Lister v. Bowen
Filed 3/15/13 Lister v. Bowen CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST APPELLATE DISTRICT
DIVISION TWO
SONYA LISTER,
Plaintiff
and Respondent,
v.
MICHAEL BOWEN,
Defendant
and Appellant.
A134290
(San Francisco City and County
Super. Ct. No. 08-806221)
Michael
Bowen appeals from the trial court’s order renewing a
additional years, arguing that reversal is necessary on multiple grounds. Sonya Lister, petitioner below, opposes
Bowen’s grounds, and also argues that the appeal must be dismissed as untimely.
We conclude the appeal is timely but
that Bowen’s appellate claims lack merit.
Therefore, we affirm the court’s order.
Initial Restraining Order
According to Lister’s November 9, 2011 testimony, she is an outreach case manager for Community
Awareness Treatment Services (CATS) and in the course of her duties works out in the field and at
different CATS locations in San Francisco. In 2008, the trial court, having found
that Bowen had been stalking Lister, including in the parking lot by her
workplace, issued a three-year restraining order against Bowen, through September 10, 2011. The court ordered Bowen to stay 100 yards
away from Lister and her daughter, as well as Lister’s Hayward,
California home, vehicle, and workplace at
CATS, except that he could visit certain CATS offices for income-producing
purposes. The court further limited
Bowen’s ability to contact Lister’s family members or spend time in Lister’s
neighborhood.
In
an unpublished opinion, Lister v. Bowen,
No. A123682, issued on June 29, 2010,
we summarized Lister’s testimony to the trial court at the hearing on her
request for a restraining order.
name="_ftnref1" title="">[1] Among other things, Lister told the trial
court she had dated Bowen five or six years before, and had recently dated him
again for about a month. In the first
half of July 2008, he suddenly appeared as she walked in a parking lot where
she worked and made comments indicating that he was stalking her, such as that
he was around watching her even though she did not always see him, and
indicated that he was going to keep it up.
Later in July 2008, he appeared again as she was walking in the parking
lot and started talking to her again.
She did not see where he came from, felt unsafe, and did not wish to
talk to him. She had not contacted him
or called him, they did not have a good rapport, and he knew she did not care
to speak to him.
Lister
also said she had seen Bowen’s vehicle parked in front of a Hayward restaurant
that was three blocks from her home, although he lived in Daly City, and that
she was “ ‘not able to access entertainment and things’ †“ ‘with him stalking
around and driving around and frequenting’ †her neighborhood. He also had contacted her 16-year-old
daughter without Lister’s permission or knowledge, and visited her at their
home. Her daughter had contacted him
regarding driving lessons he had paid for, unaware of her mother’s concerns
about him. Lister also said she thought
Lister was “ ‘buying’ †her family and friends.
Lister
said Bowen frequented the offices of CATS, having graduated from it, sometimes
visiting at the request of others to say hello or “ ‘for a consultation on a
job because he [was] a contractor.’ â€
Lister did not want to see him there because she felt he was stalking
her.
At
the hearing, the trial court, after noting that 11 years before Bowen had pled
guilty to inflicting corporal injury to a spouse of inhabitant, albeit before
he became “ ‘clean and sober’, †found Bowen’s history “ ‘pretty damning.’
†That, along with Lister’s contentions
and Bowen’s own statements at the hearing, indicated to the court that he was “
‘pretty obsessive about folks†that he became involved with, engaged in
“ ‘stalking,’ †and was “ ‘invasive’ †and getting into people’s
“emotional and psychological space.’ â€
After
the court issued the initial restraining
order, Bowen retained legal counsel and filed a motion for
reconsideration. The court denied his
motion and Bowen appealed on a variety of grounds. We affirmed the trial court’s order and
remanded the matter to the trial court with the instruction that it promptly
issue a single, comprehensive written order of all of its orders to date.
In
July 2010, the trial court issued an amended restraining order that, among
other things, ordered that Lister stay 100 yards away from the office building
in which Lister was employed, and stated that, if Lister was not present at
other CATS offices or locations, Bowen could enter them for income-producing
purposes, although he was required to leave if Lister arrived. The court added to the written order its
previous oral instruction that Bowen not initiate contact with Lister’s family
or continue any kind of relationship with them.
Court’s Renewal of the Restraining Order
On
July 11, 2011, Lister filed a request to renew the restraining order with the
trial court. The court held a hearing on
September 7, 2011 regarding her request, at which Bowen, represented by
counsel, and Lister both appeared and testified under oath. Among other things, Lister testified that on
July 7, 2011 she was told not to come into her workplace building because Bowen
was present there; as a result, she stayed away for two days. She also testified that Bowen approached her
stepmother at a store about a year before and told her he had heard she was mad
at him for some things he had said at a previous court hearing. Lister added that she had seen Bowen within a
couple of blocks of her house in 2008 or 2009.
Bowen’s
counsel argued that there was no credible reason to renew the restraining
order, as most of Lister’s allegations were about 2008, Bowen had not had any
contact with Lister since that time, and there was no credible evidence to
suggest that Bowen posed any imminent risk of harm to Lister. Counsel referred the court to a declaration,
apparently by Perry Zinnanti, indicating that Bowen had gone into the CATS
building “to address someone who had relapsed,†and had promptly left when he
learned there were some questions about his right to be there.
The
trial court cited Family Code section 6345 (section 6345) as indicating that
orders could be renewed at the request of a party for either five years or
permanently, without a showing of any further abuse. Bowen’s counsel asked for additional time to
brief the question because in his experience, “there usually has to be some
objective fear. Some reason to extend
it.†Counsel also argued the order had a
chilling effect on Bowen’s business.
The
trial court concluded that, since Bowen’s defense was based on his allegation
that there was not further abuse and that was not statutorily required, it was
appropriate to renew the order for five years.
The court rejected Bowen’s counsel request for an evidentiary hearing to
address the legal standard, stating, “It is not an evidence issue, it is a
legal issue.†Asked to clarify its
ruling, the court stated that “[Lister] has made factual allegations. She has made it in her request and she has made them here today. And I believe under the statute she has made sufficient showing to have a reissuance of the order. And that’s on the face—on the
statute. She made the request to
reissue.†It also stated, “My finding is
that she has met the requirements of [section] 6345[, subdivision] (a). And I am choosing the shorter duration of the
choices that are outlined there for me.â€
On
September 7, 2011, the court issued a restraining order against Bowen for five
more years, until midnight on September 7, 2016 (September 7 order).
Motion for Reconsideration
On
September 16, 2011, Bowen filed a motion for reconsideration of the court’s
order pursuant to Code of Civil Procedure section 1008, subdivision (a). The register of actions contained in the
record indicates that, for reasons that are neither explained by the parties
nor apparent from the record,
name="_ftnref2" title="">[2]
October 25, 2011, was continued to November 2, 2011 and then to November 9,
2011.
At
the November 9, 2011 hearing (November 9 hearing), Bowen, again represented by
counsel, and Lister appeared. At the
beginning of the hearing, the court indicated that the legal standard, pursuant
to the “Ricci case,†an apparent reference to Ritchie v. Conrad (2004) 115 Cal.App.4th 1275 (Ritchie), was that Lister “must show a reasonable apprehension of
future abuse and [her] showing must be made by a preponderance of the
evidence.â€
Lister
testified at the November 9 hearing that Bowen had violated the initial
protective order multiple times. First,
in December 2009, he sent mail to her employer.
This caused Lister to be “very, very stressed out and worried about why
he’s contacting my employer, what is his reasons for it, like what else could
they have been discussing about me,†and also caused fear.
Second,
Lister said, on July 7, 2011, Bowen entered one of CATS’s buildings, on Mission
Street. Her director told her not to go
to that site because Bowen was present, and he was asked to leave the site
immediately. This caused Lister to
worry.
Third,
according to Lister, Bowen sent mail to her home on two occasions in October
2011. She was afraid to open the mail, which was
addressed from him, for fear that it was “poisoned, anthrax.†She gave one envelope to the police and
retained the other, which was at her home.
Lister
also testified that since she filed for a restraining order, Bowen continuously
had filed paperwork with the court, causing her to miss work to come to the
court, which she considered to be continuous harassment.
Lister
also referred to private investigators following her and her friends,
declarations written against her, including by a coworker, and Bowen’s tearing
apart of her family “by using his money to buy his way into some people in my
family who are now no longer dealing with him.â€
Among other things, she said, he had wanted her aunt to come to court
the week before to testify against her.
He also told someone at her work that she had engaged in “paycheck
fraud,†resulting in an investigation of her in February 2009 that found the
allegations were not true.
On
cross-examination by Bowen’s counsel, Lister testified that the letters she
received from Lister in October 2011 were copies of filings in the present
case. In her view, the correct way to
send her such documents would be through his attorney. Lister also acknowledged that she had been
convicted of larceny because she “did not report [her] earnings to the housing
authority seven years ago.†Bowen’s
counsel argued that this information was relevant to Lister’s credibility.
Lister
called a coworker as a witness, who testified that after Bowen appeared at the
CATS office in July 2011, Lister “was very distressed—crying, unable to focus on
her . . . case load, in fear . . . that her work area is no longer a safe place.†The coworker said that from July 17, 2008, to
the date of the hearing, Lister had been overwhelmed by very stressful legal
proceedings, had been an “emotional wreck,†and had missed work.
Lister
also called her sister as a witness. She
testified that since May 2008, the situation had been “very stressful†for
Lister, who “seems very paranoid,†worrying that she would run into Bowen at
certain places. Lister’s spirit had
changed and she showed a lot of anxiety, such as when she had to go to court. The family was divided about the matter.
On
cross-examination, Lister’s sister testified that Bowen had held some property
of a cousin, including a motorcycle, which caused an aunt to support him for
fear that Bowen would throw the motorcycle in the street. The sister also said she understood that
criminal proceedings against Lister had been initiated as a result of Bowen
hiring a private investigator and getting criminal
charges brought against her based on hearsay; the sister had no personal
knowledge of this but had been told it by family members that dealt with
Bowen.
Bowen’s
counsel called Perry Zinnanti as a witness and his declaration was admitted
into evidence, presumably the declaration contained in the record that was
filed with the court on August 18, 2001.
Zinnanti declared that he contacted Bowen in July 2011, and asked him if
he could visit a CATS employee who Zinnanti had heard had relapsed, and with
whom Bowen was close. Zinnanti further
declared that Bowen did not go to the CATS offices to harass Lister, but to
help another person in crisis.
Bowen
also testified. He said his purpose in
entering a CATS building on July 7, 2011 was to see one of his counselors, who,
Bowen had been told, had relapsed. He
intended to see the counselor, but was not able to; he spoke to another person
and did not mention the restraining order.
Bowen
denied ever hiring a private investigator to follow Lister, or having any
involvement in the criminal proceedings against her. He said he had a friend mail court papers to
Lister that contained the friend’s address, not his own.
On
acknowledged his visit to Lister’s workplace on July 7, 2011 was not for
income-producing matters. He denied
being within three blocks of her Hayward home, attending a gym in her
neighborhood to which he once belonged, or driving down her street since the
issuance of the restraining order, but acknowledged he had been in Hayward and
had dinner there. He also acknowledged
contacting one of her family members after the previous week’s hearing to tell
her he had told the judge that he was going to request her presence at the
hearing.
At
the end of the hearing, the trial court denied Lister’s motion for
reconsideration. It stated that, based
on the “Ricci case,†the test to be considered was whether Lister had a
reasonable apprehension of future abuse.
It found that Lister had “shown that she has an apprehension of future
abuse, and I don’t find that that apprehension is unreasonable. I do believe given her concerns about Bowen
following her, concerns about his involvement in her family in a way that
wasn’t appropriate are sufficient reasons for her to have an apprehension of
future abuse.â€
The
court further noted Bowen was “sophisticated†and “had advice of counsel†such
that he knew the scope of the protective order and had violated it. The court specifically referred to Bowen’s
choosing to enter Lister’s work site for a non-economic reason in violation of
the order, and with an awareness of the serious and sensitive nature of a
heavily litigated dispute that had put him on notice that his actions would
have an impact on Lister. This caused
the court “grave concern.â€
The
court was also concerned about the number of hearings held on the matter. It indicated the view that Bowen could not
“let this go†for reasons that were not clear to the court, and urged him to
“let go†and “move on.â€
The court
then ruled that Lister had shown a reasonable apprehension of future abuse and
met the standard established in the “Ricci case,†and that it was going to keep
the restraining order in place, but would reduce its length from five to three
years. It ruled that the September 7
order would remain in effect until a new order was submitted to it, which was
to “be exactly the same in terms of the terms†as the September 7 order, but
three years shorter in length.
On
December 14, 2011, the court issued a new restraining order that contains the
same terms and conditions as the September 7, 2011 restraining order, except
that it expires at midnight on September 7, 2014 rather than on September 7,
2016 (December 14 order).
On
December 22, 2011, Bowen filed a notice of appeal from the court’s December 14
order.
Bowen
argues that reversal is necessary because the trial court erred in applying
section 6345, in relying on the fact of Bowen’s litigation as a ground for
reissuance of the restraining order, and in issuing an overbroad injunction
that improperly invaded Bowen’s associational interests with CATS. Lister opposes each ground and argues that
Bowen’s appeal should be dismissed as untimely.
We begin with whether this appeal has been timely made.
I. The
Timeliness of the Appeal
Lister
argues that we must dismiss this appeal as untimely because Bowen filed his
notice of appeal beyond the time allowed, since the date he filed it was more
than 90 days after he filed his motion for reconsideration. Bowen disagrees, arguing that the appeal
should be construed as from a grant
of a motion for reconsideration and issuance of an order after a new hearing,
from which he is entitled to appeal. We
conclude the appeal was timely because, however we construe the court’s ruling
on Lister’s motion for consideration, the December 14 order included a material
or substantial modification of the September 7 order that enabled Bowen to
appeal from the latter order.
The
parties do not dispute that the court’s September 7 order was an appealable
order. (Code Civ. Proc., § 904.1, subd.
(a)(6).) Bowen then filed a motion for
reconsideration pursuant to Code of Civil Procedure section 1008, subdivision
(a). California Rules of Court, rule
8.108(e) provides that when a party does so, the time to appeal is extended to
the earliest of three circumstances, which in this case, Lister asserts, was 90
days from Bowen’s filing of his motion for
reconsideration on September 16, 2011.
Bowen,
relying on case law involving grants of
motions for reconsideration (see Mink v.
Superior Court (1992) 2 Cal.App.4th 1338, 1342 and Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist.
(2003) 106 Cal.App.4th 1219, 1242), argues that “[a] better
characterization of events is that the trial court granted the Motion to
Reconsider,†pointing to the court’s holding of a long cause evidentiary
hearing, where, Bowen contends, the court considered “for the first time the
factors detailed in Ritchie[,
prejudice which flowed from it which [Bowen] complains of here.†Should we find his appeal untimely, he asserts,
“there would be no way for this court to reach the errors of the hearing
challenged here.â€
It
does not appear that the trial court granted the motion for
reconsideration. At the end of the
November 9 hearing, the court did not explicitly state that Bowen’s motion was
denied, but referred to its review of the motion for reconsideration and
ordered that the September 7 order would remain in effect until a new order was
issued containing the identical terms and conditions, albeit with a time period
shortened from five to three years.
Also, the register of actions contained in the record states that the
court denied Bowen’s motion for reconsideration and, although we do not know
why the court held the November 9 evidentiary hearing, the register also
indicates that, rather than previously grant the motion, the court continued
the hearing regarding it twice. It
appears that the trial court denied the motion, but in the course of doing so
ordered a reduction in the length of the restraining order, for unexplained reasons.
Nonetheless,
given these circumstances, we agree with Bowen that he had the right to appeal
from the December 14 order, although for a reason he does not directly
raise. That is, the trial court’s
reduction of the length of the new restraining order from five to three years
was a material or substantial modification of the September 7 order, as
indicated in the case relied on by Lister for her argument,
192 Cal.App.4th 493 (Dakota).
In
Dakota, a party appealed from an
amended judgment, seemingly in a timely manner.
Confronted with the issue of whether to dismiss the appeal, the
appellate court, after acknowledging that appellate courts generally had no
jurisdiction to consider untimely appeals, stated that “ [t]he resolution of
this issue turns on the question whether the amended judgment superseded the
original judgment for purposes of computing the time in which to file a notice
of appeal.†(Dakota, supra, 192
Cal.App.4th at p. 504.) “The crux of the
problem . . . is whether there is a substantial change in the rights of the
parties such that allowing an amendment nunc pro tunc (relating back to the
original judgment) would unfairly deprive them of the right to contest the
issue on appeal or otherwise. . . . [I]t
is ultimately the parties’ ability to challenge the ruling that is key. The right we are concerned with materially
affecting is the right to appeal.†(
Similarly,
this court, in Nestle Ice Cream Co., LLC
v. Workers’ Comp. Appeals Bd. (2007) 146 Cal.App.4th 1104, stated regarding
civil judgments that “the period for filing a notice of appeal is not extended
by an amendment that corrects a clerical error, but it is extended by an
amendment that effects a substantial
or material change or involves the exercise of a judicial function or judicial
discretion.†(Id. at p. 1109.)
We
conclude that the trial court’s reduction of the length of the renewed
restraining order from five to three years in its December 14 order was a
material or substantial modification of the September 7 order. In the course of arguing for dismissal, Lister asserts that
the trial court had no legal authority to reduce the length of the restraining
order from five to three years. Because
Lister has not filed a cross-appeal, we need not address this issue. However, Lister’s argument highlights that,
if she had chosen to appeal this reduction, we would have undoubtedly addressed
it, which inevitably would have led to an evaluation of the evidence introduced
at the November 9 hearing, including that which was not presented prior to
issuance of the September 7 order, and the court’s findings after the
hearing. In other words, the amended
restraining order contains a substantial modification regarding the parties’
rights based on additional evidence and involved the exercise of judicial
discretion, albeit in Bowen’s favor.
Lister
argues that the December 14 order did not “reset†Bowen’s time to appeal based
on Dakota. Lister points out that the
a reduction of $4 million in damages via an amended judgment reset the time in
that case because “[a]ll other parts of the judgment not affected by the
modification remained valid and could have been challenged by appeal.†(Dakota,
supra, 192 Cal.App.4th at p. 509.) However, the Dakota court determined that the alteration to the judgment was
“not substantial and [did] not materially affect the parties’ rights†under the
circumstances of that case, analogizing the change to postjudgment orders that
filled in the blanks for attorney fees and interest. (Ibid.) In the present case, the change was one of
substance, as it eliminated two years of previously ordered restraints against
Bowen, substantively altering the parties’ rights. It is more analogous to the circumstances
discussed in Stone v. Regents of
University of California (1999) 77 Cal.App.4th 736, one of the cases
discussed in Dakota (
court ruled that a modification of a judgment to require a party to pay an
additional nine months of legal expenses “was undeniably one of substance†that
“materially affected their rights.†(
In
short, whether or not the trial court denied the motion for reconsideration,
Bowen correctly and timely appealed from the December 14 order. We now turn to the merits of Bowen’s
appeal from the December 14 order.
Bowen
first argues that the trial court erred in its application of section 6345
because Lister did not have the objectively reasonable apprehension of future
abuse required pursuant to Ritchie,
renewed the restraining order based on her reasonable apprehension of future
abuse, which was justified because of Bowen’s violation of the order and his
litigation abuse. We agree with Lister,
based on the evidence cited by the trial court regarding Bowen’s violation of
the order, particularly in light of the facts underlying the issuance of the
original order.
A. Legal Standards
As we
have discussed, the procedural history below is somewhat muddled. The trial court, in the course of apparently
denying respondent’s motion for reconsideration, held an evidentiary hearing on
November 9, at which it considered additional evidence regarding renewal of the
order, considered the legal standard for renewal articulated in
and substantially modified its order.
The parties’ arguments presume that our standard of review under these
muddled circumstances is to evaluate all the evidence presented at this hearing
pursuant to Ritchie to determine if
there is a basis for the renewal of the order.
We do so without determining whether our standard of review should be
more constrained in some way because of the context in which the trial court’s
ruling was made.
Section
6345 provides in relevant part that a trial court may renew a restraining order
“upon the request of a party, either for five years or permanently, without a
showing of any further abuse since the issuance of the original order, subject
to termination or modification by further order of the court either on written
stipulation filed with the court or on the motion of a party. . . .†(§ 6345, subd. (a).)
When
contested, a request to renew a restraining order should not be granted
pursuant to section 6345 simply because the requesting party has “a subjective
fear the party to be restrained will commit abusive acts in the future.†(Ritchie,
supra, 115 Cal.App.4th at p. 1288.)
must be ‘reasonable.’ That is, the court
must find the probability of future abuse is sufficient that a reasonable woman
(or man, if the protected party is a male) in the same circumstances would have
a ‘reasonable apprehension’ such
abuse will occur unless the court issues a protective order.†(Ibid.) However, an imminent and present danger of
abuse is not required. (
In other words, under this objective test, “[a] trial court should renew
the protective order, if, and only if, it finds by a preponderance of the
evidence that the protected party entertains a ‘reasonable apprehension’ of
future abuse. . . . [T]his does not mean
the court must find it is more likely than not future abuse will occur if the
protective order is not renewed. It only
means the evidence demonstrates it is more probable than not there is a
sufficient risk of future abuse to find the protected party’s apprehension is
genuine and reasonable.†(
In
evaluating whether the requesting party has a reasonable apprehension of future
abuse, “the existence of the initial order certainly is relevant and the
underlying findings and facts supporting that order often will be enough in
themselves to provide the necessary proof to satisfy that test.†(Ritchie,
supra, 115 Cal.App.4th at p.
1291.) “Also potentially relevant are
any significant changes in the circumstances surrounding the events justifying
the initial protective order. For instance, have the restrained and
protected parties moved on with their lives so far that the opportunity and
likelihood of future abuse has diminished to the degree they no longer support
a renewal of the order?†(
Also relevant are the seriousness and degree of risk, such as whether it
involves potential physical abuse, and the burdens the protective order imposes
on the restrained person, such as interference with job opportunities. (Ibid.)
“[T]he
physical security of the protected party trumps all of these burdens the
original or renewed protective order may impose on the restrained party. Thus, where the protected party has a
‘reasonable apprehension’ of future physical
abuse if the current protective order expires, that order should be renewed
despite any burdens this inflicts on the restrained party.†(Ritchie,
supra, 115 Cal.App.4th at p.
1292.) A defendant’s conduct can place a victim in reasonable
fear of serious bodily injury without involving any violence. (Id.
at p. 1299.)
In
challenging a renewal order, the restrained party is not permitted “to
challenge the truth of the evidence and findings underlying the initial
order[.]†(Ritchie, supra, 115
Cal.App.4th at p. 1290.) We review the
trial court’s ruling under an abuse of discretion standard, to determine “
‘whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be
deduced from the facts, the reviewing court has no authority to substitute its
decision for that of the trial court.’ â€
(Gonzalez v. Munoz (2007) 156
Cal.App.4th 413, 420.)
B. Analysis
Bowen
argues the trial court erred in renewing the restraining order for several
reasons. First, he contends, rather than
there being any physical abuse or threat of physical abuse, involved, before
the court “[a]t most was the claim that [Bowen] had relationships with members
of Lister’s family which Lister found divisive, and that [Bowen] was
socializing or dining in the City of Hayward, when he lives in San
Francisco. There is no evidence that, in
so doing, [Bowen] violated the restraining order.â€
Next,
Bowen, noting that Lister’s sister referred to Lister as “paranoid,†contends
that Lister’s apprehension was unreasonable.
“The fear that the service of court papers could be a subterfuge for the
sending of anthrax is plainly unreasonable.â€
Next,
Bowen contends the trial court erred by failing to consider the burden imposed
by the restraining order on him in light of the record “being replete with
information regarding Bowen’s contacts with the CATS organization,†which,
Bowen contends, “has helped him to maintain 14 years of sobriety.†He also contends that he was prepared to
testify that the restraining order “creates a substantial impediment to his ability
to secure work,†apparently because it purportedly harms his business and
reputational interests before the court abruptly cut off testimony at the end
of the November 9 hearing.
Bowen
concludes that, in light of the restraining order being on the basis of
non-violent conduct, mostly between Bowen and third parties, and all in the
“remote past†except for his brief entry into the CATS building at the
invitation of the director of the office in response to a “crisis,†the court
did not properly consider the factors enumerated in Ritchie and incorrectly renewed the restraining order.
Lister
responds with a number of arguments in defense of the court’s order. We need not review them all. Bowen’s contentions are unconvincing in light
of evidence that he knowingly violated the protective order on July 7, 2011 in
a manner that caused reasonable apprehension to Lister, particularly considered
with the evidence of stalking that led to the court’s issuance of the initial
restraining order, and the trial court’s continuing to allow him access to
certain CATS offices for income-producing purposes.
The
trial court placed great emphasis on Bowen’s July 7, 2011 violation in its
ruling, finding Bowen’s knowing violation to be “very concerning.†Bowen gives us no reason to conclude the
court’s evaluation exceeded the bounds of reason. As the court noted, the facts indicate that
Bowen knew the terms and scope of the protective order, and Bowen did not, and
does not, challenge this. Instead, he
emphasizes that his visit to CATS involved a “crisis†and was by
invitation. He fails to explain why
these circumstances excuse his knowing violation, and we can think of
none. The record indicates that the
court was aware of CATS’s activities and Bowen’s history with it when it issued
its initial restraining order and nonetheless prohibited him from the activity
he engaged in on July 7, 2011. Assuming
the circumstances that day were as described by Bowen, it can be reasonably concluded
from the record that he entered the CATS building in knowing defiance of the
order and without making any effort to obey it, such as by attempting to be of
assistance off-site. It almost goes
without saying that any violation of a restraining order is very serious, and
gives very significant support for renewal of a restraining order. Nonetheless, apparently it needs to be said
here, particularly in light of the characterization of this violation in
Bowen’s reply brief as “a de minimis and
technical violation if at all.â€
Bowen’s
July 7, 2011 violation of the restraining order is particularly significant in
light of the facts underlying the issuance of the initial restraining order,
which the court also referred to in its November 9 ruling. Lister rightly points out that Bowen’s
prior stalking, like his recent violation, occurred around Lister’s workplace,
and it was reasonable for the court to conclude his recent violation made her
feel apprehensive about her safety there under the circumstances. The evidence presented at the November 9
hearing amply supported this conclusion.
It indicated that she stayed away from her workplace and, according to a
coworker, even after she returned to work, “was very distressed—crying, unable to focus on her . . . case load, in
fear . . . that her work area is no longer a safe place.â€
As we have discussed, the
underlying findings and facts supporting an initial order “often will be enough
in themselves to provide the necessary proof†to renew the protective
order. (Ritchie, supra, 115
Cal.App.4th at p. 1291.) We need not
make such a determination here in light of Bowen’s July 7, 2011 violation. The court was within its discretion to
conclude that the evidence together indicated it was more probable than not
there was a sufficient risk of future abuse to find that Lister’s apprehension
was genuine and reasonable. (See
773, 777 [although there had been no contact during the two-year term of the
restraining order, a visit by the restrained party’s friend to the protected
party’s restaurant workplace to deliver “greetings†from the restrained party,
along with the initial mental and physical abuse, was “ample†support for the
protected party’s continued fear].)
As
for Bowen’s summary argument that the court failed to consider or inquire about
Bowen’s contacts with the CATS organization in weighing the burden of the
restraining order on him, the record indicates this was a topic referred to in
the testimony and known by the court.
The court’s renewed restraining order, as did the prior orders, plainly
took the burden into account when it ordered that Lister could come within 100
yards of four CATS offices “for the sole purpose of conducting any
income-producing matters requiring [Bowen] to be present.†Bowen fails to establish that the court
abused its discretion in determining this struck a proper balance between the
interests of the parties.
Finally,
Bowen’s argument that the court gave insufficient attention to the “substantial
impediment to his ability, as a contractor, to secure work†caused by the
restraining order because it “abruptly†closed testimony at the end of the
November 9 hearing is also unpersuasive.
The court gave Bowen the opportunity to present testimony. The record indicates his counsel questioned
Bowen until she indicated that she had no more questions, Lister cross-examined
him, Bowen’s counsel conducted a brief re-direct examination and stated she had
no further questions, and Bowen’s counsel then confirmed to the court that it
had heard all the testimony she intended to call. Bowen’s record citation in support of his
argument does not establish that the court abruptly closed testimony. Therefore, we find no merit in this argument.
In
short, we find the trial court made no error and did not abuse its discretion
in renewing the restraining order
against Bowen based on the evidence and considerations we have discussed
herein. In light of our conclusion, we
do not discuss the other evidence cited by the parties. We also have no need to discuss Bowen’s
additional argument that the trial court erred by relying on the fact of
Bowen’s litigation as a ground for renewal of the restraining order. However, given the attention paid to this
issue at oral argument by the parties, we are obliged to comment in the event
that there are further proceedings below.
We are decidedly unpersuaded by the argument, to the extent Bowen
asserts it, that a trial court cannot, as a matter of law, rely on a party’s
litigation conduct in determining whether or not a restraining order should be
renewed. We see no reason why a court,
along with findings that it might make about such things as a party’s
inappropriate demeanor in court or troublesome statements as a witness, cannot
also find, where appropriate, that a party’s litigation strategies and tactics
are evidence of inappropriate behavior that provides grounds for a restraining
order’s renewal. Nonetheless, we do not
need to, and do not, make a determination of this issue herein.
We
also do not address
Bowen’s argument in his opening brief,
as part of this “litigation†claim, that the court unfairly struck, as not
probative, his counsel’s attempts to question Lister about her motive for
seeking to renew the restraining order.
In his reply brief, Bowen argues this action by the court violated due
process and Evidence Code section 788, and that these are independent grounds
for finding error. We disregard this
argument because it is tardily made without explanation for the first time in
Bowen’s reply brief. (
784, 794, fn. 3 [“[p]oints raised in the reply brief for the first time will
not be considered, unless good reason is shown for failure to present them
beforeâ€].)
Overbreadth
Bowen
also argues that the trial court erred by issuing an overbroad injunction that
improperly invaded his constitutionally protected associational interests by
renewing the restraining order “without regard for [Bowen’s] stated,
long-standing relationship with the social service organization for which
[Lister] works primarily ‘in the field,’ †which order “barred him from either
receiving or giving treatment to fellow recovering alcoholics, without any
inquiry into the potential overbreadth of the order.†We disagree.
Bowen
similarly argued in his previous appeal that the initial restraining order was
unconstitutionally overbroad because it barred him from contacting Lister’s
family members. We explained in that
opinion that our Supreme Court has stated that “although the Constitution
recognizes and shields from government intrusion a limited right of association, it does not recognize ‘a generalized
right of “social association.†’ †(
Cal.4th 1090, 1110). The United States
Supreme Court “has identified two kinds of associations entitled to First
Amendment protection—those with an ‘intrinsic’ or ‘intimate’ value, and those
that are ‘instrumental’ to forms of religious and political expression and
activity.†(Ibid.)
Bowen
does not establish that either interest is implicated by the court’s order, or
how his rights have been violated, particularly in light of the court’s
allowing him contact with certain CATS offices for income-producing
purposes. His sparse argument does not
cite to any evidence establishing that the court’s order bars him from
participating in activities that he would otherwise participate in, nor to any
legal authority beyond the most general in arguing that a constitutional
violation has occurred under the present circumstances. “ ‘A judgment or order of the lower court is
to support it on matters as to which the record is silent, and error must be
affirmatively shown. This is not only a
general principle of appellate practice but an ingredient of the constitutional
doctrine of reversible error.’ †(
557, 564.) “To demonstrate error, appellant
must present meaningful legal analysis supported by citations to authority and
citations to facts in the record that support the claim of error.†“[C]onclusory claims of error will fail.†(In re
S.C. (2006) 138 Cal.App.4th 396, 408.)
Bowen’s conclusory claim of error does so here.
DISPOSITION
The
court’s order is affirmed. Lister is
awarded costs of appeal.
_________________________
Lambden,
J.
We concur:
_________________________
Kline,
P.J.
_________________________
Richman,
J.
attaches our previous opinion as an exhibit to her respondent’s brief. We construe this as a request for judicial
notice and grant it pursuant to Evidence Code section 452, subdivision (d).
the November 9 hearing, the court referred to “[w]hen we were here last week,
we set this opportunity for [Bowen] to give testimony and also to have this
opportunity for you [respondent] to address whether the court should be using a
restraining order.†However, the parties
do not further explain what occurred at this prior hearing.
