Z.S. v. H.H. CA3

Filed 4/27/23 Z.S. v. H.H. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
Z.S., C094845, C094848
Plaintiff and Respondent, (Super. Ct. Nos. 34-2020-
70008378-CU-HR-GDS, 34-
v. 2021-70008678-CU-HR-GDS)
H.H.,
Defendant and Appellant.
S.S., C094846, C094847
Plaintiff and Respondent, (Super. Ct. Nos. 34-2020-
70008379-CU-HR-GDS, 34-
v. 2021-70008671-CU-HR-GDS)
H.H.,
Defendant and Appellant.
1
Z.S. and S.S. obtained four civil harassment restraining orders against H.H.
pursuant to Code of Civil Procedure section 527.6.1 H.H. appeals the issuance of all four
orders,2 arguing (1) the trial court erred in denying her request for a statement of
decision, (2) there was insufficient evidence to support the issuance of the orders, (3) the
orders constitute an unconstitutional prior restraint on speech, and (4) she proved Z.S.
and S.S. lied in another case and the trial court thus should have disregarded their
testimony in this case. We disagree with all four arguments, and we thus affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Z.S. and S.S. are a married couple, and H.H. is a former friend of theirs. All three
parties are originally from Iran, and currently live in Folsom. Following a hearing, Z.S.
and S.S. obtained four separate civil harassment restraining orders against H.H., in four
separate cases. Because we do not have a reporter’s transcript or an agreed or settled
statement of the hearing, the facts below come entirely from the clerk’s transcript, which
consists of the requests for civil harassment restraining orders and various documents
filed in support of and opposition thereto, and the trial court’s orders and rulings thereon.
December 2020 Requests for Civil Harassment Restraining Orders
On December 4, 2020, Z.S. and S.S. filed separate (but seemingly identical)
requests for civil harassment restraining orders against H.H.3 In support of the requests,
they stated they had previously obtained temporary civil harassment restraining orders
against the Rostami family, and they attached copies of those restraining orders to the
current requests. They also stated: “Last night, we figured it out that [H.H.] has
1 Undesignated statutory references are to the Code of Civil Procedure.
2 We issued an order consolidating the cases for appellate purposes, but also
ordering they would retain their respective case numbers.
3 Z.S. filed case No. 34-2020-70008378, and S.S. filed case No. 34-2020-70008379.
2
provoked Rostami family to threaten to kill us with gun and knife. . . . Last night
Rostami family have broken restraining order principles for the third time, when police
came here, Rostami family called to [H.H.] while police officer was on the other phone
with cousin of Rostami for translation. We could hear [H.H.’s] voice that was on speaker
and she was advising Rostami family to deny that he came to the window with knife and
threatening us. [H.H.] also told Rostam [Rostami] that hide the knife and change his
clothes that he had when he came to the window. They were talking in Farsi and Officer
was on the other phone with Rostami family and didn’t hear their conversation but we
told the officer regarding their conversation, and fortunately we record our voice while
we mentioned police to this conversation. We also have 4 witnesses that [H.H.] accused
us in front of them to discredit us, because she had some illegal and unethical requests
from us and we rejected her and cut our communication with her, we ignored her
accusation till last night that we figured it out that [H.H.] provoked Rostami family
against us.”
On January 12, 2021, Z.S. and S.S. filed a declaration providing additional
information about their requests. They stated H.H. was a former friend, but the
friendship had broken down due to a series of incidents they described as “shameful.”
They stated that when S.S. was waiting for Z.S.’s immigration visa, H.H. told her that she
should divorce Z.S. and marry someone who needed a green card and would pay her
money. They also stated H.H. told Z.S. she wanted to be his girlfriend, and they could
keep the relationship quiet. Finally, they stated H.H. paid $165 for Z.S.’s green card fee
but charged Z.S. $16,500. As a result of these incidents, Z.S. and S.S. stated they cut
communications with H.H. in May 2016, and “[s]ince that time she started accusations to
us in Iranian community to discredit us.” The Iranian community, however, did not
believe H.H., they reported H.H.’s accusations to Z.S. and S.S., and the community cut
off communications with H.H., “and we think this situation led to [H.H.] become
overwhelmed and provoked Rostami family to threaten to kill us.”
3
Although Z.S. and S.S. asked the court to issue temporary restraining orders
pending the hearing on the requests, no temporary orders were issued. A hearing on the
requests was scheduled for March 19, 2021, and was later continued to May 21, 2021.
February 2021 Requests for Civil Harassment Restraining Orders
In the meantime, on February 24, 2021, Z.S. and S.S. filed separate (but seemingly
identical) requests for civil harassment restraining orders against H.H.4 The requests
include a seven-page attachment describing the harassment. The attachment provided
more detail about the restraining orders that Z.S. and S.S. obtained against the Rostamis,
and largely repeats what they stated in their first requests about having recently figured
out that H.H. “provoked Rostami family to kill us with gun and knife.”
Z.S. and S.S. also described another series of incidents that “proves that [H.H.] has
made her decision to kill both [of] us.” On February 12, 2021, while Z.S. and S.S. were
out shopping, they received a phone call from a neighbor who reported that Rostam
Rostami was “taking pictures/videos from several different angles of our apartment that
lasts for at least 10 minutes.” When questioned by the police, Rostami stated he was
taking photos for an upcoming court case, which Z.S. and S.S. found “strange.”
A little over a week later, Z.S. and S.S. received a phone call from Z.S.’s mother
and sister, who live in Iran. Z.S.’s mother and sister stated they had received a package
from a taxi driver that contained a letter and photos of Z.S. and S.S.’s apartment from
different angles. The letter stated Z.S. and S.S. would soon “be killed inside their
apartment to pay the penalty for their actions against the Holy system of the Islamic
Republic of Iran. This is the punishment of those who first fight against the Holy system
of the Islamic Republic abroad with their political articles and they make the Holy system
of the Islamic Republic of Iran look like an oppressive and dark regime. Secondly, by
4 Z.S. filed case No. 34-2021-70008678, and S.S. filed case No. 34-2021-70008871.
4
changing their religion from Islam to Christianity, they took away the reputation of Islam
and Muslims and according to the fatwa of the authorities and ayatollah and the Holy law
of the Islamic Republic, their blood is permissible. With their liberal, freedom and free
men’s activities, they are trying to overthrow the Holy system of the Islamic Republic
and question its values. The photos that come with this package show how close our
agents are to them and, if necessary, we will get closer to them and soon we will punish
them for their actions against the Holy system of the Islamic Republic of Iran and we will
kill them in the worst possible way.”5 According to Z.S. and S.S., Z.S.’s mother asked
the taxi driver who had given him the package, and he said he had received it from a man
who instructed him to deliver it to Z.S.’s mother’s apartment. This man also gave the
taxi driver a phone number to call if he was unable to deliver the package. Z.S. and S.S.
stated they entered the phone number in their smart phone, and “the image of the person
who delivered the package to the taxi driver, came up in the applications. As soon as the
photo related to the mentioned number came up in the WhatsApp and telegram
applications we knew that he was [H.H.’s] cousin,” because she had shown them photos
of him several years ago. Z.S. and S.S. contended that the photos of their apartment in
the package that was delivered to Z.S.’s mother and sister were the photos Rostami had
taken the week before, and that Rostami sent those photos either to H.H. or to her cousin
in order “to scare our family in Iran that it leads to force us to stop our freedom and
liberal activities through the articles which we wrote against Regim[e] of Iran or maybe it
is the punishment for changing our religion.”
Once again, Z.S. and S.S. asked the court to issue temporary restraining orders
pending the hearing. The trial court denied the requests.
5 The letter was in Farsi, but Z.S. and S.S. translated it.
5
H.H.’s Response to the Requests
H.H. filed a response to all four requests on April 20, 2021, stating she had done
nothing to Z.S. or S.S. that would justify imposing restraining orders against her. She
stated she had not had any contact with either Z.S. or S.S. since March 2016, and she
noted Z.S. and S.S. acknowledged this in their requests when they stated they had cut off
communications with her in May 2016. She described her “history” with Z.S. and S.S.,
because she believed it showed they had “great animus” against her. She stated she met
S.S. in 2013 in the United States. At that time, Z.S. was still in Iran and S.S. was trying
to bring him to the United States. H.H. agreed to sponsor Z.S., and in 2014 she submitted
forms to the United States Citizenship and Immigration Service (USCIS) for that
purpose. In late 2015, however, S.S.’s brother and sister-in-law informed H.H. that Z.S.
had committed financial crimes in Iran and gave her the names of his victims, and the
victims sent H.H. evidence of the crimes. After she received this evidence, she dropped
her sponsorship of Z.S. and reported what she had learned to USCIS, and she believes
Z.S. and S.S. became hostile and malicious towards her “as evidenced by the falsehoods
that they had told about me in their court papers.” She denied she had ever provoked the
Rostamis to kill Z.S. and S.S., and she stated, “Their allegations that I am somehow
involved in a plot with the Iranian Government to assassinate [them] (supposedly in their
own apartment!) is so fantastic and unbelievable that it is difficult for me to respond.”
Difficult or not, she stated “unequivocally that I am not in a plot with anybody, much less
the Iranian Government, to assassinate [Z.S. or S.S.].”
The Hearing and the Challenged Orders
The hearing on all four requests was held on May 21, 2021, and at the conclusion
of the hearing, the trial court took the matter under submission. According to a posttrial
brief filed by H.H., it appears that all three parties testified at the hearing, although it not
clear whether other witnesses testified. Unfortunately, no court reporter was present and
there is thus no reporter’s transcript of the hearing.
6
On July 1, 2021, the court granted the requests and issued four civil harassment
restraining orders after hearing utilizing the Judicial Council form created for that
purpose (Judicial Council Forms, form CH-130).
On July 19, 2021, H.H. filed a request for a statement of decision pursuant to
section 632 and asked the court to state what specific conduct on her part justified
granting the restraining orders. The court denied the request, finding, in full: “The court
is not required to prepare a statement of decision or make specific findings on the record
for a Code of Civil Procedure section 527.6 civil harassment proceeding. [¶] All
testimony and documentary evidence was considered. The parties and witnesses testified
regarding their declarations and exhibits, which are in the record and available for review
if an appeal is filed.”
This appeal followed.
DISCUSSION
I
Sufficiency of the Evidence to Support the Orders
We begin with H.H.’s second argument: that the evidence was insufficient to
support the issuance of the civil harassment restraining orders. She fails to overcome the
presumption that the trial court’s orders were correct.
A. Standard of review
“We review issuance of a protective order for abuse of discretion, and the factual
findings necessary to support the protective order are reviewed for substantial evidence.
[Citations.] ‘We resolve all conflicts in the evidence in favor of . . . the prevailing party,
and indulge all legitimate and reasonable inferences in favor of upholding the trial court’s
findings. [Citation.] Declarations favoring the prevailing party’s contentions are deemed
to establish the facts stated in the declarations, as well as all facts which may reasonably
be inferred from the declarations; if there is a substantial conflict in the facts included in
the competing declarations, the trial court’s determination of the controverted facts will
7
not be disturbed on appeal.’ [Citation.]” (Parisi v. Mazzaferro (2016) 5 Cal.App.5th
1219, 1226.) “The appropriate test on appeal is whether the findings (express and
implied) that support the trial court’s entry of the restraining order are justified by
substantial evidence in the record. [Citation.] But whether the facts, when construed
most favorably in [the petitioner’s] favor, are legally sufficient to constitute civil
harassment under section 527.6, and whether the restraining order passes constitutional
muster, are questions of law subject to de novo review.” (R.D. v. P.M. (2011)
202 Cal.App.4th 181, 188, fn. omitted.)
B. Section 527.6
“Section 527.6 of the Code of Civil Procedure was enacted ‘to protect the
individual’s right to pursue safety, happiness and privacy as guaranteed by the California
Constitution.’ (Stats. 1978, ch. 1307, § 1; Cal. Const., art. I, § 1.) The purpose of the
statute was to provide expedited injunctive relief to victims of ‘harassment.’ ” (Schraer
v. Berkeley Property Owners’ Assn. (1989) 207 Cal.App.3d 719, 729-730.)
“ ‘Harassment’ ” is defined 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.” (§ 527.6, subd. (b)(3).) “ ‘Course of conduct’ ” is defined 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, including, but not limited to, the use of public or private mails, interoffice
mail, facsimile, or email. Constitutionally protected activity is not included within the
meaning of ‘course of conduct.’ ” (§ 527.6, subd. (b)(1).) A person who has suffered
harassment as defined by section 527.6 may seek an order after hearing prohibiting
8
harassment.6 (§ 527.6, subd. (a).) “At the hearing, the judge shall receive 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 order prohibiting harassment may last up to five
years, but if no expiration date is stated on the face of the order (as in this case), it lasts
for three years. (§ 527.6, subd. (j).)
C. Analysis
H.H. argues the trial court erred in granting the challenged orders because there is
not substantial evidence that she committed harassment as defined by section 527.6. The
problem with this argument is that H.H. has not provided us with a record of the May 21
hearing on the requests for the challenged orders, and in the absence of such a record, we
have no alternative but to fall back on the presumption that the superior court’s orders are
correct. (See In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 [“A judgment or
order of a lower court is presumed to be correct on appeal, and all intendments and
presumptions are indulged in favor of its correctness”].)
Rule 8.120 of the California Rules of Court provides: “If an appellant intends to
raise any issue that requires consideration of the oral proceedings in the superior court,
the record on appeal must include a record of these oral proceedings in the form of one of
the following: [¶] (1) A reporter’s transcript under rule 8.130; [¶] (2) An agreed
statement under rule 8.134; or [¶] (3) A settled statement under rule 8.137.” (Cal. Rules
of Court, rule 8.120(b).) Here, no reporter’s transcript exists because there was no court
reporter present at the May 21 hearing, and H.H. has not provided us with either an
agreed statement or a settled statement. This appeal is thus based solely on the clerk’s
transcript. “Although in certain instances a reporter’s transcript may not be necessary,
6 A person may also seek a temporary restraining order pending the hearing, but, as
noted above, no temporary orders were issued in this case.
9
. . . [citation] on issues such as the instant one involving the abuse of discretion standard
of review, a reporter’s transcript or an agreed or settled statement of the proceedings is
indispensable.” (Hood v. Gonzales (2019) 43 Cal.App.5th 57, 79.) “The absence of a
record concerning what actually occurred at the trial precludes a determination that the
trial court abused its discretion.” (Vo v. Las Virgenes Municipal Water Dist. (2000)
79 Cal.App.4th 440, 448.) “It is axiomatic in appellate review that a judgment of a lower
court is presumed correct. [Citations.] This presumption has special significance when,
as in the present case, the appeal is based upon the clerk’s transcript. ‘It is elementary
and fundamental that on a clerk’s transcript appeal the appellate court must conclusively
presume that the evidence is ample to sustain the findings.’ ” (Ehrler v. Ehrler (1981)
126 Cal.App.3d 147, 154.) “ ‘ “A judgment or order of the lower court is presumed
correct. All intendments and presumptions are indulged to support it on matters as to
which the record is silent, and error must be affirmatively shown. . . .” ’ [Citations.] ‘A
necessary corollary to this rule is that if the record is inadequate for meaningful review,
the appellant defaults and the decision of the trial court should be affirmed.’ ” (Gee v.
American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) “[A]n
appellant has the burden of producing a record affirmatively showing error [citation] and
if any matters could have been presented to the court below which would have authorized
the order complained of, it will be presumed that such matters were presented.” (Riley v.
Dunbar (1942) 55 Cal.App.2d 452, 455.) Accordingly, if no record of the hearing is
furnished, “we must presume that the evidence adduced there is sufficient to support the
judgment.” (Diamond View Limited v. Herz (1986) 180 Cal.App.3d 612, 615, fn. 2.)
These rules are dispositive in this case. With no record of what happened at the
May 21 hearing, H.H. has failed to provide us with “any evidentiary basis whatever for
attacking the trial court’s rulings.” (National Secretarial Service, Inc. v. Froehlich
(1989) 210 Cal.App.3d 510, 522.)
10
II
No Statement of Decision was Required
H.H. argues the trial court erred in denying her request for a statement of decision
and in failing to identify what conduct on her part justified issuance of the restraining
orders. We disagree.
Section 527.6 provides, “A temporary restraining order or order after hearing
relating to civil harassment issued by a court pursuant to this section shall be issued on
forms adopted by the Judicial Council.” (§ 527.6, subd. (x)(2).) “Use of the word ‘shall’
connotes a mandatory act. ‘Under “well-settled principle[s] of statutory construction,”
we “ordinarily” construe the word . . . “shall” as mandatory.’ ” (Huntington Continental
Townhouse Assn., Inc. v. Miner (2014) 230 Cal.App.4th 590, 602.) The Judicial Council
has adopted form CH-130 to be used for civil harassment restraining orders issued after
hearing, and the trial court utilized that form in this case, as it was required to by section
527.6. H.H. cites no authority requiring a court to also issue a statement of decision if
requested by a party.
We also note that, in Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, the court
found section 527.6 does not require the trial court make specific findings of harassment,
explaining, “Subdivision (d) [now subdivision (i)] of section 527.6 provides in part that,
at a hearing on the petition for an injunction, ‘the judge shall receive such testimony as is
relevant, and may make an independent inquiry. If the judge finds by clear and
convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting
the harassment.’ The statute does not require the court to make a specific finding on the
record that harassment exists, nor does it require specific findings of the statutory
elements of harassment as defined in subdivision (b). . . . [Citations.] . . . [¶] . . . [T]he
statute does not require a statement of the court’s findings of fact, and we have been
presented with no other authority requiring such findings. We hold that the granting of
the injunction itself necessarily implies that the trial court found that [the respondent]
11
knowingly and willfully engaged in a course of conduct that seriously alarmed, annoyed
or harassed [the petitioner], and that [the petitioner] actually suffered substantial
emotional distress. No further express findings are required.” (Ensworth, at p. 1112.)
H.H. never mentions Ensworth, much less attempts to convince us it was wrongly
decided.
The only authority H.H. cites to support her argument is section 632, which
provides: “The court shall issue a statement of decision explaining the factual and legal
basis for its decision as to each of the principal controverted issues at trial upon the
request of any party appearing at the trial. The request must be made within 10 days after
the court announces a tentative decision unless the trial is concluded within one calendar
day or in less than eight hours over more than one day in which event the request must be
made prior to the submission of the matter for decision.” (§ 632, italics added.) Even if
we assume for the sake of argument that section 632 may require a trial court to issue a
statement of decision in a civil harassment case if a timely request is made, H.H.’s
request was not timely. The hearing or trial on the requests was held on May 21, 2021,
and was thus concluded within one calendar day. At the end of the hearing, the court
took the matter under submission. That means a request for a statement of decision had
to be made prior to the end of the hearing. H.H., however, did not request a statement of
decision until July 19, and her request was thus untimely.
This case is similar to Khan v. Medical Board (1993) 12 Cal.App.4th 1834.
There, a physician filed a petition for writ of mandate challenging a decision by the
California Medical Board placing him on probation. (Id. at pp. 1837-1838.) A hearing
on the petition was concluded in one day. After the trial court denied the petition, the
physician requested a statement of decision, but the trial court denied the request because
it was untimely. (Id. at p. 1840.) The physician appealed, and the appellate court
affirmed, holding as follows: “While . . . the failure to prepare a statement of decision
which has been requested by a party is reversible error [citation], it is only error when
12
there is a timely request. [Citation.] Since appellant failed to comply with the statutory
requirement by failing to request the statement of decision prior to the matter being
submitted, he cannot claim the denial of the request was error.” (Ibid.) So, too, in this
case. H.H. failed to request a statement of decision in a timely manner, and she thus
cannot claim the denial of the request was error.
III
The Challenged Orders Are Not a Prior Restraint on Speech
H.H. argues the challenged orders are an unconstitutional prior restraint on speech.
We disagree.
A prior restraint is an order “that forbids certain speech in advance of the time the
communication is to occur.” (San Jose Mercury News, Inc. v. Criminal Grand Jury
(2004) 122 Cal.App.4th 410, 416.) “The California Constitution is more protective of
free speech rights than the federal Constitution, and California courts require
‘extraordinary circumstances’ before a prior restraint may be imposed. [Citations.]
Nonetheless, in determining the validity of a prior restraint, California courts engage in
an analysis of various factors similar to the federal constitutional analysis [citation], and
injunctive relief restraining speech under the California Constitution may be permissible
where the relief is necessary to ‘ “protect private rights” ’ and further a ‘sufficiently
strong public policy.’ ” (Molinaro v. Molinaro (2019) 33 Cal.App.5th 824, 832.) While
we agree that prior restraints on speech are only justified in extraordinary circumstances,
H.H. fails to convince us that the challenged orders constitute a prior restraint on speech.
H.H. argues the challenged orders constitute a prior restraint on speech because
Z.S. and S.S. “clearly requested that the trial court restrain [her] free speech rights” by
asking it to prohibit her from telling others or passing out documents about their financial
crimes in Iran. However, she fails to support this statement with a citation to the record
showing that Z.S. and S.S. actually asked the trial court to prohibit her from telling others
about their financial crimes in Iran, or, perhaps more importantly, that the trial court
13
issued an order prohibiting her from doing so. “ ‘It is the duty of a party to support the
arguments in its briefs by appropriate reference to the record, which includes providing
exact page citations.’ [Citations.] If a party fails to support an argument with the
necessary citations to the record, that portion of the brief may be stricken and the
argument deemed to have been waived.” (Duarte v. Chino Community Hospital (1999)
72 Cal.App.4th 849, 856.) With no citation to the record, we deem this argument to be
waived.
Even if the argument were not waived, we would reject it because the challenged
orders do not actually prohibit H.H. from telling others about Z.S.’s and S.S.’s alleged
financial crimes. Instead, the orders (which, as noted above, were issued on Judicial
Council form CH-130) state H.H. “must not do the following things to” Z.S. and S.S.:
“(1) Harass, intimidate, molest, attack, strike, stalk, threaten, assault (sexually or
otherwise), hit, abuse, destroy personal property of, or disturb the peace of the person.
[¶] (2) Contact [Z.S. or S.S.], either directly or indirectly, in any way, including but not
limited to, in person, by telephone, in writing, by public or private mail, by interoffice
mail, by e-mail, by text message, by fax, or by other electronic means.” The trial court
had the option of specifying other prohibited conduct on an attachment, but it did not do
so. On their face, the orders prohibit no speech, and thus do not constitute a prior
restraint on speech.
IV
Z.S.’s and S.S.’s Credibility
H.H.’s final argument is that she proved Z.S. and S.S. lied in another case, which
proved they were not credible witnesses, and the trial court thus should have afforded
very little weight to their testimony in this case. We disagree.
The alleged lie did not occur in this case. Instead, it occurred in a different case
involving requests for restraining orders that Z.S. and S.S. filed against Rostam Rostami
14
and Fariba Farinfar.7 In a posttrial brief that H.H. filed after the hearing in this case, she
stated that Z.S. and S.S. had claimed in the other cases that, on October 17, 2020,
Rostami tried to hit their car and threatened to kill them with a gun. According to a
police report attached to the posttrial brief, Z.S. and S.S. told the police that while they
were driving into their apartment complex and Rostami was driving out, Rostami
“swerved his car in the direction of our car like he was going to hit us” and “tried to run
us off the road.” They also told the police Rostami pulled up next to their car, rolled the
window down, and told them he was going to kill them with a gun. H.H. filed a video
with her posttrial brief, and she stated the video “conclusively and indisputably proves
that what [Z.S. and S.S.] claimed to have happened simply did not occur. . . . The video
conclusively proves that there were no verbal threats at all made by Rostam Rostami or
his wife about killing [Z.S. and S.S.] with a gun that they would borrow from a friend
. . . [, and] proves that Rostam Rostami did not try to hit [Z.S. and S.S.] with his car.”
We note that the incident depicted in the video is not one of the incidents on which
the requests for restraining orders against H.H. are based.8 We also note that it is
reasonably clear the video was not actually introduced into evidence or proffered at the
hearing in this case, because H.H. states the following in her posttrial brief: “Attached as
Exhibit 1 to the Declaration of Cyrus Zal [H.H.’s counsel] submitted herewith is a video
of the alleged incident in the parking lot . . . . [H.H.’s] counsel had referenced this video
in the Long Cause Hearing. . . . [¶] [H.H.] strongly urges and begs the Court to view this
7 There were four separate requests for restraining orders against Rostami and
Farinfar: case nos. 34-2020-70008185, 34-2020-70008188, 34-2020-70008189, and 34-
2020-70008190.
8 The incident in the video occurred on October 17, 2020. The first requests for
restraining orders against H.H. are based on an incident that occurred on December 3,
2020, and the second requests are based on an incident (or incidents) that occurred in
February 2021.
15
video.” These statements strongly suggest the video was not introduced at the hearing
and was first submitted with the posttrial brief. We also note there is nothing in the
record that discloses whether or not the trial court viewed or considered this late-
submitted video. We will not reverse a restraining order based on a video that was not
introduced at the hearing in this case.
Moreover, and more importantly, even if the video had been introduced at the
hearing, H.H. cites it solely to demonstrate Z.S. and S.S. were not credible in general
because they lied in another case. On appeal in a case such as this, however, we do not
consider the credibility of witnesses. (See Doe v. Regents of University of California
(2016) 5 Cal.App.5th 1055, 1073 [“ ‘On substantial evidence review, we do not “ . . .
consider the credibility of witnesses . . .” ’ ”]; Sav-On Drug Stores, Inc. v. Superior Court
(2004) 34 Cal.4th 319, 334 [“ ‘questions as to the . . . the credibility of witnesses . . . are
matters for the trial court to resolve’ ”].) “Venerable precedent holds that, in a bench
trial, the trial court is the ‘sole judge’ of witness credibility. [Citation.] The trial judge
may believe or disbelieve uncontradicted witnesses if there is any rational ground for
doing so. [Citation.] The fact finder’s determination of the veracity of a witness is
final.” (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 582.) This is because
“[f]act finders see and hear witnesses. The finder of the facts has a view appellate courts
lack. That view is better.” (Ibid.)
Particularly with no record of the hearing, we presume the evidence supports the
trial court’s express and implied findings, which would necessarily include a finding that
Z.S. and S.S. were credible witnesses. (Ehrler v. Ehrler, supra, 126 Cal.App.3d at
p. 154.)
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DISPOSITION
The civil harassment restraining orders are affirmed. The parties shall bear their
own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
/s/
EARL, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
MCADAM, J.*
* Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
17