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Phillips v. Campbell

California Court of Appeals, Second District, Sixth Division

August 23, 2016

AMY LEE PHILLIPS, Plaintiff and Respondent,
v.
JAMES EUGENE CAMPBELL, JR., Defendant and Appellant.Party2###)

         Superior Court County of San Luis Obispo No. 15FL-0054 Gayle Peron, Commissioner

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[Copyrighted Material Omitted]

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         COUNSEL

         James Eugene Campbell, Jr., in pro.per., for Defendant and Appellant.

         Lvovich & Szucsko, Terry A. Szucsko and Hannah R. Salassi, for Plaintiff and Respondent.

         OPINION

         YEGAN, J.

         Sitting as trier of fact, a trial court may draw its own inferences and conclusions from the evidence when hearing a matter brought pursuant to the Domestic Violence Prevention Act (DVPA). (Fam. Code, § 6200 et seq.)[1] This includes the power to factually find a “dating relationship” within the meaning of the DVPA even though the parties characterize their relationship as a friendship that does not involve “dating” as that term is

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commonly understood. (See e.g., Fibreboard Paper Products Corp. v. East Bay Union of Machinists (1964) 227 Cal.App.2d 675, 696-697 [39 Cal.Rptr. 64] (Fibreboard).)

         James Eugene Campbell, Jr., appearing in propria persona, appeals from a DVPA restraining order prohibiting him from harassing or contacting respondent and compelling him to stay at least 500 yards away from her person, residence, and workplace. In addition to claiming that the parties did not have a dating relationship, appellant contends that the trial court (1) erroneously denied his motion to dismiss the case, (2) erroneously granted the restraining order because his conduct was nonviolent, and (3) violated his First Amendment rights of freedom of speech and expression.[2] We affirm.

         Factual and Procedural Background

         In March 2013 a Tennessee court issued a protective order requiring appellant to stay away from and have no contact with respondent. The order expired in March 2014.

         In January 2015 in the County of San Luis Obispo, respondent applied for a domestic violence restraining order against appellant. Respondent, a professional cyclist, declared that she had “met [appellant] 2 1/2 years ago through cycling.” She had been friends with him for several months. Appellant “expressed an interest in moving forward in [the] relationship, ” but respondent “informed [him] that [she] was not interested in moving forward..., and [she] wanted to just be friends.” “One night, at 3:30 am, [appellant] came to [respondent’s] house, banging on the door and windows.” Thereafter, appellant repeatedly harassed respondent by sending text messages to her, posting her personal information and photos of her on Facebook, posting videos of her on YouTube, and sending “private messages to individuals sharing personal information about [her].” In text messages to respondent, appellant called her a “psycho evil witch” and “a compulsive liar” who had “lied” about him and “destroyed [his] life.”

         The matter was set for a hearing on February 19, 2015. On that date, respondent’s counsel appeared in court. Respondent was “on a bicycle Tour in New Zealand.” Appellant, who lived in Florida, appeared in propria persona via the telephone.

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         At the beginning of the hearing, appellant told the court: “[M]y understanding is the [respondent] has chosen to be out of the country, knowing that the court date was today. I would ask that the court dismiss the case.” The court did not rule on the motion. It put the matter over until 3:15 p.m. At that time, the court said, “This case... is going to take a lot longer.” The court continued the hearing to February 26, 2015. Appellant did not object.

         On February 26, 2015, appellant again appeared in propria persona via the telephone. Respondent was personally present with her counsel. After extensive argument, the trial court found that “there was a relationship [between the parties] that qualifies as a dating relationship and that the communications and interaction from [appellant] to ...


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