Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG08380349
McGuiness, P.J.
Defendant Kari Kingori appeals from the granting of a civil harassment restraining order against him and in favor of plaintiff Kawanna Muldrow. He contends the trial court erred in basing its decision on inadmissible evidence, and that even if the evidence was admissible, there was no substantial evidence to support the order. We shall affirm.
Factual and Procedural Background
On April 7, 2008, Muldrow filed Form CH-100, Request for Orders to Stop Harassment (Civil Harassment), the mandatory judicial form for requesting an injunction to prohibit harassment under Code of Civil Procedure section 527.6. She sought protection from Kingori, a co-worker, and requested various orders, including orders prohibiting him from harassing or contacting her and requiring him to stay at least 100 yards away from her, her home, and her workplace.
All further statutory references are to the Code of Civil Procedure.
Muldrow checked the box “yes” in response to the question on the judicial council form, “Did the person . . . engage in a course of conduct that harassed you and caused substantial emotional distress?” She wrote: “I am fearful [and] nervous when I am in the work place. Am [sic] beginning to miss work because of worry [and] fear.” She checked the box “yes,” in response to the question, “Did the conduct of the person . . . seriously alarm, annoy, or harass you?” The form also asked for the date of the most recent harassment and “[w]ho was there,” to which she responded, “March 25th,” and “He showed up to work after he was instructed by human resources not to.” She attached to her judicial council form a letter addressed to her from her employer dated March 25, 2008, in which a corporate officer stated she had investigated Muldrow’s allegations of sexual harassment against Kingori, had found the allegations to be true, and had met with Kingori and instructed him, verbally and in writing, not to return to the office.
The letter stated that Muldrow’s allegations of sexual harassment, which she made on December 29, 2007, took the form of inappropriate comments, unwanted touching, and being asked to go on dates repeatedly between December 2006 and December 2007. Various witnesses confirmed that Kingori engaged in “inappropriate touching of [Muldrow] even though [she] asked him not to,” and one witness stated she observed “about ten separate incidences,” including “touching and comments of sexual harassment directed at [Muldrow].” On the last page of the judicial council form, Muldrow signed, “I declare under penalty of perjury under the laws of the State of California that the information above and on all attachments is true and correct.”
On May 6, 2008, Kingori filed an answer, declaring under penalty of perjury that “This single incident of going to work on a Monday morning does not qualify as a course of conduct entitling the Petitioner to injunctive relief.” He declared: “I have done some of the things Petitioner has accused me of, but what I did was legal. Petitioner claims ‘He showed up to work after he was “advised” by human resources not to.’ I did go to work because I had a project to finish. Human resources had not advised me to stay away before March 24th. Petitioner’s allegations are incorrect. The date in question is March 24th, 2008, not March 25th. No one told me I could not go to work as I had done in the past. [¶] I had good reason for doing the things that I did. I had to go to work Monday morning to finish a project that I was under contract to complete. [¶] On March 25th, one day after I showed up to work, Ms. Ulrich sent me a certified letter explaining that I should not go to work. After receiving that letter I have not returned to Peralta. [¶] . . . [¶] The court should not make an order against me because I have done nothing to deserve it.” Kingori further declared: “The only supporting evidence offered by Petitioner is a letter from a corporate officer verifying the allegations on belief. The facts alleged were not within the corporate officer’s knowledge. The Petitioner is prohibited from using this as an affidavit or declaration establishing the facts alleged. CCP § 446. See Ancora-Citronelle Corp. v. Green(1974) 41 CA3d 146, 115 [sic].”
The trial court issued a temporary restraining order on April 7, 2008 and an amended order on April 9, 2008, and held a hearing on May 15, 2008, to determine whether the order should be made permanent. Kingori appeared with an attorney and Muldrow appeared in pro per. After both parties were sworn in as witnesses, the court asked Kingori what date he went to work and when his employer instructed him not to return. Kingori testified he went to work on March 24 and was told on March 25 not to return. Muldrow testified that the vice-chancellor told her about a week before she saw Kingori at work that he had already instructed Kingori to stay away and that she should “be assured they ha[d] handled everything.” Asked by the court whether she had any evidence to support her position, Muldrow said, “What I do have is an email that I sent to . . . the vice-chancellor . . . the very day I saw [Kingori].” “I notified him that I saw [Kingori] on the premises after he [the vice-chancellor] had just told me a week prior [that] he [Kingori] was notified . . . that he was not supposed to come on the premises.”
Kingori’s attorney objected, “The sender [sic] in the above email is not here to testify to this, that he received this email.” As Muldrow began to provide further testimony to show Kingori knew before March 25 that he was not supposed to return to work, the court stated: “Okay. I’m – I’m going to cut you off. The Court is prepared to rule. [¶] Mr. Johnson [Kingori’s attorney], you get the last word.” Kingori’s attorney stated: “Your Honor, there’s – there’s no evidence produced of any harassment. There’s no – the only evidence is a – a corporate report which is not admissible in this court as is – as stated in the declaration. Also, all my client did was show up to work on Monday morning, and that was not directed at Petitioner.” Muldrow asked, “May I respond to that, please?” The trial court responded, “No. The Court is prepared to rule. The issue of when Mr. Kingdori [sic] had notice is in the Court’s view a red herring because although he may not have violated their order by coming to work on the Monday that he came, there is more than ample evidence in the file to justify the issuance of a permanent order based on the underlying complaint by the Petitioner. And consequently, the Court is going to . . . make a permanent order . . . .”
The order, which remains in effect until May 14, 2011, prohibits Kingori from doing the following things to Muldrow: “Harass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, destroy personal property, keep under surveillance, or block movements”; “Contact (directly or indirectly), telephone, send messages, mail, or email”; “Take any action, directly or through others, to obtain [her] address[] or location[].” The order also requires Kingori to stay at least 100 yards away from Muldrow, her home, and her workplace, and allows Muldrow to record any communication made to her by Kingori that is in violation of the order.
Kingori, represented by counsel, filed a timely notice of appeal and an appellant’s opening brief. Muldrow, in pro per, did not file a respondent’s brief.
Because no respondent’s brief was filed, we “decide the appeal on the record, the opening brief, and any oral argument by the appellant” (Cal. Rules of Court, rule 8.220(a)(2)), examining the record and reversing only if prejudicial error is shown (see, e.g., Conness v. Satram (2004) 122 Cal.App.4th 197, 200, fn. 3).
Discussion
Section 527.6, subdivision (a), provides: “A person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an injunction prohibiting harassment as provided in this section.” Subdivision (b) defines “harassment” as, among other things, “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.” “Course of conduct” is defined 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.” (§ 527.6, subd. (b)(3).)
The section “was designed to provide a quick and simple procedure by which this type of wholly unjustifiable conduct, having no proper purpose, could be enjoined.” (Byers v. Cathcart (1997) 57 Cal.App.4th 805, 811; see also Schraer v. Berkeley Property Owners’ Assn. (1989) 207 Cal.App.3d 719, 729-730, 732 (Schraer) [the statute “was enacted ‘to protect the individual’s right to pursue safety, happiness and privacy as guaranteed by the California Constitution’ ” and sets forth a procedure “for what is in effect a highly expedited lawsuit on the issue of harassment”].) A temporary restraining order may be obtained upon an affidavit showing reasonable proof of harassment (§ 527.6, subd. (c)), after which a hearing is held within 15 to 22 days on the request for a longer injunction (§ 527.6, subd. (d)). “At the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry.” (§ 527.6, subd. (d).) “Testimony” may be taken by affidavit (or declaration under penalty of perjury, see §§ 2003, 2015.5), by deposition, or by oral testimony. (§ 2002; Schraer, supra, 207 Cal.App.3d at p. 733, fn. 6.) After the hearing, if the court “finds by clear and convincing evidence that unlawful harassment exists,” it shall issue an injunction that lasts no longer than three years. (§ 527.6, subd. (d).)
“Where the trial court has determined that a party has met the ‘clear and convincing’ burden, that heavy evidentiary standard then disappears. ‘On appeal, the usual rule of conflicting evidence is applied, giving full effect to the respondent’s evidence, however slight, and disregarding appellant’s evidence, however strong. [Citation.]’ ” (Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1111, fn. 2; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 371, p. 428.) A trial court’s decision to grant an injunction rests within its sound discretion and will not be disturbed without a showing of a clear abuse of discretion. (Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912.) In determining whether the trial court abused its discretion, we review the court’s findings under the substantial evidence standard, resolving all factual conflicts and questions of credibility in the respondent’s favor and drawing all legitimate and reasonable inferences to uphold the judgment. (Ibid.; Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.)
Kingori contends the restraining order must be reversed because “The only evidence of the facts alleged was contained in a letter signed by a . . . corporate officer, and is thus inadmissible as an affidavit or declaration . . . .” He relies primarily on Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146, which held that a request for an injunction must be based on a verified complaint or affidavits or declarations, and on section 446, which provides that “where a pleading is verified, it shall be by the affidavit of a party.” The authorities on which he relies, however, are inapposite because here, Muldrow did “declare under penalty of perjury under the laws of the State of California that the information above [on the judicial council form] and on all attachments is true and correct.” (Italics added.)
Kingori complains that the letter did not qualify as an affidavit because the facts contained in the letter “were not within the corporate officer’s knowledge.” We agree the letter does not qualify as an affidavit by the corporate officer because the officer did not attest to the information contained in the letter under penalty of perjury. We also note that despite Muldrow’s declaration that the “information . . . on all attachments is true and correct,” she could not have properly declared true and correct the information in the letter of which she had no personal knowledge, e.g., the witnesses’ statements to the corporate officer regarding the harassment they observed or the corporate officer’s investigative findings and conclusions. However, Muldrow had personal knowledge of, and could properly declare under penalty of perjury that, the information in the letter pertaining to her own allegations of sexual harassment were “true and correct.” Thus, Muldrow’s request for a restraining order consisted not only of the statements she made in her judicial council form, but also of her complaints as set forth in the letter that Kingori’s acts of sexual harassment “took the form of inappropriate comments, unwanted touching, and being asked to go on dates repeatedly” between December 2006 and December 2007.
Kingori also contends the trial court improperly “admitted the email [that Muldrow sent to the vice-chancellor] into evidence without a shred of evidence as to its authenticity.” The contention, however, is without merit because the record does not show the trial court admitted the email into evidence or even considered it in reaching its decision to issue the permanent restraining order. As noted, the court stated it was a “red herring” whether Kingori had notice that he was not supposed to return to work, and did not make a finding as to that issue. The email, which was presented to show that Kingori had notice, was therefore irrelevant to the court’s determination of whether the restraining order should be made permanent.
Kingori maintains that “alternatively, the trial court erred because the order is based on insufficient evidence.” He asserts the complaints of sexual harassment were too general because they did not define the term “inappropriate touching” and did not specify the conduct in which he engaged, leaving open the possibility that the touching consisted only of “a handshake or a pat on the shoulder.” Muldrow described Kingori’s “touching” and “comments” as “unwanted” and “inappropriate,” and complained that these acts were combined with his “repeatedly” asking her out on dates over the course of a one-year period. Moreover, Muldrow asserted that Kingori “engage[d] in a course of conduct that harassed [her] and caused substantial emotional distress,” “seriously alarm[ed], annoy[ed], or harass[ed]” her, and made her “fearful [and] nervous” such that she began “to miss work because of worry [and] fear.” Even if the evidence at the hearing is subject to more than one reasonable interpretation, we may not reweigh the evidence or choose among alternative permissible inferences. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.) Based on the evidence of sexual harassment that was properly before the court, the court could reasonably determine there was sufficient evidence to issue a permanent restraining order.
Kingori also contends the evidence of sexual harassment was not “credible” or “of any solid value” because some of the statements were made by unnamed witnesses who may not have made their statements under penalty of perjury. Because we have not relied on the witnesses’ statements in reaching our conclusion that there was substantial evidence to support the restraining order, we need not, and will not, address whether the witnesses’ statements were “credible” or “of any solid value.”
Disposition
The order is affirmed. Because respondent did not submit a brief, no costs on appeal shall be awarded.
We concur: Pollak, J., Jenkins, J.