Filed 9/3/13 Gamboa v. Molina CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
RAUL GAMBOA, B244650
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS 139426)
v.
PEDRO ANASTACIO MOLINA,
Defendant and Respondent.
APPEAL from orders of the Superior Court for the County of Los Angeles. Mark
Luevano, Temporary Judge, and Carol Boas Goodson, Judge. Affirmed.
Raul Gamboa, in pro. per., for Plaintiff and Appellant.
Pedro Anastacio Molina, in pro. per., for Defendant and Respondent.
____________________________________
SUMMARY
Plaintiff Raul Gamboa appeals from orders denying his request for a civil
harassment restraining order against defendant Pedro Anastacio Molina, plaintiff‟s
brother-in-law, and denying his motion for reconsideration. We affirm the orders.
FACTS
On September 19, 2012, plaintiff filed a request for a civil harassment restraining
order against defendant. Plaintiff alleged a three-year “pattern & practice of harassment
& intimidation,” with the most recent harassment being defendant‟s July 2, 2012 request
for a temporary restraining order (TRO) against plaintiff, a request that was denied. The
alleged harassment began in late 2008, after plaintiff began the process of evicting
defendant and his wife, plaintiff‟s sister, from the premises where they resided, near
plaintiff‟s home.
Plaintiff sought, in addition to stay-away orders, an order that defendant “[m]ay
not file any[] [c]laim accusing [plaintiff and family members] of wrong doing with any
public or private entity including: employers; social medium without notifying the Court
within the next business [day] of your actions & providing a copy of this Order to the
entity/agency.” Plaintiff sought an immediate order “that the office of L.A. District
Attorney, Child Protective Services & Law Enforcement be notified of this order.”
Plaintiff‟s description of the alleged harassment recited events occurring from
September 2008 through July 2012. These included: (1) a report of child abuse and
neglect by plaintiff and his wife in September 2008, by an anonymous caller (allegedly
defendant), concluded as unfounded; (2) an office hearing before the district attorney on
September 30, 2008, based on charges by defendant‟s wife that plaintiff committed a
battery (dismissed by the district attorney); (3) a criminal misdemeanor proceeding that
began in December 2008, in which defendant complained that plaintiff brandished a
weapon and made criminal threats; plaintiff was found not guilty in August 2010, and his
petition to seal and destroy the arrest records under Penal Code section 851.8 was granted
in August 2011; (4) a notification from the Department of Fair Employment and Housing
in June 2009 of the closure of a discrimination complaint defendant and his wife made
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against plaintiff and his wife after plaintiff evicted defendant; and (5) the closure in
October 2010 by the Department of Children and Family Services of another allegation
of abuse and neglect of plaintiff‟s children, with a finding that the allegation was false.
A criminal protective order restraining plaintiff during the criminal trial was
issued in January 2009 and terminated on August 26, 2010. Also during the criminal
proceeding, more claims were made by defendant of criminal threats made by plaintiff,
prompting the district attorney to seek to take plaintiff into custody in October 2009;
these claims were not proved. In March 2009, plaintiff‟s son reported a death threat
against him made by an unknown person. Plaintiff asserted (in this proceeding) the lug
nuts on his tire were loosened in November 2009 (and again in July 2011). Plaintiff
submitted a letter dated April 8, 2011, from Foothill Family Service, stating his daughter
was being treated for various behavioral and mental health symptoms, which “should
have a lot to do with her experiences at home when there were a lot of dramas going on
due to [defendant] making complaints about her father and calling the police causing
police to come frequently to her house and stressing her out.” On January 30, 2012,
plaintiff reported to police a phone call from a person whose voice he did not recognize,
telling him “we know how to get you in problems,” and “we know you have guns.”
Finally, on July 2, 2012, defendant requested a domestic violence restraining order
against plaintiff, saying that on June 30, 2012, plaintiff drove by his house and pointed
something at him “as if he was going to shoot me,” but defendant could not see what it
was. Defendant asserted that plaintiff had threatened numerous times to kill him, and
defendant was afraid plaintiff would carry out his threats. After a contested hearing on
July 19, 2012, with testimony from plaintiff, defendant and defendant‟s wife, the court
denied the request for restraining orders, finding defendant failed to carry his burden of
proof that plaintiff had committed or threatened domestic violence or equivalent conduct.
Two months later, plaintiff filed the request for civil harassment restraining orders
against defendant, as we have just described. (Plaintiff tried to file his civil harassment
petition in Pomona in mid-August, but the filing clerk informed him he had to file in
Pasadena, where plaintiff resided. When he tried to file in Pasadena, a clerk informed
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him he could not file the action against a relative and would be required to file for a
domestic violence restraining order. He did so, but sought further advice, and then filed
the current action at the Stanley Mosk courthouse.)
On October 11, 2012, after a contested hearing before Temporary Judge Mark
Luevano, the court denied plaintiff‟s request.
There is no transcript of the contested hearing at which the court denied plaintiff‟s
request for a civil harassment restraining order. In a motion for reconsideration plaintiff
filed on October 23, 2012, plaintiff states the court informed plaintiff that the acts he
described “did not rise to a basis for harm to Plaintiff by which he could seek relief
though granting of a restraining order”; that the filing of court actions against plaintiff by
defendant “did not constitute a basis for action by Plaintiff”; and that “any acts . . . by
[defendant] resulting in [plaintiff‟s] daughter[‟s] harm while unfortunate did not meet the
requirements for issuance of a Restraining Order.”
Plaintiff filed a notice of appeal on October 17, 2012. His motion for
reconsideration was argued and denied on November 28, 2012, the court (Judge Carol
Boas Goodson) finding plaintiff had not presented any new facts.
DISCUSSION
Code of Civil Procedure section 527.6 (section 527.6) authorizes a person who has
suffered harassment to seek an injunction prohibiting harassment. (§ 527.6, subd. (a)(1).)
“Section 527.6 was enacted „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.” (Brekke v. Wills (2005)
125 Cal.App.4th 1400, 1412.)
Harassment is 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. 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 petitioner.”
(§ 527.6, subd. (b)(3).) An injunction “shall issue prohibiting the harassment” if the court
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finds “by clear and convincing evidence that unlawful harassment exists . . . .” (§ 527.6,
subd. (i).)
Section 527.6 defines a “course of conduct” 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, making harassing telephone calls to an
individual, or sending harassing correspondence to an individual by any means,
including, but not limited to, the use of public or private mails, interoffice mail, facsimile,
or computer email.” (§ 527.6, subd. (b)(1).) However, “[c]onstitutionally protected
activity is not included within the meaning of „course of conduct.‟” (Ibid.)
Generally, the standard of review for an order denying injunctive relief is abuse of
discretion. (See Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137 [citing authority
concluding that “issuance or failure to issue a protective order under the DVPA
[(Domestic Violence Prevention Act, Fam. Code, § 6200 et seq.)] is reviewed for abuse
of discretion”; “injunctions issued under Code of Civil Procedure section[] 527.6 . . . ,
which prohibit[s] civil harassment, are reviewed to determine whether the necessary
factual findings are supported by substantial evidence”].)
Plaintiff makes several arguments.
First, plaintiff contends the trial court abused its discretion by applying a standard
applicable to domestic violence matters (ongoing acts of violence) rather than the
standard for section 527.6 civil harassment “resulting in intentional infliction of
emotional harm and economic loss.” Plaintiff says the hearing was “short and
abbreviated”; the court informed him “it had reviewed the record submitted and that there
were no current acts of violence that would allow the Court to issue a TRO to prevent any
acts of violence”; and the court “failed to take into account” that plaintiff was asking the
court “to restrain defendant from continuing to drag him into court costing him money
and lost wages and aggravating causing [sic] a relapse in his daughter[‟s] depression for
which she was back on medication as a direct result of Defendant‟s request for TRO on
July 19, 2012.” Plaintiff also asserts defendant was “a vexatious litigant” and “harassed
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[plaintiff] by means of abuse of process,” and so plaintiff should have been allowed to
proceed with his claim.
But plaintiff‟s brief itself shows the court reviewed the record and was fully
cognizant of the nature of plaintiff‟s claims. Plaintiff‟s brief and motion for
reconsideration indicate the court told plaintiff the conduct he described “did not rise to a
basis for harm to Plaintiff by which he could seek relief through granting of a Restraining
Order”; the filing of court actions against plaintiff “did not constitute a basis for action by
Plaintiff”; and “any acts . . . by [defendant] resulting in [plaintiff‟s] daughter[‟s] harm
while unfortunate did not meet the requirements for issuance of a Restraining Order.”
We cannot say the trial court abused its discretion. Most of the conduct plaintiff
alleged involves “constitutionally protected activity,” namely, defendant‟s right to
petition government authorities for redress of grievances. Section 527.6 excludes
constitutionally protected activity from the definition of a course of conduct constituting
harassment: “Constitutionally protected activity is not included within the meaning of
„course of conduct.‟” (§ 527.6, subd. (b)(1).) As for the other conduct plaintiff alleged,
the most recent was plaintiff‟s report to the police of the telephone threat on January 30,
2012, from a person whose voice plaintiff did not recognize, so the court correctly
concluded there were no current acts of violence to justify a restraining order. And,
while there may be other modes of redress for the vexatious filing of baseless claims and
misuse of the courts (see, e.g., Code Civ. Proc., § 391 et seq.), the civil harassment statute
does not provide such redress.
Second, plaintiff challenges the denial of his motion for reconsideration. But, as
the trial court concluded, plaintiff bases his claim on the same facts he presented to the
trial court in the first instance, and a motion for reconsideration must be “based upon new
or different facts, circumstances, or law . . . .” (Code Civ. Proc., § 1008, subd. (a); see
New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 208.)
Third, in the “conclusion” part of his brief, plaintiff contends his due process
rights were violated when he was denied his right to file his request for civil harassment
restraining orders in Pomona, and when the Pasadena clerk refused to accept his filing.
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(Plaintiff wanted to file at the Pomona courthouse because a hearing officer there had
heard and ruled on defendant‟s July 2, 2012 petition against plaintiff and was familiar
with the parties, the history and the records.) The only legal authority plaintiff cites is the
Los Angeles County Superior Court form, under Local Rules, rule 2.0, that indicates a
civil harassment petition may properly be filed where the cause of action arose or where
one or more of the parties reside. (LACIV 109 (rev. 03/11).) But a civil harassment
petition may also be filed “in central”; the presiding judge is authorized to apportion the
business of the court (Cal. Rules of Court, rule 10.603(b)(1)(B)); and in any event the fact
that a matter is heard in a courtroom other than the one preferred by a litigant does not
violate the litigant‟s right to due process of law.
DISPOSITION
The orders are affirmed.
GRIMES, J.
We concur:
BIGELOW, P. J.
RUBIN, J.
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