Opinion
D071580
11-29-2017
RAYA NASIM, Plaintiff and Respondent, v. ROOZBEH BADII, Defendant and Appellant.
Silver Law Firm and Zvi Aria Silver for Defendant and Appellant. Dennis Temko for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DV044113 ) APPEAL from an order of the Superior Court of San Diego County, Cindy Dobler Davis, Judge. Affirmed. Motions to dismiss and for sanctions denied. Silver Law Firm and Zvi Aria Silver for Defendant and Appellant. Dennis Temko for Plaintiff and Respondent.
Roozbeh Badii appeals a domestic violence restraining order in favor of Raya Nasim. Badii contends the court prejudicially erred when it admitted into evidence five audio recordings of conversations between Badii and Nasim as well as the transcripts of those recordings. Badii asserts Nasim made these recordings without his knowledge or permission; thus, the admission of the records and the transcripts violated Penal Code section 632.
Statutory references are to the Penal Code unless otherwise specified.
Baddii's challenge here ignores the overwhelming evidence supporting the issuance of the domestic violence restraining order. Indeed, the evidence was so staggering that Badii cannot show he was prejudiced by the admission of the challenged evidence. Accordingly, we affirm the domestic violence restraining order.
In addition, while this appeal was pending, Nasim filed two motions: (1) a motion for disentitlement and dismissal of the appeal; and (2) a motion for sanctions. As we explain below, we deny both motions.
FACTUAL AND PROCEDURAL BACKGROUND
Badii and Nasim were married in April 2008, but divorced five years later. They remarried in August 2015, but separated on October 2016. On October 24, 2016, Nasim filed a request for a domestic violence restraining order against Badii. The court granted a temporary restraining order and set a hearing on the request for a restraining order for the middle of November. Subsequently, the hearing was continued to November 21 and 29, 2016.
In support of her request for a restraining order, Nasim lodged 52 exhibits. The vast majority of these exhibits consisted of e-mails, text messages, and transcriptions of voicemail messages from Badii to various individuals, including Nasim. One of the exhibits (No. 52) consisted of five audio recordings of Badii, which were recorded by Nasim without his consent while they were vacationing in Italy. Five other exhibits (Nos. 47-51) were transcripts of these audio recordings.
Nasim filed a motion in limine to be able to use exhibit Nos. 46 through 50 in her case-in-chief, and in the alternative, for impeachment. Badii opposed Nasim's motion in limine, arguing that section 632 prohibited the use of the surreptitiously obtained audio recordings and the transcripts of same. The superior court ruled that Nasim could use these exhibits during her case-in-chief.
At the hearing, the evidence that Badii was abusive and violent toward Nasim was substantial. For example, Nasim's sister, Roxanne, testified about witnessing Badii attacking Nasim in April 2016. Roxanne was in her bedroom when she heard yelling, screaming, and crying. She heard Nasim ask for help. Roxanne left her bedroom and saw Badii holding Nasim's face to a wall. Badii then threw Nasim to the floor, straddled her, and tried to hit her in the face. Roxanne observed Badii spitting at Nasim and hitting her. Roxanne yelled at Badii to stop, and Badii told Roxanne to "get out of the room and stay out of it." With Badii distracted by Roxanne, Nasim moved to another room, but Badii followed her. He grabbed Nasim, pulled her arm, and slapped her in the face. The incident ended when Roxanne threatened to call the police. Nasim and Badii's seven-year-old son observed this altercation.
Badii appeared upset that Roxanne was going to call the police. He ordered Roxanne, Nasim, and their mother (who had health issues) to leave the house, which they did. Roxanne testified that after the incident, Badii would text her about 30 times a day, "harassing" her about Nasim.
Nasim also testified at the hearing. She explained the basis for her request for a previous protective order in Virginia. When she was nine months pregnant with her third child, Badii came upstairs as Nasim was getting ready for bed. Nasim asked Badii to go back downstairs to turn off the lights. Badii became agitated, went into Nasim's closet, grabbed a handful of her clothes, took them to the bathroom, and started stuffing them in the toilet. Upset, Nasim asked Badii how he would feel if she threw his clothes on the floor. She then walked toward Badii's closet. Badii grabbed Nasim's hair and dragged her into her closet. He then pulled her to the floor by her hair until she was on her knees and then hit her repeatedly in the head and face until she "started having pain in [her] stomach."
On September 13, 2013, a Virginia court issued a restraining order in Nasim's favor against Badii. In that order, the court stated that Nasim had "proven the allegation of family abuse by a preponderance of the evidence." Badii stipulated to that restraining order being issued against him. However, at the hearing on the current request for a restraining order, Badii disputed the actual basis for the Virginia restraining order. He argued there was "physical contact both ways" and he did not want Nasim to go to jail.
Nasim testified that after she had her third baby, Badii's anger did not subside. He continued to threaten her. He told her he needed to change his medication and if Nasim did not want to get hurt, she needed to leave the house. So Nasim left.
At the hearing, several text messages written by Badii were presented. These text messages were extremely derogatory and sometimes threatening. Examples of these messages include the following: "Fuck you Raya. You worthless piece of shit[.]" "YOU DONT [sic] LISTEN, YOU DONT [sic] OBEY[.]" "Come back right now or I will make this the worse 17 days of your life[.]" "I specifically told yo[u] that this anger will go AWAY ONLY WHEN YOU DO WHAT YOU ARE SUPPOSED TO[.]" "Wait and see what will happen[.]" "Your time is nearly up[.]" U think these are empty threats?" "You are a worthless self centered materialistic greedy stupid woman." "However, if you hurt me when I'm working or fighting . . . I WILL HURT YOU . . . and I have before and I WILL IN THE FUTURE . . . that will not change." "What does that say about your shit character? I should have beat the living shit out of you[.]" "If you remain a trashy American bitch, nature always places you where you belong. Whether you like it or not, sooner or later you will be among trashy Americans somewhere in a dumpster. I don't see too many fat fucks living in La Jolla." "You lost weight right after we got divorced. One [sic] we became married, back to the fat fucking shape as before. Being a pig is not only a physical appearance. Everything in your life will scream the pig inside you. Your desires and your wants." "I gave you a 2nd chance, but you are complete garbage." "I dislike your fat disgusting body." "If you excuse me. I'm gonna watch some porn right now and pleasure myself rather than be on top of your rolls." "Lose the weight fat ass." "I want you to see all the people who have tried to fuck me over, and what I have done to them."
The record is replete with additional examples of texts messages that Badii sent Nasim. The content of these messages is equally if not more shocking then the examples we have included in this opinion. In all, the texts are stunning in their venom and outrageously demeaning.
In addition to the texts and e-mails, Nasim also introduced audio recordings of five conversations between Badii and her. The record indicates these conversations occurred in front of at least some of their children. The court admitted these recordings into evidence over Badii's objections. The tapes captured Nasim and Badii arguing, Badii threatening to hit his three-year-old son, Badii threatening to hit his seven-year-old son, Badii threatening to harm Nasim, and Badii allegedly harming Nasim.
After the hearing, the court granted Nasim's request for a domestic restraining order. In do so, the court explained some of its reasoning:
"This case really provides the Court kind of a wide range of examples, I believe, of abuse as defined by the Family Code. I was flipping through every exhibit, and everywhere I turn every communication was practically abusive in some form or another. I won't repeat the language, but the language was over the top. I don't want -- everything from calling the petitioner an 'American trash cunt,' to a 'fat ass,' to -- I mean, just the chronic tone of all the messages were somewhat stunning. [¶] I found the testimony of Roxanne Nasim to be credible. She was an eyewitness to physical abuse. . . . I found [Nasim's] testimony to be credible. [¶] I think it's important to note that [Badii] did stipulate to a restraining order against him, a domestic violence restraining order. [¶] . . . [¶] It's just -- yeah, it's overwhelming the amount of evidence, page after page of bullying and abusive -- abusive language to the petitioner. [Badii] can say that he was set up by [Nasim], but with this volume of communication I find that not to be credible. I found [Nasim] to be credible, I found Roxanne Nasim to be credible, so I do believe that it's appropriate to issue a restraining order."
Badii timely appealed.
DISCUSSION
Badii's primary argument on appeal is that the superior court improperly admitted the audio recordings of his conversations with Nasim while in Italy in violation of section 632. He argues his conversations with Nasim were confidential, and he had no reason to believe she would be recording them. In addition, he contends these conversations remained "confidential" under section 632, subdivision (c) despite the presence of his children (ages three to seven) during the conversations. He claims the superior court incorrectly interpreted and applied section 632.
Section 632 provides, in pertinent part: " (a) A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500) per violation, or imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000) per violation, by imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. [¶] (b) For the purposes of this section, 'person' means an individual, business association, partnership, corporation, limited liability company, or other legal entity, and an individual acting or purporting to act for or on behalf of any government or subdivision thereof, whether federal, state, or local, but excludes an individual known by all parties to a confidential communication to be overhearing or recording the communication. [¶] (c) For the purposes of this section, 'confidential communication' means any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive, or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded. [¶] (d) Except as proof in an action or prosecution for violation of this section, evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section is not admissible in any judicial, administrative, legislative, or other proceeding. --------
Typically, in a matter wherein the appellant challenges a superior court's interpretation and application of a statute, we would begin by interpreting the subject statute. This, however, is not a typical case.
Prejudice is not presumed, and the appellant bears the burden of establishing that the erroneous admission of evidence was prejudicial. (People ex rel. City of Santa Monica v. Gabriel (2010) 186 Cal.App.4th 882, 887.) Here, even if we assume the court improperly admitted the five audio recordings and the transcripts of same, on the record before us, Badii has not and cannot show he was prejudiced by the alleged error. The evidence supporting the granting of the domestic violence restraining order was overwhelming. Roxanne testified about witnessing Badii physically abuse Nasim. Nasim testified about Badii abusing her in Virginia, which led to a previous restraining order. The court found both Roxanne and Nasim credible. In addition, Badii had stipulated to the entry of that previous restraining order. And there was a multitude of text messages and voicemails wherein Badii harassed, demeaned, and threatened Nasim. If there is a clearer case justifying a domestic violence restraining order, we would be hard pressed to find it. As such, we affirm the order.
Also, while this appeal was pending, Nasim brought two motions. The first was a motion for disentitlement and dismissal of appeal. The second was for sanctions. We briefly address these motions here.
Under the doctrine of disentitlement, we may stay or dismiss an appeal by a party who has refused to obey the superior court's legal orders. (Say & Say v. Castellano (1994) 22 Cal.App.4th 88, 94.) "Dismissal is not ' "a penalty imposed as a punishment for criminal contempt. It is an exercise of a state court's inherent power to use its processes to induce compliance" ' with a presumptively valid order." (Ibid.) Thus, the disentitlement doctrine prevents a party from seeking assistance from the court while that party is in "an attitude of contempt to legal orders and processes of the courts of this state." (MacPherson v. MacPherson (1939) 13 Cal.2d 271, 277.) Appellate disentitlement "is not a jurisdictional doctrine, but a discretionary tool that may be applied when the balance of the equitable concerns make it a proper sanction." (People v. Puluc-Sique (2010) 182 Cal.App.4th 894, 897.)
Here, we decline to exercise our discretion to dismiss Badii's appeal. Along with her motion, Nasim submitted over 450 pages of exhibits supporting her argument that Badii violated not only the subject restraining order, but certain support orders as well. Not surprisingly, Badii claims he has not violated the restraining order and is currently in compliance with the support orders. Although we certainly do not condone any party refusing to obey a valid court order, we believe the more prudent course here would be for Nasim to raise her concerns in the superior court. This is especially true where there appear to be disputed factual issues, which could require additional evidence as well as fact finding to resolve. Thus, to the extent Nasim believes Badii is not complying with any court order, we suggest she bring Badii's actions to the attention of the superior court and ask for relief there. As such, we deny Nasim's motion for disentitlement and dismissal of the appeal without prejudice for her to seek relief in the superior court if she believes relief is warranted.
Nasim also filed a motion for sanctions under Code of Civil Procedure section 907 and California Rules of Court, rule 8.276(a)(1). She argues that Badii's appeal was frivolous and served only to allow him to further abuse her. We decline to impose sanctions.
Our Supreme Court has cautioned that sanctions should be awarded "most sparingly to deter only the most egregious conduct." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 651.) "Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal." (Id. at p. 650.) "Thus, an appeal should be held to be frivolous only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit." (Ibid.)
Here, Badii presented a somewhat novel issue dealing with the interpretation and application of section 632. We declined to interpret that statute because, on the record before us, Badii could not establish prejudice. Although we conclude Badii's appeal is without merit, we cannot say the appeal was "prosecuted for an improper motive" or that "any reasonable attorney would agree that the appeal is totally and completely without merit." (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.) In addition, we observe that despite focusing on admission of the audio tapes at the hearing, Badii did provide us with a complete record, which ultimately led to our conclusion that he could not establish prejudice even if we assumed error.
DISPOSITION
The order is affirmed. Nasim's motion for disentitlement and dismissal is denied. Nasim's motion for sanctions is denied. Nasim is awarded her costs on appeal.
HUFFMAN, J. WE CONCUR: BENKE, Acting P. J. IRION, J.