Filed 3/3/16 Meraz v. Coleman CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


OSCAR MERAZ,                                                         B262725

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. PS016520)
         v.

ROBERT COLEMAN,

         Defendant and Appellant.




         APPEAL from orders of the Superior Court of Los Angeles County. Adam
Michael Sacks, Temporary Judge (pursuant to Cal. Const., art. VI, §21.). Affirmed.




         Diamond & Associates and David D. Diamond for Appellant.



         Law Offices of Steven Graff Levine and Steven Graff Levine for Respondent.


                                       __________________________
       Appellant Robert Coleman and respondent Oscar Meraz were next door neighbors
who fell into discord over a construction project at the Meraz home. Meraz obtained a
permanent restraining order against Coleman. On appeal, Coleman contends: (1) the
trial court applied an incorrect standard of proof; (2) the restraining order was not
supported by substantial evidence; (3) it was error to award attorney fees; and (4) failure
to advise Coleman of his right to counsel and his right not to incriminate himself requires
reversal. We affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       On October 3, 2014, Meraz obtained a temporary restraining order (TRO)
restraining Coleman from entering the Meraz property. The order required Coleman to
stay 5 yards away from Meraz and his wife Ruby when they were at home and 100 yards
away from them when they were not at home. It also prohibited Coleman from taking,
photographs of, or videotaping, Meraz, his wife or their children.
       The TRO was returnable on October 29, 2014, which was the next scheduled
hearing date. The appellate record does not include a reporter’s transcript of the
October 29, 2014 hearing. The minute order for that date indicates that Coleman and
Meraz were both self-represented, stipulated to appointment of Commissioner Jeffrey M.
Harkavy as the hearing officer, and that Coleman was advised of his constitutional right
to an attorney. The minute order reflects witnesses testified, but without a reporter’s
transcript, we do not know the substance of any testimony. The court reissued the TRO
and set a continued hearing for December 3, 2014. Statements made at the continued
hearing suggest the reason for the continuance was to give the parties time to obtain
counsel.

A.     The December 3, 2015 Hearing

       Coleman was self-represented at the continued hearing; Meraz was represented by
counsel. The parties signed and filed a written stipulation authorizing attorney Adam
Sacks as a Judge Pro Tem. Mid-hearing, Coleman asked for another continuance to

                                              2
obtain counsel. Coleman explained he thought about getting a lawyer after the last
continuance, but decided against it; he realized it was the wrong decision. The trial court
denied the request.
       Meraz testified that Coleman took pictures of Meraz and his wife while they were
in their home and entered Merazes’ property to take pictures of the construction workers.
Meraz testified Coleman “threatened to ruin me. Kick me out of my house. Lose
everything and leave me a disgrace to my family.” Coleman threatened to “end” Meraz,
which Meraz understood as a threat to his and his wife Ruby’s safety. Coleman
sometimes stood in his garage wearing boxing gloves and stared at Meraz and his wife as
they arrived home. After Meraz installed a security system, Coleman began to make
gestures to the security camera: “Make pointing gestures as if he was holding a gun on
several occasions at the camera. As if he was holding a rifle on one occasion.” Meraz
knew Coleman owned guns. Coleman also took “his dog excrements aimed it at the
camera and said on video, ‘This is you, Oscar. This is for you.’ ”
       On October 23, 2014, after Meraz had obtained the TRO, Coleman used “some
sort of laser device” to burn out the security camera’s night vision. Based on this
incident, Meraz filed a vandalism report with the police. Meraz filed another police
report on November 5, 2014, based on surveillance video showing violations of the TRO.
Meraz does not feel safe in his home and fears for his life and his wife’s life. Coleman
has reported Meraz to City Building and Safety, OSHA, the Contractor’s Licensing
Board and the IRS.
       Meraz’s wife testified she is afraid to go home unless her husband is there because
of the things that Coleman has done to her husband and because of the way Coleman
stares at her when she is driving up the driveway. The Merazes’ kitchen has a glass
sliding door that faces a wall between the Meraz and Coleman properties; because
Coleman looks over that wall and into their kitchen, Ruby is afraid to go into the kitchen.
       Coleman testified he was “inundated with concrete dust” from the construction
projects at the Meraz home. Coleman reported Meraz for not getting permits for the
construction work. Coleman took photographs of the construction project and of the car

                                             3
license plates of some of the people working on the project, but never trespassed onto
Merazes’ property. Coleman entered onto Merazes’ property on one occasion, to turn off
the gas when he smelled the odor of gas in his own yard. Coleman called Meraz “a sissy
and a punch [sic],” but never threatened to “end” Meraz or to “ruin” him. Coleman
explained he leaves the garage door open when he uses the punching bag in his garage for
exercise. Coleman owned a gun, but his son took it to San Diego before the TRO was
entered; Coleman has no other guns except for a BB gun. Coleman at first denied taking
any photographs of Meraz or his family. He then admitted taking two photographs of
Meraz but denied taking any photographs of Ruby while she was in the kitchen of the
Meraz home. Coleman pointed a carpenter’s laser at Merazes’ surveillance cameras
because, during its 360 degree revolution, it pointed into the Colemans’ side yard.
       Coleman’s wife, Renee, testified she worked during the day. She never witnessed
any confrontations between Coleman and Meraz. She never saw Coleman take pictures
of Meraz or Ruby, only of the construction project. Coleman could not have taken
pictures without her knowledge because they owned just one camera and she saw every
picture on that camera when she downloaded the photographs. There are only two
pictures of Meraz in the downloaded photographs, each of which shows Meraz walking
across his backyard. Renee was shown a 12-second video which shows Coleman on the
Coleman side of the wall that separates the Meraz and Coleman properties; Coleman can
be seen taking photographs of Meraz and Ruby while they were in the kitchen of the
Meraz home. The trial court described the video: “I saw you aiming the camera directly
towards them when they were in their kitchen. Apparently, you are telling me you didn’t
take any pictures and so forth, and it seems like you did.”

B.     The Restraining Order

       At the conclusion of the hearing, the trial court issued a restraining order against
Coleman to remain in effect until December 3, 2017 (the restraining order). The trial
court explained it had been “disinclined” to grant the restraining order based on the
pleadings, but after seeing Coleman’s “demeanor in court, and I understand you are not

                                              4
an attorney. I understand this is hard for you. You’ve been – you’ve been very, very
difficult with me. I think I’ve shown an abundance of patience and I don’t find your
testimony credible.” The order required Coleman to stay five yards away from Meraz
and Ruby when they were at home, and 100 yards away when the Merazes were not at
home.

C.      The Motion for Rehearing and Reconsideration

        On December 15, 2014, Coleman’s newly retained counsel filed a motion
captioned “Notice of Motion and Motion for Rehearing, Reconsideration or New Hearing
on Restraining Order, etc.” The gravamen of Coleman’s motion was that (1) the
restraining order was not supported by sufficient evidence of harassment (i.e., activity
that was not otherwise constitutionally protected); (2) because the construction project
was subsequently completed, there was no evidence that the harassing behavior would
continue; and (3) the December 3, 2014 hearing should have been before the judicial
officer who presided over the hearing on October 29, 2014. Meraz opposed the motion
and requested sanctions pursuant to Code of Civil Procedure section 128.5.
        There is no reporter’s transcript of any hearing on the motion for reconsideration;
nor does any minute order reflect a hearing in court. Instead on March 2, 2015, the same
hearing officer who presided over the December 3, 2014 hearing and issued the
permanent restraining order signed an order denying the motion for reconsideration. The
trial court’s decision was attached to a clerk’s minute order issued that date.
        The trial court’s decision denying the motion for reconsideration states in part:
               “There is no just basis for a rehearing as requested by Respondent
               [Coleman]. I hereby deny Respondent’s frivolous motion and order that
               Respondent pay the Petitioner’s counsel $2,000 in Attorney’s fees under
               [Code of Civ. Proc.,] 128.5(b)(2) as requested. Respondent’s motion is, put
               simply, completely without merit. I am very bothered that clearly counsel
               for Respondent does not even seem to know the general basic facts of the
               matter and brings up several irrelevant issues and others never heard before.
               The court rules that the Restraining Order was properly requested, was duly
               defended against by the Respondent, and was properly issued for three


                                              5
            years as the Petitioner had met his burden of proof. There is no reason for a
            new hearing to be granted and it is thus denied.”
       Coleman filed a timely notice of appeal.

                                       DISCUSSION

A.     The Burden of Proof

       On appeal, Coleman contends the trial court prejudicially erred in applying the
preponderance of the evidence standard of proof, rather than the statutorily mandated
clear and convincing standard (Code of Civ. Proc., § 527.6, subd. (i)), to the findings it
was required to make to support a civil harassment order. He bases this contention on a
confusing statement the trial court made just before announcing its ruling. Even
assuming error, Coleman has not shown prejudice.
       We review issues concerning the proper allocation of the burden of proof de novo.
(In re Marriage of Ettefagh (2007) 150 Cal.App.4th 1578, 1585.)
       Civil harassment restraining orders are governed by Code of Civil Procedure
section 527.6, which allows a person who has suffered “harassment” to seek an order
prohibiting the harassment. (Code Civ. Proc., § 527.6, subd. (a)(1) (§ 527.6).)1 “If the
judge finds by clear and convincing evidence that unlawful harassment exists, an order
shall issue prohibiting the harassment.” (§ 527.6, subd. (i), italics added; Thomas v.
Quintero (2005) 126 Cal.App.4th 635, 662.) “ ‘Clear and convincing’ evidence means
evidence of such convincing force that it demonstrates, in contrast to the opposing
evidence, a high probability of the truth of the fact[s] for which it is offered as proof.”
(BAJI No. 2.62; see Russell v. Douvan (2003) 112 Cal.App.4th 399, 401.) Clear and
convincing is a higher standard of proof than “preponderance of evidence,” which is
defined as “evidence that has more convincing force than that opposed to it. If the
evidence is so evenly balanced that you are unable to say that the evidence on either side


1      Section 527.6 has been amended. We refer to the statute as it was on December 3
2014, the day of the hearing.


                                              6
of an issue preponderates, your finding on that issue must be against the party who had
the burden of proving it.” (BAJI No. 2.60.)
       Here, the trial court described the standard of proof as follows:
              “The standard proof for a restraining order is different obviously than a
              criminal case. It is stronger than beyond a reasonable doubt. This is
              preponderance of evidence.”

       On its face, the statement makes no sense because a “preponderance of the
evidence” is not “stronger than beyond a reasonable doubt.” Our view of the statement is
that either the trial court unintentionally misspoke and intended to communicate correctly
that the applicable standard of proof was “less” than beyond a reasonable doubt but
“more” than a preponderance of the evidence, i.e. clear and convincing, or the reporter
took down the statement incorrectly. (See People v. Seaton (2001) 26 Cal.4th 598, 635
[rejecting argument based on isolated fragments of trial court’s comments, taken out of
context].) Our conclusion is reinforced by the trial court proceedings: neither party
objected at the hearing to the trial court’s statement, and any claimed misapplication of
the burden of proof was not raised in the motion for rehearing and reconsideration which
was filed after Coleman had retained counsel.
       Even assuming the trial court erroneously applied the lesser preponderance of the
evidence standard and that Coleman did not forfeit the issue by not raising it at the
December 3, 2015 hearing or in his motion for rehearing and reconsideration (In re
Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002 [appellate court will not consider
procedural defects that were not presented to the lower court]), we find no prejudice. We
review errors in applying the correct burden of proof in proceedings of this nature under
the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, namely that there
must be a reasonable probability a different result would have been reached but for the
improper allocation of the burden of proof. (Conservatorship of Maria B. (2013)
218 Cal.App.4th 514, 532-533.) In Conservatorship of Maria B., supra, the trial court
applied the preponderance of evidence burden of proof in ordering that a conservator
could require the conservatee to undergo a serious and intrusive medical procedure. (Id


                                              7
at p. 522.) The Court of Appeal concluded that the clear and convincing evidence
standard applied to the trial court proceedings. (Id. at p. 528.) The appellate court
nevertheless affirmed the trial court’s order, finding the error in the application of the
burden of proof was harmless.
         Citing People v. Watson, supra, the court stated: “Although the trial court erred,
we may not reverse the trial court’s order granting [respondent’s] petition unless
[appellant’s] counsel shows it is reasonably probable the trial court would have denied
the petition had it applied the correct standard of proof. We affirm the trial court’s order
granting the petition because [appellant’s] counsel failed to make this required showing.”
The court proceeded to review the evidence at trial to reach its finding of harmless error.
         We do the same here.
         Coleman has failed to show a different result was probable if the trial court had
applied the clear and convincing standard. This is because the trial court expressly found
Meraz and Ruby credible and Coleman “dishonest.” The trial court elaborated: “And I
think that, you know, with respect to some of the things you’ve done, they were fairly
reasonable. But then you seemed to have gone too far and crossed the line. [¶] And
from your demeanor today in court, I can see that in your personality and I haven’t
known you long time [sic], but I think you have to think very carefully about some of the
things that you are saying and doing because they’re not appropriate, okay. And for you
to tell the court when you are under oath under penalty of perjury that you never took a
picture of them going in the kitchen. And for me to watch a video of you having
specifically done that, okay, and then you saw the video, and you are still insisting that
you didn’t do that. That’s a big cognitive disconnect that you have, sir, and that’s very
concerning to me, okay. It’s okay this is not a criminal matter. You are not going to jail,
but I am going to issue a restraining order . . . .”
         Based on the entirety of the trial court’s comments, and the substantial evidence of
harassment, even if the trial court applied the wrong standard of proof, it is not probable
there would have been a different result if the trial court had used the correct standard of
proof.

                                                8
B.     Sufficiency of the Evidence

       Coleman contends the restraining order is not supported by substantial evidence.
He argues the “majority of the evidence presented was benign and nothing that would
create apprehension or fear in a reasonable person.” He further argues that taking
photographs and reporting Merazes’ building and safety code violations to government
agencies is constitutionally protected activity. We find no error.
       The appropriate test on appeal from an order granting a civil restraining order “is
whether the findings (express and implied) that support the trial court’s entry of the
restraining order are justified by substantial evidence in the record. [Citation.] But
whether the facts, when construed most favorably in [the petitioner’s favor] are legally
sufficient to constitute civil harassment under section 527.6, and whether the restraining
order passes constitutional muster, are questions of law subject to de novo review.
[Citations.]” (R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188.)
       Section 527.6 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.” (§ 527.6, subd. (b)(3), italics added.) The statute defines “credible threat
of violence” as “a knowing and willful statement or course of conduct that would place a
reasonable person in fear for his or her safety, or the safety of his or her immediate
family, and that serves no legitimate purpose. (§ 527.6, subd. (b)(2).)
       “Constitutionally protected activity is not included within the meaning of ‘course
of conduct.’ ” (§ 527.6, subd. (b)(1).) Generally, “[l]egitimacy of purpose negates
harassment.” (Byers v. Cathcart (1997) 57 Cal.App.4th 805, 812.) But taking
photographs of a person through the windows of that person’s residence is neither
constitutionally protected nor does it necessarily have a legitimate purpose. It has been
recognized in some states as the tort of “intrusion” which is akin to trespass. (See

                                              9
Rest.2d Torts, § 625B; Retuerto v. Brea Moving & Storage Logistics (Ohio 2015)
38 N.E.3d 392, 407.)
       Here, the evidence showed the following conduct by Coleman: (1) entering onto
the Meraz property to take photographs of the construction project; (2) taking
photographs of the Meraz family through their kitchen window; (3) holding up dog
excrement to the Merazes’ security camera and saying, “This is you, Oscar. This is for
you;” (4) on several occasions making gestures at the security camera as if he was
holding a gun; (5) destroying the security camera’s night vision feature by shining a laser
into the lens; and (6) making verbal threats to Meraz including to “ruin” Meraz, kick
Meraz out of his home, cause Meraz to “lose everything,” and cause Meraz to be a
disgrace to his family. There was evidence that Coleman’s repeated conduct had caused
Meraz to fear for his and Ruby’s physical well being; it had caused Ruby to be afraid to
go home unless her husband was there; she was afraid to go into the kitchen.
       Taken as a whole, this evidence was sufficient to show Coleman engaged in “a
knowing and willful course of conduct directed at a specific person [Meraz] that seriously
alarms, annoys, or harasses the person, and that serves no legitimate purpose” and which
“would cause a reasonable person to suffer substantial emotional distress” and that the
conduct “actually cause[d] substantial emotional distress to” Meraz and Ruby. (§ 527.6,
subd. (b)(3).)
       Coleman’s argument that he had a legitimate purpose for some of his conduct does
not compel a contrary result. It was not reasonable and served no legitimate purpose for
Coleman to enter onto the Meraz property to take photographs, to intrude on the
Merazes’ privacy by taking photographs of them through their kitchen window, to
threaten Meraz, to present excrement to the Merazes, or to destroy the Meraz security
camera. As the trial court observed, even if some of what Coleman did was reasonable
(e.g. taking photographs of the construction project while standing on his own or public
property and reporting alleged violations to relevant agencies), the trial court reasonably
found that Coleman’s other actions crossed the line to civil harassment, which was made



                                             10
worse by the cumulative effect of varied acts. Substantial evidence supported that
finding.

C.     Coleman’s Fifth Amendment Rights

       Coleman contends the restraining order should be reversed because he was not
advised of his fifth amendment rights at the hearing on December 3, 2014, his request for
a continuance to obtain counsel was denied, and the trial court improperly pressured him
into agreeing to a permanent injunction. We find no error.
       We find no place in the record at which Coleman “agreed” to the preliminary
injunction. At most, the trial court raised the question of a stipulated injunction. When
the inquiry produced no resolution, the trial court continued with the hearing. Coleman
cites no legal authority to support any of these contentions, and thus has waived these
arguments. “ ‘[E]very brief should contain a legal argument with citation of authorities
on the points made. If none is furnished on a particular point, the court may treat it as
waived, and pass it without consideration.’ [Citation.]” (McComber v. Wells (1999)
72 Cal.App.4th 512, 522.)

D.     Attorney’s Fees

       Coleman makes two arguments challenging the award of attorney’s fees following
Coleman’s motion for rehearing and reconsideration: First, there was no motion for
attorney’s fees. Second, the motion was not legally frivolous and thus did not support an
award of attorney’s fees. We find no error.2




2      In the moving papers filed in the trial court, appellant described his motion at
various times as one for reconsideration, rehearing, new trial and new hearing. He
continues this practice on appeal. The trial court in its ensuing order characterized the
motion as one for “rehearing and reconsideration.” For purposes of our disposition, it
matters not what this motion was formally called, but we adopt the term “motion for
rehearing and reconsideration” because that is what the trial court did.


                                             11
       We begin with the observation that the civil harassment statute, section 527.6,
gives the trial court discretion to award costs and attorney’s fees to the prevailing party.
(§ 527.6, subd. (r).) No showing of bad faith or frivolousness is required. (Krug v.
Maschmeier (2009) 172 Cal.App.4th 796, 802.) But Meraz did not request attorney’s
fees pursuant to section 527.6, subdivision (r) in connection with Coleman’s motion for
hearing and reconsideration. Instead, Meraz expressly requested in his opposition to the
motion that he be awarded attorney’s fees pursuant to section 128.5. The trial court
expressly granted attorney’s fees pursuant to section 128.5, not section 527.6, subdivision
(r). Accordingly, we consider whether sanctions under section 128.5 were appropriate.3
       Section 128.5 provides for an award of attorney’s fees and costs “as a result of bad
faith actions or tactics that are frivolous . . . .” (§ 128.5, subd. (a).) An attorney’s fee
award pursuant to section 128.5 must be based on “notice contained in a party’s moving
or responding papers; or the court’s own motion, after notice and opportunity to be
heard.” (§ 128.5, subd. (c).) No separate motion is necessary and the adequacy of the
notice depends on the circumstances of the case. (In re Marriage of Quinlan (1989)
209 Cal.App.3d 1417, 1420.) The trial court is “not bound by a strict accounting
requirement in determining the amount of sanctions. [Citation.].” (Id. at p. 1421, fn. 1.)
       The reviewing court’s function “is limited to determining if there is any substantial
evidence to support the trial court’s order. We may not reweigh the evidence or
substitute our discretion for that of the trial judge. [Citations.]” (Estate of Ivey (1994)
22 Cal.App.4th 873, 881.) We find substantial evidence supports the award in this case.
       Coleman’s procedural challenge to the sanction award is contrary to the record.
Meraz’s opposition to the motion for rehearing and reconsideration was filed on
December 23, 2014. In his opposition, Meraz expressly requested attorney’s fees in the
amount of $2,000 pursuant to section 128.5, subdivision (b)(2). Because the request for
fees came in responding papers Meraz complied with the statutory method of giving
notice. Coleman did not address the sanctions request in his reply papers. The hearing

3     Because we conclude the award was proper under section 128.5, we need not
address respondent’s point that the award was also reasonable under section 527.6.

                                               12
on the motion for reconsideration did not take place until March 2, 2015, more than two
months after Meraz’s attorney’s fees request was filed. Coleman had sufficient notice
that Meraz was seeking sanctions in the form of attorney’s fees.
       Coleman’s argument that the award is not supported by substantial evidence also
fails. As discussed in the opposition to the motion, reconsideration may not be granted
under Civil Code section 1008 unless it is supported by “new or different facts,
circumstances or law.” (Civ. Code, § 1008, subd. (b).) To the extent Coleman’s motion
was one under section 1008 for reconsideration, he produced no new evidence, no new
law. Nor do we find any merit in Coleman’s argument that his motion for rehearing and
reconsideration was not frivolous because Coleman reasonably had argued that there was
an “inconsistency in the proceedings.” 4 For that argument, he points to the fact that two
different bench officers heard various parts of the case, one on October 29 and another on
December 3. Although it is true that different judicial officers presided over the two
hearings, nothing in the record suggests two different judicial officers presided over the
merits of the section 527.6 proceeding. The October 29, 2014 minute order states that
witnesses were sworn and some testimony was presented. But, we know nothing of the
nature of that testimony. At the December 3, 2014 hearing, the temporary judge did not
state he was relying on anything that occurred at the earlier hearing. Nor does there
appear to be any way he could have since there was no transcript of that hearing. Finally,
on December 3, 2014, neither side objected to, or even discussed, the fact that a different
temporary judge was presiding over the second hearing.5 On this record, we find no



4      We do not understand what Coleman means by “inconsistency in the
proceedings.” To the extent he is alluding to the statutory power to grant a new trial for
irregularity of the proceedings of the court (§ 657, subd. (1)), we find no irregularity.
5
       Coleman limits his argument on the participation of two different judicial officers
to support his claim that his motion for rehearing and reconsideration was not frivolous
and, therefore, the award of attorney’s fees was improper. To the extent his reply brief
suggests that the use of two different judicial officers was an error that itself justifies
reversal in this case, we reject it for the reasons stated in the text.

                                            13
abuse of discretion in the trial court’s award of section 128.5 sanctions in the amount of
$2,000 for a frivolous motion.

                                     DISPOSITION

       The restraining order is affirmed. The March 12, 2015 order denying Coleman’s
new trial motion for reconsideration and awarding sanctions is affirmed. Meraz shall
recover his costs on appeal.




                                                 RUBIN, J.
WE CONCUR:



              BIGELOW, P. J.



              GRIMES, J.




                                            14
