Opinion
A158159
05-27-2020
R.B.T., Plaintiff and Respondent, v. OXANE TAUB, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG19022173)
Based upon a request filed by J.R.T., the trial court issued an order restraining defendant from contacting R.B.T., the 14-year-old son of J.R.T., pursuant to Code of Civil Procedure section 527.6. We affirm.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
BACKGROUND
Acting as guardian ad litem for her 14-year-old son, J.R.T. sought temporary and civil harassment restraining orders against defendant. The request for a restraining order alleged that defendant had called R.B.T., had emailed him disturbing messages, had been trying to meet with him without his parents, had attempted to sneak him a letter at school, and had ignored requests that she leave the boy alone. The request also alleged that R.B.T. was afraid of defendant. The trial court issued a temporary restraining order requiring defendant to stay 100 yards away from R.B.T., his home, and his school.
J.R.T. and defendant testified at the hearing. J.R.T. testified that defendant's son and her son R.B.T. were good friends, and defendant had begun to fixate on R.B.T. J.R.T. noticed that when the boys were talking on the phone, defendant took over the conversation and said disturbing things to R.B.T. R.B.T. told J.R.T. about the calls, J.R.T. recorded one, and she filed a police report. Defendant then began emailing R.B.T., who forwarded the emails to his parents. The emails became romantic and were predatory. When R.B.T. shared some of the emails with his school counselor, his counselor called J.R.T. immediately and encouraged her to do something to prevent further contact. R.B.T. told defendant's son that he did not want defendant to contact him anymore and that defendant was making him very uncomfortable. Defendant also tried to sneak a letter to R.B.T. at school in June, which the vice principal intercepted. J.R.T. testified that once defendant was served with the temporary restraining order, R.B.T. began getting emails from defendant's son's email address whereas defendant's son had previously emailed R.B.T. only once.
Defendant, in turn, testified that her conflict with J.R.T. began the previous December, and J.R.T. was determined to destroy the boys' friendship. Defendant stated that R.B.T. was depressed, and, because she was a therapist, she tried to help him. She sent him 75 emails—50 with meditation rules, self-help and therapy tapes, music and videos on how to survive a narcissistic parent—and 25 with content. None were sexually explicit.
Defendant testified that she spoke to R.B.T. twice at school. Once, R.B.T. ran up to her, hugged her, and said he loved her, and she responded that she loved him, too. The other time she wanted to talk to him about reuniting with his dad, and he gave her a flirtatious smile and said he would think about it. She testified that J.R.T. falsely told police that defendant had sent R.B.T. 30 sexually explicit emails, that this made defendant more concerned about R.B.T., and so she wrote him the June letter. Her son told her that R.B.T. had asked him what was in the letter after the vice principal intercepted it, and, the next day, R.B.T. had cuts on his arm.
Defendant said she only spoke to R.B.T. twice on the phone, but he really liked her, and his mother was jealous. She stated that R.B.T. was suicidal, and that was the problem. She also said R.B.T. was no longer a child, and J.R.T. needed to respect his emotions. She testified that the two had feelings for each other, but she would never approach R.B.T. sexually because he was a minor.
At the conclusion of the hearing, the commissioner expressly credited J.R.T.'s testimony that R.B.T. was disturbed and honest when he told J.R.T. about defendant's conduct. The commissioner found the large number of communications from defendant—an adult—to a minor inappropriate and found that the language in defendant's emails telling R.B.T. that she loved him was disturbing. She found that defendant had engaged in a course of conduct directed at R.B.T. that seriously alarmed, annoyed, or harassed him and served no legitimate purpose, that R.B.T. suffered serious emotional disturbance as a result, and that a reasonable person would suffer such emotional disturbance.
The commissioner entered a four-year restraining order prohibiting defendant from harassing and contacting J.R.T. or R.B.T. and from coming within 100 yards of R.B.T., his home, and his school. This appeal followed.
DISCUSSION
Section 527.6 authorizes a person who has suffered harassment to "seek a temporary restraining order and an order after hearing prohibiting harassment." (§ 527.6, subd. (a)(1).) At the hearing, the court must receive relevant testimony and may make an independent inquiry. (§ 527.6, subd. (i).) Although section 527.6 is intended to provide expedited injunctive relief for victims of harassment, the party to be enjoined has certain important due process safeguards, including "a full opportunity to present his or her case, with the judge required to receive relevant testimony and to find the existence of harassment by 'clear and convincing' proof." (Schraer v. Berkeley Property Owners' Assn. (1989) 207 Cal.App.3d 719, 730.) If the court finds by clear and convincing evidence that unlawful harassment exists, it must issue an order prohibiting the harassment. (§ 527.6, subd. (i).)
"We review issuance of a protective order for abuse of discretion, and the factual findings necessary to support the protective order are reviewed for substantial evidence. [Citations.] 'We resolve all conflicts in the evidence in favor of respondent, the prevailing party, and indulge all legitimate and reasonable inferences in favor of upholding the trial court's findings. [Citation.] . . . [I]f there is a substantial conflict in the facts . . . the trial court's determination of the controverted facts will not be disturbed on appeal.' " (Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1226.) "But whether the facts, when construed most favorably in [respondent's] favor, are legally sufficient to constitute civil harassment under section 527.6, and whether the restraining order passes constitutional muster, are questions of law subject to de novo review." (R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188.)
I. Due Process Claim
Defendant seeks reversal of the restraining order on due process grounds, contending that she was denied: 1) the right to see evidence against her; 2) the right to cross-examine witnesses; 3) the right to an unbiased adjudicator; 4) a full and fair opportunity to be heard and present evidence; 5) the right to be represented by counsel; and 6) a written statement of findings of fact and reasons for the commissioner's decision. These due process challenges were either forfeited or fail in substance.
First, defendant forfeited the claim that she was denied the right to cross-examine witnesses and the right to see a text message about which J.R.T. testified at the hearing. J.R.T. testified that R.B.T. sent defendant's son a text message asking that defendant not contact him, but defendant did not object to this testimony or demand that the text be produced. Similarly, defendant never requested to cross-examine J.R.T. A party that does not timely assert his or her rights, even constitutional ones, forfeits them. (In re Curtis S. (2013) 215 Cal.App.4th 758, 761 [any right, including a constitutional right, may be forfeited by lack of assertion]; Mendoza v. Ramos (2010) 182 Cal.App.4th 680, 687 [failure to request cross-examination results in forfeiture].)
Defendant refers to this challenge as "the right to know opposing evidence (discovery)," though her only argument is that the commissioner denied her the right to see the text message about which J.R.T. testified. There is no provision for discovery under section 527.6's expedited procedures (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 650, fn. 11), nor does the record reflect that defendant sought any discovery. On the other hand, the record confirms that the commissioner afforded defendant access to the documentary evidence submitted by J.R.T.
With respect to defendant' s judicial bias argument, due process guarantees the right to an impartial judge, but this right is not violated because a judge has issued adverse rulings to a litigant. (Brown v. American Bicycle Group, LLC (2014) 224 Cal.App.4th 665, 673-674.) Defendant argues that the commissioner's grant of the restraining order in this case and her failure to grant defendant a prior restraining order in a separate matter show the commissioner's bias, but "[t]he mere fact that the trial court issued rulings adverse to [defendant] on several matters in this case, even assuming one or more of those rulings were erroneous, does not indicate an appearance of bias, much less demonstrate actual bias." (Id. at p. 674.) Defendant's judicial bias challenge thus lacks merit.
Without presenting any argument or authority, defendant asserts in her brief that R.B.T. was not present at the hearing, and she claims that the commissioner did not disclose that she was a commissioner and not a judge when defendant was present in court. To the extent that defendant sought to present claims of error on appeal with respect to these assertions, she forfeited them. (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303 ["Contentions on appeal are waived by a party who fails to support them with reasoned argument and citations to authority"].)
Defendant next contends that she was denied an opportunity to be heard because she had to present her case in a short time frame, her request to submit evidence was denied by the commissioner, and she was denied the opportunity to call her son as a witness. We disagree.
While the commissioner gave defendant only eight to ten minutes to present her case, the commissioner heard defendant's testimony, and, contrary to defendant's assertion, accepted all of the documentary evidence defendant submitted. Defendant testified and then told the commissioner, "So that's basically the story here. And you know, thank you for listening and for giving me the time to explain." Defendant did not indicate that she had more to say, nor did she object to the time she was allotted. To the contrary, when the commissioner first gave defendant the eight to ten-minute time estimate, defendant responded, "Okay. Great. Ten minutes . . ." and said she was "going to try to make it brief." Most importantly, on appeal defendant does not identify any testimony she would have presented had she been given more time, nor did she present an offer of proof to that effect at the time of the hearing. On these facts, we find no violation of due process.
The commissioner's decision not to allow defendant's son to testify also did not deny defendant due process of law. Section 527.6 states the court shall hear relevant testimony, but the court still has discretion to control the hearing under the ordinary rules of evidence. "The state's strong interest in prompt and efficient trials permits the nonarbitrary exclusion of evidence [citation], such as when the presentation of the evidence will 'necessitate undue consumption of time.' (Evid. Code, § 352.) The due process right to present evidence is limited to relevant evidence of significant probative value to the issue before the court." (Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1146-1147; see also People v. Boyette (2002) 29 Cal.4th 381, 427-428 [stating, in the criminal context, " 'As a general matter, the "[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense." ' "].)
Defendant told the commissioner that her son would testify that he saw cuts on R.B.T.'s arm the day after the vice principal intercepted defendant's June letter. On appeal, defendant also states that her son would have testified that R.B.T. wanted to see defendant's letter. Although she allowed defendant to testify regarding the cuts in her case-in-chief, the commissioner decided the hearing was getting off point, the cuts were not the main issue, and she declined to review pictures J.R.T. offered related to the alleged cuts or allow defendant to call a witness she had not called in her case-in-chief. But defendant herself testified that her son saw the cuts, and that, with respect to the June letter, R.B.T. asked him, "[W]hat is in that letter, [the vice principal] won't let me read it." After this testimony, the exclusion of duplicative testimony from a witness whom defendant did not call in her case-in-chief did not violate due process (see In re Romeo C. (1995) 33 Cal.App.4th 1838, 1843 [noting that, although cumulative evidence may be relevant, it is excludable under Evidence Code section 352]); even if error occurred, on this record, any error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 710, 715.)
We briefly address defendant's remaining argument that she was denied due process because she was not afforded counsel and because the commissioner did not provide written findings of fact and reasons. Generally, there is no constitutional right to counsel in a civil proceeding, and defendant does not establish cause to deviate from the general rule in this civil harassment proceeding. (See Walker v. State Bar (1989) 49 Cal.3d 1107, 1116 ["Generally speaking, the right to counsel has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation"].) Similarly, defendant cites no authority establishing a due process right to written findings of fact and reasons in a civil harassment proceeding, let alone a right to written findings and reasons where she concededly did not request them. Due process does not require reversal of the restraining order.
Section 527.6 does not require a statement of the court's findings of fact, "nor does it require specific findings of the statutory elements of harassment." (Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1112.) The granting of the injunction itself necessarily implies that the trial court found the requisite elements of harassment. (Ibid.)
II. Substantial Evidence Claim
Defendant argues that the restraining order must be reversed because there was no evidence of harassment. We disagree.
Section 527.6 defines harassment as unlawful violence, a credible threat of 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. The 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. (§ 527.6, subd. (b)(3).) 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, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, facsimile, or email." (§ 527.6, subd. (b)(1).)
Substantial evidence supports the restraining order. Defendant sent 75 emails and a letter to a minor in a six-month period. Only four of these emails and the letter are part of the appellate record, but aggressive and inappropriate statements saturate these documents. Providing some limited examples, defendant accused R.B.T. of "slimy back stabbing behavior" and "shitting on [defendant's] soul"; she said he was "so deeply deluded and so mind fucked by [his] mother," and told him, "lying is the one thing that will make you lose all and every one of your real friends. No self respecting woman will ever date you either." She told R.B.T. that he was in "so much darkness and pain," he was "depressed out of his mind," and stated, "You need a lot of help . . . I can totally help you. Without me it will be a lot harder." She wrote, "I know that you have feelings for me," and she told him that she had feelings for him too; she also wrote the law is clear that "dating is not illegal as long as there is no sexual intercourse," and, "No judge and no DA would ever consider taking on such a case [against her]. I bet they would get a good laugh out of it and tell their friends and family about how insane, how jealous and controlling mothers can get." She wrote many derogatory statements about J.R.T. and told R.B.T. that it was "really fucked up" that he got his mother involved, questioning, "Are you ever going to grow up or will you always stay in kindergarten?" In addition, defendant sent R.B.T. 50 emails containing rules to meditation, self-help and therapy tapes, and videos about how to survive a narcissistic parent, and she concedes that a few of her emails were romantic in nature. Ample evidence establishes a knowing, willful, alarming, annoying, and harassing course of conduct that serves no legitimate purpose.
Defendant submitted all 75 emails to the commissioner but provides only four emails and the June letter in the record on appeal. --------
There is also sufficient evidence that a reasonable person would suffer substantial emotional distress and that R.B.T. suffered substantial emotional distress from defendant's conduct. (§ 527.6, subd. (b)(3).) R.B.T. told J.R.T. and defendant's son that defendant's contact was making him very uncomfortable, he asked that she leave him alone, and he blocked contact with defendant's son because of his discomfort. Considering the harassing and inappropriate content of the communications in the record and the prolific nature of defendant's communications to R.B.T., ample evidence supports the finding that a reasonable person in R.B.T.'s position would suffer substantial emotional distress from defendant's conduct. While defendant claims that J.R.T. lied at the hearing and the restraining order was obtained against R.B.T.'s will, it was for the commissioner to judge witness credibility, and she credited J.R.T.'s testimony that R.B.T. was disturbed and honest when he spoke of the harassment. We defer to the commissioner's supported determinations on appeal. (See Parisi v. Mazzaferro, supra, 5 Cal.App.5th at p. 1226.)
DISPOSITION
The civil harassment restraining order is affirmed. R.B.T. is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
/s/_________
BROWN, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
STREETER, J.