Saks v. Landi CA2/3 ( 2023 )

Filed 1/6/23 Saks v. Landi CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE
WAYNE JOSEPH SAKS, B311806
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 20STRO06439)
v.
PASCAL JEAN-BAPTISTE LANDI,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Joshua D. Wayser, Judge. Affirmed.
Fisher, Klein & Wolfe and David R. Fisher; Macias Counsel
and Sean E. Macias, for Plaintiff and Appellant.
BDG Law Group, Robert D. Bergman and Richard A. Fond,
for Defendant and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Appellant Wayne Joseph Saks appeals from the trial court’s
order denying his request for a civil harassment restraining order
pursuant to Code of Civil Procedure 1 section 527.6. Saks sought
the restraining order against respondent Pascal Jean-Baptiste
Landi, who struck Saks in the face following a dispute over a
parking space in the condominium complex where they both
owned units.
The trial court concluded that Saks failed to demonstrate a
likelihood of future harm, a required element for obtaining a
restraining order against Landi under section 527.6. Because we
find the evidence does not compel a contrary conclusion, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Saks’s restraining order request
Saks filed a request for a civil harassment restraining order
against Landi. Saks alleged that on November 19, 2020, as he
was walking to his car in the parking structure of a condominium
complex where he and Landi each owned units, Landi verbally
accosted him for parking in one of Landi’s designated parking
spaces. Saks further alleged that despite his efforts to avoid a
confrontation with Landi, Landi struck him in the face causing
serious injury.
Although Saks’s restraining order request was based
primarily on the parking structure incident, he also alleged that
Landi had engaged in unspecified harassment of him in
connection with Landi’s role as a board member of their
1 All subsequent undesignated statutory references are to
the Code of Civil Procedure.
2
homeowners association. Saks’s request also identified two
lawsuits that he and Landi were involved in related to the
condominium complex. In one of the lawsuits, Saks was suing
Landi and their homeowners association.
The same day that Saks filed his request, the court issued a
temporary restraining order against Landi requiring him to stay
away from Saks. The temporary restraining order remained in
effect until February 3, 2021, the date of a continued hearing on
Saks’s request for a restraining order.
II. Landi’s response to Saks’s restraining order request
Landi filed a response to Saks’s restraining order request.
Landi’s response accused Saks of, among other things,
antagonizing residents of their condominium complex. Landi
claimed Saks had boarded elevators without a mask during the
COVID-related safety and health orders. He also described the
lawsuit that Saks filed against the homeowners association and
its board members, including Landi, as “baseless.”
Regarding the November 19, 2020 incident, Landi claimed
that he was in the parking structure and noticed that Saks had
parked in one of his parking spaces. Saks then appeared, and
Landi asked him to move his car. Landi also asked Saks to wear
a mask while in public places in the building. According to
Landi, Saks “aggressively approached” him and said he could use
Landi’s parking space “if he wanted to.” Landi asked Saks to
“move away from him,” but Saks refused, leading “Landi to
push/hit Mr. Saks away from Mr. Landi, as he was rightfully
fearful of what Mr. Saks might do next.”
Landi also included five declarations with his response.
According to the response, the declarations were from “other
owners of condominiums in the building corroborating that Mr.
3
Saks is an aggressive individual who enjoys causing problems,
and getting people to react to his actions.”
III. Restraining order hearing
The court held a two-day video hearing regarding Saks’s
restraining order request. We briefly summarize the hearing.
A. Landi’s testimony
Saks first called Landi as an adverse witness. Landi
testified that he had lived in the 11-unit condominium complex
since August 2014. Landi was a board member of the
homeowners association and former board president. His
condominium unit was on a different floor and the other side of
the building from Saks’s unit.
Prior to the incident on November 19, 2020, Landi had not
interacted much with Saks. Landi recalled only one interaction a
few weeks before the incident when Saks entered an elevator and
coughed at Landi as Landi exited. Landi generally tried to avoid
Saks because he believed Saks had been antagonistic with
contractors in the building. Landi’s wife had also complained to
Landi about Saks. Citing these events, Landi described the
parking structure incident as a “culminating event.”
Landi denied that the lawsuit Saks had filed against him
and the homeowners association was “a source of significant
stress in the building.” He explained that while the lawsuit could
affect insurance rates, none of the individual homeowners had
paid any attorney fees. At the time of the parking structure
incident, Landi was unaware that the day before Saks had given
deposition testimony in the lawsuit.
On November 19, 2020, Landi went to the parking
structure to get his bicycle and noticed that Saks had parked in
4
one of Landi’s spaces.2 Saks then entered the parking structure.
Landi immediately told Saks that Saks had parked in one of his
spaces, and asked Saks to wear a mask in the building. Landi
recalled that Saks aggressively approached him and said
something like Saks “had the right to use any parking spot that
he wanted.”
Coincidentally, Saks was recording video footage on his
phone as he entered the parking structure. According to the
footage, Saks did not make such a statement. The footage, which
is aimed at the ground and does not clearly show Saks or Landi,
depicts that after Landi asked Saks to move his car, Saks denied
knowing the parking space belonged to Landi. Landi responded,
“Are you fucking kidding me?” After Saks asked Landi to “relax,”
Landi appears to have responded, “You should wear a mask.”
Landi testified he then “pushed” Saks in the face because
Saks refused to move away from him.3 Saks did not strike or
push back at Landi. The video footage briefly shows Saks
bleeding from his lip. Landi testified that he was surprised to see
Saks wounded.
After the incident, Landi stayed about 10 to 20 yards away
from Saks and followed him out of the parking structure. Landi
2 Landi had five spaces in the parking structure. One of
those spaces, where Saks had parked, was separate from the
other four and adjacent to Saks’s two spaces. Landi testified that
Saks had never parked in Landi’s space before.
3 Landi denied striking Saks with his fist. A police report
from the incident states that Landi “punched Saks with his fist
one time on the right side of [Saks’s] mouth.” The video footage
does not show Landi strike Saks.
5
called the police because he saw that Saks was hurt, and he
waited for the police to arrive. While he waited for the police,
Landi stayed on the opposite side of the street from Saks because
he knew that Saks wanted Landi to stay away from him. The
police later arrested Landi. Landi did not apologize to Saks after
the incident but was sorry he struck Saks and agreed that he had
lost his control.
After imposition of the temporary restraining order, Landi
was able to enter and exit the condominium complex without
having any contact with Saks. The building has a private
elevator to Landi’s unit, but it was not in service at the time of
the hearing.
B. Saks’s testimony
Saks testified next. He had owned a unit in the
condominium complex since 2005. Because Saks’s unit had water
damage, he did not reside there either at the time of the incident
or the hearing. At the time of the hearing, Saks had only begun
to obtains bids to repair the unit and expected the repairs to take
“some time.” Before the incident, Saks visited his unit five to six
times a week.
Saks described his relationship with Landi as “aggressive
and violent.” Even so, he testified that the only violent incident
with Landi was in the parking structure on November 19, 2020.4
Saks testified that he generally tried to avoid Landi.
4 Saks also described an incident several months before the
hearing when Landi “tried to run into [him] on the sidewalk”
with his bicycle while Saks was outside near the building’s
driveway. Landi denied doing so.
6
At the time of the hearing, Saks was suing the homeowners
association, Landi, and others.5 Saks’s counsel described the
lawsuit as involving “bad faith handling of repairs and
misconduct.”
On November 18, 2020, one day before the parking
structure incident, Saks gave deposition testimony in the lawsuit.
According to Saks’s hearing testimony, during the deposition he
said that Landi had mistreated the owner of the unit next to
Saks’s unit; that Landi had stopped repair work from being
performed on Saks’s unit; and that Saks believed Landi was
“picking on [him] for years because [he is] gay.” Landi was not
present at the deposition.
On the morning of November 19, 2020, Saks went to the
condominium complex to retrieve some belongings from his unit.
Parking spaces in the building are marked with the number of
the corresponding unit. Until that morning, however, Saks was
unaware he had only two parking spaces in the building. Saks
did not park in either of those spaces because his former
partner’s car was there already and he did not have enough room.
5 Saks asks that we take judicial notice of the second
amended complaint in Saks, et al. v. Pink, et al., Los Angeles
Superior Court case No. 19SMCV00289; and the second amended
complaint and cross-complaint in Siderman, et al. v. Pink, et al.,
Los Angeles Superior Court case No. 19SMCV01637. We decline
to take judicial notice because Saks fails to establish these
pleadings were before the trial court, and because these
pleadings are not germane to the disposition of this appeal. (See
Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th
657, 687 fn. 10 [declining to take judicial notice “of matters that
were not before the trial court” and that were “irrelevant to the
disposition of this appeal”].)
7
Saks thus parked in an available space adjacent to his spaces
that, unbeknownst to him, belonged to Landi.
At the time of the incident, Saks was carrying some bags
and his dog and walking to his car in the parking structure. As
Saks entered the parking structure he saw Landi, who shouted at
Saks about using his parking space.6 Saks tried to avoid Landi,
but Landi confronted him. Saks asked Landi to calm down, but
Saks saw Landi take “what [he] believed to be his metal bicycle
lock in his fist” and hit Saks in the face with it.
Saks started bleeding and was in shock. He tried to call
911 but did not have cell phone service. As Saks started to exit
the parking structure, he noticed Landi walking his bicycle next
to him. According to Saks, Landi shouted that “he didn’t want
[Saks] in the building” and that “he was sick of the fucking
lawsuit,” and only “changed his tone” as they neared an area with
security cameras. Landi, however, denied yelling at Saks as they
exited the parking structure.
6 Saks testified that he believed Landi was waiting for him in
the garage. When asked why he believed that, Saks testified, “I
think because there had been the deposition less than 24 hours
before where I spoke specifically against him. He had seen that I
had arrived in the morning as I usually do, pretty much the same
time, and he was waiting there, standing next to his bicycle, and
he attacked me.” When asked whether it was “normal to see”
Landi in the garage, Saks responded, “Well, I didn’t say it’s
abnormal to be in the garage, but it’s only the two of us at the
moment that really parked down there since the other units are
vacant except for one other penthouse.” When asked whether he
knew if Landi was aware of what happened at the deposition the
day before the parking structure incident, Saks testified, “I do not
know 100 percent, no. I know by his actions.”
8
After exiting the parking structure, Saks and neighbors
called 911. Police and emergency medical personnel arrived soon
afterwards. Saks also contacted his attorney, who arrived and
took photographs of Saks’s injury.
Saks suffered blunt force trauma from the incident and had
plastic surgery later that same day to treat an injury to his lip.
He needed 17 stitches and has had five follow-up procedures to
treat the injury since then. He also suffered a chipped tooth, and
unspecified injuries to his head and neck.
Saks now fears for his safety and makes sure to be
accompanied whenever he returns to the condominium complex.
He had returned to the building only five or six times after the
incident and did not see Landi. Saks explained that in addition
to Landi’s private elevator, there are stairs in the building that
go directly from Landi’s unit to Landi’s parking spaces. Saks
never uses those stairs; he uses a different staircase on the
opposite side of the building.
C. Court’s ruling
At the conclusion of Saks’s case, Landi’s counsel attempted
to introduce the five declarations that were attached to his
response to the restraining order request. The court explained
that it would accept the testimony in the declarations if the
witnesses were available to testify subject to cross-examination.
Landi attempted to call only one such witness, but the
witness had technical difficulties connecting to the video hearing.
Landi therefore did not call any witnesses.
In its ruling, the court observed that while a single act of
“ ‘unlawful violence’ may be sufficient to support a [civil
harassment restraining order], such an act, in and of itself, does
not entitle a petitioner to a [civil harassment restraining order].”
9
Rather, “in addition to finding that a respondent has engaged in
‘harassment,’ a trial court must also find reasonable probability
of future harm absent an injunction.”
The court acknowledged that Saks and Landi lived in the
same building and “are in the midst of other unrelated litigation,”
but found that there was not “credible evidence of prior abuse or
any abuse that occurred after the incident.” The court further
noted that Landi was “upset about [Saks] not wearing his mask
on the property and parking in his parking spot. While that does
not of course justify the conduct, it is part of the overall context.”
The court also emphasized that the “parties have had
significantly limited prior interaction; petitioner does not stay at
the building currently and there is more than one way in and out
of the building, although not the garage. Also, Respondent has
his own dedicated elevator in and out of his unit at the building.
Respondent also called the police about the incident and his
testimony credibly explained his lapse in judgment.”
Based on these facts, the court found the matter
distinguishable from Harris v. Stampolis (2016) 248 Cal.App.4th
484 (Harris), which affirmed the issuance of a restraining order
after “five separate incidents of aggression by a middle-school
student’s parent against the school’s principal.” Instead, it
compared the case to Russell v. Douvan (2003) 112 Cal.App.4th
399 (Russell), “in which the appellate court reversed the grant of
a restraining order on the ground there was no substantial
evidence of a threat of future harm following a single incident of
harassment by an attorney who had forcibly grabbed opposing
counsel by the arm after a hearing.” The court acknowledged the
incident here was worse than in Russell in light of Saks’s
significant injury, but emphasized that there was no additional
10
personal or property damage other than the parking structure
incident. Last, the court did not find “persuasive under the
circumstances the testimony that [Saks] is currently in fear of
[Landi].”
The court concluded, “Given the lack of past interaction,
and that this was a one time incident,” Saks had “not met his
significant burden of proof under Section 527.6 and thus his
request for a [civil harassment restraining order] is denied.”
Saks timely appealed.
DISCUSSION
Saks contends substantial evidence does not support the
trial court’s conclusion that a restraining order was unwarranted
due to the lack of past interaction between Saks and Landi and
because this was a one-time incident. He further contends the
trial court misconstrued section 527.6 and applicable caselaw.
Last, he contends the trial court improperly considered excluded
evidence in denying his request for restraining order.
I. Applicable law and standard of review
Section 527.6, subdivision (a)(1) provides that “[a] person
who has suffered harassment as defined in subdivision (b) may
seek a temporary restraining order and an order after hearing
prohibiting harassment as provided in this section.” Subdivision
(b)(3) defines “[h]arassment” as “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.”
Subdivision (b)(7) defines “unlawful violence” as “any assault or
battery, or stalking as prohibited in Section 646.9 of the Penal
11
Code, but does not include lawful acts of self-defense or defense of
others.”
“A temporary restraining order may be issued with or
without notice, based on a declaration that, to the satisfaction of
the court, shows reasonable proof of harassment of the petitioner
by the respondent, and that great or irreparable harm would
result to the petitioner.” (§ 527.6, subd. (d).) Such a temporary
restraining order “shall remain in effect, at the court’s discretion,
for a period not to exceed 21 days, or, if the court extends the
time for hearing under subdivision (g), not to exceed 25 days,
unless otherwise modified or terminated by the court.” (Id.,
subd. (f).) “Within 21 days, or, if good cause appears to the court,
25 days from the date that a petition for a temporary order is
granted or denied, a hearing shall be held on the petition.” (Id.,
subd. (g).)
At the ensuing hearing, “the judge shall receive any
testimony that is relevant, and may make an independent
inquiry. If the judge finds by clear and convincing evidence that
unlawful harassment exists, an order shall issue prohibiting the
harassment.” (§ 527.6, subd. (i).) Because an injunction “serves
to prevent future injury and is not applicable to wrongs that have
been completed,” the petitioner must also show a high probability
of future harm. (Russell, supra, 112 Cal.App.4th at pp. 402–404;
see also Harris, supra, 248 Cal.App.4th at p. 499 [“An injunction
restraining future conduct is only authorized when it appears
that harassment is likely to recur in the future.”]).
We review a trial court’s denial of a request for a
restraining order for abuse of discretion (Salazar v. Eastin (1995)
9 Cal.4th 836, 849–850), and the trial court’s express and implied
factual findings for substantial evidence (R.D. v. P.M. (2011) 202
12
Cal.App.4th 181, 188). Under the substantial evidence standard
of review, “we accept all evidence supporting the trial court’s
order,” “we completely disregard contrary evidence,” “we draw all
reasonable inferences to affirm the trial court,” and “[w]e do not
reweigh the evidence.” (Schmidt v. Superior Court (2020) 44
Cal.App.5th 570, 581.) A party challenging the trial court’s
findings under this standard of review bears an “ ‘ “enormous
burden.” ’ ” (Id. at p. 582.)
II. The trial court did not err in determining there was
insufficient evidence harassment was likely to recur
A. Scripps, Russell, and Harris
As noted above, “[a]n injunction restraining future conduct
is only authorized when it appears that harassment is likely to
recur in the future.” (Harris, supra, 248 Cal.App.4th at p. 499,
citing Russell, supra, 112 Cal.App.4th at pp. 402–403.) Because
Saks’s appeal focuses primarily on this issue, and in particular
the decisions in Scripps Health v. Marin (1999) 72 Cal.App.4th
324 (Scripps), Russell, and Harris, we briefly discuss those cases.
In Scripps, the defendant, upset over the discharge of his
mother from the hospital, abruptly left a meeting with hospital
staff. (Scripps, supra, 72 Cal.App.4th at p. 328.) As he left the
meeting, the defendant “pulled the door open, striking [a hospital
employee] with the door and pushing her into the wall.” (Ibid.)
Finding that the son was the cause of “unlawful violence” within
the meaning of section 527.8, a parallel statute to section 527.6,
the court imposed a restraining order. (Scripps, at p. 330.)
The Court of Appeal reversed, rejecting the hospital’s
argument that “once the court finds by clear and convincing
evidence a defendant was the precipitating cause of an act of
13
unlawful violence,” the plaintiff is entitled to a restraining order.
(Scripps, supra, 72 Cal.App.4th at pp. 330–331.) Rather,
concluding the statute was not intended to alter the “underlying
nature and purpose of a prohibitory injunction,” the court held
that a plaintiff must “establish great or irreparable harm would
result” without issuance of the restraining order “because of the
reasonable probability the wrongful acts will be repeated in the
future.” (Id. at p. 331.)
The court also ruled that the evidence was insufficient to
show the defendant’s “wrongful acts would be repeated in the
future.” (Scripps, supra, 72 Cal.App.4th at p. 336.) It noted that
there were no prior or subsequent threats of violence by the
defendant; that the temporary restraining order had been
vacated based on the son’s assurance that he would stay away
from the hospital pending the evidentiary hearing; and that the
mother had changed her insurance coverage, making it unlikely
she would return to the hospital. (Ibid.)
In Russell, an attorney followed his opposing counsel into
an elevator after a court appearance and forcefully grabbed his
arm. (Russell, supra, 112 Cal.App.4th at p. 400.) Finding that
the attorney committed battery, the trial court granted an
injunction under section 527.6, even though the attorneys
advised the court at a hearing on the restraining order that “they
do not ‘regularly do business with [each other] or oppos[e] each
other.’ ” (Ibid.)
Reversing the trial court, the Court of Appeal ruled the
trial court “misinterpreted section 527.6 in concluding an
injunction must issue based on a single incident of battery
without finding a threat of future harm.” (Russell, supra, 112
Cal.App.4th at p. 401.) Relying on Scripps, the court reasoned
14
that “an injunction serves to prevent future injury and is not
applicable to wrongs that have been completed. An injunction is
authorized only when it appears that wrongful acts are likely to
recur.” (Id. at p. 402.) The Court of Appeal further explained
that “[w]hen the court concluded that a single act of unlawful
violence required the issuance of an injunction, it construed its
role too narrowly. There may well be cases in which the
circumstances surrounding a single act of violence may support a
conclusion that future harm is highly probable. That finding,
however, must be made and the court failed to do so here.” (Id. at
p. 404.)
Finally, in Harris, the Court of Appeal affirmed the
issuance of a restraining order pursuant to section 527.6 against
a parent who had threatened the principal at his son’s school.
(Harris, supra, 248 Cal.App.4th at pp. 497–503.) Quoting
Scripps, the court stated that the “ ‘determination of whether it is
reasonably probable an unlawful act will be repeated in the
future rests upon 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.’ ” (Id. at
pp. 499–500.)
In concluding sufficient evidence supported the trial court’s
implied finding that there was a likelihood of future harm, the
court noted the parent was a school board member and was
usually the one to pick up his son from school. (Harris, supra,
248 Cal.App.4th at p. 501.) It also cited testimony that, in
addition to threatening the principal, the parent had displayed
“aggressive and disrespectful behavior towards various
witnesses,” including a school police officer and security officer;
15
the parent had attempted to move toward the principal during a
tense exchange, requiring the school police officer to move
between them; and that, after threatening the principal, the
parent defied the principal’s directive not to come onto the school
campus. (Ibid.)
B. The evidence does not compel the conclusion
that harassment is likely to recur7
According to Saks, substantial evidence does not support
the trial court’s findings that a restraining order was
unwarranted “[g]iven the lack of past interaction” between him
and Landi and the “one time” nature of the parking structure
incident. We understand both findings to support the trial
court’s implicit conclusion that Saks failed to show “that
harassment is likely to recur in the future.” (Harris, supra, 248
Cal.App.4th at p. 499.) Indeed, Saks argues the trial court erred
because the “uncontroverted evidence presented to the trial court
demonstrated a high probability of future harm.”
We disagree. As described below, Saks relies on a one-
sided version of the evidence that fails to account for the facts
and inferences contradicting his argument. That approach is at
odds with our role in reviewing the trial court’s findings for
substantial evidence. (See Schmidt v. Superior Court, supra, 44
Cal.App.5th at p. 581 [court applying substantial evidence review
7 Landi filed a motion with this court for leave to present
new evidence regarding events occurring after the restraining
order hearing. Landi contends the new evidence, which he cited
in his brief, supports the conclusion that harassment is not likely
to recur. We denied that motion on August 22, 2022, and thus we
do not rely on the new evidence submitted by Landi.
16
“completely disregard[s]” evidence contrary to the trial court’s
order, “draw[s] all reasonable inferences to affirm the trial court,”
and “do[es] not reweigh the evidence”].)
For example, Saks first focuses on Landi’s testimony that
the parking structure incident was a “culminating event” based
on their interaction in the elevator a few weeks earlier, Landi’s
belief that Saks antagonized contractors in the building, and
complaints about Saks from Landi’s wife. Saks argues this
testimony confirms that there were “numerous past interactions”
between him and Landi, contrary to the trial court’s finding of a
“lack of past interaction.” Saks further argues that Landi’s
testimony proves the parking structure incident was not a “one
time” event.
Saks’s argument ignores that in the six years he and Landi
owned units in the building before the parking structure incident,
these were the only “interactions” Landi cited in describing the
reason he struck Saks, other than that Saks parked in his space.
Two of these three “interactions” did not even involve face-to-face
contact between them. Furthermore, Saks and Landi each
testified that prior to the incident they generally avoided one
another. Given this paucity of interaction, substantial evidence
supported the trial court’s finding that there was a “lack of past
interaction” between Saks and Landi.
Saks’s argument also ignores that there were no violent
incidents between him and Landi either before or after the
parking structure incident.8 Substantial evidence thus supported
8 Saks argues that in addition to the parking structure
incident, Landi tried to run into him with Landi’s bike several
months prior to the hearing. However, Landi denied that
17
the trial court’s finding that the parking structure incident was a
“one time” event.
Next, Saks argues the threat of future harm is
demonstrated by Landi’s failure to apologize for the incident or
testify that an attack would not happen again. Again, Saks
ignores that Landi testified he was sorry for his conduct and that
he agreed he had lost his control, factors the trial court was
entitled to weigh in examining the likelihood of future harm.
(See Scripps, supra, 72 Cal.App.4th at p. 335, fn. 9 [“the
determination of whether it is reasonably probable an unlawful
act will be repeated in the future rests upon the nature of the
unlawful violent act evaluated in the light of the relevant
surrounding circumstances of its commission”].)
Saks also points to the pending lawsuits involving Saks,
Landi, and the homeowners association. He argues those
lawsuits were at the “core” of the parking structure incident, and
that as those lawsuits continue so too will the interactions
between him and Landi. While those lawsuits may require them
to interact in the future, the possibility of future interaction
between them does not compel the conclusion that harassment is
likely to recur. That is especially so given Landi’s testimony that
the pending litigation was not a source of stress. Landi was not
even aware Saks had provided deposition testimony in the
litigation the day before the incident.9
accusation and we “resolve all factual conflicts and questions of
credibility in favor of the prevailing party.” (Harris, supra, 248
Cal.App.4th at p. 499.)
9 Saks highlights his testimony that as he and Landi exited
the parking structure, Landi allegedly shouted that “he was sick
18
Saks raises a similar argument regarding the ongoing
repairs at the condominium complex, contending “[c]ontractors
will continue to be present at the [c]omplex and within the [u]nit
which Landi had testified gave rise to the first attack.” Even if
Landi believed Saks had antagonized contractors in the past,
Saks fails to explain how the continued presence of contractors at
the building compels the conclusion that further incidents of
harassment are likely to recur. In fact, Saks had not even seen
Landi on the five or six occasions he visited the building following
the incident.
Saks challenges several more aspects of the trial court’s
findings. He argues the trial court found that Saks “was trying to
stay away from the building” after the parking structure incident
and contends that this should “not bear in Landi’s favor.” He
similarly argues the trial court should not have credited Landi
for calling the police after the incident.
Regarding the first issue, the trial court’s decision did not
find that Saks was “trying to stay away from the building;” it
found that Saks did “not stay at the building currently,” implying
that Saks did not reside there. That was true before the incident
too. In any event, it was reasonable for the trial court to infer
of the fucking lawsuit.” Although Landi did not deny making this
specific statement, he denied yelling at Saks as they exited the
parking structure. The trial court’s decision did not address this
factual issue, but concluded that there was no “credible evidence
of . . . any abuse that occurred after the incident.” Even
assuming the trial court credited Saks’s testimony regarding
Landi’s statement, we find that substantial evidence supported
the trial court’s conclusion that harassment was not likely to
recur.
19
that Saks’s infrequent visits to the building after the incident
reduced the likelihood that harassment would recur. Concerning
the second issue, it was likewise reasonable for the trial court to
infer from Landi’s prompt call to the police after the incident—
resulting in his own arrest—that Landi was unlikely to engage in
harassment in the future.
Finally, Saks notes that Landi’s private elevator was not in
service at the time of the hearing and faults the trial court for
failing to recognize that when it observed in its decision that
Landi “has his own dedicated elevator in and out of his unit at
the building.” We find no error. It was reasonable for the trial
court to infer that Landi’s private elevator would reduce the
likelihood that he and Saks would interact in the building. And
even if Landi’s private elevator was out of service at the time of
the hearing, Saks fails to explain why we should infer it would
remain out of service indefinitely. (Harris, supra, 248
Cal.App.4th at p. 499 [appellate court “indulge[s] all legitimate
and reasonable inferences to uphold the finding of the trial court
if it is supported by substantial evidence”].)
In sum, we conclude that substantial evidence supported
the trial court’s implicit conclusion that Saks failed to prove that
harassment was likely to recur.
C. The trial court did not misapply section 527.6
or applicable caselaw
Saks raises several unpersuasive arguments in support of
his claim that the trial court misapplied section 527.6 and the
caselaw construing it.
Saks notes that at the start of the hearing the trial court
stated to the parties, “And I guess the question that I have is isn’t
this just one day, so what’s my course of conduct?” The trial
20
court then directed the parties to consider Leydon v. Alexander
(1989) 212 Cal.App.3d 1 (Leydon), where the Court of Appeal,
applying a former version of section 527.6, reversed the issuance
of a restraining order based on a single incident of abusive
conduct.
Prior to the second day of the hearing, Saks filed a brief
with the trial court clarifying that Leydon concerned a former
version of section 527.6 that defined “harassment” as a “knowing
and willful course of conduct” (Leydon, supra, 212 Cal.App.3d at
p. 4; see Stats. 1987, ch. 1493, § 1), and that section 527.6 had
since been amended to broaden the definition of “harassment” to
also include “unlawful violence” and “a credible threat of
violence” (§ 527.6, subd. (b)(3)). Saks’s brief further stated that,
as emphasized in Russell, “a single act of unlawful violence is
sufficient for the issuance of an injunction, and, without more,
may alone [form] the basis to conclude that future harm is
possible.”
On the second day of the hearing, the court stated that it
had received Saks’s brief and that it “would generally agree that
[Saks’s counsel] has accurately stated the state of the law with
respect to the issue, and then it just becomes a factual context.”
Despite that, Saks now argues that “it is clear that the trial court
never moved off of its belief that ‘one time’ incidents cannot result
in the issuance of a [civil harassment restraining order].”
We disagree. As recounted above, the trial court agreed
that Saks’s brief, which explained that a single incident of
unlawful violence could be the basis for a restraining order under
section 527.6 where there was also a likelihood of future harm,
had “accurately stated the state of the law.”
21
Moreover, the trial court’s decision does not cite or rely on
Leydon. Nor does it suggest that Saks was required to prove a
“course of conduct” to establish “harassment” under section 527.6.
Rather, just as Saks urged in his brief to the trial court, and in
accordance with Russell, the trial court’s decision states that “a
single act of ‘unlawful violence’ may be sufficient to support” a
civil harassment restraining order, so long as the trial court finds
a “reasonable probability of future harm absent an injunction.”
(See Russell, supra, 112 Cal.App.4th at p. 404.)
Saks also argues that Scripps and Russell incorrectly
construed section 527.6 by requiring a plaintiff to show
harassment is likely to recur in the future. According to Saks,
section 527.6 reflects the Legislature’s decision “that one who is
the subject of an assault and battery, as defined in the statute, as
a matter of law, was entitled to protection in the future.”
As an initial matter, Saks appears to have forfeited this
argument by failing to raise it to the trial court. (In re Dakota H.
(2005) 132 Cal.App.4th 212, 221 [“A party forfeits the right to
claim error as grounds for reversal on appeal when he or she fails
to raise the objection in the trial court”].) As best we can tell,
Saks asked the trial court to follow Scripps and Russell, not
depart from them. His argument thus also falters pursuant to
the doctrine of invited error, which “is applicable to a situation
where a party invites the court to rule against it on a particular
issue, and then challenges the merits of that ruling on appeal.”
(Diaz v. Professional Community Management, Inc. (2017) 16
Cal.App.5th 1190, 1204.)
In addition to these procedural reasons for rejecting Saks’s
argument, we see no reason to disagree with Scripps and Russell
that a plaintiff seeking a restraining order under section 527.6
22
must demonstrate that harassment is likely to recur in the
future. That conclusion follows sensibly from the principle
explained in Scripps that “injunctive relief lies only to prevent
threatened injury and has no application to wrongs that have
been completed.” (Scripps, supra, 72 Cal.App.4th at p. 332; see
also Russell, supra, 112 Cal.App.4th at p. 402 [rejecting trial
court’s understanding that section 527.6 calls “for the issuance of
an injunction upon the finding of a single act of past violence,” an
interpretation “too narrow in view of the purpose of a prohibitory
injunction”].)
Furthermore, and tellingly, Saks fails to cite any authority
calling Scripps or Russell into question. Instead, he argues that a
restraining order is “qualitatively different” from an injunction
based on the observation in Byers v. Cathcart (1997) 57
Cal.App.4th 805 (Byers), that section 527.6 “is a specialized
statute providing an expedited procedure for issuance of limited-
scope and limited-duration injunctions in instances of
‘harassment.’ ” (Byers, at p. 807.) But that observation hardly
suggests that Scripps and Russell incorrectly determined that
because a restraining order under section 527.6 was injunctive
relief, a plaintiff must show that harassment is likely to recur.
Saks also draws our attention to the statement in Byers
that the “statute is limited to protecting only those who have
suffered” harassment as defined in the statute. (Byers, supra, 57
Cal.App.4th at p. 811.) According to Saks, this statement
suggests “this limited purpose injunction may also be issued for
past acts.” We are not convinced. Because Byers did not consider
the issue addressed in Scripps or Russell, namely, whether a
single act of “unlawful violence” may justify a restraining order
without evidence that such harm was likely to recur, the passage
23
from Byers that Saks relies on cannot bear the weight he places
on it.10 (See People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10
[“It is axiomatic that cases are not authority for propositions not
considered.”].)
Saks further argues the trial court erred because this case
is more like Harris, which affirmed the issuance of a restraining
order, than Scripps or Russell, which reversed the issuance of
restraining orders. He argues that the victims of harassment in
Scripps and Russell did not suffer serious injury like he did; that
the incidents at issue in those cases were “spontaneous,” unlike
here, where the parking structure incident was the culmination
of conflict between him and Landi;11 that unlike the defendants
in those cases, here Landi gave “demonstrably false” evidence
about the nature of the incident; and that unlike in those cases,
10 Byers addressed whether a trial court properly issued an
injunction under section 527.6 that prevented the plaintiff, who
had an easement to use the defendant’s driveway, from parking
her car along the driveway. (Byers, supra, 57 Cal.App.4th at
pp. 807–810.) The court concluded that the trial court erred
because there was no evidence that plaintiff had engaged in
“harassment” within the meaning of section 527.6 by parking her
car along the defendant’s driveway. (Byers, at p. 812.)
11 In his effort to distinguish this case from Scripps and
Russell, Saks suggests that Landi “waged a campaign of
destruction upon his property.” While we acknowledge Saks
provided brief testimony that Landi had prevented certain
repairs from being performed on Saks’s property, we think such
testimony fell short of demonstrating “a campaign of
destruction.” Saks also highlights his belief that Landi’s conduct
towards him was attributable to Landi’s “perceived homophobia.”
We find no support in the record for Saks’s belief.
24
he and Landi owned units in the same building and continue to
be litigation adversaries. Saks further argues that this case is
like Harris, because there was a history of tension between Saks
and Landi and “there is no doubt that future interactions”
between them will occur.
We are not persuaded that differences between this case
and Russell and Scripps, or similarities between this case and
Harris, compel the conclusion that the trial court abused its
discretion in declining to issue a restraining order. The trial
court observed the testimony of Saks and Landi, evaluated their
credibility, and carefully weighed the evidence in concluding that
Saks failed to establish harassment was likely to recur. (See
Russell, supra, 112 Cal.App.4th at p. 404; Scripps, supra, 72
Cal.App.4th at p. 336.) It is not our role to reweigh that evidence
or reevaluate witness credibility. (Schmidt v. Superior Court,
supra, 44 Cal.App.5th at pp. 581–582 [under substantial evidence
review appellate court does “not reweigh the evidence” and
credibility determinations “are subject to extremely deferential
review”]; Harris, supra, 248 Cal.App.4th at p. 499 [“We resolve
all factual conflicts and questions of credibility in favor of the
prevailing party”].) And as we have described already,
substantial evidence supported the trial court’s conclusion that
Saks failed to establish that harassment was likely to recur.
D. The trial court did not err by relying on
excluded evidence
Saks contends the trial court committed reversible error by
relying on evidence that was excluded from the record.
We briefly recount the background relevant to Saks’s
argument. In Landi’s response to Saks’s restraining order
request, Landi claimed that Saks had “a history of abusing the
25
legal system” and stated that Saks had “been the plaintiff or
defendant in at least 17 different litigation matters in the last 20
years.” Landi’s response also included five declarations from
other residents in the condominium complex accusing Saks of
being litigious.
At the start of the hearing, the trial court stated it would
“admit the admissible portion of [Landi’s] response into
evidence,” but that it “would not necessarily take in the third-
party declaration[s].”
Later at the hearing, during a discussion regarding the
admissibility of Saks’s video evidence, Saks’s counsel emphasized
that there was a “long course of events” that led Landi to strike
Saks, including “multiple lawsuits pending, in which these are
parties.” Shortly after, the trial court noted to Saks’s counsel
that “your guy is litigious, apparently, and I have got
declarations.” Saks’s counsel promptly objected. As noted
already, because none of the witnesses who had provided the
declarations testified at the hearing, none of the declarations
were admitted in evidence.
On the second day of the hearing, during a discussion
regarding the relevance of a cross-examination question
concerning whether Saks had considered filing a civil lawsuit
against Landi based on the incident, the trial court made the
following statement: “I need to be careful about something. I did
say before, in a question, something to the effect of I thought you
had suggested in your paperwork that [Saks] was litigious and
then there was the response back, I think I have the issues
squarely at hand, and I wouldn’t be relying on or considering
those issues. I don’t think they are necessary under the
circumstances.”
26
Saks contends the trial court’s statement to his counsel
that “your guy is litigious” constitutes reversible error. According
to Saks, it demonstrates the trial court relied on the claim in
Landi’s response that Saks had “been the plaintiff or defendant
in at least 17 different litigation matters in the last 20 years,”
even though no such evidence had been admitted at the hearing.
Saks likewise contends that the trial court’s statement shows
that it considered the declarations attached to Landi’s response,
even though the court excluded them from evidence.
We are not persuaded.12 We presume the court “ ‘is able to
distinguish admissible from inadmissible evidence, relevant from
irrelevant facts, and to recognize those facts which properly may
12 We are also unpersuaded by Saks’s argument that the trial
court erred by making the following comments during the
hearing: “Well, look, let’s get back to the questioning. Mr. Fisher,
I think what I would caution, though, is I am still concerned
when you live in a condo and you are a real estate broker and you
park in someone else’s spot when you are in the middle of a
lawsuit with them. Look, I am not condoning what happened,
but I am saying it is one of the factors, and when your guy says
‘just chill out’ in the middle of litigation, and he is parked in the
guy’s spot when he has his own spot, why would he park in the
guys’ spot?”
According to Saks, the trial court’s “shocking focus on the
evidence was just plain wrong and for the trial court to employ
the phrase ‘just chill out’ as a factor against [Saks] is neither
substantial evidence supporting its decision nor a basis upon
which the trial court should have denied the injunction.” We find
no reversible error. As we have explained already, the trial
court’s ruling is supported by substantial evidence and is based
on a correct application of section 527.6.
27
be considered in the judicial decisionmaking process.’ [Citation.]
Stated another way, a trial court is presumed to ignore material
it knows is incompetent, irrelevant, or inadmissible. [Citations.]
So, if the court states it will ignore evidence, it will be presumed
that it did so. [Citations.]” (In re Marriage of Davenport (2011)
194 Cal.App.4th 1507, 1526.)
Here, the trial court stated on the record that it would not
rely on or consider Landi’s unsupported claim that Saks was
litigious, and no part of the trial court’s decision suggests
otherwise. We therefore presume the trial court considered only
admissible evidence in issuing its decision. (See In re Marriage of
Davenport, supra, 194 Cal.App.4th at p. 1526.)
28
DISPOSITION
The court’s order denying Saks’s motion for a restraining
order pursuant to section 527.6 is affirmed. Saks’s request for
judicial notice is denied. Landi is entitled to his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
RICHARDSON (ANNE K.), J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
29