Opinion
A160575
07-26-2021
RHONDA B. BAROVSKY, Plaintiff and Respondent, v. CHRISTOPHER TODD BROWN, Defendant and Appellant.
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. HG20053789
STREETER, J.
Rhonda B. Barovsky filed a request for a temporary restraining order and civil harassment restraining order against Christopher Todd Brown pursuant to Code of Civil Procedure section 527.6. After a hearing, the trial court issued a five-year restraining order prohibiting Brown from harassing and contacting Barovsky and from coming within 100 yards of Barovsky, her home, vehicle, and workplace. On appeal, Brown contends the trial court violated his right to due process and that the facts in evidence are not legally sufficient to constitute harassment. We affirm.
Unless otherwise specified, all further statutory references are to the Code of Civil Procedure.
In her brief, Barovsky discusses various exhibits attached to a motion to quash that were not considered by the trial court. These exhibits are not properly included in the record on appeal. “As a general rule, documents not before the trial court cannot be included as part of the record on appeal and thus must be disregarded as beyond the scope of appellate review.” (Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632; Cal. Rules of Court, rules 8.122(b)(3)(A)-(B), 8.124(b)(1)(B), (4).) The trial court told the parties it was not hearing the motion to quash and did not rule on its merits. Barovsky's counsel then asked the court to accept the exhibits attached to the motion, but the court responded it would not accept them “en masse.” Barovsky made no attempt to offer any of the individual exhibits as evidence and thus none of them was individually admitted, refused, lodged or filed in the trial court. As a result, we will disregard any references in Barovsky's brief to these exhibits.
A. Petition for Temporary and Civil Harassment Restraining Orders
In February 2020, Barovsky filed a request for temporary and civil harassment restraining orders against Brown. (§ 527.6.) The request stated that Barovsky met Brown when the Alameda County Superior Court appointed her as the recommending child custody mediator (Recommending Mediator) in Brown's marital dissolution in August 2019. Barovsky is a licensed clinical social worker. In October 2019, Barovsky provided the court with custody recommendations. The request alleged that Brown's harassment began during a phone call in December 2019, when Brown demanded that Barovsky refund the money he paid her as Recommending Mediator. The request alleged that, during the call, Brown rapidly asked questions, and spoke “in a raised voice and an angry tone of voice.” At that point, Barovsky ended the call, telling Brown that “any future telephone calls between us would include my attorney.”
The request further alleged that, after the phone call, Brown began emailing Barovsky as well as calling and emailing her attorney “demanding a copy of the confidential file [Barovsky] kept as the Recommending Mediator in his case.” Barovsky told Brown he needed to file a subpoena-her standard procedure for providing clients their confidential files. Barovsky alleged that Brown “continued to demand his file, ” saying he would not use the subpoena process, but instead would come to Barovsky's office to retrieve it. Barovsky and her attorney repeatedly requested that Brown not appear at her office and instead comply with the subpoena process to obtain his files. Out of fear for her safety, Barovsky contacted the Walnut Creek Police Department, and an officer advised her to call them should Brown show up at her office.
On February 4, 2020, Brown emailed Barovsky's attorney stating that he intended to come to Barovsky's office on February 7, 2020, in the presence of a civil standby, to retrieve his file. In her request for a restraining order, Barovsky asserted that Brown did not have an appointment on that date, “or at any future date.” Barovsky further alleged that Brown indicated if this attempt was unsuccessful, he would come unannounced to her office on future dates until he succeeded in obtaining his file.
The request alleged Barovsky was “extremely concerned” for her physical safety. Barovsky stated that Brown's “hostility toward me has reached a level that, in my professional opinion, represents very concerning behavior.” Barovsky stated that she was “afraid to leave my office for fear [Brown] will be in the waiting room. I have had to keep my office door shut and locked, and I am nervous when I hear footsteps when I am not expecting a patient. I am anxious, easily startled, and constantly looking over my shoulder. I am so worried about [Brown] showing up at any random day or time that I am distracted and having trouble concentrating and focusing on my patients.”
On February 7, 2020, the court issued a temporary restraining order requiring Brown to stay 100 yards away from Barovsky, her vehicle, home, and workplace.
Prior to the March 12, 2020 hearing, Brown filed a response to Barovsky's request for civil harassment restraining orders. The response stated that his conduct as described in Barovsky's request did not amount to harassment under section 527.6, and that Brown had never threatened Barovsky or attacked her character. Brown's response further alleged legitimate reasons for seeking his case file, including that he and Barovsky were in a contractual relationship and Brown did not feel Barovsky performed under their contract. Brown alleged additional legitimate reasons for his conduct, including Barovsky's “failure to remain impartial, failure to perform an objective finding of facts, failure to mediate between parties, improper failure to deliver all that was agreed to.” Brown also cited billing disputes which entitled him to “address contractual issues” with Barovsky.
The response further alleged that Barovsky's demand for Brown to comply with the subpoena process to obtain his file violated the law and breached their contract. Brown alleged the restraining order would block his “legitimate purpose of contesting and scrutinizing the reports and recommendation provided to the court” by Barovsky. The response also alleged Barovsky lacked any reasonable basis to feel threatened due to her professional training as a mediator and mental health professional as well as Brown's express intention to come to her office with a police officer as a civil standby.
B. The Court Hearing and Its Ruling Granting the Restraining Order
Both Barovsky and Brown were present at the hearing and both appear to have presented their respective sworn versions of what happened between them. The court took testimony from Barovsky and from an officer from the Walnut Creek Police Department, and it heard from Brown when he addressed the court directly at different points in the proceeding. Barovsky was represented by counsel--the same attorney with whom Brown had previously corresponded. Brown appeared in propria persona.
Because Brown represented himself, he presented his version of the relevant events in narrative form, not through question-and-answer examination. It is unclear from the record whether, in doing so, he formally testified in a manner that subjected him to cross-examination by Barovsky or by the court. What is clear, however, is that Brown was under oath when he explained his position to the court, both during his opening statement and again in response to the court's inquiry after Barovsky had presented her witnesses.
After opening statements, Barovsky's counsel called the Walnut Creek police officer as a witness. The officer testified that in February 2020, Barovsky called because she felt harassed by Brown and was concerned about Brown's threats to come to her office to obtain his confidential case file. Barovsky explained to the officer that she had repeatedly told Brown to go through a subpoena process to obtain his file and “wanted to make sure that he understood that.”
After ending the call with Barovsky, the officer called Brown. Talking with Brown, the officer explained what Barovsky had told him, including the procedure Brown needed to follow to obtain his record. The officer recommended that any future contact between Brown and Barovsky include Brown's attorney. The officer testified that Brown “was very argumentative and talked over me numerous times.” Brown told the officer he planned to go to Barovsky's office the following day and asked about a civil standby. The officer stated that Brown said his “intent was to remain civil with... Barovsky, should it reach that point.” After speaking with Brown, the officer called Barovsky and informed her that Brown planned to go to her office the next day. The officer told Barovsky to contact the police department if Brown came to her office. The officer testified that Barovsky “sounded scared over the phone” and told him that she would not be working there the next day to avoid Brown.
On cross-examination by Brown, the officer testified that he told Brown an officer from the Walnut Creek Police Department would be available if Brown contacted them to request a civil standby. The officer stated that Brown and Barovsky would be allowed to speak together during the civil standby while an officer stood there and observed. The officer further testified that, while he did not know whether Brown went to Barovsky's office the following day, he confirmed that dispatch did not receive a call requesting a civil standby.
Before Barovsky's direct examination, the court told Brown: “So, if [Barovsky is] going to testify, I just want to first of all point out that even though I did allow for cross-examination of the officer here, it's not necessarily a right. This is not a criminal case, and the trier of fact being the Court here rather than a jury can make my own inquiries and make my own cross-examination. So, I'm not going to necessarily allow cross-examination. If you've got some things of concern, you can ask me to examine [Barovsky] about them.” Brown replied: “Sure. Sounds fair.”
On direct examination, Barovsky testified that Brown's conduct made her fear for her own safety, her clients' safety, and the safety of other therapists in her shared office suite. She testified that Brown had been “incredibly harassing and escalating the harassment over time.” She described that during their December 2019 phone call, Brown spoke “in an extremely angry tone of voice, using pressured, rapid speech” with “so many questions that I couldn't respond.” Barovsky stated she told Brown he could have a contested hearing in the marital dissolution proceeding if he did not like her child custody recommendations, but Brown “just kept bombarding me with questions.”
Barovsky further testified that, due to Brown's threats to come to her office, she reduced her time at her office. And on February 7, 2020-the day Brown had threatened to come to her office to obtain his file--Barovsky did not work there, afraid to come into contact with him. Barovsky also had patients scheduled that day, and was afraid Brown would show up at her office, causing herself and her patients considerable anxiety. Barovsky further testified to the impact of Brown's conduct on her, stating: “I have suffered a lot from what I described in the restraining order. I almost got into a car accident. My blood pressure is up. I'm fearful. I have [a] startle response. I'm having trouble concentrating. I'm constantly worried that someone is walking inside my door. I've had to change my practice. I can't keep my door open any longer to the waiting room ‘cause I'm afraid he's going to show up. I have to keep my door shut and locked, which makes it difficult for clients to come.”
After Barovsky's direct examination, the court asked Brown if there were any areas he would like the court to question Barovsky about. Brown requested the court question Barovsky about various topics, including (1) medical diagnoses related to the alleged harassment; (2) whether Barovsky “could have done things to mitigate her own emotional abuse- alleged emotional abuse”; (3) Barovsky's “escalation of accusing [Brown] [and] alleging angry and pressured speech, of calling the Walnut Creek Police Department, of threatening a civil harassment restraining order and seeking a civil harassment restraining order, and then showing up ex parte and unannounced at [Brown's] custody hearing”; (4) how Brown was “actually escalating things by writing letters to [Barovsky], asserting [his] rights under the California medical records law, the HIPAA statutes, and the contractual obligations that [Barovsky] signed as part of her agreements”; and (5) what Brown's alleged “pressured speech” was.
After stating it found some of Brown's questions inappropriate, the court proceeded to ask Barovsky to testify about whether she had sought medical or emotional professional assistance as a result of Brown's “attacks.” Barovsky testified that she had sought both group counseling and individual counseling with two different psychiatrists. She had been participating in therapy sessions weekly as a direct result of the stress she suffered from Brown's conduct.
The court also asked Barovsky about Brown's specific conduct that made her fear for her physical safety. Barovsky testified that she feared for her safety because of Brown's conduct towards the police officer, including Brown's refusal to listen to the officer and instead telling the officer he planned to go to Barovsky's office, whether she wanted him to or not. Barovsky also expressed fear due to Brown's statements during the mediation process, which Barovsky explained she could not disclose because those statements were private and confidential. Barovsky also stated, “I fear for my safety that he would come into my office at any point. I don't know if he has weapons.” In response to further questioning from the court, Barovsky testified that “I've been doing this work since 2001 in my private practice. And since 1992 when I worked at Family Court Services, never have I asked for a civil restraining order before. I've never felt this nervous and in danger before.”
The court then asked Brown to respond. Brown stated that his conduct alleged to be harassment “has all been speech, specifically writing letters to [Barovsky] and then at the request of her attorney to her attorney.” In his statement, Brown discussed the substance of an email Brown said he sent to Barovsky's attorney dated February 6, 2020, though the email apparently was never marked as an exhibit and admitted into evidence. Brown claimed that, in the email, he stated he reserved the right to inspect his records. He then told the court that this email was his last communication with Barovsky, after which he made no attempt to visit her office, ceased contact with her and her attorney, and “abandoned the notion of going to her office.” Brown stated that the restraining order would prevent him from advocating for himself “in terms of seeking redress as a client” as well as investigating the basis for Barovsky's therapeutic recommendations for Brown and his daughter.
At the conclusion of the hearing, the court stated it was ready to close the evidence, and had “heard quite a bit of argument from both sides, so I'm not going to allow [any more].” The court told the parties that the applicable legal standard under section 527.6 is “the clear and convincing evidence standard of a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, serves no legitimate purpose; that the conduct would cause a reasonable person to suffer substantial and emotional distress and actually cause the Petitioner substantial emotional distress.”
The court then stated, “I am finding that the standard has been met here. It is quite apparent to me that-and you've said it yourself, Mr. Brown, that if you feel that your goal is correct and your position's correct, boundaries that other people have-and I think they're reasonable boundaries-you're not willing to comply with those boundaries. And so I am going to grant the order. I'm going to grant the order here. And considering what I've seen, I think the order is going to be a long term one here. [¶] It's going to be for five years.” The court entered a five-year restraining order prohibiting Brown from harassing and contacting Barovsky, and from coming within 100 yards of Barovsky, apparently including at court, as well as from coming within 100 yards of her vehicle, home, and workplace. This appeal followed.
II. DISCUSSION
Seeking reversal of the restraining order, Brown contends that the trial court: (1) deprived him of due process by denying him an opportunity to cross-examine Barovsky and by issuing an overbroad restraining order; and (2) erred as a matter of law in finding harassment under section 527.6 because Brown had a legitimate purpose, his conduct would not cause a reasonable person substantial emotional distress, and his conduct was unlikely to recur. We reject these contentions and affirm.
A. Applicable Law and Standard of Review
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).) The statute 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.” (Id., subd. (b)(3).) 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... 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.” (Id., subd. (b)(1).) At the hearing on a petition under section 527.6, the judge “shall receive any testimony that is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an order shall issue prohibiting the harassment.” (Id., 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.” (Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1226.) “ ‘The appropriate test on appeal is whether the findings (express and implied) that support the trial court's entry of the restraining order are justified by substantial evidence in the record. [Citation.] But whether the facts, when construed most favorably in [petitioner'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.' ” (Harris v. Stampolis (2016) 248 Cal.App.4th 484, 497 (Harris).)
In evaluating a sufficiency of the evidence claim when the clear and convincing standard of proof is applied by the trier of fact, “the question before the appellate court 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. Consistent 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 and give 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.” (Conservatorship of O.B. (2020)9 Cal.5th 989, 995-996.)
B. Due Process
We first address Brown's due process claims. Brown contends he was deprived of due process because he was denied the right to cross-examine Barovsky and the trial court issued an overbroad restraining order. We disagree.
Brown first claims he was deprived of due process because the trial court denied him an opportunity to cross-examine Barovsky. An outright denial did not happen here. At the hearing, the court gave Brown the opportunity to question Barovsky through the court-an opportunity to which Brown consented by responding, “Sure. Sounds fair.” This method of examination was within the court's discretion. (See Evid. Code, § 765, subd. (a) [“The court shall exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and to protect the witness from undue harassment or embarrassment”]; see also Pen. Code, § 1044.) Because “[a] trial court has inherent as well as statutory discretion to control the proceedings to ensure the efficacious administration of justice” (People v. Cox (1991) 53 Cal.3d 618, 700), the court here appropriately used its discretion in cross-examining Barovsky after obtaining Brown's consent.
Furthermore, Brown's failure to object to any of the court's examination of Barovsky amounts to forfeiture. A party that does not timely assert its 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].) This rule of forfeiture applies to the right of cross-examination. (People v. Skiles (2011) 51 Cal.4th 1178, 1189 [failure to assert right to cross-examine in trial court constitutes forfeiture].) Brown's contention that he merely “accepted the court's affirmative pronouncement” and therefore did not knowingly consent to the court's cross-examination of Barovsky lacks merit. Although Brown was self-represented at the hearing, such litigants are held to the same standards as those represented by counsel. (People v. $17, 522.08 United States Currency (2006) 142 Cal.App.4th 1076, 1084; Lombardi v. Citizens Nat. Trust etc. Bank (1955) 137 Cal.App.2d 206, 208-209 [“A litigant has a right to act as his own attorney [citation] ‘but, in so doing, should be restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts; otherwise, ignorance is unjustly rewarded' ”].) Accordingly, we find Brown forfeited the claim that he was denied cross-examination of Barovsky.
Brown's contention that his failure to object should not amount to forfeiture because objecting would have been futile also lacks merit. In support of this assertion, Brown cited a collection of cases for the proposition that objection is unnecessary where doing so would be futile. (City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 784-785 [citing People v. Chavez (1980) 26 Cal.3d 334; People v. Hopkins (1992) 10 Cal.App.4th 1699; People v. Scalzi (1981) 126 Cal.App.3d 901].)
None of these cases applies here. In the present case, Brown never objected, or attempted to object, to the court's cross-examination of Barovsky. (Cf. City of Long Beach v. Farmers & Merchants Bank, supra, 81 Cal.App.4th at p. 784 [a third oral objection would be fruitless after two prior written objections]; People v. Hopkins, supra, 10 Cal.App.4th at p. 1702 [after initial objection overruled, defense counsel could reasonably have believed a further objection would be fruitless]; People v. Scalzi, supra, 126 Cal.App.3d at p. 907 [further “ ‘irrelevant' ” objection unnecessary where “ ‘inadmissible hearsay' ” objection already raised].) People v. Chavez, supra, 26 Cal.3d 334 is also inapplicable here because Brown's failure to object was not based on an “ ‘ “ ‘unforeseen change[] in the law.' ”' ” (Id. at p. 350, fn. 5 [no duty to object when the existing state of the law would render an objection futile].) On the other hand, the record confirms Brown raised objections in several other instances during the hearing, some of which the trial court sustained. We therefore conclude no due process violation occurred.
Alternatively, Brown argues that, even should we find he consented to the court's cross-examination of Barovsky, the trial court erred by failing to ask all of Brown's questions which were necessary to impeach Barovsky's credibility.
We conclude that, in exercising his control over the mode of Barovsky's cross-examination, the trial judge was within his discretion to adopt the procedure of examination by the court on topics suggested by Brown, rather than run the risk of Brown using his opportunity to conduct cross-examination himself, face-to-face with Barovsky, as a tool of harassment. At that point, there was enough evidence in the record of Brown's volatility and difficulty with anger management to warrant the trial judge's precautionary choice to elicit testimony through court inquiry with Brown's input, instead of waiting to see if Brown conducted himself appropriately as a cross-examiner. The situation was potentially explosive.
Due process does not prohibit the trial court from imposing reasonable limitations on the presentation of evidence. (See People v. Marshall (1996) 13 Cal.4th 799, 836 [due process right to present evidence is limited to relevant evidence of significant probative value to the issue before the court]; In re Sade C. (1996) 13 Cal.4th 952, 986-992 [due process is a flexible concept and not synonymous with full-fledged cross-examination rights].) Neither of the cases cited by Brown are to the contrary.
In Schraer v. Berkeley Property Owners' Assn. (1989) 207 Cal.App.3d 719, 731 (Schraer), the appellate court reversed the issuance of a restraining order where the trial court “based its decision entirely on written declarations, newspaper articles, and the arguments of counsel, ” and refused to take any oral testimony. Although, as Brown asserts, Schraer holds there is a statutory right to present oral testimony and cross-examine witnesses regarding a requested restraining order, the court also noted that it was neither holding, nor implying, that every hearing for a restraining order under section 527.6 “must in all instances proceed with oral testimony instead of upon affidavits or declarations, regardless of the circumstances.” (Schraer, at p. 733, fn. 6.) The court reasoned that while trial courts may not “arbitrarily” limit the evidence presented, they may impose “such reasonable limitations as are necessary to conserve the expeditious nature of the harassment procedure.” (Ibid.) In contrast to the trial court's wholesale and arbitrary refusal to permit oral testimony in Schraer (id. at p. 731), here the trial court heard and considered a sworn version of the relevant events from both parties, while imposing reasonable limitations.
In Nora v. Kaddo (2004) 116 Cal.App.4th 1026, 1028-1029, the appellate court reversed the issuance of a restraining order under section 527.6 because the trial court denied the parties' requests to present testimony at the hearing, instead relying only on the declarations and exhibits submitted by the parties. While Brown attempts to analogize the wholesale denial of parties' requests to present testimony that occurred in Nora (116 Cal.App.4th at pp. 1028-1029) to the present case, no categorical denial of the parties' requests to present testimony occurred here. Unlike in Nora, where the trial court denied the presentation of any testimony during the hearing (ibid.), here, the trial court permitted both parties to give sworn presentations and properly questioned Barovsky after receiving Brown's consent. Thus, the reasonable limitations on testimony imposed by the trial court did not abridge Brown's due process rights.
Brown contends the court failed to cross-examine Barovsky on all the lines of questioning he proposed. In deference to the trial court's role as fact finder, we presume the court found Brown's remaining questions irrelevant. (§ 527.6, subd. (i) [“the judge shall receive any testimony that is relevant, and may make an independent inquiry”].) While section 527.6 states the trial court shall hear relevant testimony, the court still has discretion to control the hearing under the ordinary rules of evidence. (See Evid. Code, § 352; Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1146-1147 [“The state's strong interest in prompt and efficient trials permits the nonarbitrary exclusion of evidence”]; see also Schraer, supra, 207 Cal.App.3d at p. 733, fn. 6 [acknowledging trial courts may impose “such reasonable limitations as are necessary to conserve the expeditious nature of the harassment procedure”].) We find nothing in the record that would lead us to disagree with the trial court's implicit conclusion that Brown's remaining lines of questioning would not have had “significant probative value” (Maricela C., at p. 1147) to the court's determination.
We further presume that the court did not ask Brown's remaining questions because it had satisfied itself as to Barovsky's credibility. On appeal, we defer to the trial court's determinations of witness credibility. (See Parisi v. Mazzaferro, supra, 5 Cal.App.5th at p. 1226.) It can be surmised from the court's ultimate issuance of the restraining order that the trial court credited Barovsky's testimony as to Brown's harassment and its impact on her. Accordingly, subject to limitations we have found to be reasonable, the trial court questioned Barovsky on all topics Brown requested. In this non-jury proceeding where the trial court sat as the fact finder, the court gave Brown the opportunity to accomplish cross-examination's fundamental purpose-“to assist the trier of fact in determining the weight to be given to testimony elicited on direct examination.” (Payette v. Sterle (1962) 202 Cal.App.2d 372, 375.)
Brown next asserts that the restraining order impermissibly grants relief not requested by Barovsky and violates his due process right to appear in court in his own matters. The restraining order prohibits Brown from contacting Barovsky as well as coming within 100 yards of her, including at court. Brown argues the court erred in issuing a no-contact order that Barovsky did not even request in her petition. He also contends that because Barovsky, in the course of her work as a Recommending Mediator, will likely be present in the family law department of the Alameda County Superior Court, the restraining order will impermissibly prohibit Brown from participating in his own family law case at the same courthouse. We disagree. Brown also contests the scope of the restraining order, contending (1) that the 100-yard stay-away provision, in practical effect, impedes his access to the courthouse since he will have no way of knowing whether Barovsky will be in court or, if so, where she will be in the courthouse on days they both have business there, and (2) the clause barring contact with her directly or indirectly prevents him from contacting her in any way.
We see merit in some of Brown's contentions as to the scope of the restraining order.
Before turning to the scope of the order, however, we reject Brown's contention that he had no notice the court might issue a no-contact restraining order. Because Barovsky's initial petition for a restraining order left the box requesting a no-contact order unchecked, Brown contends the court's ultimate issuance of a no-contact order exceeded the scope of Barovsky's petition. But as counsel for Barovsky pointed out at oral argument, the temporary restraining order included a no-contact restraining order, so it is not the case that prior to the hearing Brown had no notice an order of such breadth might issue. The case Brown cites for this point, moreover, is inapposite. In Kobey v. Morton (1991) 228 Cal.App.3d 1055, 1060, the appellate court held the trial court abused its discretion in issuing mutual restraining orders where one party had not even filed a cross-complaint requesting the order. Unlike in Kobey, where the trial court abused its discretion by granting relief where a party did not file a petition at all (ibid.), here the trial court properly used its discretion by granting the relief it deemed necessary after Barovsky had already filed the petition requesting a restraining order.
Consequently, we presume the trial court determined the proper scope of the restraining order based on its findings of what would be necessary to ensure Barovsky's safety. Such a determination regarding scope was not an abuse of discretion. (Yost v. Forestiere (2020) 51 Cal.App.5th 509, 523 (Yost) [decision to issue a restraining order is committed to trial court's discretion].) The trial court was justified in finding the ultimately issued restraint necessary. Such a finding was “fully supported by the evidence before [the court], and [was] not unreasonable or overbroad in light of the evidence.” (R.D. v. P.M. (2011) 202 Cal.App.4th 181, 194.)
We do think it is correct, however, that the scope of the protective order, if construed literally, is potentially problematic. While we do not agree with the overstated contention that Brown is effectively banished from the courthouse, and while we believe inadvertence would surely be available as a defense in the event Brown encountered Barovsky in the courthouse unexpectedly (cf. People v. Hall (2017) 2 Cal.5th 494, 503 [rejecting claim that probation condition prohibiting possession of firearms or narcotics is unconstitutionally vague because it fails to specify that it applies only to knowing possession of such contraband]), we nonetheless think the protective order, as entered, should include express exceptions permitting (1) the parties to be within 100 yards of each other in a courthouse as necessary for the parties to carry out any business they may have there, and (2) indirect contact between the parties through counsel. We will vacate the protective order and remand for the limited purpose of modifying it to include these exceptions.
C. The Court's Finding of Harassment
Brown contends the restraining order is defective because, within the meaning of section 527.6, the trial court's findings were insufficient to demonstrate that: (a) Brown lacked a legitimate purpose; (b) Brown's conduct would cause a reasonable person to suffer substantial emotional distress; and (c) the harassment was likely to recur. We disagree.
First, Brown contends the court refused to consider his purpose, arguing he “expressed a legitimate purpose for his conduct but was erroneously prevented by the court from providing evidence on that point.” We disagree. The trial court took significant evidence on this issue.
At various times during the hearing, the trial court explained to the parties that there were “extensive declarations already in the record, and those are all going to be considered. So to repeat what's in the record in detail is not necessary and not a good use of time.” Through sworn representations to the court in opening statement as well as later in the hearing, Brown amply characterized the motivating purpose of his conduct toward Barovsky. Various assertions Brown made in the response to the request for a restraining order, which constitute admissible evidence under section 527.6 (Yost, supra, 51 Cal.App.5th at p. 521), also provided lengthy explanations of his purpose. In light of the evidence the court had before it, additional evidence of Brown's purpose, while perhaps relevant, would have been cumulative. Trial courts have discretion to exclude cumulative evidence. (See In re Romeo C. (1995) 33 Cal.App.4th 1838, 1843 [noting that, although cumulative evidence may be relevant, it is excludable under Evid. Code, § 352].) The court did not abuse its discretion in excluding more evidence of Brown's purpose.
Next, Brown contends the trial court erred by not making an express finding that his conduct “would cause a reasonable person to suffer substantial emotional distress.” (§ 527.6, subd. (b)(3).) Section 527.6 does not require the court to make “specific findings of the statutory elements of harassment.” (Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1112.) Rather, the granting of the injunction itself necessarily implies that the trial court found, pursuant to section 527.6, clear and convincing evidence that the requisite elements of harassment were met. (Ensworth, at p. 1112.)
Here, the evidence in the record was sufficient to meet the substantial emotional distress requirement of section 527.6, subdivision (b)(3). (See Harris, supra, 248 Cal.App.4th at p. 502 [petitioner's evidence of emergency room visit and diagnosis of acute anxiety after incident with defendant sufficiently showed that reasonable person would suffer substantial emotional distress].) Barovsky testified as to her own substantial emotional distress, including her regular participation in individual counseling sessions and group therapy as a result of Brown's harassment. In non-jury trials, it is the judge's duty to evaluate the credibility of witnesses, resolve conflicts in the evidence, and draw reasonable inferences from the evidence. (See § 631.8, subd. (a) [“The court as trier of the facts shall weigh the evidence”]; In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531 [appellate courts do not reassess witness credibility].) In light of the harassing nature of Brown's conduct towards Barovsky-an implicit finding we uphold as supported by the record-substantial evidence also supports the trial court's further, implicit finding that Barovsky in fact suffered “substantial emotional distress” as a result of Brown's harassment and that a reasonable person would suffer such distress. (See § 527.6, subd. (b)(3).)
Brown also contends insufficient evidence exists for the trial court to find the harassment would recur. “ ‘ “[T]he determination of whether it is reasonably probable an unlawful act will [occur] in the future rests upon the nature of the unlawful [harassment] evaluated in the light of the relevant surrounding circumstances of its commission and whether precipitating circumstances continue to exist so as to establish the likelihood of future harm.”' ” (Yost, supra, 51 Cal.App.5th at p. 528.) Brown argues the harassment is not likely to recur because his interactions with Barovsky “were remote, not personal, and involved no threats.” But the record shows that Brown engaged in a “pattern of conduct composed of a series of acts over a period of time... evidencing a continuity of purpose.” (See § 527.6, subd. (b)(1).) His harassing conduct occurred over several months, and he never expressed to Barovsky that he had abandoned his intentions of coming to her office. Substantial record evidence therefore supports an implicit finding against Brown on this statutory element as well.
Finally, Brown argues the trial court made no express finding that future harm was highly probable absent a restraining order. But an express finding was not required. “Absent indication to the contrary, we must presume that the trial court followed the applicable law and understood that it was required to find that future harm was reasonably probable. [Citations.] Given that it issued an injunction, we may infer that the trial court impliedly found that it was reasonably probable that future harassment would occur.” (Harris, supra, 248 Cal.App.4th at pp. 500-501.) We find substantial record evidence to support the trial court's determination that, without a restraining order, future harassment would likely recur.
Based on the foregoing, we conclude the record as a whole contains substantial evidence “from which a reasonable fact finder could have found it highly probable” (Conservatorship of O.B., supra, 9 Cal.5th at p. 996) (1) Brown engaged in a course of conduct directed at Barovsky that seriously alarmed, annoyed, or harassed her, without legitimate purpose; (2) Brown's actions were of a kind that would have caused a reasonable person to suffer substantial emotional distress; (3) Barovsky did suffer such distress; and (4) Brown's course of conduct was likely to recur. We therefore reject Brown's insufficiency of the evidence claim.
III. DISPOSITION
The civil harassment restraining order is vacated and remanded for the limited purpose of modifying it to include the exceptions set forth in section II.B. All of Brown's remaining challenges to entry of the protective order, other than those concerning its scope-which involve defects that will be cured upon modification of the order to include the exceptions we have identified-are rejected. Barovsky shall recover her costs on appeal.
WE CONCUR: POLLAK, P. J., TUCHER, J.