Filed 12/21/15 Rodriguez v. Piercy CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

SANTIAGO RODRIGUEZ,

Plaintiff and Respondent,

v.

DAVID PIERCY,

Defendant and Appellant.

 B257941

 (Los Angeles County

 Super. Ct. No. GS015518)

APPEAL from an order of the Superior Court of Los Angeles County, Mary 

Thornton House, Judge. Affirmed.

David N. Piercy, In Pro. Per., for Defendant and Appellant.

No appearance by Plaintiff and Respondent.

_____________________________
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INTRODUCTION

David Piercy filed a Code of Civil Procedure Section 425.161 motion to strike 

Santiago Rodriguez’s petition for a restraining order. The trial court granted the 

restraining order but failed to rule on Piercy’s motion. We conclude that any error in 

failing to rule on the section 425.16 motion was harmless because the court’s grant of the 

restraining order demonstrates that Piercy’s motion would have been denied. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

Piercy and Rodriguez vehemently disagree concerning the events surrounding the 

Trayvon Martin case in Florida. Starting as early as September 2013, Piercy and 

Rodriguez used social media to argue about the trial, and to personally attack each other. 

On May 2, 2014, Piercy filed a petition for a civil harassment restraining order against 

Rodriguez in the Fresno County Superior Court. The court granted a temporary 

restraining order against Rodriguez on May 5, 2014, but on June 2, 2014, denied Piercy’s 

request for a permanent restraining order. 

On June 13, 2014, Rodriguez filed a petition for a restraining order against Piercy 

pursuant to section 527.6 in the Los Angeles County Superior Court. In the petition, 

Rodriguez accused Piercy of stalking and harassing him and his wife and posting their 

personal information online. Rodriguez also stated that Piercy had threatened him with 

violence. In his reply declaration, Rodriguez elaborated on the alleged harassment, 

stating that Piercy had assaulted him and his wife, stolen his identity, threatened him with 

jail time, and suggested he was tracking Rodriguez’s location with an online program. 

Rodriguez stated that he and his wife felt intimidated by Piercy’s actions and were fearful 

that if the court did not issue a restraining order Piercy would increase the level of 

harassment. 

 

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

indicated.
3

The court scheduled a hearing for July 3, 2014, that was later continued until 

July 24, 2014. On July 21, 2014, Piercy filed a section 425.16 special motion to strike 

the petition for a civil harassment restraining order. In compliance with section 425.16, 

the court scheduled a hearing on the motion for August 14, 2014. On July 24, 2014, the 

trial court heard testimony regarding the requested restraining order from Rodriguez and 

his wife. Afterwards, without having ruled on the section 425.16 motion, the trial court 

granted Rodriguez’s request for a permanent restraining order. Piercy appeals. 

DISCUSSION

Sufficiency of the Evidence

Piercy contends that the evidence is insufficient to support the restraining order. 

In assessing whether substantial evidence supports the trial court’s decision, we will 

analyze whether “there is any substantial evidence, contradicted or uncontradicted, which 

supports the finding.” (Kimble v. Board of Education (1987) 192 Cal.App.3d 1423, 

1427.) An appellate court is “without power to judge the effect or value of the evidence, 

weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the 

evidence or in the reasonable inferences that may be drawn therefrom.” (Ibid.) 

The trial court must take relevant testimony to determine whether there has been 

unlawful harassment. (Schraer v. Berkeley Property Owners’ Assn. (1989) 207 

Cal.App.3d 719, 733 (Schraer).) However, the court is not required to make a statement 

of its specific findings of fact, or describe how the facts presented satisfy the statutory 

elements of harassment. (Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1112

(Ensworth).) Live testimony is not required in support of the petition; the court may 

decide the matter on declarations. (Id. at pp. 1110-1111.) Although the trial court did 

take testimony, there is no transcript in the record. Therefore, in considering the 
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sufficiency of the evidence for the restraining order, we base our analysis solely on the 

declarations.2

Section 527.6 defines harassment as “a knowing and willful course of conduct 

directed at a specific person which seriously alarms, annoys, or harasses the person, and 

which serves no legitimate purpose.” (§ 527.6 subd. (b).) Furthermore, “[t]he 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 plaintiff.” (Ibid.) 

Under section 527.6, the trial court must find unlawful harassment exists by clear and 

convincing evidence. (Schraer, supra, 207 Cal.App.3d at p. 733.)

Rodriguez describes frequent unwanted phone calls, threats of violence, and 

exposure of his, and his wife’s personal information in his declaration. Rodriguez 

believes that Piercy is tracking his location with an online program. Rodriguez admits 

that he and his family are intimidated, and fearful of Piercy, and are worried that if the 

court denies the restraining order it may “embolden Piercy,” and “increase the degree of 

harassment” they have to endure. 

The evidence in Rodriguez’s declaration demonstrates that Piercy committed 

intentional acts that caused substantial emotional distress to Rodriguez and his wife. 

Rodriguez was intimidated and fearful of further harassment. Furthermore, Piercy’s 

conduct appears to serve no legitimate purpose but rather seems calculated to cause 

emotional distress. The restraining order is supported by substantial evidence. 

Failure to Rule on the Section 425.16 Motion Is Harmless Error.

Piercy also claims the trial court erred when it ruled on the merits of his petition 

without ruling on his section 425.16 motion. 

“Section § 425.16, ‘commonly referred to as the anti-SLAPP statute’[] [citation] is 

intended ‘to provide for the early dismissal of unmeritorious claims filed to interfere with 

 

2 While ordinarily the failure to provide a record of the oral proceedings would 

preclude review for the sufficiency of the evidence (In re Estate of Fain (1999) 75 

Cal.App.4th 973, 987), because the record before us includes the declarations, we are 

able to reach the merits.
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the valid exercise of the constitutional rights of freedom of speech and petition for the 

redress of grievances.’ [Citation.] The section authorizes the filing of a special motion 

that requires a court to strike claims brought ‘against a person arising from any act of that 

person in furtherance of the person’s right of petition or free speech under the United 

States Constitution or the California Constitution in connection with a public issue . . . 

unless the court determines that the plaintiff has established that there is a probability that 

the plaintiff will prevail on the claim.’ (§425.16, subd. (b)(1).) 

“Section 425.16 ‘“requires that a court engage in a two-step process when 

determining whether a defendant’s anti-SLAPP motion should be granted.”’ [Citation.] 

‘“First the court decides whether the defendant has made a threshold showing that the 

challenged cause of action is one arising from protected activity. [Citation.] ‘A 

defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause 

[of action] fits one of the categories spelled out in section 425.16, subdivision (e)’ 

[citation].” [Citation.] . . . [¶] If the defendant makes this showing, the court proceeds to 

the second step of the anti-SLAPP analysis. [Citation.] In the second step, the court 

decides whether the plaintiff has demonstrated a reasonable probability of prevailing at 

trial on the merits of its challenged causes of action. [Citations].’” (Hunter v. CBS

Broadcasting, Inc. (2013) 221 Cal.App.4th 1510, 1519 (Hunter).)

Section 425.16 requires an early determination, to prevent meritless litigation from 

imposing avoidable burdens on the parties. To this end, when a motion is filed all 

discovery proceedings in the action are automatically stayed until there is a ruling on the 

motion. (§ 425.16, subd. (g)), and the hearing on the motion is to be scheduled not later 

than 30 days after the motion is served, unless the court’s docket requires a delayed 

setting. (Id. at subd. (f).) 

Section 425.16 applies to a petition for a civil harassment restraining order under 

section 527.6. (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 646-648 (Thomas) 

[civil harassment actions are “clearly and unambiguously” within the scope of the statute; 

there is no reason for the pendency of the motion to interfere with the statutory scheme 

for civil harassment petitions].) 
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In Thomas, supra, 126 Cal.App.4th 635, the trial court was not faced with the 

question of ruling on the petition before hearing the section 425.16 motion; as the court 

noted, the motion was heard first. Here, however, the trial court granted the protective 

order, and then failed to rule on Piercy’s motion. While Thomas can be read to suggest 

that might not constitute error, we need not reach that issue here. Even if the trial court 

should have managed the order of proceedings in the case to ensure that the 425.16 

motion was heard first, such an error would be reversible “only if the party appealing 

demonstrates a ‘miscarriage of justice’—that is, that a different result would have been 

probable if the error had not occurred.” (Zhou v. Unisource Worldwide, Inc. (2007) 157 

Cal.App.4th 1471, 1480.) 

Although the court did not consider Piercy’s motion, by granting the restraining 

order the court determined that Rodriguez had demonstrated more than the mere

probability of prevailing on the merits of his claim; the court’s ruling establishes that 

Rodriquez would have met his burden under the second prong of the analysis. (See

Hunter, supra, 221 Cal.App.4th at p. 1519; see also Thomas, supra, 126 Cal.App.4th at 

p. 663.) Because the outcome of this case would not have been different had the court 

considered the motion, the trial court’s error was harmless. 

Remaining Arguments 

Finally, Piercy claims that he repeatedly advised the trial court that the restraining 

order was filed in an improper venue, but he does not identify any support for this 

contention in the record. A party must file a timely motion requesting a change of venue 

or he waives his right to appeal that issue. (§ 396b; Smalley v. George C. Peckham Co.

(1917) 175 Cal. 146, 148.) On appeal, Piercy has not directed us to a motion for change 

of venue in the record. Piercy has waived his right to appeal on the grounds of improper 

venue. 
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DISPOSITION

The order is affirmed.3

ZELON, J.

We concur:

PERLUSS, P. J.

BECKLOFF, J.

 

3 Because there was no appearance by Respondent, Respondent incurred no costs on 

appeal.



Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.