Filed 8/12/22 Yingling v. Fercu CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

KIMLAI YINGLING,

Plaintiff and Respondent,

v.

ADRIAN FERCU,

Defendant and Appellant. B308330

(Los Angeles County Super. Ct. No. LS029357)

APPEAL from a judgment of the Superior Court of
Los Angeles County, Michael R. Amerian, Judge. Affirmed.
Law Offices of Michael Labrum and Michael Labrum for Defendant and Appellant

. Beaumont Tashjian, Tara M. Radley and Kumar S. Raja for
Plaintiff and Respondent

.2 INTRODUCTION

In 2017 Kimali Yingling obtained a civil harassment restraining order against her neighbor in a condominium complex , Adrian Fercu. Three years later

, Yingling sought to renew the restraining order. The trial court granted the request
, and Fercu appealed. We conclude, contrary to Fercu’s assertion s , the trial court
did no t (1) err in precluding Fercu from introducing evidence he
claimed would undermine the basis of the original restraining
order or (2) abuse its discretion in finding there was a reasonable
likelihood Fercu would harass Yingling in the future. Therefore,

w e affirm the trial court’s order renewing the restraining order.

FACTUAL AND PROCEDURAL BACKGROUND

A. Yingling Obtains a Restraining Order Against Fercu Yingling and Fercu live d in different units near each other
in a condominium cooperative managed by a b oard of d irectors.
Since at least 2017 Yingling has served on the cooperative’s b oard
and regularly attend ed b oard meetings. Fercu , though not a member of the board, attended b oard meetings in 2017. In April 2017 Yingling filed a reques t for a civil harassment restraining order against Fercu

. Yingling alleged Fercu had
harassed her in various ways , including threatening her in text messages, slandering her in front of vendors and other residents, posting defamatory “ signs ” about her, and “displaying forceful and intimidating behavior” that caused her “to feel fear and anxiety in his presence.” She stated: “His presence is unsettling to the point where I’m afraid to leave my unit for fear he will be3

waiting for me. I sens e that he is extremely unpredictable.” Yingling asked for a temporary restraining order without giving
Fercu notice because she was afraid “violence would reoccur” if she gave notice and she believe d that, if she gave notice, Fercu would “demonstrate unpr edictable [and] irrational behavior and possibly retaliate. ” In April 2017 the superior court issued a temporary restraining order enjoin ing Fercu from contacting, harassing, intimidating, or threatening Yingling

. The court also ordered
Fercu to stay at l east 100 yards from Yingling, her home, workplace

, and vehicle

, and at least 20 feet away from her at
board meetings. In May 2017 the superior court held a hearing on Yingling’s request for a permanent restraining order. Fercu did not attend
the heari ng, although he was served with notice of the hearing. The trial court granted Yingling’s request and issued a permanent restraining order enjoining until May 2020 the same conduct the temporary restraining had enjoined

. Fercu did not appeal from the ord er granting Yingling’s request for a restraining order.

B. The Trial Court Renews the R estraining O rder In May 2020 Yingling filed a timely request to renew the restraining order. Yingling stated that Fercu “ still

. . . resides in close proximity to me ” and that the “ current restraining order against Adrien Fercu is the only thing that has caused him to
kee p his distance from me over the past few years and to allow me to continue to live my life. ” She stated that, “[b]efore the permanent restraining order was issued, Fercu was stalking me at my apartment, leaving threatening/vulgar notes on my4

apartment doo r and carport and screaming obscenities at me in the common areas” and that she feared “he will resume this
conduct if the order is not renewed.” She also stated: “I am still president of my cooperative’s Board of Directors and remain very
active in the community. I need to be able to freely traverse the cooperative’s property, communicate with residents and vendors, conduct board meetings and oversee management of the cooperative. Fercu is still a shareholder and resident of the cooperative and resides in close proximity to me (our units are located within the same complex). A renewed restraining order is necessary to keep Fercu from continuing to harass me and to allow me to be present in my community without his interference, threats and stalking.” In July 2020 the trial court (a different judge) held a hearing on the request to renew the restraining order. At the hearing

, counsel for Yingling asked the court to renew the restraining order because “the circumstances regarding the parties’ living con ditions” had not changed. Counsel for Yingling also argued Yingling is “still the board president. She still needs to conduct board meetings. She still needs to be able to walk the property” and “to be able to do that free of Mr. Fercu’s
harassment.” Y

ingling did not submit any evidence of new harassment by Ferc u. Fercu attempted to challenge the validity of the original restraining order. He testified that Yingling “slapped [him] in the face” in April 2017 and that he had not been served with the original petition for a restraining order. The trial court , however, preclude d Fercu from introducing evidence he claimed would
show that the court in 2017 should not have issued the restraining order. The trial court said it did not want “to5

relitig ate and rehear the facts of the hearing that gave rise to the restraining order three years ago

. So it sounds like you want to retry the case. I’m not doing that

. ” The trial court stated that

“ all of this needed to be dealt with three years ago. It’s t oo late for me to look back at why the restraining order was issued initially.” Fercu stated, “Okay.”
The trial court explained it was “ focused on whether or not
there’s a reasonable likelihood of future harassment” and asked
Fercu to address whether he and Yingling still lived in the same complex and attended board meetings in person. Fercu acknowledged that he still lived near Yingling

, but stressed that

, since the court issued the restraining order

, there had been no

new incidents of harassment. The trial court found that there

was “a reasonable likelihood of future harassment ” and that
there was “ good cause to renew the restraining order” because
both parties “ still live in the same location and there’s no
indication that either side ’s going to be moving out any time

soon .”
Fercu argued that he never harassed Yingling and that the

court was violating his rights

. The trial court stated that “the request to renew doesn’t have me go back and look at the reason

. . . the original restr aining order [was] issued. It doesn’t require there to be any new activity that is harassing. What I have to
look at is whether there’s a reasonable likelihood of future
harassment.” The trial court also stated : “ T he fact that you’re still living at th e same complex leads me to conclude that there
is. So

, I understand that you may not be happy with my decision,6

but that’s my decision.” The trial court renewed the restraining
order for five years

. Fercu filed a timely n otice of a ppeal.

DISCUSSION

Fercu argues the trial court erred in relying exclusively “ on the fact that the parties resided in the same condominium complex ” and in refus ing to consider “ evidence mitigating the initial allegations ” in Yingling’s 2017 petition for a restrai ning
order. Neither argument has merit.

A. Applicable Law and Standard of Review
Code of Civil Procedure section 527.6 governs civil harassment restraining orders. 1 A court may issue a restraining
order if the petitioner shows “ by clear and convincing evidence
that unlawful harassment exists

. ” ( § 527.6, subd. (i).) Section
527.6 defines “harassment” as “ unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously a larms, annoys, or harasses the person, and that serves no legitimate purpose .” ( § 527.6, subd. (b)(3).) The court can issue a restraining order for up to five years . ( § 527.6, subd. ( j ) (1) .) We review an order granting a request to renew a restrai ning order for an abuse of
discretion. (

Perez v. Torres

- Hernandez (2016) 1 Cal.App.5th 389,

396 ; Cooper v. Bettinger (2015) 242 Cal.App.4th 77, 90 .)

1 S tatutory references are to the Code of Civil Procedure.7 B. The T

rial C ourt Did Not Err in Relying on the Fact That Yingling and Fercu Still Lived Near Each Other
Fercu argues that the “trial court’s reliance on the fact that the parties resided in the same condominium complex is insufficient evidence to support that granting of the request t o renew the restraining order” and that the court erred by “automatically grant[ing] the renewal request without any further showing by” Yingling. The trial court did not abuse its discretion in renewing the restraining order. A restraining order “ may b e renewed, upon the request of a party, for a duration of no more than five additional years, without a showing of any further harassment since the issuance of the original order

. . . . ” (§ 527.6,
subd. (j)(1).) 2 “

A restraining order should be renewed only when the trial court finds a reasonable probability that the defendant's wrongful acts would be repeated in the future. ” ( Cooper v. Bettinger

, supra , 242 Cal.App. 4th at p. 90; see Harris v. Stampolis (2016) 248 Cal.App. 4th 484, 495.) “[R]enewal under section 527.6, subdivision (j)(1), is not automatic; instead the trial court has discretion to renew the restraining order and the duration of the restraining order.” ( Cooper

, at p. 89.)
Fercu does not argue the court erred in consideri ng how
close the parties live d to each other. S ection 526.7 does not limit
the factors a court can consider in deciding whether to renew a restraining order , instead authorizing the court to consider “ any evidence showing a likelihood of future harassment , including evidence of conduct that might not itself constitute harassment

. ” ( Harris v. Stampolis

, supra , 248 Cal.App

. 4th at p. 501 ; see § 527.6, subd. ( i) [at the hearing on a petition for a restraining

2 Fercu does not argue the five

- year renewal was too long.8

order, “t he judge shall receive any testimony that is relevant, and may make an independent inquiry ”] .) Fercu argues only that the

“ mere fact that the parties live in the same condominium complex
is not a r easonably sufficient basis for the finding that the restrained activity is likely to recur. ” Fercu provides no authority for his assertion that evidence
a restrained party and a protected party continue to live in the same vicinity is insufficient to supp ort an order renewing a restraining order. Indeed , the law is to the contrary: To renew a restraining order, the protected party need not present any evidence at all. (See Cooper v. Bettinger

, supra , 242 Cal.App.4th
at p. 91 [section 527.6 “grants the t rial court discretion to renew a restraining order based on its review of the record of the past harassment underlying the original issuance of the restraining order and without the protected party presenting any new evidence”].) Moreover, additional evi dence supported the trial court’s
order . Yingling stated not only that Fercu still lived near her, but also that she was still president of the cooperative board and that her duties required her to interact with other residents and supervise the business of the cooperative. She stated the restraining order was the only reason she was able to fulfill her duties as president. For his part, Fercu testified he had a right to attend board meetings, thus creating additional opportunities for
him to encounter and harass Yingling. (See R.D. v. P.M. (2011)
202 Cal.App.4th 181, 190 [“ Behavior that may not alone constitute an intentionally harassing course of conduct logically still might show an intention to resume or continue an already

established course of harassing conduct.” ].) F ercu also denied he had ever done anything wrong. He testified he “ d idn ’ t do9

anything to this lady ” and said

, “ What evidence? I didn’ t do anything, your honor, pleas e

. ” The tri al court could reasonably
infer from this testimony Fercu lack ed remorse for his past harassment of Yingling

, or even understood his past conduct
constituted harassment , an inference that further supported renewing the restraining order

. (See In re L.O. (2021)

67 Cal.App.5th 227, 240 [denial of past conduct is evidence of a continuing risk] ; In re Marriage of Emilie D.L.M. & Carlos C. (2021) 64 Cal.App.5th 876, 882 [“‘[o]ne cannot correct a problem one fails to acknowledge’”].)

C. The Trial Court Did Not E rr in Prohibiting Fercu from Introducing Evidence Challenging the Validity of the Original Restraining Order
Fercu also contends the trial court erred in precluding him from introducing evidence challenging the court’s decision in
2017 to issue a restraini ng order. According to Fercu, by precluding him in 2020 from introducing evidence that would
show his conduct in 2017 did not justify a restraining order , the

court violated his due process rights and was unable “to consider

a ll surrounding circumstances of the case to determine the
likelihood of future harm .”
The trial court did not err in denying Fercu’s attempts to challenge the validity of the original restraining order. “[W] here a protected party seeks a renewal of a restraining order and the

rest rained party has either failed to appeal

. . . or has lost on appeal , t he restrained party cannot challenge the findings and evidence underlying that original order [or] the validity of that
order. ” ( Cooper v. Bettinger

, supra , 242 Cal.App. 4th at p. 92.) Fercu did not appeal from the original restraining order

. Thus,10

a s Fe rcu concedes, he cannot “ challenge the evidence, findings, and validity of the original restraining order. ” Yet, that is what Fercu argues the trial court should have allowed him to do. T he
trial court properly precluded Fercu from presenting evidence

an d test imony that he claimed undermined the original restraining order

. Fercu also argues the court should have considered that “the original request for a restraining order did not allege
violence.” But Yingling did not have to allege or prove violence to obtain a restraining order ; she had to allege and prove harassment, which can be nonviolent

. ( See § 527.6, subd

. (b)(3).) In any event, there was evidence Fercu’s pre

- restraining order conduct was violent. As discussed, Yingling stated in su pport of her request for the original restraining order that Fercu “used or threatened to use violence against ” her. After issuing the original restraining order, the court ordered the sheriff to serve the order without charge because the order was “based on unlawful violence, a credible threat of violence, or stalking.”11 DISPOSITION

The order renewing the restraining order is affirmed.

SEGAL, J.

We concur:

PERLUSS

, P. J.

WISE, J. *

* Judge of the Alameda Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.