Palitz v. Clark

Filed 5/19/08 Palitz v. Clark CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Linda K. Lefkowitz, Judge. Affirmed.

David L. Clark, in pro. per., for Defendant and Appellant.

Morrison & Foerster and John Sobieski for Plaintiff and Respondent.

_______________

On respondent Susan Palitz's application, the trial court issued an Order Against Harassment (Code Civ. Proc., 527.6)[1]against appellant David Clark. Under the terms of the order, which expires in September 2009, Clark may not harass or contact Palitz, must stay 20 feet away from her, her residence, and her car, and may not own a gun. We affirm.

Facts[2]

By way of background, we note that Palitz lives in a condominium in Lakeside Village, a development in Culver City, that she has long had problems with and/or made allegations about vandalism to her cars in the parking lot of her building, and that she installed a video camera in the storage cabinet adjacent to her parking spot. Clark does not live in Lakeside Village, but spends substantial amounts of time there.

Palitz's Request for Orders to Stop Harassment was filed on August 30, 2006. The form calls for specified information, under penalty of perjury. Palitz wrote that Clark was a visitor to Lakeside Village as the guest of a resident named Richard Sakai, that Sakai let Clark "roam at will over the complex," which was against the Condominium Association's rules, and that Clark had harassed her for years. Where the form asked for a description of the most recent harassment, she wrote that on August 25, 2006, he had screamed at her and defamed her and slashed her personal property, specifying a cabinet and a camera. When asked whether the person sought to be enjoined had engaged in a course of conduct which harassed her and caused substantial emotional distress, Palitz checked the box for "yes," then wrote that for years Clark had ruined her reputation in the community, followed her, tampered with her property, and threatened her. He defamed her to her neighbors and called her names such as "bitch." She feared for her life and property.

There were several attachments to the Request. The first is Palitz's August 16, 2006 account of an incident of that date. Palitz wrote that she saw Clark in the garage, looking at her car. Once he saw her, he walked in the same direction as she did, although that was not in the direction of Sakai's unit. When she approached the guard shack to make a report, he "appeared at the very spot harassing the guards." As Palitz stood talking to someone several feet away, Clark started shouting. He frequently walked through the complex harassing residents such as herself. She had earlier reported him for harassment.

The next document is titled as a August 25, 2006 memo from Palitz to Culver City Police Sergeant Corrales, concerning "Complaint: Continued Stalking/Harassment by David Larmer Clark." (Nothing in the record tells us whether it was ever sent to police.) Palitz wrote that Clark "continues to harass, annoy, stalk me and my property, defame my name and character, ruin my reputation in the community," that he had contacted the DMV to obtain information about her, and that he had shouted at residents demanding that they stop speaking to her. She wrote that on August 19, 2006, Clark "was witnessed harassing me through a third party." That is, he was overheard shouting at a resident about Palitz's complaints about the vandalism to her cars. He referred to her with names such as "bitch," and "crazy." In the past, he had asked people for information about her, in order to "go after her." She had tapes of him vandalizing her car, and had given the tapes to the Culver City Police Department.

The next document is an invoice from Pro Security, Inc., dated February 20, 2006, for $200, for a service call to remount a twisted and bent camera mount and re-align a camera. Someone, presumably Palitz, added the handwritten notation that the damage was caused by Clark on January 29, 2006. The final relevant document is a Culver City Police Department Incident Report. It states that on August 16, Palitz reported that Clark had stalked and harassed her over the last two years.

Clark made a special motion to strike. ( 425.16.) With the motion, he declared that he was the agent and attorney for Richard Sakai, President of the Lakeside Village Condominium Association Board of Directors, and that with Sakai's and the Board's knowledge and consent he also performed other tasks at Lakeside Village. He had acted as an attorney for Sakai concerning Palitz's claims and activities, and wrote that she had used common areas to install a peephole camera. He had also acted as Sakai's attorney with respect to many other claims Palitz had made against Lakeside Village, and its residents or employees. As Sakai's attorney, he had spoken to various Lakeside Village residents. On August 19, 2006, he spoke to one person about Palitz and Lakeside Village's litigation against her, and did not believe that the conversation could be overheard by anyone. He believed that the Request had been filed to curtail his ability to provide legal counsel to Sakai.

In Palitz's response, she contended, inter alia, that Clark had entered her building and put a notice on every floor, warning that she had put a camera in the cabinet above her car. He had thus prevented the vandals from being caught on tape. One of the notices was on Palitz's front door. She took the notice off, but Clark put it back on. This continued for days until Sergeant Corrales of the Culver City Police Department told Clark to stop. Further, on January 29, 2006, Clark had vandalized her camera and cabinet, causing her to suffer $200 in damages. He had also cursed at her, trespassed in her building, and defamed her. He stalked her by following her to her building or being close by when she took her daily walk.

The court denied the special motion to strike, ruling that such a motion cannot be filed in response to a request for injunction under section 527.6. The hearing began.

Palitz testified that two weeks earlier, she observed Clark in the garage of her building, and that he had no business there. She told the court "I believe that your honor has read the other information there," and the court stated that it had.

Palitz erroneously believed that a TRO had been issued, and told the court that Clark had not come near her or her property since that time, although earlier "he was in the habit of doing that."

Sergeant Omar Corrales testified next. (He was called by Clark and taken out of turn.) Corrales testified that at some time toward the end of 2005, while serving as Watch Commander, he had received a call from Palitz about vandalism to her car. As he routinely did in such circumstances, he suggested that she put up a camera. Some time during 2006, the Culver City Police Department had received an allegation of vandalism to a camera at Lakeside Village. During his investigation, the sergeant spoke to someone named Chong Lee to see if his invoice number 1219[3]was accurate. The invoice was for remounting a twisted and bent camera mount and realigning the camera. Lee said that the invoice was accurate. Later, in connection with a different report by Palitz (which does not concern Clark), Corrales questioned him again. This time, Lee said that the mount had not been twisted or bent, but that the camera had slipped off.

This case was tried together with a Request for Order Against Harassment, filed by Palitz against Merle Dautrey.[4] Dautrey questioned Corrales about a police incident report taken on January 30. The document is not in our record, but with the court's permission Dautrey read several sentences, to the effect that Palitz told police that she saw Clark and Dautrey attempt to force open the cabinet which held her camera, and that when the effort failed, they placed a piece of tissue paper over the lens. Corrales testified that he viewed a videotape of the incident, which showed Clark and Dautrey in front of the camera, talking. Clark pointed at the camera. Moments later, he approached the camera. A hand came up, and then the camera went dark. A few hours later, the tissue was removed. Corrales questioned Clark, who admitted that he had put tissue over the camera lens.

When Palitz questioned Corrales, she showed him the notice which she alleged Clark had posted. The court described it as on Lakeside Village Condominium Association letterhead, advising residents that someone had installed a video surveillance camera. Palitz then elicited the testimony that Corrales had asked a Board member if it was normal for notices to be placed on a unit's front door, and that the Board member had replied that it was not. Corrales also testified that he had not told Clark to stop posting notices around the building and on Palitz's door.

Palitz then called Chong Lee, and elicited testimony that he had been subpoenaed by Clark, who made an appointment to discuss a camera installation, then, at the appointment, instead questioned him about Palitz and his invoice to her and served him with a subpoena. After the court noted that Clark had admitted that he had put tissue over the camera lens, Palitz ended her questioning. Clark indicated that he had no questions for Lee.

The court questioned Clark about his admission.[5] Clark admitted that he had put tissue over the camera lens, and that he was not the attorney for the Homeowner's Association and had no authorization from the Association. He explained that he acted as he did because he feared that Palitz would "stage something," to make it look as though someone had committed vandalism, and if the person so blamed knew that he had seen the camera, and done nothing, the person would blame him for not issuing a warning. The court also asked Clark about the notices. He said that he put the notices in the elevator and bulletin boards. The Board had not authorized him to do so, but after speaking to Sakai and other Board members, he believed that they wanted him to do so.

The court found with regard to the notices and the camera, Clark had acted without authorization, indicating an undue focus on Palitz, that he had engaged in self-help which was particularly puzzling because he did not live in Lakeside Village, and that he had essentially monitored Palitz's activities. The court indicated that it would issue the order. Clark informed the court that he worked on the equipment which maintained some of the water features at Lakeside Village, and that the equipment was near Palitz's building. The court modified the standard order to a 20-yard stay away, to accommodate Clark.

Discussion

Clark first contends that the injunction must be reversed because the trial court erred in denying his special motion to strike. Clark correctly argues that under Thomas v. Quintero (2005) 126 Cal.App.4th 635 "petitions brought pursuant to section 527.6 are subject to attack by a special motion to strike under section 425.16." (Id. at p. 652.) The trial court thus erred in finding that the motion did not lie. However, the error does not require reversal of any order. Clark's argument on the merits of his special motion to strike is that the motion should have been granted because Palitz should not have prevailed on her request. He makes the same argument as a challenge to the order granting injunction. We find substantial evidence for the ruling issuing the injunction (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762), a finding which disposes of all issues on this appeal.[6]

In his challenge to both trial court rulings, Clark argues that the evidence was that Palitz exaggerated her claims and presented fabricated documentary evidence, that his conduct with regard to the camera was minimal, and that when he posted notices he did so on behalf of the president of the condominium association and its Board. His conclusion is that the injunction should not have issued.

Under section 527.6, a person who has suffered harassment may apply for an injunction. If, after hearing the evidence, a judge "finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment." ( 527.6, subd. (d).)

"Harassment" is defined 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. 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." ( 527.6, subd. (b).) "Course of conduct" is defined as "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, . . . Constitutionally protected activity is not included within the meaning of 'course of conduct.'" ( 527.6, subd. (b)(3).)

The evidence[7]here was that, as the trial court found, Clark took it upon himself to police Palitz's activities and to warn other residents against her. He only obscured the lens of her camera for a short time, but he did so after attempting to pry open the cabinet which held the camera, and he did so on his own initiative. He posted warnings about Palitz's camera throughout her building. He knew that he had no authority to post warnings, but nonetheless believed that he was justified in his actions because Board members "wanted him to." He had recently been seen in Palitz's garage, where he had no business. He sought out other residents and spoke to them about her, calling her names. He shouted at her after she complained about him to the guards. Similar conduct had gone on for years, leading Palitz to fear Clark. His attentions to her lessened only after she filed for the injunction. This is harassing conduct which serves no legitimate purpose.

In his brief, Clark characterizes himself as a part-time resident of Lakeside Village, and argues that he was acting on behalf of the Board, but the evidence at the hearing was that he lives elsewhere and that he was not acting for the Board or with its authorization. Given his lack of actual stake in the matter, the trial court reasonably found that his expressed need to protect Lakeside Village from Palitz, showed an undue focus on Palitz, and his conduct constituted unlawful harassment.

Disposition

The judgment is affirmed. Respondent to recover costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

MOSK, J.

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[1]All further statutory references are to that code.

[2]We deny appellant's request that we take judicial notice of documents concerning Paltiz's State Bar complaint against him, litigation between Palitz and the Lakeside Village Condominium Association, and other restraining orders sought by Palitz. The documents were not before the trial court and are not relevant to any issue on this appeal.

[3]The invoice submitted with Paltiz's Request is numbered 1249.

[4]That request for injunction was denied.

[5]Section 527.6 specifically provides that at the hearing, the judge "may make an independent inquiry." ( 527.6, subd. (d).)

[6]We thus need not and do not consider whether Clark carried his burden on the special motion to strike, of showing that the challenged cause of action was one arising from protected activity. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

[7]Some of the evidence is found in one of the documents attached to the Request. The documents were not signed under oath, and were not authenticated or entered into evidence. However, they were before the court and the court expressly told the parties that it had read those documents. Palitz was available to be cross-examined on this incident, but Clark did not do so. Clark did not object in the trial court and makes no argument on appeal.