Filed 2/23/22 Gomez v. Foster CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
LUIS ERNESTO GOMEZ, 2d Civil No. B310368
(Super. Ct. No. 20CV02338)
Plaintiff and Respondent, (Santa Barbara County)
v.
JOSEPH FOSTER,
Defendant and Appellant.
Joseph Foster appeals a civil harassment restraining order
prohibiting him from harassing his neighbor, Luis Gomez
(respondent) and respondent’s family. (Code Civ. Proc., § 527.6.)1
Appellant contends the order is not supported by substantial
evidence. We affirm.
1 All further references are to the Code of Civil Procedure.
FACTS AND PROCEDURAL HISTORY
Appellant and respondent are neighbors. Each neighbor
obtained a temporary civil harassment restraining order against
the other.
On December 8, 2020, the trial court conducted an
evidentiary hearing on the parties’ requests. Appellant moved to
dismiss his request for a restraining order. The trial court
granted the request and the hearing proceeded solely on
respondent’s request for a restraining order.
Respondent testified that on July 13, 2020, he asked
appellant about the temporary construction fencing around his
front yard that had been up for approximately four months. In
response, appellant threatened respondent that he was going to
“terrorize [respondent’s family] and be the neighbor from hell.”
The following day, sometime around 7:00 a.m., appellant began
playing loud music and revving his motorcycle engine for
approximately one hour. On another occasion, he approached
respondent and respondent’s father-in-law and shouted insults
and threats at them. He called animal control and complained
about respondent’s dog. He also installed security cameras
pointed toward respondent’s home.
Appellant denied respondent’s allegations in both his
declaration and his testimony at the hearing. He claimed it was
respondent who was the aggressor. Appellant said he installed
the cameras for his safety because respondent had threatened to
poison his dog. He denied the cameras were pointed at
respondent’s house, but later took them down. He also claimed
respondent’s dog barked for hours, was off leash and defecated in
his front yard on multiple occasions.
2
At the conclusion of the hearing, the trial court granted
respondent’s request for the restraining order.
DISCUSSION
Mootness
Before we address the merits of appellant’s contentions, we
must first determine whether the appeal is moot. The
restraining order at issue was scheduled to expire on December 8,
2021, which technically renders this appeal moot.2 “‘“[T]here are
three discretionary exceptions to the rules regarding mootness:
(1) when the case presents an issue of broad public interest that
is likely to recur [citation]; (2) when there may be a recurrence of
the controversy between the parties [citation]; and (3) when a
material question remains for the court’s determination
[citation].”’ [Citation].” (Harris v. Stampolis (2016) 248
Cal.App.4th 484, 495-496 (Harris).)
We retain discretion to consider appellant’s contentions on
the merits because it is likely that the controversy will recur
between the parties given their history and respondent’s request
to renew the restraining order. Accordingly, we will address the
merits of appellant’s claims.
Restraining Order
Appellant makes several arguments that the civil
harassment restraining order is not supported by substantial
evidence. As we explain below, these arguments lack merit.
We review the trial court’s grant of a civil harassment
restraining order for substantial evidence. (Harris, supra, 248
Cal.App.4th at p. 497; R.D. v. P.M. (2011) 202 Cal.App.4th 181,
2 Our review of the superior court’s docket indicates that a
hearing date has been scheduled on respondent’s request to
renew the restraining order.
3
188 (R.D.).) “‘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. [Citation.] But whether the facts, when construed
most favorably in [the petitioner’s] favor, are legally sufficient to
constitute civil harassment under section 527.6, and whether the
restraining order passes constitutional muster, are questions of
law subject to de novo review.’” (Harris, at p. 497.) “We 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
(Schild).)
Appellant complains the record does not support the trial
court’s findings, but appellant failed to provide a complete record
on appeal. For example, he has omitted respondent’s original
request for a restraining order and numerous supporting
declarations that the trial court stated it had considered. “We
cannot presume error from an incomplete record.” (Christie v.
Kimball (2012) 202 Cal.App.4th 1407, 1412.) Rather, we are
required to draw every inference in favor of the judgment.
(Schild, supra, 232 Cal.App.3d at p. 762; R.D., supra, 202
Cal.App.4th at p. 186, fn. 5.) The record provided, and especially
the transcript of the evidentiary hearing, includes substantial
evidence supporting the trial court’s factual findings.
A trial court may issue a civil harassment restraining order
upon a finding, by clear and convincing evidence of “unlawful
violence, a credible threat of violence, or a knowing and willful
course of conduct directed at a specific person that seriously
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alarms, annoys, or harasses the person, and that serves no
legitimate purpose.” (§ 527.6, subds. (a)(1), (b)(3) & (i).)
Appellant contends the trial court lacked substantial
evidence to grant the restraining order for several reasons. First,
he contends the evidence was insufficient to establish a credible
threat of violence or harassment because respondent “never
testified that he himself” felt threatened or suffered emotional
distress, nor would a reasonable person suffer substantial
emotional distress based on his conduct.
But respondent did testify that after appellant threatened
to “terrorize [his] family and be the neighbor from hell,” appellant
engaged in a “pattern of behavior” of making threats and acting
“very aggressive” that caused respondent to feel “scared” and
“concerned” for his family’s safety. He explained that he and his
family felt they could not walk down the street without fear that
appellant, who was larger than respondent, would confront them
and the situation would become “violent.” He also testified that
he had lost sleep and suffered emotional distress.
This evidence was sufficient for the trial court to conclude
that respondent had “established harassment by clear and
convincing evidence” as defined by the statute. (§ 527.6, subd.
(b)(3).)
Appellant next contends the evidence does not establish
that his conduct “served no legitimate purpose.” However, the
trial court stated that it had “carefully considered the evidence”
and found appellant “was attempting to be the neighbor from
hell” by “playing his loud music and revving [his] motorcycle,”
engaging in an “angry exchange” and making “threats” to
respondent and respondent’s father-in-law, calling Animal
Control, and installing the security cameras directed at
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respondent’s home. Based on the foregoing evidence, the trial
court correctly concluded appellant’s conduct served no legitimate
purpose.
Finally, appellant contends the trial court failed to consider
his declarations, but this contention is contradicted by the record.
The trial court stated it had “considered [appellant’s] declaration”
and his supporting declarations.
DISPOSITION
The civil harassment restraining order is affirmed.
Respondent is entitled to his costs on appeal, if any.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
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Stephen Foley, Commissioner
Superior Court County of Santa Barbara
______________________________
Haffner Law Group and Matthew M. Haffner, for
Defendant and Appellant.
Luis Ernesto Gomez, in pro. per., for Plaintiff and
Respondent.