IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
December 3, 2010
RICHARD KLINGENSMITH, PLAINTIFF AND RESPONDENT,
RONALD MIKULACO, DEFENDANT AND APPELLANT.
The opinion of the court was delivered by: Blease , P.J.
Klingensmith v. Mikulaco CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Plaintiff Richard Klingensmith obtained a civil harassment restraining order against his neighbor, Ronald Mikulaco. (Code Civ. Proc., § 527.6.) In this pro se appeal from the order granting the restraining order, Mikulaco claims Klingensmith "used misleading information an[d] outright lies to obtain his restraining order."
We reject his contention and shall affirm the order.
At all times relevant to this appeal, Klingensmith and Mikulaco lived on adjacent parcels along Green Valley Road in El Dorado Hills. Klingensmith, a subtenant caretaker, had lived in a trailer on one parcel with several cats since 2002. Mikulaco purchased his property around 2004, and lived there with his daughter.
The relationship between the men began to deteriorate around 2007. Mikulaco came to believe that Klingensmith was growing and/or selling marijuana on the property, and was unhappy about it. In 2007, a county code enforcement official informed Klingensmith his trailer could not be occupied without permits or a septic system. Klingensmith removed the trailer, but reinstalled it soon thereafter in the same spot, together with a port-a-potty. When Mikulaco demanded Klingensmith "provide [him] something that allowed him to bring back the trailer," Klingensmith responded that, with the addition of the port-a-potty, his occupancy was legal.
Sometime in May 2009, shortly before events leading to Klingensmith's petition, an anonymous complaint was filed against Klingensmith with county code enforcement for occupying the trailer without permits. Klingensmith then filed a complaint against Mikulaco for operating an unpermitted fruit stand on his property.
On May 26, 2009, Mikulaco spoke with code enforcement officials, who told him Klingensmith did not have permission to reside on the property with an unpermitted trailer and no septic system.
Mikulaco then sent Klingensmith two text messages: "Just got back from county to address your complaint. Your residing ILLEGALLY out there. This means u r trespassing as defined by the codes concerning easements. I also found out u were ordered to REMOVE your trailer two years ago" and "You are a fucking asshole and everyone knows it." Mikulaco also sent Klingensmith a voice mail message that he did not appreciate Klingensmith filing a complaint against him.
To obtain proof that Klingensmith was living illegally in the trailer, Mikulaco went to Klingensmith's property with a camera later that day. Klingensmith called the sheriff to report Mikulaco's trespassing.
While Klingensmith waited for the sheriff to arrive, Mikulaco put him in a "body hold" and pulled hair from his beard. The sheriff arrived, but made no arrest.
Two days later, Klingensmith petitioned for an injunction (Code Civ. Proc., § 527.6) prohibiting Mikulaco from harassing him, based on his declaration that on May 26, Mikulaco "physically attacked [him], and makes harassing phone calls and text messages"; "pulled hair out of [his] goatee"; "put [him] in [a] body hold"; and "threatened [him,] saying 'If I go to jail I'm going to kick your ass.'" Klingensmith's petition also stated, "I believe [Mikulaco] shot my cat in August 2008." The court issued a temporary restraining order pending a hearing.
In his answer to the petition, Mikulaco denied he threatened Klingensmith or pulled his beard.
At the hearing, Klingensmith testified that, after he called the sheriff on May 26, Mikulaco said, "I should just shoot you right now." Klingensmith responded, "Go ahead and hit me. If you hit me, I'm going to have you arrested," and Mikulaco pulled a chunk of Klingensmith's goatee out of his face. Klingensmith said, "[h]ere comes the sheriff" so that Mikulaco would release him, and then told Mikulaco, ". . . I am legally in the right and you are in the wrong. I will do whatever it takes to remove you from that property." Mikulaco responded by putting Klingensmith in a body hold, but released him when the sheriff actually arrived.
Klingensmith also testified that once in 2008, Mikulaco "bumped chests" with him; on another day in 2008, Mikulaco brandished a shotgun. Klingensmith admitted he had no evidence that Mikulaco shot his cat, but testified he feared for his life and the lives of his seven cats.
A friend of Klingensmith's, Adam Taylor, testified he witnessed (1) the 2008 chest bumping incident, in which Mikulaco ran over "cussing out, yelling, screaming, bumping into [Klingensmith and] trying to get [Klingensmith] to fight"; and (2) the 2008 gun brandishing incident, during which Mikulaco fired a round into a pond.
For his part, Mikulaco denied ever threatening Klingensmith, bumping chests with him, pulling his beard, grabbing any part of his body, making any harassing phone calls to him, or harming any of Klingensmith's cats. His attorney argued that Klingensmith filed the petition in retaliation for Mikulaco's having filed a code enforcement complaint against him.
The court granted Klingensmith's petition for a restraining order "[b]ased on the testimony given."
Code of Civil Procedure section 527.6, subdivision (a) provides: "A person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an injunction prohibiting harassment as provided in this section." Subdivision (b) of the statute defines "harassment" 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 plaintiff." (Code Civ. Proc., § 527.6, subd. (b).) Code of Civil Procedure "[s]section 527.6 is intended 'to protect the individual's right to pursue safety, happiness and privacy as guaranteed by the California Constitution.'" (Russell v. Douvan (2003) 112 Cal.App.4th 399, 403; Cal. Const., art. I, § 1.)
A trial court's decision to grant a permanent injunction rests within its sound discretion and will not be disturbed without a showing of a clear abuse of discretion. (Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912.) In determining whether the trial court abused its discretion when there are disputed factual issues, we review the trial court's findings under the substantial evidence standard, resolving all factual conflicts and questions of credibility in the respondent's favor and drawing all legitimate and reasonable inferences to uphold the judgment, so long as it is supported by evidence that is reasonable, credible and of solid value. (USS-Posco Industries v. Edwards (2003) 111 Cal.App.4th 436, 444; Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.)
In granting Klingensmith's petition for an injunction, the trial court found that Mikulaco's conduct constituted harassment as defined in Code of Civil Procedure section 527.6.*fn1 Mikulaco devotes his brief on appeal to rearguing the evidence presented at the hearing. He acknowledges that this is "a case of credibility and character" (original boldface), arguing the restraining order was "granted under false pretenses" and obtained with "misleading information an [sic] outright lies." He insists Klingensmith sought the restraining order for an improper motive: to retaliate against Mikulaco for having reported to county code enforcement officials that Klingensmith was living on vacant land without proper permits or a septic tank.
While these points may have been appropriate argument in the trial court, arguing them on appeal suggests Mikulaco misunderstands our standard of review. It is not our role to reweigh the evidence or make findings regarding credibility. Under California law, "[t]he power to judge the credibility of witnesses and to resolve conflicts in the testimony is vested in the trial court . . . ." (In re Carpenter (1995) 9 Cal.4th 634, 646.) "Where there is conflicting testimony, reviewing courts recognize that the trier of the facts has the better opportunity to judge the credibility of witnesses. In such a case the trial court's findings of fact, to the extent that they rest upon an evaluation of credibility, should be regarded as conclusive on appeal." (Estate of Fries (1965) 238 Cal.App.2d 558, 561, italics added; see also Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204.) The trial judge assessed the parties' credibility and resolved conflicting evidence in favor of Klingensmith. We cannot do otherwise.
The order granting the restraining order is affirmed.
RAYE ,J. MAURO ,J. Acting