SCHULTZ v. EDER 2010 - reversed,
no substantial evidence

Filed 8/24/10  Schultz v. Eder 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  This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.











            Plaintiffs and Respondents,






            Defendant and Appellant.




      (Los Angeles County

      Super. Ct. No. SS018012)



APPEAL from a judgment of the Superior Court of Los Angeles County.  Gerald Rosenberg, Judge.  Reversed.

Law Offices of Gibson, Dunn & Crutcher, Julian W. Poon, Blaine H. Evanson, Julie M. Zankel, and Mary G.H. Lang for Defendant and Appellant.

Gary E. Schultz, in pro. per., for Plaintiffs and Respondents.




Harvey Eder appeals from a restraining order granted by the trial court in favor of his building manager Gary E. Schultz for an injunction prohibiting harassment.  We reverse.


            Schultz and Eder are respectively a building manager and tenant whose relationship deteriorated over the course of several incidents.  On April 17, 2009, Schultz filed a petition seeking protection for himself and his wife against Eder.  Schultz sought the restraining order under Code of Civil Procedure Section 527.6[1] for an incident on April 8, 2009, where Eder was “yelling and cursing and kicking [their] door so severely that it was damaged and kitchen light flickered.”  As a result of this incident, Schultz’s elderly wife became physically ill.  Schultz stated that this was “only the latest in a series of incidents.”

            In Schultz’s petition signed under penalty of perjury, he attached a list of nine additional incidents in which he claimed Eder had “exhibited a pattern of aggressive or uncouth behavior.”  Schultz declared that for a period of months from 1999 to 2000, one of the building tenants made a habit of blocking other tenants’ parking spaces with a shopping cart after returning from Vons.  Schultz witnessed Eder leaving a shopping cart at one of the parking spaces and thought that Eder was also responsible for the other carts.  In an effort to stop this behavior for other building tenants, Schultz requested that Eder remove the cart, but Eder ignored Schultz’s request.  In 2000 or 2001, an officer from L.A. County child support services came to the Schultz’s building on a “deadbeat dads” sweep to make an arrest.  Schultz claimed the officer was looking for Eder, but Eder was not in his apartment at the time.  On June 13, 2006, Schultz’s wife was running an errand when Eder began “loudly hurl[ing] a barrage of profanities at her.”  On or around September or October 2007, Eder assaulted Schultz by making a threatening gesture and lunging at him.  Schultz called the police to report the assault but Eder was not arrested because there was no battery or physical contact.  On December 31, 2007, Eder collapsed and was semiconscious while lying on the floor in front of his apartment.  The Schultzes called the paramedics and Eder was taken away for medical treatment.  

In spring of 2008, Eder lost his key to the building and borrowed a key from Schultz’s wife.  She told Eder to make two copies, but he came back with approximately ten copies, claimed that they did not work, and threw them in the hallway in front of Schultz’s door.  In March 2008, two tenants in the apartment building found “several dozen small capsules which appeared to be medications” and tissues on the floor.  The pills remained in the same place for several hours and a tenant reported this to the Schultzes.  Schultz’s wife picked up the tissues and pills and gave them to Eder, who took them.  On March 16, 2008, the Schultzes called the Santa Monica police department because gas was leaking from Eder’s apartment.  Schultz claimed that Eder was arrested as a result of this incident.  On April 19, 2008, Eder created a fire hazard by leaving a stack of papers on top of a glass dining room table with a heater placed underneath the table. 

            In response to Schultz’s petition, the trial court issued a temporary restraining order against Eder on April 17, 2009, and scheduled a hearing on an order to show cause for the permanent injunction on May 18, 2009.  Schultz and Eder appeared for the hearing.  During the hearing, Schultz testified that on April 8, 2009, Eder had violently kicked and caused a crack in his door.  On questioning from the court, Schultz affirmed that this was the only violent incident between the two parties, but asserted they had previously been involved in disagreements, some that resulted in Eder swearing at him and his wife.  Eder testified that he did not kick the door as hard as Schultz claimed and only kicked it because he believed Schultz was stealing his mail.  When the court asked Eder about the gas leak incident that took place on March 16, 2008, Eder testified that there had never been a gas leak and Schultz had Eder committed to a hospital.  Eder did not refute any other allegations made by Schultz during the hearing. The trial court determined that Eder’s conduct was “not appropriate” and he needed “to stay away from Mr. Schultz and his wife.”  At the conclusion of the hearing, the trial court granted Schultz’s petition for a civil harassment restraining order against Eder based on a credible threat of violence. 

Eder filed a motion for a new trial on August 26, 2009; the court heard the matter on September 29, 2009.  In his motion, Eder made several allegations refuting Schultz’s claims in the petition for the restraining order.  In response to Schultz’s allegation that Eder had left shopping carts in tenants’ parking spots for a period of months from 1999 – 2000, Eder declared that Vons had allowed him to take shopping carts home because of his disabilities but he always left them in the front of his building and not in tenants’ parking spaces.  Concerning Schultz’s allegation that in 2000 or 2001, an officer from L.A. County child support services was looking for Eder, Eder denied that this incident occurred as he had no children.  With respect to Schultz’s allegation that on June 13, 2006, Eder “loudly hurled a barrage of profanities” at Schultz’s wife, Eder stated that he had only said “damn” and expressed his dissatisfaction with the repeated failure to complete maintenance on his apartment. 

In response to Schultz’s allegation that in September or October 2007, Eder assaulted Schultz by making a threatening gesture and lunging at him, Eder asserted that he had only cocked his hand back in response to Schultz provoking him but he did not lunge at Schultz.  As to Schultz’s allegation that in March 2008, two tenants in the apartment building found “several dozen small capsules which appeared to be medications” and tissues on the floor, Eder denied using tissues at all.  Finally, with respect to Schultz’s allegation that on March 16, 2008, Eder was arrested because of a gas leak in his apartment, Eder stated that he had been committed to Brotman Hospital, not arrested, in relation to this incident.  The trial court denied the motion based on a lack of new evidence and because it found Eder’s behavior to be “inappropriate and threatening.”  Eder appeals.







The sole issue on appeal is whether there is sufficient evidence to support the trial court’s grant of the section 527.6 restraining order against Eder.  “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.)  We review the trial court’s order and find it is not supported by substantial evidence.

a.    Elements of harassment under section 527.6.

A person who has suffered harassment may seek a temporary restraining order and injunctive relief under section 527.6.  There are three types of actionable harassment under this statute:  (1) “unlawful violence,” (2) “a credible threat of violence,” and (3) “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).)

After a plaintiff files a petition for an injunction under section 527.6, the plaintiff may obtain a temporary restraining order.  (§ 527.6, subd. (c).)  The court must then hold a hearing to receive relevant testimony and issue an injunction if it finds, by clear and convincing evidence, that harassment exists.  (§ 527.6, subd. (d).)  “‘Clear and convincing evidence’ requires a finding of high probability.”  (In re Angelia P. (1981) 28 Cal.3d 908, 919).  A section 527.6 injunction may have a duration of no more than three years and is an appealable order.  (§ 527.6, subd. (d); § 904.1, subd. (a)(6).)  The court’s conclusion that there was unpleasant and inappropriate behavior in this case does not satisfy the standards.


1.    The evidence failed to demonstrate unlawful violence.

The first type of harassment under section 527.6 is unlawful violence, defined as “any assault or battery, or stalking as prohibited in Section 646.9 of the Penal Code, but shall not include lawful acts of self defense or defense of others.”  (§ 527.6, subd. (b)(1).)  In support of his contentions, Schultz references a series of incidents where Eder “exhibited a pattern of aggressive or uncouth behavior.”  However, Schultz testified that there was only one violent incident, which involved Eder kicking Schultz’s door.  There was no evidence of assault because it was not demonstrated that Eder attempted to commit a violent injury on Schultz’s person by kicking the door.  (Pen. Code, §240.)  There was also no evidence of battery because Eder did not use force or violence on Schultz’s person.  (Pen. Code, §242.) 

The other evidence from Schultz’s petition and trial testimony was not sufficient to show that Eder assaulted, battered, or stalked Schultz.  The only incident that could arguably meet the statutory criteria was the alleged threatening gesture and lunge at Schultz in September or October of 2007.  There was no evidence that this act, conceded not to be violent, met the statutory standard.

2.    The evidence failed to demonstrate a credible threat of violence.

The second type of harassment under section 527.6 is a credible threat of violence, 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.”  (See, e.g., USS-Posco Industries v. Edwards (2003) 111 Cal.App.4th 436 [party told coworkers that he had a gun and would kill them].)  The evidence here failed to demonstrate that Eder engaged in a credible threat of violence.  There is no evidence that Eder made any threat of physical violence or put the Schultzes in fear of their safety.  Eder did not make any knowing and willful statements or engage in a course of conduct that placed Schultz or his wife in reasonable fear of their safety.  Rather, in the incidents described by Schultz in his petition, Eder used profanity, but made no threats.  Nor did Schultz present any evidence of fear because of Eder’s statements or actions. 

3.    The evidence failed to demonstrate a course of conduct.

The third type of harassment under section 527.6 is 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).)  The 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.”  (§ 527.6, subd. (b)(3).)  The 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).)  Schultz presented no evidence showing that Eder’s actions demonstrated a course of conduct or a pattern evidencing a continuity of purpose.  Schultz described 10 isolated and unrelated incidents or disagreements that occurred over a period of 10 years, only some of which had a demonstrated link to Eder, and most of which were in no manner directed at Schultz.  The only emotional distress asserted was with respect to Schultz’s wife without any basis to conclude that the incident would cause a reasonable person to suffer substantial distress.  Therefore, Eder’s actions did not demonstrate a knowing and willful course of harassing conduct directed at the Schultzes.

b.    The evidence did not support the section 527.6 restraining order.

Under these circumstances, there has not been a proper showing that any of the three types of harassment under section 527.6 have occurred.  Moreover, section 527.6 relief is directed at preventing future harm and can be granted only where there is evidence demonstrating a reasonable probability of future prohibited conduct.  (Russell v. Douvan (2003) 112 Cal.App.4th 399, 401.)  Here, the court made no finding of the likelihood of future harm, nor did Schultz provide any evidence to support such a finding.  The trial court found only that Eder’s actions in kicking Schultz’s door and cursing at Schultz were “not appropriate.”  The inappropriateness of an act does not satisfy the “clear and convincing” standard of harassment under section 527.6.  The injunction was improperly issued.




            The order is reversed.  Appellant is to recover his costs on appeal.



                                                                        ZELON, J.

We concur:



            WOODS, Acting P. J.



            JACKSON, J.


[1]           All subsequent statutory references are to the Code of Civil Procedure unless otherwise indicated. 


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