Filed 5/20/16 Pack v. Richardson CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


ROBERT PACK,
         Plaintiff and Appellant,
                                                                     A144151
v.
SCOTT RICHARDSON,                                                    (Marin County
                                                                     Super. Ct. No. CIV1402089)
         Defendant and Respondent.


         Plaintiff Robert Pack appeals from the trial court’s orders denying his Code of
Civil Procedure section 527.61 petition for a restraining order and awarding attorney fees
to defendant Scott Richardson. We affirm.
                                                  BACKGROUND
         On June 3, 2014, Pack filed a petition seeking a restraining order against
Richardson under section 527.6. The petition alleged a pattern of harassment by
Richardson, who is Pack’s next door neighbor. The incident most prominently alleged in
the petition occurred on May 31. On that date, Richardson simulated a gun with his
fingers and pointed at Pack while exiting his driveway. Pack was also driving and, at a
stop sign, Richardson got out of his car and approached. Richardson thrust a hand
holding a camera into Pack’s car. Pack pushed him away and Richardson walked back to
his car laughing.



1
    All undesignated statutory references are to the Code of Civil Procedure.

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       Pack’s petition alleged other past harassing conduct of Richardson, including
Richardson coming to Pack’s front door and challenging Pack to fight; yelling, swearing,
and name-calling “on several occasions over the past three years;” trying to remove
landscaping from Pack’s property; tailgating Pack’s car and throwing “the finger” at
Pack; and taking photos of Pack’s house and garage.
       The trial court issued a temporary restraining order and the hearing on the petition
was set for June 19, 2014. At the June 19 hearing, Pack represented himself and testified
as to the basis for the petition. He largely testified to the incidents described in the
petition.2 At the apparent end of the cross-examination of Pack, Richardson’s counsel
moved “to dismiss the request for a restraining order on the basis that there is not enough
evidence to meet the burden of clear and convincing evidence.” The trial court said the
motion “is in effect a [motion for a] directed verdict” and denied the motion because
“there is enough here for the issuance of a restraining order.” The court continued the
hearing until August 26, due to scheduling conflicts. The court continued the temporary
restraining order but reduced the stay-away distance so it would not interfere with
Richardson’s access to his property.
       On August 26, 2014, Pack sought to present the testimony of three witnesses he
brought to court. After an offer of proof from Pack regarding the witness testimony, and
after Pack revealed that he had constructed a fence between his and Richardson’s
properties during the recess between hearings, the trial court denied the petition for a
restraining order.
       On October 15, 2014, Richardson filed a motion for an award of attorney fees of
$34,300 and an award of costs of $1,510, as the prevailing party. On November 21, Pack
filed an untimely objection to the motion. The trial court directed Richardson’s counsel
to submit billing records to enable the court to calculate a reasonable fees award. The
court struck Pack’s objection as untimely, found Richardson was the prevailing party


2
 For the purposes of the present appeal it is not necessary to detail the particulars of
Pack’s testimony.

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entitled to a fees award, and continued the hearing to January 13, 2015 for the purpose of
calculating an award.
       On December 12, 2014, Pack’s current appellate counsel substituted in as
counsel for Pack. That same day, Pack filed a motion for reconsideration of the trial
court’s order striking Pack’s opposition to the fees motion. On December 23, Pack filed
an opposition arguing the hours requested by Richardson’s counsel were not reasonable.
On January 15, 2015, the trial court denied Pack’s motion for reconsideration and
awarded attorney fees in the amount of $30,431.25.
       This appeal followed.
                                      DISCUSSION
I.     Pack Has Not Shown the Trial Court Erred in Denying A Restraining Order
       Pack contends the trial court denied his rights to due process and a fair hearing by
denying his request for a restraining order at the continued hearing on August 26, 2014.
We reject his claims.
       The Legislature enacted section 527.6 “ ‘to protect the individual’s right to pursue
safety, happiness and privacy as guaranteed by the California Constitution.’ [Citations.]
It does so by providing expedited injunctive relief to victims of harassment.” (Brekke v.
Wills (2005) 125 Cal.App.4th 1400, 1412.) In order to obtain a section 527.6 injunction,
the petitioner must show by “clear and convincing evidence” that he has been harassed,
which 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 such as would cause a reasonable person to suffer substantial emotional distress, and
must actually cause substantial emotional distress to the petitioner.” (§527.6, subds.
(b)(3) & (i); see also Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 724.)
       A.     The Denial of An Opportunity to Present Additional Testimony
       Pack argues the trial court was obligated to allow him to finish testifying and to
permit testimony from the three witnesses he was prepared to present at the hearing on
August 26, 2014. The trial court did not abuse its discretion in refusing to permit the


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additional testimony. Although section 527.6, subdivision (i) states that a trial court
“shall receive any testimony that is relevant” in deciding whether to issue a restraining
order, the trial court still had the discretion to control the hearing under the ordinary rules
of evidence. “The state’s strong interest in prompt and efficient trials permits the
nonarbitrary exclusion of evidence [citation], such as when the presentation of the
evidence will ‘necessitate undue consumption of time.’ (Evid. Code, § 352.) The due
process right to present evidence is limited to relevant evidence of significant probative
value to the issue before the court.” (Maricela C. v. Superior Court (1998) 66
Cal.App.4th 1138, 1146-1147 (Maricela C.); see also People v. Boyette, 29 Cal.4th 381,
427-428 [stating, in the criminal context, “As a general matter, the ‘[a]pplication of the
ordinary rules of evidence . . . does not impermissibly infringe on a defendant’s right to
present a defense.’ ”].)
       In In re Romeo C. (1995) 33 Cal.App.4th 1838, the Court of Appeal rejected a
claim that a provision of the Welfare and Institutions Code “mandates without
qualification the presentation of all relevant evidence at a dispositional hearing.” (Id. at
p. 1843.) The court concluded that, if the statute “were construed literally to mandate the
admission of all relevant evidence, the result would be to sanction an enormous waste of
time in dispositional hearings, where juvenile court judges would be powerless to exclude
cumulative evidence or time-consuming evidence of marginal probative value. In this
age of fiscal restraint and of overburdened courts, we cannot believe the Legislature
intended such a result, which, in our view, would be absurd. The language of a statute
should not be given a literal meaning if doing so would result in absurd consequences
which the Legislature did not intend.” (Id. at p. 1844.) The In re Romeo C. court
concluded the statute impliedly incorporates the limitations of Evidence Code section
352. (In re Romeo C., at p. 1844.) The same reasoning applies to section 527.6,
subdivision (i).
       The cases Pack cites are not to the contrary. In Schraer v. Berkeley Property
Owners’ Assn. (1989) 207 Cal.App.3d 719, 731, the trial court wholly refused to take oral
testimony, “bas[ing] its decision entirely on written declarations, newspaper articles, and


                                               4
the arguments of counsel.” Schraer concluded the trial court had violated section 527.6,
which contemplates “what is in effect a highly expedited lawsuit on the issue of
harassment” following issuance of a temporary restraining order. (Schraer, at p. 732.)
There, the appellants were challenging injunctions issued against them, and the court
reasoned that “[t]o limit a defendant’s right to present evidence and cross-examine as
respondents would have us do would run the real risk of denying such a defendant’s due
process rights, and would open the entire harassment procedure to the possibility of
successful constitutional challenge on such grounds.” (Id. at p. 733.) Although Schraer
holds there is a statutory right to present oral testimony and cross-examine witnesses
regarding a requested restraining order, the decision does not suggest Evidence Code
section 352 is inapplicable in section 527.6 hearings. Instead, Schraer states trial courts
may not “arbitrarily” limit the evidence presented, and it acknowledges trial courts may
impose “such reasonable limitations as are necessary to conserve the expeditious nature
of the harassment procedure.” (Schraer, at p. 733, fn. 6.)
       The other cases cited by Pack are also inapposite. Nora v. Kaddo (2004) 116
Cal.App.4th 1026, 1028, followed Schraer and also clarified the plaintiff has a right to
present testimony in support of a restraining order; the appellants in Schraer were the
defendants. But Nora does not suggest a trial court cannot limit the presentation of
evidence under Evidence Code section 352. Duronslet v. Kamps, supra, 203 Cal.App.4th
at p. 729, merely holds trial courts are authorized to admit hearsay evidence during
section 527.6 hearings.3
       In the present case, the trial court stated it had reviewed the transcript from the
prior hearing, and Pack made an offer of proof regarding the three witnesses. His
neighbor Gregory Franc “witnessed several of these incidents that [Pack] discussed.” A
police officer witness could “testify about Mr. Richardson’s behavior at the confrontation


3
 Pack contends the trial court erred in refusing to admit hearsay evidence he proffered.
Assuming the court erred, any error was harmless because Pack has not shown it is
probable the excluded hearsay evidence would have led to a better result. (Freeman v.
Sullivant (2011) 192 Cal.App.4th 523, 527 & fns. 2–3.)

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at the driveway, where he was trespassing, [Pack] asked him to leave, he became very
aggressive.” Another police officer could testify about a recent complaint from
Richardson that Pack moved survey monuments; “[t]he police officer [could] testify that
he didn’t find anything substantial and he just talked to [Pack].” The court indicated it
did not think those witnesses were important in light of how it viewed the case, stating
“[s]ee, the problem -- no one here -- the halos I see in the room are all very crooked. No
one here is an innocent actor based on the testimony that I’ve heard so far.” After some
back and forth with Pack and Richardson’s counsel about construction of the fence, the
court denied the restraining order. The court relied in part on Pack’s “unilateral[]”
construction of a fence, which was “completely inappropriate” and provocative.
       Pack argues it was a violation of due process for the trial court to refuse to hear his
proffered additional testimony. However, he fails to explain how any of the proffered
testimony was important, in light of how the court viewed the case and the evidence
already received.4 Based on the offer of proof, it appeared the testimony of Franc and the
first police officer would have been entirely duplicative of the testimony already given by
Pack. The trial court readily agreed Richardson had been “aggressive and inappropriate”
based on a videotape previously presented by Pack. As the court accepted the
proposition that Richardson had acted inappropriately in the past, Pack has not shown the
proffered testimony would have had “significant probative value” (Maricela C., supra, 66
Cal.App.4th at p. 1147) to the trial court’s determination. The trial court did not abuse its
discretion in excluding cumulative testimony. (See In re Romeo C., supra, 33
Cal.App.4th at p. 1843 [noting that, although cumulative evidence may be relevant, it is

4
  Pack argues on appeal that if he had been able to complete his testimony and put on the
additional witnesses it would have “removed the court’s confusion” regarding the nature
of the dispute between Pack and Richardson. However, he does not explain how Franc or
the police officer witnesses could have addressed that issue, and Pack made no such offer
of proof below, regarding their testimony or his own testimony. Neither does Pack
explain how his testimony regarding the fence he constructed would have been helpful to
him, in light of the court’s finding that unilaterally building a fence in the middle of the
restraining order proceedings was provocative, regardless of Pack’s right to do so. (See
Part I.B., post.)

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excludable under Evid. Code section 352].) The second police officer witness’s
testimony about a call regarding survey monuments would not have been cumulative, but
Pack does not explain how testimony that the officer did not “find anything substantial”
is significantly probative.
       B.     The Consideration of Pack’s Construction of a Fence
       Pack raises additional claims of error related to the trial court’s consideration of
Pack’s action in unilaterally building a fence. Pack has not shown reversible error.
       1.     Background
       During the hearing on June 19, 2014, Richardson’s counsel asked Pack during
cross-examination whether Pack could build a fence on his property. Pack replied he had
“no idea what Mr. Richardson might say if I did something like that” and he was
“physically unable to build a fence on [his] property.” Later, when the trial court was
poised to continue the hearing, the court encouraged the parties to settle the dispute
during the continuance, adding “[m]aybe a fence might solve this problem.”
       At the continued hearing on August 26, 2014, after describing the first two
witnesses he proposed to present, Pack said, “[a]nd the third witness is perhaps the most
important, because it’s a development that’s happened since we last had our hearing.”
Pack explained that on August 4, Richardson “called the police and had the police come
to my door. The complaint was that I had moved the survey monuments or taken survey
monuments out.” He claimed Richardson’s call to the police was harassment and
proffered that the officer would testify “he didn’t find anything substantial and he just
talked to” Pack. The court said that “no one here is an innocent actor based on the
testimony that I’ve heard so far.” Richardson acknowledged he had acted inappropriately
in a prior incident that had been videotaped, but Pack denied he had “acted
inappropriately as a neighbor.”
       After some further back and forth, Pack said, “All I want to do is just be left alone.
[¶] And one of the things I’m going to testify to is -- I put up a fence, and one of the
things I am going to say is it didn’t solve the problem, Your Honor.” The court asked
about the police incident and Richardson’s counsel explained, “it’s true that while Mr.


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Richardson was out of the country . . . Mr. Pack put up that fence. He did not resurvey
the property before doing so. The survey markers had been moved several times by
whom, we’re not sure, but they have been removed. [¶]. . . [W]e actually sent him a letter
asking him to survey the property before he finalized that.” Pack denied the monuments
had been moved and stated, “there’s four survey monuments on that stretch of property
where the fence went. A string was tied between all four in a nice straight line.”
       The trial court asked Pack whether he had “unilaterally” built a fence between his
and Richardson’s property “while this restraining order was pending.” Pack said he had
taken the court’s “cue,” explaining “I read the transcripts and you and the attorney for
Mr. Richardson were strongly suggesting a fence would solve the problem.” The court
asked, “You don’t think that that might provoke Mr. Richardson?” Pack responded that
what he did with his own property was not Richardson’s “business.”
       At that point the trial court declared, “I am going to deny the restraining order. I
think what you did was completely inappropriate by putting up a fence on the property. I
don’t care whose property that was; that’s not the issue. . . . And, of course, that would
have provoked Mr. Richardson.” Pack re-asserted that he had followed the court’s cue,
to which the court responded “it might be the solution [to put up a fence] but right now
we have a matter pending, and I think that by doing what you did, you provoked Mr.
Richardson, and that was poor judgment.” The court continued, “neighbor disputes are
very frustrating to me. You have to get along with each other. You just have to.
Hopefully you can work with [Richardson’s counsel] and come to an agreement of where
the fence is going to go, but you shouldn’t have done it on your own. That’s going to
cause more problems.”
       2.     Analysis
       Pack contends the trial court erred in considering the fence construction in denying
a restraining order, because there was no sworn testimony on that issue.5 He relies on the

5
 Notably, we reject Pack’s apparent suggestion that we must assume the trial court relied
entirely upon the fence construction in denying a restraining order, because at the
previous hearing date the court had rejected Richardson’s motion to dismiss Pack’s

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proposition that “It is axiomatic that the unsworn statements of counsel are not evidence.”
(In re Zeth S. (2003) 31 Cal.4th 396, 414, fn. 11.) In the present case, however, the
parties effectively stipulated that Pack had built a fence during the recess between the
hearing dates. Pack cites no authority that the court could not consider a fact agreed-
upon by the parties in deciding whether to issue a restraining order. Further, Pack never
objected to the court’s consideration of the fact he had built a fence. If he had done so
the court could have taken sworn testimony on the point; Pack’s objection, therefore, has
been forfeited. (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) Finally, Pack cannot
demonstrate any prejudice from the court’s failure to take evidence on the issue
(Freeman v. Sullivant, supra, 192 Cal.App.4th at p. 527 & fns. 2–3), because he does not
dispute he built the fence.
       Pack also contends the trial court erred in denying the requested restraining order
because the court’s reasoning was based on a mistaken understanding there was a
property dispute between Pack and Richardson. We disagree. The trial court’s reaction
to the fence construction was not premised on the existence of a bona fide property
dispute. Instead, the trial court was focused on the inappropriateness of Pack’s decision
to build a fence in the middle of the restraining order proceedings. The trial court
appropriately viewed the fence construction as a provocative act and informed Pack that,


petition for lack of sufficient evidentiary support. The court indicated at the outset of the
second hearing date that it had reviewed the transcript of the first hearing date and stated,
even before it learned of the fence construction, that Pack was not “innocent” and had
“crossed some bounds” and “acted inappropriately.” Thus, it appears the court may have
reconsidered its prior finding that Pack had shown a basis for issuance of a restraining
order, as the court had authority to do. (People v. Castello (1998) 65 Cal.App.4th 1242,
1248 [referring to “the court’s inherent power to reconsider its own interim rulings”];
Nave v. Taggart (1995) 34 Cal.App.4th 1173, 1177 [“Until entry of judgment, the court
retains complete power to change its decision as the court may determine; it may change
its conclusions of law or findings of fact.”]; People v. Lopez (1981) 116 Cal.App.3d 600,
604 [“unless otherwise clearly limited by statute in a particular proceeding, a court’s
rulings on motions are not irrevocably cast in concrete and a decision on a motion is not
ordinarily res judicata”]; see also Code Civ. Proc., § 128, subd. (a)(8) [the court has
inherent power to “amend and control its process and orders so as to make them conform
to law and justice”].)

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in the circumstances, any fence construction should only have occurred in consultation
with Richardson’s counsel. The court never suggested otherwise in its comments at the
first hearing date. Regardless of Pack’s legal right to build a fence on his property, the
trial court could reasonably conclude Pack’s provocative action was inconsistent with his
claim to be the innocent victim of Richardson’s harassment. The trial court could
reasonably have viewed Pack’s action as indicating that the circumstances were reflective
of an ongoing, mutual feud between two neighbors, rather than the type of harassment
that section 527.6 was intended to address.
II.    The Trial Court Did Not Err in Awarding Attorney Fees
       Pack contends the trial court erred in awarding attorney fees to Richardson as the
prevailing party. Section 527.6 authorizes an award of fees to “[t]he prevailing party in
any action brought under this section.” (§ 527.6, subd. (s) [“The prevailing party in any
action brought under this section may be awarded court costs and attorney’s fees, if
any.”].) We uphold the trial court’s award absent an abuse of discretion. (Elster v.
Friedman (1989) 211 Cal.App.3d 1439, 1443 (Elster).)
       Pack challenges the court’s determination Richardson was the prevailing party. A
prevailing party includes a defendant, like Richardson, against whom a plaintiff failed to
recover any relief. (Elster, supra, 211 Cal.App.3d at p. 1443.) Pack presents no
authority that Richardson was not the prevailing party in the circumstances of the present
case. Pack argues the trial court had discretion to decline to award fees to Richardson,
but he fails to show the court abused its discretion in awarding fees.
       Neither has Pack shown the trial court abused its discretion in determining the
amount of a reasonable fee. (See PLCM Group Inc. v. Drexler (2000) 22 Cal.4th 1084,
1095.) Pack asserts broadly that an award of $30,421.25 was too much for the nature of
the proceedings and the amount of time spent in court, and he argues Richardson’s
counsel’s time records were insufficiently detailed. However, the trial court explained it
thought the time taken to “research the difficult history between the neighbors” was
“justified” and it subtracted 25% across the board to account for any excesses. Moreover,
the record shows that Richardson’s counsel did present hourly billing statements, and


                                              10
Pack’s counsel had an opportunity to review them and did present some objections. Pack
has not shown error. (See PLCM Group Inc., at p. 1096.)
       Finally, we reject Pack’s claim the trial court erred in denying his motion for
reconsideration of the trial court’s order striking his untimely opposition to Richardson’s
request for fees. Section 1008 of the Code of Civil Procedure, “which governs
applications for reconsideration and renewed applications,” requires the party seeking
reconsideration “to show diligence with a satisfactory explanation for not having
presented the new or different information earlier.” (Even Zohar Construction &
Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839.) In his
appellate briefing, Pack does not contend he met that standard in his motion for
reconsideration. Neither has he shown how he was prejudiced by denial of his motion for
reconsideration (Freeman v. Sullivant, supra, 192 Cal.App.4th at p. 527), given that he
has not shown the trial court erred in concluding Richardson was entitled to fees and
Pack’s counsel was permitted to object to the amount of the fee request.
       On remand, the trial court should determine the amount of a reasonable attorney
fees award for Richardson as the prevailing party on appeal. (Byers v. Cathcart (1997)
57 Cal.App.4th 805, 813.)
                                      DISPOSITION
       The trial court’s orders are affirmed. Upon application by respondent, the trial
court shall determine the amount of attorney fees to be awarded to respondent as the
prevailing party on appeal. Respondent is also awarded his costs on appeal.




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                     SIMONS, J.




We concur.




JONES, P.J.




BRUINIERS, J.




(A144151)



                12
