Filed 4 / 19 / 23 Smith v. Smith CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

DEREK L. SMITH,

Plaintiff and Respondent,

v.

DANYA SMITH,

Defendant and Appellant. 2d Civil No. B321667 (Super. Ct. No. 56

- 2021

- 00558286

- CU

- HR

- VTA) (Ventura County)

Danya Smith (Danya) appeal s from an order granting
Derek L. Smith’s ( Derek) 1 civil harassment restraining order against her

. Danya contend s the restraining order must be
vacated because there was insufficient evidence that she willingly and knowingly harassed Derek

. We affirm.

1 We refer to the parties by their first na mes to avoid confusion. No disrespect is intended.2 FACT UAL AND PROCEDURAL HISTORY Danya and her now

- deceased husband Steve 2 lived next to
Derek , his wife Kari, and his two young daughters

. The parties had a dispute after Derek installed a privacy screen between their properties. A fter the dispute, Danya and Steve allegedly played loud music to harass Derek.
In September 2021, Derek requested two separate civil harassment restraining order s, one against Danya and one against Steve, alleging they “intentionally blast [ed] unbearably
loud music for hours at a time , day and nigh t, on five very large speakers aimed at [Derek]’s property. ”
T he trial court consolidated the two restraining order
actions into one evidentiary hearing. Derek presented more than

300 video recordings documenting the music coming from the speakers at all time s of day and night and photographs of the speakers pointed directly at Derek’s home

. In o ne of the videos
music blar ed from the speakers while no one was in Danya and Steve’s backyard listening to the music. In other video s music play ed from the speakers while no cars were in Danya and Steve’s driveway

, indicating they were not home. One video showed Danya and Steve leaving the house while the music was
still playing in their backyard. Other v ideos showed the music played loudly over several hours

. Derek testified the loud music began after he installed the privacy screen between his home and Danya and Steve’s home.
The music played whenever Derek and his family were at home and played “almost e very single day.” Derek testified that when
he confronted them, Steve responded that they were “going to do

2 Steve passed away in June 2022.3

what [they] want ,” and Danya “yell[ed] and scream[ed] curse words” while his daughters were standing next to him. Ventura County Sheriff d eputies testified about multiple
noise disturbance complaints

. One deputy testified that he responded to a call around midnight on a Wednesday. The deputy’s body camera footage showed that music was coming from Dany a and Steve’s b ackyard

. The deputy testified it was audible from the street and the music was “[t]oo loud for a
Wednesda y night in th at neighborhood.” The deputy’s body camera footage also showed the music was louder on Derek’s side
of the privacy screen than on Danya and Steve’s side. The footage also recorded the deput y’s interaction with Steve. When the deputy told Steve his music was too loud, Steve responded “do you see that eight

- foot fence right there ?” Another deputy testified that he responded “at least twice” to noise complaints . The deputy said he heard “loud m usic coming from” Danya and Steve’s home and could hear music

“ blaring pretty loudly from inside” Derek’s home. A few months later, the deputy returned to Derek’s home and heard music coming from Danya and Steve’s home. The deputy tried to knock on Danya and Steve’s front door, but there was no answer.
A n eighbor who lived across the street from Danya and
Steve testified he hear d loud music emanating from their house from early in the morning to around 10:00 p.m. The music played “consistently” for mo nths. Danya testified on her own behalf. She testified that she listened to music a few nights a week

. She explained the outdoor speakers were controlled by an application on her phone, which
she control led remotely. She denied that the outside speakers

were faced towards Derek’s home and that music played when no4

one was at her home

. She also said she played music at the same frequency as she did before the screen dispute

. She denied deliberately playing music to harass Derek and h is family.
A fter three days of evidence, the trial court ruled in favor of
Derek . The cour t found the music from Danya and Steve ’s home increased in frequency after the screen dispute began

. It found “clear and convincing . . . that the response for the wall and the disp ute

— the response by Danya and Steve Smith was to act in a way that was harassing and annoying to Derek and Kari Smith .” The trial court granted the five

- year restraining order s. The restraining order against Danya prohi bited her from harassing, disturbing the peace, and contacting Derek and his family

. It also prohibited Danya from “knowingly operating or causing to be operated any source of sound , or . . . ‘unreasonable noise’ on their property

. ”
DISCUSSION Danya argues there was insufficient evidence to support the trial court’s finding of harassment. She also argues the evidence only implicated her husband, and not her. We disagree. “Harassment” is defined as “[1] unlawful violence, [2] a
credible threa t 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.” ( Code Civ

. Proc

. , § 527.6, subd. (b)(3).) Before issuing a restraining order against a person, the trial court is required to find the harassment by clear and convincing evidence. ( Schraer v. Berkeley Property Owners’ Assn. (1989) 207 Cal.App.3d 719, 730.) We review the factual findings necessary to support the protective order for substantial evidence. ( Harris v. Stampolis (2016) 248 Cal.App.4th 484, 497.) “ We resolve all conflicts in the5

evidence in favor of respondent, the prevailing party, and indulge all legitimate and reasonable inferences in favor of uph olding the
trial court ’ s findings.” ( Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137

- 1138

. ) Substantial evidence supports the trial court’s finding that Danya knowingly and willfully engaged in conduct directed to alarm, annoy, or harass Derek

. The evidence includ e d photographs and over 300 videos documenting loud music playing
from her outdoor speakers directed towards Derek’s home. The
videos confirmed that m usic played at all hours of the day and night and for several hours at a time . T he m usic played even when Danya and Steve were not home or when no one was outside listening to the music

. A neighbor corroborated th at he
could hear loud music from early in the morning to 10:00 p.m. and that it played consistently for months. The evidence also
established th e music was played through an application on Danya’s phone and that she had the ability to control the music

re motely

. S everal deputies testified they were called for noise complaint s regarding the loud music

, which was audible from the

street. Th e body camera footage captured the music playing loudly over the speakers late on a weeknight and showed that it was louder on Derek’s side of the property. T he footage also captured Steve’s re sponse to the noise complaint with a comment
about the screen , indicative of hi s intent to harass Derek over the

screen dispute. Derek testified that Danya was also angry ab out
the screen and had “yell[ed] and scream[ed] curse words” at him and his family. Danya argues th e evidence does not show she engaged in harassing behavior and that there was only evidence of Steve’s6

actions

. Her argument lacks merit. Danya presented evidence at
trial

, including her own testimony denying that she engaged in harassing behavior

. Bu t t he trial court rejected it . Because we must accept the court’s credibility findings and cannot reweigh the evidence, we accept the trial court’ s resolution of conflicting evidence. ( Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 786; Conservatorship of O.B. (2020) 9 Cal.5th 989, 1008.) 3
DISPOSITION The judgment is affirmed. Respondent shall recover costs on appeal. NOT TO BE PUBLISHED.

BALTODANO, J.

We concur:

GILBERT, P. J.

YEGAN, J.

3 In her reply brief, Danya argue s for the first time there was no evidence of (1) conduct that would cause a reasonable person “substantial emotional distress ” and (2) a likelihood of future misconduct . Danya forfeited these arguments by failing to raise them in her opening brief. ( High Sierra Rural Alliance v. County of Plumas (2018) 29 Cal.App.5th 102, 111 .)R. Paul Kawai, Commissioner

Superior Court County of Ventura

______________________________

Arentfox Schiff, Malcolm McNeil, Gary Brophy and Susanne Boniadi for Defendant and Appellant. Bamieh & DeSmeth, Ron Bamieh and Natalie N. Mutz for Plaintiff and Respondent.