Opinion
A163828
05-17-2022
ELIZABETH JUENGER, Plaintiff and Respondent, v. BRADLEY BOMBOLA et al., Defendants and Appellants.
NOT TO BE PUBLISHED
(San Francisco County Super. Ct. No. CCH21583919)
STEWART, J.
In this highly contentious dispute between neighbors in a two-unit residential building, San Francisco resident Elizabeth Juenger obtained a civil harassment restraining order protecting herself and her roommate from harassment by their downstairs neighbors, married couple Bradley Bombola and Raymond Coleman. Bombola and Coleman now appeal, challenging the sufficiency of the evidence. We affirm.
BACKGROUND
In August 2021, Juenger file a request for a civil harassment restraining order on behalf of herself, her roommate Margaret Durst and Juenger's sister, alleging that Bombola and Coleman "continue to verbally harass and leave letters, notes, & cuss out all women entering my home, repeatedly saying sexist remarks." She alleged the specifics in some detail (including frequent screaming and obscenity-laden tirades), alleged the harassment occurred on multiple occasions including in the presence of others, and that the police were called four times. She also alleged the two men engaged in other harassing conduct, including blocking her from using their shared garage, hosing down her futon and other property in the garage, tacking a threatening note to the fence and sending her threatening emails and letters. She alleged the harassment was so pervasive she was losing sleep, couldn't eat, was afraid to be in her own home and was so stressed that she was missing work. Also attached to her request were copies of three anonymous, hate-filled letters she received during a one-month period.
The first was a note post-marked on June 23, 2021, stating "I WANT TO FUK YUR BLON [sic] C---!!"). The second, post-marked on July 7, 2021, was an angry, one-page diatribe stating in full: "ATTENTION! [¶] Woman in [home address]! [¶] Who in the hell do you think you are??? This is the neighborhood informing you that WE HATE YOU and want you GONE. You are an arrogant, rude BULLY! You are PYSCHOTIC [sic]!!! And after the entire neighborhood heard you call those nice Mr's [sic] Bombola and Coleman FAG over and over . . . you are reprehensible!!!" And the third anonymous mailing was a two-page note sent on July 22, 2021, stating: "YOR NAME IS LIZ! I LICK YUOR [sic] DOOR NOB [sic]."
Coleman and Bombola filed a lengthy written response denying the allegations and asserting that Juenger had become openly hostile and rude toward them after recently moving into the upstairs unit. They described her as having generally carried out what they depicted as a campaign of spite and vengeance, all precipitated by construction that was underway to bring their building up to code in anticipation of a condominium conversion; accused her of "lying (under penalty of perjury!) in order to cause trouble for Respondents and gain some kind of perceived advantage in their shared ownership of the Property"; and asserted that they were the ones who had been victimized and not the other way around.
The matter proceeded to a hearing on September 22, 2021, at the conclusion of which the court granted the two restraining orders as requested (one against each defendant), protecting Juenger and her roommate (Durst) but declining to enter a restraining order protecting Juenger's sister. It signed written restraining orders the same date, from which this appeal has been timely taken.
DISCUSSION
On appeal, Bombola and Coleman argue the restraining order is not supported by substantial evidence supporting the required clear and convincing finding that they harassed her. (See Code Civ. Proc., § 527.6, subd. (i) ["If the judge finds by clear and convincing evidence that unlawful harassment exists, an order shall issue prohibiting the harassment"].) They contend there is not clear and convincing evidence that they were the source of the three anonymous letters sent to Juenger and that "witness testimony was inconclusive" (presumably, referring to Juenger's allegations concerning various verbal altercations).
In assessing this issue, we are governed by the heightened standard of review appropriate for findings required by clear and convincing evidence. That is, "whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the [disputed] fact was true." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011 (O.B.).) In applying this standard, we "must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (Id. at pp. 1011-1012.)
Appellants cite no law governing the legal standards for issuing a civil harassment restraining order, or the quantum of evidence sufficient to support one, which alone is a basis to affirm the appealed orders." 'All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Part and parcel of an appellant's burden of showing error is to make a cogent argument that is supported by legal authority. (See United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153.) "We may and do 'disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions he wants us to adopt.'" (Ibid.) That is appropriate here, given appellants' failure to cite or discuss any substantive law on the matter at hand.
Another reason to reject appellants' substantial evidence challenge is because they have not summarized all the relevant evidence. Their brief does not discuss any of Juenger's verified allegations against them which, at the hearing, she testified were true, and discusses only selective portions of the hearing testimony by her and other witnesses. "In claiming that the evidence is insufficient to support the trial court's findings, an appellant must' "demonstrate that there is no substantial evidence to support the challenged findings" '" which requires the appellant"' "to set forth in [the appellate] brief all the material evidence on the point . . . . Unless this is done the error is deemed to be [forfeited]." '" (In re S.C. (2006) 138 Cal.App.4th 396, 414-415; see, e.g., Swallow v. California Gambling Control Commission (Apr. 4, 2022, No. C089329) Cal.App.5th [2022 WL 1238302, at p. *11] [argument held forfeited where appellant "fails even to mention much of the evidence supporting [the challenged ruling] or to explain in what way the evidence was insufficient, overall, to support the [ruling]. . . . This is not the full recitation of the evidence required for a substantial evidence contention"].) By failing to summarize all the evidence pertaining to the claims of harassment directed against them, appellants have forfeited their contention that the restraining order is not supported by substantial evidence.
Even if we considered appellants' arguments on the merits, moreover, we would reject them. We will comment briefly.
A. The Anonymous Hate Mail
Here, appellants' arguments notwithstanding, the trial court could have found it "highly probable" (O.B., supra, 9 Cal.5th at pp. 995-996) that Bombola and Coleman were the source of the three harassing letters. (See footnote 1, ante, p. 2, quoting them.) To begin with, there was ample evidence of the animosity they bore her, including the response they filed to her restraining order request. That extremely lengthy, single-spaced document reflected a high degree of ill will and rancor toward Juenger and an obsession with her. Indeed, its attention to detail (most of it, extraneous) was not lost on the trial court, which remarked upon its undue length and focus on mostly irrelevant topics. Appellants also admitted in that response that "[t]here have been instances" where they had "argued" and "cursed" at Juenger (contending the hostilities had been mutual).
In addition, and more directly, testimony by three percipient witnesses about appellants' verbal harassment of Juenger corroborated both the level of their vitriol toward her and their proclivity to use the very same obscenity that appears in one of the hate letters. First, there was Juenger's roommate Durst, who testified that, about a week after moving in, she went outside to take out the trash and passed by appellants' ground floor window which was at eye level, not covered by any blinds and thus impossible to avoid noticing; on her way back inside, one of the appellants came outside to confront her and just began ranting at her. He was accusing her of invading their privacy, falsely accusing her of taking photographs through the window and began carrying on about Juenger (it was "[a] very inappropriate interaction"). Another time, she overheard a contentious altercation between appellants and Juenger where "[e]verybody was yelling," appellants were "cussing" at Juenger, and Durst called the police. And more generally, she testified that "it doesn't seem . . . like there's ever a calm interaction between" the parties.
Second, there was Juenger's sister, who testified that appellants were always very hostile toward Juenger, and she'd witnessed them scream insults and vulgarities at Juenger at least seven times (things like "bitch," "spoiled rotten," "brat" and "princess")-including "c---," the word used in the first anonymous note Juenger received (see footnote 1, ante, p. 2). The sister also testified, more generally, that one appellant said the two men couldn't communicate with Juenger without literally screaming at her (adding that they felt it was the only way to get their points across to her).
Juenger also alleged in her verified petition that she was awakened one morning by Coleman repeatedly screaming the same obscenity at her at the top of his lungs.
And third, a close friend of Juenger's testified he'd heard appellants call Juenger names and direct foul language at her multiple times, such as" 'manipulative bitch' and things like that," including one time when they arrived home and began yelling at her because her car had broken down inside their shared garage, preventing them from pulling their own car inside. The friend also was with Juenger's roommate, Durst, when the garbage incident occurred and corroborated that one of the appellants just began ranting at them "for no apparent reason" when they were just "minding our own business" taking out the trash. Taken together, the testimony of the witnesses at the hearing is substantial evidence that appellants harbored a great deal of animosity toward Juenger, bordering on rage, and that they routinely reacted in ways that were not just inappropriate but grossly disproportionate to the occasional frustrations that are common to multi-unit dwelling situations.
There also is substantial evidence that nobody else had an axe to grind with Juenger. She testified that, apart from a homeless person who once tried to park a tent in front of the building, she had had no problems with anyone else in the neighborhood and was friendly with some of them.
And then, finally, as the trial court pointed out, there were many similarities in both tone and style between the anonymous letters, on the one hand, and various heated emails appellants undisputedly sent to Juenger. Most strikingly, both the anonymous notes and some of appellants' emails to Juenger made frequent use of exclamation points and random all caps. Appellants' emails also referred to Juenger as "Liz," as did the only anonymous note that referred to her by name. And the multiple heated emails they sent her, which concerned construction issues and other complaints, were all sent in the same time frame as the anonymous hate mail (around July 2021).
In sum, viewing this record in the light most favorable to the prevailing party as we must do, the "record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable" that appellants were the ones who authored and sent the anonymous hate mail to Juenger. (O.B., supra, 9 Cal.5th. at pp. 1011-1012, italics added.)
In contending otherwise, appellants focus solely on isolated bits of evidence. They stress (a) minor stylistic distinctions between their emails to Juenger and the anonymous hate mail (such as the use of singular pronouns versus plural pronouns and the presence of misspellings); and (b) speculation, based only on the fact that Juenger called police when she believed appellants had violated the temporary restraining order, that Juenger herself orchestrated the hate mail. These arguments fail to consider the record as a whole and do not "give appropriate deference to how the trier of fact . . . dr[ew] reasonable inferences from [all of] the evidence." (O.B., supra, 9 Cal.5th. at pp. 1011-1012.)
B. Remaining Points
Appellants do not contend that, standing alone, the sending of the anonymous hate mail is legally insufficient to justify the issuance of the restraining orders. They simply challenge the court's finding that they did, in fact, do that. Because we have rejected their challenge to the sufficiency of the evidence on this factual issue, they have not demonstrated any error in the trial court's ruling, and it is unnecessary to consider their other arguments. Nevertheless, we reject their remaining arguments as well.
Appellants contend that "[w]itness testimony was inconclusive" concerning the verbal harassment. Their argument on this point essentially attacks the credibility of the various witnesses who testified at the hearing. However, it is not our function to re-assess witness credibility, even when reviewing a factual issue governed by the clear and convincing standard. (See O.B., supra, 9 Cal.5th at p. 1000 [appellate review when clear and convincing standard applies below does "not provide reviewing courts with a liberal license to substitute their views for the conclusions drawn by the trier of fact on matters such as witness credibility and the resolution of conflicts in the evidence"]; see also id. at pp. 1011-1012.)
Appellants also contend that the trial judge "pre-judged" the case, was "openly hostile" to them and did not consider their contentions "with an open mind, thereby denying [them] a fair hearing." This argument is forfeited because it is not supported by any legal argument or authority. (See United Grand Corp. v. Malibu Hillbillies, LLC, supra, 36 Cal.App.5th at p. 153.) Moreover, we have reviewed the record and conclude the trial court handled the hearing fairly, impartially, and appropriately. What appellants are principally objecting to are instances in which the trial court was simply attempting to hear the matter on a crowded calendar in the most efficient, expeditious way possible, and one instance in which the court appropriately admonished their lawyer for using insulting language about Juenger. Appellants were not denied a fair hearing.
DISPOSITION
The restraining orders are affirmed. Respondent shall recover her costs.
We concur. RICHMAN, Acting P.J. MAYFIELD, J. [*]
[*] Judge of the Mendocino County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.