Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. SS016746, Gerald Rosenberg, Judge.
Alisa Spitzberg, in pro. per.; Lieber Williams & Labine and Howard L. Williams for Defendant and Appellant.
Lavely & Singer and Allison Hart Sievers for Plaintiff and Respondent.
MALLANO, P. J.
Defendant Alisa Spitzberg appeals from a three-year restraining order under Code of Civil Procedure section 527.6, enjoining her from harassing plaintiff Mathilde Notaro and three friends who lived with Notaro. Because substantial evidence supports the restraining order and Spitzberg fails to support her claims of improper conduct, error, and abuse of discretion, we affirm the order.
Code of Civil Procedure section 527.6 (section 527.6) provides in pertinent part: “(a) A person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an injunction prohibiting harassment as provided in this section.” Subdivision (b) of section 527.6 provides in pertinent part: “For the purposes of this section, ‘harassment’ is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, 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.”
BACKGROUND
Both Notaro and Spitzberg are performers at comedy clubs. On May 5, 2008, Notaro filed a petition for a restraining order to stop harassment by Spitzberg. The petition, supported by Notaro’s declaration, sought protection for Notaro and three friends who lived with her. On May 5, 2008, the trial court issued a temporary restraining order against Spitzberg and an order to show cause setting the matter for a hearing on May 28, 2008. Spitzberg filed an answer on May 27, 2008. Her answer responded in detail to the allegations of the petition. The petition and answer provided the following information:
Spitzberg and Stephanie Willen had a three-month relationship, which ended in May 2007. In August 2007, Notaro and Willen were in a café having coffee when Spitzberg approached their table and began to yell insults at them, “including ‘fucking dyke,’ ‘ugly,’ ‘cunt,’ and ‘bitch.’” They ignored Spitzberg, who followed them outside, became more belligerent, and “shoved/pushed” Notaro. Spitzberg denied pushing Notaro.
On the evening of April 7, 2008, after Notaro performed at Largo, Spitzberg approached her and asked Notaro if she remembered her. Notaro said that she remembered meeting her and that Spitzberg had been aggressive and had pushed her. Notaro then said she did not want to talk to Spitzberg and told Spitzberg to leave her alone. Spitzberg became enraged. Notaro was fearful that the situation would escalate and had Michael Griffee, the doorman at Largo, escort Spitzberg out of the club.
According to Spitzberg, when Notaro accused Spitzberg of pushing her, Spitzberg was sure that she had misunderstood and approached Notaro and asked gently if she said that Spitzberg had pushed her. Notaro then ran to Griffee and accused Spitzberg of being aggressive. Griffee looked confused but told Spitzberg that if Notaro wanted her out of the club, Spitzberg had to leave. Spitzberg left “without a peep.”
The next day, Notaro received an e mail from Spitzberg, stating, “‘I will do everything in my sustainable power to get even with you.’” Notaro was disturbed not only by the content, but because Spitzberg had obtained her e mail address. After the e mail, Notaro blocked Spitzberg’s address from her e mail account. Over the next several days, Notaro’s Wikipedia and YouTube pages had been vandalized to include a string of personal attacks and insults. Notaro contacted the webmasters to delete the content and to lock the pages from further comments. Spitzberg denied making any threats of violence but admitted that she “created some wikipedia entries that mocked the plaintiff. She had upset me and my family for no discernible reason and I wanted... some relief.”
Notaro performed again at Largo on April 12, 2008. When Notaro was standing outside the club talking to the owner, she saw Spitzberg and her sister running toward her. Notaro ran inside before they could make physical contact with her. The owner did not let Spitzberg inside the club and called the police. Spitzberg and her sister went to the club’s back door, where they verbally abused the owner and the doorman and yelled, “‘We’re going to get that fucking dyke.’” Spitzberg left the club before the police officers arrived. According to Spitzberg, Largo’s owner and another man at the back door were abusive to her and her sister, and they returned their insults. Spitzberg denied screaming or using obscenities.
On April 29, 2008, Notaro was driving to perform a show at the Hollywood Improv club when the promoter called her to inform her that Spitzberg had been removed from the club. When Notaro arrived, she saw Spitzberg outside the club, talking to people. Notaro entered the club through a side door. The security guard for the Improv club, Brian Whitaker, told Notaro that Spitzberg said that she knew where Notaro lived, the color and make of Notaro’s car, and the car’s license plate number. Spitzberg, her mother, and her sister remained outside the front of the club and verbally attacked other performers, patrons, and security guards for over two hours. Notaro attempted to leave the club, but because she felt unsafe, she remained in the club. The police were called, but they were unable to take any action because Notaro’s life had not been directly threatened. After the Spitzbergs left, Notaro went home.
Spitzberg denied stalking Notaro but admitted that she went to Notaro’s performances on two occasions because Spitzberg felt that her career and reputation were threatened by being banned from comedy clubs and she wanted to try to resolve the situation with Notaro. On April 29, 2008, Spitzberg was shocked to learn that her name was on a list of people that were not allowed entry to the Improv club. Spitzberg claimed that she was never asked to leave the club on April 29 because she was never allowed inside. Spitzberg denied ever feeling or expressing hostility to Notaro.
At the May 28, 2008 hearing, Notaro and Spitzberg appeared in propria persona. Notaro, Griffee, Whitaker, Willen, and Kevin Seccia, a comedian at Largo on April 12, 2008, testified for Notaro. According to Griffee, Spitzberg verbally harassed him on April 12, 2008, and also said, “‘That bitch can’t get me thrown out of here.’” According to Seccia, on the evening of April 12, Notaro was nervous, upset, and “freaked out” about performing. Spitzberg said to Seccia, “‘We’re going to get her,’ and ‘You tell her it isn’t over. Any time she goes out the house, any time she performs, I’m going to be on her. I’m going to show up. This is now my job.’”
In response to questions by the judge, Spitzberg testified extensively about the incidents in August 2007 and April 2008. Spitzberg also said that she did not know Notaro but knew of her. Spitzberg admitted that she visited Notaro’s MySpace page but denied stalking Notaro. After Spitzberg’s testimony, the judge said to Spitzberg, “You have got a couple of minutes if you want to call witnesses....” Spitzberg responded, “Yes, my mother.” Spitzberg’s mother testified with respect to the April 29, 2008 incident. The judge then stated that he was going to make some orders. Spitzberg interrupted to state, “Your Honor, I need a continuance. I have so many witnesses.” The judge responded, “That’s fine,” and then proceeded to make his ruling, granting the restraining order preventing Spitzberg from harassing Notaro and three friends who lived with her for three years.
Spitzberg appeals from the order, challenging the fairness of the hearing and the sufficiency of the evidence.
DISCUSSION
“‘Section 527.6 is intended “to protect the individual’s right to pursue safety, happiness and privacy as guaranteed by the California Constitution.”’ [Citations.] The statute ‘“‘establish[es] an expedited procedure for enjoining acts of “harassment” as defined.’”’ [Citation.]” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1250.)
Spitzberg contends that the judge did not afford her a fair hearing based on the assertions that the trial judge was biased, mocked her and her witness (her mother), asked them “argumentative and irrelevant” questions, gave preferential treatment to Notaro, failed to read her answer, failed to pay attention at the hearing, excluded a defense witness, coached Notaro and her witnesses to remember previous testimony, and excluded police reports. She also asserts that “strong evidence” suggests that “illegal ex parte contact took place” between the judge and Notaro’s attorney. (Notaro listed the name of her attorney on the petition, but no attorney appeared on Notaro’s behalf at the hearing.)
There is no evidence in the record showing the trial judge engaged in any of the foregoing conduct. The record shows no bias or preferential treatment of either side by the trial judge. The trial judge’s questions explored the incidents mentioned in the petition and the answer, and in doing so, the trial judge showed no disrespect to any witnesses. No exhibits were sought to be admitted into evidence by either party and thus there was no ruling excluding any evidence. And there is no evidence, or even any inference, of ex parte contacts or communications between the judge and Notaro’s attorney.
Citing Ross v. Figueroa (2006) 139 Cal.App.4th 856 (Ross), Spitzberg contends that she was entitled to a continuance and that the hearing was unfair. Ross affords no support for Spitzberg’s contentions. Ross was a domestic violence case in which the court held that because the temporary restraining order was issued without notice to the defendant, he was entitled as a matter of right to a continuance under Family Code section 243, subdivision (e) when he first appeared at the hearing on the petition for a permanent restraining order and requested a continuance at the outset of the hearing. (Ross, at pp. 864–865.) In Ross, the trial court not only denied the defendant’s request for a continuance made at the outset of the hearing but proceeded to grant the permanent restraining order based only on the form request for the temporary protective order and attached documents. The trial court took no oral testimony from the plaintiff or the defendant, and denied the defendant’s request to submit evidence of his own. (Id. at p. 860.)
Family Code section 243 provides in pertinent part: “(b) If an order described in Section 240 has been issued without notice pending the hearing, the applicant must have served on the respondent, at least five days before the hearing, a copy of each of the following: [¶]... [¶] (e) If service is made under subdivision (b), the respondent is entitled, as of course, to one continuance for a reasonable period, to respond to the application for the order.”
The circumstances in the instant case are entirely different than in Ross. Here, both sides had submitted written declarations before the hearing. At the hearing, the trial court heard extensive testimony from plaintiff, defendant, and their witnesses. Spitzberg thus had ample opportunity to challenge the allegations in the petition and to present her version of the events at issue. And it was only after the trial court announced that he was ready to make a ruling that Spitzberg requested a continuance. Spitzberg’s opening brief states that she “realized that she should have requested the continuance at the start but she could not have anticipated that the need for a continuance would be so very necessary to a fair hearing.” Spitzberg fails to cite any pertinent authority to support the proposition that the denial of her belated request for a continuance constituted an abuse of discretion.
Finally, we conclude that Spitzberg fails to show that the evidence was insufficient to support the restraining order under section 527.6.
“In assessing whether substantial evidence supports the requisite elements of willful harassment, as defined in section 527.6, we review the evidence before the trial court in accordance with the customary rules of appellate review. We resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge in all legitimate and reasonable inferences to uphold the finding of the trial court if it is supported by substantial evidence which is reasonable, credible and of solid value.” (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.)
A person who has suffered harassment as defined in section 527.6, subdivision (b) is entitled to a restraining order. Harassment is defined in section 527.6, subdivision (b) (see fn. 1, ante), as (1) unlawful violence, or a credible threat of violence, or a knowing and willful course of conduct, (2) directed at a specific person, (3) that seriously alarms, annoys, or harasses the person, and (4) that serves no legitimate purpose.
“Unlawful violence” means “any assault or battery, or stalking as prohibited in Section 646.9 of the Penal Code....” (§ 527.6, subd. (b)(1).) A “credible threat of violence” means “a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety... and that serves no legitimate purpose.” (§ 527.6, subd. (b)(2).) “Course of conduct” means “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... or computer e mail. Constitutionally protected activity is not included within the meaning of ‘course of conduct.’” (§ 527.6, subd. (b)(3).) The course of conduct also 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).)
Penal Code section 646.9, subdivision (a) provides in pertinent part that “[a]ny person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety... is guilty of the crime of stalking....”
The testimony of Notaro and others shows that Notaro was not only physically assaulted by Spitzberg on one occasion in August 2007, but that Notaro received at least two credible threats of violence from Spitzberg in April 2008. Spitzberg said to Seccia that she was “‘going to get’” Notaro and that any time Notaro left her home or performed, Spitzberg was “‘going to be on her.’” On April 29, 2008, Spitzberg told Whitaker that she knew the license plate number, make, and color of Notaro’s car, and where Notaro lived. From this evidence, the trial court reasonably could have inferred that Spitzberg was following Notaro in order to harass and intimidate her and that such conduct constituted stalking. Spitzberg also engaged in a series of acts of harassment by making personal attacks, insults, and threats by way of e mail.
On April 12, 2008, Seccia observed Notaro to be upset, nervous, and “freaked out” because of Spitzberg’s conduct. On April 29, 2008, Notaro was afraid to leave the comedy club because Spitzberg was outside the door. The trial court reasonably could have inferred that Spitzberg’s conduct was willful and malicious, seriously alarmed and annoyed Notaro, caused Notaro substantial emotional distress, served no legitimate purpose, and was not constitutionally protected.
Spitzberg’s briefs are primarily devoted to questioning the trial court’s credibility determinations. She urges us to reweigh the evidence and make different credibility determinations and inferences. This we cannot do under the appropriate standard of review. As Spitzberg fails to cite any applicable authority to support her arguments, her challenges to the sufficiency of the evidence are unavailing.
DISPOSITION
The order is affirmed. Respondent Mathilde Notaro is entitled to costs on appeal.
We concur: ROTHSCHILD, J., JOHNSON, J.