Filed 9/4/13 Pinto v. Leon CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO

MARIA PINTO,                                                            B243673

                   Plaintiff and Appellant,                             (Los Angeles County
                                                                        Super. Ct. Nos. PS013879, PS013880)
         v.

MARIA DE JESUS LEON et al.,

                   Defendants and Respondents.




         APPEAL from an order of the Superior Court of Los Angeles County. Jeffrey M.
Harkavy, Commissioner. Affirmed.


         Maria Pinto, in pro. per., for Plaintiff and Appellant.


         No appearance for Defendants and Respondents.
       Maria Pinto (appellant) appeals from an order of the superior court entered after an
evidentiary hearing in this civil harassment matter. Appellant filed requests for orders to
stop harassment against Maria de Jesus Leon (Leon) and Jorge Flores (Flores)
(respondents).1 After an evidentiary hearing lasting five days, the trial court found
appellant failed to prove by clear and convincing evidence that respondents engaged in
unlawful violence, made a credible threat of violence, or engaged in a course of conduct
that seriously alarmed or harassed appellant. However, the trial court issued limited
orders directing respondents to keep their dog on their property and secured at all times;
replace their outdoor security lighting to minimize illumination of appellant‟s property;
refrain from blocking appellant‟s driveway; and refrain from allowing guests to gather
outside of their home after 9:00 p.m.
       Appellant contends that the trial court erred in failing to grant her petition for civil
harassment order. We find no error, and affirm the order of the trial court.
                                     CONTENTIONS
       Appellant contends that the evidence did not support the trial court‟s findings, and
that she was prejudiced by respondents‟ counsel‟s failure to follow the State Bar Rules of
Professional Conduct. Appellant further contends that she satisfied her burden of proving
that her petition for a civil harassment order should be granted.2




1      Appellant‟s two petitions for orders to stop harassment were given two separate
case numbers in the trial court, although they were heard together as related cases. We
granted appellant‟s request for consolidation of the two matters on appeal.

2       Appellant has included in her appeal contentions related to a separate case, Leon v.
Pinto, Los Angeles Superior Court case No. PS013818 (PS013818), for which a
settlement agreement was filed on August 19, 2011. The record does not contain a notice
of appeal for PS013818, nor has there been a request to consolidate a third matter in this
appeal. Therefore, we decline to address any claims relating to PS013818, including
appellant‟s due process argument concerning the actions of the mediator during the
settlement of the case; and her complaints regarding the lack of an interpreter at the time
of the stipulation and settlement in that case.

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                    BACKGROUND AND PROCEDURAL HISTORY
         Appellant filed her petitions for orders to stop harassment on August 19, 2011.
Appellant alleged that respondents had threatened violence against her and that she no
longer felt safe in her home. At the time appellant filed her petitions, she was the
respondent in a civil harassment matter, PS013818. That matter was settled with a
written agreement filed on the same day that appellant‟s petitions were filed, August 19,
2011.3
         Appellant is a woman in her 70‟s who has lived at her current residence for over
30 years. Since shortly after respondents moved into a neighboring home over five years
ago, the parties have been at odds with one another. Law enforcement officers, including
parking enforcement and animal control officers, have been called on numerous
occasions. Appellant alleged that respondents drove their car very close to her and
verbally threatened her. The threats that appellant described were derogatory names such
as “bitch” and “stupid old lady.” Appellant claimed that Leon threatened to “fuck [her]
up.”
         Appellant also claimed that respondents had engaged in a course of conduct to
harass her. The acts alleged included:
         1. Yelling at appellant, calling her derogatory names and cursing at her;
         2. Pointing cameras and lights at appellant‟s home;
         3. Parking their cars in such a way as to block appellant‟s driveway;
         4. Permitting their guests to park their cars in such a way as to block appellant‟s
driveway;
         5. Allowing their children to play in the street and make excessive noise;
         6. Sweeping the sidewalk next to appellant‟s home;
         7. Standing outside and staring at appellant;
         8. Driving close to appellant and making comments;



3      A temporary restraining order in effect in case no. PS013818 was dissolved and
replaced with the settlement agreement in that case.

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       9. Holding weekly gatherings on Wednesday evenings where numerous adults
and children are outside and making excessive noise until late into the evening;
       10. Yelling and screaming at appellant while intoxicated;
       11. Purposely allowing their “vicious” Labrador/mix dog out of their yard to
intimidate appellant;
       12. Calling the police and making false police reports;
       13. Contacting the neighbors in an attempt to have them testify falsely against
appellant; and
       14.Yelling over appellant‟s fence from the neighbor‟s side.4
       Appellant‟s daughter Lourdes Pinto, who resides with appellant in her home,
allegedly witnessed several acts of harassment. According to a declaration dated
October 24, 2011, Lourdes witnessed respondents making a false police report and letting
the dog out just as she was getting out of her vehicle. Lourdes also witnessed Leon
climbing a wall between the properties and yelling profanities at appellant.
       The trial court conducted evidentiary hearings in appellant‟s two related cases
against respondents on October 24, 2011, January 20, 2012, April 17, 2012, May 22,
2012, and July 24, 2012. The court considered the testimony and evidence and also took
judicial notice of PS013818, which both parties referenced.
       While a statement of decision is not necessary in a civil harassment matter, given
the long-standing issues between the parties and the hours of testimony presented, the
court provided a comprehensive, nine-page memo setting forth the reasoning behind its
decision.




4      Appellant has described in her opening brief an incident that occurred on July 21,
2011, which, she claims, caused significant escalation of the tensions between these
neighbors. However, appellant references only her live testimony at the evidentiary
hearing, and appellant has failed to include a reporter‟s transcript of this testimony on
appeal. Under the circumstances, we have no access to this evidence and cannot recount
appellant‟s description of the purported incident.


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       The court acknowledged that the parties have been at odds with each other for
over five years, and that law enforcement officials, including parking officers and animal
control officers, have been involved at various times. However, the trial court concluded
“[i]t is unclear at best, how this all started. Each side blames the other for the first
incidences that each claim was the beginning of this ongoing feud between the families.”
       In denying appellant‟s petition for restraining order, the trial court stated:
              “The Court finds from all the evidence presented, that [appellant]
       has failed to prove by clear and convincing evidence that either Respondent
       engaged in unlawful acts of violence against her. While there were some
       references in [appellant‟s] testimony to acts of driving near her and making
       statements, there was no credible evidence of any acts of violence.
       Likewise, the Court finds that [appellant] has failed to prove by clear and
       convincing evidence that either Respondent made a credible threat of
       violence directed at [appellant].”

       As to appellant‟s claims of harassment, the court noted that each of the
respondents denied the allegations of appellant and her witnesses. The court then
explained its evaluation of appellant‟s credibility:
               “On several occasions, the Court finds that [appellant] has testified
       in a manner that shows an exaggerated and unreasonable reaction to fairly
       normal events. She testified that by being called a „stupid old lady‟ that
       this term constituted a threat to her person and indicated a willingness by
       Mrs. Leon to physically harm her. She testified that she did not call the
       police, in part, because she does not speak English. It is inconceivable that
       a person who has lived in the local area for over 30 years does not know
       that she could call 911 and be assisted by a Spanish speaking operator.
       [Appellant] testified that she saw the Respondents talking with neighbors
       and came to the conclusion that the purpose of these conversations was an
       attempt by the Respondents to suborn false testimony. This allegation was
       made despite the [appellant‟s] total inability to hear what was being said.
       Nor was there any evidence presented by [appellant] as to what was said.
       . . . [Appellant], in her testimony, stated that she was being harassed by Ms.
       Leon sweeping the sidewalk next to the front of her home and staring at
       her. The Court finds that such a distorted and exaggerated interpretation of
       the stated events casts considerable doubt on the [appellant‟s] credibility.”




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         The court also noted that despite the police being called on over a dozen occasions
for noise complaints, not a single citation had been issued. While law enforcement‟s
decisions are not binding on the court, the court noted that this observation seemed “to
indicate a lack of independent evidence that the gatherings at Respondent[s‟] home are as
loud and out of control [as appellant] asserts.” The court further observed that the timing
of appellant‟s petition was suspect, being filed on the same day that she was to be in court
on the PS013818 matter. Having purportedly endured years of harassment and abuse, the
court found it odd that appellant waited until the day she was to appear in court as a
respondent in a harassment case to file her petition. The court concluded, “[t]hese actions
raise the strong indication that the Petitions before this Court were filed in direct
retaliation for being subjected to the Temporary Restraining Orders in the Leon v. Pinto
case.”
         However, the trial court found that four limited orders were warranted by clear and
convincing evidence. The court thus made the following orders:
                  “1. Respondents are to keep their dog on their property and secured
         at all times. The dog may be off the property when being transported in a
         vehicle or while on a leash and under the control of an adult.

                “2. Respondents are to replace their outdoor security lighting with
         motion sensitive security lighting to minimize the time the lights are on at
         night. The lights are to be aimed in a manner that illuminates the
         Respondents[‟] property with as little light as is reasonably practical
         shining onto any neighboring property.

                “3. Respondents are not to park their vehicles in a manner that
         blocks or restricts [appellant‟s] free access to ingress and egress of her
         driveway. Respondents are to take reasonable measures to make sure that
         all guests and invitees to their property park their vehicles in a similar
         manner.

                “4. Respondents are not to permit gathering of persons of any age
         outside of the interior of their house beyond 9:00 p.m. After that hour,
         guests and invitees are to proceed directly to and from their vehicles, or if
         walking, to their destinations, without loud noises or conversation.”




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        On August 27, 2012, appellant filed her notice of appeal in the matter against
Flores. On September 25, 2012, appellant filed her notice of appeal in the matter against
Leon.
                                       DISCUSSION
I. Standard of review
        We review an order relating to harassment under a substantial evidence standard.
“In assessing whether substantial evidence supports the requisite elements of willful
harassment, as defined in Code of Civil Procedure section 527.6, we review the evidence
before the trial court in accordance with the customary rules of appellate review. We
resolve all factual conflicts 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
value. [Citations.]” (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.)
        As in all cases, appellant bears the burden of showing error. (Frank and Freedus
v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 474.) “In the absence of such a showing,
we presume the judgment is correct.” (Ibid.)
II. Timing of appellant’s filing
        Appellant argues that the evidence does not support the trial court‟s finding that
the timing of her filing on August 19, 2011, was suspect after appellant supposedly
endured years of harassment. Appellant claims that in fact she had only been in fear for
her safety since a single incident on July 21, 2011, when she was verbally assaulted by
respondents. Appellant references a declaration dated August 19, 2011, in which she
supposedly wrote that she had been afraid of Leon since July 21, 2011.
        The court has reviewed the record and is unable to find the referenced declaration,
which is not properly cited. There is one declaration by appellant contained in the clerk‟s
transcript, although it is undated and appears to be attached to an answer to a petition for
order to stop harassment filed by Leon. In it, appellant states that the dispute between the
parties “began sometime in 2008,” when Leon parked a truck in front of appellant‟s
driveway, leading to a verbal altercation between the two individuals. Appellant further


                                              7
stated that “[s]ince that [2008] incident, [Leon‟s] behavior has escalated and at times [sic]
combative and threatening to the point that I am fearful and afraid for my safety and well-
being.” A second, undated declaration by appellant also states that the conflict began
with an incident that occurred in 2008, and enumerates seven other separate incidents
occurring between late 2010 and August 2011.5 This evidence supports the trial court‟s
finding that appellant claimed the harassment had been ongoing for years.
       In addition, appellant has failed to provide the court with a reporter‟s transcript of
the evidentiary hearings. The trial court noted that “[a]ccording to [appellant‟s]
testimony, [appellant] had been enduring years of threats, verbal abuse and a variety of
forms of harassment.” A fundamental obligation of an appellant is to present a record
from which an appellate court may determine whether the trial court‟s order, which is
presumed correct, was erroneous. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
Likewise, an appellant must affirmatively show error by an adequate record. (Buckhart v.
San Francisco Residential Rent, etc., Bd. (1988) 197 Cal.App.3d 1032, 1036.) Failure to
provide an adequate record concerning an issue challenged on appeal requires that the
issue be resolved against the appellant. (Hernandez v. California Hospital Medical
Center (2000) 78 Cal.App.4th 498, 502 (Hernandez).)
       Under the circumstances, we find that appellant has failed to meet her burden of
proving that any of the trial court‟s findings were not supported by the evidence.
III. Violation of Rules of Professional Conduct by respondents’ attorney
       Appellant‟s next argument also relies exclusively on oral testimony and events
that occurred during the oral hearings in this matter. Appellant claims that sometime in
March 2012, during the time that the evidentiary hearings in this matter were continuing,
she filed a police report against respondents for violation of court order. The police did
not pursue respondents, instead citing appellant for filing a false police report in violation
of Penal Code section 148.5, subdivision (a). The citation was made by Detective Reade

5       It is unclear from the record the date of the filing of this declaration, or if it was
ever filed.


                                                8
of the Los Angeles Police Department. Appellant appears to be arguing that respondents‟
counsel violated rule 5-200 of the Rules of Professional Conduct when he brought in
Officer Reade as a surprise witness to “sandbag” appellant. In addition, appellant
accuses respondents‟ attorney of seeking to mislead the trial court by making a false
statement of fact or law.
       Without a reporter‟s transcript of the proceedings, we have no means of evaluating
these events or the conduct of respondents‟ attorney. Therefore we must resolve this
issue against the appellant. (Hernandez, supra, 78 Cal.App.4th at p. 502.)
IV. Substantial evidence supports the decision that appellant failed to meet her
burden of proving that her petition for civil harassment order should be granted
       Appellant argues that she presented sufficient evidence in support of her petitions
for orders to stop harassment against respondents. Appellant references her sworn
testimony, written declarations, exhibits, witness declarations, and live witnesses.
Appellant contends that through this evidence, she proved that she was subjected to a
pattern of misconduct and illegal, harassing behavior perpetrated by respondents for no
other reason than to molest, harass, intimidate and disturb her.
       As set forth above, appellant has failed to provide an adequate record for review
and therefore has failed to meet her burden of proving error. (Hernandez, supra, 78
Cal.App.4th at p. 502.) Furthermore, we note that the trial court‟s decision was largely
based on its finding that appellant‟s testimony was not credible. The trial court
enumerated specific examples of appellant‟s statements and conduct which contributed to
the court‟s assessment of her veracity. For example, the court found that appellant
testified to having exaggerated and unreasonable reactions to fairly normal events. In
addition, appellant testified to the content of a conversation that she admitted she could
not hear. Despite the fact that she could not hear the conversation, she concluded that it
was an attempt by respondents to suborn false testimony. The suspicious timing of the
filing of appellant‟s petitions, which the court felt suggested that appellant was filing in
retaliation to a petition filed against her, was another of the examples of unreasonable
conduct that the court listed.


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       A reviewing court may neither reweigh the evidence nor reevaluate a witness‟s
credibility. (People v. Lindberg (2008) 45 Cal.4th 1, 27.) In this case, the determination
of the witness‟s credibility was in the exclusive province of the trial judge, who saw and
heard the witnesses. (Von Hasseln v. Von Hasseln (1953) 122 Cal.App.2d 7, 13.) The
trial court‟s determination that appellant lacked credibility is not subject to reevaluation.
Under the circumstances, there is no grounds for reversal.
                                      DISPOSITION
       The order is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                   __________________________, J.
                                                   CHAVEZ

We concur:



___________________________, P. J.
BOREN



___________________________, J.
ASHMANN-GERST




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