Opinion
A150623
11-14-2017
NABIEL HIJAZEEN, Plaintiff and Respondent, v. SAMIA GIRAGOSSIAN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. FL 1604369)
Appellant Samia Giragossian appeals from a three-year restraining order obtained by her son-in-law respondent Nabiel Hijazeen prohibiting her from having any contact with him or his family, including his four children. The order was entered after an evidentiary hearing at which the court heard testimony from both parties, from appellant's daughter and respondent's wife, and from appellant's sister and her husband. Respondent's evidence was to the effect that appellant has from the outset disapproved of his marriage to her daughter, continually falsely accuses him of abusing his children, and continually asks the children whether their father is hitting them and tells the children that he will be jailed. She also threatens to call the police and have the children taken from him and has submitted numerous reports to the police accusing him of domestic violence, which have been investigated and found to be untrue. He characterized this conduct as harassment that is having a deleterious effect on his family, particularly on his children. Appellant denied any such harassment, claiming that respondent did hit the children and that one daughter had told her that her father "touch[ed] her in private places."
At the conclusion of the hearing, the court entered an order pursuant to Family Code sections 6300, 6320, and 6345, subdivision (c), prohibiting appellant from harassing, contacting or coming within 30 yards of respondent, his wife, children and mother. The court explained: "Let me explain something to you, Ms. Giragossian. [¶] You've got a daughter and son-in-law and a bunch of grandchildren, and what they want is for you to leave them alone. You are making terrible accusations, accusations which, if they were true, and there's a shocking number of police reports, and you've been very active in making your accusations, if they were true, Mr. Hijazeen . . . would be in state prison and the children would have been taken away from their parents . . . [¶] So maybe your leading and suggestive questions to the kids, maybe the kids getting the message that they know what you want to hear, which is bad things about their parents, is kids want to please grownups, and maybe they're trying to please you by telling you what they want to hear, I don't know, but I can tell you this, there are people in this county who are charged with protecting little kids. The police, Children & Family Services, social workers and teachers and so forth. And if there's anything even approaching what you're suggesting that's going on in your daughter and son-in law's house I can assure you that it would have been taken care of and exposed. [¶] The other possibility is that your anger, and I don't know what's going on, or jealousy or resentment or whatever has affected your judgment. I don't know and I'm not the person that can determine that. But what I do know is that they have the right to be left alone and not to be harassed by you and you are harassing them. You're calling the police on them, you're cross-examining the kids, you're constantly accusing them of behaving badly. And it's very sad for me to tell a grandmother that she has to stay away from her grandchildren but that's exactly what I'm going to do, because they have the right to live in peace, they have a right not to be harassed by you and your sister, and your husband."
Appellant has timely appealed from the order. Although both parties appeared without counsel in the trial court, on appeal appellant is represented by counsel who has filed an opening brief on her behalf. Respondent has made no appearance in this court.
Discussion
As appellant acknowledges, the standard of review of an order granting a domestic violence restraining order is abuse of discretion. (E.g., Gonzales v. Munoz (2007) 156 Cal.App.4th 413, 420.)
Appellant contends that the evidence is insufficient in several respects, but in effect is requesting this court to reweigh the evidence, which we may not do on appeal. Appellant claims there was insufficient evidence of abuse to support the restraining order, citing S.M. v. E.P. (2010) 184 Cal.App.4th 1249 for the proposition that mere "badgering" is insufficient to support such an order. But the facts in that case bear no resemblance to those here. Family Code section 6320 authorizes an order enjoining, among other things, "harassing . . . or disturbing the peace of the other party." "[T]he plain meaning of the phrase 'disturbing the peace of the party' in section 6320 may be properly understood as conduct that destroys the mental and emotional calm of the other party." (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497; see also Altafulla v. Ervin (2015) 238 Cal.App.4th 571, 578-580; In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1424-1427.) There is no doubt that substantial evidence supports the finding that appellant's persistent accusations, questioning of respondent's children, and threats are destroying the calm within respondent's family. Appellant claims the trial court "neglected to give sufficient weight to the grandchildren's interest in continuing to enjoy their relationship with their grandmother," but the parents' testimony amply supports a finding that appellant's behavior was having an adverse effect on the children and on their relationship with their parents. Contrary to appellants' argument, this evidence amply provides the necessary good cause for issuance of the order.
In that case, "The parties' testimony and the police reports demonstrate that S.M.'s badgering involved his refusal to give E.P. permission to take C.M. [their child] to Iowa without her signing a stipulation that she would return with the child, and/or his refusal to agree to let E.P. take C.M. out of the house that morning. Although S.M. may have been forceful in his refusal, the court made no finding that S.M. engaged in conduct that rose to the level of harassment or abuse, and the record does not reveal that any such conduct in fact occurred." (S.M. v. E.P. , supra, 184 Cal.App.4th at p. 1266.) --------
Appellants' principal argument is imaginative but equally unavailing. She contends that the order "unlawfully penalizes the grandmother's privileged reports of child abuse." Penal Code section 11172, subdivision (a) does provide that any person, other than a mandated reporter, "reporting a known or suspected instance of child abuse or neglect shall not incur civil or criminal liability as a result of any report authorized by this article" unless the report was known to be false or was made recklessly. The protection from civil liability is intended to preclude the recovery of damages for making such a report. (See, e.g., Krikorian v. Barry (1987) 196 Cal.App.3d 1211, 1222-1223; Storch v. Silverman (1986) 186 Cal.App.3d 671, 680.) The common understanding of "liability" is a "pecuniary obligation: DEBT." (Merriam-Webster's Collegiate Dict. (11th ed. 2007) p. 715, col. 2; Black's Law Dict. (8th ed. 1999) page 932 ["A financial or pecuniary obligation: DEBT"].) Appellant cites no authority suggesting that the immunity from civil liability precludes an injunction against harassment by a party who has submitted such a report. For good reason. Moreover, although appellant's harassing conduct included the submission of numerous unsubstantiated police reports, that was not the only objectionable conduct shown by the evidence that supports the court's order. In all events, the order neither requires appellant to pay damages for reporting alleged abuse nor prohibits the submission of such reports; it simply requires appellant to keep her distance.
There is also no merit to appellant's final argument that the statutory provisions authorizing the court's order violate the state and federal constitutions. The two cases cited by appellant upholding the right of free speech support no such conclusion. (Brandenburg v. Ohio (1969) 395 U.S. 444; Terminiello v. Chicago (1949) 337 U.S. 1.) And such arguments have been uniformly rejected. (Altafulla v. Ervin, supra, 228 Cal.App.4th at pp. 580-582; In re Marriage of Evilsizor & Sweeney, supra, 238 Cal.App.4th at pp. 1427-1431.)
The trial court recognized that the need for such an order is indeed unfortunate, but did not abuse its discretion in granting it.
Disposition
The order is affirmed.
/s/_________
Pollak, J. We concur: /s/_________
McGuiness, P. J. /s/_________
Siggins, J.