Filed 11/23/09 Stanford University v. Robert CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SIXTH APPELLATE DISTRICT
Plaintiff and Respondent,
Defendant and Appellant.
(Santa Clara County
Appellant Francis Robert, formerly a Stanford University employee, appeals after the trial court entered a restraining order against him under Code of Civil Procedure section 527.8 directing that he refrain from, among other things, stalking or following Sarah Noftsinger, who was also in Stanfords employ. Concluding that his claims of error have been forfeited on appeal and that he has not demonstrated reversible error in any event, we affirm the order.
STATEMENT OF THE CASE
I. Factual Background
Noftsinger, in her twenties, began working as an assistant coach for the Stanford University womens soccer team in or around 2004. Robert, some 25 years her senior, had worked since 1998 in the Stanford admissions office processing athletic admission applications. Robert, an avid Stanford sports fan, frequently associated with people on campus connected with athletics and he attended many Stanford sports events, initially meeting Noftsinger through these connections.
Noftsinger and Robert became further acquainted with each other at work, although their employment duties or functions did not particularly overlap. At first, Noftsinger considered Robert simply as a work acquaintance and she politely refused him when he made overtures toward her that she perceived to be of a romantic nature. But, as time went on, it became clear that Robert was preoccupied with her. He would show up at her office sometimes many times a day. He would appear in parking lots where her car was parked. He communicated electronically with her, sending many instant messages most of which Noftsinger would just delete. Sometimes his messages and communications included references or information concerning her personal life that she had not disclosed to him. She would block text messages from him but he would find a way around that. He would appear at bars and restaurants where she frequented and stare at her. He gave her presents. He would follow her while driving and would drive past her house. In May 2006 when she was in the hospital having had surgery, he entered her room and took a photo of her while she was asleep or unconscious.
Over time and into 2007, Roberts preoccupation with and stalking of Noftsinger became pervasive and more aggressive, even ang[ry]. He referred to massacres that were going to occur and accused Noftsinger of treating him like a white Southerner treats a nigger. She attempted to ignore him and told him to leave her alone but in the spring of 2007, Noftsinger reported Roberts behavior to one of the Stanford coaches. Stanford conducted a full investigation, hiring an outside psychologist, Stephen White, to perform a workplace threat assessment. White interviewed Robert and Noftsinger, among others, and reviewed e-mails and messages that Robert had sent to Noftsinger. White concluded that Robert was strongly preoccupied with Noftsinger, that he had engaged in a persistent pattern of unwelcome pursuit, and that in spite of potentially adverse employment consequences to himself, Robert would have a very difficult time staying away from her. As a result of the investigation, in May or June of 2007, Stanford issued a stay-away order directing Robert to stay away from Noftsinger both on and off campus and to cease contacting her. Robert was told that if he did not comply, his employment would be terminated.
After the issuance of the stay-away order, Noftsinger made arrangements to move from Palo Alto to San Francisco. Her father and some friends agreed to help her move her belongings. On her moving day, Noftsinger saw Robert drive by her house while she loading belongings into her car. On route to her new home, those helping Noftsinger move observed Robert following in his car.
Then, late in the evening of January 22, 2008, while Noftsinger and a friend were walking Noftsingers dog outside her San Francisco home, they saw Robert walking toward them on the street. The way he was staring at her and attempting to cover his face with one hand while keeping the other hand in his pocket alarmed Noftsinger and she thought he might have a gun. Afraid, Noftsinger and her friend made their way inside her apartment as quickly as they could. Noftsinger reported to Stanford that Robert was still stalking and harassing her despite the stay-away order. Although Robert had been harassing her for some time, this was the first time that Noftsinger had been afraid he had a gun. She was so fearful that she left town for three days after the incident.
Stephen White spoke with Noftsinger about the incident and he remained of the view that Robert would persist in his preoccupation with Noftsinger, despite the threat of termination of his employment. Also, Robert was caught lying when Stanford personnel investigated the incident. And it was not the first time that Robert had been observed in violation of the stay-away order. As a result, Stanford terminated Roberts employment.
II. Procedural Background
As Stanford no longer had any private right to direct Roberts behavior after his termination, Stanford filed a petition against Robert in superior court for an injunction prohibiting violence or threats of violence against an employee under section 527.8. Noftsinger at the same time filed a separate petition for a restraining order to prevent civil harassment under section 527.6. After initially continuing the matters for five weeks at Roberts request, the court heard testimony at the ensuing combined evidentiary hearing on both matters. It concluded that there was overwhelming evidence that Robert had behaved in a way that would be considered harassment, that his conduct was such that would cause a reasonable person to suffer substantial emotional distress, that his conduct did in fact cause Noftsinger substantial emotional distress, that there was no legitimate or reasonable purpose for the behavior, and that the behavior constituted an implicit threat of violence. The court specifically noted that it had believed Noftsingers testimony while not being impressed with Roberts credibility. The court issued an injunction prohibiting Robert from following or stalking Noftsinger, from contacting her in any way, from coming within 300 feet of her person, her workplace, her home, or her vehicle and from entering Stanford University property except to take his mother to medical appointments at Stanford University Hospital. The court issued a separate injunction in the proceeding to prohibit civil harassment brought by Noftsinger.
Robert timely appealed from both orders and in this case, we review the order prohibiting violence or threats of violence against an employee entered in Stanfords favor.
I. Issues on Appeal
Robert, a self-represented litigant, raises three contentions on appeal. They are that the court erred by combining the evidentiary hearing in this proceeding with that conducted in the companion proceeding brought by Noftsinger in the absence of a noticed motion to consolidate the matters brought under section 1048; that the court deprived Robert of due process by limiting the amount of time for him to present his defense at the hearing and precluding him from conferring with his trial counsel; and that the court erroneously excluded evidence concerning Noftsingers relationship with the friend who was present when Robert was seen on the street outside Noftsingers home in San Francisco. We address each of these contentions in turn.
II. The Combining of the Two Proceedings For Purposes of the Hearing
After earlier calendar settings that were continued at Roberts request, both Noftsinger and Stanfords petitions were set in the same department of the superior court to be heard in the afternoon of March 17, 2008. The court called the matters together but as two separate line items. After appearances of counsel and other preliminary issues, the court asked the petitioners counsel if she, on behalf of her clients, was still requesting both the civil harassment and the workplace violence restraining orders, to which counsel said, Thats correct. The court then asked Roberts counsel for his position, Robert not having timely filed an answer in either proceeding. Counsel replied that Robert was denying both as relief in neither was necessary. The court then proceeded to exclude witnesses from the courtroom and began taking testimony, without separating one proceeding from the other but without formally consolidating them either. No one objected. Four witnesses testified during the hearing without an objection raised by anyone as to the combined nature of the evidentiary proceeding.
At the conclusion of the testimony, the court stated that both counsel would be given an opportunity for closing argument. Both lawyers delivered their arguments by addressing the two cases together. The court then discussed the clear and convincing standard of proof applicable to both proceedings and the factual and legal questions common to each. The court proceeded by giving its reasoning for granting the petitions and issuing injunctions, discussing the elements and components of each case separately, again without objection to the combined procedure. Separate injunctions in each proceeding were ultimately issued in writing.
Robert contends that the court erred by in effect consolidating the two matters for purposes of the hearing in the absence of a formal motion or order to consolidate under section 1048 or a notice of related case filed by a party under rule 3.300 of the California Rules of Court. Section 1048, subdivision (a) provides in pertinent part that when actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. Rule 3.350 in turn provides particular requirements for motions and orders to consolidate cases under section 1048. Whether to consolidate actions is a matter within the exercise of the trial courts discretion and its decision in this regard will not be disturbed on appeal absent a clear showing of abuse of discretion. (Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978-979.)
Rule 3.300 provides a separate procedure for a court in its discretion to find that cases perhaps not ripe for consolidation may nevertheless be related such that they should be assigned to the same judge or department, regardless of whether the cases involved are of different types such as probate or family. The rule declares that parties are under a continuing duty to inform the court by notice of the existence of related cases (which apparently did not happen here) and that the court may order that cases are related so that they are assigned together accordingly. The rule further provides that if the procedures for relating pending cases thereunder do not apply, the procedures for consolidating cases under section 1048 and rule 3.350 must be followed in order to consolidate them in the same superior court.
In addition to these specific authorities concerning the handling of cases that share common questions or that are subject to being related for judicial economy and efficiency sake, the law generally provides, as Noftsinger points out, that trial courts must be afforded wide latitude in matters of calendar control and regulation. (Moyal v. Lanphear (1989) 208 Cal.App.3d 491, 497; Maximum Technology v. Superior Court (1987) 188 Cal.App.3d 935, 937.) The press of cases and the desire to manage and expedite crowded calendars is of natural concern to a court, bounded by the prohibition of elevating efficiency over justice. (Hernandez v. Superior Court (1985) 169 Cal.App.3d 1169, 1171.)
But over and above these legal principles applicable to the courts action, two basic principles of appellate review predominate our analysisthe requirements that error be preserved and that any error be demonstrated to be prejudicial to warrant reversal. Here, in the absence of an objection below to the procedure by which the court conducted the two hearings together, any resulting error has been forfeited or waived. And even if we were to reach the merits of the claimed error, no prejudice has been shown.
A claim of error will be deemed to have been forfeited or waived through inaction that prevented the trial court from avoiding or curing the error. Such inaction includes the failure to bring the error to the trial courts attention in the appropriate manner by timely motion or objection. (In reMarriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 826; In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002 [failure to object to erroneous ruling or procedure is most obvious type of implied waiver].) It is thus well established that appellate courts will not reverse for procedural defects that could have beenbut were notchallenged below. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185; In re Aaron B. (1996) 46 Cal.App.4th 843, 846; Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 546; In re Carrie W. (2003) 110 Cal.App.4th 746, 755.) The record here unambiguously shows that Robert raised no objection below to the manner in which the trial court combined the evidentiary hearings in the two matters. Indeed, through his counsel, he appeared to acquiesce in the procedure. This results in a forfeiture or waiver of the claimed error on appeal.
Even were we to consider the merits of the claim, Robert has demonstrated no prejudicea requirement for reversal on appeal. (Cal. Const., Art. VI, 13 [error must have resulted in miscarriage of justice]; 475 [court must disregard error that does not affect parties substantial rights and where it is not shown that different result would have obtained absent the error]; In reMarriage of Goddard (2004) 33 Cal.4th 49, 58-60 [except where error is reversible per se, prejudicial error rule applies even where trial court failed to follow unqualified statutory mandate].) Although Robert complains that the trial court did not follow section 1048 and rule 3.350 concerning consolidation of cases, or rule 3.300 concerning related cases, he has not shown that the cases would not have qualified for such treatment in any event. He does not dispute that the cases involved common questions of law and fact, the same witnesses, and the same burden of prooffactors that would have favored consolidation, let alone related status, had the court expressly applied section 1048 and the applicable rules. Accordingly, no prejudicial error as a result of the claimed error appears.
Because Roberts claim concerning the trial courts combining of the two proceedings for purposes of the hearing has not been preserved and because no error has been shown in any event, we reject the claim.
III. The Courts Time Limitations at the Hearing
At the beginning of the hearing, Noftsinger testified on direct examination. When Roberts counsel began to cross-examine her, the court asked for a time estimate. Counsel answered that he would need 20 minutes to half an hour and proceeded. After some time, the court stated that it did not mean to rush, but that it had to deal with ex parte temporary restraining orders that afternoon as well. Presumably based on his previous time estimate, at a certain point, the court told Roberts counsel that he had a minute left to cross-examine Noftsinger because there was less than two hours left to deal with three other witnesses. Counsel protested that he could not finish his questioning of Noftsinger in one minute but the court told him to take his best shot. Shortly thereafter, counsel concluded his cross-examination, at which point the court said that it had allotted 42 minutes despite counsels 20 to 30 minute estimate. The court said that it wanted to finish that day and that time estimates would be strictly adhered to for the remainder of the hearing. Even so, the court then allowed Roberts counsel five minutes at his request at the conclusion of Noftsingers testimony for him to participate in a conference call in another case.
Testimony from the second witness proceeded without any issues as to time. Robert was the third witness and he was the sole witness called in his defense. At the beginning of direct examination by his counsel, the court said that it was allotting 25 minutes, to which Roberts counsel replied, Fine, Judge. At one point, the judge indicated that she wished to go off the record and she then added two minutes for the completion of Roberts direct examination to account for that. Then, at a later point in Roberts direct examination, the court told counsel that he had 30 seconds to finish. Counsel replied, Okay. On redirect, the court told Roberts counsel that he had about two minutes, to which there was no objection or protest.
At the beginning of the fourth and final witnesss testimony, which witness was called by Noftsinger on rebuttal, the court informed the witness that it was keeping the attorneys questioning on a pretty tight time frame and further stated that the proceeding had to be concluded within 30 minutes. At one point during Roberts counsels cross-examination of the witness, there was an objection by Noftsingers counsel to questioning about the nature of Noftsingers relationship with her friend who was present when Robert was observed on the street outside Noftsingers home in San Francisco. During the ensuing colloquy, Robert himself raised his hand to be heard. The court said, Sir, put your hand down. Its not your chance to talk. Robert then asked to speak with his lawyer and the court responded, No. I told you we have some real time issues here. The court then resumed discussion with counsel regarding the pending evidentiary objection, which the court in essence sustained with offending testimony stricken. At the conclusion of that discussion, the court said that Roberts counsel had two minutes to complete his cross-examination of the last witness. Counsel replied, You took three of my minutes, to which the court responded, Well, I wouldnt have had to if it werent for you, referencing counsels objectionable line of questioning that had produced the colloquy.
At the conclusion of testimony, the court allowed five minutes to each counsel for closing argument. It said that by imposing the time limit, it did not wish counsel to rush but instead to choose their words carefully.
The courts power to manage time is just a part of its broad authority to control litigation pending before it. Apart from any statutory authority, courts have fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them. [Citation.] In addition to their inherent equitable power derived from the historic power of equity courts, all courts have inherent supervisory or administrative powers which enable them to carry out their duties, and which exist apart from any statutory authority. [Citations.] It is beyond dispute that courts have inherent power . . . to adopt any suitable method of practice, both in ordinary actions and special proceedings, if the procedure is not specified by statute or rules adopted by the Judicial Council. [Citation.] [Citation.] That inherent power entitles trial courts to exercise reasonable control over all proceedings connected with pending litigation . . . in order to insure the orderly administration of justice. [Citation.] (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967; see also People v. Cox (1991) 53 Cal.3d 618, 700 [court has inherent as well as statutory discretion to control proceedings to ensure efficacious administration of justice], overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421.)
In addition to its inherent constitutionally derived authority, section 128, subdivision (a) provides that every court shall have the power to preserve and enforce order in its immediate presence and to provide for the orderly conduct of proceedings before it. ( 128, subd. (a)(3); see also 187 [any suitable process or mode of proceeding not otherwise provided may be adopted in furtherance of exercise of courts jurisdiction over matters before it].) And, as pointed out by Stanford, under Evidence Code section 765, a court shall exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth . . . . (Evid. Code, 765, subd. (a).) Moreover, injunctive proceedings under section 527.8 are intended to parallel those under section 527.6, which are procedurally truncated and expedited and intended to provide quick relief to victims of civil harassment. (Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1423 & 1424 & fns. 7 & 8 [section 527.8 enacted to allow employers to seek protections comparable to those offered under section 527.6]; Thomas v. Quintero (2005) 126 Cal.App.4th 635, 648; Schraer v. Berkeley Property Owners Assn. (1989) 207 Cal.App.3d 719, 730 (Schraer) [court must allow live testimony in harassment proceedings but may impose reasonable limitations necessary to conserve expeditious nature of procedure under section 527.6].)
Robert contends on appeal that the court imposed arbitrary time periods on the proceeding that prevented him from addressing all of the allegations and denied him due process, including the right to confer with his counsel. But the same deficiencies concerning error preservation and the absence of demonstrated prejudice previously addressed also infect this contention. Except for the single protestation that counsel could not complete his cross-examination of Noftsinger within one minute after he was well beyond his time estimate, the record indicates no other real objection as to the time limits imposed by the court throughout the proceeding or to the courts refusal to stop the ongoing proceedings so that Robert could confer with counsel. This protestation is insufficient to preserve the claim that the trial court erred in its time management of the entire proceeding, and the claim is thus forfeited. (Galloway v. Moreno (1960) 183 Cal.App.2d 803, 808 [failure to object to trial courts remarks concerning moving case along resulted in loss of claim on appeal].)
Moreover, after our review of the record, we do not perceive that Robert was denied a fair trial or a full and fair opportunity to present competent, relevant, and material evidence in his defense. Robert himself was the only person called to testify on his behalf and the time constraints imposed do not appear to have affected his testimony as the record offers no indications of this. It is certainly not clear that the courts time constraints destroy[ed] Roberts evidentiary presentation (Monroy v. City of Los Angeles (2008) 164 Cal.App.4th 248, 267 [trial courts undue restriction of testimony erroneously interfered with and undercut plaintiffs case]) or deprived him of due process safeguards that must be protected notwithstanding the expedited nature of the proceedings. (Schraer, supra, 207 Cal.App.3d at pp. 730-733 & fn. 6 [trial court erred by completely disallowing oral testimony in civil harassment proceeding, but full-fledged evidentiary hearing with oral testimony from all sides may not be necessary in all cases]; Nora v. Kaddo (2004) 116 Cal.App.4th 1026, 1028-1029 [court erred by prohibiting all live testimony in harassment proceedings].)
The record further does not show that the time limits generally affected Roberts ability to defend himself, i.e., what evidence on what topics he was precluded from offeringhis own testimony touched on all major topicsor how that evidence would have changed the result. Thus, there has been no showing of prejudice that would warrant reversal even if the claim had not been forfeited.
IV. The Courts Exclusion of Evidence
A. Noftsingers Relationship With Her Friend
Without any citation to the record, Robert contends that the court abused its discretion by excluding certain testimony, which concerned Noftsingers relationship with her friend, a student athlete, who was with her when they observed Robert on the street in San Francisco near Noftsingers home. Roberts counsel attempted to elicit the testimony on cross-examination in an attempt to insinuate that the relationship was romantic in nature. Noftsingers counsel objected to the testimony and moved to strike what had been elicited on the grounds that the matter exceeded the scope of direct and further that it was irrelevant. Roberts counsel offered that the testimony was relevant for impeachment purposes but that he had really only wanted to show that the two were very close and at least very good friends. The court responded that it was okay with [the characterization of the two being] very good friends but reminded counsel that Noftsinger was not on trial here and that there would be no evidence admitted about Noftsinger and her friend having a romantic relationship. The court struck what testimony along that line had already been given and Roberts counsel replied, Thats fine.
On appeal, Robert contends that the courts exclusion of evidence of the nature of Noftsingers relationship with her friend was error. But based on Roberts counsels acquiescence in the courts ruling, this claim too has been waived for appeal. (Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335, 344; Sperber v. Robinson (1994) 26 Cal.App.4th 736, 742-743 [waiver results by action that demonstrates acquiescence in the error].) Even were we to consider the claim, as noted by Stanford, the court is vested with broad discretion to keep cross-examination within reasonable grounds. (People v. Jones (1962) 207 Cal.App.2d 415, 421-422; Evid. Code, 765, 352.) Robert has not demonstrated an abuse of that discretion. Nor has he shown prejudice. For all these reasons, we reject the claim.
The order in Stanfords favor enjoining workplace violence or credible threats of violence by Robert is affirmed.
Mihara, Acting P.J.
 We likewise affirm in a companion case filed this day in which Sarah Noftsinger personally sought and obtained a similar order against Robert for an injunction prohibiting civil harassment under section 527.6. (Noftsinger v. Robert (H032973, Nov. 23, 2009) [nonpub. opn.].)
 This section provides that an employer, whose employee has suffered unlawful violence or a credible threat of violence from any individual, [which] can reasonably be construed to be carried out or to have been carried out at the workplace, may seek a temporary restraining order and an injunction on behalf of the employee. ( 527.8, subd. (a).) Unlawful violence is any assault or battery, or stalking as prohibited by Penal Code section 646.9, but does not include lawful acts of self-defense or defense of others. ( 527.8, subd. (b)(1).) Penal Code section 646.9, subdivision (a) in turn provides that any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family, is guilty of the crime of stalking. A credible threat of violence is defined as 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, and that serves no legitimate purpose. ( 527.8, subd. (b)(2).) 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 employee to or from the place of work; entering the workplace; following an employee during hours of employment; making telephone calls to an employee; or sending correspondence to an employee by any means, including, but not limited to, the use of public or private mails, interoffice mail, fax, or computer e-mail. ( 527.8, subd. (b)(3).) The court must hold an evidentiary hearing on the petition and if the judge finds by clear and convincing evidence that the defendant engaged in unlawful violence or made a credible threat of violence, an injunction shall issue prohibiting further unlawful violence or threats of violence. ( 527.8, subd. (f).)
 This section provides that a person who has suffered harassment as defined may seek a temporary restraining order and an injunction prohibiting harassment. ( 527.6, subd. (a).) It further defines harassment to include unlawful violence, a credible threat of violence, or 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. Unlawful violence is defined to include any assault or battery, or stalking as prohibited by Penal Code section 646.9 but shall not include lawful acts of self-defense or defense of others. ( 527.6, subd. (b)(1).) A credible threat of violence under section 527.6 is 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 and that serves no legitimate purpose. ( 527.6, subd. (b)(2).) 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).) The statute also provides for the court to hold an evidentiary hearing on the petition and if the court finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment. ( 527.6, subd. (d).)
 Yet another deficiency with this contention is Roberts failure, with one exception, to have cited the record in support of it in his opening brief. (Rule 8.204(a)(1)(C).) Issues may be considered waived if a partys brief fails to adequately cite support from the record. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)