Delk v. Rooney
Filed 4/25/13 Delk v. Rooney CA4/3
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opinion has not been certified for publication or ordered published for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
FOURTH
APPELLATE DISTRICT
DIVISION THREE
ABBEY NICOLE DELK,
Plaintiff and Respondent,
v.
HEATHER VICTOR ROONEY,
Defendant and Appellant.
G046621
(Super. Ct. No. 30-2011-00495969)
O P I
N I O N
Appeal from an order of
the Superior Court
of
County, Corey S. Cramin, Judge. Affirmed.
Heather Victor Rooney,
in pro. per., for Defendant and Appellant.
Law Offices of Kersten
& Associates, William C. Kersten and Brandon R. Creel for Plaintiff and
Respondent.
* * *
This is an appeal from a
restraining order issued by the court against appellant Heather Rooney in
January 2011. Rooney argues that the
court did not have substantial evidence
to support issuing the order and that her due process rights were violated
because she did not receive a fair trial.
We conclude that Rooney has failed to establish error and therefore
affirm.
I
FACTS
On
August 1, 2011, respondent
Abbey Delk filed a request for orders to stop harassment in Orange County
Superior Court. She sought a protective
order against Rooney, her husband’s ex-wife.
“been continuously harassed for over a year with emails, phone calls, verbal
threats, and even been physically harmed by . . . Rooney.†Delk stated she had multiple police reports
and had been encouraged by the police to seek a protective order. Among other incidents, Delk claimed that
Rooney had falsely accused her of abusing one of her stepchildren. Delk also asserted that Rooney had spent
three days in jail for contempt of court because of the harassment. Delk’s documentation alleged damage to her
car, a physical altercation resulting in bruises to Delk, e-mails, Delk’s log
of calls to the police, and the warning letter her attorney had sent to
Rooney.
The
court denied Delk’s request for a temporary
restraining order and set a date for an order to show cause. Rooney’s response to Delk’s request denied
the harassment and provided a four-page narrative response to Delk’s
assertions. She also provided three
letters from witnesses she claimed were relevant.
On
August 17, the matter came on for hearing.
The parties reached a stipulation to resolve the matter. The stipulation provided that both parties
agreed to stay 100 feet away and have no contact. If they ran into each other, they were not to
engage. Rooney was to call only her
ex-husband’s home or the home line between specified hours except in an
emergency, and not Delk’s cell phone.
Rooney agreed to pick up any of her children’s friends that lived in
Delk’s neighborhood (the Reserve) at the gate, and drop the children off for
pick up outside the gate. The court
ordered the stipulation be entered as the court’s order, and set a status
conference for January 11, 2012.
On
that date, the parties appeared in court.
Rooney felt everything was fine, but Delk disagreed. After a further attempt at mediation, the
court swore in the parties and Daniel Corwin, a deputy sheriff. The parties testified. With respect to violating the stipulated
order, Delk stated Rooney had entered her neighborhood and there was a security
video reflecting this. Rooney testified
that Delk’s neighborhood was split into a “North Reserve†and “South Reserveâ€
and that she had gone to a party on the opposite side of where Delk and her
husband lived, and through a different gate.
The court pointed out that the stipulation merely said Rooney was to
stay out of the Reserve. Delk also
testified that Rooney had called her cell phone twice, in violation of the
stipulation. Rooney claimed that one of
the calls was an emergency, but as to the other, she wanted to leave a message
for the kids. On another occasion, Delk
stated that Rooney harassed her during a call to the home line. Delk testified that during a children’s
sports event, Rooney moved her chair and sat by her, in violation of the
stipulated order. Delk also reported a
number of other incidents of harassment and intimidation at sports and school
events. Rooney denied all of Delk’s
claims.
After
listening to Rooney, the court granted Delk’s request, issuing an order
directing Rooney to stay 25 yards away, have no communication, and stay out of
the Reserve neighborhood completely. The
restraining order was for three years.
Rooney now appeals.
II
DISCUSSION
We
review a grant or denial of injunctive
relief for abuse of discretion.
849-850.) “The appropriate test for
abuse of discretion is whether the trial court exceeded the bounds of
reason. When two or more inferences can
reasonably be deduced from the facts, the reviewing court has no authority to
substitute its decision for that of the trial court. [Citations.]â€
(Shamblin v. Brattain (1988)
44 Cal.3d 474, 478-479.) Thus, a trial
court’s discretion must “‘be exercised in conformity with the spirit of the
[applicable] law and in a manner to subserve and not to impede or defeat the
ends of substantial justice.’
[Citations.]†(
1057, 1066, superseded on other grounds by statute, as stated in
Cal.App.4th 1023, 1032.) “The
burden of affirmatively demonstrating error is on the appellant. This is a general principle of appellate
practice as well as an ingredient of the constitutional doctrine of reversible
error. [Citation.]†(Fundamental Investment etc. Realty Fund
v. Gradow (1994) 28 Cal.App.4th 966, 971.)
This
standard applies on appeal even where the trial court was required to make its
findings under the clear and convincing evidence standard. “Where the trial court has determined that a
party has met the ‘clear and convincing’ burden, that heavy evidentiary
standard then disappears. ‘On appeal,
the usual rule of conflicting evidence is applied, giving full effect to the
respondent’s evidence, however slight, and disregarding appellant’s evidence,
however strong.’ [Citation.]†(Ensworth
v. Mullvain (1990) 224 Cal.App.3d 1105, 1111, fn.2.)
The
relevant statute is our guide to the court’s exercise of discretion. Code of Civil Procedure
that “A person who has suffered harassment as defined in subdivision (b) may
seek a temporary restraining order and an injunction prohibiting harassment as
provided in this section.†Subdivision
(b)(3) defines harassment 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[
upon a finding of clear and convincing evidence that unlawful harassment exists,
may issue an order “enjoining a party from harassing, intimidating, molesting,
attacking, striking, stalking, threatening, sexually assaulting, battering,
abusing, telephoning, including, but not limited to, making annoying telephone
calls . . . destroying personal property, contacting, either directly or
indirectly, by mail or otherwise, or coming within a specified distance of, or
disturbing the peace of, the petitioner.â€
(§ 527.6, subds. (b)(6)(A), (i).)
Rooney
summarizes the evidence in a manner intended to put her arguments in the best
light while minimizing Delk’s. She
complains of “hearsay,†although there were no objections in the record. (See section B, post.) Rooney concludes that
“Respondent did not present clear and convincing evidence to the trial court
that unlawful harassment exists and the trial court clearly disregarded the
uncontradicted evidence presented by Appellant in her defense.â€
We
disagree. The evidence Delk presented,
particularly her detailed, documented instances between the date of the
stipulated order and the final hearing, were more than sufficient evidence to
warrant the issuance of a restraining order under the applicable legal
standard. The record does not reflect
the trial court “clearly disregarded the uncontradicted evidence.†What it does reflect is an obvious
determination that Delk’s evidence was more credible, and the court ruled
accordingly. Rooney has not established
an abuse of discretion.
B. Fair trial
Rooney
next argues that the trial court “was prejudiced by information provided to
[it] by Appellant. [The court] also took
into consideration testimony from a witness who was not sworn in and was
[Respondent’s] husband. He refused to
look at any of [appellant’s] evidence, which clearly shows the facts and truth
that [Respondent’s] statements are made under perjury.†Rooney then argues that several pieces of
evidence should not have been considered under Evidence Code section 352.
We
address the last argument first. Rooney
does not cite to any objections to the admissibility of evidence in the record,
nor does she demonstrate that the complained-of evidence was even admitted into
evidence (the reporter’s transcript shows a number of items as marked prior to
hearing, but none were received). She
has not preserved these objections for appeal.
“‘[A] party is precluded from urging on appeal any point not
raised in the trial court.’
[Citation.]†In re Aaron B. (1996) 46 Cal.App.4th 843, 846.)
Further,
even if she had preserved the issue, she offers no authority or analysis. “When an appellant fails to raise a point, or
asserts it but fails to support it with reasoned argument and citations to
authority, we treat the point as waived.â€
(Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) Propria persona litigants are not exempt from
such basic rules of appellate practice. (
512, 522-523.)
With regard to the rest,
Rooney has not demonstrated by an adequate record that the court considered inappropriate
testimony or refused to consider her evidence.
The court’s ruling simply demonstrates that it considered Delk’s
evidence more credible and persuasive, and accordingly ruled in Delk’s favor. Rooney has not shown that she was denied a
III
DISPOSITION
The order
is affirmed. Delk is entitled to her
costs on appeal.
MOORE,
J.
WE CONCUR:
O’LEARY, P. J.
RYLAARSDAM, J.
name="_ftn1" title="">[1]
Delk lived with her husband, Tim Rooney, and his two children by Heather
Rooney, ages eight and 13 at the time of the hearing. The children lived with each parent 50
percent of the time.
name="_ftn2" title="">[2]
Rooney claims the appropriate standard of review is substantial evidence, but
she is mistaken. The case she cites to
is Shelia S. v Superior Court (2000)
84 Cal.App.4th 872. That was not a case
involving injunctive relief — it was a dependency matter seeking extraordinary
relief from the trial court’s decision to set a permanency planning hearing
(Welf. & Inst. Code, § 366.26.) It
is inapplicable here.
