Wells Fargo Bank v. Mohazzabi CA2/5

Filed 1/10/22 Wells Fargo Bank v. Mohazzabi CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
WELLS FARGO BANK, N.A. B308081
Plaintiff and Respondent, (Los Angeles County Super.
Ct. No. 20PSRO00945)
v.
BEHROOZ MOHAZZABI,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, John A. Slawson, Judge. Affirmed.
Behrooz Mohazzabi, self-represented Appellant.
Severson & Werson, Jan T. Chilton and Kerry W. Franich
for Respondent.
__________________________
INTRODUCTION
Wells Fargo Bank, N.A. sought a restraining order under
the Workplace Violence Safety Act, Code of Civil Procedure
section 527.8, against Behrooz Mohazzabi on behalf of its
employee, Lorena Ocana.1 The trial court granted Wells Fargo’s
petition and enjoined Mohazzabi from contacting or approaching
Ocana for two years. Mohazzabi appeals, arguing that the order
was not supported by substantial evidence. We affirm.
FACTS AND PROCEDURAL BACKGROUND
1. Mohazzabi’s Escalating Behavior
Wells Fargo’s request for a workplace restraining order had
its genesis in litigation Mohazzabi brought against Wells Fargo
for an alleged fraudulent withdrawal from his account. In 2017,
while the lawsuit was pending, Mohazzabi sent Wells Fargo an
email threatening to harm himself. Mohazzabi’s claim against
Wells Fargo was eventually arbitrated. In arbitration, Wells
Fargo employee Lorena Ocana provided a declaration in support
of Wells Fargo’s motion for summary judgment. Wells Fargo
prevailed in the arbitration when the arbitrator granted
summary judgment.
Mohazzabi then filed a lawsuit against Ocana, claiming she
had perjured herself in the declaration. Soon afterwards, Ocana
and her husband began receiving telephone calls from a phone
number, which Mohazzabi effectively admitted at the hearing
was his.2 The caller did not speak English well, demanded to talk
1 All undesignated statutory references are to the Code of
Civil Procedure.
2 Ocana testified that the phone number ended with the
numerals “0757.” Mohazzabi acknowledged that his phone
number ended with the same numerals.
2
to Ocana, and wanted her address. After Ocana blocked the
phone number, she began receiving calls from a blocked phone
number. Ocana retained counsel; on July 29, 2020, her counsel
sent Mohazzabi a cease and desist letter informing him to stop
communicating with Ocana and direct all communications to
counsel.3 On August 5, 2020, Ocana’s counsel emailed Mohazzabi
telling him to direct all communications to counsel and to refrain
from contacting Ocana. Mohazzabi admitted receiving the letter
and email. In the email, counsel also informed Mohazzabi that
counsel accepted service of Mohazzabi’s complaint on Ocana’s
behalf. Nonetheless, Mohazzabi responded via email also dated
August 5, 2020, that counsel received the complaint a week ago
but had not returned the proof of service, and that he had now
hired a registered process server to serve Ocana.
Four days later, on August 9, 2020, at about 11:00 p.m., a
man walked through the front gates of Ocana’s property to her
front door; he knocked very loudly on her door. The individual
was looking for Ocana and demanding to speak with her.
Ocana’s husband answered the door. Ocana tended to her
frightened minor children who were awakened by the knocking.
The unidentified man would not immediately leave. Instead, he
got into his car and parked directly in front of Ocana’s house.
Then, the man moved his car a short distance down the street,
such that Ocana could see him over her fence. The man in the
car eventually left. Although the trial court did not make an
express finding on the issue, the evidence suggested that
3 Ocana’s retained counsel is the same counsel who
represented Wells Fargo at the hearing on the restraining order
in the trial court.
3
this man was the process server who, according to his
August 5, 2020 email, Mohazzabi had hired.
The next day, Ocana took her children to her mother’s
house because she was frightened by the incident, specifically by
the way the man was yelling for her at her door, his tone, and the
fact he pushed through the gate and went up to her front door
late at night.
2. Petition for a Workplace Restraining Order
On August 14, 2020, Wells Fargo filed a petition for a
section 527.8 workplace violence restraining order against
Mohazzabi on behalf of Ocana. The petition does not appear in
the clerk’s transcript. At the hearing, Wells Fargo’s attorney
inquired whether two declarations filed in support of the petition
were in the court file. The trial court confirmed that they were.
Appellant did not include the declarations in the record on
appeal.
Mohazzabi’s response generally denied the petition’s
allegations. He also claimed that he was trying to obtain Ocana’s
home address so that he could serve her with the complaint he
had recently filed against her.
Both Ocana and Mohazzabi testified at the hearing. We
have summarized their testimony in section 1 above consistent
with our standard of review.4 At the close of the hearing, the
trial court heard brief argument and issued a restraining order
4 “On appeal, . . . we review an injunction issued under
section 527.8 to determine whether the necessary factual findings
are supported by substantial evidence. [Citation.] Accordingly,
we resolve all factual conflicts and questions of credibility in
favor of the prevailing party, and draw all reasonable inferences
in support of the trial court’s findings.” (City of San Jose v.
Garbett (2010) 190 Cal.App.4th 526, 538 (Garbett).)
4
against Mohazzabi. The court found by clear and convincing
evidence that Mohazzabi presented “a credible threat of violence”
to Ocana. (§ 527.8 subd. (a).)5 Mohazzabi appeals.
DISCUSSION
Section 527.8 allows an employer to seek a restraining
order on behalf of its employee who has “suffered unlawful
violence or a credible threat of violence from any individual, that
can reasonably be construed to be carried out or to have been
carried out at the workplace.” (§ 527.8, subd. (a).) A “credible
threat of violence” includes a “course of conduct that would place
a reasonable person in fear for his or her safety, or the safety of
his or her immediate family, and that serves no legitimate
purpose.” (§ 527.8, subd. (b)(2).) If the court “finds by clear and
convincing evidence that the respondent engaged in unlawful
violence or made a credible threat of violence, an order shall issue
prohibiting further unlawful violence or threats of violence.”
(§ 527.8, subd. (j).) We review the issuance of a section 527.8
restraining order for substantial evidence. (Garbett, supra,
190 Cal.App.4th at p. 538.)
1. Mohazzabi’s Failed to Provide an Adequate Record
As respondent correctly points out, the appellate record
does not include respondent’s petition for a restraining order or
the two declarations that respondent’s counsel represents,
without contradiction, were filed in support of the petition. “The
appellant must affirmatively demonstrate error by an adequate
record. In the absence of a contrary showing in the record, all
presumptions in favor of the trial court’s action will be made by
the appellate court. ‘If any matters could have been presented to
5 We do not recite the specific conduct prohibited by the
restraining order because it is not relevant to the issues on
appeal.
5
the court below which would have authorized the order [or
judgment] complained of, it will be presumed that such matters
were presented.’ ” (Bennett v. McCall (1993) 19 Cal.App.4th 122,
127.)
Mohazzabi failed to provide in the Clerk’s Transcript the
petition for the restraining order or the supporting declarations.
Without these documents, this court cannot meaningfully
consider the trial court’s order or assess appellant’s claim that
there was insufficient evidence to support the issuance of the
order. Accordingly, his claims of error must be resolved against
him. “The party seeking to challenge an order on appeal has the
burden to provide an adequate record to assess error. Where the
party fails to furnish an adequate record of the challenged
proceedings, his claim on appeal must be resolved against him.”
(Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28,
46; citation omitted. See Ketchum v. Moses (2001) 24 Cal.4th
1122, 1140–1141.)6
2. Substantial Evidence Supported the Issuance of the
Restraining Order
Even if we were to consider the merits of appellant’s
appeal, our disposition would be the same. Respondent produced
substantial evidence that Mohazzabi engaged in a course of
conduct that “would place a reasonable person in fear for his or
her safety, or the safety of his or her immediate family, and that
serves no legitimate purpose.” (§ 527.8, subd. (b)(2).) Mohazzabi
had previously threatened violence (harming himself) in the
6 That plaintiff is self-represented does not relieve him of his
burden on appeal. (See Rappleyea v. Campbell (1994) 8 Cal.4th
975, 984; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247 [self-
represented litigants “must follow correct rules of procedure” and
their failure to do so may forfeit any challenge on appeal].)
6
context of his dealings with Wells Fargo. The trial court
reasonably could have concluded this prior threat of violence,
arising out of the same series of transactions, added credibility to
Ocana’s claim as to Mohazzabi’s conduct towards her. After
Ocana provided a declaration in support of Wells Fargo’s motion
for summary judgment, Mohazzabi targeted Ocana. He sued her,
repeatedly called (or arranged for someone to call) her personal
phone, and demanded her address.
The trial court reasonably could have rejected Mohazzabi’s
claim that he was merely trying to serve her with the summons
and complaint. Substantial evidence also supported the implied
findings that, after Ocana’s counsel accepted service of
Mohazzabi’s complaint and requested Mohazzabi not to contact
Ocana, four days later a process server acting at Mohazzabi’s
direction went to Ocana’s home late at night, waking and
frightening the family. Ocana was so concerned about
Mohazzabi’s escalating tactics, she moved her minor children to
her mother’s home. The increasingly aggressive conduct, which
served no legitimate purpose, and Mohazzabi’s history of
threatening violence provided substantial evidence supporting
the court’s restraining order.
Mohazzabi offers several reasons why the evidence was
legally insufficient. First he points out that he never worked for
Wells Fargo. The Workplace Violence Safety Act permits an
employer to seek a restraining order against “any individual.” It
is not limited to restraining conduct of an employer’s employee.
(§ 527.8, subd. (a).) Mohazzabi also contends that he lives in the
Bay Area and Ocana lives in Los Angeles. This argument fails to
address the evidence before the court. The geographical distance
does not prevent Mohazzabi from picking up a phone to call
Ocana, or from driving or flying to Los Angeles to harass or make
physical contact with her or her family. Mohazzabi cites no legal
7
authority for either of these assertions and we may disregard
them. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals
and Writs (The Rutter Group 2021) ¶ 9:21 [“appellate court can
treat as waived or meritless any issue that, although raised in
the briefs, is not supported by pertinent or cognizable legal
argument or proper citation of authority”].)
Mohazzabi also contends Ocana failed to establish that the
“shadowy man” who knocked at her door and lingered outside her
home was Mohazzabi. This contention too is a non-starter. The
trial court reasonably could have found that either Mohazzabi or
someone acting on his behalf appeared at Ocana’s home late at
night and had made the earlier phone calls. Lastly, without
citation to the record, Mohazzabi argues that the trial court
deemed him “guilty” because he “looks like a person from [the]
middle east.” Accusations of this nature, without any basis in
fact go nowhere in a court of law. We have reviewed the record
and find no evidence that supports Mohazzabi’s assertion.7
7 Mohazzabi requests this court to “grant the attachment” of
his phone records. Mohazzabi did not designate any of the trial
exhibits in his Notice Designating Record on Appeal, and we
decline to consider new documents at this late stage. “It is an
elementary rule of appellate procedure that, when reviewing the
correctness of a trial court’s judgment [or order], an appellate
court will consider only matters which were part of the record at
the time the judgment [or order] was entered. [Citation.]”
(Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813.) To
the extent the court may have denied the admission of certain
exhibits, Mohazzabi has not demonstrated the trial court erred in
its ruling.
8
DISPOSITION
We affirm the court’s order. Wells Fargo, N.A. is awarded
costs on appeal.
RUBIN, P.J.
I CONCUR:
MOOR, J.
9
Wells Fargo Bank, N.A. v. Behrooz Mohazzabi
B308081
BAKER, J., Concurring
I join the opinion for the court, with the exception of Part 2
of the Discussion section.
BAKER, J.