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Filed 3/ 1/16 Watanabe v. Majumdar CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

KENNETH TOM O MI WATANABE , Plaintiff and Respondent
,
v. S R IP ARNA MAJUMDAR , Defendant and Appella nt. A1 44650
( San Francisco County Super. Ct. No. CCH15576535 )

S riparna Maju mdar challenges a civil harassment restr aining order against her on the grounds that the order is not su pported by substantial evidence
, is overbroad , and
violates her First Am endment rights

. We affirm. 1

I. F ACTUAL AND P ROCEDURAL B ACKGROUND In January 2015, Kenneth Watanabe petitioned the trial court to issue a civil harassment restraining order against Majumdar. M a jumdar and Watanabe met through
their involvement in the “swing dance community.” In support of his petition for a restraining order
, Watanabe alleged, “F or about the last four years, [Majumdar] has written over 4700 emails and texts and calls my cell phone, even though I have repeatedly told her to stop . [Majumdar] appears to be obsessed with me, believing that we are dating and love each other, even though I have repeatedly told her that I do not

1 By its terms, the restraining order expired on February 4, 2016, one year after it was entered. We decline to decide whether the appeal is moot because neither party has raised the issue and we reject Majumdar’s claims on the merits.2

love her or eve n consider her a friend.” He further alleged that “ [a]fter repeated requests
to not make an y contact or communication with me, [ Majumdar ] visited my residence and rang the doorbell, claiming that I had invited her, when, in fact, I had not.” Watanabe asserted, “[A] lthough I was not physically harmed or injured, I was upset by her ignoring of my request t o avoid contact with me.” He asked for an order re quiring Majumdar to stay 1 50 yards away from him an d his home and workplace. Attached to Watanabe’s request were nine pages of printed electronic messages that Majumdar apparently sent to him, including some exchanges between Majumdar and a third person,
N athan Dias, on which Watanabe was copied

. Majumdar filed a response and a signed declaration

. In the declaration , she asserted that she had ended a dating relationship with Watanabe and had “never harassed or threatened or stalked [Watanabe] in any way.”
A hearing was held on February 4, 2015, a nd the record reflects that Ma j umdar introduced into evidence two pol ice reports

. But the record is silent about whether other evidence or testimony was considered. No transcript of the hearing appears in the appellate record.
At the conclusion of the hearing, the trial court issued a n order restraining
Ma j umdar for a period of one year from harassing, intimidating, molesting, attacking, striking, assaulting, hitting, or abusing Watanabe, and from destroying his personal property or disturbing his peace. The order also prohibited Majumdar from directly or indirectly co ntacting Watanabe by a variety of written and electronic methods, “ including Skype ” ( capitalization omitted ) , and it required Majumdar to stay at least ten yards away from Watanabe, his home, and his workplace. The court specif ically found that the order
was “ based on unlawful violence, a credible threat of violence, or stalking.”3 II. D ISCUSSION
A. We Must Presume that the Restraining Order I s Supported by Substantial Evidence Because the Appellate Record Does Not Include a R eporter’s Transcript

. Majumdar argues that the restraining order must be reversed because it was not supported by substantial evidence and she had legitimate reasons for her actions . The argument lacks merit.
Code of Civil Procedure section 527.6 2 provides a mechanism for vic tims of harassment to obtain an order enjoin ing further harassment. Th e statute was e nacted to protect the “ ‘ right to pursue safety, happiness and privacy as guaranteed by the
California C onstitution.’ ” ( Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1412

. ) Under
section 527.6 , h arassment 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 legi timate purpose. ” (§ 527.6, subd. (b)(3). ) A 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 computer email.” (§ 527.6, subd. (b)(1).) “ The course of conduct must be such as 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).) I f
the trial court “finds by clear and con vincing evidence that unlawful harassment exists ,” a restraining order “shall issue. ” ( § 527.6, subd. (i) .) In reviewing a trial court’s issuance of a civil harassment restraining order, we generally resolve all factual conflicts and questions of credibility in favor of the prevailing party, and indulge all reasonable inferences to uphold the judgment, so long as

2 All subsequent statutory referen ces are to the Code of Civil Procedure.4

it is supported by substantial evidence

— evidence that is reasonable, credible, and of solid
value. ( Schild v. Rubin (1991) 232 Cal.App.3 d 755, 762 ; see also Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137 .) The appellant has the burden “ ‘to demonstrate that
there is no substantial evidence to support the challenged findings, ’ ” not merely that
evidence exists supporting his or h er case. ( Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 , italics in original .) Thus, in “ ‘challeng[ing] the sufficiency of the evidence to support a particular finding ,’ ” the appellant “ ‘ must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient

. [Citation.]’ [Citation.] ‘[W]hen an appellant urges the insufficiency of the evidence to support the findings it is his duty to set forth a fair and adequate statement of the
evidence which is claime d to be insufficient. [The appellant] cannot shift this burden onto respondent, nor is a reviewing court required to undertake an independent examination of the record when appellant has shirked his [or her] responsibility in this respect.’ ” ( Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409 , italics in original .) Majumdar cannot sustain her appellate burden because no transcript of the February 4 hearing appears in the record . “ The California Rules of Court provide an appellant with a choice of s everal types of records upon which to take an appeal. The choices include a reporter ’ s transcript, a clerk’s transcript, an agreed statement and a settled statement. (Cal. Rules of Court, rules 8.831, 8.832, 8.834, 8.836, 8.837.)” ( Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.) When an appellant elects to proceed on a clerk ’ s transcript only , as Majumdar did here
, “ every presumption is in favor of the validity of the judgment and all facts consistent with its validity will be presumed to have ex isted. The sufficiency of the evidence is not open to review. The
trial court ’ s findings of fact and conclusions of law are presumed to be supported by substantial evidence and are binding on the appellate court, unless reversible error appears on the re cord.” ( Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 924; see also Cal. Rules of Court, rule 8.163.) “To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.] The
effec t of this rule is that an appellant who attacks a judgment but supplies no reporter ’ s5

transcript will be precluded from raising an argument as to t he sufficiency of the
evidence. ” ( Estate of Fain (1999) 75 Cal.App.4th 973, 992. ) Consistent with these pri nciples, w e must presume that there is substantial evidence to support the restraining
order here b ecause we have no transcript of the relevant hearing

. B. The Restraining Order I s Not Overbroad

. Ma j u mdar also claims that the restraining order is overbroad because it “seems to restrain [ her ] from using Skype for any purpose.” The argument is unpersuasive for
several reasons. First, the restraining order is not nearly as expansive as Majumdar supposes. The
order prohibits Maj umdar “from doing the following things to [Watanabe]”: “(1) . . . Harass , intimidate, molest, attack, strike, stalk, threaten, assault (sexually or otherwise), hit, abuse, destroy personal property of, or dist urb the peace of any person. (2) . . . Contact the person, 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. (3) . . . T ake any action to obtain the person’s address or location. . . . (4) . . . Including SKYPE.” Although perhaps imprecise, t he order clearly does not prohibit Majumdar from using Skype with everyone; it only prohibits her from using it to harass or contact Watanabe. Second, Majumdar ’s objection to the prohibition on using Skype is inconsistent
with her failure to challenge the term restraining her from contacting Watanabe “in any

way

. ” Majumdar fails to explain how striking the prohibition on using Skype would afford any relief, given the presence of this other term. Finally, just as Majumdar’s failure to designate a transcript of the February 4 hearing prevents us from evaluating her insufficient

- evidence claim , it prevents us from determining whether th e restraining order is overb r oad

. ( See Construction Financial v. Perlite Plastering Co. (1997) 53 Cal.App.4th 170, 179.) For all we know, evidence about Skype justifying the term prohibiting its use was introduced and considered at the hearing.
We conclude that the restraining order is sufficiently narrow.6

C. The Restraining Order Does Not Violate Majumdar’s First Amendment Rights

. Without citing any authority
, Majumdar lastly argues that the restraining order violates her First Amendment right s because it prevents her “from going to any dance venues if [ Watanabe ] happens to be there ” and require s h er “to monitor all the locations [of Watanabe ’s] dance venues,” so that she may “violate the restraining order without any intention of doing so.” T he argument is specious. Majumdar fail s to explain why she
cannot stay ten yards away from Watanabe and refrain from harass ing him even if the
two find themselves at the same event.

T o the extent the order prohibits Majumdar’s speech, it does not prohibi t any constitutionally protected speech. “ [S] peech that constitutes ‘harassment’ within the meaning of section 527.6 is not constitutionally protected, and the victim of the harassment may obtain injunctive relief.” ( Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1250.) The right to free speech “does not include the right to repeatedly invade another person ’ s constitutional rights of privacy and the pursuit of happiness through the use of acts a nd threats that evidence a pattern of harassment designed to inflict substantial emotional
distress.” ( People v. Borrell i (2000) 77 Cal.App.4th 703, 716.) The restraining order was entered only after the trial court determined that Majumdar harassed Wata nabe . It s prohibition of continued harassment does not violate Majumdar’s First Amendment rights. III. D ISPOSITION
The judgment is affirmed

. Watanabe is awarded costs, if any, on appeal.7 _________________________ Humes, P.J.

We concur:

_________________________ Dondero, J.

_________________________ Banke, J.