Filed 4/27/16 Densmore v. McCarron CA2/6

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


MARTHA DENSMORE,                                                             2d Civil No. B267792
                                                                          (Super. Ct. No. 15CV01036)
     Plaintiff and Respondent,                                              (Santa Barbara County)

v.

NANCY DUFFY MCCARRON,

     Defendant and Appellant.



                   Nancy Duffy McCarron appeals the trial court's grant of a civil harassment
restraining order in favor of her neighbor, Martha Densmore. McCarron contends it was
reversible error (1) to grant Densmore a temporary restraining order (TRO), (2) to deny
McCarron's request to compel certain discovery and (3) to issue a restraining order where
the elements of harassment were not met. We dismiss the appeal from the TRO as moot.
Otherwise, we affirm.
                                FACTS AND PROCEDURAL HISTORY
                   Densmore and McCarron are neighbors on the same street in Santa Barbara.
They have an ongoing dispute over the height of the trees in Densmore's yard. On
May 1, 2015, Densmore was in her upstairs bedroom speaking with her son on the
telephone about her mother's health issues when she heard someone knocking on the
front door. She continued the conversation with her son and did not answer the door.
According to Densmore, the loud knocking continued.
              A short while later, McCarron went to the back of the house and climbed
the stairs leading to the upper back patio outside of Densmore's bedroom. Densmore got
off the telephone, telling her son, "This is bad. I've got to go." She then opened the patio
door to see what McCarron wanted. McCarron, who appeared angry, asked for
Densmore's ex-husband, Junichi Shimizu, and said "'[y]ou're ruining my marriage.'"
Densmore responded, "Nancy, I can't help you. This isn't my house."
              As the situation started to escalate, Densmore told McCarron she would
have to leave. McCarron became defiant, and Densmore said she would meet McCarron
in front of the house on the street. McCarron responded, "The street? The street?"
Densmore again instructed McCarron to leave the property. She refused. At that point,
Densmore felt threatened by McCarron's hostile behavior. She shut and locked her
bedroom door as well as the other exterior doors in the house. While locking the doors,
she noticed McCarron's face in one of the windows.
              When Densmore returned to her bedroom, she saw that McCarron was
sitting in a lounge chair on the lower deck with her arms crossed. Once again, Densmore
instructed McCarron to leave the property. When McCarron refused, Densmore told her
to communicate with Shimizu through the mail.
              Densmore called 911 and told the dispatcher what was happening. She also
called Shimizu and informed him McCarron was on the property and refused to leave.
The two telephone calls took about 15 minutes. Densmore was upset, agitated, nervous
and unsettled.
              No sooner had McCarron left, then she called Densmore and asked for
Shimizu's cell phone number. Densmore refused to give it to her and hung up. On
May 7, 2015, McCarron called Shimizu, who hung up on her because she sounded angry
and was speaking loudly. McCarron called back and left a voice mail stating that if he



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and Densmore did not cut their trees, McCarron would come onto the property and cut
them herself.
                Densmore filed a report with the police after the May 1 encounter. She said
she was afraid of McCarron because she seemed "out of control" and because McCarron
had a long-standing dispute with Shimizu regarding the trees. The situation caused her
significant stress and affected her sleep.
                McCarron admitted that, when no one answered the front door, she went
into Densmore's backyard. She said she thought Shimizu might be in the backyard
gardening. According to McCarron, Densmore told her to go to the front deck and wait
for her there. Fifteen minutes later, Densmore reappeared and told McCarron to "get the
fuck off my property and don't ever come back." McCarron said she told Densmore she
would leave and never come back.
                On May 15, 2015, Densmore filed a request for a civil harassment
restraining order on behalf of herself and Shimizu. A few days later, the trial court issued
a TRO prohibiting McCarron from contacting Densmore and Shimizu.
                McCarron, who is an attorney, appeared in propria persona. She moved to
compel responses to certain discovery requests. When the motion was heard, McCarron
informed the trial court that the discovery issues "had been narrowly focused to just a few
things." The court ruled on those specific issues and scheduled a contested hearing.
                Densmore, Shimizu, McCarron and McCarron's husband, Timothy, testified
at the hearing. The trial court found Densmore's "testimony credible as she described
[McCarron] repeatedly hammering on the door, then circling to the back of the house
where she could see in [Densmore's] bedroom, being told several times to leave the
property, and defiantly refusing." The court noted "[t]he record may not reflect the pallor
of [Densmore], her quavering voice and shaking hands, but her distress in reliving the
incident was clear to the Court."
                In contrast, the trial court did not find McCarron's testimony credible. It
stated: "Lending credence to the testimony of [Densmore and Shimizu] was


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[McCarron's] behavior in the courtroom. The Court admonished [her] a number of times,
including several specific admonitions to cease bringing up specific topics that the Court
found irrelevant; however, [McCarron] did not comply. She regularly interrupted; the
record may not adequately reflect the tone and volume of her voice, her argumentative
and accusative posture and demeanor, but the Court found [her] behavior in the
courtroom consistent with the behavior alleged by [Densmore and Shimizu]."
                The trial court granted the three-year restraining order requested by
Densmore and ordered McCarron to pay $1,000 in attorney fees. It found that
McCarron's behavior "was outrageous and could be anticipated to seriously disturb the
peace of [Densmore] in her home, and, in fact, did disturb [Densmore]." It further found
that "there is a reasonable probability that similar acts will be repeated, based on
[McCarron's] unwillingness or inability to control her behavior in the presence of the
Court." McCarron appeals.
                                        DISCUSSION
                                      Challenge to TRO
                Code of Civil Procedure section 527.61 establishes a procedure for
providing expedited injunctive relief to persons suffering harassment. (Schraer v.
Berkeley Property Owners' Assn. (1989) 207 Cal.App.3d 719, 730.) A TRO may be
obtained, with or without notice, upon an affidavit showing reasonable proof of
harassment and that great or irreparable harm would result to the plaintiff. (§ 527.6,
subd. (c).) The TRO generally lasts for not more than 22 days, within which time a
hearing must be held on the petition for a permanent restraining order. (§ 527.6,
subd. (d).) The restraining order shall issue, for a term of not more than three years, if the
court finds unlawful harassment by clear and convincing evidence. (Ibid.)
                McCarron contends the trial court improperly granted Densmore's request
for a TRO. It is well established that a "TRO . . . terminates automatically when a
permanent injunction is issued or denied." (Landmark Holding Group, Inc. v. Superior

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

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Court (1987) 193 Cal.App.3d 525, 529.) Thus, the trial court's grant of the restraining
order terminated the TRO and, at the same time, mooted any appeal from the TRO.
(O'Kane v. Irvine (1996) 47 Cal.App.4th 207, 210, fn. 4 ["[A]ppeal from the TRO,
following the trial court's grant of the three-year restraining order, is moot"]; accord
People v. Gordon (1951) 105 Cal.App.2d 711, 725; Mailhes v. Investors Syndicate
(1934) 220 Cal. 735, 737). We therefore dismiss this portion of McCarron's appeal.
                          Motion to Compel Discovery Responses
              McCarron propounded form interrogatories, ten special interrogatories,
three requests for admission and thirteen document requests. Densmore did not respond
to the form interrogatories, but responded to the other requests. Dissatisfied with the
responses, McCarron moved to compel further responses. At the hearing on the motion,
McCarron informed the trial court that the discovery issues raised in the motion "had
been narrowly focused to just a few things." McCarron then set forth on the record the
issues she wished the court to address. To the extent she raises other discovery issues in
her briefs, those issues were waived in the trial court.2 (Johnson v. Pratt & Whitney
Canada, Inc. (1994) 28 Cal.App.4th 613, 622, fn. 11; see Cowan v. Superior Court
(1996) 14 Cal.4th 367, 371.)
              We review discovery orders for an abuse of discretion. (Sauer v. Superior
Court (1987) 195 Cal.App.3d 213, 228.) Discretion is abused only when it can be shown
that the trial court has "exceed[ed] the bounds of reason, all of the circumstances before it
being considered." (Loomis v. Loomis (1960) 181 Cal.App.2d 345, 348; Denham v.
Superior Court (1970) 2 Cal.3d 557, 566.) McCarron has not met this burden.
              First, McCarron contests Densmore's failure to respond to Form
Interrogatory No. 17, which required Densmore to state all facts supporting her denial of

   2
    Densmore contends that McCarron's arguments regarding the motion to compel are
not properly before this court. We disagree. While it is true that a discovery order is not
directly or immediately appealable, such an order is nonetheless reviewable on an appeal
from the subsequent judgment. (County of Nevada v. Kinicki (1980) 106 Cal.App.3d
357, 363; Schaefer v. Manufacturers Bank (1980) 104 Cal.App.3d 70, 74.)

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the three requests for admission. Densmore objected to those requests as irrelevant
because they sought information regarding Densmore's marital relationship with Shimizu
and her ownership interest in the property. The trial court implicitly sustained those
objections, noting that the action is based primarily on the events that occurred on May 1,
2015 and "whether [Densmore] owns the property or not" is irrelevant to those events.
McCarron responded, "Okay. Well, okay. That's fine."
               Second, McCarron challenges Densmore's failure to respond to Form
Interrogatory No. 13, which requested any photographs, films or videotapes concerning
the "incident." She claims that Densmore has a video surveillance camera pointed at her
living room. Densmore's counsel explained that the camera was installed after May 1 and
therefore has no relevance to the issues before the court. The trial court agreed and
appropriately denied the motion to compel.
               Third, McCarron contends Densmore improperly objected to her special
interrogatories. Densmore objected to most of the requests as irrelevant. Special
Interrogatory No. 3 asked Densmore to identify the neighbor who "agreed McCarron left
the dog note on [Densmore's] car." After McCarron explained she wanted to call that
neighbor as a witness, Densmore's counsel clarified that they were not seeking a
restraining order based on that note and that no issues will be raised regarding the note.
The trial court issued an order precluding any mention of the note at trial. McCarron
responded, "Okay. That's good enough, your Honor."
               The trial court also determined McCarron was not entitled to know whether
Randy Tinney, the former owner of Shimizu's property, was involved in preparing the
request for a restraining order. The court reiterated that it would be looking only at what
actually occurred between the parties and that the "ex-owner's input, whether it exists or
not, is [not] relevant to that."
               Finally, McCarron argues that she was not provided with all the documents
she requested. Densmore's counsel, however, made clear that they were providing all
documents relevant to the issues before the trial court and that no other documents would


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be introduced at the hearing. McCarron has not shown that the trial court abused its
discretion by failing to compel the production of additional documents or information.
Nor has McCarron shown that the failure to receive such documents or information
prejudiced her defense.
                                 Grant of Restraining Order
              McCarron contends there was insufficient evidence to support the trial
court's grant of a civil harassment restraining order. We disagree.
              "The elements of unlawful harassment, as defined by the language in
section 527.6, are as follows: (1) 'a knowing and willful course of conduct' entailing a
'pattern' of 'a series of acts over a period of time, however short, evidencing a continuity
of purpose'; (2) 'directed at a specific person'; (3) 'which seriously alarms, annoys, or
harasses the person'; (4) 'which serves no legitimate purpose'; (5) which 'would cause a
reasonable person to suffer substantial emotional distress' and 'actually cause[s]
substantial emotional distress to the plaintiff'; and (6) which is not a '[c]onstitutionally
protected activity.'" (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762 (Schild).)
              "In assessing whether substantial evidence supports the requisite elements
of willful harassment, as defined in . . . 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, supra, 232 Cal.App.3d at p. 762; Brekke v. Wills (2005)
125 Cal.App.4th 1400, 1412.)
              McCarron contends that her behavior on May 1 did not constitute a "course
of conduct" sufficient to justify the issuance of a restraining order. (See § 527.6, subd.
(b)(3).) To qualify as a course of conduct, there must be "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


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to an individual, or sending harassing correspondence to an individual by any means."
(§ 527.6 (b)(1).) The course of conduct must be such as would cause a reasonable person
to suffer substantial emotional distress. (R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188;
Thomas v. Quintero (2005) 126 Cal.App.4th 635, 662-663; Ensworth v. Mullvain (1990)
224 Cal.App.3d 1105, 1109.)
              McCarron relies upon Leydon v. Alexander (1989) 212 Cal.App.3d 1, 4-5
(Leydon), in which the court held that a single incident of harassment was insufficient to
meet the statutory requirement of a course of conduct. In that case, a former employee
who had been terminated from his job sued the employer and then returned to the
workplace eight years later and verbally abused his former supervisor in a five-minute
confrontation. (Id. at pp. 3-4.) Other than that single incident, the only contact the
former employee had had with the employer was via his lawsuit, a constitutionally
protected activity. (Id. at pp. 4-5; see also Scripps Health v. Marin (1999)
72 Cal.App.4th 324, 333.)
              Here, in contrast to Leydon, there was not a single, brief, isolated act, but
rather a "series of acts over a period of time, however short, evidencing a continuity of
purpose[.]" (§ 527.6, subd. (b)(1).) First, McCarron "repeatedly hammer[ed]" on
Densmore's front door. When Densmore did not respond, McCarron walked to the back
of the house and went upstairs to the patio outside Densmore's bedroom. After Densmore
opened the door, McCarron angrily asked to speak with Shimizu and told Densmore that
"'[y]ou're ruining my marriage.'" Densmore instructed McCarron to leave. McCarron
refused and became increasingly hostile. She declined to meet Densmore in the street to
discuss the situation, and again refused to leave the property. This frightened Densmore
to the point where she locked all the exterior doors in the house. While doing so, she saw
McCarron's face in one of the windows.
              Densmore then sat down on a lounge chair on the lower deck. Once again,
Densmore instructed McCarron to leave the property. When McCarron refused,
Densmore called 911. She also called Shimizu. The telephone calls took about 15


                                              8
minutes, and McCarron concedes she remained in the chair for about 15 minutes. The
series of events took far longer than the five-minute encounter in Leydon.
              Moreover, the harassment continued. Although she had been instructed to
communicate with Shimizu by mail, McCarron called Densmore and asked for Shimizu's
cell phone number. Densmore hung up on her. A few days later, McCarron left a
threatening voice mail message stating that if Densmore and Shimizu did not cut their
trees, McCarron would come onto the property and cut them herself. This evidence
supports the trial court's conclusion that these acts demonstrated a continuity of purpose
to seriously alarm, annoy or harass Densmore.
              That there are cases in which persons have engaged in more egregious
forms of harassment does not change the fact, as found by the trial court, that
McCarron's conduct seriously alarmed, annoyed or harassed Densmore, served no
legitimate purpose and caused Densmore substantial emotional distress. Densmore
testified that she suffered severe distress and loss of sleep. The court observed that
although "[t]he record may not reflect the pallor of [Densmore], her quavering voice and
shaking hands . . . , her distress in reliving the incident was clear to the Court."
              Lastly, we reject McCarron's suggestion that there was no evidence of a
reasonable probability that the harassing conduct would be repeated in the future. Given
the ongoing dispute over the trees, McCarron's conduct towards Densmore, their
proximity as neighbors, and McCarron's antagonistic behavior during the hearing, the
trial court reasonably concluded that, unless enjoined, McCarron would continue to
annoy and harass Densmore. We have considered each of McCarron's arguments and
find them unpersuasive.3



  3
    Concurrent with her reply brief, McCarron filed a request for judicial notice and
request to publish our opinion. We deny both requests. McCarron has not demonstrated
that the documents accompanying the request for judicial notice are relevant to the
appeal. Nor has she shown a basis for publishing the opinion. (See Cal. Rules of Court,
rule 8.1105(c).)

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                                    DISPOSITION
             The judgment (restraining order) is affirmed. The appeal from the TRO is
dismissed as moot. Respondent shall recover her costs on appeal.
             NOT TO BE PUBLISHED.




                                        PERREN, J.


We concur:



             GILBERT, P. J.



             YEGAN, J.




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               Denise Motter, Commissioner

          Superior Court County of Santa Barbara
           ______________________________

Nancy Duffy McCarron, in pro per, for Defendant and Appellant.
Adam Pearlman, for Plaintiff and Respondent.




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