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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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) appeals from an order granting 

Derek L. Smith’s (Derek)1 civil harassment restraining order 

against her. Danya contends 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 names to avoid 

confusion. No disrespect is intended.
2

FACTUAL AND PROCEDURAL HISTORY

Danya and her now-deceased husband Steve2 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. After the dispute, Danya and Steve allegedly 

played loud music to harass Derek. 

In September 2021, Derek requested two separate civil 

harassment restraining orders, one against Danya and one 

against Steve, alleging they “intentionally blast[ed] unbearably 

loud music for hours at a time, day and night, on five very large 

speakers aimed at [Derek]’s property.” 

The 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 times of day and night and photographs of the 

speakers pointed directly at Derek’s home. In one of the videos

music blared from the speakers while no one was in Danya and 

Steve’s backyard listening to the music. In other videos music

played 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 videos 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 every 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 deputies 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 Danya and Steve’s backyard. The deputy testified it was 

audible from the street and the music was “[t]oo loud for a 

Wednesday night in that 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 deputy’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 music 

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 neighbor who lived across the street from Danya and 

Steve testified he heard loud music emanating from their house

from early in the morning to around 10:00 p.m. The music played 

“consistently” for months. 

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 controlled remotely. She denied that the outside speakers 

were faced towards Derek’s home and that music played when no 
4

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 his family. 

After three days of evidence, the trial court ruled in favor of 

Derek. The court 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 

dispute—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 orders. 

The restraining order against Danya prohibited 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 threat 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 the 
5

evidence in favor of respondent, the prevailing party, and indulge 

all legitimate and reasonable inferences in favor of upholding 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 included

photographs and over 300 videos documenting loud music playing 

from her outdoor speakers directed towards Derek’s home. The 

videos confirmed that music played at all hours of the day and 

night and for several hours at a time. The music played even 

when Danya and Steve were not home or when no one was 

outside listening to the music. A neighbor corroborated that 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 the music was played through an application on 

Danya’s phone and that she had the ability to control the music

remotely. 

Several deputies testified they were called for noise 

complaints regarding the loud music, which was audible from the 

street. The 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. The footage also 

captured Steve’s response to the noise complaint with a comment 

about the screen, indicative of his intent to harass Derek over the 

screen dispute. Derek testified that Danya was also angry about 

the screen and had “yell[ed] and scream[ed] curse words” at him 

and his family. 

Danya argues the evidence does not show she engaged in 

harassing behavior and that there was only evidence of Steve’s 
6

actions. Her argument lacks merit. Danya presented evidence at 

trial, including her own testimony denying that she engaged in 

harassing behavior. But the 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 argues 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.