Troutman v. Fager CA4/2

Opinion

Filed 12/15/23 Troutman v. Fager CA4/2 Opinion after vacating prior opinion NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

JOSEPH TROUTMAN,

Plaintiff and Respondent, E079449

v. (Super.Ct.No. CVSW2201438)

CHRISTOPHER FAGER, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Albert J. Wojcik, Judge.

Affirmed.

Christopher Fager, in pro. per., for Defendant and Appellant.

Joseph J. Troutman, in pro. per.; for Plaintiff and Respondent.

Christopher Fager appeals from an order granting a civil harassment restraining

order against him. He claims the trial court abused its discretion by not reviewing

exhibits he submitted at the hearing, and that the restraining order was improperly issued

1 because the petition did not satisfy all elements of Code of Civil Procedure1 section

527.6. We affirm.

BACKGROUND2

To avoid confusion, we refer to the named parties by their surnames. Defendant

and appellant Fager is romantically involved with Rachel F., who was previously married

to plaintiff and respondent Troutman. Rachel has a baby daughter by Fager, and two

sons by Troutman, O.T. and D.T., who were ages six and three, respectively, when the

incidents giving rise to the action began.

On March 7, 2021, shortly after learning that Fager was romantically involved

with Rachel, Troutman communicated with Fager over social media expressing what a

“shitty” thing it was Fager and Rachel were doing, and that Troutman’s sons did not

deserve this. Thereafter, the two men saw each other when Fager would bring Rachel to

Troutman’s residence to pick up her sons for visitation.

1 All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

2 On March 13, 2023, Fager filed (1) a motion to remove additional protected parties, as well as (2) a motion to augment the record on the same day, and another motion to augment the record on May 4, 2023. The two motions filed on March 13, 2023, lacking in any legal basis, are denied in their totality. On May 4, 2023, Fager filed another request to augment the record to include multifarious documents, most of which constituted inadmissible hearsay and matters irrelevant to the matter being tried. Embedded in this request at pages 11 and 12 are what appear to be the two exhibits that were admitted into evidence and considered by the trial court, although no exhibit stamp is shown. All other pages and parts of that augment request are based on irrelevant matters and inadmissible hearsay. With the exception of pages 11 and 12 of that request, the request to augment the record dated May 4, 2023, is denied.

2 Fager believed that Troutman was engaged in a “smear campaign” against him and

was using his sons in this process. O.T. informed Fager that they (presumably O.T. and

D.T.), were instructed to refer to Fager by a derogatory name.

On September 11, 2021, at Sunridge Park in Chula Vista, O.T. ran up to Fager’s

vehicle and struck it with his fist with sufficient force to leave a shallow, but visible dent.

Fager denied getting angry with O.T. regarding the incident, testifying that he told O.T.

that he, Fager, would pay for it. However, Troutman testified that Fager picked up O.T.

and shook him, telling the child that he was going to pay for it.

On December 1, 2021, O.T. struck Fager as he sat in the driver’s seat of Rachel’s

vehicle. Then, O.T. reportedly “went out the door” and said to his father, “Dad, thanks

for letting me do that,” which was offensive to Fager.3 Fager felt he needed to say

something to stop the children’s abusive behavior. As O.T. approached the Troutman

residence after being dropped off following the visit, Troutman heard Fager yell at O.T.,

in an angry voice, that he better show Fager respect.

Then Fager heard Troutman say something mean to Fager and called out to tell

Troutman to check his phone. When Troutman checked his phone, he found a lengthy

text message from Fager, described by Fager as “offering peace,” which included a

photograph of Fager and Rachel at a shooting range,4 accompanied by a lengthy text

3 The trial court sustained a hearsay objection as to the content of the statement.

4 The trial court reviewed the text message and accompanying photograph, which had been proffered as exhibits, but returned all exhibits to the offering parties. Fager [footnote continued on next page]

3 message. In part, the text message stated, “More importantly, over the years to come,

there will be times where I’m all that stands between your sons and their mother and

danger. [¶] Do you really think it is wise to fight against the man that will be protecting

[O.T.] and [D.T.] when you’re not around? It doesn’t serve you well, or your boys, or

anyone else for you to keep attempting to undermine us. I want to stop hearing that

you’re speaking disrespectfully about me and their mother immediately.” It went on to

state, “Rachel decided to no longer be your wife. Moving forward, if you insist on

continuing to attack a woman, or child, or me in any way, that’s not going to be good for

you.” “Back off now and move on with your life. Interact with our family respectfully.

Stay away from me and my daughter. Do those things, and we can all live in peace.”

Troutman considered this message to be a threat and sought civil harassment

restraining orders.5 In March 2022, shortly after the issuance of the temporary

restraining orders, which prohibited contact between Fager and Troutman as well as

Troutman’s sons, Rachel made a video call to her sons to tell them she was about to have

Fager’s baby. Fager jumped into the call to announce he was going to be a dad, despite

the no-contact order that was in place.

included the exhibits, which were not separately numbered from the other documents attached to his request dated May 4, 2023. We have reviewed pages 11 and 12 of Fager’s May 4, 2023 augment request and find that they support the trial court’s findings.

5 The original application and order to show cause respecting the restraining orders are not included in the clerk’s transcript; however, the register of actions includes references to the filing and the issuance of temporary restraining orders.

4 On June 2, 2022, a hearing on the matter took place, at which both Troutman and

Fager testified. After hearing the testimony and considering the exhibits offered into

evidence, the court issued the restraining orders prohibiting Fager from contacting or

coming within 100 yards of Troutman or his sons.

Fager appealed.

DISCUSSION

On appeal, Fager makes a couple of claims: (1) that the court abused its discretion

by not reading his submitted evidence before the hearing; and (2) that Troutman failed to

satisfy all the elements of Code of Civil Procedure section 527.6 in that there were no

explicit threats, no physical harm, and no pattern of harassment. Because the trial court

disagreed with Fager’s analysis, we must treat the second point as a claim of insufficient

evidence to support the judgment.

A. No Abuse of Discretion Has Been Established.

Fager argues that the court abused its discretion by “not reading [his] submitted

evidence file” prior to hearing the case. There are two problems with this assertion:

First, Fager has cited no legal authority that requires a court to read such information

before the hearing in the absence of a request made pursuant to Evidence Code section

402. Second, there was no direct request that the court read the “submitted evidence file”

prior to the hearing, so there is no adverse ruling. Failure to secure an adverse ruling

waives the objection. (Haskell v. Carli (1987) 195 Cal.App.3d 124, 129, citing

Fibreboard Paper Products Corp. v. East Bay Union of Machinists (1964) 227

Cal.App.2d 675, 698.)

5 At the inception of the hearing, defense counsel informed the court there was a

binder, a copy of which had previously been provided to opposing counsel, but there was

no express request that the court read it before hearing testimony. The court did indicate

it did not need a lot of detail because it had read the petition, as well as that it assumed

the defense would get into the allegations, and went on by saying, “And then if there’s

something to, I don’t know, ask questions about to get more detail about, or to point out

to me something that—written documents, by all means.”

Fager did not proffer any witnesses other than himself and no evidence besides the

text message and photograph, identified as Exhibits 1 and 2, were offered into evidence.

Fager has attempted to augment the record on appeal to include material (which we

assume was the same material in the binder), but none of the material is relevant to the

issues in Troutman’s petition because they have no bearing on whether or not Fager made

a threat. Fager’s arguments in the opening brief in which he discusses the binder,

confirm that he sought to introduce the material to cast Troutman as an abusive spouse or

parent. This was irrelevant.

However, the only issue before the court was whether the facts alleged in

Troutman’s petition were true; character evidence was not relevant. Whether Troutman

was abusive to his ex-wife or sons was not before the court to decide, so the evidence

would have been irrelevant even if it had been proffered into evidence.

Fager does not claim error respecting any other evidentiary rulings, so we find no

abuse of discretion.

6 B. Substantial Evidence to Support the Issuance of Restraining Orders.

Fager argues Troutman did not establish all the statutory elements to be entitled to

a civil harassment restraining order because there was only one text message with no

explicit threat and no prior physical assault, thus demonstrating no pattern of harassment.

We disagree.

We review for substantial evidence the trial court’s factual findings supporting its

decision to grant a restraining order, and we consider de novo whether the facts are

sufficient to constitute civil harassment under section 527.6.

A person who has suffered harassment as defined in section 527.6, subdivision (b),

may seek a temporary restraining order and an order after hearing prohibiting harassment

as provided in this section. (§ 527.6, subd. (a)(1).) “ ‘Harassment’ is unlawful violence,

a credible threat of violence, or 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).)

As used in section 527.6, a “ ‘[c]redible threat of violence’ is a knowing and

willful statement or course of conduct that would place a reasonable person in fear for the

person’s safety or the safety of the person’s immediate family, and that serves no

legitimate purpose.” (§ 527.6, subd. (b)(2), italics added; see Duronslet v. Kamps (2012)

203 Cal.App.4th 717, 725.)

7 The statute requires “clear and convincing evidence that unlawful harassment

exists.” (Code Civ. Proc., § 527.6, subd. (i).) We review the order granting the

injunction under section 527.6 for substantial evidence. (Harris v. Stampolis (2016) 248

Cal.App.4th 484, 497; Duronslet v. Kamps, supra, 203 Cal.App.4th at p. 725, citing

Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.)

“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.” (R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188.) “When reviewing a

finding that a fact has been proved by clear and convincing evidence, the question before

the appellate court is whether the record as a whole contains substantial evidence from

which a reasonable fact finder could have found it highly probable that the fact was true.”

(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.) We review the record in the light

most favorable to the prevailing party below and give appropriate deference to how the

trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the

evidence, and drawn reasonable inferences from the evidence” (Id. at pp. 1011-1012.)

In the present case, the court reviewed the allegations of the petition and heard the

testimony of both Troutman and Fager. While Fager asserts there was only one text

message, comprising the statement, “Joe, check your phone,” and no “course of conduct,”

the court was not required to find there was a “course of conduct” where it determined

there was a credible threat because the statutory language is in the disjunctive. Where the

restraining order is sought due to a credible threat of violence, a person is not required to

establish a pattern of conduct, thereby exposing the person to risk of serious harm.

8 After hearing Fager’s testimony about the escalating hostility between himself and

Troutman and considering the language of the text message, coupled with the photograph

(both of which the court admitted into evidence), the court found the threat to be credible.

Considering that Fager’s testimony about the content of the text message was

contradicted by the evidence in the exhibits, the court’s finding—including its credibility

assessments—was reasonable. Under the circumstances, the record supports the

judgment issuing the restraining order.

DISPOSITION

The judgment is affirmed. Costs are not awarded in this appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J.

We concur:

McKINSTER J.

CODRINGTON J.