Opinion
A169272
09-26-2024
YASSIN OLABI, Plaintiff and Respondent, v. SAMMY SHUN CHOW MA, Defendant and Appellant.
NOT TO BE PUBLISHED
(San Mateo County Super. Ct. No. 23CIV02844)
SIMONS, J.
Sammy Shun Chow Ma (appellant) appeals from the trial court's issuance of a civil harassment restraining order against him pursuant to Code of Civil Procedure section 527.6. We reverse and remand.
All undesignated statutory references are to the Code of Civil Procedure.
BACKGROUND
In 2018, respondent Yassin Olabi (respondent) became a tenant in a multi-bedroom residential property owned by appellant, with the right to sole occupancy of one of the bedrooms and shared occupancy of the common areas. Initially, the property was leased from appellant by a company that, in turn, subleased to respondent and others. In 2020, this company dissolved and appellant assumed its lease with respondent.
Between 2020 and 2023, appellant made approximately 180 unannounced visits to the property, often appearing to perform maintenance in the yard, pool, or interior. Appellant also blocked access to previously-available common areas.
In June 2023, respondent filed a request for a civil harassment restraining order protecting him from appellant. Respondent and appellant both testified at the evidentiary hearing. In closing arguments, counsel for appellant argued (among other contentions) that respondent had not suffered substantial emotional distress.
In its oral ruling on the petition, the trial court stated, "I don't want to have to comment or find emotional distress necessarily in a case if I find the overall behavior was of a harassing nature." The court found that for most of appellant's visits to the property, "there were legitimate reasons to be there as a property owner. Maintenance on the property is certainly something a landlord should be able to do. Checking for leaks, maintaining the other areas, those are all legitimate reasons." However, the court found respondent's "belie[f] that he should have some notice of [appellant] coming in" was not "unreasonable given the amount of times that [appellant] were coming." With respect to allegations of physical aggression, the trial court found appellant "seemed peaceful with one exception of the physical interaction, but I don't put all of that blame on [appellant]. I think that could have been handled differently by both sides, frankly." The court concluded, "[T]he amount of times that [appellant] went in . . ., the amount of the types of interactions the types of things that [appellant] did in the home to prevent [respondent] from having full access, this court finds does rise to the level of harassment by clear and convincing evidence, so I'm going to grant the order."
DISCUSSION
Appellant argues the trial court erred by failing to find respondent suffered substantial emotional distress. "The elements of unlawful harassment, as defined by the language in section 527.6, are as follows: (1) 'a knowing and willful course of conduct' entailing a 'pattern' of 'a series of acts over a period of time, however short, evidencing a continuity of purpose'; (2) 'directed at a specific person'; (3) 'which seriously alarms, annoys, or harasses the person'; (4) 'which serves no legitimate purpose'; (5) which 'would cause a reasonable person to suffer substantial emotional distress' and 'actually cause[s] substantial emotional distress to the plaintiff'; and (6) which is not a '[c]onstitutionally protected activity.'" (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762, italics added.) Thus, actual substantial emotional distress is a required element for a civil harassment restraining order. The elements must be found "by clear and convincing evidence." (§ 527.6, subd. (i).)
Respondent argues there is substantial evidence in the record that he suffered such actual distress." '[W]here . . . a respondent argues for affirmance based on substantial evidence, the record must show the court actually performed the factfinding function. Where the record demonstrates the trial judge did not weigh the evidence, the presumption of correctness is overcome. [Citation.] . . . "The [substantial evidence] rule thus operates only where it can be presumed that the court has performed its function of weighing the evidence. If analysis of the record suggests the contrary, the rule should not be invoked." '" (Affan v. Portofino Cove Homeowners Assn. (2010) 189 Cal.App.4th 930, 944-945, italics omitted.) The trial court's statement indicates it believed it was not required to find actual emotional distress, as long as it found a harassing course of conduct. Because the trial court did not find a required element, we will reverse.
Respondent cursorily asserts that the "the appeal may be moot" because the restraining order has expired. Respondent has not requested the appeal be dismissed as moot or otherwise definitively established mootness. "[T]he burden is on the party claiming mootness to establish that an appeal is moot." (Becerra v. McClatchy Co. (2021) 69 Cal.App.5th 913, 927, fn. 4.) We therefore decline to consider the issue further.
DISPOSITION
The order is reversed and remanded. Appellant shall recover his costs on appeal.
We concur. JACKSON, P. J. BURNS, J.