Earls v. Lee

Filed 6/30/08 Earls v. Lee CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Mari-Lynne Earls (Earls) appeals an order, filed August 3, 2006, granting her neighbor Elizabeth Lees (Lee) petition for an injunction against Earls pursuant to Code of Civil Procedure section 527.6.[1] The court also denied Earls petition for similar relief against Lee, ruled that Lee was not in contempt of any court order, and provided that a prior temporary restraining order against Lee, if it was still in effect, should be dissolved. The court further provided that Lee was the prevailing party for the purpose of an attorney fee award.[2]

Earls contends the August 3, 2006 order granting Lees petition must be reversed because: (1) a different judge had already denied Lees request for permanent injunctive relief, and Lee did not satisfy the requirements for reconsideration pursuant to section 1008; (2) Lee did not file a new petition, and the oral request Lee made at the evidentiary hearing failed to give Earls adequate notice or opportunity to defend; and (3) no substantial evidence supports the injunction.

We shall hold that the first two procedural claims of error are without merit because they are based upon the incorrect premise that a prior order continuing in effect temporary mutual restraining orders constituted a final determination of the merits of Lees section 527.6 petition. We shall also find that substantial evidence supports the injunctive relief granted, and shall affirm the order.

Facts[3]

In 1998 Elizabeth Lee and her husband, Joseph, purchased a home at 155 Parkside Drive in Berkeley, where they and their four children now live. Earls owned the adjoining property at 153 Parkside. The conflict between these neighbors centered around a fence between their properties.

After a series of temporary orders and continuances, the court, on July 10 and 11, 2006, heard the following evidence.

1. The Original Fence

The original fence traveled from the rear of the properties to the back corner of Earls garage, which had its south wall on the property line. A separate fence resumed from the front corner of the garage out to the street. Before the Lees moved in, Earls replaced her garage and relocated it approximately two feet away from the property line. Earls then built a new grape-stake fence section angling over from the end of the original fence to the back corner of her new garage. According to Earls, she constructed this angled portion so that it could be removed and opened by removing four nails, and then reinserting them, thereby providing her with access to this strip of her property. The relocation of the garage and the new angled fence left a 23-inch strip of Earls property along the length of the garage undivided from the Lees property.

2. The Second Fence

In the summer of 2003, the Lees decided to landscape their backyard. They proposed to Earls that they would replace the grape-stake fence, which was about 40 years old, with a new redwood fence, at their expense. The Lees tore down the original grape-stake fence with Earls permission. Lee and her contractor testified that the new redwood fence was placed eight inches further inside the Lees property line than the original fence out of respect for [Earls] landscaping. The Lees also attempted to replicate the short section bridging the gap between the fence and the rear corner of the Earls garage. Earls asked Joseph Lee to restore the grape-stakes on her side of that angled portion, and the contractor did so on June 20.

A week later Earls attended a party in the Lees backyard. She observed that the new landscaping extended up to the side of her garage, and that the Lees had built a bench that encroached eight inches onto her property. She also noticed that the angled portion of the fence connecting to her garage was a permanent barrier. The next day she told Joseph Lee that she wanted to discuss continuing the fence alongside the garage between their two properties. A few days later, while the Lees were out to dinner, their daughter called to tell them that Earls was knocking down the fence. After they came home and observed the damage to the angled portion of the new fence, the Lees wrote Earls asking her to explain the problem so that they could fix it, and in the meantime not to damage any more of the fence.

When Earls nevertheless returned the next day to remove more of the fence, they asked what she was doing, and she replied she had left a note in their mailbox. The note stated that she had not given the Lees permission to upgrade her property,[4] or to change the position of the fence connecting to her garage from a right angle to a 60-degree angle. Earls proceeded to take down this portion of the new redwood fence and put back in place the grape-stake fence at more of a right angle, leaving a six-inch gap between the fence and her garage. Joseph Lee, thinking Earls had fixed the problem with the position of the fence, then rebuilt and resurfaced it. When Earls saw he had done this she declared: This is war. She spray-painted the rebuilt portion, and subsequently cut that portion of the fence down. Earls also filed a small claims court action against the Lees in which she alleged they had destroyed her grape-stake fence without her permission.

3. Failed Attempts at Settlement

The Lees hired an attorney and a surveyor, who established the property line. The Lees learned that a 23-inch wide strip of property alongside the garage belonged to Earls. They also learned that a 50-year-old staircase platform from their deck encroached six inches across the property line. Lee wrote to Earls, explaining that there had been a misunderstanding, that they did not intend to annex her property, and that they now wanted to build a fence on the property line. Lee proposed that if Earls would drop the small claims action, they would not sue for the damages caused when Earls removed the portion of the fence on the Lees property. The Lees would also shave six inches of the staircase platform back to the property line and, at their mutual expense, the neighbors would continue the redwood fence on the property line alongside the garage.

Earls found this offer unacceptable, and screamed at Lee over the telephone. She began posting signs in the area alongside her garage, hammering stakes, and erecting things. She also threatened to cut down part of the stairway platform. The Lees were about to leave for vacation and were concerned about these threats, so they installed a video security system. When the Lees returned, they found the staircase platform had been spray-painted, and the bench had been sawed apart.

Upon advice of their attorney, the Lees filed a quiet title action so they could build a fence separating the two properties without further disputes. A few days later, Earls entered the area alongside her garage and sprayed pesticide in the vicinity of the children and adults who were gathered in the Lees yard for a Labor Day picnic. Lee was particularly concerned because she was pregnant at that time. Lee asked her attorney to get a restraining order against Earls until the quiet title action could be heard, and a fence built.

At a court hearing the parties agreed that a new fence was needed, and on September 5, 2003, they signed an agreement allowing the Lees to build a new fence all the way along the property line, and an agreement that no one would enter the strip along the garage until the fence was built. Earls testified that the Lees also agreed that she could resurface her side of the fence with grape stakes so there would be some design continuity with her other fences. The settlement collapsed within days, and was later vacated, because Earls almost immediately went into the area alongside her garage with a work crew before the new fence was built. The Lees wrote to Earls telling her that because she had breached the settlement they would not allow her to attach grape stakes on her side of their fence that they had built on their property. Earls nevertheless persisted in her attempts to nail or otherwise attach grape stakes on her side.

4. The third and fourth fences[5]

In July of 2004, the Lees, tired of the attempts by Earls to attach her grape stakes and hammer on their fence, hired a contractor to tear down the damaged redwood fence and replace it with a chain-link fence facing Earls property and a redwood fence facing the Lees property. Both were constructed on the Lees side of the property line. They installed the chain-link fence to protect their fence from vandalism by Earls.

When Earls first saw the crew taking down the redwood fence, she confronted the crew and called the police. The responding officer left after being assured the fence they were taking down and the fences they were going to build were only on Lees property. Earls continued to verbally harass the crew. She warned that if the fence was ugly she would cut it down or paint it. She also sprayed the workers with her garden hose. Lee hired a security guard for that night. The next morning Earls continued the verbal harassment, and hammered nails into the fence panels. The contractor again called the police to put a stop to Earls interference. When the contractor returned the next day, the fence posts had been cut off at the base and the chain links were peeled back. The contractor called the police yet again, and Joseph Lee came home to meet with two police officers. They viewed a videotape from the surveillance camera showing Earls cutting down the posts with a power saw. Earls admitted at trial she resorted to cutting down the fence after her attorney had unsuccessfully sought an injunction against further construction. She continued to claim that she had a right to dismantle the chain-link fence, because it encroached on her property.

5. Other incidents of harassment

The relationship between the neighbors continued to deteriorate. Earls scratched the Lees car with a key, took their trash cans, left notes on their cars accusing them of trespass and harassment when they were parked on their own property, and took additional boards out of the fence so she could photograph the Lees using their backyard. She also moved their cameras out of position, sprayed them with water, and obscured the lens. Earls believed the Lees were using their interior lights to disturb her sleep, and responded by installing large spotlights, which she positioned to shine in the childrens bedroom windows. She also made late night telephone calls to their home, and called and emailed Lees office. Her conduct frightened the children, causing nightmares, and causing Lee also to be fearful.

On January 13, 2005, there was an obscenity-filled encounter between Earls and Lee on Claremont Avenue.[6] Lee testified that Earls followed her for approximately a block screaming obscenities, and ignoring Lees request that Earls stop following her. Lee immediately reported the encounter to the police, and also reported the events of the night before, when Earls had upset her nanny and children by speaking to them from the dark outside their kitchen window.

In February 2005, Earls filed her petition for a section 527.6 injunction against Lee with a supporting declaration accusing Lee of instigating the January 13 encounter, screaming obscenities at Earls, and falsely accusing Earls of stalking her, and invading Earls privacy by the use of surveillance cameras. A short while later, Lee filed her petition seeking an order against Earls to stop the civil harassment of Lee, her husband, their children and two babysitters. The court issued temporary restraining orders (TROs) against each of them, but for a variety of reasons the usually expedited evidentiary hearing provided for in section 527.6, subdivision (d), in both cases was repeatedly continued either at the request of the parties or by the court.

6. The fifth and sixth fences[7]

In the meantime, the Lees again replaced the vandalized chain-link and redwood fences. Earls sought a court order to have the chain-link fence removed as a nuisance. Her request was denied on June 12, 2006. A few days later, the Lee family left for a vacation. While away, they received a call from their house-sitter telling them that workers were tearing down the fences. The workers told the house-sitter they had been hired by Earls, and they refused to stop. The Lees, from their vacation location, called the police, who stopped the workers. Nevertheless, the next morning another crew showed up and continued to dismantle the fences.

Earls testified that she removed their encroaching, trespassing fence only partially, its still got lots of it there. She acknowledged that Detective Lopes told her that he would arrest her if she destroyed property on the Lees land. Nevertheless she felt unconstrained because she considered his action to be based upon the Lees lie, and filed a complaint against Detective Lopes with internal affairs.[8] She also acknowledged the work crew returned the next morning and dismantled more of the fence, but denied that she ordered them to do so. She claimed she had only asked them to clean up. In any event, the house-sitter again contacted the Lees, and the police again came to the property to order the men to stop work. The Lees were forced to hire another security guard because the house-sitter feared for her safety.

7. The Courts Decision

In its memorandum of decision, the court found that Earls was not entitled to a civil harassment restraining order against either of the Lees.[9] It further found the TRO against Lee was based primarily on Ms. Earls untrue version of what happened on January 13, 2005. After now hearing both Ms. Earls and Mrs. Lee testify at length, I find that Ms. Earls was the instigator of the incident that day. The court found that the installation of security cameras by the Lees was not harassment, and directed that the TRO against Lee be terminated. It specified the denial of Earls petition for a section 527.6 injunction was without prejudice to Ms. Earls seeking a restraining order in the future if the use of security cameras greatly increases.

The court further found that the Lees are entitled to a CLETS[[10]] order protecting them from misconduct by Ms. Earls. [] I could go through all that Ms. Earls has put the Lees through (well summarized in [Lees] closing brief) but . . . [i]t is enough to point out that Ms. Earls has torn down portions [of] the Lees fence four times. Only in the first of these four times did she have an arguable right to remove part of it. The last time, in June 2006, her conduct was especially egregious. The weight of the evidence is that the fence was 100% on the Lee property. At most a de minimums portion of a footing may have intruded on Ms. Earls property. Even if that were the case, she had no right to damage or remove the fence. What she did was a conscious violation of the TRO, which prohibited . . . destroying the personal property of the Lees. The court also determined that Lee was the prevailing party for the purpose of an attorney fee award. The signed order after hearing was filed on August 3, 2006.

Analysis

I.

Procedural Error

Section 527.6 provides an expedited procedure for a person who has suffered civil harassment to obtain an injunction. An initial temporary restraining order may be obtained ex parte. ( 527.6, subd. (c).) Prior to issuing a permanent injunction, the court, however, must hold a hearing, receive relevant testimony, and issue the injunction if it finds, by clear and convincing evidence, that harassment exists. [Citation.] Any willful disobedience of such an injunction is punishable as a misdemeanor. [Citation.] (Nora v. Kaddo (2004) 116 Cal.App.4th 1026, 1028.)

Earls first raises two procedural claims of error with respect to the permanent injunction the court entered against her. She contends: (1) The court erred by issuing the injunction because a different judge, after a hearing on November 10, 2005, had already denied Lees petition, and the requirements for reconsideration pursuant to section 1008 were not met; and (2) it was an abuse of discretion to grant injunctive relief because Lee had not filed a new petition, and the oral request at the hearing failed to provide Earls with adequate notice and opportunity to defend. Both contentions are based upon the incorrect premise that, on November 10, 2005, the court entered a final order denying Lees petition for permanent injunctive relief.

Relevant Procedural History

The order appealed from arises out of two separate lawsuits, Earls v. Lee (Super. Ct. Alameda County, 2005, No. BG05197210) and Lee v. Earls (Super. Ct. Alameda County, 2005, No. BG05201136), which were eventually consolidated. The court issued a TRO against Lee, and a few weeks later issued a TRO against Earls.

Even before an evidentiary hearing could be held pursuant to section 527.6, subdivision (d), disputes arose over alleged violations of the TRO. For that, and other reasons, by stipulation, the court continued the matter for a contempt hearing and a hearing on a permanent order. It thereafter extended the temporary orders in both cases multiple times without objection from the parties.

After a November 10, 2005 hearing, the minutes stated that the court did not find sufficient evidence to issue a CLETS order at this time. (Italics added.) The court adopt[ed] the agreement between both parties in a form of a Non CLETS [mutual] Court Order that shall remain in effect until [the next scheduled hearing date,] January 20, 2006. In a signed order, the court repeated these terms, but did not specify how long the mutual order was to remain in effect.

On January 20, 2006, the court again continued hearing on both cases until April 28, 2006, stating only that all current orders were to remain in effect. In anticipation of the April 28, 2006 hearing, Earls filed an application for an order to show cause (OSC) for contempt based upon her declaration that Lee was violating the November 10, 2005 order then in effect by failing to lower her surveillance cameras, and not covering her windows when the interior lights were on. Lee opposed the contempt OSC, and filed a memorandum of points and authorities in support of her request that the court issue a permanent injunction against Earls pursuant to section 527.6. After several more continuances, the matter finally was set for a long cause evidentiary hearing on July 10 and 11, 2006.

At the July 2006 hearing, the court was initially confused about whether the November 10 order was a permanent order, and what issues were before the court for trial.[11] Earls counsel asked the court to find Lee in contempt, to dissolve the TRO and any injunctions against Earls, and to issue a permanent injunction against [Lee]. Lees counsel stated that the November 10 order maintained the temporary restraining orders . . . the operative word there being temporary. There has never been a 527.6 hearing on the issue of some permanent injunction, and asked the court to hear evidence on Lees request for a permanent injunction. Earls counsel did not disagree with this characterization of the prior proceedings, nor did he assert that Lees request for a permanent injunction had already been denied. Instead, he proceeded to outline to the court the witnesses he was prepared to present on his request for a contempt citation against Lee, and expert testimony he intended to offer in defense of Lees request for a permanent injunction against Earls.

After a recess, the court stated: I think I do now understand completely what is here . . . and that would be the contempt matter and then the question of the duration and terms of any permanent injunction. Counsel for Lee and for Earls expressly agreed that the court correctly stated the issues to be tried.

Analysis of Claimed Procedural Errors

Pursuant to section 527.6, as with any other petition for injunctive relief, the court may grant a temporary restraining order pending a final determination of the merits after an evidentiary hearing, which would normally be held within the time specified in section 527, subdivision (d). This case is unusual because, after the court granted a TRO in each case, instead of holding an evidentiary hearing on their respective requests for permanent injunctions, the matter was continued many times for various reasons, but without objection from the parties, before the court reached the issue of permanent injunctive relief. Disputes also arose over violations of the TROs. As best we can determine from the foregoing summary of the record,[12] the November 10, 2005 order merely addressed some issues relating to claimed violations of the TROs by Lee and adopted the parties agreement to a non CLETS mutual restraining orders to remain in effect until the next scheduled hearing. It was merely one of many interim orders the court made pending a final determination on the merits of both parties petitions for permanent injunctive relief.

As support for her assertion that the November 10, 2005 order constituted a final decision denying Lees request for permanent injunctive relief, Earls assigns great importance to the courts initial observation at the July 2006 hearing that the November 10 order did not include a termination date and that it therefore appeared to be in the nature of a permanent order. This reliance is misplaced because, after reviewing the entire file, the court clearly concluded that the November 10 order was not a permanent order, and that it therefore would determine the terms and duration of any permanent injunction. The courts conclusion was consistent with the minutes of the November 10 hearing that specified the November 10 order was to remain in effect until the next scheduled hearing, not indefinitely, or for the term provided in section 527.6. Moreover, the parties own actions illustrated that they too understood the November 10 order to be only an interim temporary order because at the outset of the July hearing both Lee and Earls asked the court for permanent orders.[13] They also both agreed that the court correctly stated that the issues to be tried were the issue of contempt, and the duration and terms of any permanent injunction.

Earls first procedural objection that Lee sought and obtained reconsideration of the November 10 order without the requisite notice or showing of new evidence pursuant to section 1008 therefore fails. It is premised upon the incorrect assertion that the November 10 order was a final order denying Lees petition for permanent injunctive relief. Our review of the record satisfies us that the November 10 order was not a final order denying Lees petition. In the absence of a prior order denying Lees request for permanent injunction, Lee need not have complied with the notice and substantive requirements set forth in section 1008 for reconsideration.

For the same reason, Earls second procedural objection that the court abused its discretion by granting permanent injunctive relief based only upon an oral request at the evidentiary hearing also fails. In Nora v. Kaddo, supra, 116 Cal.App.4th 1026, the court held it was an abuse of discretion to issue mutual restraining orders based upon a defendants oral request for such relief at the evidentiary hearing when the defendant had failed to file a cross-complaint seeking injunctive relief against [plaintiff], and presented no evidence of harassment. (Id. at p. 1029; see also Kobey v. Morton (1991) 228 Cal.App.3d 1055, 1059-1060 [court abused its discretion in granting mutual injunctive relief over petitioners objection that respondent had not filed a cross-complaint seeking injunctive relief].) The court reasoned that in the absence of a petition or cross-complaint seeking such relief, petitioner had no notice, and was deprived of a meaningful opportunity to defend. (Nora v. Kaddo, at p. 1029.) Earls argues that similarly, here, the court erred by granting Lees oral request for permanent injunctive relief because Lee no longer had a pending petition against Earls in light of the November 10 order that Earls asserts constituted a denial of Lees request for permanent injunctive relief. Since we have determined that the November 10, 2005 order was not a final determination of the merits of Lees petition, Lees petition was still pending, and the relief the court granted was not based merely upon an unnoticed oral request at the evidentiary hearing. Earls had ample notice of the relief Lee sought, and of the arguments Lee would make in support of her request. Lees petition was filed on March 3, 2005, almost a year and a half before an evidentiary hearing was finally held. Lee also filed her memorandum of points and authorities in support of her request for permanent injunctive relief on April 27, 2006, approximately two and a half months before the hearing was finally held.

In any event, even if we were to accept Earls premise that the court had previously denied Lees petition, any error in proceeding either to reconsider the prior order, or granting permanent injunctive relief based only upon Lees oral request, was invited by the explicit agreement of Earls counsel on the record to the courts statement of issues for it to decide. Moreover, Earls did not raise any objection that Lees petition had already been denied in the November 10 order, or object to evidence Lee presented on the ground that it was not newly discovered. Instead, Earls proceeded to present her own evidence and submit the matter to the court in accordance with the issues as stated by the court at the outset of the hearing. Only after having achieved an unfavorable outcome does she now assert that the November 10, 2005 order should be construed as denying Lees petition for permanent injunctive relief against Earls and that the court should have deemed Lees request for permanent injunctive relief at the subsequent hearing as a motion for reconsideration, and denied it. The doctrine of waiver ordinarily prevents a party from arguing for the first time on appeal questions that were not presented to the trial court. [Citations.] The doctrine of invited error prevents a party from asserting an alleged error as grounds for reversal when the party through its own conduct induced the commission of the error. [Citations.] Related to these doctrines is the doctrine of theory of trial: Where the parties try the case on the assumption that a cause of action is stated, that certain issues are raised by the pleadings, that a particular issue is controlling, or that other steps affecting the course of the trial are correct, neither party can change this theory for purposes of review on appeal.  (County of Los Angeles v. Southern Cal. Edison Co. (2003) 112 Cal.App.4th 1108, 1118.) Based on all of these doctrines, we conclude that by expressly agreeing that the issues before the court included the terms and duration of any permanent injunction in both cases, and actively litigating the issues agreed upon without any objection, Earls is barred from asserting on appeal that the court in a prior order had already denied Lees request for permanent injunctive relief against Earls, and that Lees request should have been deemed a motion for reconsideration, and denied for failure to comply with section 1008, or denied on the grounds that she did not file a new petition prior to the evidentiary hearing.

II.

Sufficiency of the Evidence

Earls next contends that there was no substantial evidence to support the factual findings of unlawful harassment underlying the courts exercise of its discretion to issue a permanent injunction against her.

The elements of unlawful harassment are: (1) unlawful violence, a credible threat of violence, or a knowing and willful course of conduct (2) directed at a specific person (3) that seriously alarms, annoys, or harasses the person and (4) serves no legitimate purpose. ( 527.6, subd. (b).) 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. (Ibid.) In 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. (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.)

Earls argues that the evidence did not establish that she tore down Lees fence four times because on two occasions all she did was remove the portion of the fence angled from the redwood fence built on Lees property, across Earls property to the corner of her garage. Even if we accept arguendo that Earls had a right to destroy the fence encroaching on her property, Lee and the contractor testified that the first new redwood fence was placed eight inches within Lees side of the property line, and therefore substantial evidence supports the conclusion that at least a part of the angled fence that Earls removed was on the Lee property.

In any event, there was also substantial evidence that Earls twice more tore down fences built entirely on the Lee property, and that when she did so in 2006 her acts were in clear violation of a TRO prohibiting her from destroying Lees personal property. Earls admitted at trial that in July 2004 she dismantled the chain-link fence, but claimed it was on her property. The court instead credited the testimony of Lee and her contractor that the fences were on Lees property. Earls also admitted that in June 2006 she partially removed [Lees] encroaching, trespassing fence. She further acknowledged that her work crew returned the next morning and dismantled more of the fence, but denied that she ordered them to do so. The court, as trier of fact, was free to discredit her assertion that she did not order the further dismantling, and instead infer that the work crew acted on orders from Earls.

Earls also asserts that the 2004 fence destruction incident must be disregarded because it occurred two years prior to the July 2006 hearing, and the most recent incident of fence destruction in 2006 was merely a single incident, not a course of conduct warranting injunctive relief. (See Leydon v. Alexander (1989) 212 Cal.App.3d 1, 4 [as a matter of law, a single incident does not constitute a course of conduct].) There was, however, substantial evidence of far more than a single incident of fence destruction in 2006. We have already summarized the substantial evidence supporting the courts finding that Earls destroyed at least portions of the Lees fence that were on their own property on four occasions. The 2004 incident was not merely an isolated incident too far in the past to be considered as part of the course of conduct, in light of the evidence that Earls engaged in similar conduct both before and after 2004, and even after the court had issued a TRO against destroying Lees property.

Nor is there merit to Earls assertion that because her conduct involved property damage, not personal injury, there was no substantial evidence of a course of conduct that would cause a reasonable person to suffer substantial emotional distress and actually did cause Lee such distress, and which seriously alarmed, annoyed, or harassed Lee and served no legitimate purpose ( 527.6, subd. (b).) A 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, including, but not limited to, the use of public or private mails, interoffice mail, fax, or computer e-mail. Constitutionally protected activity is not included within the meaning of course of conduct.  ( 527.6, subd. (b)(3).) Here, in addition to the destruction of fences, not once but multiple times, there was evidence that Earls repeatedly called the Lees in the middle of the night and hung up when they did not answer, leading Lee to get permission to install an SBC trap, which trapped many calls from Earls, some made after midnight. She also cut off Lees bench with a saw, sprayed Lees security cameras with a garden hose, sprayed pesticide within close proximity to the Lees and their guests, and then wrote a letter to Lees obstetrician falsely stating that if Lee was exposed to pesticide it was only because Lee jumped on Earls while she was spraying. There was also evidence that Earls frightened the Lee children by standing outside the Lees kitchen window after dark and speaking to them, and engaged in many other acts of harassment we need not enumerate. Also, although Earls gave a very different account, the court explicitly credited Lees account of the January 13, 2005 screaming encounter between Lee and Earls, which included following Lee as she walked on a public street, and screaming obscenities at her. Lee was sufficiently disturbed that she called the police to report the incident. Speech which is for the purpose of harassment is not protected speech. (See, e.g., Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1409-1410; Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1250.) The court properly concluded based upon the circumstances that the only purpose of Earls screaming of obscenities was to harass and intimidate Lee. Earls contention that she did not actually admit to many of the foregoing acts, or denied committing them, or that viewed in isolation they are to too trivial to constitute a course of conduct of civil harassment, is unavailing. The court was free to credit other conflicting testimony and evidence that she did commit these acts. Nor was the court, as trier of fact, required to accept Earls innocent explanations or suggestions of a legitimate purpose other than harassment for her behavior. As trier of fact, the court also was free to view the evidence as a whole, including incidents which, if viewed in isolation, might seem trivial, but which cumulatively would constitute a harassing course of conduct.

In sum, we have no difficulty concluding that there was substantial evidence of a course of conduct as defined in section 527.6, subdivision (b). Moreover, in light of the evidence that other means, such as installing surveillance cameras, hiring house-sitters while traveling, hiring security guards, and obtaining a TRO, failed to deter Earls from proceeding with the most recent 2006 fence destruction, the court was well within its discretion to issue the CLETS order Lee had requested.

Conclusion

The August 3, 2006 order is affirmed. Respondent is entitled to her costs on appeal.

_________________________

STEIN, Acting P. J.

We concur:

_________________________

SWAGER, J.

_________________________

MARGULIES, J.

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[1] All subsequent statutory references are to the Code of Civil Procedure unless otherwise indicated.

[2] Earls does not seek review of the courts decision not to hold Lee in contempt, or of its decision to deny Earls petition.

[3] We summarize the facts in the light most favorable to the judgment. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 787), and shall discuss conflicting evidence only as relevant to our analysis of Earls contention that no substantial evidence supports the judgment. We also reserve a summary of the procedural facts for our analysis of Earls first two procedural claims of error.

[4] This was an apparent reference to the new landscaping going up to the wall of her garage. At this time the Lees did not realize that their property line was actually 23 inches away from the garage wall.

[5] Lees contractor described this new construction as consisting of two separate fences. Earls contends that it was actually a single fence constructed of redwood with a chain link backing. This factual dispute is ultimately immaterial, but because all conflicts must be resolved in favor of the judgment in reviewing the sufficiency of the evidence, we shall assume that court credited the description provided by Lees contractor.

[6] Although each claimed the other was the aggressor, the court in its decision credited Lee and found that Earls was the instigator of the incident that day.

[7] See footnote 5, ante.

[8] Detective Lopes was not the only person who become the target of Earls accusations and complaints. She also reported the fencing contractors crew supervisor and her employer to the State Contractors Licensing Board, a district attorneys investigator to her supervisors, Lees prior attorney to the State Bar, and wrote letters to clients of Lees expert on violence assessment.

[9] Earls petition named only Elizabeth Lee as a respondent.

[10] CLETS stands for the California Law Enforcement Telecommunications System statute, which authorizes punishment under the Penal Code for willful disobedience of terms of the injunction. ( 527.6, subd. (j).)

[11] Earls counsel explained one of the reasons for the many continuances was that whenever the parties appeared in court on the TRO issues, the court would realize that it really is a long cause hearing, and the case would be continued.

[12] The transcript of the November 10, 2005 hearing is not included in the record on appeal.

[13] Lees counsel stated, [W]e are here. . . for issuance of permanent injunctions to prohibit harassment under CCP Section 527.6. Earls counsel stated that in addition to presenting evidence with respect to her contention Lee had failed to comply with the November 10 order to adjust cameras and lighting, wed like a permanent injunction.