Filed 6/8/22 McFadden v. Rochard CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Superior Court of Los Angeles County. Kiehl T. Johansen, Judge. Affirmed.

Kim Rochard, in pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_______________________

Jawana McFadden obtained a three-year civil harassment restraining order against Kim Rochard. Rochard appeals from the trial court’s denial of her request for modification of the restraining order. We conclude the trial court did not abuse its discretion and affirm.

FACTUAL AND PROCEDURAL HISTORY

McFadden and Rochard are neighbors in the same condominium complex. On December 18, 2020, McFadden filed a petition for a civil harassment restraining order against Rochard based on a dispute over the use of a water spigot outside McFadden’s garage. According to McFadden, Rochard damaged the spigot and waved a hammer as she harassed McFadden. The trial court issued a temporary restraining order and set the matter for a hearing on January 11, 2021. After the hearing the court issued a three-year civil harassment restraining order that expires on January 1, 2024.

Ten days later, on January 21, 2021, Rochard filed a request for order in which she sought to reduce the length of time of the restraining order to 12 to 18 months because she wanted to apply for a job with the Los Angeles County Sheriff’s Department. On March 16, 2021, the court denied Rochard’s request to modify the civil harassment restraining order.

Rochard timely appealed from the trial court’s order denying her request for modification.[1] Rochard’s designation of the record on appeal states: “This appeal is limited to a challenge of the court’s denial of appellant’s request to reduce a 3 year restraining order imposed on appellant by the court, as that amount, under the circumstances of the instant case, is excessive and unwarranted and is precluding appellant from precluding a career in law enforcement when there exist[s] no compelling need to protect society or anyone from appellant.”

McFadden did not file a respondent’s brief.[2]

DISCUSSION

1. Standard of Review

Rochard argues the trial court abused its discretion in declining to modify the civil harassment restraining order. We review the trial court’s decision whether to modify or dissolve an injunction for abuse of discretion. (Salazar v. Eastin (1995) 9 Cal.4th 836, 850-851 (Salazar).) “To the extent we review the trial court’s factual findings, we apply the substantial evidence standard of review. [Citation.] In general, ‘[w]e presume that the trial court[’s] order is correct, and imply findings that are necessary to support the judgment.’ [Citation.]” (Global Protein Products v. Le, supra, 42 Cal.App.5th at p. 367.)

2. The Trial Court Did Not Abuse Its Discretion When It Denied Rochard’s Request To Modify the Civil Harassment Restraining Order

A trial court may issue a civil harassment restraining order upon a finding, by clear and convincing evidence, of “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.” (Code Civ. Proc., § 527.6, subds. (a)(1), (b)(3) & (i).) A civil harassment restraining order is a type of injunction that requires a person “to refrain from a particular act.” (§ 525 [defining “injunction”].) Pursuant to Code of Civil Procedure section 533: “In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order.” (Loeffler v. Medina, supra, 174 Cal.App.4th at p. 1504; accord Civ. Code, § 3424, subd. (a) [grounds for modifying or dissolving “final” injunction].)

At the hearing on Rochard’s request to modify the civil harassment restraining order, the trial court heard testimony from Rochard and McFadden. McFadden objected to reducing the duration of the order and asserted there were still issues between them at the condominium complex. She testified that since the trial court issued the restraining order Rochard moved some of Rochard’s plants and trees to McFadden’s side of the property. Rochard had also failed to adhere to a verbal agreement (mediated by their homeowners association) not to park in a manner that blocked McFadden’s entry. The court viewed a photo of the allegedly encroaching plants and a barrier that Rochard had placed between her side of the property and McFadden’ side. Rochard denied that her plants were affecting plaintiff’s property or that she and McFadden had any continuing conflict. She said she deserved the opportunity to work as a public servant.

The trial court concluded there remained continuing conflict between the two, and that it would not be in the interest of justice to reduce the duration of the civil harassment restraining order. Rochard argued the court had ignored evidence and did not give her a chance in the first hearing, during which McFadden had lied about Rochard waving a hammer at her. The court explained Rochard had asked for a modification, not a rehearing or an appeal, and the parties were not there to relitigate the evidence or rehash the court’s decision. Although the trial court commended Rochard for wanting to pursue public service, the court expressed concern with the escalating events that led to the civil harassment restraining order, and denied plaintiff’s request.

The trial court did not abuse its discretion when it denied Rochard’s request to reduce the length of time of the order. In the short time since the court issued the civil harassment restraining order, circumstances had not changed—peace had not been embraced by the parties. In addition, Rochard did not contend there was any change in the law that would support modification of the order. The trial court was also within its discretion to find it was not in the interests of justice to reduce the duration of the order so that Rochard could pursue a career in law enforcement when the parties remained at odds. Thus, there were none of the “three independent bases on which a modification of an injunction may be predicated—(1) change in the facts, (2) change in the law, or (3) ends of justice.” (Loeffler v. Medina, supra, 174 Cal.App.4th at p. 1504.)

Substantial evidence supports the trial court’s ruling in this case. According to McFadden, Rochard continued to antagonize her by encroaching on her property, parking in a manner that impeded her access, and not obeying the agreement negotiated by their homeowners’ association. Although Rochard claimed McFadden’s allegations were false and there were no longer any problems between them, it is not our place to reweigh the evidence or the credibility of the parties; instead, we must resolve all factual conflicts and credibility questions in favor of McFadden. (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762 [“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”].)[3]

DISPOSITION

The order is affirmed. Rochard is to bear her own costs on appeal.

WISE, J.*

We concur:

PERLUSS, P. J.

FEUER, J.

[1] Rochard’s notice of appeal and opening brief refer to her underlying filing as a motion for reconsideration. Code of Civil Procedure section 1008 governs motions to reconsider or revoke an order. Section 1008 is not applicable both because Rochard did not bring a motion under that provision, and because such a motion must be brought within 10 days after service of the order at issue, which was not the case here. (Code Civ. Proc., § 1008, subd. (a); Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1503.) Moreover, an order denying a motion for reconsideration made pursuant to section 1008, subdivision (a), is not appealable except as part of an appeal from the order that was the subject of the motion for reconsideration. (Code Civ. Proc., § 1008, subd. (g).) However, “an order denying a motion to dissolve or modify an injunction under [Code of Civil Procedure] section 533 is appealable. (§ 904.1, subd. (a)(6).)” (Global Protein Products, Inc. v. Le (2019) 42 Cal.App.5th 352, 366, fn. 6.) Under the rule of liberal construction of notices of appeal (Cal. Rules of Court, rule 8.100(a)(2) [“The notice is sufficient if it identifies the particular judgment or order being appealed”]), we construe Rochard’s appeal to be from an order refusing to modify the civil harassment restraining order under Code of Civil Procedure section 533. (See Luckett v. Panos (2008) 161 Cal.App.4th 77, 90.)

[2] If no respondent’s brief is filed, “we examine the record and consider the opening brief and oral argument, if any, to determine whether the trial court’s ruling was prejudicial error.” (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 419, fn. 2; Cal. Rules of Court, rule 8.220(a)(2).)

[3] Rochard also suggests, without explication, that the trial court favored McFadden because she was on active military reserve duty, and that the underlying protective order is not supported by any evidence. The record in this case contains no mention of McFadden’s military service, and we decline to consider bare assertions unsupported by evidence or authority. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) And an evidentiary challenge to the underlying order is not within the scope of this appeal. (People ex rel. Feuer v. Progressive Horizon, Inc. (2016) 248 Cal.App.4th 533, 536 [“Because [the restrained party] did not timely appeal the order granting the injunction, the only issue before us is whether the trial court erred in denying the motion to [modify] the injunction.”].)

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