Isaac v. Gurian

Filed 5/2/08 Isaac v. Gurian CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County. Linda K. Lefkowitz, Judge. Affirmed.

Frances M. Campbell for Defendant and Appellant.

Edgar L. Borne III for Plaintiff and Respondent.

__________________________

Paul R. Gurian appeals from a restraining order directing him not to harass John Hart Isaac. We affirm.

FACTS AND PROCEEDINGS

Appellant Paul R. Gurian and his wife lived six or seven houses from the home of respondent John Hart Isaac. Appellants wife is an architect who was overseeing with appellants assistance construction of a house on a vacant lot next to respondents property. (Strictly speaking, respondents property was not his but instead his girlfriends with whom he lived, but that detail does not affect our analysis.) The vacant lot and respondents property shared a driveway. Both properties had an access easement to use the driveway, which permitted parking so long as parked vehicles did not impede access to the properties. Appellant claimed respondents cars frequently blocked the driveway. Appellant found this particularly annoying because it interfered with construction crews working on the house he and his wife were building.

On the night of July 5, 2006, appellant and his family were driving home in separate cars after being out for the evening. As appellants wife drove down her street, respondent and a neighbor flagged her down. Appellants wife stopped, and the neighbor asked why appellants wife had reported the neighbors father to parking enforcement authorities. Seeing his wife stop, appellant continued home, parked his car, and walked down the street to join his wife, the neighbor, and respondent. Ranting and waving his arms, appellant told his wife to stop talking with respondent and the neighbor, but she remained and an argument ensued. Appellant approached within a few inches of respondents face and threatened,  Fuck you. Im going to fuck you up. Im going to get you. Im going to really get you. Im going to fuck you up.  Appellant told the neighbor he had reported her father and would continue calling parking authorities until his cell phone  fell from [his] cold, dead hands. 

The argument escalated to religious insults and racially tinged remarks. Appellant told respondent,  I want to tell you something else. If Christ is blessing people like you who go, Bless you, Bless you, Bless you, with your sanctimonious crap, and then turn around and block our things and keep doing this stuff towards us and harassing my wife and kid in the car, then when He comes back again, I will be first in line to crucify Him and use titanium nails . . . .  Turning away to leave, appellant twice called respondents girlfriend a white b-i-t-c-h and concluded with  Im going to really get you.  The argument so upset and concerned respondent that his hands shook for several minutes afterward.

The July 5 confrontation was not the first between appellant and respondent. Five days earlier, respondent had been helping his adult daughter pack her car at the end of her family visit. Appellant approached her and began to yell for five to seven minutes about her parking in the driveway. The confrontation ended when appellant peeled rubber up the driveway.

On July 12, respondent filed a Request for Orders to Stop Harassment. Upon receiving the request, the court issued a temporary restraining order directing appellant to stay away from respondent and not contact him. After an evidentiary hearing in August 2006, the court issued a restraining order on September 11 based on appellants acts . . . which . . . when coupled with the racial comments, are really rather serious in nature. The order directed appellant not to harass, threaten, or contact respondent and to stay at least five feet from him. The court set the order to expire on January 10, 2007, about 10 days after appellant and his wife estimated they would finish building the home on the lot next to respondents property. Appellant filed a timely notice of appeal from the courts order.

DISCUSSION

Code of Civil Procedure section 527.6, subdivision (a) authorizes a court to issue an injunction prohibiting one person from harassing another. The statute states: 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. (Ibid.) The court issued such an injunction here against appellant, which we review for abuse of discretion. (Biosense Webster, Inc. v. Superior Court (2006) 135 Cal.App.4th 827, 834.)

[W]e 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. (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762 [applying standard to  527.6].) We review the substance of the courts order, not the courts stated reasoning or rationale for issuing its order. (Kemp Bros. Construction, Inc. v. Titan Electric Corp. (2007) 146 Cal.App.4th 1474, 1477.) Consistent with our focus on the result the court reached, parties may not rely on the courts remarks from the bench to demonstrate error in an order that is otherwise legally sound. (Yarrow v. State of California (1960) 53 Cal.2d 427, 437-438; Smith v. City of Napa (2004) 120 Cal.App.4th 194, 199.)

Appellant contends the trial court committed multiple errors in issuing an injunction. His contention fails because he aims his arguments at only one of the statutes categories of harassment: harassment by course of conduct. The statute describes that kind of harassment as 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).) But the statute also covers harassment of a second type, which involves a  [c]redible threat of violence  defined as a knowing and willful statement . . . 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. (Id., subds. (b) & (b)(2).)

Here, substantial evidence supports finding appellant issued such threats of violence. The court discerned escalation of the matter with racial overtones in appellants hostility toward respondent, and expressly noted when issuing the injunction that appellant threatened respondent. The court found, On [July] 5th there were at least two threats: Ill kick your ass, and that was repeated at some point lat[e]r in the confrontation. The court concluded appellants dealings with respondent certainly would cause reasonable persons to be fearful.

Appellants contentions that the court erred miss the mark because they apply to harassment by course of conduct, not by threats of violence. For example, appellant correctly notes that a single incident does not establish a course of conduct. (Leydon v. Alexander (1989) 212 Cal.App.3d 1, 4 (Leydon).) According to appellant, the court found only the July 5 confrontation was serious in nature. The court minimized, appellant observes, appellants confrontation with respondents daughter as she packed her car as nothing, other than, I guess, some loud speaking that did not support an injunction.^[1] But in focusing on the occurrence of a single event, appellant looks to the wrong definition of harassment.

Appellant also notes that an injunction requires evidence that the harassment causes substantial emotional distress. According to him, no such evidence existed here. Assuming he is correct about the evidence, his contention nevertheless fails because emotional distress is a component of harassment by course of conduct. ( 527.6, subd. (b) [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].) The statute does not require emotional distress from threats of future violence to support an injunction.

He also contends that the statute prohibited the court from relying on his racially and religiously tinged comments to establish a course of conduct because his remarks were constitutionally protected. (See  527.6, subd. (b)(3) [Constitutionally protected activity is not included within the meaning of course of conduct ]; Leydon, supra, 212 Cal.App.3d at p. 3 [no course of conduct in single incident involving racially charged language].) He is correct on the legal point, but fails on the practical point because the injunction did not rest on a course of conduct.

Appellant offers one contention that pertains to harassment by threat of violence. He notes that a court may not issue an injunction solely to punish past misconduct, but must also find that denying an injunction risks a high probability of future harm. In support, he cites Russell v. Douvan (2003) 112 Cal.App.4th 399 (Russell). In that decision, an attorney forcefully grabbed opposing counsels arm in an elevator. The trial court there concluded the single incident inside the elevator compelled it to issue an injunction under section 527.6. (Russell, at pp. 400-401.) On review, the appellate court disagreed because the trial court had not found a high probability of future harm if the attorney were not enjoined from harassing opposing counsel. (Id. at p. 403; see also Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 328-329, 330-331 [one physically forceful workplace encounter cannot support injunction under analogous workplace statute ( 527.8) barring workplace harassment without showing risk of future harm].)

The Russell courts analysis is helpful but not dispositive because it was considering a third type of harassment: harassment by unlawful violence. (Russell, supra, 112 Cal.App.4th at p. 401.) The trial court there had not found, as it must to issue an injunction, that the single incident of battery which was unlawful violence established a threat of future harm.^[2] Here, in contrast, appellants harassment of respondent involved credible threats of violence. Because threats encompass the future, it stands to reason that a courts finding threats of violence were credible presupposes finding future harm is probable unless the court issues an injunction. Moreover, the trial courts awareness here that its justification for issuing an injunction was to prevent future harm, not punish past misconduct, is evident from the time limit it placed on the injunction. The court noted that the construction project was exacerbating tensions over a shared driveway. When construction ended, the court reasoned, the likelihood of confrontations would subside. Hence, the court set the injunction to end when construction did.

DISPOSITION

The order is affirmed. Respondent to recover his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, Acting P. J.

WE CONCUR:

FLIER, J.

EGERTON, J.^*

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

^[1] While the temporary restraining order was in effect, there was an incident in mid-July (although respondents brief says it was June 30) during which appellant directed his wife to take pictures of cars parked on the driveway. The court did not rely on that incident in issuing the injunction because it concluded appellant did nothing wrong in getting the pictures.

^[2]Russell did not preclude finding a threat of future violence from a single event. It concluded only that the facts before it did not support such a finding. (Russell, at p. 403.)

^* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.