Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIC536544. Christian F. Thierbach, Judge.
Andre F. Kiaii, in pro. per., for Defendant and Appellant.
Darrell S. Breckenfeld, in pro. per., for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant and appellant Andre F. Kiaii appeals from a restraining order issued pursuant to Code of Civil Procedure section 527.6, which prohibits him from contacting or harassing plaintiff and respondent Darrell S. Breckenfeld. We affirm.
All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On or about September 22, 2009, respondent filed a request for an order to stop harassment against petitioner. A temporary restraining order was issued pending a full hearing on the merits of the request. On October 16, 2009, the court held an evidentiary hearing on the request and considered testimony by appellant and respondent, as well as documentary evidence submitted by the parties. The court granted a restraining order in respondent’s favor for a period of three years. The order prohibits appellant from harassing, attacking, striking, stalking, following, blocking, closely watching, or contacting respondent by telephone, messages, mail, or e-mail. Prior to the court granting this order, appellant attempted to obtain a restraining order against respondent, but the court denied the request.
DISCUSSION
Sufficiency of the Evidence
Appellant contends there is insufficient evidence to support the restraining order. He believes no evidence or witnesses were presented to the court to establish by clear and convincing evidence he harassed respondent or is a danger to respondent or his family. According to appellant, respondent lied and mislead the court.
Under section 527.6, “[a] person who has suffered harassment” may seek “an injunction prohibiting harassment....” (§ 527.6, subd. (a).) “ ‘Harassment’ ” includes “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. The 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.” (§ 527.6, subd. (b).) 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....” (§ 527.6, subd. (b)(3).)
“The defendant may file a response that explains, excuses, justifies, or denies the alleged harassment....” (§ 527.6, subd. (d).) Section 527.6 sets forth a “procedure for what is in effect a highly expedited lawsuit on the issue of harassment.” (Schraer v. Berkeley Property Owners’ Assn. (1989) 207 Cal.App.3d 719, 732.) Although there is “no full trial on the merits, ” the court must hold a hearing and cannot decide the matter based solely on written declarations and other documentary evidence. (Id. at pp. 731-732.) “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 injunction shall issue prohibiting the harassment. An injunction issued pursuant to this section shall have a duration of not more than three years.” (§ 527.6, subd. (d).)
“In assessing whether substantial evidence supports the requisite elements of willful harassment, as defined in Code of Civil Procedure section 527.6, we review the evidence before the trial court in accordance with the customary rules of appellate review. We resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge in all legitimate and reasonable inferences to uphold the finding of the trial court if it is supported by substantial evidence which is reasonable, credible and of solid value. [Citations.]” (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.)
Contrary to appellant’s contention, our review of the record revealed more than enough evidence to justify the issuance of a three-year restraining order under section 527.6. At the hearing, the court considered testimony and documentary evidence by both appellant and respondent. Respondent said he had been living in his neighborhood for about 13 years, and defendant moved into the area in March 2009. In June 2009, appellant began complaining to respondent and to code enforcement authorities about cars and trucks being parked on the street. In response to appellant’s complaints, code enforcement authorities “marked” all of the cars and trucks parked on the street in the area. Respondent contacted code enforcement authorities and was told “you’re okay” as long as you move your vehicle within three days. As a result, the neighbors “would all get up and move [their] cars around and coordinate the spots, ” so no one would be parked in the same space for more than three days.
One day, respondent parked his truck in front of appellant’s house because it was the only open space. Appellant came running out of the house and confronted respondent on his property, arguing respondent “maliciously” parked his car there. Appellant provided the court with a picture taken during the confrontation.
Next, appellant began calling respondent at work to get respondent to move his vehicle and once again had respondent’s vehicle “marked.” One morning, when respondent went out to move his vehicle, appellant came outside and started yelling and screaming at respondent, threatening and calling him a “bigoted redneck and racist.” He also put his garbage can behind respondent’s vehicle so he could not back up and followed respondent to his home “screaming” that respondent was a “racist.”
The next day, appellant moved his garbage cans in front of respondent’s house so respondent could not park his car there. Respondent moved the garbage cans and parked in front of his own home. Appellant left a message on respondent’s vehicle calling him a “racist and a bigot” and telling him he needed to move his truck. According to respondent, appellant mailed the note to the police department and the homeowners association. Appellant then sought a temporary restraining order against respondent, which was denied by the court.
Respondent also testified appellant appears to be home “all the time” and stands in his window. He watches and takes pictures of respondent’s home. In addition, appellant has handed him “fake criminal” court cases attempting to extort money. The evidence indicates appellant’s conduct continued relentlessly over several months.
On September 14, 2010, respondent filed a request to augment the record on appeal with a copy of the request for order to stop harassment, filed September 22, 2009, along with supporting documents attached thereto, including a summary and timeline, four code enforcement warnings, a demand letter, and a photograph. Respondent’s request is granted. In his declaration requesting a restraining order, respondent complained of verbal harassment, threats, physical harassment that impeded his movement, as well as written harassment and threats. The declaration states, appellant “threatened to sue/shoot me if I park in front of his house.... [Appellant’s] verbal harassment and written letters of accusations are causing deep concern and fear within our family. His rage appears to be escalating with each day that he cannot dictate where we park our truck.”
Following respondent’s testimony, the court asked appellant, “What is your side of the story?” Appellant responded, “his allegations are totally false.” He then accused respondent of collaborating with neighbors and making “derogatory comments” about him because of his “Middle Eastern background.” Appellant also submitted exhibits to the court to show respondent “purposely, maliciously and intentionally parked his big clunker or old truck in front of [appellant’s] house from September 1st, to and including September 15th” even though there was “ample space on [respondent’s] side.”
The court responded, “So, it’s a public street. He can park on a public street wherever he wants. [¶]... [¶] [Y]ou need to answer my question.... He’s saying that you are harassing him, that you’re calling him at work, that you’re threatening him, and I need to know your side of the story.” Appellant denied harassing or calling respondent but admitted he threatened to sue respondent “when he backed his truck against me, almost hitting me and my garbage can.” Appellant argued respondent was seeking a restraining order in retaliation because appellant previously sought a restraining order against respondent, which was denied.
The court said, “I’m going to give you one last chance. Tell me why I shouldn’t grant his request for a restraining order.” Appellant said, “Because it’s perjury, your Honor. I have witnesses here. This is perjury. He’s doing this out of retaliation. I have never menaced him. I have never gone to his house... I have two witnesses who would testify that this is basically racially motivated, and the fact that he’s taking the legal system to take revenge against me. That’s basically what it is.”
In reaching its decision, the court assumed appellant’s witnesses would testify as appellant claimed. The court said, “I believe [respondent] when he says that you apparently have this paranoid fixation on trucks and cars being parked out on the street. And I believe him when he says you’ve been harassing him and telling him that you’re going to take him to court, you’re going to do any number of things unless he stops doing that. And it’s abundantly clear, by even your own information that you have supplied the court, that you were constantly on the phone with Code Enforcement people, having them come out there and tag these cars. This is a public street. People can park on the street. I agree with you that it looks terrible... but there’s no law to prohibit that. [¶]... [¶] The question before the Court today is whether or not the Court should issue the restraining order, and I am going to issue it. The Court finds that you have engaged in a regular pattern of harassing [respondent], and that—to quote from... section 527.6, that you have engaged in a willful course of conduct directed at the [respondent] that seriously alarms, annoys or harasses him, and that it serves no legitimate purpose; and that that conduct would cause a reasonable person to suffer, and that the plaintiff did suffer substantial emotional distress as a result of your conduct.”
In sum, respondent’s testimony at the hearing on October 16, 2009, was detailed and compelling. The conduct he described, which continued to occur over an extended period of time, was significantly greater than the usual “inconveniences and annoyances from the reasonable use of property by neighbors.” (Schild v. Rubin, supra, 232 Cal.App.3d at p. 763.) This conduct was outrageous and unreasonable. It was also quite aggressive and menacing. A reasonable person would naturally be distressed by appellant’s behavior. In addition, it is apparent from the transcript of the hearing that appellant would not have refrained from similar and even escalating conduct if the court had not issued the restraining order. As the trial court pointed out in support of its ruling, even appellant’s “own information” indicated he was obsessively opposed to vehicles being parked on the public streets in his neighborhood. Based on his statements during the hearing, appellant did not in any way appear to be inclined to accept that his neighbors could legally park their vehicles anywhere they wanted along the public streets in and around his home.
In reaching our conclusion, we reject appellant’s argument that respondent’s testimony at the hearing was not enough to show by clear and convincing evidence that appellant harassed respondent. It is well established that the testimony of a single witness is enough to support a judgment. (Fariba v. Dealer Services Corp. (2009) 178 Cal.App.4th 156, 171.) It was also within the court’s discretion to believe respondent and disbelieve appellant. As the fact finder, the trial court may reject witness testimony as part of a credibility assessment. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204-1205.) In other words, a reversal could not be justified based on appellant’s mere denial of respondent’s harassment allegations during his testimony or his claim that respondent was simply not telling the court the truth at the hearing. “ ‘ “[I]t is the exclusive province of the trial judge... to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.” ’ ” (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 866-867.) “We have no power on appeal to weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or the reasonable inferences that may be drawn from the evidence. [Citation.]” (Navarro v. Perron (2004) 122 Cal.App.4th 797, 803.)
In sum, appellant’s conduct, as described in respondent’s testimony, was sufficient to establish by clear and convincing evidence that appellant had engaged in a course of harassing conduct specifically directed at respondent with no legitimate purpose. From respondent’s testimony, it could also be inferred a reasonable person would suffer substantial emotional distress because of respondent’s aggressive and offensive conduct over an extended period of time.
Evidence Exclusion
Appellant believes the trial court erroneously disallowed testimony by code enforcement officers who would say he only contacted authorities when respondent parked several idle and “not-for-use” cars and trucks in front of his residence for weeks at a time, resulting in code violations and tickets.
The record simply does not support appellant’s contention the court excluded any relevant evidence. Although appellant indicated he “had witnesses” who would testify on his behalf, he said they would support his contention respondent’s request for a restraining order was for the purpose of “revenge” and was “racially motivated.” At no time did appellant tell the judge that code enforcement officials were present and willing to testify that any of his actions were motivated by a legitimate purpose.
To the contrary, respondent claims a code enforcement officer testified on his behalf in a prior proceeding when appellant was attempting to obtain a restraining order against respondent. The code enforcement officer apparently told the court respondent had never received any violations or tickets for parking his vehicle illegally on the street in the parties’ neighborhood. The code enforcement officer simply placed warnings on the vehicle in response to appellant’s complaints that the vehicle was “idle, ” but the vehicle was always moved thereafter.
Judicial Bias
Appellant argues the trial judge should have disqualified himself from ruling on the matter because he is prejudiced against appellant based on his Middle Eastern heritage. According to appellant, the trial judge’s demeanor and tone of voice became hostile toward him after he indicated he is a Middle Eastern-American.
Contrary to appellant’s contention, no bias is apparent from the record. The transcript of the hearing does indicate the court’s tone did change at the end of the hearing, after the ruling was given, when appellant continued to argue with the court. Appellant said the court had not “given [him] the chance.” However, the court said, “I have given you the chance to explain your side of the story, and I believe that you have engaged in a pattern of harassment, sir. I’m not going to argue with you. Sit down.” Appellant continued to argue even after being told to sit down, and the court then said, “You’re going to sit down or leave this courtroom. I don’t want to hear from you again. You are restrained....” A recess was called when appellant still persisted in arguing with the court. Thus, it is apparent the court’s change of tone was based on frustration with appellant when he would not accept the ruling and persisted in further arguments after the court indicated the hearing was over.
Moreover, appellant forfeited this contention by failing to file a disqualification motion below. (§ 170.3, subd. (c); People v. Samuels (2005) 36 Cal.4th 96, 114.) In addition, a statutory claim of judicial bias must be raised by writ; it cannot be raised on appeal. (§ 170.3, subd. (d); People v. Brown (1993) 6 Cal.4th 322, 335-336.) Failure to pursue a statutory bias claim will also bar a nonstatutory, constitutional bias claim. (Ibid.)
Scope of Restraining Order
Appellant claims the restraining order is erroneous and nonsensical, because he lives 20 feet away from respondent and the restraining order requires him to say 100 feet away from respondent. He also complains the restraining order is absurd and nonsensical because it prohibits him from hiring a process server or attorney to contact respondent in any way.
“[A] judicial remedy must be tailored to the harm at issue. [Citations.] A court should always strive for the least disruptive remedy adequate to its legitimate task.” (Butt v. State of California (1992) 4 Cal.4th 668, 695-696.)
The evidence indicates appellant and respondent are neighbors who live across the street from one another. The court’s order says appellant must stay at least 100 feet away from respondent, his home, and his vehicle. The minimum width of a city street is 40 feet. (Sts. & Hy. Code, § 1805.) Without more, it appears appellant may technically be in violation of the order if he is simply present on his own property. The order as written could also preclude appellant from coming and going from his own property. As a result, the order must be modified so it is more carefully tailored to address the “harm at issue.” However, we disagree with appellant’s contention the order could be interpreted broadly enough to preclude a protected activity such as lawful service of process by a disinterested third party.
Respondent represented in his brief on appeal that appellant’s home “is not directly across the street... but across and one to the left.”
DISPOSITION
The judgment is affirmed. The trial court is directed to modify the restraining order to provide that appellant must stay 50 feet away from respondent, respondent’s home, and respondent’s vehicle at all times, unless he is on his own property, or if a shorter distance cannot be avoided for ingress and egress of his own property. In all other respects, the restraining order is affirmed.
Each party to bear their own costs on appeal.
We concur: McKINSTER J., RICHLI J.