Malatka v. Helm, H032417.

• Citation: 10 Cal. Daily Op. Serv. 12, 667,116 Cal.Rptr.3d 343,188 Cal.App.4th 1074
• Decision Date: 29 September 2010
• Docket Number: No. H032417.,H032417.
• Court: California Court of Appeals
• Parties: Aviva MALATKA, Plaintiff and Respondent, v. Christine HELM, Defendant and Appellant.

188 Cal.App.4th 1074

116 Cal.Rptr.3d 343

10 Cal. Daily Op. Serv. 12,667

2010 Daily Journal D.A.R. 15,244

Aviva MALATKA, Plaintiff and Respondent,

v.Christine HELM, Defendant and Appellant.

No. H032417.

Court of Appeal, Sixth District, California.

Sept. 29, 2010.

**345 Atchison, Barisone, Condotti & Kovacevich, George J. Kovacevich, Santa Cruz, for Defendants and Appellants Christine Helm.

Page, Salisbury & Dudley, Santa Cruz, Arthur Dudley, for Plaintiff and Respondent Aviva Malatka.

RUSHING, P.J.

*1076 I. Introduction

Plaintiff Aviva Malatka has obtained an order restraining one of her neighbors, defendant Christine Helm, from verbally harassing her and her husband. (Code Civ. Proc., § 527.6.) ¹ The initial order was filed on May 18, 2007, after hearings on April 20 and May 18, 2007. An amended order adding plaintiff's husband was filed on June 12, 2007.

Rather than appealing from the restraining order, defendant filed a motion to dissolve or modify it. After a hearing on September 25, 2007, the court modified the restraining order, implicitly denying the request to dissolve it. A modified order was filed on October 17, 2007.

On appeal from the latter order, defendant asserts that the trial court erred at the May 18 hearing by refusing to consider declarations she had submitted and by denying her motion to strike one witness's testimony. Plaintiff contends that these issues should have been raised in an appeal from the initial order and are not reviewable in an appeal from a modification of that order. On the eve of oral argument, defendant filed a motion to dismiss this appeal as moot and to reverse the judgment. We will affirm the challenged order after explaining why defendant's contentions are neither reviewable nor meritorious.

II. Procedural History

A. The Written Request for a Restraining Order and Opposition

On April 6, 2007, plaintiff obtained an ex parte court order temporarily restraining defendant from harassing plaintiff and her husband. Defendant lived across the street from them. Plaintiff's application for the order included *1077 a declaration that defendant had cursed and threatened her since they became neighbors in 2002, most recently on April 2, 2007. One of their earliest confrontations in 2003 involved defendant expressing displeasure about plaintiff and her husband cutting down a tree on their property, as the tree had been part of defendant's view for years. Defendant knocked on plaintiff's door later that day and offered an apology, but plaintiff was dismissive. There were other confrontations**346 over time. On April 2, 2007, while plaintiff was unloading her groceries from her car, among other things defendant yelled that plaintiff was a "fucking bitch," "the Capitola whore," and a "fucking cunt," and said, "I will fuck you up, bitch."

Plaintiff's declaration also recited that another neighbor, Al Sehorn, ² had obtained a temporary restraining order against defendant in August 2001. Defendant had been cutting his flowers and harassing his family. Plaintiff also said that she once saw defendant and her son struggling over a shotgun in the middle of the street.

A hearing was scheduled for April 20, 2007. Defendant filed written opposition on April 18, 2007. Her declaration admitted that she said something inappropriate in connection with the tree, but said it was plaintiff who cursed her when she offered an apology. She denied some other alleged confrontations had occurred. She admitted that, on the final occasion, she told plaintiff off after plaintiff again dismissed her.

Defendant's opposition included declarations from Al Sehorn and Kathleen Keil. Sehorn stated that defendant is a "great neighbor[ ]." Sehorn denied saying to plaintiff what her declaration reported. Keil stated she is a "good neighbor." She did remember defendant and her son having words over a gun that he inherited.

Defendant submitted a request by Sehorn for dismissal without prejudice on September 5, 2001, of an action seeking a harassment injunction against defendant.

B. The April 20, 2007 Hearing

On April 20, 2007, plaintiff appeared with counsel. At the outset of the hearing, the court identified the problem of not having enough time in the morning and plaintiff's attorney being unavailable in the afternoon. Plaintiff testified consistently with her declaration.

Jorge Michael, called by plaintiff, testified that he used to be a neighbor of plaintiff and defendant. Once defendant came to complain about them *1078 removing a tree on plaintiff's property that was damaging Michael's car. She said she enjoyed looking at the tree, and they had no right to remove it. He overheard defendant direct profanity at plaintiff.

Defendant said she had no cross-examination for Michael, but asked, "Am I allowed to call him back if I need to talk to them after we discover more?" The court answered affirmatively.

Cindy Clanton, called by plaintiff, testified that she had heard defendant using the kind of language described by plaintiff over a dozen times since 2003. Defendant yelled at and cursed her one day and told her she could not park her car on the street. Clanton told her she would call the police if she would not leave the property. Clanton heard defendant using profanity at plaintiff. On cross-examination, defendant elicited that defendant once called the police on Clanton claiming that Clanton had damaged rocks placed by defendant on a neighborhood easement. Defendant said that she was finished with her cross-examination, and plaintiff proceeded with redirect examination.

Before plaintiff's husband was able to testify, the court interrupted the proceedings, explaining there was no more time that day. There was consideration of another date. Defendant said that May 7 **347 would not work, because "due to the testimony that I've heard, I'm going to call in some other witnesses." The hearing was set for May 18. When asked if she wanted Mr. Michael to come back, defendant said, "Well, I have to—I have to think about what was said and come up with some good questions[.] I'm not an attorney." Mr. Michael said he would be in Australia.

Mr. Michael was recalled to the stand. Defendant established that he had not had a problem parking in the neighborhood.

C. The Continued Hearing on May 18, 2007

The hearing resumed on May 18, 2007, with both sides being represented by attorneys, defendant by Delman Smith. Defendant brought a motion to strike Cindy Clanton's testimony because she was unavailable for cross-examination. The trial court denied the motion.³

Ms. Sandberg, offered as a character witness by defendant, testified that she had heard plaintiff yell and swear on three occasions over six years earlier, none involving defendant.

*1079 Plaintiff's husband, called by defendant, testified about defendant confronting them about cutting down a tree. She called plaintiff "a fuckin' bitch," and said they had no right to cut down the tree. On a later occasion, she complained again about them trimming another tree that was scratching Mr. Michael's car. Apart from these occasions, they have been cordial to each other. His wife has told him over the telephone about other confrontations when he is at work.

Defendant testified that when she offered an apology about the tree on the first occasion, plaintiff said, "I don't have to take an apology from you, you f-ing bitch," and slammed the door in her face. Defendant retorted, "Don't call me a f-ing B. I know things about you. You are the f-ing B." Earlier that day, plaintiff had called her a "fucking bitch," and told her to go back to her property.

On a later occasion, plaintiff muttered something under her breath about a dog barking at defendant.

On April 2, 2007, defendant called out to plaintiff from her yard and said she should have accepted her apology. "Let's end this thing; get it over with." Plaintiff gave her a look. Defendant said, "You know it's never going to be peaceful here with you." Defendant admitted calling plaintiff a fucking bitch that day. She denied using the other curses attributed to her, since she did not use that kind of language.

On redirect examination, plaintiff objected to defendant characterizing the declaration provided by Mr. Sehorn. Mr. Smith responded, "I'm not calling for hearsay.... [¶] ... [¶] ... I'm asking her whether the declaration is true. Just whether he did."

The court stated, "I'm not going to consider—so all sides are—are aware, I'm not going to consider Mr. [Sehorn's] declaration; he's not here—[¶] ... [¶] ... He's not subject to cross-examination." Defendant interrupted the court to say that the court could call him. The court said that the hearing was scheduled four weeks earlier. Defendant began to respond to the court, and Smith admonished her, "please, since you have gone to the trouble to bring me here, would you please just respond to **348 questions—[¶] ... [¶] and not give speeches?"

When Smith asked her again about Sehorn's declaration, the court reiterated, "I'm not considering what Mr. [Sehorn] has said. He's not here. I'm going to base it on the evidence that was presented." Mr. Smith said, "Thank you. Nothing further of this witness, Your Honor." On recross examination, defendant admitted that Mr. Sehorn's wife filed a restraining order against defendant.

*1080 In rebuttal, plaintiff denied using any obscenities in responding to defendant's apology. She denied using obscene language as Ms. Sandberg had described.

At the close of the hearing, the trial court stated that it was "most impressed by the testimony of Mr. Michael and Ms. Clanton.... And these are people who really had no axe to grind." Ms. Sandberg's testimony, on the other hand, had limited relevance. The court found clear and convincing evidence creating a credible threat of violence. The court found that plaintiff "is more credible."

A restraining order was issued May 18, 2007, with an expiration date of May 18, 2009. A first amended restraining order was issued on June...