A rare reversal with an interesting footnote 2 about refusing to declare the appeal moot citing In re Cassandra B. (2004) 125 Cal.App.4th 199, 209. One assault does not civil harassment make! But yet another trial judge goes with their gut to entangle the State where 527.6 was never meant to carry it.
DOC version
Filed 12/13/11 Sweeney v. Barker CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
MARGARET SWEENEY,
Plaintiff and Respondent,
v.
SAMANTHA BARKER,
Defendant and Appellant.
B229232
(Los Angeles County
Super. Ct. No. SS020059)
APPEAL from an order of the Superior Court of Los Angeles County, Gerald Rosenberg, Judge. Reversed.
Steptoe & Johnson and Michael N. Jones for Defendant and Appellant.
Margaret Sweeney, in pro. per., for Plaintiff and Respondent.
_________________
INTRODUCTION
Samantha Barker (Barker) appeals from the civil harassment protective order issued pursuant to Code of Civil Procedure section 527.6 (section 527.6) in favor of Margaret Sweeney (Sweeney), contending there was insufficient evidence Sweeney had suffered harassment within the meaning of the statute, and the trial court committed error in issuing the restraining order. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
The parties have known each other for about seven years. On October 15, 2010, Sweeney filed a request for orders to stop harassment after an incident on October 9, 2010. The request sought a temporary restraining order against Barker. In Sweeney’s request, she briefly referenced a verbal altercation that occurred four or five years earlier. The court issued a temporary restraining order and set the matter for an evidentiary hearing on November 4, 2010. Barker filed an answer on November 1, 2010.
On November 4, Barker and Sweeney, each self-represented, appeared for the evidentiary hearing on Sweeney’s restraining order request.[1] Sweeney, her husband, and Barker all testified at the hearing.
At the hearing, Sweeney told the court that the parties were at a family function when she felt someone give her a hard push. Since it was family and friends at the function, she presumed it was someone trying to get her attention. When she turned around, she realized it was Barker. A few hours later, when Sweeney was headed to the restroom, she tried to pass Barker and Barker said, “What is your problem?” Barker threw a drink at her, then threw her to the ground and assaulted her. Sweeney was rescued by her husband.
Sweeney’s husband told the court that he saw Barker knock his wife down and saw Barker on top of his wife; his wife covered in blood. He grabbed Barker, hit her a few times, and finally broke Barker’s grasp.
Barker told the court that Sweeney approached her and accused her of bumping into her. It was Barker’s friend, Amanda, who said, “What is your problem?” when Sweeney approached them at the bathroom. Barker felt threatened by Sweeney and threw her wine at Sweeney, but she did not attack her or knock her to the ground. She acknowledged that they both ended up on the ground, but she did not know how it happened. She did not remember exactly what happened, but the tone of Sweeney’s voice was very threatening. She added that Sweeney’s husband assaulted her; he grabbed her hair and pulled her up violently.
The trial court viewed photographs submitted by both parties and stated as follows:
“[The Court:] I think it was an unreasonable use of force on your behalf. There’s no outward sign of any threat to you, and this looks as just an aggressive behavior that was unreasonable and does justify the issuance of a restraining order.
“The court is going to make the following orders: you are not to attack, harass, strike, threaten, assault, hit, follow, stalk, destroy the personal property of, keep under surveillance or block the movements of Ms. Sweeney or her husband, you’re not to contact them either directly or indirectly by telephone, by sending messages, mail or
e[-]mail[.] [¶] Ma’am, you put down 10 yards. Do you live near each other?
“Ms. Sweeney: No, we don’t. It was just me being — I just want it to be as far away as possible.
“The Court: Okay. She’s to stay at least 100 yards from you, your home, your place of work, your vehicle. [¶] Do you have children?
“Ms. Sweeney: No. Does that also include my husband as well?
“The Court: Yes. The order will be effective immediately and will remain in effect for a period of one year, will expire on November the 3rd, 2011.”[2]
DISCUSSION
Section 527.6 authorizes a natural person who has suffered “harassment” to obtain an injunction prohibiting further harassment.[3] Subdivision (b) of the statute 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 to the plaintiff.” Subdivision (b)(3) defines “course of conduct” as “a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose . . . .”
After the party sought to be enjoined has had notice and an opportunity to respond to the petition for an injunction, the court must hold an evidentiary hearing to receive relevant testimony “and may make an independent inquiry.” (§ 527.6, subd. (d).) “If the judge finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment.” (Ibid.) On appeal from an injunction prohibiting harassment under section 527.6, “we review the evidence before the trial court in accordance with [all] customary rules of appellate review. We resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge . . . 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; accord, Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137; USS-Posco Industries v. Edwards (2003) 111 Cal.App.4th 436, 444.)
Notwithstanding the literal language of section 527.6, a single incident of unlawful violence is an insufficient basis for a civil harassment restraining order. “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; accord, Babalola v. Superior Court (2011) 192 Cal.App.4th 948, 962.) For example, in Scripps Health v. Marin (1999) 72 Cal.App.4th 324, the court reversed the issuance of a restraining order based on a single incident of the defendant striking a hospital employee with a door and pushing her into a wall in the absence of any evidence of the likelihood he would repeat such acts. (Id. at p. 336.)
Here, even under the highly deferential standard of review, there is insufficient evidence to support the issuance of an injunction in favor of Sweeney. The record reflects but a single incident of violence by Barker against Sweeney. There was no evidence that a threat of future violence existed.
While the trial court found Barker’s conduct to be inappropriate and we do not condone her actions, “a single incident of battery without finding a threat of future harm” is not sufficient to grant injunctive relief pursuant to section 527.6. (Russell v. Douvan, supra, 112 Cal.App.4th at p. 401.) There is no evidence that would support an implied finding that Barker engaged in a course of conduct directed at Sweeney “that seriously alarmed, annoyed, and harassed her; that would cause a reasonable person to suffer substantial emotional distress; and that actually caused [Sweeney] to suffer substantial emotional distress.” (Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1404). While there is a reference to a verbal altercation at a party four or five years earlier, this verbal confrontation several years ago, coupled with the inappropriate conduct of Barker on October 9, 2010, does not rise to the level of course of conduct. The record does not support the issuance of the restraining order based upon Barker’s actions on October 9, 2010.
DISPOSITION
The restraining order is reversed. Each party is to bear her own costs on appeal.
JACKSON, J.
We concur:
PERLUSS, P. J.
WOODS, J.
[1] Although self-represented in the trial court, Barker is represented by counsel on appeal.
[2] Although the restraining order is no longer in effect, we decline to dismiss the appeal due to the potential for collateral ramifications from the issuance of the order. (See In re Cassandra B. (2004) 125 Cal.App.4th 199, 209.)
[3] Section 527.6, subdivision (a), provides, “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.”