Gomez v. Munroe CA2/4

Filed 9/21/23 Gomez v. Munroe CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
EMELINA GOMEZ, B317768
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 21PDRO01125)
v.
MASSIE MUNROE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Timothy Martella, Judge. Affirmed.
Massie Munroe, in pro. per., for Defendant and Appellant.
John Koutsoukos for Plaintiff and Respondent.
INTRODUCTION
This case involves a long-time dispute between neighbors, plaintiff
Emelina Gomez (Gomez) and defendant Massie Munroe (Munroe). Munroe
appeals from the trial court’s order granting Gomez a three-year restraining
order against Munroe (Code Civ. Proc., § 527.6).1 Munroe contends the
restraining order was not supported by substantial evidence. We disagree.
We affirm the court’s order.2
FACTUAL AND PROCEDURAL BACKGROUND
Munroe and Gomez own houses next door to each other. Gomez’s
mother, father, and sister live there, and Gomez visits. As a threshold
matter, we note there is an underlying disagreement between the parties
regarding the location of the property line dividing their adjoining land. The
disagreement has existed for years, but neither party has initiated litigation
regarding that matter. The property line dispute is not at issue here, but
provides context regarding the parties’ relationship to one another.
1 All further statutory references are to the Code of Civil Procedure
unless otherwise stated.
2 At oral argument, Gomez’s counsel represented that Munroe was
deceased. As Munroe was self-represented, we issued an order vacating
submission of the matter and directing Gomez’s counsel to present proof of
Munroe’s death within 10 days of the order. Gomez’s counsel filed a
declaration stating he was unable to obtain documentation of Munroe’s
death. We provided counsel an additional 30 days to obtain a death
certificate. The 30-day deadline has now expired without any further
communication from counsel. On September 12, 2023, the case was
submitted.
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A. The Petition for Civil Harassment Restraining Order and the Issuance
of the Temporary Restraining Order
Gomez filed a petition for a civil harassment restraining order against
Munroe pursuant to section 527.6.3 In the petition, Gomez alleged as follows.
Munroe has harassed the Gomez family “on and off for almost 30 years.” The
Gomez family called the police “several times.”
Gomez stated Munroe “broke our property-line fence twice” and
“thr[ew] pots, dirt, garbage and water at us.” Munroe “[e]nter[ed] our
property yelling and displaying aggression.” Munroe “use[d] profanity
against [Gomez’s] elderly . . . mother.” The last date on which Munroe
harassed the Gomez family was two days before the date of the petition.
Gomez and her family members have been “emotionally, and mentally
harmed” by Munroe. The Gomez family does not “know what [Munroe] is
capable to do.” Munroe “constantly comes into our property yelling
profanity.”
The petition was the third civil harassment restraining order brought
by the Gomez family against Munroe. The court granted the two prior
restraining orders which have since expired.
Munroe did not file a response to the petition.
3 In designating the record on appeal, Munroe did not ask the clerk to
include in the clerk’s transcript Gomez’s petition for a temporary restraining
order (petition) or the issued temporary restraining order (TRO). Though not
at issue here, Munroe filed a writ with this court, which included the petition
and TRO as exhibits. We take judicial notice of the petition and the TRO.
(Evid. Code, § 452, subd. (d) [“[j]udicial notice may be taken of . . . [r]ecords of
. . . any court of this state”]; Evid. Code, § 459 [“The reviewing court may take
judicial notice of any matter specified in [Evidence Code] [s]ection 452”].)
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The court granted the TRO, which was to remain in place until the end
of the hearing on the petition. The court noted, “[t]he Order is based on
unlawful violence, a credible threat of violence, or stalking.”
B. The Evidentiary Hearing on the Petition
At the hearing, Gomez and Munroe each appeared and represented
themselves. The trial court conducted a direct examination of Gomez and
Munroe.
Gomez testified first as summarized below.
For years, Munroe had maintained the house next door to the Gomez
Family as a rental property. Munroe moved back into her house after the
court granted the TRO the month before the hearing.
Gomez testified about an incident two days before filing the petition.
She stated Munroe “threw the potted plant, which broke the panels of the
gate door [and] almost hit [her] mother.” In Munroe’s “act of violence, she
started screaming to [Gomez’s] mother, ‘you’re a whore’ . . . she basically lost
control.” Gomez called the police when she was “on [her] way” to her house.
The police told Gomez to “stay away” because it was unclear whether Munroe
“was armed or not.” Gomez’s parents were “frantic.”
Gomez further testified Munroe broke the property line fence “for a
second time,” and Munroe was in the front yard “having a major, major
meltdown and screaming.” Munroe “three times, continued to . . . have fits,
bouts of anger, and throw the [fence] panels” that are between the properties.
She “threw rocks” at the Gomez family’s gardener and “continue[d] to berate
our roofers.”
Gomez stated the reason for requesting a restraining order was based
on Munroe’s “act of violence, continued berating of anybody that comes to our
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house, ignoring restraining orders, moving in after the restraining order is in
place, still coming on to my property.” Gomez’s mother was “having a
nervous breakdown because [Munroe] continue[d] to harass us with
vulgarity, with anger” and Gomez’s “elderly parents shake.” Gomez believed
Munroe was “dangerous and capable of anything.”
Next, the court called Munroe to testify. Munroe stated that “none” of
what Gomez said was true. The court then asked Munroe if she threw a
flower pot. Munroe initially evaded the question but eventually admitted
throwing a flower pot. She testified she “never insulted” the Gomez family,
and she was not “bothering them.” She testified, “I have done nothing to
[Gomez’s] mother. We used to have a great relationship. . . . I still have
respect for her.” She also stated, “I have never insulted [Gomez’s] father, [he]
has insulted me.” 4
C. The Trial Court’s Ruling
Following the parties’ oral testimony, the trial court granted a three-
year restraining order to protect the Gomez family from Munroe. The court
found Gomez credible and Munroe to be “not very credible and not very
rational.” The court believed Munroe threw a flower pot “through the fence
or at the fence” and is hoping to “stop that kind of behavior.” The court
explained there seems to be a property line dispute causing Munroe to take
“self-help” and is causing her to “act[] out in a weird way.”
Munroe timely appealed.
4 Munroe spent much of the hearing testifying regarding the property
line issue instead of responding to the specific allegations in the petition. The
court reiterated it was not concerned with the property line issue, but with
Munroe’s behavior and “whether . . . to restrain” Munroe from the Gomez
family.
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DISCUSSION
A. Governing Principles
Section 527.6, subdivision (a)(1) provides, “[a] person who has suffered
harassment . . . may seek a temporary restraining order and an order after
hearing prohibiting harassment.”
The statute defines “harassment” 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.”
(§ 527.6, subd. (b)(3).) A “credible threat of violence” is defined as “a knowing
and willful statement or course of conduct that would place a reasonable
person in fear for the person’s safety or the safety of the person’s immediate
family, and that serves no legitimate purpose.” (§ 527.6, subd. (b)(2).)
“Course of conduct” is defined as “a pattern of conduct composed of a series of
acts over a period of time, however short, evidencing a continuity of purpose.”
(§ 527.6, subd. (b)(1).)
Once a temporary restraining order is issued, the court must hold an
evidentiary hearing. (§ 527.6, subds. (g), (i).) At the 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).)
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B. Standard of Review
The standard of review of a court’s decision to grant a civil harassment
restraining order 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. [Citation.]’” (Harris v. Stampolis (2016) 248
Cal.App.4th 484, 497.)
The reviewing court “‘“must accept the trial court’s resolution of
disputed facts when supported by substantial evidence; we must presume the
court found every fact and drew every permissible inference necessary to
support its judgment, and defer to its determination of credibility of the
witnesses and the weight of the evidence. [Citation.]”’” (Santa Clara County
Correctional Peace Officers’ Assn., Inc. v. County of Santa Clara (2014) 224
Cal.App.4th 1016, 1027; Curcio v. Pels (2020) 47 Cal.App.5th 1, 12 [appellate
court does not “determine credibility or reweigh the evidence”].)
A reviewing court must determine whether there is substantial
evidence in the record “in support of a finding . . . that a fact has been proved
by clear and 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. . . . [I]n making this assessment the appellate court must view the
record in the light most favorable to the prevailing party below and give due
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.” (Conservatorship of O.B. (2020) 9 Cal.5th 989,
995–996.)
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C. Analysis
Munroe contends on appeal the court erred in granting the restraining
order “as there [was] not substantial evidence to support the order.” We
disagree and conclude the trial court’s order was supported by substantial
evidence.
The court found Gomez credible and Munroe to be “not very credible
and not very rational.” The court specifically found Munroe threw a flower
pot “through the fence or at the fence.”
Gomez testified at the hearing and declared in the petition that Munroe
engaged in harassing behavior for “30 years” and the Gomez family called the
police “several times.” Gomez testified at the hearing about Munroe’s
harassment in the days preceding the filing of the petition and, in the weeks
following the issuance of the TRO. This included throwing a flower pot
through the Gomez family’s fence, throwing mud, dirt, garbage, and water,
breaking the fence on a second occasion, yelling profanity, displaying
aggression, berating visitors to the Gomez family’s home, throwing rocks at
the Gomez family’s gardener and berating the gardener. Gomez alleged
Munroe had “emotionally” and “mentally” harmed the Gomez family. Gomez
also testified her mother was having a “nervous breakdown,” and that her
mother was “frantic,” and her “elderly parents shake” as a result of Munroe’s
behavior.
Munroe asserts the “only evidence the Court reviewed was testimony
from both parties at the hearing” and notes the court did not “look at any
documents.” The only requirement section 527.6 imposes on the evidentiary
hearing is for the judge to “receive any testimony that is relevant.” (§ 527.6,
subd. (i).) The court “receive[d] testimony” from both Gomez and Munroe.
(In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 703 [“The
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testimony of one witness, even that of a party, may constitute substantial
evidence”].) The statute also does not impose any requirement to “look at
documents.” Even if the statute did so require, Munroe’s contention is
inaccurate. The filed petition contained Gomez’s sworn statements regarding
Munroe’s harassment.
Munroe also contends there is no substantial evidence to support the
findings because there were no direct witnesses to the alleged harassment,
and therefore Gomez’s testimony was inadmissible hearsay. This is not so.
As discussed above, Gomez provided in the petition, and in her oral testimony
at the hearing, that she witnessed Munroe’s conduct on various occasions.
We also note section 527.6, subdivision (i) “has been interpreted to mean
hearsay evidence . . . is admissible during hearings conducted pursuant to
section 527.6. [Citations.]” (Yost v. Forestiere (2020) 51 Cal.App.5th 509,
521.) Munroe also waived the right to challenge the admission of evidence by
failing to make any objection during the hearing. (See Evid. Code, § 353,
subd. (a); SCI California Funeral Services, Inc. v. Five Bridges Foundation
(2012) 203 Cal.App.4th 549, 563 [party forfeited evidentiary “challenge by
failing to make an objection below that satisfies the requirements of Evidence
Code section 353”].)
We conclude there is substantial evidence to support the trial court’s
findings and that the issuance of the restraining order was proper.
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DISPOSITION
The order is affirmed. The parties shall bear their own costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(5).)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ZUKIN, J.
WE CONCUR:
CURREY, P. J.
COLLINS, J.
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