Kelly v. Reuser
Filed 8/6/12 Kelly v. Reuser CA1/4
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opinion has not been certified for publication or ordered published for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
DIVISION
FOUR
THOMAS P.
KELLY, JR.,
Plaintiff and Respondent,
v.
CHRISTINA
REUSER,
Defendant and Appellant.
A133908
(Sonoma County
Super. Ct. No. SCV-250363)
I.
INTRODUCTION
Appellant
Christina Reuser (Reuser), in pro. per., appeals from the entry of a
pursuant to Code of Civil Procedure section 527.6,
ordering her to stay away from and limiting her conduct with respondents Thomas
P. Kelly, Jr. (Kelly), his son, Thomas P. Kelly, III (Kelly III), and Kelly’s
legal secretary, Julie Humphreys (Humphreys) (collectively, protected
persons). As near as we can discern from
her briefs, she contends on appeal that: (1) we should reevaluate the
credibility of Kelly and his witnesses, and hold them criminally liable for
perjury, and (2) the evidence was insufficient to support the issuance of
the injunction on several grounds, each of which we address below.
We
conclude that appellant’s contentions lack merit, and therefore, we affirm.
II.
PROCEDURAL AND
FACTUAL BACKGROUND
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In
November 2010, Reuser attended her brother’s trial against Kelly’s client, Eric
Dahl (Dahl), regarding unpaid compensation in a construction matter. At that trial Kelly subpoenaed Reuser as a
witness. During the trial, Reuser
followed Kelly to his car at least once, and attempted to speak with him. Kelly determined Reuser had nothing
meaningful to say and ignored her.
Kelly
next encountered Reuser at a local bakery he occasionally frequented. Reuser was waiting for him inside and had “a
great deal to say.” But, Kelly again
paid no attention to what was said, made his purchase, and left.
On
April 14, 2011, Reuser sent an e-mail to Humphreys, Kelly, and Dahl requesting
payment of witness fees in the amount of $616.53 by April 30, 2011, for being
available to testify in the construction lawsuit.
and a sleazy lawyer. Less than two weeks
later, Reuser sent another e-mail threatening to send the sheriff to serve Dahl
with process at his home. Reuser
explained that she hoped the sheriff would catch Dahl doing something illegal,
because she believed he engaged in illegal activity at his house. When Reuser did not receive her requested
payment, she sued Kelly in small claims court.
Believing Kelly denied receiving service of process by mail in the past,
Reuser had a friend personally serve Kelly at his law office while she
videotaped the service. Reuser returned
to the office later that spring and attempted to serve Kelly and his firm with
process for another small claims case involving her brother. After hearing from Humphreys and Kelly III
that Kelly was not there, and being asked to leave, Reuser left.
Tensions
continued through June and July when Reuser sent e-mails to Kelly, Kelly III,
Humphreys, Dahl, Dahl’s fiancé, and an expert hired by Kelly’s firm. The e-mails requested payment of witness
fees, attached a revised demand letter.
They also: (1) accused Kelly of using “underhanded tricks” and of
making a “living screwing people and abusing the system;” (2) referred to
Kelly, Dahl and his fiancé as “insidious partners in crime;”(3) said that
Reuser’s brother “walked into [Kelly’s] arena and bitch[-]slapped [him] time
and time again . . . ;” and (4) called Kelly “a dirty
rotten liar and horrible person.”
Reuser
visited the office for a third time between July and August seeking to serve
Kelly with process in her brother’s small claims action. Kelly III told her Kelly was not present, and
asked her to leave. She left without
incident, but Kelly III reported this and the other visits to Kelly, Humphreys,
and Wayne Cook (Cook), the assistant building manager and the person in charge
of security of Kelly’s office building.
He told them Reuser was being disruptive, that they should “keep an eye
out,” and that they “might have a problem with this.”
On
August 14, 2011, Reuser sent another e-mail to Kelly, Kelly III, Humphreys,
Dahl, Dahl’s fiancé, and the expert.
This one called Kelly a “bitch,” a “punk,” and a “pussy” and asked him,
“[a]re you mildly retarded” Four days
later, Reuser went to the office to serve Kelly with process in a small claims
suit concerning her brother. At the
time, Kelly was discussing a bankruptcy matter in an exploratory meeting with
clients. Reuser opened the conference
room door and threw papers over a client’s head saying or shouting, “[y]ou’re
served.” Kelly III escorted her out of
the office. While being escorted, Kelly
III knocked Reuser’s phone to the ground.
the hallway and met Reuser and Kelly III.
Cook led Reuser down the elevator where she waited for, then met with,
officers from the Santa Rosa Police Department.
Three
weeks after that incident Reuser sent an e-mail to the protected persons and
others warning Kelly, “[t]his is all on you.
And after [my brother] beats you again and the time comes when he drags
[your client’s fiancé], [your wife] and [your expert’s wife] into this matter,
it will also be on you.” The e-mail
concluded by stating, “I expect I will
began [sic] calling and visiting next
week. See you then. Love Christina.”
On
September 19, 2011, respondent petitioned the court for an injunction
restraining appellant under section 527.6.
The petition was supported by declarations from Kelly, Kelly III,
Humphreys, and Cook. On September 24, 2011, Reuser sent another
e-mail to the protected persons telling them she would try contacting Kelly by
“calling, e-mailing, or stopping by.” Two
days before the civil harassment
hearing, Reuser sent Kelly’s attorney an e-mail accusing him of attempting to
harm her because she “stood up to [his] punk-ass bully of a client and then
beat him at his own game.” At the civil
harassment hearing appellant defended herself by arguing that the harsh
language in the e-mails had been taken out of context, and that her visits to
the office served the legitimate purpose of handling legal business. At the conclusion of the hearing, the court
issued a three-year injunction pursuant to section 527.6 prohibiting Reuser
from harassing, contacting, or taking any action to obtain the addresses or
locations of Humphreys, Kelly and Kelly III directly or indirectly (Judicial
Council Form CH-140). The injunction
also prohibited Reuser from possessing a firearm and required her to stay 100
yards away from the protected persons, their homes, workplaces, and vehicles.
III.
DISCUSSION
Reuser
first requests that we examine the instances she identifies as perjury by
Kelly, Kelly III, Humphreys, and Cook and “deem their entire testimony lacks
credibility” and violates Penal Code section 118.
The
crime of perjury requires a “willful statement, under oath, of any material
matter which the witness knows to be false.
[Citation.]” (
999, 1004.) “The test is whether the
statement could probably have influenced the outcome of the
proceedings . . . .”
(People v. Pierce (1967) 66
Cal.2d 53, 61; accord, People v. Rubio (2004)
swearing is the result of an honest mistake or has been committed willfully,
knowingly and corruptly is one of fact for the [trier-of-fact] to decide
[citation], and evidently the [trier-of-fact] in the present case, as shown by
its verdict, did not believe the story told by [the defendant]. Therefore, since the [trier-of-fact] is the
sole judge of the credibility of the witnesses and the facts of the case, it is
beyond the power of the reviewing court to interfere with the conclusions it
has reached on this issue.’
Citations.]” (
244; accord, People v. McRae (1967)
256 Cal.App.2d 95, 113.)
Many
of the statements Reuser alleges to be perjurious are merely discrepancies in
the descriptions of facts and attacks on the credibility of the witnesses. Appellate courts are powerless to determine
the credibility of the witnesses. (See
54 Cal.App.4th 698, 703 [“we do not assess credibility or reweigh the
evidence]; Bancroft-Whitney Co. v. McHugh (1913) 166 Cal. 140, 142; see
also 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 365,
pp. 421-422 [“[t]his fundamental doctrine is stated and applied in
hundreds of cases”].) In this case, the
trial judge heard all of the proffered evidence, and concluded that there was
sufficient evidence to support the issuance of the injunction. In doing so, the court expressly found the
testimony of the protected persons to be credible. Having made that finding, it is beyond our
purview to second guess the judge’s assessment of that testimony.
Evidence Supports the Trial Court’s Ruling
Appellant
next contends the trial court’s order is not supported by substantial
evidence. In reviewing a section 527.6
restraining order, “[t]he appropriate test on appeal is whether the findings
(express and implied) that support the trial court’s entry of the restraining
order are justified by substantial
evidence in the record.
[Citation.]” (
188, fn. omitted.)
Both
parties agree, correctly, that “[i]n assessing whether substantial evidence
supports the requisite elements of willful harassment, as defined in
. . . 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 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. [Citations.]” (Schild
v. Rubin (1991) 232 Cal.App.3d 755, 762.)
“But whether the facts, when construed most favorably in [the prevailing
party’s] favor, are legally sufficient to constitute civil harassment under
section 527.6 . . . [is a] question[] of law subject to de novo
review. [Citations.]” (R.D.
v. P.M., supra, 202 Cal.App.4th
at p. 188.)
Section
527.6 allows a court to issue an injunction prohibiting “harassment.” Under the statute, “harassment” means either
(1) “unlawful violence;” (2) “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;” or (3) “a knowing
and willful course of conduct directed at a specific person that seriously
alarms, annoys, or harasses the person[,] that serves no legitimate purpose,”
that “would cause a reasonable person to suffer substantial emotional distress,
and must actually cause substantial emotional distress to the petitioner.” (§ 527.6, subd. (b)(2), (b)(3).)
“. . . If
the judge finds by clear and convincing
evidence that unlawful harassment exists, an injunction shall issue
prohibiting the harassment.”
(§ 527.6, subd. (i).) “The
trial court’s decision to grant a permanent injunction rests within its sound
discretion and will not be disturbed on appeal absent a showing of a clear
abuse of discretion. [Citation.]” (Shapiro
v. San Diego City Council (2002) 96 Cal.App.4th 904, 912.)
Section
527.6 does not require courts to state their findings of fact. (Ensworth
v. Mullvain (1990) 224 Cal.App.3d 1105, 1112.) “[T]he granting of the injunction itself
necessarily implies that the trial court found that [the defendant’s] conduct”
satisfied the elements of the statute. (
but from the demeanor of witnesses and their manner of testifying. [Citations.]”
(Id. at p. 1110.) Sufficient evidence of harassment against a
protected person can “allow the trial court to draw the conclusion that [a
protected person] indeed had suffered substantial emotional distress.” (Id.
at pp 1110-1111.)
Reuser
contends there is no evidence that her actions made the Kellys or Humphreys
fear for their safety. We disagree. Kelly presented evidence that Reuser engaged
in a course of conduct that made the protected persons fearful for their safety
or the safety of their families. Reuser
sent hostile e-mails to Humphreys’s personal e-mail. Humphreys noticed that these e-mails
threatened anyone who took Kelly’s side.
The 22-year-old secretary gave oral testimony describing Reuser or her
e-mails as “threatening” many times. She
expressed that she was “very concerned” about Reuser “threatening
. . . Kelly . . . or [Kelly III] or even [her]self.” Humphreys even told Kelly she was physically
afraid of Reuser.
Sufficient
evidence was presented to show that a reasonable person in Kelly’s position
would fear for his safety or the safety of his wife. Kelly, having acquired at least 51 years of
legal experience, is not a young man.
Regardless, he became the primary target of menacing correspondence sent
by 34-year-old Reuser and her brother.
Reuser’s aggressive contact began in November 2010 and her scathing
unilateral e-mails were sent over a period of at least five months. The e-mails threatened Kelly, his client, the
fiancé of his client, his expert witness, his expert witness’s wife, and his
wife, who is “advanced in years” and has had multiple hip operations. The e-mails threatened unwanted personal visits
to his office. Those threats were
realized. Reuser also threatened to come
to his home.
Kelly
III’s awareness of this threatening conduct targeting his father and constant
reminders of Reuser’s aggressive disposition support a finding that he feared
for the safety of his mother or father, as well. Furthermore, Kelly III was “highly concerned”
that Reuser researched and threatened his mother.
Additionally,
the trial court took note of Humphreys’s threatened demeanor during the
hearing. The trial court also commented
on Reuser’s comportment, noting that her tone was “certainly of concern,” that
Reuser “made everybody a little bit uncomfortable” and explaining that her
intensity and tone allowed “the [trial court] to see how [Reuser] would have
appeared to Ms. Humphreys and to the Kellys and the clients in the law
office.” Reuser even acknowledged her
aggressive courtroom behavior during her closing argument. This behavior emphasized what the
aforementioned evidence already established, that Reuser engaged in a “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 . . . .” (§ 527.6, subd. (b)(2).)
Although
the evidence of a “credible threat of violence” is sufficient to support the
injunction, for the sake of argument, we also address Reuser’s related claim
that her actions did not constitute a course of conduct or a “pattern
evidencing a continuity of purpose,” under section 527.6. The trial court made an express finding that
Reuser engaged in a pattern of annoying, irritating, and threatening conduct
targeting the protected persons. The
finding was based on substantial evidence, including the testimony of six
witnesses who discussed a series of harassing e-mails and encounters. The e-mails may have primarily targeted
Kelly, but they were also sent to Humphreys’s personal e-mail, Kelly III, a
client of the Kelly’s firm and his fiancé, and an expert used by the firm. The record contains evidence that Reuser
accosted Kelly numerous times in several venues, including his office, a bakery
he frequented, and the local court parking lot, that she shouted at Humphreys,
and confronted Kelly III at his office on at least three occasions. Reuser’s last attempt at service quickly
became a debacle compromising client confidentiality and culminating in a
battery allegation and a police visit.
Kelly testified that Reuser’s conduct upsets him and detracts from his
work. He described her conduct as
“[v]ery disruptive and very embarrassing.”
Humphreys’s declaration stated, “Reuser has deliberately engaged in
conduct disruptive to the office.”
Humphreys detailed that Reuser’s actions prevented her from working on a
dictation or sending out mail; that she could not answer the phone at her desk
while Reuser was there; that she was concerned Reuser would interrupt or
involve clients; that the e-mails were “taunting,” “upsetting,” “threatening,”
“very harsh,” “very aggressive,” and made her “fe[el] very uncomfortable.” Kelly III testified Reuser’s actions annoyed
him, disrupted the office, and were “highly concerning to [him].” Furthermore, Cook became concerned that
Reuser would disrupt the other tenants in the building.
Reuser
asserts that each e-mail was sent for a legitimate purpose. Collecting on a judgment and reasonably
providing parties notice regarding pending litigation are legal rights of
Reuser. However, she may not pursue
those rights in a manner that violates the rights of others. There was no legitimate purpose for the
insults, continued threats of contact, and consistently hostile nature of
Reuser, especially considering that she knew of peaceful methods to conduct her
legal business.
Reuser
next contends there was no substantial evidence supporting the necessary
conclusion that a reasonable person would have suffered substantial emotional
distress as a result of her actions. To
the contrary, the record reflects Reuser engaged in unwanted contacts with
Kelly for nearly one year. She sent
vulgar, unwanted e-mails to the protected persons for a period of over five
months. The e-mails threatened Kelly,
those working for him, including his legal counsel, and made several disruptive
visits to his office, one of which undermined the confidentiality of a
sensitive client meeting. As noted, the
trial judge mentioned Reuser’s courtroom demeanor allowed the court to see how
she would have appeared to the protected persons when she visited the
office. The evidence of these and other
harassing acts gave the trial court a satisfactory basis to conclude a
reasonable person would have suffered substantial emotion distress. (See R.D.
v. P.M., supra, 202 Cal.App.4th
at p. 189.)
Reuser
next claims Kelly did not provide any evidence showing Kelly or Kelly III
actually suffered substantial emotional distress. This assertion is also meritless. In Ensworth
v. Mullvain, supra, 224
Cal.App.3d at pages 1110-1111, evidence of a former psychologist’s patient’s
following, calling, and sending threatening letters to her former psychologist
were sufficient, without direct oral testimony, to establish that the
psychologist actually suffered emotional distress. The record here also contains sufficient
evidence of Reuser’s harassment of Kelly and Kelly III to support the trial
court’s finding that they actually suffered substantial emotional
distress. Testimony from multiple
witnesses detailed Reuser’s repeated unwanted visits and threatening
e-mails. Furthermore, Kelly III
testified he was “deeply concerned” for Humphreys and “highly concerned” his
mother was implicated in the dispute.
Kelly also commented on his concern for Humphreys, testified that
Reuser’s statements were “very upsetting” and that Reuser’s actions “upset
[him] . . . [and] detract[ed] [him] from [his work].” He informed the court that Reuser threatened
to visit his house. Accordingly, the
record contains sufficient evidence that Reuser actually caused Kelly and Kelly
III substantial emotional distress. Any
further direct testimony would have been cumulative. (See id.
at p. 1111.)
Reuser
lastly argues that under section 527.6, there must be a showing of a threat of
the injunction against potential future misconduct. (See Scripps
Health v. Marin (1999) 72 Cal.App.4th 324, 333.) Reuser’s claim that the trial court made no
finding of the likelihood of future harm is simply wrong. While a trial court was not required to make
an explicit finding of continuing risk of harassing misconduct (see
the trial court below plainly stated there was such a risk of future harm. When pronouncing its ruling on the motion,
the trial court referenced a pattern of harassing conduct, including Reuser’s
obvious emotional involvement, intensity and tone at the hearing, and then
explicitly decided based on the evidence presented that there is a clear danger
“that some other confrontation will happen at the bakery or in the law offices
or somewhere, and it’s just not acceptable behavior.” The trial court emphasized “there’s a clear
danger that [civil harassment] would happen again based upon the emotions
involved and the continuing litigation issues.”
Accordingly,
the trial court sufficiently contemplated the risk of future harassment and
made a sound judgment.
As
shown above, the elements of section 527.6, subdivisions (b)(1) and (2), were
supported by reasonable and credible evidence of solid value. Although Reuser quarrels with the testimony
of Kelly and his witnesses and denies her conduct constituted harassment, the
trial court examined substantial evidence and resolved conflicts in evidence in
Kelly’s favor. “If . . . ‘substantial’ evidence is present, no matter how slight it may appear in
comparison with the contradictory
evidence, the judgment will be affirmed.”
(9 Witkin, Cal. Procedure, supra,
Appeal, § 370, p. 427.) Having
found substantial evidence supporting the trial court’s order, we therefore
affirm it.
IV.
DISPOSITION
The order granting
the injunction restraining Reuser is affirmed.
_________________________
RUVOLO,
P. J.
We concur:
_________________________
REARDON, J.
_________________________
SEPULVEDA, J.
references are to the Code of Civil Procedure.
428, 431, arguing in essence that Reuser failed to adhere to California Rules
of Court, rule 8.204(a)(1)(C) (requiring the brief properly cite any reference
to a matter in the record) and (a)(2)(C) (requiring the brief provide a summary
of the significant facts limited to matters in the record), and that the court
should thus disregard Reuser’s claim that there is no substantial evidence to
support the injunction. There, as here,
the defendant argued there was no substantial evidence to support the judgment
below, however, that court found the defendant made “no attempt” to fairly
state the evidence and dismissed the claim.
We find the briefs at issue here more similar to those in
(1978) 80 Cal.App.3d 500 (Arbaugh). In Arbaugh,
the defendant’s opening brief, despite its shortcomings, made some reference to
the record below, and, in view of the plaintiff’s thorough summary of facts,
the court considered the case on its merits.
(Id. at p. 503,
fn. 1.) Reuser’s briefs, albeit not
models of appellate practice, do summarize the facts and contain some citations
to the record. Therefore, her briefs contained
sufficient information for us to consider the issues presented.
