Filed 4/25/13 Delk v. Rooney CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


ABBEY NICOLE DELK,

     Plaintiff and Respondent,                                         G046621

         v.                                                            (Super. Ct. No. 30-2011-00495969)

HEATHER VICTOR ROONEY,                                                 OPINION

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County, Corey S.
Cramin, Judge. Affirmed.
                   Heather Victor Rooney, in pro. per., for Defendant and Appellant.
                   Law Offices of Kersten & Associates, William C. Kersten and Brandon R.
Creel for Plaintiff and Respondent.
                                          *                  *                  *
              This is an appeal from a restraining order issued by the court against
appellant Heather Rooney in January 2011. Rooney argues that the court did not have
substantial evidence to support issuing the order and that her due process rights were
violated because she did not receive a fair trial. We conclude that Rooney has failed to
establish error and therefore affirm.
                                               I
                                           FACTS
              On August 1, 2011, respondent Abbey Delk filed a request for orders to
stop harassment in Orange County Superior Court. She sought a protective order against
Rooney, her husband‟s ex-wife.1 Delk stated in her application that she had “been
continuously harassed for over a year with emails, phone calls, verbal threats, and even
been physically harmed by . . . Rooney.” Delk stated she had multiple police reports and
had been encouraged by the police to seek a protective order. Among other incidents,
Delk claimed that Rooney had falsely accused her of abusing one of her stepchildren.
Delk also asserted that Rooney had spent three days in jail for contempt of court because
of the harassment. Delk‟s documentation alleged damage to her car, a physical
altercation resulting in bruises to Delk, e-mails, Delk‟s log of calls to the police, and the
warning letter her attorney had sent to Rooney.
              The court denied Delk‟s request for a temporary restraining order and set a
date for an order to show cause. Rooney‟s response to Delk‟s request denied the
harassment and provided a four-page narrative response to Delk‟s assertions. She also
provided three letters from witnesses she claimed were relevant.
              On August 17, the matter came on for hearing. The parties reached a
stipulation to resolve the matter. The stipulation provided that both parties agreed to stay


1Delk lived with her husband, Tim Rooney, and his two children by Heather Rooney,
ages eight and 13 at the time of the hearing. The children lived with each parent 50
percent of the time.

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100 feet away and have no contact. If they ran into each other, they were not to engage.
Rooney was to call only her ex-husband‟s home or the home line between specified hours
except in an emergency, and not Delk‟s cell phone. Rooney agreed to pick up any of her
children‟s friends that lived in Delk‟s neighborhood (the Reserve) at the gate, and drop
the children off for pick up outside the gate. The court ordered the stipulation be entered
as the court‟s order, and set a status conference for January 11, 2012.
               On that date, the parties appeared in court. Rooney felt everything was
fine, but Delk disagreed. After a further attempt at mediation, the court swore in the
parties and Daniel Corwin, a deputy sheriff. The parties testified. With respect to
violating the stipulated order, Delk stated Rooney had entered her neighborhood and
there was a security video reflecting this. Rooney testified that Delk‟s neighborhood was
split into a “North Reserve” and “South Reserve” and that she had gone to a party on the
opposite side of where Delk and her husband lived, and through a different gate. The
court pointed out that the stipulation merely said Rooney was to stay out of the Reserve.
Delk also testified that Rooney had called her cell phone twice, in violation of the
stipulation. Rooney claimed that one of the calls was an emergency, but as to the other,
she wanted to leave a message for the kids. On another occasion, Delk stated that
Rooney harassed her during a call to the home line. Delk testified that during a
children‟s sports event, Rooney moved her chair and sat by her, in violation of the
stipulated order. Delk also reported a number of other incidents of harassment and
intimidation at sports and school events. Rooney denied all of Delk‟s claims.
               After listening to Rooney, the court granted Delk‟s request, issuing an order
directing Rooney to stay 25 yards away, have no communication, and stay out of the
Reserve neighborhood completely. The restraining order was for three years. Rooney
now appeals.




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                                              II
                                        DISCUSSION
A. Propriety of the restraining order
              We review a grant or denial of injunctive relief for abuse of discretion.2
(Salazar v. Eastin (1995) 9 Cal.4th 836, 849-850.) “The appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of reason. When two or more
inferences can reasonably be deduced from the facts, the reviewing court has no authority
to substitute its decision for that of the trial court. [Citations.]” (Shamblin v. Brattain
(1988) 44 Cal.3d 474, 478-479.) Thus, a trial court‟s discretion must “„be exercised in
conformity with the spirit of the [applicable] law and in a manner to subserve and not to
impede or defeat the ends of substantial justice.‟ [Citations.]” (In re Robert L. (1993) 21
Cal.App.4th 1057, 1066, superseded on other grounds by statute, as stated in Cesar V. v.
Superior Court (2001) 91 Cal.App.4th 1023, 1032.) “The burden of affirmatively
demonstrating error is on the appellant. This is a general principle of appellate practice
as well as an ingredient of the constitutional doctrine of reversible error. [Citation.]”
(Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.)
              This standard applies on appeal even where the trial court was required to
make its findings under the clear and convincing evidence standard. “Where the trial
court has determined that a party has met the „clear and convincing‟ burden, that heavy
evidentiary standard then disappears. „On appeal, the usual rule of conflicting evidence
is applied, giving full effect to the respondent‟s evidence, however slight, and
disregarding appellant‟s evidence, however strong.‟ [Citation.]” (Ensworth v. Mullvain
(1990) 224 Cal.App.3d 1105, 1111, fn.2.)

2Rooney claims the appropriate standard of review is substantial evidence, but she is
mistaken. The case she cites to is Shelia S. v Superior Court (2000) 84 Cal.App.4th 872.
That was not a case involving injunctive relief — it was a dependency matter seeking
extraordinary relief from the trial court‟s decision to set a permanency planning hearing
(Welf. & Inst. Code, § 366.26.) It is inapplicable here.

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               The relevant statute is our guide to the court‟s exercise of discretion. Code
of Civil Procedure3 section 527.6, subdivision (a)(1) states that “A person who has
suffered harassment as defined in subdivision (b) may seek a temporary restraining order
and an injunction prohibiting harassment as provided in this section.” Subdivision (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
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must actually cause substantial emotional distress[ ] to the petitioner.” The court, upon a
finding of clear and convincing evidence that unlawful harassment exists, may issue an
order “enjoining a party from harassing, intimidating, molesting, attacking, striking,
stalking, threatening, sexually assaulting, battering, abusing, telephoning, including, but
not limited to, making annoying telephone calls . . . destroying personal property,
contacting, either directly or indirectly, by mail or otherwise, or coming within a
specified distance of, or disturbing the peace of, the petitioner.” (§ 527.6, subds.
(b)(6)(A), (i).)
               Rooney summarizes the evidence in a manner intended to put her
arguments in the best light while minimizing Delk‟s. She complains of “hearsay,”
although there were no objections in the record. (See section B, post.) Rooney concludes
that “Respondent did not present clear and convincing evidence to the trial court that



3 Subsequent statutory references are to the Code of Civil Procedure unless otherwise
indicated.

4 Rooney argues that “substantial emotional distress” is analogous to the “severe
emotional distress” required in a case for intentional infliction of emotional distress. This
argument, offered without authority, is rejected. “Substantial” and “severe” have
different meanings, and had the Legislature meant “severe” it would have certainly said
so.

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unlawful harassment exists and the trial court clearly disregarded the uncontradicted
evidence presented by Appellant in her defense.”
                We disagree. The evidence Delk presented, particularly her detailed,
documented instances between the date of the stipulated order and the final hearing, were
more than sufficient evidence to warrant the issuance of a restraining order under the
applicable legal standard. The record does not reflect the trial court “clearly disregarded
the uncontradicted evidence.” What it does reflect is an obvious determination that
Delk‟s evidence was more credible, and the court ruled accordingly. Rooney has not
established an abuse of discretion.


B. Fair trial
                Rooney next argues that the trial court “was prejudiced by information
provided to [it] by Appellant. [The court] also took into consideration testimony from a
witness who was not sworn in and was [Respondent‟s] husband. He refused to look at
any of [appellant‟s] evidence, which clearly shows the facts and truth that [Respondent‟s]
statements are made under perjury.” Rooney then argues that several pieces of evidence
should not have been considered under Evidence Code section 352.
                We address the last argument first. Rooney does not cite to any objections
to the admissibility of evidence in the record, nor does she demonstrate that the
complained-of evidence was even admitted into evidence (the reporter‟s transcript shows
a number of items as marked prior to hearing, but none were received). She has not
preserved these objections for appeal. “„[A] party is precluded from urging on appeal
any point not raised in the trial court.‟ [Citation.]” In re Aaron B. (1996) 46 Cal.App.4th
843, 846.)
                Further, even if she had preserved the issue, she offers no authority or
analysis. “When an appellant fails to raise a point, or asserts it but fails to support it with
reasoned argument and citations to authority, we treat the point as waived.” (Benach v.

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County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) Propria persona litigants are
not exempt from such basic rules of appellate practice. (McComber v. Wells (1999) 72
Cal.App.4th 512, 522-523.)
              With regard to the rest, Rooney has not demonstrated by an adequate record
that the court considered inappropriate testimony or refused to consider her evidence.
The court‟s ruling simply demonstrates that it considered Delk‟s evidence more credible
and persuasive, and accordingly ruled in Delk‟s favor. Rooney has not shown that she
was denied a fair trial or due process.
                                            III
                                      DISPOSITION
              The order is affirmed. Delk is entitled to her costs on appeal.




                                                  MOORE, J.

WE CONCUR:



O‟LEARY, P. J.



RYLAARSDAM, J.




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