Henry v. Drohan
Filed 5/29/13
Henry v. Drohan CA2/7
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
MARLO HENRY,
Plaintiff and Respondent,
v.
SEAN B. DROHAN,
Defendant and Appellant.
B240190
(Los Angeles
County
Super. Ct.
No. BQ036192)
APPEAL
from a judgment of the Superior Court
of
County, Holly J. Fujie,
Judge. Affirmed.
Law
Offices of Sanford L. Horn and Sanford
L. Horn for Defendant and Appellant.
Christopher
Brainard for Plaintiff and Respondent.
__________________________
INTRODUCTION
The
litigation involving this matter had its source in a purported broken romantic
relationship which led to allegations of violence and a need for a restraining
order from the Los Angeles County Superior Court. The gravamen of the issue on appeal pertains
to who started the fight initially which resulted in the orders issued by the
Superior Court and not whether a fight occurred. Ultimately, the trial court primarily
emphasized the need for its orders and placed a secondary importance on just
who initially perpetrated the fight, and the reliability of the evidence in
support thereof. For the reasons
hereafter explained, we affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL SYNOPSIS
Marlo Henry
(“Henryâ€) and Sean Drohan (“Drohanâ€) at one time lived together in a romantic
relationship. In or about May of 2011
that relationship ended. The parties
disagree over who perpetrated the end of the relationship, but it is clear from
the record that the main incident which led to the filing of the petition for
restraining orders occurred on February
5, 2012, which happened to be Superbowl Sunday. According to Henry, the incident started with
a phone call from Drohan on February 5,
2012. Henry claimed she
could see Drohan right outside her house on Hill
Street in Monrovia
as Drohan made the call to her. Henry
claimed that Drohan was making numerous threatening calls to her and was
posting threats and derogatory comments about her on Facebook.
Henry
testified that at the time of the incident in question she was living with two
people. One was Ryan Smith (“Smithâ€) and
the other one was Michael Ham (“Hamâ€).
Henry further testified that both Smith and Ham went outside to ask
Drohan to cease his conduct. When they
returned to Henry’s house both were injured.
The police were called and took statements from Drohan, Smith and
Ham. Photos of the
were taken.
Smith
testified that he left Henry’s home to join a group of his friends down the
street from Henry’s home and was attacked at that time by Drohan. The location of the fight, according to
Smith, occurred in front of the house of Drohan’s daughter. Smith had been previously warned not to come
to the house of Drohan’s daughter. Smith
was aware of Henry’s prior complaints about Drohan making threatening calls to
her. But Henry did not indicate to Smith
anything about threatening phone calls on the date of the fight. Smith was not made aware that Drohan was in a
group down the street until he was attacked by Drohan. Smith further testified that he did not
confront Drohan because of any threats that were made that day to Henry by
Drohan.
In
response, Drohan produced cell phone records from June of 2011 until
mid-February of 2012. Drohan had no
telephone other than his cell phone. The
records produced revealed that no phone calls were made to any of the phone
numbers belonging to Henry. Although
these records were eventually received into evidence, Drohan maintains it is
clear from the record that the court gave little consideration, if any, to
Drohan’s telephone records. Drohan
opines and draws this conclusion based upon the court’s stated distrust of the
records for his failure to give Henry or her counsel the records for inspection
prior to the hearing. Further, maintains
Drohan, the trial court improperly refused his request that the cell phone and
archived calls on Henry’s cell phone be examined. The statement of reasons given by the trial
court was to the effect that Henry’s records would have no evidentiary value
because Henry testified that she usually erases her phone messages. According to Drohan, this ruling was
erroneous and constituted reversible error.
The trial
court ultimately limited each side to two percipient witnesses to the fight
that led to the request for a restraining order. The court refused to hear from at least five
percipient witnesses who had attended court on behalf of Drohan. Richard Frost (“Frostâ€) was called by Drohan
and testified that the fight between Drohan and Smith began when Smith attacked
Drohan. The trial court admitted into
evidence, over objection, a copy of the police report which purported to
include a statement from Frost to the effect that he didn’t see who started the
fight. The report was admitted into
evidence despite Frost’s denial that he had made any such statement to the
police. The officers who prepared the
report were not called to testify. The
police report as it pertains to Frost’s statement was admitted into evidence in
spite of timely objection by counsel for Drohan.
DISCUSSION
contentions.
Drohan’s
contentions are far from clear. Drohan
appears to be approaching his claims of error from a technical standpoint in
the face of the trial court’s ruling which concentrates on the practical aspect
of the case. Drohan summarizes the
purported technical errors which require a reversal as follows: He did not start the fight which perpetrated
the trial court’s restraining order.
Smith started the fight. The
paper work requesting a restraining order was filed without notice to him. Cell phone records were produced by him
showing he made no calls to Henry during the relevant period of time. Even though the pertinent cell phone records
were eventually admitted into evidence, the court erred in not giving the
records due consideration. The court
erred in following the timeline dictates of Family Law Code section 6320.5
pertaining to domestic violence restraining orders. And finally, the court should have applied
the considerably more lengthy timeline provisions contained in California Code
of Civil Procedure section 1985, which it failed to do.
Henry’s
appellate contentions are equally unclear, but appear to be based on her
perception of the pragmatic approach utilized by the court in this case which
would relegate Drohan’s technical approach to the case as not dispositive. Henry appears to contend that even if the
purported technical errors of the trial court were true, there is no abuse of
discretion requiring reversal of the trial court.
of review.
We find
that the standard of review to be
utilized is abuse of discretion as circumscribed in Code of Civil Procedure
section 527.6.
Code of
Civil Procedure section 527.6 provides in pertinent part: “(a)(1) 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. [¶¶] (b)(3) ‘Harassment’ is
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.â€
After a
party has requested an injunction, the opposing party may file a response and
deliver it to the requesting party no later than 48 hours before the
hearing. (Code Civ. Proc., § 527.6,
subd. (d); Cal. Rules of Court, rule 3.1152(d).) The court must hold a hearing, receive
relevant testimony, and must issue the injunction if it finds clear and
convincing proof of harassment. (Code
Civ. Proc., § 527.6, subd. (i); Nora v.
Kaddo (2004) 116 Cal.App.4th 1026, 1028.)
We find no
abuse of discretion for the following reasons:
We note at
the outset that Drohan complains that he received no notice of the filing of
the paper work which eventually led to the temporary restraining orders against
him. Drohan asserts the paper work
seeking a restraining order was signed on February 9, 2012, and the application
for a restraining order was filed on February 10, 2012, at an ex parte hearing
that was held without notice to him. He
appears to be suggesting that this failure to give him prior notice violated
his rights which should result in a reversal of the judgment of the trial
court. This court detects an
inconsistency with this contention in that it is only partially accurate. Drohan, however, fails to bring to this
court’s attention the reason why he was not given the prior notice to which he
claims he was entitled.
The
declaration filed by Henry’s counsel containing the reason for failure to give
prior notice of the ex parte request for a temporary restraining order states:
“I did not give notice to the other party in this action because: [¶] I was
afraid that the violence would reoccur when I gave notice that I was asking for
these orders.†In Henry’s petition for
restraining orders she describes other recent abuse as follows “On January 6,
2012, Sean B. Drohan made countless calls and texts messages to me indicating
that I was ‘a bitch’ and needed to ‘be taught a lesson once and for all.’ I did not respond to him and his messages
only intensified him indicating that he knew people and that I or my daughter
could simply ‘disappear.’ I asked if he
was going to have me or my daughter killed and he stated that it would be ‘no
problem.’ I tried to terminate
communications with him through that weekend, but the harassment continued
through the weekend with continued threats including the threat that he knew
how to ‘use’ his ‘guns.’ On Monday
January 9, 2012, I drove to work and noticed that a white truck was following
me and I sped up to get to work and run in and I did so. I looked outside and the white truck followed
me and began trolling such that I saw it was Sean B. Drohan and I had narrowly
escaped by locking myself in the shop.
[¶] Sean B. Drohan admits he has
guns and has threatened to use his guns on me.â€
Henry also
describes other abuse against her and her children as follows: “[A.E.] is my
daughter. Sean B. Drohan used to live
with me approximately 6 months ago and he would go on drunken rages and
physically intimidate my daughter and I.
He knows where my daughter goes to school.â€
We find no
abuse of discretion by the trial court in issuing a
requiring prior notice to Drohan. The
declaration filed by Henry is sufficient.
The temporary restraining order issued without notice to Drohan in this
instance was clearly within the trial court’s discretion at this initial stage
of the proceedings and we so hold.
This court
next notes that service of the temporary restraining order, documents in
support thereof, and notice of the preliminary injunction hearing were
subsequently served on Drohan. Drohan
was given an opportunity to respond before the hearing scheduled for February
29, 2012. Drohan filed his response on
February 27, 2012. On February 29, 2012,
the court conducted a one day bench trial and issued a restraining order which
resulted in the filing of a timely notice of appeal by Drohan. In view of our decision that the court did
not abuse its discretion by issuing its restraining order, the temporary
restraining order is now moot.
The
findings and orders of the court following the trial are as follows:
“The
[court] makes the following findings and orders: [¶]
The facts of this case support issuing a restraining order under Family
Code Section 6300. [¶] Based upon the evidence presented to the
Court, the Court finds that the Respondent in [sic] engaged in conduct that
placed Petitioner is [sic] in reasonable fear of serious bodily injury; or that
Respondent engaged [in] a type of behavior identified in section 6320. [¶]
The Court finds that Petitioner was in ‘reasonable apprehension of
imminent serious bodily injury[.]’
[¶] Petitioner’s request for restraining
order after hearing is granted. The
restraining order will [sic] is granted for 3 years and will expire on March 1,
2015, 11:59 p.m.â€
The reasons
given by the trial court in support of its findings and order are to be found
in the reporters transcript on appeal, following arguments of counsel, as
follows:
“[The
Court:] [¶] I have considered all the evidence that has
been presented here. I have looked at
credibility issues with regard to both the petitioner and the respondent. I have considered the witnesses, including
Richard Frost who testified regarding his observations of the incident that
allegedly precipitated this. And I have
read and reviewed the police report which says that the report that was given
to the officer, again according to the report and only in connection with
potential inconsistent statements by Mr. Frost, where he said that Mr. Frost
had said he had looked away and saw them wrestling on the ground which would
indicate that he did not in fact see the first blow being struck. And he had no explanation for that
inconsistency.
“My main
concern with the incident in which Mr. Smith had the altercation was not so
much that it doesn’t relate so many [sic]
directly to this as it relates to the high level of tension between the parties
and those who lived in her home. I
believe that the facts of this case do support issuing a restraining order
under Family Code section 6300.
“Based upon
the evidence presented to the court, the court finds that Mr. Drohan had
engaged in conduct that placed Ms. Henry in reasonable fear of serious bodily
injury or that he engaged in a type of behavior identified in section
6320. The court finds that Ms. Henry was
in reasonable apprehension of imminent serious bodily injury. Therefore, on that ground I will issue the
restraining order.
“. . . . .
“The
Court: All right. With regard to the restraining order in the
matter of Henry versus Drohan, which is case No. BQ 036192, this restraining
order shall remain in effect for three years from today’s date expiring on
March 1 since it’s leap day today. We’ll
make it February 28, 2015, at midnight.
“Mr.
Drohan, as the person restrained, you must not do the following things to the
protected people listed which would be Ms. Marlo Henry and her daughter who was
previously listed in the temporary restraining order, Alexandra Elardy, to
harass, attack, strike, threaten, assault, sexually or otherwise, hit[,]
follow, stalk, molest, destroy personal property, disturb the peace, keep under
surveillance, or block movements.
“You may
not contact either directly or indirectly by any means, including, but not
limited to by telephone, mail, e-mail or other electronic means, or take any
actions directly or through others to obtain the addresses or locations of any
protected persons with the exception of brief and peaceful contact – you know
what, there are no children of this relationship. So, therefore, that is not necessary. All right.
“There is a
stay-away order. Person must stay at
least 100 yards away from Ms. Henry and her daughter, the job or work place of
Ms. Henry. And with regard to the
residence, of Ms. Henry, with exception with regard to the residence, you may
visit peaceably with your daughter or your brother and you may visit others
residing on the street of Ms. Henry for legitimate business purposes.
“It’s my
understanding from your response you have no guns or other firearms.
“Respondent: No, I do not, Your Honor.
“The
Court: You are also not allowed to,
rather, Ms. Henry has the right to record communications made by Mr. Drohan
that violate the judge’s orders.
“That’s the
order. Thank you. . . .â€
Condensing our
conclusion to its simplest terms, this court is of the opinion that the
technical issues raised by Drohan contain no dispositive consequences. The trial court decided the issues on the
basis that the evidence pertaining to the admitted altercation or fight
demonstrated a high level of tension between the parties and those who lived in
Henry’s home. Who threw the first punch
was not the determinative issue, it was the level of “tension†as well as the
level and tenor of Drohan’s disproportionate and overreactive violent response
that warranted issuing the restraining order.
This court discerns that any reasonable trier of fact could arrive at
this conclusion based on the undisputed facts irrespective of who threw the
first punch.
This court
concludes that even if the trial court erred, Drohan received a fair hearing
and no miscarriage of justice occurred
to warrant reversal. (See
618, where the court held that “To be entitled to relief on appeal from the
result of an alleged abuse of discretion it must clearly appear that the injury
resulting from such a wrong is sufficiently grave to amount to a manifest
miscarriage of justice.â€)
DISPOSITION
The judgment
is affirmed. Respondent is awarded costs
on appeal.
WOODS,
J.
We concur:
PERLUSS, P.J. ZELON,
J.
note that the phone records produced by Drohan and the police report were not
found in the possession of the superior court.
True and accurate copies of these documents would be lodged with this
court, according to Drohan’s counsel.
The copies were lodged with this court on December 17, 2012.
