Filed 9/20/23 Kinkade v. Aguirre CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CYNTHIA SIEBERT KINKADE,

Plaintiff and Respondent,

v.

RICHARD AGUIRRE,

Defendant and Appellant.

 D080638

 (Super. Ct. No. 37-2019-00040608-

 CU-HR-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

Kenneth J. Medel, Judge. Affirmed.

Richard Aguirre, in pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

This case involves a dispute between next door neighbors in a relatively 

confined San Diego beach community. Unfortunately, the disagreement 

became contentious enough to result in mutual restraining orders. One of the 

parties appeals, claiming his attorney’s impaired speech deprived him of a 

fair trial. We affirm because the trial judge made it clear on the record that 

he found the attorney both intelligible and competent.
2

FACTUAL AND PROCEDURAL BACKGROUND 

Defendant Richard Aguirre and the Kinkade family (plaintiff Cynthia, 

her husband Charles, and their two boys)1 have lived next door to each other 

for over a decade. Beginning in 2019,2 the Kinkade children’s backyard play 

increasingly irritated Richard. The adults made unsuccessful attempts to 

address the issue, and the controversy eventually destroyed their ability to 

constructively resolve the problems they faced as neighbors.3

Richard was bothered when the boys played lacrosse or used the large 

trampoline in their back yard. Because the fence between the two houses is 

not very tall, the children could see into Richard’s yard when bouncing on the 

trampoline. When playing lacrosse, they sometimes lost the balls over the 

fence.4 

Over time, Richard seems to have perceived these incidents as 

intentional attacks on his privacy and security, blaming Charles for allegedly 

1 Because there are multiple people involved in this case with the same 

last name, we refer to them by their first names throughout, intending no 

disrespect.

2 The record in this case does not include a transcript of the trial, and we 

presume it was not recorded. This court is in possession of the Clerk’s 

Transcript and a Settled Statement in lieu of a reporter’s transcript, so we 

gather the facts as best we can from those documents.

3 Their previous years living as neighbors were not without conflict.

In particular, disputes about loud music, noise from house projects, parties, 

guests, drug use, and pets had been sources of contention between the two 

houses in the past. Some of those concerns lingered in the acute conflict that 

started in 2019. 

4 It is clear from the record that Cynthia tried to come up with solutions 

to increase privacy between the two properties, decrease the lacrosse balls 

that might go over the fence, and otherwise address her neighbor’s concerns, 

all to no avail. 
3

inciting the children. He began recording the Kinkades, including the 

children playing in the backyard. At times, this included the children’s 

neighborhood friends who came over to play. These videos, some of which 

were submitted as part of the record in this appeal, appear to be Richard’s

attempt to document his perceived persecution. Among other things, they 

demonstrate that (1) the relationship between Charles and Richard became 

particularly contentious, (2) Richard’s recording of the Kinkades was rather 

extensive, and (3) Charles responded by taking videos of Richard.

There is less in the record about Shauna, Richard’s sister, who also 

lives at the property. But in March 2019, she obtained a temporary 

restraining order against Charles.5 Her specific dispute with Charles is less 

clear than Richard’s, but she and Charles were initially able to resolve the 

issue in April 2019 by privately agreeing to limit themselves to non-negative 

contact. In July, however, Shauna refiled a restraining order request 

alleging that Charles violated their non-negative contact agreement. Charles 

disputed the assertion. 

By August, Cynthia had become increasingly frightened by what she 

perceived to be Richard’s fixation on her family, his videotaping of her 

children and their friends, and his verbal aggression directed toward her 

children and herself. As a result, she filed a request for a civil harassment 

restraining order against Richard. Both parties obtained counsel, and as the 

action proceeded toward trial, both sides requested multiple continuances for 

various reasons. All told, the trial was delayed until February 8, 2022.

5 Temporary civil harassment restraining orders have a lower burden of 

proof than their more permanent counterparts, which must be supported by 

clear and convincing evidence. (Code Civ. Proc., § 527.6, subds. (d) and (i).)
4

At some point, Shauna’s action against Charles was joined to Cynthia’s action 

against Richard, making Charles a cross-defendant.

Cynthia and Richard each testified at the trial before Judge Kenneth 

Medel. Cynthia detailed an event in April 2020 where Richard verbally 

threatened her and her children, broadly stating that both she and her 

children were afraid of Richard and that conflicts with him had affected the 

mental health of her whole family. Judge Medel commented that he found 

her testimony credible. He added that Richard’s behavior was sufficiently 

aggravated to meet the standard for issuing a restraining order. Richard 

denied any aggression, and testified that Cynthia’s accounts were pure lies, 

fabricated for the purpose of cajoling Shauna to drop her request for a 

restraining order against Charles. 

At some point after the bulk of the evidence had been presented, Judge 

Medel paused the hearing and met with both attorneys in his chambers. 

He impressed on them that he had heard enough to know he would likely 

grant both restraining orders requests—unless the remaining evidence 

deviated substantially from what he had already heard. He wanted to make 

sure the parties appreciated the seriousness of that outcome and give them a 

final opportunity to consider the possibility of compromise before the court 

entered a judgment. Because at least one party preferred a litigated 

resolution, the hearing continued. Apparently believing that the contours of 

the evidence did not change, the judge granted both restraining orders.6

6 Because our record lacks a copy of the order that restrains Charles’s

contact with his neighbors, we do not have details about it. The order 

restraining Richard includes Cynthia, Charles, and their two sons as 

protected parties. Shauna is not named.
5

Following the court’s ruling, Richard filed a motion for a new trial in 

March 2022. Initially self-represented, he eventually obtained new counsel

who helped him refine his legal theory. As amended, the basis for his motion 

was that he was deprived of a fair trial under Code of Civil Procedure section 

657, subdivision (1)7 due to medical issues that his attorney at the hearing, 

Anthony Solare, was dealing with. Richard alleged that Solare was unable to 

competently represent him after being injured in a bicycle accident, and 

apparently suffering from “brain trauma that made his speech impaired and 

unintelligible.” The court was aware of this injury and had granted a 

continuance in January 2022 to enable Solare to recover—but by Richard’s 

account, that was not enough time for his attorney’s condition to improve 

sufficiently. In May 2022, the judge heard arguments on the new trial 

motion and denied it. Richard then appealed. Cynthia did not file a brief in 

response.

DISCUSSION

Richard offers two arguments on appeal.8 He primarily advances the 

same contention he made on his motion for new trial—that Solare’s slurred 

7 Further undesignated statutory references are to the Code of Civil 

Procedure.

8 At oral argument Richard attempted to add a third argument, 

asserting that he was denied due process because the trial court allowed him 

insufficient time to present his case. His brief contains only two arguments, 

and the term “due process” does not appear anywhere. We do not consider 

points raised for the first time at oral argument. (Let Them Choose v. San 

Diego Unified School Dist. (2022) 85 Cal.App.5th 693, 700, fn. 1.)
6

speech deprived him of a fair trial under section 657, subdivision (1).9 He 

asks us to reverse the judgment and grant him a new trial on this basis.10

A central problem with Richard’s claim is that it is contradicted by 

Judge Medel’s account of what happened, which he took pains to note in the 

court’s Addendum to the Settled Statement. The judge wrote that he was 

aware of Solare’s medical condition, had extended additional time before trial 

to account for it, and found counsel to be both up to the task of representing 

Richard and understandable to the court at the February 2022 trial. 

Specifically, he explained that “[Richard’s] attorney participated fully, 

thoughtfully, and intelligently in the proceedings . . . [where] [h]e examined 

and cross-examined witnesses, made proper objections, responded 

appropriately to objections, and made a thoughtful closing statement.” 

To the extent Solare’s speech continued to be impacted by medical issues, 

Judge Medel explained he was still “quite understandable,” and the judge

was “confident” that the attorney was “competent” and “appropriate” in his 

representation of Richard. 

Given this record, we cannot conclude that the trial court erred in

denying Richard’s motion for a new trial. Our standard of review in this 

context is well settled, and very deferential. (Lane v. Hughes Aircraft Co.

9 Section 657 permits the trial court to order a new trial for various 

reasons, including if it finds an “[i]rregularity in the proceedings of the court, 

jury or adverse party, or any order of the court or abuse of discretion by 

which either party was prevented from having a fair trial.” (§ 657, subd. (1).)

10 He also asks us to “pursue criminal perjury charges against Cynthia 

and Charles Kinkade for knowingly making false claims to the court.” This 

request falls well outside of our role. Even in reviewing criminal cases, the 

appellate court does not interfere with, let alone initiate, criminal 

prosecutions, which is the responsibility of the executive branch of 

government.
7

(2000) 22 Cal.4th 1152, 411–412.) To reverse the denial of a motion for new 

trial, we would need to be convinced that the trial court had abused its 

discretion. (Dilger v. Whittier (1917) 33 Cal.App. 15, 18.) A court does not 

abuse its discretion unless it makes a decision that no reasonable judge could 

reach. (See, e.g., Harman v. City and County of San Francisco (2007) 158 

Cal.App.4th 407, 428; see also Nishihama v. City and County of San 

Francisco (2001) 93 Cal.App.4th 298, 305 [trial court’s “decision to deny a 

motion for new trial should not be disturbed unless plainly wrong”].)

Here, there is nothing in the record to convince us that Judge Medel 

made such a mistake. To the contrary, the court fully considered the effect of 

Solare’s medical condition on his ability to represent Richard, and ultimately 

concluded that Solare was able to do so. We have no reporter’s transcript to

suggest otherwise.

Perhaps more to the point, given that Richard’s claim is based on

speech issues Solare was having at the time, the court indicated it understood

what Solare said. In a bench trial such as this one, that fact is 

determinative. It demonstrates that Solare’s impaired speech did not prevent 

him from advancing Richard’s interests at trial. Judge Medel listened to 

Solare and was able to fully consider the evidence and arguments he 

presented on Richard’s behalf before making his decision. Moreover, to the 

extent Richard argues that Solare mishandled his case by not presenting 

certain evidence or making particular arguments, there is no cognizable 

claim of ineffective assistance of counsel in a civil action. (Mendoza v. 

Superior Court (2021) 65 Cal.App.5th 988, 1002.)

Richard also argues there was no substantial evidence to support the 

trial court’s finding that he harassed Cynthia. In doing so, he asks us to 

reevaluate who told the truth at trial, teeing up the inconsistencies between 
8

his own testimony and Cynthia’s. Again, unfortunately, he misperceives our 

role. As an appellate court, “[w]e do not reweigh the evidence, resolve 

conflicts in the evidence, or reevaluate the credibility of witnesses.” (People v. 

Pre (2004) 117 Cal.App.4th 413, 421.) Here, Judge Medel already determined 

that he thought Cynthia was credible, not Richard, and we are obligated to 

defer to the trial court’s assessment of credibility and factual findings.

(Nissan Motor Acceptance Cases (2021) 63 Cal.App.5th 793, 817 [“When the 

exercise of the court’s discretion depends on how it resolves questions of fact, 

we must defer to the court’s ‘ “credibility determinations and findings on 

questions of . . . fact.” ’ ”].)

DISPOSITION

The judgment is affirmed. 

DATO, Acting P. J.

WE CONCUR:

DO, J.

KELETY, J.