Higgins v. Yearwood CA2/5 ( 2021 )

Filed 9/10/21 Higgins v. Yearwood CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
TIMOTHY DANIEL HIGGINS, B306502
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. 18STRO05792)
STEVEN YEARWOOD,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kimberly Dotson, Commissioner. Affirmed.
Steven Yearwood, self-represented litigant, for Defendant
and Appellant.
Johnson & Johnson, Douglas L. Johnson and Aleeza L.
Marashlian for Plaintiff and Respondent.
I. PROCEDURAL BACKGROUND
On August 31, 2018, plaintiff and respondent Timothy
Higgins obtained a Civil Harassment Restraining Order After
Hearing (restraining order) on behalf of himself and his brother
Michael Higgins and against defendant and appellant Steven
Yearwood.
On February 19, 2020, defendant filed a Notice of Hearing
on Request to Terminate Civil Harassment Restraining Order.
On June 18, 2020, plaintiff filed a response to defendant’s request
to terminate the civil harassment restraining order.
On June 29, 2020, the trial court denied defendant’s
request to terminate the restraining order. Defendant appeals.1
1 We asked the parties to submit letter briefs addressing
whether defendant’s appeal should be dismissed as moot as the
restraining order would expire on August 31, 2021—i.e., during
the pendency of his appeal. (Citizens for the Restoration of L
Street v. City of Fresno (2014) 229 Cal.App.4th 340, 362–363, fn.
omitted [“An appeal is moot if the appellate court cannot grant
practical, effective relief”].) We hold that defendant’s appeal is
not moot because plaintiff filed a Request to Renew Restraining
Order before the restraining order expired and the Notice of
Hearing to Renew Restraining Order provides that the
restraining order remains in effect until the hearing on plaintiff’s
renewal request on September 20, 2021. On our own motion, we
take judicial notice of plaintiff’s Request to Renew Restraining
Order and Notice of Hearing to Renew Restraining Order. (Evid.
Code, §§ 452, subd. (d) & 459, subd. (a).)
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II. DISCUSSION
Code of Civil Procedure section 527.6, subdivision (a)(1)
(section 527.6) “provides that a victim of ‘harassment . . . may
seek a temporary restraining order and an order after hearing
prohibiting [the] harassment as provided in this section.’ When
the Legislature enacted section 527.6, it expressly stated the
statute was intended ‘to protect the individual’s right to pursue
safety, happiness and privacy as guaranteed by the California
Constitution.’ (Stats. 1978, ch. 1307, § 1, p. 4294.)” (Yost v.
Forestiere (2020) 51 Cal.App.5th 509, 520, fn. omitted (Yost).)
“An 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, 496 (Harris).)
“[T]he determination whether to modify or terminate a civil
harassment restraining order is committed to ‘the discretion of
the court.’ (§ 527.6, subd. (j)(1).)” (Yost, supra, 51 Cal.App.5th at
p. 514.) “[A] trial court’s discretion to modify [or terminate] a
civil harassment restraining order includes, but is not limited to,
the three grounds articulated in [Code of Civil Procedure] section
[533]. Those grounds are (1) a material change in the facts, (2) a
change in the law, or (3) the ends of justice. [Citation.]” (Yost,
supra, 51 Cal.App.5th at p. 526.)
In opposition to defendant’s request to terminate the
restraining order, plaintiff submitted evidence that during and in
violation of the restraining order, defendant sent plaintiff text
messages and posted comments about plaintiff on social media.
In May and June 2019 text messages, defendant asked plaintiff
to pay damages for his alleged breach of an agreement settling
defendant’s prior employment dispute with plaintiff. In his social
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media posts, defendant called plaintiff, among other things, a
“dark soul” and a “poor mannered thug” and accused him of
committing a “hate crime.”
At the hearing on defendant’s request to terminate the
restraining order, defendant initially explained that “[t]he only
reason why I had communicated with him [plaintiff] is because
he had breached the contract initially; we had settled out of court
and we made an agreement.” But defendant’s explanation for
this initial contact, which he stated “happened in 2016,” did not
invite or excuse defendant’s contact with plaintiff after entry of
the restraining order. Defendant admitted that he had contacted
plaintiff and his brother after the issuance of the restraining
order but explained that, in his view, the contacts were “not very
intimidating at all. It was very cordial.”
When defendant contacted plaintiff during and in violation
of the restraining order, he made clear that his harassment of
plaintiff was “likely to recur in the future” (Harris, supra, 248
Cal.App.4th at p. 496) and demonstrated the need to keep the
restraining order in place. Accordingly, the trial court did not
abuse its discretion in denying defendant’s request to terminate
the restraining order. (Yost, supra, 51 Cal.App.5th at p. 514.)
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III. DISPOSITION
The order is affirmed. Plaintiff is awarded his costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.
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