Filed 11/25/19 Farris v. Hanson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

JAMES FRANK FARRIS,

Plaintiff and Appellant,

v.

RICHARD HURD HANSON,

Defendant and Respondent.

G057225

(Super. Ct. No. 30-2018-01027431)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Michael McCartin, Judge. Reversed and remanded.

James Frank Farris, in pro. per., for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

* * *

Plaintiff James Frank Farris challenges a trial court’s denial of his request for a civil harassment restraining order against his neighbor of 25 years. Some of the court’s comments at Farris’ request hearing support a conclusion that “‘an application of improper criteria or incorrect legal assumption’” occurred, constituting an abuse of the court’s discretion. (Cooper v. Bettinger (2015) 242 Cal.App.4th 77, 90 (Cooper).) We reverse and remand for further proceedings.

I

FACTS AND PROCEDURAL HISTORY

A. Request for Civil Harassment Restraining Order

In October 2018, Farris filed a written request for restraining orders against his next door neighbor defendant Richard Hurd Hanson, pursuant to Code of Civil Procedure section 527.6 (request). Farris had previously been involved in several other legal matters with Hanson, including prior restraining order petitions. In his request, Farris wrote that Hanson had made over 50 verbal death and assault threats over the previous six to seven years. One involved an allegation that Hanson had threatened to kill Farris when the two had been in a courthouse parking lot after Farris’ prior restraining order request.

Farris and Hanson’s residences shared a common fence. In his request, Farris wrote that in “early 2017,” Hanson had committed “vandalism and grand theft of large pots and garden items from the top of [the] fence.” Farris also referred to a December 3, 2017, incident that occurred at the fence, wherein Hanson committed a “premeditated attack to kill [Farris] with a major assault, throwing multiple large rocks, and pots directly at [Farris]” wherein “[o]ne large rock hit [Farris’] body directly . . .” (December 3 incident).

Farris included with his request a two-page typed document signed by himself and his neighbor, who both declared under penalty of perjury that “[o]n the second week end [sic] of December (8-9), 2017 . . . Hanson walked over from his house, to the front of the Farris home . . . and assaulted [the neighbor] and [Farris] with a large garden pot, filled with large rocks and tile.” The declaration further stated that “next[,] Hanson started to yell, rant, and rave incoherently at [Farris and the neighbor].” Farris further wrote that in the week following the December 3 incident, Hanson threw over 20 pots onto Farris’ front yard. Farris wrote that at two hearings on Farris’ prior requests for restraining orders, Hanson had given false testimony and presented to the court a false police report about the December 3 incident that had been “thrown out by the [district attorney].”

Farris alleged various other acts committed by Hanson. The allegations included Hanson sexually harassing Farris’ wife, poisoning Farris’ dog, using his own dog to attack people just short of biting them, exposing himself at a park, being a pedophile who had attempted “to lure small children to his backyard,” and driving a nail into Farris’ car tire.

Farris further wrote he had previously tried to talk to Hanson, had made several formal complaints—including over 20 to the police, two to animal control, and one to the post office—and had taken Hanson to small claims court and “won a settlement.” Farris requested that he not be charged a filing fee for his request.

 

B. Restraining Order Hearing

In November 2018, the hearing on Farris’ request was conducted by the trial court. The judge asked questions throughout the presentation of evidence, including the testimonies of both Farris and Hanson. Among other things, Farris reiterated one of his request claims that after a hearing for Farris’ prior request for a restraining order—about four months earlier—Hanson had threatened Farris’ life when the two had been in the courthouse parking lot. When the judge asked why Farris had not immediately returned to the courthouse to report the threat, Farris responded: “Because I have been told by you that death threats to beat somebody up are against the law. And the other judge that we saw also indicated that’s true. But because of the California Freedom of Speech and Documentation, nothing is going to happen. So it is just a waste of time. So, therefore, I just went home to make a report.” Farris testified the police told him he “no longer could make a police report or anything related to any offenses.” The judge commented: “They are probably tired of dealing with you guys. I am. And I don’t deal with you as much as the police do. Like I said, you guys are here more than my staff. So I don’t know.” The judge also commented that Farris and Hanson “both seem like decent people” when in court.

In response to Farris’ testimony, Hanson testified that after the subject hearing, a deputy had escorted Farris to his vehicle and Hanson had waited in the courtroom for the deputy’s return prior to leaving the courtroom. When the judge then asked Farris if a deputy had escorted him to his vehicle, Farris denied it as “absolutely false.”

Also during the hearing, the judge made several comments about Farris’ allegations of Hanson’s conduct. For example, when Farris testified that “as an example of harassment,” Hanson had gone to a meeting and requested that Farris be prohibited from parking legally in front of his own house, the judge said: “But here is the thing. We have the right to free speech. So people can say whatever they want to complain to agencies. [¶] . . . He has a right to make police reports, right to contact people that dogs are barking or making noise.” The judge then recited another one of Farris’ allegations and commented: “[Hanson] sweeps trash and debris to the front of [Farris’] house. I guess, you know, small claims will give you ten bucks for that if you have to pick it up or hire someone to do it. But it is just a bad neighbor. It is not illegal to be a crappy neighbor, for lack of a better legal term.” The judge also commented on Farris’ allegation that Hanson had cut plants on Farris’ side of the common fence, as follows: “He can cut back anything to the fence. The fence is both of yours. So you just don’t put pots up there, because you have a crazy neighbor. [¶] Right? [¶] I got a crazy neighbor, too. . . . It is what it is. If you don’t like it, you got to move. It is nothing illegal.”

In response to another of Farris’ allegations—that Hanson had blocked a drain path so that it flooded Farris’ yard—the judge commented: “I don’t know. I guess small claims can handle that.” With respect to Farris’ allegation that Hanson displayed yard signs “with derogatory information” and bad mouthed neighbors because of their sexual orientation, the court cited Hanson’s right to free speech. With respect to Farris’ allegation that Hanson repeatedly lied at prior restraining order hearings, the judge commented: “Well, that’s a felony, if he can get the [district attorney] to file. But I don’t get involved in that.”

With respect to the December 3 incident, Farris had subpoenaed Orange County Sheriff’s Deputy Daniel Douthitt, the responding deputy, to the hearing. Although Farris represented to the court that Douthitt would provide a “final disposition on the false police report that [Hanson] made,” Douthitt testified he had no such “final disposition.” Further, when Farris questioned Douthitt on whether a video of the December 3 incident, which had been produced by Hanson, had appeared to be “complete” or instead “a composite of videos from different times,” Douthitt responded he had watched the video and it had appeared to be “complete.” Douthitt recalled that, in the video, Hanson had been pushing rocks off the common fence onto Farris’ property. Douthitt denied Farris’ suggestion that Douthitt’s testimony meant Hanson had been pushing the rocks at Farris. Douthitt recalled telling Farris to stop putting rocks on the fence because Farris had “put them up there just to poke at [Hanson].”

Farris also asked Deputy Douthitt whether he recalled certain circumstances about the December 3 incident scene, such as whether there had been rocks sitting on the common fence and whether Farris and Hanson’s clothing in the video had been different from what Douthitt had directly observed. Douthitt testified he could not recall. At the end of Farris’ examination of Douthitt, the judge said: “So, Mr. Farris, we are not getting anywhere with the officer. I would rather him out on the street [sic]. [¶] He is not doing me any good. He is not doing you any good. So let’s let him go.” Farris thanked Douthitt for coming to the hearing and Douthitt was excused by the judge.

In his defense, Hanson testified about three document exhibits he submitted. According to the judge’s description of the exhibits in the hearing transcript, they were, respectively, a copy of a document Farris distributed to a neighbor about Hanson being a pedophile and illegal drugs being sold out of his home, a document about a communication to a homeowners association, and photographs related to objects Farris placed on top of the common fence between his property and Hanson’s. The judge said Farris had been “trolling” Hanson and was inclined to agree with Hanson that he had been harassed by Farris.

At the conclusion of the hearing, Farris said: “I guess I am pleading with the court to allow me to get a restraining order so that at least on my property and in my home I am not going to be harassed or threatened with my life and so on.” The judge responded: “I wouldn’t consider it in a million years unless you were completely innocent. [¶] And you are not. You are trolling for this guy. [¶] Let’s assume everything you say about him is right. Let’s say he’s a pedophile, he’s a liar, he’s crazy. You don’t troll for crazy people. You don’t do that if you want a restraining order.” The judge dismissed Farris’ request with prejudice. After the ruling, Farris asked if he could submit “a subpoena for a court order to get police reports.” The judge responded it would not grant any order because his request had been dismissed.

II

DISCUSSION

Farris asserts five grounds for reversal of the trial court’s denial of his request. First, he asserts the court committed error in not issuing a restraining order against Hanson because in one of Farris’ previous restraining order requests—apparently against an individual other than Hanson —the same judge had granted the request even though the evidence presented in that case (according to Farris) had been less compelling evidence than what was presented in this case. Second, Farris asserts the court accepted “false testimony and perjury from Hanson.” Third, Farris asserts the court “was unwilling to have Police reports on Hanson already completed, reviewed by the court.” Fourth, Farris asserts the court was biased against him. And lastly, Farris asserts the court “incorrectly ruled that if someone commits crime [sic] it cannot be included on a Restraining Order.”

 

A. Standard of Review and Relevant Law

Section 527.6, subdivision (a)(1), provides that “[a] person who has suffered harassment . . . may seek a temporary restraining order and an order after hearing prohibiting harassment as provided in this section.” We review a trial court’s denial of a restraining order request under section 527.6 for abuse of discretion. (Salazar v. Eastin (1995) 9 Cal.4th 836, 849-850.)

“‘All exercises of discretion must be guided by applicable legal principles . . . which are derived from the statute under which discretion is conferred. [Citations.] If the court’s decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, the court has not properly exercised its discretion under the law. [Citation.] Therefore, a discretionary order based on an application of improper criteria or incorrect legal assumption is not an exercise of informed discretion and is subject to reversal.’” (Cooper, supra, 242 Cal.App.4th at p. 90, quoting Farmers Ins. Exchange v. Superior Court (2013) 218 Cal.App.4th 96, 106.) “Where the language of a statute is clear, ‘“there can be no room for interpretation, and effect must be given to its plain meaning.”’” (Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1112.)

We construe Farris’ contention that the trial court “incorrectly ruled that if someone commits crime [sic] it cannot be included on a Restraining Order” to mean the trial court did not properly apply the law to his allegations about Hanson’s conduct. In support of his contention, Farris cites to seven pages in the reporter’s transcript. The pages contain comments by the judge supporting Farris’ argument that the trial court analyzed the issue of whether Farris was entitled to a restraining order as depending upon the legality of Hanson’s conduct.

For example, during one portion of the hearing, the judge commented about Farris’ allegations as follows: “Well, you don’t need an order for [Hanson] not to sexually harass your wife. That’s a crime. [¶] You don’t need an order for him not to kill your dog. That’s a crime. [¶] You don’t need an order for him not to threaten to kill you. That’s a crime.” At another point, Farris asked the court: “Is the [sic] possible to just get a restraining order that he cannot come on my property?” The judge responded: “Well, he can’t. [¶] That’s trespassing.”

We find the reasoning underlying the judge’s comments to be inconsistent with the plain language of section 527.6’s criteria for determining whether a trial court should grant a restraining order request. “If the judge finds by clear and convincing evidence that unlawful harassment exists, an order shall issue prohibiting the harassment.” (§ 527.6, subd. (i).) “‘Harassment’” is defined 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 that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.” (§ 527.6, subd. (b)(3).) While we can certainly see how the legality or illegality of alleged conduct can assist a trial court’s assessment of section 527.6’s controlling criteria—such as whether the alleged conduct “seriously alarm[ed], annoy[ed], or harasse[d] the person [requesting a restraining order]” (§ 527.6, subd. (b)(3))—the plain statutory language does not support a conclusion that the merits of a restraining order request depend upon the legality or illegality of the at issue conduct.

Based on our reading of the reporter’s transcript, we cannot discern whether the trial court’s decision to deny the request was based on (1) a legal conclusion that commission of a crime cannot support a restraining order, (2) an evaluation of the credibility of the parties and witnesses, or (3) some other reason or reasons. Accordingly, we find the judge’s comments cited by Farris sufficiently demonstrate “‘an application of improper criteria or incorrect legal assumption’” occurred with respect to section 527.6, constituting an abuse of the trial court’s discretion. (Cooper, supra, 242 Cal.App.4th at p. 90.)

C. Restraining Order Request Fee

Finally, Farris’ brief contains a single statement that the trial court “[i]mproperly den[ied] Court [sic] costs and fees, under RO Guidelines for the last Court Hearing.” As informed by Farris’ comments at oral argument, we construe the statement as an argument that Farris should not have had to pay a filing fee for his request. The plain language of section 527.6 appears to support Farris’ position: “There is no filing fee for a petition that alleges that a person has inflicted or threatened violence against the petitioner, stalked the petitioner, or acted or spoken in any other manner that has placed the petitioner in reasonable fear of violence, and that seeks a protective or restraining order restraining stalking, future violence, or threats of violence, in an action brought pursuant to this section.” (§ 527.6, subd. (y), italics added.) Farris’ request alleged, among other things, that Hanson both inflicted and threatened violence against him. Further, Farris’ request asked the court, among other things, to order Hanson to not “[h]arass, intimidate, molest, attack, strike, stalk, threaten, assault . . . hit, [or] abuse” Farris. Accordingly, although the record is not clear whether Farris actually did pay a filing fee, to the extent that he did, Farris was entitled to a waiver of the fee and should be refunded accordingly.

Based upon our holdings above, Farris’s other contentions on appeal are moot.

II

DISPOSITION

The order is reversed and this case remanded for a new hearing. The trial court is ordered to state the reasons for its ruling in writing to ensure the record is in a form which promotes efficient appellate review. The trial court is also ordered to refund to Farris any filing fee that he paid at the trial court level for his request in this case. Farris is awarded his costs on this appeal.

MOORE, J., ACTING P. J.

WE CONCUR:

ARONSON, J.

FYBEL, J.