California Court of Appeal Jul 29, 2015 No. D065721Unpublished
Filed 7/29/15 Cervantes v. Fradet CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
RAUL MORALES CERVANTES, D065721
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2014-00000446- CU-HR-NC) JACQUES FRADET,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Gregory W.
Pollack, Judge. Affirmed.
Carl M. Hancock for Defendant and Appellant.
Mary Cavanagh for Plaintiff and Respondent.
Jacques Fradet appeals a civil harassment restraining order that prohibits Fradet
from harassing Raul Morales Cervantes and Cervantes's family members. Fradet
contends that the trial court erred in granting the restraining order because (1) the
evidence is insufficient to support the court's issuance of the restraining order ; and (2)
the court applied the wrong legal standard. Cervantes requests an award of attorney fees
and costs on appeal. We affirm the restraining order, but deny Cervantes's request for
Fradet and Cervantes are next door neighbors. On January 26, 2014,2 Cervantes's
dogs escaped his property while his granddaughter was cleaning their kennel. At least
one of the dogs ran onto Fradet's property whereupon Fradet observed Cervantes's dog
defecate. Fradet then ran toward Cervantes's property and began yelling at him about
what his dog did. Fradet then attempted to confront Cervantes, but Cervantes did not
engage. Instead, Cervantes retreated into his garage to take his anti-anxiety medication.
A year prior to this incident, Cervantes suffered a head injury resulting in increased
susceptibility to anxiety attacks. Fradet interpreted Cervantes's unwillingness to engage
him as dismissiveness.
A few moments later, Fradet returned with a bag of the dog's feces, hopped over
the privacy fence between their properties without permission from Cervantes, and
proceeded to smear the feces over the rear quarter of Cervantes's truck while Cervantes
and his young granddaughter watched. Cervantes told Fradet to leave the property, but
Fradet responded by taunting Cervantes and intentionally trying to provoke a physical
altercation. Fradet's taunts and goading included statements like, "Come here, I want
1 The following summary of the facts is mostly derived from the trial court's engrossed settled statement (hereafter the settled statement).
2 All further dates are to the calendar year 2014. 2
you!" and "Come here! I'm wa[i]ting for you!" Fradet then jumped back over the
privacy fence onto his own property and taunted Cervantes again saying, "I will be
waiting for you right here. Any time I will be waiting for you."
The undisputed evidence indicates this was the first time Fradet observed
Cervantes's dog defecating on his property. Fradet never discussed any concern about
Cervantes's dog defecating on his property prior to this incident.
During the trial, Fradet displayed an angry demeanor, indicating that his hostility
toward Cervantes and resentment about the incident had not lessened.
B. Procedural Background
On January 29 Cervantes filed a request for civil harassment restraining orders
against Fradet. Cervantes supported his request with a one-page handwritten declaration
reciting the facts of the incident.
That same day the court granted a temporary restraining order and set the
evidentiary hearing on Cervantes's requested restraining order for February 21. Fradet
thereafter submitted his written response and his supporting declaration contesting
Cervantes's request.
On February 21 the court held the evidentiary hearing on Cervantes's request for a
one-year restraining order. The court's minute order shows the court heard sworn
testimony from Fradet, Cervantes, and Cervantes's wife, Barbara. The minute order also
shows the proceedings were not reported. The court found Cervantes's testimony and
version of events more credible than Fradet's and granted Cervantes a one-year civil
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harassment restraining order pursuant to Code of Civil Procedure section 527.6.3 The
minute order shows the court ordered that Fradet stay 10 yards away from Cervantes and
Cervantes's family. It also ordered that Fradet not own or possess a firearm and that he
must not contact, molest, harass, attack, strike, threaten, sexually assault, batter,
telephone, send any messages to, follow, stalk, or destroy the personal property of
Cervantes.
On April 4 Fradet filed a timely notice of appeal challenging the restraining order.
As the February 21 hearing was not reported, Fradet moved to proceed by settled
statement pursuant to California Rules of Court, rule 8.137.4 The parties filed a joint
stipulation to proceed by agreed statement.5 The parties exchanged multiple proposed
statements but could not agree on a single version.
The court held a hearing on the issue of the settled statement. The court then
prepared its settled statement summarizing the trial and the court's findings. Fradet then
3 All further statutory references are to the Code of Civil Procedure unless otherwise specified.
4 Rutter explains that "[a] settled statement consists of a 'condensed narrative of the oral proceedings that the appellant believes necessary for the appeal.' [] Appellant files a proposed statement, respondent files proposed amendments (if any), and the superior court approves the final 'settled statement.'" (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2014) ¶ 4:14.1, p. 4-6, citing Cal. Rules of Court, rule 8.137 (b), (c).) Rutter also explains that, "[i]f a settled statement entirely replaces the reporter's transcript [], it can also include copies of the superior court documents in lieu of a clerk's transcript []." (Eisenberg et al., supra, at ¶ 4:24, p. 4-7.)
5 Rutter explains that "[t]he 'agreed statement' is another rarely-used alternative to the reporter's transcript, also consisting of a narrative description of the trial court proceedings." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, § 4:16, p. 4-6.) 4
filed and served written objections to the settled statement. The court overruled Fradet's
objections.
Fradet thereafter filed in this court a motion to strike the settled statement.
Cervantes filed an opposition to Fradet's motion to strike. This court denied Fradet's
motion to strike the settled statement.
DISCUSSION
I. FRADET'S CLAIM THAT THE RESTRAINING ORDER SHOULD BE REVERSED
In challenging the restraining order, Fradet makes two main contentions. First, he
contends that the evidence is insufficient to sustain the court's issuance of the restraining
order. Specifically, Fradet contends that (1) the evidence suggests his actions were not
violent within the meaning of section 527.6, subdivision (b)(3) (hereafter section
527.6(b)(3)); (2) the record contains insufficient evidence to support a finding that he
made a credible threat of violence within the meaning of section 527.6(b)(3) ; (3) there is
insufficient evidence to support a finding that his actions amount to a prohibited course of
conduct within the meaning of section 527.6, subdivision (b)(1) (hereafter section
527.6(b)(1)); and (4) there is insufficient evidence to support a finding that Fradet poses a
threat of future harm to Cervantes.
Fradet's second main contention is that the trial court abused its discretion when it
failed to apply the "reasonable person" standard pursuant to section 527.6, subdivisions
(b)(2) and (b)(3). Fradet's contentions are unavailing.
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A. Applicable Legal Principles
1. Civil harassment restraining orders generally
Under Code of Civil Procedure6 section 527.6, a court is authorized to issue a
restraining order against a person who has engaged in harassment. (R.D. v. P.M. (2011)
202 Cal.App.4th 181, 188-189.)
"Harassment" is defined in section 527.6(b)(3) 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." Section 527.6(b)(3) also provides that "[t]he 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 petitioner."
Section 527.6, subdivision (b)(2) (hereafter section 527.6(b)(2)) defines a
"[c]redible threat of violence" as "a knowing and willful statement or course of conduct
that would place a reasonable person in fear for his or her safety, or the safety of his or
her immediate family, and that serves no legitimate purpose."
A "[c]ourse of conduct" is defined in section 527.6(b)(1) 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 . . . ."
For a trial court to issue a civil harassment restraining order, it must find by clear
and convincing evidence that unlawful harassment exists. (§ 527.6, subd. (i).)
6 All undesignated statutory references are to the Code of Civil Procedure. 6
2. Standard of review
"When a judgment is attacked as being unsupported by the evidence, 'the power of
the appellate court begins and ends with a determination as to whether there is any
substantial evidence, contradicted or uncontradicted, which will support the conclusion
reached by the [trier of fact].'" (PWS, Inc. v. Ban (1991) 234 Cal.App.3d 223, 230.)
Under the applicable substantial evidence standard of review, we must review the entire
record and view all factual matters in the light most favorable to the prevailing party and
the judgment. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925 (Nestle);
Washington v. Farlice (1991) 1 Cal.App.4th 766, 771-772.)
The trial court's decision is presumed to be correct. (Winograd v. American
Broadcasting Co. (1998) 68 Cal.App.4th 624, 631.) The appellant carries the burden of
showing prejudicial error. (Id. at 632.)
On appeal, when assessing the sufficiency of the evidence supporting a harassment
restraining order issued under section 527.6, "[w]e 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 (Schild).) This court does not reweigh evidence, assess
credibility, or make factual findings contrary to those made by the trial court. (Howard v.
Fradet contends the evidence is insufficient to support the issuance of the
restraining order. This contention is unavailing.
Fradet argues that the record shows his conduct was not violent. He admits that he
trespassed and vandalized Cervantes's truck, but asserts that his actions were not violent.
We agree that the record does not contain any evidence of actual violence committed by
Fradet.
Fradet also claims there is insufficient evidence to demonstrate that he made a
credible threat of violence. Section 527.6 (b)(2) defines a "[c]redible threat of violence"
as "a knowing and willful statement or course of conduct that would place a reasonable
person in fear for his or her safety, or the safety of his or her immediate family, and that
serves no legitimate purpose."
Here, the record demonstrates that Fradet made several statements that would put
a reasonable person in fear for his or her safety within the meaning of section
527.6(b)(2). The evidence shows Fradet began the interaction by angrily yelling at
Cervantes about the dog. Fradet then trespassed onto Cervantes's property and yelled,
"Come here I want you!" The court noted in the settled statement that Cervantes is a
grandfather and "not at all physically imposing." In contrast, Fradet is five feet nine
inches tall, weighs 190 pounds, and is in his 40's. Thus, the evidence supports a
reasonable inference that Fradet is more physically imposing. The court found that
Fradet aggressively charged at, taunted, and attempted to goad Cervantes into a physical
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altercation because "Fradet presumably felt he would prevail." Thus, the evidence
supports an inference that Fradet attempted to intimidate Cervantes and made him fear
for his safety.
Fradet asserts that while he was still on Cervantes's property, he said, "I will be
waiting for you right here. Anytime I will be waiting for you." This assertion suggests
that Fradet did not threaten immediate violence. However, Fradet's version of the facts is
unsupported by the evidence in the record and is contrary to common sense. According
to Cervantes's declaration, a copy of which is attached to the settled statement, Fradet
jumped over the fence back onto his own property, then he made the above statement.
Contrary to the inference intended by Fradet's version, a fair reading of the evidence
suggests that Fradet knowingly and willfully used verbal and physical intimidation before
he returned to his own property. In other words, the evidence shows he made statements
that would put a reasonable person in fear for his or her own safety and which served no
legitimate purpose.
From a common sense perspective, it seems unlikely that Fradet would say "I will
be waiting for you right here. Anytime I will be waiting for you," while standing on
Cervantes's property. To do so would necessarily entail Fradet's trespassing for an
indefinite period of time. In addition, Fradet is improperly asking this court to reweigh
the evidence and draw factual inferences most favorable to him in violation of the rules
governing application of the substantial evidence standard of review. (See Nestle, supra,
6 Cal.3d at p. 925 [a reviewing court views all factual matters in the light most favorable
to the prevailing party and the judgment]; Schild, supra, 232 Cal.App.3d at p. 762
9
[reviewing courts indulge all legitimate and reasonable inferences to uphold the finding
of the trial court if it is supported by substantial evidence]; Howard, supra, 72
Cal.App.4th at pp. 630-631 [a reviewing court does not reweigh the evidence].)
Fradet asserts that "[c]ontext is everything in threat jurisprudence." The evidence
shows that Fradet made the foregoing intimidating statements in the context of
unlawfully trespassing onto Cervantes's property and then vandalizing Cervantes's truck,
all within view of Cervantes and his five-year-old granddaughter. The evidence
regarding Fradet's statements and his aggressive and admittedly "childish" actions, which
the court described as "Fradet's first response to a relatively innocuous event,[7] i.e., a
dog defecating on his property," constitutes clear and convincing evidence that Fradet
harassed Cervantes by making a credible threat of violence within the meaning of section
527.6(b)(2).
In his declaration, Fradet stated that his intent in "smear[ing] the feces on
[Cervantes's truck]" was to inconvenience Cervantes and ultimately protect his family
from the danger of being harassed by Cervantes's dogs. Aside from Fradet's version of
events, which the trial court discredited, the record contains no evidence that Cervantes's
dog displayed any aggressive behavior. The trial court described Fradet's version and
interpretation of events as disingenuous. As stated ante, this court does not make
7 The court characterized the dog's defecating on Fradet's property as a "relatively innocuous event." Reasonable minds may disagree. However, even though the dog's defecating on Fradet's property was offensive, it did not justify Fradet's conduct, which the court found constituted harassment within the meaning of section 527.6. 10
assessments of credibility contrary to those in the trial court. (Howard, supra, 72
Cal.App.4th at pp. 630-631.)
Fradet's next contention that there is insufficient evidence to support a finding that
his actions amounted to a course of conduct that would put a reasonable person in fear for
his or her safety is unavailing. Having determined that substantial evidence supports the
court's finding that clear and convincing evidence demonstrates that the requisites of
[section] 527.6 had been met, we need not and do not further address this contention.
Relying on Russell v. Douvan (2003) 112 Cal.App.4th 399 for the proposition that
a restraining order cannot be issued unless the court finds there is a threat of future harm,
Fradet also claims the record contains insufficient evidence that Fradet poses a future
threat to Cervantes. This contention is unavailing. "The 'purpose of [section 527.6] is to
prevent future harm to the applicant by ordering the defendant to refrain from doing a
particular act.'" (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA,
Inc. (2005) 129 Cal.App.4th 1228, 1266.)
Here, Fradet's last statement during the altercation, "I will be waiting for you right
here. Anytime I will be waiting for you," indicates a threat of future violence or at least
a willingness to engage in future violence. Furthermore, at the evidentiary hearing held
several weeks after the incident, as the court noted in the settled statement, Fradet's
behavior indicated that his enmity toward Cervantes had not dissipated. Viewing the
foregoing evidence in the light most favorable to the order issued by the court, as we
must (Nestle, supra, 6 Cal.3d at p. 925), the record contains substantial evidence from
11
which a reasonable trier of fact could conclude that Fradet posed a threat of future
violence to Cervantes.
2. Fradet's claim that the court applied the wrong legal standard
Fradet also contends the trial court erred by failing to apply the "reasonable
person" standard when it issued the civil harassment restraining order. Assuming that the
court failed to apply the proper standard, without deciding, Fradet's contention is
unavailing. On appeal we review the legal correctness of the court's ruling or decision,
not the court's reasoning. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1,
19 ["'No rule of decision is better or more firmly established by authority, nor one resting
upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct
in law, will not be disturbed on appeal merely because given for a wrong reason.'"].) For
reasons discussed ante, we have concluded that the record contains clear and convincing
evidence that Fradet made a credible threat of violence, constituting harassment within
the meaning of section 527.6, subdivisions (b)(2) and (b)(3). Therefore, since the trial
court reached the correct legal ruling in granting the restraining order, we affirm the
order.
II. CERVANTES'S REQUEST FOR FEES AND COSTS ON APPEAL
Cervantes requests an award of attorney fees and costs on appeal pursuant to
section 527.6, subdivision (r), which provides that "[t]he prevailing party in any action
brought under this section may be awarded court costs and attorney's fees, if any."
(Italics added.) Thus, any award is discretionary. (§ 527.6, subd. (r); see 9 Witkin, Cal.
Procedure (5th ed. 2008) Appeal, § 958, p. 1011 ["The right of the prevailing party to
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recover costs on appeal . . . is qualified by an appellate court's inherent discretionary
power to grant or withhold costs."].)
Cervantes represented himself at trial and incurred no fees there. On appeal, he is
represented by an attorney and has incurred both attorney fees and costs.
In support of his request for attorney fees, Cervantes asks that we consider the
following: (1) Cervantes believes that this appeal was to make him continue to fend off
Fradet's protracted attacks on the restraining order, depriving him of peace ; (2) Fradet
did not respect the substantial evidence standard of review on appeal ; (3) Fradet has
repeatedly expressed disrespect for the trial court and for Cervantes himself . Fradet does
not address Cervantes's request for attorney fees and costs.
The record indicates Cervantes entrusted his five-year-old granddaughter with the
responsibility of controlling his two dogs while she cleaned their kennel. The dogs
escaped her control and left Cervantes's property. As discussed, ante, one of the dogs
defecated on Fradet's property, which offended him and led to the dispute. Cervantes, as
the owner of the dog, was responsible for the failure to keep the dog from defecating on
Fradet's property. In light of the evidence, we conclude that both parties share some
blame for the dispute. Accordingly, we deny Cervantes's request for attorney fees and
costs on appeal. We order that the parties bear their own costs.
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DISPOSITION
The civil harassment restraining order is affirmed. The parties shall bear their own
attorney fees and costs on appeal.
NARES, Acting P. J.
WE CONCUR:
HALLER, J.
McDONALD, J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed a civil harassment restraining order, finding substantial evidence that the appellant engaged in a credible threat of violence and that the trial court's decision was legally correct.
Issues
Whether there was sufficient evidence to support the issuance of a civil harassment restraining order under Code of Civil Procedure section 527.6.
Whether the trial court applied the correct legal standard in granting the restraining order.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The civil harassment restraining order is affirmed.”