Filed 1/5/21 Flores v. Linares CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 spec ified 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

ALMA MARIA FLORES

,

Plaintiff a nd Appellant

,

v.

GUADA LUPE LINARES

,

Defendant and Respondent

. B2 9 8528

Los Angeles County Super. Ct. No. 19STR O 02002

APPEAL from an order of the Superior Court of
Los Angeles County, Alexander C.D. Giza , Judge

. Affirmed

.

Donald A. Hilland for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

_________________________2 Alma Maria Flores appeals from the trial court’s order denying her request for a civil harassment restraining order against her landlord, Guadalupe Linares. 1 W e affirm.
BACKGROUND 2 On March 27, 2019, Flores filed a form request for a civil harassment restraining order against Linares under Code of Civil
Procedure section 527.6 (section 527.6)

. 3 She asserted Linares has harassed her, her husband, and her thr ee children daily since
M arch 1, 2019. Flores’s application included her dec laration, dated March 12, 2019. At the time, Flores and her family live d in a duplex they
had been rent ing from Linares fo r the past three years

. 4 They usually paid their rent in cash

. Flores declared t hat their roof had been leaking severely for months , but Linares and her son refused to repair it and w ould not le t the family repair it
themselves. Flores filed a formal code enforcement complaint with the City of Los Angeles in late February 2019

.

1 Linares did not file a respondent ’ s brief, so we “decide the appeal on the record, the opening brief , and any oral argument by the appellant.” (Cal. Rules of Court, rule 8.220(a)(2).)

2 “We summarize the facts in the light most favorable to the judgment.” ( Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1405 ( Brekke ) .)

3 On Marc h 12, 2019, Flores appare ntly asked the court
to enter a temporary restraining order until the scheduled April 17, 2019 hearing

. That request was denied because the facts in Flores’s application did not sufficiently show harassment

, as defined by section 5 27.6
, had occurred.

4 L inares and her son apparently lived in a separate part of the duplex.3 Flore s stated that, after she complained to the City,
Linares threatened to call ICE

— Immigration and Customs
Enforcement

— if her family did not leav e. Flores said that o n March 9, 2019, Linares offered to pay her $3,000 if the family

wo uld leave by the next day

. She also declare d Linares’s son threatens the family daily and that her children are scared.
She stated, “We have nowhere to go if [Linares] makes us leave[,] and she keeps threat e ning us with ICE and with physical force.”
Lina res filed a respon s e and supporting declaration dated April 12, 2019 , denying she threatened Flores or her family.
Linares asserted the leaking roof was due to improperly installed solar panels

. She acknowledge d Flores had complained

, and said
she had co ntacted the solar panel i nstaller to repair the roof . The
installer delayed in responding, but eventually began repairs.
Linares also stated she and Flores did not have a lease

. She said Flores began insisting on paying by check. 5 Linares
declared she w as “fearful” that “accept ing checks from these tenants would make me liable for harboring undocumented immigrants.” After consulting an attorney and learning she could not refuse payment by check , however, Linares asserted
she told Flores she would accept her checks. Linares als o declared she told Flores she would pay her family to relocate,
“so I would not be in this predicament between state and federal
la w, ” but they refused

. Linares stated Flores’s attorney began sending her and her son “threatening l egal documents demanding $1 million .” She
admit te d “ [t]hat’s when [she] called Immigration and Customs Enforcement (ICE) and sought to report their unlawful presence.” She declared she informed Flores and her family that she had

5 Flores also had asserted Linares would not accep t a check for their March rent.4

reported them to ICE , but did not threaten them

. Linares
attached the statement of damages she received. It is dated March 13, 2019

, and signed by Flores’s attorney , but the case number is blank

. Flores filed a reply declaration

. She confirmed Linares finally deposited the Marc h rent check after Flores ’s attorney
mailed it. Flores also declared Linares came to her home on April 13, 2019, to tell Flores she did not have that month’s rent check. According to Flores, that Saturday a realtor came to her door, told her she had to m ove out, served her with a notice to move in 60 days, and told Flores to be at the property at 5:00 p.m. on Monday so the realtor could show her unit. Linares told
Flores the complex was being sold and they would have to move,
but Flores declared Linares did not tell the other im migrant
families in the complex this same information. Flores stated
Linares asked the other undocumented immigrant family tenants if they knew where Flores’s husband worke d. Flores also claim ed Linares spit on her on March 7, 20 19, the day aft er Flores retained an attorney.
Both Flores and Linares appeared at the April 17, 2019 hearing, and each w as represented by counsel. Only Flores
testified

. She elaborated on points made in her declarations. She
testified that “once” Lina res told her if she “wasn ’t comfortable, to
leave

. ” Flores continued, “ [ S ] he told me to look for another place. There [were] threats. And she told me to keep [the] check for the rent, to find another place, but I didn’t find anywhere else to go.
Ever s ince I received threats.” When asked what kind of threats
she received , Flores responded, “She [Linares] threatened to deport me with ICE. She calls my daughters stupid, crazy.

. . . And finally[,] she spit on me. She came and spit on me.”
Flores prod uced two video recording s her husband took

on March 7, 2019, that she said showed Linares threatening her5

wit h ICE and spitting on her

. Flores also produced uncertified transcripts of the videos , in the original Spanish and translated
into English

. The c ourt played one of the vi deo s in open court
while read ing the transcript

. The people were not visible in the
video because it was made around 8 p.m. The court stated it did

not see “ anything that looked like ” spitting on the video. Flores
indicated the point in the video where she said she could hear Linares spitting.
Flores testified that during the recorded discussion, she
and her husband were standing in their doorway , and Linares
and her son were standing outside

. The transcript begins with
Linares stating, “Another thing, my brother, the one that’s in Norwalk, you know him, I told him about the problem, and he asked me if you were legal. I said no. Then he said if you all started problems, he would call immigration services.” After
the parties ac cuse each other of acting illegally , the transcript ends with, “[Linares] spits on [Flores].”
A second video of the same date captures the apparent continuation of the parties’ discussion. According to that transcript, 6 Flores asks Linares if she wants t he rent check,
“or no?” Linares replies, “No, no, I don’t want it. Because you know what I was going to tell you

, to not pay this month, I was going to give you this month [,] so you look for another place.” Flores responds, “No, I’m not going to look fo r another place until

you give me something written, I’m serious. ” Linares’s son then states, “If we don’t do it the good way, we’ll do it the bad way.”

6 Although the trial court did not view this second video in open court , the transcripts from both vid eos were filed with Flores’s reply , and the court confirmed it had read all of the

papers. Flores’s attorney also referred to its contents during the hearing

.6

Flores responds, “Ok. However you want, because that’s a
threat.” Linares’s son denied he had made a threat, saying,

“ [W] e d idn’t say what was going to be done specifically.” Flores then states, “Ok[,] but you said you [referring to Linares] were going to call ICE on me. Do it.” L inares replied, “I didn’t’ s ay I would, I said my brother.”
Flores’s a ttorney asked her if Lina res threatened her in other ways. She responded that Linares said if she didn’t leave willingly, Linares would report her to the immigration services.
Flores testified her family had not been living at home because they learned L inares had reported them to ICE

. She said Linares “knocks on the door,” and the kids are afraid. Linares’s attorney cross

- examined Flores. When questioned, Flores testified her last contact with Linares had been the week before the hearing when Linares came to pick up
the check , “and she was angry.” Flores said she shut the door,
and Linares knocked on it three more times and yell ed . She testified Linares did not make any threats of physical harm against her

. Linares’s attorney pressed Flores to recall a date of a specific thr eat Linares made and what she said. Flores again
referred to the March 7 , 2019 incident and described Linares

as threatening to report Flores to immigration services. When asked if Linares made that threat again , Flores responded
that Linares would alway s say the same thing, that Flores had “no papers, and she was going to report [her] to . . . immigration, and they were going to t hrow [her] out of the country.”
On cross

- examination, Flores admitted she had filed a civil
lawsuit against Linares alleging she violated certain Civil Code
sections and seeking $1 million

. Her attorney also confirmed they had filed a civil case.7 After cross

- examining Flores, Linares’s attorney moved to
dismiss the request for a restraining order on t he ground there
was no cl ear and convincing evidence of a threat of irreparable
harm. He argued there were allegations Linares violated the
Civil Code and those would be addressed in Flores’s lawsuit,
but there was “no credible objective ongoing threat th at needs

to be enjoined ,” even if the court accepted the allegations as true.
The court expressed its concern about the Civil Code provisions prohibiting landlords from threatening to disclose

or disclosing a tenant’s immigration status. Flores’s attorney
directed the court to Li nares’s admission that she had called ICE

. He argued the call only could have been in retaliation for Flores and her husband complaining about the roof. Linares’s attorney confirmed Linares called ICE, but reiterated no threats h ad been
made

. After hear ing the evidence and counsel ’ s arguments, the trial court ruled it did not find clear and convincing evidence of
harassment. The court noted “ the re are separate procedures
for redress ” for the dispute between the parties concernin g the rental property and payment of rent , and it understood “from
the testimony that those are being looked into.” The court
then indicated it was “troubled by the testimony” it had heard concerning the violation of the Civil Code sections p reventing
the use of or threat of disc l o s ing the immigration or citizenship
status of a tenant.
Nevertheless the court concluded the evidence, including the video transcripts, did not provide sufficient evidence of

a threat to disclose Flores’s immigration or citizensh ip status.
In response t o Flores’s attorney’s further argument, t he court

stat ed, “I don’t find it to be clear and convincing evidence of

a threat. It may be a preponderance. And I think there are other
avenues f

or relief of that burden of proof. ” The court continued,8

“Althoug h I’m moved by the situation, I did not find there was clear and convincing evidence. And so there’s not going to be

a civil harassment restraining order in this case. Again, this looks largely as landlord/tenant. It looks large ly related to
the Civil C ode issues. And there’s a legal proceeding that is
the appropri ate procedural path.”
DISCUSSION

1. Applicable law and s tandard of review The Legislature enacted section 527.6 “ ‘to protect the
individual ’ s right to pursue safety , happiness and privacy

a s guaranteed by the California Constitution.’ [Citations.]
It does so by providing expedited injunctive relief to victims
of harassment.” ( Brekke, supra

, 125 Cal.App.4th at p. 1412.)
Har assment is defined as (1) “unlawful viole nce, ” (2) “ a credible
thr eat of violence, ” or (3) “ 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.” (§ 527.6,
subd . (b)(3) ; Harris v. Stampolis (2016) 248 Cal.App.4th 484 .)
A “ ‘[c]ourse of conduct’ is a pattern of conduct compos ed of

a series of acts over a period of time, however short, evidencing

a continuity of purpose,” not including constitutionally protected activity . (§ 527.6, subd. (b)(1).) To obtain a restraining order under section 527.6, the

p etitioner must show by “c lear and convincing evidence that
unlawful harassment exists. ” (§ 527.6, subd. (i).) The clear
and convincing evidence standard requires a findin g of “ ‘high probability.’ ” ( Russell v. Douvan (2003) 112 Cal.App.4th 399

, 401 ( Ru ssell ) .) Moreover, becau se “ an injunction serves to prevent future injury and is not applicable to wrongs that have9

been completed ,” the petitioner also must show a high probability
of future harm. ( Id. at p p

. 400, 402 ; Scripps Health v. Marin (1999 ) 72 Cal.App. 4th 324, 332

- 333 ( Scripps Health ) [ interpreting similar statute relating to workplace violence to require court

to find petitioner at risk of further unlawful conduct by clear
and convincing evidence].)
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 factual findings

— express and implied

— for substantial evidence ( R.D. v. P.M. (2011) 202 Cal.App. 4th 181, 188 ( R.D. ) ). In so doing, “[w ] e resolve all factual co nflicts and questions of credibility in favor of the prevailing party and indulge in all legitimate and reasonable inferences to uphold the finding of the trial court if it is supported by substantial evidence which is reasonable, credible and of solid
val ue.” ( Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.) The
issue is not whether ev idence in the record supports a contrary conclusion, but whether substantial evidence , contradicted

or uncontradicted, supports the trial court’s d etermination. ( Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873

- 874 ; Rupf v. Yan (2000) 85 Cal.App. 4th 411, 429
, fn. 5 .)
2. Flores’s contentions of error Flores based her restraining order request primarily on
Linares’s purported threat to call ICE and r eport Flores and
her fami ly’s immigration status after Flores complained about the leaking roof and refused to relocate. 7 In her opening brief,
Flores contends the trial court confused civil harassment under
section 527.6 with harassment under the Civil C ode sections

7 Flores even titled her declaration in support of her petition, “Decl aration of Alma Maria Flo res re: Threats of Calling ICE

re Immigration Status

. ”10

prohibiting landlords from reporting their tenants’ immigration status for improper purposes. 8 Flores does not explain how this purported “confusion” resulted in error, however, other than to
state the court “fail [ ed ] to recognize” those Civi l Code sections. In
fact

, during the hearing, the trial court not only referred to these
Civil Code sections

, it quoted text from Civil Code section 1940.2

. From what we can discern from Flores’s brief, she seems to argue that Linares ’s viola tion of one o f these Civil Code sectio ns is sufficient to require a civil harassment restraining order under
section 527.6. 9 But a landlord’s unlawful act under the Civil

8 For example, Civil Code section 1940.2 provides, in part, that it is unlawful for a landlord to “[t]hreaten to disclose information regarding or relating to the immigration or citizenship status of a tenant” to influence her “to vacate

a dwelling.” (Civ. Code, § 1940.2, subd. (a)(5).) Section 1940.3, subdivision (b)(3) prohibits a landlord from disclosing a tenant’s immigration or citizenship status to harass or intimidate the tenant, retaliate aga inst the tenant, or influence the tenant “to vacate a dwelling.” S ection 1942.5

, on which Flores relies heavily in her brief

, prohibits a landlord from reporting

or threatening to report a tenant to immigration authorities in reta liation for the tenant’s complaint to housing authorities. ( Id

. , § 1942.5, subds. (a), (c).)

9 Flores’s opening brief on this point is un helpful to say the l east

. It recites the requirements for showing retaliatory eviction under Civil Code Section 1942 .5 and argues Linares vio lated that section. The brief then d iscusses retaliatory eviction under that section in a first person, narrative form that Flores’s attorney appears to have copied directly from an u ncited blog

- post

— including the original writer’ s advice and personal exp eriences. The brief also mentions the California Constitution ’s due process clause, but does no t state how the issue of due process is relevant here.11

Code does not automatically entitle a wronged tenant to expedited injunctive relief under section 527.6 . A civil
harassme nt restraining order will issue only upon a showing of clear and convincing evidence of harassment that is reasonably
certain to recur. ( R.D., supra , 202 Cal.App. 4th at p. 189 [ § 527.6 injunction “authorized . . . only when it app ears from the evidence
th at the harassment is likely to recur in the future ”].) And, because the issue on review turns on the appellant’s
failure of proof, the question for us “ ‘becomes whether the evidence compels a finding in favor of the appellant as a matter of
law. [Citatio ns.] 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.” ’ ” ( Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 466.) We thus examine
the evidence to determine whether it compelled the trial court

to issue a restraining order against Linares under sect ion 527.6.
We conclude i t d id not.
3. The trial court did not abuse its discretion
To establish Linares harassed her under section 527.6

, Flores testified that Linares threatened her repeatedly. 10 The evidence of repeated threats was not uncontradicte d, however. The only threat that Flores could testify to with any specificity was Linares’s threat to report Flores and her family to ICE

.

10 We presum e Flores contends Linares ’s “threats” fall under the “course of cond uct” definition of harass ment

. At the hearing, Flores never testified Linares engaged in violence or threatened her with violence , other than spitting on her . As we discuss, the court did not err in finding the evidence of the spitting incident insuffici ent

.12

As to that threat, Flores could recall specifically only the
March 7, 2019 date

. According to the March 7, 2019 video transcript, Linares repe ated her brother’s statement that he
would call immigration if Flores and her husband “started problems

. ” In both the transcript and her declaration, Linares denied having threatened Flores

. Instead, Linares admitted both
that sh e had offered to pay Flor es to relocate and that she had reported Flores’s “unlawful presence” to ICE and informed Flores
that she had done so. The trial court was “troubled” by the testimony , but did not find clear and convincing evidence of harassment un der section
527.6. T he c ourt did not find the video or its transcript to provide clear and convincing evidence of a threat to disclose immigration

status . The court also found Flores’s testimony about the threats by Linares to call ICE were not corrobora ted by the other
evidence , implicitly rejecting Flores’s testimony that Linares repeatedl y threatened Flores with reporting her to ICE

. 11 We
did not hear the parties’ tone in the video, as the trial court did,
and will not reweigh the evidence nor reassess the trial court’s
credib ility determinations. ( Pope v. Babick (2014) 229 Cal.App.4th 1238, 1246 [reviewing court is not a second trier of fact] .) Moreover, the court also noted the testimony that there
had been actual repor ting to ICE in conclud ing ther e was no clear
and convin cing evidence of a threat

. Given it found insufficient evidence of a threat, we can infer the court also concluded Flores failed to meet her burden of proof to demonstrate she was at risk
of future harm

— in other words, that Linare s’s wrongful conduct

11 We also can infe r the trial court rejected Flores’s characterization of Linares’s statement in the transcript offering Flores to skip that month’s rent to look for a new place, as a threat.13

like ly would continue

— a requirement to enjoin future conduct

. ( Russell, supra , 112 Cal.App. 4th at p p. 401

- 402.)
We conclude s ubstantial evidence supports the trial court’s implied finding that it was not likely Linares would continue to harass Flores by threa tening to report her to ICE

. By Linares’s own admission, t he deed already had been don e

. Thus, a restraining order would serve only to punish Linares’s completed wrongful act. ( Russell, supra , 112 Cal.App.4th at p. 402; Scripps Health, supra , 72 Cal

. App

. 4th at p. 332.) Accordingly, even presuming , without deciding, that Linares’s statements to Flores reflected in the March 7, 2019 video transcripts and her actual reporting of Flores to ICE constitute harassment under section

527 .6, the court did not err in refusing to issue a restraining
order against Linares

. Flores’s attorney argued Flores faced a continuing risk
of harm if Linares was not restrained because Flores could not
return home. He asserted that they “believe[ed]” Lin ares had ICE waiting for Flores at her home when F lores was told to be there to show the property. Th at argument was based on Flores’s speculation, however

. I t did not demonstrate a high probability
that Linares , going forward, would call ICE to come to the property

. Moreover, no restraining order c ould prevent ICE
from coming to Flores’s home . T hus

, injunctive relief would

not prevent the potential harm Flores feared would result from
Linares ’ s earlier report to ICE. And, as Linares’s attorney argued, it would not be reasonab le to conclude Linares would
threaten Flores with new calls to ICE when Flores had a pending lawsuit that sought damages against her

. Besides the threats to call ICE, Flores ’s attorney also argued Flores was under “cons tant harass m ent ” by Linares “coming a round to her door and things, telling her that she
hasn’t paid the rent when she has , when she’s offered the rent14

and she won’t accept it.” In her brief, Flores asserts that Linares spit on her, Linares and her son “repeatedly thr eatened her,”
and Linares harassed her “on a daily basis, knocking on her door while her husband was at work and telling her she had to get out, move, leave the unit.” The court found no evidence of spitting

on the video , however

. The video itself is not part of the record.
We presume the court’s finding is correct. ( Haywood v. Superior
Court (2000) 77 Cal.App.4th 949, 955 [reviewing court will infer substantial evidence supports the trial court’s findings where record on appeal does not contain all of the evidence submitted

to the trial court ].) The court also reasonably could conclude Flores’s testimony
of one instance where Linares continu ed to k nock on Flores’s door while shouting was insufficient to constitute c lear and convincing
evidence of a “c redible threat of violenc e” or “ a knowing and
willful course of conduct that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose .” 12 ( § 527.6, subd. (b)(3); see Leydon v. Alexander (1989) 212 Cal.App.3d 1, 4

- 5 [single in cident , although deplorab le,
insufficient to obtain injunctive relief under § 527.6] .) Nor does
the evidence compel a finding that t his behavior would continue. Again, t he trial court could infer it was improbable Linares would
continue to engage in such tactics in the face of F lores’s pending
lawsuit

. Linares may very well have called ICE in retaliation for
Flores having complained about the roof, but without clear and convincing evidence that Linares would continue to harass Flores

12 Although Flores argues she was harassed on a daily bas is by Linares knocking on her door, she only testified in any detail about the one incident. She also admitted Linares never thr eatened her with physical harm.15

by making those or other threats, a civil ha rassment restraining
order could not be issued. The trial court, therefore, did not abuse its discretion in denying Flores’s request. A nd , by the
time of the April 17, 2019 hearing, there already was a legal proceeding underway

— r equiring a lesser standar d of proof 13

— that would provide , as the trial court put it, “the appropriate procedural path” to address Flores’s claims against Linares
for violating the Civil Code.
D ISPOSITION The judgment is affirmed

. Because respondent did no t participate in the appe al, no costs are awarded to her

.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON

, J.

We concur:

LAVIN, Acting P. J. DHANIDINA, J.

13 Unless otherwise provided, the burden of proof in civil cases requires “proof by a preponder ance of the evidence.” ( Evid. Code, § 115 ; Estate of Ford (2004) 32 Cal. 4th 160, 173

. )