Duronslet v. Kamps

• Decision Date: 15 February 2012
• Docket Number: No. A131496.,A131496.
• Citation: 137 Cal.Rptr.3d 756,2012 Daily Journal D.A.R. 2135,203 Cal.App.4th 717,12 Cal. Daily Op. Serv. 1978
• Parties: Jill DURONSLET, Plaintiff and Respondent, v. Joyce KAMPS, Defendant and Appellant.
• Court: California Court of Appeals

12 Cal. Daily Op. Serv. 1978

137 Cal.Rptr.3d 756

2012 Daily Journal D.A.R. 2135

203 Cal.App.4th 717

Jill DURONSLET, Plaintiff and Respondent,

v.Joyce KAMPS, Defendant and Appellant.

No. A131496.

Court of Appeal, First District, Division 5, California.

Feb. 15, 2012.

Tour–Sarkissian Law Offices, San Francisco, Christine Tour–Sarkissian and Heather Wolnick for Plaintiff and Respondent.

Zacks & Utrecht, P.C., San Francisco, Paul F. Utrecht and James B. Kraus for Defendant and Appellant.

JONES, P.J.

The trial court issued an injunction pursuant to Code of Civil Procedure section 527.6 (Section 527.6) protecting Jill Duronslet and her immediate family from Joyce Kamps. On appeal, Kamps contends the injunction must be reversed because the only evidence that she made a “credible threat of violence” under Section 527.6, former subdivision (a) ¹ was inadmissible multiple hearsay protected by the physician-patient privilege.

We affirm. We conclude Kamps forfeited her objections to certain hearsay evidence offered at the hearing on Duronslet's injunction. We also conclude the trial court may consider such hearsay evidence when deciding whether to issue an injunction pursuant to Section 527.6. Finally, we conclude Kamps has failed to satisfy her burden to demonstrate that statements she made to a nurse at Pacific Family Medical Center were covered by the physician-patient privilege set forth in Evidence Code section 990 et seq.²

FACTUAL AND PROCEDURAL BACKGROUND

In December 2010, Duronslet and Kamps co-owned a two-unit building in San Francisco; Kamps lived upstairs and Duronslet lived downstairs with her husband and two children. In approximately 2004, Kamps and Duronslet began converting their building from a tenancy-in-common to condominiums. Kamps and Duronslet disagreed about whether to convert the building, prompting Duronslet to file a petition to compel arbitration. Kamps and Duronslet eventually arbitrated their dispute.

In 2006, Kamps and Duronslet had a “break-down in communication” and their relationship deteriorated. In December 2008, Kamps pushed Duronslet's husband during a city inspection, causing Duronslet and her husband to become concerned about Kamps's hostility toward them. In October 2009, Kamps screamed and yelled at Duronslet for parking her car in the common garage; Kamps threatened to call the police and have Duronslet's car towed. Duronslet's children, who witnessed the incident, were visibly upset. Duronslet believed Kamps “cut the cords that connected the backyard sprinklers to the water meter” because Kamps disagreed with Duronslet about how the water bill should be apportioned. In early December 2009, Kamps saw Duronslet with her husband and children and “gave [them] the finger ... unprovoked.”

On December 20, 2010, San Francisco Police Officer Jimmy Lee came to the Duronslet and Kamps's building looking for Kamps. He did not tell Duronslet why he was looking for Kamps because Duronslet's children were present. Later, during a telephone call, Lee told Duronslet that Kamps had made threats about Duronslet to a nurse, who reported the threats to the police. Terrified for her family's safety, Duronslet and her husband stayed at a hotel for several days. On December 23, 2010, the San Francisco Police Department applied for and obtained an emergency protective order prohibiting Kamps from contacting Duronslet, her husband, and her children. Duronslet and her husband received a copy of the emergency protective order.

Duronslet's Request for an Injunction Pursuant to Section 527.6

That same day, Duronslet requested an injunction prohibiting Kamps from harassing her and her immediate family under Section 527.6. In her request (Form CH–100), Duronslet alleged Kamps told a nurse at Pacific Family Practice Medical Group that she planned to kill her neighbor and then kill herself. After hearing about the threat from Lee, Duronslet temporarily moved her family out of her residence because she and her husband were concerned about what “Kamps may do to us or our children. [Kamps] has repeated[ly] expressed hatred and anger toward us.”

In a declaration in support of her injunction request, Duronslet averred “Kamps told the nurse that she had a will and funeral arrangements made and that she planned to kill her neighbor and then herself.” Duronslet stated that Lee called her on December 22, 2010, and told her, “based on the advice of the psychiatric liaison[,] he would be issuing an emergency protective order that would last a few days.” ³ Duronslet also received a call from Elsie Dunn, the psychiatric liaison, about Kamps. In her declaration, Duronslet described Kamps's behavior as “inconsistent and distressing” and averred she was terrified for her safety and her family's safety. Duronslet stated she believed Kamps intended to harm Duronslet and her family.

Duronslet's attorney submitted a declaration in support of the injunction request attaching a redacted police report faxed to her by an officer from the San Francisco Police Department. According to the redacted police report, Lee went to the Pacific Family Practice Medical Group on December 20, 2010, after receiving a “[ T ] arasoff report.” ⁴ (Italics added.) The office manager told Lee that Kamps was seen by a nurse for about 30 minutes on the afternoon of December 15, 2010, and “made threats to kill her neighbor and commit suicide.” The nurse was not in the office when Lee responded to the Tarasoff report. The office manager told Lee she discovered the information while reviewing medical records on December 20, 2010 and called the police. The office manager explained that Duronslet's husband, who is also a patient of the medical group, “happened to be in the waiting room when Kamps was in the nurse's office. When Kamps exited the [treatment] room” she saw Duronslet's husband and said, “ ‘That's him.... That's him.’ ” In the police report, Lee described his communication with the Duronslet family, noting that Duronslet told him that “Kamps had never threatened or acted violently toward[ ] her or her husband ... in the past” but that there had “been some friction between them due to an on-going effort to convert their building [ ] to a condo.”

In her answer, Kamps denied the allegations in Duronslet's injunction request and claimed Duronslet did not suffer emotional distress. She also noted she and Duronslet “are co-owners of property who must communicate in order to resolve issues concerning their property.”

The Hearing and the Court's Order Issuing an Injunction

At the hearing, Kamps's attorney objected to the police report “based on hearsay and doctor/patient privilege.” The court overruled the physician-patient objection, noting, “there is no doctor/patient privilege if there's a threat of violence ... the medical office reported it to the police because it was a threat of violence. So once there is a threat of violence, there is no doctor/patient privilege.” The court “noted” the hearsay objection. Kamps did not object to Duronslet's declaration or to the attached documents.

Duronslet testified that when Lee came to her house and told her “ about the threat,” she took it “very seriously” and decided to stay in a hotel with her family because she was not “sure what [Kamps] would do and if she truly would harm” Duronslet and her family. She explained that when she told Lee that Kamps had never threatened her or acted violently, she was in a state of shock; later, when she had time to reflect, she recalled several incidents where Kamps had threatened her or acted violently. Neither Kamps nor the nurse testified at the hearing.

At the conclusion of the hearing, the court issued a three-year injunction pursuant to Section 527.6 prohibiting Kamps from contacting Duronslet, her husband, and her two children except through third parties (Form CH–140). The injunction also required Kamps to stay away from the Duronslets.

DISCUSSION

The Legislature enacted Section 527.6 “ ‘to protect the individual's right to pursue safety, happiness and privacy as guaranteed by the California Constitution.’ [Citations.] It does so by providing expedited injunctive relief to victims of harassment. [Citation.]” ( Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1412, 23 Cal.Rptr.3d 609; Thomas v. Quintero (2005) 126 Cal.App.4th 635, 638, 24 Cal.Rptr.3d 619.) Section 527.6 enables “[a] person who has suffered harassment”—defined 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”—to “seek a temporary restraining order and an injunction prohibiting harassment as provided in this section.” (Code Civ. Proc., § 527, former subds. (a), (b).)

“Upon filing a petition for an injunction under this section, the plaintiff may obtain a temporary restraining order.... A temporary restraining order may be issued with or without notice upon an affidavit that, to the satisfaction of the court, shows reasonable proof of harassment of the plaintiff by the defendant, and that great or irreparable harm would result to the plaintiff....” (Code Civ. Proc., § 527.6, former subd. (c).) Within 22 days from the date the temporary restraining order is issued, the court must hold a hearing “on the petition for the injunction. The defendant may file a response that explains, excuses, justifies, or denies the alleged harassment or may file a cross-complaint under this section. 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. An injunction issued pursuant to this section shall have a duration of not more than three years. At any time within the three months before the expiration of the injunction, the plaintiff may apply for...