Diamond View Limited v. Herz

180 Cal. App. 3d 612, 225 Cal. Rptr. 651, 1986 Cal. App. LEXIS 1533
CourtCalifornia Court of Appeal
DecidedApril 30, 1986
DocketCiv. 25800
StatusPublished
Cited by26 cases

This text of 180 Cal. App. 3d 612 (Diamond View Limited v. Herz) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Diamond View Limited v. Herz, 180 Cal. App. 3d 612, 225 Cal. Rptr. 651, 1986 Cal. App. LEXIS 1533 (Cal. Ct. App. 1986).

Opinion

Opinion

SPARKS, J.

Code of Civil Procedure section 527.6 authorizes a “person” who has been harassed to obtain an injunction prohibiting any further ha *614 rassment. The principal question in this case is whether a business entity is a person within the meaning of the statute. We hold that it is not.

Defendant Paul Herz appeals from the granting of an injunction pursuant to Code of Civil Procedure section 527.6 restraining him from alarming, annoying or harassing Diamond View Ltd. (Diamond View), a limited partnership, and its manager, Kit Doering.(Doering), and requiring him to remain outside the premises of two taverns owned by Diamond View. Defendant contends that a limited partnership is not a person in whose favor an injunction can be granted under the statute. He further contends that the pleadings did not allege a knowing and willful course of conduct aimed at a specific person and for that reason the injunction was also improperly issued in favor of Ms. Doering. Finally, he asserts that there are procedural irregularities in the cost bill filed in this case.

In the published portion of this opinion we consider and resolve the first contention. In the unpublished portion we consider the two remaining contentions. We first hold there that the injunction was properly issued in favor of Ms. Doering because the record reflects that the petition was amended on the day of the hearing to allege a cause of action for personal harassment against her. Finally, we remand the case for further proceedings on the award of attorney’s fees.

Procedural and Factual Background

On January 2, 1985, Diamond View “dba Hotel Mt. Lassen, Black Rock Tavern & The Western Room” filed a petition against defendant for an injunction prohibiting harassment pursuant to Code of Civil Procedure section 527.6. Various individuals, including Kit Doering, joined in the petition as plaintiffs. 1 The acts of harassment specified in the original petition were these: “Defendant, when patronizing Plaintiff’s es *615 tablishment, becomes drunk or otherwise beligerent [sz'c] and harasses, annoys, and starts fights with Plaintiff’s patrons.”

Declarations of six employees of Diamond View were filed in support of the request for a temporary restraining order. In general they allege that defendant becomes drunk in the bars in the hotel and then annoys or picks fights with other patrons. They also contain the following specific allegations concerning defendant’s belligerent behavior in Diamond View’s establishments: On October 27, 1984, defendant threw a punch at another patron in the Western Room without provocation. On November 2, 1984, he was observed throwing an unprovoked punch at another patron in the Western Room. On December 18, 1984, he provoked a fight with another patron in the Black Rock Tavern.

Based on these declarations, a temporary restraining order was granted in favor of all the plaintiffs. (See § 527.6, subd. (c).) The terms of that order are not challenged here and we have no occasion to consider them. Acting as his own counsel, defendant then filed a response to the petition, alleging that the plaintiffs were not persons in whose favor an injunction could be granted pursuant to Code of Civil Procedure section 527.6. He further claimed that he did not provoke any altercation and that his conduct was not directed against plaintiffs. His response also challenged the petition on the grounds that it did not state a cause of action against him.

An evidentiary hearing was held but no reporter’s transcript, agreed statement or settled statement of that hearing has been furnished by either party. 2 The minutes of court reflect that five witnesses testified in favor of plaintiffs. Defendant was the only witness on his own behalf. After the hearing, the court announced its decision to issue an injunction as prayed for in favor of all plaintiffs and instructed counsel for plaintiffs to prepare the order. Defendant then filed an objection to the proposed order. After a hearing on the objections, the court narrowed the scope of its earlier ruling by limiting it to Diamond View and Doering and then signed its formal order. Under this final order, defendant was prohibited *616 from alarming, annoying or harassing Diamond View and Doering. He was ordered to remain outside the premises of the Black Rock Tavern and the Western Room, and prohibited from loitering around the entrance to either. He was also ordered to remain at least 10 yards from Doering and to refrain from contacting her by telephone. Finally, defendant was ordered to pay attorney’s fees and costs in the aggregate sum of $2,758. This appeal followed.

Discussion

I

In 1978 the Legislature enacted Code of Civil Procedure section 527.6, a special statute designed to afford protection against harassment. 3 (Stats. 1978, ch. 1307, § 2. p. 4294.) This statute authorizes a “person who has suffered harassment” to obtain a temporary restraining order and injunction against the harassing conduct and provides an expedited procedure to obtain such an injunction. (See generally, 6 Witkin, Cal. Procedure (3d ed. 1985) §§ 269-271, pp. 231-234.) Defendant contends that Diamond View is not a person in whose favor an injunction can be granted under the statute. Diamond View argues that the term “person” is not limited to natural persons and includes partnerships and corporations. Given the context in which the term is used and the legislative history of the statute, we find Diamond View’s argument unconvincing.

The notoriously ambiguous term “person” has long plagued the law. The usual question is whether it includes artificial entities such as corporations, partnerships and associations. (See e.g., Chronicle Pub. Co. v. Superior Court (1960) 54 Cal.2d 548 [7 Cal.Rptr. 109]; Painless Parker v. Board of Dental Exam. (1932) 216 Cal. 285 [ 14 P. 2d 67]; People v. City of Oakland (1891) 92 Cal. 611 [28 P. 807]; Prudential Ins. Co. v. Small Claims Court (1946) 76 Cal.App.2d 379 [173 P.2d 38]; Oil Workers Intl. Union v. Superior Court (1951) 103 Cal.App.2d 512 [230 P.2d 71].) Because of this uncertainty, the term is frequently defined, in varying ways, in the preliminary provisions of the different codes. (See e.g., Food & Agr. Code, § 38; Cal. U. Com. Code, § 1201, subd. (30); Civ. Code, § 14; Corp. Code, § 18; Evid. Code, § 175; Fin. Code, § 18; Fish & G. Code, § 67; Gov. Code, § 17; Harb. & Nav. Code, § 19; Health & Saf. Code, § 19; Ins. Code, § 19; Lab. Code, § 18; Pen. Code, § 7; Pub. Resources Code, § 2004; Pub. Util. Code, § 205; Rev. & Tax. Code, § 19; Sts. & Hy. Code, § 19; Veh. Code, § 470; Wat. Code, § 19.) Not infrequently, these codes contain the proviso *617

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Bluebook (online)
180 Cal. App. 3d 612, 225 Cal. Rptr. 651, 1986 Cal. App. LEXIS 1533, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diamond-view-limited-v-herz-calctapp-1986.