Silverman v. Kinsella CA4/2 ( 2021 )

Filed 4/27/21 Silverman v. Kinsella CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
MARCUS SILVERMAN,
Plaintiff and Respondent, E074110
v. (Super.Ct.No. MVC1908743)
PAUL KINSELLA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Eric V. Isaac, Temporary
Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Wagner Zemming Christensen, Marty E. Zemming and Dennis E. Wagner for
Defendant and Appellant.
Law Office of Dawn M. Saenz and Dawn M. Saenz for Plaintiff and Respondent.
Paul Kinsella appeals from the trial court’s granting of a three-year civil
harassment restraining order against him. (Code Civ. Proc., § 527.6; unlabeled statutory
references are to this code.) We affirm.
1
BACKGROUND
Viewed in the light most favorable to the judgment, the evidence in the appellate
record shows the following facts: In July 2019, Marcus Silverman filed a request for a
civil harassment restraining order, seeking protection for himself from Paul.1 The court
issued a temporary restraining order and referred the matter to mediation, but the
mediation was unsuccessful. A contested hearing was held in September 2019. Both
parties testified on their own behalf, one third party witness testified on behalf of
Silverman, and Silverman called Paul as a hostile witness under Evidence Code section
776.
Silverman lives across the street from Dion Denti. One night in July 2019, Denti
hosted a party at his house with over 30 people in attendance, including Silverman.
Silverman encountered Paul and his wife Maria as they arrived at the party. Silverman
knew Maria because she worked at the office of one of Silverman’s past clients.
Silverman and Paul were not previously acquainted.
Paul was friends with Denti and worked as an independent contractor for a
business Denti operated from his home. In the five or six months before the hearing
(including after the party), Paul worked at Denti’s house three to six days per week.
While working at Denti’s house, Paul occasionally parked his car in front of Silverman’s
house. During an unspecified period before the party, Silverman had noticed Paul “in the
neighborhood.”
1 Because we refer to Paul’s wife in this opinion and she and Paul have the same
last name, we refer to the Kinsellas by their first names only. No disrespect is intended.
2
As Paul and Maria arrived at the party, Maria and Silverman exchanged greetings
and engaged in lighthearted conversation, and she introduced Silverman to Paul.
Silverman and Paul said hello to each other.
Later in the evening, Silverman was standing in a patio area where a bar had been
set up. He was drinking alcohol and speaking with Erica Hoquist, another guest whom
he had just met. Hoquist did not know Silverman or Paul before the party.
Silverman testified that he then initiated a conversation with Paul, remarking that
he thought he knew Paul from somewhere. (Hoquist said that Paul approached Silverman
and initiated the conversation, but she did not overhear anything the men said because
she had turned away to give them privacy.) Paul responded, “You need to stop
disrespecting me.” Silverman asked Paul what he meant, and Paul reiterated, “I seen you
looking at my wife. You need to stop disrespecting me.” Silverman denied looking at
Maria and attempted to explain to Paul how he knew Maria. Paul again told Silverman to
stop disrespecting him. Silverman responded, “whatever, man, you’re crazy,” and turned
and walked away.
After taking several steps, Silverman felt something knock him in the back of the
head, and he fell to the ground (a brick patio). Paul then kicked Silverman twice—once
in the head and once in the shoulder. Silverman raised his hands defensively. Someone
helped Silverman up from the ground, while some men stood between him and Paul as
Paul walked away. Before leaving the party, Silverman spoke with Denti, and then two
neighbors escorted Silverman home.
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Hoquist testified that she saw Paul “[o]ut of nowhere” grab Silverman by the neck
and push him to the ground. Paul then kicked Silverman “quite hard” on his neck.
Hoquist threw herself between the two men while another man was escorting Paul away
from the area. Hoquist helped Silverman stand up.
Paul denied telling Silverman to stay away from Maria or to stop disrespecting
him, and he denied attacking Silverman. Paul instead claimed that Silverman had “kind
of bear hugged” Paul, causing both men to fall to the ground. According to Paul, no one
had restrained him.
The next day, Silverman sought medical treatment. He had various cuts and
abrasions, his knee and elbow were swollen, and he could not turn his head. Silverman
was diagnosed with a concussion and an injury to his shoulder where it connected to his
collarbone. Two months later, Silverman continued to experience medical problems
resulting from the attack.
Silverman explained why he believed he needed a restraining order against Paul as
follows: “Because I don’t think this behavior is like of a normal person. I’m afraid that
one night I’ll be at a grocery store near our houses or something and the guy will see me
in the parking lot or something at night and attack me from behind just like a coward like
he did last time.” Silverman further explained that it concerned him that Paul knew
where Silverman lived and frequented the neighborhood. Silverman explained that
because he had been attacked by Paul in his nearby neighbor’s yard, Silverman did not
“feel safe knowing” that Paul was in his neighborhood and on his street.
4
After hearing argument from both parties, the trial court granted an injunction
requiring Paul to stay at least 10 yards from Silverman’s person, residence, vehicle, and
workplace for three years, until September 12, 2022. The court found Paul’s testimony to
be “shaky” and described him as having “lie[d] to the Court.” The court set the minimum
distance at 10 yards because Silverman’s front door is only 70 yards from Denti’s, and
Paul works at Denti’s home. The trial court stated that it was not granting the restraining
order on the basis of “a course of conduct” involving threats but instead was granting it
on the basis of Paul’s violence.
DISCUSSION
Paul argues that there was insufficient evidence to support the trial court’s implied
finding that there existed a reasonable probability of future harassment. We are not
persuaded.
We review for substantial evidence the trial court’s factual findings (express and
implied) in granting a civil harassment restraining order. (R.D. v. P.M. (2011) 202
Cal.App.4th 181, 188.) Under the doctrine of implied findings, we presume that “the trial
court impliedly made every factual finding necessary to support its decision.” (Fladeboe
v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 48.) “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.”
(Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.)
5
Section 527.6 provides that a restraining order may issue if a person has suffered
harassment as described by the statute. (§ 527.6, subd. (a).) “‘Harassment’” is defined as
(1) “unlawful violence,” (2) “a credible threat of violence,” or (3) “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.” (§ 527.6, subd. (b)(3).)
Even if harassment has been shown, a prohibitory “injunction restraining future
conduct is only authorized when it appears that harassment is likely to recur in the
future.” (Harris v. Stampolis (2016) 248 Cal.App.4th 484, 499 (Harris); Russell v.
Douvan (2003) 112 Cal.App.4th 399, 400 (Russell).) Accordingly, “a single act of
harassment alone cannot justify a restraining order” unless there is a reasonable
probability that the harassment will recur. (Harris, supra, at p. 499; Russell, supra, at
p. 404; Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 332-333 (Scripps) [applying
same standard to workplace violence under § 527.8].) In determining whether the record
contains substantial evidence of a reasonable probability that an unlawful act will occur
in the future, we consider “‘the nature of the unlawful violent act evaluated in the light of
the relevant surrounding circumstances of its commission and whether precipitating
circumstances continue to exist so as to establish the likelihood of future harm.’”
(Harris, at pp. 499-500.)
The trial court did not expressly find that there existed a reasonable probability of
future harassment. “Absent indication to the contrary, we must presume that the trial
court followed the applicable law and understood that it was required to find that future
harm was reasonably probable. [Citations.] Given that it issued an injunction, we may
6
infer that the trial court impliedly found that it was reasonably probable that future
harassment would occur.” (Harris, supra, 248 Cal.App.4th at pp. 500-501.) Nothing in
the record suggests that the trial court misunderstood the law in rendering its ruling, and
the parties do not argue that it did. In this vein, the present case differs from Russell,
supra, 112 Cal.App.4th 399, on which Paul relies. There, the appellate court reversed the
trial court’s order granting an injunction because the trial court erroneously believed that
it was required to issue an injunction on the basis of a single act of past unlawful
violence. (Id. at p. 404.)
Here, the relevant circumstances surrounding Paul’s unprovoked attack on
Silverman support the trial court’s implied finding that there was a reasonable probability
of the harassment recurring in the future. Because Paul frequently works at Silverman’s
neighbor’s house, it is likely that Paul and Silverman will cross paths again. This
inference is further supported by the fact that Silverman had noticed Paul in the
neighborhood before the party. (Harris, supra, 248 Cal.App.4th at p. 501 [implied
finding of likelihood of future harassment supported by likelihood that the restrained
person and the protected person would have future interactions].) Those facts distinguish
the present case from Scripps, supra, 72 Cal.App.4th 324, on which Paul relies. There,
the Court of Appeal concluded that there was not substantial evidence of a reasonable
probability of future harm because it was unlikely that the restrained person would again
encounter the hospital employees in question after the restrained person’s mother
changed her health insurance carrier. (Id. at p. 336; Harris, at p. 500 [distinguishing
Scripps on this basis].)
7
In addition to containing evidence that it was likely that Paul and Silverman would
encounter each other in the future, the record contains no evidence that Paul has
expressed any remorse for his actions, that he has come to believe that his jealousy was
baseless or unfounded, or that his jealousy has at all abated. Contrary to taking any
responsibility for his actions, Paul denied committing any wrongdoing (and the trial court
found those denials not credible). Thus, the record supports a reasonable inference that
the circumstances that led to Paul’s unprovoked attack—namely, Paul’s belief that
Silverman had in some way disrespected Paul or Maria or both—continue to exist and
thus tend to show a reasonable probability of future harassment.
Considering the circumstances surrounding Paul’s unprovoked attack on
Silverman, we conclude that there was sufficient evidence to support the trial court’s
implied finding that it is reasonably probable that unlawful harassment was likely to recur
in the future absent an injunction.
DISPOSITION
We affirm the September 12, 2019, order granting the civil harassment restraining
order. Silverman shall recover his costs of appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
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