Opinion
A148183
05-16-2018
JENNIFER SHEVOCK, Plaintiff and Respondent, v. JI HYUN KIM, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. CCH-15-577601)
Ji Hyun Kim appeals from a civil harassment restraining order protecting respondent Jennifer Shevock from Kim. Kim argues there was no substantial evidence to support the order. We disagree and affirm.
BACKGROUND
Kim and Shevock own separate units in an eight-unit residential building in San Francisco. The building is subject to a tenants in common agreement enforced by a board, referred to as the Homeowners Association Board (HOA Board). Shevock, an HOA Board member, bought her unit in 2008 and has lived in it since 2010. Kim purchased her unit in 2007 but has leased it since 2009 and apparently lives in Southern California. For years, Kim and Shevock had minimal contact, but a series of emails in 2015 changed that.
On October 8, 2015, Kim sent the following email to Shevock with a copy to the 10-person HOA distribution list: "Do you know who has extra keys to my unit? I was told that my roommate mistakenly gave a set of keys to a neighbor which I wouldn't have authorized. That neighbor subsequently began sending extremely disturbing and inappropriate communications to him. [¶] Had I known he was going to pass along a set of keys to a neighbor, I would've said no. I would like any keys returned from those who I have not authorized access to the unit. [¶] The HOA Board may have an emergency set of keys, but I would prefer a neutral party hold on to them for emergency situations. Unless it's an emergency situation and I've authorized it, it shouldn't happen. [¶] Also, this is a warning to that neighbor to cease inappropriate communications with my roomie(s) or any guests or family members who may be present. It's one thing if our unit is being a little loud during a party, but another if it's inappropriate material, especially from someone who's holding a set of keys."
Within an hour, Shevock responded to Kim also with a copy to the distribution list: "We decided years ago that the HOA president would keep a spare set of all units' keys. This had been communicated several times over the years and I am not sure if your unit complied. If so, then [the] current HOA president . . . would have those keys. [¶] Your renter . . . had given me a set of keys months ago in the event he needed his mail checked while traveling. I also used those keys to manage your unit . . . during the mice extermination process of which you gave me your permission to do so. [¶] . . . [¶] What are you referring to regarding inappropriate communication? For security reasons, these incidents should be reported to the HOA Board."
The next day, on October 9, 2015, Kim replied, again copying the HOA: "You know full well the history of the building as I moved in 10/2007 and you, sometime in 2008." She recapped an incident from a few years ago where Shevock and others purportedly attempted to obtain her financial records, stating she "had to explain to the parties involved that it is against state and federal law for you to contact any financial institutions trying to obtain my information. And you were lucky that I was kind enough not to press legal charges." Addressing her keys, she wrote, "[T]hose were given to you mistakenly by my roommate, without my consent. You are fully aware that I am the owner of that unit and conveniently withheld the information that you had a set of keys and were entering and exiting my unit without my knowledge or permission. Your reasoning that you were checking his mail is absurd, given that anyone checking mail would only need a mail key . . . . [¶] You know exactly what sort of communications you were sending him. It's too disgusting to even say but you can feel free to tell neighbors yourself in your own words. He made it clear that your sexual advances were not wanted and from what I know, you ceased the communication. [¶] Yes, this incident is being reported to the HOA Board. . . . [¶] I will most likely be changing the locks on my unit doors as well as filing a police report. Please leave me, my roomie(s), guests, and family members be. You don't seem to understand many types of laws and how your behavior may be construed as violating individual rights. [¶] The fact that I have to consistently address these strange incidents is distressing. Cease any interest in my unit or any of its inhabitants." Kim concluded the email stating, "7 years ago, I thought you just needed to get a life and even once felt pity for you because you seemed lonely, but now, it's clear that you have much deeper issues."
Shevock responded within half an hour: "This email is for the record of the HOA / HOA Board. [¶] If you continue to contact myself or the HOA Board with such false allegations I will contact the authorities for slander and harassment." In a series of bullet points, she wrote, "The HOA contacted your financial institution many years ago as allowed due to your non-payment of HOA dues and taxes. [¶] I was requested by your tenant . . . to hold his keys to check his mail and if assistance was needed while he was traveling. I've permitted myself into your unit once several months ago, with your documented permission, to assist with mice extermination. [¶] You've never once addressed any such incidents with the HOA Board. [¶] I've never had any inappropriate communication, contact or conduct, sexual conduct or otherwise, with any past or current tenants. I've become a close acquaintance of [your tenant] and I am sure he will verify that."
On October 10, 2015, shortly after midnight, Kim emailed Shevock still copying the HOA: "Are you refusing to relinquish my keys as I've requested?" Kim followed up with an early morning email providing "a couple of corrections to [Shevock's] 'facts.' " Kim stated, "My roommate gave you keys in 2013, possibly 2012 but I'd have to confirm that. [¶] I have been missing IRS material that year as well as for 2014. My CPA and I investigated further and made several requests to IRS to resend documents and they were not received. Any further materials need to be investigated further before I can make confirmations."
Shevock did not respond to Kim's pair of emails, deferring to the HOA president for a reply. Kim and Shevock exchanged no further emails.
Separately, during her correspondence with Kim, Shevock exchanged emails with the HOA president. After the October 9 emails, she suggested to the HOA Board president they contact the police and told him she was shaking.
About a month later, on November 21, 2015, Kim emailed the HOA president that someone had discharged pepper spray in the hallway outside her unit. The HOA president forwarded Kim's email to the HOA Board which included Shevock, in accord with HOA procedure.
On November 22, 2015, Kim contacted police when upon entering her unit she found a subtenant she claimed was unauthorized. Kim also reported to the responding officers that she believed Shevock pepper sprayed the hallway outside her door and stole her financial records. The officers spoke to Shevock about Kim's claim, and she denied doing so. The police took a statement from Shevock and others which became memorialized in a police report.
On November 24, 2015, pursuant to Code of Civil Procedure section 527.6, Shevock filed her sworn request for a civil harassment restraining order against Kim. It attached the October emails and detailed the November allegations.
All statutory references are to the Code of Civil Procedure.
On February 5, 2016, Kim submitted a written response and explained the circumstances of her November 22 call to police, stating, "I had a reasonable belief that pepper spray had been released outside of my apartment and that Ms. Shevock was responsible for its discharge because of prior contentious email exchanges with her and because I saw Ms. Shevock inside her apartment prior to entering the building." Her declaration also addressed the allegedly missing mail: "Several items of mail had gone missing from my apartment mailbox and I understood from a previous email exchange that Ms. Shevock had access to my apartment and corresponding locked mailbox and had collected mail for [the tenant] on several prior occasions." She concluded, "I disagree with Ms. Shevock's characterization of my emails to the [HOA], which speak for themselves, I never threatened violence against Ms. Shevock, and the emails she includes in her Request hardly amount to a course of conduct."
In February 2016, the trial court held a hearing. Shevock's counsel proffered evidence that on November 21, 2015—the evening before the police were called—Kim emailed the HOA president that someone pepper sprayed her door. Shevock's counsel further proffered the evidence that the HOA interviewed Shevock about Kim's allegations. Shevock testified that she became aware of the pepper spray allegations against her when police officers informed her of Kim's claim. She had not heard from the HOA president about the pepper spray claims before that. She further testified that she did not own pepper spray.
With respect to Kim's claims regarding Shevock's improper entry into her unit, Shevock's counsel proffered evidence that Shevock entered Kim's unit only once but that was with Kim's authorization for mice extermination. Otherwise, Kim had no evidence of any unlawful entry. While Kim's counsel also proffered evidence that mail Kim believed was sent to her was missing, counsel acknowledged there was no evidence that Shevock stole the mail.
As to the alleged inappropriate communication to her tenant, Kim's counsel proffered that at a dinner, Kim was told by her tenant that Shevock told him she could hear him having sex in the unit and she enjoyed hearing it. Kim then testified that in 2013, her tenant informed her he met Shevock and described her as " 'very sweet' " and said she helped him with his mail and once with the internet. She added, "[W]e discussed his interactions with Ms. Shevock, and he did actually disclose—I was pretty shocked when he disclosed that activity. And he also expressed shock, but he also reassured me he could take care of it . . . . [¶] I don't really have evidence that it's turning into anything more; so—." The tenant was present at the hearing, confirmed he had dinner with Kim but denied telling Kim about inappropriate contact with Shevock. He explained, "I have absolutely no recollection of saying anything bad about Ms. Shevock. [¶] Ms. Shevock and I have had a very friendly neighborly relationship for the duration of the time I've lived in the building . . . and nothing inappropriate has ever transpired between us, and so I have no idea why I would ever say anything like that."
The court found Kim engaged in a knowing and willful course of conduct directed at Shevock which seriously annoyed and harassed Shevock and which would seriously annoy and harass a reasonable person. The court further found that the conduct served no legitimate purpose. The court noted "the November allegations were made in a police report, but they were also made to [the HOA president]," and "[i]t was obvious [the HOA president] . . . would inquire of Ms. Shevock." To the extent evidence about communications between Kim and her tenant was contested, the court found the tenant credible and Kim not credible. Noting that there was an escalation from October 2015 to November 2015 and a "clearer kind of targeting of Ms. Shevock in November," the court also found harm would continue if the court did not issue an injunction. The court granted Shevock a two-year restraining order from Kim, which Kim now appeals.
DISCUSSION
Section 527.6 was enacted " 'to protect the individual's right to pursue safety, happiness and privacy as guaranteed by the California Constitution.' [Citations.] It does so by providing expedited injunctive relief to victims of harassment. [Citation.]" (Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1412.) "A person who has suffered harassment . . . may seek a temporary restraining order and an order after hearing prohibiting harassment as provided in" section 527.6. (§ 527.6, subd. (a)(1).) " 'Harassment' " is defined as "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 that as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner." (§ 527.6, subds. (b)(3).) " 'Course of conduct' is 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, facsimile, or email. Constitutionally protected activity is not included within the meaning of 'course of conduct.' " (§ 527.6, subd. (b)(1).) The trial court may issue an injunction under section 527.6 on "clear and convincing evidence that unlawful harassment exists[.]" (§ 527.6, subd. (i).)
On appeal of the grant of a section 527.6 restraining order, "[w]e review issuance of [the] protective order for abuse of discretion, and the factual findings necessary to support the protective order are reviewed for substantial evidence. [Citations.] 'We resolve all conflicts in the evidence in favor of respondent, the prevailing party, and indulge all legitimate and reasonable inferences in favor of upholding the trial court's findings.' " (Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1226.)
Kim contends the trial court abused its discretion in issuing the section 527.6 restraining order and there was no substantial evidence to support it. We disagree.
Kim's October 8, 9, and 10 emails to Shevock and Kim's November allegations to the HOA president of pepper spray outside her unit provided substantial evidence for the court's restraining order. In her October emails, Kim alleged Shevock had improper, "disgusting" communications with Kim's tenant and sexually harassed him. Kim also accused Shevock of concealing that she had keys to Kim's unit and regularly and illegally entering the unit without permission. Kim insinuated that Shevock stole her mail. These allegations were either found baseless or unsubstantiated at the hearing. Moreover, Kim aired her grievances against Shevock in emails which she copied to the full HOA distribution list, which included the 10 other co-owners of units in the small, eight-unit building, most of whom presumably lived in the building with Shevock or at least had to interact with Shevock on HOA matters. In doing so, the emails had the potential to cause reputational damage and to adversely affect Shevock's relationship with her neighbors. Kim's November 21 email to the HOA president reporting pepper spray outside of her unit that was distributed to the HOA Board and resulted in an HOA inquiry of Shevock constituted ongoing harassing conduct that the trial court reasonably inferred was directed towards Shevock. Collectively, these acts provided substantial evidence that Kim engaged in a course of conduct to harass Shevock.
Kim argues the police report from Kim's November 22 call to the police should not have been considered because it was constitutionally protected activity. Her argument is not supported by the record because the trial court made clear several times at the hearing that the police report would not be considered. At the hearing's outset, the court noted that "course of conduct cannot include protected activity. [¶] . . . [¶] [F]iling a police report is protected activity." When Shevock's counsel raised the police report again, the court stated, "I'm not considering that," and it restated that position multiple times thereafter. The court explained, "If I granted harassment injunctions for police reports because there was a strong argument that the police report were false, I'm creating a chilling effect on filing police reports and I'm not going to do that. [¶] Citizens are going to be able to file police reports without the threat of a harassment injunction in this county as long as I'm in this department, and other remedies will have to be used to address that report if it's unlawfully brought." The court even instructed counsel to remove the police report from his argument. When issuing its findings, the court observed that "the November allegations were made in a police report," but immediately noted "that they were also made to [the HOA president]." Our review of the record, especially given the court's multiple refusals to factor in the police report, makes clear the trial court considered the pepper spray claims made to the HOA president, not reported to the police.
Kim contends that without the police report, there was no substantial evidence to support the restraining order. Kim says her four October 2015 emails were sent to recover her keys, a legitimate purpose that negates harassment. We are not persuaded. Even if recovering her keys was a legitimate purpose, Kim's emails included several provocative statements and unsupported accusations against Shevock unrelated to keys, which she disregards on appeal. For instance, Kim's claim Shevock sexually harassed her tenant did not concern keys, nor did Kim's comment that she pitied Shevock and thought she had "much deeper issues." Further, as discussed above, the evidence showing a course of harassing conduct was not limited to Kim's October 2015 emails but also included the November 21 report to the HOA president.
Kim further objects that her November 21 email should not have been considered as part of the harassment because it was directed solely to the HOA president and the record is devoid of any evidence that the email ever referenced Shevock. Kim adds that it is unreasonable to conclude that she should have known the report would be disseminated to other homeowners. We disagree. In our review on appeal, we "indulge in all legitimate and reasonable inferences to uphold the finding of the trial court if it is supported by substantial evidence which is reasonable, credible and of solid value." (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.) We understand that Kim's November 21 email did not specifically accuse Shevock of pepper spraying, but it was reasonable for the trial court to infer the claim was directed at Shevock based on the prior contentious email exchanges between the two that were distributed widely in the building. It was also reasonable for the trial court to infer Shevock would be confronted about Kim's charges by the HOA president, who had a month earlier investigated the accusations Kim made in her October emails.
DISPOSITION
The order granting Shevock's request for a restraining order is affirmed. Shevock is awarded costs on appeal.
/s/_________
Siggins, J.
We concur:
/s/_________
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------
/s/_________
Pollak, J.