Rodriguez v. Wong CA1/5 ( 2023 )

Filed 12/13/23 Rodriguez v. Wong 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
FIONNA MARIE VALDES
RODRIGUEZ,
Petitioner and Respondent, A167484
v. (San Mateo County
STEPHEN WONG, Super. Ct. No. 21-CIV-05885)
Defendant and Appellant.
Defendant and appellant Stephen Wong (appellant) appeals from a
restraining order granted in favor of petitioner and respondent Fionna Marie
Valdes Rodriguez (respondent). Because the evidence did not support a
finding of future harassment, we reverse.
Appellant and respondent met at the San Francisco Police Academy in
2016 and both eventually ended up assigned to the San Francisco
International Airport. They were friends at work, and they often shared
meals and exchanged text messages. The text messages were often jokes,
and sometimes the jokes were sexually charged. Respondent sent some of
these sexual jokes.
On October 16, 2021, appellant visited respondent while she worked
alone at a cargo check point. According to respondent’s testimony, appellant
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came up to her while she was sitting in a chair, put his leg between her legs,
pushed her legs open with his leg, and said “ ‘Spread open for me.’ ”
Respondent was disturbed by appellant’s conduct; she explained in her
testimony, “We joke around a lot, but this was like stepping over the line
because this is a place that I work in. . . . [A]t the moment, I felt like he
wasn’t himself. He was somebody that I was friends with, like he crossed
that line of touching me.” Respondent stood up and “played it off and joked
around with [appellant] and said, ‘You know, you’re acting crazy.’ ” She
changed the topic and mentioned food that would be at her son’s birthday
party the next day, and appellant asked, “ ‘What kind of meat do you guys
have?’ ” Appellant then “proceeded to make a joke about how, you know, it
would be nice if my taco was bouncing on his sausage and just kind of those
jokes that he made that [were] sexual in nature.” Respondent “laughed it off
and told him, ‘Hey, you know, you need to simmer down;’ ” appellant replied,
“ ‘only if I cum.’ ” Eventually, appellant left. Respondent testified the
October 16 incident felt “different” than their previous joking.
The next day, appellant attended a birthday party for respondent’s son.
He acted like nothing had happened. The day after the party, respondent
reported the October 16 incident to her supervisor, and thereafter appellant
was summoned to his captain’s office and informed of appellant’s complaint.
Appellant and respondent never had any communication after respondent
made her complaint. Appellant testified, without any inconsistent testimony
by respondent, that respondent never previously told him his sexualized
joking was inappropriate or made her uncomfortable, and that he never made
any attempt to contact respondent after learning of her complaint.
On November 2, 2021, respondent filed a “Request for Civil
Harassment Restraining Orders” (Request). Respondent requested a
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temporary restraining order (TRO) that was granted the same day. The
contested hearing on respondent’s Request was continued numerous times
and ultimately took place on March 2, 2023. Respondent did not claim that
appellant violated the TRO in any way before the hearing.
At the March 2023 hearing, respondent explained that she sought a
restraining order because she knew appellant owned firearms and she was
afraid he would become angry following her complaint. She did not testify to
any threats by appellant, either express or implied. In her closing argument,
she said she was requesting a restraining order because appellant “showed
poor impulse control that night” and it “scare[d]” her and affected her feeling
of “safety at work.” She wanted to “continue with the restraining order for
him to hear exactly how it has impacted me.” Appellant argued the “isolated,
single” incident in October 2021 “isn’t enough to cause an injunction to be
imposed.”
In announcing its decision, the trial court stated, “I realize that there
was a certain joking relationship that . . . [was] sometimes sexual in nature;
but that was all through memes and through texts. The difference in this
particular situation is there is now physical conduct involved, physical
conduct that clearly from my observations of [respondent] when she was
testifying made her afraid, made her upset and made her scared; and the
Court could see that.” The court continued, “This is . . . actually a physical
act that violated her space, made her feel afraid; and then instead of just
leaving and backing off he continues to sort of talk to her about things related
to that type of sexual conduct and that type of sexual nature.” In reference to
the jokes appellant made during the incident, the court stated, “I mean, that
just continues. So in a way that is a course of conduct.” Though respondent
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sought a three-year restraining order, the court granted one for 18 months, to
expire in September 2024. The present appeal followed.
Code of Civil Procedure1 section 527.6, subdivision (a)(1) provides that
“[a] person who has suffered harassment as defined in subdivision (b) may
seek a temporary restraining order and an order after hearing prohibiting
harassment as provided in this section.” Section 527.6, subdivision (b)(3)
defines “harassment” 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.” At a hearing on a
request for a restraining order, the trial court “shall receive any testimony
that is relevant, and may make an independent inquiry. If the judge finds by
clear and convincing evidence that unlawful harassment exists, an order
shall issue prohibiting the harassment.” (§ 527.6, subd. (i).) “An injunction
restraining future conduct is only authorized when it appears that
harassment is likely to recur in the future.” (Harris v. Stampolis (2016)
248 Cal.App.4th 484, 496.) “We review the trial court’s decision to grant the
restraining order for substantial evidence.” (Id. at p. 497.)
In the present case, respondent did not claim in her testimony and the
trial court did not suggest in its findings that appellant had employed
“unlawful violence” or made “a credible threat of violence.” (§ 527.6,
subd. (b)(3).) Instead, the trial court found the physical touching on October
16, 2021, combined with the sexualized joking immediately thereafter,
1 All undesignated statutory references are to the Code of Civil
Procedure.
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constituted a harassing course of conduct. Section 527.6 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 . . . .
Constitutionally protected activity is not included within the meaning of
‘course of conduct.’ ” (§ 527.6, subd. (b)(1).)
Appellant argues the trial court erred in concluding the single incident
on October 16, 2021 constituted a “course of conduct,” given that appellant
did not previously know respondent objected to the sexualized joking and
that there are no allegations of misconduct thereafter. Appellant also argues
there is no evidence from which the court could find the harassment likely to
recur in the future.
Appellant’s conduct on October 16, 2021 was highly inappropriate and
disturbing, and caused respondent substantial emotional distress. We need
not resolve whether it should be treated as a “course of conduct” within the
meaning of section 527.6, because we conclude there is no evidence in the
record from which the trial court could find a likelihood of future harassment.
As explained in Russell v. Douvan (2003) 112 Cal.App.4th 399, 402 (Russell),
“an injunction serves to prevent future injury and is not applicable to wrongs
that have been completed. An injunction is authorized only when it appears
that wrongful acts are likely to recur.” Section 527.6, subdivision (i)
incorporates this requirement, because “a court cannot issue an injunction
unless it finds by clear and convincing evidence that ‘unlawful harassment
exists’ [citation], not that it existed in the past.” (Russell, at p. 403, italics
added by Russell [quoting same language from prior version of statute].)
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It is undisputed that respondent participated in sexualized joking with
appellant prior to October 16, 2021, and respondent did not contradict
appellant’s testimony that she had never told him it made her uncomfortable.
Of course, this does not excuse appellant’s conduct, which, as respondent
testified, plainly “crossed [the] line” and understandably was frightening and
upsetting to her. However, it is also undisputed that, once appellant learned
of respondent’s complaint, he never again communicated with her before the
contested hearing. Sixteen months passed between issuance of the TRO and
that hearing, and appellant did not contact respondent during that period.
Significantly, respondent did not claim in her testimony or closing argument
that she feared the harassment would continue. Indeed, she said she wanted
the restraining order so appellant would “hear exactly how it has impacted
me,” not out of concern about future harassment. During argument,
appellant’s counsel represented to the court that the parties no longer worked
at the same location, and respondent answered “no” to the court’s question,
“Is there any chance that you could potentially come in contact with each
other at work?” (Cf. Harris v. Stampolis, supra, 248 Cal.App.4th at p. 501
[distinguishing Russell based on the appellant’s continuing behavior and the
circumstance that “it was likely that [the parties] would have future
interactions”].) Because there is no evidence to support a finding of a
likelihood of future harassment, the trial court erred in issuing a restraining
order.2
2 Appellant testified to his desire to “respect [respondent’s] privacy,”
and must understand that removal of the restraining order does not mean
that he is welcome to re-initiate contact with respondent.
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DISPOSITION
The trial court’s order is reversed. Costs on appeal are awarded to
appellant.
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SIMONS, ACTING P. J.
WE CONCUR:
BURNS, J.
CHOU, J.
A167484
Valdes Rodriguez v. Wong
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