Avendano v. Wozniak CA2/7

Filed 7/21/22 Avendano v. Wozniak CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

MARCOS AVENDANO, B314359

Petitioner and (Los Angeles County
Respondent. Super. Ct. No.
21IWRO00368)
v.

CAROL WOZNIAK,

Respondent and
Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Patricia J. Titus, Judge. Affirmed.

Carol Wozniak, in pro. per., for Respondent and Appellant.

No appearance for Petitioner and Respondent.

__________________________
 Carol Wozniak appeals from a restraining order protecting
her neighbor, Marcos Avendano, and several members of the
Avendano family.1 Marcos requested a civil harassment
restraining order against Wozniak for conduct spanning almost
five years, including Wozniak reporting the Avendanos and their
guests to the police on multiple occasions, agitating the
Avendanos’ dogs to make them bark, and making pejorative
comments, including racial slurs. Wozniak contends her conduct
does not meet the standard for civil harassment under section
527.6 of the Code of Civil Procedure2 because her actions did not
constitute a course of conduct and she was provoked into using
pejorative language. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Marcos’s Request for a Restraining Order
On April 5, 2021 Marcos filed a request for a civil
harassment restraining order against his next-door neighbor
Wozniak. Marcos based the request on ongoing instances of
Wozniak harassing him and his family “on a daily basis,” stating
Wozniak “verbally assaulted my son-in-law and other guests” and
Wozniak “consistently calls the police for no reason, honks
incessantly, leaves [the] radio full volume [with] speaker toward
our property, [and] taunts our dogs to trigger an animal [services]

1 We refer to Marcos Avendano and his daughter Fanny
Avendano by their first names to avoid confusion.
2 Further statutory references are to the Code of Civil
Procedure.

2
visit.” The request stated the most recent instance occurred on
April 4, which was Easter Sunday.
In her response to Marcos’s request, Wozniak denied she
had harassed the Avendanos, stating the Avendanos “caused . . .
disturbances including being up all night, loud noises and 3-4 AM
disturbances, and barking dog disturbances which progressed to
[the complaint] that [led] to multiple [c]itations.” According to
Wozniak, the most recent incident occurred on Easter weekend
when the Avendanos had a loud party, complete with “loud
karaoke music” and “singing and screaming.” Wozniak reported
the Avendanos to the police because of the noise and the
Avendanos blocking Wozniak’s driveway with one of their cars.
Further, Avendano had been cited by the County of Los Angeles
Department of Animal Care and Control for “incessant barking of
his dogs.”

B. The Hearing on Marcos’s Request
Marcos, his wife Astrid Santamaria, and his daughter
Fanny testified in support of Marcos’s request at the May 4, 2021
hearing. Marcos testified that animosity between the parties
started from the time the Avendanos moved next door to Wozniak
in 2016. After coming home from church one day, the Avendanos
were in their carport with their son, who used a breathing
machine, when Wozniak “started to hit the wall and to scream for
us to be quiet.” In connection with that incident, Wozniak
reported the Avendanos to the police for the first time.
Thereafter, Wozniak called the police several times concerning
the barking of Fanny’s two small dogs. According to Fanny, when
she moved out of the family home, she took her two dogs with
her, but her parents obtained two pit bulls for protection
following recent break-ins. Subsequent confrontations related to

3
the two pit bulls. According to Marcos, from 2016 until the
hearing, Wozniak reported the Avendanos to the police about 10
times.
Wozniak testified in opposition to the request, explaining
she had continuing issues with the Avendanos starting in 2016
with the first two barking dogs (Fanny’s), and later when the
Avendanos brought home the two pit bulls. According to
Wozniak, Marco got up at 3:00 or 4:00 a.m., at which time he let
his dogs out. Further, the dogs at that hour “bark enough to
wake people up.” Wozniak testified the most recent incident of
the dogs barking was on April 18, 2021.
Wozniak offered as evidence a video she asserted was of the
Avendanos’ barking dogs on April 18, 2021, which her attorney
played for the court. The court stated as to the video that it could
hear a dog barking on the video, but the video did not show any
dogs, and therefore the court “couldn’t see what dog was
barking.” Wozniak responded that the Avendanos’ black pit bulls
could be heard barking on the video. Wozniak’s attorney then
played another video, which Wozniak stated “obviously” showed
the Avendanos’ dog. However, the court commented that it would
be helpful to see a video that showed the dogs barking. Wozniak
stated she videotaped the scene because the police told her she
needed to do so to support her excessive-noise complaints.3

3 Both Marcos and Wozniak offered videos into evidence,
which were played for the trial court and admitted into evidence.
The video exhibits are not in the record on appeal. On May 24,
2022 we requested Marcos and Wozniak to provide the admitted
videos to the court, but we have received no response. Where
applicable, we include the court’s descriptions of what the court
could see in the videos.

4
 1. The 2019 and 2020 incidents
Marcos testified about four allegedly harassing incidents in
2019 and 2020, and he played videos of the incidents for the
court. According to Marcos, on June 11, 2019 Wozniak played
her radio loudly while facing in the direction of the Avendanos’
home, with the intent to disturb the Avendanos, as shown in a
video played for the court. Marcos testified Wozniak had done
this repeatedly in the past and as recently as Easter Sunday in
2021. The trial court described the video as showing Wozniak’s
“window was open and that the radio was coming from the inside
of [her] house.”
Wozniak testified in response that she played her radio
loudly so she could hear it in her backyard, not to annoy the
Avendanos, and she only did this on “a few weekends” for a short
period of time. Further, Wozniak was “playing [the radio] to
[herself]” in her yard.
Marcos testified further that as shown on another video
taken on March 24, 2020, Wozniak opened and closed her window
repeatedly and made noises to make the Avendanos’ dogs bark.
The trial court, upon viewing the video, stated, “It appears that
someone is at the window across the way, opening and closing the
window, and the dog is barking.” However, the court stated it
could not identify Wozniak and could not discern if “she is doing
anything affirmative to cause [the Avendanos’] dog to bark.”
Marcos also testified as to a May 9, 2020 incident in which
Wozniak was hitting a fence to taunt Avendanos’ dogs. Marcos
played a video of the incident for the trial court, but the court
noted the video was blurry and the court could not tell who was
shown in the video. Marcos testified further that on June 6, 2020
Wozniak ran “across the fence” with a bag to make the dogs bark.

5
The trial court viewed a video of the incident, but again, the court
could “barely [see] somebody in the corner” of the video.
Fanny testified that on multiple occasions Wozniak was
“taunting and provoking” the Avendanos’ dogs, and the dogs’
“normal reaction” was to bark. Fanny stated Wozniak engaged in
the taunting behavior in person or as reflected in the videos 20 or
more times.
Wozniak denied the Avendanos’ videos showed her
taunting the Avendanos’ dogs or that she did anything with the
fence that caused the dogs to bark. Further, the Avendanos were
cited for excessive dog barking in October 2019 and March 2020.
Wozniak offered into evidence, and the court admitted, two
citations from County of Los Angeles Department of Animal Care
and Control.4 The trial court described the 2019 citation as
imposing a $60 fine for “a black and white pit bull,” and the 2020
citation involved “a large dog, black and white pit bull.”

2. Easter Sunday 2021 Confrontations
On April 4, 2021 the Avendanos and Wozniak had two
confrontations. According to Marcos, the Avendanos were
celebrating the Easter holiday with family and guests when
Wozniak started to honk her car horn. When Marcos’s son-in-law
approached Wozniak, she called him a “piece of trash” and a
“bastard.” Santamaria likewise testified that at some point

4 The two animal control citations were marked as Exhibits
C and D and admitted by the court, but they are not in the
appellate record. We augment the record with the animal control
citations, which are attached to Wozniak’s opening brief. (Cal.
Rules of Court, rule 8.155(a)(1)(A).) It is not clear from the
citations whether they are for one or two barking dogs.

6
during the Easter celebration, Wozniak “screamed at the son-in-
law that he was trash” and called him “bad words” like “bastard”
in front of his young daughters. Further, according to
Santamaria, Wozniak was standing behind a tree using her cell
phone to videotape the Avendanos.
According to Fanny, the police came to their home around
2:00 p.m., about an hour after the family gathering started. The
officers “came in and out” of the party after about five minutes,
checking on what was happening at the Avendanos’ home
without raising any concerns. The gathering continued until
about 5:00 or 6:00 p.m.
Fanny and Santamaria testified about a second incident
that occurred later the same day. Marcos played a video taken at
approximately 8:00 that evening, which he asserted showed the
confrontation.5 The trial court noted after viewing the video of
the interaction between Fanny and Wozniak, that it could hear
someone in the video “yelling, saying they will get a restraining
order” and “‘screw you.’”
Fanny testified Wozniak was upset with her because Fanny
had parked her car on the street in front of Wozniak’s house.
Wozniak told Fanny that she had called the police for the second
time that day. According to Fanny, Wozniak crawled through the
bushes and videotaped the Avendanos in their backyard.
Wozniak did this on April 4 as well as a “couple of months”
earlier. Further, Fanny and Marcos testified that Wozniak called
Fanny a “’wetback.’”6 Marcos testified Wozniak called him or a

5 The trial court read the time stamp into the record at the
hearing.
6 The term “wetback” is “used as an insulting and
contemptuous term for a Mexican who enters the U.S. illegally.”

7
family member by a pejorative name “four or five times” since
they moved into their home.
Wozniak testified the Avendanos were having a “very loud
party” that started on Friday and continued until Sunday.
Further, the son-in-law had parked his car in a manner blocking
Wozniak’s driveway, and she was forced to honk her horn for
several minutes before he moved his car. Wozniak called the
police because the party was continuing when Wozniak left her
home that evening. Wozniak left “to get away from the noise” of
the party.
In response to the trial court’s inquiry of Wozniak whether
she called the Avendanos any names, Wozniak responded the
Avendanos had followed her to the entrance to her driveway and
were “taunting [her] and calling [her] names—bitch and all of
that, various names.” Wozniak explained, “I did return a
negative name to them after they called me bitch and other
names.” Wozniak admitted she had videotaped the party, but she
claimed she did not videotape the Avendanos on other occasions.

3. The trial court’s findings and order
At the conclusion of the hearing, the trial court found
Marcos met his burden of proof, explaining the “plethora of
detailed incidents that [Marcos] has detailed fall into the
category of disturbing the peace.” The court explained that

(See Merriam-Webster's Online Dict. (2022)
[as of
July 7, 2022].) “The term [w]etback originated in the
circumstances that many [Mexican nationals] swim or wade
across the Rio Grande River to enter the United States.” (Diaz v.
Kay-Dix Ranch (1970) 9 Cal.App.3d 588, 590, fn. 1.)

8
“having the police repeatedly called on you where you’re just
having a family gathering—whether it rises to the level of a party
or not, but during daylight hours when you’re entitled to have
family parties,” is disturbing the peace. The court recounted the
incidents in which Wozniak called the police to report noise,
including reporting noise from Avendano’s son’s breathing
machine, children playing “in the backyard during the day,” and
the Avendanos celebrating the Easter holiday, which “just
sounded like somebody having fun at a party.” The court
observed that even if the Avendanos had “used karaoke,” there
was no evidence the celebration continued into the night when a
noise ordinance would have required “things to be quiet.”
The trial court added that “[i]f there weren’t the pejorative
statements, I probably would not issue the restraining order. . . .
To me if this was something that was always going on, the issue
about the noise, there is no reason to throw race in it.” Up until
that time, the Avendanos were “trying to manage” the dispute,
but Wozniak’s name calling including “bastard” and “wetback”
was “just unreasonable.” Further, even if Fanny called Wozniak
a “bitch,” Wozniak calling Fanny a “‘wetback’ . . . was an
unreasonable response for what was going on at the time.” And
Fanny’s response of “‘go screw you’” was to the “‘wetback’”
comment.
The trial court issued a three-year restraining order
barring Wozniak from contacting Marcos, Fanny, Santamaria,
and Marcos’ son and granddaughter, calling law enforcement for
noise complaints “unless after hours specified by [the] municipal
code,” and speaking to the Avendanos’ guests. The order does not
prevent Wozniak from calling animal control to report the
Avendanos’ dogs’ excessive barking.

9
C. Wozniak’s Request for Reconsideration
On May 14, 2021 Wozniak filed a request for
reconsideration and to dismiss the restraining order. Wozniak
submitted video from a doorbell camera on a neighbor’s house
that she obtained after the May 4 hearing. Wozniak argued the
video showed a car associated with the Avendanos blocking her
driveway on April 4, 2021, corroborating her testimony as to why
she was honking her horn that day and showing that Marcos
misled the court when he denied his son-in-law had blocked the
driveway.7 On June 29 the trial court denied the request, finding
Wozniak failed to meet the requirements for reconsideration
under section 1008.8
Wozniak timely appealed.

DISCUSSION

A. Governing Law and Standard of Review
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 as
provided in this section.” Harassment is defined as “unlawful

7 The June 17, 2021 declaration of Luis Castillo, the neighbor
who provided the doorbell camera video, stated, “This video
shows a red van pulling in parallel to the driveaway [at
Wozniak’s address] at the time of 6.10 PM on 4/4/21, Easter
Sunday, which blocked that driveway.” The video is not in the
appellate record.
8 The trial court’s June 29, 2021 minute order denying the
request for reconsideration indicates the matter was called for a
hearing at which the parties testified. The record on appeal does
not include a transcript of the June 29, 2021 hearing.

10
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.” (§ 527.6, subd. (b)(3).)
A 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, including following or
stalking an individual, making harassing telephone calls to an
individual, or sending harassing correspondence to an individual
by any means, including, but not limited to, the use of public or
private mails, interoffice mail, facsimile, or email.” (§ 527.6,
subd. (b)(1).) “Section 527.6 was enacted ‘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 v. Wills (2005) 125 Cal.App.4th 1400, 1412;
accord, Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1227,
disapproved on other grounds in Conservatorship of O.B. (2020)
9 Cal.5th 989, 1010, fn. 7 (O.B.).)
The trial court may issue a restraining order only after
finding “by clear and convincing evidence that unlawful
harassment exists.” (§ 527.6, subd. (i).) “The statute does not
require the court to make a specific finding on the record that
harassment exists, nor does it require specific findings of the
statutory elements of harassment as defined in subdivision (b).”
(Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1112,
disapproved on other grounds in O.B., supra, 9 Cal.5th at p. 1010,
fn. 7; accord, Cooper v. Bettinger (2015) 242 Cal.App.4th 77, 92.)
Rather, the granting of the restraining order “necessarily
implies” the trial court found there was conduct constituting
harassment under section 527.6. (Ensworth, at p. 1112

11
[upholding issuance of injunction under section 527.6 based on
implied finding appellant engaged in harassing course of conduct
that caused substantial emotional distress where appellant
followed her prior psychologist, surveilled her house, called her
repeatedly, and sent her threatening letters after the
psychologist terminated treatment].)
On appeal from the issuance of a restraining order, “‘[t]he
appropriate test . . . 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 v. Stampolis (2016) 248 Cal.App.4th
484, 497; accord, R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188.)
“[W]hen presented with a challenge to the sufficiency of the
evidence associated with a finding requiring clear and convincing
evidence, the [reviewing] court must determine whether the
record, viewed as a whole, contains substantial evidence from
which a reasonable trier of fact could have made the finding of
high probability demanded by this standard of proof.” (O.B.,
supra, 9 Cal.5th at p. 1005.) “[T]he 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.”
(Id. at p. 996.)

12
B. Substantial Evidence Supports the Trial Court’s Findings
Under Section 527.6
Wozniak contends the trial court erred in issuing the
restraining order because the court relied on “one single
[un]substantiated event”—the Easter Sunday confrontation
during which Wozniak used a racial slur—in granting the
restraining order, which did not constitute a “course of conduct”
of harassment under section 527.6. In making this argument,
Wozniak points to the trial court’s comment that “‘[i]f there
weren’t the pejorative statements, I probably would not issue the
restraining order.’” Wozniak asserts further she only used
pejorative language during the April 4 confrontation in response
to being threatened and stalked, and the Avendanos using
profanities against her. The trial court’s order was supported by
substantial evidence from which the court could have made the
finding of clear and convincing evidence of harassment. (See
O.B., supra, 9 Cal.5th at p. 1005.)
Contrary to Wozniak’s contention, the Avendanos testified
there were numerous additional instances from 2019 through
2021 in which Wozniak called the police to the Avendanos’ home
for minimal noise, played her radio loudly to annoy the
Avendanos, agitated the Avendanos’ dogs, and called one of the
Avendanos a racial name (for example, on multiple occasions
saying “shut up, Mexicans”). Further, the court admitted videos
of four incidents that Marcos claimed showed harassment.
Although the videos were not entirely clear as to what was
occurring, according to the trial court’s description, at least two
generally corroborated the Avendanos’ testimony.
As discussed, the trial court was not required to state
expressly each instance that supported its decision to grant the
restraining order, and the granting of the restraining order

13
“necessarily implies” the trial court found there was conduct
constituting harassment under section 527.6. (Ensworth v.
Mullvain, supra, 224 Cal.App.3d at p. 1112.) Further, in addition
to the Easter weekend confrontations, the trial court found a
“plethora of detailed incidents . . . [that] fall into the category of
disturbing the peace,” citing the testimony that Wozniak called
the police to report the noise from the Avendanos’ son’s breathing
machine and on another occasion the children playing in the
backyard. Thus, although the court reasoned the confrontations
on Easter Sunday in which Wozniak used pejorative names
tipped the scale in favor of a restraining order, the court did not
base its issuance of the restraining order on this single occasion,
instead finding Wozniak engaged in a harassing course of
conduct.
Moreover, Wozniak’s contention the restraining order must
be reversed because she made the racial slur to Fanny on Easter
Sunday in response to “being stalked, harassed and intimidated
by the Petitioners and their family members” lacks merit.
During cross-examination, Wozniak testified that Santamaria
and Fanny “were following me onto the entrance of my driveway”
and “were taunting me and calling me names” like “bitch and all
of that.” However, the trial court found that even if Wozniak
made a racial slur in response to Fanny calling her a “bitch,” this
“was an unreasonable response for what was going on at the
time.” We defer to the court’s finding, made after viewing the
video of the Easter Sunday confrontation, that the conduct by the
Avendanos was not sufficient to justify Wozniak’s use of a racial
slur in response. (See O.B., supra, 9 Cal.5th at p. 996; City of
Glendale v. Marcus Cable Associates, LLC, (2014)

14
231 Cal.App.4th 1359, 1385.)9 And, of course, a racial slur can
never be justified.

C. The Trial Court Properly Denied Wozniak’s Motion for
Reconsideration
Wozniak contends the trial court erred in denying her
request for reconsideration because the court failed to consider
the new evidence and law Wozniak presented, including the video
from Castillo’s doorbell camera and the Los Angeles County noise
ordinances. The court did not abuse its discretion.
Section 1008, subdivision (a), provides that a party may
make a motion to reconsider a prior order “based upon new or
different facts, circumstances, or law.” “‘A party seeking
reconsideration also must provide a satisfactory explanation for
the failure to produce the evidence at an earlier time.’” (Yolo
County Dept. of Child Support Services v. Myers (2016)
248 Cal.App.4th 42, 50; accord, Torres v. Design Group Facility
Solutions, Inc. (2020) 45 Cal.App.5th 239, 243.) “[T]he moving

9 Wozniak also contends it was a violation of her “due process
rights not to have the opportunity to review the [Avendanos’]
videos” before they were presented at the hearing. She argues
that if she “had the ability to view the [Avendanos’] videos and
then comment on them, she would have been able to prove that”
her comment was made in response to members of the Avendano
family “threatening her, stalking her and using profanities
toward her.” However, Wozniak did not object to the Avendanos’
evidence at the hearing and therefore forfeited her right to
challenge the evidence on appeal. (Crouch v. Trinity Christian
Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1020 [“The
failure to object or move to strike evidence at trial forfeits any
challenge to the evidence on appeal.”]; Duronslet v. Kamps (2012)
203 Cal.App.4th 717, 726.)

15
party’s burden is the same as that of a party seeking new trial on
the ground of ‘newly discovered evidence, material for the party
making the application, which he could not, with reasonable
diligence, have discovered and produced at the trial.’” (Baldwin
v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198
(Italics omitted).) “We review the trial court’s ruling on a motion
for reconsideration for abuse of discretion.” (Torres, at p. 243;
accord, Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331,
1339.)
With respect to the video from Castillo’s doorbell camera,
Wozniak failed in her request for reconsideration to explain why
she was not able to produce the video at the time of the hearing.
Wozniak contends in her opening brief that she “had no idea [the
video] existed at the time of the . . . hearing.” However, the video
from April 4, 2021 clearly existed at the time of the hearing on
May 4, 2021, and Wozniak did not present any evidence it was
unavailable to Wozniak at that time. (See Yolo County of Child
Support Services v. Myers, supra, 248 Cal.App.4th at p. 50
[upholding trial court’s denial of motion for reconsideration
because “the documents Myers submitted appear to have been in
existence or at least available to him at the time” he submitted
his first motion].)
In her request for reconsideration, Wozniak argued the two
noise ordinances showed she “was fully within her rights in
calling the police” for the Avendanos’ “noise disturbance.”
However, the two ordinances do not constitute “new law” under
section 1008. (See Baldwin v. Home Savings of America, supra,
59 Cal.App.4th at p. 1198.) Moreover, Wozniak’s response to
Marcos’s request for a restraining order referred to the “loud
parties,” “loud karaoke music, singing and screaming from
Petitioner’s household,” and thus, there is no reason Wozniak

16
could not have presented the noise ordinances to support her
position at the hearing. There is likewise no merit to Wozniak’s
argument that the trial court misstated the law in referring only
to noise limitations applicable at night. The fact the court
observed the celebration occurred during the day, not at night,
does not mean the court was unaware of noise restrictions that
applied during the day.10

DISPOSITION

The order is affirmed. Wozniak is to bear her own costs on
appeal.

FEUER, J.
We concur:

PERLUSS, P. J.

SEGAL, J.

10 In her supplemental memorandum in support of her motion
for reconsideration, Wozniak argued she “verified that the noise
coming from Petitioner’s karaoke on April 4, 2021 definitely
exceeded 50 decibels,” the limit imposed by Los Angeles County
Code ordinance section 12.08.39. But Wozniak failed to provide
evidence at the hearing (or in her motion for reconsideration) of
the decibel level of noise generated by the family celebration.

17