Opinion
D080617
04-25-2024
DEL MAR UNION SCHOOL DISTRICT et al., Plaintiffs and Respondents, v. NATALIE R., Defendant and Appellant.
The Law Office of Marc S. Kohnen and Marc S. Kohnen for Defendant and Appellant. Artiano Shinoff, Paul V. Carelli IV, Daniel R. Shinoff and Maurice A. Bumbu for Plaintiffs and Respondents.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, Super. Ct. Nos.: 37-2022-00003524-CU-PT-CTL, 37-2021-00050354-CU-HR-CTL Richard S. Whitney, Judge. Affirmed in part and reversed in part.
The Law Office of Marc S. Kohnen and Marc S. Kohnen for Defendant and Appellant.
Artiano Shinoff, Paul V. Carelli IV, Daniel R. Shinoff and Maurice A. Bumbu for Plaintiffs and Respondents.
KELETY, J.
Defendant Natalie R. appeals two restraining orders entered against her for the protection of three employees of plaintiff Del Mar Union School District (District or School District). One order is to protect a teacher, plaintiff Caitlin Fallon-McKnight, from civil harassment. The other order is to protect school administrators Nadine Schick and Jenni Huh from workplace violence. R. contends that, for each of several reasons, the orders should be reversed. The School District and Fallon-McKnight contend the orders should be affirmed. For the reasons set forth below, we reduce the term of the workplace violence restraining order from five years to three years. In all other respects, we affirm both orders.
I.
Introduction
A. The Parties and the Protected Persons
R. describes herself as "a single mother to a child with disabilities, who has an Individualized Education Plan ('IEP') and who is in [her] care 100% of the time." From kindergarten through the sixth grade, R.'s child attended Ashley Falls School (Ashley Falls) in the School District.
The School District is a public agency that includes eight schools housed on seven campuses. Among the many District personnel with whom R. has directly interacted over the years are Fallon-McKnight, Schick, and Huh. Fallon-McKnight has been a general education classroom teacher at Ashley Falls since approximately 1998. In that capacity she has served the needs, not only of "general ed" students, but also of certain "special ed" students who, like R.'s child, spend part (but not all) of their school day in a general ed classroom with students not identified as requiring special ed services.
Whereas Fallon-McKnight works at a single school, Schick and Huh work districtwide. Schick has been the District's Director of Special Education and Student Support since 2019 and reports to Huh. Huh has been the District's Executive Director of Student Services-with responsibility for overseeing the special education department, campus safety, and student well-being-since 2018.
B. The Relationship Between R. and the School District
The relationship that has developed between R. and the District over the years has been fraught with recriminations and unpleasant experiences.
R. has leveled accusations of various sorts against teachers, aides, and other District personnel over the years. Some of those accusations- including claims of child abuse, child endangerment, child neglect, intentional infliction of emotional distress, discrimination, falsifying records, retaliation, bullying, and toleration of bullying-have focused on the manner in which R. contends District personnel have comported themselves toward her child. Other accusations-including harassment, false imprisonment, stalking and retaliation-have focused on the manner in which R. contends District personnel have comported themselves toward her.
The District, for its part, has accused R. of having often interfered in its educational mission by engaging in such behaviors as inundating teachers, aides, and other District personnel with an excessive volume of e-mail correspondence and demanding that they immediately respond; not affording a reasonable amount of time for teachers to respond to such communications; sending insistent follow-up e-mails; buttonholing teachers at inopportune times during instructional hours; entering and refusing to leave classrooms while teachers are engaged in confidential meetings with other parents; interrogating and raising her voice to students (including those with special needs) other than her child; interrupting, raising her voice, and speaking in a rude, disrespectful, and combative manner in encounters with teachers, aides, and other District personnel; being present on the Ashley Falls campus without signing in and without authorization; making video and audio recordings of students and staff without authorization; bringing food onto campus in violation of safety restrictions intended to protect children with allergies, and sneaking it to her child after having been admonished not to do so; refusing to abide by protocols promulgated to address such concerns; and failing to meaningfully respond to requests to discuss such concerns.
The behaviors R. has attributed to the School District have led her to lodge complaints not only with teachers, aides, principals, administrators, and the District's governing board, but also with San Diego County's Office of Child Welfare Services, its District Attorney, and the United States Department of Education's Office of Civil Rights. The behaviors the School District has attributed to R. have led it not only to promulgate communication protocols specific to R., but also to report R. to the County's Office of Child Welfare Services, and, on no less than three occasions, to issue "stay away" orders directing R. to remain off the Ashley Falls campus for (on each occasion) a period of 14 days.
In addition, R. and the District have initiated litigation against one another; R. has reported an Ashley Falls principal to police; District personnel have on multiple occasions reported R. to police; and R. and District personnel each have expressed a low regard for one another's veracity.
C. Escalation During the 2021-2022 School Year
Throughout most of the time that R.'s child has been a student at Ashley Falls, the relationship described above has remained at a proverbial simmer. But in autumn of 2021, it rose to a boil. During this period, there occurred a sequence of events that culminated in Fallon-McKnight seeking and obtaining civil harassment restraining orders against R., and in the School District seeking and obtaining workplace violence restraining orders against R.
We shall discuss this sequence of events and the restraining orders shortly, following a brief introduction to the statutory framework that governs these types of restraining orders-and, in particular, such orders predicated on credible threats of violence.
II.
Credible Threats of Violence and Restraining Orders Under Code of Civil Procedure Sections 527.6 and 527.8
Sections 527.6 and 527.8 of the Code of Civil Procedure govern civil harassment restraining orders and workplace violence restraining orders.
All further undesignated statutory references are to the Code of Civil Procedure.
Section 527.6 permits a person who "has suffered harassment" in the form of "a credible threat of violence" to seek injunctive relief for their protection. (§ 527.6, subds. (a)(1), (b)(1)-(3).) In like fashion, section 527.8 permits an employer to seek injunctive relief for the protection of an employee who "has suffered . . . a credible threat of violence . . . that can reasonably be construed to be carried out or to have been carried out at the workplace."(§ 527.8, subd. (a).)
Section 527.6 furnishes a mechanism for seeking injunctive relief not only to protect persons who have suffered harassment in the form of a "credible threat of violence," but also to protect persons who have suffered harassment in the form of either actual "unlawful 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." (§ 527.6, subds. (a)(1), (b)(1)-(3).)
Section 527.8 furnishes a mechanism for seeking injunctive relief not only to protect employees who have suffered a "credible threat of violence," but also to protect employees who have suffered actual "unlawful violence" (§ 527.8, subd. (a) (italics added)), as well as colleagues of employees who have suffered actual violence or a credible threat of violence. (§ 527.8, subd. (a).)
For both sections, a" '[c]redible threat of violence' is a knowing and willful statement or course of conduct that would place a reasonable person in fear for their safety, or the safety of their immediate family, and that serves no legitimate purpose." (§ 527.8, subd. (b)(2); accord § 527.6, subd. (b)(2) [same definition phrased slightly differently].) Thus, a person who has suffered a knowing and willful course of conduct that would place a reasonable person in fear for her safety, and that serves no legitimate purpose, may seek injunctive relief under section 527.6 or 527.8.
A court from which relief is sought under either of these provisions may enter a temporary restraining order (TRO) to provide short-term relief. (§§ 527.6, subds. (d) &(f), 527.8, subds. (e) &(g).) But, before it can enter a restraining order providing longer-term relief, the court must conduct a hearing at which it "shall receive any testimony that is relevant, and may [also] make an independent inquiry." (§§ 527.6, subd. (i), 527.8, subd. (j).)
Following a hearing under section 527.6 , "[i]f the judge finds by clear and convincing evidence that unlawful harassment [e.g., in the form of a credible threat of violence] exists, an order shall issue prohibiting the harassment." (§ 527.6, subd. (i); see also id., subd. (b)(3)); and, following a hearing under section 527.8, "[i]f the judge finds by clear and convincing evidence that the respondent . . . made a credible threat of violence, an order shall issue prohibiting further . . . threats of violence." (§ 527.8, subd. (j).)
For each type of post-hearing restraining order (order after hearing), the code imposes a cap on the order's duration. The cap is five years for a civil harassment restraining order after hearing (§ 527.6, subd. (j)(1)), and three years for a workplace violence restraining order after hearing. (§ 527.8, subd. (k)(1).)
Despite the cap, both types of orders after hearing may be renewed. (§§ 527.6, subd. (j), 527.8, subd. (k).)
Distilling the foregoing to its essence: An order after hearing of proper duration must issue if clear and convincing evidence establishes that the person for whom protection is sought suffered (1) a course of conduct by the person sought to be restrained that (2) was knowing and willful, (3) would place a reasonable person in fear for their safety, and (4) served no legitimate purpose.
III.
Events of 2021 and 2022 Culminating in Issuance of the Orders After Hearing
A. Events that Preceded November 16, 2021
In the late summer of 2021, R.'s child commenced sixth grade at Ashley Falls. In August of that year, the school hosted a back-to-school night at which it welcomed parents to campus to attend presentations by their children's teachers. Each presentation was to a group of parents. R. attended one presentation in the classroom of her child's special ed teacher, Katherine Kirby; and she attended another in the classroom of her child's general ed teacher, Fallon-McKnight.
Because past experiences and existing tensions led her to be concerned that R. might be disruptive, Schick arranged to be present in the special ed classroom during Kirby's presentation there, and for one of the District's assistant superintendents, Ryan Stanley, to be present in the general ed classroom during Fallon McKnight's presentation there.
The presentation to the parents in Kirby's classroom went off the rails almost immediately. According to Schick:
"The purpose of [back-to-school night] is for the families to be able to hear the learning that's going to occur.
Typically . . . our staff goes over a presentation and then allows questions at the end. [¶] Ms. Kirby . . . went through one slide before Ms. [R.] started being verbally aggressive toward her, started asking her things about implementing her child's IEP, starting [by] saying, 'Why haven't you been implementing my child's IEP? When am I going to have an IEP meeting? I've been asking for an IEP meeting.' [¶] She was . . . walking closer and closer to [Ms. Kirby]. [¶] I kept telling Ms. [R.] that the purpose of back-to-school night was for all parents to be able to listen to what the learning was going to be, and I had told her that we already had an IEP meeting scheduled for later in the school year and that she could bring up those questions at a later time, but that it was not appropriate during this period of time. [¶] We never returned to the slides. Ms. Kirby never was able to go back and talk about the learning that the other children were going to be having in the classroom that year."
R. disputes this account. According to R.: Schick was "circling me like a shark" and "look[ing] really erratic" that evening. "It made me dizzy how she was circling." R. asked just one question of Kirby, and that question was innocuous. "Any time I spoke, [Schick] started writing. . . [I]t was . . . really obvious she was following me." When R. rose to leave the classroom, Schick rose, too. "I was like, 'Oh, my God, she's like totally mirroring me and following me' and I just wanted to leave. I felt so uncomfortable."
The presentation to the parents in Fallon-McKnight's classroom, by contrast, proceeded without incident. Unlike Kirby, Fallon-McKnight did not have a pre-existing relationship with R. In fact, Fallon-McKnight and R. had never met. Fallon-McKnight had been told in advance that she should never be in a room alone with R. But she nonetheless decided to approach R. "with an open heart and open mind" and "g[i]ve her the benefit of the doubt." She noted to herself that R. "was acting weird" during the presentation. "She was totally out of it." But she concluded the "weird" behavior might be attributable to R. just feeling nervous or uncomfortable.
As the fall semester progressed and she participated in IEP meetings with R., Fallon-McKnight began to develop concerns about R.'s behavior (albeit these concerns did not relate to the potential for violence). Fallon-McKnight states:
"I have never sat in IEP meetings like the ones that I sat in with [R.]. [¶] She was making accusations against my colleagues that were not true. [¶] She accused . . . people on the team of not doing their jobs and doing [their jobs] incorrectly and falsifying information. [¶] [S]he was very rude and her lawyer was very rude. [¶] [S]he raise[d] her voice. She interrupt[ed]. [¶] [S]he d[id]n't listen."
During the second half of the semester, on Monday, October 25, R. sent to Schick-with copies to Fallon-McKnight, Karly Pecorella (the Ashley Falls principal), Holly McClurg (the District's superintendent), and others-an email in which she (R.) lodged complaints on a range of topics, including expressions of dissatisfaction with the manner in which District personnel were proposing to fill out a questionnaire for use in assessing her child; an allegation that the District had failed to respond to "numerous emails . . . asking that [she] be allowed to challenge . . . false and inaccurate information in [her] child's records"; and a claim that the District had violated her privacy rights and her child's privacy rights by publishing at its website an agenda for a meeting of the District's governing board in which she and her child were identified by name "as an agenda item for 'anticipated litigation.' "
Two days later, on Wednesday, October 27, R. appeared before members of the School District's governing board in person. At the public meeting, she accused the District of having purposefully violated her privacy rights and her child's privacy rights by publicly disclosing personally identifiable information about them "in retaliation for [her] advocacy for [her child] and complaints made against the District and [its] Superintendent."
Two days after this, on Friday, October 29, at R.'s request, Schick filmed R.'s child during recess to facilitate an observation of R.'s child. Later that day, R. sent Pecorella (the principal) an angry e-mail accusing Schick of having intentionally inflicted emotional distress on her child by recording the child at a range so close that Schick's "phone [was] right up on" the child,and by continuing to follow the child at a close range notwithstanding the child's efforts "to get away."
Schick disputes this accusation. As she explains: "[T]he whole purpose is to not disrupt what's going on so that you get a natural observation of what's happening. I remained about 15 to 20 feet away from [R.'s child]."
On Monday, November 1, three days after having transmitted the email to Pecorella, R. forwarded it to the District's governing board, writing:
"Good evening DMUSD Board members, "[¶ . . . ¶]
"As . . . described [in the accompanying email], Schick intentionally and willfully caused . . . mental suffering and harm to my disabled child on Friday[, October] 29, 2021, . . . in retaliation for my advocacy for my child.
"To make matters worse, when my child tried to get help from . . . Karly Pecorella, she [Pecorella] yelled at [me], pointed her fingers in my face and said [I had instructed Schick] to do [what she did].
"No parent would ever tell district staff to chase a disabled child around the blacktop with a video recorder while the child was covering their face and trying to get away. That is insane. It was barbaric and unbelievable that no one stopped her.
"I would like to file a formal UCP complaint of discrimination and retaliation and child abuse against Karly Pecorella, Nadine Schick, and her boss Jenni Huh and Holly McClurg."
In this e-mail to the governing board, R. also accused District personnel of engaging in additional types of conduct and characterized that conduct as "further harassment and retaliation."
On Thursday, November 4, three days after R. had written to the School District's governing board, Huh participated in a school safety summit presented by local and federal law enforcement representatives from the San Diego District Attorney's office, the Secret Service, the Department of Homeland Security, and Federal Bureau of Investigation. The summit was attended by representatives from the County Office of Education, local school districts, as well as by behavioral and mental health professionals. The summit focused on "how to avert school violence[,] . . . look for characteristics of behavior in people who . . . may engage in school violence on a school campus," and otherwise "identify possible threats." "[I]mportant takeaways" from the summit included data that federal law enforcement personnel had shared on "the type[s] of situations that result in school violence" and a consensus that "very often" such situations involve "a person who perceives the district or the school as somehow harming them or being a threat to them, . . . [who] has a perceived grievance, and is erratic or [engages in] irrational behavior."
The following week (i.e., the week of November 8), Huh discussed these takeaways with Schick. And Schick, who (along with others) already feared R., "definitely . . . became more scared than [she] had ever been."
In Schick's words: "People have been sharing with me since [R.'s child] was in third grade that they were scared of [R.] physically as well as emotionally. We have had staff members that have been afraid for their physical wellness as well as their mental health since as early as third grade." In illustration of these comments, Schick mentioned a former Ashley Falls teacher who had "reached out to [Schick] sometime between the end of October and the beginning of November," 2021, a year and a half after having left the District's employ, and "said that Ms. [R.] had located her on LinkedIn and . . . that she was fearful that Ms. [R.] might know where she was living now and was concerned and wanted to know if there was any reason why Ms. [R.] would be looking for her and if she needed to do anything."
B. The Incident that Occurred on November 16, 2021
The week following the school safety summit discussion, Fallon-McKnight, Schick and R. were involved in an incident that each of them- Fallon-McKnight, Schick, and R.-describe as "terrifying." It was the week of parent-teacher conferences. Fallon-McKnight had previously posted a schedule on which parents were to select a timeslot for their conference; R. had chosen a timeslot for Thursday, November 18; and Fallon-McKnight had arranged for the other additional participants to attend the conference on that date. However, R. had then unilaterally switched to a timeslot (2:40 pm.) on a different day-Tuesday, November 16-when, it turned out, the other participants would not be available. Fallon-McKnight had sent two e- mails to R. to alert her to the scheduling issue and to propose that the conference be restored to the original November 18 timeslot that the other participants had already calendared.
As Fallon-McKnight explains, attendees at the conference for R.'s child were to include Pecorella "because that is our protocol," R.'s child's special ed teacher, and perhaps the child's special ed case manager because, "when we have a special ed. student we're talking about, people that service that child are always in that meeting."
But R. had not acknowledged either of those e-mails, and Schick was concerned that R. might show up on the afternoon of November 16 and disrupt Fallon-McKnight's conference with whatever other parent was now scheduled for the 2:40 p.m. timeslot that day. Thus, Schick had instructed Fallon-McKnight ahead of time that she should lock her classroom door when the 2:40 p.m. conference commenced, "just in case," and had arranged to be present just outside the classroom at that time, so she could be available to support Fallon-McKnight in the event R. were to show up notwithstanding the e-mails Fallon-McKnight had sent her.
Asked whether she had "ever had to make a recommendation to any other school sites that the staff and teacher lock their doors because of a parent," Schick responded, "No."
R. did in fact show up for the 2:40 p.m. timeslot on November 16, and what follows is what Fallon-McKnight, Schick, and R. each say ensued:
1. Fallon-McKnight's Account of the November 16 Incident
According to Fallon-McKnight:
"On Tuesday, November 16, [R.] appeared outside my classroom door while I was engaged in a confidential conference with the parent of another student. Her behavior was belligerent and out of control - she aggressively yelled, knocked, and pounded on the glass with both hands; repeatedly yanked and pulled on the classroom door handle; and even peered into the classroom while I was engaged in my scheduled conference. Thankfully, Nadine Schick . . . [had] recommended that I lock my classroom door beforehand..... When [R.] finally left, I explained to Ms. Schick how threatened, terrified and physically unsafe [R.'s] conduct [had] made me feel. Had the door been unlocked, I genuinely believe [R.] would have barged in and engaged in further verbal aggression and even physically violent behavior towards myself, Ms. Schick or others. At the end of the day, I was so concerned that [R.] would be waiting for me somewhere else on campus that I requested a campus custodian to walk me to my car."
Before being walked to her car, Fallon-McKnight spoke with Schick: "I told her how shocked I was. I'm pretty sure I was trembling. I never, ever had a parent act like that, ever. It's out of character for parents to act like that on a school campus." "I was shocked. I have never felt so unsafe at a school in my life. And that is like my home away from home because I have worked there for 24 years."
2. Schick's Account of the November 16 Incident
Schick reports that, "on November 16, 2021, . . . [R.] appeared outside . . . Ms. Fallon-McKnight's classroom, aggressively yelling, banging, and pounding on the door, while Ms. Fallon-McKnight was in the middle of a confidential parent-teacher conference." Describing the incident from the vantage point of her location in the hallway outside the classroom, Schick states that R.'s behavior "was extremely erratic. She was walking and pacing back and forth." When R. noticed Schick in the hallway, she (R.) "walked directly up" to within "about an arm's length" of Schick and accused Schick of "stalking" her. Schick attempted to explain what Fallon-McKnight had conveyed in the unacknowledged e-mails, but R. said," 'I don't know what you're talking about'" and "continued to pace back and forth and back and forth from the classroom door to the corner."
At some point, R. "peered in through the door, . . . knocked," returned to pacing, and then began "pulling and yanking" and "pound[ing]" on the glass window of the classroom door "with her bare hands."
"Q. [P]ounding on the glass with both hands?
"A. Yes.
"[¶ . . . ¶]
"Q. When you saw this pounding and you heard the noise, what was your reaction?
"A. I started to get - I was nervous already because of her pacing back and forth. Her whole - it's hard to - I keep thinking about that day and I keep thinking about the way she looked. And I can't put my finger on it, really. She kept pacing back and forth. She looked different to me than she had ever looked before. She - I've seen her look angry. She was more than angry.
"[¶ . . . ¶]
"A. [H]er pacing, pacing back and forth, I saw her at a different level than I have ever seen her before. I was concerned just with the way she was pacing back and forth.
"I've never heard anybody, honestly, ever knock on a door the way she had knocked on the door, but certainly not within a school setting in the middle of a confidential parent-teacher conference with a parent and a teacher within a classroom."
Asked to describe R.'s physical appearance and demeanor at the time, Schick states: "She looked different to me than she had ever looked before. She - I've seen her look angry. She was more than angry. She was pacing, pacing, pacing." "I can't explain the body language and her facial expressions, but they were scary. They were expressions I had not seen. I have actually only ever seen those expressions on one other parent's face before, and it was a parent who experienced a psychotic break." Schick further testified, "It's honestly indescribable. It's one of those things where if you were walking down the street and somebody was walking towards you that looked like that, you would cross the street and walk on the other side."
Describing what specifically made her fearful in the hallway that day, Schick says "it was [R.'s] demeanor that scared me." "When I saw her yanking on the door as hard as she was yanking on the door, that was when I became concerned." In that moment, Schick was "concerned for Ms. Fallon-McKnight's . . . and [¶] the other parent's safety," and was also "scared for [her] own well-being." "I was concerned about what would happen if [R.] put her hands on me. I had never been in a situation like that, and I didn't know how I would or should respond."
"I started wondering and thinking, kind of problem solving in my head. I knew that the parent that was in that room was going to need to exit the room. And I was concerned at that time about how that exit strategy would look and what Ms. [R.] would do to get into that classroom."
Specifically:
"I was fearful that [when] the conference that was occurring [ended], . . . that parent would leave and . . . [R.] would try to go . . . into Ms. Fallon-McKnight's classroom and close the door behind [her]. But I needed to prioritize Ms. Fallon-McKnight's safety, and I would not have allowed Ms. Fallon-McKnight to have been in the room alone. And I was afraid at that time that . . . if she did approach the door . . . she would put her hands on me for sure."
As it happened, R. left before the conference with the other parent ended; and Schick met with Fallon-McKnight in the classroom immediately after that parent had left. Fallon-McKnight "looked frightened," she thanked Schick for telling her to lock the classroom door, and she said:" 'I don't know what would have happened . . . had my door not been locked." Schick also spoke with Huh. According to Huh: Schick's "voice was shaking" and "it sound[ed] . . . like Ms. Schick was distraught or upset or terrified."
3. R.'s Account of the November 16 Incident
R.'s account of what transpired on November 16 bears little resemblance to the rendition furnished by Fallon-McKnight and Schick. In R.'s telling, "the only person that was afraid [that day] was me." "I was terrified on November 16 . . . when I saw [McClurg] and [Schick] stalking me again like [they] . . . both did . . . at back-to-school night."
"Q. Did you pace back and forth in front of Ms. Fallon-McKnight's classroom?
"A. No, not at all."
"Q. Did you ever bang on the doors with your fists really hard like what you have seen other witnesses do in the courtroom when they were testifying that they were mimicking you?
"A. No.
"Q. Did you ji[g]gle the door handle aggressively or wildly as you've heard that people have testified or claimed?
"A. No.
"[¶ . . . ¶]
"Q. Is there any occasion throughout the entire time that your [child] has been at Ashley Falls School that you were trying to intimidate or acting in an intimidating manner toward absolutely anybody; parent, teacher, staff, student?
"A. No."
C. Events that Occurred During the Latter Half of November 2021
On Wednesday, November 17, the day after the incident, R. again appeared before members of the School District's governing board in person. In remarks directed at Holly McClurg (the Superintendent), R. stated:
"Holly, when you vindictively single out a child, exclude them and isolate them in the hallway or some other lonely place on campus, that is not the right thing to do for kids. And when you deny them of their right to an education and blatantly violate a court order directing you to include them into the gen ed classroom, that is not doing the right thing for kids. It is shocking. It is abusive. And it is a violation of the law."
In these remarks, R. also made reference to "hidden abuse that you [McClurg] authorized and directed your staff to subject our most vulnerable students to," stated, "here's a sample of what I've . . . had to listen to almost every single day at pickup," and proceeded to play an audio clip that the School District's transcription represents as follows:
"*cries of anguish and pain* 'You've got to be kidding, Mommy! This is outrageous, Mommy' *cry* 'Why are they doing this to me?' "
R. then resumed her remarks by stating "I've been on campus only two times this school year, after hours. Both times I've felt unsafe and stalked and harassed by District staff." In addition R. cited laws that she described as "prohibit[ing] retaliation against people who advocate for students."
The next day, Thursday, November 18, the District's counsel sent R. a "stay away" letter, in which he referenced R.'s conduct on November 16, stated that that conduct had "placed District employees in fear for their safety and the safety of others" and would "not be tolerated," and further stated "that, pursuant to Penal Code section 626.4, the [District] has withdrawn consent for you to appear on the campus of Ashley Falls School for 14 days, effective immediately."
D. The TROs
On December 1 (one day before the expiration of the 14-day "stay away" period), Fallon-McKnight filed in the superior court a request for a civil harassment restraining order to protect herself from R; and, two months later, on January 28, 2022, the District filed a petition for a workplace violence restraining order to protect Schick and Huh from R. Fallon-McKnight's request was supported by a declaration signed by Fallon-McKnight, and the District's petition was supported by a declaration signed by an individual named Glenn Lipson, Ph.D., who presented himself as a forensic clinical psychologist with 25 years of experience in the field of threat assessment.
R. asserts that Schick filed a request for a civil harassment restraining order under section 527.6 on the same date that Fallon-McKnight filed such a request. But, if such a request was filed, it does not appear in our record.
The attorney who represented the plaintiffs affixed his signature to both of these submissions, not only in the signature block designated for counsel, but also in the signature blocks prepared for the purpose of enabling Fallon-McKnight and Huh to declare under penalty of perjury that the information stated in the submissions was true and correct. This was improper, and counsel is directed to discontinue such practice in the future.
The District's submission was also accompanied by what purported to be a declaration of Huh. Although this document appears to have been signed by Huh, it was not executed under penalty of perjury. However, insofar as the two orders after hearing that are the subject of this appeal are concerned, this defect (like the defects noted in fn. 11) was in essence cured by the testimony that Fallon-McKnight and Huh gave under oath at the hearing.
In his declaration, Lipson opined that:
"From the threat assessment perspective, there are several factors that fuel fear on the part of Ms. Fallon-McKnight and the District. For instance, one critical factor is Ms. [R.]'s perception of malice on the part of the District. Ms. [R.] believes that the District has intentionally harmed both her and her [child]. The accumulation of such grievances often fuels retaliatory actions, including violence. From the District's perspective, Ms. [R.]'s anger has intensified over time, especially after the District's attempts to establish protocols for the protection of its employees.
"Another critical threat assessment factor is the escalation of behavior which could lead to violence. Ms. [R.]'s conduct escalated to a dangerous level on November 16, 2021. Ms. [R.] is described by Ms. Fallon-McKnight as arriving unannounced while Ms. Fallon-McKnight was engaged in a confidential parent-teacher conference about another student. According to Ms. Fallon-McKnight, Ms. [R.] had signed up for one time slot but sought to reschedule for another slot that was no longer available. Ms. [R.] is described as yelling, pounding on the door, pulling at the door handle, and peering into the classroom while another conference was taking place. Ms. Fallon-McKnight felt both threatened and intimidated. In her declaration, she states that Ms. [R.]'s behavior 'was belligerent and out of control.' Ms. Fallon-McKnight felt fortunate that she had locked the classroom door. She also believed that if Ms. Schick had not arrived at the classroom for her protection, Ms. [R.] would have inflicted physical harm upon her.
"[¶ . . . ¶]
"The field of threat assessment seeks to determine an individual's ability to transition from a state of 'fight or flight' to a state of calm. The ability to do so is facilitated by positive interpersonal relationships. Over several years, the District has made continual efforts to deescalate the situation and engage with Ms. [R.] in a calm and reasonable manner but has struggled to reach even a basic level of cooperation with her. Ms. [R.]'s escalating behavior, boundary violations, and various accusations against staff create a dangerous situation for District employees which causes them to feel genuine fear."
The plaintiffs' submissions led to the issuance of a civil harassment TRO on December 1 and a workplace violence TRO on January 28. These orders, both signed by Judge Anthony Campagna, stated that R.:
"[Must] not . . . [c]ontact [Fallon-McKnight, Schick, or Huh] in any way, including, but not limited to, in person . . . [or] by email . . .
"Must stay at least 100 yards away from . . . [Fallon-McKnight, Schick, and Huh] . . . [and]
"[Absent written permission from the District, m]ust stay at least 100 yards away from . . . [their] home[s] . . . [and] workplace[s]."
E. The Hearing, and the Orders After Hearing
After the TROs had been entered, proceedings in the two cases (the case initiated with Ms. Fallon-McKnight's request for a civil harassment restraining order and the case initiated with the District's petition for a workplace violence restraining order) were consolidated, and the trial court conducted an evidentiary hearing-presided over by Judge Richard Whitney-that lasted 11 days over the course of three months. During those 11 days, each party presented live witness testimony, testimony in the form of declarations, and exhibits.
1. Evidence Relating to Violations of the TROs
During the hearing, the plaintiffs presented evidence tending to indicate that R. had disobeyed the TROs on multiple occasions; and, to an extent, R. conceded as much.
By way of example, R. acknowledged on cross-examination that she had violated the civil harassment TRO's proscription against making contact with Fallon-McKnight-albeit only "on accident" as a result of "confusion"-by adding Fallon-McKnight as a cc on an e-mail. Notably, the e-mail to which she added Fallon-McKnight as a cc was one that (although addressed to McClurg) focused substantial attention on the content of Fallon-McKnight's declaration. This e-mail stated: (i) that "the declaration . . . was "false;" (ii) that "what was written in [it] . . . enabled you to maliciously perpetrate [a] fraud;" (iii) that "obtain[ing] [the TRO protecting Fallon-McKnight was] in retaliation to punish my [child] for my advocacy for him;" and (iv) that "[w]hat you are doing to my child with disabilities is child abuse and you should be arrested."
As further example: R. maintained that she believed she was in compliance with the TROs because Judge Campagna had told her she would not be in violation if she were to come onto campus for the purpose of dropping off and picking up her child. It is true that, at a hearing relatively early in the proceedings, Judge Campagna stated:
[I]t seems to the Court . . . based upon the terms and conditions of the order that[,] [if] you were dropping your [child] off at school and you weren't entering the school grounds . . ., [then] it [does] not seem . . . that that would be in violation, but you would have to look at the facts . . . as they were presented."
However, at later hearings, Judge Whitney clarified that "100 yards away" means 100 yards away and that there were to be no exceptions absent permission from the School District.
Confronted with a police report and photographs of herself standing on or beside (and certainly within 100 yards of) the edge of the Ashley Falls campus, R. ultimately acknowledged that she had been within 100 yards of the campus (which the TROs disallowed).
2. The Recording from November 16
At several junctures during the hearing, reference was made to the fact that, while in the hallway outside Fallon-McKnight's classroom on November 16, R. had surreptitiously activated the video recording function on a cell phone concealed in her purse. R. contended the audio portion of the recording that resulted (and that we discuss post) would prove that the plaintiffs' rendition of what had transpired in the hallway outside Fallon-McKnight's classroom on November 16 was "malicious" and "false." The plaintiffs contended the audio was "not reliable because it ha[d] been spliced and recorded at a different volume" and, for this reason, should be excluded from evidence. The court overruled the objection and admitted the recording.
3. Testimony about the Relationship Between R. and the School District, and Testimony about Fear
Fallon-McKnight, Pecorella, Schick, Huh, and R. each testified at length about the events and circumstances described above, about emotions that had been stirred by those events and circumstances, and about the relationship between R. and the School District. In their testimony they avowed the views and accusations expressed in section I.B., ante.
On cross-examination Schick in particular testified about the emotional toll that R.'s behavior had taken on District personnel over the years. She testified:
"[W]e have been used to Ms. [R.] treating us like this for many, many, many years. We have grown accustomed to it. It's become the norm. The way she treats us, unfortunately, I hate to say it, but it's normalized. Her behavior and the way she treats everybody is just normal. We know beforehand. We purposely have our staff have breaks prior to entering an IEP with Ms. [R.], and we also have them have breaks after having an IEP with Ms. [R.] because she makes them so emotionally distraught. But unfortunately it's normal. This has become a normal situation with us when it comes to her verbal aggression."
Furnishing a perspective on how her colleagues' fears resulting from R.'s behavior had developed over time-evolving from fears for their emotional wellbeing into fears for their physical wellbeing-Schick testified:
"I've always been fearful of [R.] verbally accosting me in public. I've always been worried about accusations that she would make. I've always been concerned about emails she would send to people about either myself or other staff members. But this year is when I started to be concerned about staff's physical safety. I've always been concerned about their mental wellness. But their physical safety has taken on a whole new concern level for me."
Illustrating such fears in a more pointed and personal way during cross-examination, Schick testified:
"I left Ralphs [one] day because I thought Ms. [R.] was in a car behind me. And I felt like if I got out of the car, that she might run me over and say that it was an accident, that she was distraught, that she was not thinking and that she was tired, and, 'Oh, my goodness, it just happens to be Ms. Schick. How did that happen?'
"That [is] a horrible way to live your life. It is really hard to go to your local places with your child and be fearful that you might get run over by an angry parent.
"I won't get out of a car. What does that tell you? Are you afraid to get out of the car when you go to a parking lot? My guess is you are not.
"[¶ . . . ¶]
"I am scared of her. And if that's not good enough for you, [then] that's not good enough for you. But I am scared of her. I am genuinely scared of her."
4. The Trial Court's Remarks at the Conclusion of the Hearing; and Its Issuance of the Orders After Hearing
Following closing arguments, the trial court delivered remarks from the bench before issuing its rulings. In those remarks, the court described what had occurred when witnesses were asked to simulate [R.]'s pounding on the door on November 16:
"We had at least two witnesses on behalf of the Del Mar Union School District that replicated what I would consider to be an incredibly intimidating knock on the teacher's door trying to get into the parent-teacher conference, so much so that it jostled my computers."
That "shook me a little bit," the court stated, even though "I was ready for it." On the topic of credibility, the trial court found that the testimony of the School District personnel had been "impeccable, outstanding and 100 percent credible," whereas the testimony of R. had "lacked credibility almost across the board." Expressing its views on the merits, the court stated:
"I . . . feel . . . Ms. [R.] has engaged in a systematic reign of terror, of domestic terror against these individuals that are in the courtroom as well as other individuals that worked for . . . the . . . School District. I think she has literally terrorized them, made them afraid to go to work, made them afraid to walk to their car after class, made them afraid to go shopping at Ralphs, that maybe she's going to run them down in the parking lot. Caused Ms. Schick to look in her rearview mirror with her child in her car wondering if this is the day that Ms. [R.] snaps and possibly kills her. Those are not normal thoughts for elementary school employees. Those are thoughts of folks that are being systematically and consistently terrorized."
Concluding its remarks, the court ruled:
"The Court finds by clear and convincing evidence . . . that [R.] has engaged in unlawful acts of potential violence and has made credible threats of potential violence, and more importantly, that the respondent has engaged in a course of conduct which by its nature would cause a reasonable personal to suffer substantial emotional distress and has actually caused the most significant amount of substantial emotional distress to the petitioners that I have probably ever seen in a case.
"The Court further finds that the course of conduct exhibited by Ms. [R.] was not constitutionally protected activity and had no legitimate purpose. Therefore, I am ordering that the two restraining orders become permanent for five years."
We note that the orders after hearing vary somewhat in their terms from the TROs. For example, whereas the former required R. to "stay at least 100 yards away from" the protected persons and their homes and workplaces, the latter require her to "stay at least 200 yards away" (italics added).
The court then issued the two orders after hearing that are before us now, and R. timely appealed.
IV. Discussion
In her opening brief, R. makes six arguments:
"This appeal is brought on the grounds that (1) Parent(s) of a child with disabilities who complain against school administrators are not subject to a restraining order; (2) [R.]'s acts did not constitute harassment or a credible threat of violence; (3) Plaintiffs' attorney used egregious verbiage that swayed the trier of fact; (4) The Court was overtly biased in favor of Plaintiffs; (5) Prejudicial procedural error; [and] (6) The restraining order was overbroad and exceeded the trial court's jurisdiction."
We examine each of these arguments in the order presented.
A. The Argument That "Parent(s) of a Child With Disabilities Who Complain Against School Administrators Are Not Subject To A Restraining Order"
R.'s first argument is that the "parent(s) of a child with disabilities who complain against school administrators are not subject to a restraining order." This statement, as framed, is a manifestly incorrect statement of law.
R. also states as part of this argument that "complaints about a school district or staff are not a course of conduct within the meaning of . . .[sections] 527.6 and 527.8," that "[g]oing to a parent-teacher conference is not a course of conduct within the meaning of" those sections, and, more generally, that the criticisms, concerns, and complaints to which she has given voice regarding the District and its personnel are protected free speech. These statements are correct as far as they go. However, as discussed elsewhere in this opinion, the fears that justify imposition of the orders after hearing in this matter are not fears attributable to the substance of any of the criticisms, concerns, or complaints that R. has expressed over time, but rather fears attributable to her conduct (as distinguished from her speech).
Certainly, sections 527.6 and 527.8 allow room for people with grievances to complain. This they do by incorporating carve outs to preclude the issuance of a restraining order that might infringe on constitutionally protected activity, such as speech. (See § 527.6, subd. (b)(1) ["Constitutionally protected activity is not included within the meaning of 'course of conduct.' "]; § 527.8, subd. (c) ["This section does not permit a court to issue a temporary restraining order or order after hearing prohibiting speech or other activities that are constitutionally protected, or otherwise protected by Section 527.3 or any other provision of law."].) But such carve outs do not confer on an individual, merely by virtue of having lodged a complaint, carte blanche to engage in conduct that amounts to a credible threat of violence. The expression of a grievance, no matter how legitimate, is not a license to engage in threatening conduct.
As can be seen, sections 527.6 and 527.8 deviate from one another in the way in which each safeguards the right to engage in protected activities. One does so by expressly excepting such activities from what may be considered a course of conduct. (See § 527.6, subd. (b)(1).) The other does so by expressly excepting such activities from what may be restrained. (See § 527.8, subd. (c).)
B. The Argument That R.'s "Acts Did Not Constitute Harassment or a Credible Threat of Violence"
R.'s second argument is that her "acts did not constitute harassment or a credible threat of violence" within the meaning of sections 527.6 and 527.8 and, therefore, that "there was insufficient evidence to support restraining orders." On the record described above, however, we cannot agree.
We begin with the observation that, when a trial court is asked to impose an order after hearing based on a credible threat of violence under section 527.6 or 527.8, the question before it is whether a credible threat of violence has been proven by clear and convincing evidence. (See §§ 527.6, subd. (i), 527.8, subd. (j).) In turn, when a court of appeal "review[s] a [trial court's] finding that a fact has been proved by clear and convincing evidence, the question before [it] is 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." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 995-996; see also id., at p. 1009 ["the question . . . is not whether the appellate court itself regards the evidence as clear and convincing; [rather,] it is whether a reasonable trier of fact could have regarded the evidence as satisfying this standard of proof"].) And, "[c]onsistent 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[,] . . . giv[ing] 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.) So doing, we review the court's order, not its reasoning, and we may affirm the order if it is correct on any theory of applicable law. (Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 705 ["we review the trial court's ruling, not its reasoning]; Fieldstone Co. v. Briggs Plumbing Products, Inc. (1997) 54 Cal.App.4th 357, 372 [" '[w]e review the trial court's order, not its reasoning, and affirm an order if it is correct on any theory apparent from the record' "].)
Applying these principles of appellate review to the framework of sections 527.6 and 527.8, we conclude that the record contains substantial evidence from which a reasonable fact finder could find it highly probable that the plaintiffs suffered (1) a course of conduct by R. that (2) was knowing and willful, (3) would place a reasonable person in fear for their safety, and (4) served no legitimate purpose.
Beginning first with item two of the elements just enumerated: A reasonable finder of fact could certainly have found it highly probable that the conduct in which R. engaged was knowing and willful. Indeed, that conduct cannot reasonably be said to have been involuntary.
Turning to elements three and four: A reasonable finder of fact could also have found it highly probable that R.'s conduct would place a reasonable person in fear for their safety and served no legitimate purpose. Viewing this record (as we must) in the light most favorable to the plaintiffs-and giving due deference (as we must) to how the trial court evaluated witness credibility, resolved conflicts in the evidence, and drew reasonable inferences from the evidence-the record reveals in R.'s conduct an unsettling, physically aggressive effort to gain access to Fallon-McKnight; unnerving invasions into the close personal space of District personnel during hostile encounters; confrontational behavior directed at elementary school students with special needs; a defiance of TROs put in place for the express purpose of helping to relieve the plaintiffs' distress; and, running through it all, a worrisome trend of escalating erratic, hostile, and intimidating conduct. On this basis, we conclude the trial court was presented with evidence sufficient to sustain a conclusion that R.'s conduct was such as would place a reasonable person in fear for their safety, and to no legitimate end.
As for the remaining element, i.e., whether R.'s conduct qualifies as a "course of conduct" within the meaning of sections 527.6 and 527.8, it is true that constitutionally protected activity is excluded from the meaning of "course of conduct" as that term is defined under at least one of those two sections. (See § 527.6, subd. (b)(1).) But "[t]here is a fundamental difference under the First Amendment between speech and conduct." (In re Joshua H. (1993) 13 Cal.App.4th 1734, 1746.) And the activities to which we have referred in the preceding paragraph were conduct, not speech.
R. might not have uttered a credible threat of violence. But the test of sections 527.6 and 527.8 is not whether a reasonable finder of fact could find a high probability that the defendant voiced a credible threat of violence; rather, it is whether the finder of fact could find a high probability that a reasonable person would perceive such a threat in the manner in which the defendant comported herself. And, as we have noted above, the fact that the menacing manner in which R. comported herself may have been laced with protected speech does nothing to alter this fundamental attribute of sections 527.6 and 527.8.
C. The Argument That "Plaintiffs' Attorney Used Egregious Verbiage That Swayed the Trier of Fact"
R.'s third argument is that "plaintiffs' attorney used egregious verbiage that swayed the trier of fact." In reviewing the record, we have seen instances in which plaintiffs' counsel expressed himself particularly forcefully, e.g., through aggressive cross-examination and argument. However, we have not observed instances that we perceive would unduly sway a trial court and we are impeded in our ability to assess R.'s arguments to the contrary by R.'s failure to identify the verbiage to which she refers as "egregious" or to explain in what manner such verbiage might have "swayed the trier of fact."
D. The Argument That "The Court Was Overtly Biased in Favor of Plaintiffs"
R.'s fourth argument is that "the Court was overtly biased in favor of Plaintiffs." In support of this argument, R. identifies three categories of judicial conduct in which she discerns bias: the trial court's questioning of witnesses; the manner in which the trial court dealt with evidence; and statements the trial court made at the conclusion of the hearing.
1. Allegations of Bias Pertaining to Trial Court's Questioning of Witnesses
The first category of alleged judicial bias pertains to two instances in which the trial court posed questions to witnesses. In one of these instances, the court posed to R. a series of three questions inquiring into R.'s views regarding the reliability of her child's descriptions of incidents in which the child was involved at school. In the other instance, the court posed questions to Pecorella (the principal) in a manner that R. characterizes as having been "on behalf of Petitioner" and as having "shed Pecorella in the best possible light."
In a bench trial, it is generally proper for a court to pose its own questions to a witness (see People v. Carlucci (1979) 23 Cal.3d 249, 255-256); and, indeed, in a hearing under sections 527.6 or 527.8, it is expressly authorized. (See § 527.6, subd. (i) ["[a]t the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry"]; § 527.8, subd. (j) [same].) We have read the passages referenced by R., and have considered them in the context of what is revealed in all 22 of the transcripts in the record on this appeal, and we have found no indication of bias based on the court's questioning of R., of Pecorella, or of any other witness.
2. Allegations of Bias Pertaining to Manner in Which Trial Court Dealt with Evidence
A second category of alleged judicial bias pertains to the manner in which the trial court dealt with three items or types of evidence that she introduced at trial other than in the form of live testimony. These three items or types of evidence were: (a) recordings of IEP meetings; (b) the recording R. had made in the hallway outside Fallon-McKnight's classroom on November 16; and (c) the declarations of two third-party witnesses.
a. Exclusion of recordings of IEP meetings
R.'s argument with regard to the recordings of IEP meetings pertains to approximately 12 hours of audio recordings of IEP meetings in which R., Fallon-McKnight, Schick, and others participated. R.'s stated purpose in seeking to introduce these recordings into evidence was to impeach the credibility of Fallon-McKnight and Schick as to their testimony with regard to the manner in which R. had expressed herself in such meetings.
R. waited until the latter part of the trial, when she (the last witness) was testifying before seeking to introduce the recordings into evidence, and plaintiffs' counsel objected on the grounds that the recordings had not been included on the exhibit list and he had not been afforded an opportunity to listen to them.
The trial court acknowledged that the recordings "might be relevant evidence," but nonetheless sustained the objection:
"At this point it's just too late in the game to introduce it. There would be severe prejudice attached to the [plaintiffs]. They wouldn't have an opportunity to review it. They have not reviewed it. The Court would be reviewing it before [the plaintiffs' counsel] would have the opportunity to review it. That's prejudice and it's also inappropriate. And there's not enough time for the Court - it would take - I would have to take literally a day or two or three to hear it and absorb it and take notes on it. We would have to reconvene. [The plaintiffs' counsel] would have to have an opportunity to do so. And if he wanted to object, brief it or cross-examine on it, he's not going to be given that opportunity.
"So although it might be relevant evidence, at this point it's just too prejudicial, too late to consider it other than extending this out another week, month or two in order to accommodate a request like that. So I'll sustain the objection and exclude the recordings."
R. likens this ruling to a case "in which the trial judge literally walked out of the courtroom in midtrial." (In re Marriage of Carlsson (2008) 163 Cal.App.4th 281, 293.)
We view it differently.
Presented late in the proceedings with an item of evidence that blindsided opposing counsel, and that would have engendered substantial delay and undue consumption of time, the trial court exercised its discretion in a manner that we conclude was well within the bounds of procedural fairness. (Cf. Evid. Code, § 352 ["The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice."].) Further, R. was free to testify about how she expressed herself during the meetings and to dispute the characterizations of Fallon-McKnight and Schick.
b. Non-reliance on November 16 recording
As noted above, the trial court admitted the November 16 recording over objections that it had been altered. On appeal, R. argues that the recording was "direct evidence" of what had happened on November 16, yet the trial court "clearly gave [it] no weight."
First, a fact finder is free to determine what weight, if any, to give to any single piece of evidence. (See Biggs v. Tourtas (1949) 92 Cal.App.2d 316, 322 [" 'The trial court is the exclusive judge of the weight of the evidence and the credibility of the witnesses. It is its province to give to the evidence that weight to which, in its judgment, it is entitled, and to draw all reasonable inferences therefrom, and if, in its judgment, the evidence is entitled to no weight it may disregard such evidence altogether.' "].)
Further, although Respondents did not offer evidence in support of their contention that the recording had been altered, the recording itself was problematic. Portions of the recording were garbled or muffled, and at points it was not clear who was speaking. In addition, the sequence in which events occur in it is at odds with the sequence to which R. attested at trial and in a declaration. The recording includes what appears to be a brief dialogue between two individuals in which one says to the other:
"Are you following me?
"[¶ . . . ¶]
"You're stalking me.
"[¶ . . . ¶]
"It's harassment."
Then, several minutes later in the recording is a muffled sound that R. says is her "faint knock on the door [while] Fallon-McKnight is inside the classroom with the door locked, talking to another parent." Yet R. testified, on the witness stand and in a declaration, that she had "knocked on Ms. Fallon-McKnight's door to try and get her attention" on more than one occasion that afternoon, that it was not until after the first such occasion that she noticed Schick was present, and that it was not until after noticing Schick was present that she "pressed record" and posed the question about stalking.
Judge Whitney admitted the recording into evidence at R.'s request. As noted above, it was within his discretion as the fact finder to determine how much weight, if any, to give to the recording. We see no basis as to the admission or consideration of the November 16 recording to conclude Judge Whitney was biased.
c. Non-reliance on Cochrane and Greene declarations
R. argues that the trial court "gave . . . no credence" to the percipient testimony of two witnesses whose testimony she submitted through declarations.
One of the two witness declarations to whom R. refers in this regard is Stephen Cochrane, Ph.D. Cochrane stated in his declaration that he was a professional educator with 30 years of experience in the field of special education, that he had served as a member of the School District's governing board and that, at R.'s invitation, he had participated with her in an Ashley Falls IEP meeting of unspecified date. Cochrane stated that "[t]he Director of Special Education who led th[is] IEP meeting" (presumably Schick): "was terse, curt, and unfriendly," "exhibited a "disposition [that] was combative, accusatory, intimidating, and counterproductive," "falsely accused Ms. [R.] of being excessively emotional during the meeting," and "singl[ed] Ms. [R.] out . . . for not signing in," thereby engaging in "discriminatory conduct to[ward] Ms. [R.] for advocating and protecting her child." Cochrane also stated: that he "felt Ms. [R.] was being bullied by the Director of Special Education (not physically, but rather in terms of her accusatory, hostile, and intimidating disposition)"; and that, when R. broached a particular incident of reported bullying, Pecorella was "dismiss[ive]" and "the other IEP members were silent and seemingly . . . intimidated."
The second witness to whom R. refers in her argument about witness declarations is Dana Greene. Greene stated in her declaration that she was the mother of a disabled child who had been a classmate of R.'s child. She described three School District employees (all associated with Ashley Falls)- a teacher, an aide, and a former principal-in terms that reflected poorly on them; and she described, in terms that corroborated testimony of R., an incident that had led to District personnel having accused R. and Greene of mistreating a student in their children's special ed class.
The trial court admitted each of these declarations (plus one other third-party declaration that R. had submitted) into evidence over the plaintiffs' objections. Here, too, the trial court was entitled to consider how much weight, if any, to give to this evidence. We cannot ascribe bias merely because Judge Whitney may not have given significant weight to the declarations.
3. Allegations of Bias Pertaining to Statements Trial Court Made at Conclusion of Hearing
The final category of alleged judicial bias pertains to statements the trial court made immediately prior to issuing its ruling at the conclusion of the hearing. Specifically: statements to the effect that R. engaged in "a reign of . . . domestic terror" and "a pattern of domestic terrorism"; and statements that R. describes as "exalt[ing]" professional educators over "those who advocate for their children."
Viewing such statements in the context in which they were made, and measuring them against the manner in which the hearing was conducted on the whole, we conclude that neither bias nor the appearance of bias have been established." '" '[O]ur role . . . is not to determine whether the trial judge's conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge's behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial.'" '" (People v. Seumanu (2015) 61 Cal.4th 1293, 1321.) In our review of the record in this case, we do not discern such prejudice.
E. The argument that the hearing's integrity was undermined by "prejudicial procedural error"
R.'s fifth argument is that the hearing's integrity was undermined by "prejudicial procedural error." As presented in R.'s opening brief, this argument is premised exclusively on the contention that the recordings of IEP meetings should have been admitted into evidence. As such, it merely reprises an argument that we have already addressed (see ante) in the context of alleged judicial bias. Hence we entertain it no further.
In her reply brief, R. introduces for the first time on this appeal what she contends is a further procedural error warranting reversal of the restraining orders. This claimed error pertains to what appears to have been a caucus-style settlement conference in which R. and her counsel, and Schick and Huh and the School District's counsel, met separately with Judge Whitney several days into the hearing. R. contends that she did not consent to Judge Whitney "meeting with . . . Huh, . . . Schick, and their. . . attorney . . . alone in chambers without [R.] or [her] attorney present" and that Judge Whitney's participation in the settlement conference contravened court rules governing the circumstances under which the judge presiding over a trial is permitted to conduct a settlement conference. But we do not consider this argument because R. has not shown that she objected in any fashion to the settlement conference proceedings in the trial court prior to this appeal. (See In re N.R. (2023) 87 Cal.App.5th 1187, 1199 ["A claim of error on appeal may be deemed forfeited if the objection was not raised in the trial court."].) Further, she provides no explanation for why she failed to include this argument in her opening brief, thus denying the plaintiffs an opportunity to address it (see American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453 ["Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument."]; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)
F. The argument that "the restraining order was overbroad and exceeded the trial court's jurisdiction"
R.'s sixth argument pertains to the duration of what she refers to as "[t]he restraining order" (italics added). In this argument, she contends that, per statute, a restraining order issued under section 527.8 "shall not be for more than three years," yet the trial court in this case "made an order of five years, exceeding its jurisdiction" (italics added).
In addressing this argument, we must distinguish between the two restraining orders at issue. Insofar as the permanent workplace violence restraining order is concerned, R. is correct that, absent compliance with requirements governing renewal, this type of restraining order may not exceed a term of three years. (See § 527.8, subd. (k)(1) ["an order issued after notice and hearing under this section may have a duration of not more than three years," subject to renewal].) But whereas the permissible duration of a workplace violence restraining order is capped at a maximum of three years, the permissible duration of a civil harassment restraining order is capped at a maximum of five years. (See § 527.6, subd. (j)(1) ["an order issued after notice and hearing under this section may have a duration of no more than five years," subject to renewal].) Hence the five-year term that the trial court imposed for the workplace violence restraining order is in error, but the five-year term that it imposed for the civil harassment restraining order is not.
G. Attorneys' Fees
As a final matter, R. has requested an award of attorneys' fees pursuant to section 527.6. Under that section, it is within our discretion to order that such fees be awarded to a prevailing party. (See § 527.6, subd. (s); Byers v. Cathcart (1997) 57 Cal.App.4th 805, 812-813 [interpreting former § 527.6, subd. (i)].) However, viewed in the context of our decision as a whole (and notwithstanding our conclusion that the expiration of one of the two restraining orders in issue must be accelerated), R. is not a prevailing party. Hence we deny the request for an award of attorneys' fees.
V. Disposition
The workplace violence restraining order after hearing is reversed to the extent it indicates that it is to remain in effect beyond March 28, 2025. On remand, the trial court shall re-issue that restraining order with a March 28, 2025 expiration date in lieu of the March 28, 2027 expiration date. In all other respects, the civil harassment restraining order after hearing and the workplace violence restraining order after hearing are affirmed. Each party shall bear their own attorneys' fees and costs on appeal.
WE CONCUR: IRION, Acting P. J. DATO, J.