Flores v. Linares CA2/3

Filed 1/5/21 Flores v. Linares 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
ALMA MARIA FLORES, B298528
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. 19STRO02002
v.
GUADALUPE LINARES,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Alexander C.D. Giza, Judge. Affirmed.
Donald A. Hilland for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
_________________________
Alma Maria Flores appeals from the trial court’s order
denying her request for a civil harassment restraining order
against her landlord, Guadalupe Linares.1 We affirm.
BACKGROUND2
On March 27, 2019, Flores filed a form request for a civil
harassment restraining order against Linares under Code of Civil
Procedure section 527.6 (section 527.6).3 She asserted Linares
has harassed her, her husband, and her three children daily since
March 1, 2019. Flores’s application included her declaration,
dated March 12, 2019.
At the time, Flores and her family lived in a duplex they
had been renting from Linares for the past three years.4 They
usually paid their rent in cash. Flores declared that their roof
had been leaking severely for months, but Linares and her son
refused to repair it and would not let the family repair it
themselves. Flores filed a formal code enforcement complaint
with the City of Los Angeles in late February 2019.
1 Linares did not file a respondent’s brief, so we “decide the
appeal on the record, the opening brief, and any oral argument
by the appellant.” (Cal. Rules of Court, rule 8.220(a)(2).)
2 “We summarize the facts in the light most favorable to the
judgment.” (Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1405
(Brekke).)
3 On March 12, 2019, Flores apparently asked the court
to enter a temporary restraining order until the scheduled
April 17, 2019 hearing. That request was denied because the
facts in Flores’s application did not sufficiently show harassment,
as defined by section 527.6, had occurred.
4 Linares and her son apparently lived in a separate part
of the duplex.
2
Flores stated that, after she complained to the City,
Linares threatened to call ICE—Immigration and Customs
Enforcement—if her family did not leave. Flores said that on
March 9, 2019, Linares offered to pay her $3,000 if the family
would leave by the next day. She also declared Linares’s son
threatens the family daily and that her children are scared.
She stated, “We have nowhere to go if [Linares] makes us leave[,]
and she keeps threatening us with ICE and with physical force.”
Linares filed a response and supporting declaration dated
April 12, 2019, denying she threatened Flores or her family.
Linares asserted the leaking roof was due to improperly installed
solar panels. She acknowledged Flores had complained, and said
she had contacted the solar panel installer to repair the roof. The
installer delayed in responding, but eventually began repairs.
Linares also stated she and Flores did not have a lease.
She said Flores began insisting on paying by check.5 Linares
declared she was “fearful” that “accepting checks from these
tenants would make me liable for harboring undocumented
immigrants.” After consulting an attorney and learning she
could not refuse payment by check, however, Linares asserted
she told Flores she would accept her checks. Linares also
declared she told Flores she would pay her family to relocate,
“so I would not be in this predicament between state and federal
law,” but they refused.
Linares stated Flores’s attorney began sending her and her
son “threatening legal documents demanding $1 million.” She
admitted “[t]hat’s when [she] called Immigration and Customs
Enforcement (ICE) and sought to report their unlawful presence.”
She declared she informed Flores and her family that she had
5 Flores also had asserted Linares would not accept a check
for their March rent.
3
reported them to ICE, but did not threaten them. Linares
attached the statement of damages she received. It is dated
March 13, 2019, and signed by Flores’s attorney, but the case
number is blank.
Flores filed a reply declaration. She confirmed Linares
finally deposited the March rent check after Flores’s attorney
mailed it. Flores also declared Linares came to her home on
April 13, 2019, to tell Flores she did not have that month’s rent
check. According to Flores, that Saturday a realtor came to her
door, told her she had to move out, served her with a notice to
move in 60 days, and told Flores to be at the property at 5:00 p.m.
on Monday so the realtor could show her unit. Linares told
Flores the complex was being sold and they would have to move,
but Flores declared Linares did not tell the other immigrant
families in the complex this same information. Flores stated
Linares asked the other undocumented immigrant family tenants
if they knew where Flores’s husband worked. Flores also claimed
Linares spit on her on March 7, 2019, the day after Flores
retained an attorney.
Both Flores and Linares appeared at the April 17, 2019
hearing, and each was represented by counsel. Only Flores
testified. She elaborated on points made in her declarations. She
testified that “once” Linares told her if she “wasn’t comfortable, to
leave.” Flores continued, “[S]he told me to look for another place.
There [were] threats. And she told me to keep [the] check for the
rent, to find another place, but I didn’t find anywhere else to go.
Ever since I received threats.” When asked what kind of threats
she received, Flores responded, “She [Linares] threatened to
deport me with ICE. She calls my daughters stupid, crazy. . . .
And finally[,] she spit on me. She came and spit on me.”
Flores produced two video recordings her husband took
on March 7, 2019, that she said showed Linares threatening her
4
with ICE and spitting on her. Flores also produced uncertified
transcripts of the videos, in the original Spanish and translated
into English. The court played one of the videos in open court
while reading the transcript. The people were not visible in the
video because it was made around 8 p.m. The court stated it did
not see “anything that looked like” spitting on the video. Flores
indicated the point in the video where she said she could hear
Linares spitting.
Flores testified that during the recorded discussion, she
and her husband were standing in their doorway, and Linares
and her son were standing outside. The transcript begins with
Linares stating, “Another thing, my brother, the one that’s in
Norwalk, you know him, I told him about the problem, and he
asked me if you were legal. I said no. Then he said if you all
started problems, he would call immigration services.” After
the parties accuse each other of acting illegally, the transcript
ends with, “[Linares] spits on [Flores].”
A second video of the same date captures the apparent
continuation of the parties’ discussion. According to that
transcript,6 Flores asks Linares if she wants the rent check,
“or no?” Linares replies, “No, no, I don’t want it. Because you
know what I was going to tell you, to not pay this month, I was
going to give you this month[,] so you look for another place.”
Flores responds, “No, I’m not going to look for another place until
you give me something written, I’m serious.” Linares’s son then
states, “If we don’t do it the good way, we’ll do it the bad way.”
6 Although the trial court did not view this second video
in open court, the transcripts from both videos were filed with
Flores’s reply, and the court confirmed it had read all of the
papers. Flores’s attorney also referred to its contents during
the hearing.
5
Flores responds, “Ok. However you want, because that’s a
threat.” Linares’s son denied he had made a threat, saying,
“[W]e didn’t say what was going to be done specifically.” Flores
then states, “Ok[,] but you said you [referring to Linares] were
going to call ICE on me. Do it.” Linares replied, “I didn’t’ say
I would, I said my brother.”
Flores’s attorney asked her if Linares threatened her in
other ways. She responded that Linares said if she didn’t leave
willingly, Linares would report her to the immigration services.
Flores testified her family had not been living at home because
they learned Linares had reported them to ICE. She said Linares
“knocks on the door,” and the kids are afraid.
Linares’s attorney cross-examined Flores. When
questioned, Flores testified her last contact with Linares had
been the week before the hearing when Linares came to pick up
the check, “and she was angry.” Flores said she shut the door,
and Linares knocked on it three more times and yelled. She
testified Linares did not make any threats of physical harm
against her.
Linares’s attorney pressed Flores to recall a date of a
specific threat Linares made and what she said. Flores again
referred to the March 7, 2019 incident and described Linares
as threatening to report Flores to immigration services. When
asked if Linares made that threat again, Flores responded
that Linares would always say the same thing, that Flores had
“no papers, and she was going to report [her] to . . . immigration,
and they were going to throw [her] out of the country.”
On cross-examination, Flores admitted she had filed a civil
lawsuit against Linares alleging she violated certain Civil Code
sections and seeking $1 million. Her attorney also confirmed
they had filed a civil case.
6
After cross-examining Flores, Linares’s attorney moved to
dismiss the request for a restraining order on the ground there
was no clear and convincing evidence of a threat of irreparable
harm. He argued there were allegations Linares violated the
Civil Code and those would be addressed in Flores’s lawsuit,
but there was “no credible objective ongoing threat that needs
to be enjoined,” even if the court accepted the allegations as true.
The court expressed its concern about the Civil Code
provisions prohibiting landlords from threatening to disclose
or disclosing a tenant’s immigration status. Flores’s attorney
directed the court to Linares’s admission that she had called ICE.
He argued the call only could have been in retaliation for Flores
and her husband complaining about the roof. Linares’s attorney
confirmed Linares called ICE, but reiterated no threats had been
made.
After hearing the evidence and counsel’s arguments, the
trial court ruled it did not find clear and convincing evidence of
harassment. The court noted “there are separate procedures
for redress” for the dispute between the parties concerning the
rental property and payment of rent, and it understood “from
the testimony that those are being looked into.” The court
then indicated it was “troubled by the testimony” it had heard
concerning the violation of the Civil Code sections preventing
the use of or threat of disclosing the immigration or citizenship
status of a tenant.
Nevertheless the court concluded the evidence, including
the video transcripts, did not provide sufficient evidence of
a threat to disclose Flores’s immigration or citizenship status.
In response to Flores’s attorney’s further argument, the court
stated, “I don’t find it to be clear and convincing evidence of
a threat. It may be a preponderance. And I think there are other
avenues for relief of that burden of proof.” The court continued,
7
“Although I’m moved by the situation, I did not find there was
clear and convincing evidence. And so there’s not going to be
a civil harassment restraining order in this case. Again, this
looks largely as landlord/tenant. It looks largely related to
the Civil Code issues. And there’s a legal proceeding that is
the appropriate procedural path.”
DISCUSSION
1. Applicable law and standard of review
The Legislature enacted section 527.6 “ ‘to protect the
individual’s right to pursue safety, happiness and privacy
as guaranteed by the California Constitution.’ [Citations.]
It does so by providing expedited injunctive relief to victims
of harassment.” (Brekke, supra, 125 Cal.App.4th at p. 1412.)
Harassment is defined as (1) “unlawful violence,” (2) “a credible
threat of violence,” or (3) “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); Harris v. Stampolis (2016) 248 Cal.App.4th 484.)
A “ ‘[c]ourse of conduct’ is a pattern of conduct composed of
a series of acts over a period of time, however short, evidencing
a continuity of purpose,” not including constitutionally protected
activity. (§ 527.6, subd. (b)(1).)
To obtain a restraining order under section 527.6, the
petitioner must show by “clear and convincing evidence that
unlawful harassment exists.” (§ 527.6, subd. (i).) The clear
and convincing evidence standard requires a finding of “ ‘high
probability.’ ” (Russell v. Douvan (2003) 112 Cal.App.4th 399,
401 (Russell).) Moreover, because “an injunction serves to
prevent future injury and is not applicable to wrongs that have
8
been completed,” the petitioner also must show a high probability
of future harm. (Id. at pp. 400, 402; Scripps Health v. Marin
(1999) 72 Cal.App.4th 324, 332-333 (Scripps Health) [interpreting
similar statute relating to workplace violence to require court
to find petitioner at risk of further unlawful conduct by clear
and convincing evidence].)
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 factual findings—
express and implied—for substantial evidence (R.D. v. P.M.
(2011) 202 Cal.App.4th 181, 188 (R.D.)). In so doing, “[w]e
resolve all factual conflicts and questions of credibility in favor of
the prevailing party and indulge in all legitimate and reasonable
inferences to uphold the finding of the trial court if it is supported
by substantial evidence which is reasonable, credible and of solid
value.” (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.) The
issue is not whether evidence in the record supports a contrary
conclusion, but whether substantial evidence, contradicted
or uncontradicted, supports the trial court’s determination.
(Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874;
Rupf v. Yan (2000) 85 Cal.App.4th 411, 429, fn. 5.)
2. Flores’s contentions of error
Flores based her restraining order request primarily on
Linares’s purported threat to call ICE and report Flores and
her family’s immigration status after Flores complained about
the leaking roof and refused to relocate.7 In her opening brief,
Flores contends the trial court confused civil harassment under
section 527.6 with harassment under the Civil Code sections
7 Flores even titled her declaration in support of her petition,
“Declaration of Alma Maria Flores re: Threats of Calling ICE
re Immigration Status.”
9
prohibiting landlords from reporting their tenants’ immigration
status for improper purposes.8 Flores does not explain how this
purported “confusion” resulted in error, however, other than to
state the court “fail[ed] to recognize” those Civil Code sections. In
fact, during the hearing, the trial court not only referred to these
Civil Code sections, it quoted text from Civil Code section 1940.2.
From what we can discern from Flores’s brief, she seems to
argue that Linares’s violation of one of these Civil Code sections
is sufficient to require a civil harassment restraining order under
section 527.6.9 But a landlord’s unlawful act under the Civil
8 For example, Civil Code section 1940.2 provides, in part,
that it is unlawful for a landlord to “[t]hreaten to disclose
information regarding or relating to the immigration or
citizenship status of a tenant” to influence her “to vacate
a dwelling.” (Civ. Code, § 1940.2, subd. (a)(5).) Section 1940.3,
subdivision (b)(3) prohibits a landlord from disclosing a tenant’s
immigration or citizenship status to harass or intimidate the
tenant, retaliate against the tenant, or influence the tenant
“to vacate a dwelling.” Section 1942.5, on which Flores relies
heavily in her brief, prohibits a landlord from reporting
or threatening to report a tenant to immigration authorities
in retaliation for the tenant’s complaint to housing authorities.
(Id., § 1942.5, subds. (a), (c).)
9 Flores’s opening brief on this point is unhelpful to say the
least. It recites the requirements for showing retaliatory eviction
under Civil Code Section 1942.5 and argues Linares violated that
section. The brief then discusses retaliatory eviction under that
section in a first person, narrative form that Flores’s attorney
appears to have copied directly from an uncited blog-post—
including the original writer’s advice and personal experiences.
The brief also mentions the California Constitution’s due process
clause, but does not state how the issue of due process is relevant
here.
10
Code does not automatically entitle a wronged tenant to
expedited injunctive relief under section 527.6. A civil
harassment restraining order will issue only upon a showing of
clear and convincing evidence of harassment that is reasonably
certain to recur. (R.D., supra, 202 Cal.App.4th at p. 189 [§ 527.6
injunction “authorized . . . only when it appears from the evidence
that the harassment is likely to recur in the future”].)
And, because the issue on review turns on the appellant’s
failure of proof, the question for us “ ‘becomes whether the
evidence compels a finding in favor of the appellant as a matter of
law. [Citations.] Specifically, the question becomes whether the
appellant’s evidence was (1) “uncontradicted and unimpeached”
and (2) “of such a character and weight as to leave no room
for a judicial determination that it was insufficient to support
a finding.” ’ ” (Sonic Manufacturing Technologies, Inc. v. AAE
Systems, Inc. (2011) 196 Cal.App.4th 456, 466.) We thus examine
the evidence to determine whether it compelled the trial court
to issue a restraining order against Linares under section 527.6.
We conclude it did not.
3. The trial court did not abuse its discretion
To establish Linares harassed her under section 527.6,
Flores testified that Linares threatened her repeatedly.10 The
evidence of repeated threats was not uncontradicted, however.
The only threat that Flores could testify to with any specificity
was Linares’s threat to report Flores and her family to ICE.
10 We presume Flores contends Linares’s “threats” fall under
the “course of conduct” definition of harassment. At the hearing,
Flores never testified Linares engaged in violence or threatened
her with violence, other than spitting on her. As we discuss, the
court did not err in finding the evidence of the spitting incident
insufficient.
11
As to that threat, Flores could recall specifically only the
March 7, 2019 date. According to the March 7, 2019 video
transcript, Linares repeated her brother’s statement that he
would call immigration if Flores and her husband “started
problems.” In both the transcript and her declaration, Linares
denied having threatened Flores. Instead, Linares admitted both
that she had offered to pay Flores to relocate and that she had
reported Flores’s “unlawful presence” to ICE and informed Flores
that she had done so.
The trial court was “troubled” by the testimony, but did not
find clear and convincing evidence of harassment under section
527.6. The court did not find the video or its transcript to provide
clear and convincing evidence of a threat to disclose immigration
status. The court also found Flores’s testimony about the threats
by Linares to call ICE were not corroborated by the other
evidence, implicitly rejecting Flores’s testimony that Linares
repeatedly threatened Flores with reporting her to ICE.11 We
did not hear the parties’ tone in the video, as the trial court did,
and will not reweigh the evidence nor reassess the trial court’s
credibility determinations. (Pope v. Babick (2014) 229
Cal.App.4th 1238, 1246 [reviewing court is not a second trier of
fact].) Moreover, the court also noted the testimony that there
had been actual reporting to ICE in concluding there was no clear
and convincing evidence of a threat. Given it found insufficient
evidence of a threat, we can infer the court also concluded Flores
failed to meet her burden of proof to demonstrate she was at risk
of future harm—in other words, that Linares’s wrongful conduct
11 We also can infer the trial court rejected Flores’s
characterization of Linares’s statement in the transcript offering
Flores to skip that month’s rent to look for a new place, as a
threat.
12
likely would continue—a requirement to enjoin future conduct.
(Russell, supra, 112 Cal.App.4th at pp. 401-402.)
We conclude substantial evidence supports the trial court’s
implied finding that it was not likely Linares would continue to
harass Flores by threatening to report her to ICE. By Linares’s
own admission, the deed already had been done. Thus, a
restraining order would serve only to punish Linares’s completed
wrongful act. (Russell, supra, 112 Cal.App.4th at p. 402; Scripps
Health, supra, 72 Cal.App.4th at p. 332.) Accordingly, even
presuming, without deciding, that Linares’s statements to Flores
reflected in the March 7, 2019 video transcripts and her actual
reporting of Flores to ICE constitute harassment under section
527.6, the court did not err in refusing to issue a restraining
order against Linares.
Flores’s attorney argued Flores faced a continuing risk
of harm if Linares was not restrained because Flores could not
return home. He asserted that they “believe[ed]” Linares had
ICE waiting for Flores at her home when Flores was told to be
there to show the property. That argument was based on Flores’s
speculation, however. It did not demonstrate a high probability
that Linares, going forward, would call ICE to come to the
property. Moreover, no restraining order could prevent ICE
from coming to Flores’s home. Thus, injunctive relief would
not prevent the potential harm Flores feared would result from
Linares’s earlier report to ICE. And, as Linares’s attorney
argued, it would not be reasonable to conclude Linares would
threaten Flores with new calls to ICE when Flores had a
pending lawsuit that sought damages against her.
Besides the threats to call ICE, Flores’s attorney also
argued Flores was under “constant harassment” by Linares
“coming around to her door and things, telling her that she
hasn’t paid the rent when she has, when she’s offered the rent
13
and she won’t accept it.” In her brief, Flores asserts that Linares
spit on her, Linares and her son “repeatedly threatened her,”
and Linares harassed her “on a daily basis, knocking on her door
while her husband was at work and telling her she had to get out,
move, leave the unit.” The court found no evidence of spitting
on the video, however. The video itself is not part of the record.
We presume the court’s finding is correct. (Haywood v. Superior
Court (2000) 77 Cal.App.4th 949, 955 [reviewing court will infer
substantial evidence supports the trial court’s findings where
record on appeal does not contain all of the evidence submitted
to the trial court].)
The court also reasonably could conclude Flores’s testimony
of one instance where Linares continued to knock on Flores’s door
while shouting was insufficient to constitute clear and convincing
evidence of a “credible threat of violence” or “a knowing and
willful course of conduct that seriously alarms, annoys, or
harasses the person, and that serves no legitimate purpose.”12
(§ 527.6, subd. (b)(3); see Leydon v. Alexander (1989) 212
Cal.App.3d 1, 4-5 [single incident, although deplorable,
insufficient to obtain injunctive relief under § 527.6].) Nor does
the evidence compel a finding that this behavior would continue.
Again, the trial court could infer it was improbable Linares would
continue to engage in such tactics in the face of Flores’s pending
lawsuit.
Linares may very well have called ICE in retaliation for
Flores having complained about the roof, but without clear and
convincing evidence that Linares would continue to harass Flores
12 Although Flores argues she was harassed on a daily basis
by Linares knocking on her door, she only testified in any detail
about the one incident. She also admitted Linares never
threatened her with physical harm.
14
by making those or other threats, a civil harassment restraining
order could not be issued. The trial court, therefore, did not
abuse its discretion in denying Flores’s request. And, by the
time of the April 17, 2019 hearing, there already was a legal
proceeding underway—requiring a lesser standard of proof13—
that would provide, as the trial court put it, “the appropriate
procedural path” to address Flores’s claims against Linares
for violating the Civil Code.
DISPOSITION
The judgment is affirmed. Because respondent did not
participate in the appeal, no costs are awarded to her.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J. DHANIDINA, J.
13 Unless otherwise provided, the burden of proof in civil
cases requires “proof by a preponderance of the evidence.”
(Evid. Code, § 115; Estate of Ford (2004) 32 Cal.4th 160, 173.)
15