Aaronson v. Heshmati CA2/8 ( 2020 )

Filed 11/24/20 Aaronson v. Heshmati CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
CYNTHIA AARONSON et al., B299230
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. SS026275)
v.
NADIA HESHMATI,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Kimberly Dotson, Temporary Judge. (Pursuant
to Cal. Const., art. VI, § 21.) Affirmed.
Nadia Heshmati, in pro. per., for Defendant and Appellant.
Aaronson & Aaronson and Arthur Aaronson for Plaintiffs
and Respondents.
_____________________________
Defendant Nadia Heshmati appeals an order renewing a
restraining order against her. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND1
Heshmati and Cynthia Aaronson are neighbors and have
had frequent disputes, often related to a fence and vegetation
separating their properties.2 In 2016, Cynthia filed a request for
a civil harassment restraining order seeking protection for her
and her husband, Arthur Aaronson, against Heshmati.3
In support of her request, Cynthia submitted evidence
showing Heshmati frequently sent the Aaronsons threatening
letters falsely accusing them of vandalizing and destroying her
property, shouted obscenities at them, left trash on their
property, and placed a note on Cynthia’s car containing an
obscenity. During one confrontation, Heshmati stated, “Why
don’t you fucking Jews go back to Woodland Hills. If Hitler had
done his job we would not be talking right now.”
On August 17, 2016, the trial court granted Cynthia’s
request and issued an order restraining Heshmati from harassing
and contacting the Aaronsons for three years. Heshmati
appealed the order, which we affirmed. (See Aaronson v.
1 We deferred ruling on Heshmati’s third motion to augment
the record, which she filed on September 28, 2020. We deny the
motion as untimely. (See Ct. App., Second Dist., Local Rules,
rule 2(b), Augmentation of record.)
2 We take some of the background facts from our prior
nonpublished opinion in this case, Aaronson v. Heshmati
(B279469) [nonpub. opn.].
3 We refer to the Aaronsons by their first names for the sake
of clarity.
2
Heshmati (B279469) [nonpub. opn.].)
About two months before the restraining order was set to
expire, Cynthia filed a request to renew the order for five years.
Cynthia claimed Heshmati continued to harass her and her
husband since the court issued the restraining order. In a
declaration attached to the request, Cynthia contended that,
among many other things, Heshmati shouted obscenities at her
and her husband on multiple occasions, sent them a threatening
email, blew leaves onto their property, flashed a light into their
house, and made false police reports about them.
Heshmati filed a response to the renewal request. Five
days later, she filed a motion to strike the request pursuant to
Code of Civil Procedure section 425.16 (the anti-SLAPP statute).
The hearing on the anti-SLAPP motion was set for October 7,
2019, nearly three months after the date set for the hearing on
Cynthia’s renewal request. Heshmati did not move to advance
the hearing on the anti-SLAPP motion.
The court considered the renewal request at a hearing on
July 10, 2019. Cynthia was represented by her husband, Arthur,
who is an attorney. Heshmati’s counsel urged the court to
disqualify Arthur as Cynthia’s counsel because he is a protected
person under the restraining order and might be called as a
witness. The court asked Heshmati’s counsel if he intended to
call Arthur as a witness, but counsel did not directly answer the
court’s question.
Counsel then requested the court continue the hearing to
the date of Heshmati’s anti-SLAPP motion hearing. He argued a
continuance was necessary because parties cannot be compelled
to give testimony before an anti-SLAPP motion is decided.
Counsel did not provide authority to support that assertion, and
3
the court denied the continuance request.
After hearing argument from the parties, the court
renewed the restraining order for three years. On October 7,
2019, the court heard and denied Heshmati’s anti-SLAPP motion.
Heshmati timely appealed the order renewing the
restraining order.4
DISCUSSION
Before turning to the merits of Heshmati’s arguments, we
must address her blatant disregard of the court rules requiring
her summary of facts be “limited to matters in the record” and
supported by citations to the record. (Cal. Rules of Court, rule
8.204(a)(1)(C), (a)(2)(C).) Heshmati’s opening brief contains a 17-
page recitation of the facts of the case, which she supports with a
total of five citations to the record. The vast majority of those
“facts,” moreover, are wholly irrelevant accusations against the
Aaronsons, which we will not repeat here for fear of lending any
credence to them. Although Heshmati is representing herself,
this is her third appeal before this court and she is no stranger to
the Rules of Court. There is simply no excuse for her failure to
follow them. (See Kobayashi v. Superior Court (2009) 175
Cal.App.4th 536, 543 [“[p]ro. per. litigants are held to the same
standards as attorneys”]; Nwosu v. Uba (2004) 122 Cal.App.4th
1229, 1246–1247 [“pro. per. litigants must follow correct rules of
procedure”].)
4 Heshmati separately appealed the court’s order denying
her anti-SLAPP motion, which is not presently before us.
Accordingly, we decline to consider her arguments concerning the
merits of the anti-SLAPP motion.
4
Turning to the merits, Heshmati identifies seven issues on
appeal, none of which has merit.5
Heshmati first contends Arthur was required to withdraw
as Cynthia’s attorney pursuant to rules of professional conduct
that state a lawyer “shall not act as advocate at a trial in which
the lawyer is likely to be a necessary witness . . . .” (Cal. Rules
Prof. Conduct, rule 3.7; ABA Model Rules Prof. Conduct, rule 3.7;
see Comden v. Superior Court (1978) 20 Cal.3d 906, 913.)
Contrary to Heshmati’s contentions, such rules were not
implicated here. Although Arthur was a protected person under
the restraining order, he was not likely to be a “necessary
witness.” Arthur did not submit a declaration in support of the
renewal request, and neither party indicated an intention to call
him as a witness at the hearing. Arthur, therefore, was not
required to withdraw as Cynthia’s attorney under the various
rules of professional conduct.
5 Heshmati’s briefs are littered with numerous other half-
baked arguments made in passing, in violation of the
requirement that a brief “[s]tate each point under a separate
heading or subheading summarizing the point, and support each
point by argument and, if possible, by citation of authority.”
(Cal. Rules of Court, rule 8.204(a)(1)(B).) We deem such
arguments forfeited on account of Heshmati’s failure to support
them with cogent analysis or citation to relevant legal authority.
(See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–
785 [“When an appellant fails to raise a point, or asserts it but
fails to support it with reasoned argument and citations to
authority, we treat the point as waived.”]; Loranger v. Jones
(2010) 184 Cal.App.4th 847, 858, fn. 9; People v. DeSantis (1992)
2 Cal.4th 1198, 1240, fn. 18.)
5
Heshmati next contends the restraining order is overbroad
and infringes upon her constitutional rights by prohibiting her
from filing appeals, petitioning the California Supreme Court,
and contacting the police. As best we can tell, Heshmati believes
the restraining order will prohibit such activities because
Cynthia identified them in her declaration attached to the
renewal request as examples of Heshmati’s harassment.
Heshmati, however, overlooks that the court did not issue a new
restraining order based on Cynthia’s declaration. Rather, it
simply renewed the original restraining order, which does not
categorically prohibit any of the above activities. The order
instead precludes Heshmati from having contact with the
Aaronsons and “harass[ing], molest[ing], attack[ing], strik[ing],
stalk[ing], threaten[ing], assault[ing] . . . , hit[ing], abus[ing],
destroy[ing] . . . personal property . . . , or disturb[ing] the peace
of” the Aaronsons. Such restrictions do not violate Heshmati’s
constitutional rights. (See Huntingdon Life Sciences, Inc. v. Stop
Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th
1228, 1250 [“In California, speech that constitutes ‘harassment’
within the meaning of [Code of Civil Procedure] section 527.6 is
not constitutionally protected, and the victim of the harassment
may obtain injunctive relief.”].)
Next, Heshmati argues the court should have granted a
continuance and delayed ruling on the renewal request until
after it had decided her anti-SLAPP motion. “The granting or
denying of a continuance is a matter within the court’s discretion,
which cannot be disturbed ‘on appeal except upon a clear showing
of an abuse of discretion.’ [Citation.]” (Foster v. Civil Service
Com. (1983) 142 Cal.App.3d 444, 448.) The hearing on
Heshmati’s anti-SLAPP motion was set for October 7, 2019,
6
which was almost two months after the restraining order was set
to expire. Granting a continuance, therefore, would have
frustrated the purpose of the renewal request, which was to
provide continuing protection for the Aaronsons. It also would
have frustrated the purpose of the anti-SLAPP statute, which is
to “resolve quickly and relatively inexpensively meritless
lawsuits that threaten free speech on matters of public interest.”
(Newport Harbor Ventures, LLC v. Morris Cerullo World
Evangelism (2018) 4 Cal.5th 637, 639.) Indeed, granting
Heshmati’s last-minute request for a continuance would have
only delayed resolution of the case, likely without any reduction
in litigation costs. If Heshmati wanted the court to decide her
anti-SLAPP motion before the renewal request, she should have
requested the court advance the anti-SLAPP hearing. The court
did not abuse its discretion in refusing to grant a continuance.
(See Thomas v. Quintero (2005) 126 Cal.App.4th 635, 649
[“we see no reason that the pendency of [an anti-SLAPP] motion
should interfere with the disposition of a [Code of Civil
Procedure] section 527.6 petition” for a restraining order].)
Heshmati next asserts the trial court failed to conduct a
full hearing, did not allow witnesses to testify or be cross-
examined, and denied her constitutional rights to “cross-examine
plaintiffs and to testify in her own defense.” The record belies
each of these claims. The transcript of the hearing shows the
court did not preclude Heshmati from offering evidence, calling
witnesses, testifying on her own behalf, or cross-examining
witnesses. Heshmati simply chose to submit on her counsel’s
argument and the evidence she had previously submitted in
response to the renewal request.
7
Heshmati further argues the trial court abused its
discretion by stating in its minute order that the restraining
order “will not expire on August 17, 2022.” It is clear this is a
typographical error and the minute order should state the
restraining order “will now expire on August 17, 2022.” The
court’s actual order renewing the restraining order provides as
much. The court did not abuse its discretion.
Heshmati additionally claims “section 527.8 [sic] does not
meet the burden of proof” and the injunction does not fit the
intent of the statute. It is not clear, and Heshmati does not
explain, what she means by this. To the extent she is arguing
there is insufficient evidence to support the court’s order, we
disagree.
Code of Civil Procedure section 527.6 grants a trial court
discretion to renew a restraining order, upon the request of a
party, for up to five additional years. (Code Civ. Proc., § 527.6,
subd. (j)(1).) The court should exercise that discretion only if it
“finds a reasonable probability that the defendant’s wrongful acts
would be repeated in the future.” (Cooper v. Bettinger (2015) 242
Cal.App.4th 77, 90.) The court may base such a finding solely on
the evidence submitted in support of the original request; the
protected party need not present new evidence or show further
harassment since the issuance of the original order, although
there is nothing preventing the party from doing so. (Id. at pp.
90–91; see Code Civ. Proc., § 527.6, subd. (j)(1).) We review the
factual findings underpinning a court’s renewal of a restraining
order for substantial evidence. (See Duronslet v. Kamps (2012)
203 Cal.App.4th 717, 725.)
8
Here, there is substantial evidence supporting the trial
court’s renewal of the restraining order. The trial court issued
the original restraining order based on evidence showing
Heshmati repeatedly yelled obscenities at the Aaronsons, sent
them a threatening communication, and left trash on their
property. In support of her renewal request, Cynthia submitted a
declaration in which she claimed Heshmati continued to engage
in similar behavior while the restraining order was in effect,
including yelling obscenities at the Aaronsons, sending them a
threatening email, and blowing leaves onto their property.
This provided sufficient evidence from which the court could find
a reasonable probability that Heshmati would repeat the
wrongful acts that were the basis of the original restraining
order.
Finally, Heshmati argues the trial judge was biased as
evidenced by the fact that the judge repeatedly ruled against her
and expressed familiarity with another case involving Heshmati
and the Aaronsons. Neither is sufficient to show bias. (See
Brown v. American Bicycle Group, LLC (2014) 224 Cal.App.4th
665, 674 [“The mere fact that the trial court issued rulings
adverse to [appellant] on several matters in this case, even
assuming one or more of those rulings were erroneous, does not
indicate an appearance of bias, much less demonstrate actual
bias.”].) We have also reviewed the transcripts of the relevant
hearings and find no evidence of bias or anything that would
raise doubts about the trial judge’s impartiality.
9
DISPOSITION
The order is affirmed. Respondents are awarded costs on
appeal.6
BIGELOW, P. J.
We concur:
GRIMES, J.
STRATTON, J.
6 In passing, the Aaronsons request we grant sanctions
against Heshmati for filing a frivolous appeal. They did not file a
separate motion for sanctions or provide a declaration supporting
the amount of monetary sanctions sought, as required under rule
8.276 of the California Rules of Court. Accordingly, we deny their
request. (Kajima Engineering and Construction, Inc. v. Pacific
Bell (2002) 103 Cal.App.4th 1397, 1402.)
10