Filed 8/1/22 Melnikov v. Harrington 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
NOLEEN MELNIKOV,
Plaintiff and Appellant, A163557
v. (San Francisco County Super. Ct.
TIMOTHY HARRINGTON, No. CCH21583672)
Defendant and Respondent.
Noleen Melnikov appeals the denial of her petition for a civil
harassment restraining order against her former professor Timothy
Harrington. Melnikov’s petition alleges a multi-year cyberstalking campaign
against her by Harrington. Omitted from these allegations, however, was the
fact that a still-current restraining order had been issued against Melnikov
for harassing Harrington. Upon discovering this omission, the trial court
denied relief, finding that Melnikov deliberately misled the court and lacked
credibility.
We will affirm. The trial court acted well within its discretion in
rejecting her petition for lack of credibility.
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I. BACKGROUND
The only undisputed fact in this matter appears to be that Harrington
was Melnikov’s graphic design professor for several courses at San Francisco
Community College (the College).
A. Melnikov’s Petition
Melnikov’s version of the events begins in March 2018. She alleges in
her Request for Civil Harassment Restraining Orders (the petition) that she
then discovered “unusual activity on [her] Facebook account,” “Gmail
account,” and “Facebook Messenger [account].” This unusual activity soon
“bec[ame] so routine” that “[her] husband” noticed it as well. She hired a
“professional to perform a forensic investigation to check [her] accounts for
hacking.” The result of the investigation, according to the petition, was
discovery of “IP addresses [associated with] the home address of Respondent
in San Francisco.” Then, “[i]n August 2019 his conduct evolved when
[Harrington] began to manipulate [her] work and school files.” Melnikov
confesses she “ha[d] no idea why he chose [her] to attack and follow when
[their] relationship was strictly professor and student.” “In fact,” the petition
further alleges, “[Harrington] was a good professor.” She spent thousands of
dollars on the forensic expert, and felt “threatened, abused and harassed” by
this conduct.
The closest Melnikov comes to disclosing the restraining order
currently in force against her is the following. She discloses that she suffered
“damage[] [to her] reputation at school,” “when [Harrington] filed his
restraining order which stated [she] was copying him online.” But, the
petition alleges, “[she] ha[s] never done so nor do[es] [she] have any idea how
that is done.” “[She] simply had no mental or emotional capacity to fight
back when [Harrington] filed that TRO against [her] and due to missing
court, the RO was issued.”
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The petition goes on to allege that Harrington’s harassment continues
at least through January 2021 when, on her new work laptop, she noticed
“things are still being clicked on as notifications that [she] did not personally
click.”
Her petition also included a supporting declaration from her husband,
Sergey Melnikov, which declared he had noticed Harrington engaging in
stalking behavior both at school and school-organized outings.
The final exhibit to her petition was submitted by Digital Forensics
Corporation, a private forensics firm. The exhibit consists of a declaration
from an employee, Sean Quellos, and a report. The declaration summarizes
the conclusion of their investigation as follows: “[O]ur evaluation of
[Melnikov’s] devices and accounts led our investigation to discover a
matching IP address indicated by logging into a Facebook account owned by
[Melnikov], and an email received by the client from tharring@ccsf.edu
‘Timothy Harrington’. The IP address 147.144.3.239 is registered to City
College of San Francisco.”
B. Harrington’s Response
Harrington filed a form response to Melnikov’s petition (the response),
entitled “Response to Request for Harassment Restraining Orders,” in which
he attached several exhibits, including: a 12-page, single-spaced narrative
description of his harassment by Melnikov; his currently active restraining
order against Melnikov for her harassment of him (filed January 28, 2019); a
report issued by the College’s Title IX Department explaining its conclusion
that Melnikov’s stalking behavior amounted to “sexual harassment,
cyber-harassment and stalking” (itself 10 pages and single-spaced); a “Notice
of Code of Student Conduct Violation” issued by the College to Melnikov;
Harrington’s complaint to the College (itself accompanied by 13 exhibits); and
a declaration by a police officer from the San Mateo Police Department.
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According to the above documents, Melnikov’s harassment of
Harrington was provoked by her disappointment in receiving a “B” rather
than an “A” for her final class grade. She was a student in four of his classes
between Fall 2017 and Fall 2018. In December 2018, Harrington’s faculty
email address began receiving spam from sexually explicit websites. After
complaining about her grade in January 2019, the spam traffic intensified,
and he received emails implying that someone created fraudulent accounts in
his name to rent expensive vehicles. Then Melnikov began sending him
online messages through a Web site portal, linked to pictures of herself and
her name, making sexual comments and demands that he change her grade.
That same month, Harrington received many messages on his home
answering machine, which he transcribed for purposes of inclusion in this
record. We have received this list, and it includes many sexually explicit
comments and similar sounds.
Harrington thereafter filed a complaint with the College alleging she
had violated the student conduct code. He escalated his administrative relief
action soon thereafter with a subsequent “Unlawful Discrimination” filing
with the Title IX department, detailing Melnikov’s campaign of
cyberstalking, and included a new allegation that Melnikov set up a fake
Facebook account in his name. The College investigated for four months, and
its IT Department reviewed the emails to Harrington’s account. It was able
to correlate the San Mateo IP address from the various email list requests
with the IP address used by Melnikov to log into her email account,
suggesting that Melnikov was the source of the online harassment
Harrington was experiencing. In response to the investigation, Melnikov
first asserted her version of events that she was the victim of a cyberstalking
campaign conducted by Harrington. The College IT Department concluded
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Melnikov’s excuse was not technologically plausible, and the College
concluded that none of her allegations were credible. Among other
conclusions, the College found Melnikov displayed “a propensity for
dishonesty.” For example, she included a falsified copy of her cell phone bill
which deleted a call to Harrington’s home phone number. The investigation
concluded that Melnikov “has committed several serious and egregious
violations of Board Policy, the Code of Student Conduct, as well as federal
and state law, including potential violation of a court order,” and on that
basis recommends that “serious disciplinary action is warranted.” Melnikov
was then expelled from the College.
A declaration from the San Mateo police department, attached to the
complaint, showed that Melnikov continued to harass Harrington through
July 2019. Sergeant Manion was tasked with investigating a report
Melnikov filed with his department claiming that someone was accessing her
online accounts and deleting her emails. She believed Harrington was
responsible. He summarized the result of his investigation as follows:
“Based on my review of the evidence, I concluded that there was no evidence
to support [Melnikov’s] claims and that [Melnikov] provided false information
to Mr. Dean [Chief of Public Safety for the College] regarding [Harrington].”
C. Trial Court Proceedings
On August 4, 2021, the trial court held a hearing on the petition in
which both parties were present and represented by counsel. The court
stated that after it reviewed Harrington’s response, it would deny the
petition, finding Melnikov had used the judicial system as a tool to further
her harassment of Harrington:
“Petitioner, I want you to know that the Court is shocked by your
behavior. You misled the Court. [¶] And counsel, I hope you’re listening,
too.
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[¶] . . . [¶]
“There have been investigations in this case that were not brought to
the attention of the Court. I was not told about the fact that there was an
investigation that found that the Respondent had been harassed by the
Petitioner. I was not made aware that there had been investigations in
another county that had found that the Respondent’s stories were fabricated,
not supported by any evidence. And I find that this Court was used by the
Petitioner.
[¶] . . . [¶]
“I feel that this Court was used to harass the Respondent. Clear
evidence. All of the evidence that was missing is the evidence against your
client. And I am shocked that that would happen in this courtroom.”
In so ruling, it admitted all of the response, including its exhibits,
without objection by Melnikov. The court also found Melnikov not credible,
stating: “I don’t believe any of it. . . . I don’t believe it.” The court concluded
the hearing by tentatively ruling it would grant a properly noticed motion for
attorney fees on the basis that, “I believe the whole thing was fabricated.”
Melnikov timely appealed.
II. DISCUSSION
A. Standards of Review
We review a trial court’s ruling on a request for a restraining order for
abuse of discretion. (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277,
286.) We review a trial court’s factual findings, such as a finding of witness
credibility, for substantial evidence. (Shapiro v. San Diego City Council
(2002) 96 Cal.App.4th 904, 912.) Under this deferential standard of review,
we do not reweigh a trial court’s credibility findings. “An adverse factual
finding is a poor platform upon which to predicate reversible error.
[Citation.] ‘We sit as a court [of law] to review errors of law and not [claimed]
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errors of fact.’ ” (In re Marriage of Boswell (2014) 225 Cal.App.4th 1172,
1175.) “[T]he rule of appellate deference to trial court credibility
determinations is the same for written declarations as for oral testimony
(even though, with written declarations, witness demeanor is not observed).”
(Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter
Group 2021), ¶ 8:42.1.)
B. The Trial Court Did Not Err
With no appreciation for the deference we must give to trial court fact-
finding, Melnikov argues that the trial court erred in its finding that she had
not disclosed Harrington’s restraining order against her. She also argues
that to the extent the trial court wanted more information about this other
case against her, it “failed to look up the case,” and that is not her fault. She
then insists that she was the victim of Harrington’s harassment.
We decline to substitute Melnikov’s version of events for Harrington’s
on appeal. The judgment below is presumed correct (see Jameson v. Desta
(2018) 5 Cal.5th 594, 608–609), and all Melnikov does in an effort to
overcome the presumption is invite us to disregard the governing standard of
review. That is insufficient. To resolve this appeal, we must first examine
whether substantial evidence supports the trial court’s finding that Melnikov
lacked credibility. We must then assess whether, given that adverse finding,
the trial court acted within its discretion in denying her petition.
We conclude that ample—not merely substantial—evidence supports
the trial court’s factual finding that Melnikov lacked credibility. Although
she disclosed that Harrington “filed that TRO against me and due to missing
court, the RO was issued,” she did not disclose that she was under the force of
this order at the very time she filed to protect herself from Harrington. The
effect of her failure to do so led the court to set her application for hearing,
and, in so doing, possibly become complicit in Melnikov’s further harassment
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of Harrington, stating, “I feel that this Court was used to harass the
Respondent.” (Italics added.) As a result, substantial evidence supports the
court’s adverse credibility finding for Melnikov; and given no evidence then
remains to support the petition, but instead only evidence against the
veracity of the petition remained before the court, the court acted within its
discretion in declining to issue a restraining order against Harrington.
III. DISPOSITION
The judgment is affirmed. Costs are awarded to Harrington.
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_________________________
Streeter, J.
WE CONCUR:
_________________________
Pollak, P.J.
_________________________
Brown, J.
Melnikov v. Harrington A163557
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