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Filed 8/2/22 Ting v. Zulueta CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

FONG SING TING et al.,

Plaintiffs and Appellants,

v.

ANTHONY ZULUETA,

Defendant and Respondent.

A164175

(City & County of San Francisco

Super. Ct. Nos. CCH21583987,

CCH21584006)

In this highly contentious dispute between neighbors, the trial court 

issued mutual civil harassment restraining orders pursuant to Code of Civil 

Procedure section 527.6.

1 On appeal, Fong Sing Ting and Koon Hung Ting2

contend there was insufficient evidence to support the one-year civil 

harassment restraining orders issued against them in favor of their next-door 

neighbor Anthony Zulueta. We disagree and affirm the order.

1 All further statutory references are to the Code of Civil Procedure.

2 For purposes of clarity, we shall refer to Fong Sing Ting and Koon 

Hung Ting individually by their first names (Fong and Koon) and collectively 

as appellants or as the Tings.
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BACKGROUND

1. Fong’s Request for a Restraining Order 

On August 26, 2021, Fong, then 76 years old, filed a request for an 

elder abuse restraining order to protect himself, his 76-year-old wife, and his 

42-year-old son, Koon, from harassment by Zulueta. Fong stated that Zulueta 

had started yardwork which encroached on Fong’s property, liquidated soil on 

his property, and destroyed a tree. According to Fong, Zulueta did not heed 

the request to refrain from working on Fong’s property. Zulueta reportedly 

responded with derogatory name calling and verbal insults aimed at Fong’s 

son, Koon. On August 25, 2021, Zulueta used a shovel to throw soil at Fong 

and Koon.

On August 27, 2021, the trial court issued a temporary restraining 

order against Zulueta and set a hearing for October 15, 2021.

2. Zulueta’s Request for a Restraining Order 

On September 7, 2021, Zulueta filed a request for a civil harassment 

restraining order against Koon and Fong to protect himself, his wife, and 

their 10-year-old son and 17-year-old daughter. On August 25, 2021, Zulueta 

was working on a retaining wall project in his backyard, when Fong and 

Koon approached him and stood directly next to the hole Zulueta was back 

filling. Zulueta said that the “wind took part of the sand” and “blew [it] 

towards” Fong and Koon. Fong and Koon then picked up handfuls of sand 

and threw it at Zulueta, which got in his hair, eyes, and ears. Zulueta had 

video evidence of the incident.

Zuletta included an attachment listing previous harassment: On 

January 9, 2021 Fong and Koon yelled at Zulueta, his wife, and his workers 

about the property line and a tree coming down due to sand falling to their 

side of the property line. The tree was “placed back” and remained alive. The 
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yelling caused Zulueta’s wife to “feel harassed.” Fong asked Zulueta for his 

property insurance so that he could file a claim against him. Zulueta provided 

the information and advised his insurer that Fong intended to file a claim for 

the tree.

On January 31, 2021, Fong and Koon yelled at Zulueta’s workers and 

attempted to remove a post from their property. Zulueta told Fong and Koon 

that the post would be removed once his repair work was completed.

On February 6, 2021, Fong told Zulueta he could put some dirt in a hole 

in the middle of Fong’s backyard. However, the next day, Fong yelled at 

Zulueta, his wife and a worker, and told them they could not go onto his 

property in order to make certain repairs. Fong and his wife called the police.

The responding officers said that Zulueta was not doing anything wrong, but 

in the future he should obtain written authorization to be in a neighbor’s 

yard. After the police left, Fong pushed his tree at Zulueta.

On May 16, 2021, Fong and Koon yelled at Zulueta and his workers 

and threatened to cut down the wooden forms that had been placed for 

pouring concrete. Zulueta called the police. The responding officers told Fong 

and Koon they would be cited for vandalism if they touched or cut the wooden 

forms.

On an unspecified occasion, Koon told Zulueta’s 10-year old son to 

return inside his house for his own good. Zulueta’s son also reported that on 

another occasion, while he was riding his bike and playing in the front of the 

house, Koon told him to stay on his own property.

Zulueta also attached a letter from his wife, in which she described 

constant harassment by Fong and Koon against herself and her family

whenever they are in their own backyard. Mrs. Zulueta reported that her 

family “feels threatened, upset and anxious” by Fong and Koon when they are 
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outside in their respective backyards. She explained that in light of the 

COVID-19 pandemic, she and her husband had been trying to make their 

backyard a safe place for their children to play and get some fresh air.

Mrs. Zulueta stated, “As we are trying to fix our backyard, our neighbors are 

constantly prolonging the process by viciously attacking us verbally and 

whomever is in our backyard at the time which causes our project to halt.”

On multiple occasions, the Zuluetas have tried to talk to Fong and Koon “in a 

calm manner” but Fong and Koon “become hostile” with the Zuluetas, which 

then “turns into a more assaultive conversation.” 

Mrs. Zulueta wrote that it is not healthy for their “young children to 

feel anxious and threatened when they see our neighbors, especially when in 

our own backyard.” She concluded the letter by stating, “This harassment 

and hostility is causing anxiety which is putting a toll and negative imprint 

on our children, which needs to be stopped as it’s traumatizing and affecting 

their childhood.”

The trial court denied Zulueta’s request pending the hearing scheduled 

for October 15, 2021.

3. Hearing on the Restraining Order Applications 

The court held a hearing on the requests on October 15, 2021. At the 

start of the proceedings, the court stated that it had reviewed the evidence 

submitted by both parties. The court expressed concern that based on the 

evidence submitted, Fong and Koon had engaged in conduct that was for “no 

other purpose than to harass” Zulueta. Specifically, the court noted Zulueta 

had not approached the Tings and that there was “evidence that there’s been 

a constant interference with [Zulueta’s] attempt to do his job, as to workers, 

and him, and his family.” The court indicated it was “tempted to issue a 

restraining order against [Fong] and [Koon], and not against . . . Zulueta.”
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Zulueta told the court that “every time” he and his family “work on our 

backyard” Fong and Koon “tend to be aggressive” and “harass” him, his wife, 

their children, and the workers the Zuluetas have hired to help with their 

yard. Zulueta said that Fong and Koon would say things like, “Hey, this our 

property. Don’t . . . come out here. This is not yours. Why the heck are you 

here?” At one point, one of the Tings told Zulueta’s 10-year old son that he 

should go back inside the house.

Zulueta advised the court that he had a video showing Koon being 

aggressive towards the Zuluetas as they worked on their backyard project.

Zulueta also had another video showing how Koon “was trying to cut the 

forms,” which were described as wooden structures designed to hold concrete.

After reviewing the videos, the court stated it had observed Fong and Koon 

yelling at the gate between the two properties, as well as heard Zulueta 

calling Koon “ fat boy, fat boy, what you going to do fat boy?” The court also 

saw someone shoveling sand in the direction of Fong and Koon. Zulueta said 

he was the person shoveling sand and his friend was the one calling Koon “fat 

boy.” The court remarked that it appeared that Zulueta had purposely 

thrown sand at Fong and Koon.

4. Trial Court Ruling 

After hearing from the parties and reviewing the evidence presented, 

the court issued mutual no harassment restraining orders, which are set to 

expire on October 15, 2022. With respect to Zulueta and his family, Fong and 

Koon were ordered not to do any of the following: “Harass, intimidate, molest, 

attack, strike, stalk, threaten, assault sexually or otherwise, hit, abuse, 

destroy personal property of, or disturb the peace of the person.” Additionally, 

Fong and Koon were ordered to not “contact any of [the Zuluetas] either 

directly or indirectly, in any way, including but not limited to in person, by 
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telephone, in writing, by public or private mail . . . by e-mail, by text message, 

by fax, or by other electronic means.” The court further ordered that Fong 

and Koon would be able to contact Zulueta and his family in “writing only 

and only about the construction that is taking place” at Zulueta’s property.

DISCUSSION

1. Applicable Law and Standard of Review 

Section 527.6, subdivision (a)(1) states: “A person who has suffered 

harassment . . . may seek . . . an order after hearing prohibiting harassment

. . . .” Harassment includes “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).) Further, “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.” (§ 527.6, subd. (b)(1).) If the court 

“finds by clear and convincing evidence that unlawful harassment exists,” the 

court must issue a restraining order prohibiting the harassment. (§ 527.6, 

subd. (i).)

“In assessing whether substantial evidence supports the requisite 

elements of willful harassment, as defined in . . . section 527.6, we review the 

evidence before the trial court in accordance with the customary rules of 

appellate review. We resolve all factual conflicts and questions of credibility 

in favor of the prevailing party and indulge in all legitimate and reasonable 

inferences to uphold the finding of the trial court if it is supported by 

substantial evidence which is reasonable, credible and of solid value.” (Schild 

v. Rubin (1991) 232 Cal.App.3d 755, 762 (Schild).) 
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2. Sufficiency of the Evidence 

Appellants Fong and Koon argue the evidence was insufficient to 

support the issuance of the restraining orders. Appellants’ essential 

contention on appeal seems to be that their conduct did not rise to 

harassment within the meaning of section 527.6.

A. Course of Conduct 

Appellants assert the only emotional distress reported by Zulueta was 

that his wife felt “harassed” on January 9, 2021, when appellants yelled at 

him, his wife, and their workers in response to a tree falling over. Appellants 

contend this single incident does not constitute a course of conduct. Were this 

the only incident, appellants might have a stronger argument, but the record 

belies this claim. The record establishes “a pattern of conduct”—repeated 

incidents of screaming and yelling—with “a continuity of purpose”—to 

interfere with Zulueta’s use and enjoyment of his backyard, which occurred 

“over a period of time.” (§ 527.6, subd. (b)(1).)

B. Emotional Distress 

Appellants claim there is insufficient evidence that Zulueta suffered 

substantial emotional distress as a result of their actions or that a reasonable 

person would have suffered substantial emotional distress under the 

circumstances. In particular, they argue the evidence of emotional distress 

was inadmissible, conclusory, and trivial.

In order for a course of conduct to justify the issuance of an injunction 

under section 527.6, that 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).) 

“Section 527.6 does not define the phrase ‘substantial emotional distress.’ 

However, in the analogous context of the tort of intentional infliction of 
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emotional distress, the similar phrase ‘severe emotional distress’ means 

highly unpleasant mental suffering or anguish ‘from socially unacceptable 

conduct’ [citation], which entails such intense, enduring and nontrivial 

emotional distress that ‘no reasonable [person] in a civilized society should be 

expected to endure it.’ ” (Schild, supra, 232 Cal.App.3d at pp. 762–763.)

As an initial matter, we note that it is not necessary that there be 

direct testimony presented by a person seeking a restraining order that he or 

she suffered emotional distress as a result of the harassment to justify the 

issuance of the order. If the evidence otherwise raises an inference of such 

distress, it is sufficient to support an injunction. (Ensworth v. Mullvain

(1990) 224 Cal.App.3d 1105, 1110–1111 (Ensworth), disapproved on other 

grounds in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1003, fn. 4.) Here, in 

his petition, Zulueta included a letter from his wife stating, “My family feels 

threatened, upset and anxious when our neighbors (Koon Hung Ting and 

Fong Sing Ting) go outside into their backyard while we are in ours.”

Appellants contend the letter was not properly before the court because it did 

not qualify as oral testimony, an affidavit, or deposition. Appellants, however, 

did not object to the admission of any of the evidence before or during the 

court proceeding. For this reason, they have forfeited their claim. (Duronslet 

v. Kamps (2012) 203 Cal.App.4th 717, 726.) We will not consider procedural 

defects or allegedly erroneous rulings when an objection could have been but 

was not raised in the trial court by some appropriate method. (Children’s 

Hospital & Medical Center v. Bontá (2002) 97 Cal.App.4th 740, 776.) The 

purpose of this doctrine is to encourage a party to bring errors to the 

attention of the trial court, so that they may be corrected or avoided. (Keener 

v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264.) “It is unfair to the trial judge 

and to the adverse party to take advantage of an alleged error on appeal 
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where it could easily have been corrected at trial.” (Children’s Hospital, at 

p. 776.) In any event, hearsay evidence is admissible at a section 527.6 

hearing. (Duronslet, at pp. 728–729.)

We disagree with appellants’ contention that Mrs. Zulueta’s letter 

provides only conclusory assertions. Mrs. Zulueta stated that she and her

family feel “threatened, upset, and anxious” whenever they are outside in 

their own backyard and appellants are outside in their backyard. She 

expressed that the continued hostility and harassment was traumatizing her 

children as they no longer feel safe in their own backyard. Mrs. Zulueta 

further reported that her children “feel anxious and threatened” whenever 

they see appellants. We conclude there is sufficient evidence that Zulueta and 

his family suffered substantial emotional distress. (See Ensworth, supra,

224 Cal.App.3d at p. 1112 [evidence sufficient where plaintiff “stated in her 

declaration that [defendant’s] activities indeed had caused her ‘significant 

emotional distress’ ”].)

Appellants’ reliance on Schild, supra, 232 Cal.App.3d 755 is misplaced.

Schild involved a complaint by homeowners that the noise created by their 

neighbors’ children playing basketball for up to 30 minutes in the neighbors’

backyard interrupted the homeowners’ “Saturday and Sunday afternoon naps 

and, in general, interfered with their ability to rest and relax in their own 

home.” (Id. at p. 758.) The appellate court dissolved the injunction finding, 

“The noise from a ball and the verbal chatter by several people engaged in 

recreational basketball play in the residential backyard described herein, 

playing at reasonable times of the day for less than 30 minutes at a time and 

no more than five times per week, does not constitute unlawful harassment 

under section 527.6.” (Schild, at p. 761.) Furthermore, the court concluded 

there was no evidence the basketball playing had caused the complainants to 
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suffer actual and substantial emotional distress. (Id. at p. 763.) There was no 

“medical, psychological or other evidence in the record that the sounds of 

basketball playing, however offensive and annoying, caused the 

[complainants] substantial emotional distress,” and the court concluded such 

conduct would not cause a reasonable person to suffer substantial emotional 

distress. (Ibid.) “A reasonable person must expect to suffer and submit to 

some inconveniences and annoyances from the reasonable use of property by 

neighbors, particularly in the sometimes close living of a suburban 

residential neighborhood.” (Ibid.)

Appellants’ acts of continual verbal assaults is not comparable to the 

innocuous conduct—children playing basketball—at issue in Schild. The 

anxiety and fear experienced by Zulueta and his family qualified as “highly 

unpleasant mental suffering or anguish,” that was caused by appellants’

“ ‘socially unacceptable conduct.’ ” (Schild, supra, 232 Cal.App.3d at pp. 762–

763.) In addition, “ ‘no reasonable [person] in a civilized society should be 

expected to endure’ ” (id. at p. 763) continual verbal aggression whenever 

they are outside in their own backyard, as Zulueta and his family have. 

Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496 (Cochran), cited by 

appellants, does not alter this conclusion. Quoting out of context language 

from Cochran, appellants argue a reasonable person would not suffer 

substantial emotional distress from “ ‘mere insults, indignities, threats,

annoyances, petty oppressions, or other trivialities. The rough edges of our 

society are still in need of a good deal of filing down, and in the meantime 

plaintiffs must necessarily be expected and required to be hardened to a 

certain amount of rough language, and to occasional acts that are definitely 

inconsiderate and unkind. There is no occasion for the law to intervene in 

every case where some one’s feelings are hurt. There must still be freedom to 
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express an unflattering opinion, and some safety valve must be left through 

which irascible tempers may blow off relatively harmless steam.’ ” (Ibid., 

italics omitted.) However, Cochran did not involve a civil harassment 

restraining order under section 526.6, but involved an appeal of a judgment 

of dismissal after a demurrer was sustained without leave to amend. (Id. at 

p. 493.) More importantly, the underlying cause of action was for intentional 

infliction of emotional distress, which requires “extreme and outrageous 

conduct.” (Id. at p. 494.) It was within this context that the court correctly 

observed that “ ‘mere insults’ ” and “ ‘rough language’ ” did not constitute 

actionable emotional distress.3 (Id. at p. 496.)

In sum, the trial court had an ample basis to conclude that a 

reasonable person would have similarly suffered substantial emotional 

distress.

C. Legitimate Purpose 

Appellants argue that their interactions with Zulueta served the 

legitimate purpose of protecting their property, and thus, cannot constitute 

harassment under section 527.6 Appellants contend that the complained-of 

conduct was in response to what they reasonably perceived to be Zulueta’s 

encroachment on and interference with the reasonable enjoyment of their

property. Appellants rely on Byers v. Cathcart (1997) 57 Cal.App.4th 805

(Byers) to support this argument. We are not persuaded.

In Byers, the trial court granted one party a section 527.6 injunction 

that expressly prohibited the other party from parking in a driveway, despite 

that party’s claim she had an easement. The appellate court reversed, 

3 Similarly inapt is Hughes v. Pair (2009) 46 Cal 4th1035, which 

involved a claim for intentional emotional distress in the context of a sexual 

harassment claim.
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explaining that in order to constitute harassment under section 527.6, 

subdivision (b), “the complained-of conduct must have ‘no legitimate

purpose.’ ” (Byers, supra, 57 Cal.App.4th at pp. 807–808.) The Byers court 

concluded that the trial court in that case had erred in issuing an injunction 

pursuant to 527.6 because one could not say that the conduct at issue—

parking along the side of a driveway—served no legitimate purpose. (Id. at 

p. 808.) The court reasoned: “It can hardly be disputed, however, that parking 

a car is a legitimate necessity. Parking generally is not conduct having ‘no

legitimate purpose.’ There is no evidence here that the parking was done for 

the purpose of annoying defendants as opposed to the purpose of storing a 

vehicle between periods of use. The no-parking provision of the injunction 

was therefore beyond the scope of section 527.6.” (Ibid.)

The only conduct at issue in Byers was the plaintiff’s parking a car. In 

contrast here, Zulueta presented evidence that appellants repeatedly verbally 

harassed Zulueta and his family, attempted to cut down wooden posts on 

Zulueta’s property, and threw sand at Zulueta. The conduct at issue in this 

case is thus plainly distinguishable from that at issue in Byers. In any event, 

even assuming the actions were motivated by an attempt to defend their 

property rights, neither Byers, nor any other case of which we are aware, 

stands for the proposition that a party may threaten or otherwise harass 

people if the party is motivated by a legitimate purpose.

DISPOSITION

The challenged orders are affirmed. In the interests of justice, each party 

to bear their own costs and attorney fees on appeal. 
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_________________________

Nadler, J.*

WE CONCUR:

_________________________

Pollak, P.J.

_________________________

Brown, J.

Ting v. Zulueta A164175

* Judge of the Superior Court of California, County of Sonoma, assigned 

by the Chief Justice pursuant to article VI, section 6 of the California 

Constitution.