Filed 1/6/23 Saks v. Landi CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

WAYNE JOSEPH SAKS,

Plaintiff and Appellant,

v.

PASCAL JEAN-BAPTISTE LANDI,

Defendant and Respondent.

B311806

(Los Angeles County

Super. Ct. No. 20STRO06439)

APPEAL from an order of the Superior Court of 

Los Angeles County, Joshua D. Wayser, Judge. Affirmed.

Fisher, Klein & Wolfe and David R. Fisher; Macias Counsel 

and Sean E. Macias, for Plaintiff and Appellant.

BDG Law Group, Robert D. Bergman and Richard A. Fond,

for Defendant and Respondent.

 ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳
2

Appellant Wayne Joseph Saks appeals from the trial court’s 

order denying his request for a civil harassment restraining order 

pursuant to Code of Civil Procedure1 section 527.6. Saks sought 

the restraining order against respondent Pascal Jean-Baptiste 

Landi, who struck Saks in the face following a dispute over a 

parking space in the condominium complex where they both 

owned units.

The trial court concluded that Saks failed to demonstrate a 

likelihood of future harm, a required element for obtaining a 

restraining order against Landi under section 527.6. Because we 

find the evidence does not compel a contrary conclusion, we 

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Saks’s restraining order request

Saks filed a request for a civil harassment restraining order 

against Landi. Saks alleged that on November 19, 2020, as he 

was walking to his car in the parking structure of a condominium 

complex where he and Landi each owned units, Landi verbally 

accosted him for parking in one of Landi’s designated parking 

spaces. Saks further alleged that despite his efforts to avoid a 

confrontation with Landi, Landi struck him in the face causing 

serious injury. 

Although Saks’s restraining order request was based 

primarily on the parking structure incident, he also alleged that

Landi had engaged in unspecified harassment of him in 

connection with Landi’s role as a board member of their 

1 All subsequent undesignated statutory references are to 

the Code of Civil Procedure.
3

homeowners association. Saks’s request also identified two 

lawsuits that he and Landi were involved in related to the 

condominium complex. In one of the lawsuits, Saks was suing 

Landi and their homeowners association.

The same day that Saks filed his request, the court issued a 

temporary restraining order against Landi requiring him to stay 

away from Saks. The temporary restraining order remained in 

effect until February 3, 2021, the date of a continued hearing on 

Saks’s request for a restraining order.

II. Landi’s response to Saks’s restraining order request

Landi filed a response to Saks’s restraining order request. 

Landi’s response accused Saks of, among other things, 

antagonizing residents of their condominium complex. Landi 

claimed Saks had boarded elevators without a mask during the 

COVID-related safety and health orders. He also described the 

lawsuit that Saks filed against the homeowners association and 

its board members, including Landi, as “baseless.” 

Regarding the November 19, 2020 incident, Landi claimed 

that he was in the parking structure and noticed that Saks had 

parked in one of his parking spaces. Saks then appeared, and 

Landi asked him to move his car. Landi also asked Saks to wear 

a mask while in public places in the building. According to 

Landi, Saks “aggressively approached” him and said he could use 

Landi’s parking space “if he wanted to.” Landi asked Saks to 

“move away from him,” but Saks refused, leading “Landi to 

push/hit Mr. Saks away from Mr. Landi, as he was rightfully 

fearful of what Mr. Saks might do next.”

Landi also included five declarations with his response. 

According to the response, the declarations were from “other 

owners of condominiums in the building corroborating that Mr. 
4

Saks is an aggressive individual who enjoys causing problems,

and getting people to react to his actions.”

III. Restraining order hearing

The court held a two-day video hearing regarding Saks’s 

restraining order request. We briefly summarize the hearing.

A. Landi’s testimony

Saks first called Landi as an adverse witness. Landi 

testified that he had lived in the 11-unit condominium complex 

since August 2014. Landi was a board member of the 

homeowners association and former board president. His 

condominium unit was on a different floor and the other side of 

the building from Saks’s unit.

Prior to the incident on November 19, 2020, Landi had not 

interacted much with Saks. Landi recalled only one interaction a 

few weeks before the incident when Saks entered an elevator and 

coughed at Landi as Landi exited. Landi generally tried to avoid 

Saks because he believed Saks had been antagonistic with 

contractors in the building. Landi’s wife had also complained to 

Landi about Saks. Citing these events, Landi described the 

parking structure incident as a “culminating event.” 

Landi denied that the lawsuit Saks had filed against him 

and the homeowners association was “a source of significant 

stress in the building.” He explained that while the lawsuit could 

affect insurance rates, none of the individual homeowners had 

paid any attorney fees. At the time of the parking structure 

incident, Landi was unaware that the day before Saks had given 

deposition testimony in the lawsuit. 

On November 19, 2020, Landi went to the parking 

structure to get his bicycle and noticed that Saks had parked in 
5

one of Landi’s spaces.

2 Saks then entered the parking structure. 

Landi immediately told Saks that Saks had parked in one of his

spaces, and asked Saks to wear a mask in the building. Landi 

recalled that Saks aggressively approached him and said 

something like Saks “had the right to use any parking spot that 

he wanted.”

Coincidentally, Saks was recording video footage on his 

phone as he entered the parking structure. According to the 

footage, Saks did not make such a statement. The footage, which 

is aimed at the ground and does not clearly show Saks or Landi, 

depicts that after Landi asked Saks to move his car, Saks denied 

knowing the parking space belonged to Landi. Landi responded, 

“Are you fucking kidding me?” After Saks asked Landi to “relax,” 

Landi appears to have responded, “You should wear a mask.”

Landi testified he then “pushed” Saks in the face because 

Saks refused to move away from him.

3 Saks did not strike or 

push back at Landi. The video footage briefly shows Saks 

bleeding from his lip. Landi testified that he was surprised to see 

Saks wounded.

After the incident, Landi stayed about 10 to 20 yards away 

from Saks and followed him out of the parking structure. Landi 

2 Landi had five spaces in the parking structure. One of 

those spaces, where Saks had parked, was separate from the 

other four and adjacent to Saks’s two spaces. Landi testified that 

Saks had never parked in Landi’s space before.

3 Landi denied striking Saks with his fist. A police report 

from the incident states that Landi “punched Saks with his fist 

one time on the right side of [Saks’s] mouth.” The video footage 

does not show Landi strike Saks.
6

called the police because he saw that Saks was hurt, and he 

waited for the police to arrive. While he waited for the police, 

Landi stayed on the opposite side of the street from Saks because 

he knew that Saks wanted Landi to stay away from him. The 

police later arrested Landi. Landi did not apologize to Saks after 

the incident but was sorry he struck Saks and agreed that he had 

lost his control. 

After imposition of the temporary restraining order, Landi

was able to enter and exit the condominium complex without 

having any contact with Saks. The building has a private 

elevator to Landi’s unit, but it was not in service at the time of

the hearing.

B. Saks’s testimony

Saks testified next. He had owned a unit in the 

condominium complex since 2005. Because Saks’s unit had water 

damage, he did not reside there either at the time of the incident

or the hearing. At the time of the hearing, Saks had only begun 

to obtains bids to repair the unit and expected the repairs to take 

“some time.” Before the incident, Saks visited his unit five to six 

times a week.

Saks described his relationship with Landi as “aggressive 

and violent.” Even so, he testified that the only violent incident 

with Landi was in the parking structure on November 19, 2020.

4 

Saks testified that he generally tried to avoid Landi.

4 Saks also described an incident several months before the 

hearing when Landi “tried to run into [him] on the sidewalk” 

with his bicycle while Saks was outside near the building’s

driveway. Landi denied doing so.
7

At the time of the hearing, Saks was suing the homeowners 

association, Landi, and others.

5 Saks’s counsel described the 

lawsuit as involving “bad faith handling of repairs and 

misconduct.” 

On November 18, 2020, one day before the parking 

structure incident, Saks gave deposition testimony in the lawsuit. 

According to Saks’s hearing testimony, during the deposition he

said that Landi had mistreated the owner of the unit next to 

Saks’s unit; that Landi had stopped repair work from being 

performed on Saks’s unit; and that Saks believed Landi was 

“picking on [him] for years because [he is] gay.” Landi was not 

present at the deposition.

On the morning of November 19, 2020, Saks went to the 

condominium complex to retrieve some belongings from his unit. 

Parking spaces in the building are marked with the number of 

the corresponding unit. Until that morning, however, Saks was 

unaware he had only two parking spaces in the building. Saks 

did not park in either of those spaces because his former 

partner’s car was there already and he did not have enough room. 

5 Saks asks that we take judicial notice of the second 

amended complaint in Saks, et al. v. Pink, et al., Los Angeles 

Superior Court case No. 19SMCV00289; and the second amended 

complaint and cross-complaint in Siderman, et al. v. Pink, et al., 

Los Angeles Superior Court case No. 19SMCV01637. We decline 

to take judicial notice because Saks fails to establish these 

pleadings were before the trial court, and because these 

pleadings are not germane to the disposition of this appeal. (See 

Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 

657, 687 fn. 10 [declining to take judicial notice “of matters that 

were not before the trial court” and that were “irrelevant to the 

disposition of this appeal”].)
8

Saks thus parked in an available space adjacent to his spaces 

that, unbeknownst to him, belonged to Landi.

At the time of the incident, Saks was carrying some bags 

and his dog and walking to his car in the parking structure. As 

Saks entered the parking structure he saw Landi, who shouted at 

Saks about using his parking space.

6 Saks tried to avoid Landi, 

but Landi confronted him. Saks asked Landi to calm down, but 

Saks saw Landi take “what [he] believed to be his metal bicycle 

lock in his fist” and hit Saks in the face with it.

Saks started bleeding and was in shock. He tried to call 

911 but did not have cell phone service. As Saks started to exit 

the parking structure, he noticed Landi walking his bicycle next 

to him. According to Saks, Landi shouted that “he didn’t want 

[Saks] in the building” and that “he was sick of the fucking 

lawsuit,” and only “changed his tone” as they neared an area with 

security cameras. Landi, however, denied yelling at Saks as they 

exited the parking structure.

6 Saks testified that he believed Landi was waiting for him in 

the garage. When asked why he believed that, Saks testified, “I 

think because there had been the deposition less than 24 hours 

before where I spoke specifically against him. He had seen that I 

had arrived in the morning as I usually do, pretty much the same 

time, and he was waiting there, standing next to his bicycle, and 

he attacked me.” When asked whether it was “normal to see” 

Landi in the garage, Saks responded, “Well, I didn’t say it’s 

abnormal to be in the garage, but it’s only the two of us at the 

moment that really parked down there since the other units are 

vacant except for one other penthouse.” When asked whether he 

knew if Landi was aware of what happened at the deposition the 

day before the parking structure incident, Saks testified, “I do not 

know 100 percent, no. I know by his actions.”
9

After exiting the parking structure, Saks and neighbors 

called 911. Police and emergency medical personnel arrived soon

afterwards. Saks also contacted his attorney, who arrived and 

took photographs of Saks’s injury.

Saks suffered blunt force trauma from the incident and had 

plastic surgery later that same day to treat an injury to his lip. 

He needed 17 stitches and has had five follow-up procedures to 

treat the injury since then. He also suffered a chipped tooth, and 

unspecified injuries to his head and neck.

Saks now fears for his safety and makes sure to be 

accompanied whenever he returns to the condominium complex. 

He had returned to the building only five or six times after the 

incident and did not see Landi. Saks explained that in addition 

to Landi’s private elevator, there are stairs in the building that 

go directly from Landi’s unit to Landi’s parking spaces. Saks 

never uses those stairs; he uses a different staircase on the 

opposite side of the building.

C. Court’s ruling

At the conclusion of Saks’s case, Landi’s counsel attempted 

to introduce the five declarations that were attached to his 

response to the restraining order request. The court explained 

that it would accept the testimony in the declarations if the 

witnesses were available to testify subject to cross-examination.

Landi attempted to call only one such witness, but the 

witness had technical difficulties connecting to the video hearing. 

Landi therefore did not call any witnesses.

In its ruling, the court observed that while a single act of 

“ ‘unlawful violence’ may be sufficient to support a [civil 

harassment restraining order], such an act, in and of itself, does 

not entitle a petitioner to a [civil harassment restraining order].” 
10

Rather, “in addition to finding that a respondent has engaged in 

‘harassment,’ a trial court must also find reasonable probability 

of future harm absent an injunction.”

The court acknowledged that Saks and Landi lived in the 

same building and “are in the midst of other unrelated litigation,” 

but found that there was not “credible evidence of prior abuse or 

any abuse that occurred after the incident.” The court further 

noted that Landi was “upset about [Saks] not wearing his mask 

on the property and parking in his parking spot. While that does 

not of course justify the conduct, it is part of the overall context.” 

The court also emphasized that the “parties have had 

significantly limited prior interaction; petitioner does not stay at 

the building currently and there is more than one way in and out 

of the building, although not the garage. Also, Respondent has 

his own dedicated elevator in and out of his unit at the building. 

Respondent also called the police about the incident and his 

testimony credibly explained his lapse in judgment.”

Based on these facts, the court found the matter 

distinguishable from Harris v. Stampolis (2016) 248 Cal.App.4th 

484 (Harris), which affirmed the issuance of a restraining order 

after “five separate incidents of aggression by a middle-school 

student’s parent against the school’s principal.” Instead, it 

compared the case to Russell v. Douvan (2003) 112 Cal.App.4th 

399 (Russell), “in which the appellate court reversed the grant of 

a restraining order on the ground there was no substantial 

evidence of a threat of future harm following a single incident of 

harassment by an attorney who had forcibly grabbed opposing 

counsel by the arm after a hearing.” The court acknowledged the 

incident here was worse than in Russell in light of Saks’s 

significant injury, but emphasized that there was no additional 
11

personal or property damage other than the parking structure 

incident. Last, the court did not find “persuasive under the 

circumstances the testimony that [Saks] is currently in fear of 

[Landi].”

The court concluded, “Given the lack of past interaction, 

and that this was a one time incident,” Saks had “not met his 

significant burden of proof under Section 527.6 and thus his 

request for a [civil harassment restraining order] is denied.”

Saks timely appealed.

DISCUSSION

Saks contends substantial evidence does not support the 

trial court’s conclusion that a restraining order was unwarranted 

due to the lack of past interaction between Saks and Landi and 

because this was a one-time incident. He further contends the 

trial court misconstrued section 527.6 and applicable caselaw. 

Last, he contends the trial court improperly considered excluded 

evidence in denying his request for restraining order.

I. Applicable law and standard of review

Section 527.6, subdivision (a)(1) provides that “[a] person 

who has suffered harassment as defined in subdivision (b) may 

seek a temporary restraining order and an order after hearing 

prohibiting harassment as provided in this section.” Subdivision 

(b)(3) defines “[h]arassment” 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.” 

Subdivision (b)(7) defines “unlawful violence” as “any assault or 

battery, or stalking as prohibited in Section 646.9 of the Penal 
12

Code, but does not include lawful acts of self-defense or defense of 

others.”

“A temporary restraining order may be issued with or 

without notice, based on a declaration that, to the satisfaction of 

the court, shows reasonable proof of harassment of the petitioner 

by the respondent, and that great or irreparable harm would 

result to the petitioner.” (§ 527.6, subd. (d).) Such a temporary 

restraining order “shall remain in effect, at the court’s discretion, 

for a period not to exceed 21 days, or, if the court extends the 

time for hearing under subdivision (g), not to exceed 25 days, 

unless otherwise modified or terminated by the court.” (Id., 

subd. (f).) “Within 21 days, or, if good cause appears to the court, 

25 days from the date that a petition for a temporary order is 

granted or denied, a hearing shall be held on the petition.” (Id., 

subd. (g).) 

At the ensuing hearing, “the judge shall receive any 

testimony that is relevant, and may make an independent 

inquiry. If the judge finds by clear and convincing evidence that 

unlawful harassment exists, an order shall issue prohibiting the 

harassment.” (§ 527.6, subd. (i).) Because an injunction “serves 

to prevent future injury and is not applicable to wrongs that have 

been completed,” the petitioner must also show a high probability 

of future harm. (Russell, supra, 112 Cal.App.4th at pp. 402–404; 

see also Harris, supra, 248 Cal.App.4th at p. 499 [“An injunction 

restraining future conduct is only authorized when it appears 

that harassment is likely to recur in the future.”]).

We review a trial court’s denial of a request for a 

restraining order for abuse of discretion (Salazar v. Eastin (1995) 

9 Cal.4th 836, 849–850), and the trial court’s express and implied 

factual findings for substantial evidence (R.D. v. P.M. (2011) 202 
13

Cal.App.4th 181, 188). Under the substantial evidence standard 

of review, “we accept all evidence supporting the trial court’s 

order,” “we completely disregard contrary evidence,” “we draw all 

reasonable inferences to affirm the trial court,” and “[w]e do not 

reweigh the evidence.” (Schmidt v. Superior Court (2020) 44 

Cal.App.5th 570, 581.) A party challenging the trial court’s 

findings under this standard of review bears an “ ‘ “enormous 

burden.” ’ ” (Id. at p. 582.)

II. The trial court did not err in determining there was 

insufficient evidence harassment was likely to recur

A. Scripps, Russell, and Harris

As noted above, “[a]n injunction restraining future conduct 

is only authorized when it appears that harassment is likely to 

recur in the future.” (Harris, supra, 248 Cal.App.4th at p. 499, 

citing Russell, supra, 112 Cal.App.4th at pp. 402–403.) Because 

Saks’s appeal focuses primarily on this issue, and in particular 

the decisions in Scripps Health v. Marin (1999) 72 Cal.App.4th 

324 (Scripps), Russell, and Harris, we briefly discuss those cases.

In Scripps, the defendant, upset over the discharge of his 

mother from the hospital, abruptly left a meeting with hospital 

staff. (Scripps, supra, 72 Cal.App.4th at p. 328.) As he left the 

meeting, the defendant “pulled the door open, striking [a hospital 

employee] with the door and pushing her into the wall.” (Ibid.) 

Finding that the son was the cause of “unlawful violence” within 

the meaning of section 527.8, a parallel statute to section 527.6, 

the court imposed a restraining order. (Scripps, at p. 330.)

The Court of Appeal reversed, rejecting the hospital’s 

argument that “once the court finds by clear and convincing

evidence a defendant was the precipitating cause of an act of 
14

unlawful violence,” the plaintiff is entitled to a restraining order. 

(Scripps, supra, 72 Cal.App.4th at pp. 330–331.) Rather, 

concluding the statute was not intended to alter the “underlying 

nature and purpose of a prohibitory injunction,” the court held 

that a plaintiff must “establish great or irreparable harm would 

result” without issuance of the restraining order “because of the 

reasonable probability the wrongful acts will be repeated in the 

future.” (Id. at p. 331.) 

The court also ruled that the evidence was insufficient to 

show the defendant’s “wrongful acts would be repeated in the 

future.” (Scripps, supra, 72 Cal.App.4th at p. 336.) It noted that 

there were no prior or subsequent threats of violence by the 

defendant; that the temporary restraining order had been

vacated based on the son’s assurance that he would stay away 

from the hospital pending the evidentiary hearing; and that the 

mother had changed her insurance coverage, making it unlikely 

she would return to the hospital. (Ibid.)

In Russell, an attorney followed his opposing counsel into 

an elevator after a court appearance and forcefully grabbed his 

arm. (Russell, supra, 112 Cal.App.4th at p. 400.) Finding that 

the attorney committed battery, the trial court granted an 

injunction under section 527.6, even though the attorneys 

advised the court at a hearing on the restraining order that “they 

do not ‘regularly do business with [each other] or oppos[e] each 

other.’ ” (Ibid.)

Reversing the trial court, the Court of Appeal ruled the 

trial court “misinterpreted section 527.6 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 p. 401.) Relying on Scripps, the court reasoned 
15

that “an injunction serves to prevent future injury and is not 

applicable to wrongs that have been completed. An injunction is 

authorized only when it appears that wrongful acts are likely to 

recur.” (Id. at p. 402.) The Court of Appeal further explained

that “[w]hen the court concluded that a single act of unlawful

violence required the issuance of an injunction, it construed its 

role too narrowly. 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.)

Finally, in Harris, the Court of Appeal affirmed the 

issuance of a restraining order pursuant to section 527.6 against 

a parent who had threatened the principal at his son’s school. 

(Harris, supra, 248 Cal.App.4th at pp. 497–503.) Quoting 

Scripps, the court stated that the “ ‘determination of whether it is 

reasonably probable an unlawful act will be repeated in the 

future rests upon the nature of the unlawful violent act evaluated

in the light of the relevant surrounding circumstances of its 

commission and whether precipitating circumstances continue to 

exist so as to establish the likelihood of future harm.’ ” (Id. at 

pp. 499–500.)

In concluding sufficient evidence supported the trial court’s 

implied finding that there was a likelihood of future harm, the 

court noted the parent was a school board member and was 

usually the one to pick up his son from school. (Harris, supra, 

248 Cal.App.4th at p. 501.) It also cited testimony that, in 

addition to threatening the principal, the parent had displayed 

“aggressive and disrespectful behavior towards various 

witnesses,” including a school police officer and security officer; 
16

the parent had attempted to move toward the principal during a 

tense exchange, requiring the school police officer to move 

between them; and that, after threatening the principal, the

parent defied the principal’s directive not to come onto the school 

campus. (Ibid.)

B. The evidence does not compel the conclusion 

that harassment is likely to recur7

According to Saks, substantial evidence does not support 

the trial court’s findings that a restraining order was

unwarranted “[g]iven the lack of past interaction” between him

and Landi and the “one time” nature of the parking structure 

incident. We understand both findings to support the trial 

court’s implicit conclusion that Saks failed to show “that 

harassment is likely to recur in the future.” (Harris, supra, 248 

Cal.App.4th at p. 499.) Indeed, Saks argues the trial court erred 

because the “uncontroverted evidence presented to the trial court 

demonstrated a high probability of future harm.”

We disagree. As described below, Saks relies on a onesided version of the evidence that fails to account for the facts 

and inferences contradicting his argument. That approach is at 

odds with our role in reviewing the trial court’s findings for 

substantial evidence. (See Schmidt v. Superior Court, supra, 44 

Cal.App.5th at p. 581 [court applying substantial evidence review 

7 Landi filed a motion with this court for leave to present 

new evidence regarding events occurring after the restraining 

order hearing. Landi contends the new evidence, which he cited

in his brief, supports the conclusion that harassment is not likely 

to recur. We denied that motion on August 22, 2022, and thus we 

do not rely on the new evidence submitted by Landi.
17

“completely disregard[s]” evidence contrary to the trial court’s 

order, “draw[s] all reasonable inferences to affirm the trial court,” 

and “do[es] not reweigh the evidence”].)

For example, Saks first focuses on Landi’s testimony that 

the parking structure incident was a “culminating event” based 

on their interaction in the elevator a few weeks earlier, Landi’s 

belief that Saks antagonized contractors in the building, and 

complaints about Saks from Landi’s wife. Saks argues this 

testimony confirms that there were “numerous past interactions”

between him and Landi, contrary to the trial court’s finding of a 

“lack of past interaction.” Saks further argues that Landi’s 

testimony proves the parking structure incident was not a “one 

time” event.

Saks’s argument ignores that in the six years he and Landi 

owned units in the building before the parking structure incident, 

these were the only “interactions” Landi cited in describing the 

reason he struck Saks, other than that Saks parked in his space. 

Two of these three “interactions” did not even involve face-to-face 

contact between them. Furthermore, Saks and Landi each 

testified that prior to the incident they generally avoided one 

another. Given this paucity of interaction, substantial evidence 

supported the trial court’s finding that there was a “lack of past 

interaction” between Saks and Landi.

Saks’s argument also ignores that there were no violent 

incidents between him and Landi either before or after the 

parking structure incident.8 Substantial evidence thus supported 

8 Saks argues that in addition to the parking structure 

incident, Landi tried to run into him with Landi’s bike several 

months prior to the hearing. However, Landi denied that 
18

the trial court’s finding that the parking structure incident was a 

“one time” event.

Next, Saks argues the threat of future harm is 

demonstrated by Landi’s failure to apologize for the incident or 

testify that an attack would not happen again. Again, Saks 

ignores that Landi testified he was sorry for his conduct and that 

he agreed he had lost his control, factors the trial court was 

entitled to weigh in examining the likelihood of future harm. 

(See Scripps, supra, 72 Cal.App.4th at p. 335, fn. 9 [“the 

determination of whether it is reasonably probable an unlawful 

act will be repeated in the future rests upon the nature of the 

unlawful violent act evaluated in the light of the relevant 

surrounding circumstances of its commission”].) 

Saks also points to the pending lawsuits involving Saks, 

Landi, and the homeowners association. He argues those 

lawsuits were at the “core” of the parking structure incident, and 

that as those lawsuits continue so too will the interactions 

between him and Landi. While those lawsuits may require them 

to interact in the future, the possibility of future interaction 

between them does not compel the conclusion that harassment is 

likely to recur. That is especially so given Landi’s testimony that 

the pending litigation was not a source of stress. Landi was not 

even aware Saks had provided deposition testimony in the 

litigation the day before the incident.9

accusation and we “resolve all factual conflicts and questions of 

credibility in favor of the prevailing party.” (Harris, supra, 248 

Cal.App.4th at p. 499.)

9 Saks highlights his testimony that as he and Landi exited 

the parking structure, Landi allegedly shouted that “he was sick 
19

Saks raises a similar argument regarding the ongoing 

repairs at the condominium complex, contending “[c]ontractors 

will continue to be present at the [c]omplex and within the [u]nit 

which Landi had testified gave rise to the first attack.” Even if 

Landi believed Saks had antagonized contractors in the past, 

Saks fails to explain how the continued presence of contractors at 

the building compels the conclusion that further incidents of 

harassment are likely to recur. In fact, Saks had not even seen 

Landi on the five or six occasions he visited the building following 

the incident.

Saks challenges several more aspects of the trial court’s 

findings. He argues the trial court found that Saks “was trying to 

stay away from the building” after the parking structure incident

and contends that this should “not bear in Landi’s favor.” He 

similarly argues the trial court should not have credited Landi 

for calling the police after the incident.

Regarding the first issue, the trial court’s decision did not 

find that Saks was “trying to stay away from the building;” it 

found that Saks did “not stay at the building currently,” implying 

that Saks did not reside there. That was true before the incident 

too. In any event, it was reasonable for the trial court to infer 

of the fucking lawsuit.” Although Landi did not deny making this 

specific statement, he denied yelling at Saks as they exited the 

parking structure. The trial court’s decision did not address this 

factual issue, but concluded that there was no “credible evidence 

of . . . any abuse that occurred after the incident.” Even 

assuming the trial court credited Saks’s testimony regarding 

Landi’s statement, we find that substantial evidence supported 

the trial court’s conclusion that harassment was not likely to 

recur. 
20

that Saks’s infrequent visits to the building after the incident 

reduced the likelihood that harassment would recur. Concerning 

the second issue, it was likewise reasonable for the trial court to 

infer from Landi’s prompt call to the police after the incident—

resulting in his own arrest—that Landi was unlikely to engage in 

harassment in the future.

Finally, Saks notes that Landi’s private elevator was not in 

service at the time of the hearing and faults the trial court for 

failing to recognize that when it observed in its decision that 

Landi “has his own dedicated elevator in and out of his unit at 

the building.” We find no error. It was reasonable for the trial 

court to infer that Landi’s private elevator would reduce the 

likelihood that he and Saks would interact in the building. And 

even if Landi’s private elevator was out of service at the time of 

the hearing, Saks fails to explain why we should infer it would 

remain out of service indefinitely. (Harris, supra, 248 

Cal.App.4th at p. 499 [appellate court “indulge[s] all legitimate 

and reasonable inferences to uphold the finding of the trial court 

if it is supported by substantial evidence”].)

In sum, we conclude that substantial evidence supported

the trial court’s implicit conclusion that Saks failed to prove that 

harassment was likely to recur.

C. The trial court did not misapply section 527.6

or applicable caselaw 

Saks raises several unpersuasive arguments in support of 

his claim that the trial court misapplied section 527.6 and the 

caselaw construing it.

Saks notes that at the start of the hearing the trial court 

stated to the parties, “And I guess the question that I have is isn’t 

this just one day, so what’s my course of conduct?” The trial 
21

court then directed the parties to consider Leydon v. Alexander

(1989) 212 Cal.App.3d 1 (Leydon), where the Court of Appeal, 

applying a former version of section 527.6, reversed the issuance 

of a restraining order based on a single incident of abusive 

conduct.

Prior to the second day of the hearing, Saks filed a brief 

with the trial court clarifying that Leydon concerned a former 

version of section 527.6 that defined “harassment” as a “knowing 

and willful course of conduct” (Leydon, supra, 212 Cal.App.3d at 

p. 4; see Stats. 1987, ch. 1493, § 1), and that section 527.6 had 

since been amended to broaden the definition of “harassment” to 

also include “unlawful violence” and “a credible threat of 

violence” (§ 527.6, subd. (b)(3)). Saks’s brief further stated that, 

as emphasized in Russell, “a single act of unlawful violence is 

sufficient for the issuance of an injunction, and, without more, 

may alone [form] the basis to conclude that future harm is 

possible.” 

On the second day of the hearing, the court stated that it 

had received Saks’s brief and that it “would generally agree that 

[Saks’s counsel] has accurately stated the state of the law with 

respect to the issue, and then it just becomes a factual context.” 

Despite that, Saks now argues that “it is clear that the trial court 

never moved off of its belief that ‘one time’ incidents cannot result 

in the issuance of a [civil harassment restraining order].”

We disagree. As recounted above, the trial court agreed 

that Saks’s brief, which explained that a single incident of 

unlawful violence could be the basis for a restraining order under 

section 527.6 where there was also a likelihood of future harm, 

had “accurately stated the state of the law.” 
22

Moreover, the trial court’s decision does not cite or rely on 

Leydon. Nor does it suggest that Saks was required to prove a 

“course of conduct” to establish “harassment” under section 527.6.

Rather, just as Saks urged in his brief to the trial court, and in 

accordance with Russell, the trial court’s decision states that “a 

single act of ‘unlawful violence’ may be sufficient to support” a 

civil harassment restraining order, so long as the trial court finds 

a “reasonable probability of future harm absent an injunction.” 

(See Russell, supra, 112 Cal.App.4th at p. 404.)

Saks also argues that Scripps and Russell incorrectly 

construed section 527.6 by requiring a plaintiff to show 

harassment is likely to recur in the future. According to Saks, 

section 527.6 reflects the Legislature’s decision “that one who is 

the subject of an assault and battery, as defined in the statute, as 

a matter of law, was entitled to protection in the future.”

As an initial matter, Saks appears to have forfeited this 

argument by failing to raise it to the trial court. (In re Dakota H.

(2005) 132 Cal.App.4th 212, 221 [“A party forfeits the right to 

claim error as grounds for reversal on appeal when he or she fails 

to raise the objection in the trial court”].) As best we can tell, 

Saks asked the trial court to follow Scripps and Russell, not 

depart from them. His argument thus also falters pursuant to 

the doctrine of invited error, which “is applicable to a situation 

where a party invites the court to rule against it on a particular 

issue, and then challenges the merits of that ruling on appeal.” 

(Diaz v. Professional Community Management, Inc. (2017) 16 

Cal.App.5th 1190, 1204.)

In addition to these procedural reasons for rejecting Saks’s

argument, we see no reason to disagree with Scripps and Russell 

that a plaintiff seeking a restraining order under section 527.6 
23

must demonstrate that harassment is likely to recur in the 

future. That conclusion follows sensibly from the principle 

explained in Scripps that “injunctive relief lies only to prevent 

threatened injury and has no application to wrongs that have 

been completed.” (Scripps, supra, 72 Cal.App.4th at p. 332; see 

also Russell, supra, 112 Cal.App.4th at p. 402 [rejecting trial 

court’s understanding that section 527.6 calls “for the issuance of 

an injunction upon the finding of a single act of past violence,” an 

interpretation “too narrow in view of the purpose of a prohibitory 

injunction”].)

Furthermore, and tellingly, Saks fails to cite any authority 

calling Scripps or Russell into question. Instead, he argues that a 

restraining order is “qualitatively different” from an injunction 

based on the observation in Byers v. Cathcart (1997) 57 

Cal.App.4th 805 (Byers), that section 527.6 “is a specialized 

statute providing an expedited procedure for issuance of limitedscope and limited-duration injunctions in instances of 

‘harassment.’ ” (Byers, at p. 807.) But that observation hardly 

suggests that Scripps and Russell incorrectly determined that 

because a restraining order under section 527.6 was injunctive 

relief, a plaintiff must show that harassment is likely to recur. 

Saks also draws our attention to the statement in Byers 

that the “statute is limited to protecting only those who have 

suffered” harassment as defined in the statute. (Byers, supra, 57 

Cal.App.4th at p. 811.) According to Saks, this statement 

suggests “this limited purpose injunction may also be issued for 

past acts.” We are not convinced. Because Byers did not consider 

the issue addressed in Scripps or Russell, namely, whether a 

single act of “unlawful violence” may justify a restraining order 

without evidence that such harm was likely to recur, the passage 
24

from Byers that Saks relies on cannot bear the weight he places 

on it.10 (See People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10

[“It is axiomatic that cases are not authority for propositions not 

considered.”].)

Saks further argues the trial court erred because this case 

is more like Harris, which affirmed the issuance of a restraining 

order, than Scripps or Russell, which reversed the issuance of 

restraining orders. He argues that the victims of harassment in 

Scripps and Russell did not suffer serious injury like he did; that 

the incidents at issue in those cases were “spontaneous,” unlike 

here, where the parking structure incident was the culmination 

of conflict between him and Landi;

11 that unlike the defendants 

in those cases, here Landi gave “demonstrably false” evidence 

about the nature of the incident; and that unlike in those cases, 

10 Byers addressed whether a trial court properly issued an 

injunction under section 527.6 that prevented the plaintiff, who 

had an easement to use the defendant’s driveway, from parking 

her car along the driveway. (Byers, supra, 57 Cal.App.4th at 

pp. 807–810.) The court concluded that the trial court erred 

because there was no evidence that plaintiff had engaged in 

“harassment” within the meaning of section 527.6 by parking her 

car along the defendant’s driveway. (Byers, at p. 812.)

11 In his effort to distinguish this case from Scripps and 

Russell, Saks suggests that Landi “waged a campaign of 

destruction upon his property.” While we acknowledge Saks

provided brief testimony that Landi had prevented certain 

repairs from being performed on Saks’s property, we think such 

testimony fell short of demonstrating “a campaign of 

destruction.” Saks also highlights his belief that Landi’s conduct 

towards him was attributable to Landi’s “perceived homophobia.” 

We find no support in the record for Saks’s belief.
25

he and Landi owned units in the same building and continue to 

be litigation adversaries. Saks further argues that this case is 

like Harris, because there was a history of tension between Saks 

and Landi and “there is no doubt that future interactions” 

between them will occur.

We are not persuaded that differences between this case 

and Russell and Scripps, or similarities between this case and 

Harris, compel the conclusion that the trial court abused its 

discretion in declining to issue a restraining order. The trial 

court observed the testimony of Saks and Landi, evaluated their 

credibility, and carefully weighed the evidence in concluding that 

Saks failed to establish harassment was likely to recur. (See 

Russell, supra, 112 Cal.App.4th at p. 404; Scripps, supra, 72 

Cal.App.4th at p. 336.) It is not our role to reweigh that evidence

or reevaluate witness credibility. (Schmidt v. Superior Court, 

supra, 44 Cal.App.5th at pp. 581–582 [under substantial evidence 

review appellate court does “not reweigh the evidence” and 

credibility determinations “are subject to extremely deferential 

review”]; Harris, supra, 248 Cal.App.4th at p. 499 [“We resolve 

all factual conflicts and questions of credibility in favor of the 

prevailing party”].) And as we have described already, 

substantial evidence supported the trial court’s conclusion that 

Saks failed to establish that harassment was likely to recur.

D. The trial court did not err by relying on 

excluded evidence

Saks contends the trial court committed reversible error by 

relying on evidence that was excluded from the record.

We briefly recount the background relevant to Saks’s 

argument. In Landi’s response to Saks’s restraining order 

request, Landi claimed that Saks had “a history of abusing the 
26

legal system” and stated that Saks had “been the plaintiff or 

defendant in at least 17 different litigation matters in the last 20 

years.” Landi’s response also included five declarations from 

other residents in the condominium complex accusing Saks of

being litigious.

At the start of the hearing, the trial court stated it would 

“admit the admissible portion of [Landi’s] response into 

evidence,” but that it “would not necessarily take in the thirdparty declaration[s].”

Later at the hearing, during a discussion regarding the 

admissibility of Saks’s video evidence, Saks’s counsel emphasized 

that there was a “long course of events” that led Landi to strike 

Saks, including “multiple lawsuits pending, in which these are 

parties.” Shortly after, the trial court noted to Saks’s counsel 

that “your guy is litigious, apparently, and I have got 

declarations.” Saks’s counsel promptly objected. As noted 

already, because none of the witnesses who had provided the 

declarations testified at the hearing, none of the declarations 

were admitted in evidence.

On the second day of the hearing, during a discussion 

regarding the relevance of a cross-examination question 

concerning whether Saks had considered filing a civil lawsuit 

against Landi based on the incident, the trial court made the 

following statement: “I need to be careful about something. I did 

say before, in a question, something to the effect of I thought you 

had suggested in your paperwork that [Saks] was litigious and 

then there was the response back, I think I have the issues 

squarely at hand, and I wouldn’t be relying on or considering 

those issues. I don’t think they are necessary under the 

circumstances.”
27

Saks contends the trial court’s statement to his counsel 

that “your guy is litigious” constitutes reversible error. According 

to Saks, it demonstrates the trial court relied on the claim in 

Landi’s response that Saks had “been the plaintiff or defendant 

in at least 17 different litigation matters in the last 20 years,”

even though no such evidence had been admitted at the hearing. 

Saks likewise contends that the trial court’s statement shows 

that it considered the declarations attached to Landi’s response, 

even though the court excluded them from evidence.

We are not persuaded.12 We presume the court “ ‘is able to 

distinguish admissible from inadmissible evidence, relevant from 

irrelevant facts, and to recognize those facts which properly may 

12 We are also unpersuaded by Saks’s argument that the trial 

court erred by making the following comments during the 

hearing: “Well, look, let’s get back to the questioning. Mr. Fisher, 

I think what I would caution, though, is I am still concerned 

when you live in a condo and you are a real estate broker and you 

park in someone else’s spot when you are in the middle of a 

lawsuit with them. Look, I am not condoning what happened, 

but I am saying it is one of the factors, and when your guy says 

‘just chill out’ in the middle of litigation, and he is parked in the 

guy’s spot when he has his own spot, why would he park in the 

guys’ spot?”

According to Saks, the trial court’s “shocking focus on the 

evidence was just plain wrong and for the trial court to employ 

the phrase ‘just chill out’ as a factor against [Saks] is neither 

substantial evidence supporting its decision nor a basis upon 

which the trial court should have denied the injunction.” We find 

no reversible error. As we have explained already, the trial 

court’s ruling is supported by substantial evidence and is based 

on a correct application of section 527.6. 
28

be considered in the judicial decisionmaking process.’ [Citation.] 

Stated another way, a trial court is presumed to ignore material 

it knows is incompetent, irrelevant, or inadmissible. [Citations.] 

So, if the court states it will ignore evidence, it will be presumed 

that it did so. [Citations.]” (In re Marriage of Davenport (2011) 

194 Cal.App.4th 1507, 1526.)

Here, the trial court stated on the record that it would not 

rely on or consider Landi’s unsupported claim that Saks was 

litigious, and no part of the trial court’s decision suggests 

otherwise. We therefore presume the trial court considered only 

admissible evidence in issuing its decision. (See In re Marriage of 

Davenport, supra, 194 Cal.App.4th at p. 1526.)
29

DISPOSITION

The court’s order denying Saks’s motion for a restraining 

order pursuant to section 527.6 is affirmed. Saks’s request for 

judicial notice is denied. Landi is entitled to his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

RICHARDSON (ANNE K.), J.*

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.