Filed 12/21/15 Rodriguez v. Piercy CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


SANTIAGO RODRIGUEZ,                                                  B257941

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GS015518)
         v.

DAVID PIERCY,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County, Mary
Thornton House, Judge. Affirmed.
         David N. Piercy, In Pro. Per., for Defendant and Appellant.
         No appearance by Plaintiff and Respondent.




                                     _____________________________
                                    INTRODUCTION

       David Piercy filed a Code of Civil Procedure Section 425.161 motion to strike
Santiago Rodriguez’s petition for a restraining order. The trial court granted the
restraining order but failed to rule on Piercy’s motion. We conclude that any error in
failing to rule on the section 425.16 motion was harmless because the court’s grant of the
restraining order demonstrates that Piercy’s motion would have been denied. We affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND
       Piercy and Rodriguez vehemently disagree concerning the events surrounding the
Trayvon Martin case in Florida. Starting as early as September 2013, Piercy and
Rodriguez used social media to argue about the trial, and to personally attack each other.
On May 2, 2014, Piercy filed a petition for a civil harassment restraining order against
Rodriguez in the Fresno County Superior Court. The court granted a temporary
restraining order against Rodriguez on May 5, 2014, but on June 2, 2014, denied Piercy’s
request for a permanent restraining order.
       On June 13, 2014, Rodriguez filed a petition for a restraining order against Piercy
pursuant to section 527.6 in the Los Angeles County Superior Court. In the petition,
Rodriguez accused Piercy of stalking and harassing him and his wife and posting their
personal information online. Rodriguez also stated that Piercy had threatened him with
violence. In his reply declaration, Rodriguez elaborated on the alleged harassment,
stating that Piercy had assaulted him and his wife, stolen his identity, threatened him with
jail time, and suggested he was tracking Rodriguez’s location with an online program.
Rodriguez stated that he and his wife felt intimidated by Piercy’s actions and were fearful
that if the court did not issue a restraining order Piercy would increase the level of
harassment.




1      All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.
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       The court scheduled a hearing for July 3, 2014, that was later continued until
July 24, 2014. On July 21, 2014, Piercy filed a section 425.16 special motion to strike
the petition for a civil harassment restraining order. In compliance with section 425.16,
the court scheduled a hearing on the motion for August 14, 2014. On July 24, 2014, the
trial court heard testimony regarding the requested restraining order from Rodriguez and
his wife. Afterwards, without having ruled on the section 425.16 motion, the trial court
granted Rodriguez’s request for a permanent restraining order. Piercy appeals.

                                       DISCUSSION

       Sufficiency of the Evidence

       Piercy contends that the evidence is insufficient to support the restraining order.
In assessing whether substantial evidence supports the trial court’s decision, we will
analyze whether “there is any substantial evidence, contradicted or uncontradicted, which
supports the finding.” (Kimble v. Board of Education (1987) 192 Cal.App.3d 1423,
1427.) An appellate court is “without power to judge the effect or value of the evidence,
weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the
evidence or in the reasonable inferences that may be drawn therefrom.” (Ibid.)
       The trial court must take relevant testimony to determine whether there has been
unlawful harassment. (Schraer v. Berkeley Property Owners’ Assn. (1989) 207
Cal.App.3d 719, 733 (Schraer).) However, the court is not required to make a statement
of its specific findings of fact, or describe how the facts presented satisfy the statutory
elements of harassment. (Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1112
(Ensworth).) Live testimony is not required in support of the petition; the court may
decide the matter on declarations. (Id. at pp. 1110-1111.) Although the trial court did
take testimony, there is no transcript in the record. Therefore, in considering the




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sufficiency of the evidence for the restraining order, we base our analysis solely on the
declarations.2
       Section 527.6 defines harassment as “a knowing and willful course of conduct
directed at a specific person which seriously alarms, annoys, or harasses the person, and
which serves no legitimate purpose.” (§ 527.6 subd. (b).) Furthermore, “[t]he 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 plaintiff.” (Ibid.)
Under section 527.6, the trial court must find unlawful harassment exists by clear and
convincing evidence. (Schraer, supra, 207 Cal.App.3d at p. 733.)
       Rodriguez describes frequent unwanted phone calls, threats of violence, and
exposure of his, and his wife’s personal information in his declaration. Rodriguez
believes that Piercy is tracking his location with an online program. Rodriguez admits
that he and his family are intimidated, and fearful of Piercy, and are worried that if the
court denies the restraining order it may “embolden Piercy,” and “increase the degree of
harassment” they have to endure.
       The evidence in Rodriguez’s declaration demonstrates that Piercy committed
intentional acts that caused substantial emotional distress to Rodriguez and his wife.
Rodriguez was intimidated and fearful of further harassment. Furthermore, Piercy’s
conduct appears to serve no legitimate purpose but rather seems calculated to cause
emotional distress. The restraining order is supported by substantial evidence.

       Failure to Rule on the Section 425.16 Motion Is Harmless Error.

       Piercy also claims the trial court erred when it ruled on the merits of his petition
without ruling on his section 425.16 motion.
       “Section § 425.16, ‘commonly referred to as the anti-SLAPP statute’[] [citation] is
intended ‘to provide for the early dismissal of unmeritorious claims filed to interfere with

2      While ordinarily the failure to provide a record of the oral proceedings would
preclude review for the sufficiency of the evidence (In re Estate of Fain (1999) 75
Cal.App.4th 973, 987), because the record before us includes the declarations, we are
able to reach the merits.
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the valid exercise of the constitutional rights of freedom of speech and petition for the
redress of grievances.’ [Citation.] The section authorizes the filing of a special motion
that requires a court to strike claims brought ‘against a person arising from any act of that
person in furtherance of the person’s right of petition or free speech under the United
States Constitution or the California Constitution in connection with a public issue . . .
unless the court determines that the plaintiff has established that there is a probability that
the plaintiff will prevail on the claim.’ (§425.16, subd. (b)(1).)
       “Section 425.16 ‘“requires that a court engage in a two-step process when
determining whether a defendant’s anti-SLAPP motion should be granted.”’ [Citation.]
‘“First the court decides whether the defendant has made a threshold showing that the
challenged cause of action is one arising from protected activity. [Citation.] ‘A
defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause
[of action] fits one of the categories spelled out in section 425.16, subdivision (e)’
[citation].” [Citation.] . . . [¶] If the defendant makes this showing, the court proceeds to
the second step of the anti-SLAPP analysis. [Citation.] In the second step, the court
decides whether the plaintiff has demonstrated a reasonable probability of prevailing at
trial on the merits of its challenged causes of action. [Citations].’” (Hunter v. CBS
Broadcasting, Inc. (2013) 221 Cal.App.4th 1510, 1519 (Hunter).)
       Section 425.16 requires an early determination, to prevent meritless litigation from
imposing avoidable burdens on the parties. To this end, when a motion is filed all
discovery proceedings in the action are automatically stayed until there is a ruling on the
motion. (§ 425.16, subd. (g)), and the hearing on the motion is to be scheduled not later
than 30 days after the motion is served, unless the court’s docket requires a delayed
setting. (Id. at subd. (f).)
       Section 425.16 applies to a petition for a civil harassment restraining order under
section 527.6. (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 646-648 (Thomas)
[civil harassment actions are “clearly and unambiguously” within the scope of the statute;
there is no reason for the pendency of the motion to interfere with the statutory scheme
for civil harassment petitions].)

                                               5
         In Thomas, supra, 126 Cal.App.4th 635, the trial court was not faced with the
question of ruling on the petition before hearing the section 425.16 motion; as the court
noted, the motion was heard first. Here, however, the trial court granted the protective
order, and then failed to rule on Piercy’s motion. While Thomas can be read to suggest
that might not constitute error, we need not reach that issue here. Even if the trial court
should have managed the order of proceedings in the case to ensure that the 425.16
motion was heard first, such an error would be reversible “only if the party appealing
demonstrates a ‘miscarriage of justice’—that is, that a different result would have been
probable if the error had not occurred.” (Zhou v. Unisource Worldwide, Inc. (2007) 157
Cal.App.4th 1471, 1480.)
         Although the court did not consider Piercy’s motion, by granting the restraining
order the court determined that Rodriguez had demonstrated more than the mere
probability of prevailing on the merits of his claim; the court’s ruling establishes that
Rodriquez would have met his burden under the second prong of the analysis. (See
Hunter, supra, 221 Cal.App.4th at p. 1519; see also Thomas, supra, 126 Cal.App.4th at
p. 663.) Because the outcome of this case would not have been different had the court
considered the motion, the trial court’s error was harmless.

         Remaining Arguments
         Finally, Piercy claims that he repeatedly advised the trial court that the restraining
order was filed in an improper venue, but he does not identify any support for this
contention in the record. A party must file a timely motion requesting a change of venue
or he waives his right to appeal that issue. (§ 396b; Smalley v. George C. Peckham Co.
(1917) 175 Cal. 146, 148.) On appeal, Piercy has not directed us to a motion for change
of venue in the record. Piercy has waived his right to appeal on the grounds of improper
venue.




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                                    DISPOSITION
      The order is affirmed.3




                                                ZELON, J.
We concur:




      PERLUSS, P. J.




      BECKLOFF, J.




3      Because there was no appearance by Respondent, Respondent incurred no costs on
appeal.

        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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