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Court of Appeal, Second District, Division 3, California.
M.G., Plaintiff and Respondent,
v.
R.D., Defendant and Appellant.

No. B159974.
(Los Angeles County Super. Ct. No. BS074690).
May 16, 2003.
As Modified on Denial of Rehearing June 4, 2003.

Background: Petitioner moved for injunction prohibiting harassment by petitioner's ex-boyfriend. The Superior Court, Los Angeles County, No. BS074690,John P. Shook, J., granted the petition. The ex-boyfriend appealed.

Holdings: The Court of Appeal, Klein, P.J., held that:
(1) there was substantial evidence that petitioner's ex-boyfriend was harassing petitioner;
(2) there was substantial evidence that actions of petitioner's ex-boyfriend caused petitioner substantial emotional distress; and
(3) injunction did not implicate ex-boyfriends's rights of free speech and assembly.
 
Affirmed.

West Headnotes

[1] Protection of Endangered Persons 315P 62

315P Protection of Endangered Persons
      315PII Security or Order for Peace or Protection
           315PII(C) Proceedings
                315Pk58 Evidence
                     315Pk62 k. Weight and Sufficiency. Most Cited Cases
      (Formerly 62k20 Breach of the Peace)

There was substantial evidence that petitioner's ex-boyfriend was harassing petitioner, to support granting of petitioner's injunction; expert witness testified that 14 e-mails, which threatened to send copies of intimate videos to petitioner's friends, originated from ex-boyfriend's computer, and it was province of trier of fact to accept or reject ex-boyfriend's claim that various people had access to his computer. West's Ann.Cal.C.C.P. § 527.6.

[2] Protection of Endangered Persons 315P 41

315P Protection of Endangered Persons
      315PII Security or Order for Peace or Protection
           315PII(B) Grounds in General
                315Pk41 k. Fear and Imminence of Harm in General; Threats. Most Cited Cases
      (Formerly 62k20 Breach of the Peace)

There was substantial evidence that actions of male petitioner's ex-boyfriend caused petitioner substantial emotional distress, to support granting of petitioner's injunction; petitioner testified that he was hurt by ex-boyfriend's threats to discredit petitioner by sending e-mails to petitioner's friends and to the Marine Corps, that petitioner felt unsafe at home and had to move in with friends, and that petitioner did not know what his ex-boyfriend might do. West's Ann.Cal.C.C.P. § 527.6.

[3] Constitutional Law 92 1430

92 Constitutional Law
      92XIV Right of Assembly
           92k1430 k. In General. Most Cited Cases
      (Formerly 92k91)

 Constitutional Law 92 1827

92 Constitutional Law
      92XVIII Freedom of Speech, Expression, and Press
           92XVIII(I) Harassment and Threats
                92k1826 Harassment
                     92k1827 k. In General. Most Cited Cases
      (Formerly 92k90.1(1))

 Protection of Endangered Persons 315P 74

315P Protection of Endangered Persons
      315PII Security or Order for Peace or Protection
           315PII(D) Protection Orders in General
                315Pk72 Nature and Scope of Relief
                     315Pk74 k. Anti-Harassment Orders in General. Most Cited Cases
      (Formerly 62k16 Breach of the Peace)

 Protection of Endangered Persons 315P 76

315P Protection of Endangered Persons
      315PII Security or Order for Peace or Protection
           315PII(D) Protection Orders in General
                315Pk72 Nature and Scope of Relief
                     315Pk76 k. Exclusion and “Stay Away” Orders; Buffer Zones. Most Cited Cases
      (Formerly 62k16 Breach of the Peace)

Injunction ordering petitioner's ex-boyfriend to refrain from harassing petitioner and to stay at least 100 yards away from certain specified locations did not implicate ex-boyfriends's rights of free speech and assembly. U.S.C.A. Const. Amend. 1.

APPEAL from an order of the Superior Court of Los Angeles County, John P. Shook, Judge. Affirmed.Jon D. Cantor for Defendant and Appellant.

Crane Stephen Landis for Plaintiff and Respondent.

KLEIN, P.J.
*1 Defendant and appellant R.D. (defendant) appeals an order granting a petition by plaintiff and respondent M.G. (plaintiff) for an injunction prohibiting harassment. (Code Civ. Proc., § 527.6.) FN1FN2

FN1. The circumstances herein make this an appropriate case for the protective nondisclosure of identity.

FN2. An order granting injunctive relief is appealable. (Code Civ. Proc., § 904.1, subd. (a)(6).)

All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.

The essential issue presented is the sufficiency of the evidence to support the claim of harassment.

We conclude the trial court's decision is supported by substantial evidence and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff and defendant are ex-boyfriends. Plaintiff serves in the Marine Corps and defendant is an L.A.P.D. officer.

On March 12, 2002, plaintiff filed a petition for an injunction prohibiting harassment and applied for a temporary restraining order. Plaintiff alleged in the petition, inter alia: defendant tried to rape him; defendant sent him harassing e-mails; and defendant made Internet viewable clips of two intimate videos they had made and dispensed this material to friends, family, plaintiff's colleagues at the university where he works, and to plaintiff's Marine Reserve unit.

On March 12, 2002, the trial court issued an order to show cause.

On May 10, 2002, the matter came on for trial. The witnesses included plaintiff and defendant. One of the chief issues at trial was whether defendant was the author of various offending e-mails received by plaintiff.

After hearing the matter, the trial court ruled as follows: “I really have no evidence or insufficient evidence to show the content of any videos. [¶] But I think that in looking at the various exhibits that are attached to the petition, the copies of the e-mails and, in particular the one that was previously marked as Exhibit 6 which bears the date of Tuesday, July the 3rd of 2001 sent at 5:30 a.m., it does seem to be a kind of threatening communication here. This came from ... from [defendant's] computer. The court so finds Exhibit 1 and 2 are from the same computer, and this was traced back-it could be traced back to-again, to the computer, to the I.P. address utilized by [defendant]. [¶] It has language that says, and I quote directly from the document that: [¶] ‘Hey, look what I found. Remember this? I must have about three dozen that I converted to digital quite some time ago, although the others have much better quality. Thought you might like it.... [¶] Then it goes on: ‘I have all of the e-mail addresses of all of your friends.’ [¶] And then it goes down to a couple of veiled threats about sending them out to all of the petitioner's friends. [¶] That is kind of the tenure [sic ] of the thing. [¶] Again, that is what the court is directing its attention to, and that is what the court is considering to be ... the allegations of harassment. [¶] Based on that, again, the court is not looking at and has not found any sexually explicit content of any videos. I'm going to grant the petition of [plaintiff] and order that [defendant] will be restrained....”

*2 The trial court then issued a Judicial Council form order prohibiting harassment as follows: “IT IS ORDERED THAT DEFENDANT [¶] a. shall not contact, molest, harass, attack, strike, threaten, sexually assault, batter, telephone, send any messages to, follow, stalk, destroy the personal property of, disturb the peace of, keep under surveillance, or block movements in public places or thoroughfares of [¶] the person seeking the order ... [¶] b. shall stay at least ... 100 yards away from the following protected persons and places: [¶] (1) Person seeking the order [¶] ... [¶] (3) Residence of person seeking the order [¶] (4) Place of work of person seeking the order [¶] ... [¶] (6) Other (specify): US MARINE CORP TROOP OF PERSON SEEKING ORDER.”

Defendant filed a timely notice of appeal from the order.

CONTENTIONS
Defendant contends: plaintiff did not sustain his burden of proof of establishing by clear and convincing evidence that defendant was harassing him, or that plaintiff suffered severe emotional distress as a direct and proximate result of defendant's actions; and the injunction is overly broad insofar as it covers constitutionally protected free speech and assembly.

DISCUSSION
1. No merit to defendant's challenge to the sufficiency of the evidence.

a. Statutory scheme.

The controlling statute, section 527.6, provides in relevant part at subdivision (b): “For the purposes of this section, ‘harassment’ is 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 such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff.”

If the trial court finds “by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment.” (§ 527.6, subd. (d).)

b. Defendant's argument.
Defendant contends plaintiff failed to meet his burden to establish by clear and convincing evidence that defendant was harassing him and that plaintiff suffered substantial emotional distress as a result of defendant's actions.

c. Standard of appellate review.
Irrespective of the clear and convincing evidence standard which applied below, we review the trial court's decision under the substantial evidence standard. (Romo v. Ford Motor Co. (2002) 99 Cal.App.4th 1115, 1139, 122 Cal.Rptr.2d 139; In re Marriage of Murray (2002) 101 Cal.App.4th 581, 601-604, 124 Cal.Rptr.2d 342.)

d. Substantial evidence supports trial court's determination that defendant was harassing plaintiff.
[1] The evidence at trial established that defendant engaged in a “knowing and willful course of conduct directed at a specific person that seriously alarm[ed], annoy[ed], or harasse[d] the person, and that serve[d] no legitimate purpose.” (§ 527.6, subd. (b).) FN3

FN3. The statute defines “ ‘[c]ourse of conduct’ “ as “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, fax, or computer e-mail.” (§ 527.6, subd. (b)(3).)

*3 John L., a co-owner of two dot.com companies who has some expertise with computers, testified that he had examined 14 e-mail messages from defendant to plaintiff, and that based on their Internet provider address, all 14 messages originated from the same computer, from defendant's computer.

With respect to the content of those e-mails, a message dated July 3, 2001 is illustrative. Defendant wrote: “Hey, look what I found. Remember this? I must have made about 3-dozen that I converted to digital quite sometime ago.... The problem is I don't know what to do with [it] now[.] [¶] ... I ... have all of your friends' email addresses. Perhaps I will send them a copy or copies.... Or should I just post them on the net? ... [¶] ... How does it feel to be betrayed by someone you once love[d]?”

Defendant's position is that he did not author the e-mails in issue. Defendant testified his computer is not password protected, and that various people had access to his computer.

Because a reviewing court will not reweigh the evidence nor pass upon the credibility of witnesses, and the trier of fact is entitled to accept or reject all or any part of the testimony of any witness, defendant's arguments in this regard are unavailing. (Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 409, 27 Cal.Rptr.2d 457.) The trial court found the e-mails in question came from defendant's computer. The trial court also found there was no evidence that defendant actually prepared the e-mails. The logical import of that statement is that the trial court merely found no direct evidence that defendant authored the e-mails. However, there was abundant circumstantial evidence to that effect. Although defendant asserted his computer was not password protected and that various friends had access to his home computer, defendant did not specify who those persons were, nor did defendant explain how such persons had the intimate knowledge necessary to carry on this ongoing e-mail conversation with plaintiff. On this record, there is substantial evidence to support the trial court's determination that the e-mails originated from defendant's computer, and because there was no evidence that anyone else authored the e-mails, the trial court properly found that defendant engaged in a harassing course of conduct directed at plaintiff, so as to entitle plaintiff to injunctive relief.

e. Substantial evidence supports trial court's determination that defendants' actions caused plaintiff substantial emotional distress.
[2] Plaintiff testified he was hurt by defendant's threats to discredit him by sending these e-mails to his friends and to the Marine Corps. Also, he feared going about his business, felt unsafe at home and had to move in with friends. He did not fear defendant would shoot him, but he did not know what defendant might do.

In view of the above, we find substantial evidence that defendant's conduct caused plaintiff substantial emotional distress within the meaning of section 527.6.

2. No merit to defendant's constitutional argument.
[3] Defendant contends the injunction is overly broad insofar as it covers constitutionally protected free speech and/or assembly under the United States and California Constitutions. The argument is unavailing. The trial court's order simply enjoins defendant from harassing plaintiff and requires defendant to stay at least 100 yards away from certain specified locations. The order does not implicate defendant's rights of free speech and assembly.

DISPOSITION
The order is affirmed. As the prevailing party, plaintiff shall recover attorney fees pursuant to section 527.6, subdivision (i), as well as costs on appeal.

We concur: KITCHING and ALDRICH, JJ.

Cal.App. 2 Dist.,2003.
M.G. v. R.D.
Not Reported in Cal.Rptr.2d, 2003 WL 21129878 (Cal.App. 2 Dist.)

END OF DOCUMENT