Pinto v.
Filed 9/4/13
Pinto v. Leon CA2/2
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opinion has not been certified for publication or ordered published for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
SECOND
APPELLATE DISTRICT
DIVISION
TWO
MARIA PINTO,
Plaintiff and
Appellant,
v.
MARIA DE JESUS LEON et al.,
Defendants and Respondents.
B243673
(Los Angeles County
Super. Ct. Nos. PS013879, PS013880)
APPEAL
from an order of the Superior Court
of
County. Jeffrey M.
Harkavy, Commissioner. Affirmed.
Maria
Pinto, in pro. per., for Plaintiff and Appellant.
No
appearance for Defendants and Respondents.
Maria
Pinto (appellant) appeals from an order of the superior court entered after an
evidentiary hearing in this civil
harassment matter. Appellant filed
requests for orders to stop harassment against Maria de Jesus Leon (Leon)
and Jorge Flores (Flores) (respondents).
days, the trial court found appellant failed to prove by
respondents engaged in unlawful violence, made a credible threat of violence,
or engaged in a course of conduct that seriously alarmed or harassed
appellant. However, the trial court
issued limited orders directing respondents to keep their dog on their property
and secured at all times; replace their outdoor security lighting to minimize
illumination of appellant’s property; refrain from blocking appellant’s
driveway; and refrain from allowing guests to gather outside of their home
after 9:00 p.m.
Appellant
contends that the trial court erred in failing to grant her petition for civil
harassment order. We find no error, and
affirm the order of the trial court.
Appellant
contends that the evidence did not support the trial court’s findings, and that
she was prejudiced by respondents’ counsel’s failure to follow the State Bar
Rules of Professional Conduct. Appellant
further contends that she satisfied her burden of proving that her petition for
a civil harassment order should be granted.
BACKGROUND AND
PROCEDURAL HISTORY
Appellant filed her petitions for
orders to stop harassment on August
19, 2011. Appellant alleged
that respondents had threatened violence against her and that she no longer
felt safe in her home. At the time
appellant filed her petitions, she was the respondent in a civil harassment
matter, PS013818. That matter was
settled with a written agreement filed on the same day that appellant’s
petitions were filed, August 19, 2011.
Appellant
is a woman in her 70’s who has lived at her current residence for over 30
years. Since shortly after respondents
moved into a neighboring home over five years ago, the parties have been at
odds with one another. Law enforcement
officers, including parking enforcement and animal control officers, have been
called on numerous occasions. Appellant
alleged that respondents drove their car very close to her and verbally
threatened her. The threats that
appellant described were derogatory names such as “bitch†and “stupid old
lady.†Appellant claimed that Leon
threatened to “fuck [her] up.â€
Appellant
also claimed that respondents had engaged in a course of conduct to harass
her. The acts alleged included:
1. Yelling at appellant, calling her derogatory
names and cursing at her;
2. Pointing cameras and lights at appellant’s
home;
3. Parking their cars in such a way as to block
appellant’s driveway;
4. Permitting their guests to park their cars in
such a way as to block appellant’s driveway;
5. Allowing their children to play in the street
and make excessive noise;
6. Sweeping the sidewalk next to appellant’s
home;
7. Standing outside and staring at appellant;
8. Driving close to appellant and making
comments;
9. Holding weekly gatherings on Wednesday
evenings where numerous adults and children are outside and making excessive
noise until late into the evening;
10. Yelling and screaming at appellant while
intoxicated;
11. Purposely allowing their “viciousâ€
Labrador/mix dog out of their yard to intimidate appellant;
12. Calling the police and making false police
reports;
13. Contacting the neighbors in an attempt to
have them testify falsely against appellant; and
14.Yelling
over appellant’s fence from the neighbor’s side.
Appellant’s
daughter Lourdes Pinto, who resides with appellant in her home, allegedly
witnessed several acts of harassment.
According to a declaration dated October 24, 2011, Lourdes
witnessed respondents making a false police report and letting the dog out just
as she was getting out of her vehicle. Lourdes
also witnessed Leon
climbing a wall between the properties and yelling profanities at appellant.
The
trial court conducted evidentiary hearings in appellant’s two related cases
against respondents on October 24,
2011, January 20, 2012,
April 17, 2012, May 22, 2012, and July 24, 2012. The court considered the testimony and
evidence and also took judicial notice of PS013818, which both parties
referenced.
While
a statement of decision is not necessary in a civil harassment matter, given
the long-standing issues between the parties and the hours of testimony
presented, the court provided a comprehensive, nine-page memo setting forth the
reasoning behind its decision.
The
court acknowledged that the parties have been at odds with each other for over
five years, and that law enforcement officials, including parking officers and
animal control officers, have been involved at various times. However, the trial court concluded “[i]t is
unclear at best, how this all started.
Each side blames the other for the first incidences that each claim was
the beginning of this ongoing feud between the families.â€
In
denying appellant’s petition for restraining
order, the trial court stated:
“The
Court finds from all the evidence presented, that [appellant] has failed to
prove by clear and convincing evidence that either Respondent engaged in
unlawful acts of violence against her.
While there were some references in [appellant’s] testimony to acts of
driving near her and making statements, there was no credible evidence of any
acts of violence. Likewise, the Court
finds that [appellant] has failed to prove by clear and convincing evidence
that either Respondent made a credible threat of violence directed at
[appellant].â€
As
to appellant’s claims of harassment, the court noted that each of the
respondents denied the allegations of appellant and her witnesses. The court then explained its evaluation of
appellant’s credibility:
“On
several occasions, the Court finds that [appellant] has testified in a manner
that shows an exaggerated and unreasonable reaction to fairly normal
events. She testified that by being
called a ‘stupid old lady’ that this term constituted a threat to her person
and indicated a willingness by Mrs. Leon to physically harm her. She testified that she did not call the
police, in part, because she does not speak English. It is inconceivable that a person who has
lived in the local area for over 30 years does not know that she could call 911
and be assisted by a Spanish speaking operator.
[Appellant] testified that she saw the Respondents talking with
neighbors and came to the conclusion that the purpose of these conversations
was an attempt by the Respondents to suborn false testimony. This allegation was made despite the
[appellant’s] total inability to hear what was being said. Nor was there any evidence presented by
[appellant] as to what was said.
. . . [Appellant], in her testimony, stated that she was
being harassed by Ms. Leon sweeping the sidewalk next to the front of her home
and staring at her. The Court finds that
such a distorted and exaggerated interpretation of the stated events casts
considerable doubt on the [appellant’s] credibility.â€
The
court also noted that despite the police being called on over a dozen occasions
for noise complaints, not a single citation had been issued. While law enforcement’s decisions are not
binding on the court, the court noted that this observation seemed “to indicate
a lack of independent evidence that the gatherings at Respondent[s’] home are as
loud and out of control [as appellant] asserts.†The court further observed that the timing of
appellant’s petition was suspect, being filed on the same day that she was to
be in court on the PS013818 matter.
Having purportedly endured years of harassment and abuse, the court
found it odd that appellant waited until the day she was to appear in court as
a respondent in a harassment case to file her petition. The court concluded, “[t]hese actions raise
the strong indication that the Petitions before this Court were filed in direct
retaliation for being subjected to the Temporary Restraining Orders in the Leon
v. Pinto case.â€
However,
the trial court found that four limited orders were warranted by clear and
convincing evidence. The court thus made
the following orders:
“1. Respondents are to keep their dog on their
property and secured at all times. The
dog may be off the property when being transported in a vehicle or while on a
leash and under the control of an adult.
“2. Respondents are to replace their outdoor
security lighting with motion sensitive security lighting to minimize the time
the lights are on at night. The lights
are to be aimed in a manner that illuminates the Respondents[’] property with
as little light as is reasonably practical shining onto any neighboring
property.
“3. Respondents are not to park their vehicles in
a manner that blocks or restricts [appellant’s] free access to ingress and
egress of her driveway. Respondents are
to take reasonable measures to make sure that all guests and invitees to their
property park their vehicles in a similar manner.
“4. Respondents are not to permit gathering of
persons of any age outside of the interior of their house beyond 9:00 p.m. After that hour, guests and invitees are to
proceed directly to and from their vehicles, or if walking, to their
destinations, without loud noises or conversation.â€
On
August 27, 2012, appellant filed her notice of appeal in the matter against
Flores. On September 25, 2012, appellant
filed her notice of appeal in the matter against Leon.
I. Standard of review
We
review an order relating to harassment under a substantial evidence
standard. “In assessing whether
elements of willful harassment, as defined in Code of Civil Procedure section
527.6, we review the evidence before the trial court in accordance with the
customary rules of appellate review. We
resolve all factual conflicts and questions of credibility in favor of the
prevailing party and indulge in all legitimate and reasonable inferences to
uphold the finding of the trial court if it is supported by substantial
evidence which is reasonable, credible, and of solid value. [Citations.]â€
(Schild v. Rubin (1991) 232
Cal.App.3d 755, 762.)
As
in all cases, appellant bears the burden of showing error. (Frank
and Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 474.) “In the absence of such a showing, we presume
the judgment is correct.†(
II. Timing of appellant’s filing
Appellant argues
that the evidence does not support the trial court’s finding that the timing of
her filing on August 19, 2011, was suspect after appellant supposedly endured
years of harassment. Appellant claims that
in fact she had only been in fear for her safety since a single incident on
July 21, 2011, when she was verbally assaulted by respondents. Appellant references a declaration dated
August 19, 2011, in which she supposedly wrote that she had been afraid of Leon
since July 21, 2011.
The
court has reviewed the record and is unable to find the referenced declaration,
which is not properly cited. There is
one declaration by appellant contained in the clerk’s transcript, although it
is undated and appears to be attached to an answer to a petition for order to
stop harassment filed by Leon. In it,
appellant states that the dispute between the parties “began sometime in 2008,â€
when Leon parked a truck in front of appellant’s driveway, leading to a verbal
altercation between the two individuals.
Appellant further stated that “[s]ince that [2008] incident, [Leon’s]
behavior has escalated and at times [sic]
combative and threatening to the point that I am fearful and afraid for my
safety and well-being.†A second, undated
declaration by appellant also states that the conflict began with an incident
that occurred in 2008, and enumerates seven other separate incidents occurring
between late 2010 and August 2011.
name="_ftnref5" title="">[5] This evidence supports the trial court’s
finding that appellant claimed the harassment had been ongoing for years.
In addition,
appellant has failed to provide the court with a reporter’s transcript of the
evidentiary hearings. The trial court
noted that “[a]ccording to [appellant’s] testimony, [appellant] had been
enduring years of threats, verbal abuse and a variety of forms of
harassment.†A fundamental obligation of
an appellant is to present a record from which an appellate court may determine
whether the trial court’s order, which is presumed correct, was erroneous. (Denham
v. Superior Court (1970) 2 Cal.3d 557, 564.) Likewise, an appellant must affirmatively
show error by an adequate record. (
etc., Bd. (1988) 197 Cal.App.3d 1032, 1036.) Failure to
an issue challenged on appeal requires that the issue be resolved against the
Center (2000) 78 Cal.App.4th 498, 502 (Hernandez).)
Under
the circumstances, we find that appellant has failed to meet her burden of
proving that any of the trial court’s findings were not supported by the
evidence.
III. Violation of Rules of
Professional Conduct by respondents’ attorney
Appellant’s
next argument also relies exclusively on oral testimony and events that
occurred during the oral hearings in this matter. Appellant claims that sometime in March 2012,
during the time that the evidentiary hearings in this matter were continuing,
she filed a police report against respondents for violation of court
order. The police did not pursue
respondents, instead citing appellant for filing a false police report in
violation of Penal Code section 148.5, subdivision (a). The citation was made by Detective Reade of
the Los Angeles Police Department.
Appellant appears to be arguing that respondents’ counsel violated rule
5-200 of the Rules of Professional Conduct when he brought in Officer Reade as
a surprise witness to “sandbag†appellant.
In addition, appellant accuses respondents’ attorney of seeking to
mislead the trial court by making a false statement of fact or law.
Without a
reporter’s transcript of the proceedings, we have no means of evaluating these
events or the conduct of respondents’ attorney.
Therefore we must resolve this issue against the appellant. (Hernandez, supra, 78 Cal.App.4th at p. 502.)
IV. Substantial evidence
supports the decision that appellant failed to meet her burden of proving that
her petition for civil harassment order should be granted
Appellant
argues that she presented sufficient evidence in support of her petitions for
orders to stop harassment against respondents.
Appellant references her sworn testimony, written declarations,
exhibits, witness declarations, and live witnesses. Appellant contends that through this
evidence, she proved that she was subjected to a pattern of misconduct and
illegal, harassing behavior perpetrated by respondents for no other reason than
to molest, harass, intimidate and disturb her.
As
set forth above, appellant has failed to provide an adequate record for review
and therefore has failed to meet her burden of proving error. (Hernandez, supra, 78 Cal.App.4th at p. 502.)
Furthermore, we note that the trial court’s decision was largely based
on its finding that appellant’s testimony was not credible. The trial court enumerated specific examples
of appellant’s statements and conduct which contributed to the court’s
assessment of her veracity. For example,
the court found that appellant testified to having exaggerated and unreasonable
reactions to fairly normal events. In
addition, appellant testified to the content of a conversation that she
admitted she could not hear. Despite the
fact that she could not hear the conversation, she concluded that it was an
attempt by respondents to suborn false testimony. The suspicious timing of the filing of
appellant’s petitions, which the court felt suggested that appellant was filing
in retaliation to a petition filed against her,
was another of the examples of unreasonable conduct that the court listed.
A
reviewing court may neither reweigh the evidence nor reevaluate a witness’s
credibility. (People v. Lindberg (2008) 45 Cal.4th 1, 27.) In this case, the determination of the
witness’s credibility was in the exclusive province of the trial judge, who saw
and heard the witnesses. (
Cal.App.2d 7, 13.) The trial court’s
determination that appellant lacked credibility is not subject to
reevaluation. Under the circumstances,
there is no grounds for reversal.
The
order is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________,
J.
CHAVEZ
We concur:
___________________________, P. J.
BOREN
___________________________, J.
ASHMANN-GERST
name="_ftn1" title="">[1] Appellant’s two petitions for orders to stop harassment
were given two separate case numbers in the trial court, although they were
heard together as related cases. We
granted appellant’s request for consolidation of the two matters on appeal.
name="_ftn2" title="">[2] Appellant has included in her appeal contentions related to
a separate case, Leon v. Pinto, Los Angeles Superior Court case No. PS013818
(PS013818), for which a settlement agreement was filed on August 19, 2011. The record does not contain a notice of appeal for PS013818,
nor has there been a request to consolidate a third matter in this appeal. Therefore, we decline to address any claims
relating to PS013818, including appellant’s due process argument concerning the
actions of the mediator during the settlement of the case; and her complaints
regarding the lack of an interpreter at the time of the stipulation and
settlement in that case.
