White v. Suselo CA1/4 ( 2024 )

Filed 9/30/24 White v. Suselo CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
SCOTT WHITE,
Plaintiff and Respondent, A167795
v.
MARGARITA SUSELO, (Alameda County Super.
Defendant and Appellant. Ct. No. 21CV003099)
Margarita Suselo appeals from the trial court’s grant of Scott White’s
request for a five-year renewal of a civil harassment restraining order
entered pursuant to Code of Civil Procedure section 527.6 (section 527.6).
She argues that the renewal was invalid because it was not supported by
adequate evidence and that the trial court abused its discretion by possibly
relying on an issue with the interpreter at the renewal hearing to find her not
credible. We conclude that the record contains ample evidence to support the
renewal, and no evidence that the trial court’s credibility determination
rested on bias. Accordingly, we affirm.
BACKGROUND
The conflict between White and Suselo, who live in adjacent, single-
family homes, initially arose due to trees and construction noise. Things
escalated, and Suselo posted “no trespassing” signs depicting guns pointed at
White’s home; played loud music and television during the day and late at
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night; made false police reports against White and his family; threw heavy
objects at their shared fence; and pointed security cameras at and into
White’s house, including into his toddler’s playroom. On March 17, 2022, the
trial court entered a one-year restraining order that required Suselo not to
harass or contact White and his family, to remain 100 yards away from the
family, and not to play loud music. The court permitted Suselo to keep the
signs on her property. The minutes for the initial hearing state: “Suselo
acknowledges she is able to effectively communicate with Indonesian
Interpreter . . . . The court proceeds without a Javanese interpreter.”
Less than a year later, White filed a request to renew the restraining
order for five years. In his declaration in support of the request, White stated
that he and his family continued to fear Suselo and that she had violated the
initial restraining order. Not long after the initial restraining order was
entered, Suselo posted more signs with guns pointed at his property—a total
of 27 such signs. She also hung “bizarre items such as [a] plastic toy lizard,
wooden carved face masks, surgical masks and a teddy bear toy,” which
White believed were attempts to draw his child’s attention toward the gun
signs. Suselo added lighting to the signs, including a spotlight on the signs
directly outside White’s daughter’s playroom.
White and his wife noticed a new recurring “noxious odor similar to
that of burning plastic” when they were in their yard. On April 13, 2022,
White smelled the burning odor when he was outside. He moved toward the
front of his property to try to escape the smell, but it followed him and
lingered in the air. When he was outside again later the same day, the smell
returned; he walked to the front yard and saw Suselo at the fence line close to
the source of the smell. The smell went away, but White had a sore throat
and itchy eyes. When White checked his home security camera footage, he
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observed Suselo on her side of the fence “hovering several times directly
where [he] was working . . . . wearing what appear[ed] to be a facemask and
goggles.” White’s wife recalled that she had smelled a similar odor coming
from the fence line a few weeks earlier. White smelled it again on April 15.
Suselo and her family members asserted that the smell emanated from
her cooking of Indonesian food; White was not persuaded that regular
cooking could release a smell “so pungent and noxious” that it would travel
out of Suselo’s house and cause his physical symptoms. Other neighbors
submitted a declaration echoing the reports of an intolerable, chemical
burning smell emanating from Suselo’s home that caused physical symptoms
and did not smell like food cooking.
On May 7, 2022, Suselo played “obnoxiously loud music” for 45 minutes
from her backyard. Afterward, Suselo built tarp coverings over her backyard,
blocking all view of the yard and side fence. White continued to smell the
burning odor periodically over the summer and fall. On October 15, 2022,
Suselo again played music “very loudly.” White’s wife called the police, who
came and reminded Suselo of the restraining order. Suselo turned the music
down, but as the officer was leaving, White returned with his daughter and
Suselo began making crying baby sounds. The burning smell returned that
evening and on October 24 and 26. At 11:30 p.m. on October 26, Suselo
began making crying baby sounds and yelled until 12:20 a.m. On
November 4, 13, and 20, 2022, and January 5 and 21, 2023, the smell
returned. On December 6, 2022, Suselo made crying baby sounds at the
entire family.
On January 26, 2023, a neighbor informed White’s wife that Suselo
“had installed a flower bucket with wires attached to it holding two cameras
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pointed at [the Whites’] backyard and [the] child’s playroom.” The cameras
had been there off and on since 2021.
White, his wife, and Suselo appeared at the hearing. The same
Indonesian interpreter who assisted Suselo at the 2022 hearing also
appeared. Before testimony began, Suselo’s counsel announced that Suselo
wanted to waive the interpreter because she felt “she can speak for herself;
she can speak in English properly.” Suselo stated she had been speaking
English for 24 years and she did not want the interpreter because he did not
speak her native Javanese language. The court commented that the same
interpreter had assisted at the previous hearing and White’s counsel
explained that the prior hearing had been continued several times to ensure
Suselo access to an Indonesian interpreter, as she had requested. The court
cited its greater comfort with having an interpreter available to assist Suselo.
The interpreter then asked to be relieved from interpreting, noting
Suselo’s waiver and his familiarity with Suselo’s family. The court declined;
Suselo was more than two hours late for the hearing and the court surmised
that the issues with the interpreter might be a delay tactic. Suselo then
stated she felt uncomfortable having someone she knew interpreting; the
court responded that the interpreter was a professional and should be
expected to act accordingly. Suselo expressed concern that if she were
speaking in Javanese, the interpreter might not understand her, but if so, the
court explained, the interpreter would ask for clarification. The court wanted
to “make sure that [Suselo] underst[ood] the proceedings,” and admonished
the interpreter not to discuss the hearing outside court and to notify the court
if Suselo said anything he did not understand.
Shortly after White began testifying, the interpreter asked to withdraw
again, because Suselo was not listening and he felt uncomfortable after
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Suselo’s attorney expressed a lack of trust in the accuracy of his
interpretation. White’s attorney commented that “this is a tactic that she
engaged in last time, of getting multiple continuances”; again noted that
Suselo specifically requested an Indonesian interpreter and that she had no
objection to the same interpreter at the last hearing; and suggested that the
issue could affect her credibility. The interpreter then insisted on
withdrawing, and did, after further discussion.
The court and Suselo’s attorney conducted voir dire of Suselo to confirm
her waiver of the interpretation service. Suselo testified that for 20 years she
had lived in California and spoken English. She had worked as a security
screener at the Oakland Airport and for the Oakland Unified School District.
In both positions she spoke English. The court accepted Suselo’s waiver,
explaining that Suselo was “rebelling against” an interpreter and had
sufficient experience speaking English to continue without one. The hearing
proceeded.
White testified to the unidentified burning odor following him along the
property line, the new signs and other items hung from Suselo’s house, and
the new illumination of the signs. White further explained that Suselo’s
actions were upsetting, made the family feel “miserable and harassed,” and
that when people visited their property, they were “scared that our neighbor
is going to start shooting at any moment.” White described having
conversations with their four-year-old about the pictures of guns pointed at
their house, and the loud crying baby noises Suselo made. White also
testified to Suselo’s increased use of security cameras that were pointed
directly toward various parts of his home. White’s wife described very rarely
having guests over, warning potential guests about Suselo beforehand, and
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not going into the backyard with their child for several years due to Suselo’s
conduct.
Suselo also testified, saying she posted the signs because the Whites
scared her and her family. She denied burning chemicals in her backyard
and said the odor was from Indonesian cooking. The court asked how cooking
could cause the smell if Suselo had no barbecue or outdoor cooking facility,
and confirmed that Suselo had not been barbecuing. With respect to the loud
music, Suselo stated she did not have a speaker, but had a television, a
computer, and an iPad.
The court explained that it did not find Suselo’s testimony regarding
the noxious smell credible because she denied cooking in the backyard.
Under the court’s further examination, White testified that the odor was
nothing like cooking he had smelled before and such smells had not in the
past caused him watering eyes or an allergic reaction. The court found
White’s reports credible.
At the conclusion of the hearing, the court renewed the restraining
order. The renewed order continued to limit Suselo’s contact with White and
prohibited Suselo from “[p]lay[ing] excessively loud music or other amplified
sounds directed at” White’s home. Further, no third party was to “engage in
restricted conduct on [Suselo’s] behalf. [Suselo’s] security cameras may only
be trained/pointed and recording her own property, she may not record or
point camera’s [sic] at any part of [White’s] property, egress or ingress.” The
order did not prohibit her posting of signs.
DISCUSSION
Suselo claims two errors invalidate the renewed restraining order. She
argues first that substantial evidence does not support the renewal; and
second, that the trial court abused its discretion by assuming Suselo’s
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objections to the Indonesian interpreter were evidence of her bad faith. We
review these issues for abuse of discretion, and the underlying factual
findings for substantial evidence. (Leahy v. Peterson (2023) 98 Cal.App.5th
239, 252 (Leahy).)
I. Reasonable Probability of Future Harassment
Section 527.6, subdivision (j)(1) authorizes a court to renew a civil
harassment restraining order “ ‘ “only when the trial court finds a reasonable
probability that the defendant’s wrongful acts w[ill] be repeated in the
future.” ’ [Citations.] Renewal is not automatic, but subject to the court’s
discretion whether to renew the order and its duration.” (Leahy, supra,
98 Cal.App.5th at p. 252.)
White cites three categories of evidence that support the trial court’s
finding that there was a reasonable probability of future harassment: the
loud music, security cameras pointed at White’s home, and the burning
smells emanating from Suselo’s property. White argues that the trial court’s
finding that Suselo was not credible further supports the issuance of the
renewed order, insofar as the court found the smells White and his wife
complained of were not from cooking.
Suselo primarily takes issue with White’s reliance on the burning smell
as evidence supporting the renewal, because the court did not enjoin Suselo
from making the smell. But Suselo also acknowledges that “[t]he court might
have . . . believed it would be impossible to enforce something as nebulous
and subjective as whether a particular odor was offensive enough to violate a
restraint against ‘burning smells.’ ” In addition, that the court did not
explicitly restrain the smells—the source of which no one could pinpoint—
does not mean that it did not believe Suselo was causing the smells in some
way and therefore that the smell was evidence of harassing conduct, which
the order more generally does enjoin.
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In addition, although Suselo is correct that we may not consider new
evidence outside the appellate record and therefore we must disregard
White’s proffered evidence regarding Suselo’s behavior after the renewed
order was entered, we do not agree that Cooper v. Bettinger (2015)
242 Cal.App.4th 77 supports Suselo’s case. Relying on that case, Suselo
contends that the trial court abused its discretion by renewing the
restraining order for the full five-year term authorized by section 527.6,
subdivision (j)(1), based on limited evidence of new harassing conduct. But in
Cooper v. Bettinger, the court’s abuse of discretion turned on its incorrect
reading of the statute—believing “that renewal under [subdivision (j)(1)] is ‘to
be mechanically granted merely upon timely application,’ ” and that it had no
discretion to order otherwise. (Cooper v. Bettinger, at p. 89.) Suselo has
made no showing that the trial court similarly misunderstood the scope of its
discretionary authority here.
Suselo further notes that White cited only two instances of Suselo
playing loud music after the restraining order took effect, compared to the
“continuous loud music” before the order issued, showing that the issue “had
all but dwindled away.” But it was reasonable for the court to view this as
evidence of the opposite—that even with a restraining order in place, Suselo’s
conduct continued, albeit to a lesser extent. Either way, the statute permits
the court to renew the restraining order without any new evidence of
harassment at all. (§ 527.6, subd. (j)(1) [“The order may be renewed, . . . for a
duration of no more than five additional years, without a showing of any
further harassment since the issuance of the original order”]; Leahy, supra,
98 Cal.App.5th at pp. 243–244, 257 [court may not renew restraining order
past five-year limit without new evidence of harassment, but without such
evidence may grant one or more renewals for up to a five-year total term].)
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And given that Suselo continued her harassing conduct—both in old and new
forms—there is no risk here that the basis for the original order has “become
stale with the passage of time.” (Leahy, at p. 258.) The court’s reliance on
evidence of the burning odor, the new signs, the crying baby noises, the
additional instances of loud music, and the new security cameras was not an
abuse of discretion.
II. Interpreter and Credibility Findings
Suselo next argues that “[a]rguments that a court should find a witness
not credible because of language difficulties and foreign origin [are] obviously
improper,” and “there might well have been some legitimate difficulties in
communication between Suselo and the court interpreter.” Suselo cites
People v. Sandoval (2007) 41 Cal.4th 825, 847 in support.
But People v. Sandoval discussed a trial court’s discretion to choose
among criminal sentence terms, not whether a court made a biased
credibility finding. And the record here contains no indication that the court
relied on the issue with the interpreter and White’s counsel’s argument to
find Suselo not credible; she merely speculates that it did. “Absent any
indication to the contrary, we must presume that the trial court followed the
applicable law . . . .” (Harris v. Stampolis (2016) 248 Cal.App.4th 484, 500.)
The court did, however, conclude that Suselo’s testimony was not credible in
part because she could not fully account for the burning smell. The court was
well within its discretion to find that Suselo was not forthcoming about the
smell—it confirmed that the odor was not from backyard cooking, did not
smell like cooking, and caused White and another neighbor physical
symptoms not attributable to cooking. We defer to the trial court’s credibility
findings because that court is in the best position to evaluate witness
demeanor and to weigh conflicting evidence in the first instance. (Harris v.
Stampolis, supra, at p. 498.)
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We also do not find FCM Investments, LLC v. Grove Pham, LLC (2023)
96 Cal.App.5th 545 relevant here. There, a private arbitrator concluded that
one party’s use of an interpreter was a tactical ploy to appear less
sophisticated than she was, and on that specific basis found the party not
credible. (Id. at pp. 549, 551, 555.) Here, although the court mused that
Suselo’s waiver of an interpreter might be a delay tactic, it made no
credibility finding on that basis and in fact made every effort to avoid bias. It
sought to have the interpreter continue to assist Suselo to ensure she
understood the proceedings, over both Suselo’s and the interpreter’s
objections, and then to ensure Suselo had sufficient grasp of the English
language to participate meaningfully in the proceedings without an
interpreter.
Nor does People v. Simmons (2023) 96 Cal.App.5th 323, 332, 336—
where the prosecutor equated the defendant’s “ ‘ambiguous ethnic
presentation’ ” with deceptiveness—bear on this case. No similar issue was
present here. In any event, Suselo did not make a bias objection below, and
we may deem the issue forfeited.
DISPOSITION
The judgment is affirmed. White may recover his costs on appeal.
GOLDMAN, J.
WE CONCUR:
STREETER, Acting P. J.
DOUGLAS, J. *
* Judge of the Superior Court of Contra Costa County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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