《西雅图夜未眠》CoCoM

41、法院文件-反驳他申请的临时保护令和虚假证据

　　III. AUTHORITY AND ARGUMENT
　　A. Legal Standard for Issuing Anti-Harassment Protection Order
　　“A petition [may be filed] for an antiharassment protection order, which must allege the existence of unlawful harassment committed against the petitioner or petitioners by the respondent.” RCW 7.105.100(1)(f). For the purpose of antiharassment protection order, “unlawful harassment” means: “(a) A knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, harasses, or is detrimental to such person, and that serves no legitimate or lawful purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner; or (b) A single act of violence or threat of violence directed at a specific person that seriously alarms, annoys, harasses, or is detrimental to such person, and that serves no legitimate or lawful purpose, which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner. A single threat of violence must include: (i) A malicious and intentional threat as described in RCW 9A.36.080(1)(c);1 or (ii) the presence of a firearm or other weapon.” RCW 7.105.100(36). “Course of conduct”, then, “means a pattern of conduct composed of a series of acts over a period of time…evidencing a continuity of purpose.” RCW 7.105.101(6)(a) (emphasis added). However, constitutionally protected speech is carved out from the definition of “course of conduct”. See RCW 7.105.100(6)(a). Further, “[i]n determining whether the course of conduct serves any legitimate or lawful purpose, a court should consider whether: (i) Any current contact between the parties was initiated by the respondent only or was initiated by both parties; (ii) The respondent has been given clear notice that all further contact with the petitioner is unwanted;
　　(iii) The respondent's course of conduct appears designed to alarm, annoy, or harass the petitioner; (iv) The respondent is acting pursuant to any statutory authority including, but not limited to, acts which are reasonably necessary to: (A) Protect property or liberty interests; (B) Enforce the law; or (C) Meet specific statutory duties or requirements; (v) The respondent'scourse of conduct has the purpose or effect of unreasonably interfering with the petitioner's privacy or the purpose or effect of creating an intimidating, hostile, or offensive living environment for the petitioner; or (vi) Contact by the respondent with the petitioner or the petitioner's family has been limited in any manner by any previous court order.” RCW 7.105.100(6)(b). Lastly, an antiharassment protection order shall be issued if the court “finds
　　by a preponderance of the evidence” that the petitioner has been subjected to unlawful harassment by the respondent. RCW 7.105.225(1)(f). 1 RCW 9A.36.080(1)(c) provides that “[a] person is guilty of a hate crime offense if he or she maliciously and intentionally
　　commits one of the following acts because of his or her perception of the victim's race, color, religion, ancestry, national origin, gender, sexual orientation, gender expression or identity, or mental, physical, or sensory disability specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property. The fear must be a fear that a reasonable person would have under all the circumstances. For purposes of this section, a "reasonable person" is a reasonable person who is a member of the victim's race, color, religion, ancestry, national origin, gender, or sexual orientation, or who has the same gender expression or identity, or the same mental, physical, or sensory disability as the victim. Words alone do not constitute a hate crime offense unless the context or circumstances surrounding the words indicate the words are a threat person does not have the ability to carry out the threat.” (emphasis added) . Threatening words do not constitute a hate crime offense if it is apparent to the victim that the person does not have the ability to carry out the threat.” (emphasis added)

　　B. Online Posts, Conducts, and Disclosure of Information Accused in the Petition Were NOT Made, or Directed to Be Made, by Respondent.
　　It is important to point out that many online posts and disclosure of information that are accused in the Petition were not even made, or directed to be made, by Respondent. See Respondent Decl. ?99. For instance, Petitioner provide no evidence to prove that Respondent had any involvement in the following posts or disclosure of information:
　　? Appendix 6 attached to the Petition (an online post made by an internet user “1x409686m0817”).
　　? Appendix 7 attached to the Petition (including four sets of online posts made by internet users including “Anna007_” and “momo”).2
　　? Petitioner’s evidence provided by Petitioner’s counsel on May 31, 2023, attached here to as Exhibit A.
　　? Petitioner’s evidence provided by Petitioner’s counsel on May 31, 2023, attached here to as Exhibit B.
　　While Petitioner asserted that these are “just a small part of…defamation, abuse and [Petitioner’s] personal information,” See the Petition, § Evidence, Appendix 7, he could not even prove these “small part” were actually made by Respondent. Id.
　　2 Note, in the Petition, Petitioner provided only eight sets of “Appendix” as supporting evidence, including Appendix 8 as alleged to be Petitioner’s medical diagnosis.

　　C. Accusations in the Petition Are Not Supported by Evidence
　　For instance, in one of the exhibits provided by Petitioner’s counsel on May 31, 2023 as evidence supporting the Petitioner, which is attached hereto as Exhibit C, Petitioner presented a few online posts made by Respondent and accused Respondent of “encouraging people to engage in new internet violence and doxing against Kang Dai”, and that she “encouraged people to abuse [Petitioner ]Kang, expose his privacy, and further defame him.”
　　However, the main content of these posts was Respondent’s questioning why Petitioner started the legal action against her, as she voluntarily removed his name and identity in her posted story and tried to protect Petitioner’s privacy. In these posts, Respondent was also made it clear that it was the internet users, instead of her, who exposed Petitioner’s information. Most importantly, even in this post, Respondent did not mention any name or provide any Petitioner’s personal information.
　　How could the content of this post provide any support to Petitioner’s allegation that, by making this post, Respondent “encouraged” people to engage internet violence against Petitioner, and “encouraged” people to abuse [Petitioner] Kang, expose his privacy, and further defame him”?
　　A similar example is Petitioner’s accusation that “Respondent’s social media, live streaming Mr. Dai’s private voice record to public without authorization,” attached hereto as Exhibit D. The supporting evidence provided was a screenshot of what appears to be Respondent’s social media account, showing a “forecast of live streaming” on May 18, 2023 at 20:00. However, the evidence could not prove any content of the live streaming, nor could it prove that if the alleged “live streaming” ever took place.
　　D. Respondent Directed No Violence or Threat of Violence at Petitioner, and No Unlawful Harassment Can Be Found under RCW 7.105.100(36)(b).
　　The Petition was filed with no specific allegation of any violence or threat of violence as defined in RCW 7.105.100(36)(b), nor any evidence to prove such violence or threat of violence. Petitioner also made no accusation and provided no evidence for any hate crime, or similar behaviors described in RCW 9A.36.080(1)(c), made by Respondent.
　　Respondent’s declaration establishes that no unlawful harassment can be found
　　under RCW 7.105.100(36)(b).

　　E. None of Respondent’s Behaviors Constitute “Unlawful Harassment” under RCW 7.105.100(36)(a).
　　1. Respondent’s online posting of the story involving Petitioner is not a “course of conduct” directed at Petitioner.
　　The love story posted by Respondent online contains no names and no identifier information. The posting is nothing more than a broken-hearted woman’s sharing release emotion and also seeking emotional support from the members of her community. The story was about Petitioner (with his name and identifier information hidden intentionally by Respondent) but was not directed at Petitioner.
　　Moreover, Respondent posted her love story only once on April 23, 2023. The later spreading of the story, including those re-posting of the story on other websites, had nothing to do with her and was made by without her knowledge by unknown internet users. Petitioner clearly knew this fact. Regardless of the content of Respondent’s post, her one-time posting of the story would not constitute a “patten of behavior”, and therefore cannot establish any “course of conduct” for finding unlawful harassment. See RCW 7.105.101(6)(a).
　　Further, Respondent’s refusal of disclosing Petitioner’s name and other personal information again shows that the posting was not “designed to alarm, annoy, or harass the petitioner.” See RCW 7.105.101(6)(b).
　　Lastly, Respondent has the freedom to make a speech in a public forum about her own experiences and feelings. The posted story, and her expression of her feelings in her comments and communication with commentators on the story, are all constitutionally protected speech, which is clearly carved out from the definition of “course of conduct” for finding unlawful harassment. See RCW 7.105.101(6)(a).
　　2. Respondent’s attempts to contact Petitioner were invited by Petitioner and for legitimate or lawful purposes.
　　During the period from May 10, 2023 to May 18, 2023, Respondent made in total about 30 calls (she cancelled another 12 calls), sent in total about 90 (plus 13 screenshots) messages, and 7 emails to Petitioner, for the same purpose: prompting response that was promised by Petitioner, and demanding for compensation and resolutions.
　　Although Respondent appeared to be only party initiating these contacts during this period, the communication is essentially a two-way communication because Petitioner, on April 24, 2023, assured Respondent that he would “continually apologize…listen to her demands” and invited Respondent to request “anything else” other than apology. And the only reason why Respondent continued her attempts for a week is that Petitioner chose to keep silent – he had never given any clear notice to Respondent if he wanted the further contact, but simply let Respondent continue her contacting attempt. For the same reason, Respondent’s attempted contacts were not “designed to alarm, annoy, or harass” Petitioner. See RCW 7.105.101(6)(b). Instead, they were invited, and then prompted, by Petitioner’s promise and silence.
　　Pursuant to RCW 7.105.010(6)(b), it is evident that Respondent’s attempted contact to Petitioner were made for legitimate or lawful purposes, and therefore will not constitute an element for unlawful harassment.
　　3. Respondent’s attempts to report Petitioner to his employer and his supervisors at work are for legitimate or lawful purposes.
　　Respondent’s reporting to Petitioner’s supervisors at Amazon by email about Petitioner’s misbehaviors, including communicating her complaint to two individual supervisors of Petitioner, were made with her belief that she needed to prompt a third-party authority to investigate the issue and reveal the truth. Moreover, being threatened and insulted by not only Petitioner but also anonymous online attackers, resorting to a third party with authority over Petitioner was Respondent’s defense and self-protection. Again, the reporting was not “designed to alarm, annoy, or harass” Petitioner, but was made by Respondent to seek truth, justice, and protect herself. The reporting was also reasonable given Petitioner had taken Respondent to his office for intimate activities and likely violated his employment policies.
　　The reaction of Petitioner’s employer and supervisor supports this conclusion. Instead of dismissing Respondent’s reporting email as any “harassment”, Amazon Inc. quickly opened an investigation and invited Respondent to an investigation meeting. None of the supervisors that Respondent contacted refused the request or in any way indicated that they were harassed, instead, they voluntarily stayed in connection with Respondent and even replied to Respondent directly.
　　Lastly, Petitioner was aware of Respondent’s reporting. But he gave no notice to Respondent about if he wanted further contacts like this.
　　4. Respondent’s visit to Petitioner’s neighborhood was not a course of conduct and was not designed to harass Petitioner.
　　To say farewell to her complicated and bitter relationship with Petitioner, Respondent visited the neighborhood where Petitioner may be currently residing on May 1, 2023. Respondent stayed in this neighborhood for about 10 minutes and posted two pictures of the neighbor that did not include Petitioner’s property. Her location of the picture showed a medical institute that was about 3200 feet away from the neighborhood.
　　In this one-time visit, Respondent had no idea of the exact location or address or Petitioner’s home and did nothing other than walking in the neighborhood and taking some pictures. She did not even know if even Petitioner was not in the United States when she paid the visit.
　　Clearly, Respondent’s visit to the neighborhood is not a course of conduct directed at Petitioner, not even about Petitioner. At most, it was her way of saying goodbye for herself and the visit was not designed to create any intimating living environment for Petitioner. By all means, a one-time visit to Petitioner’s neighborhood cannot be a “pattern of” behaviors, nor was it designed to “alarm, annoy, or harass” Petitioner.
　　This visit would not support for the finding of unlawful harassment.
　　5. There is no evidence to prove that Petitioner has suffered actual and substantial emotional distress due to Respondent’s behaviors.
　　Petitioner’s evidence cannot establish that he has suffered actual substantial emotional distress caused by Respondent. The evidence provided by Petitioner shows no name of doctor or the medical institution, nor the date of the diagnosis. The evidence also showed no causal relationship between the diagnosed symptoms and the alleged unlawful harassment. See the Petition, § Evidence, Appendix 8.

　　F. No Evidence Is Provided to Establish that Respondent Was Stalking or Cyberstalking Petitioner.
　　Petitioner is not petitioning for a stalking protection order but checked the box “stalking” in his anti-harassment order petition. This appears to be a sloppy and unintended act as the Petition contains no specific allegation, let alone any evidence, regarding Respondent’s stalking or cyberstalking.
　　Moreover, the online exposure of Petitioner’s personal information, including the photos of Petitioner’s child and pet, has nothing to do with Respondent. The reasons causing the exposure are two-folded. On the one hand, Petitioner had voluntarily released and disclosed a substantial amount of personal information including his child’s photos on his social media accounts, and invited or encouraged public members’ attention and following, making him a semi-public figure in the internet domain. On the other hand, without any knowledge of Respondent, anonymous internet users had further circulated and spread Petitioner’s already-public personal information.
　　On the very contrary, Respondent had explicitly and clearly rejected the idea of exposing Petitioner’s name and personal information. Clearly, she has had no intention to annoy, threaten, or otherwise harass Petitioner.
　　G. After Being Served of the Temporary Protection Order, Respondent Has Never Knowingly or Willfully Violated the Order.
　　Pursuant to RCW 7.105.455, enforcement and penalties for violation of an antiharassment order could only be imposed if the “respondent knows of the order” and “willfully disobey” the order. In addition, the May 16, 2023 temporary protection order required personal service of “a service packet, including a copy of this order, the petition, and any supporting materials filed with the petition,” and did not allow alternative service. See Temporary Protection Order dated May 16, 2023, §11, at 8-9.
　　In this case, the police did not serve the packet on Respondent in person. Instead, the temporary order, the petition, and the supporting materials were served to Respondent email by a police officer on May 18, 2023 at 2:02 p.m. The officer received a confirmation of receipt at 5:09 on the same day. See Affidavit Declaration or Return of Service Law Enforcement Agency (“Proof of Service”) filed on May 30, 2023, p. 1.
　　Here, after the temporary order was issued on May 16, 2023, all of Respondent’s attempts to contact Petitioner were made before she was served of the order and knew of the content and meaning of the order. Her last attempt to contact Petitioner was made before she actually received the email performing the service of the order.
　　In addition, Petition also accused Respondent of violation of the protection order by “by posting the Order and court documents on her social media”. See Exhibit E attached hereto. But this accusation has no legal basis. In this state, “Const. art. 1, §5 guarantees an absolute right to publish and broadcast accurate, lawfully obtained information that is a matter of public record by virtue of having been admitted into evidence and presented in open court.” Catlett v. Teel, 15 Wash. App. 2d 689, at 701 (2020). Therefore, the posting of either the entire or a portion of the temporary protection order is within Respondent’s constitutional right and will not violate the temporary protection order.
　　Moreover, making a comment on the temporary order, or Petitioner’s petition for such order, is within Respondent’s constitutional right and should not be considered as violation of the order.
　　Therefore, Respondent had never willfully disobeyed the order. On the contrary, she voluntarily submitted herself to the police on May 19, 2023 for the exact reason to ensure her full compliance with the temporary order, which was confirmed by the police.
　　H. There is No Need to Issue a Full Order Restraining Respondent
　　In posting her May 1, 2023 post titled “Move on”, Respondent had already made her mind to end her relationship with Petitioner and, in late April, she had clearly informed Petitioner that she wanted to stay away from Petitioner.
　　But this does not mean that Respondent is not entitled to damages and bringing legal actions to recover such damages. Now, Respondent has retained counsel and knows her rights and the appropriate and effective way to assert her claims. She has no intention to make any further contact Petitioner and would only want to avoid Petitioner in her life forever.
　　Therefore, there is no need for a full protection order restraining Respondent from doing something that she would never do in the future.
　　I. There is No Basis to Award Attorney’s Fees and Costs to Petitioner.
　　Petitioner provided no basis whatsoever for this Court to award his attorney’s fees and costs. In this particular case, such relief is inappropriate and unjust. Here, Petitioner’s petition was groundless and unnecessary: he learned from the police, as early as of May 1, 2023, that Respondent’s posts did not constitute a threat or harassment.
　　In addition, Petitioner could have informed Respondent that he did not want to be contacted, but never did so. Lastly, Petitioner omitted the evidence disfavoring his position, e.g., the May 1, 2023 police report, to mislead the Court to issue the temporary protection order and forced Respondent to incur fees and costs for her defense in this case.
　　Respondent is entitled to attorney’s fees and cost for defending herself against the
　　Petition, which is without factual and legal basis.
　　J. Designation of the Parties Should Be Realigned
　　RCW 7.105.210 provides that, “the court may realign the designation of the parties …where the court finds that the original petitioner is the abuser or harasser, and the original respondent is the victim of domestic violence or unlawful harassment.
　　The court may issue a temporary protection order in accordance with this chapter until the victim is able to prepare a petition for a protection order in accordance with this chapter.”
　　Here, ample evidence has been provided to show that Mr. Kang Dai, the original Petitioner here, is the abuser or harasser and that Respondent is the actual victim of domestic violence or unlawful harassment. Respondent has been subject to unlawful harassment, or domestic violence, or both, that are committed by Mr. Kang Dai and needs a protection order to retrain Mr. Kang Dai from the following behaviors:
　　? Harm, or threat to harm Respondent
　　? Contact or stay within 1,000 feet to Respondent and her school, residence, and workplaces
　　? Stalk or cyberstalk Respondent
　　? Possessing or releasing intimate photos of Respondent
　　? Starting or continuing abusive litigation against Respondent
　　Accordingly, we therefore respectfully request that this Court issue a temporary protection order against Mr. Kang Dai for fourteen days to allow Respondent to prepare and file her petition for a protection order.
　　IV. CONCLUSION
　　The petition here is driven by Petitioner’s agenda that has nothing to do with harassment: he wants to deter Respondent from pursuing her potential claims against him, to chill Respondent and anyone else who dare to show their support and sympathy, and to exhaust the financial resources of Respondent, who is an international student having no independent income source.
　　For the foregoing reasons, Petitioner Kang Dai’s petition should be dismissed at prejudice with all reliefs requested therein be denied, and the temporary civil protection order against Respondent, entered by this Court on May 16, 2023 and reissued on June 27, 2023 should be vacated. Respondent should also be awarded reasonable attorney’s fees and costs.