Lord v. Mancino CA1/3 ( 2021 )

Filed 10/27/21 Lord v. Mancino CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 THREE
EDWIN FREDERICK LORD,
Plaintiff and Respondent,
A161323
v.
HARMONY RENE MANCINO, (City & County of San Francisco
Super. Ct. No. CCH-20-582872)
Defendant and Appellant.
Harmony Rene Mancino appeals after the trial court granted Edwin
Frederick Lord a civil harassment restraining order against her. We
conclude the evidence does not support a finding that there is a likelihood of
future harassment. We therefore reverse the order.
FACTUAL AND PROCEDURAL BACKGROUND
Mancino and Lord are housemates in a two-story house in San
Francisco. On the lower floor, Lord occupies one bedroom and a resident
named Tom (who acts as property manager) occupies another, and there is a
small living room. Upstairs are bedrooms occupied by Mancino and Mark
Chan, as well as a living room. It appears that in June 2020, Mancino
obtained a temporary restraining order against Tom, based on him coming
upstairs to sleep in the bedroom next to hers rather than in his own room,
and that the temporary order was dissolved when the trial court denied her
request for a permanent order a week or two before the August 14, 2020
hearing at issue in this case.
Lord filed a request for a civil harassment restraining order on June
18, 2020. He alleged Mancino had begun engaging in a pattern of
harassment in May 2020, when she put sand into the kitchen and bathroom
pipes, requiring a repairman to come to the house on June 6 and 7, and that
she did not keep the kitchen and bathroom clean, leading to an increase in
ants. Lord also described two incidents in which Mancino tried to enter his
room without permission. On June 7, 2020 she “snoop[ed] by sticking her
head in [Lord’s] room taking notes, sticking her head in Tom’s room when he
is not there taking notes and leaving without saying anything to [Lord].” On
June 9, 2020, Mancino looked into the windows of the downstairs bedrooms,
saw that Lord’s bedroom door was open, and slowly came through the door.
Lord yelled “Hold on” at her because he had sensitive files on his computer.
Mancino “flinched” and went back outside the room, then told Lord she was
looking for Tom. About an hour later, a woman knocked and asked for Tom,
then left when Lord told her Tom was not there. As a result of Mancino’s
behavior, Lord alleged, he experienced anxiety, nausea, and feelings of
paranoia when Mancino was within 15 feet of him.
In her response to the request, Mancino averred that in early June she
knocked on Lord’s door and they spoke briefly. On one occasion, she looked in
Tom’s bedroom window to see how much furniture the room contained
because Tom had been sleeping next to her bedroom upstairs. The main
reason she approached the downstairs area in early June was to serve Tom
with a temporary restraining order. She denied clogging the pipes, she said
the ants were a longstanding problem predating her tenancy, and she said
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she had almost no interaction with Lord and had never done anything
intentionally to annoy him.
The hearing on Lord’s request for a restraining order was held on
August 14, 2020, along with a separate request for a restraining order
against Mancino filed by Chan, the fourth housemate. Chan complained that
he and Mancino had a conflict about her blocking the front door with her
umbrella, that she made noise in the house after 10:00 p.m., and that
Mancino left sand in his shoes and on the floor. Mancino admitted she had
put sand in Chan’s shoes and expressed remorse for doing so. The trial court
denied Chan’s request without prejudice.
As to Lord’s request for a restraining order, the order at issue in this
appeal, Lord told the court he had interacted with Mancino only a handful of
times and their first interaction was pleasant. In May, however, Mancino
came downstairs and accused Tom in a hostile manner of going upstairs
without permission. On June 7, when the plumber was present, Mancino
came downstairs, stuck her head into the room where Lord was typing
without saying anything, “looking like she was taking . . . [¶] mental notes,”
looked into Tom’s room, then went to the plumber and talked to him. As to
the June 9 incident, Lord explained that Mancino came into his room and
appeared to wait for him to say something. He preferred to keep his room
private because he worked with confidential medical records. He did not see
Mancino put sand in the kitchen and bathroom pipes, but suspected she had
done so because the plumber who came to the house said sand was blocking
the pipes. Lord acknowledged, though, that the sand might have come from
people visiting the beach then washing their clothes in the sink.
Mancino told the court that she had entered the downstairs unit on two
occasions, but that she did not recall setting foot in either bedroom, saying it
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would be “inappropriate” to do so. According to Mancino, the first time she
went downstairs was when the plumber came to work on the pipes. The
plumber worked downstairs first while Mancino finished washing dishes in
the kitchen, which was upstairs; when she was finished she went downstairs.
She looked into Lord’s bedroom, then saw the plumber in Tom’s bedroom and
told him the kitchen was free. The second time she went downstairs, she was
trying to serve Tom with the temporary restraining order, which she
succeeded in doing on June 10, 2020. She denied clogging the pipes and
called the accusation “illogical,” noting that clogged pipes in the house would
affect her own well-being. She denied doing anything intentionally to harass
or annoy Lord or make him uncomfortable.
The trial court stated it was “persuaded by what Mr. Lord is saying
about you entering his room and continuing to bother him; so I think that
does constitute harassment.” It granted Lord’s request for a restraining
order, directing Mancino not to have contact with him for 18 months, to stay
three yards away from him at home and 50 yards away while outside the
house, and not to harass him. This timely appeal ensued.
DISCUSSION
Section 527.6 of the Code of Civil Procedure1 allows a victim of
harassment to seek “an order after hearing prohibiting harassment as
provided in this section.” (§ 527.6, subd. (a)(1).) The statute provides an
expedited procedure for enjoining acts of harassment as defined in the statute
(Yost v. Forestiere (2020) 51 Cal.App.5th 509, 520 (Yost)), and authorizes a
restraining order if the court “finds by clear and convincing evidence that
unlawful harassment exists” (§ 527.6, subd. (i)).
1 All statutory references are to the Code of Civil Procedure.
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The scope of the term “ ‘[h]arassment’ ” for purposes of the statute is
limited, encompassing “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.” (§ 527.6, subd. (b)(3).)
“ ‘Course of conduct,’ ” in turn, means “a pattern of conduct composed of a
series of acts over a period of time, however short, evidencing a continuity of
purpose,” including following or stalking someone, making harassing
telephone calls, or sending harassing correspondence, but it does not include
activity that is constitutionally protected. (§ 527.6, subd. (b)(1).)
The purpose of an order under section 527.6 is not to punish a person
for past acts of harassment. (Huntingdon Life Sciences, Inc. v. Stop
Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1265–
1266.) Rather, relief is authorized “ ‘only to prevent threatened injury’—that
is, future wrongs.” (Yost, supra, 51 Cal.App.5th at p. 520.) Accordingly, “[a]n
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), citing Russell v. Douvan (2003) 112
Cal.App.4th 399, 402–403.)
On appeal, we determine whether the trial court’s findings, express or
implied, are supported by substantial evidence in the record. (Harris, supra,
248 Cal.App.4th at p. 497.) We review de novo “ ‘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.’ ” (Ibid.)
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Mancino challenges the restraining order on a variety of grounds: that
entering Lord’s room twice does not constitute harassment or a course of
conduct as defined in section 527.6; that she was acting in furtherance of her
constitutional rights of association, free speech, and petitioning for the
redress of grievances; that there is insufficient evidence Lord suffered
substantial emotional distress for purposes of the statute; and that there is
no evidence to support a finding that future harm is likely. Because we agree
with Mancino on at least her last point, we need not consider the remainder
of her contentions.
To determine whether it is reasonably probable harassment will recur
in the future, courts evaluate the nature of the unlawful act “ ‘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, supra, 248 Cal.App.4th at pp. 499–500, quoting
Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 335, fn. 9.) For instance,
in Scripps Health, a hospital obtained a restraining order under an analogous
statute, section 527.8, against the son of a patient who had an altercation
with a hospital employee. (Scripps Health, at pp. 327–329.) The appellate
court reversed, finding there was no evidence the son was likely to commit
further violent acts and noting there were no prior or subsequent threats of
violence, the son stated he would stay away from the hospital when the
temporary restraining order was vacated and he abided by his agreement,
and it was unlikely the mother would return as a patient to the same
hospital. (Id. at p. 336.)
In Harris, in contrast, the evidence was found to support an implied
finding that future harassment was likely where a parent who had been
aggressive to the principal at his child’s school was a member of the school
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district’s board of trustees and was usually the one responsible for picking up
his son at the school, leading to a likelihood of future interactions. (Harris,
supra, 248 Cal.App.4th at pp. 487, 500–501; see City of San Jose v. Garbett
(2010) 190 Cal.App.4th 526, 531–532, 542–543 [sufficient evidence of likely
future harm where appellant who had spoken threateningly to city staff
member continued to appear at City Hall regularly and had history of
threatening conduct].)
The case here differs from Scripps Health in that Mancino and Lord
live in the same house and future interactions are likely, if not inevitable.
But this record gives no basis to conclude future harassment is likely. The
trial court’s ruling appears to have been based only on Mancino’s two entries
into Lord’s room; there is no indication it found that she clogged the pipes
with sand or that she deliberately failed to keep the kitchen or bathroom
clean in order to annoy Lord. There was no history of bad blood between
Mancino and Lord and nothing to suggest Mancino directed her ire toward
him; rather, the most the record indicates is that she was seeking to find Tom
or the plumber or to examine Tom’s room when she thought he was
encroaching on her portion of the house. (Compare R.D. v. P.M. (2011) 202
Cal.App.4th 181, 189–190 [restrained party had record of past harassment of
plaintiff, angry outbursts, erratic behavior, and obsessive focus on plaintiff].)
We question whether these two incidents of Mancino entering Lord’s portion
of the house could qualify as harassment, but in any event Mancino retreated
from Lord’s room immediately when he made clear she was not welcome, she
apparently did not go to his room again in the more than two months
between June 9 and the August 14, 2020 hearing, and she acknowledged that
going into his bedroom uninvited would be inappropriate. And, to the extent
the fact that Mancino put sand in Chan’s shoes is relevant, she acknowledged
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her actions were wrong, they were not directed toward Lord, and indeed, the
trial court denied Chan’s request for a restraining order.
Under the circumstances, this record does not support an implied
finding that Mancino is likely to enter Lord’s room uninvited again or harass
him in any other way in the future, and we must therefore vacate the
restraining order. Nothing we say, however, is intended to prevent Lord from
seeking relief if Mancino harasses him in the future or if she has harassed
him since the order went into effect.
DISPOSITION
The judgment is reversed and the restraining order issued on August
14, 2020 is dissolved. The parties shall bear their own costs on appeal.
TUCHER, P.J.
WE CONCUR:
FUJISAKI, J.
PETROU, J.
Lord v. Mancino (A161323)
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