Melnikov v. Harrington CA1/4 ( 2022 )


Menu:
  • Filed 8/1/22 Melnikov v. Harrington CA1/4
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FOUR
    NOLEEN MELNIKOV,
    Plaintiff and Appellant,                                      A163557
    v.                                          (San Francisco County Super. Ct.
    TIMOTHY HARRINGTON,                                                   No. CCH21583672)
    Defendant and Respondent.
    Noleen Melnikov appeals the denial of her petition for a civil
    harassment restraining order against her former professor Timothy
    Harrington. Melnikov’s petition alleges a multi-year cyberstalking campaign
    against her by Harrington. Omitted from these allegations, however, was the
    fact that a still-current restraining order had been issued against Melnikov
    for harassing Harrington. Upon discovering this omission, the trial court
    denied relief, finding that Melnikov deliberately misled the court and lacked
    credibility.
    We will affirm. The trial court acted well within its discretion in
    rejecting her petition for lack of credibility.
    1
    I. BACKGROUND
    The only undisputed fact in this matter appears to be that Harrington
    was Melnikov’s graphic design professor for several courses at San Francisco
    Community College (the College).
    A. Melnikov’s Petition
    Melnikov’s version of the events begins in March 2018. She alleges in
    her Request for Civil Harassment Restraining Orders (the petition) that she
    then discovered “unusual activity on [her] Facebook account,” “Gmail
    account,” and “Facebook Messenger [account].” This unusual activity soon
    “bec[ame] so routine” that “[her] husband” noticed it as well. She hired a
    “professional to perform a forensic investigation to check [her] accounts for
    hacking.” The result of the investigation, according to the petition, was
    discovery of “IP addresses [associated with] the home address of Respondent
    in San Francisco.” Then, “[i]n August 2019 his conduct evolved when
    [Harrington] began to manipulate [her] work and school files.” Melnikov
    confesses she “ha[d] no idea why he chose [her] to attack and follow when
    [their] relationship was strictly professor and student.” “In fact,” the petition
    further alleges, “[Harrington] was a good professor.” She spent thousands of
    dollars on the forensic expert, and felt “threatened, abused and harassed” by
    this conduct.
    The closest Melnikov comes to disclosing the restraining order
    currently in force against her is the following. She discloses that she suffered
    “damage[] [to her] reputation at school,” “when [Harrington] filed his
    restraining order which stated [she] was copying him online.” But, the
    petition alleges, “[she] ha[s] never done so nor do[es] [she] have any idea how
    that is done.” “[She] simply had no mental or emotional capacity to fight
    back when [Harrington] filed that TRO against [her] and due to missing
    court, the RO was issued.”
    2
    The petition goes on to allege that Harrington’s harassment continues
    at least through January 2021 when, on her new work laptop, she noticed
    “things are still being clicked on as notifications that [she] did not personally
    click.”
    Her petition also included a supporting declaration from her husband,
    Sergey Melnikov, which declared he had noticed Harrington engaging in
    stalking behavior both at school and school-organized outings.
    The final exhibit to her petition was submitted by Digital Forensics
    Corporation, a private forensics firm. The exhibit consists of a declaration
    from an employee, Sean Quellos, and a report. The declaration summarizes
    the conclusion of their investigation as follows: “[O]ur evaluation of
    [Melnikov’s] devices and accounts led our investigation to discover a
    matching IP address indicated by logging into a Facebook account owned by
    [Melnikov], and an email received by the client from tharring@ccsf.edu
    ‘Timothy Harrington’. The IP address 147.144.3.239 is registered to City
    College of San Francisco.”
    B. Harrington’s Response
    Harrington filed a form response to Melnikov’s petition (the response),
    entitled “Response to Request for Harassment Restraining Orders,” in which
    he attached several exhibits, including: a 12-page, single-spaced narrative
    description of his harassment by Melnikov; his currently active restraining
    order against Melnikov for her harassment of him (filed January 28, 2019); a
    report issued by the College’s Title IX Department explaining its conclusion
    that Melnikov’s stalking behavior amounted to “sexual harassment,
    cyber-harassment and stalking” (itself 10 pages and single-spaced); a “Notice
    of Code of Student Conduct Violation” issued by the College to Melnikov;
    Harrington’s complaint to the College (itself accompanied by 13 exhibits); and
    a declaration by a police officer from the San Mateo Police Department.
    3
    According to the above documents, Melnikov’s harassment of
    Harrington was provoked by her disappointment in receiving a “B” rather
    than an “A” for her final class grade. She was a student in four of his classes
    between Fall 2017 and Fall 2018. In December 2018, Harrington’s faculty
    email address began receiving spam from sexually explicit websites. After
    complaining about her grade in January 2019, the spam traffic intensified,
    and he received emails implying that someone created fraudulent accounts in
    his name to rent expensive vehicles. Then Melnikov began sending him
    online messages through a Web site portal, linked to pictures of herself and
    her name, making sexual comments and demands that he change her grade.
    That same month, Harrington received many messages on his home
    answering machine, which he transcribed for purposes of inclusion in this
    record. We have received this list, and it includes many sexually explicit
    comments and similar sounds.
    Harrington thereafter filed a complaint with the College alleging she
    had violated the student conduct code. He escalated his administrative relief
    action soon thereafter with a subsequent “Unlawful Discrimination” filing
    with the Title IX department, detailing Melnikov’s campaign of
    cyberstalking, and included a new allegation that Melnikov set up a fake
    Facebook account in his name. The College investigated for four months, and
    its IT Department reviewed the emails to Harrington’s account. It was able
    to correlate the San Mateo IP address from the various email list requests
    with the IP address used by Melnikov to log into her email account,
    suggesting that Melnikov was the source of the online harassment
    Harrington was experiencing. In response to the investigation, Melnikov
    first asserted her version of events that she was the victim of a cyberstalking
    campaign conducted by Harrington. The College IT Department concluded
    4
    Melnikov’s excuse was not technologically plausible, and the College
    concluded that none of her allegations were credible. Among other
    conclusions, the College found Melnikov displayed “a propensity for
    dishonesty.” For example, she included a falsified copy of her cell phone bill
    which deleted a call to Harrington’s home phone number. The investigation
    concluded that Melnikov “has committed several serious and egregious
    violations of Board Policy, the Code of Student Conduct, as well as federal
    and state law, including potential violation of a court order,” and on that
    basis recommends that “serious disciplinary action is warranted.” Melnikov
    was then expelled from the College.
    A declaration from the San Mateo police department, attached to the
    complaint, showed that Melnikov continued to harass Harrington through
    July 2019. Sergeant Manion was tasked with investigating a report
    Melnikov filed with his department claiming that someone was accessing her
    online accounts and deleting her emails. She believed Harrington was
    responsible. He summarized the result of his investigation as follows:
    “Based on my review of the evidence, I concluded that there was no evidence
    to support [Melnikov’s] claims and that [Melnikov] provided false information
    to Mr. Dean [Chief of Public Safety for the College] regarding [Harrington].”
    C. Trial Court Proceedings
    On August 4, 2021, the trial court held a hearing on the petition in
    which both parties were present and represented by counsel. The court
    stated that after it reviewed Harrington’s response, it would deny the
    petition, finding Melnikov had used the judicial system as a tool to further
    her harassment of Harrington:
    “Petitioner, I want you to know that the Court is shocked by your
    behavior. You misled the Court. [¶] And counsel, I hope you’re listening,
    too.
    5
    [¶] . . . [¶]
    “There have been investigations in this case that were not brought to
    the attention of the Court. I was not told about the fact that there was an
    investigation that found that the Respondent had been harassed by the
    Petitioner. I was not made aware that there had been investigations in
    another county that had found that the Respondent’s stories were fabricated,
    not supported by any evidence. And I find that this Court was used by the
    Petitioner.
    [¶] . . . [¶]
    “I feel that this Court was used to harass the Respondent. Clear
    evidence. All of the evidence that was missing is the evidence against your
    client. And I am shocked that that would happen in this courtroom.”
    In so ruling, it admitted all of the response, including its exhibits,
    without objection by Melnikov. The court also found Melnikov not credible,
    stating: “I don’t believe any of it. . . . I don’t believe it.” The court concluded
    the hearing by tentatively ruling it would grant a properly noticed motion for
    attorney fees on the basis that, “I believe the whole thing was fabricated.”
    Melnikov timely appealed.
    II. DISCUSSION
    A. Standards of Review
    We review a trial court’s ruling on a request for a restraining order for
    abuse of discretion. (Cohen v. Board of Supervisors (1985) 
    40 Cal.3d 277
    ,
    286.) We review a trial court’s factual findings, such as a finding of witness
    credibility, for substantial evidence. (Shapiro v. San Diego City Council
    (2002) 
    96 Cal.App.4th 904
    , 912.) Under this deferential standard of review,
    we do not reweigh a trial court’s credibility findings. “An adverse factual
    finding is a poor platform upon which to predicate reversible error.
    [Citation.] ‘We sit as a court [of law] to review errors of law and not [claimed]
    6
    errors of fact.’ ” (In re Marriage of Boswell (2014) 
    225 Cal.App.4th 1172
    ,
    1175.) “[T]he rule of appellate deference to trial court credibility
    determinations is the same for written declarations as for oral testimony
    (even though, with written declarations, witness demeanor is not observed).”
    (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter
    Group 2021), ¶ 8:42.1.)
    B. The Trial Court Did Not Err
    With no appreciation for the deference we must give to trial court fact-
    finding, Melnikov argues that the trial court erred in its finding that she had
    not disclosed Harrington’s restraining order against her. She also argues
    that to the extent the trial court wanted more information about this other
    case against her, it “failed to look up the case,” and that is not her fault. She
    then insists that she was the victim of Harrington’s harassment.
    We decline to substitute Melnikov’s version of events for Harrington’s
    on appeal. The judgment below is presumed correct (see Jameson v. Desta
    (2018) 
    5 Cal.5th 594
    , 608–609), and all Melnikov does in an effort to
    overcome the presumption is invite us to disregard the governing standard of
    review. That is insufficient. To resolve this appeal, we must first examine
    whether substantial evidence supports the trial court’s finding that Melnikov
    lacked credibility. We must then assess whether, given that adverse finding,
    the trial court acted within its discretion in denying her petition.
    We conclude that ample—not merely substantial—evidence supports
    the trial court’s factual finding that Melnikov lacked credibility. Although
    she disclosed that Harrington “filed that TRO against me and due to missing
    court, the RO was issued,” she did not disclose that she was under the force of
    this order at the very time she filed to protect herself from Harrington. The
    effect of her failure to do so led the court to set her application for hearing,
    and, in so doing, possibly become complicit in Melnikov’s further harassment
    7
    of Harrington, stating, “I feel that this Court was used to harass the
    Respondent.” (Italics added.) As a result, substantial evidence supports the
    court’s adverse credibility finding for Melnikov; and given no evidence then
    remains to support the petition, but instead only evidence against the
    veracity of the petition remained before the court, the court acted within its
    discretion in declining to issue a restraining order against Harrington.
    III. DISPOSITION
    The judgment is affirmed. Costs are awarded to Harrington.
    8
    _________________________
    Streeter, J.
    WE CONCUR:
    _________________________
    Pollak, P.J.
    _________________________
    Brown, J.
    Melnikov v. Harrington A163557
    9
    

Document Info

Docket Number: A163557

Filed Date: 8/1/2022

Precedential Status: Non-Precedential

Modified Date: 8/1/2022