Brisi v. Wallimann - Easements; Firearms order removed by DCA

Brisi v. Wallimann

California Court of Appeals
UNPUBLISHED, 2001 WL 1674575
December 24, 2001

Summary of Opinion

Plaintiffs Brisi have an easement on defendant’s Wallimann’s property. When they drive their horses on that easement, they claim defendant Wallimann harrassed them by calling them names, accusing them of making unauthorized commercial use of the easement and photographing them. The trial court entered an order requiring defendant to maintain a distance of at least 20 feet from the plaintiffs and prohibiting her from photographing them. The trial court also ordered defendant not to own or possess firearms for three years. She appealed.

In this opinion, the Court of Appeals upholds the trial court’s orders except for the order prohibiting possession a firearm. That order was not authorized by law and is set aside.

Text of Opinion

Defendant and appellant, Martha Wallimann (appellant), appeals from an injunction issued against her and in favor of Hans-Gunter Brisi and Ann M. Brisi, plaintiffs and respondents (respondents). The injunction issued following a hearing on respondents' petition for injunction prohibiting harassment pursuant to Code of Civil Procedure section 527.6. The trial court granted an injunction which ordered: (1) a 20-yard stay away against appellant; (2) that appellant not take pictures of respondents or their invitees; and (3) that appellant relinquish all firearms and be denied the right to acquire any firearms during the three-year term of the injunction. We will vacate that part of the order pertaining to firearms but in all other respects affirm the injunction order.

The appellate record consists of a clerk's transcript. There is no reporter's transcript or settled statement. (Cal. Rules of Court, rule 4.)

The petition alleges that appellant and respondents are neighbors, that respondents have easement rights over appellant's property, and that during respondents' use of the easement, appellant "yells, screams, and harasses us in effect stating that we may not ride past her house." The declaration of respondent Ann M. Brisi submitted with the petition also asserts that appellant surveils and photographs respondents while respondents are on their own property and that appellant has told respondents that they may not use the easement and may not ride horses down the easement of the property. The clerk's transcript also includes a declaration of appellant in which she admits that she took pictures of Ann M. Brisi and did tell her not to ride a horse and buggy on the easement. Appellant disputes respondents' claims that they were only making personal use of their property. Appellant claims they were using the property unlawfully for commercial purposes as a horse business. Appellant took the photographs in order to provide them to county officials to prohibit respondents from making "unlawful uses of their property .... without first obtaining a use permit." Appellant acknowledged respondents' right to use the easement to get to and from their property but disputes their right to use the easement as part of an arena, stable, or horse business.

The injunction order indicates that a hearing was held with both parties and their counsel present. Following the hearing, the court issued its order requiring appellant to stay at least 20 yards away from respondents, not to take pictures of respondents or their invitees, and directing appellant to immediately relinquish possession of any firearms in her possession to local law enforcement or to sell those firearms to a licensed gun dealer and enjoining appellant from purchasing, receiving or attempting to purchase or receive a firearm while the order was in effect. The order provides for a three-year term.

It is appellant's duty to affirmatively show error by an adequate record. Error is not presumed. (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712; Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 72.) This appellate record does not contain a reporter's transcript. The record is devoid of any requests by either party for a reporter's transcript. Nor is there any record that either party requested a court reporter at the time of the hearing in order to preserve a record of the evidentiary proceeding. This court cannot speculate from the clerk's transcript what evidence the trial court heard and considered. Therefore, this court must assume there was substantial evidence to support the order. (Ford v. State of California (1981) 116 Cal.App.3d 507, 513.) When an appeal is based upon the judgment roll alone, a reversal cannot be ordered except for a fatal error on the face of the judgment. (Ibid., quoting from Utz v. Aureguy (1952) 109 Cal.App.2d 803, 806.) This court must presume that there was substantial evidence presented to the trial court to support the three-year order, the 20-yard stay away, and the prohibition against photographing respondents or their invitees. There is nothing on the face of those portions of the order which appears unlawful or improper. We reject appellant's contention that, given the proximity of the easement roadway to her house, she will be in violation of the order every time respondents merely use the roadway. We do not read the order to result in such absurdity. Rather, we give the order a reasonable and commonsense interpretation consistent with its purpose to prevent harassment of the nature alleged in the petition. To that end, we read the 20-yard stay-away order as intending to preclude the verbal and physical harassing behavior alleged in the petition rather than mere unintentional proximity while the parties are appropriately and lawfully using their own property. (Cf. California Satellite Systems, Inc. v. Nichols (1985) 170 Cal.App.3d 56, 71.)

The portion of the order which orders appellant to relinquish her firearms and prohibits her from acquiring firearms is another matter. We review this part of the order under the abuse of discretion standard of review. (Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 445-446.)

An injunction may be granted when it appears by the complaint that the plaintiff is entitled to the relief demanded. (§ 526.) The scope of an injunction order is limited by the allegations of the complaint. In a proceeding brought under section 527.6, the statutory remedy is limited to enjoining the harassing conduct alleged in the petition. Any remedy which goes beyond that purpose is not authorized by the statute. (Marquez-Luque v. Marquez (1987) 192 Cal.App.3d 1513, 1517.)

In Marquez-Luque, the executors of an estate filed a section 527.6 petition against a beneficiary who resided in the decedent's home. The trial court enjoined the beneficiary from committing further harassment. That part of the order was not challenged on appeal. The trial court also ordered the beneficiary removed from the home. On appeal, this part of the order was reversed because (1) the eviction order was not authorized under section 527.6, and (2) there was no evidence that the beneficiary's mere presence in, or possession of, the home was harassing. (Marquez-Luque v. Marquez, supra, 192 Cal.App.3d at pp. 1515-1516, 1517.)

In Kobey v. Morton (1991) 228 Cal.App.3d 1055, the court reversed the trial court's grant of a section 527.6 injunction order in favor of the defendant and against the plaintiff because the defendant had not filed a cross-complaint against the plaintiff alleging harassment. The court held that minimal due process standards required that a party receive formal notice of the claim in the form of a petition before an injunction can issue against that party.

On this record, the firearm relinquishment order cannot stand. First, neither the petition nor the supporting written declarations request such an order or complain of appellant's use of firearms. Thus, it does not appear that appellant was on notice before the evidentiary hearing of any contention that her use of firearms constituted harassment. Due process considerations are implicated when orders are made which are not even prayed for in the petition.

Second, the verified petition specifically alleges that appellant has not committed acts of violence or threats of violence against respondents. The order requiring appellant to be dispossessed of all firearms for three years is inconsistent with the allegations of the petition. Presumably, a restrictive firearm order would be warranted if there were evidence of harassing conduct arising out of the use of firearms which harmed or threatened harm to respondents. The petition states there was no such conduct.

Third, the firearm order is not authorized by the statute. This court has no record of the evidentiary hearing held in this case, but even assuming that there were some evidence of harassing conduct on the part of appellant involving the use of firearms, that would not justify the broad sweep of this order. An order prohibiting the brandishing or discharging of firearms would be authorized as an appropriate order under section 527.6 based on evidence that appellant was discharging or threatening to discharge a firearm in a harassing manner against respondents. This order, however, goes well beyond what is necessary to achieve the aim of enjoining such harassing conduct. The instant order is excessive in a manner similar to the eviction order found improper in Marquez-Luque. Just as in Marquez-Luque the eviction order was reversed because mere presence in or possession of the home was not harassing, it cannot be said that the mere ownership or possession of firearms is harassing to others. Accordingly, it was an abuse of discretion to issue the firearm order in paragraph 7 of the order.

In regard to the other injunctive orders, appellant argues that her actions were constitutionally protected; however, appellant has failed to show by the appellate record that this argument was presented to the trial court. Points not made in the trial court may not be raised for the first time on appeal. (Rossiter v. Benoit, supra, 88 Cal.App.3d at p. 710; Damiani v. Albert (1957) 48 Cal.2d 15, 18.) Therefore, this court will not address the issue.


Paragraph 7 of the injunction order is vacated. The balance of the order is affirmed. Each party shall bear his or her costs on appeal.

Nothing contained herein is tendered as nor should it be considered as legal advice.  What is legal is not necessarily justice.  Almost all of reality is non-"published", ergo, what is legally affirmed is always a retarded misrepresentation of reality.   Use at your own risk!