Opinion
B296883
02-16-2021
VICKI SUSAN FISCHER, Plaintiff and Respondent, v. TAMMY MICHAELS WEISBERG, Defendant and Appellant.
Charles L. Fonarow for Defendant and Appellant. Vicki Susan Fischer, in pro. per., for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19STRO00813) APPEAL from an order of the Superior Court of Los Angeles County. Laura Hymowitz, Judge. Affirmed. Charles L. Fonarow for Defendant and Appellant. Vicki Susan Fischer, in pro. per., for Plaintiff and Respondent.
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Vicki Susan Fischer (Fischer) obtained a civil harassment restraining order (Code Civ. Proc., § 527.6) against Tammy Michaels Weisberg (Weisberg), who now appeals. We find no error and affirm.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
FACTS
On February 5, 2019, Fischer filed her request for a civil harassment restraining order. It alleged: Fischer works at a rent controlled apartment building where Weisberg is a tenant. Weisberg has verbally harassed Fischer for years, calling her a liar, calling her crude names, and saying such things as, "I heard you have [b]reast [c]ancer—Too bad you didn't die yet." (Capitalization omitted.) At one point, Weisberg stood close to Fischer and a third person intervened. As Fischer walked out of her office, Weisberg said that she would "go get her gun and shoot" Fischer.
Weisberg opposed, asserting that Fischer is a leasing agent who has been harassing Weisberg in an attempt to make her vacate her rent controlled apartment so Fischer can charge higher rent.
A hearing was held on February 26, 2019.
Fischer explained to the trial court that the origin of her conflict with Weisberg dates back to 2009. During that year, Fischer submitted a declaration in support of a third party's request for a civil harassment restraining order against Weisberg. Since that time, Fischer claimed, Weisberg has been "nasty," and "the false allegations, the threats, the walking past my office calling me a f***king liar [and] an ugly c***t has not stopped once." In addition, Fischer stated that Weisberg "has said horrible things about my family and she just continually badgers, harasses and stalks me on a relentless basis." The trial court asked Fischer why she finally sought a restraining order. She replied, "Because she threatened to shoot me, because it keeps escalating as much as I ignore her, as much as I stay calm."
Marjorie Allen (Allen) testified that she is Fischer's coworker at the apartment building. As relayed by Allen, she heard Weisberg say she should get a gun and shoot Fischer in the kneecaps.
The trial court questioned Weisberg, who said Fischer is lying. Weisberg described the most recent incident. She claimed that Fischer pulled into the parking lot at a high rate of speed. Weisberg told the trial court, "Had I stepped off the curb, she would have hit me and killed my dog." She admitted that she said, "'I could get a gun and shoot her kneecaps,'" but she denied saying she "should" get a gun and shoot Fischer. To explain her intent, Weisberg told the trial court that after she made the statement, a man from the apartment building said she was scaring him. According to Weisberg, she replied, "'I'm not serious. I'm trying to communicate how upset I am.'"
Mariela Lara (Lara) was called to the witness stand, and she testified that at some point in the past, she heard Weisberg say she was going to get Fischer fired. Next, Nancy Nielholland (Nielholland) testified that in January 2019, she heard Weisberg yell at Fischer, "F**k you. You f***ing c***. You f***ing liar." To Nielholland, it appeared as though Weisberg thought Fischer had done "something horribly egregious."
When the witnesses finished, Weisberg argued to the trial court that she is the victim and then made various allegations against Fischer.
The trial court stated: "I really don't believe anything that Ms. Weisberg has stated. It is very clear that she continues to have this anger towards Ms. Fischer that doesn't make any sense. It is—It is just craziness." When Weisberg wanted to "say one more thing," the trial court refused. It told Weisberg: "I believe Ms. Fischer. I believe you said these horrible things to her when she came back from cancer, going by her office and pursuing her and saying these things. And I believe the witness who was in here, Marjorie Allen, who said that [sic] I should shoot you in the kneecaps. [¶] You are very vindictive. You irrationally have anger towards this woman that you have held on to for all of these years[.]" The trial court went on to state, "I think you have some issues and you need to reflect on that and be insightful. But for certain, I don't want you harassing Ms. Fischer anymore. So, for those reasons, I am going to find that there is clear and convincing evidence of your behavior, which is certainly minimally harassing, and grant the restraining order."
This appeal followed.
DISCUSSION
I. Standard of Review.
When a civil harassment restraining order under section 527.6 is challenged on appeal, 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[.]" (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.) "But whether the facts, when construed most favorably in [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." (R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188.)
On appeal, we indulge implied findings. The doctrine of implied findings "'is a natural and logical corollary to three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error.' [Citation.]" (Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 970.) The substantial evidence standard applies to both express and implied findings of fact. (SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 462.)
II. Section 527.6.
As set forth in section 527.6, a person who has suffered harassment may seek a temporary restraining order. After a hearing, that person may obtain an order prohibiting harassment. (§ 527.6, subd. (a)(1).) Harassment is 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. (§ 527.6, subd. (b)(3).) Course of conduct harassment, which is defined in section 527.6, subdivision (b)(1), 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 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).) An order shall issue if a judge finds clear and convincing evidence that unlawful harassment exists. (§ 527.6, subd. (i).)
In general, injunctive relief will not issue unless it appears with reasonable certainty that wrongful acts will be repeated. (Gold v. Los Angeles Democratic League (1975) 49 Cal.App.3d 365, 372.)
III. Analysis of the Arguments in the Opening Brief.
In her opening brief, Weisberg offers four arguments for reversal. None have merit.
First she contends that her evidence established that Fischer was the harasser, "mak[ing] it clear that the restraining order issued by the [trial court] . . . simply cannot pass the 'smell' test." There is no such standard of review on appeal. We observe that "'[a]rguments should be tailored according to the applicable standard of appellate review.' [Citation.] Failure to acknowledge the proper scope of review is a concession of a lack of merit. [Citation.]" (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465.) We need not analyze this matter further.
Next, Weisberg suggests that the restraining order should be reversed because Fischer requested it only to aid her employer in bringing an unlawful detainer action in which Weisberg was the defendant. She cites no law establishing that this is a basis for reversal. "It is not our responsibility to develop an appellant's argument." (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1206, fn. 11.) Further, this argument is not tailored to the standard of review.
Weisberg requested that we take judicial notice of the unlawful detainer action, Shores Barrington, LLP v. Tammy Weisberg, Los Angeles Superior Court case No. 18SMUD00376. As a courtesy, we granted her request. But there is no indication that the record in the unlawful detainer action was submitted to the trial court below. "[A]s a general rule[,] [a reviewing court] should not take [judicial] notice if, upon examination of the entire record, it appears that the matter has not been presented to and considered by the trial court in the first instance." (People v. Preslie (1977) 70 Cal.App.3d 486, 493.) The grant of Weisberg's request was not intended to mean that the judicially noticed record would impact this appeal. --------
Moving on, Weisberg provides a summary of the law and tacitly suggests that this is a self-executing argument. She notes that the trial court was required to make a finding by clear and convincing evidence, and that if we apply the substantial evidence test, the question is whether the evidence permitted a reasonable factfinder to conclude that it is highly probable that a fact is true. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011 (O.B.).) But, Weisberg makes no attempt to apply O.B. She "apparently assum[es] this court will construct a theory supportive of" her appeal, but that "is not our role." People v. Stanley (1995) 10 Cal.4th 764, 793.) "One cannot simply say the court erred, and leave it up to the appellate court to figure out why. [Citation.]" (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.)
Last, Weisberg argues that Fischer was required to prove a credible threat of violence, citing section 527.6, subdivision (b)(1). Weisberg makes no attempt to apply O.B., i.e., she makes no attempt to show that there is insufficient evidence to establish a high probability that she made a credible threat of violence. That ends the analysis. Nonetheless, it bears noting that Weisberg additionally offers no arguments suggesting that there was insufficient evidence of course of conduct harassment resulting in emotional distress under section 527.6, subdivisions (b)(1) and (b)(3).
IV. Analysis of Arguments in the Reply Brief.
Only in the reply does Weisberg argue that the record does not contain sufficient evidence to permit the trial court to make a finding in favor of Fischer by clear and convincing evidence. We could deem this argument waived. Case law provides that a "'point not presented in a party's opening brief is deemed to have been abandoned or waived. [Citations.]'" (Wurzl v. Holloway (1996), 46 Cal.App.4th 1740, 1754, fn. 1.) We opt to reach the merits and explain why Weisberg's substantial evidence argument cannot prevail.
"In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a" finding. (People v. Young (2005) 34 Cal.4th 1149, 1181.) In light of O.B. and these rules, Weisberg's task is to show that Fischer's evidence was either: (1) comprised of testimony that was physically impossible or inherently improbable, or (2) insufficient to allow the trial court to conclude that its findings were highly probable.
Weisberg does not address these issues. She instead offers a series of improper arguments.
Per Weisberg, there was insufficient evidence under O.B. because the trial court "simply ignored the substantial volume of evidence submitted by Weisberg[.]" We reject this argument. The trial court found that Weisberg lacked credibility, and we do not second guess credibility findings. Aside from that, our focus is on Fischer's evidence, not Weisberg's conflicting evidence. In court below, Fischer explained that she was the victim of ongoing harassment by Weisberg. Allen, Lara, and Nielholland testified to Weisberg's hostile conduct toward Fischer. These testimonies were neither physically impossible nor inherently implausible and must be credited. If Fischer's evidence was believed and Weisberg's evidence was rejected, that permitted the trial court to find that it was highly probable that Weisberg was harassing Fischer.
Regarding a credible threat of violence, Weisberg points out that the trial court believed her when she testified that she did not own a gun. This is a red herring. The question is whether her willful statement or course of conduct would put a reasonable person in fear for her safety. As to this question, Weisberg offers no argument. Her only additional attack is this: "[T]he undisputed evidence that Fischer drove into the parking lot at a high rate of speed on the date of the incident in question and came close to hitting Weisberg and her dog was sufficient to cause Weisberg sufficient anxiety so as to cause her to make a statement, not an actual threat, but of what she should do to keep Fischer from driving into the premises at such a high rate of speed." In other words, she oddly argues that she was justified in saying that she should shoot Fischer in the kneecaps because it was "what [Weisberg] should do" to stop Fischer's unsafe driving. This statement misses the relevant issue by a wide mark because it has nothing to do with whether there was sufficient evidence that a reasonable person would have suffered fear.
Mounting an alternative attack, Weisberg contends that the trial court did not make any express factual findings. Rather, she contends, the trial court simply stated conclusions without referring to specific evidence. Weisberg is playing semantics without any profit. The trial court's conclusions were its express findings, and Weisberg has not cited any precedent that suggests otherwise. It expressly found that Weisberg made horrible statements to Fischer, Weisberg was very vindictive, she has irrational anger toward Fischer, and Weisberg made a statement to third parties stating that she should shoot Fischer in the kneecaps. Regardless, any gaps are filled by the trial court's implied findings that there was a credible threat of violence based on Weisberg's statement suggesting an intent to get a gun and shoot Fischer, and on her long history of harassing Fischer at her work place. Further, we must indulge implied findings that that there was a course of harassment by Weisberg and substantial emotional distress suffered by Fischer based on evidence that Weisberg had been harassing Fischer for years, culminating in a threat of violence.
As a final backstop to her request for reversal, Weisberg argues that the unlawful detainer action filed by her apartment building is relevant, stating, "[T]he very fact that Fischer attempted in the eviction proceedings to refute the numerous facts presented by Weisberg in the instant case, whereas such facts were ignored in Fischer's presentation before the [trial court] clearly raises the suspicion that Fischer and her cohorts at the [apartment building] believed that they were going to get a favorable ruling in the restraining order case; thus, it was unnecessary for them to bother to refute Weisberg's evidence before the [trial court]. Yet, when faced with the same allegations in the eviction action, Fischer denied all of Weisberg's factual contentions. The jury didn't believe her and rendered a verdict in Weisberg's favor."
Weisberg has not established that the record in the unlawful detainer action was submitted to the trial court as evidence at the hearing on Fischer's application for a civil harassment restraining order. Thus, that record is not relevant to our analysis of whether the trial court erred when it granted Fischer's application. In any event, Weisberg's argument fails because she does not explain, with citation to authorities, how the record from the unlawful detainer action establishes that the trial court's restraining order was not supported by substantial evidence under O.B., or how the trial court's findings were legally insufficient.
DISPOSITION
The order is affirmed. Fischer shall recover her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
ASHMANN-GERST We concur: /s/_________, P. J.
LUI /s/_________, J.
HOFFSTADT