Filed 10/15/18 Yonan v. Eissa CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Rewis Yonan appeals from the denial of a civil harassment restraining order (CRO). His principal claim is that the trial court misinterpreted Code of Civil Procedure section 527.6[1] and erroneously concluded he had to show a “course of conduct” of harassing behavior and that a CRO cannot be granted on the basis of a single incident. He further claims that, interpreted correctly, he established his right to a CRO under section 527.6 by clear and convincing evidence. We affirm.

Background

Over the course of three days, appellant made the following evidentiary showing: He is a full deacon at a church, where he also resides. His clerical duties include cleaning the church, preparing the holy bread and altar for services, and locking the church at night.

One morning in March 2017, a friend (and fellow church member) dropped Yonan back at the church after getting coffee following church services. The church priest was also in the car.

As they drove into the parking lot, Yonan noticed Essam Eissa and another person getting out of a parked car. Yonan was aware there was a dispute between the priest and Eissa as to the composition of the board of directors of Christian Humanitarian Aid.[2] Yonan had been told by the priest and “[a]ll the board members” that Eissa was no longer on the board. He had also been told that Eissa likely was going to come to the church that morning. Yonan admitted he had never been told Eissa’s side of the dispute.

Yonan was dropped off near the door leading to his living quarters. After trying unsuccessfully to unlock the door, he started walking to his car parked in the church parking lot. As Yonan walked towards his car, Eissa approached him. Yonan had spoken to Eissa only once before in passing, about nine months earlier.

Eissa greeted Yonan, saying, “ ‘Hi, how are you?’ ” and started to shake his hand and introduce his friend, who Yonan had also been told was no longer on the Christian Humanitarian Aid board. The friend stated he needed to use the restroom. Yonan replied he could not enter the church, saying he had just tried to open the door and had been unable to do so. Yonan claimed to be “scared” at this point.

In an angry voice, Eissa asked Yonan if the priest had instructed him not to open the door for Eissa and his friend. Yonan said he had not. Eissa then grabbed Yonan’s elbow, shook him, and in an increasingly angry voice, insisted Yonan “say the truth” and admit that the priest had told Yonan not to open the door for Eissa. Yonan continued to deny that the priest had said any such thing. He claimed he was particularly “scared” when Eissa grabbed his elbow and shook him.

Eissa took his hand off Yonan’s elbow and said, to his friend in a loud voice, words to the effect no police officer would be able to arrive.[3] After repeating this assertion, Eissa turned to Yonan, pointed his finger at him and said, “tell the priest that I escalated the matter to the higher authority,” referring to the sheriff’s department.

Yonan then saw the priest’s daughter at a second story window, who texted him to drive away.

The three men remained talking for a few minutes, Eissa asking Yonan whether there had been a service and whether the priest had attended. After that, Eissa asked him “general” questions. At some point, Eissa’s friend told Eissa to “calm down,” and said he had come with Eissa because he had known Eissa was going to be angry, but there was “no need to [sic] such kind of this talking.”

Eissa looked at his watch and said he had a meeting to attend. He also took out his cell phone and made some verbal notes, including stating the date and that he had seen Yonan. Eissa then said, “I’m sorry we have to take a corner [sic] we have,” but he had a “confidential meeting” to attend. Yonan said “okay,” and about 20 minutes after first encountering Eissa, got into his car and drove to work.

Yonan claimed he was fearful because Eissa might enter the church where the priest’s daughter was and because Eissa might “break the door and do whatever he want inside.” Yonan stated his fear was partly due to the priest having told him that police had come to the church to investigate a report “against the church.” He also said the priest had shown him e-mails from Eissa saying Eissa intended to take control of the church. Yonan admitted Eissa never made any verbal threats during the encounter.[4]

Yonan denied calling the police that day and reporting the incident. The priest’s wife, however, did call and reported an attempted break-in. Officers were dispatched to the church and arrived at about 11:23 a.m. One of the officers spoke with Eissa and his friend. Eissa said he was at the church to attend a board meeting. The officer responded that, on the preceding day, the priest had told the police no board meeting was scheduled. The police had become involved because Eissa’s attorney apparently had sent a letter to the city council complaining about police conduct in connection with an earlier investigation of reported threats against the church, and the officer had called the priest to investigate. In the course of that investigation, Eissa had been left with the impression he could not attend church services. After speaking with the priest, the officer had re-contacted Eissa and told him there was no problem with his attending the church, but, according to the priest, he was no longer on the board. The officer also told Eissa at that time that the dispute appeared to be a civil matter in which the police would not become involved. Eissa told the officer responding to the incident involving Yonan that he (Eissa) had believed there was a meeting scheduled. Eissa and his friend then left.

The next day, Yonan filed a police report.

Five days later, Yonan filed for a CRO pursuant to section 527.6.

At the close of evidence, the trial court ruled from the bench and denied a CRO on the ground Yonan had failed to meet his burden of proof. Specifically, the court found Eissa’s anger was not directed at Yonan, but “was really in the context of the Church.” Eissa “really didn’t have a dispute with” Yonan. Rather, Eissa suspected Yonan was acting as a mouthpiece for the priest, and Eissa’s anger was actually directed at the priest and the church. Accordingly, the court found Yonan had failed to establish that he was subject to a “credible threat of violence.” There is a “civil dispute” going on within the church, said the court, and “[t]hat is what this is all about. It is not about trying to instill fear in [Yonan] to harass.”

Discussion

The gist of Yonan’s argument on appeal is that the trial court did not understand that a single act of “unlawful violence” can support a CRO, and the court erroneously denied a CRO because Yonan had not shown a “course of conduct” of harassing behavior.

“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.] . . .’ [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 v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1226; accord Harris v. Stampolis (2016) 248 Cal.App.4th 484, 497 (Harris).) We also review any legal rulings de novo. (See Upland Police Officers Assn. v. City of Upland (2003) 111 Cal.App.4th 1294, 1301.) “Absent any evidence to the contrary, we presume that the trial court applied the correct legal standard.” (Cueto v. Dozier (2015) 241 Cal.App.4th 550, 561.)

Legal Standard

Section 527.6, subdivision (a)(1) provides that “[a] person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an order after hearing prohibiting harassment as provided in this section.”

“ ‘Harassment’ ” is defined as (1) “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct,” (2) “directed at a specific person,” (3) “that seriously alarms, annoys, or harasses the person” and (4) “serves no legitimate purpose.” (§ 527.6, subd. (b)(3), italics and boldface added.)

“ ‘Unlawful violence’ ” is defined as “any assault or battery, or stalking as prohibited in Section 646.9 of the Penal Code, but shall not include lawful acts of self-defense or defense of others.” (§ 527.6, subd. (b)(7).)

“ ‘Credible threat of violence’ ” is defined as “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.” (§ 527.6, subd. (b)(2), italics and boldface added.)

“ ‘Course of conduct’ ” means 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. . . .” (§ 527.6, subd. (b)(1).)

Yonan insists the trial court failed to understand that a single incident of “unlawful violence” or a single threat of violence can be enough to support a CRO, pointing to observations the court made during closing argument. For example, just prior to arguments, the court stated: “You bear the burden of proof as you brought the petition, [counsel]. And I believe on the record, as stated, all the evidence has been submitted. You have to prove, in order to get a restraining order, that the Respondent––or that [Yonan] suffered harassment and that [Eissa] engaged in the course of conduct that was a pattern of conduct composed of a series of acts over a period of time, heeding [sic] a continuity of purpose, making a credible threat of violence or harassment.” Counsel then pointed out that “unlawful violence,” such as a battery or assault, or a credible threat of violence can support the issuance of a CRO. She further claimed a “battery” had been committed on her client and there was a “likelihood of repetition” as long as her client continued to reside at the church.

The trial court did not disagree with counsel’s recitation of the statutory law. Rather, it found Yonan had not carried his burden to prove, by clear and convincing evidence, that Eissa had targeted him for harassment. In fact, after the court ruled, Yonan’s attorney asked: “So, your Honor, your ruling is based on the fact that the statute says there must have been battery and course of conduct?” The court responded: “No. My ruling is that I don’t believe you have met your burden of proof under the statute CCP 527.6.”

Accordingly, Yonan has failed to affirmatively show that the trial court failed to follow the applicable legal standard. (See Harris, supra, 248 Cal.App.4th at p. 500 [“Absent indication to the contrary, we must presume that the trial court followed the applicable law.”].)

Substantial Evidence

While a single act of “unlawful violence” may be sufficient to support a CRO, such an act, in and of itself, does not entitle a plaintiff to a CRO. In addition to finding that a defendant has engaged in “harassment,” a trial court must also find reasonable probability of future harm absent an injunction. (Harris, supra, 248 Cal.App.4th at p. 499 [“An injunction restraining future conduct is only authorized when it appears that harassment is likely to recur in the future.”]; Russell v. Douvan (2003) 112 Cal.App.4th 399, 402–403 (Russell).) “[T]he determination of whether it is reasonably probable an unlawful act will be repeated in the future rests upon the nature of the unlawful violent act evaluated in the light of the relevant surrounding circumstances of its commission and whether precipitating circumstances continue to exist so as to establish the likelihood of future harm.” (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 335, fn. 9 (Scripps Health); see Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1250 [“ ‘context is critical in a true threats case and history can give meaning to the medium’ ”].)

There was ample basis for the trial court to find here that the brief, minor battery Eissa committed by grabbing Yonan’s elbow did not support the issuance of a CRO. Yonan had interacted with Eissa only once before, very briefly, nine months earlier, and that exchange was cordial. The incident in question commenced cordially and was brief. The asserted battery was exceedingly brief and minor. Eissa quickly let go of Yonan’s arm, the conversation returned to an even keel, and the two continued to converse for another few minutes. Yonan did not call the police to report the incident. And Yonan presented no evidence that Eissa has any intent to accost him in the future.

Contrary to Yonan’s assertion, the instant case is markedly different from

Harris, in which the Court of Appeal upheld the issuance of a restraining order, concluding the trial court’s findings underlying the order were supported by substantial evidence. (Harris, supra, 248 Cal.App.4th at p. 487.) Harris involved five separate incidents of aggression by a middle-school student’s parent against the school’s principal. (Id. at pp. 488–494.) Additionally, there was evidence of a “tense history” between the parent and principal, including a “contentious e-mail exchange.” (Id. at p. 488.) There was also evidence of probable future harm, given that the parent routinely picked up his son from school. (Id. at pp. 488, 501.) The record here contains no similar evidence.

Rather, this case is much more akin to Russell, in which the appellate court reversed the grant of a restraining order on the ground there was no substantial evidence of a threat of future harm following a single incident of harassment by an attorney who had forcibly grabbed opposing counsel by the arm after a hearing. (Russell, supra, 112 Cal.App.4th at pp. 400–401.) While Yonan claims Russell is distinguishable because the aggressor in that case voluntarily ceased his violent conduct, and thus the possibility of a recurrence was unlikely, the record in the instant case is similar. Eissa quickly and voluntarily let go of Yonan’s arm as Eissa’s friend verbally soothed the situation. There also was no evidence in Russell that the parties regularly did business with each other and thus were likely to interact in the future. (Ibid.) Similarly, here, there was no evidence Yonan and Eissa had regularly interacted in the past or were likely to do so in the future. (See Scripps Health, supra, 72 Cal.App.4th at p. 336 [no evidence son of patient who got into altercation with hospital employee was likely to commit further acts of violence against employee].)

In short, the trial court found that Yonan happened to be in the wrong place at the wrong time and momentarily crossed paths with someone who was angry with the priest about an internal church dispute and there was no reason to believe any incident with Yonan was likely to happen again. As we have recounted, the record fully supports the lower court’s assessment of the case.

Disposition

The judgment is affirmed. Respondent to recover costs on appeal.

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Banke, J.

We concur:

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Margulies, Acting P.J.

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Dondero, J.

A152098, Yonan v. Essia