Filed 12/6/19 Johnson v. Denney-Mullican CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

TERESA JOHNSON,

Plaintiff and Respondent,

v.

JANELLA DENNEY-MULLICAN,

Defendant and Appellant.

E071962

(Super.Ct.No. HEC1802243)

OPINION

APPEAL from the Superior Court of Riverside County. Samra Furbush, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Law Office of Zulu Ali, Zulu Ali, Geoffrey W. Sorkin and Sajjad Hussain for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Teresa Johnson obtained a two-year civil harassment restraining order against her neighbor, Janella Denney-Mullican, and Denney-Mullican appeals. Denney-Mullican challenges two evidentiary rulings. First, she argues that the court erred by excluding the testimony of the law enforcement officer who investigated an incident between the two neighbors. Second, she argues that the court erred by excluding certain video evidence. Denney-Mullican also contends that the restraining order is not supported by substantial evidence. We affirm.

BACKGROUND

The record does not contain Johnson’s request for a restraining order or Denney Mullican’s response. To summarize the relevant facts, we rely solely on the evidence adduced at the hearing on Johnson’s request. Only two witnesses testified—Johnson and Denney-Mullican.

At about 11:00 a.m. on November 17, 2018, Johnson was walking to her car when she heard Denney-Mullican say, “What the hell are you looking at?” Johnson asked her, “What is your problem?” Denney-Mullican tapped her watch and replied, “Time to take your meds. Time to take your meds, Teresa.” Johnson ignored her and returned to the house. Johnson explained: “This is what the woman does to me 24/7.”

At about 3:00 p.m. that same day, Johnson was walking her horse at an equestrian center. Denney-Mullican was driving a horse and buggy and rushed up behind Johnson. This spooked Johnson’s horse, and the horse bolted. Johnson went “flying forward onto [her] head.” Denney-Mullican laughed, rode past her, and said, “How does that feel, Teresa?” Johnson’s head was bleeding, and she begged Denney-Mullican to help her. Denney-Mullican ignored her and continued driving. Besides Denney-Mullican, no one saw Johnson fall. Johnson suffered a concussion and a broken nose. She had not had any contact with Denney-Mullican since this incident, other than to serve Denney-Mullican with papers.

According to Johnson, Denney-Mullican had a “long history” of harassing her. There was “another incident with [Denney-Mullican’s] same horse and buggy,” and they had “been in court before in 2017.” In the earlier proceeding, the court denied both of their requests for restraining orders. Within two weeks of that hearing, Denney-Mullican “started flipping off” Johnson’s friends and made over 32 false complaints to “every agency possible.” Denney-Mullican refused to leave her alone and “ha[d] it out for” her. Johnson was afraid for her life since the situation had escalated with the incident at the equestrian center.

Johnson wanted to call as witnesses her husband, a friend, and the sheriff’s deputy who investigated the incident at the equestrian center, Deputy Zavorka. None of them had witnessed the events at the equestrian center. The court asked for offers of proof and indicated that it might not hear from the witnesses if it “ha[d] that evidence from another source.” As to the deputy, Johnson said that there was no police report, and she wanted to hear what Denney-Mullican told the deputy. The court denied Johnson’s request to call all three witnesses during her case-in-chief but said that if Johnson needed them in rebuttal, the court would give her a chance to call them.

Denney-Mullican testified next and disputed Johnson’s version of events. According to her, she was entering the arena of the equestrian center as Johnson was exiting it. Denney-Mullican did not veer towards Johnson at any time. Rather, Johnson veered her horse towards Denney-Mullican. Denney-Mullican told Johnson “it was not advisable to do that.” Johnson’s horse spooked and reared up. Johnson fell, got up, and ran out of the equestrian center, leaving her horse behind. Johnson never asked Denney-Mullican for assistance, and Denney-Mullican did not see any open wounds on her. Deputy Zavorka appeared at Denney-Mullican’s home later that day. She told the deputy her “side of the story,” and the deputy looked at her horse and buggy.

Since the incident at the equestrian center, Johnson had yelled at Denney-Mullican from her backyard and given Denney-Mullican “the bird.” Denney-Mullican recorded video of Johnson doing that and wanted to play it for the court. The court replied that it did not “need to see the video.” Denney-Mullican argued that the video went to Johnson’s credibility and whether she feared Denney-Mullican. The court responded, “I understand. All right.” But the court did not permit Denney Mullican to play the video and moved to another topic.

Denney Mullican also wanted to call Deputy Zavorka to testify about “her investigation and the conclusions she arrived at from her investigation.” The court ruled: “So I’m going to deny that also for both sides. It sounds like the deputy was not a percipient witness to what happened, and her conclusions are not relevant to the hearing, so I’ll deny that.”

In the end, the court granted Johnson’s request for conduct orders but refused to enter a stay-away order “due to the proximity of the homes and the equestrian center.” The court ordered Denney-Mullican not to harass, intimidate, molest, attack, strike, stalk, threaten, assault, hit, abuse, destroy the personal property of, or disturb the peace of Johnson. It also ordered Denney-Mullican not to contact Johnson directly or indirectly. The restraining order would expire in two years.

DISCUSSION

I. Exclusion of the Deputy’s Testimony

Denney-Mullican contends that the court prejudicially erred by excluding Deputy Zavorka’s testimony as irrelevant. The argument lacks merit. Denney Mullican made an inadequate offer of proof and thus failed to preserve the issue for appeal.

“‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) We may not reverse a judgment for the erroneous exclusion of evidence unless “[t]he substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means,” and the error resulted in a miscarriage of justice. (Evid. Code, § 354, subd. (a).)

An offer of proof gives the reviewing court the means of assessing error and prejudice. (Gutierrez v. Cassiar Mining Corp. (1998) 64 Cal.App.4th 148, 161; People v. Schmies (1996) 44 Cal.App.4th 38, 53.) To achieve this purpose, the “offer of proof must be specific. It must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued.” (People v. Schmies, supra, at p. 53.) “[T]he failure to make an adequate offer of proof in the court below ordinarily precludes consideration on appeal of an allegedly erroneous exclusion of evidence.” (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 282.)

Deputy Zavorka investigated the incident at the equestrian center, and while she was not a percipient witness to the events, she may have had information about what occurred there. She may have also had information bearing on the credibility of Johnson’s and Denney-Mullican’s testimony. Did the deputy observe something that would undermine either party’s account of the events? Did either party say something to the deputy that would impeach the party on a material issue?

We have no way of knowing the answers to those questions because Denney Mullican failed to make a specific offer of proof. She merely stated that the deputy would testify about “her investigation and the conclusions.” And Johnson’s offer of proof did not compensate for the lack of specificity. She wanted to know what Denney-Mullican told the deputy but did not appear to know how the deputy would testify. Denney-Mullican’s lack of specificity means we cannot determine whether the deputy’s testimony was relevant, and moreover, we have no way to assess the prejudicial effect of excluding the deputy’s testimony. For all we know, the deputy’s testimony might have supported Johnson and harmed Denney-Mullican’s case. For this reason, Denney-Mullican failed to preserve her claim that the court prejudicially erred by excluding the deputy’s testimony. (Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 329 [party failed to preserve his evidentiary challenge by making an insufficient offer of proof]; Gutierrez v. Cassiar Mining Corp., supra, 64 Cal.App.4th at pp. 161-162 [appellant failed to preserve his evidentiary challenge because “[n]othing in this record properly shows, beyond surmise, what [the excluded witness] would have said”].)

II. Exclusion of the Video Evidence

Denney-Mullican argues that the court prejudicially erred by excluding the video of Johnson giving her “the bird.” She asserts that the video was relevant for impeachment purposes; it showed that Johnson was not afraid for her life and that she lied about having no contact with Denney-Mullican other than to serve papers. This argument also lacks merit.

The court did not articulate its legal basis for excluding the video. But even assuming the court abused its discretion, Denney-Mullican must show that it is reasonably probable she would have achieved a more favorable result if the court had admitted the evidence. (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431-1432.)

Denney-Mullican has not carried her burden. At the hearing, she described Johnson’s actions, and then her counsel asked to admit the video depicting what she had just described. The court said that it did not “need to see the video,” and when counsel explained the video’s impeachment value, the court said that it understood. The court’s comments suggest that it credited Denney-Mullican’s description of Johnson’s actions, and seeing the video corroboration was not going to change the court’s weighing of the evidence. In other words, the court viewed the video as cumulative of Denney Mullican’s testimony. The exclusion of cumulative evidence is not prejudicial. (People v. Harris (1989) 47 Cal.3d 1047, 1093; McCarthy v. Manhattan Beach (1953) 41 Cal.2d 879, 895.) Accordingly, even if the court abused its discretion, there was no reversible error.

III. Substantial Evidence

Denney-Mullican lastly argues that the restraining order is not supported by substantial evidence. (R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188 [trial court’s express and implied findings supporting a restraining order are reviewed for substantial evidence].) We disagree.

Code of Civil Procedure section 527.6 permits a victim of harassment to obtain an injunction prohibiting the harassment. (§ 527.6, subd. (a).) Harassment means 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,’ that serves no legitimate purpose, and that is not constitutionally protected activity. To constitute harassment, 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 petitioner.’” (R.D. v. P.M., supra, 202 Cal.App.4th at p. 188, quoting § 527.6, subd. (b).)

In conducting our substantial evidence review, “[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 do not reweigh the evidence or reassess the credibility of witnesses. (Williams v. Hilb, Rogal & Hobbs Ins. Services of California, Inc. (2009) 177 Cal.App.4th 624, 643.)

First, Denney-Mullican arguably has forfeited this contention. In addition to the parties’ oral testimony, the court could rely on evidence offered by declaration. (Schraer v. Berkeley Property Owners’ Assn. (1989) 207 Cal.App.3d 719, 733, fn. 6.) Denney Mullican bears the burden of providing an adequate appellate record. (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) But the record does not include Johnson’s request for a restraining order or Denney-Mullican’s response, and we therefore cannot say whether their papers contained sworn statements supporting the court’s restraining order. “Without a complete record that includes the evidence submitted by both parties,” we cannot resolve a substantial evidence challenge. (McClain v. Kissler (2019) 39 Cal.App.5th 399, 426.)

Second, even considering the record in its incomplete state, substantial evidence shows that Denney-Mullican engaged in unlawful harassment. According to Johnson, since 2017, Denney-Mullican had been making false complaints against Johnson to “every agency possible.” The morning of the equestrian center incident, Denney-Mullican taunted her by saying that it was “[t]ime to take [her] meds.” Johnson suggested that this kind of taunting was common. (“This is what the woman does to me 24/7.”) Later that day, Denney-Mullican rushed Johnson with her horse and buggy, causing Johnson to fall and injure herself. Denney-Mullican laughed and asked Johnson how that felt, and she ignored Johnson’s plea for help. The escalation in Denney-Mullican’s behavior from false complaints and taunts to conduct causing physical injury had caused Johnson to fear for her life. From this evidence, a trier of fact could reasonably conclude Denney-Mullican engaged in a course of conduct that would cause a reasonable person to suffer substantial emotional distress, and that Johnson actually suffered such distress.

Denney-Mullican contends that Johnson’s testimony was not credible because it was inconsistent and contradictory. But the trial court implicitly found Johnson credible. “[A] trial court’s credibility findings cannot be reversed on appeal unless that testimony is incredible on its face or inherently improbable.” (Consolidated Irrigation Dist. v. City of Selma (2012) 204 Cal.App.4th 187, 201.) Johnson’s testimony was neither.

Denney-Mullican further argues that there was no evidence she intended to harm Johnson at the equestrian center. Section 527.6 requires a “knowing and willful” course of conduct (§ 527.6, subd. (b)(3)), not an intent to harm, and Johnson’s testimony supplied circumstantial evidence of the required state of mind. A trier of fact could reasonably infer from Denney-Mullican’s reaction to Johnson’s fall that Denney Mullican acted knowingly and willfully. Rather than apologizing or helping Johnson, Denney-Mullican laughed and ignored Johnson’s plea for help. The trial court could reasonably infer that Denney-Mullican intentionally caused Johnson’s fall.

In short, Denney-Mullican’s substantial evidence challenge fails. She neglected to provide an adequate record, and even the incomplete record before us contains substantial evidence supporting the court’s restraining order.

DISPOSITION

The civil harassment restraining order is affirmed. Johnson shall recover her costs of appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MENETREZ

J.

We concur:

MILLER

Acting P. J.

RAPHAEL

J.