Opinion
B311906 B311907
09-26-2022
[K.H.], Appellant, v. SONYA NAVARRO, Respondent. SONYA NAVARRO, Respondent, v. [K.H.], Appellant.
Nixon Peabody, Matthew A. Richards, Tracy S. Ickes, Ryan C. C. Duckett and Stratton P. Constantinides for Appellant. Todd Schneider for Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County Nos. 21VERO00064, 21VERO00002, Marilyn M. Mordetzky, Temporary Judge. The order in case No. B311906 is affirmed. The order in case No. B311907 is affirmed.
Nixon Peabody, Matthew A. Richards, Tracy S. Ickes, Ryan C. C. Duckett and Stratton P. Constantinides for Appellant.
Todd Schneider for Respondent.
BENDIX, J.
Following a physical altercation between appellant [K.H.] and respondent Sonya Navarro, both sought civil harassment restraining orders against the other. After a hearing at which both parties testified, the trial court found Navarro's version of events more credible. The court issued a restraining order against [K.H.], and denied [K.H.]'s request for a restraining order against Navarro.
On appeal, [K.H.] contends the trial court's rulings were not supported by substantial evidence. [K.H.] further argues that body camera video from the investigating police officers, which she obtained months after the trial court's rulings, undercuts Navarro's evidence and compels a ruling in [K.H.]'s favor. [K.H.] asks us to consider the body camera video in resolving her appeals, despite that evidence never having been presented to the trial court.
[K.H.] fails to provide a satisfactory explanation why she could not have obtained the body camera footage in advance of the hearing on the restraining orders and presented it to the trial court at that time. Although she contends there was not sufficient time to do so, she does not explain why she could not have asked for a continuance. We decline to consider evidence that could have been presented to the trial court but was not.
As for [K.H.]'s substantial evidence challenges, they fail in light of Navarro's testimony and other evidence supporting the trial court's findings. Accordingly, we affirm the order granting Navarro's restraining order against [K.H.] and the order denying [K.H.]'s restraining order against Navarro.
BACKGROUND
1. Requests for restraining orders
On January 4, 2021, Navarro, in propria persona, filed a request for a civil harassment restraining order against [K.H.]. In the request, Navarro stated that she and [K.H.] lived in the same apartment building. She represented she had asked [K.H.] to move out of her way when they were on a staircase, and when Navarro went around [K.H.], [K.H.] pushed her and Navarro lost her balance. Navarro claimed [K.H.] scratched her as well. Navarro further claimed that in addition to this incident, [K.H.] had verbally harassed her for the past nine years.
Navarro attached a police investigative report indicating that Navarro had reported [K.H.]'s pushing and scratching her, and the alleged incident took place on January 3, 2021.
The trial court granted a temporary restraining order against [K.H.] on January 4, 2021, the same day Navarro filed her request.
On January 19, 2021, [K.H.], represented by counsel, filed her own restraining order request against Navarro. In an accompanying declaration, [K.H.] averred that Navarro had "regularly bullied and harassed" her over the nine years that they had lived in the same apartment complex. [K.H.] claimed that Navarro had "[o]n multiple occasions . . . threatened to beat me up," and [K.H.] had "lived in fear of [Navarro] for many years because of her obsessive behavior towards me." She claimed "Navarro's threats of violence and harassment have escalated as a result of her friends in one of the units moving out of the building," because "Navarro blames me for her friend's departure."
Regarding the January 3, 2021 incident, [K.H.] declared the following: Navarro confronted [K.H.] while [K.H.] was retrieving groceries from her car. Navarro yelled at her, saying that [K.H.] was" 'ugly'" and" 'what [[K.H.] did] to children is sick.'" Navarro eventually went back upstairs to her apartment, and [K.H.] collected her groceries and proceeded up the same stairs towards her apartment.
[K.H.]'s declaration continued: As [K.H.] was climbing the stairs, Navarro came back out of her apartment carrying a carton of eggs, and went halfway down the stairs to stand in front of [K.H.]. Navarro resumed her verbal attacks. [K.H.] "pleaded" with Navarro to leave her alone, told Navarro she was being abusive, and the situation was" 'sick.'" Navarro became enraged and "began to bash [[K.H.]] in the face with eggs using the carton like a weapon," yelling" 'that's what you get' several times."
[K.H.] attached to her request a police investigative report in which she reported a battery. The copy of the report in the appellate record is extremely faint so we cannot discern most of its content.
The trial court granted a temporary restraining order against Navarro on January 19, 2021, the same day [K.H.] filed her request.
2. Hearing on the requests
The trial court held a hearing on the parties' requests for restraining orders on February 10, 2021. Navarro appeared in propria persona, and [K.H.] was represented by counsel. The parties confirmed that everything in their restraining order requests was true and correct, and the court admitted the requests into evidence. The court then heard witness testimony.
Our summary of each witness's testimony is organized for clarity, and may not reflect the order in which the witness presented the testimony. Further, we limit our summary to the information necessary to the resolution of this appeal.
a. Navarro's testimony
Navarro testified she and [K.H.] live on the second floor of their apartment complex. The front doors of their units are two feet from each other. At the time of the hearing, Navarro had lived in the building for eight or nine years, and [K.H.] had been there longer.
Navarro had been a friend of other tenants that she believed had left the building because [K.H.] had called the police about those tenants multiple times.
Approximately a month before the January 3 incident, [K.H.] approached Navarro from behind while Navarro was crouching to lock her apartment door. Navarro was listening to music on her headphones and could not hear [K.H.]'s approach. When [K.H.] spoke, she surprised Navarro, who jumped and screamed. Navarro already suffered from back problems, and her jumping at the sound of [K.H.]'s voice hurt her back.
[K.H.] and Navarro begin screaming at one another, although there was no physical contact. Navarro admitted she used derogatory language and insulted [K.H.].
Navarro and [K.H.] had never had a confrontation like that before. After that confrontation, [K.H.] would sometimes "[g]et [Navarro] upset, say little things, piss [Navarro] off, just do random little stuff."
Describing the January 3 incident, Navarro said she pulled into the apartment driveway and saw [K.H.] getting out of her car. Navarro and [K.H.] did not say anything to one another, and [K.H.] went upstairs towards her apartment.
After making two trips up the stairs to take groceries from her car to her apartment, Navarro returned to her car and retrieved a flat of eggs and a frozen lasagna. As she was doing so, [K.H.] walked past and made a remark repeating something Navarro had said during their confrontation a month earlier. Navarro said," 'Don't start. It's Sunday,'" and [K.H.] walked away.
When Navarro got to the stairs, [K.H.] was standing on the eighth step, "facing down, waiting for me." Navarro twice told [K.H.] to move out of the way, but [K.H.] did not. Navarro then stepped past [K.H.] to go up the stairs. [K.H.] shoved Navarro, who hit the wall. [K.H.] then grabbed Navarro's fanny pack and pulled her back, causing the eggs Navarro was holding to hit the wall. Navarro swung the egg flat at [K.H.], "trying to get her hands off of me." After the struggle, both [K.H.] and Navarro were covered in egg.
Since the January 3 incident, Navarro had had no contact with [K.H.].
b. Officer Winter's testimony
Jeffery Winters was one of the police officers who responded to the scene on January 3. The apartment manager showed Winters a cell phone displaying recorded video footage from the building's security cameras. Winters did not have the video with him in court, but he described what he saw.
Winters testified the video showed [K.H.] and Navarro going to and from their cars to get groceries, passing each other a few times without coming into contact. Winters testified, "The last time, you can see [[K.H.]] walk about halfway up the stairs, stop, and wait. It appears that she was waiting for [Navarro]. She turned around. That's when [Navarro] walked up the stairs. She was holding some groceries in her left hand and a carton of eggs in her right hand. [¶] The video does not have any audio. So you can see [Navarro] face the wall, in an attempt to go around [[K.H.]], with her back towards [[K.H.]]. At that time, they both walk up the stairs. And it goes out of camera view." Winters stated the video did not show [K.H.] pushing Navarro- Navarro was able to side-step up the stairs.
During the investigation following the incident, Winters observed a two- to three-inch scratch on Navarro's chest.
c. [K.H.]'s testimony
[K.H.] testified to an ongoing pattern of Navarro verbally berating her "since the boys moved out," referring to tenants who had left the building. [K.H.] said Navarro was friendly with the tenants and blamed [K.H.] for their departure. [K.H.] acknowledged she had called the police several times about the tenants playing music loudly in their apartment.
Sometime prior to the January 3 incident, [K.H.] and Navarro had had a "screaming match," after which [K.H.] went into her apartment. Navarro stood outside mocking [K.H.] for not coming out to face her" '[b]ecause you know I'm going to beat your ass.' "
[K.H.] testified that when she and Navarro encountered each other on January 3, Navarro instantly began yelling at [K.H.], calling her ugly and commenting about a bump on [K.H.]'s nose.
As [K.H.] went up the stairs, Navarro called after her," 'What you do to children is sick.'" [K.H.] stopped and turned around, not because she was waiting for Navarro, but because she was shocked by what Navarro had said. [K.H.] retorted," 'This whole situation is sick,'" referring to Navarro's ongoing harassment. At that comment, Navarro "explode[d] with the eggs," using the flat of eggs to punch [K.H.] in the face over and over. After the eggs were gone, Navarro said," 'That's what you get'" three times, then went to her apartment.
Asked on cross-examination why [K.H.]'s declaration stated that Navarro came down the stairs to confront her, [K.H.] explained that regardless of who came up or down the stairs initially, at the time Navarro was hitting her with the eggs Navarro was above her on the staircase.
[K.H.] denied initiating any physical contact with Navarro, including shoving Navarro or pulling on her fanny pack.
After the incident, [K.H.] went to a doctor because she had inflamed welts on her neck and a headache from being punched. A letter from the doctor stated that he noted "redness of the skin of the right lateral neck area."
On January 30, [K.H.] called the police when she heard Navarro outside on the stairs saying," '[B]eat your ass.'" [K.H.] said she was afraid of Navarro.
3. The trial court's ruling
The trial court granted Navarro's restraining order against [K.H.] and denied [K.H.]'s restraining order against Navarro. The court found Navarro's testimony credible because of the level of detail and corroboration by Winter's account of the security video. In contrast, the court found [K.H.]'s testimony hard to follow, lacking detail, and inconsistent with [K.H.]'s declaration submitted with her request for a restraining order. The court noted [K.H.]'s claim that she was on the lower step and Navarro on the upper step, "which is not consistent with the officer's view of the video."
The trial court found "Ms. [K.H.] to be the aggressor in this case . . ., and that she blocked the movement of Ms. Navarro to get around her and grabbed her fanny pack, causing her to hit the wall ...."
[K.H.] timely filed two notices of appeal, one from the grant of Navarro's request for a restraining order and one from the denial of [K.H.]'s request. On our own motion we consolidated both appeals for oral argument and decision.
DISCUSSION
In her appeals, [K.H.] contends that neither the trial court's order granting Navarro's request for a restraining order nor the order denying [K.H.]'s request for a restraining order was supported by substantial evidence. [K.H.] filed a motion in both appeals requesting that we consider video evidence [K.H.] obtained after the trial court issued its rulings, and which the trial court has never seen. Because the motion to consider the video evidence plays a significant role in [K.H.]'s contentions on appeal, we address it first, and explain why we deny the motion. We then address [K.H.]'s challenges to the trial court's rulings, without consideration of the video evidence.
A. [K.H.] Fails To Show She Could Not Obtain the Video Evidence In Advance of the Hearing Before the Trial Court, and Therefore We Will Not Consider It Now
1. Additional background
According to the police report filed after the January 3 incident, the officers on the scene were "equipped with BWV's," or body cameras, "which were activated during the investigation." The police report summarized the security camera video footage about which Officer Winters later testified. The report stated the "Officers captured the video on BWV."
When the topic of the security camera footage came up at the hearing on the restraining orders, the trial court asked the parties if they had the video. Navarro said, "I tried to subpoena-," and the court interrupted and said, "It's a 'yes' or a 'no.'" Navarro said, "No." [K.H.]'s counsel said, "I tried to get it too."
On October 5, 2021, [K.H.]'s new appellate counsel served subpoenas on the Los Angeles Police Department to obtain the body camera footage from the January 3 investigation. Following some back and forth regarding the subpoenas, appellate counsel received the body camera footage on November 29, 2021. [K.H.] lodged the body camera footage with this court along with a "Motion for Consideration of New Evidence." The body camera footage shows, inter alia, an officer's hand holding a cell phone on which is displayed the security camera footage about which Winters testified.
2. Analysis
In her motion requesting we consider the video footage, [K.H.] invokes Code of Civil Procedure section 909, which authorizes a reviewing court to "make factual determinations contrary to or in addition to those made by the trial court." (Code Civ. Proc., § 909.) "The reviewing court may for the purpose of making the factual determinations or for any other purpose in the interests of justice, take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal ...." (Ibid.) [K.H.] contends the video footage "clearly disprove[s]" (boldface &italics omitted) the testimony of Navarro and Officer Winters, and that we should consider it" 'in the interest of justice' and because it is 'so conclusive that it compels the direction of a judgment in favor of appellant.' [Citations.]"
As our Supreme Court has directed, our authority under Code of Civil Procedure section 909 "should be exercised sparingly," and" '[a]bsent exceptional circumstances, no such findings should be made. [Citation.]' [Citations.]" (In re Zeth S. (2003) 31 Cal.4th 396, 405, italics omitted.)
We decline to find "exceptional circumstances" in this case, because [K.H.] offers no compelling explanation for not obtaining and presenting the video evidence to the trial court before the court issued its ruling.
Instructive is Bombardier Recreational Products, Inc. v. Dow Chemical Canada ULC (2013) 216 Cal.App.4th 591 (Bombardier). In that case, the appellant sought to challenge the trial court's quashing service for lack of personal jurisdiction by introducing on appeal discovery responses and deposition testimony obtained after the trial court had issued its ruling. (Id. at p. 604.)
The Court of Appeal refused to consider the new evidence, because all of it concerned "actions that occurred in the 1990's," and therefore "could have been obtained before the trial court ruled on the motion to quash service." (Bombardier, supra, 216 Cal.App.4th at pp. 604-605.) The appellate court declined to make its own factual determinations based on evidence that "could have been submitted timely [to the trial court] but was not." (Id. at p. 605.) "We will not overrule the trial court's factfinding responsibility and authority and reinstate litigation where it was a party who failed to bring the facts to the trial court's attention in the first instance." (Ibid.)
Here, similarly, [K.H.], who was represented by counsel during the restraining order proceedings, does not satisfactorily explain why she or her attorney could not have obtained the body camera footage in advance of the hearing and presented it to the trial court. She does not claim, for example, that she was unaware of the footage. Nor could she, given that it was noted in the police report, and indeed her counsel acknowledged at the hearing that he had tried to obtain it.
[K.H.] notes that it took almost two months to obtain the footage from the time she subpoenaed it in early October 2021. She further notes that the February 10 hearing on the restraining orders took place only five weeks after the parties filed their requests for those restraining orders. [K.H.] argues, therefore, that had she subpoenaed the footage immediately, she still would not have received it by the time of the hearing.
Missing from this argument is an explanation why [K.H.] could not have asked for a continuance of the hearing had she needed more time to obtain the video footage. It is true that Code of Civil Procedure section 527.6 requires the trial court to hold a hearing on a restraining order request within 21 or, if good cause appears, 25 days from the date the court grants the temporary restraining order. (Code Civ. Proc., § 527.6, subd. (g).) The statute, however, entitles the respondent, "as a matter of course, to one continuance, for a reasonable period, to respond to the petition." (Id., subd. (o).) Further, "[e]ither party may request a continuance of the hearing, which the court shall grant on a showing of good cause." (Id., subd. (p)(1).) Nothing in the record indicates [K.H.] would not have had sufficient time to obtain the video had she asked for a continuance, nor is there any indication the trial court would have denied such a request had it been made.
[K.H.] argues that the fact that both Navarro and [K.H.]'s counsel told the trial court they had tried to obtain the video and failed proves the video was not available at the time of the hearing. Apart from Navarro's reference to a subpoena, about which she offered no further details, the record contains no information about what the parties did to try to get the video and why they were unsuccessful. We will not infer from the parties' brief comments that it would have been impossible to obtain the video in advance of the hearing, particularly when [K.H.] herself has now demonstrated the video was obtainable through subpoena.
Accordingly, we deny [K.H.]'s motion to consider the video evidence, and exclude that evidence from our discussion of her challenges to the trial court's rulings, to which we turn now.
B. Substantial Evidence Supports the Grant of Navarro's Request for a Restraining Order and the Denial of [K.H.]'s Request for a Restraining Order
1. Governing law and standard of review
Code of Civil Procedure section 527.6 (section 527.6) governs civil harassment protective orders. That section authorizes the trial court to issue a restraining order if it "finds by clear and convincing evidence that unlawful harassment exists ...." (§ 527.6, subd. (i).)" 'Harassment'" is defined 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." (Id., subd. (b)(3).)
Further defining these terms, section 527.6 explains that" '[u]nlawful violence' is any assault or battery, or stalking as prohibited in Section 646.9 of the Penal Code, but does not include lawful acts of self-defense or defense of others." (§ 527.6, subd. (b)(7).) A" '[c]redible 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." (Id., subd. (b)(2).) A" '[c]ourse of conduct' is 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." (Id., subd. (b)(1).)
Although not expressly provided in section 527.6, case law has established that "[a]n injunction restraining future conduct" under that statute "is only authorized when it appears that harassment is likely to recur in the future." (Harris v. Stampolis (2016) 248 Cal.App.4th 484, 499 (Harris), citing Russell v. Douvan (2003) 112 Cal.App.4th 399, 402-403 (Russell).)
"We review issuance of a protective order for abuse of discretion, and the factual findings necessary to support the protective order are reviewed for substantial evidence." (Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1226, disapproved on other grounds by Conservatorship of O.B. (2020) 9 Cal.5th 989 (O.B.) "Whether the facts are legally sufficient to constitute civil harassment within the meaning of section 527.6 is a question of law reviewed de novo." (Parisi, at p. 1226.)
As noted, a trial court's findings in support of a civil harassment protective order must be made by clear and convincing evidence. (§ 527.6, subd. (i).) "When reviewing 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. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate 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." (O.B., supra, 9 Cal.5th at pp. 1011-1012.) In deferring to the trier of fact's determinations as to the credibility and weight of the evidence, we disregard evidence contrary to the judgment. (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 582 (Schmidt).)
2. Substantial evidence supports the grant ofNavarro's request for a restraining order.
In appeal No. B311907, [K.H.] contends substantial evidence did not support the trial court's issuance of the restraining order against her. We disagree.
As discussed, section 527.6 sets forth three separate bases for a restraining order: (1) "unlawful violence"; (2) "a credible threat of violence"; or (3) a course of conduct that "seriously alarms, annoys, or harasses" another person. (§ 527.6, subd. (b)(3).) In this case, there was substantial evidence that [K.H.] inflicted unlawful violence on Navarro. Navarro testified that [K.H.] pushed her against the wall and grabbed and pulled her backwards while she was trying to climb the stairs. The physical contact was significant enough that it left a scratch on Navarro's chest, observed by Winters, and Navarro felt the need to swing the flat of eggs at [K.H.] to get [K.H.] to release her.
"[T]he testimony of a single witness, even a party, may alone constitute substantial evidence." (Chase v. Wizmann (2021) 71 Cal.App.5th 244, 257.) Here, the trial court expressly stated it found Navarro's testimony credible, and corroborated by Winter's testimony. Although [K.H.] provided contrary testimony and disputed Navarro's version of events, under the applicable standard of review we disregard that contrary evidence. (Schmidt, supra, 44 Cal.App.5th at p. 582.)
The trial court made no express finding that the harassment was likely to recur. "Absent indication to the contrary," however, "we must presume that the trial court followed the applicable law and understood that it was required to find that future harm was reasonably probable." (Harris, supra, 248 Cal.App.4th at p. 500.)
This implicit finding of probable future harm also was supported by substantial evidence. The parties' testimony established escalating tension between them, so the January 3 fight, although the first physical incident between the parties, was not an isolated incident of conflict. Further, the parties are neighbors, with their front doors mere feet from one another, so it is very likely they will continue to encounter one another. Under these circumstances, substantial evidence supported the trial court's conclusion that a single incident of physical violence justified restraint of [K.H.]'s future conduct.
[K.H.] argues the instant case is analogous to Russell, supra, 112 Cal.App.4th 399, in which the Court of Appeal reversed the grant of a restraining order based on a single incident of unlawful violence. (See id. at p. 401.) In Russell, an attorney, Douvan, followed opposing counsel Russell into a courthouse elevator and "forcefully grabbed his arm." (Id. at p. 400.) Douvan otherwise had never acted violently towards or threatened Russell. (Ibid.) Russell and Douvan did not" 'regularly do business with [each other] or oppos[e] each other,'" and by the time of the hearing on the restraining order, Russell no longer represented a party opposite Douvan. (Ibid.)
The trial court nonetheless issued a restraining order against Douvan, concluding," '[T]he legislature has given a quite clear message that if there's a battery or an assault committed and that's demonstrated by clear and convincing evidence, and that's it, that I am supposed to issue an injunction.'" (Russell, supra, 112 Cal.App.4th at pp. 400-401.)
The Court of Appeal held the trial court erred in concluding "an injunction must issue based on a single incident of battery without finding a threat of future harm." (Russell, supra, 112 Cal.App.4th at pp. 401, italics added.) The appellate court stated, "There may well be cases in which the circumstances surrounding a single act of violence may support a conclusion that future harm is highly probable. That finding, however, must be made and the court failed to do so here." (Id. at p. 404.)
Russell, in which the parties rarely interacted and were no longer opposing each other in litigation, is not analogous to the instant case, in which the parties live next door to one another, and have a history of escalating conflict. The instant case is one in which "the circumstances surrounding a single act of violence may support a conclusion that future harm is highly probable." (Russell, supra, 112 Cal.App.4th at p. 404.)
Nor is there any indication in the record that the trial court here, like the trial court in Russell, erroneously believed it was compelled as a matter of law to issue an injunction based on a single act of violence. Rather, as discussed, on a silent record we will presume the trial court understood and applied the correct law. (See Harris, supra, 248 Cal.App.4th at p. 500.)
[K.H.] notes Navarro's testimony that she and [K.H.] had not interacted since the January 3 incident, and argues Navarro thus conceded [K.H.] had ceased her purported harassment. Navarro made no such concession. She merely acknowledged that in the five weeks between the January 3 incident and the February 10 hearing, a period in which both parties were subject to temporary restraining orders, there had been no further incidents. This did not constitute proof that in the absence of those restraining orders the harassment would not continue.
At oral argument, [K.H.]'s counsel argued Navarro failed to prove she suffered substantial emotional distress as a result of [K.H.]'s harassment. Under the language of section 527.6, such proof is necessary only if a party seeks a restraining order based on a course of conduct of harassment, the third of the three bases upon which a trial court may issue a restraining order under section 527.6. (See § 527.6, subd. (b)(3).) To reiterate, the statute provides," 'Harassment'" is defined 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." (Ibid., italics added.) Here, we have concluded the trial court properly issued the restraining order based on "unlawful violence," and therefore Navarro did not need to prove she suffered substantial emotional distress.
[K.H.] implicitly conceded as much, because in her opening brief in case No. B311907, she limited her discussion of substantial emotional distress to the section of her brief devoted to course of conduct harassment, and did not raise it in the section concerning unlawful violence.
At oral argument, however, [K.H.]'s counsel argued a party seeking a protective order on the basis of unlawful violence also must prove substantial emotional distress. This argument is forfeited for failure to raise it in the opening brief. It also fails on the merits. The language at issue is unambiguous: The element of "substantial emotional distress" pertains only to "course of conduct," not unlawful violence or credible threat of violence. (§ 527.6, subd. (b)(3).) Counsel acknowledged at oral argument counsel had no authority to the contrary.
[K.H.] argues we should question the evidence underlying the trial court's findings in light of the police body camera footage. As explained ante, we will not consider the body camera footage in assessing [K.H.]'s arguments.
Because we conclude substantial evidence supported issuance of the restraining order based on "unlawful violence," we do not address the parties' arguments concerning the alternative bases for granting a restraining order, threat of violence and course of conduct. (§ 527.6, subd. (b)(3).)
3. Substantial evidence supports the trial court's denial of [K.H.]'s request for a restraining order
In appeal No. B311906, [K.H.] contends substantial evidence did not support the trial court's denial of her request for a restraining order against Navarro. We disagree.
The fact that [K.H.] had the burden of proof on her request for a restraining order affects our application of the substantial evidence standard of review."' "In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden"' . . . and that party appeals,' "the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law."' [Citation.]" (Manela v. Stone (2021) 66 Cal.App.5th 90, 105.)" 'Specifically, the question becomes whether the appellant's evidence was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." [Citation.]' [Citation.]" (Dreyer's Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838.)
[K.H.] contends "the evidence in the record demonstrates that [[K.H.]] offered clear and convincing evidence to support issuance of a restraining order ...." She then lists evidence consisting of her testimony and statements in her declaration that she claims satisfied the requirements of section 527.6. This argument misunderstands the standard of review. It does not matter that [K.H.] put forth evidence supporting her case when there was contrary evidence from Navarro, discussed ante, that the trial court found credible and that supported the opposite conclusion. (Schmidt, supra, 44 Cal.App.5th at p. 582.) [K.H.]'s argument also disregards the trial court's express finding that [K.H.]'s testimony was inconsistent and not credible, a finding we may not disturb on appeal. (Cornerstone Realty Advisors, LLC v. Summit Healthcare REIT, Inc. (2020) 56 Cal.App.5th 771, 804-805 ["[W]itness credibility is a matter within the exclusive province of the trial court, not us."].)
[K.H.] argues the trial court "did not provide any material analysis of the detailed proof offered by [[K.H.]] to support her petition." The trial court, however, "need not make express findings" when granting an order under section 527.6. (Cooper v. Bettinger (2015) 242 Cal.App.4th 77, 88.) Here, the trial court found Navarro's version of events more credible than [K.H.]'s, and made rulings accordingly. [K.H.] cites no authority that the trial court had to do more.
[K.H.] again relies on the body camera footage to argue against the trial court's denial of her restraining order request, and again we disregard that footage for the reasons previously stated.
DISPOSITION
The orders in case Nos. B311906 and B311907 are affirmed. Sonya Navarro is awarded her costs on appeal.
We concur: ROTHSCHILD, P. J. BENKE, J. [*]
[*] Retired Associate Justice of the Court of Appeal, Fourth Appellate District, Division One, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.