Wong v. Brailey

















Filed 6/18/13
Wong v. Brailey CA1/5

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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




>

>GINGER WONG, > Plaintiff and Respondent, >v. >MARK BRAILEY, > Defendant and Appellant.

A136177 (Alameda County Super. Ct. No. HG12633398)

Mark
Brailey (Brailey) appeals from civil
harassment restraining orders issued against him in favor of his landlord,
respondent Ginger Wong (Wong). Brailey
contends the court erred because Brailey was the one who was harassed, Wong
used the restraining order procedure to evict him from his home in retaliation
for his reports to the police about her children’s wild parties, and neither
the restraining order nor the subsequent one-year injunction were supported by href="http://www.fearnotlaw.com/">substantial evidence. We will affirm the orders.

I. FACTS AND PROCEDURAL HISTORY

A. >Wong’s Request for Temporary Restraining
Order and Injunction Prohibiting Harassment

On
June 6, 2012, Wong filed a “Request for Civil Harassment Restraining Orders”
seeking protection from Brailey for herself, her 18-year-old daughter, and her
16-year-old son.

1. Wong’s
Allegations

In
her declaration supporting her request, Wong alleged that Brailey was renting a
room in her home. Around 10:00 or 10:30
p.m. on June 4, 2012, Brailey screamed and yelled at her, scaring her and her
16-year-old son. In addition, Wong
alleged, she had asked Brailey to move out since April 2012, and on each
occasion he yelled and screamed at her and her children. The dates of this harassment were allegedly
April 10 or 12, May 7, June 1, and June 4.
Wong further alleged that Brailey’s “erratic behaviors” caused her
emotional distress, and that she and her children feared for their safety. According to Wong, Brailey stated that Wong
and her children are “evil” and that they will “get what [they] deserve soon,”
which Wong considered a serious threat.
Wong requested that Brailey be removed from her residence as soon as
possible, and that a temporary restraining order (TRO) be issued ex parte due
to her concern for her safety and the safety of her children.

Attachments
to Wong’s request for an injunction disclosed her assorted attempts to persuade
Brailey to leave the residence in April and May, 2012. According to an attached narrative: “I sent him a notice him [>sic] on April 15th, 2012 and asked him
to move out May 16th, 2012. When this
date came and passed and he was still residing in my home, I decided to follow
up the notice by calling him over the phone.
He started yelling on the phone and called me, my children and their
friends all evil and threatened that we will ‘get what evil people deserve
soon.’ I was shocked and fearful so I
then called 911. The police officers
came into the house and knocked on his door but he refused to open it. The officers then told me that I needed to go
to court to get a restrainer [sic]
order and a move out order.” Wong also
asserted that Brailey yelled at her on the phone in subsequent calls and once
in person on June 4, 2012. She added: “We lock ourselves in every room we go to and
don’t feel safe sleeping under the same roof.”


Other
attachments purport to contain written notices to Brailey. A handwritten note dated “5-15-16 [>sic]” asked him to move out by the next
day – “5-16-2012” – so she could clean and repair the home to get it ready for
“inspectors.” In this note, she advised
that Brailey was a “good renter.” In an
email dated May 19, 2012, Wong referenced her request of April 15 and asked
Brailey to move out by May 31, 2012, but for different reasons: she could no longer rent the room to him
because her older son was returning from school, and the current arrangement
might be an inconvenience to Brailey and to her children. Then on May 26, 2012, she sent Brailey an
email asking him to vacate the room by May 31, 2012.

2. TRO
Issued

The
court issued the requested TRO on June 7, 2012.
The TRO prohibited Brailey from harassing and contacting Wong and her
children, ordered him to stay away from them, and ordered that he immediately
vacate the premises. The TRO was set to
expire on June 28, 2012, the date scheduled for the hearing on Wong’s request
for an injunction.

The
sheriff served Brailey with the order and supporting documents on June 8, 2012,
and apparently removed him from Wong’s residence on that date, without advance
notice. (Another proof of service,
signed by an individual and filed with the court on June 19, 2012, represented
that this individual also served Brailey personally; the proof of service,
however, does not state when or where the purported service was accomplished.)

3. Continuance
of Hearing Date

After
securing Brailey’s ouster from his home, Wong requested that the June 28
hearing date be postponed, because she had a “planned vacation between
6/17/2012 to 07/03/2012 since January,” as shown by an “[a]ttached air ticket
copy.” Actually, the attached email
indicates that the purchase of her ticket was not in January, but on
April 26, 2012. Nonetheless, the
court continued the hearing to July 5, 2012, and the TRO was reissued until
that date.

B. Brailey’s
Response to Request for Anti-Harassment Injunction

Brailey
filed his “Response to Request for Civil Harassment Restraining Orders” on June
29, 2012. In his response, Brailey
disagreed with the proposed orders and attached five pages of narrative, along
with police history reports for three calls he had made to the police. Essentially, Brailey denied harassing Wong or
her children and asserted that the children and their teenage friends had been
harassing him for nine months (June 2011-March 2012) “through extremely
rowdy partying-turned harassment (yelling, screaming, slamming doors, running
and body-slamming each other against walls, stalking, intimidation, etc.),
often while drunk and/or stoned.”

In
particular, Brailey denied yelling and screaming at Wong’s children and
asserted that he had not spoken to Wong since July 2011 (to complain about her
son’s rowdy or illegal behavior) except for three phone calls and one in-person
conversation. He acknowledged that he
and Wong both shouted during two of those three telephone calls, characterizing
it as “verbal sparring,” not harassment.
As to the in-person conversation on June 4, 2012, Brailey asserted it
was “a staged scene in which she waited for me to come home at 10:30 pm, my
usual time, and asked yet again: ‘So
when are you going to move?’” Brailey
denied screaming and yelling at her, insisting that he calmly told her that
California law requires a 60-day notice, whereupon Wong’s older 22-year-old son
emerged from a dark kitchen and stood with folded arms in a “confrontational
style.”

Brailey
also denied making any threats. He
acknowledged that during one of their conversations, he told Wong that she and
her children and their friends were “evil” (because the children harassed him
and she allowed it) and that their “disgraceful” behavior would come back to
her in karma and one day they would face God for their actions. He denied saying that they would get what
they deserve “soon.”

Brailey
argued that Wong’s request for the TRO was simply “payback” for his calling the
police to report her children’s loud parties.
After at least one of those calls, he contended, Wong was cited and
fined. He attached police history reports
reflecting his calls to police after 10:00 p.m. on March 31, 2012, after
3:00 a.m. on April 15, 2012, and after 1:00 a.m. on May 16, 2012, each of
which reported a disturbance due to ongoing problems with the minors partying
in the house.

Brailey
further alleged that Wong’s children and their friends harassed him in other respects. Among other things, in January 2012, Wong’s
son, her daughter’s boyfriend, and 10 to 15 other teenage boys
stalked him for a mile to the house. As
he walked, they drove alongside; then they walked beside him to the front door
of the house and formed a “gang-like semi-circle” behind him, with Wong’s son
standing between Brailey and the door.
Brailey noted that he was 55 years old and mobility-impaired.

C. >Hearing

The
hearing on Wong’s request for an injunction prohibiting harassment took place
on July 5, 2012. Wong and Brailey were
the only witnesses.

1. Testimony

Wong
testified that she was intending to ask Brailey to move because her older son
was returning home, but before she sent Brailey “the note,” her younger son had
a party in April (around the 9th or 10th) and Brailey called the police. When the court asked why she did not file for
an eviction, Wong responded “I don’t know” and added that she just decided to
write a note to him. When she called him
about two weeks later, “he start, you know, cursing me, say all of this stuff
that was really fearful, and I was really scared.” So Wong called the police, and when they
arrived and obtained no answer from knocking on Brailey’s door, they purportedly
suggested she get a restraining order.
Because a friend thought she should give Brailey more time, however,
Wong sent Brailey an email. After this
second notice to Brailey, she called him, and when “he start,” she hung up on
him.

The
court then asked Brailey why he should not be ordered to stay away from Wong’s
house and not contact her family. He
replied that he had “never harassed anybody” in his life, and it was Wong’s
children who harassed him. When the
court asked Brailey whether he had said that Wong and her children were evil
and will get what they deserve soon, Brailey acknowledged that he said Wong and
her children were evil, and in light of the disgraceful way Wong’s children had
treated him for nine months he also said, “This will come back to you. You will answer to God.” Brailey further told the court: “So that’s how I think. God gets revenge. I never do.
I never hurt person – I am totally – I hate aggression, I hate
fighting. I am a nonviolent person,
totally. And I do believe in God. And if you believe in God, you don’t believe
in violence. That, I believe.”

With
that, the court worked out a day for Brailey to retrieve his belongings from
the residence in the accompaniment of the sheriff and announced the permanent
injunction. The court also acknowledged Brailey’s
claim that Wong had harassed Brailey, but advised that the issue before the
court was only what Wong and her children had experienced.

2. Court
Order

The
court issued a one-year injunction, prohibiting Brailey from harassing or
contacting Wong or her children, and ordering Brailey to stay away from them
and their premises.

This
appeal followed.

II. DISCUSSION

A
person who has suffered “harassment” as defined in Code of Civil Procedure
section 527.6, subdivision (b), may seek an injunction prohibiting the
harassment and, in certain circumstances, a temporary restraining order. (§ 527.6, subd. (a).)href="#_ftn1" name="_ftnref1" title="">[1] “Harassment” in this context is defined 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.”
(§ 527.6, subd. (b)(3), italics added.)

“Unlawful
violence” means an assault, battery, or
stalking. (§ 527.6, subd.
(b)(7).)

“Credible
threat of violence” means a “knowing and willful statement or course of conduct
that would place a reasonable person in fear for his or her safety, or the
safety of his or her immediate family, and that serves no legitimate
purpose.” (§ 527.6,
subd. (b)(2).)

A
“ ‘[c]ourse 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 computer email. Constitutionally protected activity is not
included within the meaning of “ ‘course of conduct.’ ” (§ 527.6, subd. (b)(1).) “The course of conduct must be such as would
cause a reasonable person to suffer substantial emotional distress, and must
actually cause substantial emotional distress to the petitioner.” (§ 527.6, subd. (b)(3).)

We
review the court’s factual findings for substantial evidence. (Bookout
v. Nielsen (2007) 155 Cal.App.4th 1131, 1137.)

A. Temporary
Restraining Order

Under
section 527.6, a temporary restraining order may be issued based “on a
declaration that, to the satisfaction of the court, shows reasonable proof of
harassment of the petitioner by the respondent, and that great or irreparable
harm would result to the petitioner.”
(§ 527.6, subd. (d).)

In
regard to harassment, Wong’s declaration asserted: (1) on June 4, 2012, Brailey screamed and
yelled at Wong and scared her and her 16-year-old son; (2) Brailey yelled and
screamed at Wong and her children when Wong asked Brailey to move out around
April 10 or 12, May 7, and June 1; (3) Brailey’s “erratic behaviors” caused
Wong emotional distress and she and her children feared for their safety; and
(4) Brailey stated that Wong and her children are “evil” and that they will
“get what evil people deserve soon,” which Wong considered a serious threat.

It
is a close question whether Wong’s allegations showed reasonable proof of
harassment and great or irreparable harm.
There was no allegation of “unlawful violence” (assault, battery, or
stalking) and there was no allegation of a “course of conduct” of
communications that would cause a reasonable person substantial emotional
distress: the allegations were simply
that Brailey yelled and screamed in three or four conversations she initiated
over the course of several weeks concerning her desire for him to move
out. (See § 527.6, subd.
(b)(3).) As to Brailey’s alleged
statement that Wong and her children would “get what evil people deserve soon,”
there was no accompanying allegation that Brailey had ever been violent or
threatened any physical harm or harm with a weapon, and no allegation
concerning his tone of voice or demeanor when he said those words. About two weeks had passed since he allegedly
made that statement, apparently without any violent incident, and the statement
is indeed susceptible of many interpretations.


Nonetheless,
we conclude that one of the possible
reasonable interpretations of the statement, based on the allegations then
before the court, was that Brailey was going to retaliate in some physical or
violent manner against Wong and her family due to her request that he leave the
premises, and that this retaliation was about to occur “soon.” Given this plausible interpretation, there
was adequate proof that his statement was sufficient to “place a reasonable
person in fear for his or her safety, or the safety of his or her immediate
family.” (§ 527.6, subd.
(b)(2).) Also based on this interpretation,
we conclude that Wong’s allegations were sufficient to provide reasonable proof
that great or irreparable harm was going to result to Wong or her children
without the restraining order.

Because
Wong’s allegations were sufficient for issuance of a temporary restraining
order, the court was within its authority to order Brailey not to harass or
contact Wong and her children.

The
portion of the restraining order requiring Brailey to vacate his home – without
notice or opportunity to be heard, and without so much as an allegation of
prior violence, a specific threat of violence, or suspected possession of a
weapon – gives us pause, however.
Certainly the anti-harassment statutes cannot be manipulated by
landlords to effect the ex parte
judicial ouster of a tenant as an end-run around our state’s eviction
laws. (See Marquez-Luque v. Marquez (1987) 192 Cal.App.3d 1513 (>Marquez-Luque).) Wong and Brailey had a landlord-tenant
relationship, and the attachments to Wong’s declaration make it clear that she
had been trying various arguments to induce him to leave the premises – never
claiming that he was ever violent or abusive – and her request for an order
rousting him from his residence was filed only a few days after he failed to
move out by her deadline. (Civ. Code,
§§ 1624, subd. (a)(3), 1940.)
Moreover, even in the context of family law orders for the removal of
one of the residents, such orders are limited to instances where there is
specific evidence of violence or the risk of violence. (Fam. Code, § 6321, subd. (b) [dwelling
exclusion order may issue ex parte only upon a sufficient showing that an
assault has occurred or been threatened and physical or emotional harm would
result].)

On
the other hand, given at least the potential threat of violence, the court
could have reasonably concluded that the only practical way of effecting the
permissible anti-harassment, no-contact, and stay-away portions of the TRO was
to order Brailey’s temporary removal from the premises pending the injunction
hearing. After all, the court did not
order that Brailey be permanently evicted, but that he not stay on the premises
for about three or four weeks until the matter could be heard. And although Brailey was Wong’s tenant, this
was not a typical landlord-tenant situation where the landlord and tenant
maintained separate residences, in the sense that the landlord could be secure
behind the locked doors of his or her home.
(Wong noted that she and her children were able to lock the doors of
their rooms, but the inference from the record is that there were at least
certain common areas, such as halls and the kitchen, where Brailey could
contact them.) Given that Brailey lived
in the same residence with Wong and her children, Brailey has not established
that the court erred in issuing the TRO.href="#_ftn2" name="_ftnref2" title="">[2]

B.
Permanent Injunction

A
permanent injunction prohibiting harassment may issue “[i]f the judge finds by
clear and convincing evidence that unlawful harassment exists.” (Code Civ. Proc., § 527.6, subd.
(i).) In our review of the court’s
issuance of the injunction, we consider not only Wong’s declaration and
Brailey’s written response, but also the testimony and evidence proffered at
the hearing.

For
reasons explained ante, neither
Wong’s declaration nor the evidence at the hearing provided clear and
convincing evidence of “unlawful violence” or a harassing “course of conduct”
within the meaning of section 527.6, subdivision (b). The only instances of purported harassment
arose on four occasions when Wong approached Brailey about moving out, there is
no allegation of what was said except that Brailey was yelling, three of those
incidents occurred over the telephone, and this course of conduct had not
continued after Brailey was displaced from his residence. Indeed, the record of the hearing indicates
that the court focused instead on Brailey’s alleged statement that Wong and her
children would get what they deserved soon.

In
regard to Brailey’s purported threat, the court had before it conflicting
accounts: Wong alleged that Brailey told
her they would “get what evil people deserve soon,” but Brailey testified that
instead he said, “This will come back to you, you will have to answer to
God.” The court implicitly found Wong’s
account more credible. Because the court
was in a position to observe the witnesses and their demeanor at the hearing,
we are required to defer to this determination and accept Wong’s version. (Lenk
v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.)

As
discussed ante, a statement like “you
will get what evil people deserve soon” is susceptible of many different
interpretations. Certainly the case
against Brailey would have been stronger if there had been evidence that he was
violent in the past, possessed a weapon, had uttered more specific threats, or
made the statement with an aggressive demeanor or tone of voice. Again, however, one reasonable inference from
the evidence is that the statement was sufficient to place in fear both Wong
and her children, as well as a reasonable person under the circumstances, and
the court was in the best position to evaluate the evidence in light of its
observations of the parties at the hearing.

In
the final analysis, it is not our role to reweigh the evidence, and we cannot
substitute our inference from the evidence for the inference drawn by the trial
court, provided substantial evidence exists to support the trial court’s
conclusion. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053; >Howard v. Owens Corning (1999) 72
Cal.App.4th 621, 631.) For the reasons
stated, substantial evidence supported the court’s conclusion there was clear
and convincing proof of harassment entitling Wong to the issuance of the
permanent injunction.

C. Brailey’s
Additional Arguments

We
next consider Brailey’s arguments to the extent they have not already been
addressed.

1. Brailey’s
Argument That He Was Harassed

Primarily,
Brailey argues that it was he who was harassed.
He describes unsupervised parties that became progressively rowdy and
more frequent over a span of months, Wong’s refusal or inability to do anything
about them, and their continuation in a manner that Brailey viewed as
harassment. He also describes more
direct harassment by Wong’s children and their friends. The minors purportedly stalked him in their
cars, surrounding him at one point in January 2012 with 10-15 male teenagers in
a “ganglike” confrontation. After
Brailey made his first call to the police in March 2012 and, according to
Brailey, Wong was cited for allowing underaged drinking in her home, Wong’s
daughter and boyfriend allegedly feigned ramming Brailey with a Ford
Bronco. Brailey claims that his second
call to the police on April 15 resulted in Wong again being cited for underage
drinking (and marijuana consumption) in her house, and that three days
after his third call to police in early May, Wong called Brailey for the first
time to get him to move out. In that
conversation, Brailey contends he expressed his view that Wong was asking him
to leave in retaliation, he also made the statement that Wong later rephrased
in her request for a TRO and permanent injunction, and Wong hung up on
him. While he was out looking for
another room to rent, Wong summoned the police, who arrived and allegedly
stated in their report that he had not said anything to threaten her. Wong called Brailey a second time in May, and
when Brailey asked for legal notice to vacate, she hung up on him. Brailey further contends he never received
Wong’s emails. And when Wong called a
third time on June 2 and he asked for formal notice to vacate, she said her
attorney would “have [him] out of here in one day.” Brailey denies yelling during their in-person
conversation on June 4, which he contended was a set-up to justify the request
for the TRO.

We
have considered Brailey’s assertions fully.
But whether or not Brailey was harassed by Wong’s children and their
friends (or even whether he could have obtained a harassment injunction against
them), the question before the trial court – and here on appeal – was not
whether there was sufficient evidence of harassment by them against him, but whether
the evidence of Brailey’s purported threat that they would soon get what evil
people deserve was sufficient to constitute harassment by him against
them. For the reasons stated >ante, it was.

2. Brailey’s
Other Arguments

Brailey
contends that the court ignored his written
testimony and the police reports of his telephone calls, both of which were
attached to his response to Wong’s request for the civil harassment
orders. (See Code Civ. Proc.,
§ 527.6, subd. (i) [court shall receive any testimony that is
relevant].) There is, however, no
indication that the court ignored this material. The fact that the court did not embrace Brailey’s
view of what occurred, or conclude that his statement of harassment by Wong’s
children should preclude an injunction against him, does not demonstrate that
the court paid no attention to what Brailey had presented. Nor does the reporter’s transcript indicate
that Brailey sought admission of any other reports or evidence at the hearing.

Brailey
also contends that the TRO, and particularly the part of the TRO that removed
him from the premises, constituted an eviction in retaliation for his
complaints about the partying and harassment of Wong’s children and their
friends. Whether Wong’s motive was
retaliatory or not, however, the question is whether there was substantial
evidence to support the court’s findings that Brailey’s statement was
sufficient to cause Wong and her children (and a reasonable person) to fear for
their safety, and great or irreparable harm would otherwise result. And while Wong’s credibility could be
diminished if her purposes were to retaliate rather than to obtain protection,
the credibility determination was for the trial court.

Brailey
cites Civil Code section 1942.5, which precludes a landlord from certain acts,
including bringing an action to recover possession of the premises, in
retaliation for the tenant’s complaint to authorities about the premises’
tenantability or the tenant’s lawful and peaceable exercise of any right. (Civ. Code, § 1942.5, subds. (a),
(c).) Assuming without deciding that
Civil Code section 1942.5 could apply here, an exception arises where the
landlord stated in the notice of the action a nonretaliatory ground for recovering
possession and established that ground at a trial or hearing. (Civ. Code, § 1942.5, subd. (e).) Here, Wong’s request for the TRO and
permanent injunction, and the evidence at
the hearing, established a nonretaliatory basis for excluding Brailey
from the premises.

Brailey
also suggests that the court based its finding of harassment on Brailey’s
constitutionally-protected calls to the police.
We do not read the record that way.
In any event, because there was substantial evidence of a credible threat
of violence sufficient for issuance of the TRO and injunction, the court’s
orders would be affirmed on the basis of the threat, whether or not the court
considered Brailey’s calls to the police.
(D’Amico v. Board of Medical
Examiners (1974) 11 Cal.3d 1, 18-19.)

Lastly,
Brailey posits several other arguments, such as: the court was biased against him; he was
intimidated by the court’s disdain; the court reporter transcribed the hearing
inaccurately; and the court was “non-conversant” because it only asked a few
questions. We have considered these and
all of Brailey’s arguments in full and conclude that he has failed to
demonstrate reversible error.

III. DISPOSITION

The orders are affirmed.













NEEDHAM,
J.





We concur.







JONES, P. J.







BRUINIERS, J.