Filed 12/10/13 Bornemann v. Gamboa CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO




PAUL H. BORNEMANN,

         Plaintiff and Respondent,                                       E055494

v.                                                                       (Super.Ct.No. CIVBS1100571)

ANDREW M. GAMBOA,                                                        OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Kirtland L.

Mahlum, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed.

         Law Office of Stanley W. Hodge and Stanley W. Hodge for Defendant and

Appellant.

         Law Office of Robert D. Conaway and Robert D. Conaway for Plaintiff and

Respondent.




                                                             1
       Plaintiff, Captain Paul H. Bornemann, an army doctor, and defendant, Warrant

Officer Andrew M. Gamboa, had two confrontations at Fort Irwin, one verbal and one

involving a threat with a baton, after Gamboa complained about Bornemann’s wife. The

incidents led to mutual restraining orders issued by the military. Bornemann then

petitioned the superior court for civil harassment restraining orders. Following a bench

trial, the court suggested that the parties seek an extension of the military no-contact

orders, to avoid impacting Gamboa’s military career. However, after doing so, the court

disapproved of the military stay-away orders and entered judgment in favor of

Bornemann, with no-contact and stay-away orders against Gamboa, along with an order

that defendant not own or possess any weapons. Gamboa appealed.

       On appeal, Gamboa argues that (1) the superior court lacked jurisdiction to issue

orders contrary to the orders issued by the United States Army, and (2) defendant was

denied due process when the court considered unsworn statements by counsel for the

school district regarding the difficulties of enforcing restraining orders at the school

where the children of both parties had to be picked up and dropped off. We requested

supplemental briefing on whether (a) the evidence is sufficient to support the finding of

civil harassment, (b) the court applied the appropriate burden of proof, and (c) trial court

abused its discretion by indicating that an extension of the military no-contact orders




                                              2
would obviate the need for civil harassment restraining orders and later rejecting the

military orders. We reverse.1

                                    BACKGROUND

       Plaintiff Paul Bornemann, a captain in the United States Army, and his wife Gina,

lived in the community known as Cracker Jack Flats, a part of Fort Irwin, for the past two

years. Andrew Gamboa is a Warrant Officer stationed at Fort Irwin, who has served in

the military for 15 years. Gina volunteered as an honorary “mayor” of Cracker Jack

Flats. In that capacity, she met monthly with the garrison commander to discuss safety

issues relating to children in the playground, and housing concerns of residents. Her

children attended school at Fort Tiefort School in the Cracker Jack Flats community.

       Prior to her first encounter with Gamboa, Gina was concerned about incidents

involving people speeding through the community and failing to stop at stop signs. At

some point there had been a hit-and-run incident in the area. As an advocate for the

community, if she saw someone speeding, she would take note of people speeding and

attempt to determine if the person had a pattern of speeding through the community and


       1  Bornemann objects to “the expansion of the issues [being] reviewed on appeal,”
by means of our request for supplemental briefing. However, it has long been held that
the reviewing court is not precluded from considering and deciding points which may not
have been urged and argued in the briefs originally filed if it appears to the court that an
important legal principle is necessarily involved and that a proper disposition of the case
requires discussion and decision of that point. (Kurlan v. Columbia Broadcasting
System, Inc. (1953) 40 Cal.2d 799, 806, citing Schubert v. Lowe (1924) 193 Cal. 291,
294; see also Gov. Code, § 68081.) In other words, an appellate court has the power to
raise issues on its own motion. (San Joaquin Raptor/Wildlife Rescue Center v. County of
Stanislaus (1994) 27 Cal.App.4th 713, 741, fn. 12, citing Walton v. City of Red Bluff
(1991) 2 Cal.App.4th 117, 129.)

                                             3
the school property. When she observed someone speeding, or going the wrong way on

the school grounds, she would approach the person, introduce herself as the mayor of

Cracker Jack Flats, and ask them to drive on the right side of the street.

       On September 26, 2011, Gina observed Gamboa driving through the Community

towards the school in a new white Cadillac, and opined he was speeding.2 The next day,

Gina saw the same car and motioned to Gamboa to slow down. She also took a

photograph of his car. On Wednesday, September 28, 2011, Gina observed Gamboa,

who was parked, as she walked to pick up her children, while carrying her youngest

child. Gina intended to talk to Gamboa. She extended her hand to greet him and he

rolled his window down, telling her he knew who she was, and that she was well known

in the 699 Maintenance Company.

       As Gamboa exited his car, Gina told him he was speeding through school

property. Gamboa towered over her and informed her they were watching her, that she

was well-known, and directed her not to take photographs of him anymore. Gamboa then

turned and walked towards the school, at which time Gina took a photograph of the

license number of his vehicle. Gina went into the school and reported that she had been

threatened. A week or two later, Gina saw Gamboa in the school parking lot again,



       2  When asked if she was authorized to stop people for traffic violations,
Bornemann’s attorney objected, and the court sustained the objection. Nevertheless, the
record shows Gina’s duties as honorary mayor only related to bringing safety concerns or
community comments to the attention of the Garrison Commander, and did not include
traffic control. In any event, while it may be a typographical error, Gina testified that the
speed limit through Cracker Jack Flats was 50 miles per hour.

                                              4
where Gamboa had parked. He exited his car and as he passed her car, he turned and

looked at her, smiling mockingly.

      After that incident, Gina noticed Gamboa driving in front of the Bornemann home

on his way to the school. On different days, Gina saw Gamboa parked in front of the

school parking lot. On one occasion, Gina noticed that Gamboa was parked about 100

feet from her house. The Bornemanns live on the street leading to the school, about five

houses down from the entry of the school. Gina was familiar with Capt. Mullins and his

wife Janice, who lived on the same street, one house away from the school. Capt.

Mullins is a friend of Gamboa’s, and Mullins’ wife is a friend of Gamboa’s wife.

Because Gamboa’s wife does not drive and is friends with Capt. Mullins’ wife, Gamboa

would drop his wife off at the Mullins residence, so his wife could pick up their daughter

at school and walk her home. Gamboa did not know where the Bornemanns resided.

      On September 30th, Gamboa made a complaint against Gina but Detective Braddy

advised him they would handle the matter at a lower level. That same day, as Gamboa

was driving, Capt. Bornemann jumped out in front of his car while walking his children

to school. In the middle of the street, Bornemann “postured up” in a threatening manner.

Realizing that the person who jumped in front of his car was probably the husband of

Gina, and upset over the complaint against Gina, Gamboa went to Detective Braddy and

informed her of the incident. Detective Braddy informed Gamboa that the Bornemanns

would stay away from him, and Gamboa dropped the charge.

      After Gamboa reported this incident to Detective Braddy he put an ASP

(Armament Systems and Procedures) telescoping baton in his car. Gamboa had suffered

                                            5
a broken hand a few years earlier, defending himself when he attempted to break up a

fight between some of his soldiers and some bikers in a bar while stationed in Korea. He

did not want to hurt his hand again, so he put the ASP in the car to use as a deterrent.

Gamboa told Detective Braddy that he had a baton and had not been informed that it was

illegal.

           On October 26, 2011, Paul Bornemann picked up his children from school at 1:00

p.m., had lunch with his family at home, and got on his bicycle to return to work. As he

rode his bicycle, he noticed a white Cadillac that his wife had said belonged to the person

who was threatening and harassing her. The white Cadillac was driving in the direction

of his residence and Bornemann saw the driver point at him and make a laughing gesture.

Gina had told Bornemann that she had seen the car parked in front of their house the

previous day, and Bornemann was afraid Gamboa would park in front his house and

harass his wife again. So Bornemann turned to follow the vehicle in hopes he could

identify Gamboa and obtain a keep-away order from Gamboa’s commander.

           As Bornemann turned, he saw Gamboa park almost directly in front of

Bornemann’s house. Bornemann saw a woman and child exit the vehicle and enter a

building. Bornemann rode his bicycle and parked it next to the sidewalk, adjacent to

Gamboa’s vehicle, crossed in front of the vehicle and approached the driver’s door to

check Gamboa’s nametape. Gamboa made a nodding gesture, reached for something and

exited the vehicle, deploying the ASP baton over his head. Gamboa yelled to

Bornemann, “Let’s do this,” and Bornemann stepped back, out of range. The two men



                                              6
exchanged words, and then Gamboa got back in his car and drove off, waving mockingly

at Bornemann.

       Bornemann called the police and made a report to Sgt. Driggers. Later,

Bornemann learned Gamboa had gone to the police station, also to report the incident.

After the altercation, Gamboa gave the baton to the military police. Gamboa’s company

commander issued a no-contact order that was effective until January 30, 2012, unless

sooner rescinded. However, on November 4, 2011, Bornemann filed a petition for a civil

harassment restraining order (Code Civ. Proc., § 527.6) because he felt the military police

did not want to cooperate. That same day, Gamboa filed a similar petition, seeking

mutual restraining orders.

       The court conducted a bench trial on November 21, 2011. At the conclusion of his

testimony, Gamboa informed the court he had no objection to restraining orders but that

he was required to qualify with a firearm every six months so he could be deployed if

needed. After hearing the testimony of all witnesses, the court determined that

Bornemann’s wife was intimidated by Gamboa, whether Gamboa intended it or not, and

that Bornemann felt he had to take the action he did to protect his family. However, the

court felt that military personnel have to be able to bear arms, but that a restraining order

would have to include a no weapon order. The court stated:

              “I would like to do this: I would like to give the Army -- we’ve got that no

              contact order. I would like them to extend that for a year. You have no

              reason to contact -- to come into contact with Captain Bornemann. You

              know now where he lives. You have no reason to come into contact with

                                              7
             his wife, except to pick up and delivery, [sic] and you just have no contact.

             [¶] What I would like to do is the -- and I’m going to be the first to say, I

             haven’t done this before, so technically I’m not sure how accurate,

             technically correct it is. I would like to continue this for two weeks, keep

             the temporary order in effect. See now if you can talk to the military and

             you can say, Look, I’m screwed, because I will make the protective order

             against you, unless they agree to make that a one year stay-away order, and

             that shouldn’t effect [sic] you at all to just stay away from him and his

             family.”

      Gamboa and Bornemann’s counsel agreed. The court cautioned that if Gamboa

contacted either Bornemann or his wife, the civil harassment order would be issued.

Gamboa was ordered not to possess an ASP, and the matter was continued.

      On December 5, 2011, the parties returned to court and the court reviewed newly

extended military no-contact order.3 The court noted that the order was a mutual order,

although the court did not find Bornemann at fault. The court was dissatisfied with the

military order “as far as providing the necessary protection that I was concerned about.”

      The court found by clear and convincing evidence that Gamboa threatened

Bornemann, and issued a three-year injunction against contacting, harassing, or

threatening the Bornemanns, ordered Gamboa to keep at least 100 yards away from


      3  We grant Gamboa’s May 8, 2012 request for judicial notice of the military
protective order dated November 29, 2011, which continued in effect until December 31,
2012.

                                             8
Bornemann’s residence, work place or vehicle, and prohibited Gamboa from possessing

firearms or an ASP. Gamboa was also ordered to pay one-half of Bornemann’s attorney

fees and costs in the amount of $2,400. Gamboa timely appealed.

                                      DISCUSSION

1.     Jurisdiction to Issue Protective Orders and Policy Considerations.

       Gamboa argues that the superior court lacked jurisdiction to issue orders

contradictory to the military protective orders (MPOs) issued by the army commander.

In response, Bornemann argues that federal law, specifically 10 United States Code,

section 1561a, provides that a civilian protective order is entitled to comity on a military

installation and that public policy favors enforcement of the civilian orders because the

MPO was not a proper remedy nor one of equal force and effect. Bornemann also asks to

apply principles of judicial estoppel to bar Gamboa’s appeal.

       We have been unable to find any case law addressing the exclusive or cooperative

nature of the parallel procedures for obtaining injunctive relief against harassment.

Unfortunately, neither party has pointed us in the right direction. Nevertheless, a review

of the parallel statutory schemes informs us that both statutory schemes contemplate

reciprocity of enforcement, full faith and credit, and comity.

       On the one hand, 10 United States Code section 1561a, subdivision (a), contains a

chapter devoted to domestic violence and stalking. That section provides that “[a]

civilian order of protection shall have the same force and effect on a military installation

as such order has within the jurisdiction of the court that issued such order.” That section



                                              9
goes on to define the term “civilian order of protection” by referring to the meaning given

the term “protection order” in section 2266(5), of title 18. (10 U.S.C. § 1561a(b).)

       Title 18 of the United States Code sections 2261 to 2266, is known as the Violence

Against Women Act. Section 2266(5) of title 18 of the United States Code, provides for

full faith and credit given to protection orders. The term “protection order,” as defined in

subdivision (5), includes: “(A) any injunction, restraining order, or any other order

issued by a civil or criminal court for the purpose of preventing violent or threatening

acts or harassment against, sexual violence, or contact or communication with or physical

proximity to, another person, including any temporary or final order issued by a civil or

criminal court whether obtained by filing an independent action or as a pendente lite

order in another proceeding so long as any civil or criminal order was issued in response

to a complaint, petition, or motion filed by or on behalf of a person seeking protection;

and [¶] (B) any support, child custody or visitation provisions, orders, remedies or relief

issued as part of a protection order, restraining order, or injunction pursuant to State,

tribal, territorial, or local law authorizing the issuance of protection orders, restraining

orders, or injunctions for the protection of victims of domestic violence, sexual assault,

dating violence, or stalking.”

       Because the definition of “protection order” as found in section 1561a of title 10

of the United States Code was imported from the statutory definition found in the chapter

governing domestic violence and stalking (18 U.S.C. § 2266(5)), it is apparent that the

comity provided under title 10 United States Code section 1561a was intended to address

domestic violence protection orders, making them enforceable on military installations.

                                              10
This case is not a domestic violence case, so the provisions of that code section are

informative but not controlling.

       Closer to point, section 1567 of title 10 of the United States Code provides that a

MPO issued by a military commander shall remain in effect until such time as the

military commander terminates the order or issues a replacement order. Section 1567a of

title 10 of the United States Code requires mandatory notification of the issuance of

military protective orders to civilian law enforcement. Although these two statutes were

part of an appropriations package that included a provision for establishing an

information database of sexual assault incidents in the armed forces (Pub. Law 110-417,

§§ 561-563, 122 Stat. 4356), there is no restricted definition that limits the notification of

an MPO to sexual assault cases. Further, other codes within the same title deal with

various topics unrelated to sexual assault or harassment. We interpret the statutory

reference requiring notice of an MPO to civilian law enforcement strongly implies that

such orders are entitled to reciprocal full faith and credit.

       Section 1567 of title 10 of the United States Code statute expressly authorizes a

base commander to issue a protective order, which remains in effect until the commander

terminates it or modifies it. Civilian authorities receive mandatory notification of MPOs.

(10 U.S.C. § 1567a.) We conclude such an MPO is the functional equivalent of a

protective order issued by a state court and is entitled to full force and effect, given the

mandatory notification of civilian authorities. (See United States v. Banks (9th Cir. 1976)

539 F.2d 14, 16 [holding the base commander qualifies as a neutral and detached

magistrate for the purpose of determining probable cause for a search warrant].) We see

                                              11
no reason why Congress would compel the notification of civilian authorities of an MPO

if it did not intend the orders to be entitled to full faith and credit.

       Although the statute relied upon by Bornemann deals with domestic violence

protective orders, it shows that Congress intended for parallel statutory schemes to

complement each other, to give full faith and credit, as well as comity, to the protective

orders of both civilian and military origin.

       However, we have found no authority for the proposition that a civilian court can

rescind, reverse or vacate an MPO, any more than a military commander can nullify a

civilian order. The authority of a military commander over his post, as conferred on him

by statute and regulations, is broad, and judicial review of an exercise of that authority is

limited. (Committee to Free Ft. Dix 38 v. Collins (1970) 429 F.2d 807, 809; 32 C.F.R.

§ 552:18(c), (d).) “By virtue of his position, the commander of a military installation has

acquired unique responsibilities in connection with the health, safety, welfare, morale,

and efficiency of those placed under his command. This is the result of the manifest

necessity that his personnel be kept at peak efficiency in order that the performance of his

mission will not be jeopardized.” (United States v. Harris (Ct.Mil.App. 1978) 5 M.J. 44,

59.) Therefore, while the superior court had authority to entertain Bornemann’s petition,

it lacked authority to vacate, modify, or eliminate the mutual protective orders made by

the base commander.

       Gamboa did not seek a dismissal of the action, but instead filed a counter-petition

for his own injunctive relief, so he submitted to the jurisdiction of the superior court.

Thus, the trial court had jurisdiction to entertain the civil harassment proceedings.

                                                12
2.     There Was No Due Process Violation In Allowing Counsel for the School

District to Address the Court.

       Gamboa argues that his due process rights under the Fifth Amendment of the

United States Constitution as well as the California Constitution, article I, section 7, were

violated when the court permitted the counsel for the school district to make an unsworn

statement during the trial. We disagree.

       Gamboa cites, without analysis, the cases of Goldberg v. Kelly (1970) 397 U.S.

254 [90 S.Ct. 1011, 25 L.Ed.2d 287], and Skelly v. State Personnel Board (1975) 15

Cal.3d 194 in support of his position. It is well settled that parties in civil proceedings,

including administrative hearings, have a due process right to cross-examine and confront

witnesses. (Dole Bakersfield v. Workers’ Comp. Appeals Bd. (1998) 64 Cal.App.4th

1273, 1276.) Whether or not an erroneous denial of the right to fully cross-examine a

witness is a denial of due process depends on the facts of the particular case. (McCarthy

v. Mobile Cranes, Inc. (1962) 199 Cal.App.2d 500, 506.)

       Here, Brian Bock, counsel for the school district appeared and made a statement to

the court requesting a “carve out” to deal with incidental contact between the parties. He

explained that such an order is needed to address situations in which parents come into

contact with each other inadvertently in dropping off or picking up children attending the

school. He did not testify as a witness to any of the events leading up to the action.

       Evidence Code section 711 provides that at the trial of an action, a witness can be

heard only in the presence and subject to the examination of all the parties to the action, if

they choose to attend and examine. A communication can be characterized as “evidence”

                                              13
only if the information was considered by the court for its bearing on the issues resolved

by the findings in its decision; if the information was not so considered, it is not evidence.

(See Mathew Zaheri Corp. v. New Motor Vehicle Bd. (1997) 55 Cal.App.4th 1305, 1314

[involving an ex parte communication received by an administrative law judge regarding

threats a party received from plaintiff].) Bock did not testify to any of the events that led

up to the petition.

       Gamboa did not request to examine or cross-examine the school district’s counsel,

so any error was forfeited. (Farmer Bros. Co. v. Franchise Tax Bd. (2003) 108

Cal.App.4th 976, 993; Chyten v. Lawrence & Howell Investments (1993) 23 Cal.App.4th

607, 617.) Even constitutional rights may be forfeited. (People v. Barnum (2003) 29

Cal.4th 1210, 1224.)

       Further, Gamboa cannot complain because he was benefitted by the procedure.

Only a party whose interest is injuriously affected by the order may complain. (In re

Alex U. (2007) 158 Cal.App.4th 259, 266 [minor could not complain of order requiring

his parents to pay the costs of his care and maintenance].) The information provided by

Bock was that the court should make an allowance for inadvertent or incidental contact

between the parties in connection with encounters at the school in the event it ordered an

injunction, which he referred to as a “carve out.” A “carve out” of the injunction, to

allow for incidental contact, was beneficial to Gamboa, since he could be exposed to

criminal proceedings for violating a court order any time he came within 100 yards of

Bornemann when taking or picking up his child to and from the school.



                                             14
       Any irregularity in allowing the individual to offer a brief statement was harmless

beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d

705, 87 S.Ct. 824].) There was no error in allowing the counsel for the school district to

make an unsworn statement.

3.     There Is Insufficient Evidence to Support the Finding that Gamboa Harassed

Bornemann.

       We requested supplemental briefing on the issue of whether the court made

findings of harassment using the appropriate burden of proof, and whether there was

sufficient evidence to support the judgment. At the court trial, the commissioner found

by clear and convincing evidence that Gamboa threatened Bornemann, but did not

address the essential elements of civil harassment. Given that Bornemann presented

evidence of only one confrontation involving Gamboa which was initiated by

Bornemann, given that the incident involving Bornemann’s wife was initiated by her, and

given the evidence that Gamboa’s presence on the street where the Bornemanns resided

was for a legitimate purpose, there was no course of conduct such as support a finding of

civil harassment within the meaning of Code of Civil Procedure section 527.6.

       a.     Standard of Review

       We review a judgment pursuant to Code of Civil Procedure section 527.6 for

substantial evidence. In doing so, 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. (Schild v. Rubin (1991) 232 Cal.App.3d

                                             15
755, 762.) We may not, however, consider the supporting evidence in isolation, and

disregard any contradictory evidence; rather, we must review the entire record.

(Fillpoint, LLC v. Maas (2012) 208 Cal.App.4th 1170, 1176, citing Kidron v. Movie

Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581.)

       b.     Legal Principles and Elements of Civil Harassment

       Code of Civil Procedure section 527.6 authorizes and provides a procedure by

which a person who has been harassed may obtain an injunction under specified

circumstances prohibiting any further harassment. (City of Los Angeles v. Animal

Defense League (2006) 135 Cal.App.4th 606, 614; Ensworth v. Mullvain (1990) 224

Cal.App.3d 1105, 1109.)

       Harassment 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. (Code Civ. Proc.,

§ 527.6, subd. (b).) “Unlawful violence” is defined as “any assault or battery, or stalking

as prohibited in Section 646.9 of the Penal Code, but shall not include lawful acts of self-

defense or defense of others.” (Code Civ. Proc., § 527.6, subd. (b)(7).) A credible threat

of violence is defined as a “knowing and willful statement or course of conduct that

would place a reasonable person in fear for his or her safety . . . and that serves no

legitimate purpose.” (Code Civ. Proc., § 527.6, subd. (b)(2).)

       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

                                             16
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.” (Code Civ. Proc., § 527.6, subd. (b)(3).) The course of conduct

must be such as would cause a reasonable person to suffer substantial emotional distress

to the plaintiff. (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, supra, 224 Cal.App.3d at p.

1109.)

         Additionally, the conduct must evidence a continuity of purpose, and comprise

more than one event which seriously alarms, annoys or harasses the plaintiff. (Leydon v.

Alexander (1989) 212 Cal.App.3d 1, 4.) A single incident is insufficient to meet the

statutory requirement of a “course of conduct.” (Ibid.)

         An injunction restraining future conduct is authorized by Code of Civil Procedure

section 527.6 only when it appears from the evidence that the harassment is likely to

recur in the future. (Russell v. Douvan (2003) 112 Cal.App.4th 399, 403-404; Scripps

Health v. Marin (1999) 72 Cal.App.4th 324, 332.) The reason for this rule is that an

injunction serves to prevent future injury and is not applicable to wrongs that have been

completed. (Id. at p. 402; see also Haley v. Casa Del Rey Homeowners Assn. (2007) 153

Cal.App.4th 863, 873.) The purpose of an injunction under Code of Civil Procedure

section 527.6 is not to punish for past acts of harassment, but rather to provide quick

relief and prevent future harassment. (Russell, at p. 403.)

         Code of Civil Procedure section 527.6 does not define the phrase “substantial

emotional distress.” (Schild v. Rubin, supra, 232 Cal.App.3d at p. 762.) However, in

                                              17
Schild, the reviewing court applied meaning ascribed to the meaning applied to the

analogous tort of intentional infliction of emotional distress, and held that it means highly

unpleasant mental suffering or anguish “‘from socially unacceptable conduct,’” which

entails such intense, enduring and nontrivial emotional distress that “‘no reasonable

[person] in a civilized society should be expected to endure it.’” (Schild, at pp. 762-763,

citing Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.)

Express findings of emotional distress are not required, but rather are necessarily implied

from a finding that a defendant knowingly and willfully engaged in a course of conduct

that seriously alarmed, annoyed or harassed the plaintiff, and that the plaintiff actually

suffered substantial emotional distress. (Ensworth v. Mullvain (1990) 224 Cal.App.3d

1105, 1112-1113.)

       The statute expressly provides that constitutionally protected activity is not

included within the meaning of the phrase, “course of conduct.” (Code Civ. Proc., §

527.6, subd. (b)(3); R.D. v. P.M., supra, 202 Cal.App.4th at p. 188; Thomas v. Quintero,

supra, 126 Cal.App.4th at p. 652.) There is a fundamental right to pursue a lawful

occupation. (Ensworth v. Mullvain, supra, 224 Cal.App.3d at p. 1113.) One is engaged

in legitimate activity when parking on an easement alongside one’s driveway. (Byers v.

Cathcart (1997) 57 Cal.App.4th 805, 812.) Playing basketball in one’s back yard for less

than 30 minutes at a time, and for no more than five times per week, does not constitute

unlawful harassment under Code of Civil Procedure section 527.6, since it would not

cause a reasonable person to suffer substantial emotional distress. (Schild v. Rubin,



                                             18
supra, 232 Cal.App.3d at p. 765.) And by statutory definition, self-defense or defense of

others does not constitute unlawful violence. (Code Civ. Proc., § 527.6, subd. (b)(1).)

       c.     Analysis

       Gina Bornemann initiated the very first encounter with Gamboa when she

accosted him and photographed his car, risking the possibility that Gamboa would not

take kindly to her interference. Gina testified Gamboa told her they were watching her,

causing her to feel that Gamboa was stalking her when she observed his car driving down

the street on which she lived with her family, and when she saw his vehicle parked a

short distance away. However, the record does not show that Gamboa knew where the

Bornemann family lived, and the evidence was undisputed that a friend of Gamboa’s

lived a few houses down on the same street, and that the street in question led to the

school property.

       Gamboa had a legitimate purpose in driving down the street and parking near the

residence of his friend when taking his wife and child to visit, or dropping off his child at

the school. There was no evidence that Gamboa’s conduct of driving on the road leading

to the school or parking near his friend’s house was intentionally done for the purpose of

harassing the Bornemann family. Since Gamboa had a legitimate purpose in driving and

parking on the street, his conduct did not constitute harassment. (See Byers v. Cathcart,

supra, 57 Cal.App.4th at p. 812 [parking one’s car on driveway easement did not

constitute harassment because it was for a legitimate purpose].) Smiling mockingly may

be rude, but it is constitutionally protected activity which would not cause a reasonable

person to suffer substantial emotional distress. There was insufficient evidence to

                                             19
support an inference Gamboa stalked or harassed Gina and the court did not find Gamboa

harassed her. Since the incident involving Gina was not alleged in the petition, we turn to

Bornemann’s evidence.

       The court found Gamboa harassed Bornemann by threatening him. However,

there was but a single incident, the court did not find that there was a likelihood such

conduct would recur, a requirement for an injunction, and it did not consider whether

Gamboa’s conduct might be justified. In this regard, “‘[c]ontext is everything in threat

jurisprudence.’” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty

USA, Inc. (2005) 129 Cal.App.4th 1228, 1250.) An alleged threat must be analyzed in

light of the entire context and under all the circumstances, including prior violence by

third parties. (Id. at p. 1251, citing Planned Parenthood of Colombia/Willamette, Inc. v.

American Coalition of Activists (9th Cir. 2002) 290 F.3d 1058, 1077.)

       Bornemann testified to a single incident, but the evidence is undisputed that on

two separate occasions Bornemann pulled out in front of Gamboa’s vehicle in order to

stop Gamboa, with the intention of confronting him. In other words, without

investigating his wife’s allegations, Bornemann himself provoked Gamboa in two

separate incidents. After the first incident, Gamboa, whose hand had been broken

previously, put an ASP baton in his car for his own protection. While Gamboa’s action

escalated the level of violence, it was provoked by Bornemann’s hostile confrontation.

       We agree with the trial court that the deployment of the baton constituted a threat,

but a single threat does not warrant an injunction, particularly where there was

uncontradicted evidence that the threat was provoked by Bornemann. Gamboa did not

                                             20
initiate any of the contacts or confrontation, and it is reasonable to assume that if

Bornemann had not stopped Gamboa to accost him, the threat would not have occurred.

Bornemann’s testimony regarding the single incident does not establish “a course of

conduct” or a pattern of activity by Gamboa such as would cause a reasonable person to

suffer substantial emotional distress or support an inference that it would recur. The fact

Bornemann’s wife may have subjectively felt harassed by Gamboa did not excuse

Bornemann’s conduct, and his wife’s feelings would not justify an injunction.

       The evidence supports an inference that Gamboa’s conduct was a reaction to

successive confrontations with Bornemann in which Bornemann blocked Gamboa’s car.

After the second incident, both Gamboa and Bornemann made reports and sought

military protective orders. Gamboa was willing to abide by the MPO; Bornemann was

not: he specifically wanted an order to prevent Gamboa from having access to weapons.

There is insufficient evidence to support the judgment of civil harassment against

Gamboa.

       4.     The Trial Court Abused Its Discretion By Issuing an Injunction That

Included a Weapon Relinquishment and By Deeming the MPO Inadequate.

       We requested supplemental briefing to address the question of whether the trial

court abused its discretion by rejecting the extended MPO and subsequently ordering an

injunction that included the weapon relinquishment and prohibition.

       The granting or denying of injunctive relief rests within the sound discretion of the

trial court and may not be disturbed on appeal except for an abuse of discretion.

(Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.) The appropriate test for abuse of

                                              21
discretion is whether the trial court exceeded the bounds of reason. (Ibid.) However,

judicial discretion to grant or deny an application for a protective order is not unfettered.

(S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1264.) The court’s rejection of the MPO as

inadequate, and the order for relinquishment of firearms and the prohibition against

possessing firearms was an abuse of discretion.

       Regarding the adequacy of the MPO, we have discussed the cross-enforceability

of military and civilian protective orders in section 1. The differences between the

civilian protective order and the MPO are minimal, other than the prohibition against

owning or possessing firearms, which we discuss, infra. The court’s continuance of the

trial for the express purpose of obtaining an extension of the MPO that was still in effect,

followed by its decision that the MPO was inadequate, is arbitrary and capricious on its

face. But the court’s imposition of a broad weapon prohibition overshadows this error.

       In pertinent part, subdivision (t)(1) of section 527.6 of the Code of Civil Procedure

provides that “[a] person subject to a protective order issued under this section shall not

own, possess, purchase, receive, or attempt to purchase or receive a firearm or

ammunition while the protective order is in effect.” Code of Civil Procedure section

527.9, subdivision (a), requires the restrained person to relinquish firearms. Although no

published cases have yet interpreted this subdivision, we consider it to be an integral part

of the legislative intent to prevent threatened injury (Scripps Health v. Marin, supra, 72

Cal.App.4th at p. 332; O’Toole v. Superior Court (2006) 140 Cal.App.4th 488, 513), and

to protect the individual’s right to pursue safety, happiness and privacy as guaranteed by

the California Constitution. (Russell v. Douvan, supra, 112 Cal.App.4th at p. 403.)

                                              22
       The prohibition against firearm possession is not absolute, contrary to the trial

court’s stated belief. Code of Civil Procedure section 527.9, subdivision (f), provides

that the court may grant an exemption from the relinquishment requirements for a

particular firearm if the respondent can show that a particular firearm is necessary as a

condition of continued employment and the current employer is unable to reassign the

respondent to another position where the firearm is unnecessary. The court was

apparently unaware of the exemption provisions when it informed the parties that “bench

officers are stuck with this absolute situation,” and that “[i]f you give this type of order,

you’ve got to make a general prohibits [sic] against weapons, possession of weapons,

period.”

       The court’s understanding was mistaken. First, Code of Civil Procedure section

527.6 does not authorize a blanket prohibition against possessing any type of weapon; it

specifically refers only to firearms. Code of Civil Procedure section 527.9 specifies only

that a court shall order that a person subject to a protective order shall relinquish any

firearm that is in the person’s immediate possession or control, or subject to that person’s

immediate possession or control. (Code Civ. Proc., § 527.9, subd. (b).) The court was

not authorized to order the relinquishment of any other weapon.

       Second, contrary to the court’s understanding of the mandatory provisions of a

protective order, it did have authority to exempt Gamboa from the requirement of

relinquishing a firearm by virtue of a statutory exemption applicable where a firearm is

necessary as a condition of continued employment. (Code Civ. Proc., § 527.9, subd. (f).)

The court acknowledged that Gamboa’s military career would be “shot” after 15 years if

                                              23
it entered a no weapon order, and that all military personnel must be able to bear arms.

As a warrant officer in the United States Army, Gamboa is required to qualify with a

firearm every six months. A firearm is necessary as a condition of Gamboa’s continued

employment because military personnel, no less than law enforcement officers, are

required to handle firearms as a condition of continued employment, if not of national

defense. Preventing a military warrant officer from performing his military duties under

the circumstances of this case is overkill.

       The exemption pursuant to Code of Civil Procedure section 527.9, subdivision (f),

was required under the circumstances of this case.

                                          DISPOSITION

       Matters of military discipline are best left to military commanders. The judgment

is reversed. Gamboa is entitled to costs.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               RAMIREZ
                                                                                         P. J.

We concur:


HOLLENHORST
                           J.


KING
                           J.




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