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Sydney H., A Minor, Etc v. Wyatt D.

March 27, 2012

SYDNEY H., A MINOR, ETC., PLAINTIFF AND RESPONDENT,
v.
WYATT D., A MINOR, ETC., DEFENDANT AND APPELLANT.



(Super. Ct. No. CI62701)

The opinion of the court was delivered by: Hull , J.

Sydney H. v. Wyatt D.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Wyatt D. appeals from an order of the trial court enjoining him from coming within 25 yards of his elementary school classmate, plaintiff Sydney H., or from attending the school where they both had been enrolled since kindergarten. The court found defendant had harassed and bullied plaintiff over a substantial period of time, culminating in an incident in which defendant threatened plaintiff with a pair of scissors. Defendant contends there is insufficient evidence to support the order and the trial court abused its discretion in prohibiting him from returning to school. We reject both contentions and affirm the order.

Facts and Proceedings

Except for part of one year, plaintiff and defendant had been classmates at Richfield Elementary School since kindergarten.

On September 17, 2009, when the parties were in the fifth grade, defendant "dumped" plaintiff out of a swing during lunch recess. Plaintiff reported the incident to a teacher. Approximately 10 minutes later, defendant approached plaintiff while she was standing in line to return to class. He held in his hand a pair of scissors he had retrieved from the trash and said, "Hey, Sidney [sic], show me your face." He then stuck the scissors within three inches of plaintiff's face. Plaintiff was unable to back away because she was standing in front of a wall and there were two other students next to her. Plaintiff reported the scissors incident to a teacher as well, and defendant was immediately suspended. He was later expelled from Richfield for the remainder of the school year and forced to attend another school.

This was not the first incident of misbehavior by defendant directed at plaintiff. In the fourth grade, plaintiff was in physical education class and defendant was sweeping the bleachers nearby as punishment for some misdeed. Defendant was "really mad," took off one of his shoes and threw it at plaintiff. On occasion, defendant took food off of plaintiff's tray at lunch and ate it, told her she was "stupid," and said what she was wearing was "weird."

Defendant's misconduct in school was not directed at plaintiff alone. When plaintiff and defendant were in the third grade, plaintiff wanted to leave Richfield because defendant had been "bugging" the entire class so much that they could not get anything done. Richfield had a procedure whereby pink slips were issued to students for rules violations. Over the years, defendant had received 30 to 35 such pink slips. Defendant had also been sent to the principal's office on several occasions for rules violations.

Although defendant was expelled from Richfield for the remainder of the school year as a result of the scissors incident, the expulsion provided that he could return to school on January 4, 2010, if he satisfied four requirements, including maintaining his grades at the alternative school, maintaining appropriate behavior, and completing a program of counseling.

On October 14, 2009, plaintiff, by and through her guardian, filed a petition for order to stop harassment, requesting both an order to prohibit harassment and an order that defendant stay at least 100 yards away from plaintiff, her home and her school. The next day, the trial court issued a temporary restraining order (TRO) against defendant.

On December 17, 2009, the principal of Richfield notified defendant's parents that defendant had satisfied the requirements for his reinstatement and that defendant would be permitted to return to Richfield on January 4, 2010.

On January 5, 2010, while defendant was still subject to the TRO prohibiting him from returning to Richfield, the trial court conducted a hearing on plaintiff's request for an injunction. After the hearing, the court issued an order prohibiting defendant from coming within 25 yards of plaintiff and from returning to Richfield. On January 29, the court issued an injunction to that effect, which is set to expire on January 4, 2013.

Defendant appeals the injunction order. (Code Civ. Proc., ยง 904.1, subd. (a)(6).) He filed an opening brief raising two issues: (1) the evidence is insufficient to support the order, and (2) the trial court abused its discretion in prohibiting him from ...


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