Filed 3/25/20 Parnell v. Shih CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

NATHAN BROOKS PARNELL,

Plaintiff and Respondent,

v.

LIH BIN SHIH,

Defendant and Appellant.

D074805

(Super. Ct. No. 37-2018-00033816- CU-HR-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Richard S. Whitney, Judge. Affirmed in part and remanded with directions.

Law Offices of Rosemary Leonard and Rosemary Meagher-Leonard for Plaintiff and Respondent.

Taylor Anderson and Christopher R. Mordy for Defendant and Appellant.

Plaintiff Nathan Parnell petitioned for a restraining order against his neighbor, defendant Lih Bin Shih. Shih filed a cross-petition for a restraining order against Nathan and his wife, Julie Parnell. After a hearing, the court granted a restraining order to the Parnells against Shih and denied Shih’s restraining order against the Parnells. Shih appeals from the order granted against her.

BACKGROUND

The court held a hearing on the cross-petitions on August 8, 2018. Nathan, Julie and Shih all testified. The court admitted scores of e-mails from Shih to the Parnells, Nathan’s Marine Corps commanders, the Parnells’ landlord, the homeowners’ association (HOA), and open letters to the entire HOA community about the Parnells. Shih’s e-mails to the landlord and the HOA generally copied each other and the Parnells. Shih sent numerous e-mails directly or indirectly by copy to the Parnells from November 2017 through July 2018.

At the conclusion of the hearing the court granted the Parnells’ request for a permanent restraining order and denied Shih’s request for a similar order. Shih was ordered not to harass or contact the Parnells and to stay five yards away from the Parnells and their son, and 100 yards away from their dog. The court also ordered Shih not to contact the Marine Corps, which was Nathan’s employer. The order is in effect for three years.

The oral proceedings were not recorded or transcribed. Shih changed attorneys after the hearing and her new attorney, who had not been present at the hearing, prepared and submitted a proposed settled statement of facts. The court found the proposed settled statement generally not accurate. The court issued an order with the following findings:

The court found credible evidence, by a clear and convincing standard, that Shih “was reaching a level of unhealthy obsession in monitoring almost every movement and action taken by [the Parnells] and was clearly invading [the Parnells’] privacy through stalking, harassment and the filing of unwarranted complaints with the HOA and the Marine Corps.” She was interfering in the Parnells’ life and with Nathan’s work. “The evidence established, in part, approximately 300 unwanted e-mails from [Shih] on issues that were mundane and designed to simply inflict distress/harassment upon [the Parnells]. The evidence also showed that [Shih] consistently invaded [the Parnells’] personal space in common areas of the complex that was unreasonable and unwarranted. [¶] The evidence supported a clear cut case of harassment by [Shih]. The Court concluded [Shih] . . . appeared to show very little . . . ability to correct her harassing actions. [¶] . . . [¶] The court was doubtful upon conclusion of the proceedings that [Shih] had the ability to abide by the court’s order.”

The court thus issued the order restraining Shih from going near the Parnells, their child or their dog, and from contacting the Marine Corps.

 

DISCUSSION

Civil Harassment

A person who has suffered harassment may seek an injunction prohibiting further harassment. (Code Civ. Proc., § 527.6, subd. (a)(1).) As relevant here, “harassment is . . . 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 which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.” (Id., subd. (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” and includes sending harassing e-mails. (Id., subd. (b)(1); Harris v. Stampolis (2016) 248 Cal.App.4th 484, 496 (Harris); R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188 (R.D.).)

The court must issue a restraining order if it “finds by clear and convincing evidence that unlawful harassment exists.” (§ 527.6, subd. (i).) “An injunction restraining future conduct is only authorized when it appears that harassment is likely to recur in the future.” (Harris, supra, 248 Cal.App.4th at p. 496.)

Standard of Review

“We review the trial court’s decision to grant the restraining order for substantial evidence.” (Harris, supra, 248 Cal.App.4th at p. 497.) Under the substantial evidence standard of review, “we resolve all conflicts in evidence in favor of the prevailing party and indulge all legitimate inferences to uphold the judgment if possible. [Citation.]” (Ricasa v. Office of Administrative Hearings (2018) 31 Cal.App.5th 262, 276 (Ricasa).)

” ‘[W]hether the facts, when construed most favorably in [the respondent’s] favor, are legally sufficient to constitute civil harassment under section 527.6, and whether the restraining order passes constitutional muster, are questions of law subject to de novo review.’ ” (Harris, supra, 248 Cal.App.4th at p. 497; R.D., supra, 202 Cal.App.4th at

p. 188.)

“[T]he absence of a court reporter at trial court proceedings and the resulting lack of a verbatim record of such proceedings will frequently be fatal to a litigant’s ability to have his or her claims of trial court error resolved on the merits by an appellate court. This is so because it is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal . . . . ‘In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s action will be made by the appellate court. “[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented.” ‘ [Citation.]” (Jameson v. Desta (2018) 5 Cal.5th 594, 608–609 (Jameson).)

We accept the court’s order describing the oral proceedings and the exhibits that were admitted as the basis for our review. We reject Shih’s proposed settled statement. The trial court stated, “[Shih’s proposed] Settled Statement does appear to this court to contain inaccuracies of what occurred and what was said by this bench officer, but unfortunately due to the absence of record cannot address with specificity many of these issues. [¶] . . . [¶] The remainder of the [proposed] Settled Statement is also called into question due to the above misquotes but unfortunately this court cannot provide further comment in the absence of a record or distinct recollection of the proceedings.” “[W]hen the litigant fails to convince the trial judge that his proposed [settled] statement accurately reflects the proceedings in question, the action of the judge who heard and tried the case must be regarded as final.” (Cross v. Tustin (1951) 37 Cal.2d 821, 826; Burns v. Brown (1946) 27 Cal.2d 631, 634–635 [we do not determine if appellant’s statement of evidence is accurate when trial court found it was not].) We rely on the court’s order and on the exhibits as the basis for our review.

Shih contends that the trial court had no time to review the e-mails, stating that the court received the exhibits at the beginning of the oral hearing and rendered its decision at the end of the hearing, which lasted only 45 minutes. We accept the court’s statement that it made its ruling after “careful review of the entire record.” We presume that the court performed its duties and reviewed all the evidence before making its decision. (Evid. Code, § 664; J.H. McKnight Ranch, Inc. v. Franchise Tax Bd. (2003) 110 Cal.App.4th 978, 984 (McKnight Ranch).) Even if we accept Shih’s timeline as true, the court had time to peruse the exhibits while listening to the testimony of the parties. The nature of the e-mails is evident upon a quick review. Insulting and derogatory comments are frequent and noticeable. Many of the e-mails are two or more pages long, single-spaced and typed in a small font. The language, length and frequency with which Shih sent these missives to the Parnells, their landlord, the HOA, other tenants and finally to Nathan’s commanders support the presumption that the court performed its duties because the court’s ruling comports with the written evidence. (McKnight Ranch, at p. 984.) Shih has presented no reliable evidence that rebuts the presumption that the court reviewed and considered the exhibits. We thus rely on the admitted exhibits as well as on the court’s statement of the oral proceedings in our review.

Factual Sufficiency

Shih raises four questions about the sufficiency of the evidence: 1) the number of e-mails; 2) the authenticity of the e-mails; 3) the internal consistency of documents generated by the Parnells; and 4) whether her e-mails were designed to harass or were a result of her right to report violations of the HOA regulations. We agree with Shih that there were probably fewer than 300 e-mails, but we find the exact number immaterial. There were scores of e-mails that were sent to the Parnells either directly or by copy. The number and length of e-mails that Shih sent over a period of seven months was large and burdensome, whether that number is 300 or something less. We accept the authenticity of the e-mails that were admitted. There is no evidence the e-mails were not authentic. Also, there is no record that Shih contested authenticity at trial. The failure to object below forfeits the argument on appeal. (Evid. Code, § 353, subd. (a); Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1020.) Regarding inconsistencies in the e-mails, we accept the court’s implicit determinations of credibility that support its findings. (Ricasa, supra, 31 Cal.App.5th at p. 282; Jameson, supra, 5 Cal.5th at pp. 608–609.)

Legal Sufficiency

We conclude as a matter of independent judgment that the oral testimony as described by the court combined with the barrage of e-mails was sufficient to support the court’s finding of harassment. (See Harris, supra, 248 Cal.App.4th at p. 497.) The court found as matters of fact that Shih had “a level of unhealthy obsession in monitoring almost every movement and action taken by [the Parnells] and was clearly invading [the Parnells’] privacy through stalking, harassment and the filing of unwarranted complaints with the HOA and the Marine Corps. . . . [Shih] consistently invaded [the Parnells’] personal space in common areas of the complex that was unreasonable and unwarranted.” Such behavior is seriously alarming, annoying, harassing, and served no legitimate purpose. (§ 527.6, subd. (b)(3).) The e-mails, as well, are seriously alarming, annoying, harassing, and, for the most part, served no legitimate purpose. (Ibid.)

Ensuring enforcement of the rules and regulations of a community association is a legitimate purpose, and the order does not prevent Shih from continuing to contact the HOA. Shih had no legitimate purpose in the manner in which she notified the HOA in the e-mails that were admitted as exhibits here, however. Her daily, lengthy, derogatory e-mails to the HOA were seriously harassing and had no legitimate purpose. She had no legitimate purpose in sending daily abusive e-mails to the Parnells’ landlord with copies to Nathan, and it appeared that she intended to have him evicted. Her 28-page letter to Nathan’s employer was clearly intended to interfere with his employment. The e-mails support the court’s finding that Shih was interfering with the Parnells’ life and her actions were designed to inflict distress and harassment on the Parnells. We accept the court’s implicit finding that Shih’s behavior as a whole was motivated by an intent to cause substantial emotional distress and did actually cause substantial emotional distress to the Parnells.

We conclude as a matter of law that Shih’s complaints to the HOA went beyond a legitimate scope and her other actions were without legitimate purpose. Her actions as a whole were legally sufficient to constitute harassment. (Harris, supra, 248 Cal.App.4th at p. 497.)

Judicial Bias

Shih contends that the trial court was biased in favor of Nathan because he was a Marine, and that the court’s bias impaired its ability to fairly consider Shih’s evidence. We conclude no evidence supports this claim.

Every litigant has a due process right to an impartial decisionmaker. (People v. Peoples (2016) 62 Cal.4th 718, 788; Today’s Fresh Start, Inc. v. Los Angeles County Office of Educ. (2013) 57 Cal.4th 197, 212.) Due process requires judicial disqualification only under the ” ‘most “extreme facts.” ‘ ” (People v. Cowan (2010) 50 Cal.4th 401, 456–457.) To establish a due process violation, the appellant has the burden of showing ” ‘ ” ‘the probability of actual bias on the part of the judge.’ ” ‘ ” (Id. at p. 456; Peoples, at p. 787.) “The appellate court’s role is not to examine whether the trial judge’s behavior left something to be desired, or whether some comments would have been better left unsaid, but to determine whether the judge’s behavior was so prejudicial it denied the party a fair . . . trial. [Citation.] Mere expressions of opinion, based on observation of the witnesses and evidence, do not demonstrate judicial bias. [Citation.] Numerous and continuous rulings against a party are not grounds for a finding of bias. [Citation.] [¶] A constitutional finding of judicial . . . bias is appropriate only when ‘extreme facts’ demonstrate a probability of actual bias. [Citation.]” (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 589.)

There is no reliable evidence that supports Shih’s claim that the court was biased. Shih relies only on her proposed settled statement, but we have rejected that statement as inaccurate. It is Shih’s burden to show that the court was biased, and we cannot assume that the court was either unfair or appeared unfair without some credible evidence in the record supporting that charge. Without a record substantiating Shih’s claims, we presume the court was impartial. (Jameson, supra, 5 Cal.5th at pp. 608–609; McKnight Ranch, supra, 110 Cal.App.4th at p. 984.)

Insufficient Time to Present Case

Shih contends that the court failed to give her enough time to present her case, claiming the court spent “an inordinate amount of focus, and time, on the fact that [Nathan] was in the Marine Corps.” She also claims that the length of the hearing—45 minutes—was not enough time to try the cross-petitions.

The court granted Shih a continuance of the hearing over the Parnells’ objection on August 2, 2018. Shih states in her proposed settled statement that she requested another continuance at the beginning of the hearing on August 8, and the court denied it. A trial court has broad discretion to grant or deny a continuance and its ruling will be reversed only when an abuse of discretion is clear. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1321.) Shih has not shown an abuse of discretion because she has not provided an offer of proof as to what she would have submitted if given more time.

Without a record of the proceedings, we find no evidence supporting Shih’s claim that the court spent too much time on Nathan’s military career. (Jameson, supra, 5 Cal.5th at p. 608.) There is no evidence that the hearing was too short. We presume no error occurred. (Id. at pp. 608–609.)

First Amendment

Shih contends that the e-mails she sent were simply a result of her exercise of her First Amendment rights and her right to address the Parnells’ harassment. We review the record and ruling de novo to determine if the restraining order violated Shih’s First Amendment rights to petition for redress of grievances. (R.D., supra, 202 Cal.App.4th at p. 188.)

Shih first claims that the settlement discussion sought to restrict her right to redress grievances. She cannot complain about something that was not ordered, however, as the discussion alone did not restrict her rights. She also contends that the order prohibiting her from contacting the Marine Corps deprived her of her constitutional right to petition for redress.

” ‘The right to free speech is . . . one of the cornerstones of our society,’ and is protected under the First Amendment of the United States Constitution and under an ‘even broader’ provision of the California Constitution.” (Evans v. Evans (2008) 162 Cal.App.4th 1157, 1166.) “It is speech on ‘ “matters of public concern” ‘ that is ‘at the heart of the First Amendment’s protection.’ [Citations.]” [Citation.] . . . “In contrast, speech on matters of purely private concern”—while “not totally unprotected”—”is of less First Amendment concern.” [Citation.] When such speech causes damage—as in defamation or the intentional infliction of emotional distress—civil sanctions may be imposed because ” ‘[t]here is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas concerning self-government; and there is no threat of liability causing a reaction of self-censorship by the press. . . .’ ” ‘ ” (Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1228 (Parisi).) In California, “speech that constitutes ‘harassment’ within the meaning of section 527.6 is not constitutionally protected, and the victim of the harassment may obtain injunctive relief.” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1250; R.D., supra, 202 Cal.App.4th at p. 191.) The right to free speech “does not include the right to repeatedly invade another person’s constitutional rights of privacy and the pursuit of happiness through the use of acts and threats that evidence a pattern of harassment designed to inflict substantial emotional distress.” (People v. Borrelli (2000) 77 Cal.App.4th 703, 716.) ” ‘[A]n injunctive order prohibiting the repetition of expression that ha[s] been judicially determined to be unlawful [does] not constitute a prohibited prior restraint of speech.’ ” (Parisi, at

p. 1230.)

The court implicitly found, and we affirm, that there was no legitimate purpose for Shih’s communications to the Marine Corps about Nathan and restrained her from all communications with the Marine Corps. A restraint that implicates the First Amendment must be narrowly tailored. ” ‘ “An order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order.” ‘ ” (Parisi, supra, 5 Cal.App.5th at p. 1231; R.D., supra, 202 Cal.App.4th at p. 192.) A restraining order’s infringement of a respondent’s speech should be no broader or more restrictive than is necessary to prevent the respondent’s harassment of a petitioner. (DVD Copy Control Association, Inc. v. Bunner (2003) 31 Cal.4th 864, 882–883; R.D. at

p. 192.)

The order restraining Shih from contacting the Marine Corps is overly broad in restricting all communication with the Marine Corps. It should be modified to restrict only Shih’s communications concerning the Parnells. (Parisi, supra, 5 Cal.App.5th at

p. 1228.) The Marine Corps is a large and public entity that engages in many activities beyond employing Nathan. Shih could be aggrieved by actions other than its employment of Nathan. The order should be modified so that Shih continues to have the opportunity to complain to the Marine Corps about any topic other than the Parnells.

 

DISPOSITION

The case is remanded to the trial court with the direction to modify the order restraining Shih from communicating with the Marine Corps to restricting her only from contacting the Marine Corps about the Parnells. The judgment is affirmed in all other respects. Costs awarded to the Parnells.

BENKE, Acting P. J.

WE CONCUR:

IRION, J.

GUERRERO, J.