Opinion
B296043 B296191
01-20-2021
MICHELE BAUER, Plaintiff and Respondent, v. BAHAR GHARIB, Defendant and Appellant. BAHAR GHARIB, Plaintiff and Appellant, v. MICHELE BAUER, Defendant and Respondent.
Family Legal and Edward McClean Lyman III for Appellant. Law Offices of Edward Y. Lee and Edward Y. Lee for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 18-VERO-00687) (Los Angeles County Super. Ct. No. 18-VERO-00589) APPEALS from orders of the Superior Court of Los Angeles County, Colin P. Leis, Judge. Affirmed. Family Legal and Edward McClean Lyman III for Appellant. Law Offices of Edward Y. Lee and Edward Y. Lee for Respondent.
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The trial court granted Michele Bauer's petition for a civil harassment restraining order against Bahar Gharib, the estranged wife of her boyfriend, Khosrow Gharib, pursuant to Code of Civil Procedure section 527.6 (section 527.6), and denied Bahar Gharib's petition, filed on behalf of herself and her two minor children, for a restraining order against Bauer. On appeal Gharib contends the trial court erred in ruling hearsay was inadmissible in a section 527.6 proceeding, the court applied the incorrect law in denying her petition, and the court's findings in granting Bauer's petition are not supported by substantial evidence. We affirm.
We generally refer to Khosrow Gharib by his first name for clarity. Khosrow also goes by the name Arman.
FACTUAL AND PROCEDURAL BACKGROUND
Bahar Gharib and Khosrow Gharib have been legally separated since 2011. They have two minor children, 13-year-old Ryan and 12-year-old Niusha.
Bauer met Khosrow in June 2015. They began dating in September 2015. Khosrow introduced Bauer to his children in October 2015. Later that month Gharib and Bauer met for the first time at a Halloween party at Gharib's home. The relationships between Gharib and Bauer and between Bauer and the children began cordially.
According to Bauer, her relationship with Gharib started to deteriorate in December 2015. According to Gharib, the relationship did not become contentious until late 2016. In March and April 2017 Gharib and Bauer each filed a petition for a civil harassment restraining order against the other woman. They settled their dispute by entering into a mutual conduct order, which included Bauer's agreement not to become involved in Gharib and Khosrow's custody and visitation matters. Relations between Gharib and Bauer were relatively peaceful until September 2017 when they again became contentious. In April 2018 Gharib and Bauer once more filed competing petitions for restraining orders. At the outset of the proceedings Gharib obtained a temporary restraining order (TRO) against Bauer for herself and her children.
1. Gharib's Evidence of Harassment
Gharib testified that around February 2017 the children told her Bauer had learned that Gharib and Khosrow were still legally married and Bauer was very angry because Khosrow had been lying to her. According to Gharib, Bauer's harassment of her and the children escalated at this time. Bauer began disparaging Gharib in front of the children, telling them Gharib was mean and a bad mother who was going to go to jail, which would mean the children's custody arrangement would need to change.
Bauer's comments that Gharib would be going to jail appears to have been based on Gharib's indictment on healthcare fraud charges in 2015. Gharib pleaded guilty in 2018 to one count of aiding and abetting healthcare fraud and was sentenced to probation.
Gharib believed Bauer was involving herself in the children's custody and visitation schedule in violation of the mutual conduct order. Then, in March 2017 two provocative incidents occurred. On March 9, 2017 sheriff's deputies came to Gharib's home to perform a safety check on the children based on an anonymous call. Gharib testified the deputies told her that they were prompted by her "ex-husband's girlfriend's allegations." The children, in tears and scared, believed the officers were there to arrest Gharib based on Bauer's comments their mother was going to go to jail.
Shortly after the deputies' visit, Bauer changed the name of the text group that Gharib, Khosrow and Bauer were on to "CRAZY BITCH." When Bauer realized Gharib could see the changed name, she switched it back. Bauer received a text from Gharib stating, "I know I'm ur problem but suck it up [emoji] and deal with it while you live in the house I paid for [emoji] . . . And don't forget to get ur face out of my kids space . . . they need some private time with their daddy while they are visiting their dad in my house!" In response Bauer texted, "Shut the fuck up bitch! I'm keeping yours for later, don't worry, I won't let karma take care of you. Our war won't end in this life. I promised you. This is my home, suck you that paid for me to live in it."
Approximately two weeks after the initial safety check, "Child Protective Services" visited Gharib's home based on a call that Gharib insists Bauer made. No further action ensued, but the children were upset and frightened by the incident. According to Gharib, the children no longer wanted to see Bauer or visit with Khosrow if Bauer was present.
Ryan and Niusha confirmed they initially had a good relationship with Bauer, but they testified that on many occasions Bauer told them their mother would be going to jail, which frightened them and made them anxious. They said Bauer called them "spoiled brats" and told them Khosrow's family did not like them. Ryan testified he saw a text Bauer sent to Khosrow stating that people like Ryan become school shooters. Ryan said on several occasions he did not want to visit his father because Khosrow and Bauer would discuss custody issues in front of him and, at times, with him. Niusha testified Bauer called her fat and told her Khosrow's family did not like her because she looked like her mother. Niusha also testified she had trouble sleeping because of Bauer, in part because she felt Bauer was stalking her and might kidnap her.
Dr. Joan Browner, Ryan's therapist, testified Ryan expressed concern about being around Bauer, particularly because of her statements that Gharib would be going to jail. Dr. Browner also testified that some of the language used by Ryan such as "gold digger" or that Bauer "was out for Dad's money" did not seem age appropriate and may have been terms used by Gharib that Ryan adopted.
In responding to Ryan's and Niusha's testimony, Bauer explained that before March 2017 she had been very active with the children and they had enjoyed spending time with her. After the mutual conduct order was entered, Bauer believed she had been able to resume a good relationship with Niusha, but her relationship with Ryan had been damaged. Bauer denied ever calling Niusha fat or saying Ryan would become a school shooter. Bauer also testified she never said anything disparaging about Gharib to the children and had actually tried to say nice things about her.
2. Bauer's Evidence of Harassment
Contrary to Gharib's testimony that Bauer began the feud in early 2017, Bauer testified that Gharib started disparaging her in December 2015, calling her a "whore," a "hooker," a "prostitute" and a "sugar baby." Bauer learned of Gharib's name-calling from Khosrow and other members of Khosrow's family, including the children.
Bauer moved in with Khosrow at the former family residence in Woodland Hills, which was jointly owned by Gharib and Khosrow. In December 2016 Khosrow and Bauer hosted a Christmas party at the home. This event, as well as Bauer having moved into the Quinta Road residence, appears to have enraged Gharib. After the party, which Gharib did not attend, Gharib began texting numerous belligerent messages to Khosrow. In one Gharib wrote, "u mother fucker and ur whore living in my house free for the last 3 yrs . . . which I'm gonna make u pay HARD for . . . ." Gharib texted Khosrow that he and Bauer needed to "move the fuck out of my home"; that "[f]un days are over"; that, if he wanted Gharib and the children to respect "ur whore[,] just move the fuck out"; and that moving out is "the only way she won't be hated!" Gharib threatened that she "[a]in't gonna leave u alone till u move the fuck out of my house." Gharib also threatened, if Bauer did not stay away from her, Gharib would "fwd her sugar daddy links and emails and her 3some deal to all ur family and friends" and the "[k]ids hate that whore and I'll make sure of that . . . ."
It was Gharib's belief that Bauer and Khosrow had met on a "sugar daddy" website.
In March 2017 Gharib began sending messages directly to Bauer, telling her to "stay the FUCK out of me and my ex husband and my kids biz and schedule for GOOD . . . . This is my First and LAST WARNING!" Gharib took issue with what she perceived as Bauer becoming involved in custody and visitation issues. Gharib also insulted Bauer by referring to her as a "whore[ ]" from a "sugar baby site." Bauer blocked Gharib from sending any further messages.
Undeterred, Gharib continued texting Khosrow disparaging statements. One example introduced into evidence: "Whore and Prostitute is when u have 5 sugar daddies at the same time and open ur legs for $ and suck dick for a living, which I have all the proof ur nasty gh is been doing since she moved to la in June 2009. . . . Tell that bitch now I know who d fuck she is and where she comes from and if she doesn't disappear on her own I'll make her having to disappear . . . .! She crossed the line and she'll pay for it HARD fucker."
As discussed, Bauer and Gharib each filed petitions for civil harassment restraining orders, and Bauer obtained a TRO against Gharib on March 24, 2017. The parties settled their dispute with a mutual conduct order entered by the court in April 2017. Despite the mutual conduct order the relationship continued as it had before the order was entered. Gharib told the children that Bauer did not love them and that Bauer was a "whore" and a "sugar baby" dating their father for the money. In March 2018 Gharib, while stopping by Khosrow's house to pick up the children, yelled, "You motherfuckers will go to jail for the rest of your life," and "Motherfuckers, you're gonna fucking die." In April 2018 Gharib again spread rumors that Bauer was a prostitute, that she was dangerous and the children were afraid of her.
Bauer testified that learning about Gharib's actions caused her emotional distress and humiliation. From April through July 2017 Bauer sought treatment for her emotional distress at The Missing Peace-Center for Anxiety, which cost her approximately $15,000. Bauer attended group and individual therapy sessions three times a week for eight hours per day. She also took a break from her business, a wholesale and retail swimwear and lingerie company, on the advice of her therapist. Bauer also testified she was hospitalized three times for strong chest pains and had been diagnosed with a stress-related ulcer. Bauer sought a restraining order because she did not feel safe around Gharib.
3. The Trial Court's Ruling
At the conclusion of the evidentiary hearing the trial court granted Bauer's petition and issued a five-year civil harassment restraining order. In its ruling from the bench the court found Bauer had established with clear and convincing evidence that Gharib "pursued a campaign to drive respondent out of the Quinta house and out of the minors' lives." The court recited examples of Gharib's improper behavior, which included attacking Bauer's character and integrity, calling her a "whore, prostitute, [and] gold digger," "sex shaming her" and "threatening to expose respondent to public embarrassment and ridicule over private matters." The court further found a reasonable person would suffer substantial emotional distress as a result of Gharib's behavior and Bauer had credibly testified to suffering such distress. The court noted Gharib's worst behavior had occurred before January 2018, but that Gharib's conduct had been curbed by the TRO in place since April 2018. Absent a civil harassment restraining order, the court concluded, it was highly likely Gharib's harassing behavior would continue.
Gharib must stay at least 100 yards away from Bauer, her home and her workplace except during custody exchanges or at "events relating to the health, education or extra-curricular activities of the children."
As for Gharib's petition, the court found Gharib had "undermined her credibility in these proceedings" by untruthfully asserting that Bauer had started the conflict when she learned that Gharib and Khosrow were still married. The court found Gharib was the "primary offender and aggressor" responsible for creating the conflict with Bauer. Although it was true Bauer used offensive language with Gharib, it was in response to Gharib "starting it." The court denied Gharib's petition because she had failed to demonstrate with clear and convincing evidence that Bauer's conduct caused her substantial emotional distress. The court acknowledged that Gharib was angered by Bauer living at the Quinta Road residence and Bauer's involvement in the children's custody and visitation, but found that Gharib's "anger arises from circumstances she has herself created."
The court also denied the children's request for a restraining order. The court found Bauer's conduct toward the children did not constitute harassment within the meaning of section 527.6. The court noted Bauer may have said "some pretty awful things" to the children, but concluded the children lacked credibility. The court found their testimony had been colored by Gharib's "coaching" and the "extreme pressure they [were] under to support mother by seeing things her way," as well as evidence that Gharib had shared with them her hatred of Bauer, citing Dr. Browner's testimony the children had adopted the vile language used by their mother.
Gharib timely filed separate appeals from the orders granting Bauer's petition and denying the petition she had filed for herself and her children.
Along with her appeals Gharib filed a petition for writ of error coram vobis to augment the record with "newly discovered evidence" from the Los Angeles Police Department. Gharib argued this evidence would demonstrate that Bauer and Khosrow falsely testified at the hearing in superior court. We summarily denied the petition. (Gharib v. Superior Court (Nov. 20, 2019, B301965); see People v. Kim (2009) 45 Cal.4th 1078, 1092 [writ of error coram vobis "'"does not lie to correct any error in the judgment of the court nor to contradict or put in issue any fact directly passed upon and affirmed by the judgment itself. If this could be, there would be no end of litigation"'"].)
DISCUSSION
1. Governing Law and Standard of Review
Section 527.6, subdivision (a)(1), provides, "A person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an order after hearing prohibiting harassment as provided in this section." Subdivision (b)(3) of section 527.6 defines harassment as "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."
Effective January 1, 2020 section 527.6 was amended to change the pronouns used in the section and to add requirements relating to the disclosure of confidential information concerning minors. The amendments do not affect this case.
A "'[c]ourse of conduct' is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means . . . ." (§ 527.6, subd. (b)(1).) "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).) At the hearing on a petition for a civil harassment restraining order, the court "shall receive any testimony that is relevant, and may make an independent inquiry." (§ 527.6, subd. (i).) The trial court may issue a restraining order only after finding by clear and convincing evidence that unlawful harassment exists and is reasonably likely to recur. (§ 527.6, subd. (i) [requiring showing "by clear and convincing evidence"].)
"[W]hen presented with a challenge to the sufficiency of the evidence associated with a finding requiring clear and convincing evidence, the [reviewing] court must determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by this standard of proof." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005.) "Consistent with well-established principles governing review for sufficiency of the evidence, in making this assessment the appellate court must view the record in the light most favorable to the prevailing party below and give due 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 p. 996.)
"[W]hether the facts, when construed most favorably in [petitioner's] favor, are legally sufficient to constitute civil harassment under section 527.6, and whether the restraining order passes constitutional muster, are questions of law subject to de novo review." (R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188; accord, Harris v. Stampolis (2016) 248 Cal.App.4th 484, 497.)
2. The Trial Court's Initial Evidentiary Ruling Excluding Hearsay Evidence Does Not Require Reversal of the Court's Orders
Gharib argues the trial court erred by ruling at the pretrial status conference that hearsay evidence was inadmissible during a section 527.6 proceeding. She contends this error was structural and therefore requires per se reversal because it impacted her overall case strategy and presentation of relevant evidence.
"We review a trial court's decision to admit or exclude evidence 'for abuse of discretion, and [the ruling] will not be disturbed unless there is a showing that the trial court acted in an arbitrary, capricious, or absurd manner resulting in a miscarriage of justice.'" (People v. Powell (2018) 5 Cal.5th 921, 951; accord, Zhou v. Unisource Worldwide (2007) 157 Cal.App.4th 1471, 1476; Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 885.) We may reverse a judgment for the erroneous exclusion of evidence only upon a showing the error prejudiced the appellant. (Cal. Const., art. VI, § 13; Evid. Code, § 354; People v. Koontz (2002) 27 Cal.4th 1041, 1078-1079; People v. Hansel (1992) 1 Cal.4th 1211, 1223.)
Gharib's contention the trial court's evidentiary ruling constituted structural error not only ignores Evidence Code section 354, which expressly provides a judgment may not be reversed because of the erroneous exclusion of evidence unless that error "resulted in a miscarriage of justice"—that is, was prejudicial—but also misperceives the nature of a structural error. As the Supreme Court explained in the context of an appeal from a criminal conviction in People v. Anzalone (2013) 56 Cal.4th 545, 553-554, "'Error that occurs during the presentation of the case to the jury is generally trial error; an error that erroneously adds to or subtracts from the record before the jury can "be quantitatively assessed in the context of the other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt."'" "'In contrast, structural errors not susceptible to harmless error analysis are those that go to the very construction of the trial mechanism—a biased judge, total absence of counsel, the failure of a jury to reach any verdict on an essential element.'"
The trial court's initial ruling regarding hearsay concerned an October 4, 2018 transcript from family law proceedings containing a custody evaluator's opinion that Bauer should stay away from the children. Gharib's counsel, citing Kaiser Foundation Hospitals v. Wilson (2011) 201 Cal.App.4th 550, argued hearsay, and therefore the transcript, was admissible in a section 527.6 proceeding. The court stated it knew "that case, and I think it's an outlier." During the hearing the court ruled on numerous hearsay objections, overruling some while sustaining others.
After the close of evidence and before it issued its ruling, the court acknowledged it had erred in concluding hearsay evidence was inadmissible during the proceedings, citing Duronslet v. Kamps (2012) 203 Cal.App.4th 717 (Duronslet). The court stated it would grant a motion by either party to reopen evidence and offered three options: (1) The court would receive into evidence for the truth of the matter asserted testimony and exhibits that had been admitted for a limited purpose. (2) The parties could put into the record any hearsay testimony or exhibits the court had ruled inadmissible or any evidence the parties did not offer because there was no nonhearsay basis to admit the evidence. (If the parties elected this option, the court requested an offer of proof and time estimate for further testimony.) (3) The parties could stipulate to the facts the excluded hearsay evidence would establish.
In Duronslet the court of appeal held hearsay evidence was admissible during a section 527.6 restraining order hearing, citing section 527.6, former subdivision (d). (Duronslet, supra, 203 Cal.App.4th at pp. 728-729.) The language the court identified, now in section 527.6, subdivision (i), provides the trial court "shall receive any testimony that is relevant" at the hearing and authorizes the trial court to "make an independent inquiry." (See, e.g., Schraer v. Berkeley Property Owners' Assn. (1989) 207 Cal.App.3d 719, 733, fn. 6 [at a hearing to obtain an injunction pursuant to section 527.6, "[b]oth sides may offer evidence by deposition, affidavit, or oral testimony, and the court shall receive such evidence, subject only to such reasonable limitations as are necessary to conserve the expeditious nature of the harassment procedure set forth by . . . section 527.6"].) The Duronslet court interpreted this language as authorizing the trial court to admit into evidence a police report, even though it contained hearsay, at a section 527.6 hearing. (Duronslet, at pp. 729-730; see Yost v. Forestiere (2020) 51 Cal.App.5th 509, 521 [section 527.6, subdivision (i), "has been interpreted to mean hearsay evidence, such as a declaration or police report, is admissible during hearings conducted pursuant to section 527.6"].)
Gharib did not object to the adequacy of the court's proposal. Counsel conferred, and each party requested the court admit into evidence one additional document. As requested by Gharib, the court admitted the October 4, 2018 transcript from the family law proceedings, which included the custody evaluator's assessment that Bauer should stay away from the children, at least until the full custody evaluation was concluded. Gharib requested no other relief. Under these circumstances Gharib has forfeited her claim of error on appeal. (See Johnson v. Greenelsh (2009) 47 Cal.4th 598, 603 ["issues not raised in the trial court cannot be raised for the first time on appeal"]; In re Marriage of Turkanis & Price (2013) 213 Cal.App.4th 332, 353 [same].)
Gharib argues the court erred in ruling this transcript was inadmissible during the pretrial status conference. Any error was remedied when the court admitted it into evidence before issuing its orders granting Bauer's petition and denying Gharib's.
Even were her argument about the hearsay ruling not forfeited, Gharib fails to demonstrate prejudice, as required before we may reverse the trial court's orders. The only evidence Gharib points to as having been improperly excluded are police reports documenting Khosrow's "longstanding violence towards women." Because Gharib did not seek a restraining order against Khosrow, however, the relevance of the information is questionable. Moreover, as the court observed, the arrests had occurred more than six years before the hearing and did not result in any convictions, so that they would be entitled to "little weight" even if admitted into evidence. To the extent Gharib sought to establish the children's fear of their father through introduction of the police reports—again a point of doubtful relevance—the evidence was cumulative, as the children had testified about any legitimate fears they had of their father. In sum, Gharib has not demonstrated she was prejudiced by the court's initial hearsay ruling, let alone that the options offered by the court to correct its ruling did not adequately cure any error.
Referring to police reports more generally, Gharib claims she would have subpoenaed the Los Angeles Police Department for additional records but did not do so because of the court's pretrial hearsay ruling. She asserts those records could have been used to impeach Bauer with prior inconsistent statements. But the court's pretrial ruling would not have precluded Gharib from using police reports in this manner. (See Evid. Code, §§ 1220 [party admissions not inadmissible], 1235 [prior inconsistent statements not inadmissible]; Rupf v. Yan (2000) 85 Cal.App.4th 411, 430, fn. 6 ["[s]tatements independently admissible, such as a party admission, contained in a police report are similarly admissible, despite their hearsay character"].)
3. The Trial Court Did Not Err in Denying Gharib's Petition
Gharib contends the trial court improperly denied her petition for a civil harassment restraining order by applying the standard for domestic violence restraining orders in family law cases and additionally erred in ruling that Bauer's violation of the TRO was insufficient to meet the requirements for a restraining order. Neither argument has merit.
Gharib argues the trial court conflated the requirements for adjudicating requests for mutual restraining orders under the Domestic Violence Prevention Act (DVPA) with the issuance of restraining orders under section 527.6. (See Fam. Code, § 6305, subd. (a)(2) [court in a family law case may not issue order mutually restraining the parties unless it "makes detailed findings of fact indicating that both parties acted as a primary aggressor and that neither party acted primarily in self-defense"].) To be sure, the court characterized Gharib as the "primary aggressor," but Gharib points to nothing in the record indicating the court misunderstood the requirements under section 527.6, or that it erroneously applied the requirements for a DVPA restraining order instead of those applicable to section 527.6. (See Centex Homes v. St. Paul Fire & Marine Ins. Co. (2018) 19 Cal.App.5th 789, 797 ["'It is the duty of counsel to refer the reviewing court to the portion of the record which supports appellant's contentions on appeal. [Citation.] If no citation "is furnished on a particular point, the court may treat it as waived'""].)
Similarly, Gharib's contention a restraining order should have issued based on Bauer's violations of the TRO is unsupported by any authority and thus forfeited. (See In re A.C. (2017) 13 Cal.App.5th 661, 672.) In any event, Bauer's violations of the TRO were to attend court proceedings involving the children and a funeral for Khosrow's friend. As discussed, for conduct to amount to civil harassment, it must serve no legitimate purpose. (§ 527.6, subd. (b)(3).) As the trial court found, Bauer's attendance at the events served a legitimate purpose; and there was no evidence, aside from being present, that she in any way disturbed or harassed Gharib. Gharib does not contend otherwise. Bauer's technical violations of the TRO did not compel issuance of a civil harassment restraining order as a matter of law.
When, as here, the issue on appeal turns on a failure of proof at trial, the appellant must demonstrate the evidence compels a finding in her favor as a matter of law. (See In re Aurora P. (2015) 241 Cal.App.4th 1142, 1163.)
4. Substantial Evidence Supports the Trial Court's Order Granting Bauer's Petition
Gharib contends substantial evidence does not support the court's findings that Gharib was harassing Bauer and that Bauer suffered substantial emotional distress as a result of Gharib's conduct. However, as discussed, we defer to the trial court's evaluation of the credibility of the witnesses and resolution of conflicting evidence. (See Conservatorship of O.B., supra, 9 Cal.5th at p. 996; Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 334.) Although Gharib and Bauer presented vastly different narratives, it was the trial court's task, not ours, to weigh their conflicting statements and ultimately make findings as to whether and how the incidents occurred and whether Gharib's conduct caused Bauer substantial emotional distress.
Based on the trial court's resolution of the evidentiary conflicts and credibility determinations in favor of Bauer, substantial evidence exists from which the court could find by clear and convincing evidence that Gharib engaged in a course of conduct toward Bauer that seriously alarmed, annoyed or harassed her. Bauer describing an ongoing campaign by Gharib, who for more than two years disparaged and threatened Bauer through text messages and in person and spread rumors about her to friends and family. (See Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 1074 ["the testimony of a single witness, even that of a party, is sufficient to provide substantial evidence to support a finding of fact"]; see also In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) Gharib did not, and could not, dispute that she had sent the text messages, which were vitriolic in tone and substance.
Likewise, substantial evidence supports the court's finding that Bauer suffered emotional distress as a result of Gharib's behavior. Bauer testified that learning of Gharib's actions caused her emotional distress and humiliation. She sought treatment for the anxiety caused by Gharib's conduct and was hospitalized for strong chest pains and diagnosed with a stress-related ulcer. The trial court was in the best position to assess Bauer's testimony, and it found her to be credible. Nothing more was required to support issuance of the restraining order against Gharib.
5. The Court's Findings Are Legally Sufficient To Establish Civil Harassment Under Section 527 .6
In addition to contending substantial evidence does not support the trial court's findings, Gharib argues those findings are insufficient to demonstrate a "course of conduct" or "substantial emotional distress" within the meaning of section 527.6, subdivision (b)(1). Gharib's legal challenge to the restraining order, like her challenge to its evidentiary basis, lacks merit.
Gharib's argument her conduct as found by the trial court did not constitute harassment within the meaning of section 527.6 ignores the undisputed evidence of her years-long campaign of vitriolic texts to Bauer and Khosrow and focuses only on the exchange of text messages that occurred in September 2017, contending those messages are insufficient to establish the requisite course of conduct. Gharib simply is wrong. The trial court's findings and the evidence in the record clearly established a course of conduct-a series of acts over a period of time-by Gharib that constituted harassment as defined by the statute. Gharib texted Bauer threatening and disparaging messages, texted Khosrow threatening and disparaging messages about Bauer, and spread rumors about Bauer in the community, all of which annoyed or alarmed Bauer and served no legitimate purpose. (See Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1413-1414 [finding several vitriolic letters and telephone calls constituted a "course of conduct"].)
Gharib's conduct would unquestionably cause a reasonable person to suffer substantial emotional distress. Bauer testified as to her own, actual emotional distress, including seeking treatment for anxiety and going to the hospital for stomach pains. This evidence was legally sufficient to meet the substantial emotional distress requirement of section 527.6, subdivision (b)(3). (See Harris v. Stampolis, supra, 248 Cal.App.4th at p. 487 [evidence was sufficient to show reasonable person would suffer substantial emotional distress from defendant's aggressive conduct after he was confronted about regularly being late to pick up his son from school; petitioner submitted evidence she went to the emergency room and was diagnosed with acute anxiety after incident with defendant].)
Bauer's evidence was also legally sufficient to establish the likelihood of future harassment absent injunctive relief. "'[T]he determination of whether it is reasonably probable an unlawful act will [occur] in the future rests upon the nature of the unlawful [harassment] evaluated in the light of the relevant surrounding circumstances of its commission and whether precipitating circumstances continue to exist so as to establish the likelihood of future harm.'" (Harris v. Stampolis, supra, 248 Cal.App.4th at pp. 499-500 [trial court's implied finding that harassment was likely to recur was proper because petitioner, who was the principal of the school that defendant's child attended, would likely have future interactions with defendant].) Bauer and Khosrow continue to be in a relationship. It was likely, therefore, if not inevitable, that, absent a restraining order, Gharib would have some ongoing interaction with Bauer because of Khosrow's shared involvement with their children. In short, the "'precipitating circumstances continue to exist so as to establish the likelihood of future harm.'"
DISPOSITION
The orders are affirmed. Bauer is to recover her costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.