Holland v. Majumdar CA1/1 ( 2015 )

Filed 12/22/15 Holland v. Majumdar 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
JENNIFER ANN HOLLAND,
Plaintiff and Respondent,
A144647
v.
SRIPARNA MAJUMDAR, (San Francisco County
Super. Ct. No. CCH15576536)
Defendant and Appellant.
Appellant Sriparna Majumdar challenges a civil harassment restraining order
issued against her on the grounds that the order is not supported by substantial evidence,
is overbroad, and violates her First Amendment rights. We are not persuaded by these
arguments, and we affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
The record of the trial court proceedings is minimal, but we can discern the
following background: On January 12, 2015, respondent Jennifer Holland, a dance
instructor, petitioned the trial court to issue a civil harassment restraining order against
Majumdar. In seeking the restraining order, she alleged that “[Majumdar] comes out to
the venues where I teach classes. [Majumdar] appears to be obsessed with my personal
life, talking to others and spreading false information about me. [Majumdar] has sent my
friend, Ken W[.], 1,217 emails mentioning me specifically. Currently, these emails are
sent by [Majumdar] multiple times a day.” Holland also alleged, “I fear for my safety. I
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want my peace of mind back. I am 5 months pregnant, and I am concerned about my and
my baby’s health. This person ([Majumdar]) has increasingly and repeatedly speculated
about my unborn child. She is obsessed. I must protect myself and my unborn child.”
Copies of five e-mails referencing Holland that Majumdar apparently sent to Holland’s
friend were attached to the request. The day after the request was filed, the trial court
entered a temporary restraining order against Majumdar.
Majumdar filed an opposition to a permanent restraining order, and along with her
opposition she submitted a signed declaration. In it, Majumdar attested that her
relationship with Holland’s friend “makes [Holland] upset and furious,” and she attested
that her “only problem with [Holland] is the fact that [Holland] has burglarized my
residence while I was away from the U.S.” and is “pursuing this restraining order as a
way of cover-up for her criminal actions in burglarizing my residence.” Majumdar also
stated that she had not engaged in or threatened “any unlawful physical violence.”
A hearing was held on February 4, 2015, and the record reflects that Majumdar
introduced into evidence two police reports, and both parties testified. But no transcript
on the hearing appears in the appellate record, and the record is silent on whether other
evidence was considered. At the conclusion of the hearing, the trial court issued an order
restraining Majumdar for a period of one year from directly or indirectly harassing,
contacting, or trying to obtain Holland’s location by means that included, but were not
limited to, specified methods including “[S]kype.” It also directed Majumdar to stay at
least 10 yards away from Holland, Holland’s home, Holland’s job or workplace, and the
child-care facility of Holland’s children.
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II.
DISCUSSION
A. We Must Presume that the Restraining Order Is Supported by Substantial
Evidence Because the Appellate Record Does Not Include a Reporter’s
Transcript.
Code of Civil Procedure section 527.61 provides a mechanism for victims of
harassment to obtain an order enjoining further harassment. The section was enacted to
protect the “ ‘right to pursue safety, happiness and privacy as guaranteed by the
California Constitution.’ [Citations.]” (Brekke v. Wills (2005) 125 Cal. App. 4th 1400,
1412.) Under the statute, harassment 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).) A 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,
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.” (§ 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).) If
the court finds “by clear and convincing evidence that unlawful harassment exists,” it
“shall” issue an injunction. (§ 527.6, subd. (i).)
In reviewing a trial court’s ruling on a civil harassment restraining order, we
generally resolve all factual conflicts and questions of credibility in favor of the
prevailing party, and indulge all reasonable inferences to uphold the judgment of the trial
court, so long as it is supported by substantial evidence—evidence that is reasonable,
credible, and of solid value. (Schild v. Rubin (1991) 232 Cal. App. 3d 755, 762; see also
Bookout v. Nielsen (2007) 155 Cal. App. 4th 1131, 1137.) An appellant’s burden is not to
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All subsequent statutory references are to the Code of Civil Procedure.
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demonstrate the existence of evidence supporting his or her case, but “ ‘to demonstrate
that there is no substantial evidence to support the challenged findings.’ ” (Foreman &
Clark Corp. v. Fallon (1971) 3 Cal. 3d 875, 881; see also Huong Que, Inc. v. Luu (2007)
150 Cal. App. 4th 400, 409 [it is appellant’s burden to identify and establish deficiencies in
the evidence].) “ ‘A party who challenges the sufficiency of the evidence to support a
particular finding must summarize the evidence on that point, favorable and unfavorable,
and show how and why it is insufficient. [Citation.]’ [Citation.] ‘[W]hen an appellant
urges the insufficiency of the evidence to support the findings it is [the appellant’s] duty
to set forth a fair and adequate statement of the evidence which is claimed to be
insufficient. [The appellant] cannot shift this burden onto respondent, nor is a reviewing
court required to undertake an independent examination of the record when appellant has
shirked his [or her] responsibility in this respect.’ [Citation.]” (Ibid.)
Majumdar has not and cannot sustain her appellate burden. When an appellant
elects to proceed on a clerk’s transcript only, as Majumdar elected here, “every
presumption is in favor of the validity of the judgment and all facts consistent with its
validity will be presumed to have existed. The sufficiency of the evidence is not open to
review. The trial court’s findings of fact and conclusions of law are presumed to be
supported by substantial evidence and are binding on the appellate court, unless
reversible error appears on the record.” (Bond v. Pulsar Video Productions (1996) 50
Cal. App. 4th 918, 924; see also Cal. Rules of Court, rule 8.163.) “Where no reporter’s
transcript has been provided and no error is apparent on the face of the existing appellate
record, the judgment must be conclusively presumed correct as to all evidentiary
matters.” (Estate of Fain (1999) 75 Cal. App. 4th 973, 992.) “To put it another way, it is
presumed that the unreported trial testimony would demonstrate the absence of error.
[Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies
no reporter’s transcript will be precluded from raising an argument as to the sufficiency
of the evidence. [Citations.]” (Ibid.)
These principles resolve the issue here. We cannot conclude that the restraining
order lacks substantial evidence because we have no transcript of the hearing and do not
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know how the parties testified or what other evidence may have been received and
considered by the trial court in issuing the order.
B. The Restraining Order Is Not Overbroad.
We also reject Majumdar’s argument that the restraining order is overbroad
because it prohibits the “use of ‘Skype.’ ” We do so for several reasons.
First, we do not read the restraining order as being nearly as expansive as
Majumdar suggests. The order simply prohibits Majumdar from directly or indirectly
harassing, contacting, or trying to learn the location of Holland through a variety of
means, including Skype. Contrary to Majumdar’s supposition, the order does not
prohibit Majumdar from using Skype entirely; instead, it only prohibits her from using it
to harass, contact, or learn the location of Holland in particular.
Second, Majumdar’s argument about Skype is inconsistent with her acceptance of
another term of the order. This other term enjoins Majumdar from harassing Holland by
“telephone, in writing, by public or private mail, by interoffice mail, by e-mail, by text
message, by fax, or by other electronic means.” Majumdar fails to explain how the
prohibition on using Skype is not encompassed within this other term.
Finally, just as Majumdar’s failure to procure a reporter’s transcript of the hearing
leaves us with an insufficient record to conclude that the order was not supported by
substantial evidence, it also leaves us with an insufficient record to establish that the
injunction is overbroad. (Construction Financial v. Perlite Plastering Co. (1997) 53
Cal. App. 4th 170, 179.) For all we know, evidence about Majumdar’s use of Skype was
introduced and considered at the hearing.
We conclude that the order is sufficiently narrow.
C. The Restraining Order Does Not Violate Majumdar’s First Amendment Rights.
Without citing any authority, Majumdar lastly argues that the restraining order
violates her First Amendment rights because it prevents her “from going to dance venues
if [Holland] happens to be there,” requires her “to monitor all the locations [of Holland’s]
dance venues,” and may cause her to “violate the restraining order without any intention
of doing so.” The argument is specious. We infer from the record that Holland was
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attempting to prevent Majumdar from conducting just this sort of research on her
whereabouts, and Majumdar fails to explain why she cannot stay 10 yards away from
Holland and refrain from harassment.
To the extent the order prohibits Majumdar’s speech, it does not prohibit any
constitutionally protected speech. Not all speech is constitutionally protected. (Flatley v.
Mauro (2006) 39 Cal. 4th 299, 313.) “[S]peech 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.) 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.) The restraining order
against Majumdar was entered only after the trial court determined that she harassed
Holland. It does not violate Majumdar’s First Amendment rights by prohibiting
continued harassment. (See also In re Marriage of Evilsizor & Sweeney (2015) 237
Cal. App. 4th 1416, 1429-1430 [injunction prohibiting repetition of expression that has
been judicially determined to be unlawful does not constitute prohibited prior restraint
that violates First Amendment].)
III.
DISPOSITION
The order is affirmed. Holland is awarded costs, if any, on appeal.
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_________________________
Humes, P.J.
We concur:
_________________________
Dondero, J.
_________________________
Banke, J.
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