IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Protection Order No. 88395-0-I for DIVISION ONE KARRI LEE ARELLANO,
Respondent, UNPUBLISHED OPINION
and
GEORGE HAMMER,
Appellant.
SMITH, J. — Kerri Arellano obtained an antiharassment protection order
against neighbor George Hammer after a dispute arose concerning a gate across
the roadway providing access to both parties’ properties. The commissioner
granted Arellano’s antiharassment protection order. Hammer moved for revision
of the commissioner’s order. The court denied Hammer’s motion. Hammer
appealed, claiming the trial court misconstrued the evidence, misapplied the law,
and violated his due process rights. We disagree and award Arellano fees on
appeal.
FACTS
Kerri Arellano and George Hammer are neighbors. Their properties have
a shared easement, allowing both Arellano and Hammer to access a public road.
Hammer installed an electric gate on the easement, which was controlled by a No. 88395-0-I/2
“clicker.”1 The gate will not automatically open or close without the use of a
clicker.
On March 6, 2025, law enforcement responded to a call from Arellano,
who reported that Hammer closed the gate on her vehicle before driving off.
Arellano recounted to Officer Grant Soule that she was driving down the road
behind Hammer when he stopped immediately past the gate and blocked the
road. Arellano saw Hammer activate the gate, and it closed on her car. Arellano
said she could hear a beeping noise after the gate closed, indicating the clicker
was being hit multiple times “to effectively get the gate to forcibly close into the
vehicle.” Officer Soule reported Arellano sounded “extremely frustrated” and
could hear her crying on the phone. Arellano stated this was a “non-stop issue
with Hammer and that she wants it to stop.”
By the time Officer Soule arrived on scene, Hammer had left. When
Officer Soule approached Arellano’s car, he “could see that the gate was in fact
partially closed and pressed up against [Arellano’s] vehicle.” He noted there
were scrapes on Arellano’s car and she did not “have a way to get the gate to
open back up.” Arellano explained to Officer Soule that after Hammer installed
the gate, he only provided one clicker to her family, and the remote stopped
working. As a result, she had to build a second “road” around the gate to get in
and out of her neighborhood.
In his report, Officer Soule noted “[t]here is extensive call history between
Arellano and Hammer, including but not limited to disturbances, court order
1 “Clicker” is used synonymously with “remote control.”
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violations, civil complaints, and paper services where Hammer was served with a
court issued protection order.” Most of the calls to 911 were initiated by Arellano
bringing complaints against Hammer for his behavior and actions. Officer Soule
attempted to contact Hammer that day, but he reached Hammer’s voicemail and
left a message.
The following day, Officer Soule spoke with Hammer at his home.
Hammer told Soule, “I’m not really sure if I want to talk to you guys because I
don’t want to feed into [Arellano’s] delusions.” Hammer denied anything
happening with Arellano the day before and proceeded to show the officer
footage he had taken earlier in the week of Arellano yelling at him. When Office
Soule asked Hammer if he “saw Arellano . . . at all,” Hammer became
argumentative and diverted the questions back to the video of Arellano. Officer
Soule told Hammer he would be referring charges on him to the prosecutor.
Hammer did not acknowledge the statement and continued to talk about the
video of Arellano.
Officer Soule told Hammer he would be leaving if Hammer did not want to
talk more about the incident from the previous day. Hammer stopped talking
about the video and said, “She got behind my motorhome and I can’t see behind
my motorhome.” Hammer then went back to talking about the issues he had with
Arellano. Officer Soule noted Hammer was “extremely argumentative with us
and displayed a clear dislike if not hatred for Arellano,” and would try to deflect
the conversation away from the incident with the gate.
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Officer Soule concluded his report by stating, “Based on the above
circumstances I developed probable cause on Hammer for RCW 9A.49.090
(Malicious Mischief 3rd degree).” Officer Soule noted he believed “Hammer's
actions appeared deliberate in nature and his seeming lack of remorse after
driving off showed a malicious intent inflict damage on [Arellano] vehicle and
potentially trap [Arellano] next to the gate.”
In April 2025, Arellano moved for a protection order. The court denied the
motion and ordered the case to be transferred to superior court, explaining “the
action would affect the use or enjoyment of real property for which the
respondent has a cognizable claim.” On May 16, 2025, Arellano and Hammer
appeared in court for a hearing on the motion for a protection order.
During her argument to the court, Arellano described the “substantial and
escalating pattern of harassment” that Hammer engaged in. She explained how
Hammer had installed surveillance cameras along the property line, aimed at her
home, and had violated her family’s privacy and safety. When Arellano built a
fence to block the cameras, he moved them higher. She stated that Hammer’s
actions had “caused significant emotional distress.” She also described Hammer
trespassing onto her property and “climb[ing] a ladder to film us over the fence.”
Arellano also discussed the gate, noting that despite multiple requests,
Hammer failed to provide reliable access. Arellano described a time when her
daughter was choking and first responders struggled reach her home because
the gate would not open. Arellano also described for the court the incident when
Hammer closed the gate on her vehicle. Arellano concluded by stating,
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“Hammer’s actions are not isolated and accidental; they’re targeted, sustained
and deeply hurtful. My family, especially my children, live in fear and under
constant surveillance.”
Hammer denied Arellano’s allegations. He maintained he installed the
gate at Arellano’s request, and Arellano was upset because she believed he was
trying to extort money from her for the cost of the gate. Concerning the clicker
for the gate, Hammer stated Arellano asked for five clickers and he told her that
she can get duplicates online. Hammer then played the video of the gate
incident for the court. When the court asked Hammer what he thought the video
showed, Hammer replied, “It shows that [] the gate was lightly on her back
bumper, that her daughter could have moved it away easily. They distracted the
camera, they moved the car and caused damage to where she wanted it to be.”
Hammer attempted to show the court other videos and pictures, alleging
they would depict Arellano’s aggressiveness and hostility, but the court noted it
was “acutely aware that there’s hostility in this situation,” and unless the evidence
showed something else, it would not admit the evidence. Additionally, the court
was concerned that in one of the videos, it appeared Hammer was recording
Arellano without her knowing: The Court: All right, can I ask you about this? This – the camera appears to be pointed down. Was she aware that she was being recorded? Mr. Hammer: No.
The court allowed Hammer to admit two videos: the one involving the gate
incident and another where Arellano discusses easement issues with Hammer.
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The court began its ruling by stating the definition of harassment under
RCW 7.105.010(37)(a). The court continued by observing there was a clear
existence of a dispute and the allegations that Hammer had pointed surveillance
videos towards Arellano’s property and recorded Arellano without her knowledge
were “unrefuted.” The court acknowledged that Arellano is “savvy enough” to go
online and get information about a clicker, but Hammer was the individual “that
has all the information regarding the clickers.”
Concerning the gate incident, the court concluded Hammer’s interpretation
of the events was not what was reasonably depicted from the video evidence:
“Hammer wants the Court to believe that it shows [Arellano] staging an incident.
What I watched was somebody that was stuck at the gate that clearly did not
have a clicker.” The court noted Arellano’s daughter clearly could not pull the
gate off the car, and the police report indicated the car was stuck when Officer
Soule arrived. As to Hammer’s claim that Arellano’s daughter walked off camera
knowing the camera would follow her, so Arellano could move the car and
purposefully cause damage, the court found this explanation not credible.
Instead, the court found that Arellano’s daughter “walks away from the camera
clearly upset. She notices the camera following her, and she walks forward to
see if it follows her everywhere she goes, and it does. She didn’t know that
before she backed up.”
The court concluded: [T]he court finds [Arellano]’s version of events to be more likely true. She’s the more credible party in this matter. It’s clear to the Court that this has gone beyond just a dispute and has devolved
6 No. 88395-0-I/7
into [Hammer] engaging in acts of harassment against [Arellano], including recording her when she’s not aware of it, including the Court finds it more likely than not, sir, that you did close that gate on her.
The court also found Hammer’s actions caused “substantial emotional distress”
to Arellano and “would cause any reasonable person substantial emotional
distress were this kind of behavior to be directed at them.” The court granted
Arellano’s motion for an anti-harassment order.
The court worked with Arellano and Hammer to understand the distance
from Arellano’s property line to Hammer’s shop and home, so it could determine
the protection order’s restrictions. Arellano noted her house was about 100 feet
from the property line, and Hammer indicated the same for his home.2 But,
Hammer stated his shop was only five feet from the line. Ultimately, the court
determined that Hammer was to stay 100 feet away from Arellano when she was
on her property and 1,000 feet away when they were in the community. The
court also ordered Hammer to surrender his weapons.
Hammer moved for revision of the commissioner’s order. In addition to
continuing to deny the claims discussed in the first hearing (i.e., his security
cameras were only for protection, he did not close the gate on Arellano),
Hammer contended “[t]oo much emphasis was placed on [Arellano’s] emotion
display,” and “[t]he court then issued an emotionally driven order to surrender all
weapons.” After hearing arguments, the court took the matter under advisement.
The court denied revision. Hammer appealed.
2 Arellano estimated it was closer to 200 feet.
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ANALYSIS
Hammer contends the trial court erred when it denied his motion for
revision because it (1) misconstrued the evidence and relied on unsupported
factual findings, (2) misapplied the law, and (3) violated his substantive due
process rights. We disagree.
We review the denial of a motion for revision for an abuse of discretion. In
re Domestic Violence Protection Order for Timaeus, 34 Wn. App. 2d 670, 676,
574 P.3d 127 (2025). A court abuses its discretion if its decision is “ ‘manifestly
unreasonable, or exercised on untenable grounds, or for untenable reasons.’ ” In
re Receivership of Applied Restoration, Inc., 28 Wn. App. 2d 881, 891, 539 P.3d
837 (2023) (internal quotation marks omitted) (quoting MONY Life Ins. Co. v.
Cissne Fam LLC, 135 Wn. App. 948, 952-53, 148 P.3d 1065 (2006)). It is an
abuse of discretion to rely on facts unsupported by the record. State v.
Greenfield, 21 Wn. App. 2d 878, 887, 508 P.3d 1029 (2022). We review
questions of law de novo. Knight v. Knight, 178 Wn. App. 929, 937, 317 P.3d
1068 (2014).
We review a trial court’s findings for substantial evidence. In re Marriage
of Black, 188 Wn.2d 114, 127, 392 P.3d 1041 (2017). “Evidence is substantial
when sufficient to persuade a fair-minded person of the truth of the matter
asserted.” Timaeus, 34 Wn. App. 2d at 679. We defer to the trier of fact on
questions of witness credibility, conflicting testimony, and persuasiveness of the
evidence. Knight, 178 Wn. App. at 937.
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Factual Findings
Hammer contends the trial court misconstrued the evidence and relied on
facts unsupported by the record. Specifically, Hammer alleges the trial court
erred when it found (1) Arellano did not intentionally damage her car on the gate,
(2) Arellano’s daughter could not have easily moved the gate, (3) Arellano’s
daughter did not know the camera was following her movements, and
(4) Hammer did not refute Arellano’s allegations of video surveillance. We
disagree.
First, Hammer contends the trial court erred when it found that “Arellano
merely followed her daughter’s instructions to try [to] drive out.” The court never
indicated that Arellano was only responding to her daughter’s instructions. The
court, after watching the video, merely noted that Arellano’s daughter instructed
Arellano to back up and Arellano tried that, but the court never said Arellano did
not try and move the car on her own accord.
Next, Hammer claims the trial court erred when it found Arellano’s
daughter could not have easily moved the gate off the car. However, the court
watched the video and stated, “I watched her try to pull the gate off the car. It
wasn’t easy.” The video shows Arellano’s daughter leaning back to pull the gate
and quicky releasing it, indicating it was too heavy to continue to pull. Because
we defer to the trial court concerning persuasiveness of evidence and conflicting
testimony, we will not disturb these conclusions.
Third, Hammer challenges the trial court’s finding that Arellano’s daughter
did not know the camera would follow her movements. Hammer claims the only
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purpose of Arellano’s daughter moving off camera was to move the car out of
view so Arellano could intentionally damage her vehicle. The video supports the
court’s finding that Arellano’s daughter walked away from the camera and then
was surprised to see it following her. But, even if Arellano’s daughter knew the
camera was there, it would not affect the court’s conclusion that Hammer, not
Arellano, caused the damage to the car, because the video was not the only
evidence the court relied on. The court also considered Officer Soule’s report,
which indicated the car was stuck and Arellano could not move without causing
damage to her vehicle, and Arellano’s testimony, which the court found more
credible than Hammer.
Finally, Hammer maintains the court erred when it found Hammer did not
refute Arellano’s allegations that Hammer was using his cameras to record her
and her family. Hammer’s claim misconstrues the court’s statements. The court
did not say it was undisputed that Hammer was using his cameras to record
Arellano, the court said it was undisputed Hammer had his surveillance cameras
pointed at Arellano’s property. This finding is supported by Hammer’s own
testimony where he admitted he had recorded Arellano without her knowledge
and had cameras pointing at the property line between their homes.
The court’s findings are supported by substantial evidence in the record,
including its assessment of the credibility of witnesses, which we do not disturb
on appeal. The court did not abuse its discretion.
10 No. 88395-0-I/11
Application of Law
Hammer claims the court erred when it determined harassment occurred
because (1) the court never applied the factors of RCW 7.105.010(7)(b), (2) no
evidence of substantial emotional distress existed, and (3) Hammer never
engaged in a “course of conduct.”3 We conclude the trial court properly applied
the law.
Under RCW 7.105.225(1)(f), “[t]he court shall issue a protection order if it
finds by a preponderance of the evidence that the petitioner has proved . . . that
the petitioner has been subjected to unlawful harassment by the respondent.”
“Unlawful harassment” can be proved in two ways: (a) A knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, harasses, or is detrimental to such person, and that serves no legitimate or lawful 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 petitioner; or (b) A single act of violence or threat of violence directed at a specific person that seriously alarms, annoys, harasses, or is detrimental to such person, and that serves no legitimate or lawful purpose, which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner. A single threat of violence must include: (i) A malicious and intentional threat as described in RCW 9A.36.080(1)(c); or (ii) the presence of a firearm or other weapon.
3 Hammer also claims the trial court erred to the extent it treated the gate incident as a “single act of violence” and based its finding of unlawful harassment on that incident. But the court did not predicate the antiharassment order on a single act of violence under RCW 7.105.010(37)(b), it based the order on a “course of conduct.” The gate incident was merely the basis for including the “no harm” provision in the order.
11 No. 88395-0-I/12
RCW 7.105.010(37). A “course of conduct,” as put forth in subsection (a),
requires “a pattern of conduct composed of a series of acts over a period of time,
however short, evidencing a continuity of purpose.” RCW 7.105.010(7)(a).
“Course of conduct” may include any form of communication, except
constitutionally protected communication. RCW 7.105.010(7)(a).
To determine whether a course of conduct serves any legitimate purpose,
the court should consider the following: (i) Any current contact between the parties was initiated by the respondent only or was initiated by both parties; (ii) The respondent has been given clear notice that all further contact with the petitioner is unwanted; (iii) The respondent's course of conduct appears designed to alarm, annoy, or harass the petitioner; (iv) The respondent is acting pursuant to any statutory authority including, but not limited to, acts which are reasonably necessary to: (A) Protect property or liberty interests; (B) Enforce the law; or (C) Meet specific statutory duties or requirements; (v) The respondent's course of conduct has the purpose or effect of unreasonably interfering with the petitioner's privacy or the purpose or effect of creating an intimidating, hostile, or offensive living environment for the petitioner; or (vi) Contact by the respondent with the petitioner or the petitioner's family has been limited in any manner by any previous court order.
RCW 7.105.010(7)(b).
Here, to issue an antiharassment protection order, the court needed to
find that Hammer subjected Arellano to unlawful harassment either under
12 No. 88395-0-I/13
RCW 7.105.010(37)(a) or (b). Under subsection (a),4 the court had to determine
Hammer engaged in a knowing and willful course of conduct, which served no
legitimate purpose, and resulted in Arellano suffering substantial emotional
distress.
1. Legitimate Purpose
Hammer contends his actions served a legitimate purpose, and the court
erred when it did not address the factors under RCW 7.105.010(7)(b). While the
court did not address the factors explicitly, it’s findings touched on the relevant
factors, and it did not err by not finding a legitimate purpose.
Here, Hammer maintains applying the factors of RCW 7.105.010(7)(b)
supports his position that he was operating the cameras for the legitimate
purpose of protecting himself and his property. Hammer claims factor one
supports this position because he had not “said one word to her in a year and a
half, two years.” But Arellano mentioned instances of Hammer trespassing on
her property and filming her and her family. Hammer conflates initiating contact
with speaking the first word or speaking at all. With regard to factor two,
Hammer maintains Arellano has never included in a sworn statement clear notice
that all future contact is unwanted. The court could conclude from the evidence
—including Arellano’s multiple calls to law enforcement and videos Hammer
presented—that further contact was unwanted. As to the third factor, the court
found Hammer’s conduct “has gone beyond just a dispute and has devolved into
Mr. Hammer engaging in acts of harassment against Ms. Arellano.” The court—
4 In its oral ruling, the court found harassment under subsection (a).
13 No. 88395-0-I/14
relying on Hammer’s video evidence, the police report, and the parties’
testimony—found a pattern of conduct designed to harass Arellano. Finally,
Hammer concedes the fifth factor “arguably weighs in Arellano’s favor to the
extent that she argued the fence line recording had ‘the effect [if not the purpose]
of creating an intimidating, hostile or offensive living environment’ because she
disliked any camera usage.”5 (Alteration in original.)
Hammer’s actions went beyond the use of cameras to surveil his property.
For these reasons, the court did not err by failing to find Hammer’s conduct did
not serve a legitimate purpose.
2. Substantial Emotional Distress
Hammer next contends the court erred when it found Arellano suffered
“substantial emotional distress,” as required by RCW 7.105.010(37)(a).
“Substantial” is not defined by RCW 7.105, but when interpreting a statute, we
give words their plain meaning. In re Marriage of Herridge, 169 Wn. App. 290,
297, 279 P.3d 956 (2012). Webster’s defines “substantial” as “considerable in
. . . amount.” WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1734 (2002).
Washington case law has discussed conduct rising to the level of causing
substantial emotional distress. In State v. Kintz, Theresa Westfall was walking
with her kids when a van repeatedly drove by her, slowing down each time. 169
Wn.2d 537, 540-41, 238 P.3d 470 (2010). The court found this repeated conduct
would cause a reasonable person to suffer substantial emotional distress, and
5 Factors four and six are inapplicable since neither party acted under statutory authority and no previous court orders restricting contact existed.
14 No. 88395-0-I/15
did cause Westfall substantial emotional distress, as evidenced by her “real fear.”
Kintz, 169 Wn.2d at 556. In State v. Askham, Gerald Schlatter received multiple,
anonymous e-mails threatening to ruin his professional and social life by
informing law enforcement about manufactured pornographic activities. 120 Wn.
App. 872, 876, 86 P.3d 1224 (2004). Schlatter repeatedly testified that he felt
threatened by the e-mails. Askham, 120 Wn. App. at 883-84. The court noted
the e-mails were the “only evidence in the record that could arguably establish
substantial evidence of emotional distress,” but found “that a reasonable fact
finder could find that the course of conduct was such as would cause emotional
distress and that it did in fact cause emotional distress.” Id.
Here, Hammer contends “at best Arellano suffered mild annoyance” from
the security cameras, and the gate incident “could only be deemed ‘generally
emotionally disturbing.’ ” But substantial evidence in the record supports a
finding that Arellano suffered substantial emotional distress. Arellano testified
Hammer’s actions “shattered” her family’s sense of safety and they “live in fear”
of Hammer’s constant surveillance. Arellano described multiple incidents where
she was denied access to her property via the easement and where Hammer
vandalized her property. Officer Soule’s report noted “Arellano sounded
extremely frustrated . . . and at one point I could hear her begin to cry as she
talked about how this has been a non-stop issue with Hammer and that she
wants it to stop.”
15 No. 88395-0-I/16
Because substantial evidence exists in the record to support a finding that
Arellano suffered substantial emotional distress, the lower court did not abuse its
discretion.
Due Process
Hammer maintains the court applied the antiharassment statute in an
unconstitutional manner by depriving him of his use and enjoyment of real
property. We conclude the antiharassment statute is constitutional as applied to
the facts of this case.
Challenges to the constitutionality of a statute are questions of law and
reviewed de novo. City of Redmond v. Moore, 151 Wn.2d 664, 668, 91 P.3d 875
(2004). Both the United States Constitution and the Washington State
Constitution guarantee that individuals will not be deprived of “life, liberty, or
property, without due process of law.” U.S. CONST. amend. XIV, § 1; CONST.
art. I, § 3.
An as applied challenge to the validity of a statute “ ‘is characterized by a
party’s allegation that application of the statute in the specific context of the
party’s actions or intended actions is unconstitutional.’ ” Fields v. Dep't of Early
Learning, 193 Wn. 2d 36, 434 P.3d 999 (2019) (quoting Moore, 151 Wn.2d at
669). If a statute is unconstitutional as applied, future application in similar
contexts is prohibited, but the statute is not completely invalidated. Moore, 151
Wn.2d at 669. We assume statutes are constitutional, and the burden to prove
unconstitutionality is on the challenger. City of Seattle v. Evans, 184 Wn.2d 856,
861-62, 366 P.3d 906 (2015).
16 No. 88395-0-I/17
A law regulating the use and enjoyment of property is unconstitutional only
if it “ ‘fails to serve any legitimate governmental objective,’ making it ‘arbitrary or
irrational.’ ” Yim v. City of Seattle, 194 Wn.2d 682, 694, 451 P.3d 694 (2019)
(quoting Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 542, 125 S. Ct. 2074, 161
L. Ed. 2d 876 (2005)). Under RCW 7.105.310, “the court shall have broad
discretion to grant such relief as the court deems proper, including an order
that . . . [r]estrain[s] the respondent from knowingly coming within, or knowingly
remaining within, a specific distance from a specific location.”
Here, the protection order served the legitimate interest of protecting
Arellano and her family. Hammer contends the trial court could have imposed
narrower restrictions by using the property line as a divider, but the court was not
required to impose the least restrictive means. Additionally, the court questioned
how law enforcement could enforce an order that says, “respect the property
line.” The court took testimony from both parties concerning the distance of their
houses from the property line and tailored the order in such a way that would
allow Hammer full use of his property and only limit use if Arellano was within
100 feet of Hammer: Mr. Hammer is to stay 100 feet away from her when she is on her property. So if you see her, you need to stay a hundred feet away. Beyond that, if you see her out in the community, you are not to approach within a thousand feet of her, her vehicle, her workplace.
The court used its discretion to determine 100 feet was an appropriate distance
to maintain Arellano’s safety while still allowing Hammer use of his land.
17 No. 88395-0-I/18
Because the court’s order served a legitimate governmental interest and
did not unreasonably restrict Hammer’s use of his property, we conclude no
constitutional violation occurred.
Attorney Fees
Arellano requests attorney fees on appeal under RAP 18.1,
RCW 7.105.310(1)(j), and RCW 4.84.185. Hammer contends fees are not
warranted because his appeal was proper and not frivolous.
RAP 18.1 provides that applicable law may grant a party the right to
recover reasonable attorney fees or expenses on review. When a court grants a
protection order, the court may “[r]equire the respondent to pay the administrative
court costs and service fees . . . including reasonable attorneys’ fees.”
RCW 7.105.310. Additionally, a court may award attorney fees if “the position of
the nonprevailing party was frivolous and advanced without reasonable cause.”
RCW 4.84.185.
We conclude Arellano, as the prevailing party in this action, should be
awarded fees under RCW 7.105.
We affirm.
WE CONCUR: