On Tuesday, May 28 2024, the Civil Harassment Restraining Order filed against me by Rachel Depalma in CASE NO.: 23CH011825 was DENIED by Santa Carla County Superior Court Commissioner Johanna Thai Van Dat. Below is the verbatim language from the Commissioner's order.
NOTE: This blog is not intended to harass or harm Rachel Ann Depalma. The sole purpose is to tell my side of this horrific experience. Do not interact with, harass, or contact Ms. Depalma via social media, cell, email, text or in person. Do not contact her via her non-profit organization, No Peace No Quiet, Inc. via social media, text, phone or email or in any other manner. This blog is my opinions, experiences and statements made to the court under penalty of perjury.
DECISION ON PETITIONER'S REQUEST FOR CIVIL HARASSMENT RESTRAINING ORDER
The Petitioner, Rachel DePalma, proceeding in pro per, and the Respondent's Counsel, Paul Levine, Esq. appeared for a status hearing on January 9, 2024, in Department 4 of the Superior Court, Commissioner Johanna Thai Van Dat presiding. Respondent, Tammy Sullivan, filed a response through Counsel to Petitioner's request for Civil Harassment Restraining Order on December 11, 2023 and opted not to pursue a writ. Both sides agreed to forego an evidentiary trial and agreed to submit briefs and declarations by March 1, 2024 for the court to consider and render a written decision. After identifying issues related to accessing the parties' electronic filings, the court gave the parties until April 19, 2024 to re-submit their filings and evidence, The parties filed their final papers on April 19, 2024, at which time the matter was deemed submitted.
There was no live witness testimony for the court to evaluate. Having carefully considered the moving papers, opposition, supporting declarations, trial briefs, electronic evidence, replies, the specifics facts in the case at bar, the Court renders its decision as follows.
A person who has suffered harassment may request a civil harassment restraining order under Code of Civil Procedure section 527.6.1 "Code of Civil Procedure section 527.6 provides a specialized procedure for a petitioner who has suffered harassment within the meaning of the statute to expeditiously seek a limited judicial remedy injunctive relief to prevent threatened future harm." (Olson v. Doe (2022) 12 Cal.5th 669, 673). Petitioner has the burden to show by clear and convincing evidence that she suffered from harassment, which is an act of "unlawful violence, a credible threat of violence, or a knowing and willful course of conduct … that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose." CCP § 527.6(b)(3). A course of conduct is a "pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose." Grant v. Clampitt (1997), 56 Cal. App. 4th 586, 592. Plaintiff must also prove that but for the court granting injunctive relief, there is a reasonable probability that the prohibited conduct will occur in the future. Russell v. Douvan (2003) 112 Cal. App. 4th 399, 401. In other words, the purpose of a restraining order is to prevent future harm and not punish past acts of wrongdoing. Id. "Course of conduct" is defined as a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, facsimile, or computer email. Constitutionally protected activity is not included within the meaning of 'course of conduct." (Harris v. Stampolis (2016), 248 Cal.App.4th at p. 497, quoting and citing § 527.6, subd. (b)(1).) To meet the clear and convincing evidence standard, the proponent of the evidence must convince the fact finder that it is "highly probable" that the fact is true. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 995.) A trial court making a civil harassment restraining order determination under Section 527.6 may "draw inferences from the evidence to base its findings thereon," and such "[i]nferences may be drawn not only from the evidence but from the demeanor of witnesses and their manner of testifying. (Ensworth v. Mullvain (1990) 224 Cal. App.3d 1105, 1110)
As a preliminary matter, Petitioner's final brief includes many pages of evidentiary objections, mostly on the grounds of hearsay. The evidentiary objections are improper and without merit because courts have consistently taken an informal approach to evidence for proceedings under CCP Section 527.6. Judges are "required to 'receive any testimony that is relevant' and are authorized to 'make an independent inquiry.' (CCP § 527.6, subd. (i)." (Yost v.Forestiere (2020) 51 Cal.App.5th 509, 521.) "This provision has been interpreted to mean hearsay evidence, such as a declaration or police report, is admissible during hearing conducted pursuant to section 527.6. (Ibid., see also Schraer v. Berkeley Property Owners' Ass'n (1989) 207 Cal.App.3d 719, 733, fn. 6; Malatka v. Helm (2010) 188 Cal.App.4th 1074, 1085, fn. 5; Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 728-729; Kaiser Foundation Hospitals v. Wilson (2011) 201 Cal.App.4th 550, 556.)
In this case, Petitioner alleges that she and Respondent have never met in person but exchanged a few social media posts in 2021. Petitioner alleges that since 2021, the Respondent has "engaged in a coordinated effort of harassment" consisting of "vicious and verbal attacks" against her. Respondent had referenced Petitioner in over 2 hours of TikTok videos between 2021-2023 "telling her cult like following that I am dangerous to domestic violence victims and survivors." Petitioner alleges that Ashley Howard (the restrained party in 23CH011589) is Respondent's friend and that Howard posted where to find Petitioner's protected address. Respondent does not deny posting numerous videos about Petitioner, and in fact includes many if not all such videos in her final declaration and exhibits.
It is apparent that Respondent engaged in a pattern of behavior designed to express her disagreement with Petitioner and to antagonize Petitioner. It is unclear from the evidence if Respondent ever directly contacted Petitioner privately, i.e., not through a public post on the internet. Petitioner employs some speculation and attenuated logic in attributing particular conduct to Respondent. For instance, Petitioner alleges in her application for restraining order that Respondent used or threatened to use a gun or another weapon. But in the accompanying description, Petitioner says another person ("Kirk, a defendant in DePalma's federal case" threatened her with a gun twice. Petitioner alleges that Respondent incited an unidentified person to leave her a vulgar and threatening message. Petitioner's evidence establishes that Respondent engaged in a course of conduct directed at Petitioner by posting videos about Petitioner and her viewpoints. Some part of Respondent's posts might not be considered part of a harassing "course of conduct" because she has a constitutionally protected right to comment in a public forum about a matter of public concern. While the bulk of Respondent's social media posts in question appear to arise from her desire to personally attack Petitioner, they also involve a public discussion about the issue of domestic violence, which is a matter of public concern. On the other hand, at several points Respondent advances a message in favor of decreasing access to courts, which likely cannot be considered constitutionally protected speech. Furthermore, speech can lose its First Amendment protection when it is made to harass and annoy. (Brekke v. Wills (2005), 125 Cal.App.4th 1400, 1409-1410, [restrained party's speech not protected when made in a private context with the intent to ridicule and annoy].) On balance, Petitioner demonstrates that Respondent has engaged in a series of acts showing a continuing purpose to harass or annoy Petitioner.
The Petitioner and Respondent have engaged in ongoing conflict through their posts on TikTok and other internet-based platforms. Without question Respondent intended to annoy and harass Petitioner. Whether Respondent "seriously" alarmed, annoyed, or harassed the Petitioner (as described by the statute) is largely a matter of credibility which the court must assess in this case without any live witness testimony. As the parties waived an evidentiary trial, the parties' credibility can be inferred from their demeanor in their declaration and the proffered evidence, including the parties' many videos of themselves. (See Ensworth, supra, 224 Cal.App.3d at p. 1110 [inferences may be drawn from demeanor of witnesses].)
Here, the Petitioner's actions and demeanor in her videos calls into question whether she was seriously alarmed, annoyed, or harassed by the Petitioner. In a blog post dated August 11 2023 (2 days after the court granted the TRO in this matter), she claimed she had the Respondent "blocked" for over two years. (Respondent's Exhibit R-37, p. 2.) Presumably, she would not have the ability to view the Respondent's posts using her own login if she had the Respondent "blocked." But Petitioner explains that she was still able to see Respondent's posts in some other manner: "I have been collecting evidence for legal reasons and needed to show I reported the harassment to the platform." (Ibid.) Petitioner offers explanations for some of her activity engaging with Respondent. She created an "anonymous" account in February 2022 "as a reaction to the smear campaign from her and her friends in November/December 2021." (Petitioner's Declaration in support of final brief, filed on April 19, 2024 ("April 19 Declaration"), 1 18.) She said she posted publicly about the case "for safety reasons," because it would make it easier for her family and friends to direct the Police in the event something happens to her. (Id., q 26.) She explains: "In the past when I have called the Police to file a report, the restraining orders do not show [sic] the CLETS system." (Ibid.) Petitioner fails to clarify whether the restraining orders in question were active, granted, restraining orders with proof of service properly and timely served upon the restrained parties. If they were not, then they would not show up in CLETS (California Law Enforcement Telecommunications System).
NOTE: I have never been contacted the San Jose Police and upon contacting, them they were unable to find any report filed against me. No criminal protection order or harassment charges have been filed against me as per their records search.
In reviewing the evidence submitted, Petitioner's speculative and misleading attempts attribute the conduct of others to Respondent, even in contradiction to her own evidence, raise credibility concerns. Petitioner's demeanor in her writings and videos suggests more of an interest in litigation than a genuine pursuit of relief from serious harassment. Petitioner has not presented credible evidence showing that it is "highly probable" that she was seriously alarmed, annoyed, or harassed by the Respondent's conduct.
Moreover, CCP Section 527.6 states: "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." In addressing this element, Petitioner asserts: My mental health has suffered significantly due to Ms. Sullivan's vengeful and malicious conduct against me. I have been unable to work and live my life freely from the constant surveillance stalking and harassment by Ms. Sullivan, her friends, as well as on behalf of my ex-romantic partner, Falsely Accused Man* who I have an active domestic violence restraining order against in [Case No. 19DV000175].
NOTE: In the above section, I redacted the name of a man that, in my opinion, was falsely accused by Rachel Depalma in 2019, drug across social media, had a book written about him and had to file a defamation suit against her. In a settlement of the suit, he was award $75,000. He had to file for settlement enforcement in 2023 because she continued to defame him and was awarded $41,000 in damages and attorney's fees. In my opinion, she is like a non famous version of Amber Heard. We should just call her Rachel Herd, which fits well with #heifergate and her anonymous cow accounts, more on that later.
In addition, my reputation has suffered a great deal from the harassment by Ms. Sullivan and her friends. EXHIBIT 1. (April 19 Declaration, { 4.) Exhibit 1 referenced is a redacted copy of a letter dated August 9, 2023, from Timothy C. Engelmann, Ph.D. Dr. Engelmann states: "I have been meeting with [Petitioner] since 2/25/2022." He states Petitioner "carries two diagnoses," listed as PTSD and Major Depression. The letter states the Petitioner is "prone to frequently occurring triggers to event associated with trauma she has endured." The letter does not reference Respondent or online harassment. The entire first sentence of the second paragraph has been redacted, and Petitioner apparently offers no explanation for this redaction. While this letter is credible evidence that Petitioner has suffered substantial emotional distress, it does show that Respondent's allegedly harassing course of conduct caused such distress. The letter does not state when Petitioner was diagnosed with the disorders in question. The Petitioner also attached an identical copy of this letter to her declaration in support of a request for CHRO against another individual, Samantha Adamo, in Case No. 23CH012433 [see Form CH-100, attachment 7a(5), stating "Dr. Engelmans' deposition from the federal case with ADAMO can be provided at the Court's request."]. Petitioner's claim of suffering substantial emotional distress as the result of Respondent's harassment is somewhat diluted as the use of the same exact letter to establish emotional distress caused by at least two separate respondents casts further doubt upon her credibility as to the emotional distress element.
Finally, even if it is presumed that Petitioner has made the requisite showing that Respondent's harassing course of conduct actually caused her to suffer substantial emotional distress, she still must show that the same conduct by Respondent would have cause a reasonable person to suffer such distress. Petitioner states that she has blocked Respondent from her social media for more than 2 years, but also admits creating anonymous accounts to monitor Respondent's accounts and collect evidence "for legal reasons." (Respondent's Exhibit R-37, p. 2; April 19 Declaration, § 18.) The court questions whether a reasonable person would engage in such conduct, which purports to include the constant monitoring and recording of an alleged harasser's social media.
Accordingly, the court does not find Petitioner met her burden by the very high standard
of clear and convincing evidence in this matter and DENIES the request for permanent civil harassment restraining orders. The existing temporary orders issued on August 9, 2023 expires on their own terms on June 1, 2024.
IT IS SO ORDERED.
DATED: May 24, 2024. SIGNED: JOHANNA THAI VAN DAT, SUPERIOR COURT COMMISSIONER
There you have it. I spent the last 9 months of my life fighting, in my opinion, an unreasonable person who lacks credibility which is why I believe that she is a danger to the vulnerable members of the domestic violence community. I am glad to be on the other side of this, and if I learned anything it's that everything you say can and will be used against you in a court of law so keep your words impeccable and be sure they serve a purpose. Now, I am off to celebrate my victory, but please always remember, in the midst of chaos, sparkle. Don't let life dull your shine.
Much Love,
The Manicured Mom
READ I Fought False Allegations & Won - Part 1
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