Filed 4/24/20 Contis v. Purucker CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

NICHOLISA CONTIS,

Plaintiff and Respondent,

v.

JOHN PURUCKER,

Defendant and Appellant.

B296966

(Los Angeles County

Super. Ct. No. 19STRO00878)

APPEAL from an order of the Superior Court of Los Angeles County, Kimberly Dotson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Lewi Law and Christopher C. Lewi for Defendant and Appellant.

Kaufman McAndrew and Lee Fineman for Plaintiff and Respondent.

_____________________

 

A dispute between two neighbors began with arguments over parking and mushroomed from there. One of the neighbors sought a civil harassment restraining order against the other, which was granted following an evidentiary hearing. The restrained party now challenges the sufficiency of the evidence supporting the issuance of the restraining order, and additionally asserts procedural errors require reversal. We find no merit in these contentions, and affirm.

FACTUAL BACKGROUND

A. The Parties
B.
The individual that sought the restraining order is Nicholisa Contis. In September 2017, Contis purchased a house in Malibu. Contis is under five feet in height, and at the time she purchased the house, was in her late 50’s. Her neighbor, and the party against whom the restraining order was sought, is John Purucker. He was also in his late 50’s in September 2017. Purucker lived across the street from Contis, in the back of his parents’ acre parcel. Purucker is approximately six feet tall.

C. The Disagreement About Parking
D.
The parties’ first relevant encounter was a disagreement about parking. Purucker and his family parked vehicles on a dirt strip in front of Contis’s house. These vehicles included work trucks and heavy equipment such as a dump truck and backhoe. In October 2017, Contis left a note on the windshield of one of Purucker’s vehicles informing him that she was the new owner of the property and that he could no longer park his vehicles in front of her house. Presumably, the note did not cause Purucker to move his vehicles because approximately one week later, Contis spoke to Purucker in person about not parking in front of her house. Purucker responded that he had parked his vehicles in front of her property for over 40 years and that he had an easement to do so. Contis suggested that she could have Purucker’s vehicles towed. Purucker responded “I don’t think so,” and walked away.

Contis testified that after this discussion about parking, she was “consistently harassed if [she] walk[ed] outside”; that when Purucker would see her, he would yell at her to go back where she came from; and that Purucker would yell at her “all the time.” Contis further described specific encounters between Purucker or members of his household and Contis, which we summarize below.

E. Purucker’s Son Confronts Contis as Purucker Watches and Laughs
F.
Contis testified that some time after she left the note on Purucker’s windshield, Purucker’s son confronted her on the street while she walked with two friends. Purucker’s son approached them “walking at a very fast clip.” He reiterated that Purucker’s family had lived there “forever,” that she could not do anything about the vehicles, and that she would “be sorry if [she] d[id] anything.” Contis testified that during this exchange between her and Purucker’s son, Purucker “was standing outside in front of the trailer at his home, watching the scenario” and laughing.

Contis further testified that after this encounter, Purucker spent time in his front yard and watched her. Purucker’s son would also sit outside in his car while smoking and watch her house. During the evidentiary hearing, Purucker admitted that he was in his front yard “all the time, and I tend to be aware of my surroundings, so I look right, left,” but that this behavior was consistent with what he has done for 50 years.

G. The Trash Can Incident
H.
After the Woolsey fire in Malibu, Purucker’s wife passed away, and his home and a number of his vehicles were destroyed. Contis testified that thereafter, Purucker lived in a trailer on his parents’ property and his intimidating behavior escalated. Purucker denied any intimidation; he explained that it was understandable if his nerves were “a little raw” and if he “ha[d] not been at his best” because he lost his wife, his home, and his tools in the fire.

Contis testified that after residents were permitted to return to their homes following the fire, Purucker screamed at her that she had stolen his trash cans. During this incident, Purucker also yelled at Contis that he had seen her walking around the burned properties and that he was watching her. Contis also testified that during this incident, Purucker told her to go back where she came from. Contis further testified that over the course of their interactions, Purucker has told her to go back to where she came from at least 15 times.

Purucker’s version of the trash can incident was that he “went out to get my blue trash cans in the front yard, and all of a sudden, she had a string of trash cans half the width of this room. And I said, hey, did you take my trash cans? . . . She said no, I did not. And I said well, I can’t find any of mine, and all of a sudden you’ve got twice as many as you’ve ever had. Because she leaves them in the street all along the week. And you’re supposed to bring them in . . . but she leaves hers out in the street all week long.” Purucker further testified that during the encounter, Contis approached him with her finger pointed at him, and yelled that she had permission from other neighbors to use their trash cans. As for telling Contis to go back where she came from, Purucker testified that he may have said it “once, but I don’t even remember saying that.”

In her rebuttal testimony at the hearing, Contis began to address Purucker’s claims that she yelled and pointed her finger at him. Purucker then interrupted her testimony. The court admonished Purucker to “please restrain from making snide comments,” because “[i]f I can hear you up here, that’s a problem.” The reporter’s transcript, however, does not record the comment made by Purucker that prompted the court’s admonition.

I. Encounters with Purucker’s Dogs and the Week of January 18, 2019
J.
Contis also testified that on at least two occasions, Purucker’s dogs behaved in a threatening manner towards her. One incident occurred when she was picking flowers in her front yard. Purucker’s two dogs ran across the street to her front yard to bark at her. Contis did not see anyone with the dogs, but could hear Purucker yelling the dogs’ names.

Contis also testified about a second incident that occurred on January 18, 2019. Contis and a male friend were walking her small dog, on a leash, when Purucker’s two dogs (which were off leash) attempted to bite Contis and her friend. Contis’s friend picked up her dog to prevent it from being attacked. Contis testified that as the encounter was unfolding, Purucker stood in front of his trailer chuckling before casually walking towards them to get his dogs. Contis called animal control that day.

As to the January 18, 2019 incident, Purucker testified that “[Contis’s] dogs got loose and went out into the street, and my dog . . . pushed the screen door [of the trailer] open and went outside . . . and then her boyfriend started dancing around with the dog above his head, kind of like a ballerina thing, and I calmly walked over, got my dogs, and walked them back towards my property.” In response to this testimony, Contis offered still photos taken from her security camera video to support her testimony that her dog was on a leash during the incident.

Later, on January 18, 2019, as Contis was about to leave for work, a woman who she believes may be Purucker’s daughter “was in the middle of the street, walking up and down, yelling at me, why do you hate my family? Videotaping me. She had her [knit cap] . . . pulled down so you couldn’t see what she looked like, yelling at me, why do you hate my family?”

That same week, a sheriff’s officer who was making rounds in the neighborhood asked Contis if a car in front of her house with Nevada license plates was hers. Contis testified that Purucker came out of his trailer and confronted Contis and the officer, yelling that he could tell the officer everything the officer needed to know, that Purucker had lived in the neighborhood for over 50 years, and that Contis needed to go back to where she came from.

K. The February 16, 2019, Security Camera Footage
L.
Contis testified that about a month later, on February 16, 2019, her doorbell camera showed Purucker coming up her driveway while she was not at home. Purucker challenged this testimony, claiming he never went on Contis’s property. Following the court’s instructions to do so, Contis showed the relevant video footage to Purucker during the hearing. Purucker explained that the footage only showed him “on the parking easement,” where he walked to get an overview of his property after the fires.

M. Effects of Purucker’s Actions
N.
Contis fears for her safety, and is “afraid to interact with [Purucker because h]e gets very angry.” Contis also testified that as a result of Purucker and his son watching her and her house, she is cautious whenever she is outside. Following the fire, her neighborhood is dark and only about four people, including herself, live on her block. Contis expressed that she is therefore fearful that no one would hear her if she screamed for help. In part due to Purucker’s behavior, in January 2019, Contis moved out of her home.

O. The Parties’ Alleged Easements
P.
Contis testified that the portion of land on which Purucker parked his vehicles was subject to a walking easement. The record is not clear whether this easement was granted to the city of Malibu or to Contis. Contis described it as an easement “to the city.” Contis also responded in the affirmative when the court inquired of her, “[Y]ou received your easement indicating that area that the trucks or vehicles are parked on is actually now your property; is that correct?” Contis presented a copy of the easement to the court and to Purucker’s counsel during the hearing. A copy of this document was not marked as an exhibit and was not included in the record on appeal.

During Purucker’s evidentiary presentation, his counsel elicited Purucker’s testimony that where he parks his vehicles is a public easement. The court asked, “do you have—you and your lawyer have proof that it’s a public easement, not a private easement?” Purucker responded that “[t]here’s a piece of paper here that shows it’s a 58-foot wide easement.” The record is unclear as to what piece of paper Purucker was referring.

After the court asked questions about the alleged easement, it asked “[a]nything else you wish to tell the court, Mr. Purucker?” Purucker’s counsel resumed questioning, and Purucker testified that none of his vehicles were ever ticketed or towed away. Purucker argued the fact that he was never ticketed established that the “police decided it’s perfectly acceptable” for him to park his cars in front of Contis’s property. However, Purucker acknowledged the sheriff had issued citations to move his vehicles within 72 hours. Further, Contis testified that the sheriff’s department did not tow Purucker’s vehicles because it does not have a vehicle that could tow heavy equipment. The court asked Purucker’s counsel whether he had any more questions. He responded, “No, your honor.”

PROCEDURAL BACKGROUND

Contis filed her petition for a civil harassment restraining order on February 8, 2019. The court partly granted a temporary restraining order against Purucker pending an evidentiary hearing, which it set for February 28, 2019. On February 22, 2019, Purucker’s counsel filed a response, objecting to the imposition of a restraining order. That response included arguments about the alleged parking easement in favor of Purucker.

Following the introduction of all parties at the evidentiary hearing, the court stated, “Okay. Give me a second. A response was scanned in yesterday, and I had already prepped.” Purucker did not request a continuance of the hearing, which he was permitted as of right (Code Civ. Proc., § 527.6, subd. (o)), nor otherwise object to proceeding with the hearing.

After reviewing Purucker’s response, the court heard testimony and argument from both parties. As described above, the court permitted Purucker’s counsel to question Purucker until he had no further questions. Further, during the hearing, the court twice stated on the record that it had read Purucker’s response to the petition and summarized Purucker’s response while questioning him.

At the conclusion of the hearing, the court issued a civil harassment restraining order for a period of two years, to expire on February 28, 2021. The restraining order requires that Purucker “must not do the following things to” Contis: “Harass, intimidate, molest, attack, strike, stalk, threaten, assault (sexually or otherwise), hit, abuse, destroy personal property of, or disturb the peace of the person,” and further prohibits him from contacting Contis. The restraining order does not include any stay away provision, and makes no reference to parking.

DISCUSSION

Purucker raises three arguments on appeal. First, he argues that there was not clear and convincing evidence of a harassing course of conduct to support the court’s issuance of a restraining order. Second, Purucker argues that the court committed “an error of law in requiring that Purucker’s claimed easement be in writing . . . or by establishing that Contis had an easement on her own property.” (Italics omitted.) Lastly, Purucker suggests that the court did not provide him with a fair opportunity to present his defense because the court read his response to Contis’s petition while on the bench, and because section 527.6’s expedited procedures did not give him sufficient time to prepare a defense.

A. Section 527.6

Section 527.6, subdivision (a)(1), provides that a victim of harassment “may seek a temporary restraining order and an order after hearing prohibiting harassment as provided in this section.” Section 527.6, subdivision (b)(3), defines “ ‘Harassment’ ” to include not just actual violence or threats of violence, but also “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person,” that serves no legitimate purpose, and that is not constitutionally protected activity. To constitute harassment, 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.” (Ibid.) “ ‘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 . . . .” (Id., subd. (b)(1).) If the court “finds by clear and convincing evidence that unlawful harassment exists,” the court must issue a restraining order prohibiting the harassment. (Id., subd. (i).) Section 527.6 limits the duration of a civil harassment restraining order to five years. (Id., subd. (j)(1).)

Section 527.6 was designed to provide a quick and simple procedure to enjoin harassment. Thus, section 527.6 requires a hearing on the petition for a civil harassment restraining order “[w]ithin 21 days, or, if good cause appears to the court, 25 days from the date that a petition for a temporary order is granted or denied . . . .” (Id., subd. (g).) However, if the party to be restrained needs more time to prepare, he or she “shall be entitled, as a matter of course, to one continuance, for a reasonable period, to respond to the petition.” (Id., subd. (o).)

B. Substantial Evidence Supports the Court’s Issuance of the Civil Harassment Restraining Order

1. Standard of Review

When reviewing the issuance of a civil harassment restraining order, we look to see “whether the findings (express and implied) that support the trial 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.) That means “[w]e 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 discard evidence unfavorable to the prevailing party “ ‘as not having sufficient verity to be accepted by the trier of fact.’ ” (In re Michael G. (2012) 203 Cal.App.4th 580, 595; see also In re Marriage of Greenberg (2011) 194 Cal.App.4th 1095, 1099 [“ ‘The trier of fact is the sole judge of the credibility and weight of the evidence’ ”].)

Whether the facts, when construed in Contis’s favor, are legally sufficient to constitute civil harassment under section 527.6 is a question of law subject to de novo review. (R.D. v. P.M., supra, 202 Cal.App.4th at p. 188.)

Relying on Pulte Home Corp. v. American Safety Indemnity Co. (2017) 14 Cal.App.5th 1086, 1125, Purucker argues we must inquire whether the record contains substantial evidence to support a determination of harassment by clear and convincing evidence. At least one court has declined to follow Pulte, finding it conflicts with California Supreme Court authority such as Crail v. Blakely (1973) 8 Cal.3d 744, 750. (See Morgan v. Davidson (2018) 29 Cal.App.5th 540, 549-550.) The Morgan court noted that in Crail, our Supreme Court determined that the clear and convincing evidence standard was adopted “ ‘for the edification and guidance of the trial court, and was not intended as a standard for appellate review. “The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal.” ’ [Citations.]” (Morgan v. Davidson, supra, at p. 549.)

We need not resolve this dispute, as under either test the record demonstrates substantial, clear, and convincing evidence of Purucker’s harassment.

2. Analysis

Purucker’s argument that the evidence before the court was not sufficient to establish that he harassed Contis is threefold. First, Purucker recounts several of the incidents of which Contis complained, denies several of them, and offers his own version of what happened. However, an appellate court is not a trier of fact and does not weigh the evidence or the credibility of the parties. That is for the trial court. (In re Michael G., supra, 203 Cal.App.4th at p. 595; In re Marriage of Greenberg, supra, 194 Cal.App.4th at p. 1099; Schild v. Rubin, supra, 232 Cal.App.3d at p. 762.) Rather, we must “resolve all factual conflicts and questions of credibility in favor of the prevailing party.” (Schild v. Rubin, supra, at p. 762.)

Second, Purucker argues that his parking in front of Contis’s house had a legitimate purpose, and therefore could not constitute harassment. Purucker relies on Byers v. Cathcart (1997) 57 Cal.App.4th 805 (Byers) to support this argument. In Byers, the trial court granted one party a section 527.6 injunction that expressly prohibited the other party from parking in a driveway, despite that party’s claim she had an easement. The Court of Appeal reversed, finding that a section 527.6 restraining order was not the proper procedural mechanism to resolve a real property dispute. The Byers court explained that as a counterbalance to section 527.6’s expedited procedures, any civil harassment restraining order is limited to a maximum number of years. Thus, a 527.6 restraining order would not offer any finality for a real property dispute, evidencing that the Legislature could not have intended section 526.7 to be used for such disputes. (Byers, supra, at p. 810; see also § 527.6, subd. (j)(1).)

Byers further found that complex issues of real estate law such as the rights and duties relating to an easement cannot properly be resolved using the summary procedures of section 527.6, which do not allow for research, investigation, discovery, preparation, and opportunity for a full trial. (Byers, supra, 57 Cal.App.4th at pp. 808, 810-812.) Central to the Byers court’s determination was that the only allegedly harassing act at issue was parking. (Id. at. p. 809.) Moreover, with respect to that parking, “[t]here was no evidence . . . that [the] plaintiff had available to her other equally convenient parking spaces but nevertheless spitefully chose to park on the driveway easement simply to annoy defendants.” (Id. at p. 812; see also id. at p. 808.)

Unlike the parties in Byers, Contis complained of (and introduced evidence concerning) harassing activity well beyond Purucker parking vehicles in front of her home. While the parking issue may have been the initial catalyst for the parties’ disputes, the record shows Purucker engaged in course of harassment and intimidation towards Contis beyond simply parking his vehicles in front of her house. Purucker yelled at Contis as a regular practice, even when a deputy from the sheriff’s department was present. Moreover, the content of what Purucker yelled was often harassing and intimidating, such as repeatedly telling Contis to go back to where she came from. Purucker also told Contis that he was watching her and, in fact, did repeatedly stare at her in a way Contis found intimidating. The court was also entitled to infer that Purucker prompted his son to tell Contis that she would be sorry if she did anything to have Purucker’s vehicles towed, given that he watched and laughed as this interaction occurred. We finally note the court was entitled to infer Purucker’s motives were harassing given the attitude he exhibited towards Contis at the evidentiary hearing, including making a snide comment as Contis spoke and describing Contis’s male friend as acting like a ballerina.

While Purucker argues that each of these incidents is not sufficient to constitute harassment, we are not limited to looking at each incident in isolation; rather we consider the totality of the events. In doing so, we find substantial evidence Purucker’s course of conduct was harassing, would cause a reasonable person to suffer substantial emotional distress, and caused such substantial emotional distress to Contis that she moved out of her home. Thus, even if we assume Purucker had a valid parking easement, the non-parking conduct in the record supports the court’s issuance of a restraining order. Because the record reflects substantial evidence to support the trial court’s issuance of the restraining order even if Purucker had a valid parking easement, we need not consider Purucker’s argument that the court applied an incorrect legal standard when analyzing his alleged easement. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-803 [no prejudicial error when no reasonable probability of different result in absence of claimed error].)

C. The Trial Court Provided Purucker with A Fair Opportunity to Present His Defense

Purucker contends for the first time on appeal that the trial court failed to give him a fair opportunity to be heard because (1) the trial court read his response during the hearing, “which is inherently unfair and not in keeping with [his] due process rights,” and (2) section 527.6’s expedited procedures did not provide him with “ample time to develop evidence and prepare his case” to allow him “to defend his 40 years of use of the parking easement.”

As to Purucker’s first contention, Purucker does not cite—and we are not aware of—any authority that a court’s review of documents while on the bench is a violation of due process. Nor is there any evidence to support Purucker’s contention that the court could not “digest” Purucker’s written response. To the contrary, the trial court demonstrated that it had digested Purucker’s response when it correctly summarized the points made in that response during the hearing. Furthermore, at the hearing, Purucker was represented by counsel. Counsel did not request a continuance, and further was permitted to question Purucker until counsel had exhausted all his questions—including anything he wanted to highlight in the written response.

Purucker’s second claim, that section 527.6’s expedited procedures did not provide him sufficient time to develop evidence and prepare his case, was not raised below and is therefore waived. Purucker did not request a continuance of the evidentiary hearing, to which he was entitled, to permit additional preparation. Nor did he object to proceeding under section 527.6. We do not ordinarily consider alleged procedural defects where an objection could have been but was not presented to the trial court by some appropriate method. (In re Carrie W. (2003) 110 Cal.App.4th 746, 755.)

Purucker offers no persuasive reason to deviate from this general rule, and accordingly cannot raise this claim on appeal for the first time. Purucker argues that in misunderstanding his easement claim, the trial court committed an error of law, and notes that parties have been permitted to raise a new issue on appeal involving a pure question of law on undisputed facts. But his claim regarding the legal standard governing the easement, which we reject above for failing to demonstrate prejudice, has no relationship or bearing on any procedural objections. Purucker also argues that the Byers court permitted the issue of whether section 527.6 was the proper procedure to adjudicate a real estate dispute to be raised for the first time on appeal. Nothing in Byers, however, suggests this was in fact the case, as the opinion does not address the issue. Cases are not authority for propositions not considered. (Los Angeles County Metropolitan Transportation Authority v. Yum Yum Donut Shops, Inc. (2019) 32 Cal.App.5th 662, 673.)

Even if this argument was not waived, we would reject it. There was substantial evidence of harassment independent of any vehicle parking. Any error was thus harmless, because even if Purucker had succeeded in demonstrating a longstanding parking easement, the restraining order still would have issued. Further, we note that nothing in the record reflects any adjudication of the parties’ property rights as to the strip of land on which Purucker parked his vehicles, and the court made no order regarding parking. The concerns raised in Byers are therefore inapplicable, as it expressly addressed only a portion of a civil harassment restraining order “enjoining [the] plaintiff from parking along the side of the driveway.” (Byers, supra, 57 Cal.App.4th at p. 807.)

DISPOSITION

The civil harassment restraining order is affirmed. Contis is to recover her costs on appeal.

NOT TO BE PUBLISHED

WEINGART, J.*

We concur:

ROTHSCHILD, P. J.

CHANEY, J.