D.M. v. K.C. CA1/1

Filed 8/26/21 D.M. v. K.C. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

D.M.,
Plaintiff and Respondent,
A161280
v.
K.C., (San Francisco County
Super. Ct. No. CCH-20-582678)
Defendant and Appellant.

The trial court granted a civil harassment restraining order against
K.C. pursuant to Code of Civil Procedure section 527.61 based on her conduct
in an on-going dispute with her neighbors, D.M. and his wife A.M.2 K.C.
appeals, arguing that her conduct could not reasonably have caused her
neighbors to suffer substantial emotional distress and hence did not
constitute harassment under section 527.6. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
We summarize the facts in the light most favorable to the judgment.
(Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1405 (Brekke).) K.C. and D.M.
are neighbors who live directly across the street from each other. The parties

All undesignated statutory references are to the Code of Civil
1

Procedure.
2 We refer to the parties and witnesses by their initials to protect their

privacy. (California Rules of Court, rule 8.90(b)(5)).

1
had no interactions prior to April 18, 2019. At around 10:00 p.m., D.M. and
A.M. were inside their home when they looked across the street and saw K.C.
hit, shove, and slap her 12-year-old stepson in her kitchen. A.M. also saw
K.C. shove a plastic or glass bottle at her son, striking her son’s face. D.M.
called Child Protective Services (CPS), who advised him to call the police.
While he was on the phone with the police, A.M. and a neighbor witnessed
K.C. slap her son across the face. D.M. and the neighbor ran across the street
to stop her. K.C. yelled at them stating: “You just stand [there] and judge me
and yell at me. I’ve lived with him for a year. You don’t know.” The police
arrived. When D.M. and the neighbor declined to press charges, the police
advised them to contact CPS. D.M. called CPS the next day. Sometime
afterward, K.C.’s husband, who was the boy’s adoptive father, relinquished
his parental rights of the child. Later, an investigation with respect to K.C.’s
daughter was dismissed and withdrawn by CPS.
Following this incident, K.C. had several hostile interactions with D.M.
and A.M. which continued up until February 2020. The first serious incident
occurred on April 23, 2019. A.M. was home alone when she heard a noise and
checked her security camera. She observed K.C. coming up to her front door
yelling, “[f]ucking bitch, fucking home watching that [inaudible]. . . [¶]. . .You
need some fucking help. You’re alone, bitch.” K.C. then rang the doorbell
and stated “[i]s something wrong, you fucking cunt” before walking away.
At least five other incidents occurred over the next several months in
which K.C. yelled expletives at D.M. or A.M. or both when they were outside
their residence. On May 6, 2019, as D.M. was opening his garage door to
leave for work, K.C. yelled, “Have a good day, asshole! Fuck you! Who’s
looking after your baby while you are watching other people!” On May 19, as
D.M. returned home from a bike ride, K.C. yelled, “turn off the fucking T.V.

2
and talk.” After a period of calm, appellant’s hostility toward her neighbors
reemerged. On November 16, 2019, D.M. was walking his dog and carrying
his baby daughter on his chest when he encountered K.C., her husband, and
their daughter on the street. K.C. shouted, “Oh wow, your TV shows have
been cancelled fuckface” and continued yelling as D.M. walked away.
On December 16, 2019, A.M. returned home with her baby in the
evening. She was seven months pregnant at the time. As she opened the
garage door, K.C. yelled from across the street, “Fuckface over there …
fucking bitch … so weird he’s not faithful at all … he’s never home … act like
nothing to us … act like we never met … we’re going to wait until the garage
light is off.” On January 6, 2020, K.C. yelled at A.M., “You fucking bitch!”
The final incident occurred on February 12, 2020. D.M. was exiting his
driveway with his family in their vehicle just as K.C. and her daughter were
coming out of their garage on their bicycles. K.C. entered the street and
approached D.M.’s car yelling insults such as “[f]ucking white asshole.
Fucking white fuckface!” Riding in the car with D.M. were his wife, mother-
in-law, and baby daughter. D.M. believed that her actions almost caused a
traffic accident. In K.C.’s version of events, she was riding her bicycle with
her daughter when D.M. stopped at the stop sign for a long time without
activating his turn signal. She admitted to calling him an “entitled fuckface”
but claimed she was frustrated that D.M. had not indicated which direction
he would turn, despite her efforts to make their presence known to him.
On March 30, 2020, D.M. filed a request for a civil harassment
restraining order. He sought protection from K.C. for himself as well as for
his wife and their two young daughters. He stated that his family was
“unclear about [K.C.’s] mental stability and are fearful that she will escalate
her verbal harassment to physical harassment if not further restrained.” In

3
her response, K.C. denied many of D.M.’s allegations but admitted she had
used foul language a few times. She complained that D.M. and A.M. were
creating the animosity because they were constantly videotaping her family,
watching them with binoculars, and causing their dog’s daycare van to block
their driveway. D.M. had also called CPS in October 2019 without
justification to complain that she was harassing him when she was actually
just socializing with her friends in her garage at that time. As to her conduct
towards D.M. and A.M., she said she was merely venting her anger in
response to their interference with her family.
At the July 30, 2020 hearing, D.M. testified that “ever since this night
on April 18th when we saw this abuse, it has been nonstop harassment and
very troubling for my wife and I who are trying to raise a daughter, and she’s
pregnant as well. Every time we go outside, something happens. We tried to
mitigate it as much as possible by making sure they’re not outside or what
have you before we leave, but unfortunately, there’s all these things that
have happened. It’s really shaken me; it’s really shaken my wife and my
daughters. And unfortunately, that’s why we’re here today.” He indicated
that the harassment had stopped after the trial court issued a temporary
restraining order. Regarding the February 2020 incident, he stated that he
was stopped at a four-way intersection with a two-way stop sign. He did not
have his turn signal on because he was not going to turn left or right but was
going to go straight across the intersection.
A.M. testified that “this past year should have been one of the best
years of our lives,” but because their family had seen something and reported
it, “[K.C.] continued to harass us.” A.M. explained that there had been about
ten upsetting incidents since D.M. first contacted CPS, and A.M. was afraid
of what K.C. might do in the future: “But you could continue to just get

4
triggered by us and you just – I don’t feel safe. I don’t know if you have a
gun; I don’t know if you have a knife; I don’t know if you’re going to come over
and start something. Ran up my stairs and called me the “C” word?” A.M.
testified that the most upsetting moment was when K.C. rang her doorbell
and called her the “C” word from outside the house. A.M. could hear K.C.
yell, “You’re alone in there, bitch. Just watching.” A.M. denied that she was
constantly watching K.C. and her family.
K.C.’s husband I.C. testified that the police took his son to a youth
crisis shelter the night of April 18, 2019, but he returned home the next day.
The following week, I.C. and his son argued and he told his son to leave the
house. His son went back to the crisis shelter. I.C. blamed D.M. for causing
his family to undergo two dependency court cases, one for his son and another
for K.C.’s daughter. He was frustrated because he felt that D.M. and his
family were continually spying on them.
The trial court issued its ruling from the bench, as follows: “I found
that [A.M.’s] testimony was particularly credible. And there has been, I
think, clear and convincing evidence of harassment. [¶] As to the issue of
whether or not it’s escalating or not, I think that [D.M.] is largely correct. He
makes the essential point which is that it’s the temporary restraining order
that has caused things to calm down. [¶] And so without an order in place,
things may heat up again. I think there’s a good chance of that, if not a high
probability of it. [¶] So on balance, I feel compelled to issue an order;
however, I am only going to make the duration of it 18 months because I’m
hoping that it will serve as a cooling-off period and that after that, things will
resolve themselves where at least the parties can remain neutral to each
other.

5
 On August 7, 2020, the trial court filed its order prohibiting K.C. from
harassing or contacting D.M. and his family and requiring her to stay 50
yards away from them (except only three yards when the parties are on their
shared block). The order expires January 30, 2022. This appeal followed.
II. DISCUSSION
A. Applicable Law and Standard of Review
Section 527.6 authorizes a person who has suffered harassment to
“seek a temporary restraining order and an order after hearing prohibiting
harassment.” (§ 527.6, subd. (a)(1).) The statute defines harassment 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 that which would cause a reasonable person to suffer
substantial emotional distress, and must actually cause substantial
emotional distress to the petitioner.” (Id., subd. (b)(3).) At the hearing on a
section 527.6 petition, the judge “shall receive any testimony that is relevant,
and may make an independent inquiry. If the judge finds by clear and
convincing evidence that unlawful harassment exists, an order shall issue
prohibiting the harassment.” (Id., subd. (i).)
“We review issuance of a protective order for abuse of discretion, and
the factual findings necessary to support the protective order are reviewed for
substantial evidence.” (Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1226,
disapproved on other grounds in Conservatorship of O.B. (2020) 9 Cal.5th
989, 1010, fn. 7.) “ ‘The appropriate test on appeal is whether the findings
(express and implied) that support the trial court’s entry of the restraining
order are justified by substantial evidence in the record. [Citation.] But
whether the facts, when construed most favorably in [the petitioner’s] favor,

6
are legally sufficient to constitute civil harassment under section 527.6, and
whether the restraining order passes constitutional muster, are questions of
law subject to de novo review.’ [Citation.]” (Harris v. Stampolis (2016) 248
Cal.App.4th 484, 497.)
In evaluating a sufficiency of the evidence claim when the clear and
convincing standard of proof is applied by the trier of fact, “the question
before the appellate court is whether the record as a whole contains
substantial evidence from which a reasonable fact finder could have found it
highly probable that the fact was true. Consistent with well-established
principles governing review for sufficiency of the evidence, in making this
assessment the appellate court must view the record in the light most
favorable to the prevailing party below and give due deference to how the
trier of fact may have evaluated the credibility of witnesses, resolved conflicts
in the evidence, and drawn reasonable inferences from the evidence.”
(Conservatorship of O.B., supra, 9 Cal.5th 989 at pp. 995-996.)
B. Substantial Emotional Distress
K.C. contends the evidence does not support the issuance of a civil
harassment order because the essential element of substantial emotional
distress is lacking. She characterizes the incidents described above as “brief
outbursts” and asserts that a reasonable person would not experience
substantial emotional distress from her use of swear words.
Section 527.6 does not define the phrase “substantial emotional
distress.” However, in the analogous context of the tort of intentional
infliction of emotional distress, the phrase “severe emotional distress” has
been construed as highly unpleasant mental suffering or anguish “ ‘from
socially unacceptable conduct,’ ” which entails such intense, enduring and
nontrivial emotional distress that “ ‘no reasonable [person] in a civilized

7
society should be expected to endure it.’ ” (Schild v. Rubin (1991) 232
Cal.App.3d 755, 762-763 (Schild); see also Thing v. La Chusa (1989) 48
Cal.3d 644, 648-649, [emotional distress is generally understood to include,
among other emotions, fright, nervousness, anxiety, humiliation and worry].)
In arguing that there was insufficient evidence of substantial emotional
distress, K.C. relies primarily on Schild, supra. Schild bears almost no
resemblance to the present circumstances. Homeowners obtained a
restraining order based on noise created by their neighbors’ children playing
basketball two to three times per week for up to thirty minutes each day
during daylight hours. (Schild, supra, 232 Cal.App.3d at pp. 758.) The
Schild court reversed, concluding that the mere sounds of basketball being
played at reasonable times of the day did not constitute unlawful harassment
under section 527.6. (Id. at p. 761.) The appellate court observed that even if
the basketball playing had invaded the homeowners’ peace and quiet, there
was “no medical, psychological or other evidence” that such sounds caused
them “substantial emotional distress.” (Id. at p. 763). Nor would such
basketball playing cause “ ‘a reasonable person to suffer substantial
emotional distress’ ” under the statute because “some degree of transitory
emotional distress is the natural consequence of living among other people in
an urban or suburban environment.” (Ibid, italics omitted.)
We are not dealing here with the innocuous sounds of children playing
a game. The trial court received substantial evidence of K.C.’s harassing
behavior directed at respondent, his pregnant wife, and other family
members over a period of ten months. K.C. repeatedly accosted D.M. and
A.M. with obnoxious, expletive-laden insults, doing so even in front D.M.’s
infant daughter and K.C.’s own children. More alarming, K.C. went across
the street and rang the doorbell screaming vulgarities at A.M. and stating

8
that she knew A.M. was home alone. In the February 2020 incident, she
entered the roadway and confronted D.M.’s family in their vehicle, swearing
at them as another car was approaching. We decline to equate K.C.’s
purposeful and socially unacceptable behavior with the conduct at issue in
Schild.
K.C. also cites People v. Ewing (1999) 76 Cal.App.4th 199, 212 (Ewing)
and People v. Brooks (2017) 3 Cal.5th 1 (Brooks) for the proposition that the
burden of proof for substantial emotional distress is not met without evidence
of “medical or psychological treatment, support groups, sleepless nights,
health problems, headaches, or evidence of anything [that] demonstrate[s]
substantial emotional distress.” We are not persuaded.
Ewing and Brooks are not section 527.6 cases, but instead address
criminal convictions for stalking under former Penal Code section 646.9.
Subdivision (e) of this former statute defined “harasses,” in part, to require
conduct “ ‘such as would cause a reasonable person to suffer substantial
emotional distress,’ and must actually cause substantial emotional distress to
the person.” In Ewing, the Court of Appeal held that the People failed to
prove the “harasses” element of the statute because the prosecution
presented only “scant evidence of emotional distress.” (Ewing, supra, 76
Cal.App.4th at p. 211.) The Brooks court later cited Ewing for its conclusion
that “evidence that the victim experienced sleepless nights and had joined a
support group for battered women was insufficient to show that she suffered
substantial emotion distress for purposes of establishing the stalking charge.”
(Brooks, supra, 3 Cal.5th 1 at p. 35.)
These cases are of limited value here. Criminal statutes are subject to
proof beyond a reasonable doubt, while civil harassment under section 527.6
requires only clear and convincing evidence. (Ewing, supra, 76 Cal.App.4th

9
at p. 209; § 527.6, subd. (i); see also Brekke, supra, 125 Cal.App.4th at p. 1413
[noting that threatening behavior need not rise to the level of criminal
conduct to be actionable under the anti-harassment statute].) Furthermore,
the only evidence presented in Ewing of the victim’s emotional state was her
testimony that she felt afraid for her safety two days prior to the defendant’s
arrest, and her boyfriend’s testimony that she suffered sleepless nights and
had joined a support group for battered women. (Ewing, supra, 76
Cal.App.4th at p. 211.) But without any evidence as to the degree, frequency
or duration of her sleeplessness, such testimony was insufficient as a matter
of law to support the criminal burden of proof. (Id. at pp. 211-212.) The
Ewing court did not establish a requirement that a stalking charge requires
proof of medical or psychological treatment or support group participation;
the court was merely responding to the bare detail provided by the
prosecution as to the victim’s emotional distress.
In the present case, D.M.’s and A.M.’s substantial emotional distress
was established by their testimony and video evidence and by reasonable
inferences drawn from the evidence. D.M. testified that the nonstop
harassment had “really shaken me; it’s really shaken my wife and my
daughters.” He added that “[e]very time we go outside, something happens.”
Alone in her own home, A.M. had to listen to K.C. shout from her doorstep,
“[Y]ou’re alone, bitch. . . . Is something wrong, you fucking cunt?” A.M.
testified that she was afraid of what K.C. might do in the future. She did not
know if K.C. has a gun or a knife, or if K.C. was going to come over and do
something. Both were afraid to leave their home and sought to avoid K.C.
when they went outside. Even so, both experienced many other hostile
encounters with K.C. over the next several months, and it did not matter that
A.M. was seven months pregnant or that D.M. was carrying his infant

10
daughter on his chest. It is no great feat to imagine that a person capable of
such openly hostile and unrestrained behavior might be capable of much
worse. The evidence thus amply supports the trial court’s implied finding
that D.M. and A.M. experienced “highly unpleasant mental suffering or
anguish” as a result of K.C.’s reprehensible conduct. (Schild, supra, 232
Cal.App.3d at p. 762-763.)
K.C. asserts that D.M. could not have suffered substantial emotional
distress because he fueled the parties’ animosity by reporting her to CPS in
October 2019 and later by filing a police report. It is the trial court’s task,
not ours, to weigh conflicting statements, evaluate the credibility of
witnesses, and ultimately make findings as to what occurred and whether
K.C.’s conduct caused D.M. and A.M. substantial emotional distress. (See
Code Civ. Proc., § 631.8, subd. (a) [“The court as trier of the facts shall weigh
the evidence”]; In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531
[appellate courts do not reassess witness credibility].) Based on the evidence
presented, the court found that D.M. and A.M. “are in reasonable fear from
you [K.C.]” and found clear and convincing evidence of harassment. In doing
so, the trial court found A.M.’s testimony to be “particularly credible.” We
decline K.C.’s invitation to reweigh the evidence.
Finally, K.C. contends that even if D.M. and A.M. experienced
subjective emotional distress, a reasonable person would not “suffer
‘substantial emotional distress’ as a result of a neighbor using cuss words
occasionally.” K.C. understates the severity of her conduct. The totality of
the evidence summarized above fully supports the trial court’s implied
finding that K.C.’s course of conduct would cause a reasonable person to
suffer substantial emotional distress, and that it did cause such distress to
D.M. and A.M.

11
 III. DISPOSITION
The injunction issued pursuant to section 527.6 is affirmed.

12
 SANCHEZ, J.

We concur.

HUMES, P.J.

BANKE, J.

(A161280)

13