Sharp v. Paul
Filed 3/29/13 Sharp v. Paul CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
PRESTON
SHARP,
Plaintiff and Respondent,
v.
DEBORAH PAUL,
Defendant and Appellant.
B242280
(Los Angeles
County
Super. Ct.
No. GS013993)
APPEAL
from an order of the Superior Court
of
County, Dorothy L. Shubin, Judge. Reversed.
Caldwell
Leslie & Proctor, Andrew A. Esbenshade and Jeffrey M. Chemerinsky for
Defendant and Appellant.
Preston
Sharp, in pro. per., for Plaintiff and Respondent.
* * *
* * * *
Respondent
Preston Sharp lived in a house owned by appellant Deborah Paul. He lived rent free with the understanding he
would oversee substantial repairs to the residence. When Paul no longer wanted Sharp’s services,
she asked him to move out of the residence.
As
a result of conduct not relevant to the current appeal, Paul successfully
sought a restraining order against Sharp.
Sharp simultaneously successfully sought a restraining order against
Paul. On appeal, Paul challenges the
sufficiency of the evidence to support the restraining
order entered against her. Because
we conclude the restraining order is not supported by substantial evidence, we
reverse and dissolve it.
In
his request for a civil harassment order, Sharp described Paul’s harassment as
follows: “She was having me physically
removed by her ‘family’ since sent harassing texts till 3-5-12.†(
“3-1-12 told
neighbors.†“On January 23rd she came to
the jobsite/my residence and pointed a 357 magnum directly at my face from
appx. 18 [inches]. Her partime [
her. She has made it clear this
individual hates me, has terminated my employment, and harassed me since.†Sharp described Paul’s harassment as constant
since February 22, 2012.
At
a hearing, Sharp attempted to specify the harassment but had some difficulty
describing Paul’s harassing behavior.
forgot things and believed she may have suffered from “disingenuous
disremembering.†Sharp was upset by the
reasons Paul gave for terminating his employment, which Sharp described as
incorrect hearsay statements. Sharp
believed it was “harassment to cover up [Paul] fired [him] because her feelings
were hurt.†Sharp was concerned Paul hit
her mailbox when driving away from the house and considered that conduct
harassing. Sharp was upset that Paul
told a neighbor Sharp was “acting weird,†and her family would need to “physically
remove him.†Sharp was upset because
Paul downplayed Sharp’s relationship with Paul’s daughter. Paul’s statement that Sharp was homeless
further upset Sharp. Paul called Sharp’s
sister, an act Sharp found to be harassing.
According to Sharp, Paul suffered from mental conditions that caused
Sharp concern. And, Sharp was distressed
because Paul “showed . . . neglect†when Sharp “was injured.â€
With
respect to the gun incident described in Sharp’s petition, Paul explained she
purchased a home with its contents included.
Inside the home, she found three handguns. Paul knew Sharp was familiar with guns and
asked him to look at the guns, which Sharp agreed to do. Paul showed two of the unloaded guns to
Sharp, and Sharp handled the guns expressing an interest in one and advising
Paul of their value. Paul testified she
did not point the gun at Sharp. Paul’s
boyfriend, who was present, recounted the incident, stating that no one pointed
a gun at Sharp or threatened Sharp in any manner. Instead, Sharp agreed to look at the guns,
handled them, and was excited by one of them.
Sharp’s
account of the incident was mostly consistent with Paul’s. Sharp knew Paul was bringing the guns to show
him. The only discrepancy between
Sharp’s and Paul’s account was that Sharp stated Paul pointed the unloaded
weapon at him. Sharp testified Paul
pointed a gun at him, but he knew “she just didn’t mean anything by
it . . . .†“She
didn’t point it at me and say I’m going to shoot you or anything like
that. . . . She pointed
it at my face [a]nd every adult knows you never, never point a weapon at
anyone. I [(Sharp)] overreacted
then.†Sharp reiterated that Paul did
not say anything threatening. Sharp also
acknowledged he handled the guns after Paul pointed one at him.
On
April 18, 2012, the trial
court entered a civil harassment restraining order requiring Paul to stay 100
yards away from Sharp. The order also
prohibited Paul from harassing Sharp or contacting Sharp. This appeal followed.
DISCUSSION
Code of
Civil Procedure section 527.6 (section 527.6) permits issuance of a restraining
order if a person suffers harassment.
For purposes of this statute, harassment is limited to “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 petitioner.†(Id., subd. (b)(3).) “Course of conduct†in turn 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, facsimile, or
computer email. . . .†(
(b)(1).)
The element
of emotional distress necessary under section 527.6 is analogous to the tort of
intentional infliction of emotional distress and requires “highly unpleasant
mental suffering or anguish ‘from socially unacceptable conduct’ [citation],
which entails such intense, enduring and nontrivial emotional distress that ‘no
reasonable [person] in a civilized society should be expected to endure
it.’ [Citations.]†(Schild
v. Rubin (1991) 232 Cal.App.3d 755, 762-763.) “‘Conduct, to be “‘outrageous’†must be so
extreme as to exceed all bounds of that usually tolerated in a civilized
society.’ [Citation.]†(Huntingdon
Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129
Cal.App.4th 1228, 1259 (Huntingdon Life
Sciences).)
“Section
527.6 was enacted ‘to protect the individual’s right to pursue safety,
happiness and privacy as guaranteed by the California
Constitution.’ [Citations.]†(Brekke
v. Wills (2005) 125 Cal.App.4th 1400, 1412.) “An injunction is authorized only when it
appears that wrongful acts are likely to recur.†(Russell
v. Douvan (2003) 112 Cal.App.4th 399, 402 (Russell).) It is not based
on redress for past acts. (
insufficient to support an injunction unless that single act demonstrates that
“future harm is highly probable.†(
A court
must determine by clear and convincing
evidence that an injunction is warranted.
(Russell, supra, 112
Cal.App.4th at p. 401.) We review
the trial court’s factual findings to determine whether they were supported by
substantial evidence. (
188.) Whether the facts construed in
support of the injunction are sufficient to constitute civil harassment is a
question of law subject to de novo review.
(Ibid.) As we explain, the facts construed in the
light most favorable to the injunction do not support it.
There was
no evidence of “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.†(§ 527.6,
subd. (b)(3).) Putting aside for
the moment Sharp’s testimony that Paul pointed a firearm at him, no other event
described by Sharp was sufficient singularly or in combination to support the
restraining order. While the conduct may
have been distressing to Sharp, it did not fall within the definition of
harassment in section 527.6. Conduct
distressing to Sharp is not the appropriate standard. (Schild
v. Rubin, supra, 232 Cal.App.3d at p. 764 [“‘“The question is not whether
the plaintiffs have been annoyed or disturbed . . . but whether there has been
an injury to their legal rights.â€â€™â€].)
Not only did Sharp fail to identify harassing conduct, he failed to
identify a “course of conduct†that would “cause a reasonable person to suffer
substantial emotional distress.†(§
527.6, subd. (b)(3).) Paul’s memory
loss, termination of Sharp, anger at Sharp, as well as the other conduct
described by Sharp was not so outrageous or “‘so extreme as to exceed all
bounds of that usually tolerated in a civilized society.’ [Citation.]â€
(Huntingdon Life Sciences, supra, 129
Cal.App.4th at p. 1259.)
Turning to
the firearm incident, “‘[c]ontext is everything in threat jurisprudence.’ [Citation.]â€
(Huntingdon Life Sciences, supra,
129 Cal.App.4th at p. 1250.) Here,
although Sharp testified Paul pointed a gun directly at him, the context
undisputedly demonstrated that Paul’s pointing a gun at Sharp was not a threat. It was undisputed Paul showed Sharp the
firearms to obtain his assistance in valuing them, not to threaten Sharp. Significantly, Sharp admitted he did not feel
threatened. Sharp testified Paul did not
intend to threaten him when she pointed the gun at him. He knew “she didn’t mean anything by
it.†Instead, according him, she did not
know how to handle guns. Under such
circumstances, the conduct would not cause a reasonable person to suffer
substantial emotional distress, and it did not cause Sharp to suffer
substantial emotional distress or to fear for his safety within the meaning of
the statute. In this peculiar context,
pointing an unloaded gun at Sharp did not constitute a credible
restraining order, it must be reversed.
The
order is reversed. The injunction is
dissolved. Appellant is entitled to
costs on appeal.
FLIER,
Acting P. J.
We concur:
GRIMES,
J.
KARLAN,
J.
The trial court repeatedly asked Sharp to specify the
alleged harassment. The court stated,
“Let me stop you for a moment. What is
the harassment?†“What are you saying
was the harassment?†“Okay. So she said something negative to the
neighbor.†“I’m trying to understand
what the harassment is.†“I understand
you disagree with what she said. You
also filed a petition, and . . . I want to understand the basis for
that.†“I’m trying to understand what
you’re saying is the harassment.â€
Additionally, there was no evidence that Paul’s conduct in
pointing a firearm at Sharp was likely to recur. Not only had Paul turned in the weapons prior
to the hearing on the restraining order, but it was undisputed that prior to
this incident she “never owned or even touched a gun,†and there was no
evidence she ever threatened Sharp with a weapon.
