Haywood v. Sowemimo CA2/2 ( 2023 )


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  • Filed 5/25/23 Haywood v. Sowemimo CA2/2
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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    has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
    JIMMY HAYWOOD,                                                 B321249
    Plaintiff and Respondent,                            (Los Angeles County Super.
    Ct. No. 21STRO07254)
    v.
    AARON SOWEMIMO,
    Defendant and Appellant.
    APPEAL from an order of the Superior Court of Los
    Angeles County, Doreen B. Boxer, Temporary Judge. Affirmed.
    Aaron Sowemimo, in pro. per., for Defendant and
    Appellant.
    No appearance for Plaintiff and Respondent.
    ******
    The trial court issued a one-year civil harassment
    restraining order prohibiting Aaron Sowemimo (Sowemimo) from
    contacting or engaging in harassing conduct toward Jimmy
    Haywood (Haywood). Sowemimo attacks the restraining order on
    numerous grounds. Even if we ignore that the order has expired
    (which ostensibly renders this appeal moot), Sowemimo’s
    arguments lack merit. We accordingly affirm.
    FACTS AND PROCEDURAL BACKGROUND
    I.     Facts
    A.    Relationship between Haywood and Sowemimo
    Haywood and Sowemimo started out as coworkers. They
    developed some sort of personal relationship significant enough
    that Sowemimo bought a car for Haywood to use. In late winter
    and early spring 2021, they had a “falling out.”
    B.    Sowemimo’s campaign of harassment prior to
    August 2021
    In the spring and summer of 2021, Haywood started
    receiving emails and text messages. On March 30, 2021, which
    was Sowemimo’s birthday, Haywood received a text message
    from an unknown phone number, in which the sender expressed
    his “love” for Haywood and his “disappoint[ment]” that things
    ended “on [his] birthday,” and promised that he did not “judge I’m
    not God.”1 Five weeks later, on May 5, 2021, Haywood received a
    text message from a second unknown number, urging him to
    “always remember that” “you reap what you sow” and calling
    1     All errors in grammar, spelling, punctuation, and
    capitalization in the messages quoted herein appear in the
    exhibits of those messages.
    2
    Haywood’s girlfriend “that bitch.” Two weeks later, Sowemimo
    showed up to Haywood’s residence unannounced to repossess the
    car he had loaned Haywood. On June 13, 2021, Haywood
    received a text message from a third unknown number warning
    that “KARMA comes After everyone eventually” and urging him
    to “Stay prayed up – karma is waiting for you soon.” The next
    day, Haywood awoke to find a long scratch down the side of his
    girlfriend’s car.
    C.     Haywood’s first request for a civil harassment
    restraining order is denied
    The day after his girlfriend’s car was vandalized, Haywood
    filed a request for a civil harassment restraining order against
    Sowemimo. The matter came on for hearing on August 31, 2021,
    but the trial court found that Haywood had “not sustain[ed]” his
    “burden of proof” and denied the request. The court nevertheless
    suggested that Sowemimo not contact Haywood.
    D.     Sowemimo resumes his campaign of harassment
    Hours after the trial court denied Haywood’s petition,
    Haywood received a text message from a fourth unknown number
    saying, “I want to talk – to you. ?” Suspecting it was Sowemimo,
    Haywood responded, “You heard what the judge said if you
    continue to harass me I’ll re-file.” The sender then threatened to
    “call[] section 8 housing on you low income. For fraud,” and
    repeatedly demanded to know if Haywood was “fucking her.” On
    that day, Haywood had spent time in a complex of “section 8” low-
    income housing. In October 2021, Haywood received a flurry of
    calls from a fifth unknown phone number, including a voicemail
    stating, “I’m coming for your life.” On Christmas Day of 2021,
    Haywood received a series of emails from an email address
    named after the serial killer in the Halloween movies, in which
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    the sender stated that Haywood “can run but . . . cannot hide,”
    stated that he “will get my Hacker on that bitch yo girlfriend,”
    gave a “last Warning im tell you now if you dont make this right
    somebody is going to get hurt,” and threatened, “Today I’m going
    to teach you who to fear and how to fear, because you will fear me
    forever you and that BITCH. MONEY,POWER,RESPECT you
    going to put some respect on my name it’s in the bible Mr.
    Haywwod remember that.” The next day, Haywood received an
    email from “Aaron Sowemimo” at a different email address that
    advised Haywood that “the biggest mistake you made [was]
    taking me to Court,” told him that he “need to keep that girl on a
    Leash,” promised “You’re going to feel my Pain what you did to
    me,” and threatened “hell know you going to pay when I destroy
    your life i promise you that put some recpect on my name its in
    the bible dude.”
    II.    Procedural Background
    The day after Haywood received the second Christmastime
    email, Haywood filed a second request for a civil harassment
    restraining order. While represented by counsel, Sowemimo filed
    an opposition, and in it sought $4,500 in attorney fees.
    The matter proceeded to a hearing on March 14, 2022. In
    light of the denial of the prior request for a civil harassment
    restraining order on August 31, 2021, the trial court focused the
    parties on what had happened after that denial.
    Both Haywood and Sowemimo testified.
    Haywood frankly acknowledged that most of the emails,
    calls, and text messages came from unknown email addresses
    and phone numbers, but explained that Sowemimo was the
    sender (1) because the sender of the August 31 text message did
    not express surprise when Haywood mentioned the court hearing
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    earlier that day and also referred to the nearby section 8 housing
    that Sowemimo knew about, and (2) because the content of the
    messages—including the one with Sowemimo’s name—was
    similar in tone, grammar, and punctuation. The trial court
    admitted these messages over Sowemimo’s objection, reasoning
    that the “unique information” in the messages that only
    Sowemimo knew supported its finding that Sowemimo had sent
    them.
    Sowemimo denied that he sent any of the emails or text
    messages.
    The trial court found that Sowemimo’s “testimony” was
    “not very convincing,” and concluded that Haywood “has proven
    by clear and convincing evidence that [Sowemimo] has engaged
    in civil harassment.” The court accordingly issued a one-year
    civil harassment restraining order requiring Sowemimo to stay
    more than 100 yards away from Haywood and his girlfriend, not
    to contact them, not to try to locate them, and not to “[h]arass,
    intimidate, molest, attack, strike, stalk, threaten, assault . . ., hit,
    abuse, destroy personal property of, or disturb [their] peace.”
    Sowemimo filed this timely appeal.
    DISCUSSION
    On appeal, Sowemimo enumerates 29 reasons why, in his
    view, the trial court erred in issuing the civil harassment
    restraining order against him. These arguments can be grouped
    into four categories: (1) there is insufficient evidence to support
    the court’s finding that Sowemimo was the person harassing
    Haywood, (2) the court erred in admitting evidence that was
    recorded without Sowemimo’s consent, in violation of Penal Code
    section 632, (3) res judicata barred the court from issuing this
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    restraining order after denying Haywood’s first request, and (4)
    the court did not otherwise “ensure a fair hearing.”2
    As a threshold matter, we note that this appeal appears to
    be moot. An appeal becomes moot when a reviewing court can no
    longer provide the appealing party with any effective relief. (City
    of Monterey v. Carrnshimba (2013) 
    215 Cal.App.4th 1068
    , 1079.)
    The restraining order on appeal before us now expired on March
    14, 2023, so any relief we might grant overturning that order will
    have no effect because the order is already defunct. Despite its
    mootness, we will nevertheless exercise our discretion to address
    the merits of Sowemimo’s appeal.
    I.     Sufficiency of the Evidence
    A trial court may issue a civil harassment restraining order
    upon finding, by clear and convincing evidence, that
    “harassment” exists—that is, upon a finding 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).) We review a trial court’s decision to grant such an order
    for substantial evidence. (Parisi v. Mazzaferro (2016) 
    5 Cal.App.5th 1219
    , 1226, overruled on other grounds in
    Conservatorship of O.B. (2020) 
    9 Cal.5th 989
    , 1010, fn. 7.)
    Substantial evidence review is limited: We may not reweigh the
    evidence; instead, we may ask only whether the evidence in the
    record, when viewed as a whole and when resolving all
    2     Sowemimo also makes several references to various real
    estate agent-related entities, but these references have no
    connection to the trial court record; we disregard them as
    irrelevant.
    6
    evidentiary and credibility conflicts in support of the court’s
    order, supports that order. (In re Alexandria P. (2016) 
    1 Cal.App.5th 331
    , 354; Donovan v. Poway Unified School Dist.
    (2008) 
    167 Cal.App.4th 567
    , 612.)
    Substantial evidence supports the trial court’s finding that
    Sowemimo made credible threats of violence toward Haywood
    and his girlfriend. In a steady barrage of emails and text
    messages, Sowemimo gave Haywood a “Warning” that “somebody
    is going to get hurt” if Haywood did not “make this right”;
    Sowemimo told Haywood he would “teach” Haywood “who to fear
    and how to fear”; and Sowemimo promised that Haywood would
    “feel [his] Pain” and was “going to pay when [Sowemimo]
    destroy[s] [Haywood’s] life.” This constitutes harassment.
    Sowemimo’s primary response is that he was not the sender
    of those emails and text messages. But substantial evidence
    supports the trial court’s contrary conclusion. The August 31,
    2021, text message refers to events (the restraining order hearing
    earlier that day) and locations (Haywood’s presence in the section
    8 housing) particularly within Sowemimo’s knowledge. The
    December 26, 2021, emails explicitly came from Sowemimo. Most
    tellingly, all of the messages detailed above have strikingly
    similar content and style—they make veiled and not-so-veiled
    threats of violence, they allude to the Bible, they attack
    Haywood’s girlfriend, and they contain similar grammatical and
    punctuation errors. The similar content and style makes it
    entirely reasonable for the trial court to circumstantially infer
    that they came from the same person—namely, Sowemimo.
    (Accord, People v. Cruz (2020) 
    46 Cal.App.5th 715
    , 729 [“a writing
    may be authenticated by its contents and circumstantial evidence
    . . .”].) Sowemimo points to the fact that he denied sending the
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    messages. However, the trial court explicitly found that
    Sowemimo’s testimony was “not very convincing,” and we are not
    in a position to second-guess the trial court’s credibility
    determination. Sowemimo alternatively asks us to “reconsider[]”
    the trial court’s ruling. Again, our task is to review the
    sufficiency of the evidence supporting the trial court’s ruling, not
    to consider the issue as if we were sitting as the trier of fact in
    the first instance.
    During oral argument, Sowemimo articulated two further
    reasons why, in his view, the trial court’s ruling was not
    supported by substantial evidence—namely, (1) Haywood did not
    introduce business records confirming that the telephone
    numbers or email addresses used to contact him were registered
    to Sowemimo, and (2) the police had the opportunity to seek a
    protective order on Haywood’s behalf, but elected not to do so.
    These arguments do not undermine the trial court’s ruling. As to
    Sowemimo’s first argument, our task is not to decide whether
    additional (and potentially more persuasive) evidence that was
    not presented would have supported the court’s ruling; it is to
    decide whether the evidence that was presented constitutes
    substantial evidence, and we have concluded that it did. As to
    Sowemimo’s second argument, the action or inaction of the police
    does not undercut the sufficiency of the evidence presented to the
    trial court.
    II.    Consideration of Inadmissible Evidence
    Penal Code section 632 declares any recorded “confidential
    communication” to be inadmissible “in any judicial . . .
    proceeding” unless all parties to that communication consented to
    its recording. (Pen. Code, § 632, subds. (a) & (d).)
    Notwithstanding this bar, a person may record—and thereafter
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    admit into evidence—communications “reasonably believed to
    relate to the commission . . . of . . . any felony involving violence
    against the person . . . .” (Id., § 633.5.) We review a trial court’s
    admission of evidence for an abuse of discretion. (People v. Flores
    (2020) 
    9 Cal.5th 371
    , 409.)
    The trial court did not abuse its discretion in admitting any
    of the evidence it relied upon. The exhibits the court specifically
    admitted and relied upon in finding that Haywood had been
    “harassed” consisted of text messages, emails, and a single
    voicemail message. The text messages and emails do not run
    afoul of Penal Code section 632 because they are not “recorded”
    confidential communications. And the voicemail, while a
    recorded communication, was not recorded without Sowemimo’s
    consent: The whole point of leaving a voicemail is to leave a
    recording of a voice message for the recipient to listen to later; it
    is impossible not to consent to the voluntary recording of a
    voicemail. Further, Sowemimo’s voicemail was “reasonably
    believed to relate to the commission” of felonies involving violence
    against Haywood.
    III. Res judicata
    The doctrine of res judicata bars a party from relitigating
    an issue that was already finally decided by a court. (Kim v.
    Reins Internat. Cal., Inc. (2020) 
    9 Cal.5th 73
    , 91.) But that
    doctrine “does not bar a later claim if new facts or changed
    circumstances have occurred since the prior decision.” (Union
    Pacific Railroad Co. v. Santa Fe Pacific Pipelines, Inc. (2014) 
    231 Cal.App.4th 134
    , 179.) Here, the trial court was careful to ensure
    that the factual basis for its order rested on events occurring after
    the prior denial of a civil harassment restraining order on August
    31, 2021; the court considered the content of a few pre-August 31,
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    2021, messages only as further proof that Sowemimo was the
    author of the post-August 31, 2021, messages that constituted the
    actionable harassment. Thus, the order is not barred by res
    judicata.
    IV. Lack of a Fair Hearing
    Sowemimo summarily asserts that he was denied a “fair
    hearing” before the trial court. He provides no explanation of
    why, and cites no case law in support of this assertion. As such,
    he has waived this argument. (Cahill v. San Diego Gas &
    Electric Co. (2011) 
    194 Cal.App.4th 939
    , 956 [absent argument
    and citation to legal authority, appellate courts “‘“treat the point
    as waived”’”].) And even if we ignore that waiver, the record
    indicates that Sowemimo’s hearing was fair. He appeared with
    counsel, cross-examined Haywood, objected to some of Haywood’s
    evidence, elicited his own testimony and evidence, and presented
    argument to the court. The fact that the court ultimately ruled
    against him does not mean the hearing was not fair; if that were
    enough, every hearing would be unfair to the losing party and
    every appeal would result in a reversal and a retrial. That is
    obviously not how it works.
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    DISPOSITION
    The order is affirmed.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
    ______________________, J.
    HOFFSTADT
    We concur:
    _________________________, Acting P. J.
    CHAVEZ
    _________________________, J. *
    KWAN
    *     Judge of the Superior Court of Los Angeles County,
    assigned by the Chief Justice pursuant to article VI, section 6 of
    the California Constitution.
    11
    

Document Info

Docket Number: B321249

Filed Date: 5/25/2023

Precedential Status: Non-Precedential

Modified Date: 5/25/2023