Haywood v. Sowemimo CA2/2

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
3
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
4
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
5
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
7
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
8
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,
9
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.
10
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