Opinion
No. 55054-3-I.
June 19, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-2-18867-9, Barbara Harris, J. Pro Tem., entered September 7, 2004.
Counsel for Appellant(s), Daniel M. Berger, Seattle City Attorney's Office, 600 4th Ave Fl 4, PO Box 94769, Seattle, WA 98124-4769.
Counsel for Respondent(s), Bonnie Lau (Appearing Pro Se), 605 5th Avenue N., Apt. 220, Seattle, WA 98109.
Reversed by unpublished per curiam opinion.
Maria O. Villa challenges the antiharassment protection order entered against her pursuant to RCW 10.14.080, arguing that the trial court erred by granting the petition based on a finding of a single incident of intimidation or harassment. Because the statute requires the petitioner to prove a course of conduct rather than a single incident, we agree and vacate the protection order.
FACTS
Bonnie Lau filed a petition for a protection order against her roommate Maria Villa, alleging that on August 26, 2004, when she asked Villa to return a jacket, Villa assaulted her by throwing the jacket at her and scratching her face. At a hearing on September 7, 2004, the trial court granted the petition for a protection order stating, `Ms. Lau has credibly at least presented enough evidence that and it only takes one incident according to the statute, it doesn't have to be continuing that there was intimidation on that day, there was a form of harassment on that day.'
Villa appeals.
ANALYSIS
Initially, we note that Lau failed to file a respondent's brief. `A respondent who elects not to file a brief allows his or her opponent to put unanswered arguments before the court, and the court is entitled to make its decision based on the argument and record before it.' Adams v. Dep't of Labor Indus., 128 Wn.2d 224, 229, 905 P.2d 1220 (1995). Thus, if the record and the applicable authorities support Villa's unchallenged arguments, she is entitled to relief.
A court may enter a civil antiharassment protection order if it finds by a preponderance of the evidence that `unlawful harassment' exists. RCW 10.14.080(3). Unlawful harassment consists of (1) a knowing and willful (2) course of conduct (3) directed at a specific person (4) which seriously alarms, annoys, harasses, or is detrimental to a person, and (5) serves no legitimate or lawful purpose. RCW 10.14.020(1); see also Burchell v. Thibault, 74 Wn. App. 517, 521, 874 P.2d 196, (1994). A `course of conduct' is defined as:
a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. `Course of conduct' includes, in addition to any other form of communication, contact, or conduct, the sending of an electronic communication. Constitutionally protected activity is not included within the meaning of `course of conduct.'
RCW 10.14.020(2). Although the course of conduct may be brief, it must evidence `continuity of purpose.' Burchell, 74 Wn. App. at 521 (quoting RCW 10.14.020(2)).
Villa argues that Lau failed to present a sufficient factual basis to support a finding that she engaged in a `course of conduct.' And because Lau presented evidence of only one incident and the trial court specifically found that only one incident had occurred, Villa contends that the trial court erred by entering the protection order. We agree. In holding that the criminal antiharassment act applies to a single act, this court has noted the difference between the criminal statute, 9A.46.020, and the civil statute RCW 10.14.020, stating, A comparison of the criminal antiharassment act with its related civil counterpart provides further support for the construction we adopt. Although the two statutes have virtually identical preambles, the civil statute defines `unlawful harassment' as `a knowing and wilful course of conduct. . . .' RCW 10.14.020(1). . . . Given the omission of any reference to `course of conduct' in RCW 9A.46.020, we must presume that the Legislature consciously chose to criminalize a single act rather than a course of conduct. `It is elementary that when the Legislature uses certain language in one instance, and different language in another, there is a difference in legislative intent.' State v. E.J.H., 65 Wn. App. 771, 775, 830 P.2d 375 (1992).
State v. Alvarez, 74 Wn. App. 250, 259-260, 872 P.2d 1123 (1994). Here, the evidence presented supported the trial court's finding that only one incident of intimidation or harassment had occurred. Because the civil antiharassment statute requires proof of a course of conduct, the trial court erred by entering the order without sufficient evidence to establish that Villa engaged in `a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.' Accordingly, we vacate the protection order.
Vacated.
APPELWICK, BECKER and COX, JJ.