Tarango v. Dwyer, A115492 (Cal. App. 5/30/2007)

• Decision Date: 30 May 2007
• Docket Number: A115492
• Court: California Court of Appeals Court of Appeals
• Parties: PAMELA TARANGO, Plaintiff and Respondent, v. CHRIS DWYER, Defendant and Appellant.

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PAMELA TARANGO, Plaintiff and Respondent, v. CHRIS DWYER, Defendant and Appellant.

A115492

Court of Appeals of California, First Appellate District, Division Three

May 30, 2007

NOT TO BE PUBLISHED

Appeal from the Sonoma County Super. Ct. No. SCV238843.

SIGGINS, J.

Chris Dwyer appeals a restraining order issued in favor of Pamela Tarango pursuant to Code of Civil Procedure section 527.6.¹ We find sufficient evidence satisfied the statutory requirements for issuance of the order, and affirm.

BACKGROUND

Dwyer and Tarango live within several blocks of each other in Petaluma. Both own dogs. Dwyer owns two large huskies or malamutes. Tarango owns two Great Danes, a puppy named Zeus and its father, Calvin.²

Dwyer frequently walked his dogs past Tarango's house.³ Before the incident that triggered these proceedings, it appears that Calvin and the Dwyer dogs did not get along. There had been four confrontations between them. Animal control authorities were called at least twice and had asked Tarango to keep her dog on a leash and Dwyer to change his route when walking his dogs to avoid passing Tarango and Calvin's house.

On June 2, 2006, Tarango was out with Calvin and Zeus in front of a neighbor's house. Zeus was on a leash. Calvin, who may or may not have been leashed,⁴ was urinating (as dogs do) on a bush.

Dwyer approached with his two dogs on a 15-foot lead. Tarango repeatedly asked him to stop and to wait while she put Calvin and Zeus in the house. Dwyer kept walking forward with his dogs, who were barking and snarling. Calvin slipped his collar and loped towards Dwyer's animals. A dogfight ensued.

Tarango entered the fray to pull Calvin away and was bitten three times on her hand and wrist. Dwyer kicked and pummeled Calvin to deter him from fighting. Somehow the parties were able to separate the dogs and Dwyer and his dogs went on their way. As Dwyer left he told Tarango she had not heard the end of it, and that he would see that Calvin was put down.

Tarango obtained a temporary restraining order that prohibited Dwyer from walking his dogs on Tarango's block and required him to stay 100 yards away from her. After a two-day evidentiary hearing, the court granted a restraining order on the same terms to remain in effect until August 14, 2009.⁵ The court found that "defendant, while characterizing plaintiff as owning dangerous dogs often off their leash, continued to repeatedly walk his dogs down the street past plaintiff's house, ostensibly endangering himself, his then pregnant wife, and his dogs in the name of his right to traverse that street. [¶] And yet, the strongest inference from the testimony presented is that plaintiff has lived in the neighborhood for 30 years with long term neighbors who characterize her as a responsible dog owner whose adult Great Dane is a mind [sic ], passive animal. Likewise, Animal Control has not found her to be at fault regarding the care and control of her pets." The court found by clear and convincing evidence that "defendant has engaged in a knowing course of conduct directed at the plaintiff that would place a reasonable person in fear for her safety and has seriously alarmed, annoyed and harassed the plaintiff. Plaintiff has suffered substantial emotional distress as she so testified."

Dwyer filed this timely appeal.

DISCUSSION

Section 527.6 allows a person who has suffered harassment to seek a restraining order and injunction designed to prohibit further harassment. "The elements of unlawful harassment, as defined by the language in section 527.6, are as follows: (1) `a knowing and willful course of conduct' entailing a `pattern' of `a series of acts over a period of time, however short, evidencing a continuity of purpose'; (2) `directed at a specific person'; (3) `which seriously alarms, annoys, or harasses the person'; (4) `which serves no legitimate purpose'; (5) which `would cause a reasonable person to suffer substantial emotional distress' and `actually cause[s] substantial emotional distress to the plaintiff'; and (6) which is not a `[c]onstitutionally protected activity.' " (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762 (Schild).)

Dwyer attacks the sufficiency of the evidence offered in support of virtually each element of section 527.6. We review his claim under well-settled standards. "The trial court's decision to grant a permanent injunction rests within its sound discretion and will not be disturbed on appeal absent a showing of a clear abuse of discretion. [Citation.] Such continuing relief by injunction operates in the future. [Citation.] A reviewing court will exercise its independent judgment when it is required to interpret and apply a statute where the underlying facts are not in dispute. [Citation.] [¶] However, to the extent the trial court had to review the evidence to resolve disputed factual issues, and draw inferences from the presented facts, an appellate court will review such factual findings under a substantial evidence standard." (Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912.)

"When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics omitted.) "If this `substantial' evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment will be affirmed. In brief, the appellate court ordinarily looks only at the evidence supporting the successful party, and disregards the contrary showing. `Of course, all of the evidence must be examined, but it is not weighed. All of the evidence most favorable to the respondent must be accepted as true, and that unfavorable discarded as not having sufficient verity to be accepted by the trier of fact. If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed.' "(9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 364, p. 414, italics omitted.)

Dwyer first argues that this case involves a single incident rather than a "course of conduct." But the evidence shows that prior to the June 2, 2006, altercation Dwyer repeatedly walked his dogs in front of Tarango's house; there were four prior confrontations between the animals; at least two reports were made to animal control authorities; and both Tarango and animal control had asked him to change his route. This sufficiently proved "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose . . . ." (§ 527.6, subd. (b)(3).) That Tarango may have failed to keep her dogs properly contained or that she did not offer detailed testimony about each of these prior episodes is immaterial.

Dwyer also contends the evidence failed to show that Tarango actually suffered "substantial emotional distress" as required by section 527.6, subdivision (b) because there was no corroborating medical or psychological evidence. He relies primarily on Schild, supra, 232 Cal.App.3d 755. Schild, however, is inapposite, as it involved enjoining entirely innocuous and benign conduct: neighbors playing basketball on their backyard court during daylight hours. In the absence of any "medical, psychological or other evidence" to that effect (id. at p. 763), the court not surprisingly found the plaintiff failed to prove that the mere sounds of basketball being played three to five times a week for up to 30 minutes during daylight hours caused him substantial emotional distress.

Here, we are not dealing with such an innocuous and benign activity as playing basketball. California law recognizes the potential dogs may have to cause injury and, we submit, fear. (Civ. Code, § 3342; see also Priebe v. Nelson (2006) 39 Cal.4th 1112; Johnson v. McMahan (1998) 68 Cal.App.4th 173.) Tarango testified she was afraid of Dwyer and his dogs, that she was afraid to walk outside by herself, and that since she obtained the temporary restraining order she had "stopped looking over my shoulder and being afraid." Considering her testimony, the history of altercations between the animals, the fact that Tarango had already been...