Roman v. Lee CA4/3

Opinion

Filed 9/29/26 Roman v. Lee 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

LISA ROMAN,

Plaintiff and Respondent, G065246 v. (Super. Ct. No. 30-2024-01447169)

JEFFREY GIHUN LEE, OPINION

Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County, Glenn Mondo, Commissioner. Reversed and remanded with instructions. Law Offices of Frances Prizzia and Frances Marie Prizzia for Defendant and Appellant. Much Shelist, Ryan Burns and Isaac R. Zfaty for Plaintiff and Respondent. * * * In this case, we assess whether a civil harassment restraining order was properly entered against Jeffrey Gihun Lee after he and Lisa Roman had an angry confrontation in the Irvine neighborhood where both reside. In keeping with our standard of review, we find the trial court lacked substantial evidence to find by clear and convincing evidence that Lee had engaged in unlawful harassment. We therefore reverse the restraining order and remand back to the trial court with instructions that the trial court deny Roman’s petition. STATEMENT OF FACTS1 Roman and Lee live across the street from one another at a diagonal angle and have a history of conflict. A. December 17, 2024 Incident 1. Roman’s Testimony On December 17, 2024, Roman said she was returning home when she noticed Lee’s car was parked along the curb outside her house. Lee was outside his car. Roman testified that she made a U-turn and told Lee, “Can you please not park here.” She then pulled into her neighbor’s driveway and waited for Lee to leave. According to Roman, Lee got out of his car and came toward her car with his hand up and an object in it. She thought he was going to hit her 1 We derive the facts in this section from the testimony at the hearing on the restraining order and the exhibits entered into evidence at that hearing.

2 or her car window, so she rolled up the window. Lee was shouting at her, using profanity, and calling her “Karen.” Roman also said she noticed Lee was filming her on his phone while moving around the outside of her car. She felt “trapped” in her car. At this point, Roman’s neighbors came out of their house and confronted Lee. Roman testified Lee began to record the neighbors as well. One of the neighbors testified that Lee was calling Roman names like “bitch” and would not let her leave her car. After the interaction, Lee got into his car and left. Roman testified she had an anxiety attack as a result of the confrontation. 2. Lee’s Testimony According to Lee, Roman said to him: “Don’t park in front of my house” even though he was legally entitled to park there. He testified he then said to her “Karen,2 what did you say? Where should I park then?” He admitted he called her a “bitch” because he said Roman had been told “several times not to interact with” him, “especially about parking.” Lee played the video he recorded for the trial court, and the video was entered into evidence. The video evidence consists of three clips. The clips have time stamps of 3:50 p.m., 3:50:30 p.m., and 3:51 p.m. on December 17, 2024. However, as the trial court noted, it appears that the events in the clip time-stamped 3:50:30 p.m. may precede the events in the 3:50 p.m. clip. The court did not find the 3:51 p.m. clip helpful. The 3:50:30 p.m. clip shows a woman, presumably Roman, sitting calmly in her car with the window up while the person filming, presumably 2 Lee confirmed that he used the name “Karen” as a slur to refer to Roman “poking her nose where it doesn’t belong.”

3 Lee, shouts: “Don’t tell me what to do,” and “Where am I gonna park? What am I gonna do?” At the end of the clip, Roman makes a gesture, the meaning of which is unclear. The 3:50 p.m. clip shows the front driver’s side window of Roman’s car with the window down. Roman is turning her head away from the camera and rolling up her window as Lee says “Karen, what did you say? Hey Karen. Exactly, bitch.” Lee then walks away from Roman’s car with his phone camera facing down. Lee testified he made the recordings due to repeated interactions he and Roman have had regarding parking. He acknowledged yelling at Roman. And he acknowledged that, in hindsight, he did not react appropriately to her. But he testified that he was not trying to scare, intimidate, or threaten Roman by his actions. Rather, he was trying to document the fact that Roman was interacting with him when she had previously been told by police not to interact with him. He also said he wanted her to stop asking him about parking. B. Lee’s Social Media Postings At some point after the December 17 incident, Roman testified she heard that Lee had posted images of her on social media. In one post, Lee had tagged Roman’s gym. She also testified that there were remarks on Lee’s posts “that people wanted to pin [her] location.” Lee testified he had posted the video clips he took on Instagram and TikTok. He did not tag Roman’s home but admitted to tagging Roman’s gym on these posts. He claimed the gym was a location within the neighborhood with the highest visibility and the most tags on social media. Thus, he said, tagging the gym would increase his views.

4 PROCEDURAL HISTORY Roman filed for a restraining order two days after the incident occurred. After issuing a temporary restraining order, the trial court set an order to show cause hearing regarding civil harassment for January 13, 2025. At the hearing, the court heard testimony from both Roman and Lee, as well as Roman’s neighbor. After admitting two exhibits, the court issued its ruling from the bench, finding Lee “engaged in a knowing and willful course of conduct directed at” Roman, “[t]hat, although short, showed a continuity of purpose.” It also found Lee’s conduct “would cause a reasonable person to suffer substantial emotional distress” and “certainly did cause [Roman] substantial emotional distress.” The trial court issued a restraining order, effective for a three- year period, extending not just to Roman, but also to her spouse and two adult children who reside with her. The court also enjoined Lee from entering or placing any object on Roman’s property or engaging in “social media harassment with family names.” In doing so, the court noted “not all speech is protected.” It said it “did not find Mr. Lee credible in several respects, in particular, his attempt to explain why he’s tagging the gym on that posting. It just simply did not make any sense. There appear[s] to be no legitimate purpose for the posting which he made.” Lee timely appealed. DISCUSSION Lee argues the restraining order was issued in error for several reasons. First, he was lawfully parked on the street and a parking dispute cannot constitute harassment. Second, he contends the restraining order violates his rights under the First Amendment of the federal constitution because it contains a content-based restriction on his online speech. Third, he 5 argues his social media posts do not constitute harassment under Code of Civil Procedure3 section 527.6 because there was no violence, threat of violence, or sustained course of conduct involved. Fourth, he argues the trial court showed a judicial bias against social media. Fifth, he contends the court violated his procedural due process rights by not telling him he had the right to cross-examine Roman when she testified. And, finally, he argues the order improperly included Roman’s husband and two adult children as protected parties. Because we agree with Lee that the trial court lacked sufficient evidence of harassment, we need not address the remainder of his individual arguments. I. STANDARD OF REVIEW In general, “[w]e review the trial court’s decision to grant the restraining order for substantial evidence. [Citation.] ‘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, 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.’” (Harris v. Stampolis (2016) 248 Cal.App.4th 484, 497.) We also note that the judge must find “by clear and convincing evidence that unlawful harassment exists” in order to issue a civil 3 All further undesignated statutory references are to the Code of Civil Procedure.

6 harassment restraining order. (§ 527.6, subd. (i)(1).) “[W]hen reviewing a finding that a fact has been proved by clear and convincing evidence, 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. (2020) 9 Cal.5th 989, 995–996.) II. THE RESTRAINING ORDER WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE Under section 527.6, a trial court is authorized to issue a restraining order prohibiting harassment. (Id., subd. (a)(1).) At the restraining order hearing, “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)(1).) “The ‘“‘[c]lear and convincing’”’ standard ‘“requires a finding of high probability”’ of unlawful harassment.” (E.G. v. M.L. (2024) 105 Cal.App.5th 688, 698 (E.G.).) The statute defines “‘[h]arassment’” 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.” (§ 527.6, subd. (b)(3).) It further defines a “‘[c]ourse of conduct’” as “a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of 7 purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means . . . . Constitutionally protected activity is not included within the meaning of ‘course of conduct.’” (Id., subd. (b)(1).) A 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).) “Beyond the requirement that there be more than one act to qualify as a ‘“[c]ourse of conduct”’ (§ 527.6, subd. (b)(1)), the statute does not prescribe the necessary number or frequency of the acts required for a finding of course of conduct harassment.” (E.G., supra, 105 Cal.App.5th at pp. 699–700.) Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219 states, “‘The elements of unlawful harassment, as defined by the language in section 527.6, are as follows: (1) “a knowing and willful course of conduct” entailing a “pattern” of “a series of acts over a period of time, however short, evidencing a continuity of purpose”; (2) “directed at a specific person”; (3) “[that] seriously alarms, annoys, or harasses the person”; (4) “[that] serves no legitimate purpose”; (5) [that] “would cause a reasonable person to suffer substantial emotional distress” and “actually cause[s] substantial emotional distress to the [person to be protected by the order]”; and (6) which is not a “[c]onstitutionally protected activity.”’” (Id. at p. 1227, disapproved on other grounds by Conservatorship of O.B., supra, 9 Cal.5th at pp. 1003, fn. 4, 1010, fn. 7.) The trial court found no evidence of unlawful violence or a credible threat of violence. Rather, the court concluded Lee had “engaged in a knowing and willful course of conduct directed at a specific person, Ms. Roman. That although short, showed a continuity of purpose.” The court 8 also found that the conduct was the “sort of thing that would cause a reasonable person to suffer substantial emotional distress” and that Roman did suffer such distress.4 The evidence indicated at least three separate incidents occurred which gave rise to the court’s finding of a course of conduct. The first was the driveway incident on December 17. The second and third were the posts of videos of the incident to Instagram and TikTok. The court made clear findings on the first incident which were supported by substantial evidence. Roman testified that Lee approached her angrily and surrounded her car, making her feel uncomfortable and unable to get out. The video corroborated this to a certain extent. The court found this evidence established that an “angry” and “aggressive[]” Lee was “circling the car holding a camera” while Roman rolled up her window, “avoiding eye contact,” and said nothing. While we note Roman’s demeanor in the video did not visibly betray signs of distress, we defer to the court’s assessment of her credibility regarding her emotional reaction to the incident. There is a high probability that the incident seriously alarmed or annoyed Roman and caused her substantial emotional distress. But the December 17, 2024 incident is insufficient on its own. A course of conduct requires a “series of acts”—more than one. (See Leydon v. Alexander (1989) 212 Cal.App.3d 1, 4; see also § 527.6, subd. (b)(1)[“‘[c]ourse of conduct’ is a pattern of conduct composed of a series of acts over a period of time, however short”].) The only evidence regarding the second and third 4 The court did not expressly find that Lee’s course of conduct “seriously alarm[ed], annoy[ed], or harrasse[d]” Roman (see § 527.6, subd.(b)(3)), but we imply this finding under our standard of review.

9 incidents was the testimony of both Lee and Roman, and this testimony did not establish harassment. The evidence showed Lee had tagged Roman’s gym in his posts, and that the posts were tagged “Karen” and “parking wars.” Lee acknowledged other users of the platforms had commented on his videos, but there was no evidence of what was said.5 And Lee maintained that he posted the videos to show residents “that parking is fully public within [the] community.” Lee testified on cross-examination that tagging the gym was further intended “to increase [his] views [on] TikTok.” He also explained to the court why tagging the gym would do this: “THE COURT: . . . . I’m unclear why you would post or tag the gym location. Sounds like you were trying to make sure that anybody that looked at your post might know where to find Ms. Roman or her family members. Was that your intent? “[LEE]: No, that was not my intent. “THE COURT: So one more time then. What was your intent in tagging the gym? “[LEE]: My intent was that that gym is located within our area. . . . And it’s probably the most tapped area within our neighborhood. “THE COURT: So but you’ve got a dispute with Ms. Roman over parking. You posted multiple clips about your dispute with Ms. Roman over parking. What in the world does that have to do with the gym?

5 The court questioned Lee about an allegation in Roman’s petition for restraining order that Lee had made “racist comments” about Roman’s family in a TikTok post, but Roman offered no evidence of this at the hearing, and Lee denied it in his testimony.

10 “[LEE]: It has nothing to do with the gym. I was just tagging the highest visibility point within our community . . . I know that within our community, [the gym] has the most tags on social media.” Here, “the record as a whole” does not “contain . . . substantial evidence from which a reasonable fact finder could have found it highly probable” (see Conservatorship of O.B., supra, 9 Cal.5th at pp. 995–996) that the TikTok and Instagram posts form part of a course of conduct that harassed Roman within the meaning of section 527.6, subdivision (b)(3). The record contains very limited information as to the content of the posts. For example, the evidence at the hearing does not disclose that Lee shared Roman’s address or contact information, or defamed or made false statements about Roman. The evidence failed to establish whether comments on the posts connected Roman to the gym, whether the posts contained positive or negative comments regarding Roman, or whether the posts led to third party harassment or threats toward Roman. Although Lee testified that he had tagged Roman’s gym, the concept of tagging on social media was not fully explained or explored at the hearing. The evidence did not show that Lee tagged Roman’s home. There was nothing to indicate that the posts were “directed at” Roman, rather than Lee’s followers. Rather, the posts were tagged “Karen” and “parking wars,” indicating that Lee was attempting to bring attention to those topics. This case stands in contrast with E.G., supra, 105 Cal.App.5th 688, which also involved online postings. (Id. at 695.) There, the respondent, M.L., had posted videos to TikTok and Instagram, accusing her mother of sexual abuse and neglect, and accusing the petitioner, E.G., of supporting and protecting her alleged abuser. (Ibid.) At the restraining order hearing, E.G. testified that “viewership of her professional website increased 11 significantly after the second video was posted” and she “received threats and harassment from unknown third parties, which she reported to law enforcement, and numerous false ‘Google reviews’ to her professional online listing.” (Id. at p. 696.) E.G. also received anonymous messages to her professional website contact page stating that “she was being reported to the state licensing board” for her profession; she also received “explicit threats via voicemail.” (Ibid.) E.G. moved for a harassment restraining order against M.L., alleging online harassment based on the posted videos. (E.G., supra, 105 Cal.App.5th at p. 696.) In granting the restraining order, the court noted the claims made by M.L. in the posted videos had already been the subject of litigation in family court, and the family court had found M.L.’s sexual abuse allegations “‘“not credible.”’” The court had also found M.L.’s mother to be a safe parent. (Id. at p. 697.) As such, the court found the posted videos were defamatory and not constitutionally protected. (Id. at pp. 703–704.) Roman argues Lee’s acts of posting the videos to social media were intended to embarrass her, which is what the court found. We agree that the evidence supports a finding that Lee, at least in part, harbored this intent. However, an intent to embarrass is not the same as engaging in conduct that is seriously alarming, annoying, or harassing. We therefore find the restraining order protecting Roman was not supported by substantial evidence. Although Roman presented substantial evidence as to the harassing conduct on December 17, 2024, Roman did not present substantial evidence of harassing conduct beyond this one incident. Because we conclude the trial court erred in granting the restraining order in the first instance, we need not reach the issue of whether Roman’s family was properly the subject of the order.

12 DISPOSITION The order entering a civil harassment restraining order against appellant is reversed, and the matter is remanded with the instruction that the trial court enter a new order denying Roman’s request for a restraining order. Appellant to recover his costs on appeal.

SCHWARM, J.* WE CONCUR:

DELANEY, ACTING P. J.

SERVINO, J.

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