Opinion
F085879
05-29-2024
LINDA BERBERICH, Petitioner and Respondent, v. ROHITENDRA CHAND, Defendant and Appellant.
Rohitendra Chand, in pro. per., for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County, No. CV-23-000249, John R. Mayne, Judge.
Rohitendra Chand, in pro. per., for Defendant and Appellant.
No appearance for Petitioner and Respondent.
OPINION
THE COURT[*]
This matter arises from the relationship between pro. per. appellant Rohitendra Chand (Chand) and his former neighbor, respondent Linda Berberich (Berberich). Berberich wanted Chand to leave her alone and obtained a harassment restraining order against Chand that is valid for three years. In this appeal, Chand contends that the trial court: (1) improperly concluded that he harassed Berberich at work; (2) erroneously accepted that he obtained a job at the same place as Berberich in order to harass her, and that he inquired about Berberich within two weeks of starting the job; (3) erroneously found that Berberich had submitted a photograph in support or her request for a restraining order; and (4) erred by imposing the three-year restraining order. We affirm.
PROCEDURAL BACKGROUND
On January 18, 2023, Berberich filed a request for a civil harassment restraining order against Chand.
On January 19, 2023, on an ex parte basis, the trial court granted Berberich a temporary restraining order and set a hearing for February 8, 2023, to consider issuing a lengthier restraining order.
On February 8, 2023, a hearing was held on Berberich's request for a restraining order. Chand and Berberich testified at the hearing. The trial court granted Berberich's request and issued a restraining order against Chand. The restraining order in part prohibited Chand from harassing, contacting, or taking any action against Berberich and ordered Chand to stay 20 yards away from Berberich for three years.
On March 10, 2023, Chand filed his notice of appeal.
On September 6, 2023, the trial court signed a third proposed settled statement.
FACTUAL BACKGROUND Pre-2023 Conduct
From 2008 to 2020, Berberich and Chand were neighbors. In 2020, Berberich moved. However, during the time that Chand and Berberich were neighbors, and for some time beyond, Chand behaved obsessively towards Berberich. Chand would spy on Berberich (look through the shared fence or sit on his roof), wait for her to return from work, visit one of her places of employment (a restaurant), blow her kisses, leave her notes or little gifts, scream obscenities at her, attempt various social media contacts, allegedly once described her undergarments in a sign placed in his window (the window sign), and attempt to communicate to Berberich's family members as "Dr. Chand." Chand ignored multiple requests by multiple people to leave Berberich alone. Chand's conduct over this period caused Berberich severe emotional distress, stress, fear, and paranoia, and caused her to keep her windows closed and to avoid going outside. Berberich attempted to obtain a restraining order against Chand in 2010, but Berberich "disappeared" for six months, and the process was abandoned.
January 2023
In January 2023, Berberich was a nurse at a hospital in Modesto. Berberich had worked at the hospital for eight years. Either in October 2022 or January 2023, Chand began working at the hospital as a housekeeper. On January 6, 2023, Berberich received a text message from a coworker. The coworker informed Berberich that Chand had asked about Berberich, how she was doing, and where she worked at the hospital. The coworker stated that Chand said he really liked Berberich and he was depressed. This caused Berberich to have emotional distress and fear because Chand had managed to find her and was attempting to have some sort of contact with her. Berberich contacted the hospital's human resources department. Hospital security began escorting Berberich to and from her car, and Berberich began to stay only in her unit so that she did not see Chand in the hospital's halls.
February 8, 2023 Hearing on Request for Restraining Order
At the February 8, 2023 hearing on Berberich's request for a restraining order, the trial court heard testimony from Chand and Berberich. Berberich testified about Chand's inquiries about her at the hospital and also about Berberich's behavior towards her from 2008 to 2020.
Chand testified that he got the job at the hospital and was interested in his "old friend." Because of his interest, Chand asked hospital staff about Berberich. Chand was aware that Berberich did not want any contact with him, but nonetheless he wanted to be friendly. Chand felt that Berberich needed to "get over" her emotional problems as they related to him. Chand denied any romantic interest in Berberich. Chand said that he could work at a different job site, but he wanted to work at the hospital. Chand was asked about the window sign, but he had no recollection of putting up such a sign. The trial court found Berberich to be credible but found Chand to not be an "accurate historian," particularly regarding his motivations for getting information about Berberich. The court found that Chand's motive in seeking information about Berberich at the hospital was to continue his years-long interest in Berberich. The court determined that the lengthy pattern of harassment from 2008 to 2020, combined with the "implausible assertions of Chand as well as his view of how Berberich behaved" was sufficient to demonstrate a pattern of harassment. The court issued a three-year harassment restraining order against Chand.
DISCUSSION
A. Parties' Arguments
Chand argues that he got the job at the hospital through his relatives in October 2022 and that there was no substantial evidence to support a finding that he began his job in January 2023. Chand also argues that there is no evidence that he put the window sign in his window, and, contrary to the settled agreement, no picture was ever presented at the hearing. Chand also argues that there is no substantial evidence that he engaged in harassment at work since he merely asked Berberich's friend about her. Berberich did not file an opposing brief or appear in this appeal. Nevertheless, we are not persuaded by Chand's arguments.
B. Legal Standards
In order to help protect the California constitutional right to the pursuit of safety, happiness, and privacy, Code of Civil Procedure section 527.6 provides for expedited injunctive relief to the victims of "harassment." (Olson v. Doe (2022) 12 Cal.5th 669, 677; Hansen v. Volkov (2023) 96 Cal.App.5th 94, 103 (Hansen).) For cases that do not involve violence or a threat of violence by a harasser, harassment consists of: "(1) 'a knowing and willful course of conduct' entailing a 'pattern' of 'a series of acts over a period of time, however short, evidencing a continuity of purpose'; (2) 'directed at a specific person'; (3) 'which seriously alarms, annoys, or harasses the person'; (4) 'which serves no legitimate purpose'; (5) which 'would cause a reasonable person to suffer substantial emotional distress' and 'actually cause[s] substantial emotional distress to the plaintiff'; and (6) which is not a '[c]onstitutionally protected activity.'" (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762; see § 527.6, subd. (b)(3); see also Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1227 (Parisi), disapproved on another ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) A person who has suffered "harassment" may seek a temporary restraining order with or without notice and an order after hearing prohibiting harassment. (§ 527.6, subd. (a); Harris v. Stampolis (2016) 248 Cal.App.4th 484, 496.) At the hearing, the judge receives relevant testimony and "may make an independent inquiry." (§ 527.6, subd. (i); Hansen, at p. 103; Harris, at p. 496.) If the trial court finds by clear and convincing evidence that "harassment" exists and is reasonably likely to recur, the trial court may issue a restraining order. (§ 527.6, subd. (i); Hansen, at p. 103; Harris, at p. 496.)
All further undesignated statutory references are to the Code of Civil Procedure unless otherwise noted.
When reviewing an order granting a harassment restraining order, there are several standards applicable depending on the nature of the review. (See Hansen, supra, 96 Cal.App.5th at p. 104; Parisi, supra, 5 Cal.App.5th at p. 1226.) First, the express and implied factual findings of the trial court are reviewed for substantial evidence. (Parisi, at p. 1226; R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188 (R.D.).) For factual findings that are to be found by "clear and convincing evidence," appellate courts must determine whether there was substantial evidence from which the trier of fact could have found it highly probable that the fact was true. (Conservatorship of O.B., supra, 9 Cal.5th at p. 1011; Hansen, at p. 104.) The appellate court "views the record in the light most favorable to the prevailing party below and give[s] 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." (Conservatorship of O.B., at pp. 1011-1012; Hansen, at p. 104; see Parisi, at p. 1226.)" 'Declarations favoring the prevailing party's contentions are deemed to establish the facts stated in the declarations, as well as all facts which may reasonably be inferred from the declarations ….'" (Parisi, at p. 1226.) Second, whether the factual findings are sufficient to constitute "harassment" is a question of law that appellate courts review de novo. (Hansen, at p. 104; R.D., at p. 188.) Finally, the trial court's ultimate decision to issue a harassment restraining order is reviewed for an abuse of discretion. (Yost v. Forestiere (2020) 51 Cal.App.5th 509, 523; Parisi, at p. 1226.)
C. Analysis
When we view the entire record in the light most favorable to Berberich as the prevailing party, accept the trial court's determination that Berberich was credible and Chand was not, and consider the clear and convincing evidence necessary to demonstrate harassment, (Conservatorship of O.B., supra, 9 Cal.5th at pp. 1011-1012; Hansen, supra, 96 Cal.App.5th at p. 104; Parisi, supra, 5 Cal.App.5th at p. 1226), we conclude that substantial evidence supports all six elements of harassment under section 527.6.
The record reflects a twelve-year pattern of unwanted contact and attention while Chand and Berberich were neighbors. The course of conduct involved unwanted gifts, spying, attempted virtual and actual contact, and attempted contact with Berberich's family members through a false medical persona, all despite numerous requests for Chand to leave Berberich alone. Berberich represented that the 12-year pattern caused her emotional distress, paranoia, and fear, and affected how she behaved in her own home. Chand's January 2023 inquiry brought this previous pattern and its fears flooding back to Berberich, which in turn caused her to modify her movements at work by obtaining hospital security escorts and staying in her own unit during shifts. The length and nature of the pattern, including the January 2023 inquiry, not only annoyed and caused Berberich several forms of substantial emotional distress, but they could also be expected to cause the same distress in a reasonable person. There is nothing to suggest that Chand's conduct towards Berberich was anything other than willful and knowing, particularly because the record shows that Chand disregarded requests to leave Berberich alone, including being blocked through social media. We detect no legitimate purpose or constitutionally protected behavior within this pattern of harassment.
We acknowledge that, in a vacuum, merely asking a third-party coworker about where Berberich worked in the hospital is not harassment for purposes of section 526.7. Nevertheless, Chand also told the coworker that he liked Berberich and was depressed. It could be inferred from the description of the inquiry, as well as the fact that the coworker reported the contact to Berberich herself, that the coworker felt uncomfortable and that there was something wrong about the inquiry. (Cf. Hansen, supra, 96 Cal.App.5th at p. 104 [reviewing court accepts reasonable inferences from the evidence in favor of the prevailing party]; Parisi, supra, 5 Cal.App.5th at p. 1226 [reviewing court accepts reasonable inferences from declarations in favor of the prevailing party].) Further, and of significant import, Chand's testimony about his inquiry and the reason for it was illuminating. Chand described Berberich as his "old friend" even though Berberich's testimony makes it impossible to characterize the relationship as "friendly." Chand also acknowledged that he knew that Berberich did not want him to contact her, yet he took steps to locate Berberich because he wanted to be friendly. This demonstrates a disregard for the reasonable wishes of Berberich and a failure to recognize that friendship is not something that is unilaterally imposed upon another. Finally, Chand also said that he inquired after Berberich because he believed that Berberich needed to "get over" her emotional problems towards him. This particular aspect of Chand's testimony is troubling. It suggests that he thinks that he knows what is best for Berberich and that he intended to continue to contact or observe Berberich so that she would get over her emotional problems. It also shows a denial of the fact that those emotional problems were caused by Chand's conduct and his refusal to simply leave Berberich alone. Therefore, Chand's testimony, combined with the twelve-year pattern of harassment, constitute substantial evidence that Chand's inquiry was another of his continued harassment of Berberich. (R.D., supra, 202 Cal.App.4th 181 at pp. 189-190 ["Behavior that may not alone constitute an intentionally harassing course of conduct logically still might show an intention to resume or continue an already established course of harassing conduct"].)
Chand contends that the trial court erroneously believed Berberich's testimony that he began employment with the hospital in January 2023, when in fact he began working at the hospital in October 2022. However, a review of the settled statement does not show that the court expressly made any findings regarding Chand's start date with the hospital. Nor do we believe that the court made any implicit findings regarding the start date. This is because the start date is irrelevant. Whether Chand began working in October 2022 or January 2023 does not change the fact that there was a previous twelve-year pattern of harassment, Chand knew that Berberich wanted no contact from him, and yet he decided that he wanted to be friendly because he determined that Berberich needed to get over her emotional problems towards him. That is, the start date does not affect Chand's intent at the time he actually made the inquiry, particularly in light of Chand's testimony about the inquiry and the past 12-year pattern of harassment.
Chand also argues that no picture of the window sign was ever admitted or submitted at the February 8, 2023 hearing. However, like the issue of the start date, the trial court did not actually make any findings concerning the window sign, and the window sign is irrelevant to the findings actually made. The window sign was a single example of harassing conduct that occurred before Chand began working at the hospital. Whether a single incident that merely involved a window sign (although clearly embarrassing) in no way lessens the severity of the other acts of harassment and unwanted conduct between 2008 and 2020. It also in no way undermines the findings regarding Chand's intent behind his January 2023 inquiry concerning Berberich.
In sum, we are satisfied that substantial evidence supports the trial court's express and implied findings. (Parisi, supra, 5 Cal.App.5th at p. 1226; see also Conservatorship of O.B., supra, 9 Cal.5th at pp. 1011-1012.) The court's findings sufficiently show Chand engaged in harassment that was likely to continue. (§ 527.6, subd. (i); Hansen, supra, 96 Cal.App.5th at p. 104.) Accordingly, we conclude that Chand has not demonstrated that the court abused its discretion by issuing the civil harassment restraining order. (Parisi, at p. 1226; see also R.D., supra, 202 Cal.App.4th 181 at pp. 189-190.)
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
[*] Before Poochigian, Acting P. J., Smith, J. and De Santos, J.