Opinion
A152891
07-17-2018
LILY LIU, Plaintiff and Appellant, v. ROBERT LEE, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. HF17870040)
Lily Liu appeals an order denying her petition for a domestic violence restraining order against Robert Lee. Although the trial court has broad discretion in determining whether to grant such a restraining order, we conclude that the court's reliance on an entirely speculative reason for denying the petition so tainted its exercise of discretion that the matter must be reversed.
Factual and Procedural Background
On August 2, 2017, Liu filed a petition for a domestic violence restraining order requesting Lee be restrained from contacting her and her adult children. A temporary restraining order was issued and a hearing set for August 22, 2017.
At the hearing Liu and Lee testified and documentary evidence was introduced. According to their testimony, they began dating in August 2016 and continued their relationship until May 2017. Their eight-month relationship accelerated quickly but they broke up several times during the course of the relationship. Liu testified that she broke up with Lee the first time around September 2016 because he "had a temper and was mentally unstable." They reconciled the following month. According to Lee, Liu broke up with him each time by email or text while they were physically apart.
In denying Liu's application, the court placed great weight on undisputed testimony concerning a proposed transaction that was never consummated. Around March 2017, Liu told Lee she wanted to purchase a house but was unable to take out a mortgage due to her poor credit rating. She explained that in 2010, when her son was ill, she failed to pay her taxes which resulted in a tax lien. She has since paid the back taxes but the lien was still showing on her credit report. Liu said that she would make the $600,000 down payment and asked Lee to take out a mortgage for the balance of the purchase price. The parties understood that she would make the mortgage payments but until she was able to assume the mortgage, title to the property would be in a trust with Lee as the beneficiary. Although Lee completed a loan application for a $3 million purchase, they did not proceed with the transaction because they learned that Lee's wife, whom he was in the process of divorcing, would need to be involved. After the parties broke up, Lee requested that all of the electronic financial documentation he had submitted with the loan application be deleted. He explained at trial that he did not feel comfortable with someone he did not know having possession of his private financial information.
On April 22, 2017, the parties met for dinner at the Black Bear Diner. Liu testified that at dinner, she told Lee he did not do anything wrong but they were not a good fit. She thought they should move on and that they were both deserving of their own lives. Lee agreed that they broke up that night but testified that it was because Liu accused him of cheating.
In a text to Lee on April 24 Liu wrote, "No matter if we can be together or not, I wanted you to know that I do believe and trust you. I love you very much although we were only together for 9 months not 9 years, but I am very much in love with you and I care about you very much. I hope you can believe me. When you turned around and were walking away from me in the parking lot, I was so sad to see you walking away and I cried a lot after I got in my car. I wanted to hold you and tell you how much I love you and I wish we didn't have to go through that rough journey in our relationship. I really want the best for you."
The parties met for the last time on May 9, 2017, shortly before Liu left on a trip to Taiwan. Liu testified that she met with Lee "to deliver a very clear message" that the relationship was over. Lee disputed that they discussed ending their relationship that night but admitted they had "some issues to talk about . . . stemming from the April 22 thing." He claims they were sexually intimate that night and Liu told him she loved him. Liu admitted to kissing and hugging him goodbye but denied any other sexual contact on May 9. Although Liu initially sent Lee friendly texts and emails from Taiwan, she soon stopped responding to his communications. Asked how many times a day Lee sent her messages, she testified: "I don't know. Just like nonstop. Sometimes could be over 20 times. I lost count. It drive me crazy. And I just didn't know how to make him stop. [¶] . . . [¶] Make me scared because, as I said, in the early stage of our relationship, I learned Mr. Lee had a very, very bad temper and his mental state was not very stable, and the behavior is kind of getting crazy and crazier. And although I ignore him, he still nonstop try to contact me."
On May 31, after her return from Taiwan, the parties exchanged texts attempting to arrange a time to talk. Liu asked if they could speak by phone and Lee agreed but indicated that he would really like to see her in person at some point as well. When he suggested days to meet, she replied that she had plans and was busy with work.
On June 3, Lee located Liu's adult daughter through LinkedIn and sent her a lengthy email discussing his relationship with Liu. Liu testified that she was shocked and sickened and felt that her privacy was violated. She had not introduced Lee to her daughter and did not think it was proper for him to meet her children. Lee testified that he emailed Liu's daughter when he realized their relationship was over. He reached out "to sort of introduce myself, because I knew a whole bunch about her, . . . through Ms. Liu, and she knew something about me. Maybe not my name exactly, but she knew of me because Ms. Liu mentioned that to me. [¶] And I knew that the two of them had had some difficulties throughout the years . . . . [¶] . . . But one of the reasons I sent the email to her is I really felt at the time that her mom had emotional issues, mental issues, and needed help."
Liu testified that on June 5, Lee texted her that he was in her driveway and would not leave until she came out and talked to him. She was not home at the time, but later found a note from him under her front doormat. She was scared and afraid he was going to do something crazy. As a result, when she comes home, she now first drives around the neighborhood to make certain his car is not parked nearby. She has been seeing a therapist to deal with the anxiety this has caused.
On June 6, Lee sent the following email to Liu, "[W]hy did you hug me and kiss me right before you left for your trip, and then suddenly have this big change of heart while you were gone? I did not do anything to you while you were gone. Can you not understand why this is so confusing to me, this mixed message? If you were me, wouldn't you feel bad and hurt being on the receiving end of being ignored like this? I understand that you don't appreciate the way you've been treated, but can you also understand that it hasn't been a good experience lately for me either? Please reconsider your decision...I promise zero anger, zero followup, you won't hear from me ever again. I do need to explain a couple of things to you...please hear me out. I promise it will go smoothly and with no anger."
Liu responded, "I am very mad at myself not to leave sooner. As I said, I still have hard time to forget and get over those bad memories from last year. Sorry, I have tried my best to help myself to get over it that's why I still went out with you, but... at the end, I learned I still can not. Sometimes I tried to ignore and avoid it, that's why I still could stay, but I realized it's very unhealthy for me so I decided not to do that anymore. The person was not treated right is me, not you, so I have the 100% right to determine what I should do. Your lately behavior only made me feel I was right to choose leave, especially when you sent me those terrible texts and emails after last time black bear meeting... . The reasons I refused to meet: 1) I tried that many times, not one single time was productive. 2) Seeing you still brought me back those bad memories, which 1 am still in the process to get over them. Someday when I get over those nightmare, I would be fine to meet but don't know when.... maybe never happen in my life. I did let you know very clearly that we were not a good fit and I didn't feel like stay many times before I left for Taiwan. From the way I didn't want to answer your calls while I was there, it should be very clear to you that what I wanted. The person I am mad at is not you, it's myself. I am mad at myself why I allowed people to treat me that way. I am not interested in communicating anymore that really hurting me because of all those terrible memories. And as I said indirectly last night, I don't feel comfortable for you to drive to my property without my permission. We got back last night, [my son] found that note and he got very paranoid about strangers coming to our house. Hope you understand. Sorry, I just cannot handle this that well, those bad memories are too abusive to me, in my whole life no one has every talked or said those to me, you are the first one and I am sure would be the only one. I won't reply any your emails anymore. I believe it's a very clear message here."
When Lee emailed again on June 6, pressing for more of an explanation, Liu responded a final time, "I cannot. Too bitter and I believe that it's fair to say this is my choice to decide what to do since I was the one got hurt. Sorry. You might not have right to make comments to say if it's proper way or not. When you treated me not in proper ways, it seemed your ok with that. l have expressed many tines to you regarding my thoughts about us, to me, this relationship has already ended a while ago. This is my last email to respond to you. l need to get recovered and move on. Again, I am not mad at you but I am very mad at myself to allow people treating me that way. No more emails or texts. I won't read them. please. I won't reply anymore and it's a very clear message here."
Despite Liu's explanation, Lee continued to email Liu. The record contains six emails sent to Liu on June 11 and four more sent through the end of June. In an email sent on June 17, Lee wrote, "I'm very sorry to send you multiple copies of this email from different accounts, but I just don't know if you're getting any of these and/or blocking my email. I hope you can at least take the time to read this one, as it will likely be the last time that I take up this amount of time to write to you."
Lee continued to text and email Liu in July and August. On July 29, Lee send Liu an email that read, "I still don't know why you won't speak to me. I mean, I'm sure you find these emails and my texts annoying, I'm sure you don't like my sending you stuff, I'm sure you don't like the thought of me randomly knocking on your door or leaving messages under your mat at any time. You wouldn't have to worry about this anymore if you would just take the time and do the right thing...which is to have an adult conversation with me."
Liu introduced an order history from a flower store showing that Lee delivered flowers to her six times between June 12 and August 4. The note attached to one reads, "Still hoping there might be an opportunity for peace and common understanding. Would enjoy hearing from you."
Liu testified that she found his attempt at communication overwhelming. She tried blocking his phone number and email, but he created different identities to get through to her.
Lee testified that he was "floored" when he was served with the temporary restraining order. He explained, "when I read it and I saw all the inaccuracies and really the lies that were presented just to make the case in trying to sort of diminish, you know, the relationship itself, as it never really happened or we were never in love or she never really cared for me and that was frightened of me. None of that really made any sense to me. . . . [¶] And as I thought about it and processed it in my mind more, it also became apparent to me at that time that, you know, all the stuff that had gone on the past couple months with my wanting to talk to her and get closure, I don't really care about that anymore because . . . of the things that were said and just the blatant lies and the extent that she would go out of her way to say things about me that just weren't true at all." He confirmed that "given everything that [he] read and her testimony" he had "absolutely no desire . . . for closure at this point." On cross-examination, Lee admitted that if Liu had not obtained the temporary restraining order he "probably occasionally" would have contacted her, but would not have continued to "bombard her with messages."
The trial court denied the restraining order. The court acknowledged that Lee had made repeated unwanted contacts with Liu but found that Lee's intent was not to harass Liu but only "to find out what happened. Even though it's clear that the relationship was ended, after that, he still wanted to find out why." And relying primarily on the court's suspicion that Liu had been planning an illegal mortgage transaction, the court questioned her credibility and did not believe that "she was as greatly annoyed about him as what she's saying." Liu timely filed a notice of appeal.
Discussion
The Domestic Violence Prevention Act (DVPA), Family Code, section 6200 et seq. authorizes a protective order to restrain any person for the purpose of preventing a recurrence of domestic violence or abuse and ensuring a period of separation of the persons involved upon a showing by petitioner of "reasonable proof of a past act or acts of abuse." (§ 6300; Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 820.) Section 6203, subdivision (a)(4), defines abuse to include "behavior that has been or could be enjoined pursuant to Section 6320." As relevant here, section 6320, subdivision (a) authorizes an injunction to prohibit "harassing, telephoning including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, contacting, either directly or indirectly, by mail or otherwise . . . or disturbing the peace of the other party." Penal Code section 653m, subdivision (b) prohibits a person from making "any combination of calls or contact" to another person "with intent to annoy or harass." The intent to "harass" as used in Penal Code section 653m, subdivision (b) means "engaging in 'a knowing and willful course of conduct directed at a specific person that seriously alarms [or] annoys . . . the person, and that serves no legitimate purpose.' " (People v. Astalis (2014) 226 Cal.App.4th Supp. 1, 11.) In short, abuse under the DVPA includes acts that destroy "the mental or emotional calm of the other party." (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497.)
All statutory references are to the Family Code unless otherwise noted.
"Generally, a trial court has broad discretion in determining whether to grant a petition for a restraining order under" the DVPA. (In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 702.) This broad discretion is expressly provided by section 6320, which states that trial courts "may" issue restraining orders when the statutory criteria are met and section 6301, subdivision (c), which vests the trial court with authority to consider "the totality of the circumstances" in its exercise of discretion to grant or deny a domestic violence restraining order. (Fischer v. Fischer (2018) 22 Cal.App.5th 612, 622.) "We review such discretionary ruling to determine if that discretion was abused." (Ibid.)
Here, the court acknowledged that the record established that Lee had made repeated unwanted attempts to communicate with Liu. While Lee may not have intended to abuse Liu, the record is clear that he persisted in contacting Liu although fully aware that she did not want his "nonstop" communications to continue, and that he would have continued contacting Liu in the absence of the court's intervention. Such a state of mind of a rejected suitor is clearly sufficient to justify the issuance of a protective DVPA injunction. (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1144 [record supported issuance of restraining order based on ex-boyfriend's inability to accept that his romantic relationship with ex-girlfriend was over and continued attempts at contact despite numerous requests that he not contact her]; see also Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 783 [court did not abuse discretion in issuing restraining order even though respondent demonstrated that he had "gotten the message that [the] relationship is over" by complying with temporary restraining order and testifying that he would never contact the petitioner again].)
The trial court's denial of relief was based primarily on its negative assessment of Liu's credibility, which the record indicates was based on its unsupported belief that she had been attempting to arrange a fraudulent mortgage. The court extensively stated its belief that there was something "more to [the] story" than what it was being told about the parties' attempt to buy a house. The court questioned whether having Lee take out a mortgage for Liu was a device to "avoid the IRS seeing where the money is going." The court explained, "I don't know for sure. I don't buy — I can't research outside, there's been no evidence otherwise, but just common sense tells me that she could have paid the $58,000 tax evasion off and then her credit would be fine. . . . [¶] But if you're moving money from yourself or from somebody else, I don't know if it's coming from China - which happens - if she was using him to do that and manipulating him . . . . [¶] And he may not believe that's what happened. People don't want to believe that somebody would manipulate them to that degree. But that's very possible that she manipulated him to do this loan, and then, once it was over, she didn't want to have any communication with him or make any incriminating statements, whether by wire or anything else, and the best thing to do is to have no communication, not be asked any of those questions about the loan application. [¶] . . . I do think he knew it was going through an illegal transaction and clearly doesn't want to talk about it because that's a crime and he would be aiding and abetting money laundering, knowing that full well."
"Generally, sound discretion 'is compatible only with decisions "controlled by sound principles of law, . . . free from partiality, not swayed by sympathy or warped by prejudice. . . ." [Citation.]' . . . [¶] A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence." (People v. Cluff (2001) 87 Cal.App.4th 991, 998, 1002 [finding an abuse of discretion where "the trial court's analysis became disconnected from the evidence and entered the realm of imagination, speculation, supposition, and guesswork"].) There is simply nothing in the record to support the trial court's rank speculation that Liu was manipulating Lee as part of an illegal money laundering scheme. Liu testified that when the tax lien was removed from her credit report in approximately one year, she intended to refinance the property and change title to her name. Lee did not dispute this testimony. The loan documents are not contained in the record and there is no basis for the court's speculation that the documents included untrue statements. It appears that the court's speculation that there was something illegal about the proposed transaction was premised in large part on the fact that Liu went to China and its speculation that money for the purchase was to be "coming from China - which happens." That is unacceptable.
Liu's testimony that she is experiencing both fear and distress from Lee's repeated contacts is unrefuted in the record. The fact that she presented no documentation of her resulting therapy, to which the court referred, hardly justifies the rejection of her testimony that she has been receiving such therapy and that Lee's unremitting contacts have greatly disturbed her peace of mind. Nor does the court's apparent view that the "romance" in the pair's eight-month relationship extended beyond two months as Liu testified. Most importantly, the court's unsupported suspicions about the legality of the contemplated but unconsummated mortgage transaction provides no rational basis to disbelieve that Lee's persistent and "nonstop" entreaties and contacts are causing her serious emotional distress. Although we are hesitant to override the trial court's exercise of discretion, the court's completely unsupported characterization of Liu as possibly manipulative and potentially engaged in an illegal money laundering scheme so taints its exercise of discretion that the denial of the relief she seeks cannot be upheld.
Disposition
The order denying appellant's petition for a restraining order is reversed and the matter is remanded with directions to enter the requested order. The trial court shall retain discretion to determine the terms and duration of the order based on any additional evidence it may receive concerning events subsequent to entry of the order from which the appeal has been taken.
/s/_________
Pollak, Acting P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.