Filed 3/17/14 Sinany v. Kheroyan CA2/7

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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


MANOOSH SINANY,                                                      B243092

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. ES01559)
         v.

SHUSHANIK KHEROYAN,

         Defendant and Appellant.




                   APPEAL from an order of the Superior Court of Los Angeles County,
Laura A. Matz, Judge. Reversed.


                   Sheppard, Mullin, Richter & Hampton, Moe Keshavarzi and David
Dworsky for Defendant and Appellant.


                   No appearance for Plaintiff and Respondent.
                            _______________________________________
       Appellant Shushank Kheroyan (Kheroyan) appeals after a civil harassment
restraining order was issued against her pursuant to an application brought by her
neighbor, respondent Manoosh Sinany (Sinany). The order, issued after a hearing on
June 8, 2012, requires Kheroyan to stay at least 10 yards away from Sinany and her
family for a period of three years. We reverse.
                        FACTUAL & PROCEDURAL BACKGROUND
       Respondent Sinany1 rents a house on the front portion of a property in Glendale.
Appellant Kheroyan rents the back house from the same landlord. There is a driveway or
street which goes past Sinany’s house to Kheroyan’s house.
       There has been a long-standing dispute between the parties over the use of the
driveway. Sinany contends the landlord told her she could park two cars in the driveway.
Kheroyan claims that this blocks access to her house, and more importantly access by her
mother. Apparently Kheroyan has parked her mother’s van in the same driveway which
Sinany thought was hers to use. Kheroyan claims she has an agreement with the landlord
which allows her to walk up the driveway for access to her house.
       In addition, there is a dispute over the city-issued trash cans. Sinany accused
Kheroyan of stealing the trash cans and accordingly, Sinany appropriated the trash cans
by writing her name on them. Kheroyan claims she must be able to use the trash cans.
       Sinany lives with her husband, a daughter, and twin 14-year-old sons. One of the
teen sons is disabled. Sinany claims Kheroyan yells at the disabled son and calls him
names. This causes him to worry about dying and he cannot sleep. There are also a
number of other accusations Sinany makes against Kheroyan.
       Kheroyan accused Sinany of scratching her car and of coming to her house late at
night to yell at her.




1      Sinany spelled her name as “Cinani” for the trial court reporter.
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       Sinany applied for a restraining order on May 22, 2012 (Los Angeles Superior
Court case No. ES015559, this appeal).
       Kheroyan also applied for a restraining order against Sinany. The matter was
assigned to a different courtroom. At a hearing held on June 8, 2012, on Sinany’s
application, the file for Kheroyan’s application was retrieved and heard together with
Sinany’s matter. Kheroyan’s application is not part of the record in this appeal.
       Sinany and her daughter, Renia Davoodi, testified. Sinany testified that Kheroyan
stole their trash can and called child protective services. According to Sinany, Kheroyan
even admitted calling the child abuse center; other neighbors heard Kheroyan say, “I will
get her kids taken away if it’s the last thing I do.” As a result, police officers and a social
worker came by Sinany’s home to check. Sinany testified that at a prior court hearing,
Kheroyan’s mother said, “These people need to be hung.”
       Mrs. Davoodi testified that management for the property told them they could park
two cars in the driveway. Davoodi also testified Sinany’s sons cannot sleep and are
deeply affected and very frightened because Kheroyan yells about the boy’s disability
and stuttering. Sinany’s sons have asked, “Why does [Kheroyan] say these things?”
They are both 14 years old, and one of them has had surgery four separate times.
       Sinany testified about an incident where Kheroyan appeared to be recording them
with a camera through a window. She also accused Kheroyan of burning documents in
the backyard and claimed the fire threatened their apartment.
       Kheroyan denied all of Sinany’s and Davoodi’s accusations. She claimed to have
a stipulation from the landlord which allows her to walk through the driveway to get to
her apartment.2 She accused them of scratching her car but did not see who actually did
it. She claimed Sinany did not let her walk through the common area to get to her



2      The stipulation was apparently reached after the manager filed an unlawful
detainer action against Kheroyan. The stipulation apparently was attached to Kheroyan’s
response to Sinany’s request for restraining order.

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apartment and that she was not able to use the trash can for more than five months. She
said Sinany came to her house late at night, knocking on the door, “breaking in
screaming, yelling. . . . not letting me park the car in the parking space and not letting me
walk through the property to my apartment.” Kheroyan later revised her claim by stating
her door was open and Sinany started to yell at her, so she closed the door.
       As for yelling at Sinany’s son, Kheroyan claimed she never met him and had
never seen him.3
       After hearing testimony from Sinany and Kheroyan, the trial court accepted
Sinany’s description of Kheroyan’s harassment. The trial court determined there was
clear and convincing evidence of harassment and granted the civil harassment restraining
order against Kheroyan. The trial court specifically noted:


       “I’m more concerned about their request; and that is that they accuse you
       of saying terrible things constantly to harass them to the point their
       disabled son is afraid of you and cannot sleep. That is very disturbing to
       me that you’re out there yelling at them all the time. [¶] What do you
       have to say about that?”

       When Kheroyan denied Sinany’s claim and added that Sinany also accused her of
damaging property, the trial court replied:


       “I did not ask you about damaging anything because they don’t know
       who damaged the thing. They think it’s you, but they can’t prove it’s
       you. I’m not interested in that because it has to be proved by clear and
       convincing evidence to me, and they don’t have clear and convincing
       evidence that you damaged anything. I am concerned that you verbally
       harass them all the time. [. . .] I will issue a restraining order against you
       that you are not to harass them[.]” (Emphasis added.)




3     In her response to the restraining order, she stated, “I never did so, or would never
do!! What ever questions her son asked her they should deal with it inside of the family.”
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       The trial court denied Kheroyan’s request for a restraining order against Sinany,
stating: “I don’t give restraining orders to enforce a lease. I don’t give restraining orders
over parking spaces so your request is denied.”
       Kheroyan appealed the order granting Sinany’s application. Sinany did not file a
respondent’s brief.
                               CONTENTIONS ON APPEAL
       Kheroyan contends that there was no clear and convincing evidence supporting the
restraining order against her. She argues that mere disputes do not amount to harassment,
free speech cannot be restrained under Code of Civil Procedure section 527.6,4 and there
was no evidence of violence or a credible threat of violence. Next she argues there was
no course of conduct because the allegations of yelling involved a single incident. Then
she contends there was insufficient evidence of substantial emotional distress. Finally
she contends that her conduct served a legitimate purpose because she needed to walk
past Sinany’s home in order to access her own home.
                                         DISCUSSION
       The version of section 527.6 in effect at the time the restraining order was granted
provides in pertinent part: “(a)(1) A person who has suffered harassment as defined in
subdivision (b) may seek a temporary restraining order and an injunction prohibiting
harassment as provided in this section.”
       Harassment is defined in section 527.6, subdivision (b)(3) 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 such as would cause a reasonable
person to suffer substantial emotional distress, and must actually cause substantial
emotional distress to the petitioner.”




4     All subsequent undesignated statutory references shall be to the Code of Civil
Procedure.
                                          5
       Subdivision (b) of section 527.6 defines the terms “credible threat of violence”
and “course of conduct.” A “‘credible threat of violence’ is a knowing and willful
statement or 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.” (§ 527.6, subd. (b)(2).)
       A “‘course of conduct’ is 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 . . . . Constitutionally protected activity is not included within the
meaning of ‘course of conduct.’” (§ 527.6., subd. (b)(1).)
       Emotional distress has been defined as “highly unpleasant mental suffering or
anguish ‘“from socially unacceptable conduct.’” (Schild v. Rubin (1991) 232 Cal.App.3d
755, 762.) The effect on the ability to “rest, sleep, relax, read, watch television and sit in
their home and to converse in their backyard” does not establish substantial emotional
distress. (Ibid.)
       The trial court must find clear and convincing evidence that unlawful harassment
exists. (§ 527.6, subd.(d).)
       In reviewing the trial court’s decision, we must determine whether it is supported
by substantial evidence. (Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 724.) In
order to determine whether substantial evidence supports the claim of harassment, “[w]e
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. (Citations.)” (Schlid v. Rubin, supra, 232 Cal.App.3d at p. 762.)
       Breaking down all of the parties’ accusations, we have identified the acts of
Kheroyan about which Sinany complains: (1) using their trash cans; (2) parking in their
driveway; (3) calling Sinany’s son names; (4) threatening to have the children taken away
from Sinany; (5) recording the family through a window; and (6) burning trash in her



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backyard.5 We examine each of them to see if there is any unlawful violence, a credible
threat of violence or a course of conduct directed at a specific person.
       1. Parking and trash can dispute
       The disputes over the parking spaces and trash cans do not constitute behavior
over which the trial court can grant injunctive relief. The evidence reflects a
disagreement over the proper scope of an easement and the proper allocation of the trash
cans as granted by the landlord. As in Byers v. Cathcart (1997) 57 Cal.App.4th 805, 812
the use of both of these items constitutes legitimate needs, so there is no act of
harassment.
       2. Name calling
       Sinany claims Kheroyan yelled at her son about his disability (saying “He
crippled” [sic]) to the point that her son woke up in the middle of night asking what is
wrong with him and if he is going to die. She alleged Kheroyan comments on why the
son stutters, making her sons scared.
       In her response, Kheroyan specifically denied all of Sinany’s allegations.
       Kheroyan contends on appeal that Sinany did not establish a course of conduct
because she only cited one instance of harassing behavior. In addition to alleging that
Kheroyan yelled at her son on a specific day, Sinany says Kheroyan harasses them
“[e]veryday” and is “constantly verbally yelling hurtful things” and “constantly circling
around their house.” The accusation that Kheroyan is “constantly” yelling everyday is
not specific enough to establish a course of conduct of harassing her son. In addition,
“circling” the house does not establish a course of conduct of verbal abuse towards the
son.




5       Because the trial court did not grant a restraining order against Sinany, we do not
address the accusations of Sinany scratching Kheroyan’s car and of Sinany coming to
Kheroyan’s house to yell at her. In addition, we do not address the accusation that
Kheroyan’s mother said “These people need to be hung,” since this statement is not
attributed to Kheroyan.
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          3. Threatening to take children away
          Sinany stated in her application for the restraining order that Kheroyan threatened
to have her children taken away from her. She then testified at the hearing that police and
child protective services came to her house and Kheroyan admitted to calling them. She
also testified that Kheroyan told a neighbor she would have Sinany’s kids taken away.
There was no testimony by that neighbor, nor any evidence of a police or social worker
report.
          In the response to the request for injunction, Kheroyan denied she wanted
Sinany’s children to be taken away.
          Even if Kheroyan did call the social workers, it would not necessarily constitute
harassment. There was no evidence that the call was unfounded or that more than one
call was made. There was no violence, no credible threat of violence, nor any course of
conduct alleged, and thus did not meet the definition of harassment in section 527.6.
          4. Recording family through window and burning trash
          Whether or not Kheroyan held up a camera to record the events in the Sinany
household, there is no course of conduct shown here. In addition, there is no course of
conduct established by Kheroyan burning trash in her own backyard. Those separate
incidents do not appear to be linked to any other allegations of threatening to have the
children taken away or of verbally abusing the son. As the court in Schlid v. Rubin
observed, “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.” (Schlid v. Rubin, supra,
232 Cal.App.3d at p. 763.)
          In Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, the plaintiff told of being
followed and spied upon, or receiving repeated phone calls and threatening letters. The
court found this to constitute emotional distress. In Brekke v. Willis (2005) 125
Cal.App.4th 1400, the defendant wrote three letters to a minor in which he threatened to
kill her. The actions in this case do not rise to this level.

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       5. Conclusion
       Since we have found no evidence of harassment as defined in section 527.6, there
was not sufficient evidence to support the issuance of a restraining order. We therefore
reverse.
                                     DISPOSITION
       The judgment is reversed and the injunction issued against Kheroyan is dissolved.
Kheroyan is to bear her own costs on appeal.




                                                                     WOODS, J.


We concur:




             PERLUSS, P. J.                                          SEGAL, J. *




*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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