Opinion
B320815
12-28-2023
GEVORG GYOZALYAN, Plaintiff and Appellant, v. KHOSROW DALLALZADEH, Defendant and Respondent.
Gevorg Gyozalyan, in pro. per., for Plaintiff and Appellant. Marquee Law Group, Poya Ghasri; Gusdorff Law, and Janet Gusdorff for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 22VERO00002 Marilyn Mordetzky, Commissioner. Affirmed.
Gevorg Gyozalyan, in pro. per., for Plaintiff and Appellant.
Marquee Law Group, Poya Ghasri; Gusdorff Law, and Janet Gusdorff for Defendant and Respondent.
EDMON, P. J.
INTRODUCTION
Appellant Gevorg Gyozalyan appeals the denial of his petition for a civil harassment restraining order against respondent Khosrow Dallalzadeh. We find no error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2022, appellant filed a request for a civil harassment restraining order against respondent. In the request, appellant attested that in May 2021, respondent came to appellant's home drunk and told appellant's wife that appellant had been cheating on her with respondent's ex-girlfriend. Appellant stated that since mid-October 2021, respondent had called him day and night, 3,674 calls in total, and on a few calls, had threatened to behead, castrate, kidnap, and kill him. Appellant asserted that respondent had placed a GPS tracking device on a car he used and had stalked him. Attached as exhibits to his petition were photos of the purported GPS device found on the vehicle and a call log showing thousands of calls to appellant's phone from two phone numbers between mid-October and mid-December 2021.
At the hearing on the restraining order request, appellant presented testimony from himself, Larisa Pogosyan, Pogosyan's son, and a neighbor. He presented evidence of the following.
In May 2021, respondent went to appellant's home twice, spoke with appellant's wife, and told her that appellant was cheating on her with Pogosyan, who was both respondent's exgirlfriend and appellant's wife's friend. Appellant introduced into evidence a videotape of the second incident, during which appellant let respondent inside his home. During the visit, respondent stayed at appellant's home for 20 minutes and appellant never asked him to leave nor called the police.
Although appellant moved twice to augment the record with the videos, photographs, recordings, and documents purportedly admitted by the trial court as exhibits at the hearing, we denied the motions without prejudice because they did not have exhibit tags or other indicia that they were admitted in the trial court. We also informed appellant the trial court did not have the exhibits. Appellant has not since provided this court with the exhibits.
From May to August 2021 when appellant's car was at a mechanic's shop for repairs and at times thereafter, appellant drove Pogosyan's vehicle. Pogosyan and her son also drove the vehicle, and the vehicle was kept at Pogosyan's home. In fall of 2021, appellant noticed respondent was following him at least 20 times when he drove Pogosyan's vehicle. In December 2021, appellant brought the vehicle to Pogosyan's mechanic, who regularly serviced it. The mechanic told appellant that several months prior, he had installed the GPS device at respondent's behest. Appellant had the device removed and he stopped encountering respondent when he was driving the vehicle. Appellant's neighbor also testified that respondent had asked where appellant usually parks his car.
Since mid-October 2021, appellant had received thousands of phone calls, which he believed came from respondent. Using a call tracker application that he installed on his cell phone, appellant found the reoccurring calls came from two phone numbers, one beginning with 310, but neither was associated with respondent.
Appellant played two recordings from November 2021 of (1) a voicemail and (2) a phone call, both received on his cellphone. Appellant stated that the calls came from the 310 number and that respondent was the caller on each recording. Appellant testified that during the phone call, respondent threatened to kidnap, hang, kill, and deport him. Appellant felt fear, but never called the police about respondent's threats. During cross examination, respondent's counsel pointed out that appellant's call log did not show appellant answering a call from the 310 number on the particular date appellant testified the call occurred.
Following appellant's presentation of evidence, respondent moved to dismiss, arguing appellant failed to show by clear and convincing evidence there was a valid basis for a restraining order.
The court agreed that respondent's conduct did not fall under Code of Civil Procedure section 527.6. The court observed that on the two occasions respondent visited his home, appellant never asked respondent to leave his residence; appellant had not linked respondent to the phone numbers that were calling him; and the GPS device could have been used to track Pogosyan or her son. The court also found that the two phone recordings were not credible threats of violence but instead reflected respondent's emotions related to his belief that Pogosyan was romantically involved with appellant.
All subsequent statutory references are to the Code of Civil Procedure.
The court found appellant failed to meet his burden with clear and convincing evidence, and dismissed the petition with prejudice. Appellant timely appealed.
DISCUSSION
Section 527.6 empowers a person who has suffered harassment to obtain a restraining order against the harasser, upon proof that the harasser committed unlawful violence, made a credible threat of violence, or engaged in 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." 'Credible threat of violence' is a knowing and willful statement or course of conduct that would place a reasonable person in fear for the person's safety or the safety of the person's immediate family, and that serves no legitimate purpose." (§ 527.6, subd. (b)(2).) A "course of conduct" is "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose." (Id., subd. (b)(1).) To be actionable, a course of conduct "must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner." (Id., subd. (b)(3).) A trial court may issue a restraining order only upon proof by clear and convincing evidence. (Id., subd. (i).)
On appeal from an order granting a restraining order, an appellate court will review the issuance of the order for an abuse of discretion, and the factual findings necessary to support the order for substantial evidence. (Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1226, disapproved on other grounds by Conservatorship of O.B. (2020) 9 Cal.5th 989, 1003, fn. 4.) However, because appellant appeals from the denial of a request for a restraining order for which he bore the burden of proof below, "the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.'" (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved on other grounds in Conservatorship of O.B., at p. 1003, fn. 4.)
Appellant argues he satisfied his burden because he presented evidence that respondent twice visited his home, planted a GPS device on the car he used, followed him, repeatedly called him, and made threatening phone calls to him. We disagree and conclude the court acted well within its discretion by finding appellant's evidence insufficient to support a restraining order.
Threat of Violence. First, there was no evidence of violence nor sufficient evidence of a credible threat of violence to compel a finding for appellant. Days after respondent's first visit to appellant's home when respondent told appellant's wife that appellant was cheating, appellant allowed respondent to enter his home. He did not call the police or tell respondent to leave during the 20-minute visit. The court reasonably concluded based on these facts that appellant did not fear respondent.
The court made the same determination after it listened to and read transcriptions of the phone call and voice mail message. As those recordings and transcriptions have not been lodged with this Court and we have not reviewed such evidence, we presume correct the trial court's factual determination that the calls would not place a reasonable person in fear for his own safety. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [" 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.' "].)
Harassing Course of Conduct. Second, there was insufficient evidence of a harassing course of conduct that targeted appellant and was attributable to respondent. As to the GPS device, appellant failed to prove the device was intended for him. The trial court aptly pointed out that the GPS device could have been intended for the vehicle's owner-respondent's exgirlfriend, Pogosyan-or her son. Both drove the vehicle, which was parked at their home, not at appellant's.
The phone calls likewise failed to provide clear and convincing evidence to support a restraining order. The only evidence linking the calls to respondent was appellant's testimony that a call tracker application on his cell phone showed the calls were forwarded from a phone number that he believed respondent had used. However, appellant's phone records did not appear to corroborate that allegation. Furthermore, "we must defer to the trial court's determinations of credibility." (Harris v. Stampolis (2016) 248 Cal.App.4th 484, 498.)
Appellant argues the trial court improperly excluded from its consideration "the declarations and exhibits filed by [appellant] as part of his initial request and as part of [his] supplemental request." Yet, the record shows the court thoroughly considered appellant's statements in his initial request for restraining order, which echoed his trial testimony. The court also discussed at length the significance of the attached phone records and GPS device photos, which were also admitted at trial. To the extent appellant mentions a supplemental request, he does not provide record cites for it, and the clerk's transcript does not contain such a document. (See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [" '[i]f a party fails to support an argument with the necessary citations to the record, . . . the argument [will be] deemed to have been waived' "].)
In sum, appellant's evidence did not provide clear and convincing proof of a credible threat of violence or a knowing and willful course of harassing conduct by respondent directed at appellant. (§ 527.6.) The evidence before the trial court did not compel a finding for appellant as a matter of law.
DISPOSITION
The order denying the request for a restraining order is affirmed. Respondent Khosrow Dallalzadeh is awarded his appellate costs.
We concur: EGERTON, J. ADAMS, J.