James S. v. Tony M. CA1/1

Filed 12/12/22 James S. v. Tony M. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

FIRST APPELLATE DISTRICT

DIVISION ONE

JAMES S., et al.,

Plaintiffs and Respondents,

A163465

v.

TONY M., et al., (San Francisco County

Super. Ct. No. CCH-21-583694)

Defendants and Appellants.

The trial court granted a civil harassment restraining order against

appellants Tony M. and his wife Shelli M. pursuant to Code of Civil

Procedure section 527.6 (section 527.6) based on their conduct in an on-going

dispute with their neighbors, respondents James S. and his wife Mihaela P.1

Tony and Shelli appeal, arguing that the court denied them due process and

that the order is not supported by substantial evidence. We reverse the order

as to Shelli and affirm the order as to Tony. Given our actions, two

important points require further mention. First, we reached our

determination about the legal appropriateness of the trial court’s order

concerning Tony by only the narrowest of margins, but ultimately arrived at

our decision by the strict application of the deferential legal standards that

We refer to the parties and witnesses by their first names to protect

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their privacy. (California Rules of Court, rule 8.90(b)(5)).

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guide this appeal. Second, our decision focuses on the legal principles

relevant to the appeal, especially as they relate to any asserted due process

violations, and it should not be construed as a full endorsement of the trial

court’s manner of conducting the hearing of the matter.

I. FACTUAL AND PROCEDURAL BACKGROUND

We summarize the facts in the light most favorable to the judgment.

(Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1405 (Brekke).) The parties are

neighbors who live next door to each other in separate houses. In 2018,

James and Mihaela initiated a process to remodel and expand their home.

Tony and Shelli sent Mihaela multiple text and email messages asking for

information about the remodel. If Mihaela did not respond with the

information, Tony and Shelli reportedly would become aggravated and send

her more messages. In January 2020, Shelli filed a petition for discretionary

review with the San Francisco planning department, which was denied. At

this point, Tony and Shelli became “very agitated.”

In July 2020, Tony and Shelli accused Mihaela of having received a

package that was intended for Shelli. Mihaela told Shelli that she did not

have her package, but Tony continued to text her about it and at one point

followed her into her garage and accused her of taking it. James and Mihaela

consulted with an attorney and sent two “cease and desist” letters,

demanding that Tony and Shelli cease communicating with them, stalking

them, and coming onto their property.

In February 2021, Shelli filed a site permit appeal regarding the

remodel by James and Mihaela, but did not submit a written brief or attend

the appeal hearing. At the hearing, an appeal board commissioner

commented that Tony and Shelli’s failure to appear was “very disappointing”

and constituted a waste of resources. Another commissioner suggested that

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Tony and Shelli had committed an “an abuse of the process” that felt

“vindictive.” During the hearing on the restraining order, Shelli said that she

had received a postcard informing her that James and Mihaela had made

changes to their building plans. Shelli explained that she decided not to

pursue the appeal after she was allowed to review the plans and saw that no

changes had actually been made, but she did not know how to “unappeal” the

appeal. Shelli and Tony did not introduce this postcard into evidence.

Mihaela testified that no plan changes had been made and she was never

copied on the alleged postcard.

On the night of April 29, 2021, James was walking his 20-year-old dog

on the public sidewalk near the home of Tony and Shelli when he heard an

alarm. Tony charged out of his house and reportedly yelled, “get your fucking

dog off my lawn. I’m going to kick your dog and punch you in the face if you

don’t get off.” When Mihaela heard shouting and came outside, Tony

allegedly threatened her by yelling “get off my fucking property or [I] will

kick you and your dog if she pees in front of my house one more time.” Shelli

also yelled at James from the third story balcony of her house.

On May 10, 2021, James filed a request for a civil harassment

restraining order. He sought protection from Tony and Shelli for himself as

well as for his wife and their dog. In their response, Tony and Shelli argued

that their prior actions were taken in pursuit of a legitimate purpose. They

also denied the harassment allegations by James and Mihaela.

At the June 23, 2021 hearing, James testified that the lawn is public

space and that “[e]verybody walks there all the time because it is public

space.”2 James stated that after the alarm went off, the garage door to the

2 Mihaela testified that the lawn in front of respondents’ house is also

public property and that she and James maintain the space.

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home of Tony and Shelli suddenly opened, and Tony charged out looking

enraged, yelling and threatening to hit him and kick the dog if they did not

get off his lawn. Mihaela stated that when she realized that Tony was yelling

at her husband, she ran outside and asked what was going on. Tony said

words to the effect that he was going to hit her and kick the dog if the dog

ever peed on his lawn again. In rebuttal, Tony testified that he had not made

any threats towards James, Mihaela, or their dog, but acknowledged he was

upset, explaining that he had been asleep and was frightened when the

alarm went off because there had been prior burglaries. Tony and Shelli

submitted a home security camera video of the incident.

The trial court issued its ruling from the bench, first noting that the

case “raises some complicated issues for the Court because there is some

legitimate purpose to some of the conduct and inquiring about the changes [to

the property] you were making; however, over time it got to be clear that

there was no issue with the property and steps that were taken after that did

not seem to serve a legitimate purpose to the Court.” As to the dog incident,

the court found Tony’s testimony lacked credibility, stating, “clearly, the

video speaks for itself. He was aggressive. He was yelling. I mean get your

dog. Whatever it was, was startling to me.” The court also found that the

conflict over the allegedly stolen package was “disturbing” in that Tony and

Shelli had repeatedly accused James and Mihaela of theft without having any

proof. The court found by clear and convincing evidence that “there has been

some harassment in this case.”

On June 23, 2021, the trial court filed its orders prohibiting Tony and

Shelli from harassing or contacting James and Mihaela, and requiring them

generally to stay 50 yards away from James, Mihaela, and their dog, but only

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3 yards away from them when on the parties’ block. The orders expire June

23, 2023. This appeal followed.

II. DISCUSSION

A. Applicable Law and Standard of Review

Section 527.6 authorizes a person who has suffered harassment to

“seek a temporary restraining order and an order after hearing prohibiting

harassment.” (§ 527.6, subd. (a)(1).) The statute defines “harassment” 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. 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.” (Id., subd. (b)(3).) At the hearing on a

section 527.6 petition, 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).)

“We review issuance of a protective order for abuse of discretion, and

the factual findings necessary to support the protective order are reviewed for

substantial evidence.” (Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1226,

disapproved on other grounds in Conservatorship of O.B. (2020) 9 Cal.5th

989, 1010, fn. 7.) “ ‘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

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law subject to de novo review.’ [Citation.]” (Harris v. Stampolis (2016) 248

Cal.App.4th 484, 497.)

In evaluating a sufficiency of the evidence claim when the clear and

convincing standard of proof is applied by the trier of fact, “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., supra, 9 Cal.5th 989 at pp. 995-996.)

B. The Trial Court Did Not Deny Appellants Due Process

Appellants assert that the trial court deprived them of due process by

(1) admitting that it could not clearly hear the audio portion of the video of

the dog-walking encounter, (2) revealing bias and lack of impartiality in

comments made during the hearing, and (3) arbitrarily refusing to consider a

written transcript of the video’s audio.

“The essence of due process is notice and the opportunity to be heard.”

(Andre v. Superior Court (1991) 2 Cal.App.4th 11, 19 (Andre); accord,

Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314.) Due

process is violated when a party is not “afforded the right to present his

arguments against the proposed ruling.” (Andre, supra, at p. 19.) Due

process also entitles a litigant to an impartial decision maker. (Haas v.

County of San Bernardino (2002) 27 Cal.4th 1017, 1025.)

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The record refutes the assertion that the trial court deprived appellants

of due process. As to the video, they argue that the court “refused to consider

the full video of the April 29, 2021 incident” when it “admitted that it could

not hear the audio portion of the video.” They assert the audio directly

contradicted respondents’ allegations that Tony had threatened to hit or kick

them and their dog, and that Shelli was yelling.

Contrary to appellants’ argument, the record shows that the trial court

did fully consider both the visual and the audio portions of the video. When

the video was played during the hearing on a laptop provided by appellants’

attorney, the trial judge indicated that she could not clearly hear what was

being said, eventually stating: “I am done with this. I can’t hear. It is what

it is. It was a muffled sound. I couldn’t make it out.” The court also declined

to consider appellants’ transcript of the audio because the transcript was not

certified, stating, “I am not willing to accept someone else’s interpretation of

what was said.” Our own review of the video validates the court’s comments

regarding its poor audio quality.3 The sound is muffled and the verbal

exchanges are, at times, difficult to make out. However, one can observe that

almost immediately after Tony exited his residence, he aggressively

approached respondents’ elderly dog and yelled at it.

Citing to California Rules of Court rule 2.1040(b)(1), appellants assert

that the trial court erred in refusing to review their transcript of the audio

because a certified transcript is not required. However, they did not object to

the court’s ruling at the hearing, thereby forfeiting the issue. (See Smith v.

County of Los Angeles (1989) 214 Cal.App.3d 266, 284 [questions relating to

3Of course, we have no way of determining the audio quality of the

video as it was played on appellants’ attorney’s laptop at the hearing.

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the admissibility of evidence will not be reviewed on appeal absent a specific

and timely objection at the trial on the ground sought to be urged on appeal].)

We also disagree with appellants’ assertion that the trial court

exhibited bias at the hearing. Appellants contend the court showed bias by

refusing an apology by counsel, by making a sarcastic comment ahead of a

portion of appellants’ testimony, and by arbitrarily excluding their evidence

while accepting similar evidence offered by respondents. The contentions

ultimately lack merit.

As the United States Supreme Court has explained, “judicial remarks

during the course of a trial that are critical or disapproving of, or even hostile

to, counsel, the parties, or their cases, ordinarily do not support a bias or

partiality challenge.” (Liteky v. United States (1994) 510 U.S. 540, 555.) And

where the criticism involves procedural matters, “A judge’s ordinary efforts at

courtroom administration—even a stern and short-tempered judge’s ordinary

efforts at courtroom administration—remain immune.” (Id. at p. 556.)

We view claims of bias through this legal prism, which essentially

precludes a sharper evaluation and determination about whether the trial

court’s actions in conducting the hearing were estimable under the

circumstances it faced. In other words, our inquiry necessarily focuses on the

due process concerns raised by appellants, as opposed to the highest

standards of judicial conduct that ought to guide all jurists in any proceeding.

It is true that the trial judge criticized appellants’ attorney for failing to

submit to the court any of the evidence that she introduced at the hearing.

When the court asked the attorney why she had filed a brief without

including all the exhibits, she stated that she “just thought we would go

through it at the hearing.” The court advised that the proceedings were “not

like a single court hearing, that this Court has many hearings.” At the same

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time the court stated, “[s]o I am trying to be as courteous as possible, but the

idea is to give the information to the Court so that the Court can review it

before the date of the hearing, and that way, we can move along.” Shortly

thereafter, the court expressed frustration when appellants’ counsel sought to

play the video of the dog incident. After taking a short break, the court

admonished counsel for disrespecting the court by failing to submit so many

items of evidence before the hearing. When counsel apologized and explained

that she had never been required provide a court with this type of

information in advance of a hearing, the court refused to accept the

“backhanded” apology, but allowed counsel to continue presenting her case.

While the trial court’s remarks were pointed, the comments themselves

do not suggest that the court was biased against appellants, especially given

the time constraints on the hearing.4 And even though the court expressed

impatience, it nevertheless permitted appellants’ counsel to fully present her

clients’ case.

As to the alleged sarcasm, appellants complain that towards the end of

the hearing, when appellants’ counsel asked to question her clients regarding

allegations that Shelli had used pesticides on respondents’ property and had

trimmed their hedges, the court responded: “not if it is going to be a litany

like, let’s say from – we are not going to have a Shakespearean speech. They

can address it briefly.” We discern no judicial bias. While the court clearly

wished to conclude the hearing, it thereafter allowed Shelli to testify that she

had used organic products on appellants’ yard, not pesticides, and that she

never trimmed respondents’ hedges.

4The hearing commenced at 10:52 a.m. The court indicated that the

hearing needed to conclude by noon. Appellants did not seek to introduce the

video as evidence until 12:00 p.m. The hearing ultimately adjourned at 12:36

p.m.

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Appellants also contend that the trial court demonstrated bias by

accepting respondents’ evidence of “ ‘caption notes’ ” taken at the board of

appeals hearing, while refusing to consider their video transcript. We are not

persuaded. Although appellants claim that respondents’ document was

admitted before their attorney had the opportunity to object on foundation or

authentication grounds, they do not explain why their attorney could not

have made a record of an objection at the hearing. Accordingly, this

contention is also forfeited for failure to object below.

In sum, we conclude that the trial court did not violate appellants’ due

process rights.

C. Lack of Substantial Evidence As To Shelli M.

Appellants assert that substantial evidence does not support the civil

harassment restraining order as to Shelli. They claim the order is unjustified

because “the majority of the allegedly harassing conduct (i.e., harassing texts

and emails, conduct related to the missing package, and cutting hedges and

spraying pesticide) took place prior to the cease and desist letters.” They

argue that there was no substantial evidence to suggest a likelihood of future

harassment. They also assert that the trial court erred by finding that

Shelli’s act of filing the site permit appeal constituted harassing conduct, and

in relying on its own experience when it allegedly discounted Shelli’s claim

that respondents had altered evidence regarding the number of text

messages that she had sent to Mihaela

We agree that the order against Shelli is not supported by substantial

evidence. It is undisputed that after respondents sent appellants the cease-

and-desist letters in July 2020, Shelli filed and later failed to withdraw a site

permit appeal against respondents. Apart from her failure to prosecute the

appeal, there was no evidence that she had engaged in any harassing conduct

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towards respondents since July 2020.5 We note that “an injunction

restraining future conduct is authorized by section 527.6 only when it

appears from the evidence that the harassment is likely to recur in the

future.” (R.D. v. P.M. (2011) 202 Cal.App.4th 181, 189.) Even if Shelli’s

conduct prior to July 2020 could have been characterized as harassment

under section 527.6, there is no evidence in the record that this conduct was

likely to persist. The evidence instead shows that Shelli was complying with

respondents’ cease-and-desist requests, and her failure to pursue the site

permit appeal, standing alone, does not support the issuance of a restraining

order. Accordingly, we conclude the order as to Shelli is not supported by

substantial evidence.

III. DISPOSITION

The order issued pursuant to section 527.6 is reversed as to Shelli M.

The case is remanded to the trial court to vacate its order concerning Shelli

M. in conformity with this opinion. The trial court order regarding Tony M.

is affirmed. The parties are to bear their own costs on appeal.

5In their petition, respondents stated that during the April 2021 dog-

walking incident Shelli said something while standing on her third floor

balcony, however, they could not make out what she was saying.

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DEVINE, J.

WE CONCUR:

HUMES, P. J.

MARGULIES, J.

A163465N

Judge of the Contra Costa County Superior Court, assigned by the Chief

Justice pursuant to article VI, section 6 of the California Constitution.

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