Filed 2/10/14 Marriage of Foladpour and Hashemi CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


In re Marriage of FOROUD FOLADPOUR
and MOHAMMAD HASHEMI.

FOROUD FOLADPOUR,
                                                                       G048102
     Appellant,
                                                                       (Super. Ct. No. 10D009881)
         v.
                                                                       OPINION
MOHAMMAD HASHEMI,

     Respondent.




                   Appeal from an order of the Superior Court of Orange County, Theodore R.
Howard, Judge. Affirmed.
                   Larry Herrera for Appellant.
                   No appearance for Respondent.
              Foroud Foladpour appeals from an order after the trial court issued a
domestic violence restraining order in favor of her husband, Mohammad Hashemi, who
she had been separated from for over two years. Foladpour argues insufficient evidence
supports the restraining order.1 We disagree and affirm the order.
                                          FACTS
              Hashemi and Foladpour were married in December 2007, and Foladpour
initiated separation proceedings in October 2010. A stipulated judgment of legal
separation was entered in March 2011.2 Hashemi first moved to a different apartment in
the same complex in Irvine and then to another apartment about one-half mile away in
April 2011. In February 2012, Hashemi filed a petition for divorce.
              A series of incidents that we describe in greater detail below led Hashemi
to seek a temporary restraining order against Foladpour on January 18, 2013. The request
for a temporary restraining order was supported by Hashemi’s declaration and four
exhibits. The trial court granted the order and set a hearing date of February 11, 2013.
Foladpour was served with the temporary restraining order on January 29, 2012.
              At the February 11, 2013, hearing, Hashemi testified concerning the
following incidents. His testimony concerning the incidents were nearly identical to his
statements in his declaration.
              1. On December 15, 2012, about midnight, Hashemi went to the parking
lot to move a female friend’s car. As he walked back, he saw Foladpour driving her car
in the parking lot. When she saw him, she stopped her car, they exchanged glances, and
she drove away.




1             Hashemi did not file a respondent’s brief.

2            In her declaration, Foladpour stated they separated instead of divorcing so
she could remain on Hashemi’s health insurance; she has breast cancer.

                                             2
                 2. On December 19, 2012, about 11:00 p.m., Hashemi escorted a female
friend from his apartment to her car and when he returned to his apartment he found a
white envelope with a typed letter inside. He did not see the letter when he left his
apartment. Exhibit A is the note that was left on his front porch. The note implored
Hashemi to leave “her,” do not talk to “her,” and do not invite “her” to your apartme nt
because she is evil and cannot be trusted. The note concluded, “I am not ready for any
relatinship.”3
                 3. On December 21, 2012, about 11:00 p.m., Hashemi and a female friend
were at his residence when he heard footsteps on the stairs to his second floor apartment.
He looked out the window and saw Foladpour walking away from the stairs towards the
parking lot. He opened his front door and found a plastic bag with a plastic bottle and a
“bunch of notes.” Exhibit B is the note that was left on his front porch. Exhibit B
referred to the woman as “suger momey” and asserted that if Hashemi “fack[ed]” her, he
would get a disease because she is a prostitute.
                 4. On December 23, 2012, Hashemi went to move a female friend’s car.
When he opened the front door, he found a plastic bag with a bottle and a note. He found
a note and cucumbers on his friend’s car. Exhibit C was the note that was left on his
front porch. Exhibit C stated, “suger momey” is evil and is blackmailing Hashemi. The
note referred to Hashemi’s friend as a “slave” and “monkey.” It said, “[L]ate or sooner
your suger momey will be cut suger momey can be cut easy.” Finally, the note stated,
“I will not fack her any more I got sexsual disease from her . You got it alrady.”
Exhibit D is the note that was left on the car. Exhibit D states, “Hey facker he still
married, fack you, you are a hocker . You are not the good person you do not respect you
your self . . . . . . . . . . . . he still love he,s wife . fack you do you job only . . . . facker .”



3            We have provided exact quotations of the notes to give the reader their full
flavor. We have not corrected typographical or grammar errors.

                                                    3
              5. On January 31, 2013, after the temporary restraining order was served
on Foladpour, Hashemi was at the bank when he saw Foladpour walk in. Hashemi left
the bank and as he walked to his car, he noticed Foladpour’s car parked next to his car.
Hashemi called the police, and they arrested Foladpour.
              Hashemi testified Foladpour would make harassing telephone calls to his
residence. He denied seeing Foladpour at the gym since he obtained the temporary
restraining order. Hashemi stated his female friend would not come to his residence
anymore.
              After Foladpour, acting in propria persona, cross-examined Hashemi,
Hashemi’s counsel questioned Foladpour pursuant to Evidence Code section 776.
Foladpour testified she does not have any friends that live in Hashemi’s apartment
complex. She denied writing any of the notes Hashemi included as exhibits to support
his request for a restraining order, although counsel questioned her concerning grammar
similarities between her declaration and the notes. She denied seeing Hashemi’s vehicle
and denied seeing him in the bank until he walked out.
              Foladpour testified on her own behalf. She denied being at Hashemi’s
apartment on any of the dates in question and claimed she was at the following holiday
parties: on December 15, 2012, Foladpour was at a Christmas party in Laguna Beach
with friends and did not return home until 2:00 a.m.; on December 19, 2012, Foladpour
was at a Christmas boat party until after midnight; on December 21, 2012, Foladpour was
at a Christmas party at the Embassy Suites Hotel in Costa Mesa; and on December 23,
2012, Foladpour was at a party.
              On cross-examination, Foladpour admitted she did not have any evidence
other than her testimony to prove she was at the parties. She would not reveal the names
of any of the people who were at the parties with her.
              The trial court granted the restraining order for three years. The court
opined “there are significant problems with the credibility of [Foladpour] in the matter.”

                                             4
The court concluded Hashemi demonstrated by a preponderance of the evidence he was a
victim of domestic violence. The court added that based on the exhibits and the
testimony “[Foladpour’s] stories simply are not credible.” Foladpour appealed.
                                        DISCUSSION
              Pursuant to Family Code section 6300, a domestic violence restraining
order may be issued if an affidavit shows reasonable proof based on a preponderance of
the evidence past act(s) of abuse. (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137
(Gdowski).) Family Code section 6203 provides: “‘[A]buse’ means any of the
following: [¶] (a) Intentionally or recklessly to cause or attempt to cause bodily injury.
[¶] (b) Sexual assault. [¶] (c) To place a person in reasonable apprehension of imminent
serious bodily injury to that person or to another. [¶] (d) To engage in any behavior that
has been or could be enjoined pursuant to [Family Code] [s]ection 6320.”
              The behavior that may be enjoined under Family Code section 6320,
subdivision (a), includes the following: “molesting, attacking, striking, stalking,
threatening, sexually assaulting, battering, harassing, telephoning, including, but not
limited to, making annoying telephone calls as described in [s]ection 653m of the
Penal Code, destroying personal property, contacting, either directly or indirectly, by
mail or otherwise, coming within a specified distance of, or disturbing the peac e of the
other party.” The actual infliction of physical injury or assault is not required for a
finding of abuse. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1496-1497
[reading and publicly disclosing e-mails]; Ritchie v. Konrad (2004) 115 Cal.App.4th
1275, 1290-1291 [persistent unwanted telephone calls or letters].)
              “‘A grant or denial of injunctive relief is generally reviewed for abuse of
discretion. [Citation.] This standard applies to a grant or denial of a protective order
under the DVPA [Domestic Violence Protection Act]. [Citation.]’ [Citation.] However,
‘[j]udicial discretion to grant or deny an application for a protective order is not
unfettered. The scope of discretion always resides in the particular law being applied by

                                              5
the court, i.e., in the “‘legal principles governing the subject of [the] action . . . .’”’
[Citations.]” (S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1264-1265.)
               Here, the trial court did not abuse its discretion in granting Hashemi’s
three-year restraining order against Foladpour. Preliminarily, Foladpour asserts that
because she and Hashemi live in the same apartment complex, it is inevitable they would
see each other. As support for this contention she cites to paragraph 4 of Hashemi’s
declaration where he states that after they separated, he moved to another apartment in
the same complex. But paragraph 5 states that in April 2011, Hashemi moved to another
apartment on a different street about one-half mile away. Additionally, Foladpour herself
testified she does not have any friends that live in Hashemi’s apartment complex. Based
on this evidence, the trial court could reasonably conclude Foladpour and Hashemi live in
different apartment complexes, and Foladpour’s presence in Hashemi’s apartment
complex was not by chance.
               As to the merits, there was evidence from which the trial court could
reasonably conclude Foladpour harassed and improperly contacted Hashemi by letter and
telephone. The evidence established that on three occasions Foladpour delivered to
Hashemi’s apartment notes that warned him to stay away from his female friend. The
tone of the notes grew more aggressive over time. The first note warned Hashemi to stay
away from his female friend, the second note stated his female friend was a “suger
momey” who would transmit sexual diseases, and the third note included what appeared
to be racial epithets and accused the female friend of blackmailing Hashemi. The fourth
note, the note left on his female friend’s car, included language that one could reasonably
conclude threatened violence against the female friend. On one of the occasions,
December 21, 2012, Hashemi saw Foladpour walk away from his apartment immediately
before he found a note on his front porch. Additionally, there was evidence that the
unique grammar included in the notes matched the grammar included in Foladpour’s
declaration. Finally, Hashemi testified he received harassing telephone calls from

                                                 6
Foladpour, who tried to disguise her voice. Contrary to Foladpour’s assertion otherwise,
this evidence constitutes more than speculation and conjecture. Instead it demonstrates a
pattern of harassment and threats.
              Finally, Foladpour’s refusal to provide the names of any of the people at
any of the holiday parties she attended undermines her credibility and calls into question
the veracity of her testimony. Foladpour claimed she went to the bank but did not know
Hashemi was there until he was walking out. Yet Hashemi testified Foladpour walked
towards him in the bank and when he left, he noticed she had parked her car next to his
car. Thus, the trial court did not abuse its discretion in finding Foldapour was not
credible and granting Hashemi’s three-year restraining order against Foladpour.
                                      DISPOSITION
              The order is affirmed. As there has been no appearance for Respondent, no
costs will be awarded.




                                                 O’LEARY, P. J.

WE CONCUR:



FYBEL, J.



THOMPSON, J.




                                             7
