes, followed by a detailed offer to engage in sexual acts with the
recipient. Although the significance of
these “Linda” e-mails is not explained, we infer they were intended to
demonstrate Bergeman’s willingness to fabricate e-mails of a sexual nature to
humiliate women.

Based upon all these
communications, Green filed a request for a civil restraining order on February 14, 2011, to stop Bergeman
from further harassing him, his wife, or his daughter. The court issued a temporary restraining
order against Bergeman that same day, and set a hearing for February 25, 2011, to consider
whether a permanent order should issue.

Bergeman personally
appeared at the hearing on February
25, 2011. He complained he
had not been given sufficient time to arrange for his attorney, James Cesena,
to be present at the hearing, and explained Cesena
advised him to request a continuance.
The court refused, stating “there’s not going to be a continuance
today. You’re entitled to have an
attorney, but without one, you will probably be obliged to represent yourself.”

After Green swore to the
accuracy of the phone message transcriptions and e-mail evidence attached to
his request for the restraining order, the court gave Bergeman an opportunity
to explain his version of events. Bergeman
characterized the parties’ business dispute as “a pretty complicated case,” and
explained that “I was upset because of what’s going on. I have to foreclose on him and he was my
partner on the house, and he bounced a check for 50 thousand. [¶] .
. . And I — I said that whatever is in
that statement, I probably said it.
Because I was upset.”

Bergeman argued the
court should not issue a restraining order based upon his messages to Green
because they were true — specifically, because Green’s wife was “a whore.” He informed the court he had brought with him
the tapes and photographs to prove his claim.
The court declined to look at any tapes, explaining, “I’m not here to
look at pornography, Mr. Bergeman.”
Bergeman admitted he lost his temper, but emphasized he had never
threatened nor intended any violence against Green. He acknowledged the possibility that “the way
I verbally say [these] things is what got me.”
The court agreed, “It might have been.”

The court informed
Bergeman it would issue the restraining order as requested, and reviewed its
terms with him. The court then suggested
Bergeman “get yourself a lawyer. And if
the lawyer and you confer and you don’t like what I’ve just done — [¶] .
. . [¶]
Then come back with the lawyer — [¶]
. . . [¶] — and we can talk about it. It will be — [¶] .
. . [¶]
— good for you.”

Approximately five weeks
later, on April 1, 2011, Bergeman filed a motion to terminate the restraining
order, arguing “[t]he original order was granted without any response/answer
from me; I was denied the right to a short continuance to allow my attorney to
be present.” A memorandum of points and
authorities prepared by Cesena accompanied the motion arguing that relief was
proper under Code of Civil Procedure section 473, href="#_ftn1" name="_ftnref1" title="">[1]
on the ground of “mistake, inadvertence, surprise or excusable neglect,”
because Bergeman had “inadvertently
failed to answer the Notice of Hearing and Temporary Restraining Orders based
on Counsel, James H. Cesena’s request to seek a continuance until [he] could
appear on behalf of [Bergeman.]” Cesena
also provided a brief declaration, stating that while Bergeman was present in
court for the hearing on Green’s request for a restraining order, he had
“failed to file an Answer based on the understanding that his attorney would
file one on his behalf.” Cesena opined
that the court “should have” continued the hearing to allow Bergeman to be
represented by counsel.

After several
continuances, the motion to terminate came on for hearing in August 2011. Cesena represented Bergeman and explained to
the court that Bergeman was seeking either an order terminating the restraining
order or a new evidentiary hearing on the matter. After discussing the timing of the motion,
the court agreed to hear “additional evidence . . . relating back to last
February which would suggest that I should terminate the injunction now, in
late August . . . .”

Bergeman testified about
his business dispute with Green. He
acknowledged he had called Green “more than once or twice in any day” and that
the phone calls included “foul language,” which was customary for him, but not
threats. He emphasized he never sought
to harass Green, but only to goad him concerning the dissolution of their business
relationship.

The court also allowed
Cesena to make an offer of proof regarding the proposed testimony of an
additional witness, identified by Cesena as Scott Lucero. Cesena explained Lucero would testify Green
had also sought a restraining order
against him based on false charges, and that Green had told Lucero “he’ll do
anything to stop” Bergeman from dissolving the business, including filing
harassment charges. Cesena characterized
this evidence as demonstrating Green’s “propensity . . . to lie and use his
lies to his advantage in the courtroom.”
The court, however, declined to hear Lucero’s testimony, noting “it
doesn’t sound like he has anything to say on this particular case.”

The court then allowed
Green to offer additional testimony, and Green reminded the court of Bergeman’s
earlier e-mail, which Green believed included a threat to harm his wife. The court responded, “I remember that,”
and after a brief additional colloquy, denied the motion to terminate the
restraining order.

II

Discussion

A. Civil
Harassment Restraining Order

Section 527.6 empowers
trial courts to issue orders restraining “harassment” of others. Harassment
is not limited to violence or threats of violence, but includes “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)(3).)
Section 527.6 allows the court to issue a temporary order, for a period
not to exceed 25 days, without notice to respondent (§ 527.6, subds. (c)
& (f)), but requires the court to hold a noticed hearing before issuing an
order imposing a restraining order for any period in excess of 25 days. (§ 527.6, subd. (f).) Following the noticed hearing, the court may
issue a restraining order covering a period of up to three years. (§ 527.6, subd. (j)(1).)

In conjunction with the
hearing, “the [defendant] may file a response that explains, excuses,
justifies, or denies the alleged harassment or may file a cross-petition
. . . . [¶] 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, subds. (h) & (i).)

A restraining order is a
species of injunction, and like other injunctions, it may be terminated before
its specified term upon a showing of good cause. (Loeffler
v. Medina (2009) 174 Cal.App.4th 1495, 1503-1504.) Good cause is defined as “a showing that there has been a material change in the
facts upon which the injunction or temporary restraining order was granted,
that the law upon which the injunction or temporary restraining order was
granted has changed, or that the ends of justice would be served by the
modification or dissolution of the injunction or temporary restraining
order.” (§ 533.)

B. The
Court Did Not Err in Refusing to Terminate the Restraining Order Issued Against
Bergeman

Bergeman contends the
court was “duty-bound” to terminate the restraining order because of Cesena’s
admitted “mistake, inadvertence, surprise or excusable neglect” in failing to
file an answer on his behalf or appear at the hearing. Bergeman suggests Cesena’s alleged mistake
effectively placed him in default concerning Green’s application for a
restraining order, and thus relief from the order was mandated by
section 473, subdivision (b).href="#_ftn2"
name="_ftnref2" title="">^[2] In the context of a motion for termination of
a restraining order, this argument amounts to a claim that “the ends of justice
would be served by the modification or dissolution of the injunction.” (§ 533.)

Two significant flaws
undermine Bergeman’s reliance on section 473 as a basis for relief from the
restraining order. First, contrary
to Bergeman’s contention, his attorney, Cesena, did not admit to any
“fault.” Instead, the key claim in
Cesena’s brief declaration supporting the motion to terminate was his
conclusory assertion that the court “should have” continued the hearing “to
allow [Bergeman] the right to Counsel.”
That amounts to an assertion of trial court error, not attorney fault.

Moreover, as an
indictment of the trial court, Cesena’s assertion was weak, at best. While the defendant is entitled to
representation at the noticed hearing on a request for a civil restraining
order (§ 527.6, subd.(e)), “there is no mandatory right to a continuance
under section 527.6,” merely because respondent’s chosen counsel is unavailable
to appear. (Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 527.) Because the trial court had discretionary
authority to grant or deny his
requested continuance, it was incumbent on Bergeman to explain why, in the
circumstances of this case, the court’s denial was an abuse of that
discretion. He failed to do so.

The second significant
flaw in Bergeman’s theory is that the restraining order here did not issue as a
result of any default. While section
527.6, subd. (h), provides that “the [defendant] may file a response that explains, excuses, justifies, or denies
the alleged harassment or may file a cross-petition” (italics added), it does
not require a defendant to do so. What
it does require is that “[a]t the hearing, the judge shall receive any
testimony that is relevant, and may make an independent inquiry.” (§ 527.6, subd. (i).) The trial court in this case complied with
that requirement when it allowed Bergeman to testify in opposition to the
restraining order despite his failure to file any written response. By contrast, when a defendant is in default,
the court hears evidence only from the party seeking relief. (§ 585, subd. (b) [“The court shall hear
the evidence offered by the plaintiff, and shall render judgment in the
plaintiff’s favor for that relief . . . as appears by the evidence to
be just”].)

Because this case
involved neither an admission of attorney fault, nor the entry of Bergeman’s
default, the mandatory relief provision in section 473 was inapplicable and
therefore did not establish the ends of justice would be served by terminating
the restraining order.

But even if the trial
court had denied Bergeman a fair chance to defend himself at the original
hearing, or the court erred in denying him a brief continuance of that hearing
to allow his counsel to represent him (issues we do not reach), we would still
conclude the court acted appropriately in refusing to terminate the restraining
order. As we have already noted, Cesena
requested at the termination hearing that the court either terminate the restraining order or give Bergeman a new hearing on its merits. The court did the latter, allowing Bergeman
another opportunity to present evidence in his defense at the termination
hearing, with Cesena’s assistance.
By doing that, the court effectively “cured” the effect of its
prior refusal to continue the initial hearing.

Having done that, the
court was not obligated to be persuaded
by Bergeman’s new evidence. It would
have been a tall order to persuade the trial court that the restraining order
issued against Bergeman was unjust in the circumstances of this case. Bergeman admitted at the first hearing that
he made the statements Green attributed to him.
At the termination hearing, he acknowledged telephoning Green “more than
once or twice in any day” before the restraining order issued. Bergeman’s own testimony suggests he believed
his righteous position in his business dispute with Green allowed him to say
whatever he wanted to Green, and to threaten anything short of violence against
Green and his family, without running afoul of the law. That is incorrect. As we have already explained, a civil
restraining order is not limited to protection against violence or threats of
violence. (§ 527.6.)

Bergeman’s repeated
telephone calls to Green, which included threats, foul language and insulting
assertions wholly unrelated to their business dispute, qualified as a “course
of conduct . . . that seriously alarms,
annoys, or harasses the person, and that serves no legitimate purpose>.”
(§ 527.6, subd. (b)(3).)
There were legally appropriate avenues for resolution of the business
dispute, and none of those included Bergeman’s threat to post sexually
revealing pictures of Green’s wife around the school attended by their
12-year-old daughter. As long as the
trial court had a justified belief that Bergeman had threatened to do that very
thing (which Bergeman never denied), it could reasonably conclude the ends of
justice did not require termination of the restraining order issued against
him.

Bergeman’s additional
assertions of injustice fare no better.
Bergeman claims the trial court had a “custom [and] practice of issuing
restraining orders when defendants appear without counsel,” which is “prejudice
per se.” This claim is based on a
statement made by the court to Cesena at the termination hearing: “if he [Bergeman] asked for a lawyer [at the
initial hearing] and he didn’t have one, I probably went ahead and granted the
restraining order anyway — just as Commissioner Myers would have done.” That statement, however, did not reflect that
the court had a “custom [and] practice” of granting restraining orders against
all unrepresented defendants as Bergeman infers — it referred only to what the
court “probably” did in this case. More
important, it proved nothing about what the court actually did in this case, which the record alone establishes. The record establishes the court did not
simply grant the restraining order merely because Bergeman appeared at the
hearing without counsel; instead, it took evidence from both sides and
considered the matter on the merits of that evidence.

Bergeman’s final
contention is the trial court sustained Cesena’s objection to all of Green’s
documentary evidence submitted in support of the restraining order, and was
thus required to terminate that order.
Specifically, Bergeman relies on the following exchange at the hearing
on the motion to terminate: “Mr.
Cesena: I would object to anything with
respect to lack of foundation on documentation that [Green] sought to introduce.” [¶]
The court: Okay.” But Bergeman’s interpretation of the trial
court’s “okay” as an indication it was sustaining
the objection is an unreasonable one.
That “okay” was immediately followed by Cesena’s motion to strike the
evidence, and the court’s prompt denial
of that request. In context, it is clear
the court’s “okay” was nothing more than an acknowledgment of Cesena’s
objection. The evidence was not
stricken, however, and as we have already explained, it was sufficient to
support issuing the restraining order.

III

Disposition

The order is affirmed
and Green is to recover his costs on appeal.







ARONSON,
J.



WE CONCUR:







RYLAARSDAM, ACTING P. J.







BEDSWORTH, J.