Gabato v. Fung CA1/5 ( 2024 )

Filed 2/23/24 Gabato v. Fung CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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poses of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
LARA GABATO,
Plaintiff and Respondent, A165222/A166005
v.
DELFINA FUNG, (Contra Costa County Super. Ct.
Defendant and Appellant. No. N220199)
Contrary to popular wisdom, good fences do not always
make good neighbors. Here, finding a fence alone was not
enough, the court issued Lara Gabato’s request for a civil
harassment restraining order against her neighbor, appellant
Delfina Fung, and denied Fung’s application for a similar order
against Gabato. We affirm both orders and a subsequent order
awarding Gabato her attorney fees.
BACKGROUND
The parties have been neighbors since Gabato moved into
the house next door to Fung’s some 13 years ago. In March 2022,
Fung petitioned for a civil harassment restraining order, alleging
Gabato had assaulted and harassed her. Her supporting
statement described a March 17 episode in which Gabato threw
trash into her yard over the fence separating their properties,
screamed at her, and called her names. Fung told Gabato “that
she needs to trim her overgrown vegetation down to the fence
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level as I am not her slave and should not be expected to clean
her nuisance debris on an ongoing basis.” Gabato became
aggressive, screaming and throwing trash, leaves, tree branches,
paper towels, and weeds over the fence at Fung.
Fung also described other encounters with Gabato over the
years. According to her narrative, in August 2020 Gabato
assaulted and harassed her by throwing wet paper towels over
the fence at her and shouting curses and insults. Fung reported
this to the preschool where Gabato taught because “there is a
‘fitness’ issue/concern as to whether she should be entrusted to be
with young children.” Earlier, in 2016 and again in 2017, Gabato
sprayed her garden hose at and over the fence while Fung was in
her own yard, continuing even after Fung told her she was there.
Between 2017 and 2022, Gabato made three false police reports
about Fung harassing her and throwing trash onto her yard.
Gabato also damaged Fung’s fence by spraying water on it and
hung “various trash items” on her house across from Fung’s
kitchen window.
In response, Gabato cross-petitioned for a civil harassment
restraining order against Fung. Her petition recounted a
markedly different version of events, depicting a years-long
history of bizarre and intrusive harassment by Fung that
included threats, loud tirades, irrational accusations, and
vandalism. Fung would go outside to berate and scream at
Gabato over arbitrary and irrational matters; pointed security
cameras at Gabato’s home and yard; pointed bright lights into
her home that kept her family from sleeping; stalked her
workplace and sent her employer false accusations of unfitness;
threw trash into her yard in the middle of the night and early
morning; posted a notice declaring “ ‘[y]ou are trash’ ” in Chinese
on Gabato’s side of the fence; repeatedly contacted the police
department with unfounded, frivolous, and trivial complaints
against her; ripped down a sensor and fence lights on Gabato’s
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property; ripped up her landscaping and harassed her gardeners;
banged nails into the fence at odd hours or whenever Gabato and
her daughter were in their yard; yelled at Gabato’s daughter; and
accused Gabato of being a bad parent. Fung was “generally
unpleasant and a nuisance to the entire neighborhood,” had
harassed and attacked other neighbors without provocation, and
had driven some of them from the neighborhood.
Gabato’s supporting evidence included a four-page, single-
spaced letter Fung sent to her employer in 2020 accusing her of
having an “anger management issue,” suggesting she had lied
about her teaching credentials, and questioning her fitness as a
teacher; the employer’s response that Fung’s allegations were
unfounded; multiple emails from Gabato to her landlord
regarding Fung’s behavior; a video of Fung yelling at Gabato
across the fence; photos that showed her throwing trash into
Gabato’s yard; the “You are trash” notice posted on the fence; and
another neighbor’s letter describing similar interactions with
Fung over the years.
The petitions were heard together. The day before the
hearing, Fung submitted an amended petition adding allegations
about Gabato harassing her by, among other means, parking her
car where it partly blocked Fung’s driveway and her gardeners
blowing debris onto her yard and sidewalk. Fung also
complained that Gabato’s family members or visitors had given
her “mean and angry” looks, left their cars running idle in front
of her house, driven part way onto her driveway, and grew,
smoked, and dealt marijuana; moreover, Gabato slandered Fung
to other neighbors, who “ganged up against” her. According to
Fung, Gabato and her family had subjected her to hate crimes,
sexual harassment, and senior abuse. She appended numerous
exhibits, including packets of photos depicting what she described
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as Gabato’s harassment and vandalism;1 her multiple police
reports about Gabato; and her correspondence with Gabato’s
employer.
Both parties testified at the hearing and answered multiple
questions from the presiding commissioner. Gabato played a
video of Fung throwing debris over the fence, and another
neighbor testified about seeing Fung repeatedly throw trash over
the fence into Gabato’s property and experiencing “unfortunate
interactions” similar to Gabato’s in which Fung screamed and
cursed at her and her family.
After hearing the testimony, the commissioner denied
Fung’s request for a restraining order and granted Gabato’s.
Gabato successfully moved for $9,551 in attorney fees.
DISCUSSION
Fung contends there was insufficient evidence to support
the restraining order against her. We review the issuance of a
restraining order for abuse of discretion, and the factual findings
necessary to support it for substantial evidence. (Parisi v.
Mazzaferro (2016) 5 Cal.App.5th 1219, 1226 , disapproved on
another point in Conservatorship of O.B. (2020) 9 Cal.5th 989,
1003 & fn. 4.) We consider all the evidence and inferences that
may be drawn from it in the light most favorable to the prevailing
party, deferring to the trial court’s assessments of credibility and
resolving all conflicts in support of its decision. (Ibid.; ASP
Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257,
1266 (ASP Properties).) We affirm if the record contains any
evidence, contradicted or uncontradicted, from which a trier of
fact could reasonably make the challenged ruling. (ASP
Properties, supra, at p. 1266.)
1 Quite a number of these merely depict leaves scattered on
the ground.
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The challenged restraining order was issued pursuant to
Code of Civil Procedure section 527.6, which provides an
expedited procedure for preventing harassment for individuals
who have suffered “substantial emotional distress” caused by
conduct that “serves no legitimate purpose.”2 (Code Civ. Proc., §
527.6, subd. (b)(3); Byers v. Cathcart (1997) 57 Cal.App.4th 805,
811.) Fung contends Gabato’s evidence was insufficient to prove
either of those requirements. She is mistaken.
We turn first to the emotional distress requirement. In this
context, “ ‘substantial emotional distress’ ” is defined as “highly
unpleasant mental suffering or anguish ‘from socially
unacceptable conduct’ [citation], which entails such intense,
enduring and nontrivial emotional distress that ‘no reasonable
[person] in a civilized society should be expected to endure it.’ ”
(Schild v. Rubin (1991) 232 Cal.App.3d 755, 762-763.) That
standard was surely met here. Gabato submitted a sworn
statement that Fung’s worsening behavior made her “very
fearful” for her family’s safety. She feared Fung’s escalating
irrationality and anger would “result in physical harm in
addition to the emotional harm and damage to my property that I
am already experiencing.” Her family experienced constant
anxiety about what Fung would do next, leaving her unable to
enjoy or feel safe in her home and “physically sick and
emotionally drained.” This was ample evidence that Gabato
suffered substantial emotional distress, as would any reasonable
2 The statute defines “ ‘[h]arassment’ ” 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. The course of conduct must be that which
would cause a reasonable person to suffer substantial emotional
distress, and must actually cause substantial emotional distress
to the petitioner.” (Code Civ. Proc., § 527.6, subd. (b)(3).)
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person subjected to the harassment established by her
evidentiary showing.
Fung also contends her behavior could not support a
restraining order because she was merely trying to enforce a
settlement she had previously reached with Gabato’s landlord
regarding the fence line and adjacent plantings—in her view, a
“legitimate purpose” for purposes of Code of Civil Procedure,
section 527.6, subdivision (b)(3). The contention fails for several
reasons.
First, Fung cites no evidence (and our review of the record
discloses none) to support this claim—not even the purported
agreement, which she did not introduce below and is therefore
not part of the appellate record. In any event, even assuming the
record contained adequate evidence about the purported
settlement, the trial court could reasonably conclude Fung’s
harassing and often bizarre behavior – including writing Gabato’s
employer to accuse her of unfitness for her work and ripping
down her security cameras and lights – had nothing to do with it.
(See ASP Properties, supra, 133 Cal.App.4th at p. 1266 [“ ‘if two
or more different inferences can reasonably be drawn from the
evidence this court is without power to substitute its own
inferences or deductions for those of the trier of fact’ ”].) Indeed,
it is hard to conceive how those actions might serve any
legitimate purpose. More fundamentally, substantial evidence
supports the court’s ruling for Gabato; accordingly, Fung’s
reliance on what she views as contradictory evidence is
immaterial. (Ibid.)
Our conclusion that substantial evidence supports Gabato’s
restraining order also disposes of Fung’s contention that the
evidence compelled the court to grant her petition for a
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restraining order against Gabato as a matter of law.3 An
appellant can prevail on such a claim only if her evidence “ ‘was
(1) “uncontradicted and unimpeached” and (2) “of such a
character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.” ’ ”
(St. Mary & St. John Coptic Orthodox Church v. SBC Ins.
Services, Inc. (2020) 57 Cal.App.5th 817, 829.) Fung has
established neither prong.
We do not address Fung’s challenge to the attorney fee
award, since it is premised entirely on the supposition that she
would prevail on her merits appeal.
DISPOSITION
The trial court’s orders are affirmed. Gabato is entitled to
her costs on appeal. (Cal. Rules of Court, rules 8.278(a)(1),
(a)(2).)
BURNS, J.
WE CONCUR:
SIMONS, ACTING P.J.
CHOU, J.
Gabato v. Fung (A165222/A166005)
3 We assume without deciding that the court’s denial of
Fung’s petition is properly before this court.
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