Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. Nos. N07-0892 & N07-0942
Richman, J.
INTRODUCTION
Disputes between neighbors can be among the most prolonged, petty, and downright nasty of all litigation. (See, e.g., Griffin v. Northridge (1944) 67 Cal.App.2d 69, 71-73.) Like the storied feud between the Hatfields and the McCoys, conflicts between neighbors can become notoriously bitter, sometimes even providing the motive for murder. (See People v. Garcia (2005) 36 Cal.4th 777, 782-783.)
While physical violence has not occurred in the present case, repeated juvenile and spiteful antics by defendant Steven Marlowe have punctuated his ongoing dispute here with his neighbors, plaintiffs Richard Beil and Kelly Mullins. As a result, the court issued a temporary restraining order (TRO), and ultimately a three-year injunction, under Code of Civil Procedure section 527.6 in favor of plaintiffs, to prevent further harassment by Marlowe.
All statutory references, unless otherwise indicated, are to the Code of Civil Procedure.
Marlowe appeals from the order imposing the injunction, claiming (1) the court lacked jurisdiction to issue it and (2) there was no substantial evidence to support it. We easily reject both arguments, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Marlowe lived next door to Mullins and her boyfriend Beil on Vista Lane in Alamo. The two homes shared a common driveway located between them, which then branched off into separate driveways for the two residences.
In the summer of 2006, Marlowe was doing major construction work on his property, including erecting a fence, constructing a new driveway, and improving the landscaping, which resulted in a foot of mud being deposited on the common driveway. Mullins, who owned the Vista Lane property, complained to Marlowe that the work had caused water and mud to drain onto her property, which in turn had damaged her fence and retaining wall. Marlowe told her she was “going to have to fucking live with it.”
Beil then asked Marlowe if permits were required for his construction work. Marlowe said his contractor told him permits were not required. Plaintiffs checked with the county. Permits were in fact required, and a correction notice was issued. This no doubt delayed the completion of Marlowe’s project and increased its cost. It may be gleaned from the record that this was the impetus for Marlowe’s ensuing campaign of harassment against Mullins and Beil. As a result of plaintiffs’ complaints, Marlowe’s construction project was red-tagged a total of two or three times, for starting without a permit, exceeding the fence height limit, and improper drainage.
In part to escape from Marlowe, Mullins put her home up for sale. At an open house in August 2006, after Marlowe’s construction project had been red-tagged, Marlowe appeared uninvited and showed himself through the home. Although Marlowe did not harass potential buyers, Beil later questioned why he had come to the open house. Marlowe responded that an open house was open to the public, and he would come over again if they held another one. Marlowe’s wife, his wife’s sister, and a friend attended subsequent open houses, although they were not prospective buyers.
On another occasion, the real estate agent heard what she thought was a male voice from within Marlowe’s residence yelling, “Do not buy the house.” The agent thought Marlowe was trying to scuttle the sale of Mullins’ home, as the A-frame signs advertising the property were moved so that they pointed away from Mullins’ house. Marlowe also sometimes pulled into the common driveway so quickly in his sports car that it would bottom out, causing one prospective buyer to yank her three year-old out of the way so the child would not be hit. Marlowe’s teenage son played loud music from his car parked in their garage during an open house. Mullins said that in 14 years as a real estate agent, she had never before experienced this type of interference with open houses. When the home ultimately sold, after more than a year on the market, it sold for much less than the asking price.
Sometime around June 2007, Beil again contacted the county to complain that Marlowe’s fence was too high, creating a dangerous condition for ingress and egress to Mullins’ property. The county notified Marlowe that his fence was out of compliance with the county ordinance because it was more than six feet high.
At about this time, Mullins found a flier in her Vista Lane mailbox on which someone had written that her property was only worth $1.2 million, rather than the listing price of $1.7 million. She also found an envelope in her mailbox containing a pair of women’s panties, with the enigmatic salutation, “Guess who?” on the envelope. Although the envelope had stamps affixed, they were not canceled, and the mailman said he had not delivered the envelope. Mullins believed Marlowe was responsible and reported the incident to the police. Later she received a threatening phone call from an unidentified caller, saying, “You’re a bitch. I’m going to kill you.” She reported the call to the police and had her telephone tapped, but was not able to identify the caller. Mullins stayed in her office to allow Beil to arrive home before she did, so she could feel safe returning home.
On June 7, 2007, Paul Windust, attorney for plaintiffs, wrote a letter to Marlowe threatening legal action if Marlowe did not correct the water drainage problem and repair the damage allegedly caused by the construction on his property. This prompted Marlowe to pound loudly on Mullins’ door, appearing agitated and irritated. When Beil answered the door, Marlowe “got in [his] face” and started yelling that it was “going to get much worse, much worse.” He threatened to cut off the top of the fence to “make it look ugly,” pointing out that he was not the one trying to sell his house.
Mullins, overhearing the commotion from the backyard, came inside and started recording the interchange on her camera. Marlowe then bent over with his posterior toward the camera, saying, “Here, get a picture of this,” or “Kiss my ass.” He did not actually expose his buttocks to the camera, but Beil considered the gesture derogatory. Marlowe testified at trial that he was just bending over to check if his shoes were tied.
Mullins called 911, and Deputy Sheriff Brian DeMunnik responded. He interviewed the parties. Mullins was crying as she described Marlowe’s conduct.
Marlowe told DeMunnik he had approached Beil and Mullins because of their complaint to the county about his fence being “two inches too high.” He claimed he did not pound on their door, but merely knocked, attempting to initiate a conciliatory conversation. He did admit to DeMunnik that he had put up a kiddie pool in the common driveway when plaintiffs were holding an open house, to get even with them for the complaint about the fence height. He then called out to prospective buyers, “Welcome to the neighborhood. You just need to wear a bathing suit and act like a redneck.” He said it was “pretty fun” to harass prospective buyers.
On June 11, 2007, plaintiffs filed separate petitions for an injunction against Marlowe, each set for hearing on June 14. The petitions were later dismissed because there was a pending sale on Mullins’ home, and plaintiffs did not want to disclose their petitions to the potential buyer. Since they would soon be moving away, they thought the harassment would cease.
On June 14, 2007, Deputy DeMunnik was called out to plaintiffs’ new residence on Tanglewood Lane, which was still under construction. Mullins and Beil called the sheriff’s office to investigate a two-foot by two-foot hole they discovered in the drywall near the interior garage door. The front door of the home had not yet been installed, and it appeared that someone had entered the home without permission, then smashed a hole in the drywall near the interior garage door to gain access to the garage, where the building materials were stored. Nothing was missing from the garage, so it was recorded as vandalism. There was no evidence, other than coincidental timing, to prove that Marlowe was responsible for the vandalism: plaintiffs had not told Marlow their new address, and did not believe Marlowe knew where their new home was located.
In October 2007, however, Marlowe proved he did know where plaintiffs were moving as, unannounced and uninvited, he drove to their new home on Tanglewood Lane and parked across the street on their private lane. Marlowe got out of his car and entered plaintiffs’ front yard, telling Mullins that he wanted to speak to Beil alone. After some protest, Mullins went back into the house.
Marlowe told Beil that he knew Beil’s ex-wife’s name, where plaintiffs worked, who Beil’s business partners were, who their employees were, and how much money they had in the bank. He said he knew how much they had paid for the Vista Lane and Tanglewood properties and knew what other properties they owned.
Although Marlowe made no threats of physical violence, Mullins testified she was “scared” and felt “threatened” by Marlowe, believing he intended to harm them or their employees. Beil testified that it “really bothered” him that Marlowe had come to their new house. Beil felt Marlowe was “stalking” them, and he interpreted Marlowe’s statements as a potential personal threat to him, his family, his business partners, or his employees.
Mullins called 911, and Deputy DeMunnik again responded. Marlowe admitted telling Beil that he knew about his place of employment and his prior marriage. However, he said that all his information was in the public domain and had been acquired on the Internet. He told DeMunnik that he wanted to impress upon plaintiffs that “there are no secrets” and wanted to make plaintiffs’ lives a “living hell.” DeMunnik considered Marlowe’s conduct “unreasonable.” At trial, Marlowe testified that he went to plaintiffs’ new home to complain about an incident in which Mullins had blocked the common driveway on Vista Lane, so that his wife could not get her car out, which caused his daughter to be late for school.
Driveway blockage appears to have been a problem for both sets of neighbors. Mullins and Beil also complained about Marlowe’s teenage son parking in the common driveway and blocking access to their driveway, which resulted in another visit from Deputy DeMunnik.
After this incident, Beil and Mullins moved out of the Vista Lane home and into the Tanglewood residence, even before construction was finished, because they were “fearful” of Marlowe.
By December 2, 2007, Mullins and Beil still had not sold the Vista Lane home. They went by the property that evening to check if the realtors had locked up after an open house. As they pulled into the driveway they noticed Marlowe standing at their front door, then walking briskly away, holding up his pants as he passed their car. When they checked the door, they saw liquid rolling down it and a big puddle of liquid on the door mat. They could tell from the smell it was urine. Their security night light was also broken.
They again called the sheriff’s department, and three officers responded. After confirming plaintiffs’ visual and olfactory observations, the deputies went next door and, after some resistance by Marlowe, took custody of him on a citizens’ arrest by Mullins for trespassing, littering, and vandalism. Marlowe’s wife initially told the officers that she was with Marlowe that entire evening and he never trespassed on their neighbor’s property. However, when asked if she would so testify in court, she admitted there was a period of five to ten minutes when she “lost sight” of her husband.
While being transported to jail, Marlowe denied urinating on the door. He claimed Mullins was “crazy” and “wacko” and was “torturing” him because of their squabbles as neighbors. At trial, Marlowe refused to answer questions about this incident on Fifth Amendment grounds.
Plaintiffs suggest, and Marlowe’s counsel seemed to concede at trial, that an adverse inference may be drawn in a civil proceeding based on Marlowe’s assertion of the Fifth Amendment privilege. While that is true under federal constitutional law (Baxter v. Palmigiano (1976) 425 U.S. 308, 318-319; Keating v. Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322, 326), under the California Evidence Code, no adverse inference could properly be drawn, even in a civil proceeding. (Evid. Code, § 913; People v. Holloway (2004) 33 Cal.4th 96, 130-132 & fn. 9). We place no reliance on such an inference in conducting our review.
The day after the urination incident, Beil and Mullins again filed separate petitions for civil harassment injunctions against Marlowe, and both were granted temporary restraining orders (TROs) pending a hearing set for December 13, 2007. The TROs required Marlowe to stay at least five yards away from Mullins and Beil, and their homes, vehicles, and places of employment, as well as prohibiting him from contacting them. Marlowe filed his answers on December 12, 2007.
The cases were later consolidated for hearing.
On December 13, Marlowe appeared with his attorney, while Beil and Mullins appeared pro se. Mullins and Beil opened the hearing by telling the court they were not interested in mediation. Beil said, “This has gone on over a year,” and Mullins urged the court, “We need you to hear the case.” The court cautioned plaintiffs about the risks of proceeding without counsel. Mullins and Beil initially declined counsel and said they were ready to proceed, but the court ultimately persuaded them that they would be “buried” by opposing counsel, and continued the hearing to allow plaintiffs to have an attorney present. The court said “it would not be a fair match” if plaintiffs proceeded without counsel, while Marlowe was represented by an “experienced attorney” who was “ready to bury” plaintiffs.
Marlowe’s counsel did not object to the continuance, expressly stating that “the only concern I have is that there’s a temporary restraining order in effect against my client right now. That’s the only problem.” Counsel then requested that the TROs be dissolved in the interim, and the court then heard from both sides on the necessity of the TROs. The court directed questions to the plaintiffs to get a better understanding of the factual background of the dispute and the need for a continued TRO, beyond the limited allegations of the petitions. Marlowe’s counsel argued why the TROs should be dissolved, and the court also repeatedly expressed interest in hearing from Marlowe directly. Marlowe’s counsel, however, would not allow him to answer the court’s questions and submitted the matter without his client’s testimony. The court reissued the TROs pending the continued hearing.
When scheduling was discussed, Mullins first suggested that the hearing be continued to December 20, but Marlowe’s counsel was not available until January 3, 2008, so that date was chosen. The hearing was continued repeatedly, with the court hearing testimony on February 14, May 8, and July 17, 2008. The TROs were reissued at each scheduled hearing, without objection, or by express agreement of the parties.
The delays were twice due to the unavailability of the commissioner, and twice due to scheduling problems of Marlowe’s attorney.
On July 30, 2008, the court issued an injunction forbidding Marlowe to contact, molest, or disturb plaintiffs, and requiring him to stay at least 100 yards from their persons, vehicles, residences, and places of employment. The injunction was to remain in effect until December 2, 2010.
Both the TRO and the injunction also prohibited Marlowe from owning firearms, but he has raised no issue relating to that provision.
DISCUSSION
Marlowe raises two issues on appeal, the second of which has two parts. First, he claims that the trial court erred in continuing the matter beyond 22 days after issuance of the TROs, while leaving the TROs in effect, and thus the court’s actions thereafter were in excess of and without jurisdiction under section 527.6. Second, he claims the evidence was insufficient to support (a) the permanent injunction, arguing in essence that his offensive conduct did not amount to a harassing course of conduct so as to warrant a civil harassment injunction; and (b) a finding that Mullins and Beil actually suffered emotional distress as a result of his actions.
We conclude that neither argument has merit—indeed, that the second argument is frivolous.
Introduction
Section 527.6 provides an expedited procedure for obtaining injunctive relief, including a TRO, to prevent harassment. Harassment is defined under the statute 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 plaintiff.” (§ 527.6, subd. (b).) Section 527.6 was intended “ ‘to protect the individual’s right to pursue safety, happiness and privacy as guaranteed by the California Constitution.’ ” (Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1412, quoting Stats. 1978, ch. 1307, § 1, p. 4294.) If an injunction is granted under the statute, it lasts a maximum of three years. (§ 527.6, subd. (d).) A temporary restraining order is also available under the statute. (§ 527.6, subd. (c).)
I. The court did not lose jurisdiction to issue a civil harassment injunction by continuing the hearing beyond the 22nd day after the TROs were issued or by reissuing the TROs.
A. Marlowe is estopped to challenge the court’s jurisdiction because he expressly agreed that the court had jurisdiction to rule on the final injunctions, even if the hearing was continued beyond the 22nd day after the TROs were issued.
Marlowe’s first claim rests largely on section 527.6, subdivision (d), which provides in relevant part: “Within 15 days, or, if good cause appears to the court, 22 days from the date the temporary restraining order is issued, a hearing shall be held on the petition for the injunction.” Subdivision (c) also provides in relevant part: “A temporary restraining order issued under this section shall remain in effect, at the court’s discretion, for a period not to exceed 15 days, or, if the court extends the time for hearing under subdivision (d), not to exceed 22 days, unless otherwise modified or terminated by the court.”
Marlowe further relies on section 527, which provides in more general terms for issuance of preliminary injunctions and TROs, including in subdivision (d)(1) time limits for scheduling a hearing after issuance of a TRO without notice identical to the time limits contained in section 527.6, subdivisions (c) and (d).
From those provisions Marlowe concludes that the court erred in reissuing the TROs at the December 13 hearing and that the failure to hold an evidentiary hearing on the merits of the three-year injunction within 22 days after the initial issuance of the TROs deprived the court of jurisdiction to enter a three-year injunction thereafter. We reject his claim on a number of grounds.
Preliminarily, any such contention is entirely at odds with the position taken by Marlowe’s counsel at the December 13 hearing, where counsel told the court his “only concern... is that there’s a temporary restraining order in effect against [his] client right now. That’s the only problem.” He further stated, “If there is going to be a continuance I would like the current order [extinguished]. I don’t have a problem with them coming back and making a request for a permanent order based on whatever the showing is at the next hearing, but that the temporary be extinguished in the interim.” (Italics added.) The italicized portion of counsel’s remarks clearly shows that counsel consented to the continuance for determining the merits of the underlying injunction—and that his “only concern” was whether the TROs should be reissued.
Although subject matter jurisdiction cannot be conferred by consent alone, if the court otherwise has jurisdiction over the subject matter, “ ‘ “a party who seeks or consents to action beyond the court’s power as defined by statute or decisional rule may be estopped to complain of the ensuing action in excess of jurisdiction.” [Citation.] “A litigant who has stipulated to a procedure in excess of jurisdiction may be estopped to question it when ‘To hold otherwise would permit the parties to trifle with the courts.’ [Citation.]” ’ ” (In re Stier (2007) 152 Cal.App.4th 63, 76-77.) We conclude that Marlowe is estopped to challenge the court’s subject matter jurisdiction. Beyond that, we also reject his claim on the merits.
B. Even assuming section 527, subdivision (d)(3) applied, it required only that the TROs be dissolved: it did not require dismissal of the underlying action, and reissuance of the TROs did not deprive the court of ongoing jurisdiction.
Marlowe relies largely on subdivision (d)(3) of section 527, which provides as follows: “When the matter first comes up for hearing, if the party who obtained the temporary restraining order is not ready to proceed, or if the party has failed to effect service as required by paragraph (2), the court shall dissolve the temporary restraining order.”
Plaintiffs contend that civil harassment injunctions are governed exclusively by section 527.6, and that section 527 has no application. We cannot agree. Section 527.6, subdivision (c), expressly makes the provisions of section 527 applicable, “except to the extent this section provides a rule that is inconsistent.” Therefore, section 527 does apply generally to TROs issued under section 527.6.
These provisions apply only where the TRO was initially issued without even informal notice to the defending party. (§ 527, subds. (c) & (d).) We assume for purposes of our discussion that no notice whatsoever was given to Marlowe before the TROs were issued on December 3, 2007.
While section 527 thus penalizes a plaintiff who is “not ready to proceed” when the hearing is first set, the penalty is clearly spelled out in the statute: any TRO previously issued without notice is to be dissolved. That section, equally clearly, does not call for the dismissal of the petition as a consequence of such unpreparedness, nor does it suggest the court would lose jurisdiction to issue a final injunction if it failed to hold an evidentiary hearing during the 22-day time frame.
On the contrary, section 527, subdivision (f) strongly supports our view that the court’s jurisdiction to hear the underlying application for an injunction does not depend upon strict compliance with the time limits described in section 527, subdivision (d)(1):
“(f) Notwithstanding failure to satisfy the time requirements of this section, the court may nonetheless hear the order to show cause why a preliminary injunction should not be granted if the moving and supporting papers are served within the time required by Section 1005 and one of the following conditions is satisfied:
Section 1005, subdivision (b), requires moving papers to be filed at least 16 days before the hearing, with additional time for mailing. These requirements were met by the time of the continued hearing.
“(1) The order to show cause is issued without a temporary restraining order.
“(2) The order to show cause is issued with a temporary restraining order, but is either not set for hearing within the time required by paragraph (1) of subdivision (d), or the party who obtained the temporary restraining order fails to effect service within the time required by paragraph (2) of subdivision (d).” (Italics added.)
These provisions make clear that the court’s jurisdiction to rule on a preliminary injunction under section 527 is not lost by failure to comply with the time limits for hearing following issuance of a TRO without notice. We think it even more certain that the court’s jurisdiction to rule on the request for a three-year injunction under section 527.6 is not sacrificed in the circumstances of this case.
Even assuming for purposes of argument that the court should have dissolved the TROs at the hearing on December 13, 2007, none of the cases cited by Marlowe persuades us that such an error would deprive the court of jurisdiction to rule on the underlying action for a three-year injunction.
Agricultural P. Com. v. Superior Court (1938) 30 Cal.App.2d 154 is distinguishable in that the original hearing was set twelve days after issuance of a TRO, which was beyond the 10-day limit under the version of section 527 then in force. (Id. at p. 155.) In the present case the hearing was originally set within the statutory time frame.
Likewise, in Adler v. Vaicius (1993) 21 Cal.App.4th 1770 (Adler), the plaintiff obtained a TRO in connection with a claim for a civil harassment injunction. The hearing, originally scheduled within the 15-day period, could not go forward because a judge was not available. A new hearing was set for a date beyond the 22-day deadline, but instead of appearing to present her case on the continued date, plaintiff dismissed her petition with prejudice. The defendant then successfully moved for attorney’s fees. (Id. at pp. 1773 1774.) Appealing the fee award, plaintiff claimed the court had lost subject matter jurisdiction when it continued the matter beyond the statutory deadline. The Court of Appeal disagreed, noting that such an argument “incorrectly equates the continued validity of the TRO with the court’s jurisdiction to hold a hearing on the underlying petition for injunction or on a motion for attorney fees.” (Id. at p. 1775.) “The court did not lose jurisdiction by continuing the hearing where the business of the court prevented a hearing when set due to unavailability of a judge.” (Id. at p. 1776.)
Thus, even if we construed the record as Marlowe does―concluding that plaintiffs were “not ready to proceed” at the December 13 hearing―we could not agree that any such failing would cause the court to lose jurisdiction to issue a three-year injunction.
We are not convinced that plaintiffs were “not ready to proceed” within the contemplation of section 527, subdivision (d)(3). Plaintiffs were initially prepared to proceed with the hearing on December 13, 2007, and would have proceeded had the court not convinced them otherwise. They had a police report with them, a letter previously written by their attorney as an exhibit, and photographs to present in support of their claims. Even after the court cautioned them about proceeding without counsel, both plaintiffs initially said they wanted to proceed with the hearing. Nevertheless, the court ultimately convinced them they would fare better with counsel and continued the hearing based on their decision to retain counsel. In the court’s own words, it “talked them into getting an attorney....” In these circumstances it is arguable that the continuance was granted on the court’s own motion, rather than plaintiffs’.
C. Continuing the hearing for plaintiffs’ benefit was authorized by section 527, subdivision (e), and Rule 3.1152(d) because Marlowe did not file his responsive papers at least two days prior to the scheduled hearing.
Marlowe now characterizes his position at trial as having “refused to stipulate to a continuance if the TRO was left in place.” We read his objection differently, as being directed to the reissuance of the TRO, not to the continuance itself. Counsel never voiced an objection to continuing the hearing beyond the 22nd day following issuance of the TRO, and merely argued that if the hearing was to be continued, the TRO should be dissolved. Nevertheless, Marlowe now argues that the trial court acted in excess of jurisdiction when it continued the hearing beyond the 22nd day. We are not persuaded.
A continuance is available to the defendant as a matter of right under section 527, subdivision (d)(4), but if he avails himself of that right, the TRO remains in place pending the continued hearing. No provision expressly allows plaintiffs to obtain a continuance. However, in City of Los Angeles v. Superior Court (1925) 196 Cal. 445 (City of Los Angeles), the Supreme Court held that if the defendant in an action for injunctive relief does not file his responsive papers in compliance with time constraints in the statute (at least two days prior to the hearing), the plaintiff is “entitled” to a continuance, even if it delays the hearing to a date beyond the statutory deadline for holding a hearing on the preliminary injunction. (Id. at pp. 448, 451.) The same requirement of two-day advance filing of defendant’s response is still embodied in section 527, subdivision (e), and it applies to actions under section 527.6 by application of Rule 3.1152(d), which requires defendant’s response to be filed and served “no later than 48 hours before the hearing.”
Section 527, subdivision (d)(4) provides: “The opposing party is entitled to one continuance for a reasonable period of not less than 15 days or any shorter period requested by the opposing party, to enable the opposing party to meet the application for a preliminary injunction. If the opposing party obtains a continuance under this paragraph, the temporary restraining order shall remain in effect until the date of the continued hearing.”
The version of section 527 that was in effect at the time of the decision in City of Los Angeles, supra, 196 Cal. 445, provided that an order to show cause must be scheduled “not later than ten days from the date of” any TRO issued, that the plaintiff “must be ready to proceed” and “if he be not ready,... the court shall dissolve the temporary restraining order.” It further entitled the defendant “to one continuance for a reasonable period.” In addition, it provided that “[t]he defendant may,... present affidavits relating to the granting of the preliminary injunction, and if such affidavits are served on the applicant at least two days prior to the hearing, the applicant shall not be entitled to any continuance on account thereof.” (Stats. 1911, ch. 42, § 1, p. 59.)
Section 527, subdivision (e), provides in relevant part: “The opposing party may, in response to an order to show cause, present affidavits relating to the granting of the preliminary injunction, and if the affidavits are served on the applicant at least two days prior to the hearing, the applicant shall not be entitled to any continuance on account thereof.” (Italics added.)
In the present case, Marlowe’s answer was not filed until December 12, 2007. His attorney signed the papers on December 6, but they were not filed, and presumably not served on plaintiffs, until December 12. By withholding the filing of his response until the day before the scheduled hearing, Marlowe violated the rules of court and effectively prevented plaintiffs from learning in a timely manner that their adversary would be represented by counsel at the hearing. Therefore, under section 527, subdivision (e), the court was authorized to grant a continuance so that plaintiffs could be represented by counsel, too. Indeed, Adler, supra, 21 Cal.App.4th at p. 1776, a case decided under section 527.6, recited that a continuance is authorized “when defendant’s counteraffidavits are not served as provided” in section 527, subdivision (e).
In addition, a court may grant a continuance, even of a jury trial, for a party to substitute counsel if substitution is required in the interests of justice. (Cal. Rules of Court, rule 3.1332(c)(4).) The court in this case clearly thought justice so required, as it announced “it would not be a fair match” if plaintiffs proceeded without counsel. Thus, the court’s continuance of the hearing, whether on its own motion or at plaintiff’s request, was intended to ensure that justice was served and did not result in its losing jurisdiction over the case.
In City of Los Angeles, supra, 196 Cal. 445, the Supreme Court also held that the trial court had inherent power to “continue in force the temporary restraining order” previously issued, “to the end that whatever preliminary injunction it might conclude to issue might not be ineffectual.” (Id. at p. 451.) The Supreme Court held that once a hearing had been set within the statutory period, the trial court acquired jurisdiction to “determine the plaintiff’s application for a preliminary injunction” or, in the circumstance of a defendant’s late filing, “to continue such hearing to a later date,” and “there is no provision in the statute nor is there any authority to which we have been cited which declares that the court shall lose its jurisdiction over the subject matter of such hearing” by reason of such continuance. (Id. at p. 452.)
Thus, by scheduling a hearing within the statutory period, the court in this case acquired jurisdiction over the subject matter, and that jurisdiction was not lost when it continued the matter beyond the initial lifetime of the TRO. We are especially convinced that no prejudicial error occurred because it was actually at Marlowe’s request, not plaintiffs’, that the matter was continued beyond the 22-day statutory outer limit.
At the December 13 hearing, Mullins suggested that the hearing be continued to December 20, one week from the initial hearing and still within the statutory 22-day period. It was Marlowe’s counsel who announced he would be unavailable on that date, and requested that the hearing be set for January 3, 2008. We cannot agree with Marlowe that scheduling a hearing beyond the 22-day period at his own counsel’s request somehow deprived the court of subject matter jurisdiction. Defendant was entitled to this reasonable continuance, but the statute provides that in such a case the TRO “shall remain in effect” pending the continued hearing. (§ 527, subd. (d)(4).) There was no error in continuing the TROs, as the matter was continued beyond the statutory deadline at the defendant’s request.
D. Use of the word “shall” in section 527.6, subdivision (d), does not cause the court to lose jurisdiction if the hearing is continued beyond the statutory period.
As noted above, section 527.6, subdivision (d), provides in part, “Within 15 days, or, if good cause appears to the court, 22 days from the date the temporary restraining order is issued, a hearing shall be held on the petition for the injunction.” The original purpose of the short deadline for holding a hearing was to “establish an expedited procedure for enjoining acts of ‘harassment,’ as defined, including the use of temporary restraining orders.” (Sen. Com. on Judiciary, Report on Assem. Bill No. 3093 (1977 1978 Reg. Session), as amended June 19, 1978, p. 1; accord, Legis. Counsel’s Dig., Assem. Bill No. 3093, supra, Summary Dig., p. 369; see also, Smith v. Silvey (1983) 149 Cal.App.3rd 400, 405 [purpose of the statute is to “provide quick relief to harassed persons”].) To that end, the statute originally provided for a hearing on the injunction to be held within 15 days after the petition was filed. (Former § 527.6, subd. (d), Stats. 1978, ch. 1307, § 2, p. 4295.)
“Proponents contend that procedures under existing law are inadequate to remedy the mental and emotional distress suffered by a person who is being harassed by another. The length of time it takes to obtain an injunction in many cases is too long, proponents state, in terms of the annoyance and/or fear which a person bent on harassing another can inflict.” (Sen. Com. on Judiciary, Report on Assem. Bill No. 3093, supra, at pp. 1-2.)
The duration of any TRO issued under the statute was likewise limited, and thus the expedited hearing also gave the defendant a prompt venue in which to contest the continuance of the TRO pending any further proceedings. In fact, the current version of section 527.6 requires a hearing to be set within 15 days, or 22 days for good cause, measured, however, not from the filing of the petition, but from the issuance of the TRO. (§ 527.6, subd. (d).) It may therefore be argued that, while the expedited hearing was initially intended for the benefit of civil harassment plaintiffs, it is now equally intended to provide a prompt opportunity for defendant to present his case for dissolution of the previously issued TRO.
Rule 3.1152 sheds little additional light on the matter, in that it provides only: “On the filing of a petition for an injunction under Code of Civil Procedure section 527.6 or 527.8, a hearing must be set in accordance with the requirements of subdivision (d) of section 527.6 or subdivision (f) of section 527.8.”
Where, as here, the plaintiff has obtained a TRO which remains in effect while the hearing is continued, his or her interest in prompt adjudication has been satisfied, and the continuing protection of a preliminary injunction alleviates any prejudice from a delayed hearing. Likewise, if a timely hearing is held at which the defendant is given an opportunity to rebut the plaintiff’s showing of the necessity for a TRO or preliminary injunction, his or her interest in having a mechanism for speedy dissolution of a TRO has also been vindicated. The hearing provided in this case thus served the needs of all parties.
Yet, Marlowe seems to argue that the statutory requirement that a “hearing shall be held” within fifteen days (or 22 for good cause) requires more than simply scheduling a hearing within 15 to 22 days after the issuance of a TRO, or making available a courtroom, a judge, and a court reporter. Rather, he seems to argue that the evidentiary hearing on the merits of the three-year injunction must be completed, or at least started, within that time frame, or else the court loses jurisdiction to issue a permanent injunction. We cannot agree with such an interpretation.
The term “hearing” is not defined in the Code of Civil Procedure, and though it is often intended to mean “a proceeding where evidence is taken to the end of determining an issue of fact and a decision made on the basis of that evidence” (People v. Pennington (1967) 66 Cal.2d 508, 521), it is also frequently used in a broader sense to describe “ ‘whatever takes place before magistrates clothed with judicial functions and sitting without [a] jury at any stage of the proceedings subsequent to its inception’.... [citations] [or] an ‘opportunity to be heard or to present one’s side of a case’ [Citations.].” (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1247.) Thus, a hearing may or may not include the taking of testimony.
We agree with Marlowe that the requirement of a “hearing” within 15 to 22 days after issuance of a TRO under section 527.6, subdivision (d), ordinarily anticipates the taking of evidence and the rendering of a decision on the merits of a three-year injunction during that time period. Subdivision (d) provides in part: “At the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment.” Oftentimes the matter will, in fact, be concluded within the 22-day time frame.
Yet, consistent with the reasoning of City of Los Angeles, supra, 196 Cal. 445,we also believe that once the court has scheduled a hearing during the required time period, it may properly continue the hearing based on a defendant’s belated filing of his papers. We cannot agree that the failure to hold an evidentiary hearing on the ultimate issue of a three-year injunction within the extremely short statutory time frame deprives the court of jurisdiction to rule on the merits thereafter. The parties were afforded an opportunity to present evidence on the necessity of interim injunctive relief, which is ordinarily the issue upon which a hearing is held under section 527, subdivision (d). That procedure adequately protected Marlowe’s due process rights. (Cf. Adler, supra, 21 Cal.App.4th at p. 1775; Schraer v. Berkeley Property Owners’ Assn. (1989) 207 Cal.App.3d 719, 730 731, 733, fn. 6 [“a full-fledged evidentiary hearing with oral testimony from all sides may not be necessary in all cases”].) The fact that he refused to avail himself of the opportunity did not divest the court of jurisdiction.
Marlowe claims in his reply brief that the use of the word “shall” in section 526.7, subdivision (d) shows that the date of the hearing on the three-year injunction is jurisdictional, but the two cases cited in claimed support are inapposite. Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382, 1389 1890 (Decker), held that the statutory requirement that an anti-SLAPP motion under section 425.16, must be noticed for hearing within 30 days of its filing was mandatory, and a motion scheduled for hearing after the 30-day deadline must be dismissed. (§ 425.16, subd. (f).) Garcia v. Los Angeles County Bd. of Education (1981) 123 Cal.App.3d 807, 811 (Garcia), held that, where the Education Code provided for an expulsion hearing to be held within 20 schooldays after the student’s suspension, the time limitation was mandatory, and hence “the failure to hold the hearing within the statutory time period invalidates the action to which the procedural requirement relates.” (Id. at p. 811.)
SLAPP is an acronym for “strategic lawsuit against public participation.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.)
The Legislature subsequently amended section 425.16 to eliminate the mandatory dismissal required by Decker, supra, 105 Cal.App.4th 1382, placing on the court clerk, not on the moving party, the obligation of prompt scheduling. (See Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1348-1349.)
Both Decker and Garcia involved hearing deadlines imposed to protect a party’s enjoyment of rights expressly guaranteed him or her by statute, which had temporarily been denied. The anti-SLAPP motion in Decker, supra, 105 Cal.App.4th at pp. 1388 1389, automatically stayed discovery in an earlier-filed lawsuit. (§ 425.16, subd. (g).) Therefore, having a prompt resolution of the anti-SLAPP allegations was necessary to protect the opposing party’s statutory right to conduct discovery and to avoid unnecessary delay of the main action. Likewise, in Garcia, the court was concerned with the untimely adjudication of the student’s “fundamental” right to a public education. (Garcia, supra, 123 Cal.App.3d at p. 812.) In such cases, the reason for the statutory time limit is to provide a prompt conclusion to the matter at issue.
In the present case, Marlowe was prevented by the TRO from harassing, contacting, or coming too close to Beil and Marlowe, but he was deprived of no express statutory right as a result of the continuing TRO. Moreover, section 527.6 was enacted to allow a speedy commencement of civil harassment proceedings, not necessarily a speedy conclusion. (See fn. 15, ante.) So long as the plaintiff is able to obtain interim injunctive relief, he or she can await a final judgment.
Even assuming that the hearing deadline was “mandatory,” the reasoning of Decker and Garcia would lead only to the conclusion that reissuance of the TROs on December 13, 2007, was void. Marlowe can show no prejudice from the reissuance of the TROs on that one occasion. It is clear that all further extensions of the TROs were without objection by Marlowe or with his specific consent. No procedural irregularity deprived the court of subject matter jurisdiction to issue the final injunction.
E. Marlowe was offered an opportunity to testify why continuing the TROs were not necessary but, through his lawyer, declined to avail himself of it.
No unfairness to Marlowe ensued as a result of continuing the hearing and reissuing the TROs. The court heard from all parties at the December 13 hearing―in Marlowe’s case almost exclusively through his counsel―to determine whether the TROs should remain in effect pending the rescheduled hearing. While a TRO issued without notice to the defendant and based solely upon the plaintiffs’ affidavits should, under the statutory scheme, have a strictly limited lifespan (§§ 527, subd. (d); 527.6, subd. (c)), once the defendant is present in court and available to testify about why continued injunctive relief is unnecessary, the reasons for strictly limiting the duration of the TRO are no longer compelling.
Indeed, the court in this case indicated its willingness and desire to hear from Marlowe himself regarding the underlying facts so that it could determine whether to reissue the TROs. Marlowe’s counsel, however, declined to have his client respond to the court’s inquiries and instead submitted the issue without allowing Marlowe to testify. In these circumstances, the court acted within its discretion in reissuing the TROs.
The hearing conducted by the court on December 13, 2007, became, in effect, a hearing on a preliminary injunction under section 527, subdivision (d). Although section 527.6 makes no specific reference to the availability of a preliminary injunction in civil harassment cases, we believe the availability of such extended provisional relief, when necessary, is implied in the statute’s explicit reference to the remedies available under section 527, except to the extent they are “inconsistent” with section 527.6. We see no inconsistency in providing plaintiffs with continuing provisional injunctive relief pending a final hearing on the merits of their petitions, and we perceive no valid interest as having been impaired by the procedure employed in this case.
Witkin describes the difference between a TRO and a preliminary injunction, as follows: “A temporary restraining order is issued to prohibit the acts complained of, pending a hearing on whether the plaintiff is entitled to a preliminary injunction.” (6 Witkin, Cal. Procedure (5th ed. 2008) Provisional Remedies, § 284, pp. 224-225.) A temporary restraining order “is distinguishable in the following respects: it may be issued ex parte; a bond, though commonly required, is not essential; and it is of short duration, normally expiring at the time of the hearing on the preliminary injunction.” (Id. at p. 225.) A preliminary injunction, however, is also “temporary in purpose and effect.” (Id., § 285, p. 225.) “The temporary restraining order and preliminary injunction are sometimes confused by the parties, but the designation is immaterial. If the purported restraining order is in terms given a duration beyond the time of the hearing on the preliminary injunction, e.g., ‘until further order of this court,’ or until final judgment, it is a preliminary injunction....” (Id., § 286, p. 227; see also Chico Feminist Women’s Health Center v. Scully (1989) 208 Cal.App.3d 230, 237, fn. 1.)
II. There was sufficient evidence to support issuance of the injunction.
Marlowe’s second contention is that there was insufficient evidence to support issuance of the injunction, an argument that is double-faceted. First, he argues that his offensive behavior did not amount to a “continuing course” of harassing conduct, and therefore was an improper subject of a civil harassment injunction. Second, he claims there was insufficient evidence that plaintiffs in fact suffered “substantial emotional distress,” as required under section 527.6, subdivision (b).
A trial court’s decision to grant a permanent injunction rests within its sound discretion and will not be disturbed without a showing of clear abuse. (Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912.) In determining whether the trial court abused its discretion when there are disputed factual issues, we review the record to determine whether the factual findings necessary to injunctive relief are supported by substantial evidence. 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 755, 762.) This standard applies even where the standard of proof at trial was that of clear and convincing evidence. (Crail v. Blakely (1973) 8 Cal.3d 744, 750.)
Judged against that standard, we conclude that Marlow’s argument has no merit—indeed, that the argument is frivolous.
A. The evidence supported a finding that Marlowe engaged in a harassing course of conduct.
Section 527.6, subdivision (b), defines harassment, among other things, as “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.” Subdivision (b)(3) defines a “course of conduct” as “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 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, fax, or computer e-mail.”
Marlowe argues that he did not engage in harassing communications or stalking behavior and therefore his conduct did not amount to harassment as a matter of law. However, the examples given in the statute are by way of illustration only. They hardly define the entire universe of harassing conduct. (See, e.g., Grant v. Clampitt (1997) 56 Cal.App.4th 586, 589 [neighbor played radio loudly late at night].)
We agree with Marlowe that a single incident is not enough to constitute a “course of conduct” and that an injunction may not issue to punish past acts alone. (Russell v. Douvan (2003) 112 Cal.App.4th 399, 401-402; Leydon v. Alexander (1989) 212 Cal.App.3d 1, 4; cf. Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 332 [§ 527.8].) Plaintiffs, however, have identified at least three incidents which qualify as a knowing and willful course of harassing conduct: (1) the June 2007 incident in which Marlowe pounded on their door, threatened that things were going to get “much worse,” and displayed his rear end to Mullins’s camera; (2) the October 2007 confrontation at the Tanglewood home in which Marlowe disclosed to Beil personal details of his life and finances that he had obtained from the Internet; and (3) the urination incident in December 2007.
But there is much more.
There was testimony about possible efforts by Marlowe to impede the sale of the Vista Lane property, including moving the real estate agent’s signs, putting a kiddie pool in the driveway and taunting would-be buyers, shouting at prospective purchasers not to buy the house, allowing his son to play loud music during plaintiffs’ open house, and driving his car recklessly into the driveway. Marlowe did not deny such acts, and admitted to Deputy DeMunnik that he found such behavior to be “pretty fun.” Maybe for him. Not under the law.
There was also evidence that someone left a pair of panties in Mullins’s mailbox, made a threatening phone call to her, and vandalized plaintiffs’ new home on Tanglewood Lane. Marlowe dismisses these incidents as “pranks”, and claims there was no clear and convincing evidence that he was responsible for them. On appeal, however, we review the record only to determine if there is substantial evidence to support the court’s implicit finding that Marlowe engaged in a harassing course of conduct. Evidence of these additional incidents standing alone might not conclusively tie Marlowe to their commission, but the inference that Marlowe was involved in at least some of them contributes to the reasonableness of the trial court’s conclusion that Marlowe’s conduct fit the statutory definition.
Marlowe further argues that section 527.6 “protects people, not property,” quoting Schild v. Rubin, supra, 232 Cal.App.3d at p. 765, fn. 4. While perhaps aimed in some particulars at damaging property (e.g., urinating on plaintiffs’ front door), Marlowe’s acts were also obviously intended to “seriously alarm[], annoy[], or harass[]” the plaintiffs, and they “serve[d] no legitimate purpose.” (§ 527.6, subd. (b).) Indeed, Marlowe told Deputy DeMunnick that he wanted to make Mullins’ and Beil’s lives a “living hell.” And did he ever.
Such conduct falls within the definition of harassment under the statute. Whatever physical damage to property or diminution in the value of their property was entailed, that was not the object of plaintiffs’ complaint. Rather, it was the damage to their emotional well-being that formed the basis of their harassment petitions.
Marlowe also argues that he lawfully acquired the information about the Tanglewood address and other details of plaintiffs’ lives and associations from the Internet, and therefore he cannot be guilty of harassment. However, it was not the act of acquiring that information that led to the injunction; it was how he used the information. Even lawfully acquired information can be used to intimidate and harass another, and it appears that is exactly what Marlowe did. The fact that he lawfully acquired the information does not insulate him from a claim of harassment if he used it in a threatening or harassing way.
Marlowe also claims his unsavory conduct resulted from plaintiffs’ “provocation” in reporting his nonconforming construction projects to the county, by unfairly reporting him to the sheriff’s department, and by blocking the common driveway on one occasion. None of plaintiffs’ actions were unlawful, nor does Marlowe contend that his actions―except for the writing on the flier―were constitutionally protected. (§ 527.6, subd. (b)(3).) The trial court was fully justified in determining that Marlowe’s conduct was harassment. No “balancing” of plaintiffs’ allegedly provocative acts is required.
Finally, Marlowe argues that the evidence did not support a finding of “continuity of purpose” necessary to constitute a harassing course of conduct and that there was no evidence of a threat of future harm as of July 2008 when the injunctions were issued. But the fact that Marlowe continued to track down and harass plaintiffs even after they had vacated the Vista Lane property showed just such a continuity of purpose, as did his urinating on the front door of the Vista Lane property after plaintiffs had moved to Tanglewood Lane. The evidence was clearly sufficient to support a finding that Marlowe engaged in a harassing course of conduct within the meaning of section 527.6.
B. There was substantial evidence that plaintiffs suffered substantial emotional distress.
There was also sufficient evidence that Marlowe’s conduct in fact caused plaintiffs “substantial emotional distress” as required by the statute. Section 527.6 does not itself define that phrase, but Schild v. Rubin, supra, 232 Cal.App.3d at pp. 762-763, defined it as “highly unpleasant mental suffering or anguish ‘from socially unacceptable conduct’ [citation], which entails such intense, enduring and nontrivial emotional distress that ‘no reasonable [person] in a civilized society should be expected to endure it.’ [Citation.]”
It is not necessary that there be direct testimony by the victim that he or she suffered emotional distress as a result of the harassment. If the evidence otherwise raises an inference that the plaintiff, in fact, suffered such distress, it is sufficient to support an injunction. (Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1010-1011.) Nor is it necessary for plaintiffs to show physical consequences of their emotional distress, such as headaches, sleeplessness, or disruption of their ability to work. “[I]t it is well established [in California] that recovery may be had for emotional distress alone without resulting physical disability.” (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 396 397.)
In this case, there was direct evidence that plaintiffs suffered substantial emotional distress as a result of Marlowe’s antisocial conduct. For instance, Deputy DeMunnik testified that Mullins was crying when she reported the incident in which Marlowe bent over and told her to “kiss [his] ass.” Mullins also testified that she began staying in her office late so that she would not have to return to her Vista Lane residence before her boyfriend got home. She testified that they moved to the Tanglewood residence before construction was complete because they were “fearful” of living next door to Marlowe. She was “scared” and felt “threatened” by Marlowe, and she believed Marlowe intended to harm them.
When Marlowe appeared at Tanglewood and told Beil about all of the information he had acquired about the couple’s associates and finances, Beil felt he was being “stalked.” It “really bothered” him that Marlowe had come to their new house uninvited and unannounced, when they had not even told him where they were moving. He believed Marlowe’s statements were a personal threat to him, his family, his business partners or employees.
The evidence fully supports the court’s implicit finding that plaintiffs suffered substantial emotional distress as a result of Marlowe’s harassment.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Haerle, J.