Filed 11/26/14 Weakly v. Edmunds CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



MARILYN WEAKLY,                                                     D062678

         Plaintiff and Respondent,

         v.                                                          (Super. Ct. No. 37-2012-00100616-
                                                                     CU-HR-CTL)
GINNY EDMUNDS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Gale E.

Kaneshiro, Judge. Affirmed.



         Ginny Edmunds, in pro. per., for Defendant and Appellant.

         Law Offices of Darren J. Quinn and Darren J. Quinn for Plaintiff and Respondent.

         In the course of a contentious marital dissolution dispute, which included a civil

action initiated by defendant and appellant Ginny Edmunds (Ginny)1 against her former

husband, his mother and his girlfriend, a confrontation occurred at the girlfriend's home.



1        First names are used for ease in identifying the parties; no disrespect is intended.
Shortly after the confrontation, at a hearing with respect to dismissal of Ginny's civil

complaint, Ginny advised counsel for her former husband that she was "getting a gun."

In response to this statement, Ginny's former mother-in-law and her husband's girlfriend

each filed separate requests for a restraining order against Ginny, including an order that

she not own or possess a firearm.

       The trial court granted both requests, and Ginny appealed both orders. Her appeal

from the order entered in favor of her former mother-in-law was dismissed. She now

appeals from the order entered in favor of her husband's girlfriend, plaintiff and

respondent Marilyn Weakly (Marilyn). We affirm. Contrary to Ginny's arguments on

appeal, there is sufficient evidence to warrant the order entered in favor of Marilyn.

                       FACTUAL AND PROCEDURAL HISTORY

       As we indicated, Ginny and her former husband, Michael Caldwell (Michael),

have been engaged in a lengthy marital dissolution dispute since 2003. According to

Ginny, Michael has been hiding community assets from her and, in an effort to diminish

his support obligation to her and their children, has been concealing the nature of his

relationship with Marilyn. Ginny believes Michael and Marilyn have been sharing the

proceeds of businesses Michael controls and have been living as man and wife. Ginny

asserted in the trial court that, in light of these circumstances, she needed to investigate

Marilyn's living situation and her financial relationship with Michael.

       In May 2012, Ginny's investigation of Marilyn included two trips to Marilyn's

home, which is located on a privately owned street, where Ginny was seen going through

Marilyn's trash. On the May 1, 2012 visit, Ginny knocked on Marilyn's door and

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questioned Marilyn's housekeeper about Marilyn's whereabouts, Michael's whereabouts

and the housekeeper's schedule. Ginny videotaped the conversation. On May 22, 2012,

Marilyn's neighbors once again saw Ginny going through Marilyn's trash, and they called

police. On the same day, Michael's 82-year-old mother, Lea Caldwell (Lea), reported

that Ginny began questioning her while she was walking in the neighborhood where

Marilyn lives and that she went to a neighbor's garage and felt trapped there by Ginny

until a neighbor took her to a friend's home. According to Ginny, during the May 22,

2012 incident, two cars drove up next to her and would not let her leave. A third car

driven by Michael also arrived. Ginny felt frightened by this response and called 911

herself.

       At a June 4, 2012 ex parte hearing held with respect to the civil action Ginny

brought against Michael, Lea and Marilyn, Ginny told their attorney that she was going to

"get a gun" and that in fact she had been advised by police to do so. At the ex parte

hearing, counsel also noted that Ginny sat on the floor instead of in a chair and that this

behavior gave rise to concerns about Ginny's mental health.

       Following the ex parte hearing, Marilyn and Lea each filed a request under Code

of Civil Procedure2 section 527.6, subdivision (b)(3) for a restraining order against

Ginny. The trial court conducted a joint hearing on the two requests. At the hearing,

Marilyn stated that Ginny's harassment of her had been going on for a lengthy period of



2      All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.

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time and that, in 2009, the harassment caused Marilyn to move away from a home she

shared with Michael. Marilyn further stated that Ginny's conduct had caused her a great

deal of emotional distress. Marilyn's attorney also related his concern about what he

believed was Ginny's deteriorating mental state.

       For her part, Ginny testified that she believed she had the right to investigate

Marilyn's relationship with Michael. She also testified that she had been frightened by

the May 22, 2012 incident and that a police officer advised her to get a gun to protect her

home. She denied telling Marilyn's counsel she was going to purchase a gun to use

against his clients. She explained that she sat on the floor during the ex parte hearing

because of a back spasm she was experiencing.

       The trial court granted the requested orders. With respect to Marilyn, the order

prevents Ginny from: coming within 100 yards of Marilyn, going through Marilyn's

trash, and owning or possessing a firearm. The order has a term of three years. The trial

court also awarded Marilyn $2,400 in attorney fees. Ginny filed a timely notice of

appeal.3

                                       DISCUSSION

       Section 527.6 permits someone who has been harassed to obtain a restraining

order preventing the harassment. Section 527.6, subdivision (b)(3) defines harassment as

follows: "'Harassment' is unlawful violence, a credible threat of violence, or a knowing

and willful course of conduct directed at a specific person that seriously alarms, annoys,


3     In separate proceedings following entry of the restraining order, the trial court
determined that Ginny is a vexatious litigant.
                                              4
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."

        "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.)

        Contrary to Ginny's argument on appeal, there is sufficient evidence to support the

trial court's determination that she harassed Marilyn within the meaning of section 527.6

subdivision (b)(3). Marilyn's testimony to Ginny's long history of harassment, her

interrogation of Marilyn's housekeeper, her repeated searches through Marilyn's trash and

her statements to counsel about acquiring a gun, are ample evidence of annoying and

threatening conduct that would cause a reasonable person to suffer substantial distress as

well as evidence that in fact Marilyn suffered substantial distress. We note in particular

that Ginny's search through Marilyn's trash is a violation of San Diego Municipal Code

section 66.0402. Ginny's need to establish the nature of Marilyn's relationship with

Michael did not excuse her violation of law or her invasion of Marilyn's privacy.

        We recognize that Ginny challenges the credibility of the evidence Marilyn

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presented. The weight and credibility of the evidence Marilyn presented was a matter for

the trial court to determine and where, as here, the trial court could rationally rely on that

evidence, we may not disturb its implied determination that the evidence was credible.

(See Schild v. Rubin, supra, 232 Cal.App.3d at p. 762.) In particular, we see no error in

the trial court admitting the statements of Marilyn's counsel with respect to what Ginny

told him at the ex parte hearing. Ginny's statements were not hearsay in that they were

not admitted for the truth of whether Ginny was in fact going to get a gun. Rather, they

were admitted and relevant with respect to Ginny's state of mind at the time she made the

statements and the impact of those statements on Marilyn's state of mind. (See People v.

Ortiz (1995) 38 Cal.App.4th 377, 389.) We note also that, for her part, Ginny did not

dispute the substance of what counsel related: that Ginny had been told by police that she

should get a gun.4

       Ginny also complains that the trial court declined to review a tape of what

occurred at the May 22, 2012 incident, which she offered. In light of Ginny's own

concession that she went to Marilyn's home more than once, searched through Marilyn's

trash can and did speak to Marilyn's counsel about getting a gun, the trial court acted well

within its discretion in declining to consider additional cumulative evidence of the nature

of Ginny's continuing conduct toward Marilyn.




4      Ginny also contends that she asked the trial court for assistance in obtaining
testimony from the police officer who told her to get a gun. This contention is not
supported by any citation to the record, and we have not been able to find any such
request in the record on appeal.
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                                      DISPOSITION

         The judgment is affirmed. Marilyn to recover her costs of appeal and her attorney

fees.5


                                                                     BENKE, Acting P. J.

WE CONCUR:


McDONALD, J.


IRION, J.




5      Section 526.7, subdivision (r) permits an award of reasonable attorney fees to the
prevailing party in any action brought under the statute. On remand, Marilyn may
present the trial court with a memorandum of costs setting forth the reasonable attorney
fees she incurred on appeal. Ginny may challenge the amount of attorney fees requested,
but not Marilyn's right to them, by way of a motion to tax costs.
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