Opinion
A150530
06-19-2018
ROBIN ANDREWS, Plaintiff and Respondent, v. CHRISTINE CHANG, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RG17844244)
Christine Chang appeals from a restraining order that required her to stay away from her former neighbor and the neighbor's daughter. We affirm.
I. BACKGROUND
On January 4, 2017, Robin Andrews requested a civil harassment restraining order against Christine Chang on behalf of Andrews and her 10-year-old daughter. Chang had allegedly harassed Andrews and her daughter by continuously mailing Andrews transcripts of a resolved court proceeding and making false statements about her to "property management." Andrews and her daughter were suffering emotional distress due to the harassment. A temporary restraining order was issued pending a hearing.
In a response not in the appellate record but recited by the trial court at a hearing on the matter, Chang claimed Andrews and her daughter harassed, stalked, and intimidated her, as well as "evicted" her from her apartment next door to Andrews. Chang noted she unsuccessfully sought a restraining order against Andrews and her daughter, and an appeal in that case was still pending at that time.
We take judicial notice of the public docket for Chang's prior appeal. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).) We affirmed the Alameda County Superior Court's denial of Chang's request for a restraining order. (Chang v. Andrews (Sept. 8, 2017, A148818) [nonpub. opn].)
At a February 2, 2017 evidentiary hearing, Andrews acknowledged some sort of conflict had occurred between Andrews' daughter and Chang in 2016, which prompted Chang to move out of the apartment where her son still lived. Andrews alleged Chang thereafter engaged in ongoing harassment of her and her daughter.
Andrews first alleged Chang repeatedly sent her copies of court documents. Andrews presented copies of those documents to the court, which the court identified as related to Chang's first appeal (motion to augment, opening brief, clerk's transcript). After the court's review, it said Chang "has the right to file these papers, and she's required by law to serve a copy on you."
These documents are not in the appellate record.
Andrews next told the court Chang sent two people to Andrews's home to serve her with documents in person. At least one of these visits occurred after issuance of the temporary restraining order. The court closely examined each party on the allegation. After repeated denials, Chang told the court, "[E]ven if I did ask Miss Shirley to serve [Andrews] personally, this was just for the purpose of serving" court documents as she was legally required to do.
Finally, Andrews testified Chang falsely accused her being "a thug," "criminal minded," "a liar," and "mafia affiliated." She said Chang "accused my [then] nine-year-old child of jumping on her and beating her, giving her contusions to the brain, lacerations . . . . [¶] She[] [was] nine years old, mind you . . . ." As noted, Andrews swore in her verified request for a restraining order that Chang had made false statements about her to "property management." Chang told the court that Andrews's daughter "last year in April and May, led the criminals from her unit, assaulted and battered me, and I still have bruises and contusion on my face that don't go away and kicked my small service dog and then led away into the apartment building, laughing." The court asked, "This nine-year-old did?" and Chang responded, "Yes." The court said, "Thank you. You've provided some information for me."
Immediately after this exchange, the court granted the restraining order. The court expressly found Andrews credible and found by clear and convincing evidence that Chang engaged in "a continuing course of action . . . to slander . . . Andrews and her [then] nine-year-old daughter." The 12-month restraining order prohibited Chang from contacting or harassing Andrews or her daughter directly or indirectly except to (1) have a third party serve—by mail only—legal documents related to Chang v. Andrews, supra, A148818, and (2) peacefully visit Chang's disabled son who lived next door to Andrews. Chang appealed and Andrews did not file a respondent's brief.
II. DISCUSSION
Preliminarily, we observe that Chang's opening brief does not conform to the California Rules of Court. Rule 8.204, subdivision (a)(1)(B) requires each brief to "[s]tate each point under a separate heading or subheading summarizing the point." The headings in Chang's brief, however, do not state points of argument, and the sections following each heading do not address distinct points of argument. Indeed, the brief has no discernable logical structure. Throughout the brief, Chang indiscriminately describes allegedly assaultive behavior by Andrews and her daughter in 2016, accuses Andrews of perjury, and intermittently argues the trial court erred in granting the restraining order. It is not the role of appellate courts to " 'extricate [arguments] from the mass' " of verbiage in a disorganized brief, even if a litigant is proceeding pro se. (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656; see Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 524.) We may deem arguments abandoned due to violations of court rules. (See Stebley, at pp. 524-525.) However, we attempt to address Chang's arguments on the merits.
Code of Civil Procedure section 527.6 authorizes a civil restraining order to prohibit "harassment," which is defined to include "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." (Id., § 527.6, subd. (b)(3); see id., subd. (a).) A "[c]ourse 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, . . . or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails . . . . Constitutionally protected activity is not included within the meaning of course of conduct." (Id., § 527.6, subd. (b)(1).) "If the judge finds by clear and convincing evidence that unlawful harassment exists, an order shall issue prohibiting the harassment." (Id., § 527.6, subd. (i).)
In a case tried without a jury, the trial judge is the sole arbiter of all evidentiary conflicts the sole judge of witness credibility. (Davis v. Kahn (1970) 7 Cal.App.3d 868, 874.) The judge is free to disbelieve witnesses even those who are uncontradicted if any rational ground exists for doing so. When sufficiency of evidence is contested on appeal, it is assumed the judge resolved every factual conflict in favor of the prevailing party and drew every reasonable inference in favor of that party. The sole question on appeal is "whether there is any substantial evidence, direct or indirect, contradicted or uncontradicted, which will support the finding." (Ibid.)
Here, substantial evidence supports the trial court's finding that Chang harassed Andrews and her daughter by falsely alleging to building management and others that Andrews was a criminal and "mafia affiliated," and claiming Andrews' then-nine-year-old daughter assaulted and battered Chang to the point of causing bruises and contusions still detectable nine months later. Slander is oral defamation. (Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1180.) Defamation is a "false and unprivileged publication" by writing or oral utterance that has a tendency to injure the plaintiff in his occupation or otherwise damage his reputation. (Civ. Code, §§ 44, 45, 46.) Statements made during litigation or to achieve the objects of litigation are absolutely privileged. (Id., § 47, subd. (b); Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 780-781.) Statements made on a matter of common interest, however, are privileged only if made without malice (Civ. Code, § 47, subd. (c)) and if not excessively published (Emde v. San Joaquin County etc. Council (1943) 23 Cal.2d 146, 154-155). The court heard live testimony by Andrews and Chang regarding the 2016 incident and Chang's statements to others about the incident. While observing this testimony, the court was in the best position to assess the parties' credibility and possible underlying malice. The court implicitly found Andrews's testimony credible regarding this incident and Chang's description not credible. The court also implicitly found that Chang made false and defamatory statements about the incident outside of a litigation context that damaged Andrews and her daughter and caused them emotional distress, and to the extent she made these statements to interested persons (e.g., possibly property management) Chang showed malice or excessively published her statements. Substantial evidence supports these findings.
Chang complains the court rejected written evidence she attempted to submit during the hearing, even though it accepted documentary evidence presented by Andrews. Chang has not shown the court abused its discretion in ruling on these evidentiary matters. (See Diamond v. Reshko (2015) 239 Cal.App.4th 828, 841 [evidentiary rulings are reviewed for abuse of discretion].) After Andrews testified about Chang's alleged harassment (mailing documents, sending people to Andrews' home to serve documents, and lying about Andrews and her daughter), she presented the court with copies of documents she had received in the mail to corroborate her testimony. The court reviewed the documents, thus implicitly receiving them in evidence, but apparently rejected Andrews's related allegation of harassment on the basis of those documents. Chang apparently attempted to introduce an affidavit supported by exhibits in lieu of live testimony. The court denied her leave to do so but invited her to testify without restriction, stating: "What else do you want to tell me?" Chang described the alleged 2016 incident involving Andrews's daughter, which was also the main subject of her affidavit. She did not specifically draw attention to exhibits attached to her proffered affidavit. The trial court apparently found Chang's allegations against the nine-year-old girl inherently implausible, credited Andrews's contrary testimony, and resolved the factual dispute in Andrews's favor.
After filing her notice of appeal in this matter, Chang filed a "declaration" in the trial court with two attached exhibits. She described "exhibit 2" as the affidavit she attempted to submit to the court. The exhibit is an affidavit with six supporting exhibits. Andrews has not objected to the document's inclusion in the appellate record.
Moreover, the restraining order is further supported by an implied finding that Chang harassed Andrews by unnecessarily sending people to personally serve her with court papers even though a temporary restraining order had been issued. (See Fladeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 48 ["[u]nder the doctrine of implied findings, the reviewing court must infer, following a bench trial, that the trial court impliedly made every factual finding necessary to support its decision"].) The temporary restraining order prohibited Chang from "directly or indirectly, in any way" contacting Andrews except for "[p]eaceful written contact through . . . [an]other person for service of legal papers . . . . [Y]ou may have your papers served by mail on the person . . . ." (Italics added.)
III. DISPOSITION
The restraining order is affirmed. Chang shall bear Andrews's costs on appeal. (See Code Civ. Proc., § 527.6, subd. (s).)
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.