Levidow v. Ahmad CA2/3 ( 2023 )

Filed 7/26/23 Levidow v. Ahmad 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
KEITH LEVIDOW, B318821
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. 21STRO05931)
v.
ALIYAH AHMAD,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Shelley Kaufman, Judge. Affirmed.
Aliyah Ahmad, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Defendant and appellant Aliyah Ahmad challenges a civil
harassment restraining order issued against her in favor of
plaintiff and respondent Keith Levidow following an evidentiary
hearing. Ahmad contends clear and convincing evidence did not
support the trial court’s finding that she harassed Levidow.
Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize the facts as they were presented at the
restraining order hearing. The parties are tenants in an
apartment building in Hollywood. Levidow lived in the building
for a decade before Ahmad moved in, and he describes himself as
“the neighborhood watch guy” for the building and its residents.
Soon after Ahmad moved to the building, Levidow reported her to
the landlord, accusing her of stealing packages delivered to other
apartments. From there, relations between the parties
deteriorated to the point that each petitioned for a civil
harassment restraining order against the other. Ahmad’s
petition was granted; Levidow’s was not. After that order
expired, Ahmad was granted a second civil harassment
restraining order against Levidow on April 21, 2021, continuing
until April 21, 2024.
The present dispute began in October 2021, when Levidow
again petitioned for a restraining order against Ahmad. His
petition is not in the record, but based on his statements to the
court at the hearing, it appears Levidow accused Ahmad of
stalking him with a video camera, knocking on his door or wall
when she passed his apartment, and threatening to kill his dog
during an encounter at the parking garage. Ahmad filed a
written opposition to Levidow’s petition, and obtained a two-week
extension of the hearing in order to “review a transcript.”
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At the hearing, Levidow testified to incidents when, he
contended, Ahmad waited for him in order to record him on video.
He also played video recordings from a door camera. The first of
these, according to Levidow, showed Ahmad “literally in front of
my door, knocking on my door.” Another video, also from
Levidow’s door camera, purported to show Ahmad passing his
door immediately after Levidow heard a thumping noise caused
by Ahmad kicking his wall as she passed. Finally, Levidow
played a video recording that he described as showing Ahmad
approach in her car while Levidow and his leashed dog were in
the garage; Ahmad purportedly threatened, “ ‘I will run that dog
over,’ ” while screaming at Levidow.1
Levidow also offered in evidence an e-mail from the
building manager, stating, “ ‘I recall distinctly asking you each to
take separate, specific hallways to your respective apartments. I
also asked you to please not get in the elevator if the other is in
it. And then if you see each other on or off property, please just
turn and walk the other way.’ ” In the same e-mail, the manager
also recalled “ ‘seeing video of [Ahmad] waiting by the back gate
and filming [Levidow] when [he] arrived.’ ” Levidow concluded
his testimony by informing the court that he suffered from
serious health conditions, and that Ahmad’s conduct caused him
substantial emotional distress.
1 Levidow appears to have played the videos directly from
his cell phone in open court. Copies of the videos are not included
in the record on appeal, and the audio portions were not
transcribed. Ahmad also played a video in open court, but
neither a copy of the video nor a transcript of the audio is
included in the record on appeal.
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Ahmad testified on her own behalf. First, she testified that
Levidow’s petition “is nothing more than retaliation for my
having successfully obtained two restraining orders” against
Levidow, and “everything that [Levidow] told you today is false
and misleading.” She also argued that the court should disregard
the incident where she was accused of threatening Levidow’s dog
because that “complaint was previously rejected by the court
when [Levidow] presented it in 2019, and I should not have to re-
litigate that incident.” In response to the court’s questions,
Ahmad denied ever kicking or knocking on Levidow’s door. She
did admit, however, to passing by Levidow’s door even though
there were other routes she could take to get to her apartment,
and even though she had a restraining order against Levidow,
“because the restraining order is on him, not on me.”
After the parties rested, the court stated its intention to
issue a restraining order against Ahmad. The court first noted
that “[b]eing yelled at in close proximity in the garage where the
respondent is driving, saying, ‘I will run over that dog,’ that
would cause a dog owner emotional distress. That, coupled with
patterns of harassment, as he described, as hiding in the bushes.”
The court further explained that “[w]hat stands out in particular
as a course of conduct is the testimony of the petitioner,
acknowledged by the respondent, of going past his door after she
obtained a restraining order. While she’s not restrained from
going by his door, there’s no legitimate purpose to doing so,
knocking on his door. [¶] Court finds the petitioner credible,
that he saw her kick the door, knock on the door, and goes by her
[sic] door when she has other ways to go in this building, knowing
that there’s a restraining order, knowing that there’s a history
between these parties.” Finally, the court noted that it inferred
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Ahmad passed Levidow’s door for the purpose of annoying him:
“quite frankly, ma’am, the fact that you go by his door – I know
you say you didn’t kick it or knock on it. . . . if you were not
trying to incite something or stalk or bother him, you wouldn’t go
by his door under the circumstances of this case.”
The court issued a restraining order directing Ahmad to
stay at least 100 yards away from Levidow, except that she was
ordered to stay 30 yards away while at the apartment building
where they both live. The restraining order is dated December
30, 2021, and expires on April 21, 2024, the expiration date of
Ahmad’s previously issued restraining order against Levidow.
Ahmad filed a timely notice of appeal on February 22, 2022.
DISCUSSION
I. Applicable Legal Principles
Code of Civil Procedure section 527.6 provides that a court
may, upon a showing of clear and convincing evidence, issue a
restraining order to prevent “harassment.” Subdivision (b)(3) of
the statute 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. 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.”
“The appropriate test on appeal is whether the findings
(express and implied) that support the trial court’s entry of the
restraining order are justified by substantial evidence in the
record.” (R.D. v. P.M. (2011) 202 Cal.App4th 181, 188.) “When
reviewing a finding that a fact has been proved by clear and
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convincing evidence, the question before the appellate court is
whether the record as a whole contains substantial evidence from
which a reasonable fact finder could have found it highly
probable that the fact was true.” (Conservatorship of O.B. (2020)
9 Cal.5th 989, 1011.) We “view the record in the light most
favorable to the prevailing party below and give appropriate
deference to how the trier of fact may have evaluated the
credibility of witnesses, resolved conflicts in the evidence, and
drawn reasonable inferences from the evidence.” (Id. at
pp. 1011–1012.)
Several rules of appellate review and procedure also guide
our analysis. “ ‘A judgment or order of the lower court
is presumed correct. All intendments and presumptions are
indulged to support it on matters as to which the record is
silent. . . .’ [Citation.]” (Rossiter v. Benoit (1979) 88 Cal.App.3d
706, 712.) “[T]he appellant has the burden of affirmatively
demonstrating error by providing an adequate record.
[Citations.] . . . [I]f the record is inadequate for meaningful
review, the appellant defaults and the decision of the trial court
should be affirmed.” (Mountain Lion Coalition v. Fish & Game
Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9.) The obligation to
furnish an adequate record for our review applies equally to self-
represented appellants. (Nwosu v. Uba (2004) 122 Cal.App.4th
1229, 1246–1247.)
“In reviewing the trial court’s ruling, we must consider the
facts before the court at the time of its ruling, and not by
reference to evidence produced at a later date.” (Sacramento
Area Flood Control Agency v. Dhaliwal (2015) 236 Cal.App.4th
1315, 1328, fn. 5.) Further, “ ‘an appeal reviews the correctness
of a judgment as of the time of its rendition, upon a record of
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matters which were before the trial court for its consideration.’
[Citation.]”2 (California Farm Bureau Federation v. State Water
Resources Control Bd. (2011) 51 Cal.4th 421, 442.)
We note Ahmad asks this court to review the restraining
order without providing the petition on which the order is based,
Ahmad’s written response to that petition, or any of the exhibits
that were presented to the trial court in support of, and in
opposition to, the petition. Our review is limited to the record
provided, and, as explained above, “ ‘[f]ailure to provide an
adequate record on an issue requires that the issue be resolved
against [the appellant].’ [Citation.]” (Jameson v. Desta (2018) 5
Cal.5th 594, 609.) “To the extent the court relied on documents
not before us, our review is hampered. We cannot presume error
from an incomplete record. [Citation.]” (Christie v. Kimball
(2012) 202 Cal.App.4th 1407, 1412.)
II. Substantial Evidence Supports the Trial Court’s
Findings
We must determine whether the record as a whole contains
substantial evidence from which a reasonable fact finder could
have found it highly probable that Ahmad participated in a
course of conduct that amounted to “harassment” within the
2 For these reasons, we deny Ahmad’s motion to augment.
Ahmad seeks to augment the record with the two restraining
orders she obtained against Levidow, a transcript of an earlier
restraining order hearing on January 15, 2019, and her petition
in support of her second restraining order against Levidow. As
discussed below, the materials in question were not presented to
the trial court at the hearing on Levidow’s motion. “[T]he record
cannot be ‘augmented’ with material that was not before the trial
court. [Citations.]” (In re Marriage of Forrest & Eaddy (2006)
144 Cal.App.4th 1202, 1209.)
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meaning of the statute, and that the harassment caused Levidow
to suffer substantial emotional distress.
Applying the substantial evidence standard explained
above, and invoking the presumption in favor of the judgment on
matters where the record is silent, we find substantial evidence
supports the trial court’s finding of a course of conduct amounting
to harassment. We must presume the video recordings presented
at the hearing supported Levidow’s contentions that Ahmad
knocked at his door, and that she threatened to run over his dog.
Ahmad admitted that she passed Levidow’s door, and that even
after obtaining a restraining order she continued to do so,
although she did not have to pass Levidow’s apartment to reach
her own. There was evidence, in the form of an e-mail from the
building manager, confirming that he had seen a video recording
of Ahmad waiting for Levidow and filming him once he arrived at
the apartment building. Although Ahmad denied knocking at
Levidow’s door, the court found credible Levidow’s testimony that
Ahmad kicked or knocked on his door as she passed. The
inference that the court drew, that Ahmad was hoping either to
annoy Levidow or to goad him into violating the restraining order
against him, was a reasonable one. In addition, the trial court
found credible Levidow’s testimony that the foregoing course of
conduct by Ahmad caused him to suffer substantial emotional
distress. These findings were sufficient to grant Levidow’s
petition for a restraining order under Code of Civil Procedure
section 527.6.
Ahmad contends the trial court erred by granting the
restraining order without the benefit of her written response to
Levidow’s petition. When the hearing began, the court had not
yet seen Ahmad’s written opposition to Levidow’s petition and
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she did not bring a copy with her to show the court. However, the
trial court suggested that Ahmad argue the points set out in her
written response, and she did so without objecting. On appeal
Ahmad does not identify any issue raised in the petition that she
was prevented from addressing at the hearing. Moreover, the
record includes neither Levidow’s petition nor Ahmad’s written
opposition. Ahmad has not demonstrated the trial court erred in
proceeding without her written response, or that she was
prejudiced in any way. (Bed, Bath & Beyond of La Jolla, Inc. v.
La Jolla Village Square Venture Partners (1997) 52 Cal.App.4th
867, 884 [procedural defects not affecting the parties’ substantial
rights are not reversible error].)
Ahmad next argues that the trial court should have
discounted Levidow’s testimony because he was threatened with
sanctions at a previous hearing, and because he should be
considered a “vexatious litigant.” The trial court rejected both
arguments. “[I]n a bench trial, the trial court is the ‘sole judge’ ”
of the credibility of witnesses (Schmidt v. Superior Court (2020)
44 Cal.App.5th 570, 582), and we do not second-guess the court’s
determination that Levidow was a credible witness.
Ahmad’s final argument is that the court should not have
given any weight to the incident involving her alleged threat to
run over Levidow’s dog, on the ground that the incident was
previously litigated and determined in her favor years earlier at
the hearing where Levidow unsuccessfully sought a restraining
order against Ahmad. We must reject this contention. “[I]ssue
preclusion applies (1) after final adjudication (2) of an identical
issue (3) actually litigated and necessarily decided in the first
suit and (4) asserted against one who was a party in the first suit
or one in privity with that party. [Citations.]” (DKN Holdings
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LLC v. Faerber (2015) 61 Cal.4th 813, 825.) Nothing in the
record establishes that at a prior restraining order hearing, the
parties actually litigated whether Ahmad threatened Levidow or
his dog.3 In the absence of evidence showing that, at a prior
hearing, the court determined that Ahmad did not threaten
Levidow’s dog, we can only conclude that “the ‘issue’ decided in
the prior proceeding was whether appellant established a basis
for issuance of a restraining order, not whether all the incidents
to which she testified were true.” (In re Marriage of Martindale
& Ochoa (2018) 30 Cal.App.5th 54, 60.) In any event, in this case
the trial court did not rely solely on the alleged threat to Levidow
or his dog. The court described a course of conduct that included
Ahmad repeatedly kicking or knocking on Levidow’s door while
making unnecessary trips past his apartment. For all of these
reasons, we reject Ahmad’s contention that a prior determination
of fact barred the trial court from granting Levidow’s petition for
a restraining order.
3 It is undisputed that the trial court was not shown a
transcript of the prior hearing on which Ahmad relies. Ahmad
argues the trial court “was not interested” in reviewing the
transcript, but the record shows otherwise. The trial court
specifically told Ahmad: “If you have something in the transcript
that you want to show the court so I can take judicial [notice] of a
court certified transcript, I can do that.” Ahmad responded that
she would present the transcript “towards the end,” but she
concluded her presentation of evidence without doing so.
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DISPOSITION
The order is affirmed. As respondent did not participate in
this appeal, no costs are awarded.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, J.
We concur:
EDMON, P. J.
EGERTON, J.
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