Filed 5/11/20 Fu v. Yan CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

BRYANT FU,

Plaintiff and Respondent,

v.

DEMAS YAN,

Defendant and Appellant.

A157675

(City and County of San Francisco

Super. Ct. No. CCH18580898)

Demas Yan (Appellant) appeals a civil harassment restraining order (Code Civ. Proc., § 527.6 ) obtained by Bryant Fu (Respondent). We affirm.

BACKGROUND

In September 2018, Respondent filed a request for a restraining order seeking protection for himself, his mother (Mother), and his father (Father) (we refer to Respondent, Mother, and Father collectively as the Protected Persons).

The bulk of Respondent’s evidence related to years of litigation between Appellant and the Protected Persons, and included multiple judicial opinions finding Appellant’s litigation conduct frivolous and in bad faith. In 2013, a bankruptcy court presiding over Appellant’s bankruptcy proceedings declared Appellant a vexatious litigant in an adversary proceeding resolving a state court action (removed to the bankruptcy court) filed by Appellant against the Protected Persons and two other defendants. The bankruptcy court found Appellant, starting in 2007, “improperly commenced” five state court actions against the Protected Persons and the two others “asserting claims that were either previously adjudicated by a final order or had been released by settlement agreements”; and also found Appellant “caused his father to file a complaint against [Father and Mother] that (a) [Appellant’s] father acknowledged under oath he had no basis to file, and (b) that [Appellant] had no basis to file on his own behalf because it concerned the pre-petition events . . . adjudicated in the Bankruptcy Court Judgment.” The court found Appellant “is an attorney and could understand why these actions were improper” and “filed these lawsuits merely to harass [the Protected Persons and the two others].”

In 2014, the Ninth Circuit Court of Appeals found Appellant’s appeal of a different bankruptcy court order in favor of the Protected Persons to be “frivolous” and “wholly without merit,” and imposed sanctions against Appellant.

In 2017, the State Bar Court found Appellant committed multiple acts of misconduct, including a lengthy history of filing frivolous litigation against the Protected Persons either directly or through “a ‘strawman.’ ” The State Bar Court concluded that Appellant’s pursuit of “16 frivolous actions over a five-year period” was “meant to harass the [Protected Persons].” Based on this and other conduct, the State Bar Court recommended Appellant be disbarred, and the Supreme Court subsequently ordered him disbarred.

In 2018, the Northern District of California found Appellant “ ‘unreasonably and vexatiously’ multiplied the judgment collection proceedings” pursued by Mother and imposed sanctions.

Also in 2018, our colleagues in Division Four affirmed a superior court order denying Appellant’s special motion to strike Respondent and Mother’s malicious prosecution complaint. The court found Respondent and Mother demonstrated a probability of prevailing on their malicious prosecution claim, reasoning in part that the challenged prosecution “was the latest in a series of bad faith cases that [Appellant] had filed, thus evidencing malice.” The opinion noted that, during the proceedings below, the superior court declared Appellant a vexatious litigant. Division Four also affirmed the trial court’s finding that Appellant’s motion to strike was frivolous, concluding the “evidence demonstrated” the motion “was yet another example of his long standing practice of attempting to relitigate issues that have already been decided against him. Under these circumstances, filing the present motion was a bad faith delay tactic, plain and simple.”

In addition to the above opinions finding Appellant’s litigation conduct against the Protected Persons to be frivolous and in bad faith, Respondent submitted evidence of other conduct. In a 2017 debtor’s examination, Appellant said of Father, who was present, “this guy has tried to kill me, okay? And I don’t want to kill him if he is here, because I have, you know….” At the same proceeding, Appellant said to Respondent, “You are going to pay for it.” Respondent construed these remarks as threats to him and Father. Father submitted a declaration averring that Appellant made death threats against him in 2014 and 2015. Respondent submitted a sworn statement from a third party, Martin Eng, averring that in approximately 2010, Appellant told Eng he was planning to “hire a hit man to kill” Father, had already contacted the “hit man,” and was working on getting the money to pay for it.

Respondent submitted another sworn statement from Eng averring that in April 2016, Appellant sought Eng’s help to frame Father for assault. Eng declared that, during this conversation, “two young boys suddenly show[ed] up” and punched Appellant. Respondent submitted an April 2016 police report memorializing Appellant’s statement that, while Appellant was talking to Eng, Father struck him several times.

Respondent also submitted evidence relating to an August 2018 personal injury complaint filed against him by a third party, alleging that Respondent assaulted the third party when the third party attempted to serve a subpoena on behalf of Appellant. Respondent and Mother averred the third party’s claim was fabricated at Appellant’s request, in order to harass Respondent.

After a hearing, the trial court issued the requested restraining order.

DISCUSSION

I. Legal Standards

“ ‘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.] ‘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) “[that] seriously alarms, annoys, or harasses the person”; (4) “[that] serves no legitimate purpose”; (5) [that] “would cause a reasonable person to suffer substantial emotional distress” and “actually cause[s] substantial emotional distress to the [person to be protected by the order]”; and (6) which is not a “[c]onstitutionally protected activity.” ’ ” (Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1227 (Parisi).)

“We review issuance of a 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. [Citation.] Declarations favoring the prevailing party’s contentions are deemed to establish the facts stated in the declarations, as well as all facts which may reasonably be inferred from the declarations; if there is a substantial conflict in the facts included in the competing declarations, the trial court’s determination of the controverted facts will not be disturbed on appeal.’ [Citation.] Whether the facts are legally sufficient to constitute civil harassment within the meaning of section 527.6 is a question of law reviewed de novo.” (Parisi, supra, 5 Cal.App.5th at p. 1226.)

II. Substantial Evidence

Appellant argues no substantial evidence supports the trial court’s order. We disagree.

As an initial matter, appellant’s recitation of the facts is woefully insufficient. He discusses the process server’s allegation that Respondent assaulted him (without discussing Respondent’s contrary evidence), and sets forth the context and subsequent history of the subpoena the process server was attempting to serve. He also discusses the statements he made at the debtor’s examination and his explanation for the statements. He quotes at length from the trial court’s oral ruling on the civil restraining order. None of the other evidence discussed above is included in Appellant’s statement of facts. He has thus forfeited his substantial evidence challenge. (Schellinger Brothers v. Cotter (2016) 2 Cal.App.5th 984, 998 [it is “an elemental principle of appellate practice . . . that a party challenging the sufficiency of the evidence to support a factual determination made by the trier of fact is required to set out all evidence pertinent to that determination, on penalty of forfeiting review”].)

Even if we were to consider the challenge, we would reject it. Appellant argues first that the trial court found no credible threat of violence. He relies on the following statement by the trial court: “There’s been evidence before this court of [Appellant] making threats which he has explained to this court were not meant to be threats of killing and people paying for it in a personal way, but of paying for it with further litigation.” Although the trial court summarized Appellant’s position on his statements at the debtor’s examination, it did not indicate whether it credited his characterization or not, nor did it make express findings about the other evidence of threats submitted by Respondent. “On appeal, a judgment of the trial court is presumed to be correct. [Citation.] . . . All intendments and presumptions are made to support the judgment on matters as to which the record is silent.” (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) Accordingly, we presume the trial court credited Respondent’s evidence that Appellant made credible threats.

Appellant’s primary argument relates to his status as a vexatious litigant. He contends there was no evidence he was currently litigating in violation of a vexatious litigant prefiling order and, even if he was, a section 527.6 restraining order is not the appropriate remedy for such a violation. Even so assuming, this argument is immaterial where, as here, there is other evidence sufficient to support the order. Appellant has spent years pursuing litigation against the Protected Persons—either on his own behalf or through straw plaintiffs—that multiple courts have found frivolous, harassing, and/or in bad faith. He also has a history of issuing threats. The month before Respondent initiated the instant proceeding, Appellant’s process server filed a personal injury lawsuit against Respondent and, crediting Respondent’s evidence, this lawsuit was fabricated at Appellant’s request. The trial court could infer, based on the history of bad faith litigation and threats, that Appellant intends to continue harassing the Protected Persons. (See Parisi, supra, 5 Cal.App.5th at p. 1228 [defendant’s past actions, including “abusive and unmeritorious litigation history against” the protected person, “provide a clear context for” the defendant’s recent conduct such that “[t]he trial court reasonably found that [the defendant’s] intent was to harass”].)

Accordingly, Appellant has failed to demonstrate the trial court’s order lacks substantial evidence.

III. Sanctions

Respondent separately moves for sanctions against Appellant. We previously deferred ruling on the motion and now deny it.

Respondent first argues this appeal is frivolous. Although Appellant has engaged in ample frivolous litigation conduct over the years, we do not find this appeal so without merit as to be frivolous. (See In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650–651 [“An appeal that is simply without merit is not by definition frivolous and should not incur sanctions . . . . [Sanctions for frivolous appeals] should be used most sparingly to deter only the most egregious conduct.”].) Respondent also argues the appeal was taken for the improper purpose of delaying the trial court’s ruling on Respondent’s request to extend the expiration of the restraining order. Because the current restraining order is in effect until March 2022, any delay in this ruling does not advantage Appellant.

Respondent next argues Appellant misrepresented his indigency status to obtain a filing fee waiver from this court. Although we decline to consider sanctions at this time, we strongly caution Appellant that statements made on the Judicial Council’s Form FW-001 Request to Waive Court Fees are made under penalty of perjury.

DISPOSITION

The order is affirmed. Respondent shall recover his costs on appeal.

SIMONS, J.

We concur.

JONES, P.J.

BURNS, J.

(Fu v. Yan / A157675)