Opinion
A161830
08-01-2022
C.T., Plaintiff and Respondent, v. SEAN MCKEAN Defendant and Appellant.
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. CCH-20-583010
Fujisaki, J.
Defendant Sean McKean appeals from an order granting plaintiff C.T. a civil harassment restraining order pursuant to Code of Civil Procedure section 527.6. Defendant contends substantial evidence does not support the trial court's findings by clear and convincing evidence that plaintiff experienced "harassment" and suffered "substantial emotional distress" within the meaning of the statute. We affirm.
Pursuant to California Rules of Court, rules 8.90, governing "Privacy in opinions," we refer to plaintiff by her initials. (Cal. Rules of Court, rule 8.90(b)(5).)
All further statutory references are to the Code of Civil Procedure.
Factual and Procedural Background
At all relevant times, the parties were roommates in an apartment in San Francisco. In August 2020, plaintiff applied for a temporary restraining order (TRO) and a stay away order against defendant. In her supporting declaration, plaintiff stated that she was the master tenant of the residence and had entered into a subtenant agreement with defendant in January 2020. Defendant allegedly began harassing plaintiff in April 2020 after she confronted him about various activities he was engaged in that violated the terms of the lease. Defendant became "increasingly aggressive and hostile," slammed doors, yelled, and insulted plaintiff. In July 2020, neighbors threatened to call the police after hearing defendant yelling at plaintiff, and plaintiff's daughter called the police out of concern for plaintiff. Plaintiff alleged that defendant's "behavior has been consistent and daily," and that she felt "physically and mentally ill" from a hostile environment he created.
The trial court issued a TRO and set a hearing on the civil harassment restraining order. Under the TRO, defendant was ordered, among other things, not to contact plaintiff, "either directly or indirectly, in any way, including but not limited to, in person, by telephone, in writing, by public or private mail, . . . or by other electronic means."
At the September 2020 hearing, the trial court began by summarizing the main allegations of the petition that defendant had created dangerous nuisances in and around the apartment (e.g., stripping the wood floor, running electrical wiring without a permit, and storing highly flammable materials in a shared garage space), and began harassing plaintiff after she confronted him. As the court stated, "You said that at one point, your daughter was so concerned, she called the police. You said that he is aggressive on a daily basis. He is exhibiting a threatening demeanor to you. He slams doors and yells. He's verbally and physically confronting you and neighbors by blocking everyone with his vehicle." The court then gave plaintiff the opportunity to provide additional information.
Plaintiff testified that defendant is "a huge man" who had harassed her in various ways. He purportedly stole and damaged property in the common areas of the apartment, "unlawfully audiotaped" plaintiff, and left her aggressive notes on a chalkboard in the kitchen and on Post-it® notes in front of her bedroom. In one instance, the chalkboard read," 'The first one is a game. The next, I'll take it all.'" Plaintiff testified that this occurred after the issuance of the TRO, that she and defendant were the only two people living the household, and that the message was "absolutely aggressive" and caused her to feel scared. Plaintiff further testified that defendant violated the TRO by leaving her a Post-it® note that read," 'Awww, wa, wa, wa,'" which the trial court interpreted as "the equivalent [of] when you sarcastically say to someone else, oh, you're crying, a-w-w-w." Defendant also allegedly violated the TRO by leaving "crude" Post-it® notes outside plaintiff's bedroom door stating that her dog had" 'pissed in the kitchen on the rug area.'" According to plaintiff, defendant left notes for her "on a daily basis" since the TRO was issued, and that she did not "feel safe in [her] home." The reporter's transcript indicates that during the testimony, as plaintiff's attorney Daniel Galindo questioned plaintiff about the messages that were "scariest" for her, Galindo instructed plaintiff to "[j]ust take some deep breaths."
Plaintiff further testified that on at least three occasions, defendant copied her on emails to her counsel in which defendant threatened to report Galindo for ethics violations while making personal attacks against plaintiff.
Defendant took the stand and testified that the chalkboard communication was intended for his friend, not plaintiff. Defendant further testified that the sarcastic Post-it® note was not directed at plaintiff and that it had simply fallen off his door and floated into the hallway. As for the note about plaintiff's dog, defendant initially testified that he "didn't pass any notes about the dog" before admitting that he left the note in question because he was frustrated that plaintiff allowed her dog to urinate and defecate throughout the apartment.
As for the neighbors' complaints about slamming doors, defendant testified that it was plaintiff who caused the garage door to slam shut whenever she went downstairs to walk her dog. Defendant further testified that he had "closed doors on [plaintiff], absolutely" and that the police had been called "a few nights ago because she chased me into my room where I was trying to escape her[.]" He explained that plaintiff was "screaming" and accusing him of theft, and he was trying to remove himself from the situation. The trial court heard an audio recording of the incident and remarked, "I heard her voice. I heard her say in the recording we listened to off the record, 'Please give me my property back,' or words to that effect. But she's saying it in a very even tone of voice.... I'd characterize it as [plaintiff] speaking to you in a very firm voice. She's not yelling. She's raised her voice."
As for the email communications, defendant's counsel told the trial court that it was Galindo who copied plaintiff on his emails to defendant, and that defendant had simply "[r]eplied all" to the emails. On questioning by the trial court, Galindo denied copying his client on the emails between him and defendant and told the court that it was defendant who added her to the email threads, even after Galindo told him to stop contacting his client.
After the conclusion of testimony, the trial court announced its decision to grant the civil harassment restraining order. The court found that although both parties were contributing to the tensions in the household, "on balance," the court was "convinced, without a doubt" that defendant was communicating with plaintiff in violation of the TRO and that he had harassed plaintiff. The court ordered defendant to stay three yards from plaintiff inside the apartment and 50 yards outside the apartment for a period of three years.
Defendant appealed.
Discussion
Under section 527.6, a person who has suffered "harassment" may seek a TRO and an order after hearing prohibiting the harassment. (§ 527.6, subd. (a)(1).) Harassment is defined 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." (Id., subd. (b)(3).) "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." (Ibid.) A "course of conduct" is defined as "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, including, but not limited to, the use of public or private mails, interoffice mail, facsimile, or email." (Id., subd. (b)(1).) "At the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an order shall issue prohibiting the harassment." (Id., subd. (i).)
We review the granting of a civil harassment restraining order under section 527.6 for substantial evidence. (Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 725.) Substantial evidence is "evidence of ponderable legal significance, evidence that is reasonable, credible, and of solid value." (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) We accept as true all evidence tending to establish the correctness of the trial court's findings, resolving every conflict in favor of the judgment. (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1143 (Burquet).)
Where, as here, the standard of proof requires a party to establish the existence or nonexistence of a fact by clear and convincing evidence (§ 527.6, subd. (i)), appellate review of the sufficiency of the evidence must account for the higher standard of proof. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1004.) Substantial evidence review of a finding of clear and convincing evidence requires the appellate court to determine 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." (Id. at p. 1011.)
We conclude substantial evidence supports the trial court's findings, by clear and convincing evidence, that plaintiff was harassed by defendant and suffered substantial emotional distress because of it. The finding of harassment was supported by the evidence of defendant's "daily" written and verbal communications with plaintiff, including numerous Post-it® notes that, at one point during the hearing, were delivered in a "pile" to the trial court. Plaintiff testified in particular as to some of the communications that were threatening or derisive, and it appears many were made after the issuance of the TRO, despite the order prohibiting defendant prohibited from communicating with plaintiff directly or indirectly "in any way." A reasonable fact finder could find it highly probable that defendant engaged in a course of conduct that seriously annoyed or harassed plaintiff and served no legitimate purpose. (§ 527.6, subds. (b)(1), (3).)
Defendant argues that the evidence of Post-it® notes and chalkboard communications did not support the finding of harassment because those messages were not meant for plaintiff. However, in reviewing for substantial evidence, we must resolve all conflicts in the evidence in favor of the judgment. (Burquet, supra, 223 Cal.App.4th at p. 1143.) The trial court could reasonably infer that the messages found in front of plaintiff's door and in common areas of the residence were intended for plaintiff, and it appears the court disbelieved defendant's testimony that the written notes intended for someone else. We defer to that credibility determination. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531.)
Substantial evidence also supports the trial court's implied finding, by clear and convincing evidence, that defendant's conduct would have caused a reasonable person to suffer, and actually caused plaintiff to suffer, substantial emotional distress. Although "substantial emotional distress" is not defined in section 527.6, "in the analogous context of the tort of intentional infliction of emotional distress, the similar phrase 'severe emotional distress' means highly unpleasant mental suffering or anguish 'from socially unacceptable conduct' [citation] which entails such intense, enduring and nontrivial emotional distress that 'no reasonable [person] in a civilized society should be expected to endure it.'" (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762-763 (Schild).) Notably, clear and convincing proof of a plaintiff's substantial emotional distress need not be in the form of direct testimony that they suffered such distress. (Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1110 (Ensworth), disapproved on other grounds in Conservatorship of O.B., supra, 9 Cal.5th at p. 1010, fn. 7.) "[C]ircumstantial evidence can provide the sole basis for a verdict and, in such a case, can meet the substantial evidence test on appeal." (Ensworth, at p. 1110.)
Here, a reasonable fact finder could find it highly probable that defendant's conduct-including his daily and aggressive communications with plaintiff in direct violation of the TRO, as well as his yelling, insulting, and door slamming, all within the confines of the same living space-would have caused a reasonable person to suffer unpleasant mental suffering or anguish. Indeed, the record reflects that various third parties, including the neighbors and plaintiff's daughter, felt that police intervention was necessary due to defendant's conduct.
Although the trial court refused to admit certain exhibits (i.e., a neighbor's statement and a police report) on hearsay grounds, it appears the court otherwise accepted plaintiff's declaration in support of her TRO application, which reflected some of the same general facts as the exhibits. Moreover, there was no dispute that the police were called to intervene on at least one occasion, as defendant acknowledged during his testimony.
As for plaintiff's actual suffering of substantial emotional distress, although there was no direct testimony on this score, there was ample circumstantial evidence from which the trial court could make the requisite finding by clear and convincing evidence. Plaintiff testified that she felt scared from defendant's daily and aggressive communications, including the chalkboard message that she interpreted as a threat, and that she did not feel safe in her own home. That fear was reasonably supported by the circumstances that defendant was physically larger than plaintiff, shared the same apartment with her, and appeared to be wholly undeterred by the issuance of the TRO. The trial court was also able to observe plaintiff's demeanor during her testimony, including the moment when Galindo had to calm her down as she recounted her fear. It appears the court found plaintiff's testimony credible, and we defer to that credibility determination on appeal. (In re Marriage of Balcof, supra, 141 Cal.App.4th at p. 1531.) On this record, the trial court could reasonably find, by clear and convincing evidence, that defendant's" 'socially unacceptable conduct'" actually caused plaintiff to experience "highly unpleasant mental suffering or anguish" that no reasonable person in a civilized society should be expected to endure. (Schild, supra, 232 Cal.App.3d at pp. 762-763; see Ensworth, supra, 224 Cal.App.3d at p. 1111 [direct testimony "would have been cumulative and was not required" where circumstantial evidence supported plaintiff's emotional distress].)
Defendant's arguments to the contrary are unavailing. He suggests the record was insufficient to support a finding of substantial emotional distress because the trial court characterized plaintiff's tone of voice in the audio recording of their argument as "even" and "firm." Putting aside the fact that the trial court made this observation to reject defendant's claim that plaintiff had been yelling during the incident in question, we will not draw an inference in defendant's favor that plaintiff's even tone of voice during one incident defeats her claim of substantial emotional distress based on the totality of defendant's conduct.
Defendant further argues that because the trial court found both parties to have contributed to tensions in the household, the evidence does not demonstrate that plaintiff was subjected to substantial emotional distress. But plaintiff's contributing to tensions and suffering substantial emotional distress from defendant's conduct are not mutually exclusive. Even assuming plaintiff was partly to blame (e.g., by failing to clean up after her dog), substantial evidence still supported the implied finding that she suffered substantial emotional distress due to defendant's repeated and inappropriate conduct.
Finally, defendant cites Schild for the proposition that plaintiff's failure to submit medical or psychological evidence defeats her showing of substantial emotional distress. We are not persuaded. In Schild, the plaintiffs alleged that the sounds of the neighbors' basketball playing interfered with their ability to rest, sleep, relax, and watch television in their home. (Schild, supra, 232 Cal.App.3d at p. 763.) The Court of Appeal reversed the grant of a restraining order, finding there was no substantial evidence that the basketball playing-which occurred for no more than 30 minutes a day, three to five times a week, during reasonable hours- amounted to unlawful harassment under section 527.6. (Schild, supra, 232 Cal.App.3d at p. 761.) Schild did not hold that medical evidence was necessary to prove substantial emotional distress under section 527.6, and we are aware of no such legal requirement for generally proving emotional distress. (See Bertero v. National General Corp. (1974) 13 Cal.3d 43, 64-65 [plaintiff's unrebutted testimony was sufficient to support damages to "emotional well-being"]; Saari v. Jongordon Corp. (1992) 5 Cal.App.4th 797, 806 [plaintiff's testimony was substantial evidence in support of her serious emotional distress].)
Although Schild remarked that there was "no medical, psychological or other evidence" supporting the plaintiffs' claim of substantial emotional distress (Schild, supra, 232 Cal.App.3d at p. 763), the court did not base its holding on this deficiency. Rather, Schild held that even assuming the plaintiffs' emotional distress was substantial, the neighbors' basketball playing "would not 'cause a reasonable person to suffer substantial emotional distress'" because it "occurred in a time, place and manner which constituted a reasonable use of their property." (Ibid.) Schild bears no resemblance to the instant case, which involved numerous hostile communications and conduct by someone in the same household as the plaintiff in flagrant violation of an existing TRO. As discussed, substantial evidence supports the trial court's implied finding that a reasonable person would suffer, and that plaintiff actually suffered, "highly unpleasant mental suffering or anguish" as a result of defendant's" 'socially unacceptable conduct.'" (Id. at pp. 762763.)
Disposition
The trial court's order granting plaintiff's request for a civil harassment restraining order is affirmed. Plaintiff is entitled to her costs on appeal.
WE CONCUR: Tucher, P.J., Rodriguez, J.