Jagessar v. Brown

Filed 10/25/06 Jagessar v. Brown CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

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,

William A. Allen, Commissioner. Reversed.

Bart Brown, in pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________

Bart Brown appeals an order granting Nicola Jagessar’s request for a restraining order under the Domestic Violence Prevention Act (DVPA).^[1] (Fam. Code, § 6200 et seq.)^[2] We reverse because there was no evidence Brown and Jagessar were ever in any of the domestic relationships that are protected by the DVPA. Accordingly, the restraining order should have issued, if at all, under the civil harassment statute. (Code Civ. Proc., § 527.6.)

FACTS AND PROCEDURAL HISTORY

1. Jagessar’s request for a restraining order under the DVPA.

On April 26, 2005, Jagessar filed a request for a restraining order against Brown under the DVPA. Jagessar alleged she and Brown “used to date.” Jagessar claimed Brown had said things to discredit her to teachers, administrators and security personnel at her college. Jagessar stated Brown’s persistence was “frightening.” Although Jagessar had asked Brown not to contact her, he appeared at her school and went looking for her in class. He threatened to contact other students and continue to show up at the school. Jagessar asserted she was so afraid Brown would follow, watch or harass her that she did not leave her dormitory. Jagessar claimed Brown told a girl at her school that Jagessar had AIDS and made a counseling appointment for Jagessar at her school claiming she had mental health problems.

2. Brown’s answer.

Brown filed an answer to Jagessar’s request denying each of her claims. Brown explained he met Jagessar on line four years earlier. Jagessar, then a high school student in Trinidad and Tobago, tried to persuade Brown to engage in “sexual activities online and telephonically, and into providing [Jagessar] with original written work [Jagessar] could submit as her own course work at her secondary school. When [Brown] declined to be persuaded or coerced into engaging in either sexual relations with [Jagessar] or doing her school work for her,” Jagessar began to threaten Brown and Brown terminated their relationship two years ago. However, approximately nine months ago, Jagessar contacted Brown and advised him she was attending college in this country and living in San Diego. Thereafter, they met briefly in Whittier but Brown walked away. Jagessar then again began to seek on line sex and Brown’s original written works. Jagessar claimed she wanted the original written work for writing projects. They met at LAX on November 24, 2004, and Jagessar telephoned Brown the next day from JFK.

On November 29, 2004, Brown confirmed that Jagessar was a student at Whittier College “by silently walking past a class in which [Jagessar] sat.” Brown then realized Jagessar had been lying about many things and had been submitting his original written work as her own college work. Brown immediately departed the campus but met thereafter with Jagessar at her request in Whittier. However, Jagessar was so hysterical that Brown terminated the meeting. Brown indicates he decided to return to the campus to see if Jagessar might have left some personal belongings in the classroom as a gesture that might calm Jagessar. Brown went to the classroom but was confronted by two campus security officers. Brown thereafter agreed with the assistant chief of security at Whittier College not to access the campus without notice. Brown continued to pursue the academic cheating issue via e-mail and noticed he was being followed by persons “of the same rare ethnicity” as Jagessar. On January 6, 2004, an Indian male attempted to shoot Brown in the head at point blank range.

Brown specifically denied he posed any threat to Jagessar or her family members. Brown also denied he and Jagessar ever dated or “had any relationship apart from [Jagessar] attempting to use Brown and his works . . . .” Brown asserts he has been in Jagessar’s presence four times for a total of approximately 30 minutes. Brown stated they met once for two minutes in Whittier, at LAX for 20 minutes, at Whittier College when he walked past the classroom, and a fourth time in Whittier at Jagessar’s request when she became hysterical and threatened Brown’s life. Brown asserts they never even touched in any of these meetings.

Brown denied he had engaged in any conduct that would require issuance of a restraining order and denied any prior restraining order had ever issued against him, although Jagessar falsely reported to various police agencies that one had issued. Brown denied he had discredited, slandered or libeled Jagessar, denied he had threatened to contact other students or threatened to continue to appear at Whittier College, denied he followed, watched or harassed Jagessar, denied he said anything about AIDS to anyone at Jagessar’s school, and denied he made a mental health appointment for Jagessar.

3. The hearing on the request.

On May 19, 2005, the trial court conducted a hearing on the request for a restraining order. At the hearing, the trial court indicated its reading of Jagessar’s application suggested Brown had made threats against Jagessar. Jagessar responded Brown had contacted the dean of students, the president of the college and various faculty members. Also, the college newspaper wrote an article that mentioned her name and Brown made an appointment for Jagessar with the campus mental health counselor without Jagessar’s knowledge or consent.

When the trial court inquired of Brown, he indicated he has not returned to the campus since the November 29 incident. However, Brown has had contact with people at Whittier College and Ernie Parks, an attorney for the college. Brown contacted John Lewis, the assistant chief of security at the college, because Jagessar filed a complaint about Brown. Brown also contacted Whittier College faculty and administrators regarding “this situation about the academic cheating.” Brown sent an open letter to the college newspaper for publication regarding academic cheating but denied the letter mentioned Jagessar’s name. Brown denied he had ever made an appointment for Jagessar.

The trial court asked Jagessar how she knew Brown made the appointment. Jagessar responded that when Brown appeared outside her classroom, Jagessar panicked and met with him. Brown became loud and obnoxious to the point that Jagessar went to campus security. She was taken to the campus counseling center because she was very upset. One of the women there was aware of the case. The woman called campus security and advised them that Brown had made an appointment for Jagessar to get counseling that week.

Brown responded that he went to Jagessar’s school on November 29 because, in their previous meeting on November 24 at LAX, Jagessar told Brown she was not in school, she had not used his original written work for academic purposes and she was living in San Diego with relatives. Brown did not believe Jagessar so he walked past the classroom he presumed she would be attending if she were a student. Brown wanted to know if Jagessar was using his work as her school work. Brown indicated it was not possible to make an appointment for another person.

The trial court noted Brown had investigated the matter of academic cheating, has indicated his displeasure with Jagessar and now the matter could be ended. The trial court indicated it agreed with Jagessar that she needed to feel some protection and issued an order directing Brown to stay 100 yards from Jagessar and to refrain from disturbing her peace.

4. Brown’s request for reconsideration.

On June 27, 2005, Brown filed a request to vacate the order. Brown urged the trial court to review the matter with an eye to the requirements for a “domestic violence filing.” Brown denied he and Jagessar had ever been in a dating relationship and again asserted they had never even touched. Brown also denied he had ever threatened Jagessar. Brown claimed this action had been instigated by Ernie Parks to insulate Whittier College from possible legal action by Brown.

The trial court construed Brown’s motion to vacate as a request for reconsideration. The trial court denied the request as untimely. (Code Civ. Proc., § 1008.) Alternatively, the trial court noted the motion stated no new facts.

CONTENTIONS

Brown asserts there was no dating relationship between himself and Jagessar, her allegations did not include any threats made by Brown, and a nunc pro tunc modification of the restraining order by the trial court extending the term from one year to three years violated section 6304.

We agree with Brown’s first contention and reverse on that basis. Consequently, we need not address the other issues Brown raises on appeal.

DISCUSSION

The DVPA, as relevant here, defines “ ‘[d]omestic violence’ “ as “abuse perpetrated against any of the following persons: . . . . . . (c) A person with whom the respondent is having or has had a dating . . . relationship.” (§ 6211, subd. (c).) “Dating relationship” is defined in section 6210 as follows: “ ‘Dating relationship’ means frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations.” (§ 6210; see People v. Rucker (2005) 126 Cal.App.4th 1107, 1116.)

In her request for a restraining order, submitted on DV-100, the form promulgated by the Judicial Council for that purpose, Jagessar checked box 4f, which states, “We are dating or used to date.” Jagessar circled “used to date.” Against this general assertion of a prior dating relationship, Brown’s answer specifically denied he and Jagessar had ever dated. He asserted they had met only four times and they had never touched. However, the trial court did not address this element of the proof required for issuance of a restraining order under the DVPA.

In light of Brown’s explicit denial of Jagessar’s claim of a former dating relationship, the trial court should have adjudicated this issue at the hearing on the request for a restraining order. Thus, we are unable to affirm the issuance of the restraining order under the usual rule that we accept all evidence supporting the successful party, disregard the conflicting evidence and draw all reasonable inferences to uphold the verdict. (See Minelian v. Manzella (1989) 215 Cal.App.3d 457, 463.) In light of Jagessar’s vague claim she and Brown “used to date,” and Brown’s specific denial of that claim, as well as the trial court’s failure to inquire into that aspect of the matter, it appears the order granting the request for a restraining order must be reversed.

The relationship described by Brown in his answer does not fall within the definition of dating relationship found in section 6210, which requires “frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations.” Brown’s answer conceded Jagessar tried to engage him in online and telephonic sex. However, in our view, neither type of contact qualifies as a “dating relationship” within the meaning of the DVPA.

Although the provision of the DVPA should be construed liberally in order to effectuate its purpose, the DVPA applies only where one of the designated relationships is demonstrated. (See O’Kane v. Irvine (1996) 47 Cal.App.4th 207, 212, [two people who subletted separate rooms in the same house were not cohabitants within the meaning of the DVPA].) The DVPA has a reduced standard of proof and provides for remedies not available under the civil harassment statute.^[3] In those situations where none of the required relationships is present, relief from harassment must be sought under the civil harassment statute, Code of Civil Procedure section 527.6. Thus, it appears Jagessar should have sought a restraining order under the civil harassment suit. Accordingly, the restraining order issued against Brown under the DVPA must be reversed.

DISPOSITION

The order is reversed. Each party shall bear its respective costs on appeal. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J.

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^[1] Jagessar has not filed a respondent’s brief. California Rules of Court, rule 17(a)(2) provides that in such circumstances, “the court will decide the appeal on the record, the opening brief, and any oral argument by appellant.” We examine the record on the basis of appellant’s brief and reverse only if prejudicial error is found. (Conness v. Satram (2004) 122 Cal.App.4th 197, 200, fn. 3; Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1192, fn. 7.)

^[2] All statutory references are to the Family Code unless otherwise noted.

^[3] Under the DVPA , the requesting party need only present “reasonable proof of a past act or acts of abuse.” (§ 6300.) The standard of proof applicable under the civil harassment statute is “clear and convincing evidence.” (Code Civ. Proc., §§ 527.6, subd. (d), 527.8, subd. (f).) Also, the DVPA permits a trial court to order the restrained party to pay restitution for the petitioner’s loss of earnings and out-of-pocket expenses. (§ 6342, subd. (a)(1) & (2).)