Filed 2/23/15 Bridges v. Smith CA3
                                          NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                     THIRD APPELLATE DISTRICT
                                                     (Calaveras)
                                                            ----




G.L. BRIDGES et al.,                                                                   C074704

                   Plaintiffs and Respondents,                            (Super. Ct. No. 12CH38185)

         v.

BRIAN J. SMITH,

                   Defendant and Appellant.




         After a two-day bench trial, Judge John G. Schwartz, in a minute order, granted
plaintiffs, pursuant to Code of Civil Procedure section 527.6,1 a five-year civil
harassment restraining order to stop defendant’s harassment of them, and also granted
costs to plaintiffs. Before entering the formal order, Judge Schwartz retired and was



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



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unavailable for further proceedings. Judge Thomas A. Smith then entered the formal
order pursuant to section 635.2

       On appeal, defendant claims the trial court (1) erred in denying him a mistrial, (2)
erred in awarding attorney fees to plaintiffs, (3) granted the restraining order based on
insufficient evidence, and (4) abridged defendant’s free speech rights. We agree the trial
court erred in awarding attorney fees to plaintiffs under the authority of section 635 (and
we strike that order), but otherwise we affirm the judgment (orders).

       As alleged in plaintiffs’ request for orders to stop harassment, defendant Brian J.
Smith purchased a property that plaintiff Michelle Carr-Bridges had previously managed;
after Smith’s purchase, the former owner terminated its property management agreement
with Carr-Bridges. Defendant Smith believed that Carr-Bridges was contractually
obligated to evict his tenants after he acquired the property. When Carr-Bridges refused
to do so, Smith embarked on a course of conduct to scare, harass, annoy, threaten and
harm Carr-Bridges and her husband (the plaintiffs); such conduct included the making of
threats, the defaming of plaintiffs and their business, and stalking (including via the
Internet), over several years.

       We will turn now to the issues on appeal, and set forth additional facts as we
discuss those issues.




2 Section 635 provides, “In all cases where the decision of the court has been entered in
its minutes, and when the judge who heard or tried the case is unavailable, the formal
judgment or order conforming to the minutes may be signed by the presiding judge of the
court or by a judge designated by the presiding judge.”


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                                      DISCUSSION

       I. & II. The Trial Court Did Not Err in Denying a Mistrial to Defendant,
                  But Did Err in Awarding Attorney Fees to Plaintiffs

        Defendant contends the trial court (Judge Smith) erred in denying defendant’s
mistrial motion, when the original trial judge (Judge Schwartz) reportedly “retired” prior
to completing the case, thus becoming “unavailable” to consider and sign any proposed
order after hearing or to consider the motion for attorney fees and costs subsequently
filed by plaintiffs.

        Judge Schwartz presided at a two-day bench trial in this matter in January 2013.
At the trial’s conclusion, Judge Schwartz, in a minute order and orally on the record,
granted plaintiffs a five-year restraining order under section 527.6, and costs (pursuant to
a cost bill).

        Judge Schwartz then retired before rendering the formal order in this matter.
Pursuant to section 635, Judge Smith entered the formal restraining order and an order for
costs (per a subsequent cost bill, which totaled $523) in line with Judge Schwartz’s
minute order; Judge Smith also awarded plaintiffs, after hearing, $5,050 in attorney fees.

        In a bench trial, judgment must be rendered by the judge who tried the case; it
would be a denial of due process for a new judge to render a decision without having
heard all the evidence. (See 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 45,
p. 582.) However, in one situation—the situation authorized in section 635—judgment
may be rendered by another judge: Where the decision has been entered in the minutes
and the trial judge is unavailable, the formal judgment or order conforming to the minutes
may be signed by the presiding judge or by a judge designated by the presiding judge.
(§ 635; see 7 Witkin, supra, § 45, p. 582.) That is what happened here regarding the
restraining order and the cost order signed by Judge Smith pursuant to section 635.
Those two orders conformed to Judge Schwartz’s minute order.



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        Citing Armstrong v. Picquelle (1984) 157 Cal.App.3d 122, 127-128, defendant
contends section 635 does not apply here because Judge Schwartz’s minute order was
merely a section 635-inapplicable tentative decision. However, the minute order itself,
which tracks Judge Schwartz’s oral ruling on the record at the close of the bench trial,
does not display any such tentativeness.3

        Defendant does have a point, though, when it comes to the matter of attorney fees.
Judge Schwartz’s minute order (and oral ruling at trial) granted only costs (per a cost
bill), not attorney fees. Judge Schwartz did not mention anything about attorney fees.
The civil harassment statute undergirding this litigation—section 527.6—states that
“[t]he prevailing party in any action brought under this section may be awarded court
costs and attorney’s fees, if any.” (§ 527.6, subd. (r).) Although the result is somewhat
harsh for plaintiffs, we must toe the line under section 635 and be a stickler for due
process; consequently, we must strike Judge Smith’s award of attorney fees to plaintiffs.

        There is one final matter on these two issues. Defendant speculates about Judge
Schwartz’s purported retirement and unavailability, and from there questions the judge’s
capacity to have heard this matter at all. Appellate courts do not make decisions based on
speculation; they require error shown on the record, something defendant’s idle musings
nowhere approach. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814,
822.)

        We conclude the trial court did not err in denying a mistrial to defendant, but did
err in awarding attorney fees to plaintiffs.



3 Without citing any direct authority, defendant additionally claims, in a related way, that
mistrial should have been granted because the appointment of a substitute judge
effectively denied him his due process right to have the original judge reconsider his
earlier ruling. Defendant did not move for reconsideration. In any event, here, upholding
this claim would be the undoing of section 635.


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    III. Defendant Forfeits Claim of Insufficient Evidence for Restraining Order

       Without presenting any evidence from the record, defendant baldly asserts that the
restraining order is based on insufficient evidence consisting of “mere suspicion,
conjecture, speculation” and the like. Given his failure to present a balanced view of the
material evidence on the point challenged, defendant has forfeited his claim of
insufficient evidence. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)

                IV. Restraining Order Does Not Abridge Free Speech

       Lastly, defendant contends the trial court abridged his constitutional rights, in
effect, by penalizing him for his exercise of free expression. We disagree.

       “In California, speech that constitutes ‘harassment’ within the meaning of section
527.6 is not constitutionally protected, and the victim of the harassment may obtain
injunctive relief.” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty
USA, Inc. (2005) 129 Cal.App.4th 1228, 1250.) Section 527.6 “harassment”
encompasses, as was found here, “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.” (§ 527.6, subd. (b)(3).)

       We conclude that the restraining order, prohibiting defendant from engaging in
conduct found to be “harassment” within the meaning of section 527.6, does not abridge
defendant’s constitutional right to free expression.




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                                      DISPOSITION

       The order awarding attorney fees to plaintiffs is stricken. As so modified, the
judgment (orders) is affirmed. Each party shall bear its own costs on appeal. (Cal. Rules
of Court, rule 8.278(a)(3), (5).)




                                                       BUTZ                  , J.



We concur:



      BLEASE                 , Acting P. J.



      DUARTE                 , J.




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