Filed 11/18/19 Hendon v. Busch CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

CLAUIS A. HENDON, JR.,

Plaintiff and Respondent,

v.

BRADLEY JOHN BUSCH,

Defendant and Appellant.

G056575

(Super. Ct. No. 30-2018-00990143)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, John S. Adams, Judge. Reversed and remanded.

Munoz & Associates and Edward R. Munoz for Defendant and Appellant.

Law Office of Michael L. Fell and Michael L. Fell for Plaintiff and Respondent.

* * *

Defendant Bradley John Busch appeals from a civil harassment restraining order issued pursuant to Code of Civil Procedure section 527.6 in favor of plaintiff Clauis A. Hendon, Jr. Among other things, the restraining order required defendant, who struggles with mental health issues, to stay at least 100 yards away from plaintiff, his wife, their home, and their vehicle for three years. The restraining order initially listed defendant’s address as his parents’ home. And that home is within 100 yards of plaintiff’s home. The effect of the restraining order, therefore, was to evict defendant from his home.

The court subsequently modified the restraining order to say defendant’s address was “unknown.” On appeal, defendant contends the court erred by making this modification because there was substantial evidence he lived with his parents who were coconservators for his medical care. He also argues the restraining order improperly bars him from his home. We agree with plaintiff’s contentions. Substantial evidence did not support the court’s finding that defendant’s address was unknown, and section 527.6 does not authorize the court to evict defendant from his home. Accordingly, we reverse the judgment.

FACTS

Plaintiff’s Request for a Civil Harassment Restraining Order

In May 2018, plaintiff requested a civil harassment restraining order requesting the court order defendant to stay at least 100 yards away from plaintiff, his wife, their home, and their vehicle. The request listed defendant’s address as an address in San Clemente, California (Parents’ Address), and indicated defendant “lives with/visits his parents, who live at [Parents’ Address], which is 125 feet from [plaintiff’s] home.” It appears plaintiff subsequently crossed out the phrase “lives with.” The request also stated defendant will “still be able to get to his . . . home, school, or job” “[i]f the court orders [defendant] to stay away from all the places listed.”

Testimony Regarding Defendant’s Residence and Harassment

Three witnesses testified at the hearing. First, plaintiff testified defendant’s parents live approximately 125 feet away from him. According to plaintiff, defendant was at his parents’ home “[f]rom time to time [and] [t]here were stretches where he would be there, stretches where he wouldn’t be there.” He explained “it seemed [defendant] lived there on and off” and defendant “would go back and forth and then just seemed like he was there and then he wasn’t and he would appear and reappear.”

With respect to defendant’s harassing behavior, plaintiff testified that in 2015 defendant confronted him on the street in their community and asked “what the hell” he was doing there. In 2016, defendant yelled from his balcony that his sister had been kidnapped (which was not true), and told plaintiff to call the police. Plaintiff also recalled another incident in 2016 when he was taking out his trash at around two in the morning, opened his garage door, and defendant was standing about six inches away. When plaintiff asked defendant what he was doing there, defendant mumbled something. In 2017, defendant called the police and reported that someone was hanging from a noose at plaintiff’s home (which was not true). This caused the police to respond and investigate. In the same year, defendant called the police and reported that guns were shot inside plaintiff’s home (which again was not true). The police responded and investigated. On another occasion, defendant rang plaintiff’s doorbell and asked if his mother was there. He returned a few minutes later with his father and again asked if his mother was there. At that point, defendant’s father told plaintiff to call the police on his son. Finally, plaintiff testified that defendant had peeked into the window of a widowed neighbor and her daughter. Plaintiff said these incidents were stressful to him and his wife and explained he had been battling lymphoma leukemia for the last several years.

Kathleen B. Hout, another neighbor in the community, testified next. She recalled an incident when she was outside of her home and defendant told her to call the police because there was a kidnapping and hostage in her home. He then trespassed into her home. Defendant’s father eventually called the police, and they arrested defendant. The police told Kathleen there had been seventeen 911 calls in the last year involving defendant. She also testified about an incident involving the prior owners of her home where defendant had called the police and falsely reported there was a shooter in their home.

Finally, defendant’s father testified about defendant who is his 38-year-old son. Among other things, he explained he and his wife were coconservators for defendant’s medical care. He also testified defendant “had multiple hospitalizations because of his mental health issues . . . .” With respect to defendant’s residence, he testified, “[M]y son . . . had lived with me for approximately five years prior to . . . December [2017] and . . . that’s still his residence.” Defendant slept at his father’s home every night except for when he was in treatment for his mental health. His father further testified: “There was a very brief period of time at the end of October of 2017 we rented a little apartment for [defendant] in Newport Beach to see if we could transition him into independent living[, but h]e was there only a few nights . . . because it wasn’t working out, so he came back home.” Defendant’s father rented the apartment for only three months, and defendant stayed at the apartment for around seven to 10 days before returning to his parents’ home. Finally, defendant’s father testified defendant had started a “partial hospitalization program” recommended by Orange County mental health officials and was seeing a psychiatrist twice a week. Defendant also was going to start a new treatment for depression, anxiety, and posttraumatic stress disorder.

The Restraining Order, Request for Modification, and Amended Restraining Order

At the conclusion of the hearing, the court acknowledged “family involvement” is “an important component to [the] recovery” of someone who is “mentally ill” and commended defendant’s parents for trying to help their son. But the court found “those that . . . testified and their families, are entitled to not have to look over their shoulder, not have to worry if someone is going to come in the front door, confront them at the garage door, call the police who are . . . obligated if there is a report of someone with a gun, dead body hanging, they need to investigate.”

The court then granted plaintiff’s request for a civil harassment restraining order. The restraining order, which was on Judicial Council Form CH-130, required defendant not to harass or contact plaintiff and his wife and to stay at least 100 yards away from them, their home, and their vehicle for three years. The order listed defendant’s address as Parents’ Address, which was his parents’ home. At the hearing, the court refused to create a “carveout for the parents’ home” because their balcony was only around 125 feet away from plaintiff’s home. But the Judicial Council form included the following standard language: “This stay-away order does not prevent you from going to or from your home or place of employment.”

Almost a month later, plaintiff filed a request to modify the restraining order to change defendant’s address from Parents’ Address to “unknown.” Plaintiff claimed the San Clemente address was “inadvertently” listed in his request and the court’s restraining order. Because the restraining order permitted defendant to go to and from his “home or place of employment,” plaintiff suggested defendant “could argue that being at [Parents’ Address] would not be in violation of the [o]rder.” According to plaintiff, “this was not the [c]ourt’s intent.”

The court granted plaintiff’s requested modification and amended the restraining order to say defendant’s address was “unknown.” Defendant subsequently filed a response arguing “the sum total of [the] testimony [at the hearing] established that [defendant’s] residence/home was and remains: [Parents’ Address].” According to defendant, this “was made apparent at the conclusion of the sworn testimony and it was apparent when opposing counsel finalized the protective order at the conclusion of [the] hearing.” Defendant argued: “To alter this fact by the requested modification would render the process meaningless.” A few days later, defendant filed his own request to modify the restraining order and requested the court change defendant’s address from “unknown” to the Parents’ Address. He argued the “modification adopts a fictionalized fact that [defendant] has no known residence address.” Defendant then filed a notice of appeal before the hearing on his request for a modified restraining order.

DISCUSSION

Defendant contends the court erred by modifying the restraining order to say his address was “unknown” because the testimony established he lived at his parents’ home. He also claims the modified restraining order improperly bars him from his home because it is less than 100 yards away from plaintiff’s home. While he acknowledges the court could restrain his conduct, he argues the court could not restrain where he lives because he “was living with his parents for a legitimate purpose, i.e. care for his mental illness, which negates harassment.” Finally, defendant contends his Fourteenth Amendment due process rights were violated because the restraining order was not narrowly tailored. According to plaintiff, “the evidence does not support [defendant’s] contention that the [Parents’ Address] is his present permanent home or intends to be his permanent home.” Plaintiff argues the restraining order does not bar defendant from his home and instead bars him from his parents’ home. Plaintiff also claims defendant’s due process rights were not violated. Because substantial evidence did not support the court’s finding that defendant’s address was unknown, the court erred by modifying the restraining order. With the proper address in place, the restraining order cannot stand. Section 527.6 did not authorize the court to evict defendant from his home. On the other hand, it is undisputed that defendant’s conduct amounted to harassment. Accordingly, we remand for the court to craft a narrower restraining order.

Applicable Law and Standard of Review

Section 527.6, subdivision (a)(1) allows a victim of harassment to seek an order to prohibit harassment. “‘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 that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.” (Id., subd. (b)(3).)

We review the issuance of a civil harassment restraining order for abuse of discretion. (Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1226.) In applying the abuse of discretion standard, we consider “whether the findings (express and implied) that support the . . . court’s entry of the restraining order are justified by substantial evidence in the record.” (R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188.) “[W]hether the facts . . . are legally sufficient to constitute civil harassment under section 527.6, and whether the restraining order passes constitutional muster, are questions of law subject to de novo review.” (Ibid.)

Substantial Evidence Does Not Support the Amended Restraining Order

Here, substantial evidence does not support the court’s finding that defendant’s address was unknown. Plaintiff argues defendant’s home “remains unknown” because he did not own his parents’ home, his parents had rented an apartment for him, his parents had taken him to a motel at some point, and his parents hoped defendant would be independent one day. But defendant’s father was the only witness who testified with personal knowledge of defendant’s living arrangement. He extensively testified that defendant lived with him and his mother at their San Clemente home. He said their home was “still [defendant’s] residence” at the time of the hearing. He further explained defendant lived with them from 2012 to 2017 and was home every night except for when he was in treatment for his mental health. Although he rented an apartment for defendant for three months in October 2017, he testified defendant only stayed there seven to 10 days before he returned to his parents’ home. While plaintiff testified he did not see defendant “[f]rom time to time,” this does not suggest defendant did not live with his parents. Based on the testimony, we cannot find there was substantial evidence that defendant’s address was unknown.

We next turn to the issue of whether a civil harassment restraining order can bar a person from his or her home. Defendant argues the court could not bar him from his home, but plaintiff ignores the issue. We conclude defendant is correct.

The holding in Marquez-Luque v. Marquez (1987) 192 Cal.App.3d 1513 is instructive. In that case, the court reversed a civil harassment restraining order evicting the defendant from his home. (Id. at pp. 1517-1519.) The plaintiffs were the brother and sister of the defendant who lived in their father’s home following their father’s death. (Id. at p. 1515.) The defendant had threatened to kill his sister and burn down the house. (Ibid.) The plaintiffs sought a civil harassment restraining order to enjoin the defendant from harassing the family and to remove him from their father’s home. (Ibid.)

The court found neither section 527.6 nor equity authorized the trial court to remove the defendant from his home. (Marquez-Luque v. Marquez, supra, 192 Cal.App.3d at p. 1517.) The court explained: “While defendant’s threatening conduct may have, and did, justify a personal injunction prohibiting the conduct itself, removal from the home was not a remedy authorized by . . . section [527.6].” (Ibid.) The court also noted the plaintiffs did not live with the defendant and analogized the case to one where a person is removed from his or her home to prevent domestic violence. (Ibid.) In those circumstances, the court explained eviction “is authorized only when the person for whose protection the order is made was actually residing with the person at whom the order is directed.” (Ibid.) In addition to “[t]he limited nature of the [section 527.6] statutory remedy,” the court added “there was no evidence that [defendant’s] mere presence in the home caused plaintiffs substantial emotional distress, or that his possession of the home was intended to harass or annoy plaintiffs.” (Ibid.) The court accordingly held “the special proceeding under . . . section 527.6 to enjoin harassment did not invest the court with authority to evict defendant from his dwelling,” and “the court [did not] have equitable jurisdiction to achieve that result.” (Id. at p. 1519.)

The same is true here. Although the court’s good intentions cannot be questioned and we sympathize with the disturbing conduct plaintiff has endured, section 527.6 did not authorize the court to evict defendant. Plaintiff did not live with defendant, and defendant’s mere presence in his home was not intended to harass plaintiff. While plaintiff may suggest defendant’s harassing conduct will continue unless he is evicted, the court could have attempted to prevent the harassment in other ways. Among other things, the court could have restricted defendant’s conduct, including his presence on plaintiff’s property and his interactions with plaintiff. Defendant’s threatening conduct justified an injunction enjoining his conduct, but the restraining order here was simply overbroad. Because the court could not bar defendant from his home, we need not address the parties’ due process arguments. We remand for the court to craft a narrower restraining order.

DISPOSITION

The judgment is reversed and the court is instructed to narrow the scope of the restraining order on remand. Defendant shall recover his costs incurred on appeal.

IKOLA, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.