MANRODT v. ALBELO
California Court of Appeals, Fourth District, Third Division
July 17, 2023 (UNPUBLISHED)
Appeal from an order of the Superior Court of Orange County, No. 30-2021-01237555 Glen Mondo, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Law Office of Evan D. Williams and Evan D. Williams for Defendant and Appellant.
Kathleen Moore for Plaintiff and Respondent.
Defendant David Albelo appeals from the trial court's decision granting a civil harassment restraining order to petitioner Danielle Manrodt and her family. Contrary to Albelo's contentions on appeal, there was substantial evidence that Albelo engaged in a pattern of harassing conduct that caused Manrodt substantial emotional distress. The court fashioned an order that was reasonable in scope and as narrowly tailored as possible under the circumstances. Accordingly, the order is affirmed.
Albelo's statement of facts in his opening brief states the facts entirely from his point of view in an attempt to frame his arguments in the most favorable manner. This violates a fundamental principle of appellate review. "A party who challenges the sufficiency of the evidence to support a finding must set forth, discuss, and analyze all the evidence on that point, both favorable and unfavorable." (Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218, italics added.) Further, most of his record citations do not include the facts he claims they do, and many of his factual claims lack citations to the record. (Nwosu v. Uba (2004)122 Cal.App.4th 1229, 1246.) While these failures would justify deeming his arguments waived (ibid.), we exercise our discretion to consider the case on the merits. Counsel is advised against ignoring such fundamental appellate principles in the future.
Albelo, a 55-year-old man, and Manrodt, a 35-year-old woman, were neighbors in a small homeowners association (HOA) with six units and approximately a dozen residents. Manrodt was married and had a daughter who was between infancy and 23 months old during the relevant time period. Albelo and Manrodt did not live directly next door to each other, as there was a unit between their two units.
Manrodt filed the petition for a civil harassment restraining order for herself, her husband, and her daughter on December 22, 2021. A contested hearing was held on January 12, 2022. Manrodt testified that since they moved into the HOA in January 2020, Albelo had been engaged in an escalating pattern of photographing and video recording her family. Shortly after they moved in, Albelo started recording Manrodt and her then-infant daughter when they would walk by his front door. He would record them and follow them for a short time, then wait for them to return and follow them until Manrodt and her daughter went back into her unit. Over time, this began to escalate. Albelo would position his chair facing the Manrodt unit, to the point where he would sit outside of the neighbors' garages to record from a position that was closer to the Manrodt front door. Eventually, Albelo started to use a body camera instead of his cell phone, and Albelo would wait for Manrodt's husband to leave for work so that Albelo could record him.
On two occasions, December 10 and 24, 2021, Albelo came to the Manrodts' front door and filmed through the glass from "inches" away. Albelo testified that he was approximately seven to ten feet from the front door. After viewing Manrodt's photograph taken on December 24, the court determined that Alberlo was "less than a foot away from what appears to be a window in a door ...." Albelo agreed there was no reason to believe the photo had been tampered with and conceded he was much closer to the door than seven to ten feet. When asked to justify why he was so close to the door, Albelo responded: "I wanted to make sure I didn't get any reflections from the window." A video of the December 10 incident showed Albelo approximately three feet from the door.
Manrodt showed the court other pictures and videos documenting Albelo's conduct, including a video of Albelo recording over Manrodt's back fence. When asked why he was there that day, Albelo responded that "they had a delivery come in," to see if "something [was] being delivered that shouldn't be delivered." Manrodt had a photo of Albelo leaning against the unit, next to the Manrodts' garage door, which he said he did "because I was tired." Manrodt also showed the court a photograph of Albelo outside the Manrodt garage, "inches from" a car with Manrodt's husband driving. Albelo testified he was there "[j]ust getting ready to record him driving off the property" to "make sure he complied with the speed limit." The court asked if Albelo was preemptively filming in the hopes of catching some wrongdoing. Albelo responded: "If I don't film these people and then provide the HOA with video evidence, they won't even consider my complaints." Manrodt also showed the court a video of another morning when Albelo was waiting outside in the morning for her husband to leave for work.
Manrodt testified that because of Albelo's escalating pattern of conduct, as alleged in the petition, she and her husband were "extremely scared for our safety and for our daughter. He's constantly recording us. I don't know what he's doing with the recordings.... He's not sending them to the [HOA] board." Further, Albelo's conduct was causing "extreme levels of anxiety, extreme levels of stress and at this point, we feel like it's stalking because he's sitting outside waiting for us to leave and waiting for us to return, and we're scared."
There were no material factual disputes as to what acts Albelo had committed. Albelo admitted the essential facts that the petition alleged, conceding that he had recorded and/or photographed the Manrodt family as the petition set forth. He admitted to using a body camera. He claimed the Manrodts had violated HOA rules in the past and he "want[ed] to make sure [he] document[ed] any future" violations. Albelo stated that he followed and filmed Manrodt and her daughter while they were walking with their dog to make sure they cleaned up after the dog, despite not testifying to ever witnessing any such violation. He also testified a second dog had been without a leash "the last two days." He did not offer any video recordings or photographs as evidence of this claim.
Albelo attempted to justify his behavior by telling the court that he was trying to enforce the rules, not just as to Manrodt and her family, but other neighbors as well. He testified there were "issues" with residents breaking the rules in three out of the HOA's six units in the month prior to the hearing. Based on the evidence Albelo provided on this point, the court concluded "there's a very high level of animosity between yourself and more than one neighbor." Albelo also admitted that he had said to HOA board members that "they are not going to be here long," because he did not "believe a homeowners association is where they're going to be comfortable." He offered no basis for that opinion.
Albelo had been on the HOA board from January 2020 to October 2021, but was not on the board immediately prior to the petition's filing in December 2021.
The court noted that "Mr. Albelo has apparently appointed himself as the guardian of all the rules and regulations in the project . . .," which would not be a problem if he was doing nothing but filming violations, but his conduct of constantly recording in the hope of a possible violation had no legitimate purpose.
The court issued a civil harassment restraining order at the hearing's conclusion. The three-year order stated that Albelo was "not to harass, intimidate, molest, attack, strike, threaten, assault . . . hit, abuse, destroy personal property of or disturb the peace of Ms. Manrodt and her identified family members." Albelo was "to have no contact with them, directly or indirectly," and was "ordered to stay at least ten yards away from the Manrodt[s] . . ., their home, their job or workplace, their vehicle." The court also ordered Albelo, among other provisions, not to photograph or videotape the Manrodts, "unless he is videotaping a violation of law, that is state or local regulations or ordinances, or violations of the HOA CC&Rs or rules and regulations. He is not permitted, though, to lurk about filing in anticipation of a possible violation." Albelo now appeals.
An order granting an injunction is appealable as a final judgment on the merits. (Civ. Code Proc., § 904.1, subd. (a)(6).) There are no disputes as to the material facts - during the hearing, Albelo admitted following, photographing, and video recording Manrodt and her family in her neighborhood, through her front door, in her backyard, and in her husband's vehicle. While Albelo attempts to complicate matters, what this dispute really boils down to, as the trial court pointed out, is whether Albelo's conduct served a legitimate purpose or constituted harassment.
Subsequent statutory references are to the Code of Civil Procedure unless otherwise indicated.
A. Civil Harassment
Despite Albelo's numerous comments about the government "punishing" speech, this is not a criminal case and the concept of "punishment" is irrelevant. (See Russell v. Douvan (2003) 112 Cal.App.4th 399, 403 [purpose of restraining order is not to punish, but to provide prompt relief and prevent future harassment].) This is a civil case about the propriety of a restraining order. All restraining orders against individuals result in limitations as to what a person can and cannot do. That is why such orders may only be entered when consistent with due process and the relevant principles of law.
The relevant principle here is a civil harassment restraining order under section 527.6. Under that section, harassment includes "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 that which 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).) A "'[c]ourse of conduct' is 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 .... Constitutionally protected activity is not included within the meaning of 'course of conduct.'" (§ 527.6, subd. (b)(1).) "If the judge finds by clear and convincing evidence that unlawful harassment exists, an order shall issue prohibiting the harassment." (§ 527.6, subd. (i).)
Civil harassment orders may implicate First Amendment rights. In California, however, "speech that constitutes 'harassment' within the meaning of section 527.6 is not constitutionally protected, and the victim of the harassment may obtain injunctive relief." (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1250.) "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, supra, 112 Cal.App.4th at p. 403.)
B. Standard of Review
On appeal, we review the issuance of a civil harassment restraining order for substantial evidence, keeping in mind the clear and convincing evidence is required in the trial court. (Harris v. Stampolis (2016) 248 Cal.App.4th 484, 496; see Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005.) "The appropriate test on appeal is whether the findings (express and implied) that support the trial court's entry of the restraining order are justified by substantial evidence in the record. [Citation.] But whether the facts, when construed most favorably in [petitioner's] favor, are legally sufficient to constitute civil harassment under section 527.6, and whether the restraining order passes constitutional muster, are questions of law subject to de novo review." (R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188, fn.omitted.)
C. Harassing Conduct without Legitimate Purpose
As noted above, the facts here are essentially undisputed. Albelo conceded that he had photographed and/or recorded Manrodt and her family in the manner alleged by the petition.
We agree with the trial court that Albelo's conduct fell within the scope of section 527.6. His conduct of "constantly filming. . . in anticipation of a possible violation" had "no legitimate purpose." Albelo filmed Manrodt and her child while in public, in their yard, and through a window into their home. He waited for Manrodt and her husband to leave, standing around their garage, in order to film them in their cars. While he may have had a legitimate purpose at one point, Manrodt's conduct had devolved to harassment, if not worse.
Albelo offers several arguments as to why his course of conduct was not harassment. First, he claims that "having public actions filmed is natural consequence of living in society." (Boldfacing omitted.) He compares the situation here to a case where one neighbor sought a restraining order against another to stop playing basketball behind respondent's home. (Schild v. Rubin (1991) 232 Cal.App.3d 755, 758-759 (Schild).) The court found the evidence presented lacked all the requisite elements necessary for a harassment restraining order. (Id. at p. 761.) "A reasonable person must expect to suffer and submit to some inconveniences and annoyances from the reasonable use of property by neighbors, particularly in the sometimes close living of a suburban residential neighborhood. The Schilds' basketball playing occurred in a time, place and manner which constituted a reasonable use of their property." (Id. at p. 763.) The conduct at issue in Schild is not at all comparable to the conduct at issue here. At all times, the respondents in Schild were on their own lot, minding their own business, and enjoying their property. The same cannot be said here of a mother with a small child who feared having every step around her neighborhood followed by a man with cameras, who attempted to photograph her inside of her home, in her backyard, and who "lurk[ed] about" waiting for her or her husband.
Albelo attempts to argue that Manrodt lacks a right to privacy in public spaces, her backyard, and through the window of her home, but that is simply a red herring. This case is not about the right to privacy, but about the right to be free from harassing conduct by another. (§ 527.6, subd. (b)(3).)
This case is also not about whether Manrodt has a right to privacy in her home if there is an "open aperture" or in her backyard. Although we find Albelo's analysis of these issues to be incorrect, we need not address it.
We also reject the contention that the ubiquity of security and surveillance cameras makes any difference at all here. Being recorded by automated security cameras in locations like stores and office buildings, along with hundreds or thousands of other people, is not the same as having an individual waiting around a house or neighborhood for the express purpose of photographing or video recording a specific person. Manrodt was not "required to prove that the video recording is somehow more disturbing than the type of filming she experiences in the rest of her life." The difference is obvious, and such a requirement is stated nowhere in the statute. Moreover, she did testify as to why Albelo's actions were particularly disturbing - because his conduct had escalated and she was frightened for her safety. Video recording for security purposes in a store or other public place is neither an escalating pattern of conduct nor does it cause one to fear for their safety.
Because Albelo's conduct was harassing within the meaning of section 527.6, it was not protected speech. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., supra, 129 Cal.App.4th at p. 1250.) "[T]he right to free speech, '[a]lthough stated in broad terms, . . . is not absolute.'" (Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, 1147-1148 (Lemen) [injunction prohibiting the repetition of language the trial court determined were slanderous not an impermissible prior restraint].) After a hearing, speech may be enjoined if it violates the law, including laws regarding defamation, obscenity, and harassment, as long as the order is tailored as narrowly as possible to prevent the legal wrong while limiting speech as little as possible. (Id. at p. 1153.) Accordingly, we reject Albelo's argument that the court violated his First Amendment rights to film and video record by issuing any injunction. The only question remaining is whether the order here was properly drawn, which we shall address shortly.
D. Evidence of Substantial Emotional Distress
Albelo further argues that Manrodt did not provide sufficient evidence of emotional distress to justify a restraining order under section 527.6. Citing only Schild, supra, 232 Cal.App.3d at page 764, Albelo claims Manrodt was required to show that the harassment was so intrusive it prevented her from carrying out her daily activities. First, Schild does not so hold, and second, neither does section 527.6, which requires that a petitioner demonstrate that both she and a reasonable person would suffer "substantial emotional distress" from the harassing conduct.
"Substantial emotional distress" is not defined by the statute. In a criminal case under the stalking statute, Penal Code section 646.9, the court examined the meaning of "substantial emotional distress" in that statute, concluding: "Section 646.9 does not define the phrase 'substantial emotional distress,' and we are unaware of any court opinion clarifying the meaning as the phrase is used in the statute. At the very least, we can safely assume that the phrase means something more than everyday mental distress or upset. In other words, the phrase 'substantial emotional distress' entails a serious invasion of the victim's mental tranquility." (People v. Ewing (1999) 76 Cal.App.4th 199, 210 (Ewing).)
Schild, supra, 232 Cal.App.3d at pages 762-763, mentions the definition of "severe emotional distress" in the context of a cause of action for intentional infliction of emotional distress, noting it "means highly unpleasant mental suffering or anguish 'from socially unacceptable conduct' [citation], which entails such intense, enduring and nontrivial emotional distress that 'no reasonable [person] in a civilized society should be expected to endure it.'" Schild does not ultimately adopt this definition, instead quipping: "From our review of the record, we suspect that the bulk of any emotional distress suffered by the Rubins has been generated by the litigation in this case rather than by the noise from the Schilds' basketball playing." (Id. at p. 763.)
To the extent Schild might be interpreted as adopting the definition of "severe emotional distress" as identical to the definition of "substantial emotional distress," we disagree with it. "While the terms 'substantial emotional distress' and 'severe emotional distress' are similar, we do not view them as synonymous because 'severe' is a stronger adjective than 'substantial.'" (Ewing, supra, 76 Cal.App.4th at p. 210.) We find the definition "a serious invasion of the victim's mental tranquility" to be more appropriate, and the threshold is less than the standard for severe emotional distress. (Ibid.)
Albelo's opening brief, in a two-paragraph argument, states that Manrodt did not make the required showing regarding emotional distress, claiming (without record references) that she testified only that his conduct caused her "anxiety" and she was "only slightly annoyed, if at all." This is flatly contradicted by the record itself.
In her petition, Manrodt stated that the harassment "has caused extreme levels of anxiety!" She also stated Albelo's "behavior over the past two years has caused extreme psychological distress and anxiety. His behavior has us extremely worried and feeling unsafe as he continues to film our daughter and has zero reason for doing so.... I'm extremely concerned for our safety as his actions continue to escalate and grow more aggressive." Further, the mental stress Manrodt had experienced "has required ongoing therapy. I personally do not feel safe in my own home. I feel like he could break in at any minute as his behavior is erratic and extremely frightening. I have no idea how I'm going to raise a small child here with him continuing to stalk and harass us."
At trial, Manrodt testified similarly. When her family moved in, in January 2020, Albelo was "filming in front of his door [and] now . . . he's filming in front of our home and touching our home. [¶] So it's clearly escalating and it's making myself and my husband extremely scared for our safety and for our daughter. He's constantly recording us .... [¶] It's causing extreme levels of anxiety, extreme levels of stress ...." What Manrodt described, in her unchallenged testimony, was "a serious invasion of [her] mental tranquility." (Ewing, supra, 76 Cal.App.4th at p. 210.)
Based on the evidence, we find the trial court had substantial evidence from which it conclude there was clear and convincing evidence Manrodt had suffered substantial emotional distress because of Albelo's harassment. Further, the court also had sufficient evidence from which it could find a reasonable person would also suffer such distress in the same situation.
E. Language of the Order
Albelo next contends the court failed to tailor the order narrowly, and indeed claims the court could not have done so, because the order was an impermissible prior restraint on speech with "no narrower remedy." (Capitalization &boldfacing omitted.)
The issue of whether the requested order violated Albelo's First Amendment rights was never raised by Albelo at the hearing, and he offers no explanation for why it was raised for the first time on appeal. Accordingly, the issue is forfeited. (Phillips v. Campbell (2016) 2 Cal.App.5th 844, 853.)
Even if we were to find this argument was properly before us, we would conclude it lacks merit. As noted above, "[T]he right to free speech, '[a]lthough stated in broad terms, . . . is not absolute.'" (Lemen, supra, 40 Cal.4th at p. 1147.) Narrowly drawn injunctions are not prior restraints because the speech is not constitutionally protected. (Id. at p. 1153; see Phillips v. Campbell, supra, 2 Cal.App.5th at p. 853 [abuse under Domestic Violence Prevention Act is not protected speech].)
Albelo's argument on this point misstates the trial court's comments at the hearing. Albelo asserts the trial court recognized the order "affected" his First Amendment rights. What the trial court stated was that "the details of the order . . . become difficult because of, A, how close everybody is together and, B because there are some First Amendment freedom of speech type issues or freedom of conduct type issues that come into play here. [¶] As a result, the court will have to attempt to tailor the terms very carefully."
The court then proceeded to do just that. Finding there was over 30 feet of space between the two units, the court issued a 10-yard stay away order from the Manrodt property. The court also ordered Albelo not to photograph or videotape the Manrodts "unless he is videotaping a violation of law . . . or violations of the HOA CC&Rs or rules and regulations. He is not permitted, though, to lurk about filming in anticipation of a possible violation."
Photography and video recording generally fall within the parameters of protected activity, but using photographing and video recording as tools of harassment, or other illegal activities, does not. (Lemen, supra, 40 Cal.4th at p. 1146.) The court was required to restrict the activity to the minimum extent possible while still addressing the wrong. Here, the harassment, to a great extent, consisted of Albelo following Manrodt around, acting, as the trial court put it, "as the guardian of all rules and regulations." His persistent following of and waiting for Manrodt and her family became harassing. While Albelo may feel that not being able to record for no particular reason might harm "[t]he value of recording," he abused that "value" by recording and photographing Manrodt to the point that it became harassing conduct. The court's order restricting photography and recording unless there was a present violation did not prohibit all such activity by Albelo, and it was narrowly tailored to address the legal wrong. Accordingly, it was not an unconstitutional prior restraint.
F. Attorney Fees on Appeal
Manrodt requests her attorney fees on appeal pursuant to section 527.6, subdivision (s). She may file her request in the trial court after remittitur. (See Krug v. Maschmeier (2009) 172 Cal.App.4th 796, 802.)
The order is affirmed. Manrodt is entitled to her costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J., DELANEY, J.