Carroll v. Weiner

Filed 2/25/10 Carroll v. Weiner CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Shasta)

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Mobile home park resident Robert C. Carroll obtained a civil harassment restraining order against Mark Weiner, the sole representative of the corporation that owns the park. In this pro se appeal, Weiner claims the order is not supported by substantial evidence of an actual threat of future harm. We reject his contention and affirm the order.

BACKGROUND

Since ownership of the mobile home park where Carroll has lived for several years changed in or about 2007, Carroll has had several conflicts with the new owner, Mark Weiner.

For example, between September 2007 and March 2008, Weiner sent Carroll three notices requesting he immediately remove a makeshift building from his carport, and clean up his property. Weiner also sent Carroll a notice that his tenancy was being terminated based on an August 2007 incident in which Carroll was arrested for driving drunk in the park and shouting profanities, and Carrolls lengthy criminal history. For his part, Carroll became involved in organizing a park tenants group to file a class action lawsuit against the owner, to handle the situation and get[] back rent and stuff. Carroll brought a small claims action against the corporate owner and Weiner individually, seeking damages for 16 alleged violations of the California Mobilehome Residency Law, all but one of which were found to be meritless.

A single incident prompted issuance of the instant order. On the afternoon of March 6, 2008, Weiner and Craig Barker, an employee of Weiners management company, were clearing leaves and debris from a vacant space next to the space occupied by Carroll. Barker was operating a small bobcat tractor; Weiner was raking leaves.

Perceiving the work that Weiner and Barker were doing as a possible threat that could damage his property, Carroll left his mobile home with a camera, walked onto and through the vacant space where Weiner and Barker were working, and started taking pictures. Barker told Carroll to get out of the way. Weiner also told Carroll to leave, because he was on private property and trespassing. As Weiner yelled, Carroll kept taking pictures; Carroll then pointed his finger at Weiner and said, youre going to jail.

Weiner grabbed Carroll by the shoulders, and ran him backward about four steps against the neighbors wall. Both men were yelling. Weiner made a fist as though to strike Carroll, and Carroll banged on the neighbors wall and called for help. The neighbor told Carroll to go home. Weiner, who had been blocking Carrolls path, stepped aside and also told Carroll to go home.

Carroll applied for a civil harassment restraining order against Weiner.[1] (Code Civ. Proc.,  527.6; undesignated statutory references are to the Code of Civil Procedure.) The acts Carroll identified to justify his request were the March 6 incident, threats of eviction, 60 day eviction notice and lie[s] to police by Weiner (some capitalization omitted). Asked whether Weiner engaged in a harassing course of conduct, Carroll answered yes and wrote, I no longer leave my home alone, one of us stays at all times! I am scared that they will plant drugs or burn us out!

In the weeks after this incident, Weiner filed a civil complaint against Carroll seeking damages and injunctive relief for alleged civil rights violations, trespass, and intentional infliction of emotional distress based on the March 6 incident, and alleged Carroll said, I am going to fuck up both you and your family while poking Weiner in the chest. The corporation brought a small claims action for asphalt damage in the park allegedly committed by Carroll during his August 2007 DUI incident.

At the trial of Carrolls request for a restraining order, on cross-examination, Carroll admitted he had never received a harassing or threatening letter or phone call from Weiner and there had been no altercation between them since the March 6 incident. He nonetheless insisted the eviction notices he had received made him fear for the safety of his home, and he fears Weiner is going to burn [him] out or plant drugs in [his] trailer.

For his part, Weiner denied pushing Carroll onto the neighbors property, cocking his fist, or blocking Carrolls path.[2] Rather, Weiner testified (consistent with his civil complaint) that Carroll poked him in the chest and threatened Weiner and his family; only then did Weiner push Carroll out of his face.[3]

Observing that [i]ts pretty obvious these parties dont get along with each other, the court concluded, there is clear and convincing evidence that there was an assault[,] in that Weiner touched Carroll in a way that would be to the level of an assault[.] Moreover, the court opined, I think there is some danger that it could happen again, given the proximity of the parties.

The court ordered only that Weiner refrain from assaulting . . . [Carroll] for a period of three years and ruled that, for the purposes of Code of Civil Procedure 527.6, subdivision (i) there is no prevailing party in these matters and no order for costs of suit or attorney fees as costs of suit is made as to any party herein.

DISCUSSION

I. Standard of Review

Injunctions issued under section 527.6 are reviewed to determine whether the necessary factual findings are supported by substantial evidence. (See USS-Posco Industries v. Edwards (2003) 111 Cal.App.4th 436, 444.) 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.)

II. Civil Harassment Injunctions

Before discussing the merits of this appeal, we briefly review the legal principles guiding our analysis.

A person who has suffered harassment may seek an injunction prohibiting harassment.[4] ( 527.6.) Harassment is defined as 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. 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).)

Unlawful violence means any assault or battery, or stalking. ( 527.6, subd. (b)(1); Pen. Code,  646.9.) 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. ( 527.6, subd. (b)(2).)

Course of conduct is 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).)

The court must conduct a hearing on the petition for an injunction. ( 527.6, subd. (d).) The defendant may file a response that explains, excuses, justifies, or denies the alleged harassment or may file a cross-complaint under this section. At the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment. An injunction issued pursuant to this section shall have a duration of not more than three years. (Ibid.)

III. Evidence of Threat of Future Violence

Weiner argues there was no evidence of a threat of future harm and that such evidence was necessary before the trial court could properly issue an injunction.

Even though the statute does not require a finding that a threat of future harm exists, one court has held with regard to a similar statute, that a plaintiff must establish a threat of future harm to obtain an injunction. (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 327 (Scripps).) Scripps reasoned that a literal reading of the statute would result in the absurd consequence of placing a greater burden of proof on a plaintiff to obtain an ex parte TRO [temporary restraining order] than a permanent injunction because a TRO requires a showing that great or irreparable harm would result due to the likelihood that unlawful violence would recur. (Id. at pp. 334-335.) Scripps concluded a plaintiff must show that, at the time of the hearing, unlawful violence or the threat of violence currently exists. (Id. at p. 335.)

In Scripps, a health clinic was granted a restraining order against a patients son after the son assaulted a clinic employee during a meeting about the patient. (Scripps, supra, 72 Cal.App.4th at pp. 328-329.) The appellate court reversed, finding there was no evidence the son was likely to commit further acts of violence, as there had been no prior or subsequent threats and it was unlikely he would return to Scripps as a patient. (Id. at p. 336.)

The case of Russell v. Douvan (2003) 112 Cal.App.4th 399 (Russell) extended the holding of Scripps to the statute at issue here, section 527.6. The court in Russell reversed an order issuing an injunction against an attorney who had committed only one violent act against his opposing counsel, where the plaintiff no longer represented a party in the underlying litigation and the attorneys did not regularly have contact. (Russell, supra, 112 Cal.App.4th at pp. 400-401.) However, the court noted, [t]here may well be cases in which the circumstances surrounding a single act of violence may support a conclusion that future harm is highly probable. That finding, however, must be made and the court failed to do so here. (Id. at p. 404.)

In this case the trial court did not make a finding that future harm was highly probable, (see Russell, supra, 112 Cal.App.4th at p. 404) only that there is some danger that it could happen again[.] This finding of a potential for further violence was sufficient. Although Russell states that future violence must be highly probable, this court has repeatedly held that an injunction may issue where the threat of future harm is reasonably probable or reasonably likely. (Madrid v. Perot Systems Corp. (2005) 130 Cal.App.4th 440, 464-465; Feminist Women's Health Center v. Blythe (1995) 32 Cal.App.4th 1641, 1658; Engle v. City of Oroville (1965) 238 Cal.App.2d 266, 270.) As this standard is consistent with that used in Scripps, supra, 72 Cal.App.4th at pages 332 and 335, we conclude that a reasonable probability or reasonable likelihood of future harm is the appropriate standard.

The trial courts finding that there were surrounding circumstances in this case created some danger of future violence, though somewhat inartfully stated, met that standard. (See Scripps, supra, 72 Cal.App.4th at p. 335.) Further, the evidence presented at the hearings supported this inference. The tense atmosphere created by Weiners attempts to evict Carroll from the park, the ongoing litigation brought against Carroll by Weiner and the corporation he controls, and Carrolls attempts to organize tenants in the park and elsewhere to bring lawsuits against Weiner and other mobile home park owners has contributed to a situation in which tenants hurry to photograph any action by Weiner, looking for evidence of wrongdoing. Weiners work brings him to the park once a week, and his employee Barker lives there, about 50 yards away from Carroll.

Notwithstanding that there had been no additional harassment in the three months between the March 6 incident and the hearing, the court did not err in concluding that these circumstances could regularly bring the warring parties into an uncomfortable proximity in a highly charged environment, and thereby create a danger of future violence.

DISPOSITION

The order is affirmed. Each party shall bear his own costs. (Cal. Rules of Court, rule 8.278(a)(5).)

SIMS , J.

We concur:

SCOTLAND , P. J.

BLEASE , J.

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[1] He also sought a restraining order against Barker, but dismissed the request during trial.

[2] Weiner also impeached Carrolls credibility with drug and alcohol convictions.

[3] Barker likewise testified he saw Carroll poke Weiner in the chest a few times.

[4] Temporary restraining orders are also available by statute ( 527.6); no temporary restraining order issued in this case.