JAMES HUNLEY v. JOHN HARDIN

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Court of Appeal, Second District, California.

JAMES HUNLEY, Plaintiff and Appellant, v. JOHN HARDIN, Defendant and Respondent.

B210918

Decided: January 27, 2010

James Hunley, in pro. per., for Plaintiff and Appellant. Fullerton & Hanna and Lawrence J. Hanna for Defendant and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

James Hunley appeals an order granting an injunction prohibiting harassment in favor of James Hardin.  (Code Civ. Proc., § 527.6.) 1 The injunction prohibits Hunley from making personnel complaints to Hardin's employer, the Los Angeles Police Department, based on Hardin's asserted off-duty misconduct without first obtaining a court order.

Hunley contends the order issued by the trial court did not address harassment, section 527.6 does not apply to constitutionally protected speech, the order amounted to a prior restraint on Hunley's speech on matters of public importance and Hardin misused the statute prohibiting harassment.

We conclude the trial court issued the order after conducting a hearing at which it found Hunley harassed Hardin by misusing the police complaint system.   Consequently, the order directing Hunley to cease such conduct is a proper application of section 527.6.   Further, the rule against prior restraints does not apply to an order prohibiting an individual from repeating specific statements found at trial to be defamatory.  (Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, 1155-1156;  Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 138.)   Similarly, conduct that has been found to constitute harassment is not constitutionally protected.   (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1250.)   Because Hunley failed to provide a reporter's transcript of the hearing at which the trial court received and evaluated the evidence, this court must presume the evidence presented at the hearing was sufficient to support the injunction.   We therefore affirm the trial court's order.

FACTS AND PROCEDURAL BACKGROUND 2

1. Hardin's request for orders to stop harassment.

On July 10, 2008, John Hardin filed a request for orders to stop harassment.   It alleged Hunley, his neighbor of 14 years, jumped over the fence into Hardin's yard in the City of Duarte and threatened to kick Hardin's ass.   Hardin claimed he feared Hunley would become increasingly violent and would continue to intimidate Hardin and his family.   The request also alleged Hunley had undertaken a campaign to get Hardin fired from his job as an officer of the Los Angeles Police Department by filing false personnel complaints based on Hardin's asserted off-duty misconduct.   Hardin stated Hunley once called Hardin's work and made false allegations against Hardin and he distributed a flyer encouraging the residents of the neighborhood to get Hardin fired.

A letter from one such resident attached to the request indicated he was friends with both Hunley and Hardin, they were involved in a dispute over the height of a fence and Hunley has conducted a campaign to get Hardin fired by defaming his character.

2. Hunley's response.

Hunley filed a response asserting Hardin failed to demonstrate a credible threat of violence and failed to allege any act of violence.   The response further asserted Hardin had harassed Hunley and his family.   Hunley had filed complaints of vandalism, which he suspected had been perpetrated by Hardin, with the Sheriff's Department which had police jurisdiction of the area.

3. The trial court's ruling.

After conducting a hearing, the trial court ordered Hunley “not to report anything to [Hardin's] employer without court order in advance.”

Hundley filed a motion to vacate the restraining order.   In denying Hunley's motion, the trial court modified the order to direct Hunley “to refrain from reporting any conduct by [Hardin], outside his performance as a police officer, to [Hardin's] employer.”   We interpret this modification to retain the requirement that Hunley obtain a court order prior to filing a complaint with the Los Angeles Police Department based on Hardin's asserted off-duty misconduct.

CONTENTIONS

Hunley contends the trial court abused its discretion in issuing the injunction absent evidence Hardin was threatened with violence, section 527.6, subdivision (b) does apply to constitutionally protected activity, the order amounted to a prior restraint on Hunley's speech on matters of public importance and Hardin misused a legal process.

DISCUSSION

1. Legal principles related to injunctions prohibiting harassment (§ 527.6).

In order to obtain a section 527.6 injunction, a plaintiff must show by clear and convincing evidence that he or she has been harassed, which is defined as “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and which 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.  [¶] ․ [¶] ․ ‘Course of conduct’ is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose․  Constitutionally protected activity is not included within the meaning of ‘course of conduct.’ “ (§ 527.6, subd. (b).)

Section 527.6 was passed to supplement the existing common law torts of invasion of privacy and intentional infliction of emotional distress by providing quick relief to harassment victims threatened with great or irreparable injury and to protect the individual's right to pursue safety, happiness, and privacy as guaranteed by the California Constitution.  (Nebel v. Sulak (1999) 73 Cal.App.4th 1363;  Smith v. Silvey (1983) 149 Cal.App.3d 400, 405.)

Under section 527.6, subdivision (d), “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․  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.” (§ 527.6, subd. (d).)

A trial court's decision to grant or deny a restraining order under section 527.6 is evaluated under the substantial evidence standard.  “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.  [Citations.]”  (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.)

We review de novo questions of law, including whether the prohibition violates the federal and state constitutions.  (In re George T. (2004) 33 Cal.4th 620, 632.)

2. The absence of a finding on Hardin's claim Hunley presented a threat of violence does not render the injunction faulty.

Hunley contends Hardin failed to present evidence that indicated Hunley presented a credible threat of violence or that Hunley committed an act of violence.   Hunley notes the trial court did not grant any stay away orders or prohibit any conduct by Hunley except to prevent reports to Hardin's employer.   Hunley concludes Hardin's evidentiary showing was inadequate to support an injunction prohibiting harassment.

The failure of the trial court to issue stay away orders addressing Hardin's assertion Hunley threatened violence is of no consequence.   Hardin's petition also alleged Hunley undertook a campaign to get Hardin fired from the police department by filing false complaints alleging off-duty misconduct.  Section 527.6 has been construed to support injunctions against a broad array of uncivil behavior, including making meritless reports to officials about animal cruelty and other harassing behavior.  (See Grant v. Clampitt (1997) 56 Cal.App.4th 586, 591-592.)   Thus, a finding Hunley harassed Hardin by filing false personnel complaints with the police department is within the definition of harassment in section 527.6.   The fact the trial court denied the injunction to the extent it sought to prohibit violence by Hunley does not affect the viability of the order the trial court issued.

3. Hunley fails to present a record on appeal that permits review of his constitutional claims.

Hunley contends section 527.6 expressly excludes from its ambit constitutionally protected activity. (§ 527.6, subd. (b)(3).)   Hunley argues filing a personnel complaint based on off-duty misconduct is an exercise of the right to petition the government and cannot be classified as an harassing course of conduct under the statute.   Hunley asserts the complaint process of the Los Angeles Police Department is federally mandated and Hunley has the right to avail himself of it free of any prior restraint.  (Smith v. Silvey, supra, 149 Cal.App.3d at p. 406;  Pen.Code, § 832.5 subd. (a)(1).)

Hunley further contends the trial court's order constitutes a prior restraint, that is, “a predetermined judicial prohibition restraining specific expression․”  (Chicago Council of Lawyers v. Bauer (7th Cir.1975) 522 F.2d 242, 248.)   Hunley asserts it is difficult to imagine an area with greater public interest than the right of citizens to report misconduct by police officers.

We agree the statute does not apply to constitutionally protected activity. (§ 527.6, subd. (b)(3);  Thomas v. Quintero (2005) 126 Cal.App.4th 635, 652.)   However, it is settled that not all speech or petition activity is constitutionally protected.  (Flatley v. Mauro (2006) 39 Cal.4th 299, 313;  Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal.4th at p. 134 [“the right to free speech is not absolute”].)  “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., supra, 129 Cal.App.4th at p. 1250.)   The right to free speech “does not include the right to repeatedly invade another person's constitutional rights of privacy and the pursuit of happiness through the use of acts and threats that evidence a pattern of harassment designed to inflict substantial emotional distress.”  (People v. Borrelli (2000) 77 Cal.App.4th 703, 716 [addressing substantially identical statute, Penal Code section 646.9, prohibiting stalking].)

Further, the rule against prior restraints does not apply to an order prohibiting an individual from repeating specific statements found at trial to be defamatory.  (Balboa Island Village Inn, Inc. v. Lemen, supra, 40 Cal.4th at pp. 1155-1156;  Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal.4th 121, [an injunction prohibiting racial epithets in the workplace was not an unconstitutional prior restraint “because the order was issued only after the jury determined that defendants had engaged in employment discrimination, and the order simply precluded defendants from continuing their unlawful activity.”  (Aguilar, supra, at p. 138.) ].)

Here, the trial court conducted a hearing, as required by section 527.6, subdivision (d).  The statute directs the trial court to receive evidence at the hearing and permits the trial court to conduct an independent inquiry.   Hardin asserts he presented evidence at the hearing that showed Hunley used the complaint process as a weapon in his personal dispute with Hardin and that Hunley made false complaints designed to damage Hardin's professional career.   After conducting this mandated hearing, the trial court found Hunley harassed Hardin by misusing the police complaint system.

Absent a reporter's transcript of the proceedings, we are unable to determine the showing made by Hardin did not amount to harassment under the statute.   (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556-557 [an appellant who challenges a trial court's factual determination must affirmatively demonstrate insufficiency of the evidence];  Estate of Fain (1999) 75 Cal.App.4th 973, 992 [“Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters ”];  see Evans v. Evans (2008) 162 Cal.App.4th 1157, 1171, 1173 [preliminary injunction prohibiting reports to the Sheriff's Department except to call “911 to report criminal conduct” reversed as overbroad but cautioning the result might be different “on a more developed factual record”].)

Rather, we presume in favor of an adequate record and this presumption is fatal to Hunley's appeal.   On the record presented, we are unable to determine the order was constitutionally infirm.   We note the order does not prevent Hunley from reporting misconduct that is related to Hardin's performance as an officer or restrain Hunley from reporting criminal conduct by Hardin to the Sheriff's Department, which has police jurisdiction in the litigants' neighborhood.

4. No abuse of process appears.

Hunley contends Hardin's use of the restraining order statute to prevent Hunley from reporting Hardin's off-duty misconduct amounts to an abuse of process.   Hunley claims Hardin falsely alleged that Hunley entered Hardin's front yard in order to prohibit Hunley from using the complaint process enacted to ensure that police officers maintain high standards of behavior.

Even an unsuccessful petition for an injunction prohibiting harassment does not form the basis for a malicious prosecution action.  (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1574.)   It follows that a successful petition for an injunction prohibiting harassment does not constitute abuse of process.

DISPOSITION

The order is affirmed.   Hunley shall bear costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Subsequent unspecified statutory references are to the Code of Civil Procedure..  FN1. Subsequent unspecified statutory references are to the Code of Civil Procedure.

FN2. Hunley has elected to proceed without a reporter's transcript of the hearing conducted by the trial court.   As a result, the factual matters set out below are drawn from Hardin's request for orders to stop harassment, Hunley's response thereto and minute orders issued by the trial court..  FN2. Hunley has elected to proceed without a reporter's transcript of the hearing conducted by the trial court.   As a result, the factual matters set out below are drawn from Hardin's request for orders to stop harassment, Hunley's response thereto and minute orders issued by the trial court.

CROSKEY, J. KITCHING, J.