Filed 9/28/20 Cabral v. Mendez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
DAISY CABRAL,
Plaintiff and Appellant, G058306
v. (Super. Ct. No. 30-2019-01074888)
FABIOLA MENDEZ, OPINION
Defendant and Respondent.
Appeal from a judgment of the Superior Court of Orange County, Patrick
Flannery, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Thakur Law Firm, Pamela Tahim Thakur for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
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Plaintiff Daisy Cabral appeals from the trial court’s denial of her petition
for a civil harassment restraining order against defendant Fabiola Mendez under Code of
Civil Procedure section 527.6 (all further statutory references are to this code). We
conclude plaintiff failed to show a sufficient threat of future harassment and affirm.
FACTS AND PROCEDURAL HISTORY
After granting plaintiff’s request for a temporary restraining order, the court
held an evidentiary hearing on her petition for a permanent restraining order (also known
as an injunction) against defendant. The following evidence was introduced.
Plaintiff owns a natural supplements company in Los Angeles and has an
ongoing business dispute with M.R. Defendant is friends with M.R., and first met
plaintiff in 2015.
A friend of plaintiff sent her screenshots of Instagram messages made by
defendant on June 5, 2019. The messages sent to plaintiff’s friend mentioned both
plaintiff and her boyfriend by name.
In one message, defendant wrote “do not forget that you work in a store
where many people come and go. So you better be careful, and do not let happen what
happened to the rapper they killed outside his business for being an asshole just like you.”
Plaintiff understood this to be a reference to Nipsey Hussle, a rapper who had recently
been shot in front of a store he owned.
Defendant testified this message was directed towards plaintiff’s boyfriend
because he had posted pictures of defendant’s son and her home address on his Instagram
account.
In a different message, defendant wrote plaintiff and her boyfriend were
“born monkeys and monkeys you will die.” Defendant explained this message was “like
a saying that we have in Spanish. It’s like you’re born poor, you’re going to die poor.”
Defendant said she intended the message as a threat to plaintiff and her boyfriend.
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Plaintiff also received a message telling her to “shoot [herself] before
somebody else does,” but defendant denied sending it. The day after plaintiff got this
message, defendant posted a photo on Facebook indicating she was in downtown Los
Angeles and asking who else was around.
Plaintiff was in a state of “constant fear” after receiving the messages, and
as a result she started going to therapy and staying in a different house.
The court ultimately denied plaintiff’s petition, explaining: “The court is
aware of the fact that a [temporary restraining order] is reasonable belief, but a permanent
injunction requires clear and convincing evidence. . . . The court is going to find there
has been a failure of the burden of proof. [¶] Court does not find by clear and convincing
evidence that there has been unlawful violence, assault, battery, stalking, that there’s been
a credible threat of violence, knowing and willful course of conduct that would leave a
reasonable person in fear for their life.”
DISCUSSION
For purposes of obtaining a civil harassment restraining order, section
527.6, subdivision (b)(3) defines “‘[h]arassment’” as, among other things, “a credible
threat of violence . . . .” A “‘[c]redible 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).) Harassment must be proven by clear and
convincing evidence to obtain a permanent restraining order. (§ 527.6, subd. (i).)
We review the trial court’s ruling on the petition for abuse of discretion, but
review the court’s factual findings for substantial evidence. (Parisi v. Mazzaferro (2016)
5 Cal.App.5th 1219, 1226, disapproved on another ground in Conservatorship of O.B.
(2020) 9 Cal.5th 989, 1010, fn. 7.) “‘We resolve all conflicts in the evidence in favor
of . . . the prevailing party, and indulge all legitimate and reasonable inferences in favor
of upholding the trial court’s findings.’” (Ibid.)
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Plaintiff contends she presented substantial evidence of a credible threat of
violence, and therefore, the court should have granted her request for a permanent
restraining order. We are not persuaded.
To begin with, plaintiff misperceives her burden on appeal. In substance
the trial court found plaintiff had not proved a credible threat of future harassment by
clear and convincing evidence. That was a question for the trial court, and it was
resolved against her. The question for this court to determine is whether substantial
evidence compelled the trial court to find in her favor on that issue. (Cf. Roesch v. De
Mota (1944) 24 Cal.2d 563, 570-571.) In other words, to demonstrate error, plaintiff
must establish substantial evidence does not support the trial court’s ruling in favor of
defendant.
Plaintiff has not met her burden, because: “An injunction restraining future
conduct is only authorized when it appears that harassment is likely to recur in the
future.” (Harris v. Stampolis (2016) 248 Cal.App.4th 484, 496.) And, “the
determination of whether it is reasonably probable an unlawful act will be repeated in the
future rests upon the nature of the unlawful violent act evaluated in the light of the
relevant surrounding circumstances of its commission and whether precipitating
circumstances continue to exist so as to establish the likelihood of future harm.” (Scripps
Health v. Marin (1999) 72 Cal.App.4th 324, 335, fn. 9.)
Here, substantial evidence supports the trial court’s finding plaintiff failed
to show defendant’s harassment was likely to recur in the future. While plaintiff’s
business dispute with M.R. might be ongoing, the evidence showed all of defendant’s
Instagram messages referring to plaintiff were made on one day. Plus, the triggering
event—plaintiff’s boyfriend posting defendant’s address and pictures of her son—is not
likely to recur. There was no evidence presented defendant made any prior threats or any
subsequent threats against plaintiff or her boyfriend. Nor was there any evidence
defendant has had any other contact with plaintiff.
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DISPOSITION
The judgement is affirmed.
THOMPSON, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
MOORE, J.
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