Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. CV065103
Reardon, J.
Michael Cohen, Sr. (Cohen) appeals from an injunctive order prohibiting harassment issued under Code of Civil Procedure section 527.6 (section 527.6). The protected party is Phillip E. Makin, Sr. (Makin). The tension between the parties centers on Makin’s prior relationship with Cohen’s stepdaughter, Julianne Belik, and the custody of their son, Phillip Makin, Jr. (Phillie). Cohen contends that the order lacks a substantial evidentiary basis. We affirm.
I. BACKGROUND
A. Summary of Evidence
On October 4, 2006, Belik was living with Cohen and his wife Anne. She had moved out of Makin’s home. Makin called Belik on her cell phone and asked to speak with Phillie. Cohen overheard some of the conversation and indicated that Makin was harassing Belik, wanting Phillie to come to his house that night.
According to Cohen, Makin was yelling. The phone became disconnected. When Makin called back Cohen answered the phone and reported that he said, “Please don’t . . . . You’re creating a lot of trouble in the household.” Cohen testified that Makin cursed and threatened to beat him up and have someone kill him. Apparently Belik told Cohen that Makin had made those threats before, including threats about Cohen’s son. The argument became heated and each cursed the other. Makin was arrested that night. Proceedings in that matter were ongoing.
A hearing involving the custody of Phillie took place on November 14, 2006. After the hearing Cohen left the courtroom with his wife and Belik. The women stopped to talk with Belik’s attorney. Cohen testified that he proceeded toward the exit, then stopped to wait for them and observed Makin and his attorney, who were sitting approximately 15 feet away. According to Cohen, he looked at them for about 10 seconds, with an expression registering his bewilderment that Makin had just lied in court; then Anne came up with Belik and they all left. In contrast, Makin, in his supporting declaration, stated that Cohen “went out of his way to come towards me and stood there approximately five yards away from me, glaring and staring at me. It appeared to me that he could barely control his rage and that he wanted to initiate some type of confrontation. My attorney finally had to tell him to leave, twice, before his wife pulled him away . . . .”
That afternoon the police called the Cohen home regarding an exchange of Phillie. Belik had not understood that the new custody order was in effect that afternoon. In any event, Anne and Belik left with Phillie for the Safeway parking lot. Cohen testified that he left on his bike to check on his mother, who had suffered a fall. His mother lived across from Safeway. Cohen said he stopped at the Safeway parking lot en route to his mother’s and put his bike down when he noticed that his wife was still there. He “was surprised that they were still there.”
Officer Mathis of the San Rafael Police Department and another officer were present to facilitate the exchange. Makin had told Officer Mathis about the earlier encounter with Cohen in the courtroom.
Officer Mathis testified that Cohen crouched down in the style of a catcher, and was silent, staring at Makin. Cohen indicated that he started to light a cigarette but one of the officers told him to put it out. Cohen then cupped the cigarette in his hand because he did not want to leave it “laying [sic] around.” Cohen testified he “then just watched what was going on,” “looking straightforward” in the direction of Phillie and Makin. At some point Mathis told Cohen not to glare at Makin. Makin’s sister, who accompanied him to the exchange site, testified that Cohen glared at Makin, with his fists clenched at his side. She said he looked like “he was raging inside.”
Cohen’s son drove up. The police report prepared by Officer Mathis indicated that the son “appeared [to be] visibly agitated and walked quickly towards” Makin. He paced back and forth, yelling and cursing, saying something like “How dare you threaten me and my father.” Officer Mathis ordered the son to get into his car and leave. He indicated that Cohen did not attempt physically, or persuasively, to cause his son to get back into the car. On the other hand, Cohen said he tried to dissuade his son from creating a scene.
The parties agreed that the court could consider the police report.
Mathis said he thought the incident had become “an irrational and unsafe situation” because of “all the people that came” who were not directly involved in the custody dispute. He asked the people to leave who were not directly involved, including Cohen. Cohen did not recall the officer asking him to leave. Rather, Cohen testified that when he started to leave, an officer told him not to ride in the direction of Makin.
Cohen went to Starbucks and then went back to the parking lot. Cohen said Makin and his sister were still there, and they stared at him. Cohen yelled, “Wife beater.” Makin stated in his supporting declaration that as soon as Cohen’s son left, Cohen “started yelling obscenities at me at the top of his lungs and calling me a ‘wife beater.’ ” After Cohen left the scene of the exchange, “he went only about 100 yards away, and when I drove away with my sister and my son, he continued to glare at me.”
B. Procedural History
On November 22, 2006, Makin filed a request for a stop harassment order against Cohen. The request shows Cohen’s height as five feet, weighing 110 pounds. Makin is six feet four inches tall, weighing between 260 and 280 pounds.
The court found that Cohen “did intentionally stare at Mr. Makin both at the courthouse and at the Safeway exchange before and afterwards with the intent of communicating hostility toward Mr. Makin. . . . [¶] . . . [¶] . . . [W]hat concerns me here is that Mr. Makin and Ms. Belik pursue their proper remedies concerning the custody and care of visitation as to their child and that the conduct of Mr. Cohen in this case wasn’t simply an expression of dissatisfaction with Mr. Makin but that it also was an attempt or apparent attempt to interfere with Mr. Makin’s relationship with his son to the extent that it has any relevance at all to the earlier phone conversations on October 4th . . . would add a little arguable fuel to that fire. . . . [¶] And I’m concerned that the Court cannot ignore that kind of conduct. Conduct [that] is meant to intimidate a person in the exercise of a legitimate right that has been acquired through due and proper judicial process. . . . [¶] . . . [¶] If Mr. Makin has to be concerned that at every opportunity for exchange of custody Mr. Cohen might show up and glare at him or stalk him or otherwise interpose himself in his feelings in the relationship that would be seriously disturbing.”
The court issued a stay-away order directing Cohen to stay at least 100 yards away from Makin, his home and any locations during an exchange of Phillie. The order expires January 2, 2010.
II. DISCUSSION
A. Legal Framework
Section 527.6 permits a trial court to order injunctive relief for harassment, defined 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 such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff.” (Id., subd. (b).) The statute defines “course of conduct” as “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 . . . . Constitutionally protected activity is not included within the meaning of ‘course of conduct.’ ” (Id., subd. (b)(3).) Where, as here, the court issues an injunction, the standard of proof is “clear and convincing evidence.” (Id., subd. (d).)
In assessing whether there is substantial evidence to support a finding that the defendant engaged in harassment within the meaning of the statute, we resolve factual conflicts and questions of credibility in favor of the prevailing party and indulge legitimate and reasonable inferences to uphold the trial court’s finding. (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.)
B. Analysis
Cohen insists that his actions fall short of constituting a willful course of conduct, as required by section 527.6. Specifically, he argues that the staring incidents fail to evince a continuity of purpose, contending that he did not intentionally or purposefully seek Makin out at the courthouse, never came within 15 feet of him and did not speak to him. Further, he was 15 feet from Makin in the Safeway parking lot, between two police officers, and he did not address Makin directly or instigate conflict.
While the evidence does not present a classically straightforward and airtight case of harassment, we are mindful that on appeal we must credit the trial court’s findings when supported by substantial evidence, as well as the reasonable inference it draws from the evidence. Here, the lower court, sitting as trier of fact, found that Cohen went to Safeway on purpose, he did not just happen by on his way to visiting his ailing mother. The court made it clear that it did not “buy” Cohen’s point that he was not intending to be present at the scene of the exchange. The evidence and inferences there from, taken in the light most favorable to the judgment, showed that Cohen deliberately stopped and stared menacingly at Makin after the custody hearing, and was twice told by Makin’s attorney to leave. He then intentionally came to the scene of the exchange and also stood menacingly staring at Makin, “perhaps” (in the court’s words) with his fists clenched. After his wife and daughter left Cohen again appeared in the parking lot, looking at Makin and his sister, and cried out “Wife beater.”
From the evidence the court drew the reasonable inference that Cohen’s behavior was not simply an expression of dissatisfaction with Makin because of his alleged perjury in court, but rather was undertaken to intimidate Makin in the exercise of his legitimate parental rights, thereby interfering with his relationship with Phillie. On this record we cannot say that there was insufficient evidence for the court to find, by clear and convincing evidence, that Makin carried his burden under the ant harassment statute. The three staring incidents, the menacing look, the failure to leave the courthouse when asked twice, the final taunt, amount to a course of conduct, over a short period of time, evidencing a continuity of purpose. (§ 527.6, subd. (b)(3).) Such conduct seriously harassed Makin and served no legitimate purpose. (Id., subd. (b).)
Cohen argues nonetheless that “it is unfathomable that a reasonable person . . . would have experienced substantial emotional distress” as a result of his behavior, “especially given the relative sizes of the parties and the trivial behavior” involved. We disagree. As explained in Schild v. Rubin, supra, 232 Cal.App.3d at pages 762-763, “[I]n the analogous context of the tort of intentional infliction of emotional distress, the similar phrase ‘severe emotional distress’ means highly unpleasant mental suffering or anguish ‘from socially unacceptable conduct’ [citation], which entails such intense, enduring and nontrivial emotional distress that ‘no reasonable [person] in a civilized society should be expected to endure it.’ [Citations.]”
First, the injunction was not based on harassment constituting violent behavior or a credible threat of violence. (See § 527.6, subd. (b).) Rather, it was based on harassment as a “course of conduct.” As such, the relative sizes of the parties did not bear on the court’s finding of harassment in this case.
Second, as explained above, the behavior, taken as a whole and in light of reasonable inferences from the evidence, was not trivial. Cohen scoffs at the possibility that a man of Makin’s “stature” could be emotionally distressed by the two incidents of “staring.” This statement ignores the context—a custody battle, followed by an exchange of the child—as well as the menacing nature of the stares, the taunt, the purpose of the conduct and the persistence in pursuing it. The court found these elements significant such that a reasonable person in similar circumstances would “believe that a person was harassing him or her in an effort to dissuade the person from exercising . . . custodial rights. That would be seriously alarming” and “disturbing.” By the same token, a reasonable person would suffer substantial emotional distress given the prospect of such interference with the parent-child relationship.
Cohen also asserts that Makin did not offer any evidence that he actually suffered substantial emotional distress. As the court pointed out, in his declaration Makin stated he “should not have to be afraid to meet Ms. Belik for the exchanges of our child, nor should I be required to have police officers present at the exchange.” Further, he was “fearful” of Cohen and believed Cohen would continue to harass him. This is sufficient.
Finally, Cohen maintains there was no showing that he presented any future threat to Makin, and thus the injunctive order must fail. An injunctive order issued under section 527.6 necessarily addresses future conduct. (Russell v. Douvan (2003) 112 Cal.App.4th 399, 401, 404 [trial court construed its role too narrowly when issuing section 527.6 injunction based on single act of unlawful violence].) The very nature of Makin’s showing is that Cohen engaged in a course of conduct bent on intimidating Makin as he exercised his custodial rights. Makin declared he believed Cohen would continue the harassment if not restrained. This showing was sufficient to indicate a reasonable probability that, if not deterred, the course of conduct would continue in the future. (See id. at p. 401.)
III. DISPOSITION
The judgment is affirmed.
We concur: Ruvolo, P.J., Rivera, J.