Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. CCH-09-569340
RIVERA, J.
Chris Konger appeals from a restraining order issued by the trial court pursuant to Code of Civil Procedure section 527.6 (section 527.6) prohibiting him from harassing Michael George Maxwell for a period of three years. Konger contends that the court abused its discretion in issuing the order and that he was deprived of notice and an opportunity to inspect and challenge documentary evidence. We affirm.
I. FACTUAL BACKGROUND
On May 13, 2009, Maxwell filed a request for an injunction pursuant to section 527.6 to prohibit Konger from personally harassing him. Konger filed an answer in which he contested Maxwell’s allegations of harassment.
A hearing on the request was held on May 29, 2009. Maxwell testified that he had known Konger for three years, and that it was only a casual acquaintance. Maxwell stated that it “started out pretty much tolerable,” that Konger was “polite and friendly,” but that it had gotten “pathological” in the last four months. He testified that Konger showed up at his workplace on multiple occasions, displayed hostility toward him for approaching other men, behaved as if there was some kind of relationship between the two, and threatened him both verbally and via e-mail.
Maxwell worked at San Francisco State University and first saw Konger there in 2006. He was surprised but not alarmed. He had a cup of coffee with Konger and was uncomfortable with the meeting, but was being polite. He further testified that on another occasion, Konger showed up during his night class at City College of San Francisco, stood outside his classroom, but did not approach him. On February 11, 2009, however, Maxwell was very shocked to see Konger standing outside his classroom. Maxwell indicated that while his students were in the classroom, Konger had gone inside and left a Valentine’s Day card on the white board. The card contained a receipt for a paid three-month gym membership. Maxwell testified that he was really embarrassed and mortified. Finally, he expressed, “I really don’t know if he would have the self-control to be around me, that scares me a lot, really does.”
Maxwell testified that the e-mails he received in the past couple of months displayed a lot of hostility and implied that they were involved in a “lover[s’] quarrel.” In one e-mail, Konger threatened him.
Konger did not deny that he showed up at Maxwell’s workplace. However, Konger explained that on the first occasion, he was there for a job interview. He testified that he was not aware that Maxwell did not want any sort of relationship with him until a couple of months before the hearing. Konger further testified that he gave Maxwell distance for a few weeks. He explained that he later asked Maxwell if he was still in exile and upon Maxwell’s answering “no,” they resumed contact.
The court issued the restraining order based upon a course of conduct over a period of time, noting that it was concerned about the harassment-the e-mails and the unwelcome contact. This appeal followed.
II. DISCUSSION
Preliminarily, we note that Maxwell failed to file a respondent’s brief. While some courts take a strict view and hold that failure to file a brief requires automatic reversal, we believe that “the better rule is to examine the record on the basis of appellant’s brief and to reverse only if prejudicial error is found.” (Walker v. Porter (1974) 44 Cal.App.3d 174, 177.)
Section 527.6, subdivision (a) provides that “[a] person who has suffered harassment... may seek a temporary restraining order and an injunction prohibiting harassment....” Pursuant to section 527.6, subdivision (b), “ ‘harassment’ is 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.” (Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1412 (Brekke).)
Section 527.6, subdivision (b)(3) defines a “ ‘[c]ourse 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 by any means, including, but not limited to, the use of public or private mails, interoffice mail, fax, or computer e-mail. Constitutionally protected activity is not included within the meaning of ‘course of conduct.’ ” The court must issue an injunction if it finds by clear and convincing evidence that unlawful harassment exists. (§ 527.6, subd. (d).)
We review a restraining order issued under section 527.6 to determine whether the necessary factual findings are supported by substantial evidence. (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137.) The trial court is the exclusive judge of the credibility of the evidence presented in support of the application for injunctive relief. (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1450.) “ ‘We resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge all reasonable inferences to support the trial court’s order.’ [Citation.]” (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 872 (Haley); see also Thompson v. 10,000 RV Sales, Inc. (2005) 130 Cal.App.4th 950, 964; Brekke, supra, 125 Cal.App.4th at p. 1405.) “ ‘The grant or denial of a permanent injunction rests within the trial court’s sound discretion and will not be disturbed on appeal absent a showing of a clear abuse of discretion. [Citation.]’ ” (Haley, supra, 153 Cal.App.4th at p. 872.)
Konger contends that the court abused its discretion in finding a course of conduct of serious harassment that served no legitimate purpose. Contrary to Konger’s characterization of the record, the evidence at the hearing demonstrated that he engaged in a course of harassment against Maxwell including unwelcome visits at Maxwell’s workplace and numerous e-mails. Maxwell testified that the activity had escalated in the past four months, that he had received a threatening e-mail, that he perceived a lot of hostility from Konger, and that he was scared. Maxwell further testified that he made it clear to Konger he no longer wanted to engage in e-mail communication with him, but Konger continued to e-mail him. On this record, substantial evidence supported the court’s issuance of the restraining order. (See Schild v. Rubin (1991) 232 Cal.App.3d 755, 762 [in determining whether substantial evidence supports the elements of willful harassment, the court will uphold the finding of the trial court if it is supported by substantial evidence which is “reasonable, credible and of solid value”]; see also Brekke, supra, 125 Cal.App.4th at pp. 1413-1415 [defendant’s conduct constituted “ ‘harassment’ ” under section 527.6, subdivision (b), which included writing “vile and vitriolic” letters to plaintiff’s daughter that he intended plaintiff to see, attempting to undermine plaintiff’s authority, ridiculing plaintiff, and encouraging plaintiff’s daughter to contemplate killing her parents].)
Konger maintains that he was deprived of notice and an opportunity to inspect and challenge the e-mails submitted by Maxwell because Maxwell did not attach the e-mails to his request. We perceive no prejudice. The record shows that Konger was given an opportunity to look at the e-mails and he responded to the evidence at the hearing. Konger responded that the e-mails were justified because Maxwell conceded there was a friendship or some kind of relationship at the time. He also argued that the alleged threat sent via e-mail was insufficient for restraining order purposes because it did not address a specific person, a specific conduct or a specific time, and was very nondescriptive. Thus, the record demonstrates that Konger had an opportunity to inspect the e-mails at the hearing and to challenge the evidence. The court properly considered the evidence. Relevant documentary evidence may be presented at a motion hearing if it is properly authenticated and meets the usual standards for admissibility. (See 6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 42, p. 465; Evid. Code, §§ 1400 [authentication], 1220 [admission of party].)
Finally, Konger argues that Maxwell failed to establish by clear and convincing evidence that unlawful violence or a credible threat of violence existed. This issue is irrelevant because the court issued the restraining order against Konger “based upon a course of conduct or a pattern of conduct.” There was no need for the court to determine whether there was unlawful violence or a credible threat of violence to support issuance of the restraining order.
III. DISPOSITION
The judgment is affirmed.
We concur: RUVOLO, P.J.REARDON, J.