Filed 9/30/13 Klaas v. Chavez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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



JESSIE MARIE KLAAS,

         Plaintiff and Respondent,                                       E056575

v.                                                                       (Super.Ct.No. CIVDS1202877)

RENE L. CHAVEZ,                                                          OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Wilfred J.

Schneider, Jr., Judge. Affirmed.

         Jessie Marie Klaas, in propria persona, for Plaintiff and Respondent.

         James L. Knox and Milligan, Beswick, Levine & Knox, LLP for Defendant and

Appellant.




                                                             1
       In this case, the trial court issued an injunction against civil harassment pursuant to

Code of Civil Procedure section 527.6.1 Rene Chavez, the restrained person, appeals.

                                                   I

                                  PROCEDURAL HISTORY

       On March 20, 2012, Jesse Marie Klaas filed a request for a civil harassment

restraining order on Judicial Council Forms, form CH-100. The request alleged "constant

aggressive harassment and vandalism to our home" by Chavez, the 52 year old son of a

neighbor.

       On March 26, 2012, the court, Judge House, granted the request for a temporary

restraining order ex parte, using Judicial Council Forms, form CH-110. The order was

issued, and Chavez was ordered not to harass Klaas and her family, and to stay 100 yards

away from them. The matter was set for hearing on April 16, 2012.

       On April 13, 2012, Chavez filed a response to the request for a restraining order

on Judicial Council Forms, form CH-120. He opposed the requested restraining order

and asked for $2,000 in attorney fees. Chavez also filed a declaration, including

photographs, in opposition to the request. In addition, his attorneys filed a memorandum

of points and authorities in opposition to the request.




       1      Unless otherwise indicated, all further statutory references are to the Code of Civil
Procedure.



                                                   2
       The matter was heard before Judge Wilfred J. Schneider, Jr. on April 16, 2012.

At the conclusion of the hearing, the court issued a two-year restraining order on Judicial

Council Forms, form CH-130.

       As discussed below, the primary issue presented on appeal is whether the trial

court improperly deprived Chavez of his right to examine the evidence against him. The

secondary issue is whether the restraining order was supported by clear and convincing

evidence.

                                             II

                     EVIDENCE PRESENTED AT THE HEARING

       In reaching its decision, the trial court reviewed the documents submitted by

Klaas, the testimony of the parties, and their demeanor.

       The documents submitted by Klaas included the petition and documentary

evidence submitted at the hearing. In the petition, Klaas described current harassment as

follows: "Blocking people from getting in our driveway. Setting off his [car] alarm for

minutes and honking his horn repeatedly early in the morning. Staring in our window

throwing his hands up. Eggs thrown at our house. Sprinkler valve busted. Storing cars

in front of our house. He used to own our home and lost it in foreclosure so this has been

happening for 2 1/2 years."




                                             3
        Under a section entitled "harassment at other times", Klaas stated: "Slamming into

our trashcans knocking them over then taking off. Having his employees intimidate us

and boxing in our car."

        Under requested orders, Klaas stated: "He is very threatening and intimidating to

us. I homeschool my children and want to feel safe in my home. I want to be able to

take my girls in the front yard w/o fear. I babysit 2 autistic children and want their mom

to feel better knowing I did this cause she witnessed it too."

        At the hearing, Klaas submitted statements from Laurie Fotia, Jane Dana-Ramirez,

and Rebecca T. Bodden. Counsel for Chavez objected to the statements on hearsay

grounds and "there is no notice whatsoever in her petition that there were any witnesses

whatsoever."2 At the end of the hearing, counsel renewed the objection, stating that

copies of the declarations had not been provided to him before the hearing. The court

noted the objection but filed the declarations.

        Klaas showed the court some pictures but no objection was made and no ruling

was made on their admissibility. Pictures were also attached to the Chavez declaration.

        In addition to the documents Klaas submitted, the court stated that it had a chance

"to observe very carefully [the parties'] demeanor and testimonial quality during this

proceeding." Presumably, the court noted that Chavez is 6 feet and 2 inches tall, and

weighs 250 pounds. Also, at one point in the proceedings, the court admonished Chavez




        2      Actually, the request for restraining order states: "my husband, my children and other
neighbors witnessed [the alleged harassment]."



                                                    4
to stop smirking. Based on the evidence, the trial court granted the request for a

restraining order.

                                             III

                           THE EVIDENTIARY OBJECTION

       Section 527.6(i) states: "At the hearing, the judge shall receive any testimony that

is relevant, and may make an independent inquiry. If the judge finds by clear and

convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting

the harassment."

       As noted above, Chavez first argues that he was improperly denied his right to

examine the evidence against him. He relies on Schraer v. Berkeley Property Owners'

Assn. (1989) 207 Cal.App.3d 719. In that case, the appellate court held that the trial

judge erred in disallowing relevant oral testimony. (Id. at p. 729.) The court explained:

"We do not hold, nor do we mean to imply, that every proceeding for an injunction under

Code of Civil Procedure section 527.6, subdivision (d), must in all instances proceed with

oral testimony instead of upon affidavits or declarations, regardless of the circumstances.

Certainly, a full-fledged evidentiary hearing with oral testimony from all sides may not

be necessary in all cases. [Citations.] We do hold, under the express language of the

statute and in accordance with the requirements of due process, that the trial court in a

harassment proceeding may not arbitrarily limit the evidence presented to written

testimony only, when relevant oral testimony is offered. Both sides may offer evidence

by deposition, affidavit, or oral testimony, and the court shall receive such evidence,

subject only to such reasonable limitations as are necessary to conserve the expeditious


                                             5
nature of the harassment procedure set forth by Code of Civil Procedure section 527.6."

(Id. at p. 733, fn. 6.)

       By receiving the witness declarations, consisting of letters attached to a

declaration form (Judicial Council Forms, form MC-030), the trial court did not

contravene the holding in Schraer.     As noted above, Chavez submitted a lengthy

declaration prior to the hearing, and it also constituted part of the documentary evidence

considered by the trial court.

       We therefore conclude that Schraer does not support counsel's argument.

Schraer's holding is that the trial court erred in refusing to allow oral testimony. There

was no such refusal in this case.

       Chavez also objects to the procedure used in this case on constitutional grounds.

He first argues that he was deprived of his due process rights to cross-examine the

witnesses against him.

       It is, of course, true that the statutory hearing process under section 527.6 is

constrained by due process principles. As the Schraer court stated: "[A]lthough the

procedures set forth in the harassment statute are expedited, they contain certain

important due process safeguards. Most notably, a person charged with harassment is

given a full opportunity to present his or her case, with the judge required to receive

relevant testimony and to find the existence of harassment by 'clear and convincing' proof

of a 'course of conduct' that actually and reasonably caused substantial emotional

distress, had 'no legitimate purpose,' and was not a 'constitutionally protected activity.'"

(Schraer v. Berkeley Property Owners’ Assn., supra, 207 Cal.App.3d at pp. 730-731.) At


                                              6
a later point, the court said: "To 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, fn.

omitted.) Chavez cites this sentence and argues that he was denied his right to cross-

examine the declarants, or even to see the declarations.

        Chavez also argues that he preserved his constitutional objections by objecting to

the declarations on hearsay and lack of notice grounds.3 At the end of the hearing,

counsel also objected that he had not been provided copies of the witness declarations.

The court responded: "I didn't realize that. You can certainly get copies of those, sir.

Your objection is noted in that regard, though."

        However, during the hearing, counsel did not request a recess or continuance to

allow for study of the witness declarations. Nor did he ask for an opportunity to

subpoena the declarants in order to cross-examine them. Counsel did not offer the oral

testimony of Chavez or any witnesses, did not seek to cross-examine Klaas, and did not

assert a right to cross-examine the witnesses who submitted the declarations.




         3       As discussed elsewhere, the hearsay objection should have been overruled, and the
original request for a restraining order did mention that there were neighbors who witnessed the conduct
of Chavez.



                                                    7
       In this posture, we must conclude that Chavez has not shown that the trial court

improperly denied his right to present evidence and cross-examine witnesses. Nor has he

preserved a constitutional objection that he was denied his right to examine the evidence

against him.

       As a secondary argument based on Schraer, Chavez relies on its discussion of the

legislature's intent in enacting section 527.6. (Schraer v. Berkeley Property Owners’

Assn., supra, 207 Cal.App.3d at p. 732.) In a footnote to that discussion, the court takes

"judicial notice of the fact that the Judicial Council's instructions for litigants in

harassment actions under Code of Civil Procedure section 527.6 specifically state that

'[if] there are any witnesses to the defendant's conduct or [plaintiff's] emotional distress

they should also be there' at the hearing, and that if the defendant wishes to oppose 'the

lawsuit,' and he or she has any witnesses, 'they must also be present.' (Judicial Council

California, Instructions for Lawsuits to Prohibit Harassment (Code Civ. Proc., § 527.6)

(rev. Jan. 1, 1987).)" (Id. at p. 732, fn. 5.) Chavez applies this quotation to this case by

arguing that, since witnesses must be present, he was denied his due process right to

examine witnesses when the trial court decided the case on declarations.

       The problem with this argument is that the Judicial Council Form has been

changed since Schraer was decided in 1989. Judicial Council Forms, form CH-100-

INFO, revised on January 1, 2012, now states: "Witnesses are not required, but it helps to

have more proof of the harassment than just your word. You can bring: Witnesses;

Written statements from witnesses made under oath; Photos; Medical or police reports;

Damaged property; Threatening letters, e-mails, or telephone messages. The court may


                                                8
or may not let witnesses speak at the hearing. So, if possible, you should bring their

written statements under oath to the hearing. (You can use Form MC-030, Declaration,

for this.)." (Judicial Council Forms, form CH-100-INFO, p. 2) This is precisely the

procedure Klaas used here.

       The trial court properly considered the declarations presented by Klaas in reaching

its decision. Schraer itself expressly disclaims a requirement that oral testimony is

always required: "We do not hold, nor do we mean to imply, that every proceeding for an

injunction under Code of Civil Procedure section 527.6, subdivision (d), must in all

instances proceed with oral testimony instead of upon affidavits or declarations,

regardless of the circumstances." (Schraer v. Berkeley Property Owners’ Assn., supra,

207 Cal.App.3d at p. 733, fn. 6.)

       Chavez also relies on Nora v. Kaddo (2004) 116 Cal.App.4th 1026, 1028-1029. In

that case, both parties sought to present witnesses in addition to the declarations and

exhibits attached to the petition. (Id. at p. 1028.) The trial court refused to allow

testimony on grounds that it was unnecessary. The appellate court reversed and found

that limiting the defendant's right to present evidence and cross-examine witnesses

"would run the real risk of denying such a defendant's due process rights . . . .

[Citation.]" (Id. at p. 1029.) Since the trial court deprived both parties of their rights to

fully present their case, the appellate court reversed. (Id. at p. 1030.)




                                               9
        Nora, which relies on Schraer, does not advance counsel's argument. Chavez was

not deprived of any right to fully present his case. Counsel for Chavez did not seek to

introduce any further evidence and he did not assert any right to cross-examine witnesses,

including declarants. Although Chavez did not testify, his position was fully set forth in

his declaration. His legal position was separately stated in his pre-trial brief. He thus had

a significant advantage against the pro per plaintiff.4

        For the reasons stated above, we conclude that Chavez has not preserved any

constitutional issues for appeal.

                                                     IV

   IS THE RESTRAINING ORDER SUPPORTED BY CLEAR AND CONVINCING

                                              EVIDENCE?

        Section 527.6(b)(3) defines harassment 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."

        4        The advantage continues on appeal. The brief of respondent Klaas consists of a five page
factual statement under penalty of perjury, without record references, followed by a two page declaration
entitled "Defects in Brief of Appellant." No statutes or cases are cited.
                  Klaas fails to recognize that we do not try, or retry, factual issues. We only determine
whether the trial court had before it sufficient evidence, in this case clear and convincing evidence, to rule
as it did, or whether it failed to follow applicable law. For this reason, the Appellate Rules require that
any reference in a brief to a matter in the record must be supported by a record citation. (Cal. Rules of
Court, rule 8.204(a)(1)(C).) We therefore decline to consider any factual statement in respondent's brief
which is made without a record citation.



                                                     10
       A "[c]ourse of conduct" is defined as "a pattern of conduct composed of a series of

acts over a period of time, however short, evidencing a continuity of purpose, including

following or stalking an individual, making harassing telephone calls to an individual, or

sending harassing correspondence to an individual by any means, including, but not

limited to, the use of public or private mails, interoffice mail, facsimile, or computer

email. Constitutionally protected activity is not included within the meaning of 'course of

conduct.'" (§ 527.6(b)(1).)

       The trial court's job, therefore, is to "receive any testimony that is relevant, and

may make an independent inquiry. If the judge finds by clear and convincing evidence

that unlawful harassment exists, an injunction shall issue prohibiting the harassment."

(§ 527.6(i).)

       In reviewing the trial court's decision, we must determine whether it is supported

by clear and convincing evidence. This review follows the general principles of

determining whether substantial evidence supports a judgment: "In assessing whether

substantial evidence supports the requisite elements of willful harassment, as defined in

Code of Civil Procedure section 527.6, we review the evidence before the trial court in

accordance with the customary rules of appellate review. We 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. (Citations.)"

(Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.)




                                              11
       Chavez argues that "[r]eview of the record as a whole indicates that Klaas failed to

meet [her burden of proving her claims by clear and convincing evidence], because the

evidence was not 'clear, explicit, and unequivocal', or 'so clear as to leave no substantial

doubt' and 'sufficiently strong to demand the unhesitating assent of every reasonable

mind' that Chavez harassed Klaas. [Citations omitted.]"

       Chavez then proceeds to espouse his version of the evidence: among other things,

this was just a neighborhood power struggle over on-street parking, that the photographs

submitted by Klaas at the hearing did not show any illegal activity, that Code

Enforcement had not found any business being conducted by Chavez on his parent's

property, and that Klaas claimed exclusive rights to parking in front of her house.

       Obviously, Klaas' view of the facts was very different. Her petition alleges

constant aggressive conduct by Chavez and describes some of that conduct. The petition

also states that Chavez had been "very threatening and intimidating to us." She testified

that she had nightmares about Chavez and felt like a prisoner in her home.

       The declarations submitted by Klaas supported her allegations. For example, the

Fotia declaration states: "I've seen Renee [Chavez] stand with his arms crossed staring

and laughing at the Klaas' family room window after he parked his truck as if he's waiting

for a confrontation." Rebecca Bodden declared that Chavez was "very threatening to

surrounding neighbors and myself."




                                             12
          The court properly considered the declarations as evidence and Chavez concedes

that hearsay testimony is admissible at a hearing under section 527.6. (Duronslet v.

Kamps (2012) 203 Cal.App.4th 717, 728.) His initial objection on hearsay grounds was

therefore not a valid objection. The trial court could properly consider hearsay evidence

if it was relevant evidence and, in this case, the declarations were clearly relevant.

(§ 527.6 (i); Duronslet v. Kamps, supra, 203 Cal.App.4th at p. 728; Schraer v. Berkeley

Property Owners’ Assn., supra, 207 Cal.App.3d at p. 733; Kaiser Foundation Hospitals

v. Wilson (2011) 201 Cal.App.4th 550, 556.)

          As in most cases, there are significant factual differences between the parties, and

very different interpretations of the facts are presented by each party. Nevertheless, the

trial court impliedly found that the facts presented by Klaas and the declarants were true,

and that they were sufficient to constitute the clear and convincing evidence required by

the statute. There was certainly evidence of continuing aggressive conduct by Chavez

which meets the course of conduct definition of section 527.6(b)(1). There was also

evidence of harassment, i.e., a "course of conduct directed at a specific person that

seriously alarms, annoys, or harasses the person . . . ." (§ 527.6(b)(3).) We therefore find

no legal basis for disregarding the trial court's conclusion that a restraining order should

issue.5




          5       Alternatively, Chavez asks us to modify the restraining order to permit him to visit his
parents at their home. However, he acknowledges that "[t]he trial court was made aware that its order
prevented Chavez from seeing his mother and ailing father, but simply ignored that fact." The trial court
impliedly declined the request and Chavez provides no legal reason to overturn the trial court's decision.



                                                    13
                                           V

                                    DISPOSITION

       The injunction prohibiting harassment is affirmed. Respondent Klaas to recover

costs on appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                      RICHLI
                                                                                        J.

We concur:


RAMIREZ
                            P. J.

KING
                              J.




                                          14
