Filed 1/21/20 Abdelmalek v. Pushina CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

MARIAM ABDELMALEK,

Plaintiff and Respondent,

v.

PAVEL RADOSTEV PUSHINA,

Defendant and Appellant.

A157505

(Alameda County

Super. Ct. No. HG19018043)

Respondent Mariam Abdelmalek sought and obtained a civil harassment restraining order against her roommate, appellant Pavel Radostev Pushina, after they fought in their home. We affirm.

I.
FACTUAL AND PROCEDURAL
BACKGROUND

Abdelmalek and Pushina are roommates, along with Pushina’s wife. In February 2019, Pushina got angry at Abdelmalek after she moved food to a different shelf in their shared refrigerator. He yelled and cussed at Abdelmalek and later texted insults to her. Things with the roommates “just died back down to normal” until May, when Abdelmalek asked Pushina to stop leaving dirty dishes all over the counter. After Pushina told her to wash the dishes herself if she did not like it, Abdelmalek put the dishes in the sink, which made enough noise that it sounded as if the dishes might have broken. Pushina told Abdelmalek she was stupid and the two started arguing, and Pushina “cornered” her with a “glass smoke bowl,” which was “like a bowl for [a] bong.” Abdelmalek pushed Pushina away and called 911.

The next day, Abdelmalek filed a request for a civil harassment restraining order against Pushina and specifically asked that Pushina be ordered to move out of their shared house. The trial court denied a requested temporary restraining order on the basis that a move-out order is not available under the civil harassment statute. The court nonetheless set a hearing on a permanent restraining order, noting that Abdelmalek may have remedies other than a move-out order.

The trial court held a brief hearing on May 30 and heard from both parties. Pushina testified that although he “went up close” to Abdelmalek, he did not hit her. He further testified that Abdelmalek slapped him in the face during their encounter in May and that “I think it’s just roommate conflicts. I’m not really—I don’t really think it’s to the point where a restraining order is needed.” The parties participated in a mediation that day, but it was unsuccessful.

The court stated it was “an unfortunate set of circumstances” and that it had hoped the parties could work out an agreement such that Pushina “would simply agree to leave [Abdelmalek] alone in the home.” Because negotiations were unsuccessful, the trial court granted the request for an injunction. The court ordered that Pushina not harass Abdelmalek and that he stay at least three yards away from both her and her vehicle, but it did not order Pushina to move. The injunction was scheduled to expire on September 4.

II.
DISCUSSION

Pushina filed his opening brief on August 23, less than two weeks before the restraining order he challenges was scheduled to expire. Although this appeal thus is presumably moot, we nonetheless exercise our discretion to address the merits.

The trial court entered the anti-harassment injunction under Code of Civil Procedure section 527.6, which defines harassment as “unlawful violence, a credible threat of violence, or 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.” (Code Civ. Proc., § 527.6, subd. (b)(3).) “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.” (Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1226.) “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.” (Ibid.)

Abdelmalek testified that during their argument in May, Pushina was “right up in my face and he wouldn’t move,” that Pushina’s wife also was telling him to move, that there was “nowhere for me to go,” that when she finally was able to leave Pushina followed her to the living room and continued yelling at her, then he followed her back to the kitchen and “cornered [her] again.” At this point, in her words, “[I] pushed him off, and I slapped him, not on his face or anything, but I just tried to push him away, and I tried to call 911, but my phone was dead after I took the video [of Pushina], and someone was outside, and he saw what happened. [¶] So he asked me if I needed someone to call 911. I told them, yes, and he stayed with me until the cops came.” The trial court found that Pushina’s actions amounted to a credible threat of violence, and we see no reason to disturb this finding.

In his opening brief, Pushina characterizes the interactions between the parties as “a run-of-the-mill roommate quarrel.” He claims he was not violent and there was “no evidence whatsoever” that he “verbally threatened” Abdelmalek. He stresses, as he did below, that it was Abdelmalek who hit Pushina. The trial court told Pushina that “I know you’re focused on the fact that she hit you, but I’m wondering why did she hit you. I’m wondering if she hit you because she felt threatened by you.” It later noted, “Frankly, the Court is concerned that [Pushina] doesn’t get it.” The trial court was of course in the best position to evaluate the parties’ credibility and the circumstances surrounding their encounter. This is especially true considering that the court apparently “took so much effort” and time with the parties to reach a mutually agreeable resolution and so was familiar with their positions. Even if this court might not have reached the same conclusion, we review the evidence in the light most favorable to the order. Under this standard, we find no reason to disturb it.

III.
DISPOSITION

The trial court’s order is affirmed. Although Abdelmalek did not file a respondent’s brief, she is the prevailing party and is entitled to her costs, if any, of appeal.

 

_________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

Sanchez, J.

Abdelmalek v. Pushina A157505